UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1
5 Post Office Square, Suite 100
Boston, MA 02109-3912
LESS-THAN-10-DAY NOTIFICATIONS UNDER THE
ASBESTOS NESHAP REGULATIONS - 40 C.F.R. PART 61, SUBPART M
INTRODUCTION
The Asbestos NESHAP notification provisions generally require owners and
operators of demolition and renovation activities to provide EPA with
written notification of a regulated operation at least 10 business days prior to
commencement of work.1 The regulations allow something less than the full
10-day notice for initial notifications (as opposed to revised or updated
notifications) only under certain limited factual circumstances. Note that
neither the Asbestos NESHAP nor EPA policy or guidance allows regional
Asbestos NESHAP staff or other regional personnel to grant a "waiver"
from the 10-day notification requirement.
Alternatives to the 10-day notification requirement under the Asbestos
NESHAP are limited to certain circumstances specified by the rule (e.g.,
emergency renovations, ordered demolitions). One rationale for the less-
than-10-day notifications is that EPA did not intend that notification
requirements for renovations result in disruption of important industrial
processes (e.g., power production). In some instances, however, it is
necessary and appropriate to stop certain activities to comply with the
notification waiting period. For example, when a removal is part of a
planned, scheduled repair or maintenance activity, there should be no
additional burden associated with notifying in advance since the operation
was planned in advance.
On the other hand, if a removal operation is necessitated by an unscheduled
and unplanned event, then the operation may be covered by the emergency
renovation provisions and not subject to the same waiting period as the
1 In New England states where EPA has delegated authority to implement and enforce Asbestos NESHAP
requirements under applicable state authority, EPA considers proper notification to the delegated state
authority to satisfy the federal Asbestos NESHAP requirement. See 62 Fed. Reg. 51654 (October 2, 1997).
The New England states where EPA has delegated such authority to implement and enforce the Asbestos
NESHAP include Connecticut, Maine, Massachusetts, and Maine. In the non-delegated New England
states of Rhode Island and Vermont, however, prior written notification of demolition and renovation
operations regulated by the Asbestos NESHAP must be provided to EPA to satisfy federal requirements.
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planned and scheduled event. Other removals are necessitated by
unscheduled events that, although unscheduled, can be predicted from past
experience and are to be reported to EPA in advance. Such reports estimate
the amounts and nature of these nonscheduled renovation operations.
EMERGENCY RENOVATION OPERATIONS
[40 C.F.R. §§ 61.145(a)(4)(iv) and 61.145(b)(3)(iii)]
Emergency renovations are unexpected events that cannot be predicted and
are caused by disruption of important industrial operations or by unsafe
conditions. An emergency renovation operation is defined at 40 C.F.R. §
61.141 to mean "<2 renovation operation that was not planned but results
from a sudden, unexpected event that, if not immediately attended to,
presents a safety or public health hazard, is necessary to protect equipment
from damage, or is necessary to avoid imposing an unreasonable financial
burden. This term includes operations necessitated by nonroutine failures of
equipment.'''
For emergency renovation operations involving threshold amounts of
asbestos, as per 40 C.F.R. § 61.145(a)(4)(iv), written notice of intent to
renovate is required "as early as possible before [work begins], but not later
than, the following working day." Events that would necessitate an
emergency renovation include those that may produce immediately unsafe
conditions as well as those that, if not quickly remedied, could reasonably be
foreseen to result in an unsafe or detrimental effect on health. For example,
a boiler in an apartment building that suddenly malfunctions during the
winter would need to be repaired immediately. The rule also includes
equipment damage and financial burden as reasons for emergency
renovations. These reasons serve to protect equipment from significant
damage and to avoid imposing an unreasonable financial burden by
requiring sources that experience a sudden unexpected equipment failure to
wait 10 days.2
Consult the Applicability Determination Index (ADI) database web site for clarification and examples on
this and other aspects of the Asbestos NESHAP.
EPA periodically issues: determinations of whether certain intended actions constitute the commencement
of construction, reconstruction, or modification ("applicability determinations"); permissions to use
monitoring or record keeping which is different from the promulgated NESHAP standards ("alternative
monitoring"); and a broad range of NESHAP regulatory requirements as they pertain to a whole source
category ("regulatory interpretations.") EPA Headquarters has maintained a compilation of such letters and
memoranda since they were first issued. This compilation is currently available on the Applicability
Determination Index (ADI) database Web site at:
http://www.epa.gov/compliance/monitoring/programs/caa/adi.html
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The basic characteristic that distinguishes an emergency renovation from a
planned renovation is the degree of predictability of their occurrence. See 40
Fed. Reg. 48292 (October 14, 1975). In planned renovations, the amount of
asbestos to be stripped or removed within a given period of time can be
predicted, whereas no such prediction can be made for emergency
renovations. Therefore, by their unexpected occurrence, emergency
renovations cannot be included in notifications given for planned, individual,
nonscheduled renovations.
