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The substances that are (or are perceived as) major sources of environmental liability, litigation, and regulatory paperwork have slowly changed over the years. DDT and polychlorinated biphenyls (PCBs) are two substances that were once notorious, but due to long-standing federal bans, they are fading as sources of environmental concern. Unfortunately, a large number of other substances have not been addressed as effectively and still remain major threats, while additional substances have since been recognized as environmental concerns. The substances that currently merit the closest watch are the following: MTBE Reformulated gasoline was called for in the Clean Air Act in order to provide reductions in the emissions of air pollutants from automobiles in areas of the country with air quality problems, including Philadelphia. Methyl tertiary butyl ether, more commonly known as MTBE, is one of the fuel oxygenates added to gasoline in order to increase its oxygen content, which enhances combustion and helps to improve air quality by reducing harmful air pollutants such as carbon monoxide. MTBE is the most popular form of fuel oxygenate and it is found in more than 85 percent of reformulated gasoline. Unfortunately, although MTBE helps reduce air pollution, it is extremely water-soluble and it ironically has contributed to the contamination of groundwater supplies around the nation. A commissioned report by the EPA has estimated that five to 10 percent of drinking water supplies in areas using reformulated gas show at least a detectable level of MTBE. The primary source for this contamination appears to be leaking underground storage tanks at gasoline stations, both from old tank systems that have not been adequately upgraded and from the inadequate installation, maintenance and operation of newer systems. The health effects of MTBE are unclear, but it is believed to be a potential human carcinogen at high concentrations. MTBE can also render water undrinkable by fouling its taste and odor, even at low concentrations. Complicating the problem, MTBE is extremely slow to biodegrade. The EPA has not established a national standard for MTBE, but it has issued a Drinking Water Advisory that states that concentrations of MTBE in the range of 20 to 40 parts per billion (ppb) should not affect water taste or odor. But many states, including Pennsylvania, have set standards, and a number of those states are also working to ban the sale and distribution of MTBE. The Bush administration continues to back MTBE, however, and its last energy bill contained a “safe harbor” provision providing liability protection for MTBE producers — the inclusion of which is blamed for the administration’s failure to achieve passage of that bill, as municipalities and water suppliers fought vigorously to retain their rights to sue refiners for MTBE contamination. PERCHLORATE The vast majority of the perchlorate manufactured in the United States was and is used as the primary ingredient of solid rocket propellant, both for military armaments and for the NASA space shuttle, although it is also used in the production of a wide variety of other products including fireworks and air bag actuators. Unfortunately, like MTBE, perchlorate is very water-soluble and does not readily biodegrade. Perchlorate, which is both naturally occurring and man-made, has been detected in the groundwater underneath numerous current and former military bases and armament facilities. To date, there have been no major Pennsylvania perchlorate contamination sites and the Pennsylvania Department of Environmental Protection has yet to issue any soil or water standards. Perchlorate has, however, been found in the soil and groundwater in over 30 states, and high levels of perchlorate have been detected in lettuce and milk produced and sold in California. While perchlorate has not yet been subjected to rigorous health studies, initial studies suggest that it can interfere with the normal operation of the thyroid gland. The EPA has been working to determine the health risks of exposure to perchlorate in drinking water, but it has yet to issue any findings and it has been sued by citizen’s groups who accuse it of stonewalling on the issue. While the EPA has also not yet regulated perchlorate, it has set a recommended safe dose level of one ppb for drinking water. California has set an action level of six ppb, and it and other states are currently working on setting regulatory standards for the substance. ASBESTOS AND SILICA Asbestos, a naturally occurring mineral, was once commonly used in building materials and brake linings due to its properties as a strong, corrosive resistant, inflammable insulator. Due to serious health risks associated with asbestos exposure, including asbestosis, mesothelioma and an increased chance of lung cancer, the EPA banned most uses approximately twenty years ago. Asbestos is an environmental substance that has been the subject of extremely extensive litigation, with the thousands of claims made over the past ten years having effectively put the producers and most of the main suppliers of asbestos products in or near bankruptcy. The number of asbestos suits filed continues unabated, leaving a second wave of defendants consisting of companies, both large and small, who either distributed or sold products that may have contained asbestos, even if only minimally. Congress has tried, but has so far failed, to enact legislation that would limit future asbestos liability by creating an asbestos trust fund. Even companies that never produced or distributed products containing asbestos need to be aware of it due to