How To Know The Law On Asbestos

Transcription

1 How Not To Get Sued How Not to Get Sued For IAQ Issues Presented by Jeffrey A. Thaler, Esq. Katherine Joyce, Esq. June 22, 2011 For Indoor Air Quality What makes people sick? Asbestos Radon Combustion By Products Lead VOCs Environmental Tobacco Smoke Mold and Biological Contaminants How do you know if it is your fault? No comprehensive regulatory regime for IAQ No clear legal standards to apply across the spectrum Piecemeal lby profession and by hazard What you need to know Do you have a duty to investigate Do you have a duty to disclose Do you have a standard of care to satisfy which h involves remediation i or other action What are the penalties/consequences How can you protect yourself Where to find answers Statutes and regulations OSHA EPA DEP Licensure requirements Regulatory Guidelines E.g. DEP Vapor Intrusion Guidelines Best Practices ASHRAE industry specific best practices 1

2 OSHA IAQ Regulations? RFI on IAQ issues published in 1991 Proposed Rule Issued in 1992 Proposed Rule Withdrawn in 2001 Regulates piecemeal by hazard EPA: IAQ Regulations? EPA does not regulate indoor air Regulates Piecemeal by hazard DEP: IAQ Regulations? DEP does not regulate indoor air CDC is somewhat more involved in Maine Regulate IAQ piecemeal by hazard Common Law: More questions, or answers? What are your duties? What constitutes a reasonable standard of care Warranty of Habitability Asbestos Overview Asbestos basics Duty to Investigate Duty to Disclose Requirements of Standard of Care Consequences for violation Protection against liability Sources of Asbestos Building materials, 1930s 1990s Pipe and furnace insulation materials Shingles Millboard Textured paints and other coating materials Floor tiles Automobiles Brakes Clutches 2

3 Lung cancer Asbestos: Health Impacts Mesothelioma (a cancer of the chest and abdominal linings), i and Asbestos: Duty to Investigate? Home seller: No Landlord: No, unless renovate, remove, or demolish Business owner/operator: Yes Asbestosis (irreversible lung scarring that can be fatal). Asbestos: Duty to Disclose? Home seller: Disclose Landlord: No, unless renovate, remove, or demolish Business owner/operator: No, unless renovate, remove, or demolish Asbestos under OSHA Permissible Exposure Limit Exposure Monitoring Methods of Compliance Respirators Regulated Areas Labels Recordkeeping Protective Clothing Asbestos under EPA: Schools Maine DEP delegated authority to conduct periodic Asbestos Hazard Emergency Response Act (AHERA) compliance inspections in Maine's non profit school systems. Provide assistance for compliance with AHERA requirements. Asbestos under DEP No requirement to remove or repair (except in schools) Once decision to remove or repair is made, Chapter 425 Asbestos Management Rules apply 3

4 Asbestos: General Standard of Care General duty to disclose residential hazards Removal or repair of ACM only required in schools Inspection Prior to demo Prior to transfer of property (optional under Phase I ESA ASTM standard) Certified Abatement Professionals: Standard of Care Certification/Professional Obligations Chapter 425 of DEP regulations Must apply for certification as asbestos professional Notification of DEP Requirement Best Practices Liable as a professional Asbestos Consequences Violations Failure to disclose if you have knowledge Failure to comply with requirements for abatement professionals Penalties/Consequences Asbestos: Protection from Liability Compliance Standard of Care Contracts Insurance Radon Overview Radon basics Duty to Investigate Duty to Disclose Requirements of Standard of Care Consequences for violation Protection against liability Radon Basics An emerging area of liability Primary concerns Workers exposure Sale or weatherization of a building Maine coming attractions: Duty of landlords to test for radon 4

