Asbestos Frequently Asked Questions for Property Owners


Is the Contractor responsible for determining if there is asbestos in my property?

No they are not responsible for that. They are responsible for filing notifications with local agencies. For example in Southern California they must obtain a permit from the AQMD before any demolition or renovation work fifteen days before starting the work.  Labor code further defines the responsibility:

2019 California Code
Labor Code - LAB
DIVISION 5 - SAFETY IN EMPLOYMENT
PART 1 - OCCUPATIONAL SAFETY AND HEALTH
CHAPTER 6 - Permit Requirements
Section6501.9.  

The owner of a commercial or industrial building or structure, employer, or contractor who engages in, or contracts for, asbestos-related work shall make a good faith effort to determine if asbestos is present before the work is begun. The contractor or employer shall first inquire of the owner if asbestos is present in any building or structure built prior to 1978.


What do I have to disclose to tenants, employees and contractors?

Under CAL. HSC. CODE § 25915 : California Code - Section 25915 the building owner must disclose certain information. That code is as follows. (a) Notwithstanding any other provision of law, the owner of any building constructed prior to 1979, who knows that the building contains asbestos-containing construction materials, shall provide notice to all employees of that owner working within the building concerning all of the following:


(1) The existence of, conclusions from, and a description or list of the contents of, any survey known to the owner conducted to determine the existence and location of asbestos-containing construction materials within the building, and information describing when and where the results of the survey are available pursuant to Section 25917.


(2) Specific locations within the building known to the owner, or identified in a survey known to the owner, where asbestos-containing construction materials are present in any quantity.


(3) General procedures and handling restrictions necessary to prevent, and, if appropriate, to minimize disturbance, release, and exposure to the asbestos. If detailed handling instructions are necessary to ensure employee safety, the notice required by this section shall indicate where those instructions can be found.


(4) A summary of the results of any bulk sample analysis, or air monitoring, or monitoring conducted pursuant to Section 5208 of Title 8 of the California Code of Regulations, conducted for or by the owner or within the owner's control, including reference to sampling and laboratory procedures utilized, and information describing when and where the specific monitoring data and sampling procedures are available pursuant to Section 25917.


(5) Potential health risks or impacts that may result from exposure to the asbestos in the building as identified in surveys or tests referred to in this section, or otherwise known to the owner.


The notice may contain a description and explanation of the health action levels or exposure standards established by the state or federal government. However, if the notice contains this description, the notice shall include, at least, a description and explanation of the no significant risk level established pursuant to Chapter 6.6 (commencing with Section 25249.5) of Division 20, and specified in Section 12711 of Title 22 of the California Code of Regulations, the school abatement clearance level specified in Section 49410.7 of the Education Code, and the action levels established by state and federal Occupational Safety and Health Act regulations.


The notice requirements specified in this subdivision shall not apply to an owner who elects to prepare an asbestos management plan pursuant to Section 25915.1. In those cases, the notice requirements specified in Section 25915.1 shall apply.


(b) If the owner has no special knowledge of the information required pursuant to paragraphs (3) and (5), of subdivision (a), the owner shall specifically inform his or her employees in the notice required by this section, that he or she lacks knowledge regarding handling instructions necessary to prevent and minimize release of, and exposure to, asbestos and the potential health impacts resulting from exposure to asbestos in the building, and shall encourage employees to contact local or state public health agencies.


As a Property Owner I really like the phrase “who knows that the building contains asbestos-containing construction materials,” so I can just not test and not tell. Is there a problem with that?


Yes there is, did you read the last paragraph of the code section above.

(b) If the owner has no special knowledge of the information required pursuant to paragraphs (3) and (5), of subdivision (a), the owner shall specifically inform his or her employees in the notice required by this section, that he or she lacks knowledge regarding handling instructions necessary to prevent and minimize release of, and exposure to, asbestos and the potential health impacts resulting from exposure to asbestos in the building, and shall encourage employees to contact local or state public health agencies.

That means you will be telling everybody that you are incompetent and that they should go to OSHA, the local Rent Control Board and the AQMD for help. Since you are an owner of a valuable asset, you are seen as someone who is sophisticated and knowledgeable, you cannot claim ignorance.


Is there any other code that I have to worry about?

