What Real Estate Lawyers Should Know About Osha's New Asbestos Standards
| Publication year | 1995 |
| Pages | 2733 |
1995, December, Pg. 2733. What Real Estate Lawyers Should Know About OSHA's New Asbestos Standards
Real estate lawyers can no longer ignore OSHA as a law that affects only employers. On August 10, 1994, the Occupational Safety and Health Administration of the Department of Labor ("OSHA") amended 29 C.F.R. Parts 1910, 1915 and 1926. The amendments represent the final standards for occupational exposure to asbestos. These standards became effective October 11, 1994, with various start-up dates for new standards. Among the many changes and new requirements contained in the standards are several provisions that impose affirmative duties on building/facility owners and those persons who control management and recordkeeping functions relating to a building or facility (collectively, "building/facility owners").(fn1) The start-up date for the requirements affecting building/facility owners was October 1, 1995.
OSHA's new asbestos standards are divided into three major categories, each of which is contained in a separate statute. They are: (1) general industry standards (29 C.F.R. § 1910.1001); (2) standards for construction work (29 C.F.R. § 1926.1101); and (3) standards for ship repairing, shipbuilding and shipbreaking employments and related employments (29 C.F.R. § 1915.1001). All three standards contain provisions that place affirmative duties on building/facility owners.
The new standards require building/facility owners to use due diligence to determine the presence, location and quantity of asbestos-containing material ("ACM") and presumed asbestos-containing materials ("PACM") in the building/facility. Due diligence is not defined in the standards, but the notes to the standards provide that due diligence means "that a reasonable employer, informed of [the OSHA asbestos standards] and other pertinent regulations, must inquire into the possibility that a building material is asbestos-containing." ACM is any material that contains more than one percent asbestos.
In buildings that were constructed prior to 1981, the building/facility owner must assume that certain materials are ACM and identify them as such. These materials are called PACM and include the following types of material: (1) installed thermal system insulation ("TSI"), which is ACM applied to pipes, fittings, boilers, breeching tanks, ducts or other structural components to prevent heat loss or gain; (2) sprayed-on and troweled-on TSI; and (3) sprayed-on and troweled-on surfacing materials found in buildings constructed no later than 1980. Asphalt and vinyl flooring material installed prior to 1981 also must be identified as PACM. If the building/facility owner has reason to believe or reasonably should know that other material is ACM, the building/facility owner also must identify that material as ACM.
Although the initial published standards required identification of ACM and PACM to be done by an...
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