ASBESTOS

What is Asbestos?

Asbestos is the name given to a group of fibrous minerals that occur naturally in the environment. Three main types exist: white asbestos (chrysotile), blue asbestos (crocidolite), and brown asbestos (amosite). White asbestos accounts for 95% of all commercially used asbestos. After mining, the mineral is separated into thin, durable fibers that can be spun into yarn or used to strengthen building materials, such as cement. Asbestos was originally used as insulation because of its remarkable resistance to heat and fire, but its use expanded widely due to its strength and durability. However, in the 1970s, reports emerged citing the harmful nature of asbestos, and its widespread use has come to a halt.

Why is Asbestos Dangerous?

Asbestos materials are classified as nonfriable or friable. In nonfriable form, the asbestos fibers are bound within another material, such as cement. However, friable asbestos is directly exposed and can readily be broken so that the asbestos fibers could be released into the air. Asbestos fibers are extremely harmful when inhaled into the lungs. When inhaled, some of the fibers are deposited in the lungs, remaining there for years or for life. Most people are exposed to small amounts of asbestos throughout their daily lives and do not develop health problems. However, increased exposure to airborne fibers leads to an increased risk of health problems. Asbestos fibers are a known carcinogen, which can cause lung cancer or mesothelioma, a cancer of the membrane surrounding the lung. Both cancers are fatal. The fibers may also cause a potentially deadly disease known as "asbestosis" in which the lungs become scarred with fibrous tissue. The symptoms of both cancers and asbestosis often do not arise until 20 years or later after the exposure to the asbestos. For more information on the dangers of asbestos, see http://www.atsdr.cdc.gov.

Which Homes are Asbestos Risks?

Since the 1970s, the federal government has acted to prevent the unnecessary use of asbestos. In 1989, the Environmental Protection Agency instituted the Asbestos Ban and Phase Out Rule, which banned asbestos-containing materials over a seven-year period. Since then, industries have created various substitutes to replace asbestos. However, most homes built before 1980 likely contain asbestos, which could be found in a variety of locations around the home, including, but certainly not limited to, floor tiles, textured paints, insulation, and door gaskets. "Testing for Asbestos," John A. Barron, Old House Journal (November 1997).

How Do You Identify Asbestos?

The only way for a nonprofessional to identify asbestos is to look for a label. Often, materials containing asbestos are labeled accordingly. Asbestos cannot be identified simply by its appearance. Any building product with a white or gray fibrous layer may contain asbestos. The only reliable way to identify asbestos is to have a professional analyze a sample using a technique called polarized light microscopy. This technique can identify the crystal structure of the fiber and make a positive identification of asbestos. Only a professional should take the sample from a home because even the slight movement of asbestos materials can release fibers into the air creating a hazard. For extended information on the identification of asbestos, see http://www.epa.gov/iaq/pubs/asbestos.html.

What Should You Do with Asbestos in Your Home?

If the asbestos in the home is in good condition and no threat exists of the fibers releasing into the air, the best thing to do is leave it alone. Attempting to move the asbestos would create much larger danger than the mere existence of it in the home. If the material is damaged in any way, a professional must correct the situation with one of three options: encapsulation, enclosure, or removal.

Encapsulation is the easiest and least expensive procedure. This method involves painting the asbestos material with a heavy-duty paint in order to seal the asbestos fibers and prevent their release into the air. This is an ideal procedure because it does not disturb the material in any way.

Enclosure is similarly effective but more expensive than encapsulation. This method involves placing a barrier between the asbestos material and the surrounding environment, such as a protective wrap around exposed pipe insulation. This method also has minimal disturbance of the material.

Removal is the final and most expensive option. It should always be the last option considered because it has the most potential to release fibers in the process. In fact, the National Institute of Building Sciences warned that asbestos removal might actually be counter-productive, leaving air levels of fibers higher than before removal (http://www.asbestos-institute.ca/buildings/sba.html). The Environmental Protection Agency states that removal should take place only if the material is extensively damaged and not repairable. The removal process is very complicated and must only be done by a professional (http://www.epa.gov/iaq/pubs/asbestos.html).

