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Managing Environmental Liability - Business Transactions and Brownfield Redevelopment - Looseleaf
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8
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Regulation of Contaminants of Special Concern
(Asbestos, PCBs, Lead-Based-Paint, Mold) and
Vapor Intrusion
Previous chapters have outlined the major federal and state cleanup authorities
that may impose liability for environmental contamination on a variety of
business activities. In addition to these comprehensive regulatory programs,
certain hazardous substances have been singled out for special treatment by
governmental regulators because of the great risk these substances pose to human
health and the environment. This chapter will describe the federal and state
regulatory programs that have been developed for particular contaminants and
vapor intrusion.
§ 8.01 Asbestos
The term “asbestos” actually refers to two forms of fibrous minerals known as
serpentine and amphibole that, in turn, are comprised of six commercial varieties.
Asbestos materials can be processed or woven into other materials to give them
strength, flexibility and resistance to heat, corrosion and fire. Asbestos is a good
insulator and, because it does not react with most chemicals, it is extremely stable
and durable. The most common form of asbestos is the serpentine variety called
chrysotile or white asbestos. The most dangerous forms of asbestos are the
amphiboles (actinolite, amosite, anthophyllite, crocidolite and tremolite), which
vary from gray to brown and whose needle-like fibers are easily absorbed by the
body.
However, asbestos is also one of the most dangerous substances known to
mankind. Asbestos fibers, which are often thousands of times thinner than a
human hair, can remain suspended in air for extended periods of time. If inhaled,
the fibers may become lodged in the lungs and the gastrointestinal tract where
they may cause lung cancer; respiratory disorders such as asbestosis, a
nonmalignant scarring of the lungs; cancer of the esophagus, stomach, colon and
rectum; and mesothelioma, a rare cancer of the chest or abdominal lining.
Until the dangers of asbestos became known, asbestos was used in a wide
variety of products used in commercial and residential buildings constructed
between 1920–1970, and was often mandated by municipal building codes. An
EPA study in the mid-1980s found that 733,000 of the 3.5 million public and
commercial buildings in the United States have asbestos-containing materials
(“ACM”) and 500,000 (14%) of those buildings will require some sort of cleanup
Chapter 8: Regulation of Asbestos, Polychlorinated Biphenyls (PCBs), Lead-Based Paint, Medical Wastes, Mold and Financing Brownfield Development
8.01 Asbestos
8.02 Federal Regulation of Asbestos
A. Regulation of Asbestos under the Clean Air Act
1. Notification Requirement
2. Workpractice Requirements
3. Disposal Requirements
B. Regulation of Asbestos under RCRA
C. Regulation of Asbestos under CERLA
D. Regulation of Asbestos under TSCA
E. OSHA Regulation of Asbestos
F. Fannie Mae
8.02A ASTM and Asbestos
8.02B Enforcement of ACM Requirements
8.03 State Regulation of Asbestos
8.04 Common Law Liability
8.05 Asbestos Abatement Programs
A. Abatement Options
B. Asbestos Management Programs
C. Negotiating Asbestos Abatement Contracts
8.06 Polychlorinated Biphenyls (PCBs)
8.07 Federal Regulation of PCBs
8.07A Definitions
8.08 Ban on Manufacturing, Processing, Distribution and Use of PCBs
8.08A Servicing and Rectification of PCB Transformers and Other Electrical Equipment
