NYSDOL Clarifies New Enforcement Tactics

New York State Comptroller Thomas P. DiNapoli in an audit of New York State Department of Labor's (NYSDOL) Asbestos Control Program revealed several issues which we discussed in our July 2, 2013 blogpost.  NYSDOL's response to the DiNapoli audit revealed several tactics that NYSDOL was currently using to ensure compliance and enforcement of the regulations.  The Professional Abatement Contractors of New York (PACNY) requested additional clarification of these tactics.  NYSDOL's response can be found at our Resources webpage on our website.  To sum up NYSDOL's response, they are cross-referencing all the information they get from notifications, survey reports, air sampling results, waste manifests, etc. to make sure they are being notified & the quantities are accurate.

Waste manifests are on of the tactics being used by NYSDOL

Based on NYSDOL response this cross-referencing tactic has led to several enforcement actions.  These include:  

• Air Monitoring Data has led to catching 2 contractors not notifying their project, 136 notices of violations for 18 contractors.
• Demolition Permit Data has led to catching 4 contractors not notifying their project, 28 notices of violations for 10 contractors.
• Site Specific Variances Data has led to catching 1 contractor not notifying their project, 2 notices of violations for 1 contractor.
• Two other lines of data Surveys & Waste Manifests have not found any violations.

We are glad to see NYSDOL at least checking the data they receive to ensure everything is being done correctly.  However, we still don't see how NYSDOL is going after those that do things totally illegally.  Still no sign of how they are attempting to catch those companies doing illegal abatements during emergencies, floor tiles, siding, & roofing projects.  Our suggestion would be to track the waste entering construction & demolition landfills to see if this will get you those that should be notifying.  In addition, accessing tax records may also indicate roofing, siding, floor, & emergency contractor's projects that would allow a targeting of records to determine illegal abatement activities.

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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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PACNY Conference New Faces, New Discussions

The 17th Annual Professional Abatement Contractors of New York (PACNY) Environmental Conference was a success.  Though this is not surprising given the lineup of speakers and great effort that was made by the conference organizers to bring it together.  We would suspect that the organizers might have been nervous about the event, since Mr. Christopher Alonge would not be a speaker on day two of the event.  If you had not heard, Mr. Alonge is no longer with New York State Department of Labor (NYSDOL) he is now with Dormitory Authority of the State of New York (DASNY).  Mr. Alonge was present at the event, and seemed to be enjoying himself.  However, Dr. Eileen Franco saved the day representing NYSDOL as the acting director for the Division of Safety & Health.  Dr. Franco discussed her unit, and updated us on the progress of the new ICR56, which in her words were "imminent".  She was entertaining and we hope she will take our suggestions regarding the asbestos control program and act on them.

Future Environment Design's New Tradeshow Display.

Like last year, one of the opening presentations was on PACNY's effort to change the notification fees.  The bill they are discussing is Assembly Bill A3675.  As we discussed last year, this bill would change the notification fee structure so demolition of residents impacted by a disaster would be a maximum of $200.  This change would help disaster affected areas and residential projects by allowing properly trained contractors to better compete with non-licensed or untrained contractors for the asbestos work.

The list of speakers included Brian Sampson from Unshackle Upstate; Joe Cantone from Colden Corporation; Paul Watson from Center for Toxicology & Environmental Health; Joe Hogan from Associated General Contractors of New York State; Dr. Dave Duford from CanAm Environmental Safety; Brent Kynoch from the Environmental Information Association; Dr. James Webber, formerly with NYS Department of Health; Marvin Stillman from the University of Rochester; and Mr. Chris Alund, from the NYSDOL Bureau of Public Work.  All the speakers were very good, however, two standout in our mind.  First Dr. Webber's presentation "Vermiculite: Looking for a Needle in a Leaf Pile" was awesome and had many speaking about it throughout the rest of the conference.  Pretty impressive considering after his presentation it was the cocktail hour in the exhibit hall.  Dr. Webber's presentation was our first official 3D presentation.  Towards the end of his presentation he passed out 3D glasses, and it was very impressive seeing vermiculite with Libby asbestos fibers in 3D.  The other presentation that stood out, was Mr. Stillman's regarding "Hazardous Waste at Project Sites".  Mr. Stillman's presentation included a lot of points that we were not aware of and will be included in future training classes regarding hazardous wastes.  During most of the presentations, we posted points we felt were important on Twitter.  Find those tweets at #FEDTCPACNY.

