Do Commercial Building Owners Have Duties To Investigate And Disclose Asbestos?
It is widely known that the federal Occupational Safety and Health Administration (OSHA) regulations establish standards and requirements to ensure the health and safety of working men and women.1 It is also widely known that most of Hawai'i's private sector employers, and some of its public sector employers, must comply with OSHA with respect to their employees. But what many may not know is that, when it comes to asbestos, owners of commercial buildings may have affirmative investigation and notice obligations under OSHA, not just to their employees, but to third-parties, including contractors and even tenants. OSHA's Safety and Health Regulations for Construction2 recognize that "[m]ost asbestos-related construction activities involve previously installed building materials" and that "[b]uilding owners often are the only and/or best sources of information concerning them. "3 As a result, OSHA imposes specific duties on building and facility owners to know of, and to notify potentially impacted parties about, the existence of asbestos-containing material (ACM) and presumed asbestos-containing material (PACM). More specifically, before any construction, alteration, or repair work (including painting and decorating)4 is undertaken, "building and facility owners shall determine the presence, location and quantity of ACM and/or PACM at the work site . . . "5 Building and facility owners are then required to provide that information to their employees, prospective employers whose employees may work in or near areas containing those materials-i.e. contractors-and tenants who will occupy areas containing those materials.6  The OSHA regulations define "building/facility owner" as "the legal entity, including a lessee, which exercises control over management and record keeping functions related to a building and/or facility" in which construction activities may take place.7 Under this definition, an entity that manages a building or that has the "records" for it may also be considered an owner and share in the investigation and notice duties with respect to asbestos. Although the regulations do not specify what the term "records" means in this section, given the underlying purpose and rationale of these regulations, logically it must be construed to refer to records with information on the presence, location, and quantity of asbestos, such as construction plans and specifications (including for any renovations or repairs) inspection or sampling reports, and documents confirming any asbestos removal. Investigation Obligations  By requiring building and facility owners to "determine" the presence, location, and quantity of ACM and PACM, the OSHA regulations establish that building owners cannot discharge their duties simply by disclosing what they do know, or by issuing a broad warning that asbestos may exist on the premises. Instead, they must affirmatively determine whether, where, and to what extent asbestos exists in their commercial buildings. Under these regulations, ACM is defined as any material containing more than 1% asbestos, and PACM means thermal system insulation, and surfacing material found in buildings constructed no later than 1980, including sprayed or troweled on surfacing materials and asphalt and vinyl flooring.8 PACM must be treated as though it is asbestos-containing unless proven otherwise. While PACM may be "easily recognizable" through a visual inspection, other ACM are not. Asbestos fibers are microscopic and they cannot be seen, felt, smelled, or tasted. Although asbestos use declined after 1980, it did not cease altogether, and can still be used today. Therefore, it cannot be assumed that a building constructed after 1980 necessarily is free of ACM. Although the regulations do not expressly state that building owners must perform sampling and analysis to identify ACM, because the presence, location, and quantity of ACM cannot be ascertained visually, absent documents establishing that no asbestos exists, it must be that such sampling and analysis are required. Notice Obligations  The language of the regulations does not limit a building owner's obligation to notify employees, contractors, and tenants of asbestos to only those circumstances when the building or facility owner knows that construction work that may disturb ACM or PACM will be performed. The regulations require notice before any construction, alteration, or repair work begins, without any mention of the building owner's knowledge of planned construction. In the case of tenants, there is a significant risk that work that may expose and disturb ACM could be taken without the building owner's knowledge. For example, even relatively minor remodeling, such as installing a new ceiling light fixture, could disturb ACM. Therefore, the only way to ensure that building owners have met their notice obligation to tenants is by advising the tenants of asbestos at the commencement of the tenant leases. Avoiding Penalties and Liability  OSHA regulations have several levels of violations. OSHA has in the past designated the failure of a building owner to notify of the presence of asbestos as a "serious" violation. In addition, a building owner's failure to discharge its asbestos investigation and disclosure duties can give rise to lawsuits and substantial liability should anyone be exposed to and harmed by ACM as a result of that failure. Therefore, building owners should consider undertaking a review of their files to ensure they have complied with these OSHA regulations; and, if necessary, developing a strategy for achieving compliance, including conducting asbestos surveys and providing the required notice of the presence, location, and quantity of ACM and PACM to their employees, contractors, and tenants. Footnotes  1OSHA's state counterpart in Hawai'i-the State of Hawai'i Occupational Safety and Health rules-are identical with respect to the provisions discussed in this article; and, therefore, for simplicity, will not be separately addressed here. 2 29 C.F.R. Part 1926. 3 29 C.F.R.  1926.1101(k)(1)(i). 4 29 C.F.R.  1926.1101(a), citing 29 C.F.R.  1910.12(b). 5 29 C.F.R.  1926.1101(k)(2)(i). 6 29 C.F.R.  1926.1101(k)(2)(ii). 7 29 C.F.R.  1926.1101(b). 8 29 C.F.R.  1926.1101(b); 1926.1101(k)(1)(i). This article was published both in the March 2021 issue of Building Management Hawaii, and as part of the Spring/Summer 2021 issue of ke kumu, Cades Schutte's client newsletter. Click here for the full publication, which explores some of the laws unique to Hawai'i. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.