USEPA Asbestos NESHAP and RACM

Author: Thomas G. Laubenthal, TGL Consulting, Inc., Davie Florida

With thanks to: Dan Peders, Amianthus, LLC, Berea, Ohio (edits, pictures and OH commentary), Angelo Garcia, III, Future Environment Designs, Inc. Syosset, NY (edits and NY commentary) and Dana Brown, Time's Dark Captains & Gebco, Ft. Worth Texas (TX commentary) and Tony Rich, Industrial Hygienist in private practice, Livonia, Michigan (pictures).

Note: these are US issues. This paper has everything to do with federal EPA rules and the state/local programs that are delegated EPA asbestos NESHAP programs.

Also: This article is not written in a manner for technical journal publication. Nor is it an attempt to capture all known information about this topic and the entirety of the EPA asbestos NESHAP regulation. It is provided in a somewhat casual writing manner for basic edification on federal definitions and the oddball issues that clutter what is or can become RACM during disturbance. It is assumed readers have a base knowledge of US regulatory agencies and industry acronyms.

This is a discussion of federal issues primarily, but in this case, we will look at a few problematic states and their issues at the end of the initial text. Most state/local programs can be very straight forward with enforcing the federal rules. Other states have hybridized regulations, and they can be difficult to decipher if one does not service that marketplace with regularity, especially these state/local programs: NY/NYC, CA, TX, and that ever-moving target that is CO.

Lastly...if you are trying to read this on a phone...I would recommend that you use your computer or a tablet.

Why is this an issue?

RACM = Regulated Asbestos-containing Material.

• RACM is required to be removed prior to renovation and demolition. Far too many rely merely on the term “friable.” Yes, friable materials are important, and they are required to be removed, but friable is just part of the RACM definition.

• Then there is the problem of when nonfriable materials become RACM. The asbestos NESHAP regulation is quite clear on this, but over the years there has been much consternation of when something becomes RACM. As with floor tile…some want to argue “well, how small do the pieces have to be?” and other spurious arguments to try to alleviate regulatory requirements. We will dig down into these topics.

• Then we have those in industry that have never actually read the asbestos NESHAP regulation…even those that claim to be experts, sadly. They merely rely on the bits and pieces they pick up from their training classes. Some training providers do very well here and explain the vagaries of the asbestos NESHAP regulation. Others teach nothing but AHERA concepts and never really dig into NESHAP…and to me, that’s negligent. While AHERA is important, it does not drive the asbestos control industry, the asbestos NESHAP regulation does.

• And then regulators…virtually all state/local asbestos programs are delegated EPA asbestos NESHAP programs. I have been training regulators on the asbestos NESHAP rules for years. Some are truly experts and others just have a day job with no real technical expertise or the desire to do so. This day-job sector is a pox to this industry. Determinations can be made as knee jerk reactions that have no basis in statutory law. Some even try to enforce OSHA rules when they have no authority to do so. Others make determinations of what is friable (or not) that has no foundation in what is defined as RACM. Knowledgeable regulators exist and they should be valued and part of your team when needed. But always know, regulators cannot make up rules as they go. They can only enforce what is printed in the federal asbestos NESHAP and the vagaries in their published state/local rules. The biggest problem here is the vast disparity of rules across state/local programs in the US. We cannot address all of that here. But as one example...some states do not allow known nonfriable ACM to be left in a structure when demolition is planned...other may. We'll hit those concepts too.

• Lastly...people comment frequently about their state/local asbestos program regulations as though they are somehow unique..."Well here in state XYZ our rules say..." Most (all) state/local programs are delegated EPA asbestos NESHAP programs. What that means is that your state/local program regulations are based on federal asbestos NESHAP regulations. Because many people read only their "state regs" and never think to read the federal regulation, they are unaware that their state/local program is NOT somehow unique. There are some states that can be a very complicated mix of regulations, but they are in the minority. Here's the rub...if federal EPA/Department of Justice (DOJ) gets involved...their enforcement is based on federal regulations...not your state/local regulations. Get out of your state/local regulation box and know the base federal asbestos NESHAP regulation too. I'll give you the important sections to know later in this paper.

Definitions and the base issues

Let’s start with definitions and then we will describe issues. The EPA asbestos NESHAP regulation (40 CFR Part 61, Sub. M, hereinafter as asbestos NESHAP). National Emissions Standard for Hazardous Air Pollutants (NESHAP)…is a set of regulations that are part of the EPA statute (law) called the Clean Air Act (CAA). The entirety of substances regulated by NESHAP is quite large, including asbestos under Part 61. So, when describing the asbestos NESHAP in reports, always be sure to add the “Subpart M, not just “40 CFR Part 61.” I’ve made that mistake with clients that have numerous parts of NESHAP to comply with and they came back to me and asked…”which part of section 61?” My bad.

It is imperative to read the definitions section of this regulation. That is always a necessity with any regulation, but with asbestos NESHAP, there are many terms defined in that section that will not be explained in the body of the rules. Definitions are found at §61.141.

