Until this year, real estate developers and property owners could be certain only of uncertainty when they confronted the possible presence of asbestos debris or fibers in their soil.
But now, the Massachusetts Department of Environmental Protection (MassDEP) has promulgated new regulations with guidance regarding asbestos in soil, bringing clarity, certainty and reassurance with its consistent approach to questions including:
• How much asbestos in the soil requires reporting, removal and remediation?
• What testing methods must I use and what documentation must I produce to assure the state and federal authorities that my property meets standards?
• To what standards must I clean the soil, if cleaning is even required? In other words, how clean is clean?
Thanks to the clarity, specificity and plain language of the new rules, asbestos in a site’s soil or subsurface need no longer delay earthwork construction, but developers must know the new rules and follow them rigorously.
Roots of Ambiguity
Why was such a seemingly straightforward topic so fraught with uncertainty? There are at least four state and federal programs regulating asbestos in soil and they often are inconsistent, even contradictory. The programs are the National Emission Standards for Hazardous Air Pollutants (NESHAP) from the Environmental Protection Agency, MassDEP’s Bureau of Waste Site Cleanup Massachusetts Contingency Plan (MCP-LSP Site Cleanup Program), MassDEP’s Bureau of Waste Prevention Solid Waste Program and worker requirements driven by the federal Occupational Safety & Health Administration (OSHA) and related state-level agencies. The new MassDEP regulation clarifies the roles of each of these regulatory jurisdictions under one document, providing a sole-source reference. Beyond those regulatory sources of confusion, technical uncertainty also ruled because of a lack of testing methodologies to identify and measure asbestos in soil, and regarding determination of the level of cleanliness required for soil in the environment.
It is necessary to understand the substance at the heart of the matter. Asbestos, a mostly fibrous mineral, occurs naturally as one of a number of silicates. Because it resists heat, fire and certain caustic chemicals, asbestos appears in fireproofing products and insulating agents. Handling or aging can break asbestos into a dust of microscopic fibers that generally remain suspended, which can penetrate bodily tissue when inhaled.
MassDEP says, “Asbestos is known to cause asbestosis and various forms of cancer. Asbestosis is a chronic disease of the lungs which makes breathing progressively more difficult and can lead to death. Cancer can result from breathing asbestos fibers, and lung cancer is the most frequent. Mesothelioma, an incurable cancer of the chest and abdominal membranes, almost never occurs without exposure to asbestos. Asbestos-related diseases have a long latency period and do not show up until 10 to 40 years after exposure. Each exposure increases the likelihood of developing an asbestos-related disease.”
Between 1900 and the mid 1980s asbestos was used in more than 3,000 different products. As a result, during the 20th century, more than 30 million tons of asbestos were used in industrial facilities, homes, schools, shipyards, steel mills, power plants and commercial buildings in the United States.
Many uses of asbestos remain unregulated. According to the United States Geological Survey (USGS), in 2001 more than 26 million pounds of asbestos were used in the United States. More than 700,000 commercial and public buildings (and even more homes, schools and factories) contain asbestos, according to the EPA. However, in high-profile litigation, plaintiffs’ experts have been allowed to testify that there is no safe level of exposure to asbestos.
Asbestos is, and always has been, a hazardous air pollutant as defined by federal and state Clean Air Acts and relevant implementation regulations. The asbestos NESHAP rules apply only to specific activities deemed potentially significant sources of asbestos air pollution such as construction or demolition involving asbestos-containing material (ACM).
Notification and Remediation
The new standards from MassDEP specify that asbestos is not ubiquitous in nature, either alone or embedded in another material. The decision to survey property for the substance should be driven by factors specific to that site. They can include location, such as being adjacent to sites known to have asbestos in soil; historic use; and the presence of telltale materials in construction or demolition debris.
Because there is no standard method of quantifying asbestos fibers in soil, MassDEP recommends visual evidence – for example, can you see debris suspected of containing asbestos in the soil? – as the notification triggering process. Such notification is confirmed and followed by assessment and measurement of the volume and levels of asbestos contained in soil/debris. Simple site assessments suffice when property conditions are straightforward but, as the conditions become more complex, so must the assessment. Review of past site history – were former buildings demolished? Is the land area comprised of filled or made land? – is a critical first step in this assessment process.
Once the site assessment is completed, if certain reportable levels are confirmed, the property developer or owner must retain a licensed site professional (LSP) to complete and document the response actions under the MCP to complete earthwork involving asbestos removal, using accepted best management practices (BMPs). Note that if asbestos-laden soil is not disturbed, the hazardous substance is relatively immobile and harmless. Thus, sequestering the asbestos beneath barriers such as a concrete cap, building or pavement is often sufficient. In the new rules, when combined with legal notice that asbestos is present in the subsurface at the property, MassDEP proposes to allow re-use of materials with moderate levels of asbestos at state landfills for shaping and grading and as daily cover.
Once the remediation is complete, the property owner/developer must demonstrate a “No Significant Risk” condition under the Waste Site Cleanup Program, documenting what has been done to identify, measure, and remediate the asbestos or mitigate the exposure.
MassDEP now relies upon the MCP risk-based approach to determine the level of cleanliness from asbestos in the exterior environment, such as at a development site where subsurface excavation is required. For certain sites, the developer or owner must use measures such as removal and disposal of large concentrations of asbestos, with a cap to isolate the remainder. Assessment of options at a potential site must focus on the specific risks posed there to human health. Asbestos fibers can be left in place, with or without a barrier, if the site specific risk assessment (using either special test methods or site specific activity-based exposure assessment) determines that the asbestos poses no significant risk. Implementation of one or more Activity and Use Limitations are required for certain scenarios and may be effective in preventing future legal exposure to asbestos-in-soil complaints or litigation.
Although the level of certainty in dealing with asbestos in soil is greatly enhanced by the new regulations, some matters will take time for final resolution. How, for example, can a developer affirm with confidence that a given site contains no asbestos? Which testing and assessment protocols will most effectively characterize sites and their potential risks? How many of these sites are actually out there? Will individual municipalities be comfortable with private deed restrictions on residential properties with asbestos-in-soil, or will they enact local ordinances on, for example, how much of a cap is required to isolate residual asbestos?
While the new program is implemented and time passes to facilitate resolution of these issues, property owners and developers can move forward with confidence, guided by the Massachusetts’ new program for managing asbestos in soil.
