State ex rel. Dewine v. Titan Wrecking & Environmental, L.L.C.

[Cite as State ex rel. Dewine v. Titan Wrecking & Environmental, L.L.C., 2012-Ohio-1429.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO, ex rel. MIKE DEWINE :
Plaintiff-Appellant : C.A. CASE NO. 24661
v. : T.C. NO. 08CV10301
TITAN WRECKING & ENVIRONMENTAL, : (Civil appeal from
LLC Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 30th day of March , 2012.
..........
WEDNESDAY M. SZOLLOSI, Atty. Reg. No. 0075655, Assistant Attorney General, One
Governmental Center, Suite 1340, Toledo, Ohio 43604 and GREGG H. BACHMANN, Atty.
Reg. No. 0039531, Assistant Attorney General, 30 East Broad Street, 25th Floor, Columbus,
Ohio 43215
Attorneys for Plaintiff-Appellant
RONALD J. KOZAR, Atty. Reg. No. 0041903, Kettering Tower, Suite 2830, 40 N. Main
Street, Dayton, Ohio 45423
Attorney for Defendant-Appellee
..........
FROELICH, J.
{¶ 1} The State of Ohio appeals from a judgment of the Montgomery County
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Court of Common Pleas, which concluded after a bench trial that Titan Wrecking and
Environmental, LLC, did not improperly handle asbestos-containing materials during the
course of removing floor tile from Cleveland Elementary School prior to demolishing the
building. For the following reasons, the trial court’s judgment will be affirmed.
I.
{¶ 2} At the State’s request, the trial court issued findings of fact and conclusions
of law. The trial court made the following findings of facts, which we find are supported by
the record.
{¶ 3} In 2003, the Cleveland Elementary School on Pursell Avenue in Dayton
was being demolished as a part of the Dayton Public Schools rebuilding program.
Cleveland Elementary School had stood for decades, and many additions had been made
over the years. The school was being demolished to make way for the construction of a
new Cleveland Elementary School. The school district contracted with Titan to demolish
the building.
{¶ 4} In conjunction with the Cleveland Elementary School demolition, Dayton
Public Schools contracted with other contractors, including an asbestos abatement
contractor. The asbestos abatement contractor was to perform its work prior to Titan
completing the demolition. The asbestos abatement contractor was Helix Environmental
and its representative was Ralph Froehlich. Helix finished its work in late November or
early December of 2003.
{¶ 5} On December 3, 2003, Titan filed a Notification of Demolition and
Renovation with the Regional Air Pollution Control Agency (“RAPCA”), the local air
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pollution control authority charged by the Ohio Environmental Protection Agency (“Ohio
EPA”) with enforcing United States Environmental Protection Agency (“EPA”) rules and
regulations for the Clear Air Act, including asbestos regulations. Titan submitted the
demolition notification on the prescribed EPA form and indicated its plan to remove 12,000
feet of vinyl floor tile prior to demolition of the Cleveland Elementary School building; the
notice indicated that the flooring contained non-friable asbestos. Titan intended to remove
the floor tile in order to recycle the concrete floors.
{¶ 6} Titan used a “bobcat” with rubber tires and a shovel-type device attached to the front to scrape the floor tile off
the concrete floor. In the process of removing this floor tile from the concrete floor, the tile broke or cracked in pieces. Some of the
floor tile broke into large pieces and other pieces of tile broke into small pieces. The floor tile was also mixed into piles with other
debris that came from the ceiling and walls of the school building. Some of the walls were constructed out of plaster and some of
concrete or ceramic, brick or block. There were also components of the structure made of wood. During the demolition, all of this
material was broken and damaged. The remnants were pushed into large piles; some piles were outside the building, others were inside.
{¶ 7} In early December 2003, RAPCA received a complaint about Titan’s
demolition activities. Sarah Sink-Gostomsky of RAPCA inspected the demolition site on
December 15, 2003. She observed removal activity underway and saw the piles of debris.
She observed that there were no water trucks, hoses or sprayers. She saw damaged floor
tiles of many different sizes and observed that the tile was cracked and in many pieces. Sink-Gostomsky
took several photographs of the floor tile and debris piles.
{¶ 8} Sink-Gostomsky felt the edges of the tile; she did not put the pieces into a
plastic bag and apply hand pressure to them within the bag to determine if they would
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crumble, become pulverized, or be reduced to powder. She concluded, simply by rubbing
the edges, that there was a release of asbestos fragments into the air. She further concluded
that the floor tile was extensively damaged and thus had become friable. In her view, the
asbestos material was subject to regulation. In her reports regarding the inspection, Sink-Gostomsky did not
indicate that the floors had been subject to sanding, grinding, cutting or abrading. However, she drew a conclusion, from visual
observation, that the materials appeared to have been subjected to grinding. Sink-Gostomsky took three samples
of the floor tile, all from the second floor of the building. These samples were
ultimately sent to Data Chem Laboratories (now ALS Labs) in Cincinnati for analysis.
{¶ 9} The Ohio Department of Health (“ODH”) was also advised of the possible violation of the Ohio
Administrative Code with regard to asbestos emission control standards and procedures. Pursuant to that notification, Shamus
Estep, a program sanitarian specialist for ODH, inspected the Cleveland Elementary School demolition site on December 15, 2003, the
same day as Sink-Gostomsky. Estep observed “substantially non-intact” floor tile and took photographs of what he saw at the site.
