Document 0LabKBQYZoG71nXM0aoDOKG6x

jSl Organization Resources !s=J Counselors, Inc 1910 Sunderland Place, NAV. Washington, D.C. 20036 202-293-2980 Fax: 202-293-2915 Memorandum August 8, 1989 To ORC Asbestos Task Force From Rebecca L. Daiss Subject: Use of Glove Bags in Asbestos Removal Attached, for your information are a number of news articles, press releases, and position papers pertaining to asbestos removal and the use of glove bags. Attachment RLD3:lgs Volume Two. Number Two Developments Affecting Asbestos Management By LUf4A. Fe*. *, Ctwirmm and Chief Exarwiw Officer TAt Eatirawiual Mtnaftintw Grot*. /. Negative Air Patent. In 1986. the United Stales Patent and Trademark Office granted a patent covering a method and system for As we approach the midway point of 1989, recent significant events will the control of airborne asbestos eonlamins- have a great effect on asbestos cion during asbestos abasement projects. abatement contractors, consultants, This patent, granted to Anthony Natalc and building owners. This article (Patent No. 4,604.111). was quite broad in its reach, and was cltimed to cover the system of containment of asbeitot abate ment work areas combined with the estab lishment of s negative pressure and filtra reviews the more important developments and discusses their importance to the industry and performance of work. tion of air by the use of air filtration devices. While (he air filtration device machinery itself was not patented, the "negative air" system was the subject of the patent. The patent resulted in a peat deal tifcontroversy. The negative air/containment system.elaimed to be covered by the patent, was in wide use throughout the asbestos abatement industry. and was even described in guidance documents published by the U.S. Environmental Protection Agency (USEPA). The rights to the patent were cold to a related company known as GPAC. Inc., which embarked upon licensing contractors for the use of this system. Licensing fees were initially based on percentage of the annual volume of work, but were later fixed at an annual rate, based on the number of o(Tices of the contractor. Public and private building owners were contacted by the patent holder, charging that specification ofthe negative air system without using a licensed con tractor could indirectly infringe upon the patent. In several instances, protests were lodged by licensed contractors in case* where bids were awarded to non-licensed contractors. In 1987. a manufacturer of air filtration devices for asbestos abatement work challenged the patent through a re-examination proceeding in the patent office. In January, 1988 a patent of fice examiner rejected all the claims covered by the patent, finding (hat there had been prior public use ofthe patented system more than one year before the filing ofthe patent. This decision was appealed by the patent holder. Two court proceedings had also been initiated, one by a eontractor, and the other by GPAC against a contractor and supplier organization. In the first case the contractor filed suit to invalidate the patent; in the second legal action, the patent holder filed suit against the contractor/supplicr organization for patent infringement. Both of these legal actions were ultimately settled. The plaintiff in the first action had developed an alternative process to the negative air/containment system, which u declared by the patent holder to be non-infringing. On March 31, 1989, the Board of Patent Appeals and Interferences issued s new ruling. The (So* DEVELOPMENTS, page 2) Summer 198S (DEVELOPMENTS, from front page) Board revered (he final rejection of (he ptlcm claims by (he patent eumina. This action restored (he claims which had been previously rejected. In tddi(ion,dvirin| (he re-examination process, (he patent holder allegedly added 12 new claims under the patent, and these were added 10 (he patent. The recent ruling is viewed by several patent attorneys as more procedural than substantive. The Board of Patent Appeals ruled that (he evidence of prior an (public use) relied upon by the examiner was no( established by (he docu ments referred to in the examiner's rejection. The ruling states (hat the examiner did not have the authority to "engage in a fact-finding en deavor to establish the existence of s public use ... during x re-examination proceeding." The basis of (he ruling appears to be an improper fact-finding mission by the patent examiner outside of the record of the patent office. The Bond of Patent Appeals also appeared to refute the patent examiner's finding that certain docu ments outside the record established in admis sion by the patent holder that the patented process was the subject of public use. With this new development restoring the stilus of the patent, the patent holder has again em barked on the licensing of contractors to use (he negative air system. The price structure has been revised downward, at least for t specified number of contractors who acquire a license within s short period of time. The patent holder has stated that contractors who have been unli censed since 1986 could be subject to "serious financial liability" for patent infringement. The existence of the patent may have a signifi cant impact on the performance of asbestos abatement work. While the patent holder is licensing contractors, the licensing fees cm be significant, particularly for small contractors. In addition, consul(mu and building owners are being advised (hat specification of proc esses which violate the patent could result in legal action against them for indirect patent infringement. At the very least, the ooat of abatement work will rise if the patent's validity is upheld. However, the existence of the patent means that iu validity is presumed, unless a successful challenge is brought in court to in validate the patent As ofthe time ofthis writing, several efforts tie underway to determine whether a successful challenge of the patent cm be maintained. Mmy believe that the process covered by the patent was utilized by others, as well as the (DEVELOPMENTS, continued from last column) .. patent holder, more than one year prior to the filing of the patent in the Patent and Trademark Office. Unlike the pstentofliee re-examination proceeding, a court would review my evidence offered by the parties seeking to in validate the patent. The intern of the evidence would be to show that the patented process and/or iu under lying technology was in use by others or by the patent holder more than one year prior to the filing of the patent application in 1981. In view of the significant impact that the patent may have, and the significant amount of money involved in the licensing process, further legal developments are anticipated. Contractors, consultants, and building owners who are per forming or having abatement work performed must review the coverage of the patent and de termine whether professes infringe on the pat ent. The advice of competent patent counsel should be obtained for this analysis, and devel opments should be followed