Ohio’s asbestos regs: What you must know before building

Part I of a two-part discussion
about the contractor’s role on
construction projects involving
asbestos removal

BY JAMES DIXON AND JOSEPH KONCELIK

It may come as news to contractors that Ohio law makes them just as responsible as owners for complying with asbestos regulations. This includes providing notice before construction starts for demolition projects and renovation projects that involve even small amounts of asbestos. If work proceeds without notice or a proper inspection, the Ohio EPA can assess a substantial fine.
As always, ignorance is no defense, and, as you may expect, that ignorance can be very expensive. Every year, the Ohio EPA pursues a significant number of enforcement actions against contractors and owners for asbestos-related violations. In 2007, there were thirteen such actions. The largest fine was $29,400.
Thus, owners and contractors must understand the regulations before starting any demolition or renovation project. Compliance with those regulations provides for proper disposal of asbestos and diligent protection of the bottom line.

Who must comply?
Under Ohio law it is the “owner or operator” of a demolition or renovation project who must ensure compliance with the asbestos regulations (Ohio Administrative Code (“OAC”) § 3745-20-02). Who is an owner or operator? As with any regulation, the definition of terms is crucial. The code defines “owner or operator” as “any person who owns, leases, operates, controls, or supervises the facility being demolished or renovated or any person who owns, leases, operates, controls or supervises the demolition or renovation, or both” (OAC § 3745-20-01). Thus, contractors who supervise demolition or renovation projects are just as responsible as the owners for ensuring compliance.
Unfortunately, the OAC’s definition does not clearly define the level of supervision necessary to trigger coverage. While Ohio EPA’s public education materials imply that there is a bright-line rule irrespective of the division of supervisory responsibilities, federal courts have established a different interpretation of similarly-worded federal regulation. In U.S. v. Walsh, 8 F.3d 659, 663 (9th Cir. 1993), the court held that a contractor would only be liable if it had significant or substantial real control and supervision over the project.
Even that holding does not provide a clear rule by which a contractor can establish a standard procedure. In the face of such ambiguity, it is always best to try to proactively guarantee compliance rather than reactively construe statutory language. If you are a general contractor involved in any way with a demolition or remediation project, make sure you and the owner know well in advance who will be notifying the Ohio EPA and who will be responsible for the inspection of the facility and the related remediation work. Also, if an owner indicates that it will ensure compliance, ask to receive copies of the documentation that confirms that the owner has provided notice before commencing any work. Do not assume that a regulator will buy your excuse that the owner said it would take care of it.
What types of work trigger
regulation?
For any “demolition” at a facility, the responsible party must provide advance written notice even when no asbestos is present. The regulations define “demolition” as “burning, wrecking, or removal of any load-supporting structural member for a facility, including handling waste” (OAC § 3745-20-01).
The work place practice requirements for handling asbestos prior to demolition are triggered if there is more than 260 linear feet of asbestos on pipes, more than 160 sf on other components, or 35 cu ft of removed material if the area cannot be measured. Emergency demolition projects have a different standard. If the amount of asbestos is below these amounts, then only the notice requirements apply (OAC § 3745-20-02).
The regulations broadly define which renovation projects may trigger asbestos notification and workplace practice requirements. Renovation projects covered include those that involve altering a facility or one or more facility components in any way, including stripping or removal of regulated asbestos-containing material from a facility component (OAC § 3745-20-01).
For renovation projects, the threshold levels as set forth above will determine which projects require notice before commencing work and require implementation of work place handling requirements. For renovation projects that take more than a year, the measurement is based on the quantity encountered during one calendar year. The same measurements apply to emergency renovation projects. Neither the notice nor the handling requirements will apply if the amount of asbestos to be disturbed is less than the minimums set forth (OAC § 3745-20-02). Next month, we will cover building types, adequate notice, and who can handle the asbestos. BXM

Joseph P. Koncelik, Esq. and James T. Dixon, Esq., are with Frantz Ward LLP, 2500 Key Center,
127 Public Square, Cleveland.