ASBESTOS IS STILL A CONCERN

Many people think that, as an environmental hazard, asbestos is a non-issue. After all, they say, hasn't it been banned for many years? Haven't we removed all the asbestos in buildings by now? In one of the more confusing regulatory quagmires, the answer, unfortunately, is that asbestos is still with us, even in recently constructed buildings.

Shortly after the Asbestos Hazard Emergency Response Act ("AHERA") was enacted in 1986, the United States Environmental Protection Agency (USEPA) promulgated the Asbestos Ban and Phase Out ("ABPO"). This regulation allowed manufacturers of asbestos-containing products one year to redesign and re-engineer their products with non-hazardous components. (Exemptions existed for strategic materials or products for which no practical replacements could be found.) After the year was over, the manufacturers would have seven years to sell the asbestos-containing products in order to use up back inventories. At that point, sales would stop and only non-asbestos products would be manufactured or imported.

The association of asbestos manufacturers, including the Safe Building Alliance, went to court to stop the ABPO. The Fifth Circuit Court of Appeals agreed with the asbestos manufacturers and vacated the ABPO, but only for the products that were still being manufactured at the time the Ban went into effect. In November 1993, EPA published a clarification that stated the six categories of asbestos-containing products still subject to the ABPO are: 1) new uses of asbestos; 2) corrugated paper (a common form of thermal system insulation ("TSI")); 3) rollboard (another common form of TSI, 4) commercial paper; 5) specialty paper; and 6) flooring felts. The clarification obviously leaves a lot of materials open to manufacture using asbestos as a component. Materials known to still contain asbestos include resilient floor tile, cement asbestos board, and roofing felt. In fact, recent inspections have found asbestos in "certified" asbestos-free materials such as certain brands of calcium-silicate TSI.

The issue of how a building owner or property manager should deal with asbestos is addressed in a variety of regulations. The Occupational Safety and Health Administration ("OSHA") requires that owners and managers, of buildings constructed before 1981, inventory all of the TSI and surfacing materials and presume these materials to contain asbestos. Until the owner can rebut the presumption, they are required to maintain documentation of this inventory, deliver the inventory to subsequent owners and managers of the property, and inform and train certain groups of employees and individuals who may come in contact with those identified materials.

Prior to any renovation or demolition activities, the National Emission Standard for Hazardous Air Pollutants ("NESHAP") regulations require an asbestos survey to determine if asbestos will be disturbed during the activities. The most common method for addressing asbestos is to implement an operations and maintenance ("O&M") program that is compliant with the EPA guidance document Managing Asbestos in Place. The building owner or property management company can either have a licensed consultant conduct a comprehensive asbestos survey or they can assume all TSI, surfacing materials and other suspect materials to be Asbestos-Containing Building Materials ("ACBM"). Depending on the amount of information available, the amount of known or suspect asbestos-containing materials present, the condition of the materials, and the likelihood of disturbing the materials, the building owners and managers can implement a site specific or generic O&M program.

It is important to remember that a Phase I Environmental Site Assessment is not designed to be used as an asbestos survey. The typical Phase I will involve the collection of up to 10 total asbestos samples, while a comprehensive survey will collect three to nine samples of each suspect material. There can be dozens of suspect materials in a given building.

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