Asbestos Removal Laws

Illinois, Indiana, and Wisconsin all have laws regarding the removal of asbestos. However, each state excludes private residences from regulation. Illinois laws concerning asbestos removal apply to public and private schools and commercial and public buildings. 77 Ill Admin Code 855. A "commercial or public building," according to Illinois law, excludes detached single-family homes and residential apartment buildings with less than ten dwellings. 225 ILCS 207/15. Indiana and Wisconsin exclude from regulation residential buildings with less than four dwelling units. 326 Ind Admin Code 14-10-2.; Wis Admin Code NR 447.02. Although they are exempt from state regulation, homeowners are still advised when removing asbestos to follow the state regulations as guidelines to ensure their safety as well as the safety of their families. Homeowners should also make certain that they follow all local laws while removing asbestos.

Illinois

July 1, 1972, the State of Illinois, under Title II of the Illinois Environmental Protection Act, banned the use of asbestos for the purpose of fireproofing or insulating any building or building material. 415 ILCS 5/9. Since then, the legislature has passed many laws regulating asbestos. Most regard the certification procedure for asbestos removal contractors. The purpose of the Commercial and Public Building Asbestos Abatement Act was to provide for the licensing of persons who remove materials from commercial and public buildings within the state. 225 ILCS 207/10. The legislature was particularly concerned with asbestos levels in Illinois schools. In 1984, the legislature enacted the Asbestos Abatement Act to provide for the removal of asbestos materials within Illinois schools if the asbestos constituted a significant health hazard to students and teachers. 105 ILCS 105/1.

The Illinois Department of Health prescribed the laws governing the actual removal of asbestos materials in a set of rules entitled Asbestos Abatement for Public and Private Schools and Commercial and Public Buildings in Illinois. 77 Ill Admin Code 855.

  • Before removing asbestos, the work area must be cleaned and isolated.
  • All asbestos material must be wetted in order to reduce airborne fiber concentration during removal.
  • The material must be repeatedly wetted throughout the procedure.
  • Asbestos materials removed from a building must be carefully lowered to the ground. Dropping or throwing the materials would result in the unnecessary release of asbestos fibers into the air.
  • If materials are removed more than 50 feet above the ground, chutes must be constructed to carry the asbestos safely to ground level without releasing fibers.
  • Asbestos materials must be placed into labeled drums for disposal. These drums must be sealed when full.
  • After completely stripping the asbestos materials, the location of the removal must be thoroughly cleaned to remove all the residue.

The rules give a detailed explanation for the required cleanup procedure in section 855.465.

Indiana

The Indiana Code regulates asbestos by providing licensing requirements for asbestos removal contractors within the state. IC 13-17-6-1. Extensive training is required, and every year the state reviews the performance of each asbestos contractor. IC 13-17-6-7. The Indiana Code also prescribes the punishments for not conforming to the state standards for asbestos removal. IC 13-17-6-11.

The Indiana Administrative Code gives the Emission Standards for Hazardous Air Pollutants in the state. 326 Ind Admin Code 14. The Code specifically provides a very complex and detailed set of rules for asbestos removal from any building in the state excluding residential buildings with fewer than four dwellings. 326 Ind Admin Code 14-10-2. The standards are very similar to those under Illinois law:

  • Before stripping the asbestos, the contractor must adequately wet the materials to prevent the escape of fibers into the air and ensure that the materials remain saturated throughout the entire process.
  • After the materials are stripped, they must be carefully lowered to the ground in a manner that would not disturb the material.
  • If the materials are removed from a height greater than 50 feet, the material must be transported to the ground via leak-tight chutes.
  • When stripping, the contractors should remove the asbestos in the largest sections possible.
  • Unnecessary cutting or tearing of asbestos results in the unnecessary release of fibers into the air. Upon completion of the removal, the area must be cleaned with a wet mop or a vacuum equipped with state approved filters.
  • An Indiana licensed inspector must then make a final inspection of the premises before the public may access the building.

