NYSDOH Announces The Imminent Availability of Vermiculite Analysis

On July 22, 2014, the New York State Department of Health (NYSDOH) sent out a follow up communication to the July 9, 2013 interim guidance letter.  This communication is regarding the imminent availability of two new NYSDOH Environmental Laboratory Approval Program (ELAP)-approved methods for the detection and quantitation of asbestos content in spray-on fireproofing that contains vermiculite.  The communication indicates that these new methods will be available by October 31, 2014.  Click here for the July 9 2013 letter and click here for the new communication.  Otherwise you can find both communications at our website http://futureenvironmentdesigns.com/resources.html  click on the FED Training CD in the Helpful Links and Info folder.

Vermiculite-containing Sprayed-on Fireproofing is the focus of the communication

After October 31, 2014, one of the two methods must be used to test sprayed-on fireproofing regardless of the percent of vermiculite.  This document does not indicate any information about the methods other than the asbestos inspector must collect a minimum of 10 grams of the sprayed-on fireproofing (versus the 100-500 milligrams for 198.1 and 198.6).  Nor does it indicate what labs will be doing this analysis.  In addition, the two methods are only for vermiculite-containing sprayed-on fireproofing.  Other materials still must use the 2013 interim communication with the disclaimer and bulk vermiculite is still asbestos containing material (ACM).

日本語: バーミキュライト (Photo credit: Wikipedia)

The new communication is interesting for its lack of information.  First it does not indicate anything about the new methods other than the need for a larger quantity of material.  It gives no indication of what it will take to analyze the material, what the turnaround will be, who the laboratories will be, costs, etc.  It is specifically only for vermiculite containing sprayed-on fireproofing.  In addition, it means an asbestos inspector will need to add a new tool to the sampling kit, a scale.  Taking a sufficient sample that ensures the laboratory gets a minimum of 10 grams.  Maybe not that difficult, but could be annoying if you make a mistake.  Don't forget you are still required to take either 3-5-7 or 9 samples of the sprayed-on fireproofing and it only takes one sample for the homogeneous material to be positive for asbestos.  Even more interesting was industry implications on the last page of the communication.  That stated after October 31, 2014 you are required to use one of the two methods to analyze vermiculite containing sprayed-on fireproofing, not surprising.  Though it is based on what stage your project is in.  Needless to say we look forward to hearing more about the new methods and the real implications they will have on the asbestos industry.      

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• NYS Department Of Health Vermiculite Clarification
• New Vermiculite Guidance Shifts Liability to Consultants & Owners
• Metro-NY AIHA Meeting on Vermiculite, Part 2.
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• EPA pushes tough asbestos standard for Montana town
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Its Summertime! Asbestos Project Monitor Overtime Heaven?

Here we are again another summertime and another year of complaining about how bad asbestos project monitors are.  It seems this has become a summertime tradition.  Project monitors who don't show up, don't do what they are told, don't know the regulations, sleep on the job, leave the job, don't know how many samples to take, etc., etc.  We find this interesting because the project  monitor should be one of the most knowledgeable people on an asbestos project.  Not only should the asbestos project monitor understand air sampling requirements & theory, they should be able to read and understand building plans, be able to communicate effectively to get the contractor to follow the specifications, regulations, and drawings, write legibly & diligently so the log can be read by others & they can know what happened on the project, be ready to testify in a court of law regarding what they observed on the project, handle scheduling, phasing, & timing on a project and handle a number of other issues related to asbestos abatement including occupational safety and health issues.

When we have these discussions in our classes, our belief is that a project monitor should have a college education.  In our opinion, high school students should never be hired for project monitoring (can we say interns, which is a person who should be in training (directly supervised) for the position they are interning for).  As Albert Einstein said:

"The value of a college education is not the learning of many facts but the training of the mind to think."

