Download the .pdf of this article ASBESTOS OVERVIEW by Gio Fanelli.
Recently several PHCC of California contractors have incurred liability on construction projects by not testing for asbestos prior to performing work. PHCC of California called on industry expert Gio Fanelli, Environmental Consultant and Trainer at ERT to educate our membership. Gio writes:
The word Asbestos is not a scientific word but is used as a lumping term that applies to six naturally occurring minerals that are mined from the earth and they are; Amosite (AM-o-site), Chrysotile (CRY-so-Tile), Tremolite (TREH-mo-lite), Actinolite (ack-TIN-o-lite), Anthophyllite (an-THAW-fill-ite) & Crocidolite (crow-SID-o-lite).
All of these are fibrous asbestiform silicate minerals under the label Asbestos which comes from the Greek word meaning “inextinguishable or unquenchable”. Around 2,500 years ago Greek and Roman physicians and historians wrote about Asbetinon or Rock Flax touting the use of this Magical Miracle Mineral they also mentioned that there were breathing illnesses and deaths among the slaves that were used to mine this mineral. What do you think made Asbestos this magical miracle mineral? It was the unique properties of being a chemical, electrical, fire, friction and heat resistant rock with a very high tensile strength. It was stronger than steel and could be woven into fabrics to make garments, tablecloths, curtains, clothing, candles and even lamp wicks.
During the period of Industrial Revolution, this Miracle Mineral would be used to build America starting at around the 1880’s until it was partially banned in 1980. Asbestos was used in well over 3,500 products over the 100-year period. It went from being a Miracle Mineral to one of the Most Feared Minerals when it became evident that it attributed to injury, illness and even death. The first recorded and documented case of asbestosis was in a woman named Nellie Kershaw in 1924, in which a $1 Million Dollar Worker’s Compensation Case was paid out by Johns Manville in 1969. World War II vets were also being diagnosed with high rates of mesothelioma stemming from the extensive use of asbestos in 1972. The Johns Manville Corporation filed for Chapter 11 bankruptcy after the increase of asbestos-related litigation in 1982.
President Reagan signed the Asbestos Hazard Emergency Response Act (AHERA) of 1986 into law which directed the U.S. EPA to develop a regulatory framework for identifying asbestos, abatement action plans, accreditation of persons through training by the use of the model accreditation plan. The Manville Personal Injury Settlement Trust was required to shift all asbestos liabilities to the new organization by 1988.
This brings us to present day in which Asbestos is known to be a human carcinogen and that it can cause Asbestosis. Asbestosis is a fibrotic or scarring of the lungs, Mesothelioma, on the other hand, is a pleural plaque around the lungs, stomach, upper intestines and is directly linked to Lung Cancer. Over the last five years, many major attorney firms around the country began representing victims and their families, this has created awareness within the public arena to the dangers of asbestos exposure. The main message is that this is very real and still very relevant in today’s society. The legal firms run advertisements on television around the clock with the message of Please call our hotline at 1-800-CALL-MESO for a free Meso Book They also make the statement, “if you or someone you know has been diagnosed with an asbestos-related illness, you may qualify to receive compensation from an asbestos-related trust fund.” They are advertising that there are $20 Billion dollars available in this trust fund.
So in all actuality what is the responsibility of contractors today? According to OSHA’s first asbestos regulation in 1971 and the main mission or goal of OSHA is to assure safe and healthful working conditions for all working men and women. They do this by setting and enforcing safety standards, providing training, outreach, education and assistance. OSHA requires that employers protect their employees from workplace hazards that can cause personal injury, illness, and in certain cases death. Controlling a hazard at its source is the ultimately the only way to you protect workers. First you need to eliminate the hazard completely, second if the hazard cannot be removed than engineering controls need to be implemented, and thirdly if these controls do not remove the potential for exposure to the known hazard than you must protect your employees with personal protective equipment better known as P.P.E.
The Federal OSHA Standard 29 CFR 1926 and The State of California OSHA Standard Title 8 CCR 1529 requires employers to presume based on the age of the property that asbestos is present in the building materials in any structure built before 1981 and to do your due diligence on any properties built after 1981 up until present day.
This means, that you must presume there is asbestos containing material which is referred to by OSHA as PACM, and you must follow all safety and health regulations as stated in the Federal and State Standards, unless the building materials are tested and proven that they do not to contain asbestos at the regulated level. What are the regulated levels? According to Cal/OSHA Asbestos Containing Construction Materials (ACCM) is at the level of 1/10th of 1% asbestos by layered analysis and not composite. Material that contains more than 1/10th of 1% are regulated and there is no de Minimis. So, yes even under 100 square feet of material is still asbestos containing because asbestos is a known human carcinogen and special notification must be sent to Cal/OSHA. If there are over 100 square feet, you must be registered with Cal/OSHA also referred to as DOSH as an asbestos abatement contractor with a CSLB C-22 Classification .
As a contractor, OSHA is just one regulatory agency you have to contend with; the other is AQMD – Air Quality Management District or also known as APCD’s – Air Pollution Control Districts in certain parts of the State which fall under the State California Air Resource Board (CARB) and they follow the Federal Environmental Protection Agency (EPA) and NESHAP Regulations. In Southern, CA SCAQMD has rule 1403 which is one of the most stringent in the State of California – they regulate and classify asbestos abatement projects as procedure 1, 2, 3, 4 & 5 and in most cases require an asbestos survey and notification if the amount of material being disturbed is 100 square feet or more.
The Department of Toxic Substance and Control (DTSC) requires all asbestos waste to be DOT/OSHA labeled, as well as manifesting which records the waste packaging and what landfill the waste was disposed of at. This can only be done by a registered hazardous waste transportation hauling company.
As a contractor, if you are doing anything that could impact the matrix of a building material that is suspected or must be presumed to contain asbestos without following the regulations stated above, then you can and will be held liable. The idiom “Knowledge is Power” in this instance is a very real statement because the onus is on you, the contractor, based on the expectation and laws put forth by these agencies that regulate asbestos. As a contractor, you have been tasked with knowing what the asbestos regulations are. You cannot claim ignorance of the law or the regulations as this will not protect you from any citations, violations, Notices to Comply, audits, or any civil and criminal penalties. These can come with fines from $10,000.00 and go up from there per violation, per day with the possibility of jail or prison time. This can and does happen and if you are found to be “Knowingly or Willfully” violating of any of the regulations and especially the EPA’s Clean Air Act (CAA) which is a Federal regulation meaning a federal felony conviction at a minimum prison time of 15 months and restitution at the $100-thousand-dollar range. Please click here to for the most recent case in California as an example.
In closing, it is daunting to not only maneuver all of these federal and state asbestos regulations but knowing what all of them are. These regulations are not new and have been on the books for well over 27 years. Just know that there are subject matter experts that can and will help guide you through the proper channels to receive training, certification, and abatement and pollution insurance options that will help you to reduce or eliminate your level of risk and liability.
As a second generation Environmental Contractor, Consultant and Trainer, Gio Fanelli got his start in an apprentice role in 1984 at the Local 38 Plumbers & Pipefitters Union as an asbestos abatement worker and thermal systems insulation installer. He has had the pleasure and privilege of working in many roles and positions within the Environmental field. Today with over 31 years of experience within the remediation industry his primary focus is on the topics of Asbestos, Lead, and Mold. Fanelli is a Federal and State accredited training provider on these and other Safety related topics. You may reach Gio at gfanelli@ert360.com.