Playing With Fireproofing
It is a little after noon and Lakeland Mayor E. Craig Morris is locking up city hall for the day. After punching the alarm code into a keypad, he steps into the bright mid-January sunshine and strides over to his car, which is parked next to a rickety water spigot. Above the spigot is a weather-beaten sign that reads "Drinking Water." "It's a crusty-looking piece of crap," Morris allows. "But we've left it there as a sort of historic reminder." In the mid-Eighties, the mayor explains, many Lakeland residents made weekly trips to the spigot after testing revealed that some of the town's private wells were contaminated with high levels of benzene--an organic compound found in gasoline that can cause cancer, chromosomal aberrations, and neurological afflictions.
The pollution was traced to a now defunct truck stop on the outskirts of Lakeland, just off Interstate 94, about 15 miles east of downtown St. Paul. For years long-haul truckers had been dumping excess fuel in the rear of the truck stop to avoid being ticketed for carrying overweight loads across the Wisconsin border; over time the expelled gas worked its way into the water table, spreading out over the aquifer like a vast, subterranean plume. It became so bad that one homeowner complained that after drinking a cup of morning coffee, he would burp and taste gasoline, Morris recalls. When other Lakeland residents took showers, the benzene levels in the air exceeded limits set by the U.S. Department of Labor's Occupational Safety & Heath Administration.
In 1988, Lakeland voters passed a referendum authorizing the construction of a municipal water system. But the environmental crisis remains a painful memory for this normally sleepy town of 2000. "For three years my life was a blur. We had property values diminished by half. People couldn't sell their houses. People were getting divorced over this thing. It was a real nightmare," Morris remembers. "That's why, when I found out about this asbestos thing, it was that old déjà vu. The first thing that ran through my mind is that we have a problem again, and we don't know the extent of it. It made me very, very uncomfortable."
At that, the mayor shifts his car into gear and heads to Lakeland City Beach, which has been roped off with red tape and marked with a danger sign: "CANCER AND LUNG DISEASE HAZARD/AUTHORIZED PERSONNEL ONLY/RESPIRATORS AND PROTECTIVE CLOTHING REQUIRED IN THIS AREA."
In September a rare and hazardous form of industrial-grade asbestos was found scattered about the surface of the beach and adjacent parking lot. Asbestos is an incombustible, chemical-resistant, fibrous mineral long used for fireproofing and electrical insulation before the federal government phased out its use beginning in the early Seventies. If improperly handled, it can be fatal. As a result, the discovery has led to both civil and criminal investigations. The ongoing cleanup effort may cost as much as $100,000. And while there have been no charges levied, that has not stopped Lakeland residents, including the mayor, from drawing their own conclusions. "Whoever did this, I believe, did it knowing full well that they were distributing harmful material," Morris says. "To me, it was an act of terrorism."
Lakeland City Beach is located on the western shore of the St. Croix River, on a secluded dead end that the locals refer to as Beach Road. There are eight homes on this stretch that, like much of the St. Croix Valley, is characterized by considerable natural beauty. Because of the big cottonwoods and ash trees in the low-lying areas, and the stately oaks and elms on the bluff above (not to mention the river view), more and more affluent young people are flocking to the area to buy and renovate property.
On September 24, 2001 Cynthia Thorpe, one of Beach Road's newer residents, called Lakeland City Hall to report that she and her husband Colin had detected an unusual-looking material mixed into the gravel of the beach parking lot. According to the city's phone log, Thorpe said she suspected it might be asbestos. She went on to surmise that since the home she and her husband bought in 1996 had been full of asbestos, maybe this material was "left over" from the original construction. In a followup fax to the city clerk, Thorpe wrote that "the stuff appeared to be buried in several places" and that it was "almost as if the flood [the previous spring] removed layers of gravel and soil and exposed it."
The couple then took a sample of the material to an environmental laboratory in St. Paul, which confirmed that it was asbestos. Within two days the Lakeland City Council contacted the Minnesota Pollution Control Agency (MPCA), ordered danger signs and barricades installed at the beach, and hired the local environmental-consulting firm AllPhase to devise a cleanup plan. Mayor Morris then sent out an informational letter to his constituents. "We have no reason to believe that the material was intentionally deposited or dumped at the site," he concluded.
