Sunday, August 31, 2008

Mayor Bloomberg Announces Changes To NYCDEP's Asbestos Enforcement

On July 16, 2008 Mayor Bloomberg announced changes that will impact how New York City Department of Environmental Potection (DEP), Department of Buildings (DOB), and Fire Department (FDNY) handle and coordinate construction, demolition, & abatement operations. Due to the death of two firefighters at the fire at 130 Liberty Street, New York City did a review of agency operations. That review resulted in a report called "Strengthening the Safety, Oversight, and Coordination of Construction, Demolition, and Abatement Operations." This report made 33 specific recommendations designed to strengthen each agencies' inspection practices, increase notifications and data sharing between agencies and improve the safety of abatement and demolition operations. Of the 33 recommendations, 4 addressed inspection processes, 12 adressed abatement operations, and 1 addressed demolition inspections at the DEP. The recommendations for the NYCDEP are:
Inspection Processes at DEP, DOB & FDNY:
  • DOB, FDNY, and DEP should review their inspection criteria and make changes to ensure that, to the extent possible, inspections are prioritized on the basis of risk.
  • DOB, FDNY, and DEP should create common safety protocols incorporating high-priority safety issues within the inspection capacity of all three agencies, and should cross-train inspectors to address these common safety issues.
  • DOB, FDNY, and DEP should implement a system to share relevant results of inspections of buildings that meet agreed-upon criteria. As part of this effort, FDNY should develop a computer-based process to share inspection data internally and with DOB and DEP.
  • DOB, FDNY, and DEP should review their inspection programs to ensure that they have sufficiently robust quality assurance controls in place.

Abatement Operations:

  • DEP should regularly notify FDNY and DOB about large and/or complex abatement jobs that meet thresholds to be determined by DEP, FDNY, and DOB.
  • DEP should establish a permit requirement for certain large and/or complex abatement jobs based on thresholds to be determined by DEP, DOB, and FDNY.
  • DEP should require building owners and/or air monitors on abatement jobs to notify DEP when abatement work at a particular site is complete.
  • DEP should promulgate clear guidance to contractors about how to maintain proper egress at abatement sites and enforce this requirement in the field.
  • DEP should require that egress conditions be recorded daily in the abatement contractor's logbook and kept on site.
  • DEP should require that all materials used in construction of temporary enclosures for abatement work be non-combustible or flame-resistant.
  • DEP should require the installation of a central negative air "cut-off switch" or similar mechanism at abatement jobs that meet thresholds to be established by DEP, FDNY, DOB.
  • DEP should develop written protocols, such as checklist or other guidance, to ensure that its inspections are comprehensive and consistent at all abatement jobs.
  • DEP inspectors should be trained to inspect and address egress and other safety requirements at abatement sites.
  • DEP should have the authority to enforce provisions of the Fire and Building Codes at abatement sites, including issuing Notices of Violation and other penalties.
  • DOB should make permanent its capacity to have inspectors and other personnel respond to abatement sites-based on criteria to be established by DOB, DEP, and FDNY-to augment DEP and FDNY inspections at a particular site. DOB inspectors and other responders must have proper training and personal protective equipment to do this job.
  • DEP should formally establish a policy that strictly limits simultaneous abatement and demolition work, and requires a variance-including review by DOB and FDNY-to undertake it.

Demolition Inspections:

  • DOB, DEP, and FDNY should update their websites and publications to provide comprehensive and coordinated guidance about the construction, demolition and abatement processes, including how to file for and conduct these operations safely, and the regulatory schemes that are triggered by these operations.

Friday, August 22, 2008

AHERA Bulk Sampling Rules

Last year, the Environmental Protection Agency (EPA) responded to a question by the New York State Department of Labor (NYSDOL) regarding the minimum number of bulk samples required for suspect asbestos containing miscellaneous materials (see our blog post dated 6/24/08). This clarification determined that the minimum number of samples is two (2) samples of each suspect homogeneous miscellaneous materials. This clarification was determined based on a review of the EPA's Asbestos Hazard Emergency Response Act (AHERA) section 763.86 -Sampling. This section of the AHERA regulation is used by asbestos inspectors to determine the number of samples to take of each homogeneous area.
The core of all asbestos inspections is the determination of the type of material (surfacing material, thermal system insulation, or miscellaneous material) and whether the materials are homogeneous. Homogeneous area is defined as a type of material that is uniform in color and texture (as per 763.83). Once the type of material is determined and the material is classified as a homogeneous area, then the number of samples for each area is determined.
If the suspect asbestos material is a surfacing material, the square feet of the homogeneous area is determined which provides the inspector with the minimum number of samples that shall be taken. If the homogeneous area is less than 1,000 square feet, the inspector shall take 3 samples. If the area is between 1,000 and 5,000 square feet, the inspector shall take 5 samples. When the are is over 5,000 square feet, the inspector shall take 7 samples. This is sometimes known in the industry as the 3-5-7 rule.
Should the suspect asbestos material be classified as thermal system insulation then the inspector must determine if the material is a homogeneous area, a patch material, or a cement or plaster used on fittings (tees, elbows, or valves). Homogeneous areas of thermal system insulations shall require 3 samples, while each homogeneous area of patch material less than 6 linear feet or 6 square feet shall require only 1 sample. Cement or plaster used on fittings shall be sampled based on each insulated mechanical system (hot water, cold water, steam, chilled water, etc.) and shall require a minimum of 2 samples be taken.
Some general rules to remember when taking bulk samples, is sampling should be taken in a randomly distributed manner. Bulk samples cannot be composited and shall be submitted to laboratories accredited by the National Bureau of Standards. Asbestos Inspectors determine a homogeneous area contains asbestos when one of the required number of samples contains asbestos in the amount greater than 1%. Should all the required samples taken in an homogeneous area result in asbestos amounts less than or equal to 1%, then the area does not contain asbestos. Asbestos Inspectors should remember these rules when they sample.