Quebec is one of the last Canadian jurisdictions to specifically mandate asbestos monitoring and documentation but it has now done so with a broad sweep that environmental specialists caution will be challenging to achieve within a tight deadline.
A new regulation under provincial occupational health and safety legislation compels employers to inspect sprayed flocking, which includes sprayed fireproofing, thermal and acoustic insulation, in all workplaces in buildings constructed prior to Feb. 15, 1990. Even more comprehensively, heat insulating materials, which are typically used on mechanical systems, must be inspected in workplaces in all buildings built before May 20, 1999.
In buildings of the designated vintage, it will automatically be presumed that sprayed coatings and heat insulating materials contain asbestos unless it can be proved otherwise. Knowledgeable observers counter that it could be presumed that asbestos won’t be present in a significant percentage of those buildings.
“Asbestos wasn’t used in thermal insulation after 1990, and most products were asbestos-free well before that,” says Don Pinchin, president of consulting firm, Pinchin Environmental Ltd. “The only thing they are using in buildings now that contains asbestos are asbestos-cement rainwater leaders.”
However, since 1990 and 1999 reference the years that the Quebec government passed legislation to prohibit the use of the specified asbestos-containing products, consultants aren’t anticipating further leniency.
“I don’t think those dates will move,” says Édouard Paya, president of Montreal-based engineering firm, Le Groupe Gesfor Poirier, Pinchin Inc.
Given the vast number of properties earmarked for inspection by the deadline of June 5, 2015, set in the regulation, Paya is equally concerned about guidelines for testing that the provincial employment overseer, Commission de la santé et de la sécurité du travail (CSST), is promoting. These would double the number of samples of some kinds of materials (such as fireproofing and mechanical insulation) that consultants have conventionally taken.
The guidelines also recommend nine samples of products that contain trace amounts of asbestos – a degree of thoroughness the U.S. Environmental Protection Agency (EPA) demands only in designated highly sensitive occupancies. Until now, consultants have relied on EPA standards calling for three to seven samples depending on the size of the area tested.
“This is not in the regulation. It’s just a guideline but the number of samples they are asking for is excessive,” says Paya. “For fireproofing, we used to take one (sample) per floor. So if we have a building with 30 floors, that’s 30 more samples just for fireproofing.”
Several Quebec-based environmental consulting firms have joined together to express their concerns to the CSST. Following these guidelines will take more time and increase costs in a period when consultants will be hard-pressed to meet demand for their services. Yet, the CSST’s general influence in workplace matters may sway many employers to voluntarily comply.
Because regulation applies to employers, property owners are not responsible for compliance within commercial, institutional, retail or industrial units unless they also employ the occupants of the space. The legislation does hold property owners accountable for common areas of a building that houses a workforce.
It’s expected that some landlords will opt to carry out the work for an entire building or portfolio and charge the cost back to their tenants. Regardless, the regulation is likely to add a new dynamic to lease negotiations.
Employers with premises in designated buildings, or landlords acting on their tenants’ behalf, are advised to get into the queue now since the deadline for conducting first inspections is only approximately 20 months away.
“I am not sure the market is ready to take on all that work,” Isabelle Tremblay, an environmental law specialist with Borden Ladner Gervais LLP in Montreal, observed at a recent seminar.
As of June 5, 2015, employers will be required to keep a register of locations and other details relating to materials containing asbestos, or documentation to prove the absence of asbestos. This register must be available to all employees and transferred to any new employers subsequently occupying the space.
Identified materials containing asbestos must be checked at two-year intervals. Materials deemed likely to emit asbestos dust must be removed or encapsulated.
“There have been some early compliers,” reports Pinchin. “Many municipalities and school boards began surveys even before the regulation was formally adopted.”
In neighbouring Ontario, where existing regulations similarly require asbestos surveys, the percentage of complying buildings remains relatively low. The public sector, large and/or sophisticated private sector landlords and industrial facilities housing unionized workforces tend to have higher compliance rates but smaller owners generally have not complied with the survey requirement.
Looking to Ontario’s experience, Pinchin suggests adherence is best achieved before new rules become old forgotten rules.
“When there is a wave of compliance, as there is now in Quebec, people who don’t comply in the first couple of years generally don’t comply,” he says.
Barbara Carss is editor-in-chief of Canadian Property Management and Building Strategies & Sustainability magazines.