Estep did not acquire a dust sample, and he did not place the pieces or a piece of floor tile in a plastic bag and apply hand pressure to see
if the tile would crumble, pulverize or be reduced to powder. He did not observe any mechanical sanding, grinding, cutting or
abrading at the site, but he believed that some cutting or grinding had occurred before he arrived. Estep did not observe wetting,
containment by polycritical sheeting, or negative air pressure machines. Estep collected five samples of the floor tile and sent them to
Data Chem.
{¶ 10} Titan was not utilizing wetting during the removal of the floor tile. It was
not using plastic sheeting on the windows or negative air pressure. Titan was of the view
that all asbestos-containing materials that were subject to regulation had been removed by
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Helix and that it did not have to engage in containment activities unless the resilient floor
tile became friable.
{¶ 11} On March 31, 2004, RAPCA issued a notice of violation to Titan. Another
contractor, Lepi, was brought in to clean up the site.
{¶ 12} Data Chem analyzed the samples provided by RAPCA and ODH and
provided reports to those agencies. RAPCA had requested that its samples be analyzed
using the bulk Polarized Light Microscopy (“PLM”) method, which involves a visual
estimation of the amount of asbestos; PLM is not especially effective with respect to bulk building materials.
RAPCA did not request, and Data Chem did not do, a “point counting analysis”
(which also uses a polarized light microscope), the method mentioned in the EPA
regulations. ODH requested PLM analysis with point counting if the percentage of asbestos was less
than ten; Data Chem analyzed the ODH samples by Transmission Electron Microscopy (“TEM”), a method which is more sensitive
than a PLM analysis. Point counting is not feasible on floor tiles.
{¶ 13} Data Chem determined that all three of the RAPCA samples contained
more than one percent asbestos. Data Chem found asbestos in four of the five samples submitted by ODH; two of the
four contained asbestos in an amount greater than one percent. The samples submitted by the two
agencies were held for about two months by Data Chem. The agencies did not
request the samples be returned, so Data Chem disposed of the samples.
{¶ 14} The trial court further found:
Floor tile is a category I item under the NESHAP [the federal National
Emission Standards for Hazardous Air Pollutants] regulations. Floor tile like
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roofing, packing and gaskets are considered less hazardous for the emission of asbestos fibers during demolition
or renovation. If the floor tiles are in good condition and intact the danger of asbestos release is not great.
Breaking a floor tile alone is not enough for fiber release.
Inspectors can use various types of tests to determine whether a category I non-friable asbestos
containing material becomes friable during the process of demolition. The determination is subject to some
subjectivity. It is the custom in the regulatory arena to respect a decision about friability based on visual
observation and a hand pressure test. It is not uncommon for an inspector to use an edge test. Some
regulators are of the view that the more edges that are exposed the greater the likelihood asbestos fìbers have been
released.
The edge test is not provided for in the regulations. The edge test is a different method of hand
pressure. It is not something that is described in the regulations.
Over the years there has been a great deal of discussion and consideration of treatment of building
material such as floor tile with respect to the danger for asbestos fiber release. At one time the regulations
indicated that if these materials become broken or extensively broken, the danger of asbestos fiber release was
appreciably greater, materially enhanced. So, if the floor tile was extensively broken then it would be
considered friable and containment activity would be appropriate. The EPA guidance letters have indicated
that the EPA is moving away from the term “extensive breakage” as the criterion for judging whether the floor
tile has become or will become regulated. The EPA has employed the term “extensively damaged” as a criterion
as of about 1994. “Extensively damaged” appears to mean: crumbled, pulverized or reduced to powder.
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Most non-friable material, such as resilient floor tile, if in good condition, can be broken without
releasing significant quantities of airborne asbestos fibers. Category l material such as floor tile and including
asphalt roofing, packing and gaskets are stable items and do not present as great a hazard as other material. So,
if these items are not extensively damaged, they can be left in place during demolition and no containment
activity need be performed.
{¶ 15} Applying these facts to R.C. 3074.05(G) and Ohio Adm. Code
3745-20-04(A), the trial court concluded that the floor tile was not regulated
asbestos-containing material (“RACM”). Although the court found that the tile contained
more than one percent asbestos and implicitly found that the amount of floor tile removed
exceeded the minimum regulated amount, the court concluded that the State failed to prove
by a preponderance of the evidence that the floor tile was rendered friable. The court
emphasized that the hand pressure test (as opposed to the edge test) had not been used and
that breakage alone was insufficient to establish friability. The court further found that the
floor tile did not become RACM due to cutting, sawing, grinding or abrading, stating that the
State “failed to produce, in this case, evidence of cutting, grinding, sawing, or abrading.”
The court entered a general verdict in Titan’s favor and dismissed the State’s complaint with
prejudice.
{¶ 16} The State appeals from the trial court’s judgment, raising three assignments
of error. In a cross-assignment of error, Titan argues that we should affirm the trial court’s
judgment on the additional basis that the State failed to prove that the floor tiles contained
more than one percent asbestos.
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II.
