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Clearing the Air for Asbestos Screens
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 June 2006 Feature
Anne Puidk Horan, J.D., M.S., chaired the E 2308 task group and is managing partner for Horan & Horan, a Texas law firm. Horan works with consultants, contractors, engineers and labs. Negotiations, report/proposal refining, training and problem-solving are her signature skills.

Clearing the Air for Asbestos Screens

Recently, ASTM International passed E 2308, Guide for Limited Asbestos Screens of Buildings. This new international standard was written to clear the air between users and producers who were increasingly finding themselves in disputes and lawsuits to settle misunderstandings regarding scope, objectives, and limitations of asbestos services. The task group that developed the standard agrees that E 2308 reflects what is going on in industry, refines details, and mitigates areas of contention.

WHAT IS ASBESTOS ANYWAY?
The unique properties of asbestos were recognized as early as the first century. Asbestos, Greek for “inextinguishable,” was seen as a miracle mineral by Romans and Greeks. It was soft, pliable, and withstood extraordinary levels of heat. The mineral was spun and woven into cloth, used for wicks, and became a thermal insulating component in the late 1800s.

Asbestos is a naturally occurring mineral mined from deposits found around the world. Mined mineral deposits are crushed, milled, ground, and graded to produce long fibers of the material. Asbestos is distinguished by its crystalline structure: serpentine minerals have a sheet of layered structure (chrysotiles), while amphiboles have a chain-like crystal structure (amosites, crocidolites, tremolites, anthophyllites, actinolites).

“There is no safe level of exposure to asbestos.”

Asbestos gained widespread use in modern times because it was plentiful and cheap. The mineral is strong, resists chemical corrosion, and will not burn. It has been used as fireproofing material, insulator, acoustical plaster and decorative texture, and it has been added to building materials to enhance strength and slow deterioration.

HEALTH RISKS
With such extraordinary characteristics and multiple uses, why do regulators bother with asbestos? Because exposure to it poses significant health risks. Exposure to asbestos-containing materials has been shown to cause lung cancer, asbestosis, mesothelioma, other cancers, and pre-cancerous conditions such as pleural plaque in the chest cavity. Risk factors include early exposure during childhood and the nature of exposure (workers exposed to asbestos in the course of their occupation). Asbestos accumulates in the lungs, and the latency period for disease ranges from 15 to 40 years after exposure to the asbestos. Interestingly, research indicates that most of us have small amounts of asbestos fibers in our lungs from workplace and non-workplace exposures. Studies reveal that there is no “safe” level of exposure to asbestos. This is the reason why regulations categorize asbestos (surfacing materials, thermal system insulation, miscellaneous materials), address how asbestos is utilized, when it can remain in place, how it is assessed, and when and how it is to be removed.

REGULATORY FRAMEWORK
Key regulatory mandates for asbestos come through the Asbestos Hazard Emergency Response Act and the National Emission Standards for Hazardous Air Pollutants in addition to various agency publications (e.g., EPA Purple Book), state regulations and local codes. ASTM International also offers several standards including E 2356, Practice for Comprehensive Building Asbestos Surveys. None of these, however, addresses limited screens for asbestos performed for commercial real estate transactions.

“With no standard protocols, litigation and insurance settlements were on the rise.”

THE ASBESTOS SCREEN ARENA
Asbestos consulting and contracting services continue to be driven by a market concerned with health and safety issues and financial objectives. Environmental consultants, bankers, large retailers and developers throughout the United Stated schedule thousands of limited asbestos screens associated with commercial real estate transactions. Typically, a limited asbestos screen is performed in concert with a Phase I environmental site assessment, a service usually governed by the recently updated E 1527, Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. Developers, potential purchasers and lenders seek a quick and cursory assessment for ACMs rather than a comprehensive asbestos inspection (for pre-demolition and renovation, for example). Before the adoption of E 2308, litigation and insurance settlements revealed troubling misunderstandings prevalent in the industry — costly differences in opinion primarily related to terminology and scope:
• What is an asbestos survey versus an asbestos inspection?
• What makes an asbestos service comprehensive versus limited?
• For what purposes can a “10-sample assessment” for asbestos be performed?
• Who should determine the scope?
• With a limited number of samples, where should the samples be collected? And, what inferences can be made from the results?
• What type of analysis should be performed?
• How can consultants avoid giving clients a false sense of security when offering limited findings (short of including several pages of disclaimers)?

