November 1, 1995

Gerald W. Lancour, Director
Safety, Health and Environmental Affairs
McDonnell Douglas
Post Office Box 516
Saint Louis, Missouri 63166-0516

Dear Mr. Lancour:

Thank you for your letter of March 28, concerning the Occupational Safety and Health Administration's (OSHA) Asbestos Standard (29 CFR 1910.1001). We regret the delay in this reply.

You requested specific clarification on three issues related to the asbestos standard, which will be addressed in the order in which they were presented.

Must warning signs be posted in each and every area identified by the building owner as containing previously installed asbestos containing material (ACM) or (PACM), regardless of the condition, accessibility, and/or the likelihood of disturbance of the ACM/PACM?

Your understanding of posting warning signs in regulated areas is correct. However, please note that on June 29, corrections to the final rule were published in the Federal Register (volume 60, number 125, pages 33985 and 33986) which will change your initial understanding of 1910.1001 as it relates to posting warning signs, and/or labels in a building. In summary, section (j)(4)(i) was expanded to require building owners or employers, to affix or post labels or signs on materials that have been identified as ACM and/or PACM, such as, but not limited to, the entrance to a mechanical room. The other changes to section (j) of the standard are general in nature, such as, but not limited to, a word, number, or letter. The above reference to pages in the Federal Register are being provided as an attachment to this correspondence.

Under what circumstances does custodial work constitute "pure Custodial work" regulated under the general industry standard, as opposed to custodial work undertaken as part of construction activities and subject to the construction standard?

Your understanding of the scope of custodial work in general industry is correct, in that the required activities by the custodial worker would normally be, but not limited to dusting, mopping, and vacuuming the carpeting. Any other activities, such as, but not limited to vacuuming a section of broken ceiling tile on the carpeting, should be evaluated as a possible task under the construction standard.

Do the housekeeping provisions contained in the general industry standard require the use of HEPA filters any time dust or debris is dry-vacuumed in an area containing ACM/PACM, even where the ACM/PACM is in good repair, is inaccessible, or has not been disturbed?

Your understanding is correct, in that HEPA-filtered vacuuming is only required to clean-up asbestos containing waste and debris.

We hope this information is helpful. If you have any further questions please contact the Office of Health Compliance Assistance at (202) 219-8036.

Sincerely,

Ruth McCully, Director
Office of Health Compliance Assistance

Roger A. Clark, Director
Directorate of Compliance Programs
U.S. Department of Labor
Occupational Safety and Health Administration
200 Constitution Avenue, N.W.
Washington, DC 20210

Re:Final Rules on Asbestos Exposure in General and Construction industries, 59 Fed. Reg. 40964 (August 10.1994)

Dear Mr. Clark:

McDonnell Douglas Corporation ("MDC") requests your assistance in interpreting OSHA's Final Rule on Asbestos Exposure in General and Construction Industries, promulgated at 59 Fed. Reg. 40964 (August 10, 1994) ("the Final Rule"). In particular, MDC seeks clarification of the requirements for posting warning signs in "non-regulated" areas where thermal system insulation ("TSI") or sprayed-on and troweled-on surfacing materials may be located. Additionally, MDC requests clarification of the housekeeping requirements in these same areas.

There are MDC structures which have above-ceiling spaces containing structural steel members with sprayed-on and troweled-on surfacing materials. Some buildings also have ceilings to which such surfacing materials have been applied. In addition, a number of MDC's manufacturing and assembly areas have ductwork and piping, located from twenty to fifty feet above the floor, which are covered with TSI. Pursuant to the Final Rule, all TSI and sprayed-on and troweled-on surfacing materials are to be treated as presumed asbestos-containing materials ("PACM") and must be handled as if they contain asbestos. See 59 Fed. Reg. 41014. As a result, the presence of TSI and sprayed-on and troweled-on surfacing materials raises the following questions:

1. Must warning signs be posted in each and every area identified by the building owner as containing previously installed asbestos containing material ("ACM") or PACM, regardless of the condition, accessibility, and/or the likelihood of disturbance of the ACM/PACM?
2. Under what circumstances does custodial work constitute "pure custodial work" regulated under the general industry standard, as opposed to custodial work undertaken as part of construction activities and subject to the construction standard?
3. Do the housekeeping provisions contained in the general industry standard require the use of HEPA filters any time dust or debris is dry-vacuumed in an area containing ACM/ PACM, even where the ACM/PACM is in good repair, is inaccessible, or has not been disturbed?

Based on the language of the Final Rule and corresponding Preamble, we believe a proper interpretation of the regulations would provide as follows:

Under the general industry standard, warning signs must be displayed at each regulated area and at the approaches to regulated areas. 29 CFR §1910.1001(j)(3)(i). A regulated area is defined as any area demarcated by the employer where airborne concentrations of asbestos exceed, or there is a reasonable possibility they may exceed, the permissible exposure limits ("PEL") 29 CFR §1910.1001(b). Unlike the construction standard, the general industry standard does not contain any additional requirements for the posting of warning signs in unregulated areas, such as at entrances to mechanical rooms or in areas where a building owner or employer has identified previously installed ACM/PACM.⁽¹⁾

In its discussion of these posting requirements in the Preamble, OSHA focuses exclusively on the requirements for posting warning signs under section 1926.1101(k) of the construction standard. See 59 Fed. Reg. 411018-41019. The Preamble makes no reference to section 1910.1001(j) of the general industry standard, nor is there any suggestion that the general industry standard would require posting of warning signs in non-regulated areas that may contain previously installed ACM/PACM. This is consistent with our understanding that the general industry standard does not require posting of warning signs in non-regulated area. Moreover, the Preamble emphasizes that accessibility is relevant to posting information concerning the location of in-place ACM/PACM. Specifically, the Preamble states that only material subject to disturbance by building or facility occupants or maintenance personnel or workers performing renovation, repair or demolition inside or outside the building would be required to be labeled or identified through the posting of a warning sign. 59 Fed. Reg. 411018.