Link: Asbestos NESHAP regulation

The asbestos NESHAP requires the removal of RACM (regulated ACM) prior to renovation or demolition. There’s more to it, but we’ll peel that onion as we go. What many fail to realize is that it is the asbestos NESHAP regulation that requires removal, not OSHA! I used to tell my students that it’s the asbestos NESHAP that gets us “in the game” for removal, but after that, it’s primarily the OSHA asbestos construction standard (29 CFR 1926.1101). While the OSHA regulations address waste, it’s really the asbestos NESHAP that has primacy on those issues at §61.150.

...it is the asbestos NESHAP regulation that requires removal, not OSHA!

The major portions of the asbestos NESHAP that need to be read and understood by anyone in this business:

• §61.141: Definitions…a must read!

• §61.145: (a) Applicability…when the rules apply, and the requirement for asbestos surveys (inspections), (b) Notifications…most states cover this issue and have notification forms, you can skip this part if your state is clear on notification issues, (c) Emission control...this where required removal lives…this is a must read!!

• 61.150: Waste issues, do read this, it’s straight forward

As a reminder about regulations…there are three parts:

Let’s now look at the definitions of importance to this conversation about RACM. When the asbestos NESHAP was issued in 1990, there was much discussion about the concept of friable and non-friable materials…what must be removed or what could perhaps stay in place for demolition. Suffice it to say it was quite a process to get to the final rule.

The reason I remind you of the parts of a regulation, is that these conversations and how the rule was formed are detailed in the asbestos NESHAP preamble. One should really take the time to read through that, but few do. Regulation preambles really do explain the rationale for how terms and requirements were determined. To dig through all of that here would be cumbersome for our purposes of the broader discussions.

The principal definitions we need to know for now…

• Friable asbestos material means any material containing more than 1 percent asbestos as determined using the method specified in appendix E, subpart E, 40 CFR part 763 section 1, Polarized Light Microscopy, that, when dry, can be crumbled, pulverized, or reduced to powder by hand pressure…

•  Category I nonfriable asbestos-containing material (ACM) means asbestos-containing packings, gaskets, resilient floor covering, and asphalt roofing products containing more than 1 percent asbestos…

•  Category II nonfriable ACM means any material, excluding Category I nonfriable ACM, containing more than 1 percent asbestos…that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.

•  Regulated asbestos-containing material (RACM) means...

• (a) Friable asbestos material**,

• (b) Category I nonfriable ACM that has become friable,

• (c) Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, or abrading, or

• (d) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations regulated by this subpart.

• In poor condition means the binding of the material is losing its integrity as indicated by peeling, cracking, or crumbling of the material.

**The asbestos NESHAP requires the Owner/Operator to physically determine if a material is friable, such as a suggested method of placing a portion of a material in a sealable plastic bag to apply hand pressure and observe material physical changes. A physical determination of friability must be made, especially if challenged in an enforcement case. While smaller pieces of floor tile may not crumble with hand pressure, as a Cat. I material, the “in poor condition” often applies. You may find the document at the following link helpful for determining friability:

EPA Regulated Asbestos Containing Materials Guidance

https://www.wbdg.org/FFC/EPA/EPACRIT/epa_340190018.pdf

So for Category (Cat) I and II nonfriable materials…the easiest way to remember the differences, Cat I is…”packings, gaskets, resilient floor covering, and asphalt roofing products.” That's it. No matter what kind of oddball EPA letter you find from 30 years ago. If you can remember that list, all other nonfriable materials are Cat II.

Then the removal requirement, definitions, and the rule:

• Remove means to take out RACM or facility components that contain or are covered with RACM from any facility.

• §61.145 (c): Procedures for asbestos emission control. Each owner or operator of a demolition or renovation activity to whom this paragraph applies, according to paragraph (a) of this section, shall comply with the following procedures: (1) Remove all RACM from a facility being demolished or renovated before any activity begins that would break up, dislodge, or similarly disturb the material or preclude access to the material for subsequent removal.

• RACM need not be removed before demolition if

• (a) It is Category I nonfriable ACM that is not in poor condition and is not friable.

• (b) It is on a facility component that is encased in concrete or other similarly hard material and is adequately wet whenever exposed during demolition;

• c) It was not accessible for testing and was, therefore, not discovered until after demolition began and, as a result of the demolition, the material cannot be safely removed. If not removed for safety reasons, the exposed RACM and any asbestos-contaminated debris must be treated as asbestos-containing waste material and adequately wet at all times until disposed of.

• (d) They are Category II nonfriable ACM and the probability is low that the materials will become crumbled, pulverized, or reduced to powder during demolition.

As a side comment regarding item (c), do not make a simple field determination here and claim some spurious safety issue. This really has to do with buildings in danger of imminent collapse, facilities that have been damaged by fire and other true safety matters. My advice is that if you find yourself unable to do the required asbestos survey because of these issues, or as applicable to removal work, get your state/local program involved. Come up with a plan and stick with it. Far too often state/local regulators have fined people for not meeting NESHAP regulations in these matters because it was determined that the “safety” issue was used to avoid requirements here (surveys, notifications, potential visible emissions etc.)…not legitimate reasons.

