Don’t Overlook Asbestos Inspections Before Demolition or Renovation

Owners and contractors should be aware that a licensed asbestos inspector must conduct a National Emissions Standard Hazardous Air Pollutant inspection before demolition or renovation of a building.
By Jessica Rosenblatt
October 6, 2020

Much is written regarding the environmental regulatory requirements for handling asbestos during demolition and renovation activities. Typically, this information has an initial focus on when to notify the regulatory agencies of the intent to commence either demolition or renovation in excess of threshold amounts. What frequently may not be addressed is the obligation to have a licensed asbestos inspector conduct a thorough asbestos National Emissions Standard Hazardous Air Pollutant (NESHAP) inspection prior to commencing any demolition or renovation activities at any facility, regardless of the building’s construction date or prior abatement status.

Federal regulations regarding demolition and renovation very clearly state… “prior to the commencement of the demolition or renovation, thoroughly inspect the affected facility or part of the facility where the demolition or renovation operations will occur, for the presence of asbestos.” [40 C.F.R. § 61.145(a).]

This initial requirement is understandable since, for regulatory compliance purposes, a thorough asbestos NESHAP inspection informs the owner or operator (i.e., responsible party) whether asbestos is or is not present. The Environmental Protection Agency and associated state and local agencies that regulate asbestos view very seriously this initial requirement. Typically they cite two reasons:

  • many commercially available building materials still contain asbestos; and
  • within the scope of demolition or renovation, any material not inspected and determined to be asbestos or non-asbestos will be presumed by the enforcement agencies to be asbestos-containing material, subjecting the owner or operator to penalties for any noncompliance.

Federal regulations define demolition to mean wrecking or taking out of any load- supporting structural member of a facility together with any handling operations with the intention of burning of any facility. [40 C.F.R. § 61.141.] Renovation is defined as the altering of a facility or one or more facility components in any way, including the stripping or removal of asbestos from a facility component. A facility component is any part of a facility, including the equipment. The regulations also define “facility” to mean any institutional, commercial, public, industrial or residential structure, installation or building.

Owners and operators also need to understand that a typical Phase I Environmental Site Assessment does not constitute a thorough NESHAP inspection by a licensed inspector. In fact, a close reading of many Phase I Reports reveals these reports typically exclude responsibility for, or evaluation of, asbestos. Many Phase I Reports contain language similar to the following: “Based on the scope of work for this assessment, an Asbestos NESHAP Survey by a licensed asbestos inspector was not conducted. Note: Due to the continued commercial distribution of asbestos-containing building materials, asbestos may be present in some of the building materials. It is recommended that an asbestos inspection be performed in accordance with all applicable federal, state and local regulatory requirements prior to renovation, demolition or other activities that cause a material disturbance.”

Absent engaging a licensed asbestos inspector to conduct a thorough Asbestos NESHAP Compliance inspection, the county, state and federal environmental agencies have clearly indicated they are authorized to presume all material within the scope of the work contains asbestos, that the owner/operator initiated and conducted the work in noncompliance with the asbestos NESHAP rules, and they intend to proceed to initiate aggressive enforcement. Agency inspections can be very detailed, resulting in numerous allegations of specific noncompliance, supporting significantly painful penalty demands.

by Jessica Rosenblatt
Jessica Rosenblatt helps clients solve challenges arising under federal and state environmental laws. She advises on compliance issues, navigates permitting processes, manages environmental risks in transactions,and helps resolve environmental disputes and enforcement actions. Jessica guides clients through the multitude of regulations governing air and water quality, waste management, chemical spills, land contamination and other environmental liabilities. She is in Eckert Seamans Cherin & Mellott's Pittsburgh office. 

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