Future Environment Designs Training Center specializes in asbestos, indoor air quality, industrial hygiene, and occupational safety training programs. We offer New York State asbestos and mold certification courses. We design, develop, and maintain the various indoor air quality, asbestos, and safety programs that are Keeping Your Employees Safe.
Over the past several months in the asbestos refresher classes, we have been talking about the clarification letter that the Professional Abatement Contractors of New York (PACNY) sent to all asbestos contractors and consultants back in November 2007. This letter detailed clarification from the Environmental Protection Agency (EPA) under the Asbestos Hazard Emergency Response Act (AHERA) regulation to a question from Mr. Christopher Alonge of the New York State Department of Labor (NYSDOL) regarding the minimum number of samples that should be taken for miscellaneous materials. According to this clarification (follow the link above for the PACNY letter and clarification), the minimum number of samples that should be taken of miscellaneous materials (i.e., floor tiles, roofing, caulk, ceiling tiles) is two. The original AHERA section covering sampling of miscellaneous materials indicates that the word used in this part of the regulation is "samples" indicating more than one.
Realize this is only an issue if you took one sample of let's say floor tiles, and based on the result (remember floor tiles are analyzed utilizing the nonfriable organically bound material method of analysis, requiring final negative results to be analyzed by Transmission Electron Microscopy (TEM)) you said the floor tiles did not contain asbestos. The EPA clarification says that you needed another negative sample result to say the floor tiles did not contain asbestos. This issue obviously does not impact those of you who have been following our recommended procedure of taking at least three samples per homogeneous miscellaneous material. If you followed our recommendation you would have three negative results before declaring a miscellaneous material not asbestos-containing and would be in compliance with the clarification and the original regulation.
New York State Department of Labor (NYSDOL) as of July 31, 2021, is requiring current asbestos and mold hard cards for asbestos and mold projects. Their latest automatic response email claims to be turning around asbestos hard cards in five (5) weeks and licenses in three (3) weeks. That same NYSDOL email says they are turning around mold licenses in three (3) weeks. So it seems the NYSDOL's license and certification unit is back to normal. On the other hand, the New York City Department of Environmental Protection (NYCDEP) is allowing workers whose hard card expired on March 15, 2020, or later to continue to work using their existing card until August 31, 2021. See NYCDEP's Extension of Asbestos Certification Deadline website for more information. In addition, NYCDEP has reinstated the examinations for asbestos as of April 21, 2021.
Asbestos Company License and Worker (hard card) Certificate
In our blogpost in February 2021, we discussed that NYSDOL'sEngineering Services Unit (ESU) came out with 10 Fast Track Variances and that this was a pilot program. On Thursday, July 22, 2021, the Professional Abatement Contractors of New York (PACNY) were notified by NYSDOL's ESU that they were shutting down the Fast Track Variance Program. The following is quoted from the NYSDOL email to PACNY:
"As the results of an increasing number of questions concerning relief granted by some Fast Track Variances (FTVs), ESU has decided to temporarily stop the FTV program. ESU will go back and review each FTV to ensure that the relief granted, and conditions listed in the FTV are consistent with ICR 56 and appliable Federal requirements. ESU will also try to better define when and how each FTV can be utilized. There seems to be some confusion about how some FTV’s are to be used. When ESU completes its review of an FTV, we will reissue that FTV for use moving forward. It is ESU’s hope that this review will not take long. In the meantime, site-specific variances should be applied for as usual via email to me and cc: Edward.Smith@labor.ny.gov"
So it seems if you want an FTV, you will have to apply and wait the time it takes to approve site-specific variances (anywhere from 3-6 weeks).
Asbestos Inspector Initial Class
Meanwhile, NYCDEP Asbestos Program has issued two new attachments (NYCDEP's version of FTVs). They include Attachment CS which is the "Requirements for the Abatement of In-Place ACM with or without ACM Debris in Crawl Spaces/Cellars with Concrete (Non-Soil) Floors Under Modified Containment (without plastic on the walls)" and Attachment CRS which is the "Requirements for the Abatement of Contaminated Soil with or without ACM Debris and/or Inplace Removal of ACM in Crawl Spaces/Cellars with Soil Floors Under Modified Containment (without plastic on the walls)". Both of these attachments can be found on our website under our resources page under FED Training CD-Dropbox Folder. In addition, we recently heard the NYCDEP was issuing violations for improper labeling of cassettes and sampling pumps not properly labeled. It certainly seems NYCDEP has not changed its tactics of issuing fines for nonsense items versus making sure the actual work is being done correctly. If you are a reader of this blog make sure you get credit for being a reader and enter the discount code FEDTCBLOG15 to get a 15% discount on our published course prices.
