ENVIRONMENTAL SURVEY UPDATE ARTICLES
PROJECT PROFILES:
DUTIES OF BUILDING OWNERS AND LESSEES UNDER THE OSHA ASBESTOS STANDARD
by Monica Gambino
As we approach the third anniversary of the Occupational Safety and Health Administration's (OSHA's) amendments to the general industry and construction asbestos standards, it is time for building owners and others "who exercise control over a building's management" to assess their progress in complying with these standards. In addition to making sweeping changes to the way asbestos-containing materials ("ACM") must be managed, these amendments created duties for the first time upon building owners (29 C.F.R. 1910.1001(j)(2) and 1926.1101(k)(2)). Under the OSHA definition of "building owner" any entity, including a lessee, can be considered a "building owner" if it exercises control over management and recordkeeping functions relating to a building in which activities covered by the standard takes place. Activities covered by these standards include not only ACM, but also "presumed asbestos-containing material" (PACM) as well. In other words, if your building was built before 1981, and it contains thermal surface installation (TSI), troweled-on or sprayed-on insulation or certain vinyl or asphalt-containing flooring material, you must presume that it contains asbestos. Unless you rebut this presumption (through specific procedures established by OSHA), all such material must be managed in the same manner as material known to contain asbestos and must be labeled. Since the promulgation of the standards, many building owners have developed information to rebut this presumption to avoid the rigorous new obligations that require them to provide hazard communication and ACM/PACM training, to initiate new housekeeping procedures, and to meet recordkeeping requirements.
Under the amended standard, building owners and controlling lessees must provide information regarding the location of ACM or PACM to: employers in the building, maintenance and housekeeping employees, contractors, tenants (if ACM or PACM will be disturbed) and to successive owners. Building owners are required to label the ACM and PACM and to provide warnings at entrances to machine rooms and other mechanical areas where ACM or PACM is present. Building owners must also investigate other building materials if there is information suggesting they contain asbestos before disturbing such materials.
The amended standard also revised the training requirements for workers who remove asbestos and for maintenance and custodial workers. If, as a building owner, you utilize your own employees to perform maintenance or custodial work, your employees should now have been trained and have participated in annual refresher courses. The length and type of training will depend upon the type of PACM or ACM present and the type of work to be performed. In addition, the building owner must keep a record of the locations of PACM and/or ACM and transfer this compiled information to successive building owners.
Three years have passed since OSHA has promulgated the new asbestos standards and the lessons learned have been many. However, the application of the standard remains subject to considerable question and controversy. Issues relating to notification and training often must be decided on a factually-specific basis and are not often without controversy. In light of these issues, the building owner must remain cognizant of the legal and technical ramifications when making decisions on implementation of the standard.
Ms. Gambino is an associate in the environmental section with the firm of Babst, Calland, Clement & Zomnir. She can be reached at (412) 394-5456 or by email at mgambino@bcczsel.attmail.com.