carefully. forming asbestos removal utilizing glove bar without the presence of a contained art (termed a "regulated area" under the OSH.regulations). OSKA has suggested that u interpretation of iu existing regulations to n quire (his type of work ares is not the subject c new regulatory activity, but rather is an into pretation of existing regulations which has nc been enforced. Others feel that OSHA hs either re-interpreted iu regulations, or engage in rule making without appropriate legal step; The result has been inconsistent enforcement c this interpretation, resulting in eonfusioh in th industry. It cm be expected this additional it velopmcnu will occur is this area. OSHA Glove Beg Controversy. The use of glove bags for the removal of asbestos from pipes has been prevalent in the asbestos abate ment industry, particularly in industrial and commercial settings. Ordinarily, glove bag re moval is accomplished without using contained areas or air filtration devices for the reduction of fiber counu in the contained area. GbntffinfiOSHA Met* m* rirv Recently, several offices of the Occupation Safety and Health Administration (OSHA) have issued citations to contractors for per- Pace 9 Industry News Natale "Negative-Air" Patent Rejection Reversed The U.S. Patent and Trademark Office's Board of Patent Appeals and Interferences, in a ruling fated March 31. 1989. reversed the final rejection of the patent claims of Anthony Natale under the so-called "negative-air" patent (U.S. Patent No. 4.604.111). In 1986. Natale was granted U.S. Patent No. 4,604.111 covering a method and system for reducing airborne asbestos contamination during the course of asbestos removal. GPAC. Inc., a related company, became the owner of the patent and began licensing contrac tors to use the patented process. The grant and validity of the patent were challenged in both legal and U.S. Patent Office proceedings. In 1987. a group of interested parties led by John Conrad of Global Consumer Serv ices. Inc., a manufacturer of air filtration devices, challenged the patent through Patent Office proceedings. In January 1988. a Patent Office examiner rejected all claims under the patent, based on prior public use of the patented process Two court cases involving the patent were settled. In the March 31. 1989. ruling of the NATALE continued on page 9 Natale... (continuedfrom page /1 I Board of Patent Appeals and Interfer ences. the rejection of the examiner was reversed. The new ruling states that the evidence of prior art (public use) relied upon by the examiner was not established by the documents referred to by the examiner and the examiner did not have the authority "to engage in a fact-finding endeavor to establish the existence of a public use... during a re-examination proceeding." In the aftermath of this ruling. GPaC issued a press release stating that this "latest development m j long-running battle" is likely to have "a significant impact on the nation's asbestos abate ment contractors, who must now be licensed by GPAC to legally use the patented contamination control system." Legal counsel for the patent holder stated that GPAC has "the right to begin infringement proceedings against any user of the patented negative-pressure system from...1986 to the present. Contractors who have not been licensed by GPAC and who have been using this system for the last two years could be subject to serious potential liability." It appears that further challenge to the patent may take place in court, should GPAC bring infringement proceedings or should an action be brought in a declara tory judgment or similar proceeding. John Conrad, of Global Consumer Services, stated that "after carrying the re-examination fight for the contractors who purchased Red Baron equipment. Global... has accepted the decision of the Board of Patent Appeals and will not appeal the decision..." In view of the legal implications of this decision, consultation with patent counsel is necessaryfor contractors and others to determine their rights and responsibilities. GPAC has again begun contacting contractors and others regarding licenses to use the patented | process. By Ucyd A Foi. jq . The tronmental Mtnantmem C'Qup. tne art A 0*emchs. Aibeuot AbQtemtru Street, Me. A TECHNOLOGY MANAGEMENT COMPANY P O. Bo* 663. rvlapio Shade. NJ OBOS2 609-466-1655 FAX 609-486-0648 U.S. PATENT OFFICE AFFIRMS NATALE NEGATIVE-AIR PATENT Board of Appeals Reverses Patent Examiner's Rejection 12 Additional Negative Pressure System Claims Allowed WASHINGTON. D.C.--The U.S. Patent and Trademark Office's Board of Patent Appeals and Interferences has upheld all the original patent claims of Anthony Natale and GPAC. Inc., to the negative air filtration systems used at America's asbestos abatement sites. In addition, a March 31 ruling by the Chairman and two Chief Examiners of the Board of Patent Appeals and Interferences recognized 12 new claims which strengthen the scope of the patent. The additional claims were introduced during patent re-examinatlon proceed ings and cover further variations of the negative-pressure system. In its strongly worded. 11-page ruling, the Board of Appeals rejected all arguments presented by a consortium of parties who have been attempting to overturn the patent since it was granted in August of 1986. Gene Newman. President of GPAC. Inc., the technology rights firm which now owns the patent, said, "we are obviously very happy with the the decisive nature of the ruling and the vindication of our commercial rights. It's now time for GPAC and the industry to turn their focus back to the important issues of the public's health and environmental safety at asbestos abatement sites.* The ruling by the highest appellate tribunal of the U.S. Patent Office is the latest development in a long-running legal battle over the rights to the central contaminaUon control procedure of the nation's $3 billion-a-year asbestos abatement industry. This new development is likely to have a significant impact on the naUon's asbestos abatement contractors, who must now be licensed by GPAC to legally use the patented contamination control system. Harvey Jacobson. Jr., of the Washington. D.C.. patent law firm of Flelt. Jacobson. Cohn &. Price, said that the appeals ruling "reinforces the validity of the Natale patent and clearly gives GPAC the right to begin infringement proceedings against any user of the patented negative-pressure system from the Issuance of the patent In 1986 to the present. Contractors who have not been licensed by GPAC and who have been using this system for the last two years could be subject to serious potential liability.