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.
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.
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.
What are the requirements for the person conducting the
Asbestos Survey Work?
A building survey must be conducted by a licensed California
Asbestos Consultant (CAC) or a Certified Site Surveillance
Technician (CSST) working under the direct supervision of a
CAC. Your best option is to hire a Certified Industrial
Hygienist (CIH) who also holds the CAC certificate. Poorly
executed asbestos survey work is very costly in the long or short
run. Missed items will prove very costly "change
orders" and add a risk of an Agency enforcement action.
Here are the code sections for the CAC, CSST designations:
Ca. Bus. and Prof'l. Code § 7180
Section 7180 - Requirement of certification as asbestos
consultant or site surveillance technician
(a) No person shall, on or after July 1, 1992, engage in the
practice of an asbestos consultant as defined in Section 7181,
or as a site surveillance technician as defined in Section 7182,
unless he or she is certified by the Division of Occupational
Safety and Health pursuant to regulations required by
subdivision (b) of Section 9021.5 of the Labor Code.
(b) Certification as an asbestos consultant or site surveillance
technician shall not be required when a licensed contractor or
registered asbestos abatement contractor takes no more than 12
bulk samples of suspected asbestos-containing material that is
required to be removed, repaired, or disturbed as part of a
construction project in a residential dwelling solely for any of
the following purposes:
(1) bid preparation for asbestos abatement;
(2) evaluating exposure to its own employees during construction
or asbestos abatement; or
(3) determining for its own purposes or for the purpose of
communicating whether or not a contract for asbestos abatement
has been satisfactorily completed. Persons taking samples for
the purposes described in this section shall be certified
building inspectors under the Asbestos Hazard Emergency Response
Act, as specified in Section 763 of Title 40 of the Code of
Federal Regulations, appendix (c) to subpart (e). No licensed
contractor or asbestos abatement contractor may provide
professional health and safety services or perform any asbestos
risk assessment. A bid for asbestos abatement may communicate
the results and location of sampling for the presence of
asbestos and how the asbestos will be abated. This section does
not affect the requirement that asbestos abatement contractors
be registered under Section 6501.5 of the Labor Code, nor does
it permit a licensed contractor or asbestos abatement contractor
to perform clearance air monitoring following asbestos
abatement, unless otherwise permitted by law.
Cal. Bus. & Prof. Code § 7181
An "asbestos consultant," as used in this chapter, means any
person who contracts to provide professional health and safety
services relating to asbestos-containing material, as defined in
subdivision (b) of Section 6501.8 of the Labor Code, including
building inspections, abatement project design, contract
administration, supervision of site surveillance technicians as
defined in Section 7182, sample collections, preparation of
asbestos management plans, and clearance air monitoring.
Cal. Bus. & Prof. Code § 7182
A "site surveillance technician" means any person who acts as an
independent onsite representative of an asbestos consultant who
monitors the asbestos abatement activities of others, provides
asbestos air monitoring services for area and personnel samples,
and performs building surveys and contract administration at the
direction of an asbestos consultant.
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,
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.
June 15, 2022 © 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?”.