The mayor was simply repeating a hypothesis developed by Rennie Smith, AllPhase's owner. Smith initially hypothesized that the material had washed up on the beach during flooding the previous spring. That was good news to Morris. Since the high waters had damaged the beach and its parking lot, the beach had remained closed all summer. And that meant, theoretically at least, that few people would have been exposed to the asbestos.
There was still cause for worry, however. What if the asbestos had been there longer? What if people had been using the beach regardless of its formal closing? "Think about a beach setting and kids playing in the sand," Morris says. "They might have picked the stuff up, and then they may have been exposed to it, breathed in some fibers. It can be that simple--one event: Fibers lodge within the lung and thirty years down the line you become sick."
Morris knows all too well what can happen in the wake of asbestos exposure. In the 1950s his father, Elmer Morris, was employed as an engineer with the State Highway Department, where he had worked with asbestos in a lab setting. The younger Morris figures that exposure likely played a role in his father's death in 1998 from a respiratory ailment called coronary pulmonary obstruction disease, one of the many progressive and often fatal diseases associated with the fiber.
The bulk of asbestos found on the Lakeland beach is called amosite. Mined in South Africa, it is the second most common type of asbestos in existence. But the Lakeland amosite samples were peculiar. The asbestos content of common household materials such as siding and linoleum is typically low, between 5 percent and 20 percent. The samples taken from Lakeland's beach, however, had apparently been manufactured for a high-temperature industrial application--90 percent pure amosite. What's more, the samples were highly "friable." In assessing asbestos risk, friability--the ease with which the material can be crushed and become airborne--is critical, because asbestos is only dangerous when it is breathed in. That is why it is risky to demolish or renovate buildings with materials containing asbestos.
Two industries upstream from the beach were investigated as possible sources of the pollutant, the Andersen Windows factory and an Xcel Energy plant. Neither lead panned out. "It was pretty baffling where this came from and how it wound up on the beach," says Jeff Connell, asbestos compliance coordinator for the MPCA. "This was a very, very rare form---stuff that is designed to insulate machine components operating in the thousands-of-degrees range."
The asbestos mystery was covered in the Stillwater Gazette. The St. Paul Pioneer Press and KARE-TV (Channel 11) followed up with their own stories. Despite Mayor Morris's early assurances that the material had not been dumped or buried on the beach, some Lakeland residents were unconvinced. On the morning of September 28, an unnamed woman called Lakeland City Hall and urged investigators to direct their attention to Colin and Cynthia Thorpe, the Beach Road couple who had first alerted officials to the asbestos. Over the next few months, Morris received e-mails and phone calls from three other Lakeland residents urging that the Thorpes be further scrutinized.
They got their wish.
Cynthia Thorpe answers the door to her home dressed in a denim button-down shirt emblazoned with the logo "Pro Care," which is the name of her husband's lawn-care business. She is a tall, willowy woman, 40 years old, five months pregnant but not really showing. Colin, who is 37, is sitting at the kitchen table, wearing the same denim shirt. The couple's two-year-old daughter Chloe is clinging to her father.
Signs of the couple's hard work are everywhere: recessed lighting, polished hardwood floors, a brand-new kitchen, and patio doors that open onto a new wraparound deck. "When we bought it, it was still just a cabin. Dark paneling, wallpaper, fussy drapes, things like that," Cynthia recalls. "Now it's beautiful. But that's because we had to gut it."
The windows look out over the St. Croix, where snow geese and swans are bobbing in the open channel. Winter, Colin offers, is the best time of year. The most tranquil. In the summer, pleasure boaters take over, cruising up and down the river, partying day and night at Beer Can Island--a little spit of sand just across from the beach. Sometimes these folks irk Colin. "They see this house that looks pretty damn nice, and they say, 'Oh, they must be rich people.' That kind of riles me," he says. "I busted my ass for every damn thing. Don't judge us because you boated by our house and thought 'that would be a cool place to live.'"
Cynthia nods in agreement. The windows and doors in the home may be new, but they were all bought "in stock at Menards"--not from Andersen Windows, the upscale manufacturer located upriver in Bayport. Besides, she guesses, if people knew what they have been through over the past six years, they might not be so envious--or quick to judge.