English: Albert Einstein Français : portrait d'Albert Einstein (Photo credit: Wikipedia)

We see the problem as that asbestos project monitors are not respected for what they should be doing.  This disrespect is primarily coming from certain building owners who feel there is no need for an asbestos project monitor who coordinates the project and legally documents the project.  The hourly rate for an asbestos project monitor should have been increasing over the years, however, this is not the case.  Then you have building owners and abatement contractors who feel project monitors delay projects, well a good project monitor would actually reduce the amount of time a project takes.  We agree with some that asbestos project monitors should be individually held responsible and liable for the work they do or don't do.  This would definitely increase the quality of work and would make sure project monitors had some gumption! However, are project monitoring firms ready for a project monitor who actually dictates the job like project monitors in the past used to?

We have recently reviewed a number of project monitor logs and in the logs we reviewed project monitors made no entries other than the time they arrived, time for lunch, and the time they left for an 8-hour day.  In our view New York State Industrial Code Rule 56 created a minimum standard for a project monitor log by creating requirements for a supervisor log.  Since the project monitor's log is supposed to document the project legally, the supervisor requirements are the minimum requirements, along with any additional information and events that occurred at the site/project that are legally important for the building owner.  In addition, if the project monitor didn't write it, it didn't happen.  What does that mean?  Well if the project monitor didn't make an entry in their log about aggressive sampling such as the amount of time for leaf blowing or the number of fans installed, etc.  Well guess what, the project monitor didn't do it.  The log is supposed to be a legal journal of what was done on the project.  If the project monitor doesn't make an entry, well it probably wasn't done.  Why would anyone assume otherwise?

In our view this is what has been forgotten regarding the importance of the asbestos project monitoring. We've heard of a number of issues with contractors and workers where they do not properly protect the workers from exposure or workers are not decontaminating properly.  As a building owner this is important information that should be documented by the asbestos project monitor cause if a worker or a family member were to develop mesothelioma then the log would protect the owner from a potential third party litigation.  This is one of the most important reasons for hiring an asbestos project monitor, the documentation of contractor, worker, & visitor violations and the cause of their potential exposure or the reason they were probably not exposed.

Recent investigations of project monitoring companies like CES (though a recent court decision may vindicate CES) and JMD, both of NY, indicate that the Federal government is recognizing a problem with asbestos project monitoring.  Even New York City Department of Environmental Protection (NYCDEP) has focused some of its inspections/violations on the project monitoring firms.   Covering everything from logbooks, chain of custodies, air sampling stands, visual inspections, etc.  We think its time for some individual responsibility and the regulatory agencies should start issuing violations to the individual asbestos project monitor (as NYCDEP has done with asbestos supervisors).  This would definitely increase the professionalism of the asbestos project monitors and hence increase the quality of the work performed on asbestos projects.

 

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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.

Related articles

• New? NYS Education Department Asbestos Clearance Air Sampling Requirements
• New Vermiculite Guidance Shifts Liability to Consultants & Owners

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.

Related articles

• Protecting Your Family from Asbestos-Contaminated Vermiculite Insulation
• Where to look for asbestos in older homes
• Libby Residents Concerned about Asbestos in Landfill
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Future Environment Designs Has Published Its 2013 Future Focus Newsletter

Future Environment Designs has published our 2013 newsletter "Future Focus".  As usual the current newsletter will be part of our manuals and handed out in our classes.  If you don't want to wait until you take a class with us, you can find our newsletter at our website at: http://futureenvironmentdesigns.com/newsletter.html. 



Chrysotile Asbestos display at Thetford Mines Mineralogical & Mining Mueseum

In our current newsletter, the lead article is about "Asbestos In Current Building Materials".  We discuss how material safety data sheets (MSDS) and the new safety data sheets (SDS) cannot be used to determine if current building materials contain asbestos, especially when discussing foreign building materials.  We hope this newsletter acts as a warning to asbestos inspectors, facility directors, building managers, architects/engineers, and building owners, etc. in determining whether current and new building materials have asbestos.

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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.