* The decision is particularly significant because it was made after a thorough review of all materials for and against the patent submitted by all parties during the re-examination process. As a result of their review, the appeals board not only upheld the 17 original patent claims, but affirmed the patentability of 12 additional claims related to negative-pressure filtration systems. Further information: Gene Newman. President. GPAC 609-486-1555 Harvey Jacobson Jr.. Attorney Fleit. Jacobson. Cohn & Price The Jenifer Building 400 Seventh Street, N.W. Washington. D.C. 20004 202-638-6666 ;--- mar 3 0 1987 brand i a 27 March 1987 SUBJECT: Negative Air Patent Update: Lawsuit and New Systems the brand companies 1420 renaissance drive park ridge, Illinois 60065 (312) 298-1200 telex 282482 Brand prid Dear Sir: We strongly believe that we will prevail in our lawsuit against Mr. Natale, and that you don't need to buy a license! As you already know, a subsidiary of BRAND has sued A. Natale and several of his associated companies to obtain a ruling that the Natale negative air patent is invalid and unenforceable. We have amassed considerable information chat indicates ample prior art exists and, therefore, that the patent should not have been issued. This opinion is shar*-! by a number of knowledgeable people who have personally used similar negative air systems much earlier than the date of the filing of the Natale patent. Although no court decision can be absolutely predicted, we are very confident in our strong position, which has been verified by patent counsel. We are pleased to announce the development of a new and different containment system by Brand's internal technical^ group. We are deploying this "Differential Pressure Containment System'i as rapidly as possible and invite you to study the attached explanation. We believe this to be a better system. We plan to record this invention with the U.S. Patent Office so that no one else can obtain a patent on this system. We have made a decision to place this new development in the public domain and you are free to use it without need for licenses, fees, or any other form of permission. We have verifying opinions from patent counsel that this new development does not infringe on the Natale Patent. If you need further information and elaboration on the lawsuit or have questions regarding this new "Differential Pressure Containment System", please call Jim Wemer, our Corporate Manager of Technical Services. THE BRAND COMPANIES brand the brand companies 27 March 1987 1*20 ranaissar,ce drive park ridge, illinoit 60063 Differential Pressure Containment System: 13121298-1200 teie* 282*82 brand pnd New Ventilation Considerations for Contained Work Areas A Sunxnary We have been developing alternative ventilating and engineering control strategies to solve an increasing number of engineering problems and logistical difficulties. For example, large-volume exterior air exhaust in high rise buildings, sealed-window architecture, building interior areas, and underground facilities can be extremely difficult. Heat loss during wintertime work poses its own set of problems. The ease with vdiich plastic sheeting curtains and flaps can be defeated along with their damage potential give us concern. These and other engineering challenges have led us to an alternative ventilating strategy. While the "negative air" system remains useful, we have growing concerns for any approach vdiich indiscriminately advocates the removal of large quantities of anything, including air, from that contaminated work area. HE?A filter failure, machine cabinet leakage, filter seal leakage, and exhaust duct breach , among others, can all provide an escape route for fugitive airborne asbestos to the outside vrorld. Since the removal of each unit volume of air from that work area is a potential asbestos contaminant vehicle, it makes sense to minimize such flow rather than maximize it, at least from a contingency viewpoint. Our method doesn't seal established flow paths, provide flap seals, advocate any air exhaust periodicity, or even necessarily call for widespread application of plastic, and, we believe provides a viable alternative which draws upon the "prior art" taowledge and wisdom from years, if not decades, ago. It is not necessary to use only the "negative air" system since it is not the exclusive solution. Our system is described here, for your consideration and review: 1. The workspace is isolated and contained by erecting Impermeable barriers (plastic sheeting) at all exits or openings, including doorways, duct chases, mechanical shafts, elevator shafts, floor openings, and the like, so that all possible exit routes afe effectively barricaded and sealed against air flow. I 27 March 1987 Differencial Pressure Containment System: A Summary Page 2 of 3 2. If the work is not a part of a renovation, plastic sheeting and protective measures should be used to prevent contaminaticn of, or damage to the remaining finishes, fixtures, architectural, and decorative treatments. If, however, extensive renovation and renoval of these components is a part of the project, plastic sheeting use may be extensively reduced, especially on the floor. Our experience proves chat heavy demolition of ceiling grid, ductwork, electrical cable and trays, piping, lighting, and scaffolding movement substantially breaches the plastic. Even with careful, effortful plastic repair and maintenance, contamination finds its way between . and beneath the plastic layers, aggravating cleanup and decontamination efforts instead of aiding them. In these renovation cases, we believe less residue is trapped, hidden, or isolated from the clearance sampling when plastic is not in the way. Surface decontamination, therefore, is more effective, more efficient, and more likely to produce a truly clean area. 3. A decontamination facility is provided with a HEPA filter and with rigid, gasketed doors, not'light weight leak-prone plastic flaps. The decon unit consists of a clean room, fixed wall with rigid gasketed door with a small HEPA filter, shower room, additional fixed wall with louvered door, and a dirty equipment room. Please see attached Illustrations. The HEPA filter permits a very limited air flow inward through the decon unit to fix and provide filtration for any outward airflow in the event of ventilating fan failure. 4. With the air Inlet potential severely restricted, only enough air is exhausted through a HEPA equipped Air Filtering Device (AFD) to reduce the workspace pressure by a readable amount. From a practical standpoint, this pressure differential should be in the .02 to .04 Inches of water column range. (In the .06 inch range, plastic begins to float from the floor and fall from the walls). At this point, the workspace is effectively contained and minimal amounts of air are released to the outside. 