So, on to removal and RACM…

We are required to remove friable materials prior to renovation or demolition (demo). If anyone with experience in this business still has trouble knowing whether something is friable as installed or not, that’s a problem. Those principles should have been taught in initial training programs and reviewed in annual refreshers. Do see the link I've provided to help with the friable determination above.

Where this gets odd at times, the federal asbestos NESHAP requirements require notifications (§61.145, a-c) for all demolition projects and renovation when the amount of RACM is:

• At least 80 linear meters (260 linear feet) on pipes or at least 15 square meters (160 square feet) on other facility components, or

• At least 1 cubic meter (35 cubic feet) off facility components where the length or area could not be measured previously.

I’ve had questions over the years that were legitimate about quantities. One chap at a military base had asked about a demo and a steam pipe with TSI between two buildings that was less 260 linear feet. He wanted to know if they had to remove that TSI because it was less than the 260 linear feet requirement. To me, and I’m sure many others, when it comes to friable materials that can be removed, we would tell you to remove the ACM before demo or renovation, period. If a NESHAP regulator saw that TSI debris in the demo rubble, how would they know that it was less than 260 LF? It would not go well.

Then the OSHA aspects. OSHA only segregates the amount of material disturbed to separate that which is maintenance (Class III work) from removal (Class I & II work). Should the demo staff blast though that area and pulverize that TSI, there would be multiple violations including exposing the heavy equipment operator and anyone nearby when disturbance occurred.

When in doubt…remove all friable materials in the area being renovated or demolished. It may not be regulated by NESHAP…but it is by OSHA.

Now the sticky wickets and RACM…the nonfriable (NF) materials and removal.

Probably one of the biggest sins here, those in industry and regulators, is sticking with the term friable. It as though people’s knowledge of this industry is stuck in AHERA (schools K-12) definitions and other twaddle that has nothing to do with NESHAP. AHERA does not run this industry, NESHAP does. Drop the AHERA angle unless you are working with schools. It’s not just about making something friable, it’s about whether it is, or will become RACM. That is how this is regulated and will be judged if enforcement occurs.

He’s the issue with the Cat I/Cat II nonfriable designations when final NESHAP was published ~1990. This had much to do with the release of asbestos when materials are disturbed, especially during demolition operations. From the 11/20/1990 preamble at page 48409:

“…Basically, EPA stated in the January 10,1989, Federal Register notice that certain nonfriable materials, Such as floor tile. roofing products, and packings and gaskets that are in good condition, can be Ieft in buiIdings being demolished because fiber release from these materials, even if the materials are damaged, is relatively small compared to the fiber release from friable materials. Other nonfriable products such A/C** products have a greater potential to release asbestos fibers when heavily damaged and may have to be removed prior to demolition…”

• **A/C = asbestos cement products such as “transite” often as structure siding, roofing, and many other applications.

But let’s not forget this part too from the previous page in the preamble that exists in the modern rule:

This policy determination stated in essence that any ACM, whether originally friable or nonfriable that become (or are likely to become) crumbled, pulverized, or reduced to powder are covered by the NESHAP.

Specifically, the determination stated that:

“…even though the regulations address only material that is presently friable, it does not limit itself to material that is friable at the time of notification. Rather, if at any point during the renovation or demolition, additional friable asbestos material is…created from nonfriable forms, then this additional friable material becomes subject to the regulations from the time of creation…”

So, if nonfriable ACM was left in place prior to demo or disturbed during renovation work and RACM is created, you are now regulated, and notification needs to occur and other responsibilities. The term “nonfriable to friable” has haunted us and caused many EPA determination letters to be published. Over time most EPA authorities writing determination letters altered language to stick with the term RACM.

Let’s go by the letters from the RACM definition.

Category I NF...Let’s start with packing (in valve assemblies) and gaskets.

I add the pictures as some may not be familiar with these materials. Historically these have been high content asbestos materials. Many today are not ACM...but many ACM gaskets and packing materials make their way into the US supply from imports. The pictures below do not imply that they are ACM.

There are times when some of the packing or gasket material is visible and available for safe sampling, but not always. As far as I know, most in this industry do not sample these materials as part of a NESHAP survey. Often these materials are inaccessible (especially packing materials) and to attempt to sample them could cause damage that is undesirable, especially if the system is still in operation. I would hazard to guess that most experienced Inspectors would report the assumption of ACM gaskets/packings until such time they could be safely accessed…if ever. NESHAP allows these materials to remain in place for demolition if in good condition.

Realistically with gaskets/packing materials, it’s about maintenance: the replacement of these materials as required. Far too often the maintenance staff in facilities where this work is necessary are not trained in asbestos work practices (as required by OSHA, Class III work) and the disturbance can really cause exposures to themselves and those nearby. Especially if they resort to electric grinders to remove gaskets that resist manual methods. This is well known.

If pipes were to be disassembled for various reasons, and the gaskets have been in-place for years, it's likely that they would tear and become very friable...or RACM. 160 ft2 of friable gaskets from that method of disturbance and it's notifiable. Think OSHA aspects here too...

