New? NYS Education Department Asbestos Clearance Air Sampling Requirements

On July 12, 2013, New York State Education Department (NYSED) released a table regarding the various asbestos clearance air sampling requirements.  The table compares the Environmental Protection Agency's (EPA) Asbestos Hazard Emergency Response Act (AHERA) regulation to the New York State Department of Labor's (NYSDOL) Industrial Code Rule 56 (ICR56) and the table has a center column designating what we assume to be NYSED's requirement for schools.  It is interesting to note that New York State Department of Health (NYSDOH) noted these items were a problem in 2009, when they were doing AHERA audits for EPA.  Visit Future Environment Design's Resource Page for the Asbestos Clearance Table Requirements from NYSED.

What's wrong with this picture?

There is some very interesting information on this table.  An example of this is the requirement of 5 inside samples for asbestos projects that range from three (3) linear feet (LF) or square feet (SF) to < 160 SF or < 260 LF.  These samples are analyzed using the phase contrast microscope methodology (National Institute of Occupational Safety and Health (NIOSH) method 7400).   We wonder how many schools are actually doing five (5) samples inside the work area for small projects (> 10 SF or 25 LF but < 160 SF or 260 LF) or the minor projects (> 3 LF or SF to < 10 SF or 25 LF)?  

In actuality to comply with both AHERA and ICR56 for small projects (> 10 SF or 25 LF but < 160 SF or 260 LF), a school should also run a minimum of three (3) outside samples.  So, for a small project in a school in NYS the project air sampling technician should run five (5) samples inside each work area, three (3) samples outside each work area, and two (2) blanks.  This current table, with the adjustment mentioned above, provides Asbestos Air Sample Technicians with the total number of samples, based on the size of the project, necessary to clear an asbestos abatement work area located in a school that will comply with AHERA, NYSED, & ICR56.  

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New Vermiculite Guidance Shifts Liability to Consultants & Owners

On July 9, 2013, the New York State Department of Health (NYSDOH) Environmental Laboratory Approval Program (ELAP) released a further clarification regarding the analysis of surfacing materials, thermal system insulation, and miscellaneous materials that contain vermiculite (nothing has changed regarding loose fill vermiculite this still must be reported as an asbestos containing material (ACM)).  Visit Future Environment Design's Resource Page for the New Interim Vermiculite Guidance 7/9/13 from NYSDOH.

To sum up the changes, when you send surfacing materials, thermal system insulation, and miscellaneous materials for analysis the lab will start with the friable bulk sample method 198.1.  Once the material is determined to contain greater than 10% vermiculite the lab will then use the gravimetric reduction method 198.6.  No matter what result you get with the 198.6 method, the result must be accompanied with the following disclaimer:

“This method does not remove vermiculite and may underestimate the level of asbestos present in a sample containing greater than 10% vermiculite.”

We think most of you would agree the problem is not with having a disclaimer on results that report >1% asbestos, these are reported as ACM with the disclaimer.  The problem & liability come from materials that are now being reported as < 1% asbestos, these will be reported as non-ACM with the above disclaimer.  As far as we are concerned this disclaimer basically says these results may not be accurate.  This change puts heavy liability on the asbestos inspector (consultant) as the person who under Industrial Code Rule 56 (ICR 56) makes this decision.  As Dr. Eileen Franco, acting director of NYSDOL Division of Safety and Health, stated "The Certified Inspector who performs the sample collection and analysis in support of the required asbestos survey is responsible for determining if a material is ACM or not.  If they classify it as ACM, it is ACM and covered by ICR 56.  If they classify it as non-ACM, ICR 56 does not apply.  DOL enforces ICR 56 which is for asbestos.  If a product has greater than 1% asbestos it is asbestos. If they do further testing of something with >10% vermiculite and it is less than or equal to 1% asbestos it is non-ACM. "

Certified Asbestos Free by Who?
Thank you Mr. Henry Alilionis for the photo.

 In our opinion, this is insufficient to advise a client on what to do with a material that has a result of < 1% ACM with the disclaimer.  So the question is how do we proceed?  We obviously need more information.  It means asbestos inspectors need to do more research on the material (material safety data sheets, manufacture specifications, etc.) and the source of the vermiculite.  If that is not possible for whatever reason, maybe other types of analysis could be used.  Presently, other methods available are the Cincinnati method (Environmental Protection Agency (EPA) method A 600/R-04/004) which is a research method or the American Society for Testing and Materials (ASTM) D22.07 method, neither are approved by NYSDOH ELAP.  However, at this point NYSDOH has given us a result which says the material is non-ACM with a disclaimer.  As asbestos inspectors we must address the disclaimer.  NYSDOH has not given us a way to do that, allowing us to find our own way.  Our advice would be to research the material and if that is now successful, then use one of the other lab methods to address the disclaimer.  In our view this is what a reasonable person would do to avoid the potential liability of exposing construction workers to asbestos.

