Written by: Terry
Hello again, and thanks for your interest in such a controversial, but relevant subject. If you’re reading this, my guess is you’re a property owner, manager, or someone who helps one of the above get their lives and businesses back together through a vehicle we call insurance, perhaps a broker or claim professional.
No doubt, you’ve all heard about asbestos, have your personal opinions on it, and wish it would just go away!
I’m like you; I just wish it would go away too. I grew up in small town Iowa, tearing down all kinds of structures with my dad, then working for State Farm and Allstate Insurance in property claims from 1994-2000, where there was little if any, talk of asbestos of the inspection and/or handling of it. I’ve worked on or have inspected hundreds of buildings, and have no doubt inhaled the nasty little fiber more than I should have The presence of asbestos slows down projects, and it costs all of us a lot of money to testfor , and abate it properly.
To this day, there are numerous complaints and misconceptions surrounding asbestos and the proper testing and handling protocols, so my goal today is to shed additional light on our nasty little friend, asbestos, to help you understand the implications of dealing with it, and to ultimately keep you & your company safe & out of Social, legal and Financial trouble.
Asbestos, Asbestos Testing, Asbestos Abatement, and Employee and Occupant Protection are not going away in our lifetimes. If anything, regulations are only going to get stronger.
The CBC News reported on November 24, 2011: A shutdown at Quebec’s Lac d’amiante du Canada operation in Late 2011 marked a historic moment for Canada’s once-mighty asbestos sector, which has come under increasing scrutiny as science has linked the mineral to serious health issues such as lung disease and cancer known as Asbestosis and Mesothelioma.
Consider this in Canada: Proponents of the industry insist it’s too early write the obituary on Canadian asbestos; they’re hoping to start digging again as soon as spring 2012. The stoppage at the Lac d’amiante du Canada operation in Thetford Mines, Que., followed a production halt at the Jeffrey Mine in Asbestos, Canada earlier in 2011. Still, although the controversial mineral was removed from inside Parliament buildings over health concerns, Prime Minister Stephen Harper has backed Canada’s asbestos industry saying, “The Canadian government will not put Canadian industry in a position where it is discriminated against in a market where sale is permitted”. More Canadians now die from asbestos than all other industrial causes combined, experts say.
Canadian asbestos represented 85 per cent of world production in the early 1900s and the country’s annual production peaked at 1.69 million metric tons in 1973, according to the U.S. Geological Survey. Canada produced around five per cent of the world supply in 2010 and just 100,000 metric tons, the USGS says.
Epidemiologists calculate that there are 1,500 asbestos related deaths a year in Mexico, a country which imported 3.6m dollars worth of Chrysotile from Canada in 2008. In 2009, 2 million tons of asbestos were mined worldwide: Russia (50%), China (14%), Brazil (12.5%), and Canada (9%).
In addition, The Center for Public Integrity reported on July 21, 2010; Deaths from asbestos related illnesses and mesothelioma may reach 15,000 by 2035. It’s the price China will pay for being the world’s top asbestos consumer. In 2007, China used 262,000 metric tons of the raw fiber, more than twice that of the next customer.
Asbestos is only banned or restricted in 52 countries throughout the world. Can you believe it? Asbestos is still being mined all over the world in 2012!Guess where the asbestos containing materials end up? That’s right, all over the world, including in the US.
There are asbestos containing materials that get by into the US every day and you can still find asbestos containing materials on the shelves of US Building Suppliers, according to Jeffrey Adams, with the Colorado Department of Health and Public Education. While not frequent, we find asbestos in newly constructed buildings.
While asbestos is primarily found in buildings constructed before 1984, you cannot rely on that date to stay safe and out of trouble. The EPA took away any reference to date of construction when considering asbestos issues, unless the architect of record can prove there were no asbestos containing materials used in the construction of the building. . In fact, more and more state regulations, including Colorado, California, and others require that building materials be tested regardless of the date of construction, even in residential applications.
The EPA, OSHA, and State Health and Safety Departments require, through regulation, building owners, managers, and contractors to follow strict testing and abatement protocols to protect building occupants and workers. While it is important to know and follow the laws of your state, building occupants and employees are well aware of asbestos and the health effects of exposure. They are educated, and they are not going to let the issue slide.
NESHAP is an extremely relative EPA Regulation that requires the testing for asbestos in any public, commercial, industrial, or in any building with 4 or more adjoining units.
EPA revised the asbestos NESHAP regulations on November 20, 1990 (see 40 CFR Part 61 Subpart M). Although the NESHAP has not been revised to alter its applicability to friable and nonfriable asbestos-containing materials (ACM), nonfriable asbestos materials are now classified as either Category I or Category II material.
