“Who can tell me when Asbestos was banned in the United States?”
A room full of facility managers raises their hands eager to call out the answer.
“The 1970’s!” they cry out in unison. Wrong answer.
Truth is, the use of asbestos never has never been banned in the U.S. More than 3,000 different building materials that contain asbestos continue to be imported to this country from developing countries for use in building construction.
These materials include wall & associated joint compound, plaster & stucco, vinyl floor tiles, floor sheeting & associated adhesives, roofing tar, felt & mastic, and myriad others.
Another common misconception among real-estate professionals, trades, and the community at large: Only older buildings (built prior to 1980) contain asbestos. Providing false sense of security that newer buildings are free of asbestos, and therefore Asbestos NESHAP (National Emission Standard for Hazardous Air Pollutants) regulations do not apply to those structures.
This misconception can prove to be costly, and litigious not just for the contractor performing the work, but for everyone involved to include: property managers/owners procuring the renovations, workers performing repairs/ renovations inside a building; and, tenants who may be exposed to asbestos fibers in the air, as a result of improper demolition of materials containing asbestos.
To be blunt: Not having a current asbestos survey before starting T/I’s or any type of demolition or renovation is akin to playing Russian roulette with your company’s reputation as well as your wallet.
So, you may now want to ask, what do you need to know to protect yourself and avoid violations? Let’s start with a brief primer. Asbestos containing building materials pose no harm to people unless those materials are disturbed and the fibers become airborne. When inhaled, the fibers can remain in the body for years, sometimes even decades, eventually leading to asbestos-related diseases.
Who is most likely to disturb asbestos? Workers/trades people carrying out maintenance and repair jobs such as cutting or drilling into walls, ceilings or partitions; repairing boilers; laying cables, and so on.
The list of workers includes:
? construction and demolition contractors, roofers, electricians, painters and
decorators, plumbers, gas fitters, plasterers, shop fitters, HVAC contractors, and surveyors;
? electronics: phone and information technology engineers, alarm installers;
? general maintenance engineers and others who work on the fabric of a
As members of CRENAB, our ranks include building owners, contractors, property managers and developers. We buy, sell and lease buildings. We represent companies that install and service building systems, we build and renovate buildings when tenant improvements need to be made, or a new building is commissioned. Additionally, many of us in CRENAB manage, own or represent companies that often perform those services and others in our organization procure those services to perform our building renovations and maintenance.
If you are responsible for managing the maintenance and repair of a building, you have a legal obligation to manage any asbestos contained within it, as well as to protect your tenants and visitors from exposure to asbestos fibers.
Before conducting any repairs or renovations to a property, it is your legal responsibility to find out if there are asbestos containing materials in the building.
If you are a contractor, the first step is to ask the property manager for a current asbestos survey of the property. In Maricopa County, that must have been performed by an AHERA Certified Building Inspector within the last 12 months.
If you are a trade working for a General Contractor, it is your responsibility to ask the GC for a current asbestos survey before performing any demolition of the property.
If you are a property manager and a current survey is unavailable, you should procure a AHERA Certified Building Inspector to take samples of the structural materials in the areas where the renovation work will be performed.
This is because commercial buildings are regulated by Asbestos NESHAP provisions regardless of when they were built. Whether you are a property manager or a contractor, you must adhere to Asbestos NESHAP Regulations before you begin any renovation project where building materials will be disturbed.
Liability resides with the owner/operator of a demolition or renovation (this means any person who owns, leases, operates, controls or supervises the facility being demolished or renovated, or any person that owns, leases, operates or controls the demolition or renovation operation, or both. as written in federal regulations).
In cases where a management company acts like an owner, the property management is liable as well, and contractors and subcontractors. Whoever is involved with the work that is taking place is involved at that point and may have substantial fines assessed against them if the government gets involved.
A local example of that happened at Arizona State University in Tempe. In early 2009, the university agreed to pay the Maricopa County Air Quality Department $44,000 for serious asbestos violations that occurred during renovations in 2006 at the Memorial Union building. (ASU also agreed to sponsor seminars on the proper removal of asbestos. That cost the institution another $52,000.)
An important fact: Although ASU employees were not directly involved in the demolition that caused the asbestos violations, an investigation of the project determined that the university of failed to notify the county of pending renovations that may have involved the removal of asbestos. Essentially, ASU was acting as the Memorial Union’s owner/operator of the building, and was fined as the responsible party.
Though ASU acknowledged its failure to properly notify the county of its renovation plans, school officials faulted the contractor for being the primary cause of the asbestos exposure. Records show that the contractor had sub-contracted a flooring firm to remove carpeting from the Memorial Union building’s lounge area as part of the project.
However, when the flooring outfit began to remove the carpet, it also removed tile beneath the carpet. That’s where the trouble started. Asbestos underneath the tiles was exposed as the tiles were being removed, a process that released potentially dangerous fibers into the air.
