As authorized by the USEPA, the Massachusetts Department of Labor Standards (DLS)--formerly the Division of Occupational Safety (DOS)--administers and enforces Subpart E of the Asbestos-Containing Materials in Schools Rule, 40 CFR 763.80 through 763.99, commonly known as "AHERA". AHERA, which was incorporated into the DOS asbestos regulation, 453 CMR 6.00, in June 1999, requires that not-for-profit elementary and secondary schools inspect buildings that they own, lease or rent for asbestos-containing building materials (ACBM's), create and execute written plans for managing ACBMs in a manner that minimizes asbestos exposure hazards, abate asbestos hazards that cannot be controlled through operations and maintenance (O&M) procedures and carry out certain recordkeeping and notification functions. During the course of performing AHERA compliance inspections, DOS has noted that many school administrators are not well-versed in AHERA requirements, relying instead on asbestos consultants to ensure that AHERA requirements are met. Without some basic knowledge of AHERA requirements, which are by nature somewhat arcane, school administrators have few benchmarks to use for the evaluation of such consultative products and services. This document is intended to be a summary of AHERA requirements for Massachusetts schools. It is not intended to be a comprehensive presentation or a legal analysis of AHERA requirements.
II. Applicability of AHERA
AHERA applies to not-for-profit elementary and secondary schools (called "Local Education Agencies" or "LEAs" in the Asbestos-Containing Materials in Schools Rule, 40 CFR §§ 763.80 through 763.99). Exclusions to certain requirements of AHERA relating to inspections, etc. are set forth in § 763.99.
III. General AHERA Requirements
A. Appointment of a Designated Person - § 763.84
The LEA must designate a person (commonly known as the "Designated Person") to ensure that AHERA-related requirements are properly implemented. The LEA must ensure that the Designated Person has received the training set forth at 40 CFR 763.84(g)(2) .
B. Inspections of School Buildings - § 763.85
1. Initial Inspection. Before a building is used as a school building (includes administrative offices) the LEA must have an Asbestos Inspector certified pursuant to 453 CMR 6.07 perform the inspection required by § 763.85(a). The inspector must visually inspect all areas to detect both friable 1 and nonfriable ACBMs and touch all suspected ACBMs to determine friability. Suspected materials may be assumed to be asbestos-containing. Other suspected materials not assumed to be asbestos-containing must be sampled in accordance with the protocols specified at § 763.86 and sent to a laboratory certified by DLS in accordance with 453 CMR 6.08 for analysis. In addition to documenting the presence of ACBMs, the Asbestos Inspector shall make a written assessment of the condition of the suspected, known and assumed ACBM's noted during the inspection, as specified at § 763.88, and shall classify each of the identified ACBMs into one of the seven categories listed at § 763.88(b)(1) through (7). The inspector must prepare a record of the inspection that includes the information specified by § 763.85(a) and submit such record and information to the Designated Person specified in accordance with § 763.84.
2 . Reinspection. The LEA shall utilize a certified Asbestos Inspector to reinspect known or suspected ACBMs in all buildings that it owns or leases every three years. The inspection must be conducted in accordance with the requirements set forth at § 763.85(b).
3. Periodic Surveillance. After the identities and locations of known or suspected ACBMs have been incorporated into the Management Plan for the school building, as referenced at § 763.93 and Section III.3. of this AHERA Guidance Document, the LEA must conduct periodic surveillance of these ACBMs specified at § 763.92(b) at least once every six months after the Management Plan is in place. The person conducting the periodic surveillance does not need to be licensed or certified as an Asbestos Inspector, but should at least have received the 2-hour asbestos awareness training specified at § 763.92(a). The periodic surveillance includes a visual inspection of the previously identified ACBMs to detect any changes in the conditions of the materials. The periodic surveillance inspection does not have to include touching of the material. Documentation of the periodic surveillance inspection and its results must be submitted to the Designated Person, as prescribed by § 763.92(b).
C. Management Plans
1. Requirement for Creation and Submission. Pursuant to § 763.93, the LEA must ensure that an asbestos Management Plan is created for each building that it owns or leases as a school building and that the Management Plan is submitted to DOS for review prior to the use of the building as a school building. The Management Plan must be prepared by a person who has been certified or licensed as a Management Planner pursuant to 453 CMR 6.07.