{¶ 17} R.C. Chapter 3704 governs air pollution. Asbestos is a hazardous air
pollutant, and there is no known safe level of exposure. R.C. 3704.05(G) provides that
“[n]o person shall violate any order, rule, or determination of the director [of the Ohio EPA]
issued, adopted, or made under this chapter.” The regulations concerning asbestos emission
control are found in Ohio Adm. Code Chapter 3745-20. Ohio’s regulations mirror those set
forth in the asbestos NESHAP regulations, which are found in 40 C.F.R. 61, Subpart M.
For purposes of this appeal, we are concerned with the version of Ohio Adm. Code Chapter
3745-20, effective November 2002, which the State introduced at trial as Exhibit 33.
{¶ 18} The procedures for notification, emission control, and waste disposal, as set
forth in Ohio Adm. Code 3745-20-03 through 3745-20-05, apply to owners and operators of
a demolition or renovation operation if there is at least a threshold amount of regulated
asbestos-containing material. Ohio Adm. Code 3745-20-02(B)(1). Likewise, if a building
is being renovated and the amount of RACM to be stripped, removed, dislodged, cut, drilled,
or similarly disturbed exceeds a certain amount, the procedures for notification, emission
control, and waste disposal apply. Ohio Adm. Code 3745-20-02(B)(4).
{¶ 19} There are four types of regulated asbestos-containing material:
(a) Friable asbestos material;
(b) Category I nonfriable asbestos-containing material that has become
friable;
(c) Category I nonfriable asbestos-containing material that will be or has
been subjected to sanding, grinding, cutting, or abrading; or
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(d) Category II non friable asbestos-containing material that has a high
probability of becoming or has become crumbled, pulverized, or reduced to
powder by the forces expected to act on the material in the course of
demolition or renovation operations regulated by this chapter. Ohio Adm.
Code 3745-20-01(B)(11).
{¶ 20} “Friable asbestos material” is “any material containing more than one per
cent asbestos by area, as determined using the method specified in Appendix E, Subpart E,
40 CFR Part 763, Section 1 Polarized Light Microscopy, that, when dry can be crumbled,
pulverized, or reduced to powder by hand pressure.” Ohio Adm. Code 3745-20-01(B)(21).
On the other hand, “nonfriable asbestos-containing material” is defined as “any material
containing more than one percent asbestos * * * that, when dry, cannot be crumbled,
pulverized, or reduced to powder by hand pressure.” Ohio Adm. Code 3745-20-01(B)(34).
{¶ 21} “Category I nonfriable asbestos-containing material” includes
resilient floor coverings. Ohio Adm. Code 3745-20-01(B)(9). “Resilient floor
covering” is defined as “asbestos-containing floor tile, including asphalt and vinyl
floor tile, and sheet vinyl floor covering containing more than one percent asbestos
* * *.” Ohio Adm. Code 3745-20-01(B)(44).
{¶ 22} Stated simply, to be regulated under Ohio’s asbestos regulations, the
asbestos-containing material must meet three criteria: (1) the material must contain greater
than one percent asbestos; (2) the amount of material must be at least 160 square feet, 260
linear feet, or 35 cubic feet (the threshold amount); and (3) the material must fall within one
of the four categories of regulated asbestos-containing materials.
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{¶ 23} The regulations define resilient floor tile, such as was found in the
Cleveland Elementary School, as a Category I nonfriable asbestos-containing material.
Under the demolition and renovation regulations, as long as the floor tile was not in poor
condition and was not friable, Titan was not required to remove it prior to demolition (unless
the building and/or debris would be burned). Ohio Adm. Code 3745-20-04(A)(1)(a), (E).
{¶ 24} At trial, the State argued that Titan elected not to leave the floor tile in
place during demolition. Rather, Titan chose to remove the floor tile prior to demolition so
that it could recycle the concrete to which the floor tile was attached. The State proceeded
on the theory that the vinyl floor tile was rendered friable and/or that it had been subject to
grinding by Titan's removal activities and, as a result, Titan subjected itself to the emission
control and disposal procedures set forth in the Ohio Administrative Code.
{¶ 25} The emission control procedures include adequately wetting the asbestos
before, during, and after the removal activity; properly packaging the asbestos-containing
material, and disposing of that material at a licensed asbestos landfill. The State presented
evidence – and Titan did not dispute – that Titan did not engage in emission control
procedures during its removal of the floor tile at Cleveland Elementary School.
III.
{¶ 26} The State’s first assignment of error reads:
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
CONCLUDING THAT THE FLOOR TILE WAS NOT REGULATED
ASBESTOS-CONTAINING MATERIAL UNDER OHIO ADM. CODE
3745-20-01(42)(c) [FORMERLY OHIO Adm. CODE 3745-20-01(B)(41)].
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{¶ 27} In its first assignment of error, the State contends that the trial court
conflated two of the types of RACM by requiring “Category I nonfriable asbestos-containing
material that will be or has been subjected to sanding, grinding, cutting, or abrading” also to
be friable. The State asserts that the trial court’s finding that “pieces of tile broke into small
pieces” met the definition for “grinding,” and the court was required to find in the State’s
favor as a matter of law.