Cal-OSHA weighs in with two very important issues. The asbestos in construction standard Title 8 section 1529 requires that a pre-work inspection happen,  you are required to notify all trades and workers on the site of the asbestos work.  There is a conflict with SCAQMD rules because OSHA code permits presuming building material contains asbestos, if the removal follows all the asbestos removal rules. allows for presuming building materials contain asbestos.  The following is a quote from the CalOSHA asbestos Information page.


Explanation: You must first determine what the scope and nature of the abatement job by identifying the presence, location and quantity of ACM (asbestos-containing material), PACM (presumed asbestos-containing material), and/or, ACCM (asbestos-containing construction material). See §1529(k)(3)(A) and Labor Code section 6501.9. Either:

  The building owner and you may presume the material is asbestos;...... .


1529(k)(1) requires such a presumption for thermal system insulation, as well as other building materials.


The requirement for a "survey" is found in 1529(k)(2)(A) "Before work subject to this standard is begun, building and facility owners shall determine the presence, location, and quantity of ACM and/or PACM at the work site pursuant to subsection (k)(1) of this section".


What are the Requirements of Section 25915.1?

Here is the salient part of 25915.1

Section 25915.1


   (1) The existence of, conclusions from, and a description or list of the contents of, any survey known to the owner conducted to determine the existence and location of asbestos-containing construction materials within the building, and information describing when and where the results of the survey are available pursuant to Section 25917.


(a)  An owner may elect to prepare an asbestos management plan for any building subject to this chapter, and in that case may, upon implementation of that plan, comply with the notification requirements of this chapter by providing notice to other owners and all employees of that owner working within the building of the following:
(1)  The specific locations within the building where asbestos-containing construction materials are present in any quantity.
Terms Used In California Health and Safety Code 25915.1
(2)  Potential health risks or impacts that may result from exposure to the asbestos.
(3)  Information to convey that moving, drilling, boring, or otherwise disturbing the asbestos-containing construction material identified may present a health risk and, consequently, should not be attempted by an employee who is not qualified to handle asbestos-containing construction material.
(4)  The existence and availability of the management plan and a description of its contents.
(b)  For purposes of this chapter, an asbestos management plan shall be designed to minimize the potential for release of asbestos fibers and to outline a schedule of actions to be undertaken with respect to the asbestos. The plan shall be prepared by a person accredited to prepare management plans for schools pursuant to Section 2646 of Title 15 of the United States Code and shall contain all of the following:
(1)  The information specified in paragraphs (1) to (5), inclusive, of subdivision (a) of Section 25915.
(2)  A description of an ongoing operations and maintenance program which shall include, but not be limited to, periodic reinspection and surveillance, suggested fiber release episode procedures, measures to minimize potential fiber releases, and information and training programs for building engineering and maintenance staff.
(3)  Recordkeeping procedures to demonstrate implementation of the plan which shall be maintained for the life of the building to which they apply.

(Added by Stats. 1989, Ch. 948, Sec. 2. Effective September 27, 1989.)


25917. An owner shall make available, for review and photocopying, to other owners and all of his or her employees or those employees' representatives at an accessible place and time, all existing asbestos survey and monitoring data and any asbestos management plan which has been prepared, specific to the building. This place shall be within the building, or another building which is leased or also owned by the owner, located on the same property as the building, and accessible and convenient to employees, and shall be available during employee working hours, including lunch and break periods, if any owner maintains an office or similar facility in the building; if not, the survey, data, and asbestos management plan shall be available at another place, and at a time accessible and convenient to employees and their representatives. Any owner may enter into an agreement with another owner to provide the location where the survey, data, and asbestos management plan is available to employees within one building pursuant to this section.


Is there a NESHAPS rule about Building Survey Work?

Yes, and the rules vary for each local enforcement agency. The South Coast Air Quality Management District enforces NESHAPS here in the Los Angeles Basin. Look at the AQMD asbestos page or the Frequently Asked Questions for Asbestos. In other Counties you will need to check those rules.  South Coast AQMD requires an asbestos survey for any building, they do not have a date of construction exception.  You should look into the USEPA site that lists all the regulations that regulate asbestos, 


Is there any AHERA/ASHARA  Rule about Asbestos in Buildings other than Schools?

