OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

June 28, 1996

Anthony P. Buttino
Chopra-Lee Incorporated
1815 Love Road
Grand Island, New York 14072

Dear Mr. Buttino:

Your letter of April 23, was referred to us by our Regional Office in New York, regarding your request for a clarification of section (k)(5)(ii)(B) of the Asbestos Standard for construction and shipyard employment.

Corrections to the final rule (Federal Register, Volume 60, Number 125, June 29, 1995) did not distinguish between bulk sampling of friable and nonfriable materials. On page 33975 of the above referenced Federal Register OSHA provides the EPA sampling protocol from 40 CFR 763.86 that details the number of samples required to rebut the presumption that a material is ACM. That information is as follows.

For surfacing material, three samples shall be collected from homogeneous areas of less than 1,000 square feet, five from areas between 1,000 and 5,000 square feet and seven from areas greater than 5,000 square feet.

For TSI, one sample is adequate when collected from a homogeneous area of less than six square or linear feet.

For insulated mechanical systems and other miscellaneous materials, samples shall be collected in a quantity and manner that will determine whether the material is or is not ACM.

A copy of page 33975 of the Federal Register is being provided for your information.

If you should have any additional questions regarding this matter, please contact us at (202) 219-8036.

Sincerely,



Ruth McCully, Director
Office of Health Compliance Assistance

Enclosure



May 6, 1996

MEMORANDUM TO:      Ruth McCully
                   Director 
                   Office of Health Compliance Assistance

MEMORANDUM FROM:    Patricia K. Clark
                   Regional Administrator

On April 25, 1996, the Regional Office received a request from our Buffalo Area Office for an interpretation of the OSHA Asbestos in Construction Standard, 29 CFR 1926.1101, in regards to the "criteria to rebut the designation of installed material as PACM." Specifically, the attached request seeks clarification of section .1101 (k)(5)(ii)(B) which prescribes the method of bulk sample testing and analysis in "the manner described in 40 CFR 763.86." (AHERA)

As this request may have nationwide implications, it is being forwarded to your office, so that the National Office can respond directly to the originator, Mr. Anthony P. Buttino. Mr. Buttino is being notified of the referral of this matter to your office.

Attachments:



May 6, 1996

Anthony P. Buttino
Senior Project Manager
Chopra-Lee, Inc.
1815 Love Road
Grand Island, N.Y. 14072

Dear Anthony:

Your memo to Gordon Delays, OSHA Assistant Area Director, Bowmansville, N.Y. dated April 23, 1996, was forwarded to the Regional Office on April 25, 1996, requesting clarification of the OSHA asbestos in construction standard 1926.1101, in regards to "the criteria to rebut the designation of installed material as PACM." As your request may have implications nationwide, your request was forwarded to the OSHA National Office, so that they could respond directly to you.

Thank you for your interest in occupational safety and health.

Sincerely,



Harvey Shapiro
Assistant Regional Administrator
for Technical Support




April 23, 1996

Mr. Gordon Deleys
Occupational Safety &
Health Administration
5360 Genesee Street
Bowmansville, NY 14026

RE: 29 CFR 1926.1101(k)(5) Criteria to rebut, etc.

Dear Mr. Deleys:

I am writing to request clarification on the above referenced section.

With regard to "the criteria to rebut the designation of installed material as PACM", the June 29, 1995 Corrections and Clarifications to this final standard changed the requirements of section (k)(5)(ii)(B) from collecting three bulk samples of PACM to collecting samples in accordance with 40 CFR 763.86 (AHERA).

Section 86(a) of 763, covering surfacing materials, requires the collection of between three and seven samples of friable surfacing materials (depending on square footage). Section 86(d) covers nonfriable materials and leaves the number of samples to be collected up to the discretion of the accredited inspector.

My question pertains to wall plaster which, in many cases, could be considered nonfriable by the AHERA definition. Does OSHA have a specific stance on the number of samples to be taken of such a material, or is it left to the inspector's discretion?

Thank you for your assistance.

Sincerely,



Anthony P. Buttino
Senior Project Manager