This question is the overwhelming number one question we at Future Environment Designs (FEDTC) are being asked at this time. So, to answer this question we must remember that there are two agencies that regulate asbestos licensing and training. The license (companies are licensed; individuals get certificates) or more appropriately the asbestos certificate (hard card) is issued by the New York State Department of Labor (NYSDOL). This certificate expires annually on the last day of your birth month. Currently, NYSDOL is enforcing expiration dates on certificates. You may continue to work with your existing cards as long as it is not expired. In addition, NYSDOL is no longer extending the number of days you can work with a DOH 2832 form when you took an initial course. NYSDOL is allowing you to work with the DOH 2832form for 45 days.
Hard card with picture (certificate) & Company license
The second agency that plays a part in this is the New York State Department of Health (NYSDOH). The NYSDOH enforces 10 NYCRR Part 73 Asbestos Safety Program Requirements which regulates the asbestos training providers and also says that the training certificate (the DOH 2832 Form, the piece of paper you get once the class is completed) expires after one year on the date you took the training. In addition, it has a grace period after that date that lasts a year. Once the grace period is over you must take an initial course to get another certificate (DOH 2832) for that title. Realize there has not been any waiver on this issue and so you will need to keep an eye on your training certificate expiration date and make sure you don't go over the grace period. NYSDOH is now allowing virtual instructor-led courses, see FEDTC'sWednesday, May 27, 2020, blog post on the requirements for that training. Because of this, there is no need to let your hard card or your training certificate expire.
DOH 2832 Form
Those of you who work in New York City, New York City Department of Environmental Protection (NYCDEP) regulate Asbestos Rules and Regulations, Title 15, Chapter 1 of the Rules of the City of New York. This regulation also has certificates (NYCDEP hard cards) for individuals who are handlers, handler supervisors, investigators, and restricted handlers. These hard cards expire every two years based on your birthday (but you must still meet the NYSDOL & NYSDOH requirements of training every year). NYCDEP is allowing workers whose hard card expired on March 15, 2020, or later to continue to work using their existing card until August 31, 2021. See NYCDEP'sExtension of Asbestos Certification Deadline website for more information.
Hopefully, that answers everyone's questions and we hope to see you in a virtual or in-person class soon.
NYSDOL ESU's Ed Smyth discussing variances at PACNY
In addition, the New York City Department of Environmental Protection (NYCDEP) has released a service notice regarding the filing of an ACP-9 variance request "Variance (ACP-9) Filing Instructions". The service notice gives instructions on the information that must be provided in applying for a variance from NYCDEP. Required documents for NYCDEP include the building authorization letter; the ACP-9 formincluding fee ($300-$1,800); and the proposed method of work (variance proposal) and layout drawing. NYCDEP also has the equivalent of Fast Track Variances which they call Attachments (there are 13 of them). Visit Future Environment Designs Training Center's (FEDTC's)dropbox folder to access them.
NYCDEP Attachment D & DI are regarding remote decons and decons inside the work area.
The process for getting a Fast Track Variance from NYSDOL ESU for all intents and purposes is the same for getting a site-specific variance. You will still need a licensed and certified project designer to sign and complete the SH 752 application. The application must be completed fully including the hardship. One difference is no information about the work plan should be included in the SH 752 application. The variance fee is still $350. In section 9, Industrial Code Rule 56 (ICR56) Relief Sought, of the SH 752 application the designer must enter the Fast Track Variance number they are seeking. There are 10 Fast Track Variances:
As you can see each variance deals with very specific situations. We summarize these specific situations below:
Fast Track Variance-1 (FTV-1) is about shutting down the negative air units overnight. The negative air units must run a minimum of 30 minutes after completion of all abatement/cleaning activity for the day and must run 30 minutes after the manometer achieves a negative 0.02 water pressure differential before entering the work area the next day.
FTV-2 is about exhausting negative air machines to an interior space. The variance requires air monitoring of each negative air exhaust (no banking allowed) and must be exhausted into an existing, vacant room or an area within a larger space isolated, consistent with vacate, restrict entry, & post signs (ICR56-7.4) by barrier tape and warning signs. The location must be adequately sized to accommodate the increase in positive pressure to the area. All openings within 25 feet of the negative air machine exhaust must be sealed with two layers of 6 mil fire retardant poly. The variance includes a process for elevated air monitoring results.