We often get asked to ignore asbestos, especially small areas of demolition, but I have to ask: What is the risk to the building owners, occupants, and/or employees (ours and yours) presenting claims for damages related to exposure and clean up if an asbestos spill occurs? How are you going to explain that decision to your boss? To the jury? To OSHA or The EPA? The fines and damages, especially punitive damages are just not worth it, and who really wants to put people at risk anyway?
Look at this example; in 2006, the State of California sued one of the country’s largest apartment owners, Archstone Smith, for 40 million dollars, alleging it improperly removed asbestos containing materials at one San Jose apartment complex. California further alleged that Archstone knew about the asbestos, but allowed and directed maintenance personnel to perform work anyway, endangering themselves and the building occupants on more than 48 occasions. I’m sure you have seen or heard similar headlines yourself. If you’re still not convinced asbestos is for real, just Google “OSHA Asbestos Fines”.
So, what are we to do? It starts with education, the laws are there and you should understand them. I recommend training your people on the laws and protocols, and taking a closer look at the regulations in your state. There are many resources available for training including Indoor Air Experts, Industrial Hygienists, Abatement Contractors, Professors, and Department of Health inspectors. You should implement Best Practices, that are in alignment with the regulations, and you should double check your contracts and insurance coverage.
Your Insurance Broker and Attorney can provide plenty of insight and risk protection in this area.You should also make asbestos testing a part of your due diligence on every property you acquire, own or manage and then carefully consider if you need a pollution and/or ordinance endorsement. (you probably do)
We see a lot of customers who didn’t think their properties contained asbestos, but ended up paying for asbestos abatement out of pocket once they had fire, catastrophe, or other damage. You could be facing asbestos abatement costs in excess of 1 million dollars, should an entire building or property be affected by a disaster.
Of course, there are other things you can do to limit your asbestos exposure and costs, such as getting a second opinion and/or hiring a Certified Industrial Hygenist. Of course a second or third bid never hurts either.
Remember, better safe than sorry & always better to plan for the worst and hope for the best!
Until Next Time,
Terry Shadwick, CEO
PLease see a fairly exhaustive list of Asbestos Regulations attached.
OSHA (Occupational Safety and Health Administration) – www.osha.gov (An employer must retain health records for 30 years. 1910.1001(m)(3)(iii))
ü Regulates the relationship between employer and employee
ü Requires materials with ANY asbestos be abated by state- certified asbestos workers with a state- certified supervisor present
http://www.colorado.gov/cs/Satellite/CDPHE-AP/CBON/1251594599668
ü Requires anyone handling friable asbestos containing materials, be it during removal or installation, to be properly certified
http://www.colorado.gov/cs/Satellite/CDPHE-AP/CBON/1251594599668
ü Requires that TSI, sprayed or trowel – on surfacing materials, and asphalt or vinyl flooring materials installed before 1980 shall be considered asbestos containing unless it can be determined, in compliance with OSHA regulations, that the material is not asbestos containing 1926.1101(k)(1)
For criteria to rebut the designation of installed materials as PACM, see 1926.1101(k)(5)(i)-(ii)
ü Time-weighted average limits (TWA). The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.1 fiber per cubic centimeter of air as an eight (8) hour time-weighted average (TWA) 1926.1101(c)(1)
ü Excursion limit. The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 1.0 fiber per cubic centimeter of air (1 f/cc) as averaged over a sampling period of thirty (30) minutes 1926.1101(c)(2)
ü PACM (presumed asbestos containing material). This means thermal system insulation and surfacing materials found in buildings constructed no later than 1980. The designation of a material as “PACM” may be rebutted pursuant to paragraph 1926.1101.k.5. 1926.1101.k.5.ii An employer or owner may demonstrate that PACM does not contain more than 1% asbestos by the following:
- (A) Having a completed inspection conducted pursuant to the requirements of AHERA (40 CFR Part 763, Subpart E) which demonstrates that the material is not ACM: or
- (B) Performing tests of the material contacting PACM which demonstrates no ACM is present in the material.
EPA (Environmental Protection Agency) – www.epa.gov
ü Established in 1970. Asbestos use peaked in 1973.
ü Establishes materials must have over 1% asbestos to be considered ACM. 1910.1001(b)
ü Uses the following guidelines to determine remediation level.
- Occupancy (elderly/infants inside during remediation)
- Engineering controls (full negative air environment)
- Methods of cleaning
- Post remediation air sampling recommendations
ü AHERA of 1986 requires schools (public and private) to identify and manage all asbestos in schools. http://www.epa.gov/asbestos/lawsregs.html
15 U.S.C S 2641-2656
ü ASHARA, enacted in 1992, extended AHERA regulations into public and commercial buildings.
http://www.epa.gov/asbestos/lawsregs.html
ü NESHAP (National Emission Standards for Hazardous Air Pollutants), emissions standards set by the United States EPA for an air pollutant not covered by NAAQS that may cause an increase in fatalities or in serious, irreversible, or incapacitating illness. The standards for a particular source category require the maximum degree of emission reduction that the EPA determines to be achievable, which is known as the Maximum Achievable Control Technology (MACT) [1]. These standards are authorized by Section 112 of the Clean Air Act and the regulations are published in 40 CFR Parts 61 and 63.
http://www.epa.gov/asbestos/lawsregs.html
Regulation 8 requires any and all demolition ctivities that could disturb ACM be tested first by a state-certified Building Inspection and analyzed by an approved lab. Please note this is INDEPENDENT of year of construction.