27 March 1987 Differencial Pressure Containment System: A Sunmary Page 3 of 3 5. Additional AFD machines should be provided, free-standing, inside the workspace, to circulate the air within the area to filter and trap contamination out of the air. Depending on work methods, other engineering controls, asbestifotm type, material characteristics, and previous treatments, the number of machines may be varied as little or as much as needed to lower the airborne fiber levels in the work area. Current calculation criteria wculd allow more airflow with the same number of machines, since restrictive cowlings, ductwork, and absence of pressure head make the "interior" AFD machines more air-flow efficient. This strategy may be carried further by exhausting interior machine discharges in the direction of the workers, thereby diluting their breathing rone fiber levels, reducing respiratory protection device challenge, pushing contamination away from them, and enhancing worker protective measures. Components of this system have been utilized on several projects since the spring of 1986, and have substantial related monitoring and clearance data. As we use the system in its entirety on numerous projects we will build a substantial air monitoring result data base vrtuch will positively verify the statements and conclusions above. This system is compatible with your present equipment, however, we reccranend that any timers, or automatic control devices be jumpered or defeated so that they cannot interfere with continuous operation. We have asked reputable patent attorneys for opinions on this system. They state that this system does not infringe on the Natale patent. Respectfully submitted, James L. Werner sac NOTICE TO ASBESTOS ABATEMENT AUTHORITIES Brand System Does Not Infringe on Natale Patent No. 4.604,111 MATLE SHADE. N.J.--GPAC. Inc., has announced that the air filtration system now bring recom mended by the Brand Companies for asbestos abatement work does not Infringe on GPAC s Reduced Pressurization and Filtration System patent (U.S. Patent No. 4.604.111). GPAC. Inc. Is a technology management company whose patented contamination control system Is widely used throughoui the abatement Industry. GPAC President Gene Newman said the company felt it was necessary to make a statement on the Issue because of the number of requests he had received for more details on the new system drs crlbed by Brand In letters sent to contractors and the Industry press on March 27. Sent from the Rrnnrl Companies headquartrrs In Park Ridge. Illinois, those letters detail a system fllfTerrnt from til'At.-i liivriitlmi. I It ill ll snggesln llir ny.ilrm hr n.-iril lit innlnil iilihmiir i < ilauili mill hi <il .r.l >r -.1. abatement sllcs. Practical Matter: Does The Brand System Work? ('.I'ACs Ncwiimii explained: "Wc'ic being asked Iwn c|uesllnns: does Ibe I It and syslrm ImIiIuc.c on GI'AC's patent, and is It as effective as our Invention In controlling carcinogenic airborne contamina tion at asbestos abatement sites? The first question Is a legal one: it's our position that die brand system does not Infringe on the GPAC patent. The second question Is a practical matter: docs die Brand system work? We can't answer that definitively because we don't have test data documenting the cfTcctlveness of the Brand syslem under dally field conditions." Further. Newman suggests one should question whether the Brand syslem will be as safe and effective In lowering airborne asbes tos concentrations within the work area. This Is because the Brand system appears to require a sub stantial number of air filtration devices that exhaust directiy into the work area, thus potentially sor ting up the asbestos fibers. In addition. Newman said one should question whether the Brand sys tern is cost effective. Newman said GPAC has no plans to perform tests on the Brand system, but indicated that end users would be well advised to review hard test data before utilizing any contamination coniml s>-. lei II. Adequate Testing Crucial To Evaluating A New System "Testing a contamination control process is a costly and complicated undertaking." Newman said. "Many years and more than half-a-million dollars were spent to lest the GPAC system with tire elec- iron microscopy methods that provide the most accurate results about air quality inside and ouiside a contained asbestos work site. We can vouch for the effectiveness of our system because wc con ducted thousands of air tests in a wide variety of structures where asbestos abatement procedures were actually taking place." GPAC Unaware of Any Brand Test Data "We are unaware of any comprehensive comparison tests which have been performed by reputable authorities between our system and Brand's. We further assume that end users, who will ultimately be held accountable for the effectiveness of the contamination control systems, would want to re- view such test data before using a newly-announced system. Contort llrand Itrailqnarlrn For Rnppmtlnj Tata on Now Sratnm 'IhciHmc." Newman said, "we can only suggest lliat Inlcicslcd panics ciiuiaci the Iti.uul < *""l*"* les hcadquailcts for this dala rattier Ilian GPAC." 5 j | 3B Mnrl .h Pi of? Avroi in. Mnplr* Rhnrln, Npw.lnrnny nnOPiP NIAC FILES SUIT The National Insulation and Abate ment Contractors Association (NIAC), formerly the National Insu lation Contractors Association (NICA), announced May 24 that a legal suit has been filed seeking a declareto ryjudgmentagainstGPAC. Inc. The suit is being undertaken, accordingto NIAC, to con test G PAC's patent rights to the "negative air" filtration system, commonly used by asbestos abatement contractors. The basis for the declaratoryjudg ment lawsuit is that the "negative air" filtration system was specified and used on asbestos abatement projects as well as described in pub lications more than one year prior to the patent application filed by An thony Natale, the alleged inventor. The suit was filed on May 23 by Performance Asbestos Service, Inc., as plaintiffin Federal District Court, Charlotte, N.C., for declaratoryjudg- assktos issues ?-juir ment seeking to have the patent declared invalid. Lead counsel is NcNeill Stokes of Stokes, Shapiro, Fussell and Wedge of Atlanta, and co-counsel is patent attorney Robert Vanderhyne, of Arlington, Va. The National Insulation and Abatement Contractors Association, a non-profit association, has formed the NIAC Defense Fund. The Fund's sole objective, according to the press release, is to support this litigation via donations from members of the entire asbestos abatement industry. Companies or individuals who do- nate a minimum of $1,000 to the Fund will receive periodic financial statements of the Fund and prog ress reports of the litigation. Re gional and national contractors are encouraged to donate more than $1,000. All donors will be kept confi dential, ifdesired, and have no legal connection to the litigation. Only donors will receive the progress reports. NIAC's board of directors is the governing body ofthe NIAC Defense Fund. The administration of the Fund will be under the direction of William Pitkin, executive director of NIAC. All donations should be made out to NIAC Defense Fund. Dan Osborn, current president of NIAC, said that one of the Associa tion's missions is to provide solu tions to the problems and needs of the asbestos abatement contractor. The NIAC Defense Fund, he said, is just one example ofthe Association's many actions under way to fulfill this mission. He encouraged all asbestos abatement contractors and suppliers to contribute to the Fund. For more information, contact. William Pitkin, NIAC Defense Fund, 99 Canal Center Plaza, Suite 222, Alexandria. VA 22314; (703) 683- 6422. 