FTV-3 is about the removal of ACM filled elevator doors intact without impact to the matrix during removal operations. Project monitor required, elevator technician involved with door removal must be allied trades certified, no waiting periods, air samples 10 feet from the barriers, and inside the work area. The most recent final air sample results are the clearance results if they meet the clearance standard.
FTV-4 is about the removal of ACM filled fire doors intact without impact to the matrix during removal operations. Not surprisingly this variance seems exactly the same as FTV-3 without the elevator technician.
FTV-5 is about the removal of pipe insulation and dirt in a crawl space. The variance requires attached large project personal and waste decontamination unit but allows, if space limitations, for a small project personal and waste combination decontamination unit in accordance with ICR56-7.5 (c) & 56-7.5(e9). If no public access, it allows 2-layer six-mil fire retardant plastic sheeting in lieu of hardwall barriers. 8 air changes per hour required. Glovebags without tents allowed. Soil removal as per American Society Testing and Materials (ASTM) 1368(latest edition), Section 9.1.1-9.1.5 inspection criteria. It is interesting to note that the requirement does not include 9.1.6 & 9.1.7 of the standard. 9.1.6 uses a personal sampler on the project monitor during the visual inspection as a representative indication of fiber exposure for re-occupancy and 9.1.7 discusses soil sampling in accordance with ASTM test method D7521. In addition, to the regular air sampling for an asbestos project, air sampling inside the work area is required for the entire work shift based on the size of the project (i.e. 1-minor, 3-small, 5-large). The project requires a prep waiting (4-hours) and a final drying/settling period (8-hour). Clearance is based on the most recent daily abatement air samples collected during cleaning operations.
FTV-6 is the intact removal of nonfriable ACM components. The variance allows removal inside of tents or removal as part of a larger work area. Removal without tents requires critical barriers and dropcloths. Background sampling and a pre-abatement waiting period are not required. Power tools require manufacturer equipped shroud and HEPA-vacuum. Daily inside work area samples (i.e. 1-minor, 3-small, 5-large) required in addition to the regular during abatement samples. The most recent daily samples will be used to compare to the clearance criteria after the visual inspection by the project monitor. There is only one drying/settling period, time is based on the item being removed can be either 4- or 2-hours.
FTV-7 is for the removal of non-friable ACM transite piping from below ground. One of the requirements is the regulated area, decontamination units, airlocks, and dumpster area shall be cordoned off at a distance of 25 feet, if not then a daily abatement air sample shall be collected in the reduced barrier. In addition, even if you do the 25 feet condoning off, the variance requires air sampling taken on opposites of the work area at the perimeter barriers. Extending those barriers. In our opinion, this requirement by itself seems onerous. We realize not all projects are in a roadway but for those projects that are this means closing the roadway or closing a few lanes or setting up a sample in the middle of the road which means your shutting that road anyway. Meaning these projects will probably require flaggers to control the traffic around these barriers. The variance allows the equipment operator to be allied trades (see our blogpost regarding the difference between allied trades and operations & maintenance) as long as they only excavate the soil to within 6 inches of the buried pipe and lifting the section out of the trench using nylon slings. Requires a negative pressure tent if sawing or other methods that would render the piping friable. Requires project monitor visual inspection to complete the project.
FTV-8 is HEPA-drilling to allow for the installations of building system upgrades into ACM joint compound/drywall wall and ceiling. Requires dropcloth decontamination area and dropcloth under each drilling/cutting location. Power tools require a shroud and HEPA vacuum. Requires wet methods (allows shaving cream or foam as a wet method). Supervisor visual inspection as per minor projects.
FTV-9 is air sampling of elevated exhaust duct locations. Basically, if the negative air exhaust ducts are exhausting at a height above ground where air sampling of the exhaust is not possible, that is this variance. We find this an interesting variance in that most consultants that work on high-rise buildings throughout the state should be applying for this variance.
FTV-10 is controlled demolition with nonfriables to remain. Requires a full-time project monitor on-site and the individual will have a number of specific requirements. One of the most interesting requirements of the variance is the requirement that the Environmental Protection Agency (EPA) Document 340/1-92-013 "EPA Guide to Normal Demolition Practices Under the Asbestos NESHAP" be consulted by the petitioner to anticipate demolition methods will cause Regulated Asbestos Containing Materials (RACM) to be created. This EPA document published in 1992 is an excellent source of information from EPA about various demolition practices and whether those practices will cause a category I or II nonfriable asbestos-containing material to become a RACM. Air sampling for the variance includes the usual large project requirements for air sampling plus air sampling upwind and downwind of the work area. Soil/Earth/Dirt cleanup has to meet the ASTM 1368, Sections 9.1.1-9.1.5 inspection criteria.