Wisconsin

The Wisconsin statute regulating asbestos removal procedures, Wis Admin Code NR 442.08, is identical to the Indiana statute. Wisconsin contractors must follow the same requirements as their counterparts in Indiana.

The state regulations are very detailed to ensure the safety of everyone involved. Although homeowners and professionals who remove asbestos from private homes are not legally bound, these regulations serve as guidelines for the safest method to remove asbestos from the home. The homeowner would benefit from reading these regulations in their entirety before embarking on such a project.

Real Estate Transfer Disclosure

Although homeowners are not required to treat or remove asbestos in their homes, they may be required to disclose its presence when selling their house. Under Illinois' Residential Real Property Disclosure Act, the seller of residential property must complete a disclosure form regarding the status of the property. 765 ILCS 77/20. Question 15 requires the owner to disclose whether he or she is aware of "unsafe concentrations of or unsafe conditions relating to asbestos" on the premises. Under the Act, if the seller fails to disclose, the buyer has the right to terminate the contract. 765 ILCS 77/55. The seller is then liable to the buyer for all damages incurred. Id. The Illinois disclosure form requires the owner to disclose the presence of asbestos in the home only if it is "unsafe." As noted earlier, the mere presence of asbestos does not necessarily create unsafe conditions. However, Wisconsin law requires the seller to disclose the "presence of asbestos or asbestos-containing materials on the premises." Wis Stat § 709.03. The Wisconsin statute does not require the asbestos to be unsafe for purposes of disclosure. Its mere existence is enough. The Wisconsin law allows the buyer to rescind the contract upon learning of a misrepresentation on the disclosure form. Wis Stat § 709.05. Indiana law delegates authority to the Indiana real estate commission to create a disclosure form. Ind Code 24-4.6-2-7. The commission developed the Seller's Real Estate Sales Disclosure form, which, like the Wisconsin form, requires sellers to disclose the existence of any asbestos insulation in the home. Ind State Form 46234.

Litigation over Asbestos in Real Estate Transactions

The real estate disclosure forms required by Illinois, Indiana, and Wisconsin apply only to the sale of residential properties. Therefore, in the following two cases, the sellers had no duty to disclose the existence of asbestos to the purchasers. However, they cannot misrepresent the status of the property and deliberately conceal the asbestos from the purchaser.

Elkhart Community Schools Corp v Mills, 546 NE2d 854 (Ind App 1989). In August 1984, William Mills bought a school building from the Elkhart Community School Corporation (Elkhart). Id at 855. Mills later discovered asbestos in the building and sued for breach of contract because Elkhart failed to inform him of the asbestos. Elkhart moved for summary judgment and submitted the deposition of Richard Lantz. Lantz was the Director of Building Services for the city. He testified that he inspected the building with Mills and informed him that the building contained asbestos. Mills made no effort to refute Lantz's testimony but maintained his misrepresentation claim against Elkhart. The trial court denied the motion for summary judgment, however the appellate court reversed. Lantz's testimony showed that he gave Mills notice of the asbestos before he purchased the building from Elkhart. The court held that the purchaser of real property cannot attack the validity of a contract on grounds of misrepresentation if the purchaser had notice of the problem. Therefore, Elkhart defeated Mills' claim of misrepresentation.

Heider v Leewards Creative Crafts, Inc, 245 Ill App 3d 258, 613 NE2d 805, 184 Ill Dec 488 (2nd D 1993). In this Illinois case, the buyer of a warehouse successfully raised a fraudulent misrepresentation claim against the seller after the seller deliberately did not disclose the existence of asbestos in the building. In 1984, Leewards Creative Crafts, Inc. (Leewards) offered a warehouse for sale. Id at 261, 809, 492. Heider, along with his real estate agent, Mura, toured the building with Leewards' agents. Around some columns, Mura noticed some materials that appeared to be in a deteriorated condition. Upon inquiry, Leewards' agents told Mura that the material was "not a problem." Id at 262, 809, 492. In August 1985, General Mills, Inc. sold Leewards to Munford, Inc. Munford's vice president, Jay Rubel, took over the sale of the building. He learned that the material around the columns was asbestos, and he received a copy of a 1980 asbestos report conducted by General Mills, Inc. Heider wished to purchase the property and signed a contract of sale in December 1985. Before the final closing, Heider asked if there was anything about the condition of the building that he should know before completing the purchase. On the advice of company executives and in-house counsel, Rubel did not inform Heider about the asbestos. In 1988, Heider discovered the material was asbestos, and he contacted Rubel to ask about it. Id at 263, 809, 492. Rubel admitted that he knew there was asbestos all along. Heider then brought a fraudulent misrepresentation claim against Leewards.

