In addition to my usual caveat (that this is intended to be informative but not intended as legal advice in any specific situation) I want to add that demolition/renovation rules are particularly detailed, and yet somehow still unclear from time to time. I have provided a fair amount of detail here-especially with regard to asbestos, because I could not think of any other way to usefully describe these requirements. However, no one should be relying on the generic regulatory interpretations in this blog, as a substitute for careful fact-specific evaluation of regulations and guidance.
Renovation or demolition of older buildings may pose regulatory liability issues and compliance requirements pertaining to asbestos-containing material (ACM) or lead based paint (LBP). The applicable regulatory requirements are sometimes fuzzy, which can result in both regulatory issues and legal disputes over contract scope of work. New construction on a Brownfield site poses design challenges and legal issues arising from uncertainty about sub-surface conditions, especially where soils beneath a former industrial building have not been thoroughly examined.
In Part 1 of this blog, below, we will consider OSHA and EPA asbestos regulations and liability risks generally.
In Part 2 [ To be posted by October 15] we will consider construction regulations pertaining to Lead Based Paint.
In Part 3, [ to be posted by November 15] we will look at new construction on properties having historic industrial use, which can pose a variety of design and regulatory issues for construction contractors, design professionals, and construction counsel.
In January and February 2018, I will host several multi-disciplinary roundtable discussions covering all of these subjects. If you think you may not be on the roundtable notice list from last year, [ Phase I investigations] please drop me an email to be added for this round.
PART 1—DEMOLITION AND RENOVATION ISSUES—ASBESTOS
Asbestos is a potential issue in buildings constructed before approximately 1980. The common theme for asbestos regulation is minimization of airborne fibers due to disturbance of ACM (defined as containing at least 1% asbestos).
Many construction lawyers, contractors, environmental consultants, and even specialized industrial hygiene/abatement specialists, do not have a full and accurate understanding of applicable legal requirements pertaining to ACM. This can lead to legal disputes over the intended scope of work. It can also lead to regulatory violations with penalties, or law suits by construction workers, site occupants and neighbors against the owner and contractors for negligent exposure during site work.
Some of the key questions which arise include:
1) Is a pre-demolition/renovation building survey required or advisable? Is bulk sampling required?
2) Is advance government notification required if ACM is detected or assumed to be present?
3) Is pre-demolition removal of ACM required in order to comply with OSHA and EPA regulations? If so, what are the applicable safety standards
4) If demolition debris is likely to contain some asbestos, how does that affect disposal requirements or use as fill?
5) If I follow the regulations and available agency guidance, does that protect me from claims by workers or neighbors alleging negligent exposure?
OSHA construction regulations
OSHA construction rules for asbestos materials are found at 29 CFR § 1926.11. Regulations include both work practice requirements and numerical standards. Employers are required to carry out an initial evaluation to assure that air borne fibers will not exceed 1 fiber/cc for a 30-minute period, and 0.1 fibers/cc, 8-hour time-weighted average (TWA). A Negative Initial Evaluation (NIE) allows work to proceed without a majority of otherwise applicable worker protection measures. However, a number of generic work practices aimed at minimizing airborne release of fibers, can still be applicable. OSHA “Class II” materials (e.g. vinyl asbestos floor tiles) have such requirements.
Regulations are located at 40 CFR § 61, and are part of the hazardous air pollutant “NESHAPS” program. These rules are aimed more at minimizing exposure to building occupants and to neighbors. PADEP regulations incorporate the EPA regulation by reference. These regulations apply to all buildings except single family residence or multi-family residential with 4 units or less. Under both EPA regulations and PA DEP regulations, advance notification of demolition is required if there is any ACM, even if the project is ultimately exempt from specific work requirements.
Regulated and Non–Regulated ACM
The key threshold criterion for substantive requirements under the regulation is whether the ACM is already in friable condition (able to be crushed into powder by hand pressure) or likely to become friable as a result of demolition/renovation activity or subsequent debris consolidation or recycling. Such material is considered “Regulated” ACM (RACM) and is subject to pre-project removal requirements if the affected surface area exceeds 160 square feet of floor or other surface, or 260 linear feet of pipe insulation.
