August 13, 1999

Walter Chun, M.S., CSP, CHSP, CECM
OSHCON, INC.
P.O. Box 25850
Honolulu, Hawaii 96825-0850

Dear Mr. Chun:

This is in response to your October 9, 1998 request for clarification of the Occupational Safety and Health Administration's (OSHA's) Construction Industry Asbestos Standard, 29 CFR 1926.1101. We apologize for the delay in our reply.

You note that according to 29 CFR 1926.1101(a)(1), the Construction Industry Asbestos Standard regulates demolition or salvage of structures where asbestos is present and that 29 CFR 1926.1101(b) defines asbestos-containing material (ACM) as any material containing >1% asbestos. You ask that we clarify the applicability of the standard to a demolition operation involving material containing <1% asbestos.

If the demolition operation would involve material containing >1% asbestos it would be Class I or II asbestos work, since Class I or Class II asbestos work is removal of ACM, and according to 29 CFR 1926.1101(b), "removal" includes demolition operations. Since the demolition operation involves material containing <1% asbestos, the work is not a designated class of asbestos work, as you correctly note in your letter. Therefore, only 29 CFR 1926.1101(g)(1)(ii) and (iii), as well as those recordkeeping requirements under 29 CFR 1926.1101(n) that are associated with the negative exposure assessment, apply so long as neither asbestos permissible exposure limit (PEL) is exceeded or might be exceeded. 29 CFR 1926.1101(g)(1)(ii) requires:

"Wet methods, or wetting agents, to control employee exposures during asbestos handling, mixing, removal, cutting, application, and cleanup, except where employers demonstrate that the use of wet methods is infeasible due to for example, the creation of electrical hazards, equipment malfunction, and, in roofing, except as provide in paragraph (g)(8)(ii) of this section;"

and 29 CFR 1926.1101(g)(1)(iii) requires:

"Prompt clean-up and disposal of wastes and debris contaminated with asbestos in leak-tight containers except in roofing operations, where the procedures specified in paragraph (g)(8)(ii) of this section apply."

On the other hand, if at least one of the asbestos PELs is exceeded or might be exceeded, then all the requirements that are not strictly reserved as work practice requirements for Class I, II, III, or IV asbestos work apply or might apply. An exception would be if there were not frequent enough exposures above the asbestos PELs to activate a specific requirement. For example, an employer is not required to make a medical surveillance program available to an employee who is not engaged in Class I, II, or III work or exposed at or above a permissible exposure limit for a combined total of 30 or more days per year.

An example of the many requirements that apply when either one of the asbestos PELs is exceeded is 29 CFR 1926.1101(j)(4) which states, "The employer shall ensure that employees do not smoke in work areas where they are occupationally exposed to asbestos because of activities in that work area." This requirement applies wherever the employer must establish an asbestos-associated regulated area. Such a regulated area must be established where Class I, II, or III asbestos work is done or where at least one of the asbestos PELs is exceeded.

You ask if a demolition project involving only materials containing <1% asbestos requires an initial negative exposure assessment. In order to avoid the need to comply with the elements of the standard that are applicable when either asbestos PEL is exceeded, the contractor conducting the demolition project must produce an initial negative exposure assessment for his/her employees.

There are three potential approaches provided under 29 CFR 1926.1101(f)(2) for producing a negative exposure assessment. These are the use of objective data, previous air monitoring results, or current air monitoring results. If the contractor cannot produce a negative exposure assessment with objective data or previous air monitoring results, then the contractor must conduct asbestos exposure monitoring. Until the contractor is able to produce a negative exposure assessment for his/her employees, the contractor must comply with the elements of the standard that are applicable when either asbestos PEL is exceeded.

As to your inquiry into the protective equipment and training that must be provided to employees who are working while the contractor seeks to produce a negative exposure assessment, the contractor must provide those employees with the protective clothing described in 29 CFR 1926.1101(i). At a minimum, half-mask air-purifying respirators, other than disposable respirators, equipped with high efficiency filters are required. And, the contractor must provide those employees training that meets the mandates of 29 CFR 1926.1101(k)(9)(viii).

You also ask about the procedures for determining the asbestos content of material. Specifically, you ask if OSHA recognizes the point counting method for determining the asbestos content. Yes, OSHA considers the point counting method to be acceptable, but OSHA does not require that it be used. Polarized light microscopy (PLM) is the root method used for identification of asbestos. Point counting is one of the techniques used to quantify the amount of asbestos present in a sample on which PLM has already been performed.

The last issues you raise concern 29 CFR 1926.1101(k), Communication of hazards. You ask whether the building/facility owner must provide information regarding the presence of building or facility materials that contain <1% asbestos. The owner is not required to provide this information. The owner is required to provide information only about the presence of materials containing greater than or equal to 1% asbestos. Nonetheless, a contractor receiving notification from a building owner that all materials in the building are non-ACM may not conclude from this communication that the materials present no potential asbestos exposure hazard for the contractor's employees. If the materials were tested for asbestos in accordance with the testing requirements in 29 CFR 1926.1101, then the contractor is not required to observe the standard's requirements for Class I, II, III, or IV asbestos work when tasks involving the materials are performed. However, if the materials contain some amount of asbestos that is less than or equal to 1%, the contractor must observe the asbestos PELs and 29 CFR 1926.1101(g)(1)(ii) and (iii). Therefore, the contractor has an implied obligation to determine if the materials contain some asbestos. The contractor must exercise due diligence to identify the presence of asbestos in materials.

An investigation of whether any of the materials are prone to contain some amount of asbestos which is less than or equal to 1% would be one example of action the employer must take in order to meet the test of exercising due diligence. If the contractor determines that the materials contain some asbestos, then the contractor must determine if compliance with 29 CFR 1926.1101(g)(1)(ii) and (iii) is sufficient for preventing exposures above the asbestos PELs. Engineering and work practice controls must be used whenever asbestos exposures above either PEL would occur without their use. If feasible engineering and work practice controls are not adequate to prevent exposures above an asbestos PEL, respiratory protection must be used to supplement the controls.

You note that 29 CFR 1926.1101(k) sets out the responsibilities of employers for providing employees information on the presence of asbestos. You ask if employees performing demolition work involving materials containing <1% asbestos are covered by these employer responsibilities. The employer responsibilities to which you refer are presented at 29 CFR 1926.1101(k)(3). The requirements at 29 CFR 1926.1101(k)(3) are not applicable to employees doing demolition work involving material containing <1% asbestos because the scope of the requirements is limited to ACM and PACM. However, if the employee asbestos exposure levels exceed one or both of the PELs, the employees will be informed of the presence of asbestos because the employer must establish a regulated area and implement procedures that comply with 29 CFR 1926.1101(e).

You asked if there are other standards that can be used to protect employees from an asbestos health hazard presented by material containing <1% asbestos. The shipyard employment standard for asbestos, 29 CFR 1915.1001; the General Industry standard for asbestos, 29 CFR 1910.1001; and 29 CFR 1926.1101 are the only OSHA standards for regulating the asbestos health hazard presented by material containing <1% asbestos. The Hazard Communication Standard, 29 CFR 1910.1200, does not apply to material containing <1% asbestos.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. Please be aware that OSHA's enforcement guidance is subject to periodic review and clarification, amplification, or correction. Such guidance could also be affected by subsequent rulemaking. In the future, should you wish to verify that the guidance provided herein remains current, you may consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact OSHA's Office of Health Compliance Assistance at (202) 693-2190.

Sincerely,

Richard E. Fairfax, Director
Directorate of Compliance Programs