The last day of the Professional Abatement Contractors of New York's (PACNY's) 24th annual Environmental Conference was held at the Turning Stone Casino in Verona, New York on Friday, February 28, 2020. The last day started similar to the first day with opening remarks from Ms. Deb Sanscrainte, of ARAMSCO and the conference chairwoman, and Timothy Thomas of Tetra Tech and President of PACNY. These remarks included a change in the program because a snowstorm caused the originally scheduled speaker unable to attend the conference. The beginning presentation was by Martin S. Rutstein, Ph.D., President of Ecological Consulting & Management Services, Inc. discussing talc litigation. Followed by Brent Kynoch of the Environmental Information Association (EIA) discussing the benefits of joining the EIA. The Regulatory Day of the conference includes the last chance of visiting the Vendor Exhibit Hall with a continental breakfast and visit the 30 vendors to get a chance to win the vendor gift cards/prizes.
Dr.Rutstein speaking about talc litigation
After the two morning presentations, and a short break in the Vendor Exhibit Hall, the New York State Department of Labor's (NYSDOL's) Panel with a question and answer session began. The panel included Dr. Eileen Franko, the Director; Mr. James Meacham Program Manager, Asbestos Control Bureau; Mr. Kirk Fisher, Program Manager, Licensing & Certification; and Mr. Ed Smith, Program Manager, Engineering Services Unit. Questions and answers session was moderated by Mr. Tim Thomas of Tetra Tech Engineering.
NYSDOL Panel Discussion
The panel started with some opening remarks by Dr. Eileen Franko which included announcing her retirement in March 2020. Making this the last year she will be on the panel. Those of us who have gotten to know Dr. Franko through the years will miss her leadership and her willingness to listen to the industry and work with the industry to better things for all contractors and consultants. As usual, the discussion of a new industrial code came up and it is still being worked on. Mr. Smyth announced, to everyone's surprise, that they had launched a pilot program for certain site-specific variances (SSVs). This pilot program is called Fast Track Variances. These variances are common variances that are issued regularly by NYSDOL. The purpose of this program is to speed up the review process for these routine variances and reduce the workload. Currently, SSVs can take two to three weeks to turnaround. Fast Track Variances can potentially be issued within the same day they are received. There are 10 Fast Track Variances available and can be found at NYSDOL's Division of Safety and Health (DOSH) Engineering Services Unit's website. Mr. Meacham discussed enforcement regarding Article 32 the NYS Mold Law. NYSDOL has received 175 complaints and has issued 30 violations. Most of the complaints are tenant-landlord complaints which do not apply to the law.
Future Environment Designs was a Gold Sponsor of PACNY's Environmental Conference
Another conference has ended and another successful year for PACNY with over 600 people attending the conference with 30 vendors exhibiting in the Vendor Exhibit hall both increases versus last year. Though we are happy for Dr. Franco and wish her all the best, the industry will miss her. Though she does leave us with a solid group of professionals running the various divisions that matter to the asbestos and mold industries. Hope to see you next year!
This year's Proficiency Day of the Professional Abatement Contractors of New York's (PACNY's) 23rd Annual Environmental Conference was approved to award three (3) professional development hours (PDH) for architects and engineers. This was the first time the first day of the conference was recognized for this purpose. The first day is typically short with two or three presenters allowing us to get the presentations to the Practicing Institute of Engineers for their review. Attendees had to sign the attendance sheet and attend the presentations to receive the 3 PDHs. Ms. Lisa Brown, Executive Secretary of PACNY sent out the certificates to those that attended the presentations.
