Questions and Answers About The New Federal Regulations
Starting Dec. 14, public- and private-school officials across the country will have to begin complying with new asbestos regulations published in October for the Asbestos Hazard Emergency Response Act adopted by the Congress last year.
The sweeping rules require districts to inspect for asbestos by next October; to remove or contain crumbling forms of the material; and to monitor all forms of the cancer-causing substance when it is found.
The following questions and answers, based on interviews with Environmental Protection Agency officials and the final version of the rule, published in the Oct. 30 issue of the Federal Register, detail some of the complexities school districts will face during the coming year. The information was compiled by Staff Writer Ellen Flax.
What is the most important thing a district should do right now to begin complying with the law?
School officials should begin to interview consultants and to start planning how they will comply with the law as soon as possible.
Environmental Protection Agency officials predict that the entire process--inspecting a school, sending samples off to a laboratory, writing a management plan, and, in many communities, seeking school-board approval of the plan--could take anywhere from several weeks to several months. If districts wait until next summer to begin complying with the law, they may not be able to finish on time.
Epa officials also recommend that school districts appoint an employee to be in charge of the compliance effort as soon as possible. This employee should ideally have some familiarity with asbestos.
To better prepare this person for his new responsibilities, district officials may find it useful to send him to one of the agency-approved courses.
The designated employee, and any other interested school official, should read "Guidance for Controlling Asbestos-Containing Material in Buildings," which is published by the epa and is available at no cost from its regional offices.
Does the new law require schools that have been previously inspected for asbestos to be reinspected?
In many cases, yes. Most schools that have been previously inspected were only checked for friable asbestos. The new law requires that undamaged asbestos be inspected and monitored as well.
How much will it cost to comply with the law?
In its final regulations, the epa estimates that it will cost nearly $3.1 billion to comply with the law over a 30-year period nationwide. For an average-size high school, the agency estimates that the cost of conducting an inspection and developing a management plan will be $3,600.
Other costs will depend upon the amount of damaged asbestos in a school.
What is the epa doing to help prepare school districts to comply with the new law?
The agency will send a copy of the regulations to private-school and public-school-district officials this week. In January, it will follow with a guidance manual, which will explain the law in layman's terms and offer advice on hiring consultants. It will also send school officials every few months an updated list of epa-accredited courses for asbestos inspectors, abatement workers, and management planners, as well as of states that have received approval to accredit asbestos consultants.
Early next year, the agency hopes to conduct a national teleconference, which will give school officials an additional opportunity to learn more about the law. Several regional epa offices have also begun to offer training sessions for school officials.
What should a district look for when hiring a consultant?
A consultant must have taken and passed an agency-approved course in the specialty area for which he wishes to be hired.
All qualified consultants should be able to produce a certificate from the institution where they took the course. The certificate should note when the course was taken, which course was taken, when the consultant passed the qualifying test, and the consultant's course-identification number.
Such information should be reconfirmed by calling the institution where the course was taken.
Districts should also try to hire consultants that have additional relevant experience. For instance, a person with a background in the construction industry may be well suited for the inspector's job.
School officials should also make sure that the consultant meets the state's accreditation standards. As of October, only New Jersey had received agency approval for its accreditation program for asbestos-abatement contractors, supervisors, and workers, but other states' legislatures will adopt such programs during the coming year. Regional epa offices should know which states have adopted accreditation programs and whom to contact.
A district can be held liable for shoddy work, warns Robert McNally, a program analyst in the agency's asbestos-action program, so it is in school officials' best interest to be doubly sure that the consultants they hire are well qualified.
Will there be enough consultants?
The agency believes that there will be enough if districts schedule their work evenly throughout the next year.
But epa officials warn that districts that wait until next summer to begin inspecting and writing management plans may find themselves at the mercy of the consultants' busy schedules--and may not meet the Oct. 12, 1988, deadline.
How can school officials be sure that a consultant does not have a conflict of interest?
Because some consulting firms offer so-called "cradle to grave" asbestos work--they inspect, write management plans, and remove the cancer-causing substance--the law requires school officials to consider whether a consultant has a potential conflict of interest. They may hire a firm that performs more than one task, but they should be aware of the potential problems of such an arrangement.
The epa, in its regulations, recommends that districts request full financial disclosure from all potential consultants. Although it may be more efficient for some districts to use the same consultant to handle both the inspections and the drafting of managment plans, using the same firm to write plans and conduct abatement and removal activities may be more problematic.
Likewise, the agency notes that a potential conflict of interest may exist when an abatement and removal firm is associated with an air-monitoring company.
Should school officials train their own people to do inspections and write management plans or would it be better to hire an outside consultant?
Large school districts may find it economical to send their own workers to inspection and management-planning classes. In addition to cost-savings, these school districts will no longer be confined by a consultant's schedule.
Smaller districts and individual schools, however, may find it easier to rely on outside consultants.
