In 1989, the United States Environmental Protection Agency (“USEPA”) issued a final rule banning most asbestos-containing products.  Although this regulation was challenged in 1991, the USEPA continued to restrict the use of certain asbestos-containing material (“ACM”) products.  Despite the asbestos ban, there are several ACM product categories that are no longer banned and are still commonly used.  These products include asbestos‑cement corrugated sheet, asbestos-cement flat sheet, pipeline wrap, roofing felt, vinyl asbestos floor tile, asbestos-cement shingles, asbestos-cement pipe, non-roofing coatings and roof coatings.  Note that the USEPA does not track the manufacture, processing or distribution in commerce of ACM products.  It is up to the consumer and/or developer to inquire as to the presence of asbestos in particular products being used.  However, the regulation continues to ban the use of asbestos in products that have not historically contained asbestos.

In today’s real estate market, whether you are an owner, operator, lessee, purchaser or lender, you need to know whether the building/space at issue contains ACM.  The presence of ACM can significantly increase the cost of renovations, demolitions and building maintenance, and ACM poses an ongoing risk to human health if disturbed.

A quick screening test, which includes the collection of a few representative samples of building materials such as ceiling tile, floor tile, mastic, wallboard and roofing materials, can be conducted by an environmental consultant.  This quick screening test would provide a general idea of whether ACM will be an issue at a given property.  On the other hand, a person may choose to have a full Asbestos Hazard Emergency Response Act (“AHERA”) survey completed.  The full survey includes the collection of a specific number of samples for each homogeneous potential ACM, in order to fully quantify the ACM present on-site and their associated abatement costs.  Although not a requirement, in order to be certain that no asbestos materials remain before renovation or demolition, a full AHERA survey is standard practice in the industry.

The USEPA asbestos regulations fall primarily under the authority of two different federal laws and their associated regulations: the Clean Air Act, which establishes the Asbestos National Emissions Standards for Hazardous Air Pollutants, and the Toxic Substances Control Act (“TSCA”), which created the asbestos ban phaseout.  The Clean Air Act bans most spray-applied surfacing ACM containing more than 1 percent asbestos used for buildings, structures, pipes and conduits, unless the material is encapsulated with a binding substance during spraying and the materials are not likely to become or be rendered airborne after drying.

While there has been an asbestos ban under TSCA for certain products in this country for almost 20 years, it is still possible for a building that was recently constructed to contain ACM.  Therefore, the only way to know for sure whether your building contains ACM, regardless of the building’s age, is to conduct a screening survey or a full AHERA asbestos survey.