{¶ 28} In its findings of fact and conclusions of law, the trial court stated, in part:
The central issue in this case is whether the floor tile was friable. To determine if the floor tile is friable one has
to see if it can be crumbled, pulverized, or reduced to powder by hand pressure. It is the critical test that applies
even to the alternative situation of examining whether there was cutting, sawing, grinding or abrading. It all
comes down to the central question of whether these floor tiles were in such a condition that they can relatively
easily be crumbled, pulverized, or reduced to powder. In that state they have a very high probability of
releasing asbestos fibers into the air. In that state they present a risk to human health.
{¶ 29} As stated above, Ohio Adm. Code 3745-20-01(B)(41) sets forth four
categories of regulated asbestos-containing materials. The State claimed that the Cleveland
Elementary School tile was RACM as “Category I nonfriable asbestos-containing material
that has become friable” and/or “Category I nonfriable asbestos-containing material that will
be or has been subjected to sanding, grinding, cutting, or abrading.”
{¶ 30} Asbestos-containing material is “friable” if it “can be crumbled, pulverized,
or reduced to powder by hand pressure” when the material is dry. In its October 1990 report
regarding comments to the proposed NESHAP regulations, the EPA considered, but
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ultimately did not include, the term “broken” as part of its definition of “friable.” The EPA
determined that the addition of the term “broken” would create confusion and possible
misapplication of the definition of “friable”. (Def. Ex. F, 4-6.)
{¶ 31} Addressing the hand pressure aspect of the definition of “friable,” the EPA
further stated that it considered but rejected a revision to the definition to include mechanical
forces expected to act on the material:
The EPA believes, however, it is useful to distinguish between material that
can be easily crumbled, etc. to a powder, i.e., friable material, and material
that is normally nonfriable that as a result of the forces associated with
demolition and renovation, may become crumbled, pulverized, or reduced to
a powder and is therefore, capable of releasing asbestos fibers in amounts
similar to friable material. Also, although nonfriable material may be broken
or crumbled and capable of releasing asbestos, it does not necessarily become
friable.
The EPA therefore created the term “regulated asbestos-containing material” to account for
nonfriable materials that may nevertheless release asbestos fibers in an amount similar to
friable asbestos-containing materials. Subsequent guidance from the EPA has also stated,
for example, that “Category I materials are considered RACM only when they ‘will be or
have been subjected to sanding, grinding, cutting, or abrading’, they are in ‘poor condition’
and ‘friable’, or the structure in which they are located will be demolished by burning.”
(State’s Ex. 23., p.5)
{¶ 32} Ohio Adm. Code 3745-20-01(B)(41) explicitly and clearly provides four
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means by which asbestos-containing material may be subject to regulation. With respect to
Category I asbestos-containing material, such as floor tile, such material may be regulated if
it either becomes friable or is subjected to sanding, grinding, cutting, or abrading. These are
alternative means. The EPA comments and guidance documents reinforce the intent that
friable material as well as a nonfriable Category I asbestos-containing material that has been
subject to certain forces are separately addressed in the regulations. We therefore agree
with the State that the question before the court should not have been reduced solely to
whether the floor tile had been rendered friable by Titan’s removal activity. The floor tile
could also have been subject to the emission control and disposal procedures if it were
subjected to grinding, as the State claimed, even if it were not friable as a result of cutting,
grinding, sanding, or abrading.
{¶ 33} The State further argues that the trial court should have found, as a matter of
law, that the floor tile at Cleveland Elementary School had been subjected to grinding based
on the court’s finding that “pieces of tile broke into small pieces.” “Grinding” means “to
reduce to powder or small fragments and includes mechanical chipping or drilling.” Ohio
Adm. Code 3745-20-01(B)(24).
{¶ 34} Although the State emphasizes that the trial court found that the floor tile
was broken into small pieces, the trial court’s findings were more varied. The trial court
initially stated that “[i]n the process of removing this floor tile from the concrete floor, the
tile broke or cracked in pieces. Some of the floor tile broke into large pieces and other
pieces of tile broke into small pieces.” Discussing Sink-Gostomsky’s site investigation, the
trial court found that she saw floor tile that was “cracked” and in “many pieces” and that she
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observed “damaged floor tiles of many different sizes.” In its conclusions of law, the court
again noted that “[t]he resilient floor tile was broken into many pieces when Defendant
scraped it off of the concrete floors at the Cleveland Elementary School.” The court
ultimately concluded that the floor tile had not been subjected to sanding, grinding, cutting,
or abrading.
{¶ 35} Stated generally, the trial court found that Titan’s scraping of the floor tile
from the cement underlayment resulted in broken tiles of various sizes. It did not find that
the floor tile was broken into small fragments or powder, nor did its findings suggest that the
overwhelming majority of the broken tile constituted small fragments or powder. We
cannot reasonably infer such a finding based solely on the phrase that some of the “pieces of
tile broke into small pieces.” Whether the trial court’s findings are against the manifest
weight of the evidence was raised in the State’s third assignment of error, and that issue will
not be addressed here. Given the trial court’s findings, we find no basis to conclude that the
trial court should have concluded, as a matter of law, that the floor tile was subjected to
grinding during the pre-demolition removal of the floor tile.
{¶ 36} The State’s first assignment of error is overruled.
IV.
