ABCOV Companies , LLC

Solve SEC and CERCLA asbestos liability

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Source: ABCOV Companies , LLC

At the same time forward-looking industry leaders are challenged by the uncertainties posed by the rising tide of state and federal environmental regulatory requirements, many utilities are engaged in rear guard actions, fighting the regulatory ghosts of industry practices discontinued decades ago.

Until the latter part of the 20th century, the marriage of asbestos and the power industry seemed a match made in heaven. Because of its superior insulating properties, asbestos seemed an ideal fit for coal fired, oil fired and nuclear power plants.

Asbestos containing material (ACM) was used liberally in underground electrical feeds and power plants, to the point where distributors and generators became one of the most ACM-pervasive environments in all of American industry.

But now, asbestos haunts power distributors and generators who once embraced it. ACM’s ubiquitous presence in the utility industry has forced shut-downs and work stoppages, increased costs, regulatory scrutiny, employee asbestos related illness, and thousands of law suits, vexing an industry already bedeviled by the lack of public consensus about what’s environmentally acceptable.

Asbestos may be a utility owner’s worst nightmare, but in its heyday, asbestos was a miracle product of American industry. Plentiful and pliable, asbestos provided tensile strength and withstood high heat, and enjoyed nearly 5,000 industrial applications, across the board.

Boilers, turbines, generators and underground cables were assembled and insulated with ACM. In a typical power plant, asbestos not only lined miles of pipes, boilers and electrical wiring, but also was used as fire-proof roofing and flooring, and installed in walls. Since insulation and gaskets were often fitted to specific areas, asbestos dust and particles were released during repairs and renovations, especially when working with friable ACM.

Asbestos fell from favor during the 1970s on news it was carcinogenic. Congress soon moved to give ACM abatement efforts the force of law, enacting legislation governing the handling and disposal of ACM which in turn gave birth to the asbestos abatement industry.

In 1980, Congress passed The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and in 1986 revised it as the Superfund Amendment and Reauthorization Act (SARA).

Under this legislation, owners of sites containing ACM that was removed and shipped to a landfill for storage became a “potentially responsible party” (PRP), subject to “strict, joint and several” liability that potentially result in incalculable future cleanup costs.

CERCLA and SARA further mandate that liability can be imposed on PRPs regardless of whether such parties were negligent, environmentally compliant, or participated in or benefitted from handling ACM. Additionally, CERCLA calls for treatment of hazardous substances, to reduce volume, mobility and toxicity.

Even as demand for power continues to rise, the industry is weighted down by asbestos-related factors that are costly and disruptive.

Despite all the steps generators take to comply with their regulatory burden, the issue of present and retroactive liability lives on to haunt them, providing a living for lawyers.

Utilities and others who used ACM as insulation are now unable to insure themselves against exposure claims and CERCLA responsibilities.

The Securities and Exchange Commission’s (SEC) required environmental accounting principles further add to the bottom line concerns of the utility industry.

In March 2005, a Financial Accounting Standards Board (FASB) and Financial Accounting Standards (FAS) clarification raised the bar for hazardous and regulated waste generators and others by requiring the industry to account more fully for its environmental liabilities – i.e., asbestos abatement costs – associated with the future retirement of fixed assets and asbestos storage in a landfill

Rather than waiting until the asset is sold or retired to estimate and recognize the costs of addressing embedded environmental liabilities, FASB financial interpretation No. 47 takes a sooner, not later, approach.

Under FIN 47, the cost of abatement generally cannot be deferred indefinitely, nor avoided by selling the asset.

FIN 47 didn’t just narrow the range of industry accounting practices – it has emerged as a diligence issue in financial transactions that can affect closure. Compliance demonstrates the extent to which companies have good environmental-accounting systems in place, and proves a company is proactively dealing with and accounting for embedded environmental liabilities, which spins off good public relations and adds value.

FASB 143 applies to “legal obligations” associated with retirement of tangible long-lived assets. FAS 5 and Statement of Position (SOP) 96-1 address hazardous contamination, whether in a facility or landfill. All hazardous waste liabilities require CERCLA enforcement and must be reported on the balance sheet of a public company.