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OSHA Cites SMG For Asbestos Violations at Nassau Coliseum

English: Nassau Veterans Memorial Coliseum Licensing: Category:Images of Long Island (Photo credit: Wikipedia)

The Occupational Safety and Health Administration (OSHA) has issued a press release on their website announcing that they are citing SMG, which manages the day-to-day operations of the Nassau Veterans Memorial Coliseum on Long Island, a total of $88,000 in proposed fines for asbestos, electrical, chemical and other hazards facing workers at the coliseum. SMG operates as SMG @ Nassau Coliseum, LLC faces 16 alleged serious violations of workplace health and safety standards.
OSHA opened the inspection due to employee complaints.  Investigators found that maintenance workers and electricians were exposed to asbestos or materials potentially containing asbestos while working in various locations - including the coliseum's ice plant, catwalks, and a loading dock - and that SMG did not take adequate steps to address the hazards.
Obviously, from this information it seems that SMG was unaware (or ignored) the dangers their workers faced in working at the Coliseum.  This is not a good thing for Nassau County as the owners of the Coliseum.  This brings into question what information did Nassau County pass along to SMG to make sure SMG protected their employees.  This opens up Nassau County for a third party litigation lawsuit.  Remember previous articles written about this issue indicated at least two workers (one with mesothelioma and the other with stage four lung cancer) were potentially exposed to asbestos and that a total of 75 arena employees may have been exposed.
One of the most damning statements on the press release was "Specifically, SMG did not identify the presence, location and quantity of materials containing or potentially containing asbestos, use engineering controls and work practices to reduce exposure levels, ensure that all Class III asbestos work (such as repair and maintenance operations where materials presumed to contain asbestos are disturbed) was conducted in regulated areas, ensure proper respirator use, post warning signs and provide asbestos awareness training for workers."  Nassau County as the owner of the Coliseum, also has liabilities in informing SMG of the asbestos containing materials located at the Coliseum.  It seems to us that this isn't the last we will be hearing about the asbestos at the Nassau Veterans Memorial Coliseum.

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Assemblywoman Lupardo Sponsors Bill To Amend Asbestos Notification Fees

Assemblywoman Donna Lupardo is sponsoring Assembly Bill A09928, which will amend the notification fees for non-friable material.  This issue was discussed at Professional Abatement Contractors of New York's (PACNY) 2012 Environmental Conference.  The bill can be accessed at:  http://assembly.state.ny.us/leg/?default_fld=&bn=A09928&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y

Asbestos Thermal System Insulation on a Residential Ducts & Furnace

PACNY is supporting this bill, based on their research that many residential projects are not notified and are done illegally because of the steep fee structure.  Placing homeowners and occupants in danger.  In addition, because of recent flooding from natural disasters many homes have been condemned requiring them to pay the maximum asbestos notification fee of $4,000 to demolish the home.  This fee for demolition has been the subject of many articles regarding this cost that cities, towns, and villages are required to pay increasing the cost in doing demolition in the Southern Tier, Catskills, and other regions.  Visit the New York State Asbestos Group on Linked-in, regarding the discussion of this issue.

This is not the first time this issue has been discussed, a previous Senate Bill S748-2011 in the New York State Senate sponsored by State Senator Catherine Young wanted to modify the fees that residential one & two family owner occupied homes paid in doing asbestos abatement work - capping the notification fee at $500.

We agree that the notification fees need to be addressed, especially for residential work.  Though not convinced that the fee should be addressed in this manner.  Senator Young's bill handles it much simply and probably should be expanded to include residential homes/houses slated for demolition (or controlled demolition by a municipality).

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NYSDOH ELAP Decision Trees

In our previous blog post on the Professional Abatement Contractors of New York's (PACNY's) 16th Annual Environmental Conference, we mentioned that Dr. Stephanie Ostrowski, of the New York State Department of Health's Environmental Laboratory Approval Program (ELAP), was one of the presenters.  Dr. Ostrowski's presentation, as we mentioned in our blog, included lengthy discussions on vermiculite and ceiling tiles.
 
