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September 6, 2016

Asbestos and Strata Corporations

Building materials in many older strata corporations may contain asbestos. Healthlink BC states that if a building was constructed before 1990, it is more likely that it will contain asbestos and asbestos fibers become a risk to a person’s health if they are released into the air and inhaled.

Under Section 20.112 of the Occupational Health and Safety Regulation at Worksafe BC, a property owner must ensure that a qualified person inspects the building or structure and the worksite to identify hazardous materials, before work begins. A qualified person is defined as someone who:

(a)   has, through education and training, knowledge of the management and control of the hazardous materials that the qualified person is made aware of by the employers, and the owner, or that are reasonably foreseeable by the qualified person, as being

(i)                 on or in the machinery, equipment, building or structure that is the subject of the demolition, salvage or renovation, or

(ii)              at the worksite, and

(b) has experience in the management and control of those hazardous materials.

A qualified person must:

In conducting an inspection and identifying the hazardous materials, if any, under subsection (2), a qualified person must do the following:

(a)               collect representative samples of the material that may be hazardous material;

(b)               identify each representative sample and determine whether it is hazardous material;

(c)                if the actions under paragraphs (a) and (b) are not practicable, or not appropriate in the circumstances, use other sufficient means to identify the hazardous materials, if any;

(d)              based on the actions taken under paragraphs (a) and (b) or (c), determine the location of each of the hazardous materials identified;

(e)                make a written report of the inspection, including,

(i)                 if the actions under paragraphs (a) and (b) were taken,

(a)               the location of each representative sample, and

(b)               the identity of each representative sample and whether it is hazardous material,

                   (ii)               if the actions under paragraph (c) were taken, the identity of each of the  hazardous materials, if any,

                   (iii)             a description of the methods used under paragraph (b) or (c),

                  (iv)              the location, as determined under paragraph (d), of each of the hazardous materials identified, including by using drawings, plans or specifications, and

                  (v)                the approximate quantity of each of the hazardous materials identified

 

Under Section 26 of the Strata Property Act, a strata council must exercize the powers and perform the duties of the strata corporation. Section 119 of the Workers Compensation Act requires an owner to maintain the land and premises that are being used as a workplace in a manner that ensures the health and safety of persons at or near the workplace.

Therefore before undertaking any demolition, it is the responsibility of the strata council to engage a qualified person to conduct a survey of the building in order to identify the location of hazardous materials, including asbestos. An asbestos survey is typically performed by an environmental consultant who prepares an Asbestos Materials Survey.

The strata council can use this report to help them implement and maintain an effective Asbestos Management and Exposure Control Program, the content of which needs to include, but not necessarily be limited to all of the following:

–          maintain an inventory of all known and suspect asbestos containing materials (ACM) at the building,

–          keeping the ACM inventory current,

–          prepare an effective labelling system or other means of ACM identification,

–          coordination of planned and emergency work to ensure that ACM hazards are understood, and controlled in compliance with applicable regulation requirements,

–          conduct periodic documented inspections to confirm that existing ACM are intact,

–          prepare written procedures for safe compliant conduct of planned and emergency work will not disturb ACM,

–          allow for provisions to confirm that owners are complying with applicable asbestos requirements for planned emergency work in their strata lots,

–          undertake other content to ensure an effective ACM Management and Exposure Control Program

 

Some References from the Occupational Health Safety (OHS) at Worksafe BC:

 

OHS 6.4(3)

OHS 6.5

OHS 6.6(2)

OHS 6.8(2)

OHS 6.32(1)

OHS 6.32(2)

OHS 3.5

OHS 20.112(2)

OHS 20.2(1)(c)(ii)

Workers Compensation Act Section 119

 

 

 

Councils are often first faced with the presence of asbestos in their building when it is identified during an insured loss such as after water damage has occurred. Despite there being a legal requirement for a strata corporation to obtain an Asbestos Materials Survey and an Asbestos Management and Control Plan before a strata council can proceed with any demolition and repair, some insurers of strata corporations refuse to pay for these professional services because anything related to asbestos is excluded from the policy. Some insurers will however, agree to pay the cost to analyze samples for the presence of asbestos in the area of immediate damage and to develop a localized hazardous materials survey for this area, although this does not however mean that a strata council does not still have to complete a building wide survey.

It recommended that councils consult with well qualified and experienced environmental consultants to help them understand all the risks and the ways to minimize the potential for loss. Most insurance policies also do not provide coverage for liability incurred due to exposure to asbestos.

A fact not well understood in the property management field is that an Agent for an owner has the same responsibility as an Owner when it comes to asbestos management. Under Section 106 of the Workers Compensation Act ‘Owner’ is defined as:

(a) a trustee, receiver, mortgagee in possession, tenant, lessee, licensee or occupier of any lands or premises used or to be used as a workplace, and

(b) a person who acts for or on behalf of an owner as an agent or delegate;

 

This could place a Strata Property Agent under contract to a strata corporation at risk of being in conflict with a strata council if the council is not in agreement to follow the legislation when it comes to asbestos identification and management. Some Strata Property Agents therefore limit their agency such that they do not have authority to deal with asbestos remediation. This is also necessary because a strata manager is not a qualified person under Worksafe legislation and the strata property manager cannot obtain insurance to protect against liability incurred due to asbestos exposure.

If you live in an older building, it probably contains asbestos and if your building contains asbestos, it is important not to lose sight of this given the responsibilities outlined in the legislation. Council members change so an effective method of keeping them informed of the presence of hazardous materials, including asbestos is recommended.

 

 

This blog entry is posted with a view towards encouraging discussion on an important topic. Nothing in it should be considered professional, insurance or legal advice. Strata councils should consult with qualified professionals, including their insurance broker and lawyer for appropriate advice on this.

 

 

 

 

 

 

 

 

 

 

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