This year the Industry Roundtable Q&A was moderated by Steve Gheen, PE of Gheen Engineering, and included Darren Yehl of Cornerstone Training Institute, John Massa of Midlantic Environmental, and Angelo Garcia, III, of Future Environment Designs (me).  Questions this year were very interesting and brought out some distinctions in regions and how various types of asbestos work was being done.

The Exhibit Hall was a lot of fun, with the cocktail reception and the breaks spent meeting vendors, suppliers, and competitors (the friendly kind).  There were some new exhibitors and some new equipment at the show.  Fiberlock Technologies was exhibiting a new Advanced Peroxide Cleaner (APC) that removes mold & mildew stains on porous & non-porous materials, it seems to be an impressive product.  DiVal & Aramsco had dueling floor tile and mastic removal machines that sell or rent.  In addition, DiVal was showing a Dust Shroud for Reciprocating Saws from Dustless Technologies.  McLaughlin Vacuum Excavation Systems (Vermeer is the dealer network for this equipment) was another exhibitor with some impressive equipment.  Of course, United Rentals was there and we didn't win the toy truck, again!

Overall, the conference was a great time.  Turning Stone Resort & Casino does a great job with the food, drinks, & entertainment.  In the past few years, we've seen more representatives from Long Island based companies attending the PACNY conference.  We were glad to see George Maul of Insight Environmental, Paul Calzolano of Testing Mechanics, Paul Debiase of Dvirka & Bartilucci, Bart Gallagher of Enviroscience, & Travis Irving of H2M.  We look forward to seeing you next year and look forward to the Long Island contingent growing again next year. 

Related articles

• PACNY's 2013 Environmental Conference (futureenv.blogspot.com)
• NYSDOL Responds To Call To Waive Fees (futureenv.blogspot.com)

NYSDOL Responds To Call To Waive Fees

Several months ago, we called on Governor Mario Cuomo and the New York State Department of Labor to waive asbestos notification fees in response to the burden these fees created in response to Super Storm Sandy.  We received a response to our call.  Needless to say the response was not positive.  Visit our website at http://futureenvironmentdesigns.com/news.html to see the response letter. 


Sandy downed tree took out car

We are disappointed with the response and we feel Governor Cuomo and the NYSDOL, both should recognize the damage being done by this negative response.  Asbestos removals are going on without notification and without licensed contractors and trained workers.  In addition, only Suffolk County is determining if their are any asbestos problems, along with mold and lead (as reported in Newsday).  While Nassau County is ignoring the asbestos issue.  Its very sad to see the same issues that occurred during previous storms/hurricanes continue to be issues.

Related articles

• Sandy Relief - Eliminate Asbestos Notification Fees (futureenv.blogspot.com)
• FEMA Jobs to Help with Sandy Cleanup (harlemworldmag.com)
• Suffolk waives some fees for those rebuilding post-Sandy (newsday.com)
• Senators call for Sandy tax relief (newsday.com)
• Mold a Key Hurdle in Rebuilding After Sandy (newsday.com)
• New York Congressman Introduces Asbestos-related Bill (mesothelioma.com)
• NY Mesothelioma Lawyer Urges Hurricane Sandy Cleanup Crews to be Cautious about Asbestos Exposure as Relief Package Nears Completion (prweb.com)

Sandy Relief - Eliminate Asbestos Notification Fees

Superstorm Sandy has caused some significant damage to asbestos containing materials, that were otherwise in good condition.  This hardship of having to addresss asbestos before renovation, restoration, or repair work is done, can be a significant burden.  Leading owners to short cut the regulations and hire unqualified/unlicensed workers and companies to handle the asbestos putting themselves and the workers performing the work at risk.