2. Content of Management Plan. The Management Plan shall be prepared in accordance with requirements set forth at § 763.93 and minimally include the elements set forth at § 763.93(e) through (i). Typical elements of a Management Plan include but are not limited to: inspection and periodic surveillance results and related recommendations for O&M work and/or abatement; schedules for future inspections and periodic surveillance; training of staff; procedures for operations and maintenance work and associated records of operations and maintenance activities; records related to asbestos abatement work that has been carried out; provisions for notifying outside contractors of the locations of asbestos materials in the school; recordkeeping and provisions for notifying staff and parents of the existence and availability of the Plan. Note - the list of items that must be included in the Management Plan, as specified at § 763.93 is quite extensive. The Designated Person should review the list and the Management Plan(s) to ensure that all required elements are included.
3. Implementation of the Management Plan. The LEA shall implement the elements of the Management Plan, including but not limited to, any indicated training, O&M work or asbestos abatement work (response actions), in a timely manner.
4. Maintenance of Management Plans. As required by § 763.93(d), the LEA shall maintain and update its Management Plan to keep it current with ongoing O&M work, periodic inspections and surveillance, asbestos abatement activity and any other activities related to AHERA compliance in the associated building.
D. Operation and Maintenance Plans and Programs
1. Description. An Operations and Maintenance (O&M) Program is a set of procedures and practices designed to: maintain ACBMs in an intact condition that reduces the likelihood of the release of asbestos fibers; ensure the clean up of asbestos fibers that have previously been released; and prevent further damage by minimizing and controlling disturbance and damage to ACBMs. An O&M Plan is a set of written procedures and protocols that becomes part of the Management Plan for accomplishing these objectives and managing ACBMs in place. A good source of information on O&M Plans and Programs is the EPA "Green Book," Managing Asbestos In Place: A Building Owner's Guide to Operations and Maintenance Programs for Asbestos-Containing Materials, EPA Publication 20T-2003, which is available online at http://www.epa.gov/asbestos/pubs/buildings.html
2. Requirement for Instituting. As required by § 763.91(a), an LEA must institute an O&M Program in every building that it owns or leases where friable ACBM, or nonfriable ACBM that could become friable, is present or assumed to be present.
3. Contents of a Typical O&M Plan/Program and Related Requirements. An inspection and an assessment performed in accordance with §§ 763.85 and 763.88 that identify the types, amounts and conditions of ACBMs in a school building, as well as the various factors that influence the tendencies of the materials to be disturbed or to deteriorate, necessarily precedes the development and implementation of an O&M Plan. Informed by the results of these inspections and assessments, a properly constructed O&M Plan/Program minimally contains the following elements:
a. Notifications Regarding the Locations of ACBMs in the Building and Precautions That Must Be Observed Around Them. This information must be incorporated into the Management Plan and made available to interested parties, including staff and parents, as provided by § 763.93(g). Notifications contained within the Management Plan should also contain provisions for building occupants to report asbestos spills or damage to ACBMs back to the Designated Person or other appropriate individual, so that they may be addressed. In accordance with § 763.95, warning labels must be attached immediately adjacent to friable and nonfriable ACBM in maintenance areas, such as boiler rooms. In accordance with § 763.84(d), outside workers, such as telephone repair and utility workers who come into the school for short-term projects and who may come into contact with ACBMs must be given information regarding the locations of such ACBMs.
b. Training. The Designated Person must receive the training specified by § 763.84(g)(2). Also, in accordance with § 763.92(a), all custodial and maintenance staff must receive two hours of asbestos awareness training, whether or not their duties will involve contact with or disturbance of ACBMs. Although this training must be given by a knowledgeable person, it does not need to be given by a certified or licensed provider. It must, however, include the subjects listed at § 763.93(g)(1)(i) through (v). Custodial and maintenance staff whose work may involve the disturbance of ACBMs must receive the 16-hour Asbestos Associated Project Worker training specified at 453 CMR 6.10(4)(h).