Karen Cummings, MPH presenting on the Asbestos Safety Training Program
Starting the conference and the proficiency day was Ms. Karen Cummings, MPH presenting on the Asbestos Safety Training Program "Overview and Updates". Her presentation gave us insights into the asbestos training industry. For a copy of her presentation visit our Dropbox folder on the Resources page of our website. Ms. Cummings has been the Director of the New York State Department of Health's Asbestos Safety Training Program for just over a year and has been getting to know the program. Her presentation gave asbestos training providers, an important opportunity to meet with her and her staff (Ms. Jessica Pierce, reviewer of training submittals, and Ms. Ida Berry, many of us have met her when she has audited our training courses, were both in attendance). Her department in 2018 regulated 62 training providers that provided 26,251 training certificates. Her presentation included several graphics providing us with a glimpse of the NYS asbestos training industry. The high water mark for training was 2000 when approximately 3,838 training classes (refreshers and initials total) were held (in 2018, 3,401 training classes were held). Ms. Cummings also informed us that the high water mark for training certificates was 2013 with 29,130 certificates issued. We learned that the busy season for training providers runs from January to April with over a third of all classes being held in that time period. Some other interesting points from Ms. Cumming's presentation: 15% of providers (training providers holding 100+ classes per year) taught over half the classes and issued two-thirds of the certificates; average exam scores by discipline were typically higher for refresher classes than initial classes (not surprising) except for the air sample technician discipline (surprising).
Angelo Garcia, III, CIEC, CEOP, presenting on Asbestos Inspections & NYCDEP Changes
The next presentation was a "Review of Asbestos Inspection Requirements" presented by Mr. Angelo Garcia, III, CIEC, CEOP, of Future Environment Designs with significant assistance from Mr. Peter Delucia and Mr. Greg Mance, both from AAC Contracting. Mr. Delucia worked on the content and did the polling of the audience, while Mr. Mance assisted with the content and questions to the audience. Our group effort paid off with a well-received presentation that provided the audience with interactivity and information on the various requirements for performing asbestos inspections. This presentation can also be found in the Dropbox folder.
The final presentation was "New York City Title 15 Amendments" also presented by Mr. Angelo Garcia, III, CIEC, CEOP, and again this presentation can be found in the Dropbox folder. This presentation was on the recent changes to the New York City Department of Environmental Protection's (NYC DEP's) Title 15 Asbestos Regulation (formerly known as Local Law 76). These changes were made because of the arrest of 17 NYC asbestos investigators (see the above video on the press conference on the arrests) and the recommendations of the New York City Department of Investigations (NYC DOI). These changes included additional requirements for NYC Asbestos Investigators and some changes to other parts of the asbestos regulations. See our previous blog post on these new requirements.
Overall it was a good start to the three-day conference. Of course, what is a PACNY conference without snow? It was snowing by the end of the presentations. Though it did not seem to deter people from attending the President's Reception that evening or prevent us from getting the Gotham at the TS Steakhouse. Stay tuned for Days Two & Three!
This year's Professional Abatement Contractors of New York (PACNY) 21st Annual Environmental Conference was definitely more technical then previous years. The first day of the
PACNY environmental conference started with the Proficiency Workshop for
Trainers. The Proficiency Workshop speakers
consisted of Mr. Kevin Malone, Director of New York State Department of Health (NYSDOH); Mr. Don Pierce of
New York State Department of Labor (NYSDOL); and Mr. Kevin Hutton of Eastcoast Resources; and Mr. Ed Smith of NYSDOL
Engineering Services Unit.
It was a modest Day
One which started with networking during lunch. Mr. Malone started the
presentations by providing us with an update on the statistics of the asbestos
training program. As we have come to
expect the number of individuals attending asbestos courses shrinks every
year. The 2016 stats were 26,734 total
certs issued broken done 21,642 refresher certs and 5,092 initial certs issued
at 3,349 total classes held. Those
numbers are down from the 2015 stats that were 27,731 total certificates issued
with 22,074 refresher certs and 5,657 initial certs issued at 3,436 training
courses.
Mr. Kevin Malone of NYSDOH
The next presenter
was Mr. Pierce discussing the Asbestos Hazard Emergency Response Act (AHERA) auditing update. For those of you who don't know, the Environmental Protection Agency (EPA) has been
providing New York State (NYS) with a grant to perform audits of public and private school's AHERA required
management plans. The presentation
included a discussion on the process of selecting schools to be audited (randomly selected and/or based upon cause {complaint}), how
the data is collected and how the information is provided back to EPA. In addition, Mr. Pierce discussed several issues the audits have found:
EPA accepts electronic record-keeping, but hard copies of the original survey and asbestos management plan must be maintained at the Local Education Agency (LEA) office.