Asbestos is extremely resilient, defies most attempts to destroy it, and takes many decades to degrade naturally. Today, as in years past, the asbestos abatement industry’s prevailing modus operandi is to warehouse ACM in landfills. ACM is double bagged in 6 mil plastic, then loaded and enclosed for transport, and finally deposited into a landfill for storage, where it is covered with a six-inch layer of non-asbestos material.

Further liability problems can occur when bags break and asbestos fibers become airborne or migrate into the water table, or the landfill becomes a Superfund site.

Consolidated Edison of New York (Con Ed) ran afoul of regulators during the 1980s when company employee’s informed authorities that ACM was mishandled on numerous occasions during removal and transport operations. Adding to Con Ed’s woes was a steam pipe explosion in Gramercy Park, N.Y. that killed two workers and contaminated apartment units, setting in motion a far-ranging federal investigation that concluded when Con Ed became the first utility to be placed on federal probation.

Around this time, Tony Nocito was a construction executive in New York City. Nocito, who had already encountered his share of ACM and the troubles it caused, set out to develop a technology that would reliably and conclusively dispose of asbestos – render it totally inert.

“It struck me there really was no solution to the asbestos disposal and liability problems, since at best it was only stored and never destroyed,” he said. “It was a situation that invited abuse in the form of perpetual liability and incalculable future costs for unfortunates who own the ACM.”

Under CERCLA, for instance, generators responsible for small percentages of site waste may be held liable for the entire costs of site remediation, a burden which frequently falls on the PRP with the deepest pockets, such as utilities.

So Nocito set out to find a cure. Research and development was conducted at Battelle Memorial Institute in Columbus, OH, and the Georgia Institute of Technology, Atlanta, GA. Systems were subsequently installed at Griffith Air Force Base in Rome, NY and Aberdeen Proving Ground outside Baltimore for field testing and ensuing refinements.

It took him 23 years and nearly $17 million dollars in R&D to arrive at the commercial launch of the ABCOV® Method, which Nocito says is the only EPA-approved, non-thermal, chemical-physical asbestos destruction technology system on the market today.

Along the way, Nocito contracted with Con Ed to prove that the ABCOV® Method effectively destroyed the utility industry’s ACM waste, both in underground locations and generating stations.

Nocito’s work with Con Ed demonstrated that his proprietary process efficiently disposed of all manner of utility ACM waste – underground arc proof tape, boiler block, pipe covering, transite back board, cold tar wrap, asbestos contaminated dirt from manholes, and ACM contaminated with heavy metals and PCB’s.

“We’ve successfully treated and destroyed most matrices of ACM waste related to utility, building, and nuclear industries tested to date,” he says. “We destroy asbestos right on the spot, as it is being removed, which eliminates both the liability issue and the expense of transporting it to landfills, which creates neighborhood concerns about spills or accidents.

ABCOV® systems are simple to operate and scalable to meet customer’s needs, says Nocito, whereas other thermal and non-thermal asbestos-destroying technologies, while field tested and proven to work, are complicated and generally not cost-effective.

ABCOV® Environmental Benefits:

• Reduces the volume of ACM material as much as 60 % and peripheral waste by 80 to 90%
• Reuses homogenous end product, which can be recycled as landfill cover or roadbed material, used as a concrete additive, or applied to roads in winter to provide traction, depending on the starting matrices
• Recycles all plastics and peripheral waste for additional savings
• Conforms with NESHAP 61.155
• Treats and stabilizes secondary hazardous wastes, RCRA metals and radioactive metals
• Fully approved by the Environmental Protection Agency
• Non-thermal
• No system off-gases
• Complies with CERCLA
• On-site destruction eliminates neighborhood opposition to ACM transport
• Eliminates costly industry issue of cradle-to-grave liability
• Protects public from deadly asbestos-related illnesses

ABCOV® Advantages:

• Scalable systems
• Skid-mounted units are fully transportable
• Systems use off-the-shelf equipment for greater operating reliability
• Systems can be built to meet the customer’s needs
• Cost effective
• For public companies – complies with all SEC environmental CERCLA requirements
• Promotes robust financial risk management
• Protects all stakeholders – stockholders, employees and customers

Besides reducing costs, the environmentally-friendly thrust of ABCOV®’s proprietary process adds green value, says Nocito.

“The sustainability movement is here to stay. Companies that deal with their environmental problems proactively are the winners. Customers demand it and government is pushing it under SEC and CERCLA regulations.”

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