6 MAC ASSOCIATION UATIONAL INSULATION ASP ABATEMENT CONTRACTORS Questions and Answers DEFENSE FUND BULLETIN July 18,1989 Q. What legal action haa been taken to date concerning the Natalt 'Negative Air" Patent? A. Performance Abatement Servian. Inc. (TAS'l has filed a Complaint in the Unltod States District Court in Charlotte, North Carolina, seeking to have the Negative Air Patent declared invalid. CPAC Inc., the holder of the Negative Air Patent, hat countersued PAS in the United States District Court for the District of Delaware, but PAS moved that Court in Delaware to stay that action because the North Carolina cate waa the first one filed. Q. What ia the btaia for claiming that the Negative Air Patent is invalid? A. PAS asaerta that the Negative Air Patait is invalid at antibpated since that subject matter of the patent was In use by Natalc and by others, ana known in publication a. more than on year prior to the application for the patent in November, 1981. In addition, PAS alleges that the subject of the patent was obvious to those of ordinary skill in the art. Q. What are the specific prior uses of the Negative Air Patent which would cause it to be invalid? A. PAS asserts in its Complaint in the North Carolina case that a negative air system with isolation barriers and airlocks was specific and utillicd for removal of asbestos at ctrtain naval facilities for pubUely-bid projects in the late 1970's. The Complaint further asserts that plastic flaps scaling decontamination areas were specified and used in June, 1979 on a pubticly>bid school asbestos removal project in Roanoke Rapids, North Carolina, and that the Greensboro, North Carolina, Post Offics. in July-Octobcr. I960, a negative air system with isolation bomoi and overlapping plastic flaps was publicly used. In addition, PAS asaerts that NataJe himself used the negative air svslcm in I960 during two asbestos removal projects at public schools in Cinnaminson, NJ. PAS * attorneys are aware of other prior uses, too. in Kentucky, Pennsylvania, and elsewhere. Q, Didn't the Boerd of Petent Appeal* rate in a Re-examination Procedure that the Negative Air Patent wat valid? A. The Patent Examiner originally rejected the Negative Air Patent on the grounds of the prior uses and the further use by Natale himseuon the two School Board projects in Gnnaminson, New Jersey. However, the Patent Appeals Board reversed the Patent Examiner on a procedural ground-lnal the Patent Examiner improperly considered external facts submitted by affidavits. Because the Patent Examiner was not entitlcd-bv the law setting up the Patent Office Ro-Examinanon Procedures-to take external testimony and could consider only prior patents, and prior publications, he was not entitled to invalidate the Negative Air Patent on the basts of the evidence before him. Publie use and rallied testimony It reserved for the courts, as on the present infringement lawsuit pending in North Carolina. Q. When svm the North Carolina action bt resolved? A. PAS presently Intends to move within the next two weeks for summery fuocnsnt in the North Caroline action. A Motion for Summary Judgment simply is one in which PAS will argue that given all the facta of record (of the prior uses, prior publications, etc), PAS as a matter of law is entitled to a judgment that the Negative Air Patent is invalid. CTAC will be entitled to respond to this Motion within thirty days after its filing and a decision would likely be handed down from the court within two or three months after the filing of CPACs response, if the case is not resolved by Summary Judgment, a trial is likely 12*18 months sway. Q Doe* the Natale 4,604,111 cover U negative air system* far asbttlo* removil? A. No. Ths claim, which are the measure of the Natalt patent, are epeafic to a particular flap arrangement used Ln a negative air system. Thar art many publicly used negative air systems prior to Natale's Patent application thst cannot be considered an infringement of the Natale Patent since they were csrliw than Natale. Also, CPAC has publicly indicated that the Brand negative air system is not on infringement of ihe Natale Patent Q. How an I know whether eyetem I use infringes the Natale patent? A. If the Natale Patent is found Invalid, then It annot be infringed. Prior to a final dodsion on the validity of Ihe Natale Patent. It you heve a question* as to whether or not a system vou employ, or intend to employ, is envered by the Natale Paten you should seek an opinion from a competent patent attorney. Q. What should a contractor do If presaed to purchase a ticcmc by CPAC? A. Whether to purchase the CPAC license obviously is a business decision which must be made by ench contractor. However, many contractors from across the country have advised the attorneys for PA$ that they too have refused to purchase the CPAC Scene* and have contributed to the funding of the North Caroline liegenon. Q. Cen e contractor buy the license from CPAC end also contribute to the litigation hind, given the clause in the license which provides thst the licensee cannot challenge the patent? A. In Lear v. Adkins, the Supreme Court held that the public interest required that licensees be able to challenge the validiry of patents that they license. A patent licensee cannot be put to the choice of risking liability for infringement of a patent tn order to challenge validity. Q. What if an owner requires that the asbeito* removal firm be licensed by CPAC? A. Vou may tell the owner that you as an asbestos removal contractor will agree to insertion of a standard clausa that you wiU defend and indemnify the owner and architect/engineer tn the event a patent infringement is brought against them. Although ihe contractor again facet the business decision of whether to agree to auch a claim, you should note that a patent indemnification clause ia standard ln most construction contracts. You on also a gras to practice a negative air system not covered by the Natale Patent. If the owner continue* to insist on a liemre, then you should look into whatever bid protest procedure* might be available, for specifying die Natale avstem alone could arguably be a wrongful restraint on free competition among bidders. Q. What ahould the tpecifier do to insure a non proprietary Differential Priaaura Containment System Specification? A. Specifications should state that the contractor is responsible for complying with all regulations as well as alt patent* pertaining to prooassas that the contractor ricet* to use It could also require the contractor to indemnify the owner and the owner's representative for all damages arising from his or her failure to comply. The Brand syslar which does not infringe on the patent basically Increases the integrity of the decontamination chamber by using told airlock doors with KEPA filtration and rubber reals. This improvement of the chamber reduces the number of air filtration machines required to reduce the pressure in the room. Other air filtration machines are used within the work space to recirculate the air through the HEl'A filters and this dean the Brand hat made the Differential Preeeure Containment System available for use in the publie domain, and it available for use without any feet or royaltiee. For more information on the Brand System, contact Bill Pitkin at NlAC. CALIFORNIA ASBESTOS ABATEMENT BUSINESS LEAGUE 3220 Eui 29th Sirret. Long Beach. CA 90606 213/426-0753 CAABL NATALE PATENT POSITION PAPER MAY 23, 1989 *. During numerous local, regional, and national meetings, many asbestos abatement industry representatives decided that the following suggestions, in either single or multiple combinations, offer a viable approach in establishing daily operations and long term corporate policy regarding the Natale Patent. 