More New Asbestos Legislation

In our May 2024 School Law Notes, we reported the enactment of the Public Entity Asbestos Removal Disclosure Act, which imposed a new contractor affidavit requirement for school friable asbestos abatement projects, and amendments to the Michigan Occupational Safety and Health Act, which added penalty provisions for asbestos-related violations.

Governor Whitmer recently signed into law two additional asbestos-related public acts that will impact school friable asbestos abatement projects. Public Act 59 of 2024 creates the Public Entity Asbestos Removal Verification Act, which requires schools to perform a background investigation before entering into a contract with a contractor for certain friable asbestos abatement projects. Public Act 56 of 2024 amends the Michigan Natural Resources and Environmental Protection Act to require fees for asbestos removal or demolition agency notifications and directing those fees to be used to fund agency inspections of such projects.

PAs 59 and 56 will take effect 91 days after final adjournment of the Michigan Legislature for the 2024 regular session and the public acts are expected to become effective in March 2025.

PA 56

Federal regulations (40 CFR Part 61, Subpart M) require a property owner or contractor to notify the Michigan Department of Environment, Great Lakes, and Energy (EGLE) of intended demolition or renovation projects on the owner’s property that exceed certain asbestos thresholds. PA 56 requires an owner (including a school) or contractor that submits such a notice to pay a $100 notice fee and a $10 modification fee for any later modification to that notice. A school may pass those fees on to the contractor, unless doing so violates a contract entered into before January 31, 2025. PA 56 states that collected fees will be deposited into a fund that EGLE must use to inspect asbestos demolition or renewal projects.

PA 59

PA 59 requires schools to conduct a background investigation before entering into a friable asbestos abatement project with an asbestos abatement contractor or a general contractor (if the general contractor will contract with an asbestos abatement contractor). A background investigation must include review of the EGLE website to determine whether the contractor has received any environmental regulation violation notices or has been subject to an administrative consent order or judgment involving environmental regulations, and review of the U.S. Occupational Safety and Health Administration (OSHA) website to find out if the asbestos abatement contractor has received any asbestos regulation violation notices.

PA 59 prohibits a school from entering into a contract with an asbestos abatement contractor if the contractor has been issued five or more environmental regulation violation notices or has been subject to an administrative consent order or judgment involving environmental regulations within the immediately preceding five years. Some exceptions apply – the school may enter into a contract with an otherwise disqualified contractor if it:

• Investigates each violation notice and consent order or judgment;
• Conducts a public hearing for public input with at least a 30-day advance notice to the public;
• Determines that the contractor can adhere to the proposed contract based on demonstrated ability to comply with environmental regulations (e.g., based on performance improvements); and
• Issues its determination in writing and makes the determination publicly available.

We recommend preserving documentation that an investigation was completed.

Conclusion

School officials considering asbestos abatement projects should ensure their contracts comply with statutory requirements. PA 56 also serves as a good reminder that school officials should ensure that they provide required notices to EGLE for asbestos demolition or renovation projects or contractually arrange for the demolition or renovation contractor to provide those notices.