Why You Must Have A Haz-Mat Inspection of Every Building You Renovate or Demolish – Regardless of Age or Type of Building (or – Construction Myths That Can Lead You Astray – Using Building Age To Determine Presence of Haz-Mat)

The point of this article can be simply stated by looking at regulations:

Federal EPA’s National Emission Standards For Hazardous Air Pollutants (NESHAP) CFR 40 Chapter 1 Part 61

This regulation requires any building undergoing renovation or demolition (with the exception of residential properties of four units or less that will remain residential property after the renovation/demo activities) to be inspected for asbestos prior to the start of renovation or demolition activities. The only way to comply with this regulation is to sample each material you will disturb or assume each material you will disturb contains asbestos (other than a few non-suspect materials) and handle each material as asbestos-containing until sampled and proven otherwise.

This is the regulation that is enforced by local Air Pollution Control Districts and Air Quality Management Districts in CA. In Nevada, NESHAP is enforced by County Health Departments.

Cal OSHA, in 8 CCR 1529, has a cutoff date of 1981 for assuming a few materials contain asbestos (most of which were banned in the 1970’s).

A lot of contractors get into a lot of trouble because they misapply this regulatory section. This cutoff date applies only to Presumed Asbestos Containing Materials or PACM – which is thermal system insulation (pipewrap, tank wrap, duct wrap, boiler insulation, etc.) and friable surfacing materials (popcorn ceilings, fireproofing, acoustic plasters, etc.) – also known as Cal/OSHA Class I materials.

  • This cutoff date is unreliable, even for the PACM materials, because Cal/OSHA (and Fed-OSHA) states in their regulation that, if you should have known through prior knowledge or due diligence that PACM materials installed after 1980 contain asbestos, you must treat them as asbestos. It is general consensus in the Haz-Mat industry that due diligence is considered to include an inspection (collection of samples of the material(s) and analysis at a laboratory). This argument is rendered moot when you consider the NESHAP requirements noted above.
  • Cal/OSHA 1981 cutoff date does not apply to Cal/OSHA Class II materials such as drywall, ceiling tiles, floor tiles, mastics, stucco, plaster, window putty/glazing, roofing materials, or any other material that is not Thermal System Insulation or Friable Surfacing materials. These materials must be considered to be asbestos containing, until proven otherwise by bulk sample analysis, no matter when they were installed.
  • Cal/OSHA applies to all buildings of all types – any time there is one or more employees working.

When you consider the fact that for many of the products noted above as Class II materials, it is perfectly legal to this day for them to be manufactured and installed with greater than 1% asbestos in them, it becomes obvious that you must concern yourself with asbestos even in brand new buildings.

An interesting aside – Hazard Management Services, Inc. (my company) recently assisted a National Hardware Store chain in defending itself against a claim that it sold drywall joint compound with more than 1% asbestos in it to a community church that was renovating a home and office complex. The purchase of the joint compound was in 2005.

The case was settled out of court and the details are not allowed to be discussed, but this brings up a good point – who is insuring that projects you work on are not having asbestos-containing materials installed on them? If you are the Architect, Construction Manager or General Contractor, even if the use of asbestos has been prohibited in the specification for the project, you could be held responsible if this occurs, but that is a different topic (The Difference Between Construction Liability and Haz-Mat Liability (or Construction Myths That Can Lead You Astray – The Mistaken Belief That If You Don’t Address It, You Can’t Be Held Responsible For It) that we can discuss another day.

When it comes to lead in paint – there is a belief that if it is not “lead-based paint” it is not a hazard. Once again – looking at the regulations:

Lead-Based paint is 5000 part per million, 0.5% by weight or 1.0 mg/cm2, or more lead in the paint, but Cal/OSHA’s Lead in Construction Standard 8 CCR 1532.1 regulates lead down to ANY DETECTABLE amount.

The handling of any material containing lead, or that could contain lead, requires at least awareness training and “lead safe work practices.” Be it paint, primer, ceramic tile glaze, oakum, solder (“lead-free” solder can currently legally contain low levels of lead!), or any other material that contains lead, or that could contain lead, which has not been bulk sampled and found to be lead free by laboratory analysis – it must be handled as lead. Lead check swabs and direct reading instruments such as X-Ray Fluorescence Spectrum Analyzers (XRFs) are not sufficient to determine paints and coatings to be lead free – the swabs are not even legal for lead testing in CA!

Besides Cal/OSHA, California Department of Public Health (CDPH) has a regulation concerning lead paints and coatings (Title 17). While this regulation, upon first look, appears to only apply to paints and coatings applied to surfaces prior to 1978, its requirements for lead safe work practices (including containment of the work) extend to nearly all paints and coating disturbance work, regardless of age or location. Cal/OSHA’s regulation has no end date – paint it today and disturb it tomorrow, and you must sample the paint for lead or handle it as lead-containing!

CDPH and Cal/OSHA have regulations that make the removal of paint by power washing or power blasting illegal – unless you have proven the paint to be lead-free by bulk sample analysis at a lab. Many painting contractors are unaware of these regulations, and how many architects issue specifications requiring this activity? There are two additional ways around these rules – other than bulk sample analysis – but do you know what they are? (Don’t remove any paint during the washing/blasting activity or capture all of the water and filter it properly – neither of which is easy to do).

Lead-based paint is not for sale to the public, but its use has never been banned, outside of residential properties, school districts and public buildings – it is still available today for those who know how/where to get it.

When you consider the above information (regulations and misunderstood realities), you can see that if you wish to comply with regulations and protect your workers, adjacent workers, occupants, the environment and your liability – you cannot use the building age to determine what Hazardous Materials may exist within the building (especially not whether asbestos or lead is present).

Posted in Regulatory

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