Asbestos owner responsibility

Written by:
Edward M. Kirch, President,
GEBCO Associates, LP

On October 1, 1995, revised asbestos regulations were issued by the Occupational Safety and Health Administration (OSHA) and require certain compliance activities on the part of building owners. Asbestos regulations have evolved since the early 1970's when medical research defined the carcinogenic aspects of the material. Some asbestos-containing-materials (ACMs) have been banned. Schools came under EPA regulations in the 1980's requiring them to inspect their building materials, and develop effective management programs if asbestos was found. The amended OSHA rules, published in the Federal Register of August 10, 1994, have extended responsibilities to all building owners under certain conditions.

It is advisable at the outset that building owners be clear about their legal and regulatory responsibilities regarding asbestos. Owners are always responsible for their possessions, and may be found negligent if what they own brings harm or injury to another. Asbestos, since it is a carcinogen, is unfortunately one of those possessions that can cause injury. The good news, though, is that if it is properly maintained, and certain common sense measures are taken to inform and educate those who could be ill-affected by it, a building owner can comply with current regulations, generally at reasonable expense, and be in a position to deter potential liability that could arise.

The OSHA regulation does not require "across the board" inspections as EPA did in the schools. Rather it requires a building owner to presume asbestos exists in certain materials, if the building was built no later than 1980. The materials include thermal system insulation (on pipes, boilers, ducts, etc.), sprayed-on fireproofing, other sprayed-on or troweled-on surfacing material (like acoustical ceilings), and resilient floor covering material. If these exist in an older building, a "certified" inspection must be conducted if the owner wants to prove they are not asbestos containing. Certified means it must be conducted by an approved inspector in accordance with specific procedures outlined in EPA's school inspection rule. The 1980 date was chosen since the most potentially hazardous ACMs were banned in the 70's and are not likely to exist in more recently constructed buildings. If an inspection is not done, the building owner must "presume" these materials contain asbestos, and comes under the notification, labeling and training requirements of the rule. It's important to note, however, that if ACMs exist in later buildings, the owner is still liable for any harm it may cause.

As indicated, the major compliance elements of the amended OSHA rule have to do with notification, labeling and training requirements. The extent of these is directly dependent on the kind, condition and location of the ACMs in the building. Generally, environmental firms involved in conducting asbestos inspections are also licensed to evaluate asbestos hazards that may be present and can develop site-specific management plans to deal with the particular problems. How extensive (and expensive) this may all be depends directly on what is found. Building owners have the option to get the accreditations and licenses needed to do their own inspection and planning work, but this too can be expensive and will generally not be cost-effective unless the owner has numerous properties to address.

Another federal asbestos law that has been in place for many years is the EPA NESHAP regulation...National Emission Standards for Hazardous Air Pollutants. This regulation requires inspection of building materials for asbestos content prior to demolition or renovation work, and specific notification, engineering controls and waste disposal requirements if asbestos at certain levels is present. NESHAP's purpose is to minimize asbestos contamination in the air we all breathe. If building owners are "caught" doing demolition or renovation work with no adherence to these rules, they could be in line for major fines. It is another aspect of existing asbestos regulations that makes it expedient for building owners to know if they have ACMs.

The new OSHA regulations seem to have again stirred concern and attention about asbestos, a persistent anomaly for building owners that won't go away. The reason it persists is that asbestos is a potentially lethal substance that everyone agrees would be better not being taken into people's lungs. Only in the last 20 years, as we have tried to seriously address the asbestos problem, have we learned how pervasive it is...to the extent that we know it cannot be completely removed from our environment. The emphasis today is more on the degree of hazard: significant exposure vs. insignificant exposure. The new OSHA regulation recognizes this and, in my opinion, sensibly approaches the problem requiring the greatest protection and precautions where the hazard level is most severe. A building owner's biggest problem is likely to be in boiler rooms or maintenance areas where their own, or other hired maintenance personnel, come into contact with damaged material on a regular basis. Here, exposure can be at significant levels, and that contamination can spread to other areas when disturbed.

Asbestos regulations are numerous and complex. For this reason specialized training courses are required for those who become professionally involved in dealing with it. Any building owner who discovers major asbestos problems in their building would be advised to attend some kind of training or seminar to familiarize themselves with asbestos regulations. In addition to understanding more clearly their potential liability, they would also be able to deal more intelligently (and perhaps more cost-effectively) with environmental professionals who will be required to deal with the problem.