Does Your Building Have an Asbestos Survey and an O&M Program?
Take-away: If you have a pre-1981 building, you have special asbestos-related obligations.
Under federal law, any building constructed before 1981 is presumed to contain asbestos in certain installed construction materials (these materials are referred to as “ACM” or “PACM”). This presumption covers thermal systems insulation, such as pipe wrap and duct insulation; sprayed or troweled surfacing materials, such as fireproofing and acoustical material; and asphalt and vinyl flooring and mastic. While not covered in the statutory presumption, other construction materials in buildings of the same age that frequently have been found to contain asbestos include ceiling tile, gaskets, siding and roofing material, wallboard/wallboard systems, and ceiling plaster/stucco systems.
The presumption that asbestos is present triggers two separate but related obligations of “building owners” with respect to ACM or PACM in the common areas. In the case of associations and cooperatives, the “owner” is the association itself, not individual unit owners or shareholders.
First, building owners are required to determine the presence, location and quantity of actual and presumed asbestos containing material, ACM and PACM. This obligation is typically satisfied with an Asbestos Survey conducted by a certified industrial hygienist. The Survey must be updated before any repair, renovation, demolition or restoration work is done in an area that has been designated as containing ACM or PACM.
Second, if ACM, which is presumed to be present in designated materials unless removed, or PACM has been found, an Operations and Maintenance Program (O&M) for the building is also required. The purpose of the O&M is to minimize the exposure of all building occupants, workers, contractors, and their employees to asbestos fibers through the implementation of a written plan of policies and procedures. The O&M establishes work practices for the building including cleaning, maintenance, inspection and monitoring to maintain ACM and PACM in good condition; to prevent the accidental release of asbestos containing fibers during routine and/or scheduled maintenance/repairs/renovations; and to ensure proper clean-up of asbestos fibers previously released. The O&M should also include training of the property manager in all of the foregoing.
Finally, building owners are required by statute to notify residents, tenants, building employees, maintenance and housekeeping persons, as well as contractors and their employees, who will be doing any maintenance/repair/renovation/construction activities, of the presence, location and quantity of ACM and PCM in the building. This notice obligation is not triggered only by the commencement of work to remove or abate ACM but begins much earlier with the determination of ACM and PACM from the time of the Asbestos Survey or Update, and includes anticipated construction work that could potentially damage or disturb ACM or PACM.
Inspectors with the D.C. Department of Environment can impose fines and sanctions for violations of these requirements. If your Association should need assistance working through these requirements, please contact us.
Valerie L. Tetro, Esq.
Partner, Co-Head, Insurance Coverage & Defense Litigation and General Counsel