ASBESTOS IN HOME IMPROVEMENT CONSTRUCTION. Part One of a Two Part Series on Asbestos and Lead

Transcription

1 ASBESTOS IN HOME IMPROVEMENT CONSTRUCTION Part One of a Two Part Series on Asbestos and Lead Asbestos and lead are two of the more dangerous chemicals known to be present in building materials. Most who work in construction are aware of the presence and dangers of asbestos and lead exposure. However, we present a refresher on some of the important things to know and where to find other resources on the subject. In this Part One, we address issues about asbestos. What is asbestos? Asbestos is a naturally occurring mineral fiber that has been used extensively in the construction industry because it is very resistant to destruction by heat or other chemicals and its fibers are extremely durable. i Where has it been used? Nearly every building contains asbestos in some form or another. ii It was commonly used in wall insulation, paint, sprayed or troweled on surfacing materials, ceiling and flooring materials, pipe/boiler/duct insulations, and cement filler. iii Why is it dangerous? Asbestos becomes dangerous when the asbestos fibers are released into the air where those fibers can be inhaled by humans. iv The small fibers can remain in the air for long periods of time and cannot be seen without a microscope. The smaller fibers travel into airways and become embedded in the lungs or other respiratory areas. Asbestos inhalation (and other ingestion) has been known to cause asbestosis, lung cancer, mesothelioma, and other cancers and ailments. v Generally, experts believe there is no safe level of exposure to asbestos. vi However, the higher the exposure the greater the risk of disease. Asbestos Education and Licensing. All new applicants for a California Contractor s license must complete the asbestos open book examination. vii The open book exam covers basic information regarding asbestos including its dangers, regulations pertaining to contractors, and how to handle asbestos materials. Generally the exam and verification form must be completed and submitted prior to licensure. 1

2 If for some reason you are licensed and have not completed the exam and submitted the form, you should do so immediately. The Contractor s Guide and Open Book Examination is found at: Certification and Registration. Most contractors do not specialize in asbestos abatement and therefore should subcontract with a specialist when needed. Generally, asbestos related work is defined by the Labor Code to include any activity which by disturbing asbestos-containing construction materials may release asbestos fibers into the air. viii If a contractor is removing asbestos containing materials that exceed 100 square feet of surface area, that contractor must be certified in abatement. One becomes certified by completing a more comprehensive Asbestos exam administered by the CSLB. The contractor must also register with the Asbestos Contractor Registration Unit of the Department of Industrial Relations Division of Occupational Safety and Health (DOSH). ix Uncertified contractors may remove asbestos-containing materials involving less than 100 square feet of surface area, but he/she must still file a Carcinogen Report of Use form with the DOSH. And any person involved in the project must complete 40 hours of asbestos training by a DOSH approved trainer. x Before the Start of a Project / Standard of Care. Contractors are required to be aware of the presence of Asbestos on a job. The owner, employer, or contractor must make a good faith effort to determine whether asbestos is present before work begins. xi The employer or contractor must presume that asbestos is present in any building or structure built before xii Contractors must ask the owner if asbestos is present if the building was constructed prior to xiii If the owner states materials are asbestos free, you should obtain proof in writing. Important Caveat. Please note that from our admittedly finite research, there appears to be no statutory requirement to affirmatively test for asbestos in all circumstances. This includes buildings constructed prior to However, because of the presumption regarding buildings constructed prior to 1980, the contractor should take additional care in inspecting the proposed work areas for possible 2

3 asbestos containing materials. Even when a contractor is removing less than 100 square feet of surface area of asbestos-containing materials, contractors will be held to a general construction industry standard of care. So, be diligent, be prudent. Address what you will do and won t do about asbestos in your contract. Take any concerns raised at any time seriously. Fines and Penalties. When it comes to asbestos, contractors in California can be penalized by the CSLB, Federal OSHA, CAL/OSHA, and by the Environmental Protection Agency under the NESHAP regulations. A contractor who violates the CSLB regulations including certification and registration may be subject to misdemeanor charges and fines, or fines of up to 20% (or $5,000) of the total contract price and/or jail for subsequent violations. xiv Penalties imposed by CAL/OSHA for violations under the Labor Code may include fines up to $5,000 or jail time up to six months for a first offense, increasing to as much as $20,000 for a subsequent willful violation. xv A violation of the NESHAP standards, which do not apply to residential buildings with four or fewer dwelling units, can incur penalties up to $25, per day per violation. xvi Please remember, these are just some examples of possible fines and penalties for asbestos related violations. Guidelines for Handling Asbestos. Experienced contractors can often identify materials that are suspected to contain asbestos upon visual inspection. Common examples include floor tiles and pipe insulation. However, actual determination can only be made by laboratory analysis. xvii If asbestos containing material is suspected in an area being worked on, stop work in the area. xviii At this point, properly certified or registered persons should collect samples from any suspected asbestos containing material and have them tested by a licensed laboratory. xix Until the results are back, you should assume that the material contains asbestos and take precautions. DOSH requires that any employee exposed to asbestos above the Permissible Exposure Limit (PEL) be notified of the fact by the employer within five days of the discovery of the exposure. xx A report must also be made to the nearest DOSH district office within 15 days. xxi 3

4 If you find suspected asbestos containing materials either before the project begins or during the project, it is strongly recommended that you subcontract testing and any abatement work to a licensed registered asbestos expert, regardless of the quantity of the suspected material. In summary. It is the contractor s responsibility to be aware of the rules and regulations regarding asbestos. As a contractor you can be liable to employees, other contractors, owners/tenants/occupiers of the premises, and others for mismanagement of asbestos. Please be cautious when asbestos may be present and consult certified and registered asbestos specialists. Remember, it is the responsibility of the contractor to reasonably inspect the area of work for possible asbestos containing materials that may be disturbed during the project and to take proper remedial steps when necessary. **************** Bryant H. Byrnes, Esq. practices construction law in the San Francisco Bay Area and is counsel to the SFBA NARI Board of Directors. Brian J. Trowbridge, Esq. of Trowbridge Law Office practices construction law, business law, succession and estate planning, and employment law in the San Francisco Bay Area. Questions? Bryant s website is Feel free to contact him by at Bryant@bryantbyrnes.com. Brian s website is and you can him at btrowbridge@trowbridgelawoffice.com. For Bryant s previous articles, please visit SFBA NARI s website and click on the link In the News/Newsletter under For the Trade. They are also available on his website under Articles, and on Brian s website under Publications. As always, these articles are summary discussions only - to simply give you a heads up on various construction topics. The information contained herein is not legal advice. Each scenario is different and if you need legal advice you should contact an attorney immediately. i A Consumer Guide to Asbestos, Contractors State License Board, 2013, p. 2; ii Id. at p p. 2. iii Id. at p. 2. iv Id. at p. 3. v Id. at p vi Id. at p. 3. vii Asbestos: A Contractor s Guide and Open Book Examination, Contractors State License Board, Sept viii Id. at p

5 ix Id. at p. 20. x Id. at p. 20. xi Id. at p. 31; & California Labor Code Section xii Asbestos: A Contractor s Guide and Open Book Examination, Contractors State License Board, Sept. 2011, p. 31. xiii California Labor Code Section xiv Asbestos: A Contractor s Guide and Open Book Examination, Contractors State License Board, Sept. 2011, p. 21, 25. xv Id. at p. 31. xvi Id. at p.25. xvii Id. at p. 30. xviii Id. at p. 33. xix Id. at p. 33. xx xx Id. at p. 34. xxi xxi Id. at p