Water Damaged Asbestos Pipe Insulation

It is important to remember that in New York State, all quantities of asbestos disturbance are regulated for both residential and commercial.  Workers must be certified to perform asbestos work and the companies they work for must be licensed.  As of December 10, 2012, there are 856 licensed contractors in New York State.  One of the things we found interesting in searching for contractors is what  we found regarding ServPro & Servicemaster.  As you may have seen ServPro's television commercial discussing being able to handle emergency cleanups, well it is interesting that ServPro does not come up on New York State list of licensed asbestos contractors.  This means the only way ServPro could handle this work is to partner with a licensed asbestos contractor.  They cannot do the work themselves.  Regarding Servicemaster, they come up on the New York State list of assbestos contractors, however, it is only the Buffalo branch that is licensed.  So only the Buffalo branch can work with asbestos containing materials.  Long Island Servicemasters cannot do the work themselves, they too must partner with a licensed asbestos contractor.
To ensure residential work is done by qualified/licensed contractors the New York State Department of Labor should follow Suffolk County's or other towns, and villages lead in waiving fees involved with notifying these projects. The cost involved with notifications range from $200 to $4000. These fees would be better put to use by the owners of the properties to cleanup the damaged materials by licensed/qualified contractors.  To ensure this happens, we need to get this information/request out to Governor Cuomo and our local State Senators & State Assemblypersons.  Be safe and take care!

Related articles

• Super Storm Sandy Cleanups, Educate Yourself! (futureenv.blogspot.com)
• Real Estate Company Fined for Bypassing Asbestos Laws (mesothelioma.com)
• Asbestos May Pose Health Hazards In Sandy's Wake (huffingtonpost.com)
• Asbestos 'jeopardises millions' (bigpondnews.com)
• Demolition Company to Pay 100K in Asbestos Violation Fees (mesothelioma.com)
• Feds Warn About Asbestos Hazards in Post-Sandy Clean Up Efforts (mesothelioma.com)
• LPK Mesothelioma Lawyers Expand Asbestos Practice in Long Island's Nassau & Suffolk Counties (prweb.com)
• Difference Between Allied Trades and Operations & Maintenance. (futureenv.blogspot.com)
• Storm Debris Could Expose Many to Toxic Asbestos (mesothelioma.com)

Kings Park Psychiatric Center's Lowest Bidder - Cause for Concern?

We recently received a copy of the range of bids on the Kings Park Psychiatric Center project.  Though the low bidder is under the budgeted amount of $15 million (see Newsday article), the spread between them and the next bidder is $1.78 million.  The spread between the second and third bidder was only approximately $230,000 and the average bid was $13.988 million.  This spread and the fact the low bidder is half the average bid may or may not be cause for concern.  It is important to remember that lowest bidder must be a responsible bidder.  On this point there are two obvious concerns regarding the lowest bidder, first they are an out-of-state bidder (Indiana) and, as of February 21, 2012, they are not a New York State Licensed Asbestos Contractor.  Under New York State Industrial Code Rule 56-3.1 (c), "a copy of a valid New York State Asbestos Handling License shall be submitted by the bidder prior to award of any contract all or part of which involves an asbestos project." At this point, unless the low bidder has a subcontractor doing the asbestos work involved with this contract, they cannot be awarded bid.  In addition, out-of-state contractors always cause worries because it brings up questions like: 

• Do they know New York State is a prevailing wage state (meaning you must pay workers on the project the prevailing wage rate for Suffolk County based on their job classification)? 
• Do they know that New York State has asbestos regulations that are some of strictest in the country? 
• Do they know  that New York State requires all workers, including the operating engineers to have asbestos supervisor or handler certificates?
• Do they know that when you do controlled demolition (56-11.5) with asbestos in place in New York State you cannot salvage/recycle/or reuse the building materials, they all (except obvious must be disposed of as regulated asbestos containing materials (RACM)?  This means the material have to be hauled by asbestos licensed hauler to an Environmental Protection Agency approved landfill that accepts RACM materials.
• Do they meet the insurance requirements in New York State, has their insurance provided riders or attachments for workers compensation and disability?

Controlled Demolition is covered under NYSDOL ICR 56

We have many clients who set-up post bid meetings (some even video tape these meetings) with the contractor and ensure the contractor understands all sections of the contract giving the contractor the opportunity to pull-out of the contract if they missed or misunderstood something.  We strongly recommend the designers/owners of this project give this contractor every opportunity to withdraw their bid and make sure the contract is awarded to someone that understands and can meet all the requirements and intricacies of working inside New York State.

Related articles

• NYCDEP Issues Advisory Memo (futureenv.blogspot.com)
• What Happened with NYS ELAP Ceiling Tile Analysis? (futureenv.blogspot.com)
• Kings Park Psychiatric Center Goes Up For Bid (futureenv.blogspot.com)