UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Region 1 - New England
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-dav 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 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.
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 (partial), Maine, Massachusetts, and Maine. For regulated sources in the
non-delegated New England states of Connecticut (partial), 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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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 "a 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
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
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 regulated activities such as 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 interpretations as they pertain to sources or source categories ("regulatory
interpretations"). EPA Headquarters has maintained a compilation of such letters and memoranda since
they were first issued and this compilation is currently available on the Applicability Determination Index
(ADI) through the link provided, below.
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renovations as annual predictions are required for individual nonscheduled renovations
that can be predicted based on past experience.
rA 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 that occur occasionally. 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 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.
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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.
For more information:
EPA Asbestos NESHAP Rule Summary and contact page - https://www .epa. gov/stationarv-
sources-air-pollution/asbestos-national-emission-standards-hazardous-air-pollutants
EPA Headquarters Asbestos page - http://www.epa. gov/asbestos/ and
https://www.epa.gov/asbestos/asbestos-professionals (for asbestos professionals)
OSHA Asbestos page - http://www.osha.gov/SLTC/asbestos/
EPA Applicability Determination Index-
http://www.epa.gov/compliance/monitoring/programs/caa/adi.html
Updated: 9/14/2017
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