ASU avowed that it had a process in place to prevent that type of asbestos issue from happening, and that the contractor erroneously had removed the tile, not just the carpeting. However, even though it was the flooring company that had gone beyond its expected scope of work, everyone got fined—ASU, the general contractor and the sub-contractor whose employees actually had stirred up the asbestos. Those fines were steep, and the publicity stank.
So exactly what do the regulations say? Asbestos NESHAP regulations state that all demolitions and renovation activities that will disturb friable asbestos containing material greater than or equal to 160 square feet, 260 linear feet and/or 35 cubic feet. This is determined through a survey performed by an AHERA Certified Building Inspector prior to disturbance.
If a survey isn’t available, Asbestos NESHAP regulations require us to presume that asbestos is present or confirm its absence through sampling. Samples need to taken by a AHERA Certified Building Inspector, and be sent to a NVLAP laboratory to be analyzed. The results will confirm the absence or presence of asbestos.
If you opt to presume, any subsequent work should be carried out with full asbestos safety precautions. However, regardless of how much of the asbestos you’re going to disturb, you could be cited even if you disturb less than that allotted amount because OSHA (Occupational Safety and Health Administration) regulations always apply, and sometimes overlap with other federal laws.
For example, Asbestos NESHAP was born out of concerns in the Environmental Protection Agency (EPA) about the proper exposure and disposal of asbestos. OSHA, an arm of the Department of Labor, has one prime agenda—the health and safety of workers.
OSHA mandates that you must protect all your employees at all times. Employees must not be exposed beyond the permissible exposure limit (PEL). The PEL for asbestos is one-tenth of an asbestos fiber per cubic centimeter of air, or 0.1f/cc averaged over an eight-hour shift. In addition, no employee may be exposed above the excursion limit, which is an airborne concentration of asbestos over one fiber per cubic centimeter of air (1f/cc) averaged over a 30 minute period.
Certainly, it’s ideal to test every single job proactively, but that obviously is not always cost effective. Let’s consider the alternative for just a moment: Substantial fines, litigation, and the inevitable bad press. Really, what do any of us have but our reputations, both personally and professionally? Furthermore, do any of us truly want to risk our businesses, our livelihoods, much less our profit margin, by taking short cuts in order to get in and out of a job ASAP?
Obviously, that answer is a resounding no. Always remember this: Ignorance of the law and its repercussions is not bliss—it’s a recipe for disaster.
Best practices suggest that if you own a commercial building, or act on behalf of an owner as a property manager, you should procure an AHERA Certified Building Inspector to perform a survey of your building, regardless of whether you plan to have any renovations done. Your building engineers are constantly making repairs on your buildings, your vendors are constantly working on the fire sprinklers, HVAC system, mechanical system, etc. they need to be aware if there are areas that contain asbestos before they disturb them. You may have a flood or fire in your building and the restoration company may have to remove structural materials in the restoration process, they cannot do so without a current survey or sampling procedures. Additionally, you may have tenant improvements come up, and you will have to have a survey conducted before you can proceed with those.
This is not a recommendation, it the law. If you’ve been performing repairs or renovations in commercial buildings without following these procedures, it is just a matter of time before you reap the unfortunate consequences.
Staying abreast of Asbestos NESHAP Regulations is essential for CRENAB members since many of us are responsible for managing, maintaining or providing services for servicing commercial property. My intention is to remind us all that we leave ourselves vulnerable and increase our liability by skirting the issue and not following the regulations when conducting our business.
In our business, we have a AHERA Certified Inspector on staff and protocol requires that he take the appropriate samples in the affected areas, where we plan to disturb structural materials as per Asbestos NESHAP/OSHA regulations. This will be done every time we perform emergency services for your company where demolition is required. We will take the necessary precautions to cover all of us, and limit our exposure to liability; as well as ensure environmental safety for your clients and our technicians. Please call me if you have any questions regarding the information that I have provided. We will be happy to come into your management/service meetings to provide further explanation for these regulations.
For more information on Asbestos NESHAP Regulations, you can visit the asbestos program’s website at www.maricopa.gov/envsvc/air/asbestos.asp
Asbestos NESHAP - National Emissions Standards for Hazardous Air Pollutants
EPA – Environmental Protection Agency promulgated the Asbestos NESHAP regulations in 1990 and they have delegated the State and County municipalities to enforce those regulations in AZ.
OSHA - Occupational Safety and Health Administration
AHERA - Asbestos Hazard Emergency Response Act, AHERA applies to the schools
Owner/Operator of a demolition or renovation (this means any person who owns, leases, operates, controls or supervises the facility being demolished or renovated, or any person that owns, leases, operates or controls the demolition or renovation operation, or both.
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