1. Acquire a short term license under the patent. 2. Inform consultants, regulatory agencies, and school boards of the alternatives in air differential systems. Recommend consultants include in their specifications an indemnification clause protecting and relieving them from any potential liability stemming from the patent. 3. Utilize the Brand system. 4. Act as a good corporate citizen and obtain a competent legal opinion from a patent attorney. A legal opinion creates a significant level of comfort, a period of grace, while your patent attorney is evaluating all the facts to determine whether the Natale Patent is valid and enforceable. This is an act of good faith and an acceptable legal option available to contractors. Envirocon, an asbestos abatement firm1, has retained the services of Anderson Russell Rill & Olick with the particular lawyers of Mr. John Ridd and Mr. Edward Fitzpatrick, to produce an legal opinion regarding the Natale patent. The Anderson firm lawyers preliminary investigation of various litigation records suggests that the patent may very well be held invalid and unenforceable under a court test. Any contractor willing to co-sponsor the legal opinion can contact Mr. Clayton McNeil, president of Envirocon at 813/286-8680. Attorneys' fees will be pro rated based on the number of participants. As an alternative, individual contractors can secure their own opinion paper, but chances are the attorney fees will be higher. caabl the contractors contact TO LECISUTION" * tegixUiivc auoctaiion CALIFORNIA ASBESTOS ABATEMENT BUSINESS LEAGUE 3220 Eui 29th Street. Long Beach. CA 90806 213/426-0735 CAABL Natale Position Paper page two 5. Donate to the National Insulation and Abatement Contractors Association (NIAC) Defense Fund. On May 19, 1989, NIAC announced that a legal suit has been filed seeking a summary judgement against GPAC, Inc. This is being undertaken to contest GPAC's claim of patent rights to the "negative air" filtration system, commonly used by asbestos abatement contractors. Contact Mr. Bill Pitkin, Executive Director of NIAC, at 703/6836422 for information. 6. Participate on a Federal level. Dan Steinway, of the Anderson firm's Washington, D.C.'s office and legal counsel for the ad hoc committee that testified on the proposed changes to the current requirements under the asbestos NESHAP program, suggests the vehicle for industry advocacy already exists and may be utilized to express concerns arising out of the EPA requiring the use of a patented process where the patent may be invalid. Each contractor must proceed with a policy that best reflects their own corporate needs. Understanding the options will help alleviate any "negative pressure" created by GPAC's quick and creative patent campaign. Those that feel they should pay will do so, while those that wish to question the patent offer will counter with jurisprudence, intuition, and ingenuity. "CAABLTHE CONTRACTORS CONTACT 7V LEGISLATION' a legislative association 04/OJ f` e 9 t I l S 3 4 : >? 250 lHT'L *1* Ml'H Jjtamj JBaffanaa Contact: Mr. Bill Pittman President, International Air- Filter or Mr. David Naylor National Sales Manager, arajisco For IMMEDIATE RELEASE: June 3, 19S9 ALTERNATIVES FOR FILTERING AIR AND MAINTAINING NEGATIVE PRESSURE IN CONTAINED ABATEMENT WORK AREAS An alternative process for filtering air and maintaining negative pressure witnin a contained asbestos abatement work space was recently announced by ARAMSCO's Davie Naylor and international Air Filter's Bill Putman. Tne system uses Air Filtration Devices (AFD's) and a single Negative Air? Machine tosexhaust the contained space and accomplish what previously required multiple Negative Air Machines. - Chief among its benefits is the avoidance of the Natale licensing fee but' additionally the system offers better control of heating and ventilating costs, lower Interior fiber counts than possible with any other system, greatly improved air movement witnin the work area, minimal labor required for job set up, quicker clean ups and the ability to create your own area Of circulation. The end result then is cost savings and reduced risk of contaminant escape. The product responsible for the design of this method is tne RAMIT 2.5M Air Filtering Device (AFD) developed cooperatively by Internationa! Air Filter, Elgin H and ARAMSCO, Thorgfare, New Jersey and Elgin il. Named for a frequently heard expression of Asbestos Contractors in response to recent innovations In patent law, RAMIT recirculates air within the contained space it up to 99* efficiencies at .3 micron. 0 c 0T- 5 << 0 : 1 : z si i :<J5c< t M 7 u Al FILTER page 2 RAMIT filters air three times with two, 2-ply 20?? efficient pre-filter pads, two, 3 ply 35$ efficient ore-filter pads, and one twelve pocket, non-shedding micro-synthetic MF95 ASB pocket filter. The MF95 aSB is self supporting in a disposable PVC enclosure and is factory sealed ana certified The Mower is held within a heavy duty, welded, stainless steel housing and is a 2500 CFM, !2` diameter double width, double inlet blower Tne three speed, 3/4 hp motor requires a single 115/1/60 outlet. while the competitive system remains useful, there are growing concerns for any method that advocates the removal of large quantities of anything, including air, from a contaminated work area. HEPA filter failure, machine ceOlnet leakage, filter seal leakage, 3nd exhaust duct breach can all provide an escape route for airborne asbestos Since the removal of each unit volume of air from that work area is a potential asbestos contaminant vehicle, It makes sense to minimize such flow rather than maximize. The RAMIT method was developed as an alternate ventilating and engineering control strategy to solve a number of problems and logistical difficulties, for example, large volume exterior air exhaust in high rise buildings, sealed window architecture, interiorreas and underground facilities can pe extremely difficult. Heat loss during wintertime work poses an additional set of costs and problems. The ease of which plastic sheeting curtains and flaps can be defeated along with their damage potential is a concern. This method, using AFD's and one Negative Air Machine doesn't seal established flow paths, provide flap seals, advocate any air exhaust or even necessarily call for widespread application of plastic. Briefly, the system is set up as follows. The workspace must first be isolated and contained by erecting impermeable barriers at all exits or openings so that all possible exit routes are sealed against positive oir flow, if the work Is not part of a renovation, plastic 3heeting, spray poly, asbestifoam, and other protective measures should be used to prevent contamination damage to the remaining finishings, fixtures, architectural ana decorative o oioii; X Hi i'<! S05O I M T L !