Yes in 1990 the AHERA Rule was extended to public Buildings and was limited to training and notification.  The act reads this way:

Asbestos School Hazard Abatement Reauthorization Act (ASHARA) of 1990

........
(4)Section 207 of such Act (15 U.S.C. 2647) is amended by adding at the end thereof the following:`(g) Any contractor who--`(1) inspects for asbestos-containing material in a school, public or commercial building;`(2) designs or conducts response actions with respect to friable asbestos-containing material in a school, public or commercial building; or`(3) employs individuals to conduct response actions with respect to friable asbestos-containing material in a school, public or commercial building;and who fails to obtain the accreditation under section 206 of this Act, or in the case of employees to require or provide for the accreditation
required, is liable for a civil penalty of not more than $5,000 for each day during which the violation continues, unless such contractor is a direct employee of the Federal Government.'.(b) DISCLAIMER-In exercising any authority under the Toxic Substances Control Act in connection with the amendment made by subsection (a) of this section, the Administrator of the Environmental Protection Agency shall not, for purposes of section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653(b)(1)), be considered to be exercising statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.(c) EFFECTIVE DATE-This section shall take effect upon the expiration of the 12-month period following the date of the enactment of this Act. The Administrator may extend the effective date for a period not to exceed one year if the Administrator determines that accredited asbestos contractors are needed to perform school-site abatement required under the Asbestos Hazard Emergency Response Act (15 U.S.C. 2641) and such an extension is necessary to ensure effective implementation of section 203 of the Toxic Substances Control Act.


OK I see the AQMD FAQs, but tell me what do I need to have in a survey?

Yes the Building owner must conduct a building survey before any demolition or renovation. The person doing the survey shall hold a license to hold themselves out as a licensed asbestos consultant (CAC). The survey cannot be done or paid for by a licensed contractor who will conduct the renovation or demolition activities. Before you conduct any demolition or renovation activities have a CAC or CSST working for a CAC conduct an inspection for you.


Here is the code: AQMD Rule 1403 (d)(1)(A)  This regulation is currently undergoing significant changes.  Check the web site for changes!!!

(d) Requirements

A person subject to this rule shall prevent emissions of asbestos to the outside air by complying with the following requirements:

(1) Demolition and Renovation Activities

The owner or operator of any demolition or renovation activity shall comply with the following requirements:

(A) Facility Survey

(I) The affected facility or facility components shall be thoroughly surveyed for the presence of asbestos prior to any demolition or renovation activity. The survey shall include the inspection, identification, and quantification of all friable, and Class I and Class II non-friable asbestos containing material, and any physical sampling of materials.

(ii) A thorough survey shall include, at a minimum,

identification of all affected materials at the facility, including but not limited to all layers of flooring materials to the joist level, and all material in the wall or ceiling cavities as necessary to identify and sample them.

(iii) The survey shall be documented with the following information:

(I) The name, address, and telephone number of the person who conducted the survey;

(II) A written statement of the qualifications of the person who conducted the survey, demonstrating compliance with clause (d)(1)(A)(iv);

(III) The dates the survey was conducted;

(IV) A listing of all suspected materials containing any asbestos, a listing of all samples collected, and a sketch of where the samples were taken;

(V) The name, address, and telephone number of any laboratory used to conduct analyses of materials for asbestos content;

(VI) A statement of qualification of the laboratory which conducted the analyses, demonstrating compliance with paragraph (h)(2);

(VII) A list of the test methods used, demonstrating compliance with subdivision (h), including sampling protocols and laboratory methods of analysis, test data, and any other information used to identify or quantify any materials containing asbestos; and

(VIII) A general description of the condition of the facility, including but not limited to a description of any obvious fire or structural damage.

(iv) Persons conducting asbestos surveys in accordance with subparagraph (d)(1)(A) shall be certified by Cal/OSHA pursuant to regulations required by subdivision (b) of Section 9021.5 of the Labor Code, and shall have taken and passed an EPA-approved Building Inspector Course.


Recent construction activities have occurred. The contractor was not a licensed contractor, and I am pretty certain that there is asbestos in my building. What should I do?