There is a thick manila folder laid out on the table documenting the couple's history with the house. When they purchased the property for $200,000 in 1996, it was just a modest rambler with a beautiful view. The Thorpes were so smitten with the prospect of living by the water, however, that they agreed to purchase the house without having it inspected. Shortly after closing, Colin set out to widen a doorway. Cutting into the sheetrock, he discovered a peculiar-looking insulation in the ceiling. Suspicious, he had the material tested. It was amosite asbestos. And it was everywhere.
Lots of houses have asbestos, typically in materials used to insulate ductwork or as a component in the siding or linoleum. The Thorpes' new house, however, was a different matter. The asbestos was part of the insulation in the interior walls, exterior walls, and ceilings. George Zortman, a state-licensed housing inspector hired by the Thorpes to assess the problem, says the application was distinctive. "It was a bit like being introduced into a world that is so unfamiliar you don't know how to react to it," he recalls. "The people at the lab where I took the samples commented that they had never seen these concentrations: 80 to 90 percent amosite; friable. They were in awe of the scope of it." (According to the MPCA's Jeff Connell, the first homeowner had acquired the material while working as a contractor on North Dakota's Garrison Dam in the mid-Fifties. At that time, putting the leftover insulation in a new home made perfect sense, part of a time-honored practice in which contractors make use of excess materials for side projects.)
If left undisturbed, asbestos in a home poses little hazard. And if there is a problem, it can typically be solved for less than $2,000. But with asbestos in nearly every wall, Zortman explains, the Thorpe house presented a major challenge. If an electrician were to replace an outlet or a plumber needed to get access to pipes, for example, fibers could be released into the air. "My advice to them was to refrain from causing any disturbance to the building, opening any walls or ceilings, and then to go out and get bids on abatement as soon as possible," Zortman says. Had the Thorpes not already made the purchase, Zortman says, he would have advised them to back out of the deal right then and there.
In December of 1996, some six months before moving into their new home, the Thorpes filed suit in Washington County District Court, in which they named both Elsie Norris, from whom they bought the home, and her real estate agent, John Carroccio, who worked for Edina Realty. The Thorpes' action was based on the premise that Carroccio and Norris, who was the home's second owner and had lived there for 39 years, failed to disclose the presence of asbestos, constituting a breach of contract and "intentional/negligent misrepresentation." But the pre-sale disclosure form had only asked whether the seller was "aware" of the presence of asbestos. So, concluding that the defendants had not been deceitful, the judge dismissed the suit before it went to trial. The Thorpes then took their case to the Minnesota Court of Appeals, which upheld the district court's initial ruling in late 1999. When the appeal was pending, they settled with Edina Realty for $15,000.
Stanford Hill, Edina Realty's attorney, says his client settled only because it was cheaper than going to trial. He also believes, based on depositions taken during discovery, that the Thorpes' suit was aimed at finding someone to pay for the remodeling of their home, which wound up costing nearly $100,000. "I have a strong recollection of the Thorpes being very indignant," Hill says. "They were outraged at Elsie Norris and Edina Realty, and just had no understanding that Mr. Carroccio had no way of knowing there was asbestos in the walls, because he doesn't have x-ray vision."
Norris, who now lives in Woodbury, insists she never had any inkling that there was asbestos in the house until after she sold it. Subsequently, she says, she spoke with a workman involved in the construction of the home. "After the Thorpes accused me, I called him up and asked him if there was asbestos in the insulation. He said, 'Yes, of course. I put it in myself. Every piece of it,'" Norris recalls. "Then he said, 'What's the big problem? I'm 80 years old and I'm okay."
While the suit plodded through the courts, the Thorpes received bids from between $37,000 and $50,000 for asbestos removal. The Thorpes believed that cost was prohibitive. In the end, Colin Thorpe says, he educated himself on the ins and outs of abatement and did the job himself. (While state law strictly regulates asbestos removal when performed by contractors or in commercial settings, homeowners are exempted from most of those rules.) Colin says he removed a total of 250 bags of asbestos from his new home in the spring of 1997. He then hired a waste hauler, AW Disposal, to haul the bags to the McLeod Landfill in Glencoe, Minnesota. The Thorpes kept their receipt from AW Disposal, and they believe that ought to be enough to convince investigators that they had nothing to do with the asbestos found on the Lakeland City Beach.