As for demolition of pipe systems, often this is salvageable material. Pipes are cut down by various methods, not disassembled at flanges as some might believe. The scrap metal is then sent to recycling.

Then on to resilient flooring and asphaltic roofing…

Let’s look at another definition pursuant to Cat I material…from the RACM definition:

RACM need not be removed before demolition if:

(i) It is Category I nonfriable ACM that is not in poor condition and is not friable.

Then: In poor condition means the binding of the material is losing its integrity as indicated by peeling, cracking, or crumbling of the material.

In the picture above of a commercial building “flat roof” or better as a “built up roof” (BUR) one can see that this easily meets the concept of ‘in poor condition.’ This would certainly meet the definitions of notifiable (regulated) if >160 ft2 was in poor condition. Flashing and cements (the seals around the roof perimeter and penetrations) are often in poor condition because of years of weathering. The issue of roof removal as an asbestos project has much to do with the materials found that are >1%. In more recent construction, it may just be flashing materials and cement. We also may find asbestos in the felts (the BUR materials) of older construction.

One of the real problems is sampling. Some roofs can be burdened with multiple generations of asphaltic roofing and various materials as underlayment that may also need to be evaluated for asbestos content. With the asphaltic layers, I’ve heard as many as five or six generations from restoration contractors dealing with post-fire work. Did that young person you sent to sample that roof actually pierce down to the substrate or just grab the top few layers? Many do not go past what is easily attainable, not the full depth of what will be disturbed. It’s a common problem. Sampling the depth of roofs is a learned craft and using the right tools. Some will hire professional roofers to make these penetration and subsequent repairs as necessary. The modern pic below is from GAF Roofing. This would be one “generation”…imagine three or four more generations on top of each other. A sampling problem we face every day.

Sampling notes for the pic above...if think your young Inspector will know how to approach sampling a complicated roof with merely a 3-day Inspector training program...you are gravely mistaken. Sampling complicated roofing systems takes experience and training. When in doubt hire a certified, professional roofer for sampling help and to make any necessary repairs.

Roofing can often come up as non-RACM when manual methods are used and those devices common to roofing demolition. As an example, as with the pic below, a roofing rotating blade roof cutter, one would have to cut the roofing with this device for a total of 5,580 ft2 before the project would be notifiable. As for the 5,580 ft2 square feet, the EPA has determined that this would equal 160 ft2 of RACM.

This paper is not intended to be an abatement guide. For roofing operations, I would highly suggest reading: Applicability Of The Asbestos NESHAP To Asbestos Roofing Removal Operations, A Guide, EPA 340-8-94-001, August 1994.

Link: Applicability Of The Asbestos NESHAP To Asbestos Roofing Removal Operations, A Guide

In net effect this is an extension to existing NESHAP regulations. It was issued as the last update (1994) to the current asbestos NESHAP regulations. Also, see the OSHA requirements at §1926.1101(g)(7) & (g)(8)(ii).

Link: OSHA asbestos construction

The last thought on roofing…if you have multiple generations of roofing…let’s say 3 for this example. And only one of the lower generation units is ACM, the whole roof removal must be treated as ACM unless they can be separated (EPA and OSHA). There is no “compositing” allowed here. 

On to flooring…

There are many kinds of flooring: from the various manners of vinyl or asphaltic floor tiles to sheet flooring known commonly as “linoleum” (this is not a protected trade name) to all manners of ceramic tiles and terrazzo.

As explained previously, flooring, specifically “resilient floor covering” is a Cat I material. From the definitions section:

• Resilient floor covering means asbestos-containing floor tile, including asphalt and vinyl floor tile, and sheet vinyl floor covering containing more than 1 percent asbestos...

Let’s go back to two examples of flooring I offered, ceramic tiles and terrazzo. These are not Cat I materials, they are Cat II. Ceramic tiles have never been known to contain asbestos. At the firing temperature of the ceramic, chrysotile would be destroyed. The aggregate flooring known as terrazzo never contained asbestos as sold as a product. But in either case, the base concrete-like material used can contain asbestos and often as “craftsman added.” This means the installer of the product added asbestos into the mix electively.

While base materials can on odd occasions be ACM, the terrazzo surface often does not contain asbestos. But in some rare cases, the aggregate used to make the surface can contain asbestos such as serpentine (often green colored) or other unintentional materials that may have been added. Uncommon, but they have been found over the years.

So, let’s stick with floor tiles and sheet flooring. As a reminder, the EPA did not believe these Cat I materials would not release significant asbestos during demolition activities. We certainly know from decades of work in this industry that during the removal of these materials during renovation activities, asbestos can be released in significant amounts even over OSHA PELs when removed in a manner not compliant with OSHA rules.