Based on the assumption that you have confirmed knowledge that the building material is greater than 0.1 per cent a violation of the code has happened, that violation could have endangered you, your family and tenants. Please refer to http://www.dir.ca.gov/title8/341%5F6.html . The code is specific Any employer or contractor engaging in asbestos-related work by disturbing more than 100 square feet of asbestos-containing construction material (greater than 0.1 percent asbestos by weight) during the course of work at a single worksite must be registered. Notify all persons potentially exposed to asbestos, identify the persons who conducted the work or demolition. Notify Both EPA and Cal OSHA that a spill has happened. The cognizant person must accomplish these steps as soon as possible. The Code section is as follows. The CCLA (Penal Code section 387) provides that anyone "who is a manager with respect to a product, facility, equipment, process, place of employment, or business practice" is guilty of a misdemeanor or felony if they: (1) have actual knowledge of a serious concealed danger; and (2) fail to report that danger to the affected employees and the Department of Industrial Relations (DIR). Violation of the Act is punishable by up to three years in state prison and a $25,000 fine. This notification should be accomplished by management, defined as the person in charge who has knowledge of the hidden hazard. Absent proof that a notification was made, you should consider what steps need to be taken.  This is a crime and someone could serve time in jail for failure to notify.  This is known as the "Be a manager -- go to Jail"  Regulation.

Here is the Labor Code section about in regards to CalOSHA:


2019 California Code

Labor Code - LABCA Labor Code § 6501.5 (2019)
6501.5. 

Effective January 1, 1987, any employer or contractor who engages in asbestos-related work, as defined in Section 6501.8, and which involves 100 square feet or more of surface area of asbestos-containing material, shall register with the division.

The division may grant registration based on a determination that the employer has demonstrated evidence that the conditions, practices, means, methods, operations, or processes used, or proposed to be used, will provide a safe and healthful place of employment. This section is not intended to supersede existing laws and regulations under Title 8, California Administrative Code, Section 5208.

An application for registration shall contain such information and attachments, given under penalty of perjury, as the division may deem necessary to evaluate the safety and health of the proposed employment or place of employment. It shall include, but not be limited to, all of the following:

(a) Every employer shall meet each of the following criteria:

(1) If the employer is a contractor, the contractor shall be certified pursuant to Section 7058.5 of the Business and Professions Code.

(2) Provide health insurance coverage to cover the entire cost of medical examinations and monitoring required by law and be insured for workers’ compensation, or provide a five hundred dollar ($500) trust account for each employee engaged in asbestos-related work. The health insurance coverage may be provided through a union, association, or employer.

(3) Train and certify all employees in accordance with all training required by law and Title 8 of the California Administrative Code.

(4) Be proficient and have the necessary equipment to safely do asbestos-related work.

(b) Provide written notice to the division of each separate job or phase of work, where the work process used is different or the work is performed at noncontiguous locations, noting all of the following:

(1) The address of the job.

(2) The exact physical location of the job at that address.

(3) The start and projected completion date.

(4) The name of a certified supervisor with sufficient experience and authority who shall be responsible for the asbestos-related work at that job.

(5) The name of a qualified person, who shall be responsible for scheduling any air sampling, laboratory calibration of air sampling equipment, evaluation of sampling results, and conducting respirator fit testing and evaluating the results of those tests.

(6) The type of work to be performed, the work practices that will be utilized, and the potential for exposure.

Should any change be necessary, the employer or contractor shall so inform the division at or before the time of the change. Any oral notification shall be confirmed in writing.

(c) Post the location where any asbestos-related work occurs so as to be readable at 20 feet stating, “Danger—Asbestos. Cancer and Lung Hazard. Keep Out.”

(d) A copy of the registration shall be provided before the start of the job to the prime contractor or other employers on the site and shall be posted on the jobsite beside the Cal-OSHA poster.

(e) The division shall obtain the services of three industrial hygienists and one clerical employee to implement and to enforce the requirements of this section unless the director makes a finding that these services are not necessary or that the services are not obtainable due to a lack of qualified hygienists applying for available positions. Funding may, at the director’s discretion, be appropriated from the Asbestos Abatement Fund.

(f) Not later than January 1, 1987, the Division of Occupational Safety and Health shall propose to the Occupational Safety and Health Standards Board for review and adoption a regulation concerning asbestos-related work, as defined in Section 6501.8, which involves 100 square feet or more of surface area of asbestos-containing material. The regulation shall protect most effectively the health and safety of employees and shall include specific requirements for certification of employees, supervisors with sufficient experience and authority to be responsible for asbestos-related work, and a qualified person who shall be responsible for scheduling any air sampling, for arranging for calibration of the air sampling equipment and for analysis of the air samples by a NIOSH approved method, for conducting respirator fit testing, and for evaluating the results of the air sampling.