{¶ 37} The State’s second assignment of error reads:
THE TRIAL COURT ERRED AS A MATTER OF LAW IN REQUIRING
THAT FRIABILITY BE DETERMINED BY APPLYING HAND
PRESSURE IN A SPECIFIC MANNER
{¶ 38} In its second assignment of error, the State contends that the trial court
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improperly concluded that the regulations required a specific hand pressure test to determine
friability. The State argues that the EPA has never expressly defined what is intended by
the term “hand pressure,” and the EPA guidance documents are merely suggestions as to
how that term should be applied. Titan responds that any error by the trial court regarding
its hand pressure analysis would be harmless, because the State did not establish that the
floor tiles were friable, regardless of the test that was used.
{¶ 39} At trial, Sink-Gostomsky testified that she rubbed her finger along the edge
of the floor tile samples, which she considered to be a hand pressure test. She stated that
rubbing on the edges can show that there is powder on the material, and that the edges of the
Cleveland Elementary School floor tile were reduced to powder by hand pressure. Estep
did not do a hand pressure test; he stated that he was certain “by visual representation” that
the floor tile was friable.
{¶ 40} Thomas Buchan, Ohio EPA’s Asbestos NESHAP Coordinator in the
Division of Air Pollution Control, Air Toxics Unit, testified that a material is friable if it is
damaged to the extent that there is a significant chance for potential for fiber release. He
stated that friability can be determined either by hand pressure or “if it’s extensively
damaged enough that it exposes areas where * * * the fibers are like that, then the
disturbance of that material will significantly increase the chance for fiber release.” Buchan
stated on redirect examination that rubbing on the edges to determine whether there is
potential release of fibers constitutes hand pressure.
{¶ 41} Titan’s expert, Wayne Ingram of Training Services International (“TSI”), a
company that provides asbestos regulation training to the regulated community and
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government entities, testified that friability is determined by a hand pressure test. He stated
that EPA guidance documents indicate that an inspector should put the material into a
ziplock bag and try to crush it with hand pressure; “you basically squeeze the material and
see if it easily crumbles or pulverizes.” Ingram stated that “hand pressure” is the only test
given to determine the friability of Category I asbestos-containing materials; however, EPA
guidance documents indicate that a finger edge test is part of applicable tests for Category II
asbestos-containing materials.
{¶ 42} The December 1990 Asbestos/NESHAP Regulated Asbestos Containing
Materials Guidance (EPA-340/1-90-018) provided “recommendations” for complying with
the asbestos NESHAP regulations, and it included guidelines for determining friability. In
the General Inspection Procedures section, the guidance document suggests to collect a piece
of dry ACM and seal it in a transparent, reclosable sample bag, apply hand pressure and
observe if the ACM falls apart to the extent that it is crumbled, pulverized, or reduced to
powder. As to resilient floor tile specifically, the document recommends looking to see if
the tile is in poor condition and, if so, collecting a representative sample, sealing it in a
sample bag, and applying hand pressure.
{¶ 43} With respect to Category II nonfriable asbestos-containing material, such as
asbestos cement pipe and sheet products, the 1990 guidance document notes that “[b]roken
edges of these material typically are friable. The fractured surface should be rubbed to see
if it produces powder.”
{¶ 44} The December 1990 guidance document acknowledges that the
recommendations “are not the exclusive means of complying with the Asbestos NESHAP
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requirements,” and that “[f]ollowing these recommendations is not a guarantee against
findings of violations.” Nothing in the 1990 guidance document precludes rubbing the edge
of Category I nonfriable asbestos-containing material if it appears that the broken edge may
be friable, but there are no specific suggestions recommending such action. This may be
based on the EPA’s statements in the preamble to the November 1990 regulations that
“materials such as resilient floor coverings * * * would rarely, if ever, need to be removed
because, even when broken or damaged, they would not release significant amounts of
asbestos fibers.”
{¶ 45} In its conclusions of law, the court discussed the testimony, regulations, and
guidance documents regarding the manner of conducting a hand pressure test.
The Defendant argues that with regard to this critical issue [i.e., friability,] the hand pressure test, as
set forth in the EPA publication, is required. The Plaintiff agrees there needs to be a hand test but does not
agree that the inspection procedures set forth in the EPA publication is [sic] the exclusive required method.
Plaintiff asserts the “edge test”, is equally valid.
Neither party has cited a statute, regulation, or case that mandates a particular method. The court is
persuaded that on this important issue the procedure set forth in the EPA publication should be followed.
Although the regulations appear to permit some subjectivity, the court feels that it is not unbridled subjectivity
that should prevail. Of the two alternatives to triggering the requirement of various containment procedures,
all are best served by some observance of a standard. It should not be a situation of an inspector, even though
well trained and very experienced, just saying there are too many edges and thus the pieces are friable. An
inspector should be required to take a piece of dry tile and seal it in a transparent, reclosable sample bag, apply
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hand pressure and observe if the tile falls apart to the extent that it is crumbled, pulverized, or reduced to powder.
The court realizes that this may be an attempt to draw a fine line in various gradations or degrees, but it
provides some moderate reasonable objectivity.
***
As indicated, the test for friability involves two determinations. First, had the asbestos-containing
material when dry become crumbled, pulverized, or reduced to powder. One determines that when using hand
pressure on the substance and seeing if it will crumble, pulverize, or be reduced to powder. The second
question is whether the floor tile has been subject to cutting, grinding, sanding or abrading. Plaintiff failed to
produce, in this case, evidence of cutting, grinding, sanding or abrading.
