Asbestos and 120(h) Transfers

MEMORANDUM

SUBJECT:
Asbestos and 120(h) Transfers

FROM:
Kathleen H. Johnson

TO:
The MAC ATTACC (Attorneys Targeted to Accelerating Cleanup and Closure)

Issue Presented

How does the presence of asbestos on closing bases affect the United States' ability to transfer under §120(h)(4) and §120(h)(3).

Short Answer

Asbestos is a hazardous substance under CERCLA. However, if the asbestos is intact and in normal use, the presence of asbestos on a parcel will not disqualify the parcel from transfer under §120(h)(4).

Discussion

Only property where no hazardous substances and no petroleum products or their derivatives were stored for one year or more, known to have been released or disposed is eligible for transfer under §120(h)(4). Firstly, in order to determine whether a parcel containing asbestos can be transferred, it first, must be determined whether, and in what circumstances, asbestos is considered to be a CERCLA hazardous substance. Secondly, it must be determined on a case by case basis whether there has been storage, release or disposal.

The regulations governing transfers under §120(h) define hazardous substances as the substances defined under CERCLA 101(14) and that appear at 40 CFR 302.4. [40 CFR §373.4] The CERCLA hazardous substance definition is itself a compilation of substances regulated under other environmental statutes including the Clean Water Act, RCRA and the Clean Air Act. The NCP §302.4 provides a list in tabular form of all hazardous substances and the regulatory statutes from which they are derived.

Asbestos is listed in §302.4 as regulated pursuant to the Clean Water Act and the Clean Air Act. Under the Clean Water Act §307(a), EPA identified 126 compounds as toxic pollutants, including asbestos. Under the Clean Air Act Section 112 and 40 CFR §61.01, asbestos is designated as a hazardous air pollutant.¹ Although not every form and use of asbestos is regulated under the Clean Water Act or Clean Air Act, the designation of asbestos as a pollutant is not dependent on its form or use.² Therefore, all forms of asbestos would be defined as a hazardous substance.

The next question for resolution is whether the asbestos was stored for one year or more. CERCLA does not provide a definition of storage. However, the NCP at §373.4 does define storage as "the holding of hazardous substances for a temporary period, at the end of which the hazardous substance is either used, neutralized, disposed of, or stored elsewhere." Although this regulation expressly defines storage for purposes of §120(h)(1-3), it could also be used as the storage definition for purposes of §120(h)(4).³ This definition clearly distinguishes "storage" as an activity different from "use" of the substance. Therefore, if asbestos is currently being used, as in intact structures, no storage would be occurring.

Next it must be determined if the asbestos has been released Release is defined in CERCLA §101(22) as:

any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substances or pollutant or contaminant)...

EPA's longstanding interpretation of the term "release into the environment" is that a release that remains entirely contained within a building is not a release into the environment. OSWER Dir.9360-3-12. Therefore, if asbestos is released in such a way that is not entirely contained within a building, the parcel would not be available for transfer pursuant to §120(h)(4) parcel via §120(h)(3). This potential should conflict be clarified.

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Notes

1. 40 CFR §61.01 lists substances that have been designated pursuant to CAA 112. That listing simply includes "asbestos" and references 36 FR 5931, Mar 31, 1971. That reference similarly lists "asbestos" without further definition. For purposes of NESHAPS asbestos is defined as asbestiform varieties of serpentinite (chrysotile), riebeckite (crocidolite), cummingtonite grunerite, anthophyllite, and actinolite-tremolite. Return to Text

2. This is in contrast to materials which are hazardous substances because they are RCRA hazardous waste. Generally under RCRA, if a substance falls within the definition of hazardous waste, it is regulated from cradle to grave. Return to Text

3. I don't think this application of the definition in the NCP to 120(h) (4) affects our determination that "no means no". The "no means no" debate centered on the threshold levels built in the regulations in the "applicability" section of §373.2. The definitions at §373.4 could be used more generally. Return to Text