* F|LT6 r -i page 3 A decontamination facility Is providec with a HPA niter ana rigid, gasketed doors. The decontamination unit consists of a clean room, f txec wall with rigid gasketed door and a small HPa filter, shower room, additional fixed wall with louvered door, and a dirty equipment room. Tne HPA filter permits a very limited air flow inward through tne deccn unu to fix and provide filtration for any outward air flow in the event of ventilating fan failure. with tne air inlet potential severely restricted, only enough air is exhausted through a HEPA equipped AFD tc reduce the workspace pressure by a readable amount. From a practical standpoint, tms pressure differential should be in the .0` to 10" water column range. At this level, the workspace Is effectively contained and minimal amounts of air are released to the outside. Additional RAMIT machines should be placed free standing inside me workspace to circulate the air within the area and to filter and trap contamination out of the air. Depending on work methods, the numoer of machines may be varied as little or as much as needed to lower airborne fiber levels In the work area. The following example illustrates. An area to be abated is 50 feet wide by 200 feet long with a 12 foot celling for a total of 120,000 cubic feet. Since each RAMIT can move air at a rate of 2500 cfm, under this configuration the air could be completely Tittered and circulated every six minutest ten air changes per hour) with Just eight RAMIT units. One 2000 cfm negative air machine exhausting to the outside maintains the necessary negative pressure. This strategy may be carried further by exhausting interior machine discharge in the direction of the workers thereby diluting their breathing zone fiber levels, reducing respiratory protection device challenge, pushing contamination away from workers and enhancing protective measures. '* z0 4 >?$* o t 1 X 312 **5 2050 1 MT * c *|* * l L f C * page A The Ramit system ana Ramit units can enhance any asbestos aoatement project. It maximizes protection for the workers, other building occupants ana the outside environment, in addition to circumventing the Slatale patent it provides a cost effective, safe and efficient process for removing airborne asbestos contaminants. % For further information on the RAfllT system piease contact David Naylor at ARAMSCC, 1655 Imperial Way. Tnorofare, nj. 06086. 609.e48.5330, aR.amSCO is a full service distributor and product innovator of safety supplies and equipment for tr.e hazardous environment international Air F'lter, 200 N Spring St., Elgin it 60120. 312.7-42 3500, designs and manufactures a broad range of high efficiency air filtration products for the Industrial and commercial market. THE GLOVE BAG AND THE CONTROVERSY SURROUNDING ITS USE AN EXPLANATION FREStNlU) AT CRITICAL ASBESTOS ISSUES: CLEARING THE AIR NEWARK, NEW JERSEY JUNE 28, 1989 BY PAUL HEFTERNAN VICE PRESIDED DIRECTOR OF REGULATORY AFFAIRS KASELAAN & D'ANGELO ASSOCIATES, INC. 515 GROVE STREET HADDON HEIGHTS, NEW JERSEY ON DECEMBER 17, 1988, following an inspection of an asbestos abatement project, OSHA'citations for contractor alleged violation of the federal asbestos construction standard (29 CFR Part 1926.58) gained ouch interest and has confused many asbestos abatement professionals. In its Notice of Violation, OSHA informed the contractor that 1926.58 (e) (6) had been violated because asbestos pipe insulation had been removed by use of glove bags, without use of negative air pressure in the work area. Personnel using the glove bag wore protective clothing and respirators. Personnel and area sampling revealed no significant elevated airborne fiber level. Violation notices have been issued to other contractors under similar circumstances. Page 1 Why, it is asked, is the use of a glove bag by persons wearing protective clothing and respiratory protection a violation of QSHAs standard? Why, it is asked, is the use of a glove bag in a work area having airborne fiber levels less than the permissable level a violation of the QSHA standard? V*y, it is asked, did QSHA change its interpretation of the standard? Lack of understanding, inadequate ocnsunicatian, and mis-guidance have resulted in asbestos abatement contractors and consultants being surprised and confused by QSHA's seemingly sudden enforcement of a provision in its asbestos construction standards pertaining to the use of "glove-bags." The situation developed because, as asbestos abatement work practice procedures were developed over the last ten years, innovations such as glove bag use were taught and implemented. Then the.regulations;changed, and very few noticed. A look at the evolution of CONTRACTCIURY GUIDANCE sheds light on the issue. Glove bags were first introduced by the EPA in its guidance document known as the Blue Book in 1983. The devices were offered as small containment devices that could be used instead of fully enclosing a large area* with polyethylene wall and floor covering when relatively small amounts of asbestos pipe insulation were to be removed. Subsequent EPA publications further established the apparent "acceptability' of the glove bag concept: o Engineering controls, such as--exhaust ventilation, shall be used to meet the exposure limits... (QSHA 29 CFR 1910.1001 (c)(1) (i), 1976). o Employees engaged in...the removal, or danoliticn of pipes.. .covered or insulated with asbestos shall be provided Page 2 with respiratory equipment and with special clothing. (OSHA 29 ere 1910.1001 (c)(2)(iii), 1976). o EPA sponsored training centers curriculum evolved from a refinement of guidance presented by EPA in its Blue Book "Guidance for controlling Friable Asbestos-containing Materials in Buildings", March 1983." In instruction for Confining and Minimizing Airborne Fibers, training centers stated that glove bags were used to form mini-containment; areas around section of pipe.., Instruction in the Glove Bag Technique for Pipe lagging Removal implied that one or more bags were needed, depending upon the size of the project. The work area should be roped off and warning signs posted. Use of barrier tape was reccmnended. January 1985 present). o It is highly reccmnended [not required) that the work area be enclosed through the use of plastic barriers... (EPA Asbestos Waste Management Guidance, p.18. May, 1965). o Containment bags may be used instead of constructing containment barriers around the work area. The bags....let a worker remove insulation without exposure to asbestos fibers. (EPA "Purple Book", Abatement Methods for Pipe and Boiler Insulation, 