Environmental Law Update provides information on developments in environmental law as it applies to property, probate and trust matters. The editors of Probate & Property welcome information and suggestions from readers.

Old News, New News

Although it is important to keep abreast of fast-breaking environmental developments, such as brownfields, a lawyer also must ensure that clients are complying with existing laws and regulations that may have disappeared from the front pages of newsletters but still affect real estate transactions. This column focuses on regulations covering lead based paint and asbestos.

EPA/HUD Lead Paint Regulations

Title X of the Housing and Com-munity Development Act, 42 U.S.C. 4851-56, enacted in 1992, addresses lead based paint (LBP) hazards in residential buildings built before 1978. EPA and HUD promulgated regulations on March 6, 1996 but announced that, until September 7, 1997, they would pursue only "egregious violations" placing the public at risk. Now that this date has passed, the agencies may be inclined to step up their enforcement efforts. Title X requires that all residential home buyers and tenants be warned generally about the dangers of lead paint and specifically regarding the lead paint in their houses and apartments. Accordingly, the regulations compel all sellers and landlords of defined "target housing" to notify buyers or tenants of LBP hazards. The regulations do not compel lead paint abatement or testing. They apply to sellers of pre-1978 single-family homes as well as to landlords of large, multi-family buildings.

To comply with Title X, sellers and landlords of pre-1978 housing must:

  • disclose LBP hazards of which they have actual knowledge in a residence;
  • provide buyers and tenants with the EPA pamphlet, Protect Your Family from Lead in Your Home;
  • incorporate in the purchase and sale contract or lease a "Lead Warning Statement" that includes certain statutorily mandated language and describes all of the lead information conveyed to the buyer or tenant, who must affirm its receipt; and
  • retain a copy of the warning statement for three years from the date of closing or the beginning of the lease term. Sellers and landlords can be exempt from Title X requirements if they meet the regulations' provisions for certifying their pre-1978 residential properties as "lead-free." OSHA Asbestos Regulations The Occupational Safety and Health Administration (OSHA) promulgated regulations to protect workers handling asbestos-containing materials (ACM) on August 10, 1994. Generally, the regulations apply to all buildings built before 1981 and put obligations on "building owners," a term that includes title owners, landlords, property managers and some tenants. The regulations cover the demolition, removal, alteration, maintenance, transportation and storage of either ACM or materials that OSHA presumes to contain asbestos (PACM). ACM is defined as any material containing more than 1% asbestos by weight. PACM includes thermal insulation, troweled-on or sprayed- on surfacing materials and vinyl flooring in pre-1981 buildings.

    A building owner can prove that its building is asbestos-free. Without such proof, owners must ensure that workers are not exposed to asbestos beyond the permissible limit. Different work practices apply to different classes of workers, depending on the nature and intensity of potential asbestos exposure. Like the EPA/HUD lead paint regulations, the asbestos regulations require owners to notify parties of the presence of ACM or PACM in pre-1981 buildings. Signs must be posted in ACM/PACM areas warning of asbestos dangers and advising safe work practices. Owners must maintain records of all information regarding asbestos in their buildings. When a building is sold, leased or otherwise transferred, the transferee must receive all records detailing the presence of ACM or PACM. The OSHA asbestos regulations are not a model of regulatory clarity. Still, lawyers who represent owners of pre-1981 buildings should be aware of their requirements.

    Environmental Law Update
    Editor: James B. Witkin, Linowes and Blocher, 1010 Wayne Ave., Silver spring, MD 20910.



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