5 Sources of Radon Radon is created by the natural, radioactive breakdown of uranium in rock, soil and water. Typically highest h in basements, sealed buildings. Radon: Health Impacts Radioactive gas that causes cancer Second leading cause of lung cancer in USA Second only to cigarette smoke In September 2009, the World Health Organization released a comprehensive global initiative on radon that recommended a reference level of 100 Bq/m 3 for radon Radon: Duty to Investigate Radon: Duty to Disclose Home seller Landlord Business owner/operator Home seller Landlord Business owner/operator Radon: Standard of Care Radon regulations Certification/Professional Obligations Notification Requirements New Maine Radon Law An Act To Reduce Lung Cancer Rates in Maine requires radon testing in all residential rental properties by the year The landlord/lessor of residential rental property must provide written notice about radon and results of required radon testing to each tenant or potential tenant. DHHS to develop a disclosure form for landlords or lessors to give to each tenant, which h informs the tenant about radon and its risks. ik Tenant must sign acknowledgment that they received disclosure. When radon test results show 4 pci/l or higher radon levels, the landlord or lessor must mitigate within six months, or within six months of obtaining local permits (if required) After mitigation has been successful, the landlord or lessor must provide notice of this to tenants. 5

6 Weatherization Concerns Weatherization does not generally add Radon to a building, but can increase levels due to decreased air flow. The EPA has created draft Healthy Indoor Environment Protocols for Home Energy Upgrades, which are currently voluntary. Recommends pre weatherization radon testing. Very good resource for all IAQ concerns. Virginia Case Colorado Case New Jersey Case Radon Consequences Radon: Protection from Liability Disclosures Compliance Contracts Insurance Combustion By Products Overview Combustion By Product basics Duty to Investigate? Duty to Disclose? Requirements of Standard of Care Consequences for violation Protection against liability Combustion By Products Basics Incomplete combustion results in emissions Carbon Monoxide Nitrogen dioxide Sulfur Dioxide Particulate Matter Sources of Indoor Combustion By Products Portable Generators Fireplaces Furnaces HotWater Heaters Gas Ranges/Ovens Implicates Landlords/Building Owners Product Manufacturers Appliance Repairmen Employers 6

7 Combustion By Product Health Impacts Not all health impacts are clear Asthma Respiratory Problems Cancer Poisoning Death Combustion By Product: Duty to Investigate CO Monitors: Maine law mandates alarms in rental units and in new construction. Up to a $500 per violation. OSHA mandates a maximum CO limit, and requires employers to test if necessary to ensure that workers are not over exposed Combustion By Product: Duty to Disclose In Maine, a Seller of real property must disclose the presence of Hazardous Materials which may include combustion by products OSHA requirements limiting exposure Combustion By Products: Standard of Care Higher than regulatory compliance? The National Institute for Occupational Safety and Health (NIOSH) has established a recommended exposure limit (REL) for carbon monoxide of 35 ppm (40 mg/m(3)) as an 8 hour TWA and 200ppm (229 mg/m(3)) as a ceiling The American Conference of Governmental Industrial Hygienists (ACGIH) has assigned carbon monoxide a threshold limit value (TLV) of 25 ppm (29 mg/m(3)) as a TWA for a normal 8 hour workday and a 40 hour workweek Combustion By Products: Consequences Regulatory Penalties Maine Cases regarding CO Poisoning Bernier v. Moxie Gore (ME 2006) Renter sued landlord on violation of Implied Warranty of Habitability claim. Combustion By Products: Protection from Liability Disclosure/Compliance Contract Insurance Thorn Gas Appliance v. Saunier (ME 1992) Water heater improperly installed and installer, manufacturer, and distributor were sued. 7