5.2: p 5-8, June 1985). o Occupational Safety and Health Administration, Construction Standard for Asbestos, 29 CFR Part 1926.58. Federal Register June, 1986. o Asbestos removal contractors are encouraged to enploy safety procedures beyond the minimal requirements of EPA and OSHA. The use of negative air pressure systems is highly reccmnended. (EPA Asbestos Waste Management Guidance, p. 18, May, 1989). Page 3 o Glove bags are snail enclosures used for asbestos stripping (EPA NESHAP, proposed January 10, 1989). Incarplete ocnprehension of the current standard rises frcm a subtle difference between asbestos abatement and routine maintenance; between applicability of OSHA's standard based upon asbestos fiber concentration in the workplace for the construction industry, and applicability based upon the work being asbestos abatanent rather than maintenance; between EPA's guidance issued before the OSKA regulations, or later mandatory procedures of OSKA. OSHA regulations (29 CFR 1926.58) separately and independently define; o Renovation - modifying a structure where exposure to asbestos say result. o Repair - reconditioning or rebuilding substrates where asbestos is present. o Removal - the stripping or taking out of asbestos materials o Regulated Area - demarcated area where airborne asbestos may exceed Permissable Exposure Level of 0.2 f/cc (PEX). It say take the form of a temporary enclosure (required by paragraph e(6) of the standard, or in another manner. A REGULATED AREA must be established where airborne asbestos exceeds or is likely to exceed the PEL. Page 4 Contractors should be aware that under the asbestos construction standards, SEPARATE REQU3RQHNIS are established for asbestos removal, demolition and renovation operations (paragraph e(6)) that are NCT dependent upon measured airborne fiber levels: i. Whenever feasible - negative air enclosure before removal, demolition or renovation; ii. designate a ocnpetent person who has several responsibilities; iii. occpetent person shall be trained; iv. PIPE REPAIR, VALVE REPLACE-HUT, AND OTHER GENERAL BUILDING MAINTENANCE CR RENOVATION of small scale and short duration - not required to amply with paragraph e(6). ITEMS I AND IV ARE KEY ELEMENTS IN THE GLOVE BAG CONTROVERSY There are two provisions of respiratory protection that are often misunderstood relative to glove bag asbestos removal. (1) Respirators nust be worn while installing engineering or work practice controls; during maintenance and repair activities where engineering or work practice controls are not feasible; and where even with work practice and engineering controls, the airborne level cannot be reduced to or below the PEL. (2) Respirators are not required to be worn if the airborne asbestos concentration of the work area is below the PEL. These requirements'have~no5 influence on the need to establish negative pressure in the work area for asbestos removal activities. It is fairly well established in the OSHA regulation that asbestos removal operations have their own specific requirements. Paragraph (g) establishes Methods of Cccpliance - requiring that employers shall use one or any ocmbinaticn of: r~ - local exhaust ventilation - general ventilation systems - vacuum cleaners with HERA filters - enclosure or isolation of prooess Page 5 - wet method preset disposal of asbestos waste other work practices per Asst. Secretary If none of above practices are sufficient to reduce exposure to or below the PEL, then exposures rust be reduced to the lowest levels attainable and supplemented by the use of respiratory protection to achieve compliance with the PEL. Paragraph i(4) establishes separate protective clothing requirements for removal, demolition and renovation operations: - cccpetent person must periodically examine clothing for rips or tears - detected rips or tears be immediately mended or clothing immediately replaced APPENDIX F to 1926.58 - Non-Mandatory work practices and engineering controls for rajor asbestos removal, renovation, and demolition projects provides guidance and procedures vhich, if followed, would enable cccpliance with paragraph e(6) that requires whenever feasible, a negative-pressure enclosure before commencing najor asbestos removal, demolition or renovation operations. 1 Major asbestos operations are described as projects conducted to abate a recognized asbestos hazard or in preparing for building renovation or demolition. Careful planning, followed by construction and operation of polyethylene containment and enclosures with decontamination facilities and negative pressure within the containment are described. Also often misunderstood and contributing to the situation at hand is: Page 6 APPENDIX G TO 1926.58 - NON-JttNDATQRY work practices and engineering controls for small-scale, short duration asbestos renovation and maintenance activities. It provides guidance for persons seeking exemption from ccrplianoe with paragraph e(6). Paragraph e(6) say be couplied with, but if exemption is chosen, then this appendix becomes mandatory. Although snail-scale shortduration projects are not defined in the definition section of the regulation, there are several examples of OSHA intent throughout the regulation. And a definition of relevant tasks is given in this appendix. OSHA said that it found evidence that certain engineering and work practice controls were capable of reducing workers exposure below the action level of 0.1 fiber pier oc. of air. OSHA listed wet methods, removal methods, use of glove bags, removal of entire sections of pip* and use of mini-enclosures as examples of these effective practices. OSHA anticipated that electrical, carpentry, utility, plumbing, and interiorconstruction trades might wish to avail themselves of theexemption. 3 However, to be exempt, the entire appendix must be complied with. OSHA did not postulate that use of a glove bag exempts one from the other provisions of the standard. A glove bag was stated to be a 40 inch wide device that when properly installed and used provides tenporary work enclosure for smallscale renovation or maintenance jobs. Glove bags are single use devices - intended by OSHA to be used singularly. One bag toocuplete one jcb.e Any larger activity would be construed to bee major removal operations In addition to using certain described work practices, in order to qualify for the exemption from paragraph e(6), a facility must have a written asbestos inspection, periodic examination and asbestos maintenance program in effect. OSHA restated its intended affected population by requiring that members of the facilities maintenanoe and engineering staff of electricians, HVAC engineers, plumbers, etc. be trained in safe asbestos procedures. Page 7 Each of the appendices requirements must be implemented in order to qualify for exemption from paragraph e(6). In summary - popular belief to the ocntrary - current federal regulations require that all asbestos be done under negative pressure whenever feasible, regardless of what type and extent other engineering controls are used. heffema\25555-13