“E 2308 is a standard consistent with
marketplace objectives.”

These questions and more have increasingly concerned clients, consultants and insurance companies who wish to avoid costly disputes and potential litigation. ASTM stepped forward to address these issues by commencing development of what is now the E 2308 standard.

ASTM STEPS UP TO THE PLATE: HIGHLIGHTS
The ASTM Task Group for Asbestos Screens faced a tremendous undertaking. The first step was to gain a balanced task group of user and producer members to share perspectives and possible solutions. This cooperative effort would enable the final standard to offer a “common language” between producers and users. Several key issues addressed by the task group are highlighted below.

Title — The task group quickly determined that the industry needed a single title for these limited services, as users, providers and regulators alike used inconsistent titles for various asbestos services (e.g., asbestos survey, asbestos inspection, comprehensive asbestos survey, etc.). The title “limited asbestos screen” was chosen because it did not have any regulatory connotation.

Scope and objective — The task group worked under the auspices of the Subcommittee E50.02 on Real Estate Assessment and Management, a part of Committee E50 on Environmental Assessment, Risk Management and Corrective Action, and appropriately so. Services covered by this new standard are necessarily tied to the commercial real estate transaction market (i.e., acquisitions, sales, leases, financing) rather than, for example, comprehensive evaluations of asbestos for pre-demolition or pre-renovation purposes. Consistent with this market’s objectives (and the user feedback in the task group), observations, sample quantities, and related protocols are limited.

Reflecting the marketplace — Limited asbestos screens are ordered by the thousands by developers and lenders each year, and these are usually “add-ons” to a Phase I environmental site assessment. The task group put to paper what actually happens in the industry rather than writing an “upgraded, more stringent” version that would have exceeded the group’s ASTM mandate. This standard promotes a common language between users and providers. Both user and provider members of the task group believed that this standard would promote fewer misunderstandings as to scope and conclusions and, thus, reduce the likelihood of litigation over such issues.

Tied to transactions, not regulations — In order to ensure that users and producers did not confuse this document with any regulatory mandate, the task group avoided the use of “regulatory terminology” (such as “homogeneous”). For example, the group recognized that all inspectors use the homogeneous concept in comprehensive evaluations but such usage did not comport with limited observations and limited sampling. In polling the group, it was discovered that most providers did not observe an entire building or complex (due to time and cost constraints) for a limited evaluation. For example, only five or fewer units might be viewed at a multi-unit apartment complex. At that point, the task group pulled from other sources to incorporate the concept of “major building systems,” a concept most consistent with the limited asbestos screen’s purpose. Further, it offers a consistent way in which these services can be undertaken without implying that a comprehensive evaluation of any type was performed.

Exclusions and limitations — The task group wrote a list of excluded materials and systems it determined are usually excluded during a limited evaluation. To account for those instances when a user wishes for samples to be collected of, for example, exterior stucco, this item can be tacked on as an additional service. The task group wished to focus upon its objective: a limited protocol for a limited purpose and cost. For the limited scope, price and time committed to these services, review of ACM reports (rather than any and all documents related to the building) seemed most reasonable to the task group. Of course, more extensive reviews could be included as an additional service. Other exclusions and limitations may be reviewed by reading E 2308.

Accessibility — The accessibility definition reflects what the task group believed was consistent with standard industry practices for a limited evaluation. Accessing and sampling within crawl spaces and attics, for example, or destructive sampling is not commonly performed for the price/time constraints of this limited screen.

THE LONG AND SHORT OF IT
E 2308 reflects the state of the commercial real estate market in using limited evaluations of asbestos in buildings while meeting an industry-wide need for a common language and scope between users and providers. The standard guide for asbestos screens is just that: a guide with the necessary flexibility and diversity to address provider and user interests. E 2308 establishes a clear scope of work and expectations at the outset that reduces the likelihood for misunderstandings later — a real plus for the real estate market. The next step: Read the new standard, profit from its clear and useful presentation of scope and services, and “clear the air” for limited asbestos screens. //

 
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