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FORT SCOTT, Kan. — A physician who has studied asbestos for more than 50 years says the deteriorating pipe insulation in the Bourbon County Courthouse basement needs to be tested by an accredited laboratory and, if confirmed as asbestos, professionally removed.
Dr. Arthur Frank, professor emeritus and former chair of environmental and occupational health at Drexel University, spoke with the Monitor and Commissioner Gregg Motley in a phone interview Wednesday.
The commission voted 4-0 at its Aug. 3 meeting to make Motley its point man on the asbestos issue, with one commissioner absent, which led to the Monitor inviting him onto the call with Dr. Frank's permission.
Frank had read the Monitor's article on the termination of county maintenance worker William Jackson and reviewed Jackson's photographs of the basement insulation before the call.
"It's outrageous. What I saw was an outrageous deterioration of — well, I'm assuming it's asbestos," Frank said.
"Whoever said they didn't need to test it, the state agency that says, 'Oh, we don't test for that kind of stuff' — it's ridiculous," Frank said.
"That stuff needs to be tested," Frank said. "I'll bet you dollars to donuts it's asbestos."
"You've got a serious, serious problem," Frank said.
"A Can of Worms"
During the interview, Frank was told that the Monitor has confirmed the existence of a March 2007 vulnerability assessment of the courthouse by the Department of Homeland Security that states asbestos is present in the building. He was also told that Jackson has said retired county maintenance supervisor David Neville identified the insulation as asbestos and patched it himself for years rather than, in Jackson's words, "open up a can of worms."
Jackson asked that Neville not be named in the Monitor's original article, saying he did not want to draw the retired supervisor into a political situation. He agreed to the use of Neville's name for this article after Frank said during the interview that Neville should receive medical monitoring.
"Well, the can of worms is now open and it's a horrendous situation," Frank said.
"I've been doing asbestos work since 1968," Frank said. "I've been a physician for 54 years."
"In that situation with those pipes deteriorating like that, I was assuming it was asbestos, but now you're telling me it is asbestos," Frank said. "Absolutely needs to be remediated."
"The kid needs to be commended for bringing it to somebody's attention," Frank said. "Ms. Krom needs to be educated or fired."
As the Monitor previously reported, Jackson texted his supervisor, Laura Krom, at 2:59 p.m. Friday, May 29, requesting permission to have the basement pipe insulation and some ceiling tiles tested for asbestos. He attached 10 photographs, including one showing a pipe above his desk shedding debris onto it.
"I am requesting permission to test these pipe sleeves for asbestos as they are original to the building along with some ceiling tiles," Jackson wrote in the text.
"Due to the deteriorating conditions I believe it has become a risk and needs tested right away as cleaning my office I have noticed larger amounts of the dust than without the deteriorating areas," Jackson wrote. "Please confirm or deny as soon as available please."
Jackson never received a reply. The next morning — a Saturday and his 90th day of employment — Steven Cohen, the county's contracted human resources consultant, told him his services were no longer needed, Jackson said.
The Monitor attempted to reach Neville by phone and text message, and left two voicemails, one of which described this story. He did not respond.
"This is somebody who puts blinders on..."
The Monitor was connected with Frank through Sci-Line, a service of the American Association for the Advancement of Science that matches journalists with scientific experts. Frank holds both a medical degree and a doctorate, is board certified in internal medicine and occupational medicine and held a commission in the U.S. Public Health Service for 37 years.
Following his termination, Jackson contacted the Kansas Department of Health and Environment, which sent Ryan Jack of its air compliance office to tour the basement the week of June 15. No samples were taken, and a memo written by Krom on July 8 — the county's only record of the visit — stated that KDHE would not issue a written report because the agency "only regulates asbestos in connection with construction or demolition, not deterioration alone."
"That's the air people, because unless it gets into the air, this is somebody who puts blinders on and says, 'If it's not in my area — i.e., air — as long as it's not being disturbed and it can be seen, it's not my issue,'" Frank said.
Jackson also filed a whistleblower complaint with the Environmental Protection Agency after his firing and received no response, and contacted the Occupational Safety and Health Administration, which told him the matter was not in its jurisdiction.
OSHA states that workers at state and local government agencies are not covered by the agency unless their state operates an OSHA-approved state plan, and Kansas does not have one.
Frank described consequences in two areas if an accredited laboratory confirms the material contains asbestos: the health of people who have worked around it, and the county's exposure to lawsuits.
The Health Risks
Told of Neville's two decades of patching the insulation, Frank said both men deserve medical monitoring if lab tests of the material come back positive.
"And when it comes back asbestos, the guy that was there working for 20 years deserves medical monitoring," Frank said.
Frank asked how many days of asbestos exposure it takes to cause cancer.
"One, exactly," Frank said. "In humans and in animals."
"The guy who worked there 89 days deserves the heroes medal and a medical baseline examination," Frank said.
Asked about claims circulating on social media that airborne fibers in the basement could spread through the building's air-handling system, Frank said the concern was accurate.
"Absolutely true," Frank said.
Frank said that asbestos causes two sets of diseases.
"The first set of diseases are not cancers, called asbestosis or scarring of the lung. It's like black lung from coal dust or silicosis from silica dust. And you need a lot of exposure for that," Frank said. " So I would be very surprised if anybody except maybe the maintenance people ever had enough exposure, even going in and out of the building."
"The other set of diseases that you get from asbestos are a whole range of cancers. Mesothelioma is the one that everybody knows," Frank said.