The maintenance and removal flooring is well defined in OSHA regulations: general industry (maintenance, communication and others, §1910.1001) and construction [§1926.1101 various sections, removal at (g)(7) & (8)]. When OSHA issued its rules in the mid 1990’s, they worked with the Resilient Floor Covering Institute (RFCI) regarding flooring issues. It’s worth knowing their guidance as well and these practices are allowed by OSHA. But not all state/local programs may…

Link: RFCI Recommended Work Practices for Flooring Removal (English & Spanish)

With Cat I flooring, let’s all agree that the mastic (glue) is always a suspect ACM, even in recent construction. It should always be sampled and analyzed. And…do NOT go by color. Mastics can be an array of colors and be ACM. The thought of “black (asphaltic) is positive” as an assumption, has merit, but this is not 100% true.

Where this all goes wrong with flooring…let’s start with sheet flooring (linoleum). In net effect there are two portions to linoleum…the upper “vinyl” section and the lower paper-like “felt.” It is quite rare to find asbestos in the vinyl portion of linoleum. Many Inspectors will never find a positive vinyl portion of linoleum, but some have claimed it to have been found. As for the felt, that can be very high asbestos content. In years past, flooring contractors would just dry rip-up the linoleum and then use sanding machines to remove the felt and mastic. By modern OSHA standards that has been illegal for decades.

The RFCI has provided information for their members on these matters since the mid-1980’s.  This dry rip-up/sanding still happens on rare occasions (homeowners and contractors) and the household or facility contamination is horrible from the asbestos dust. For linoleum, only wet methods and chemical removal of mastics should be utilized…in renovation, have we made RACM, you bet! Wet or not.

Then, on to floor tiles. I believe many readers here understand the nature of asbestos content in floor tiles (FT). In the US, the two most common sizes are 9” X 9” (~23cm X 23cm) and 12” x 12” (~30cm X 30cm). There are others sizes and they can be ACM as well. The 9-inch FT are most often ACM as are the mastics of that era. The 12-inch floor tiles are more problematic and often need additional analysis techniques for the determination of the asbestos content and quantification.

But let’s make this clear, as a general rule, there is no such thing as a “trace” FT. Floor tiles were manufactured in the US (and elsewhere) with a substantial amount of asbestos. Much work has been done on the asbestos release from floor tile disturbance. They can release a substantial amount of asbestos and easily fail TEM final clearance air sampling tests.

So…when does FT become RACM? This is likely one of biggest arguments over the years; between consultants and contractors and what state/local programs may have determined, or not.

From the NESHAP preamble (page 48408):

• “…To accomplish this, EPA labeled as "friable" those materials that were likely to readily release fibers. Friable materials, when dry, could easily be crumbled, pulverized, or reduced to powder using hand pressure. The term "reduced to powder" is readily understood to mean that the affected material is changed to a dust or powder that can become airborne. "Pulverized" indicates that the resulting material will include dust as well as a large number of small pieces of the original material. The term "crumbled" indicates that the affected material is easily (i.e., using hand pressure) broken into a large number of small pieces. Although dust is likely to be produced as a result of crumbling, it is possible that there are some types of materials that can be crumbled without producing dust. It is also understood that crumbling refers to an action that occurs essentially in one effort and not to repeated attempts to crumble the material. For example, floor tile in good condition can be broken by hand into a few large pieces, but it is not easily broken in one effort into many small pieces. On the other hand, floor tile that has lost its structural matrix is in poor condition and can be broken into many small pieces in one effort…”

Well what happens when the removal contractor uses various heavy hand tools to remove FT? RACM…certainly.

One of the biggest hassles for state/local regulators is that far too many contractors will claim that their FT removal project will be worked as NF. Really? I’m not sure about the readers experience, but I can say that I have never seen a floor tile removal project that wasn’t rendered to RACM. I’m sure there are some that occur that way using allowed alternative methods such as infrared (heat) radiating units or tile with very little mastic that release without substantial breakage. But in my experience, it’s been brute force and significant crumbling. The regulators know this too. Contractors routinely get cited for non-notified projects and work practice violations. Far too many never get caught. One has to wonder how many dry FT rip-up projects exist every day with no wet cleaning or HEPA vacs exposing workers and leaving substantial contamination...more than most want to know.

Let’s now think about demolition and Cat I materials

The EPA was very clear in preambles and various determination letters that they were of the opinion Cat I materials, not in poor condition, could stay in a building for demolition (demo). Well, over many years that is not universal over all 50 US states. There are many state/local programs that will not allow materials such as asphaltic roofing and flooring to remain in a building for demo. This is for various reasons. Historically some never bought into the argument that they would not become RACM, and/or an exposure issue to those performing the demo activities. I believe there are many in the industry that agree with these notions. Then there is the reality of asbestos-containing waste material (ACWM) that is never cleaned up and left on site after demolition activities. Think of many bits and chunks of visible roofing and flooring debris that could be present on this site if left in place. This happens more often than many may know. From the NESHAP definitions:

• Asbestos-containing waste materials (ACWM) means mill tailings or any waste that contains commercial asbestos and is generated by a source subject to the provisions of this subpart. This term includes filters from control devices, friable asbestos waste material, and bags or other similar packaging contaminated with commercial asbestos. As applied to demolition and renovation operations, this term also includes regulated asbestos-containing material waste and materials contaminated with asbestos including disposable equipment and clothing.

• Then to help with the definition above: Commercial asbestos means any material containing asbestos that is extracted from ore and has value because of its asbestos content.

