Do I Really Need An Asbestos Survey, Even If The Property Was Constructed After 1980?
As a seasoned asbestos inspector, this must be the number one misconception that most of my clients have about whether or not they need an asbestos survey. For some reason the conversation always ends up going a little something like this:
Client: “Yeah business is really good and we are getting ready to purchase a new property and renovate the existing building because we are running out of space at our old place. So I wanted to see about getting a cost from you to do a Phase I on the new property for us.”
Me: “Well that’s great news! Can you fill me in on little bit of information regarding the site so we can get the ball rolling? You said that you are planning to renovate the existing building, correct? Has there been a past asbestos survey conducted on the building that you know of?
Client: “I don’t think so, but it really shouldn’t be necessary. It was built in the late 80s or early 90s, so we should be good.”
Me: “Well you do know that Environmental Protection Agency’s (EPA) National Emission Standard for Hazardous Air Pollutants (NESHAP) requires an asbestos survey prior to any renovation or demolition regardless of the date of construction?”
Client: “Really? I wasn’t aware of that, is this some new requirement? I always thought if it was constructed after the 80s you didn’t need a one.”
So how did this misconception get started? To better understand the reason why, let’s first look a little further into the history of the quote-on-quote “asbestos ban”. As we began to learn about the health effects associated with asbestos exposure, the Occupational Safety & Health Administration (OSHA) and the National Institute of Safety & Health (NIOSH) began research in the early 1970s, and later established the first standard for regulating asbestos exposure back in 1971. During the same year, the EPA had realized the same concerns and identified asbestos as a hazardous air pollutant. Two (2) years later, the EPA published the Asbestos National Emission Standard for Hazardous Air Pollutants (NESHAP) under the Clean Air Act (CAA) in 1973, and in the same year banned the use of spray-applied asbestos fireproofing and insulating products. Shortly after in 1975, the EPA banned the use of wet-applied and pre-formed (molded) asbestos pipe insulation and block insulation on boilers and hot water tanks. Subsequently, in 1977 the EPA banned asbestos joint compounds and in the following year (1978), the ban was extended to include spray applied asbestos containing products used for “decorative” purposes.
Moving forward to 1986, OSHA published 40CFR 1910.1001 and 1926.1101 (the Asbestos General Industry & Construction Industry Standards) which established a key definition and date; presumed asbestos containing materials and the year 1980. According to OSHA, presumed asbestos containing material(s) means, thermal system insulation (pipe insulation) and surfacing materials (fireproofing and popcorn ceiling texture to mention a few) found in buildings constructed no later than 1980. In addition, 1910.1001(j)(2) states that asphalt and vinyl flooring material installed no later than 1980 also must be treated as asbestos-containing (or presumed). So you can begin to see where this 1980s date comes into play. However, even with these bans in place, many construction industry suppliers still had asbestos containing products warehoused in their facilities which were sold and installed in buildings well into the mid-1980s.
In 1989, the EPA attempted to enact the “asbestos ban and phase out rule,” under the Toxic Substances Control Act (TSCA), extending the ban on asbestos containing materials, only to have it overturned by the U.S. 5th Circuit Court of Appeals in 1991. However, six (6) asbestos containing product categories listed in the 1989 rule are still subject to the asbestos ban, these are corrugated paper, rollboard, commercial paper, specialty paper, flooring felt and any new uses of asbestos. With this, numerous products were not banned after the 1991 court ruling including materials such as asbestos-cement corrugated sheet, asbestos-cement flat sheet, asbestos clothing, pipeline wrap and others. Therefore, structures built after 1990 which contain any of these building materials may contain asbestos. It should also be understood, that Canada and Russia, along with many other countries in the world, still actively mine asbestos for commercial use. With the enactment of the North American Free Trade Agreement (NAFTA) and the fact that the EPA does not track the manufacture, processing, or distribution of asbestos-containing products within commerce; some asbestos containing materials may still be available for sale and use in the United States.
So, with all of that said…does having a building that is built after 1980 make you less likely to have asbestos-containing materials (ACMs)? The likely answer is yes; however, does it make your building 100% “free” of ACMs? That answer is no. That is why the EPA NESHAP regulation states, if you’re going to demolish or renovate a building you must have an asbestos survey to determine if ACMs are present prior to the commencement of the project. And it should be understood, renovation also includes your routine maintenance activities, which are required for your day-to-day operations of a building. So at the end of the day, do you need to have any asbestos survey if your building was built after 1980? Well, if you’re looking to renovate or demolish, it sounds like the answer is yes.
If you are looking for further information on this topic, join me in my next webinar titled “When Asbestos Inspections are Required” on February 3rd. In this webinar, I will discuss this topic in more detail and provide insight and assistance with navigating the regulation and understanding when an asbestos survey is required. In addition, I will provide further consideration for when an asbestos survey may be beneficial to couple with a Phase I Environmental Site Assessment during a property transaction or acquisitions to avoid possible unforeseen environmental expenses.