8.08B Marking Requirements
8.09 PCB Storage Standards
8.10 PCB Disposal Standards
8.11 Notification and Manifesting of PCB Wastes
A. Generator of PCB Waste
B. Transporters of PCB Wastes
C. Commercial Storers
8.12 PCB Spill Cleanup Policy
A. Reporting Obligations
B. Cleanup Standards
C. Spills Involving Less Than One Pound of Low-Concentration PCBs
D. Spills Involving More Than One Pound of
E. High Concentration PCBs or Low Concentration PCBs
F. Spills in Outdoor Electrical Substations with Restricted Access
G. Spills at Non-Electrical Substations with Restricted Access Areas
H. Spills at Non-Restricted Access Areas
8.12A Liability of Landlords for PCB Spills
8.13 State Regulation of PCBs
8.14 Regulation of Medical Wastes—Introduction
8.15 Scope of the Federal Medical Waste Tracking Act
8.16 Definitions
8.17 Generator Standards
8.18 Transporter Requirements
8.19 Treatment, Destruction and Disposal Facilities
8.20 Enforcement
8.21 Regulation of Lead-Based Paints
8.21A Lead Paint Debris Management and Disposal
8.21B Enforcement of LBP Disclosure Rules
8.22 State Brownfield Programs
8.23 Federal, State and Private Financing Mechanisms for Brownfield Redevelopment
8.24 Using Project XL to Expedite Cleanups and Facilitate Brownfield Redevelopment
8.25 Chromated Copper Arsenate (“CCA”)
A . EPA CCA Regulatory Actions
B. Regulation of CCA by the Consumer Products Safety Commission (“CPSC”)
C. State Regulation of CCA
8.26 Vapor Intrusion
A. What is Vapor Intrusion?
B. Regulatory Background
C. Key Vapor Intrusion Terms
D. Factors that Influence Vapor Intrusion
E.Common Chemicals of Concern
F. Vapor Intrusion Regulatory Levels
G. Methods for Assessing Vapor Intrusion
1. Indoor Air Sampling
2. Modeling
3. Groundwater Sampling
4. Soil Sampling
5. Soil Gas Sampling
H. Investigation v Mitigation of the Vapor Intrusion Pathway
I. EPA Vapor Intrusion Guidance
J. Vapor Intrusion and RCRA Corrective Action Sites
K. Role of OSHA Permissible Exposure Levels (“PELs”)
L. Common Law Liability for Vapor Intrusion
Volume 2
Part I: Application to Business and Corporate Transactions
Lawrence P. Schnapf is Principal of Schnapf LLC. He has 25 years of national environmental experience with Fortune 500 corporations and a number of major New York-based law firms. Larry primarily concentrates on environmental issues associated with corporate, real estate and brownfield transactions, commercial lending, distressed debt, bankruptcy and workouts. He has extensive experience with brownfield redevelopment and financing, negotiating environmental insurance policies for business and real estate transactions, performing environmental due diligence for complex business transactions.
He has also written numerous articles on environmental law, is a contributing author for several chapters of "Brownfield Practice and Law: The Cleanup and Redevelopment of Contaminated Properties" published by Matthew Bender. He was also a contributing author for "The Law Of Environmental Justice" published by the American Bar Association and the Matthew Bender "Environmental Law Practice Guide." He is also the author of "Managing Environmental Liability in Transactions and Brownfield Redevelopment" published by Juris Publishing.
Larry is the co-chair of the New York State Bar Association's Hazardous Site Remediation Committee, co-chair of the NYSBA brownfield task force and a board member of the Board of the NYC Partnership of Brownfield Practitioners. He is also the chair of the Brownfield Committee Force of the Environmental Business Association of New York.
He is Chair of the ABA Section of Business Law Committee on Environmental, Energy and Natural Resources Law. He is a vice chair of the Environmental Transactions, Audits and Brownfield Committee; and Special Committee on Disclosure of the ABA’s Section of Environment, Energy and Resources. He is also a member of the board of BNA’s Environmental Due Diligence Guide.
Larry is also a member of the ASTM 1527 Task Group, Phase II Legal Work Group, Co-Chair of the legal sub-committee for the ASTM Vapor Intrusion Task Group, a member of the ASTM Appropriate Care/Continuing Obligations Task Group and Building Energy Performance Disclosure Task Group.
Larry is an adjunct professor of environmental law at New York Law School where he teaches “Environmental Issues in Business Transactions” and “Environmental Law and Policy”. He is also on the faculty of the Center for Christian Studies at Fifth Avenue Presbyterian Church where he teaches “The Bible and the Environment.”
He is listed in the International Who’s Who of Business Lawyers 2008 and 2009, the 2009 Madison’s Who’s Who of Executives and Professionals, and The International Who’s Who of Environmental Lawyers 2008 and 2009, and Chambers USA 2009 Client Guide of America’s Leading Lawyers for Business.
You can visit the web page of the Schnapf Environmental Law Center at http://www.environmental-law.net/
