Asbestos Identification Requirements

Unforeseen problems due to the presence of asbestos can really hit you where it hurts. The EPA has the authority to fine contractors and building owners up to five thousand dollars a day (yes, $5,000.00/day) for the failure to identify asbestos prior to performing a demolition or renovation activity. OSHA can also impose stiff penalties if employers or building owners fail to identify asbestos containing materials, especially when workers become exposed to harmful asbestos fibers.

Obviously, demolition and environmental contractors need to be aware of asbestos identification requirements. Unfortunately, the maze of state and federal regulations governing asbestos can trap you in an entangled web of confusion. This article will explore the federal requirements for asbestos identification and put the steps together in a flowchart format.

Federal Asbestos Regulations

Laws about asbestos are the result of several different Acts of Congress spanning more than twenty years of regulatory activity. Because of this, there are different approaches to identifying asbestos containing materials (ACM) depending upon which law pertains to a given situation.

EPA AHERA

During the late 1980's, Congress passed the Asbestos Hazard Emergency Response Act (AHERA). This law required the EPA to develop a plan for the identification, evaluation and control of asbestos in schools. AHERA focused on the control of friable asbestos containing building materials (ACBM) inside school buildings. Friable material could be crumbled, pulverized, or reduced to powder by hand pressure and was thereby more likely to release fibers into the air.

The EPA tried to standardize the asbestos identification process by establishing minimum training requirements for asbestos inspectors. Some rules were established about the number of samples that needed to be taken to find out if a building had any asbestos. Friable materials were put into three categories: surfacing material, thermal system insulation, and miscellaneous materials. The rule also required the identification of nonfriable asbestos containing materials.

Surfacing materials were defined in AHERA as sprayed-on or troweled-on materials that were usually batch mixed by the contractor during construction. This included materials such as fireproofing on steel structures or sprayed-on acoustical or decorative ceiling materials. Surfacing materials required a more extensive sampling protocol than other materials because their composition could differ due to the batch mixing process.

Thermal system insulation, commonly referred to as TSI, includes materials that were applied to prevent heat loss or gain such as pipe insulation and duct insulation. All other friable suspect asbestos containing materials were included in the miscellaneous category, and nonfriable materials were given a separate identification protocol. Since more than three thousand different products can contain asbestos, this category can include a wide variety of building materials.

EPA NESHAP

A separate EPA regulation known as the asbestos NESHAP (National Emission Standard for Hazardous Air Pollutants) is part of the Clean Air Act requirements. This rule requires the identification of asbestos prior to demolition and renovation activities. Private homes and residential dwellings of four or fewer units are exempt from this law. All other buildings, installations, or structures must be inspected prior to demolition or renovation to determine whether or not asbestos is present. Demolitions are defined in this law as the removal of load bearing structures. The EPA requires notification prior to all demolitions, even if no asbestos is present. As a part of this notification, many states ask for a copy of the asbestos inspection report and the credentials of the person performing the inspection.

OSHA

In 1994, OSHA made some major revisions to the asbestos standard for the construction industry that brought their approach to identifying asbestos more in line with the EPA's AHERA regulations. OSHA considered the first two AHERA categories - surfacing materials and thermal system insulation -- to be the most hazardous types of asbestos containing materials. Because of the prevalent use of these materials in buildings constructed prior to 1981, OSHA included a requirement for building owners and employers to treat TSI and surfacing material as presumed asbestos containing material (PACM) unless specific steps were taken to prove that these materials did not contain asbestos. In other words, the rule of thumb for these materials is "Guilty until proven innocent!"

An important distinction between the OSHA approach to asbestos material types and the EPA approach is the omission of the term "friable" in the OSHA definitions. Many EPA requirements for asbestos control hinged upon whether or not the material was friable -- meaning it could be crumbled, pulverized, or reduced to powder by hand pressure. OSHA decided to avoid the issue of hand pressure and focused instead on whether or not the material remained intact or bound within its matrix.

Friable or nonfriable, OSHA or EPA requirements - these can be very confusing issues even for someone used to dealing with complex regulatory requirements. However, the first step in asbestos management is the identification of suspect asbestos containing materials. In both the EPA and the OSHA regulations, identification requirements apply to all asbestos containing materials regardless of their classification.

Following the Flow Chart

The Asbestos Identification flow chart attempts to provide a simplified and logical decision tree approach to asbestos identification. The first question to explore is whether or not an asbestos inspection has been performed at the facility. OSHA requirements for building owners and employers to identify asbestos in the workplace have been in effect since 1995.

If an Inspection Has Not Been Performed

If an inspection has not been performed, materials that may contain asbestos must be identified according to current OSHA regulations. OSHA does not mandate an inspection; instead they focus on the need to identify the materials that are present so that employees can be informed of potential hazards relating to asbestos exposure.

Even if no inspection has been performed, OSHA requires building owners and employers to presume asbestos is present in all surfacing materials, and thermal system insulation in pre-1981 buildings. Vinyl and asphalt flooring installed before this must also be presumed to contain asbestos. If there is actual knowledge that any other materials contain asbestos, they must also be treated as asbestos containing material (ACM).

It is important that a building owner uses both common sense and available resources if there is any question as to the presence of suspect materials. Using this information, they must inquire into the possibility that these materials may exist. This concept is known as due diligence. It may be related to the geographic prevalence of the use of certain construction materials, an indication that asbestos is present in building records, or any other knowledge building owners or employers may have concerning the presence of asbestos.