Over the years with EPA enforcement activities, staffers relied too heavily on the definition of visible emissions when debris was found.   

• Visible emissions means any emissions, which are visually detectable without the aid of instruments, coming from RACM or asbestos-containing waste material, or from any asbestos milling, manufacturing, or fabricating operation. This does not include condensed, uncombined water vapor.

• Note: there are NO air sampling requirements specified in the asbestos NESHAP regulation.

With federal enforcement today should an official see debris left on a site…like roofing and flooring debris after a demolition, per se…that ACM debris would be written up in a violation as “uncontained ACWM.” Which means simply…you left visible contamination on site. This is likely the reason that some state/local programs will not allow Cat I materials to remain in the building. The demo contractors rarely ever walk the site after the demolition has occurred to see if all Cat I debris is absent.

 My advice is to read the document linked below. It was specifically published to advise when materials could become RACM during demolition activities. But certainly know the vagaries of the ever-moving opinions of state/local programs too.

Link: A Guide to Normal Demolition Practices Under the Asbestos NESHAP

Let’s now look at Cat II NF materials, renovation & demo

Cat II NF materials constitute a vast array of installed building products. A reminder for Cat I, they are only:  packings, gaskets, resilient floor covering, and asphalt roofing products. All other NF materials are Cat II. Let’s focus on two very common materials that are in Cat II or this paper would be far longer than intended: asbestos cement (AC) products (known in the US as “transite”) and wallboard systems with ACM joint compound.

Let’s hit AC products first.

I hope readers here are aware that most AC materials are loaded with chrysotile and at times may also contain amphiboles (amosite/crocidolite). While hardly friable, this material can be easily pulverized to create RACM from mishandling, being dropped during siding or roofing renovation (as examples) or during demolition. In many cases these stiff panels can be disassembled and lowered to the ground. NESHAP specifically requires the “lowering to the ground”…not dropping to the ground! In some cases, exterior siding and roofing AC panels cannot be simply disassembled. Because of years of weathering where simple disassembly is not possible, inventive manners, from drilling to bolt cutters, have been used to release the panels. In any case, AC products left in place would clearly meet the RACM definition for Cat II during any typical demo project:

• (d) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations regulated by this subpart.

In the US, the removal of AC products is OSHA Class II removal work, from necessary work area prep to worker protection. There can be alternatives to Class II removal for underground AC pipework that will not create RACM. Some states have allowed various alternative procedures. An example from Oregon:

How to Remove Nonfriable Asbestos Cement Pipe: A Guide for General Contractors to meet ORDEQ Rules

For roofing operations and AC materials, do see the document I linked above titled: Applicability Of The Asbestos NESHAP To Asbestos Roofing Removal Operations.

For AC pipes, they are often pulled apart at the seams and hoisted into lined dumpsters. This can be quite the chore with interior AC pipes as seen in the pic below. Inventive manners of disassembly and egress requires thoughtful planning and performed as Class II work. In some cases, underground pipes have been cracked, broken, or even pulverized from years of weathering and overburden. Do know, by whatever method is necessary to get AC pipes out of the ground, visible ACWM CANNOT be left in the trench. AC pipes cannot merely be crushed and left in place and buried. EPA has been quite clear on this. Unless the contractor intends to contact the EPA to create a permitted asbestos landfill (a fool's errand), it’s illegal dumping to put it simply. There have been numerous violations over the years for those that merely bury pulverized AC pipes.  In this case, NESHAP requires the trench be visually inspected for debris and removed if present...no soil sampling is required by federal rules.

If AC remains substantially intact, and no RACM is created (a possibility), the project isn’t even notifiable. I’ve had one of the best EPA NESHAP staffers I have worked with tell me that the non-RACM AC materials can go to a C&D landfill. Not all state/local programs agree. They will require Cat II materials to go only to an asbestos landfill...some, Cat I too. For those brave enough to work on asbestos issues in California…with asbestos and waste, it’s complicated.

EPA: Industrial and Construction and Demolition (C&D) Landfills

In my experience, most C&D landfills do not want/will reject AC materials. Much of what they receive is ground up and sold for other purposes. AC materials have found their way into these landfills and have contaminated other sites when the "recycled" material is used. A big liability problem and a costly cleanup. It is usually best just to handle AC products as normal ACWM and take it to an approved asbestos landfill…and get the NESHAP waste shipment record!

Wallboard systems with ACM joint compound and interior demolition

Much to say on this one…to start with, the “compositing” lunacy. I would recommend that you read my previous article, Asbestos: Wallboard Compositing and Point Counts, Myths, Facts and Fraud.

Asbestos: Wallboard Compositing and Point Counts, Myths, Facts and Fraud.

I cannot take the time here to expand on the issues you will find detailed in that article, but a few points.

• A wallboard system with ACM joint compound (JC) is NOT composited by the PLM lab for your NESHAP exemption. They merely provide a composite analysis of what was submitted to them, period. It’s the responsibility of the Inspector to determine, based on the JC asbestos percentage, the asbestos percentage of the WALL SYSTEM. The ratio of the JC percentage on the seams screw/nail heads to the body of the wall system.

