Don't Cut Corners When Handling Asbestos
Jan. 7, 2016 — During January, Habitat Weekly will advise boards on how to deal with a quartet of natural-born killers. This week: asbestos.
It's a busy time in your co-op. The couple in apartment 4B is knocking out a wall to open up their kitchen. Meanwhile, crews are replacing the floor tiles in all of your prewar building's hallways. And finally, your boiler is being removed. Warning bell time: your co-op or condo board should be prepared for the possibility that such demolition and renovation projects could unleash lethal asbestos, both inside apartments and in common areas. Failure to do so can lead to any number of unhappy endings, including sickness, lawsuits, even death.
If ever there was a time to be prepared, this is it.
The first thing every board needs to know is that asbestos is still ubiquitous in New York, particularly in insulation, floor tiles, and roofing in older buildings. The second thing to know is that the city's rules governing the handling of asbestos, which was declared a carcinogen in 1976, are strict. Under Local Law 76/85, any renovation job that requires approval from the Department of Buildings (DOB) - such as taking down that load-bearing wall in Apartment 4B - also requires an asbestos survey, even if you were told the building was constructed without asbestos. The survey must be conducted by a certified inspector.
Working from plans provided by the job's architect or engineer, the inspector takes samples of each type of material to be disturbed or demolished. These samples are then sent to a certified lab. If asbestos containing material (ACM) is present - anything containing more than 1 percent asbestos - an abatement must be conducted before construction can begin. Only a contractor licensed to remove asbestos can perform this work. It cannot be done by the job's contractor, the asbestos investigator, architect, engineer, or building staff.
To ensure residents' safety and prevent lawsuits, all boards should include specific asbestos-removal requirements in their alteration agreements, advises David Berkey, a partner in the firm of Gallet Dreyer & Berkey. "Step 1, your alteration agreement has to spell out that if asbestos is found, the job has to stop," Berkey advises. "After you get clearance that the material has been removed, work can proceed."Berkey frequently advises boards to create a "hybrid" alteration agreement - with catch-all language stating that every renovation project must comply with applicable laws, plus additional requirements, including that the building's engineer must certify the asbestos contractor's abatement plan. Boards can even demand that the job be performed by one of a number of specified abatement contractors known to be reputable. The agreement should also spell out that all costs of apartment renovations, including asbestos work, will be borne by the shareholder or unit-owner, while work to common areas is the responsibility of the co-op or condo building. Some lawyers advise boards to add language requiring board approval of any changes in the project plans before work can proceed.
If proper precautions are not taken with asbestos, the consequences can be disastrous. "The worst-case scenario is that someone breathes friable (airborne) asbestos and gets sick and sues you," Berkey says. "Another is that the DOB issues a violation and requires a much larger abatement."
Boards also need to fight the hysteria that asbestos can cause, says David Goodman, director of Mitchell-Lama developments for Tudor Realty Services. Goodman has overseen the removal of numerous asbestos-wrapped boilers and steam pipes, and he's aware that residents need to be kept away from such jobs. But if a survey determines that no asbestos is present in an area to be renovated, the board needs to get the word out.
"We post that notice so that residents don't get alarmed," Goodman says. "We've discovered that there are alarmists who think the sky is always falling. We try to pre-empt that."
Eric Cowley, president of Cowley Engineering, agrees that managing anxiety is a big part of any job involving asbestos. "If the project is in a common area, the property manager needs to work with residents to calm their anxieties," he says. "As a board, if you're doing interior renovation or demolition work, get an ACM report even if you don't think there's any asbestos. It keeps peace in the building. If there's dust during an interior renovation, I can see a situation where a neighbor will question if a test was done. I would always have a test done."
To hear why you should really be concerned about asbestos, listen to "Asbestos With Karen Ward" here. This is part of Habitat's Legal Talk Podcast series.