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DiNapoli's Audit of Asbestos Control Bureau Finds Problems

The New York State Office of the State Comptroller, run by Thomas P. DiNapoli, performed an audit titled "Assessment and Collection of Selected Fees and Penalties" of the New York State Department of Labor (NYSDOL) to determine if the NYSDOL was assessing and collecting all required fees and penalties.  The audit covered the period April 1, 2008 through July 31, 2011. The focus of this blog will be on the comments made regarding the Asbestos Control Bureau (ACB).

The overall key findings of the audit found:

• The NYSDOL does not assess and collect all required fees and fines.  In total, the Department did not collect about $3.8 million, including associated penalties.
• The NYSDOL does not have accurate records to show who is required to pay boiler inspection and asbestos-related project fees.  As a result, the health and safety of New York State residents may be at risk and potential revenue is not realized.

Details of this audit found:

• Most contractors adhere to the self-notification process and pay the required project notification fee.
• However, the Department has no method for determining whether there are other contractors that should be paying the fee, or how much the fee should be.
• As a result, there is no way to know how much more the Department could be collecting in revenue each year.
• To determine whether there are contractors which did not pay the required project notification fee, we obtained a list of landfills throughout the State that accepted asbestos and reviewed their associated documentation. In total, landfills accepted asbestos from 50 projects during our audit period where the amount of asbestos contaminated refuse disposed was at least ten tons.  We found that 45 out of the 50 contractors paid the project notification fee (one was exempt).  We averaged the amount paid by the 45 projects and estimate that the Department could have collected an additional $6,992 for the remaining four projects ($1,748 per project).
• The audit noted that the project notification fee was not equitable, as small asbestos projects can pay as much as those that are much larger. For example, a project with 1,725 linear feet and 35,263 square feet would pay the same $4,000 maximum fee as a project with 1,650 linear feet and 1,000 square feet. The Department should review this structure to determine whether a more equitable fee structure could be created based on the size of a project to provide greater equity and possibly increase revenue. Fees are statutorily set and any revisions would have to be sought through a change in the statute establishing the fees.

NYSDOL ACB's response to the audit is included in the document.  That response was:

• In 2011, NYSDOL used a reconcilitaion of Department records to ensure and verify that asbestos contractors, building owners, & others in the regulated community follow all regulations.
• This reconcilitation included examination of air monitoring records, demolition permits, site-specific variances, surveys, & waste manifests.
• Elevated air monitoring reports are cross checked with notifications listed in the system.
• Demolition permits from all major cities and many towns, villages, & smaller cities have been obtained.  Local fire companies is listed as another source of information, regarding a list of fires in their area (late 2011 this started).
• In early 2012 contact with all major landfills that accept friable waste for access to data was established.  Some of these landfills have begun sending monthly waste manifests for their site.  ACB has now expanded the contact to landfills outside NYS that accept waste from NY.
• ACB has discussed possibly changing the fee structure, however, revisions need legislative action.

Based on the above, ACB feels this is sufficient to protect the public.  We strongly disagree!  We recommend the following, in addition to what they are already doing:

• ACB should investigate all emergency response, plumbing, electrical, roofing, floor tile, and siding contractors for licensing and certification of their workers.  If these contractors indicate the subcontracting of asbestos work require proof of subcontracting, and proof of asbestos inspections performed before they performed work on materials that were not ACM.
• ACB should investigate Department of Public Works, Water Authorities, and other water works companies that manage asbestos cement pipe systems for licensing, certification, and work practices. 
• ACB should also initiate contact with landfills that accept nonfriable ACM (construction /demolition waste) throughout NYS.  Most of the illegal dumping is going on at these sites.
• ACB should cross train the Boiler inspectors to recognize ACM.  This would allow them to inform the ACB of suspicious activities.

As we've complained before, ACB needs to spend more time/resources investigating those that are breaking the rules by not notifying, not air monitoring, and not disposing ACM properly versus those in the asbestos industry who according to Mr. DiNapoli's audit are mostly following the rules.

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