The Division of Occupational Safety and Health shall also propose a regulation to the Occupational Safety and Health Standards Board for review and adoption specifying sampling methodology for use in taking air samples.


When I rent to someone what do I need to disclose about asbestos?

Please have an asbestos operations and maintenance plan and make a full disclosure, put it your lease or rental agreement. You can be somewhat vague, but please make the disclosures. Prepare an asbestos management plan pursuant to Section 25915.1.

Health and Safety Code
DIVISION 20. MISCELLANEOUS HEALTH AND SAFETY PROVISIONS [24000 - 26204]
CHAPTER 10.4. Asbestos Notification
Section 25915.1

 
CA Health & Safety Code § 25915.1 (through 2012 Leg Sess)

(a) An owner may elect to prepare an asbestos management plan for any building subject to this chapter, and in that case may, upon implementation of that plan, comply with the notification requirements of this chapter by providing notice to other owners and all employees of that owner working within the building of the following:

(1) The specific locations within the building where asbestos-containing construction materials are present in any quantity.

(2) Potential health risks or impacts that may result from exposure to the asbestos.

(3) Information to convey that moving, drilling, boring, or otherwise disturbing the asbestos-containing construction material identified may present a health risk and, consequently, should not be attempted by an employee who is not qualified to handle asbestos-containing construction material.

(4) The existence and availability of the management plan and a description of its contents.

(b) For purposes of this chapter, an asbestos management plan shall be designed to minimize the potential for release of asbestos fibers and to outline a schedule of actions to be undertaken with respect to the asbestos. The plan shall be prepared by a person accredited to prepare management plans for schools pursuant to Section 2646 of Title 15 of the United States Code and shall contain all of the following:

(1) The information specified in paragraphs (1) to (5), inclusive, of subdivision (a) of Section 25915.

(2) A description of an ongoing operations and maintenance program which shall include, but not be limited to, periodic reinspection and surveillance, suggested fiber release episode procedures, measures to minimize potential fiber releases, and information and training programs for building engineering and maintenance staff.

(3) Recordkeeping procedures to demonstrate implementation of the plan which shall be maintained for the life of the building to which they apply.


Who can I hire to test for asbestos?

In California and many other states you must hire a Licensed or Certified Asbestos Consultant to do the test. In California, Nevada and many other states it is illegal for a Licensed Contractor to collect samples or test for asbestos. California Business and Professions Code specifically states 7180(e). No licensed contractor or asbestos abatement contractor may provide professional health and safety services or perform any asbestos risk assessment. Only a licensed California Asbestos Consultant (CAC) or a Certified Site Surveillance Technician (CSST) working under the direction of a CAC can collect asbestos samples or as the law says perform any asbestos risk assessment. There is an exception, if a contractor has completed the AHERA/ASHARA Building Inspector Course and has taken the annual refreshers the contractor can collect up to ten samples as long as they do not disclose to anyone what the results were. So if a contractor wants to collect samples they should not tell you what they found. It is against the law for the contractor to charge you for the testing. If you are worried about paying a professional to test, you should realize that the CAC does not have a financial interest in finding asbestos and is impartial. If the Contractor brings in a CAC or CSST, they are in violation of the above code. Find the CAC on your own, you will then be pretty certain that you are not looking at a conflict of interest. The Contractor on the other hand needs to find asbestos so that he can make some money by removing it.


What are my responsibilities in regards to asbestos in my building?

Under California Health and Safety Code the building owner is required to provide any and all studies that were conducted to find asbestos material and where the material may be located in the building. The Code is California Health & Safety Code Section 25249.6. Required Warning Before Exposure To Chemicals Known to Cause Cancer Or Reproductive Toxicity. No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10. This code is also know as Proposition 65. The property does not qualify for an exemption based on the recent findings of positive asbestos content in the wall components. Asbestos has some other requirements under CAL. HSC. CODE § 25915 : California Code - Section 25915.


August 10, 2020 © Dan Napier, MS,  CIH,  CAC 92-614

Usual Disclaimers, if you have another interpretation of the Law or want it changed, please chat up the Governor about the changes in the law, otherwise please read the regulations and follow them as closely as you can. No matter how dumb you think the rules are they are the rules. I feel pretty dumb most of the time, especially when my wife asks “You did what?”.