Plaintiff, with some credibility, points to the many pieces of floor tile in the photographs. The
Plaintiff further had evidence that one of the inspectors had used her hand on the edges of the tile pieces and
fragments came loose. Finally, Plaintiff points to the fact that there were so many pieces and that with that
many edges exposed the likelihood of asbestos fiber release was great.
The Defendant stresses the lack of a test here. The Defendant emphasizes that the inspectors never
engaged in the procedure suggested by the EPA to determine friability of floor tile. The Defendant stresses the
general nature of resilient floor tile, that is, that if it is intact, not in poor condition, it is not likely to release a
significant amount of asbestos fibers.
The court has employed the test for determining credibility of the witnesses. The court considers the
appearance of each witness upon the stand; his or her manner of testifying; the reasonableness of the testimony;
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the opportunity he or she had to see, hear and know the things concerning which he or she testified; his or her
accuracy of memory; frankness or lack of it; intelligence, interest and bias, if any; together with all of the facts and
circumstances surrounding the testimony. Considering the credibility of the witnesses, the exhibits, testimony
and all the facts and circumstances in evidence, it is reasonable to conclude that Plaintiff has not established by a
preponderance of the evidence that the floor tile became friable. Therefore, the asbestos NESHAP was not
triggered. Defendant did not have to comply with the NESHAP procedures under these circumstances.
{¶ 46} The trial court acknowledged that the hand pressure test had not been
described in the regulations and that no statute or regulation mandates a particular method.
Although the trial court stressed a strong preference that the hand pressure test be applied in
the manner described by the guidance documents to provide some objectivity and uniformity
to the determination of friability, the trial court did not require Sink-Gostomsky, Estep, and
other asbestos inspectors to apply a particular hand pressure test. And at the end of its
conclusions of law, the trial court expressly indicated that it had determined whether Titan
was subject to NESHAP regulations by weighing the credibility of the parties. There is no
suggestion that the trial court’s finding regarding the friability of the floor tile was based
solely on the fact that Sink-Gostomsky and Estep had not performed a hand pressure test by
placing their samples in plastic bags and attempting to crush the samples with their hands.
The trial court did not conclude that the hand pressure test, as set forth in the regulations,
was required to determine whether a material is friable.
{¶ 47} The State’s second assignment of error is overruled.
V.
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{¶ 48} The State’s third assignment of error states:
THE TRIAL COURT’S RULING WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 49} In its third assignment of error, the State argues that the trial court erred in
stating that the central issue in the case was whether the floor tile was friable; the State
claims that the relevant issue was whether the floor tile was RACM. The State further
asserts that the trial court should not have relied on guidance documents that refer to razing
operations, as Titan was removing floor tile prior to demolition. Finally, the State contends
that the trial court’s findings that the floor tile had not been subjected to grinding and was
not friable were against the manifest weight of the evidence. The State asserts that the
manifest weight of evidence supports the conclusion that the Cleveland Elementary School
floor tile was RACM and that Titan was required to comply with the NESHAP regulations.
{¶ 50} The central issue in this case was not whether Titan was required to remove
the floor tile prior to demolition. There was no evidence that the Cleveland Elementary
School floor tile was in poor condition and friable prior to Titan’s decision to remove the
tile, and the trial court found accordingly. It was undisputed that Titan decided to remove
the floor tile so that it could recycle the concrete underlayment.
{¶ 51} The State proceeded on the theory that, having elected to remove the floor
tile, Titan’s method of removal caused the floor tile to become RACM and subject to
NESHAP regulations. The principal issues involved in that determination were whether the
floor tile had been rendered friable or whether it had been or would be subjected to grinding,
sanding, cutting or abrading. (The State focused on grinding.) Regardless of how the trial
21
court framed the issue, the trial court found that the broken floor tile was not friable and that
there was no evidence of grinding. We therefore focus on whether the trial court’s findings
regarding friability and grinding were against the manifest weight of the evidence.
{¶ 52} The weight to be given the evidence and the credibility of the witnesses are
primarily matters for the trier of fact to determine. In re Guardianship of Smith, 2d Dist.
Clark No. 09 CA 69, 2010-Ohio-4528, ¶ 19, citing State v. DeHass, 10 Ohio St. 2d 230, 227
N.E.2d 212 (1967). The court of appeals has an obligation to presume that the findings of
the trier of fact are correct. State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, ¶ 24. “This presumption arises because the trial judge had an opportunity ‘to
view the witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.’ * * * ‘A reviewing court
should not reverse a decision simply because it holds a different opinion concerning the
credibility of the witnesses and evidence submitted before the trial court. A finding of an
error in law is a legitimate ground for reversal, but a difference of opinion on credibility of
witnesses and evidence is not.’” (Internal citations omitted.) Id. We will not reverse the
trial court’s findings “if there is some competent, credible evidence” to support them. See
C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶ 53} The State’s evidence on the friability of the floor tile focused on the
condition of the floor tile after its removal by Titan. Sink-Gostomsky testified that she
observed “a few [floor tiles on the first floor that] were 9-by-9, full size. But I would say
the vast majority, 80, probably 90 percent of it were in small pieces; anywhere from the size
of your hand, down to lots of pieces that were smaller than a dime, to just little chips of it.”
