Washington State

House of Representatives

Office of Program Research

BILL

ANALYSIS

Environment & Energy Committee

ESSB 6473

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Brief Description: Concerning asbestos-containing building materials.

Sponsors: Senate Committee on Labor & Commerce (originally sponsored by Senators Stanford, Frockt, Conway, Keiser, Hasegawa, Liias, Van De Wege, Billig, Hunt and Saldaña).

Brief Summary of Engrossed Substitute Bill

  • Prohibits the use of asbestos-containing building materials in non-residential new construction or renovations, beginning in 2025.

  • Requires building materials that contain 0.1 percent asbestos, rather than 1 percent asbestos, to be labeled consistent with state or federal requirements.

  • Requires certain manufacturing facilities to perform triennial facility inspections for asbestos-containing building materials and develop an asbestos management plan.

Hearing Date: 2/24/20

Staff: Jacob Lipson (786-7196).

Background:

Asbestos.

Asbestos is a naturally occurring mineral fiber found in rock and soil. The United States Environmental Protection Agency (EPA) classifies six categories of asbestos mineral fibers: chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite. Asbestos can be used as an insulator or fire retardant in a variety of consumer goods, including building materials, and is also found as a naturally occurring contaminant in deposits of other mineral types used for commercial purposes.

Asbestos Regulation.

Since 1973 the federal government has adopted numerous environmental and public health regulations governing the mining, manufacture, installation, and removal of asbestos. In general, the federal Occupational Safety and Health Administration provides worker-safety regulations for the use and proper handling of asbestos, while the EPA has asbestos-related regulatory authority deriving from the federal Clean Air Act and other federal environmental statutes, including the Toxic Substances Control Act (TSCA).

The TSCA includes provisions granting the EPA the regulatory authority to ban the use of individual chemicals under certain circumstances. In 1989 the EPA issued a rule under the TSCA which would have phased in a ban on the use of asbestos in most products. However, in 1991 this EPA ban was largely vacated by a federal appeals court decision, allowing for the continued use of asbestos in many consumer products. Following the decision, the products in which asbestos were allowed to be used included a variety of building materials, including cement corrugated sheets, flat sheets, shingles and piping, roof and non-roof coatings, and vinyl floor tile.

Currently, asbestos is banned by federal law from use in pipe and water heater insulation, spray-applied surfaces, artificial wall-patching compounds, and rollboard insulation, as well as in types of products that have not historically contained asbestos. Per its authority under the TSCA, the EPA requires that certain products from which asbestos is banned, including building materials such as rollboard, receive a label noting that the product contains asbestos, in order to facilitate compliance with and enforcement of the rule.

Under the federal Lautenberg Chemical Safety for the 21st Century Act of 2016, asbestos is one of the first ten chemicals for which the EPA is carrying out a risk evaluation, and building materials were one of the asbestos uses being evaluated. In April 2019, the EPA adopted a rule to remove cement building products and certain other asbestos uses from the scope of the risk evaluation, after finding that they are not ongoing uses of asbestos. In that rule, the EPA determined that those asbestos uses would constitute significant new uses of asbestos under the TSCA, and are prohibited from restarting without prior notice, review, and regulation by the EPA.

The EPA has established formalized testing methods to measure for the presence and concentration of many pollutants, including asbestos, which it is charged with regulating. The EPAs asbestos-testing methods were developed in 1993.

At the state level, the Department of Labor and Industries regulates workplace standards related to asbestos use in construction and manufacturing, while the Department of Ecology (Ecology) and local clean air agencies regulate asbestos removal from structures.

In addition, asbestos-containing building materials must be labeled consistent with state or federal standards. An asbestos-containing building material is any building material to which asbestos is deliberately added in any concentration or that contains 1 percent asbestos by weight or area. Building material includes materials designed for, or used in, construction, renovation, repair, or maintenance of institutional, commercial, public, industrial, or residential buildings and structures. Building material does not include automobiles, recreational vehicles, boats, or other mobile means of transportation. Violations of the labeling requirement are subject to civil penalties under the state Clean Air Act of up to $10,000 per violation.

North American Industry Classification System.

The North American Industry Classification System (NAICS) is a standard used by federal statistical agencies for classifying business establishments. NAICS codes for manufacturing businesses (NAICS 31-33) include manufacturers of food, beverages, tobacco products, textiles and textile products, apparel, leather and applied products, wood products, paper, printing, petroleum and coal products, chemicals, plastics, rubber, nonmetallic mineral products, primary metals, fabricated metals, machinery, computer and electronic products, transportation equipment, furniture, and other miscellaneous manufacturing.

Summary of Bill:

For purposes of state labeling laws pertaining to asbestos-containing building materials, asbestos-containing building materials are defined to include any building material to which asbestos is deliberately added in any concentration or that contains 0.1 percent asbestos by weight or area.

Beginning January 1, 2025, the use of asbestos-containing building materials in new construction or renovations is prohibited. This prohibition does not apply to the use of asbestos-containing building materials:

Manufacturing facilities, as identified by North American Industry Classification System codes, must perform facility inspections to determine whether asbestos-containing building materials are present and must reinspect every three years thereafter. Inspections must be carried out by persons accredited consistent with requirements established under the federal Toxic Substances Control Act.

Manufacturing facilities must also develop, maintain, and update at least triennially an asbestos management plan (plan) and keep a copy at the facility. The plan must include eight specified criteria, including a blueprint of the facility that identifies asbestos-containing materials, a description of response actions or prevention measures to reduce asbestos exposure, and a description of steps taken to inform workers of inspections and response actions. Upon request, the plan must be made available to the Department of Ecology and the Department of Labor and Industries, local air authorities under the state Clean Air Act in jurisdictions where they have been formed, and subcontractors and workers at the facility.

Plan violations are subject to civil penalties under the state Clean Air Act, as well as civil and criminal penalties under the state Industrial Health and Safety Code.

Appropriation: None.

Fiscal Note: Available. New fiscal note requested on February 18, 2020.

Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed, except section 1, restricting asbestos-containing building material in nonresidential new construction or renovations, which takes effect January 1, 2025.