• If the Inspector determines that the wall system is ≤ 1%, there are only two things that are alleviated from NESHAP responsibilities: the project does not have to be notified and the resultant waste is not categorized as ACWM. All OSHA rules still apply.

• JC is not analyzed mixed with other wallboard materials. It is required to be analyzed and reported separately as part of lab reporting. Often in comments as a layer. If JC is to be “point counted” it is analyzed separately from other wallboard materials, in no case are they mixed.

• JC should be sampled separately from wallboard materials if possible. If not possible, minimize the amount of wallboard present in the sample. Finding asbestos in gypsum-based wallboard systems is very rare and in some parts of the country, it is not found at all.

• If the JC is covering the entire wall system as a skim coat, it is considered a surfacing material, and compositing is not allowed.

• OSHA does not allow compositing. If the JC is > 1%, the removal of the wall system is Class II work. This is well established.

• Also, OSHA regulates ACM and asbestos. If the JC is found to be ≤ 1%, there are still significant OSHA worker protection responsibilities.

With that being said, a wallboard system with ACM joint compound is a NESHAP Cat II material. Where Inspectors can err when reporting ACMs to clients, is to anticipate what the materials could become when disturbed, not what they are at the time of the survey. What I mean specifically is that some have reported the JC on reports as RACM…with the thought of work to occur. That determination is to be made by the person required to notify the project…will it become RACM.

The grand error here is to make the assumption that all wallboard systems will magically “composite out” as ≤ 1%...that is just not the case. There have been plenty of enforcement cases where wallboard systems were being demolished for an office renovation as an example (often not as Class II work as well), regulators will take pieces of the JC now pulverized and have it analyzed. If ACM and now as RACM, numerous violations have occurred. Some state/local programs list ACM JC as RACM on their notification forms. This really does vary across state/local programs.

What is really disturbing is that some will play the “magical compositing makes the asbestos go away” negligence and allow the untrained building maintenance staff to do this interior wallboard demolition work, not a licensed asbestos removal contractor performing Class II work. The exposure to workers and resultant structure contamination is irresponsible and a tort liability for all involved in these decisions. But unfortunately, this goes on all the time.

Takeaways with wallboard systems and demo:

• Wallboard systems with ACM JC are asbestos NESHAP Cat II materials. If the JC is >1% it must be removed as OSHA Class II work prior to renovation or demo.

• A legitimate compositing of a wallboard system (not the results from the PLM lab!!) may be possible to avoid notifications and ACWM. OSHA does not allow compositing.

• To assume that all wall systems will be ≤ 1% is a mistake and often assumed so by those negligent of knowing and meeting asbestos NESHAP rules and EPA policy documents. Most often this is to meet client expectations. Do realize if you are “fudging the numbers” just to make a client happy, you are incurring significant liabilities for yourself and your firm.

• If a wallboard system is not legitimately composited (meeting the EPA expectations) prior to work and the ACM JC is being made RACM, you are in violation of asbestos NESHAP regulations and likely a variety of OSHA rules.

• Also…the are several state/local programs that do not allow compositing as a rule or policy. Know your market area. 

All in all, much of this is not that complicated if one knows the federal and state/local rules well. There are times when things can become "iffy" about becoming RACM...especially for demo. I have tried to provide the reader many parts of the regulation and various items you can find for further study. The real problem we have are those doing everything they can to avoid asbestos responsibilities...from notifications to worker protection...to make clients happy or just negligence. When in doubt, try to talk to your state/local program people. Some programs can be very helpful. If not, produce a plan that is defensible should scrutiny arise. But always remember, regulators can only enforce what is in the federal rule and that which has been published as a matter of a state/local regulation. Come up with a plan and stick with it.

ALSO: See below for some commentary on a few state asbestos programs and the RACM issues.

Thanks so much for giving this a read. I know it was an investment of your time. But these issues are complex, and it takes some explanation to put it all into context. I hope you find the information useful!

All the best!

© Thomas Laubenthal, 2024. Information transfer, OK. No other use or re-use in any manner without permission from the author.

A few items regarding state program issues:

Ohio issues from Dan Peders:

Up to 2018, the Ohio Department of Health managed training and certification for the asbestos disciplines along with regulating other aspects of the asbestos industry and who enforced those regulations with field investigations with the codified ability to consider OEPA and OSHA regulations and contact the appropriate agency when I violation was identified. In 2018, ODH’s asbestos program then merged with OEPA and soon after it was OEPA’s goal to match their regulations to those of the Federal EPA so various tweaks to regulations were made over the next few years.

Ohio EPA has allowed on a case-by-case basis the classification of material that may not be listed above but shows the characteristics of Category I Non-friable material to be called Category I non-friable (this is sometimes called a Category II non-friable that acts like a Category I).

Roles and Responsibilities for Emergency Demolitions and Ordered Demolitions: Ohio Administrative Code (OAC) rules 3745-20-01 through 3745-20-05.