Five elements are required for a successful fraudulent misrepresentation claim: (1) a false statement of material fact; (2) knowledge it is false by the party stating it; (3) intent to induce the other party to act; (4) an action in reliance by the other party; and (5) damage to the other party from the reliance. Id at 265, 811, 494. The court found that all five elements existed. Leewards' agents made a false statement by asserting that the material around the columns was "not a problem." Although the asbestos may not have been an immediate problem, Leewards knew that the future release of fibers into the air could be a serious problem. The asbestos report conducted by General Mills, Inc. warned of the future problem and recommended the enclosure of the asbestos. The fact was material because Heider would not have purchased the property if he knew it contained asbestos. Because he would not have purchased otherwise, the court concluded that Heider relied on the statements by Leewards. The court also concluded that Heider sufficiently showed that Leewards intended to induce him to purchase the warehouse. Leewards was aware that Heider was concerned about the material around the columns. The court concluded that Leewards' purpose of concealing the presence of asbestos was to deceive Heider and encourage him to purchase the warehouse. Id at 268, 813, 496.

Relying on Smith v Ethell, 144 Ill App 3d, 494 NE2d 864, 98 Ill Dec 742 (4th D 1986), Leewards contended in its defense that Heider's misrepresentation claim could not stand because Heider had notice of a possible defect when he saw the damaged material. Heider, 245 Ill App 3d at 268, 613 NE2d at 813, 184 Ill Dec at 496. In Ethell, purchasers of a tavern noticed that the ceiling was sagging and had water stains. The vendor told the purchasers that the roof was in good condition. After the sale, the purchasers sued to rescind the contract after discovering holes in the roof. The court held that the plaintiffs had notice of a potential defect and should not have relied on the vendor's statements. The court in Heider found that case distinguishable because it involved a patent defect. The existence of asbestos is a latent defect. Heider noticed the deteriorated material, but asbestos cannot be detected by the naked eye, especially by a non-professional. It was not unreasonable for Heider to rely on Leewards' statements that the material was not a problem.

Because of the requirement of the real estate disclosure form, very few cases over asbestos have arisen between buyers and sellers in residential real estate sales. In Witt v Coldwell Banker First United Realty, Inc, 195 Wis 2d 88, 537 NW2d 150 (Wis App 1995), an unpublished decision, a Wisconsin court reaffirmed the duty to disclose the existence of asbestos on the state-required Seller's Real Estate Condition Report. The court held that although there is no duty for sellers to remove asbestos from the home, there is a duty to inspect the home and disclose the existence of asbestos.

Conclusion

Asbestos can pose a threat to its surrounding environment by releasing harmful fibers into the air. It cannot be detected by the naked eye and can be positively identified only by a professional. Undamaged asbestos materials do not pose a serious harm and should generally be left alone. If damaged asbestos is discovered, there are several options, of which removal should be the last considered. If the asbestos is to be removed, states have detailed regulations regarding the removal procedure to ensure the safety of workers and the environment.

Residential homes are exempt from these regulations in Illinois, Wisconsin, and Indiana, but it is recommended that homeowners use the state regulations as guidelines to protect themselves and their families. No laws exist requiring homeowners to treat asbestos in their homes. However, owners may have to disclose its existence when selling their home. Illinois requires owners to disclose the presence of asbestos if its condition creates an unsafe environment. Indiana and Wisconsin require owners to disclose the existence of asbestos in the residence, whatever its condition.

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