What will the inspector be looking for?
Unlike the 1982 asbestos-inspection rules, which required inspectors to look only for friable asbestos, the new law requires schools to look for undamaged as well as damaged forms of the hazardous substance. The rules give highly detailed descriptions of what to look for and define the various types of damaged asbestos.
In areas that are suspected to contain friable asbestos, the inspector will take bulk samples and have them tested at an accredited laboratory.
What should be in a district's required management plan for each school? Is there a model plan available?
A management plan should include: a description of inspections and any removal or abatement activity; assurances that accredited personnel were used to conduct inspections, develop the plan, and conduct "response actions"; and a plan for reinspection, periodic surveillance, and a maintenance program.
Although the epa has not yet developed a model management plan, the guidance document that will be sent out to school officials in January will carefully review the components of a good management plan.
What happens to the management plan after it's completed?
School officials are required to send the plan to the state agency that is handling the asbestos program. A copy of the plan is to be kept in the school's administrative office.
These plans are to be made available for public inspection within five days of a request.
What happens if the state-appointed agency does not approve a district's management plan?
The state agency has 90 days to disapprove a plan. If the plan is not disapproved, the district will have to begin implementing the plan by July 9, 1989.
If the plan is disapproved, the state must provide a written explanation for the decision, and the district will have 30 days to adopt the state's suggestions.
The epa is conducting training sessions for the state personnel who will be reviewing the plans. However, if many districts delay sending in their plans until the fall, state agencies will not be able to carefully review the plans--and by default will be forced to approve them.
That, epa officials say, would put school officials at risk of being held liable for any infractions resulting from faulty plans.
Will a school or district always be required to remove asbestos?
No. The law describes five major "response actions"--one of which is removal--and describes the appropriate conditions under which they may be selected by a district. The district has much flexibility in deciding on an appropriate response action, although the action must be sufficient to protect human life and the environment.
In many instances, removing undamaged asbestos could be more dangerous than leaving it in place. Any abatement or removal activity must be conducted by an accredited consultant.
How will a district know that the "response action" has been successful?
After performing a thorough visual inspection, the area's air will be tested. In its regulations, the epa recommends that districts use transmission electron microscopy (tem) after removal, enclosure, or encapsulation activities. Tem is recommended over another method, Phase Contrast Microscopy (pcm), because it can better detect asbestos fibers from other fibers and is more sensitive to small fibers.
But because the tem method is less available and more expensive than pcm, the agency will allow districts to use the less accurate method in certain situations during the next three years. If the asbestos level is at least as low as the standards printed in the final rules, the building or the section being worked on can be reopened.
What sort of follow-up activities are required?
School districts will be required to monitor every six months the asbestos-containing material left in place. An unaccredited person, such as a custodial worker, can perform this inspection. Every three years, an accredited inspector must reinspect the school.
School districts are required to provide maintenance staff with at least two hours of asbestos-awareness training. Workers who may disturb the hazardous substance as part of their jobs must receive an additional 14 hours of training.
Are private schools and public-school districts required to notify parents and staff members about the presence of asbestos?
They are required to notify parents and employee organizations each year, in writing, about the availability of the managment plan. This notification could be in a separate publication, or could be included in a newsletter.
Officials are also required to put warning labels on both friable and nonfriable asbestos-containing materials in routine maintenance areas, although not in classrooms. Temporary workers, such as telephone-repair workers, would also have to be notified about the presence of asbestos.
When will the epa begin to enforce the law? What sorts of penalties does a district face if it does not comply?
Through next October, the agency plans to devote more effort to helping districts comply with the law than to enforcing the law.
Starting next October, the agency will begin to inspect for violations and will fine schools or districts up to $5,000 a day for each violation. Criminal penalties will be levied if a person or district knowingly or willfully commits a violation.
How can a district receive an exclusion? If the district gets an exclusion, does that mean that it is exempt from all of the law's requirements?
Only an accredited inspector can grant an exclusion to a district. If the inspector thinks it is appropriate, a district may get "credit" for prior inspections or abatement activity. However, since the 1982 law did not require inspections for nonfriable asbestos, it is unlikely that many districts will be granted total exclusions.
What are the responsibilities or requirements for states under the new law?
The states were required by Oct. 17 to notify schools as to which state agency will receive their management plans. States are also required to review these plans and can disapprove them within 90 days of receipt.
In addition, states must establish within 180 days of the start of their next legislative session an accreditation program for consultants that is at least as stringent as the epa model. So far, New Jersey's program has been accredited by the agency and the Kansas training program for asbestos-abatement contractors and supervisors has received interim accreditation.
States can also receive waivers from all or part of the final rule if they adopt a program that is at least as stringent as the epa's regulations. Several states, including Connecticut, New Jersey, Rhode Island, and Illinois, are expected to apply for waivers.
Vol. 07, Issue 10