Emergency Demolitions: Structures demolished as emergency demolitions may not be subject to the 10-working day waiting period. Please check with Ohio EPA regarding the specifics of the structure to be demolished. A separate notification must be submitted for each emergency demolition project (e.g., multiple projects/addresses cannot be listed on the same notification)

Ohio Administrative Code (OAC) rule 3745-20-01(B)(17) defines an emergency demolition as: “… means any demolition operation conducted under a written order issued by a state or local governmental agency because a facility is structurally unsound and in danger of imminent collapse.”

Example Scenario of an Emergency Demolition: A sudden or unexpected event has caused a structure to become structurally unsound. As such, it is unsafe to enter to perform an asbestos building inspection and remove asbestos-containing material (ACM) prior to demolishing the structure. Additionally, a governmental authority has deemed the structure as being in danger of imminent collapse. This scenario meets the criteria of an emergency demolition, and the structure must be demolished as soon as possible to prevent it from collapsing on its own.

Ordered Demolitions: While ordered demolitions are not defined in the OAC asbestos rules, Ohio EPA recognizes there are structures that are unsafe to enter to perform an asbestos building inspection and/or remove asbestos containing materials (ACM) even though the building is not in danger of imminent collapse. Ohio EPA is providing the following guidance regarding these structures. These projects must also be ordered to be demolished by a government authority.

Projects demolished as ordered demolitions are subject to the 10-working day waiting period before work begins.

A separate notification must be submitted for each ordered demolition project (e.g., multiple projects/addresses cannot be listed on the same notification).

Example Scenario of an Ordered Demolition: You have a structure to demolish but the structure is unsafe to enter to perform an asbestos building inspection or to remove ACM. However, the structure is not in danger of imminent collapse.

"Four square inch rule"

 2012 Ohio EPA’s Division of Air Pollution Control (DAPC) made changes to the regulations governing asbestos emission control and one of the new rules changed was the definition of friable asbestos material to include regulated asbestos containing material (RACM) if it is reduced to less than four square inches in size during asbestos abatement. This change was made to clarify for the owner/ operator and the regulator when the asbestos-containing waste material (ACWM) becomes RACM during removal, and thereby (for example) making the degradation of floor tile into RACM clearly defined.

 This change was in response to the Titan Wrecking lawsuit that the state loss regarding friable floor tile during demolition, however; when the “four square inch” rule was reviewed by OEPA legal counsel the current wording was such that it only applies to Category 1 material that is damaged during renovation or abatement ONLY and not during demolition.

From Dana Brown in Texas:

Within the jurisdiction of the State of Texas, the Federal NESHAP asbestos regulations apply to everything with the exception of those buildings deemed “Public Buildings” under a definition in the Texas Asbestos Protection Regulations (TAHPR).  Within those “Public Buildings” defined as buildings subject public occupancy, but excluding manufacturing facilities behind a security fence, chemical plants, power plants, residential less than 4 units, and Federal Buildings.  Additionally the TAHPR only applies to the inside of these buildings, a nod to the AHERA rule.  So outside of public buildings, roofing, siding, structures that are not buildings would be subject to the federal NESHAP. 

Under the TAHPR ALL asbestos projects within Public Buildings, ANY amount friable or non-friable must be notified to the state and is regulated with licensing, oversight, etc.  Therefore, all the Public Buildings would be under the scrutiny and regulation of the State of Texas Asbestos Program.  So RACM and NESHAPS amounts would not apply in this setting, because inside of a public building under the TAHPR is far more regulated than the NESHAP.  However, the issues of notification in excess of the NESHAP amounts of RACM of 160 square feet, 260 linear feet, or 35 cubic feet does apply to all those buildings excluded from the Public Building designation (and the facilities) and enforced by the State of Texas under the NESHAP delegation to states from Federal EPA. 

The State of Texas then follows EPA in the application of NESHAP in those settings and sometimes uses the Applicability Determination Index (ADI) to enforce the NESHAP within the State of Texas.  There is a history of the Texas regulatory body of utilizing the ADI on their enforcement responsibilities in a myriad of applications.  RACM determination is usually in line with the guidance from the EPA NESHAP documents and the ADI.

A few issues from New York from Angelo Garcia, III:

In New York State (NYS), controlled demolition (condemned building) requires all non-structural materials (steel, wood, glass) to be handled and disposed of as RACM.  By variance, you can get approvals to segregate the waste into RACM, Category I, or Category II.  NYS ESU uses and expects contractors to consult EPA Document 340/1-92-013 “EPA Guide to Normal Demolition Practices Under the Asbestos NESHAP” (this document is linked in the article) to determine if the project’s anticipated demolition methods will cause RACM to be created. 

NYS ICR56 only mandates waste disposal for controlled demolition.  NYSDEC regulates waste disposal in NYS. Handling asbestos for Cat I or Cat II typically is done under ICR56 as special projects or variances where the procedures have to be modified from what the regulation says. There are three different special procedures for floor tiles and mastic, there is one special procedure for exterior non-friables, interior non-friables (other than floor tiles and mastic) require full containment or a variance, and spackle/joint compound would require full containment or a variance.

End of document