OSHA (Occupational Safety and Health Administration) – www.osha.gov (An employer must retain health records for 30 years. 1910.1001(m)(3)(iii))
ü Regulates the relationship between employer and employee
ü Requires materials with ANY asbestos be abated by state- certified asbestos workers with a state- certified supervisor present
http://www.colorado.gov/cs/Satellite/CDPHE-AP/CBON/1251594599668
ü Requires anyone handling friable asbestos containing materials, be it during removal or installation, to be properly certified
http://www.colorado.gov/cs/Satellite/CDPHE-AP/CBON/1251594599668
ü Requires that TSI, sprayed or trowel – on surfacing materials, and asphalt or vinyl flooring materials installed before 1980 shall be considered asbestos containing unless it can be determined, in compliance with OSHA regulations, that the material is not asbestos containing 1926.1101(k)(1)
For criteria to rebut the designation of installed materials as PACM, see 1926.1101(k)(5)(i)-(ii)
ü Time-weighted average limits (TWA). The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.1 fiber per cubic centimeter of air as an eight (8) hour time-weighted average (TWA) 1926.1101(c)(1)
ü Excursion limit. The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 1.0 fiber per cubic centimeter of air (1 f/cc) as averaged over a sampling period of thirty (30) minutes 1926.1101(c)(2)
ü PACM (presumed asbestos containing material). This means thermal system insulation and surfacing materials found in buildings constructed no later than 1980. The designation of a material as “PACM” may be rebutted pursuant to paragraph 1926.1101.k.5. 1926.1101.k.5.ii An employer or owner may demonstrate that PACM does not contain more than 1% asbestos by the following:
o (A) Having a completed inspection conducted pursuant to the requirements of AHERA (40 CFR Part 763, Subpart E) which demonstrates that the material is not ACM: or
o (B) Performing tests of the material contacting PACM which demonstrates no ACM is present in the material.
EPA (Environmental Protection Agency) – www.epa.gov
ü Established in 1970. Asbestos use peaked in 1973.
ü Establishes materials must have over 1% asbestos to be considered ACM. 1910.1001(b)
ü Uses the following guidelines to determine remediation level.
o Occupancy (elderly/infants inside during remediation)
o Engineering controls (full negative air environment)
o Methods of cleaning
o Post remediation air sampling recommendations
http://www.epa.gov/mold/table2.html
ü Remediation Guidelines: 3 levels
o Small : Less than 10 sq ft
o Medium : 10 -100 sq ft
o Large : Greater than 100 sq ft
o Mold remediation in schools and commercial
http://www.epa.gov/mold/table2.html
ü AHERA of 1986 requires schools (public and private) to identify and manage all asbestos in schools. http://www.epa.gov/asbestos/lawsregs.html
15 U.S.C S 2641-2656
ü ASHARA, enacted in 1992, extended AHERA regulations into public and commercial buildings.
http://www.epa.gov/asbestos/lawsregs.html
ü NESHAP (National Emission Standards for Hazardous Air Pollutants), emissions standards set by the United States EPA for an air pollutant not covered by NAAQS that may cause an increase in fatalities or in serious, irreversible, or incapacitating illness. The standards for a particular source category require the maximum degree of emission reduction that the EPA determines to be achievable, which is known as the Maximum Achievable Control Technology (MACT) [1]. These standards are authorized by Section 112 of the Clean Air Act and the regulations are published in 40 CFR Parts 61 and 63.
http://www.epa.gov/asbestos/lawsregs.html
ü Issued a rule requiring the use of lead-safe practices. Beginning April 2010, contractors’ potentially disturbing lead-based paint in buildings built before 1978, must be certified.
ü http://epa.gov/lead/rrp/index.html
EPA guidelines are just that…guidelines. Extenuating circumstances need consideration including
o Who occupies the space?
o How visible is the project?
o How much growth might be in unseen areas?
o Do you have a litigious resident who sees opportunity?
CDPHE (Colorado Department of Health and Environment) – www.cdphe.state.co.us
Regulation 8 requires any and all demolition activities that could disturb ACM be tested first by a state-certified Building Inspection and analyzed by an approved lab. Please note this is INDEPENDENT of year of construction.