Owners and contractors generally know what to do when they are removing thermal pipe insulation containing obviously friable ACM. However, there are also several other types of ACM which are less well understood, and can result in either non-compliance or unnecessary costs due to “over-compliance.” Examples would include vinyl asbestos floor tiles, asphalt roofing shingles with ACM, asbestos cement roofing material, and window caulking with ACM.
For EPA purposes, material which is not automatically RACM based on current friability, must be evaluated for RACM status based on likelihood of becoming friable, in light of the removal method and equipment to be used. Category I ACM is presumed Non-RACM unless it is subject to sanding, grinding, cutting, or abrading, which automatically renders it RACM. Sanding and abrading are not defined; and the EPA definitions of grinding and cutting are subjective enough to be open to some interpretation. Thus, it is important to read all definitions carefully, apply common sense to non-defined terms, and also to document (and have your contractor document) your interpretation and the basis for it, in case there are future inquiries.
EPA Category II material is presumed to have the potential to become friable during renovation or demolition, and must be evaluated in advance on a case by case basis. If the evaluation indicates a high probability of becoming crumbled or pulverized during planned demolition of renovation activity, then the material must be handled as RACM. Before undertaking such an evaluation, one should review the EPA asbestos guidance, which identifies a number of generic scenarios for which the Agency has already created a “presumption” of either RACM or non-RACM. These presumptions are a function of the type of material as well as the removal method to be used. Thus, if one wishes to assure that a demolition contractor will be in compliance, it is necessary to know some details about plans for removal of materials having ACM. Most materials which contain ACM can potentially become RACM if damaged extensively during demolition.
A few of the EPA presumptions are:
-Sanding, grinding, cutting, or abrading—any ACM becomes RACM
-Floor tiles—Non-RACM so long as not “extensively damaged,” “tile breakage is minimal”, and a shot blaster is not used;
-Asphalt Roofing material—This is considered Category I and can be left in place for general demolition; Pre-demolition removal via power plows or power slicers is also considered ok.
-Waste Consolidation—Moving debris by bulldozer is considered ok. However, use of any equipment which will break up the material [e.g. jack hammer] will be considered “grinding” and therefore it becomes RACM.
Disposal and use as fill
There are several important rules to note: 1) Non-RACM maygo to a C&D landfill but cannot be sent anyplace where it will likely be pulverized ( e.g. cement recycling facility; 2) RACM can only be disposed of in a landfill licensed to take asbestos material; 3) Mixing RACM into any demolition debris makes the entire pile RACM and unsuitable for on-site fill; PA Management of Fill Policy prohibits use of “friable asbestos” as fill material but does not specifically prohibit non-RACM ( unless of course you grind it up to make useful as fill, and thereby create RACM.)
Is Regulatory Compliance a Shield Against Common Law Exposure Claims?
Legally, compliance with asbestos construction regulations does not bar a common-law claim for damages. However, most of the asbestos legal problems I have seen were caused by some combination of outdoor unsecured debris piles containing asbestos material, or failure to remove asbestos material before commencement of aggressive demolition work which created visible emissions of white dust. Such situations are typically the result of regulatory misunderstanding or disinterest, which resulted in no real compliance effort.
Another common-law trouble spot is the fact that the asbestos NESHAP exempts buildings with four or less residential units, as well as friable asbestos of less than 260 linear feet. It is common to think that asbestos can be ignored in these situations, but that is actually a bad idea. Aggressive treatment of friable asbestos in these situations can easily cause visible dust emissions and a potential health hazard, which will obviously not be considered “due care”.
A take home point would be that good asbestos liability management in an older building depends on accurate information about the extent of potential ACM, which can then be used to assure regulatory compliance as well as minimization of unnecessary health risk. A good survey decreases the risks of spreading friable asbestos dust from undocumented sources. This reduces the risk of temporary project shut-down by OSHA or EPA, expensive abatement actions and civil penalties, as well as the risk of possible common law legal action by tenants, neighbors, or workers.