Business Law Newsletter

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• Rights to Intellectual Property Created in the Workplace
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• NCCI Components of Remuneration in Calculating Workers' Compensation Premiums
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• Amazon defeats eBay lawsuit over seller poaching
• Jack in the Box settles its dispute with franchisees
• Luhnow files $22M breach of contract lawsuit against Astros
• Judge sets first hearing in U.S. Google antitrust lawsuit
• McDonald’s seeks dismissal of racial discrimination lawsuit by former franchisees

OSHA's Asbestos Standard for the Construction Industry

Asbestos is a fibrous material with high tensile strength and flexibility, widely used for its resistance to heat, chemicals and electricity. In the construction industry, asbestos is typically found in installed products such as pipe insulation, floor tiles, fire-resistant drywall and acoustical products.

Because of the many health and safety dangers associated with the inhalation of asbestos, the United States Occupational Safety and Health Administration (OSHA) has issued an “Asbestos Standard for the Construction Industry” regulation, which governs asbestos exposure for certain construction activities.

The Dangers of Asbestos

When a person inhales or ingests airborne asbestos particles, the particles can become embedded in the tissues of the digestive or respiratory systems. Exposure to asbestos can cause disabling or fatal diseases such as:

• Asbestosis: Scarring of lungs resulting in loss of lung function
• Mesothelioma: Cancer affecting the membranes lining the lungs and abdomen
• Lung cancer
• Gastrointestinal cancer

The symptoms associated with these diseases generally do not appear for 20 or more years after the initial exposure, and often progress to disability and death.

Asbestos in the Construction Industry

In order to avoid health risks, few products containing the fibrous material are currently installed in construction projects. Yet, due to its previously widespread use, asbestos exposure still occurs frequently during its removal, and in renovation and maintenance projects involving structures that contain asbestos. Governmental agencies estimate that 1.3 million employees in construction and general industry are exposed to significant levels of asbestos on the job. However, the greatest exposure to asbestos occurs during renovation or demolition projects, where asbestos must be removed.

OSHA’s “Asbestos Standard for the Construction Industry”

OSHA has issued regulations that govern a wide variety of construction workplace issues. Specifically related to asbestos exposure, OSHA has put into effect an “Asbestos Standard for the Construction Industry.” Among other measures, OSHA’s Standard regulates asbestos exposure for the following construction activities:

• Demolishing or salvaging structures where asbestos is present
• Removing or encapsulating asbestos-containing material (ACM)
• Constructing, altering, repairing, maintaining or renovating asbestos-containing structures or substrates
• Installing asbestos-containing products
• Cleaning up asbestos spills and emergencies
• Transporting, disposing, storing, containing and housekeeping involving asbestos or asbestos-containing products on a construction site

OSHA’s Standard sets a strict maximum exposure limit and establishes provisions that address the following requirements:

• Engineering controls and respirators
• Protective clothing
• Exposure monitoring
• Hygiene facilities and practices
• Warning signs and hazard communication
• Proper labeling and record-keeping
• Medical exams

Classification System Based on Work Class

The OSHA Standard utilizes a classification system for the regulation of asbestos construction work, distinguishing between four work classes. Depending on work class, employers must comply with a specific set of safety precautions to ensure that employees avoid exposure to asbestos fibers surpassing the permissible exposure limits. Further, employers must take adequate precautions if asbestos fibers are likely to be released during the performance of a particular job.

Class I workers are the most strictly regulated work class, due to the high risk nature of their job duties (which involves the removal of thermal system insulation and surfacing material containing greater than 1% asbestos).

State Regulation

In addition to the standards set by OSHA, states may also regulate work conducted near asbestos or the removal of asbestos materials. In fact, the Occupational Safety and Health Act of 1970 encourages states to develop and operate their own OSHA-approved job safety and health plans, which must adopt standards either identical to or as effective as the federal OSHA standards.

New York is one state that has instituted its own program regulating work conducted near asbestos and the removal of asbestos. New York’s program requires licensing of contractors, certification of all persons working on asbestos projects, filing of notifications for large asbestos projects, and pre-demolition surveys to identify the existence of asbestos-containing materials.

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