Previously, in Part 1 of this series, we established that the Environmental Protection Agency’s National Emission Standard for Hazardous Pollutants (NESHAP) requires us to test 100% of structures for the presence of asbestos regardless of the date the building was constructed prior to any renovation or construction project that falls under NESHAP.

 The Asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP) covers the following:

• Privately owned residential dwellings or apartments that are demolished for urban renewal or as part of a public or commercial project 
• Mobile structures used for non-residential purposes 
• Any institutional, commercial, public, industrial, or residential structure, installation, or building 

But excludes:

• Isolated single-family homes: Homes that are not part of a larger project or group of buildings under the same ownership 
• Residential buildings with four or fewer units: Unless they are part of a larger installation 
• Mobile homes used as single-family dwellings: Unless they are part of a larger installation 

Savvy readers may have realized that when we last left off, there was a gaping hole in the regulation, it excludes residential buildings that have four or fewer dwelling units. 

That is where OSHA fills in. EPA Doesn’t hold the final say in how we protect our employees. 

What Does OSHA Say?

OSHA states that the cut-off date for asbestos testing is 1980, right? No, OSHA is likely the biggest culprit (sorry, OSHA) of why there is so much confusion in our industry surrounding this topic. The 1980 date is commonly referred to as the “Presumption Rule”.

“The Presumption Rule,” appears in OSHA 1926.1101 - Asbestos, and is precisely why you hear the 1980 date thrown around as the date when asbestos testing is no longer needed. What OSHA actually says is that Thermal System Insulation, Surfacing Materials (anything sprayed or troweled on), Asphalt and Vinyl Flooring must be presumed positive until tested otherwise if the building was constructed no later than 1980.

This is simply a directive to presume that it is positive until testing is performed. This is NOT OSHA telling us that there is no need to test homes built in 1981, 1991, or 2023. This rule can get a little confusing as you need to be aware of what it does NOT say rather than what it is saying.

Outside of the 1980 rule, OSHA tells us that testing is always required in many, and unfortunately somewhat indirect ways. Here is what OSHA says in just a few of its letters of interpretation;

In a letter of interpretation OSHA states: 

“OSHA would consider actions that a reasonable employer would take in a given situation. OSHA determined that buildings constructed after January 1981 are less likely to have asbestos-containing materials installed in them, but this is not for certain. For example, building owners may know of, or suspect that asbestos-containing materials were installed in their building after the cut-off date set by OSHA. In these cases, the building owner is responsible for investigating this material and complying with the asbestos standard.” 

In another letter of interpretation OSHA states: 

“You requested OSHA's point on the presence of asbestos in buildings constructed after 1980. OSHA has concluded that asbestos-containing thermal system insulation (TSI) and asbestos-containing surfacing material (SM) are not prevalent enough in buildings constructed after 1980 to require building owners to presume that the materials are asbestos-containing. However, asbestos may still be present in some of these buildings. Accordingly, building owners must exercise due diligence in regard to identifying the presence of asbestos in thermal system insulation, surfacing material, vinyl flooring material, ceiling tile, joint compound, and other materials installed in buildings constructed after 1980.”

Finally, clear as day, OSHA explains themselves pretty clearly in its August 10, 1994 Final Rule, FR #:59:40964-41162)   (https://www.osha.gov/laws-regs/federalregister/1994-08-10) where it states:

“....In this regard OSHA notes that the purpose of a cut-off is not to state a date after which it is certain that no asbestos-containing material has been installed in buildings. Rather, it is to designate when it becomes unlikely that asbestos-containing materials have been used in construction. OSHA believes that 1980 is a reasonable date for marking that probability. As noted above, employers and building owners are still required to investigate materials installed after 1980 when they suspect they may be asbestos-containing.”

As many of you may know, OSHA tells us asbestos-containing material is building material that includes 1% or greater asbestos content. What OSHA also tells us is that for materials under 1% asbestos content, we need to identify it, provide protection for workers on-site, and treat it as a hazard. This would be quite difficult to identify if not tested first.

It is important to remember that OSHA’s main concern is the protection of employees and will also lean in that direction when issuing violations and determinations.

So, while OSHA does not quite come out and say there are going to be penalties coming for those who do not test for the presence of asbestos regardless of build by date, one thing is quite clear – They do not provide an absolution date.

OSHA VERDICT: OSHA Provides No Cut-off Date

Conclusion

As this article lies somewhere in between an opinion piece and a definitive letter of intent from OSHA, all contractors and restoration professionals have a choice to make moving forward on how to handle this, I just hope I have shed some light so that all can make a little more informed decision.

The single most important research concept you should incorporate when dealing with a complex topic like this, “Don’t take yes for an answer.” You will find many statements that imply “yes you are exempt…” Do not stop there, as I have outlined in this article there are specific reasons you are not exempt from testing, the safety of your employees and your customers. 

I urge you to reach out to your local regulators, consultants, educators, and those well versed in both your specific state and the federal regulations. There are details, nuances, and different state laws to consider. There are also natural disasters and other types of emergencies that may temporarily lift or absolve some of these requirements which also need understanding if you want to be in compliance. I chose to discuss the federal regulations in this article as we all know that States can be more stringent than federal regulations but never less (think the federal and state minimum wages). The federal regs apply to us all. I simply hope to provide some clarity and simplicity to my peers and colleagues on a complex topic in one nice spot. 

The Environmental Protection Agency is crystal clear on their stance that there is no cut-off date for asbestos testing on properties that fall under NESHAP and we have at least dispelled the notion that OSHA provides an actual absolution date, and additionally state regulations will only get more stringent from there. We also know that asbestos is present in building material in both residential and commercial structures without a hard stop ban like lead and 1978 – it is still out there! With this information, how will you move forward to protect yourselves, your employees, and the public?