Notification and Labeling

OSHA requires building owners and employers to notify building occupants about the presence of known or presumed asbestos containing materials. Affected employees, including subcontractors or temporary building occupants, must be notified of the presence, location, and quantity of ACM and PACM where they work. Signs must be posted at the entrance to mechanical rooms to alert occupants or remind maintenance workers of potential asbestos hazards. These signs should also describe procedures to be taken in the event of accidental disturbance of ACM or PACM. Installed materials that contain asbestos must be labeled wherever feasible. Even if all of these steps have been taken to identify asbestos, an inspection must be performed prior to a demolition or renovation activity.

If an Inspection Has Been Performed

To evaluate an asbestos inspection, we start back at the beginning of the flowchart. Previous inspections were not always performed according to today's standards. It may be helpful to determine the reason for the inspection during this evaluation. Inspections were performed for many different reasons. Some previous inspections were related to property transactions or insurance stipulations. Inspections were often related to a specific work activity and did not include suspect materials that were not affected by the planned activity. Obviously, an inspection performed prior to the installation of new machinery would not be as comprehensive as an inspection that would be necessary prior to a building demolition. Some common sense must be used to compare the scope of work of the original inspection with the present need in order to determine its applicability.

If an inspection has been performed, examine the credentials of the person who performed the inspection. Since 1995, OSHA has required an accredited inspector or a Certified Industrial Hygienist (CIH) to identify asbestos. Prior to this date, many inspections were performed by individuals who do not meet today's standards. The EPA requires an accredited asbestos inspector who has attended an approved 3-day AHERA inspector training course for all public and commercial buildings larger than ten residential units. Many states have additional licensing or accreditation requirements. If the inspection was not performed by an individual who meets applicable regulatory requirements, a reinspection must be performed or suspect materials must be treated as ACM as discussed in the previous paragraphs.

>1 per Material Type

Our next question to consider is whether or not suspect TSI and surfacing material are present at the facility. TSI and surfacing materials are considered to be the most dangerous types of ACM due to their potential friability. For this reason, OSHA specifies that the AHERA protocol for taking asbestos bulk samples that is found in EPA 40 CFR 763.86 (AHERA Sampling requirements) must be used to prove these materials do not contain asbestos in pre-1981 buildings.

This protocol specifies the need for random sampling, and requires the collection of a "statistically reliable" number of samples to confirm or deny the presence of ACM. For surfacing materials, the number of samples depends upon how much material is present. If more than 5,000 ft2 of homogeneous material is present, seven samples must be taken and all must be analyzed with negative results to rebut the presence of asbestos. If the amount of material is between 1,000 ft2 and 5,000 ft2, five samples must be taken. For less than 1,000 ft2, three samples are required.

The sampling protocol for thermal system insulation also requires three samples for each homogeneous material type. Often the materials differ according to their intended use. For example, a steam system would contain different insulation components that a chilled water system. Each system may also contain several different types of material that have been added or repaired over the years.

For materials other than TSI and surfacing – referred to as miscellaneous materials by the EPA – the inspector should take more than one bulk sample per material type in amounts sufficient for determining whether or not asbestos is present. This sampling strategy is also required for nonfriable materials. However, random sampling is not mandated and the inspector may consider convenience when choosing sampling locations for miscellaneous materials.

If the AHERA protocol was not used when sampling TSI and surfacing, a reinspection must be performed. As an alternative, materials may be presumed to contain asbestos. If the suspect materials are not TSI or surfacing material, OSHA does not require AHERA sampling protocol. Many accredited inspectors choose to use the AHERA protocol for all materials even though OSHA may not require it since it is recommended by the EPA and required by some state regulations.

Once we have determined what sampling protocol was mandated and whether or not it was followed, then we can explore the asbestos content of the sampled materials. The samples should be submitted to an accredited laboratory for analysis by Polarized Light Microscopy. If samples are found to contain >1% asbestos, the analytical report from laboratory should be examined to see if <10% asbestos was observed.

The EPA Asbestos National Emission Standard for Hazardous Air Pollutants (NESHAP) recommends a building owner consider point count analysis for samples containing <10% asbestos. This is an analysis method that can supposedly provide a more accurate estimate of the percent of asbestos present. If the point count identifies >1% asbestos content or the PLM analysis reveals >10% asbestos content, notification and labeling requirements discussed in the previous paragraphs will apply. If <1% asbestos content is found during point count analysis, the materials do not need to be treated as asbestos unless more stringent state or local requirements apply to the facility.

Special considerations should be made for floor tile or layered materials that are found to be negative for asbestos as false negatives are common with these types of materials. In 1994, the EPA released an advisory recommending that samples of these materials analyzed with negative results should be presumed to contain asbestos until they are analyzed with the improved bulk sample analysis method that became available in 1993 (EPA/600/R-93/116).

In any case, the building owner or contractor should consider having a reinspection collected prior to disturbing the material if more than three years have elapsed since the samples were taken. This can be a simple review of the existing report to ensure that it meets current regulatory requirements.

Why is it important for demolition or environmental contractor to comply with these complicated regulations? The EPA NESHAP regulations clearly place responsibility on the shoulders of the owner of a facility AND the operator of the demolition or renovation activity. This law alone can result in penalties of up to $200,000.00 per violation. Add to that the possibility of OSHA citations and entanglements with state or local officials, and your project can quickly end up in the hole. For best results, hire a professional asbestos inspector that has good insurance coverage and is properly trained and licensed. Check with the federal or state regulatory agency that has jurisdiction over the project and make sure you have met their requirements before your project begins. Finally, make sure someone on your staff is aware of these complex regulatory requirements and give them the authority to take the necessary step to ensure compliance with requirements for asbestos identification.

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