My Building was Built in 1990,
I Don’t Need an Asbestos Survey…
Regularly we get calls from property owners and general contractors needing an asbestos survey late in their project process because they didn’t think an Environmentally Regulated Materials (ERM) Survey (also known as a hazardous materials survey) was required due to the building’s construction date.
Sometimes the calls are frantic- ‘we started demolition three days ago and the project was stopped by a regulator,’ to stressed- ‘we are starting demolition in two days and the demolition contractor won’t start without an ERM survey,’ to frustrated- ‘we went to pull our demolition permit and the City won’t issue it without a survey.’ We always get our clients what they need, but it can add days to their project start, and increased costs over a ERM survey done in advance.
Asbestos Common Misconceptions – Background
All these issues stem from the common misconception that asbestos has been outlawed in the US, and that after some date of construction (I have heard 1985, 1989, 1990, etc.) there can’t be asbestos in the building and an ERM survey is not required.
While some applications of asbestos, such as fireproofing, pipe insulation, and acoustic sprayed ceiling materials were banned, most building materials with asbestos have not been banned, such as floor tiles, mastics, and roofing, to name a few…
US manufacturers of building materials generally stopped intentionally adding asbestos to most of their products by the early 1980’s. However, you can still walk into a hardware store today and buy building materials containing asbestos, most notably roof mastic. We actually have to be careful when purchasing roof mastic to patch our roof sample locations, to make sure we buy the right type of mastic without asbestos. Some brands even have a non-asbestos version and a version that may contain asbestos.
Asbestos is also a non-intentional contaminant of many other building and other product ingredients. Asbestos is a naturally occurring mineral (rock), and it is sometimes present in areas where other minerals are mined, and when this occurs, it can unintentionally be part of that mined ingredient. This is why most baby powders now use cornstarch as the base, not talcum powder. Asbestos veins ran through some areas of talc, which is another naturally occurring mineral that is produced by mining, and when that talc was mined, there was the potential for accidental inclusion of asbestos in the talc.
Additionally, with the increased globalization of trade, building materials may be sourced from other countries with differing regulations on ingredient reporting. So there is the potential that a building material manufactured outside of the US contains asbestos, even though the material would not contain asbestos if manufactured in the US.
Regulations also require an asbestos survey prior to demolition or renovation of a building or other structure. The EPA through the National Emissions Standard for Hazardous Air Pollutants (NESHAPs) , Cal-OSHA through Section 1529 , and the local Air Quality Management District/Air Pollution Control District (for example: South Coast AQMD in Southern California through Rule 1403 ) all specifically require a survey to be completed prior to disturbing building materials, and none of these set an end date after which a survey is not required. These regulations place the onus of ensuring a survey is done on the building or project owner, but Cal-OSHA also places an additional requirement on the General Contractor to ensure that asbestos is handled appropriately on their projects, and without an ERM survey this requirement cannot be complied with.
There is no date after which a building is constructed that automatically means it does not contain asbestos, and the applicable regulations require a survey regardless of date of construction. So even a building built in 2022 will require a survey if it is to be demolished or renovated. Many municipalities also require a survey to have been done to issue a demolition or renovation permit. For some municipalities, it is a simple self-check box on the permit application, and some require submission of the survey.
The risks of not conducting an asbestos survey include the following, in no particular order:
- Schedule Risks- if you don’t have a survey done in advance, and are compelled to by a regulator, municipality, or contractor, this can delay the start of your project. There is the time to identify that the survey is needed, to hire a consultant, and for the consultant to conduct the survey and prepare the report. This delay can range from days to weeks.
- Regulatory Risks- if you start the demolition or renovation without a survey, the project team (contractors and owner) can be cited by a regulator for not following the rules. The most common would be for SCAQMD (or another Air Quality Management District/Air Pollution Control District) to become aware of the project, visit the site, and issue either a Notice to Comply requiring the survey to be completed before resuming work or a Notice of Violation requiring the survey and likely assessing a fine(s). A stop work order is also common to come from a municipality’s building department. Frequently the building department may also notify the AQMD/APCD.
- Health Risks and Associated Litigation Risks- If an asbestos containing material is disturbed because a survey wasn’t done, it can present a potential health risk to the people disturbing the material, others in the work area, and in some cases, even the public. No one wants to put anyone’s health at risk. Additionally, this can be the basis for litigation.
- Reputational Risks- the preceding risks all provide the potential to damage the reputation of an owner or contractor, if experienced.
There is no date of construction after which an ERM survey is not needed. A survey is needed prior to renovation or demolition in all cases, and not performing this survey in advance presents a variety of risks to the project and project team.
40 CFR Part 61, Subpart M, specifically subsection 61.145 (a)
CCR Title 8 Section 1529, specifically subsection (k)
South Coast AQMD has further clarified the requirement in their latest Rule 1403 Frequently Asked Questions (FAQ) document updated October 27, 2020), section 3.
CCR Title 8 Section 1529 subsection (d)(5)