myriad federal, state and local regulations affecting building operations, maintenance and demolition. All buildings, for example, even those constructed after the 1980s when the vast majority of asbestos building products were banned, are required to be inspected for the presence of asbestos prior to demolition. The EPA, as well as most state environmental agencies and many municipalities, requires prior written notification to enable it to conduct an inspection. Silica, an ingredient in builder’s sand, used widely by many foundry workers, sandblasters, construction workers and brick workers, can cause silicosis, a serious lung condition, as well as other lung-related ailments. Silica claims appear to be mirroring the historical trends in asbestos litigation; silica claims have soared from fewer to 10,000 in 2002 to an estimated 50,000 cases in 2004. Producers of silica and their insurers have criticized the surge in lawsuits, claiming that plaintiffs’ lawyers are simply seeking a replacement for their lucrative asbestos work, while plaintiffs lawyers claim that the increase is due to improvements in diagnosis of silica claims. LEAD The 1978 ban on lead paint, combined with the reduction or elimination of lead in sources ranging from gasoline, drinking water and industrial air pollution to consumer products, has combined to drastically reduce lead in the environment and its associated health risks. Lead, which can cause developmental problems in children, still continues to be a source of liability, however, due to its lingering presence in exposed and degraded older (pre-1978) painted surfaces. Even more important to most companies, lead continues to be a source of regulatory concern due to the EPA’s 2001 reduction in the threshold for reporting to 100 pounds per year for facilities that use lead under the Toxics Release Inventory (TRI). Prior to the change, facilities did not have to file a TRI report unless they used 10,000 pounds of lead (or otherwise qualified for TRI reporting). Under the threshold reduction, an additional 6,000 facilities, many of them small businesses unaccustomed to dealing with the EPA, were required for the first time to file TRI reports, including thousands of businesses that had zero lead emissions. MOLD A naturally occurring substance that is generally present everywhere in the environment, mold typically only becomes a health risk if it receives a source of moisture, such as a water leak, which allows it to grow indoors or in HVAC units. There are thousands of types of mold, most of which are nontoxic, so even the presence of visible mold does not necessarily mean that there is a health risk. Unfortunately, even mold that does not produce toxins may cause some health effects, as mold appears to affect different individuals in different ways. Generally, the most common symptoms are similar to a common cold, including a runny nose, cough and congestion. Some molds are more dangerous — the most notable of which are Stachybotrys atra (commonly termed “black” mold) and Aspergillus versicolor, which both can produce dangerous toxins. Although mold has always been present in the environment, it has not widely been perceived as a health risk or a major problem before the last several years. The full extent of the reasons for the increase in mold problems, or “mold hysteria” as some have put it, is unclear, but it appears to have been caused at least in part by changes in building construction and materials. These changes have included tighter building construction that while increasing energy efficiency, have also tended to trap moisture. Mold growth has also been encouraged by the switch from plaster to dry wall (dry wall provides an ideal substrate for mold to grow on) and the use of vinyl wallpaper (which traps moisture) in commercial buildings. Ironically, the elimination of lead-based paint also has contributed to mold’s spread, as the lead in lead-based paint can be an effective toxic barrier to mold growth. Many critics have charged, however, that plaintiffs’ lawyers largely cause mold hysteria. In perhaps the most widely publicized case, a Texas plaintiff won a $32 million verdict against her insurer after her 22-room house became infested with mold. While that judgment was later reduced to $4 million (plus interest and lawyer’s fees), overall mold related losses have soared from $700 million in 2000 to $3 billion in 2002 for property damage alone. Most insurers, fearing mold could be the new asbestos or silica in terms of litigation and costs, no longer cover mold damage in their conventional policies. Not all mold suits are successful, however, and plaintiffs’ lawyers have the burden of proving causation. This was demonstrated in the first wrongful death lawsuit brought in the United States, in which a 60-year-old grandmother and her two-year-old grandson alleged severe health problems as a result of mold exposure in their mobile home and sought $7.5 million in damages. Although the plaintiff died before the end of the suit due to a fungal infection in her lungs, the court found that the mold in her mobile home had not been proven to cause her health problems. Proving causation may now be even more difficult, after a recent report from the Institute of Medicine, an arm of the National Academy of Sciences, concluded that mold does not appear to pose a serious threat to most people. Michael Crane is an associate in Wolf Block Schorr & Solis-Cohen’s (www.wolfblock.com) environmental & land use practice group. He concentrates his practice in the areas of contract, environmental and OSHA law. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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