Special Report: Construction standards for asphalt roof coatings containing asbestos, September 1997
On July 24, 1997, the U.S. Fifth Circuit Court of Appeals vacated the Occupational
Safety and Health Administration's (OSHA's) shipyard and construction standards
insofar as they regulate asphalt roof coatings and sealants that contain asbestos.
Enclosed is a copy of the court's opinion.
As a result of this ruling, the installation, removal, repair and maintenance of
asbestos-containing roof cements, coatings and mastics are not regulated in any
way by OSHA. The Environmental Protection Agency's (EPA's) regulations also generally
are not applicable to the handling (i.e., installation or removal) of these products,
unless they are in a friable condition. (EPA defines friable as, "any material containing
more than 1 percent asbestos… that, when dry, can be crumbled, pulverized or reduced
to powder by hand pressure.") These products are expected to be non-friable in virtually
In addition, the court's findings clarified that there is, "no evidence in the record
that asbestos fibers can ever escape from the roofing sealants and become airborne:
in fact, the evidence in that record indicated that they cannot."
Although asbestos-containing cements, coatings and mastics no longer are regulated
(in almost all cases), there still area number of issues to consider. These include:
Some insurance policies exclude coverage for asbestos-related claims. (This is not
the case for workers' compensation insurance.) Contractors handling any ACRM should
make sure they have liability insurance coverage for handling asbestos. This typically
can be obtained through a pollution liability endorsement.
A contract may include language that prohibits the installation of any asbestos
materials. Contractors need to examine contract documents closely for such language,
and if it exists, either use asbestos-free products or reach agreement to delete
the contract language. In addition, contract documents should include hold-harmless
language to limit the contractor's liability for third-party claims.
Contractors should contact landfills and inquire about restrictions and costs for
disposing ACRM. Even if a particular material is not regulated, a landfill may not
accept it. And many landfills who will accept ACRM (even when it's not regulated)
will charge a premium for handling it.
NRCA previously has recommended that contractors discuss with building owners the
use if asbestos-containing products, and obtain the building owner's consent (preferably
in writing), prior to installing such products. The purpose of this recommendation
was to minimize the risk that contractors might be sued for money damages, or even
forced to replace newly installed roofing material, by building owners who discover
after the job that asbestos-containing material have been installed without their
knowledge or consent. NRCA is aware of instances in which building owners have brought
such suits against roofing contractors in such circumstances. The Fifth Circuit
decision reduces the likelihood of such suits in at least two ways. First, by eliminating
the previous OSHA requirements applicable to the repair and removal of asbestos-containing
roof cements, coatings and mastics, the Court's ruling creates an obstacle to potential
claims that the installation of these products will lead to significantly higher
regulatory costs to the building owner (e.g., when the materials are removed or
repaired). Second, the Court's finding that asbestos fibers are not likely to be
released from these products under any foreseeable circumstances undercuts allegations
that these products present a health hazard to anyone. Nonetheless, some potential
for such suits continues to exist. Even after the Fifth Court's decision, building
owners may still bring claims based on increased regulatory and other costs, and
state or local regulations (which can be more stringent than federal requirements).
In addition, despite the absence of any rational or scientific basis for fears about
health hazards from the presence or use of asbestos-containing roof cements, coatings
and mastics, some building owners simply do not want asbestos-containing materials
in their buildings, period. Accordingly, NRCA continues to recommend, as a matter
of prudent business judgment only (i.e., to minimize the potential for litigation,
not on account of any federal regulatory requirement), that roofing contractors
inform building ownersand obtain their consent, in writing if possibleprior
to installing asbestos-containing products.
Contractors who choose to follow this recommendation should first ascertain whether
any products they install contain asbestos. This may involve more than just examining
the product labeling, because some asbestos-containing roof cements, coatings and
mastics are not labeled as asbestos-containing. (OSHA's requirement for a
hazard warning on the label of such products does not apply if the manufacturer
has "objective data" that show asbestos fibers will not be released under reasonably
foreseeable conditions.) Therefore, unless the product labeling states that it is
asbestos-free, the contractor should contact the manufacturer or distributor to
determine whether asbestos is an ingredient in the product.
OSHA is expected to amend the asbestos regulation so that the "intact incidental"
category for certain roofing material will only include intact flashings. The installation,
removal, repair and maintenance of cements, coatings and mastics no longer are regulated
It is possible that OSHA will appeal the court's decision, but it is not anticipatedthe
ruling was definitive. Also, this was the only remaining legal challenge to OSHA's
revised asbestos standards. However, state and local developments may be inconsistent
with federal regulations. NRCA needs to be kept informed of these developments,
and will assist wherever possible.