22
On the second floor, she also saw “extensively damaged” floor tile, which were so numerous
that she “couldn’t even count the number of pieces that it would take in order to be a 9-by-9
floor tile. They were very small, probably, like I said, anywhere between, you know, the
size of your hand, quarter, nickel, dime, and smaller.” Sink-Gostomsky saw dust and debris
everywhere, and she acknowledged on cross-examination that the dust could have emanated
from wallboard, ceiling tile, or other construction debris.
{¶ 54} Sink-Gostomsky explained that breakage leads to the release of fibers, the hallmark of friability. She
stated,“Every time there is a crack or break in the tile, the edges of where that breakage is, asbestos fibers can be released from that
breaking, that breakage. So if you have a tile that’s been extensively damaged, it’s in small, little fragments, each little piece, every
edge of each individual piece can release asbestos fibers into the air.”
{¶ 55} Sink-Gostomsky said that she considered the floor tile to be friable and regulated. On cross-examination,
she testified that she felt each of the pieces she sampled and rubbed her finger across the edge to see if there was “powder on the
material.” On redirect examination, Sink-Gostomsky stated that the edges of the floor tile reduced to powder by hand pressure. She
testified that the floor tile on both levels of the building “had been rendered substantially non-intact and friable by whatever removal
efforts were being utilized to remove the floor tile from the concrete.”
{¶ 56} Estep, the ODH inspector, testified that material is friable when it “has been
rendered into small, potentially airborne or substantially non-intact pieces.” With respect to
floor tile, he testified on cross-examination that breakage into three pieces would render the
floor tile airborne or potentially airborne. He stated that the condition of the material
would determine whether the material was friable, and that friability was a “visual
determination.” Estep did not do a hand-pressure test at Cleveland Elementary
23
School, because he was certain “by visual representation” that the floor tile at the
school was friable.
{¶ 57} Buchan also testified that an investigator would know if Category I ACM
had become subject to regulation “by the condition of the material.” He stated that it was
the extent of the damage that made the floor tile friable and that the extensive damage to the
Cleveland Elementary School floor tile had caused it to become RACM. Buchan explained
that Category I nonfriable asbestos-containing material in good condition does not have to be
removed before demolition, but if a contractor decides to remove the flooring, “you can’t
deliberately cause it to become friable. You have to remove it in an intact or a nonfriable
state and it has to remain that way all the way through removal to disposal.”
{¶ 58} Buchan testified that one way floor tile can become RACM is if it is broken
into small pieces. He believed that if tile broke into pieces the size of a quarter or less it
would be significantly or extensively damaged and thus subject to regulation Buchan stated
that floor tile is friable if it is damaged to the extent that there is a significant chance for
potential for fiber; he indicated that the potential for fiber release is determined on a
case-by-case basis by looking to see if the material’s bonds are broken and fibers are
exposed. During cross-examination, however, Buchan acknowledged that “extensively
broken” is not a term used in the NESHAP final rule, that the rule does not define broken
floor tile of a particular size or in a particular number of pieces as friable, and that the rule
defines friable material as material that “can be crumbled, pulverized, or reduced to powder
by hand pressure.”
{¶ 59} Ingram testified that the EPA had used the term “broken” in the 1980s, but
24
the 1990 rules decided to go back to using crumbled, pulverized, or reduced to powder to
define friability. Ingram stated that if floor tile is broken during demolition, “[i]t is just a
smaller piece of floor tile”; in his opinion, broken floor tile did not become RACM. Upon
reviewing the photos taken by Sink-Gostomsky and Estep at Cleveland Elementary School,
including the photos of the tile, the debris piles, and the bobcat on site, Ingram opined that
there were no tools that would have caused the floor tile to become RACM. He testified
that the photos showed broken tile, but the material did not become friable during removal
by Titan. Ingram stated that resilient floor in good condition remains very flexible and that
risk from the flooring is “very, very low.” He indicated that resilient floor tile would not
crumble just because it was 53 years old. Ingram testified that the removal of the floor tile
prior to ultimate demolition is not subject to NESHAP procedures as long as the tile was not
sanded, grinded, cut, or abraded.
{¶ 60} Ristich testified on cross-examination that the floor tile samples collected
by RAPCA had been described by a Data Chem analyst as being “solid, compact materials.”
Ristich stated that based on that description she would say that the floor tile was nonfriable.
{¶ 61} State’s Exhibit 23, which was the EPA’s September 1992 manual entitled
“Demolition Practices Under Asbestos NESHAP,” addressed pre-demolition floor tile
removal and commented that a “wide variety of floor removal methods exists, some of
which cause the floor tiles and mastic to become RACM and subject to the provisions of the
asbestos NESHAP.” The manual described various methods, indicating that “where
breakage is extensive, the tiles are RACM and are subject to the provisions of the asbestos
NESHAP.”