The discussion regarding ceiling tiles included reviewing the decision trees she provided us to help explain the analysis process for regular bulk samples and samples required to undergo gravimetric reduction.  Analysis of friable bulk sample (material) must use analysis method 198.1, while non-friable, organically bound (NOB) bulk material must use analysis method 198.6/198.4.  Visit my website under Resources for the copy of the decision trees she provided us.  Her explainations were excellent and the decision trees did make it easier to understand. 

There was also some discussion regarding whether this meant that ceiling tiles were considered NOBs and hence could be removed under the In-plant regulations of New York State Department of Labor (NYSDOL) Industrial Code Rule 56 (ICR56).  Mr. Chris Alonge of NYSDOL came to the microphone and immediately put that issue to rest, saying that ceiling tiles are not considered non-friable, so as such cannot be removed under the In-plant operations section of the regulation.  This year's conference was as informative as usual, a great job was done by PACNY, Deborah Johnson of Aramsco, Darren Yehl of LeChase Construction Services and Kevin Hutton of Cornerstone Training Institute.

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More Dangers Related To Toxic Dusts

In our current newsletter (find it at www.futureenv.com), we discuss the hazards of toxic dust at demolition and disaster sites. Three new studies from California seem to support my points regarding the dangers of the dust. Indoor Environment Connections in the February 2012 issue discusses the findings of these studies linking exposure to fine-particulate matter to heart disease.

These study defined particulate matter as a complex blend of substances ranging from dry solid fragments, solid-core fragments with liquid coatings and small droplets of liquid. These particles vary in shape, size and chemical composition, and can contain metals, soot, nitrates, sulfates, and very fine dust. One source of particulate matter, including PM2.5 or fine-particulate matter is exhaust from vehicles, especially diesel engines (which are used frequently on demolition and disaster sites). PM2.5 is particulate matter smaller than 2.5 microns in diameter (making this particulate matter a respirable dust or dust that can enter into the deep lungs).
The California Air Resources Board (ARB) released three new studies, that indicate exposure to airborne fine-particulate matter significantly elevates the risk of premature deaths from heart disease among older adults and elevates incidence of strokes among post-menopausal women. The third study examined platelets of mice exposed to PM2.5. This study found that the exposed mice showed platelet activation which could promote clotting and lead to stroke and heart attacks. These studies add to the existing scienctific evidence that respirable airborne particulates pose a threat to public health. If these particles pose a threat to public health, what about the threat to workers who are exposed to PM2.5 at their worksites?
These studies further support my call, for the requirement that workers wear respirators on all demolition and disaster sites.

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Kings Park Psychiatric Center Bid Awarded to Low Bidder

On Saturday, March 10, 2010, Mr. Carl MacGowan of Newsday wrote an article regarding the demolition jobs that will be created by National Salvage & Service Corp. the winner of the Kings Park Psychiatric Center bid.  As we discussed in a previous blog post, we are concerned about whether this contractor understands New York State laws regarding labor, asbestos, transportation, and insurance.

This equipment could be used to tear down buildings.

The article states that National Salvage is expected to employ about 65 people to demolish 15 buildings and is unsure how many of those jobs would be going to local people (even if those jobs go to out-of-state people they would have to be paid prevailing wage as per New York State laws).  In addition, National Salvage anticipates using local subcontractors for work such as security, surveying, and removing asbestos and hazardous materials.  They will also be subcontracting 20% of the work to businesses owned by minorities and women. 

Even with all of this we still say, the devil will be in the details.  We have discussed this project in several classes, and the concensus in our classes is it will be interesting to see if the project remains at $6.4 million or will the change orders and extras bring the project closer to the $15 million budget or exceed it? 

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• Kings Park Psychiatric Center's Lowest Bidder - Cause for Concern? (futureenv.blogspot.com)
• The synchronicity of safety and environment (safetyatworkblog.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)
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