The LEA must assign and train a designated person to oversee asbestos activities and ensure compliance with AHERA requirements. The designated person must be trained but does not require them to be accredited and does not list a specific course or specific number of hours. It does list specific training topics which include - health effects; detection, identification, & assessment of asbestos; options for controlling asbestos; asbestos management plan topics; and relevant Federal, State, and local regulations for asbestos. As a side note: Future Environment Designs (FEDTC) recommends designated persons take the asbestos inspector (3 day) and management planner (2 day) initial courses to meet the AHERA requirements.
EPA allows two methods for new additions to existing buildings. An architect or project engineer responsible for the construction of a new school building after October 12, 1988 or an accredited inspector to:
to sign a statement that no asbestos containing building materials (ACBM) was specified as a building material in any construction document for the building, or
to the best of his or her knowledge, no ACBM was used in any building material in the building.
The LEA must submit a copy of this statement to the EPA Regional Office and shall include the statement in the management plan of the school.
Deficiencies found by the audit included:
Periodic surveillances were missing or weren't well documented
Documentation of notifications not included or well documented
ACBM removal not updated in the management plan
Clearance air monitoring records not available per AHERA
Mr. Don Pierce of NYSDOL
After a short break, the Variance Writing Workshop with Mr. Hutton and Mr. Smith was up next. This nearly two-hour presentation, got into the details of submitting and writing variances that Mr. Smith's Engineering Services Unit (ESU) reviews for approval, disapproval, or modification. Some of the points discussed:
Mr. Kevin Hutton of Eastcoast Resources
According to the Asbestos School Hazard Abatement Re-authorization Act (ASHARA) an asbestos project designer is required on Public and Commercial Building asbestos projects (including residential buildings with 10 or more dwellings).
When writing a variance consider your audience: DOL ESU; Abatement Contractor, Project Monitor; Asbestos Control Bureau (ACB) Inspector; Occupational Safety and Health Administration (OSHA) Inspector (Compliance Safety Officer); and the Courts.
Mr. Smith discussed that his department handles between 1400-1500 variances a year. About 25% are then reopened, with another 5% reopened a second time and another 5% reopened a third time. Mr. Smith also provided us with a list of Pet Peeves regarding variance applications which included:
Failing to explicitly list what code sections you are requesting relief from
Don't be lazy and simply submit someone else's variance and state you want to do what is in that variance. Own your work, your client is paying you to apply for a variance on their behalf.
"State-Wide" emergencies
Try to limit your write-up to the hardship and proposed steps to be taken to work around the hardship.
Mr. Ed Smith of NYSDOL Engineering Services Unit
Variance workshop ended the first day of the Conference. That evening we celebrated & networked at the President's Reception featuring Dan the Magic Man!
Under the New York State Department of Labor's (NYS DOL) Industrial Code Rule 56, if you have an Asbestos Certificate (any one of them project monitor, inspector, etc.) and want to work for yourself (self-employed or working on an IRS1099 form), you also need to get an Asbestos Company License. In New York State if you employ a person with an Asbestos Certificate they can work under your license. However, if they are independent, subcontractor, or 1099 worker they must have their own Asbestos Company License (either non-abatement or abatement, dependent upon what certificate the individual has). The fine for not having a company license is $2,500. The cost of a company license is $500 for the initial license and $300 for the renewal (which is annual).
On February 25-26, 2010, the Professional Abatement Contractors of New York (PACNY) held their 14th annual Environmental Conference at the Turning Stone Casino and Resort in Verona, New York. This year it was not only an honor for me to attend the meeting but to also participate as part of the industry roundtable on the last day of the event. If you attended the conference this year you would have found that PACNY was able to get representatives from the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), United States Department of Justice, and as usual Mr. Chris Alonge, of the New York State Department of Labor (NYSDOL).
This year probably the biggest impact of the conference was the weather not cooperating with the conference, as the area was hit by a snowstorm during the conference and Long Island was hit with a snowstorm on Friday, the last day of the conference. This hurt the attendance at the conference including one of the speakers presenting and causing several vendors to be missing in action. It was a shame because those of us who attended had a great time and were provided with a lot of information. Vendors attending included: Grayling Industries; DiVal Safety; Aramsco; Fiberlock Technologies; Foster Specialty Construction Brands, and United Rentals to name a few. Dival Safety's booth was showcasing "Green Stuff Absorbent" an environmentally friendly product used to absorb chemical spills. The product can absorb over 325 liquids and chemicals allowing for a broaden HazMat response (visit http://www.divalsafety.com/ for more information).
