Asbestos Still Haunts Developers

Commercial real estate developers generally know they need to obtain a Phase I Environmental Site Assessment in order to qualify for certain liability protections under the 1980 law known as CERCLA, and that the Phase I looks for hazardous substances, as well as petroleum products. What they may not know is that the presence or absence of asbestos typically is not investigated in a Phase I, because CERCLA exempts asbestos-containing materials (ACMs) as “building materials” or “naturally occurring substance” (as opposed to something that was leaked, dumped, or stored). Writing on the Environment, Safety & Health blog from law firm Squire Patton Boggs, attorney Gary Pasheilich explains that additional survey of a prospective property may be needed, in particular when invasive renovation is being contemplated. “All it takes,” he warns, “is for a neighbor to complain to the local air agency regarding dust from the construction site to trigger an investigation that leads to costly enforcement, which may be brought against the property owner, the contractor or both.”