8 Lead Overview Lead basics Duty to Investigate? Duty to Disclose? Requirements of Standard of Care Consequences for violation Protection against liability Lead: Basics Lead based paint used until 1978 Highly regulated for real estate agents and contractors/remediators Primary source of airborne lead is paint Lead: Health Impacts High levels (at or above 80 micrograms per deciliter of blood): convulsions, coma, and even death. Lower levels: central nervous system, kidney, and blood cells. Blood leadlevels levels as low as10 micrograms per deciliter can impair mental and physical development. Fetuses and young children particularly susceptible delays in physical and mental development, lower IQ levels, shortened attention spans, behavioral problems. LEAD The Year 1978 Federal Statutory regulations focus on Target Properties (pre 1978 buildings). Important federal bodies: HUD EPA OSHA There is funding available, both state and federal, for lead abatement. Lead: Duty to Investigate Affirmative duty on the part of the employer to initially determine if any employee will be exposed to actionable level of lead. If there is lead, then many more duties. Employer Take Away: If your employees are working in a pre 1978 building, then you must investigate. Lead: Duty to Disclose Residential: (Target Property): sellor, lessor, or agent must disclose to purchaser, lessee, or agent presence of any known lead based paint. EPA and DEP must comply with both Environmental Professionals: Workplace: (see next slide) 8

9 Lead: Standard of Care Investigation/Disclosure Renovations In Maine governed by DEP Rule Chapter 424 Public Housing: HUD funded dhousing has even stricter requirements for renovations. Lead: Consequences Fine up to $11,000 for each violation of EPA s rules Joint and several civil liability in treble damages However, noncompliance does NOT affect validity of real estate contract. Failure to comply with DEP disclosure requirements in addition to EPA s may result in a civil fine of up to $500 In April 2011 a South Portland property management company paid EPA $3,542 and agreed to perform an abatement project costing roughly $30,000 to settle EPA s claims that it violated the disclosure requirements by failing to inform tenants that one of its buildings contained lead paint in a common area. Lead: Consequences cont d Vidiksis v. EPA (11 th Cir. 2010) Young v. Libby (ME 1999) Lead: Protection from Liability Compliance Contract Insurance Secretary of Labor v. Manganas Painting (OSHA 2007) Cannot contract around these basic duties. VOCs Overview VOC basics Duty to Investigate? Duty to Disclose? Requirements of Standard of Care Consequences for violation Protection against liability VOCs: Basics The key to prevention is ventilation VOCs are everywhere, and in almost everything Federal lgovernment has just listed formaldehyde, a VOC, as a carcinogen 9

10 VOCs: Where are they found? EVERYWHERE Paints/lacquers Paint Strippers Building materials Furniture Copiers/Printers Permanent Markers 2 5 times higher indoors than out VOC: Examples Methylene Chloride: our body converts to CO from paint strippers, aerosol paint Benzene: Known carcinogen from smoking, painting i auto emissions i in attached garages Perchloroethylene: Carcinogen from your own dry cleaning VOCs: Health Impacts Eye, nose, and throat irritation headaches, loss of coordination, nausea damage to liver, kidney, and central nervous system Cancer VOCs: Obligations Generally no standards for VOCs in non industrial settings. EPA regulates use of VOCs in certain products, like paint. HUD has established a level of.4 ppm for formaldehyde in mobile homes. OSHA regulates formaldehyde as a carcinogen. Permissible Exposure Level (PEL) of.75 ppm, action level of 0.5 ppm. Guidelines and Standards EPA Indoor airplus Construction Specifications 4.7, 6.1, 6.2 and 6.3 DEP Vapor Intrusion Guidelines ASHRAE Standard d Maine Law If installing formaldehyde insulation then must give notice to the home owner or lessee. ddi i l di l f l f f d Additional disclosure for sale of manufactured homes. 10

11 FEMA Trailers VOCs: Consequences VOCs: Protection from Liability Compliance Contracts Insurance Sec. of Labor v. G &C (OSHA 1996) Environmental Tobacco Smoke: Maine Overview 1985: Workplace Smoking Act 1993: Public Places Smoking Law 1999: No smoking in restaurants 2004: No smoking in bars 2009: No smoking in outdoor eating areas or within 20 feet of Workplace 2010: No smoking in cars with children under 16 (Bangor ordinance banned for those under 18 in 2007) 2011 Landlord Disclosure required ETS Federal Regulation Employees are possibly protected by OSHA ADA EPA has guidelines. ETS: Obligations Under Maine law: employers must require employees to smoke outdoors employers must ensure that ETS does not circulate into enclosed areas ETS: Consequences For violating Maine s workplace smoking law the employer can face fines ranging from $100 to $1,