On November 17, 2001, two MPCA asbestos specialists and Jesse Kurtz, a sergeant with the Washington County Sheriff's Department, paid a visit to the Thorpe home. As Cynthia Thorpe tells it, the investigators were blunt about their intentions. "They came in here thinking [the asbestos on the beach] was ours. They had all our [court] documents, so they knew we had asbestos in the house," she says. "We were an easy target." Cynthia also claims that at one point Kurtz threatened to arrest her. Kurtz remembers the encounter differently. "I don't ever recall telling anyone they were going to jail," Kurtz says. "There were just some things that didn't add up, but that's all I can say right now."
The MPCA collected eight fiber samples from the Thorpes' basement during the visit, six of which tested positive for asbestos. In a letter sent to the Thorpes the following day, MPCA asbestos specialist Katie Koelfgen warned that "asbestos is a known carcinogen with no safe level of exposure" and recommended that the family hire a licensed contractor to address the problem.
The Thorpes hired AirTech Environmental, Inc. to independently test the air quality. Bruce McLean, president of the firm, says that every air sample AirTech collected at the home on the day before Thanksgiving tested negative for asbestos. The Thorpes guess that the samples collected by the MPCA may have been carried into the building during the spring flooding or tracked into the home by investigators who had previously walked on the beach.
Cynthia Thorpe wrote to Mayor Morris, asking him to rein in the investigators. "We can appreciate the necessity of checking all possible sources for the cause of the contamination. However, this past week we have received accusations and been threatened with jail. I am pregnant and this is the type of thing that is not healthy," Thorpe wrote, adding that it was "ridiculous" to suggest either she or husband had buried the asbestos at the beach.
In the wake of their mid-November meeting with Sergeant Kurtz and the MPCA's Connell, the Thorpes have declined further interviews with investigators. Cynthia says she and her husband would like to help authorities find out how asbestos ended up on the beach, but she believes Connell has already made up his mind and she worries that he might try to stick them with the cleanup bill, as "a feather in his cap." "If he wants to box with us a few rounds, then we'll do it, because this is wrong. It's not our asbestos," she says. Colin Thorpe says he consulted an attorney and was advised not to meet with Sergeant Kurtz.
Connell says a decision on how to proceed in the matter is imminent. He also maintains that the asbestos had to have come from the Thorpes' house. "We've looked at thousands of homes and have been in literally every old school, power plant, and industrial facility in this state for asbestos removal, demolition, and renovation projects. Is it virtually impossible it came from anywhere else? Yes." And while he doesn't accuse the Thorpes of dumping the asbestos on the beach, Connell dismisses the couple's theory that the material could have been buried there for years. "We just don't think the evidence supports that," Connell says. In his view, the asbestos has been on the beach less than a year. The city's consultant, Rennie Smith, figures that the asbestos has been on the beach somewhere between one and ten years.
AirTech's Bruce McLean, meanwhile, is unconvinced that there is any way to know exactly what happened: "It is an interesting mystery. I don't know how to determine how long asbestos has been in any given place. It seems reasonable to me, though, that if in the 1950s you were building a home and there were no regulations regarding asbestos, and you had some left over, you wouldn't be too careful where you put it. On the other hand, I think it would be darn strange to pay to throw 250 bags in a certified landfill, then throw two or three in some ditch, and then turn yourself in by saying, 'Hey, there's asbestos in this ditch.'"
Much like the investigation, the cleanup operation at the beach has proven problematic. The original plan, developed by AllPhase's Smith, was to dispatch workers to comb the area and "hand pick" the asbestos. In early November, Mayor Morris declared the cleanup completed, only to announce a week later that more asbestos had been found. To make matters worse, it has proved difficult to separate the asbestos from the sand and soil. And while the total amount of actual asbestos removed from the site so far has been relatively small (a few garbage bags at most), the contaminated soil and sand has filled two dumpsters. In December the city suspended the cleanup operation until spring. At that point, according to the MPCA's Connell, heavy machinery will be used to remove six inches of topsoil from the site.
"I'm looking for Rennie Smith, the PCA, and the Washington County Health Department to tell me the cleanup has been successful and the beach is safe for use," Morris says. "Unless I get that, we aren't going to open it as a beach. It ain't going to happen." Even then, Morris says, the city may choose to leave the beach shut to avoid potential liabilities. And who will pay for the cleanup? The city is currently haggling with its insurer, the League of Minnesota Cities. But the budgetary questions, Morris says, are secondary to the two other questions he has been asking himself off and on for months. "Who would do this?" he asks. "Were they aware what they were doing?"
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