PENDLETON, Oregon - A property owner fined by the Oregon Department of Environmental Quality for asbestos management violations is accusing the agency of overstepping its bounds.

Jim Whitney, owner of Seven Lakes Development, a limited liability corporation owned by Whitney Land Company owns a lot at Southwest 21st Street and Southwest Dorion Avenue. Last year, Seven Lakes hired Hatley Construction of Pilor Rock to demolish buildings on the lot so that it could pursue another development there. Unfortunately, Hatley didn’t quite follow the rules. The DEQ fined Jim Hatley $17,400 for “conducting an asbestos abatement project without being licensed” and for “openly accumulating improperly labeled and packaged asbestos-containing waste material” on the site.

Hatley admitted that he didn’t follow proper state regulations when removing asbestos.

Now, the DEQ has issued a second fine - this one to Whitney’s Seven Lakes Development company for $23,704 - and for the same incident.

Whitney says that the agency is overstepping its authority and double-dipping in issuing fines against both companies for the same incident. Both Whitney and Hatley are appealing the fines. They are being represented by local attorney Henry Lorenzen who once chaired the Environmental Quality Commission.

While Lorenzen declined to comment on the suit, his client had plenty to say. According to Whitney, Seven Lakes hired the construction company to remove residential buildings on a commercial lot. He says that the regulations for asbestos abatement are different for residential and commercial buildings, and that DEQ is fining them unfairly.

“They’ve just really stretched this thing to think there was a problem when there wasn’t one,” Whitney said.

An DEQ law specialist says that Whitney is misinterpreting. Bryan Smith, from the Office of Compliance & Enforcement in Portland, said that DEQ allows an owner to remove asbestos inside a house as long as the owner lives in the building. If the owner brings the asbestos outside, or removes asbestos siding from the exterior of the home, though, DEQ regulations come into play.

Proper handling of asbestos is a major issue because asbestos is a hazardous substance. Exposure to asbestos fibers in the ambient air can cause mesothelioma, a rare cancer that affects the pleural lining of the lungs. It can also cause lung cancer, a number of other cancers, and a non-malignant but deadly condition called asbestosis, which scars the lungs and makes it impossible for the victim to breathe. The EPA has stated that there is no safe level of asbestos exposure and closely regulate activities that might disturb asbestos and release asbestos fibers into the air. Asbestos abatement activities like removing asbestos siding or demolishing a building without removing all asbestos first can release high levels of asbestos fibers into the air. DEQ requires that asbestos removal be carried out by specially trained professionals using approved methods and appropriate methods to reduce and contain asbestos release.

Smith explains that the DEQ classifies violations according to severity. Mishandling asbestos, which creates a public safety hazard, is a Class 1 violation, whereas mislabeling a package of asbestos or submitting paperwork late would be a less severe Class 2 violation.

In reference to Whitney’s questioning of DEQ’s timing in issuing a fine against Hatley and then waiting months to issue a separate fine to Seven Lakes, Smith said that normally, both fines would have been issued at the same time. However, he was out of the office for a time, so the fines came out separately. In addition, he said, because Hatley complied with the DEQ directive to hire a licensed asbestos handler to clean up the site, there was on urgency to push the case in his absence.

The fines arose after an asbestos surveyor working in Pendleton reported to DEQ that Hatley might be mishandling asbestos. The allegation was investigated by Tom Hack, a DEQ air quality specialist in Pendleton. Hack found that there were violations and made a report to DEQ.

Whitney claims that Hack told him the fines would be about $3,000 to $5,000. Hack states that he never speculates about the amount of fines, but does tell people that the DEQ will take their cooperation into account when issuing fines.

For Whitney, it all adds up to DEQ taking advantage of their responsibility and the powers they have to enforce it.

“I think if somebody is trying to violate law and rules that’s one thing, but they’re taking advantage of people,” he said.

This entry was posted on Tuesday, January 29th, 2008 at 6:00 pm and is filed under Asbestos Abatement, Asbestos Litigation. You can follow any responses to this entry through the RSS feed. Responses are currently closed, but you trackback from your own site.