c. Cleaning. Incidental and routine cleaning are important mechanisms for the removal of asbestos fibers that originate from ACBMs installed in schools and other buildings and accumulate in settled dust and debris on their interior surfaces. Therefore, O&M Plans/Programs should contain schedules and methods for conducting such cleaning. Typically, such cleaning programs include an initial, comprehensive cleaning, followed up with regular, periodic cleanings. Dry sweeping is prohibited; vacuuming with a HEPA vacuum and wet wiping or mopping (using the two-bucket method) are specified.
d. Work Notifications. To minimize the potential for ACBMs present in a school to be disturbed by repair and maintenance operations and other projects carried out there, most O&M Plans/Programs contain provisions for work notifications to be made in advance of such projects and for some level of oversight to be given to them.
e. Work Practices. An O&M Plan/Program typically contains work practices for routine maintenance and repair operations which may disturb asbestos and for the clean-up of minor asbestos spills (called "Minor Fiber Release Episodes" in AHERA). Where disturbance of ACBMs is not an inevitable result of the repair or maintenance activity or project, such work practices are usually focused on the avoidance of disturbance. Where the disturbance of small quantities of friable asbestos (less than three square feet or three linear feet, or the less than the amount that can be contained by a single asbestos glove bag or waste bag) is an expected result, the work practices must be consistent with the corresponding work practices set forth for "small-scale asbestos projects" at 453 CMR 6.13(1). Where the work would involve the removal or disturbance of nonfriable ACBMs, the work practices would need to be consistent with those set forth at 453 CMR 6.13(2). The cleanup of asbestos spills involving more than three square feet or three linear feet of ACBM (or more than the amount that can be contained by a single asbestos glove bag or waste bag) must be conducted as an asbestos abatement operation ("Response Action" in AHERA) by an asbestos contractor licensed pursuant to 453 CMR 6.05.
f. Recordkeeping. Records of all relevant actions taken under an O&M Plan should be recorded in writing and kept as part of the Plan.
E. Response Actions (Asbestos Abatement Projects)
1. Definition. Response Actions, commonly termed "Asbestos Abatement Projects", are projects that are carried out for the purpose of reducing or eliminating asbestos hazards through removal, encapsulation (treatment of an asbestos material with a liquid that penetrates the material and then hardens, or forms a membrane over the surface of the material, to prevent the release of asbestos fibers) or enclosure of the material. Asbestos Response Actions, which are generally more extensive than Operations and Maintenance Operations, typically involve more than three square or linear feet of material (or more than the amount of material that can be contained by a single asbestos glove bag or waste bag.)
2. When Must Response Actions Be Conducted?
a. § 763.90 contains fairly extensive and detailed requirements for the timely implementation of Response Actions that address certain asbestos hazards identified during the building assessment conducted by the Asbestos Inspector pursuant to § 763.88. Under § 763.90, the need to conduct an abatement (Response Action) is strongly influenced by the type of the material, its condition, and its potential for continuing damage or deterioration. In general, the LEA can often choose the least expensive or burdensome Response Action (removal, encapsulation, enclosure) or implement an Operations and Maintenance Program, provided that the action taken is sufficiently protective of human health and the environment.
b. The LEA would need to carry out renovation or repair work as Response Actions when more than threshold amounts of asbestos materials are disturbed (made friable). In general, projects that involve the disturbance of more than three square/linear feet of asbestos material (or more than the amount that can be contained by a single asbestos glove bag or waste bag) must be carried out as Response Actions.
c. The cleanup of asbestos spills involving the release of more than three square/linear feet of asbestos material (or more than the amount that can be contained by a single asbestos glove bag or waste bag) - called "Major Fiber Release Episodes" in AHERA- must be conducted as Response Actions. The cleanup of "Minor Fiber Release Episodes" - spills that involve the release of less than these threshold amounts - may be conducted in accordance with the work practice requirements of 453 CMR 6.13(1) by persons who have the 2-day Asbestos Associated Project Worker training specified at 453 CMR 6.10(4)(h).
d. The LEA may also choose to carry out a Response Action when such an Action is not specifically required by AHERA.