Frank said asbestos also causes kidney cancer, laryngeal cancer, ovarian cancer in women, stomach cancer, and colorectal cancer. When asked by the Monitor, Frank said asbestos does not cause breast cancer.
The Legal Risks
Discussing the county's potential exposure to lawsuits, Frank pointed to a courthouse case he was involved in in the Kansas City area.
"And about 10 or 15 years ago, I was involved in a major lawsuit with 3,000 plaintiffs in a Kansas City courthouse where one lady who was a secretary at her desk actually got a mesothelioma because she was exposed." Frank said.
That case involved the Jackson County Courthouse in Kansas City, Missouri, where a 1983-84 retrofit of the building's air handling units and pipes spread asbestos dust throughout the structure, according to KCUR. Nancy Lopez, an administrative assistant to a Jackson County judge, died of mesothelioma in 2010 at age 56, and her family settled a wrongful-death suit for $10.4 million
In 2016, an $80 million class-action settlement made up to 7,500 people who worked in that courthouse eligible for 30 years of medical monitoring, KCUR reported. Frank was involved in the class action, which settled before he testified.
In the Jackson County case, asbestos dust settled on desks and furniture throughout the building; in Bourbon County, dust accumulation has been reported only in the basement.
"We've had zero complaints about wiping dust off desks except for in proximity to" the basement pipes, Motley said.
Frank said the legal risks for Bourbon County paralleled the Jackson County case
"You potentially could face exactly that kind of issue, that it was a local lawyer there. And I wouldn't be surprised if you treat some of these employees badly that they don't go get a lawyer and you get your butt sued." Frank said.
Frank said he was not seeking work from the county.
"I'm not looking for work. That's not the issue," Frank said.
"I have been doing medical-legal evaluations for asbestos-exposed people since the late 1970s," Frank said. "Ninety-nine percent of my work are for plaintiffs — that is, the people who have been injured."
"If this is in a courthouse and it's been in the air-handling system, somebody's going to go find a lawyer, so be prepared for that, too," Frank said. "You're going to get your butt sued over 20 or more years of asbestos exposure in this building."
"I'm no longer certified."
At the commission's July 6 meeting, Commission Chairman Samuel Tran told the public that KDHE had toured the courthouse and "gave us a clean bill of health." A Monitor records request later showed the county's only documentation of the visit was Krom's memo stating KDHE would not issue any written findings.
Asked about volunteers for the asbestos assignment at the Aug. 3 meeting, Tran said, "I'm not volunteering." Motley then took the assignment.
At an Aug. 12 work session with Bourbon County District Court officials about temporarily moving court operations to the county-owned building at 108 W. Second St. while the courthouse elevator remains out of service, Tran said he had toured that building looking for hazards.
"While you guys were walking around, I was touring the facility and I was looking specifically for hazards," Tran said.
"I'm no longer certified. I gave up my certification years ago, but it still stays with me," Tran said.
"In one of the closets, there are 9-by-9 floor tiles," Tran said. "And in that room, the carpet is not glued down — it's taped."
"So that tells me to be careful," Tran said.
Tran told court officials he did not believe that building posed a current hazard, but recommended having someone evaluate any construction work before it began, and discussed potential abatement.
"Do I think there's a hazard to your health or your staff's health right now? No, I do not," Tran said.
Tran's LinkedIn profile lists him as a building management specialist for the Food and Drug Administration.
The Monitor emailed Tran on Wednesday night asking whether he had been trained and certified to identify hazards such as friable asbestos in buildings, and whether he had personally inspected the entire courthouse basement. He did not respond by Thursday night's deadline.
The Next Steps
Frank said the county needs an accredited laboratory to analyze samples of the loose material.
Motley told Frank that he would like to see the county use separate firms for testing and possible remediation, in order to prevent any conflict of interest.
"The accusation's going to be, well, of course all these remediation companies are going to say it's asbestos because they get a remediation job." Motley said.
I an email sent to the Monitor and Motley shortly after the interview, Frank outlined his recommended next steps.
"Honestly, the best thing to do would be to have the testing lab folks come out and take the sample," Frank wrote. "They will have the right equipment including respirators and collection tools and packaging."
Frank wrote that using trained personnel would create "a clear record of who took it, how it was transported, and chain of custody," and would "not open either of you to charge of tampering."
Frank said remediation would follow a positive result.
"It needs to all be taken down safely, and it needs to have new material put up, which need not be asbestos," Frank said.
Frank also said that if the lab tests are positive, remediation would not be cheap.
"And so it's going to be a major removal job. They're going to need to put plastic sheets up. They're going to have to send guys in Tyvek suits with respirators to remove that," Frank said. "I mean, it's going to be an expensive job. That's why when the guy went and patched it himself, he didn't want to open up a can of worms because it's a can of worms."
More than 10 weeks after Jackson's initial request, no sample of the courthouse insulation has been collected or tested.
After researching accredited laboratories in the region, Frank recommended Asbestos Consulting & Testing of Lenexa, Kansas. Motley contacted the firm Thursday and requested a cost estimate to present to the commission.
"This is what I do. I want people to be safe," Frank said.
Frank said his son is an oncologist on the faculty at Stanford who treats cancer.
"I keep telling him my failures to prevent then become your cases," Frank said. "So let's see if we can't stop people from getting sick here."
The Monitor has submitted a KORA request for the 2007 DHS Report referenced in this article, and will link it in this space as soon as we receive it.