All the presentations were held in the Tuscarora Room. My favorite presentation was by Mr. Kevin Cannan, President of AAC Contracting Inc, also a former President of PACNY. Mr. Cannan's presentation was a discussion of the industry and a look back and a look forward. I enjoyed it so much I forgot to take notes. Well done Mr. Cannan!
The other presentations included:
The return of Mr. Craig A. Benedict, Assistant U. S. Attorney, and Mr. Justus J. Derx, Special Agent of the EPA, both discussing recent cases and their current focus in the industry. Both mentioned that their success has led to increased responsibility into new Districts. The major points of their presentation were:
They view their work in the abatement industry as fighting a spiral down effect. Preventing the degradation of the quality of work in the abatement industry due to contractors/consultants not following the regulations.
They have now done over 100 individual prosecutions and have not lost one.
They are now focusing on air sample technicians and project monitors as aiders and abettors of violations of the Clean Air Act rule and making them culpable under standard.
They are also focusing on the culpability of owners/general contractors on ensuring the legitimacy of the asbestos contractor/consultant.
Other issues in the industry they discussed include:
insurance fraud and the use of foreign workforces that are not on your payroll.
contractors using foreign workforces not on their payroll.
reminded asbestos companies should have policies on workers moonlighting and using their equipment and inventory.
Ms. Kimberly Castillon, Assistant Area Director of OSHA, updated the attendees on current remediation industry enforcement actions, she discussed:
Enforcement has become OSHA's number one priority.
OSHA expects to perform 750-800 more inspections per year utilizing 130 new compliance safety and health officers. that have been hired nationwide.
New/revised regulations that are in the pike include Hazard Communication, Silica, Cranes and Derricks, confined space entry for construction and combustible dust.
The OSHA Region 2 statistics include 5,600 inspections in 2009. 26% of those inspections were in compliance. 13,000 violations were issued averaging 3 violations/inspection. 81% of violations issued were serious violations. The average penalty per serious violation was $1,024.
Typical remediation industry violations - respiratory protection, recordkeeping, hazardous waste and emergency response, and asbestos.
Mr. Andrew McClellan, President, Environmental Education Associates, spoke on the impending EPA Lead Renovation, Repair, and Painting Regulation going into effect on April 22, 2010. The major points included:
Lead abatement is not covered by this rule.
The rule includes kindergartens and childcare centers.
If the amount of material impacted is under six (6) square feet interior or twenty (20) square feet exterior, it is considered a minor repair or maintenance and is not covered by the rule.
Each project requires records be created and filed that must be maintained for three (3) years (recordkeeping requirement).
Mr. Sean Hickey, Senior Vice President, Rose & Kiernan discussed the Insurance Market. His major points were:
The insurance market is currently a buyers market.
Commercial rate changes are averaging -5% with general liability dropping 6% and workmen's compensation dropping 3.7%.
There is more competition in the Environmental insurance industry. In 2009 there were 15 carriers, now there are 30.
Mr. Chris Alonge's presentation was exactly the same as the one presented to Metro-AIHA meeting in November (see our entry at http://futureenv.blogspot.com/2009_11_01_archive.html for the specifics). Mr. Alonge presented a revised schedule for the proposed new Industrial Code Rule 56. Submission to GORR by April 2010. Publish proposed revisions in May 2010 in NYS register. Finalized revisions take effect August 2010. Though I suspect that may be overly ambitious. We will see.
All in all the conference was very informative and well worth the trip. Turning Stone Casino was an excellent venue for the event, even though the weather did not cooperate this year. We attended the Pro Boxing Fight Night, the main event being a Super Middleweight fight between Brian Vera versus Isaac Rodrigues. It was my first live boxing match and the main event was a slugfest. The overall experience was outstanding and enjoyable. It was a pleasure to get together with old friends, and make some new ones. Thank you to the PACNY organization for honoring me by including me on the industry roundtable at the end. PACNY did a great job on the conference as usual, they deserve much credit and accolades for their hard work. We look forward to next year’s conference and hope to see you there next year.