3. Requirements for Asbestos Response Actions
a. For school projects, a project design must be prepared by an Asbestos Project Designer certified pursuant to 453 CMR 6.07 in advance of the work being carried out.
b. The work must be carried out in accordance with the work practices specified at 453 CMR 6.14.
c. At the conclusion of the work, the LEA (not the asbestos contractor) must contract with an Asbestos Project Monitor certified by 453 CMR 6.07 to perform the visual clearance and conduct the air clearance monitoring required by 453 CMR 6.14(5). The Asbestos Project Monitor must use aggressive sampling in the collection of the air samples, regardless of the method used for analysis, and all associated analyses must be carried out by a laboratory certified pursuant to 453 CMR 6.08.
d. For projects involving 160 or fewer square feet or 250 or fewer linear feet of asbestos material, the NIOSH Method 7400 (phase contrast microscopy) may be used for the air clearance analysis.
e. For projects involving more than 160 square feet or more than 250 linear feet of asbestos material, the transmission electron microscopy method found in Appendix A of Subpart E of 40 CFR 763 must be used for the air clearance analysis.
f. The project will be considered complete, and the associated work area barriers and warning signs may be taken down only after the work area passes both visual and air clearances.
F. Recordkeeping and Notifications . AHERA requires that the LEA maintain certain records in its Management Plans of each school. For each homogeneous area where all ACBM has been removed, the local education agency shall ensure that such records are retained for 3 years after the next reinspection required under § 763.85(b)(1), or for an equivalent period. A listing of these required records and related requirements is presented below.
1. For each preventive measure and Response Action taken for friable and nonfriable ACBM and friable and nonfriable suspected ACBM assumed to be ACM, the LEA shall provide:
a. A detailed written description of the measure or action,
including methods used, the location where the measure or action was taken, reasons for selecting the measure or action, start and completion dates of the work, names and addresses of all contractors involved, and if applicable, their DLS Asbestos Contractor license numbers, and if ACBM was removed, the name and location of storage or disposal site of the removed ACBM.
b. The name and signature of any person collecting any air sample required to be collected at the completion of Response Actions, as specified by § 763.90(i), the locations where samples were collected, date of collection, the name and address of the laboratory analyzing the samples, the date of analysis, the results of the analysis, the method of analysis, the name and signature of the person performing the analysis, and a statement that the laboratory is certified to perform said analyses pursuant to 453 CMR 6.08.
2. For each person required to be trained under § 763.92(a) (1) and (2), the local education agency shall provide the person's name and job title, the date that training was completed by that person, the location of the training, and the number of hours completed in such training.
3. For each time that periodic surveillance under § 763.92(b) is performed, the local education agency shall record the name of each person performing the surveillance, the date of the surveillance, and any changes in the conditions of the materials.
4. For each time that cleaning under § 763.91(c) is performed, the local education agency shall record the name of each person performing the cleaning, the date of such cleaning, the locations cleaned, and the methods used to perform such cleaning.
5. For each time that Operations and Maintenance activities under § 763.91(d) are performed, the local education agency shall record the name of each person performing the activity, the start and completion dates of the activity, the locations where such activity occurred, a description of the activity including preventive measures used, and if ACBM was removed, the name and location of storage or disposal site of the removed ACBM.
6. For each time that major asbestos activity under § 763.91(e) is performed, the local education agency shall provide the name and signature, and DLS Asbestos Contractor license number of the contractor performing the activity, the start and completion dates of the activity, the locations where such activity occurred, a description of the activity, including preventive measures used, and if ACBM was removed, the name and location of storage or disposal site of the removed ACBM.
7. For each fiber release episode regulated under § 763.91(f), the LEA shall provide the date and location of the episode, the method of repair, preventive measures or Response Action taken, the name of each person performing the work, and if ACBM was removed, the name and location of storage or disposal site of the removed ACBM.
8. Where, pursuant to §§ 763.99(a)(1) through (a)(6), an Asbestos Inspector has determined that ACBM is or is not present in a homogeneous or sampling area of a school, based on the results of sampling conducted prior to December 14, 1987, the LEA shall include a signed statement of the applicable determination(s) made by the Asbestos Inspector in the Management Plan.
9. Where, pursuant to § 763.99(a)(7), an architect or project engineer responsible for the construction of a school submits a signed statement that to the best of his or her knowledge, no ACBM was specified as a building material for the construction of the school and that no ACBM was in fact used in such construction, a copy of said signed statement shall be included in the Management Plan for the building.