September 3, 1997

Mr. Gayle E. Anderson
Manager, Corporate Marketing and Sales
Reliable Environmental Management and Services, Inc.
2500 W. 31st Street, Suite G-2
Lawrence, Kansas 66047

Dear Mr. Anderson:

This is in response to your letter of February 3, addressed to Mr. Michael Connors, Regional Administrator, Chicago Regional Office of the Occupational Safety and Health Administration (OSHA). You wrote your letter to obtain answers to questions you have pertaining to the Construction Asbestos Standard, 29 CFR 1926.1101.

I will include each of your questions and follow them with an answer.

Question:

Does OSHA view wallboard/gypsum wallboard and joint compound as a composite building system as does the Environmental Protection Agency (thus allowing for a composite of the bulk sample analysis of the multiple layers)?

Answer:

By interpretation of the definition of asbestos-containing material (ACM) presented at 29 CFR 1910.1001(b), 29 CFR 1915(b), and 29 CFR 1926.1101(b); OSHA regards each of the items used to construct wall shells from wallboard panels as separate materials. Each of these materials that may contain asbestos must be analyzed separately for their asbestos content. If any of these materials contain more than 1% asbestos, then work practices specified in the Standard must be followed if the wallboard panels are removed.

Question:

What type of material does OSHA consider wallboard/gypsum wallboard to be, surfacing or miscellaneous?

Answer:

As indicated by the definitions of "Class I asbestos work" and "Class II asbestos work" presented at 29 CFR 1926.1101(b), OSHA divides asbestos-containing material (ACM) into two groups. One group of ACM consists of surfacing material and thermal system insulation. The other group of ACM material consists of material that is not surfacing material or thermal system insulation material. ACM wallboard/gypsum wallboard is material that is not surfacing material or thermal system insulation material.

Question:

What type of material does OSHA consider joint compound to be, surfacing or miscellaneous?

Answer:

ACM joint compound is material that is not surfacing material or thermal system material. As indicated on page 41032 of Federal Register, Vol. 59, No. 153, Wednesday, August 10, 1994, joint compound is finishing material.

Question:

If OSHA regards wallboard/gypsum wallboard and joint compound as a surfacing material, is it correct to interpret 29 CFR 1926.1101 in that abatement of greater than 10 square feet of ACM joint compound is "Class I" work?

Answer:

OSHA does not regard wallboard/gypsum wallboard and joint compound as a surfacing material. If a wall shell is constructed of ACM joint compound and wallboard panels that are not ACM, then removal of the wall shell is Class II asbestos work.

Question:

If OSHA regards joint compound as a surfacing or miscellaneous material, is the abatement of ACM wallboard/gypsum wallboard and joint compound required by OSHA prior to building renovation, remodeling or demolition activities?

Answer:

I understand this question to be seeking clarification as to whether the wallboard panels must be removed from the studs and the like before these are removed if ACM joint compound was used in the construction of the wall shell. Note that the term "removal" includes demolition operations. When wallboard panels are removed, the provisions the employer must comply with include the methods of compliance provisions presented at 29 CFR 1926.1101(g)(1), (g)(2), (g)(3), and (g)(7) and at 29 CFR 1926.1101(g)(8)(v) or (vi); and the waste disposal provision at 29 CFR 1926.1101(l)(2). I have enclosed copies of the identified provisions for your convenience. An employer may have difficulty complying with the provisions without removing the panels and the studs and the like separately, but if the employer can remove the panels and studs and the like together and comply with the provisions, that approach is acceptable.

Question:

If OSHA regards joint compound as "surfacing material" does the material then have to have bulk samples collected following the "3,5,7" rule using the random sampling grid.

Answer:

There is not a requirement to collect bulk samples of joint compound according to the "3,5,7" rule because joint compound is not regarded as surfacing material.

Question:

If wallboard/gypsum wallboard and joint compound are viewed by OSHA as separate materials, does this conflict with the EPA's definition that considers these to be a "composite" building system?

Answer:

If you have correctly reported the EPA's position, there are apparently a greater percentage of wall shells constructed from wallboard panels and ACM joint compound that are covered by the OSHA Asbestos Standard than by the EPA asbestos standard issued as one of the National Emission Standards for Hazardous Air Pollutants (NESHAP). OSHA has concluded that removal of wall shells constructed with wallboard panels and ACM joint compound poses a potential hazard to workers that must be controlled; while the EPA may have concluded that such activity does not produce sufficient air pollution to regulate. This is not viewed as a "conflict."

Question:

In order to be in compliance with OSHA's "Communication of Hazard" requirement as outlined in 29 CFR 1926.1101(k), do inspections that were conducted pursuant to the requirements of the Asbestos Hazard Emergency Response Act (AHERA), 40 CFR 763 Part E and/or Asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP), 40 CFR 61, Subpart M, fulfill OSHA requirements when wallboard/gypsum wallboard systems are sampled as composite building system as allowed under AHERA?

Answer:

An inspection conducted pursuant to the requirements of AHERA or NESHAP where wallboard/gypsum wallboard systems were sampled is not relevant to the OSHA provision at 29 CFR 1926.1101(k)(5)(ii)(A). This provision indicates that one of the means an employer has for demonstrating that presumed asbestos-containing material (PACM) does not contain more than 1 percent asbestos is to have had a completed inspection conducted pursuant to the requirements of AHERA (40 CFR Part 763, Subpart E) which demonstrates that the material is not ACM. The reason this is not relevant is because OSHA does not consider either wallboard or joint compound PACM.

Question:

If not, how can this conflict between the regulations be reconciled?

Response:

OSHA does not see a conflict between the regulations.

Question:

If not, are all inspections conducted pursuant to the requirements of the AHERA and/or NESHAP inadequate with respect to assessing wallboard/gypsum wallboard and joint compound when considering OSHA regulations?

Response:

OSHA does not see a conflict between the regulations.

Question:

If your answer is "yes" [the inspection conducted pursuant to the AHERA and Asbestos NESHAP regulations are inadequate], how does OSHA reconcile its position when 1910.1001(e)(8)(ii)(A) states: "Having a completed inspection conducted pursuant to the requirements of AHERA (40 CFR 763, Subpart E) which demonstrates that no asbestos is present;" is a means by which a building owner may demonstrate that PACM does not contain asbestos?

Response:

OSHA does not see a conflict between the regulations.

Question:

Has OSHA adopted the EPA Model Accreditation Plan as the training curriculum for workers who work around, disturb, repair or remove asbestos-containing materials in public and commercial buildings?

Answer:

According to 29 CFR 1926.1101(k)(9)(iii), if the workers perform Class I operations or Class II operations that require the use of critical barriers (or equivalent isolation methods) and/or negative pressure enclosures, then they must be provided training that is equivalent in curriculum, training method and length to the EPA Model Accreditation Plan (MAP) asbestos abatement workers training (40 CFR Part 763, subpart E, appendix C).

Question:

What is OSHA's definition of a "public" building as it pertains to the applicability of the regulations under discussion?

Answer:

OSHA does not have a special definition for "public building" because the term is not used in the standard.

We appreciate the opportunity to provide this clarifying information. If you have further questions please contact the Office of Health Compliance at (202) 219-8036.

Sincerely,

John B. Miles, Jr., Director
Directorate of Compliance Programs