12 Mold and Biological Pollutants: Overview Biological pollutants basics Duty to Investigate Duty to Disclose Requirements of Standard of Care Consequences for violation Protection against liability Mold and Biological Pollutants: Where are they found? Mold dust mites pet dander (skin flakes), Droppings/body partsof insectsandrodents viruses and bacteria Biological contaminants found with food/moisture cooling coils, humidifiers, condensate pans, unvented bathrooms Draperies, bedding, carpet Biological Pollutants: Health Impacts Primarily allergies and asthma Molds and mildews also release toxins Children, elderly people and those with pre existing i respiratory issues are particularly l sensitive to biological pollutants Biological Pollutants: Obligations No federal standards for school/public places Currently, there are no EPA regulations or standards for airborne mold contaminants. California, Texas, New Jersey, Indiana, and Maryland have passed laws aimed at developing guidelines and regulations for mold in indoor air. No OSHA regulations Biological Pollutants: Best Practices ASHRAE Standard EPA Indoor airplus Construction Specifications i 1.1, 1.2 and 1.6. Air Conditioning Contractors of America (ACCA) Quality Installation (QI) Specification Biological Pollutants: Liability Searles v. Fleetwood Homes (Me. 2005) Munson v. Bangor Housing (Me. Super. 2004) Centex Rooney Construction Co. v. Martin County, (Fla. Dist. Ct. App. 4th Dist. 1997) 12

13 Telescoping Back Common themes from case law Common themes from statutory law Protecting yourself Satisfy standard of care Contract Insurance Insurance Pollution Exclusion Clauses An attempt by insurance companies to limit IAQ liability. Read your policy carefully. An amorphous area. Insurance Are also new products available. Indoor Air Quality and Mold Liability Insurance Policy Sample Insurance IAQ Exclusion INDOOR AIR QUALITY EXCLUSION This insurance does not apply to: 1. Bodily injury, property damage, personal injury or advertising injury arising out of, resulting from, caused or contributed to by mold, mildew and/or other conditions affecting indoor air quality; or 2. The cost of abatement, mitigation, removal or disposal or mold, mildew and/or other conditions affecting indoor air quality; or This exclusion also includes: a) Any supervision, instructions, recommendations, warnings, or advice given b) Any obligation to share damages with or repay someone else who must pay Insurance Example of Expanded IAQ Coverage This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM Coverage under this endorsement only applies to scheduled green building(s). SECTION 1 COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions, f. Pollution (1)(a), is amended to include the following: (iv.) Bodily injury if sustainedwithin a green building andcaused byany substanceor odor produced by or originating from HVAC equipment or any other equipment or product whose purpose is indoor climate, air quality or water quality control; For purposes of the coverage proposed herein, SECTION V DEFINITIONS is amended to add: Green building is a building which it the time of loss complies with green building standards by an industry recognized establishment or authority, and is scheduled and on file as such with us. All other terms, conditions and exclusions of this property shall remain the same. 13

14 Important Cases Call v. Prudential (settled in 1990) DuPage County Courthouse (1994) Polk County Courthouse (1995) EPA Headquarters (2000) Things You Can Do Regular training and continuing education in relevant regulatory, scientific, and case law developments. Detailed documentation and recordkeeping practices. Adequate insurance coverage. Contractual indemnity clauses. Contractual provisions limiting liability to the scope of work performed. Contractual provisions limiting the extent of liability for negligence. Create a Limited Liability Company to Protect Against Liability Homework Sign up for newsletters, mailing lists, magazines, etc. to keep you up to date are fast changing laws and regulations. Insurance Hire a lawyer. QUESTIONS, PROBLEMS? LET US KNOW... Jeffrey A. Thaler, Esq., Jthaler@bernsteinshur.com Katherine A. Joyce, Esq., Kjoyce@bernsteinshur.com Bernstein Shur 100 Middle Street Portland, Maine Beware of Darkness (and Ignorance) 14