Asbestos Issues in California

The impetus to test for asbestos relates to three main areas of concern: regulatory, health & Safety, and liability, not necessarily in that order.  Liability often is not strictly based on regulatory requirements or health and safety but on ownership either of real or personal property.

The primary regulations or types of regulations are (this is not a comprehensive listing)

1. AHERA, which applies to Schools;  40CFR 763 aka "AHERA", This is the Asbestos in Schools regulation
2. NESHAPS, 40CFR Part 61, M, National Emission Standard for Hazardous Air Pollutants (NESHAPS) Inspection prior to Renovation or Demolition, which applies to exposures or potential exposures to the general public; and
3. OSHA, (Cal-OSHA in California) whose standards apply to employees of employers in the workforce.
   1. There are numerous other varied OSHA-related regulations, both on the federal level, state, and local.  Each type of regulation serves a specific purpose:
      1. 29CFR 1910.1001 Federal OSHA, Covers Asbestos in the workplace
      2. 29CFR 1926.1101 Federal OSHA, Asbestos construction standard
      3. Title 8 CCR Sec. 1529 Cal-OSHA, Asbestos construction standard
      4. Title 8 CCR Sec. 3203 Injury & Illness Prevention Program, duty to evaluate hazards
      5. Title 8 CCR Sec. 5208 California OSHA, Covers Asbestos in the workplace
4. H. & S., Sec 25359.7 Real Estate Disclosure
5. H. & S., Sec 25915 Connelly Bill, California Asbestos Notification Act
6. H. & S., Sec 25914.2 Hazard Removal Contracts
7. Labor Code 6501.9 Duty to determine presence of asbestos prior to work.
8. Prop 65 Hazard disclosure, public buildings
9. B&P Code Sec 7058.5 California State Licensing Board
10. 22 CCR Sec 66261.24 Cal/EPA Waste handling and disposal

Knowledge of the location and condition of asbestos in a building is paramount in avoiding regulatory and legal liabilities.  It is a straightforward legal requirement that the location of asbestos in a structure be known prior to renovation or demolition.  However, the California Asbestos Notification Law, commonly known as the Connelly notice, requires that property owners give notice to employees and tenants in a building known to contain asbestos and Proposition 65 has notification requirements for public and certain commercial buildings and workplaces.

Owners of buildings that contain asbestos containing building materials become links in a chain of ownership of that asbestos from cradle to grave.  The passage of a property containing asbestos from one owner to another, without notification to the buyer of the presence of asbestos prior to sale is a common real estate litigation issue.  One theory used is that because current regulations require knowledge of the presence of asbestos prior to work on the structure, including certain maintenance activities, the owner knows, or should have known where the asbestos is in the structure.  If the owner did not know, he would then have been conducting work on the building in an illegal fashion and possibly exposing and contaminating the occupants and their possessions.  These occupants may eventually sue over property damage from contaminated personal property, or should an asbestos-related cancer develop in one of the occupants, sue for personal damage by the property owner’s property (asbestos). 

Tenants often use the non-disclosure issue as a means of terminating their contract for occupancy.  Sometimes when occupants disturb building materials they set the ownership up for even greater liability if the building materials contain asbestos and contaminate areas beyond the space they are occupying.  It is not uncommon in such a case for a building or portion of it to be evacuated.

Prevention of all of the above types of occurrences requires documented due diligence showing compliance with laws requiring testing and/or notification.  It is important to point out that there are no laws requiring the removal of asbestos except when it will be disturbed during demolition or renovation.  Even then the asbestos may not require removal but may withstand disturbance by encapsulation or enclosure methods of abatement. 

Building owners who have knowledge of the presence of asbestos and where it is throughout a structure should provide this information along with warnings and protocols for its handling to tenant, contractors, maintenance personnel and others who may encounter or be exposed to it.  Sometimes this is not enough to prevent liability, for this reason most savvy building owners elect to have what is known as an asbestos Operations & Maintenance plan generated for the property.  An O & M program includes annual inspections of the asbestos containing materials within the property.  Knowledge of the condition of the asbestos building materials can prevent degradation of them from affecting the occupants without the owner’s knowledge.  It can provide a means by which tenants and occupants can properly notify the management if they see any change to an asbestos material that may cause it to release and expose employees.  The O & M program and its implementation is the ultimate tool used by most building owners to avoid liability, comply with regulations, and protect the health and safety of the occupants and contractors working within their building.

The following is a more in-depth discussion of the particular handling of asbestos through testing and the hiring of a State Certified Asbestos Consultant.

CONTRACTORS AND ASBESTOS

Currently, there is much confusion and misinformation among general contractors, realtors, and restoration companies as to the sampling and testing of suspect asbestos containing materials.  This document will set forth the current laws and regulations that govern the testing of building materials for asbestos in the state of California and particularly in the local region. 

Asbestos for most building materials was used up until 1981 and all locations constructed prior to this date are fully suspect to contain asbestos containing materials.  However, asbestos is still sold and used in building materials, mainly in flooring, roofing, and some pre-formed cement products

REGULATORY STANDARDS

There are three main regulations that affect sampling in the five areas that include Los Angeles, Orange, Riverside, and San Bernardino.  These regulations include the SCAQMD’s Rule 1403, the California Business and Professions Code, OSHA regulations under title 8 section 1529 of the California Codes of Regulations and related laws.  Taking the proper number of samples is also an important issue and is covered in the book known as the Pink Book issued by the EPA.  This book is referenced any where that the AHERA (Asbestos Hazard Emergency Response Act) is indicated, such as in Rule 1403.

 

 

[click for SCAQMD Rule 1403]

[click for CAL\OSHA Title 8 Section 1529]

[click for California Business and Professions
Code Sections 7180 et., seq.]

[click for USEPA Pink book]

 

Conclusion

SCAQMD Rule 1403 requires a survey by a CAC where greater than 100 square feet of building materials are involved or affected.  1529 requires that asbestos be identified before workers disturb or are potentially affected by asbestos containing materials and sets forth the requirements for their protection.  1780 dictates by whom and under what conditions asbestos presence may be determined.

All existing regulations allow the contractor to assume that a material contains asbestos.  1780 allows testing to determine asbestos content by a building-inspector-certified individual for up to 12 samples for bidding and worker safety purposes, in-house only.  Under 1780 contractors cannot sample materials merely for the purpose of determining if asbestos is present, they must do so for bidding or worker protection reasons.  However, none of the regulations accept testing by entities other than CAC’s (or SST’s working under CAC’s) to prove that asbestos is not present. 

The result of all of these regulations is that contractors taking samples must be building-inspectors and can only take up to 12 samples.  However, in the area covered by Rule 1403, unless all materials to be disturbed are considered asbestos containing, sampling by the contractor does not comply with the Rule.  Any materials found by contractor testing to be without asbestos content are not considered as such until independent testing by a CAC is conducted proving them non-asbestos.  An independent CAC is the only entity under these circumstances who can determine that a material does not contain asbestos, that an asbestos health threat does not in fact exist (even after asbestos abatement), or that all asbestos containing materials at a site or to be disturbed have been identified.

Contractors are protected to the maximum degree when they utilize a CAC to perform their sampling, and consulting on projects where asbestos may be present.  In other cases, even if contractors are building inspectors taking samples, contractors can be held liable for performing the services of an asbestos consultant when their results are used to show a lack of asbestos in a material.  If a contractor assumes all materials at a site as asbestos, and handles them appropriately with a CAC performing “final clearance” testing, then the contractor may not be held liable for illegal consulting.  This last scenario however, is often unrealistic.