25
{¶ 62} In July 1994, the EPA responded to a letter requesting a re-evaluation of the
guidance on floor tile under the asbestos NESHAP, specifically the use of the phrase
“extensive breakage” as a criterion for judging if the floor tile had become regulated. The
EPA responded that the use of “extensively damaged” was appropriate as nonfriable material
has the potential for significant fiber release if extensively damaged. The response noted
that the preamble to the November 1990 NESHAP regulations explained that “most
nonfriable material can be broken without releasing significant quantities of airborne
asbestos fibers. It is only when the material is extensively damaged, i.e., crumbled,
pulverized or reduced to powder, that the potential for significant fiber release is greatly
increased.” (Emphasis added.) The response letter thus indicates that “extensively
damaged” requires damage such that the material is crumbled, pulverized or reduced to
powder.
{¶ 63} Upon review of the testimony and exhibits presented at trial, the State’s
evidence regarding friability was based primarily on the fact that the floor tile had been
broken into numerous pieces, including many pieces that were smaller than a dime. The
State’s witnesses testified that the floor tile was “extensively damaged,” which greatly
increased the risk that asbestos fibers would become airborne. Sink-Gostomsky had run her
finger along the edge of the tile that she collected and noticed that particles or fibers came
loose. She acknowledged, however, that the extensive amount of dust at the site could have
come from other demolition debris. The photos taken by Sink-Gostomsky and Estep
substantiated that the floor tile was not removed intact and that the floor tile was broken into
numerous pieces of varying sizes. The State’s witnesses believed that the floor tile had
26
been rendered friable.
{¶ 64} On the other hand, Titan presented evidence that the mere breakage of floor
tile does not render the floor tile RACM, and the trial court expressly found that “[b]reaking
a floor tile alone is not enough for fiber release.” Ingram had reviewed the photos offered
by the State and saw that there was broken tile, but he did not believe that the floor tile had
become friable by Titan’s removal activities and he did not believe the age of the tile
required a conclusion that it would become friable. The photos reflected many pieces of
“non-intact” tile of various sizes, including many small pieces, but it is not evident from the
photos that the pieces of tile could be crumbled, pulverized, or reduced to powder. The
condition of the RAPCA floor tile samples, as noted by a Data Chem analyst, also supported
the conclusion that the floor tile was not in such a condition that it could be crumbled,
pulverized, or reduced to powder by hand pressure.
{¶ 65} The trial court had the opportunity to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the testimony. See Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 24. There was conflicting evidence as to whether the floor tile had become friable,
and we will not reverse the trial court’s finding on friability based solely on the ground that
the trial court could have reasonably found otherwise. The trial court’s conclusion that the
floor tile was not rendered friable was supported by competent, credible evidence.
{¶ 66} We further find that the trial court’s finding that the floor tile was not ground
is not against the manifest weight of evidence. Sink-Gostomsky and Estep both testified
that they believed Titan had ground the floor tile prior to their arrival based on the condition
27
of the floor tile. As stated above, Sink-Gostomsky testified that 80 to 90 percent of the
floor tile was in small pieces, with the size ranging from “the size of your hand, down to lots
of pieces that were smaller than a dime, to just little chips of it.” The State’s witnesses
concluded that the floor tile had been reduced to small fragments, per the definition of
grinding, as a result of its removal with the bobcat. They emphasized that grinding is
determined by the resulting small fragmentation of the floor tiles, not by the means that were
used to cause the damage.
{¶ 67} Ingram testified, however, that he had reviewed the photos of the site and
did not see any evidence of grinding. He indicated that resilient floor tile will score and
break, but breakage is not sanding, cutting, grinding or abrading. He further expressed that
using a bobcat to scrape off floor tile and push it into piles does not result in regulation
under NESHAP.
{¶ 68} Whether the floor tile had been reduced to powder or small fragments, such
that it met the definition of “grinding” under Ohio Adm. Code 3745-20-01(B)(24), was a
question of fact to be determined by the trial court based on all the evidence before it. As
stated by the trial court, some of the floor tile had broken into large pieces and other pieces
of tile broke into small pieces. The State’s witnesses emphasized the numerous small
pieces of floor tile at Cleveland Elementary School, whereas Titan’s expert indicated that the
photos did not establish that the floor tile had been ground. The trial court weighed the
evidence and concluded that the State had not established, by a preponderance of the
evidence, that the floor tile had been subjected to grinding. The trial court’s finding was
supported by competent, credible evidence, and we will not reverse it.
28
{¶ 69} The State’s third assignment of error is overruled.
VI.
{¶ 70} In its brief, Titan raises a cross-assignment of error, which states:
THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE STATE
FAILED TO PROVE THAT THE FLOOR TILES AT ISSUE WERE
“CATEGORY I NONFRIABLE ASBESTOS-CONTAINING MATERIAL.”
{¶ 71} In its cross-assignment of error, Titan argues that we should affirm the trial
court on the additional basis that the State failed to prove that the floor tile contained more
than one percent asbestos. It emphasizes that Data Chem did not conduct PLM point
counting and thus claims that the tiles were never shown to be Category I nonfriable
asbestos-containing material in the manner required by the regulations.
{¶ 72} In light of our disposition of the State’s assignments of error, Titan’s
cross-assignment of error is overruled as moot.
VII.
{¶ 73} The trial court’s judgment will be affirmed.
..........
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Wednesday M. Szollosi
Gregg H. Bachmann
Ronald J. Kozar
Hon. Timothy N. O’Connell