For emergency renovations, the rule requires a written notification be
prepared and submitted (postmarked) not later than one working day after
renovation begins. If an incomplete notification is provided, the
owner/operator must follow up with a revised/complete notification.
Notification by facsimile technology (fax) is not considered an acceptable
means for transmitting notifications. EPA does not require annual
predictions of the quantities of asbestos to be removed as a result of
emergency renovations as annual predictions are required for individual
nonscheduled renovations that can be predicted based on past experience.
[A note about nonscheduled renovations: Although the usage of the term
"nonscheduled renovation operation" in the context of planned renovations
may appear contradictory, the term applies to individual events that cannot
be precisely predicted as to their specific nature and time of occurrence but,
based on experience, will occur. See 40 C.F.R. § 61.141. For example, a
petroleum refinery or chemical plant must routinely deal with faulty valves,
pumps, and pipes and other failures. Because such equipment failures have
occurred in the past, plant operators know that similar problems will occur in
the future, even though the exact date and location are unknown. But the
plant operators can be certain that they will occur and can plan accordingly.
Similarly, use of the word "routine" in the definition applies to equipment
failures that, based on experience, can be predicted to occur in that they
occur as a matter of routine, although the exact date and location cannot be
predicted. Activities that do not occur routinely are not covered by the
provisions governing individual, nonscheduled operations. For instance, if
the amount of asbestos that will be disturbed as part of a maintenance
activity will exceed the threshold amounts and the activity can be planned
(that is, the date and nature of the work to be done are known in advance),
then the activity is a planned renovation subject to the requirements of
Section 61.145(a)(4). Maintenance activities that occur as a result of the
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routine failure of equipment cannot be precisely predicted and would be
included in the annual notification requirement for planned renovation
operations involving individual nonscheduled operations. A maintenance
activity performed in connection with a sudden unexpected event, where the
amount of asbestos affected exceeds the thresholds, is considered an
emergency renovation. A nonscheduled renovation differs from an
emergency renovation in that, while nonscheduled renovations can be
anticipated based on experience, emergency renovations cannot be
predicted.]
ORDERED DEMOLITIONS
The Asbestos NESHAP, at 40 C.F.R. § 61.145(a)(3), provides that, among
other things, "if the facility is being demolished under an order of a State or
local government agency, issued because the facility is structurally unsound
and in danger of imminent collapse," then written notice of intent to
renovate is required as early as possible before work begins but not later
than the following working day. See 40 C.F.R. § 61.145(b)(3)(iii).
Typically, a demolition is ordered when a building has been declared unsafe
and in danger of collapse as a result of damage caused by fire. A
representative from the fire department or a building inspector employed by
the appropriate government agency makes this determination. These
structures must typically be demolished immediately and often cannot await
an inspection by EPA. To discourage abuse of this provision, the
notification that is submitted must identify the government representative
who ordered the demolition and the date the order was issued and the date
the demolition was ordered to begin.
CONCLUSION
Under the Asbestos NESHAP, all original notifications must be submitted
by owners and operators of regulated demolition and renovation activities at
least 10 business days prior to the commencement of work, unless certain
limited factual circumstances exist. These circumstances include emergency
renovations and ordered demolitions. For any demolition or renovation, it is
the reasonability of the notifying owners and operators to establish and
document their classification of a regulated operation and to comply with all
applicable Asbestos NESHAP requirements.
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For more information:
EPA Region 1 Asbestos page - http://www.epa.gov/region01/topics/pollutants/asbestos.html
EPA Headquarters Asbestos page - http://www.epa.gov/asbestos/ and
http://www.epa.gov/asbestos/pubs/ndaac.html (for asbestos professionals)
EPA Region 4 Asbestos page - http://www.epa.gov/region04/air/asbestos/
OSHA Asbestos page - http://www.osha.gov/SLTC/asbestos/
EPA Applicability Determination Index -
http://www.epa.gov/compliance/monitoring/programs/caa/adi.html
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