Therefore, MDC believes that the general posting of warning signs in public areas, such as office buildings where ceilings and/or above-ceiling spaces may contain sprayed-on/troweled-on surfacing material, is not required. Likewise, posting would not be required in manufacturing areas where TSI-covered ductwork and piping are located from twenty to fifty feet overhead. On a day to day basis, these are not areas which are subject to disturbance. There simply is no reason to believe that any asbestos fiber releases will occur in these areas, or that the airborne concentrations of asbestos in these areas will exceed the PEL. In fact, general posting in areas which contain inaccessible or undisturbed ACM/PACM may unduly alarm building occupants, even though there is little or no threat of actual exposure to asbestos fibers from undisturbed in-place TSI and surfacing ACM/PACM, or there may be no actual asbestos-containing material in the building. In addition, any concern about casual exposure to asbestos by employees who perform housekeeping work in areas where ACM/PACM may be accessible is adequately addressed by the training requirements in the general industry standard Under section 1910.1001(j)(7)(iv), the employer is required to provide such employees asbestos awareness training which must cover at a minimum the locations of ACM/PACM in buildings and facilities, the health effects of asbestos, recognition of ACM and PACM damage and deterioration, the requirements relating to housekeeping, and the proper response to fiber release episodes.

Of course, if a facility, which is otherwise regulated under the general industry standard, performs construction-like activities involving asbestos, such as removal, repair, renovation, or demolition, the facility would be required to comply with the applicable requirements of the construction standard, including posting of all required warning signs in the area subject to construction.

In the Preamble to the Final Rule, OSHA attempts to distinguish between "pure" custodial work, which is subject to the general industry standard, and Class IV custodial activities, which are regulated under the construction standard. However, based on the examples of each type of custodial work, it is difficult to determine when a custodial operation triggers the requirements of the construction standard and when this same operation falls under the general industry standard. For example, OSHA states the changing a light bulb in a fixture attached to an asbestos-containing ceiling would constitute Class IV construction work, but that removing the same light fixture is pure custodial work. See 59 Fed. Reg. 40977. Intuitively, one would think that the actual removal of a fixture is more "construction-like" than routinely changing a light bulb, yet such removal is subject to the general standard. This distinction is important because, although the requirements for custodial operations under the general industry standard may mirror Class IV requirements in the construction standard, other requirements, such as posting of warning signs in an otherwise unregulated area, may be triggered depending upon which standard applies.

MDC believes that where there is no indication that ACM/PACM has been disturbed (e.g., no visibly damaged or degraded ACM/PACM) or that surfaces are contaminated with ACM/PACM, custodial operations, such as dusting surfaces, vacuuming carpets, and mopping floors, are not subject to the construction standard. This means that the employer would not be required, for example, to label and/or post warning signs in every area that contains previously installed ACM/PACM merely as a result of undertaking pure custodial activities. This would be equally true in our office buildings, where ceilings and/or above-ceiling spaces may contain sprayed-on/troweled-on surfacing material, and our manufacturing facilities where inaccessible ductwork and piping may be covered with TSI. In the absence of undertaking some construction-like activity or actually disturbing ACM/PACM, the requirements of the general industry standard would apply.

1. A manufacturing facility which is regulated under the general industry standard is not required to post warning signs in non-regulated areas that may contain ACM/PACM.
2. Custodial work which is not performed as part of, or incidental to, construction activities is regulated under the general industry standard.
3. Neither the general industry standard nor construction standard requires the use of HEPA filters when dry-vacuuming an area containing TSI or surfacing ACM/PACM which is not visibly deteriorated or known to have been disturbed.

The general industry standard contains a provision requiring the use of HEPA filters whenever dust and debris is dry-vacuumed in "an area containing TSI or surfacing ACM/PACM." See 29 CFR §1910.1001 (k)(iv). This regulation could be read to mean that custodians would have to use a HEPA-filter, for example, when they routinely vacuum the carpeting in the lobby of a building where the ceiling contains surfacing ACM/PACM, or when employees cleanup the manufacturing areas over which hang pipes and ductwork covered in TSI. MDC understands this provision to mean that HEPA filters are only required in areas where the ACM/PACM is accessible and where there is either visible deterioration of the suspect material, known disturbance of ACM/PACM, or other reason to believe that the dust or debris contains asbestos.

Based on the foregoing, I am requesting confirmation from OSHA that the regulatory interpretations set forth above are correct.

Your assistance in this matter is greatly appreciated. Please do not hesitate to contact me at (314) 233-4042 should you require any further information.

Sincerely,

Gerald W. Lancour, Director
Safety, Health and Environmental Affairs

Footnote(1) In addition to requiring the posting of warning signs in regulated areas, the construction standard contains additional requirements for the posting of warning signs in areas containing identified ACM/PACM. Specifically, Section 1926.1101(k)(5) requires the posting of signs at the entrance to mechanical rooms/areas in which employees reasonably can be expected to enter and which contain TSI or surfacing PACM. Section 1926.1101(k)(7)(vii) also requires building owners or employers to affix labels or Post signs in areas identified as containing previously installed ACM/PACM. (Back to Text)