On February 26-27, 2009, the Professional Abatement Contractors of New York (PACNY) held their 13th annual Environmental Conference at the Turning Stone Casino and Resort in Verona, New York. If you have attended this conference before you already know that PACNY does a great job of inviting individuals to speak on current contractor/consultant issues and/or current regulatory issues. In what has become a tradition for the conference, the focus of the second day was the New York State Department of Labor (NYS DOL) and what was affectionately referred to as the Chris Alonge Road Show. Over 200 people attended the conference this year, not a bad number considering the condition of the economy. However, this year the absence of downstate contractors/consultants was particularly noticeable. It was too bad, because this year’s conference was one of the best. The Mohawk Room had nearly 30 vendors including Grayling Industries, DiVal Safety, Aramsco, and Fiberlock Technologies. Aramsco‘s booth was showcasing a new piece of equipment, a floor buffer with an attachment for a HEPA vacuum, that could be used under the NYS DOL Applicable Variance A-3. This floor buffer with the attachment for a HEPA vacuum would allow a contractor using it to perform mastic removal work with a remote decontamination facility. All the presentations were held in the Oneida Room. One of my favorite presentations was a two part presentation between Mr. Dale Lesinski, Vice President of DiVal Safety and Mr. Eric Giguere. Mr. Eric Giguere was buried alive in a construction accident and told us his story of survival and his life since his near-death experience. Before Mr. Giguere’s presentation, Mr. Lesinki set the audience up with a Behavior Based safety presentation that worked well with Mr. Giguere’s presentation. The presentation created a powerful 1-2 punch for worker safety. This presentation was so powerful we saw several audience members, including myself, wiping tears away. The other presentations included:
Dr. Bruce Lippy’s, of The Lippy Group, presentation on lessons learned from Ground Zero and Boca Raton Anthrax Cleanup. Interesting points: (1) Hazwoper procedures should be an integral part of disasters; (2) Better management of critical incident stress among workers; (3) Better management of the transitions from Rescue to Recovery to Cleanup; (4) Most fatalities involved with work zone safety; (5) Better understanding of the linear relationship between extended work schedule and worker risk of injury: (a) 18 hours of sustained wakefulness produces a performance impairment = 0.05% of blood alcohol content; (b) 24 hours of sustained wakefulness produces a performance impairment = 0.10% of blood alcohol content.
Mr. Aaron Hilger’s, of the Rochester Builders Exchange, presentation on the recent changes to Wick’s Law (Nassau/Suffolk –increase to threshold from $50,000 to $1.5 million) and the economic climate for the construction industry. His discussion also included current view of the stimulus bill and impact of health care reform.
LeChase Construction/Eastman Kodak’s presentation involved four speakers (Raymond LeChase, Jr., Darren Yehl, Jim Gerek, & Edward Slovak) point of view of the Eastman Kodak’s Footprint Reduction Program. The program consisted of the remediation – demolition of 80 structures totaling over six million square feet.
On the second day the Oneida room presentations included:
IAQ Technologies’ Mr. Bob Krell did a presentation on Indoor Environments and Green Buildings that was primarily a mold presentation.
Lawyers from NYS DOL & Mr. Chris Alonge then discussed: (1) The “Asbestos Successor Legislation” that went into effect in July 2008; (2) The Guidance Document version 2.0; (3) Proposed changes for the Emergency Rule Making of Industrial Code Rule 56.
The final presentation was a panel discussion including Mr. Chris Alonge. This panel discussion was a Q&A session for the panelist to discuss directly with Mr. Alonge. Audience participation was restricted until after the panelist finished their questions.
All in all the conference was very informative and well worth the trip. It was a pleasure to get together with old friends, make some new ones, and reacquaint with some friends we had not seen in years (Special hello to Patty Kirkland of EMSL). Bravo to the PACNY organization and the committee that put this year’s conference together, they did a great job. We look forward to next year’s conference and hope to see you there next year.
The Professional Abatement Contractors of New York's 13th Annual Environmental Conference starts on Thursday, February 26 and runs until the 27 at the Turning Stone Casino, in Verona, New York. As usual Mr. Christopher Alonge from the NYS Department of Labor, writer of Industrial Code Rule 56, will be there to discuss the new Guidance Document and the recently announced Emergency Rule making regarding changes to Industrial Code Rule 56. In addition, Alyssa Talanker, Esq, Legislative Counsel - NYS Dept. of Labor will be discussing “Asbestos Successor Legislation – Implications for New York Abatement/Remediation Contractors”. We look forward to going and hope to see some of you there.
New York State Department of Labor has released Guidance Document version 2.0. It has approximately 340 questions that NYSDOL is providing guidance on. Click on the title for the link.
New York State Department of Labor (NYSDOL) has issued the requirements for statue 220-H compliance (see the link above). Statue 220-H requires that every worker working on public work of $250,000 or more shall have taken the ten hour Occupational Safety and Health Administration (OSHA) construction safety training course. NYSDOL will enforce this statue by requiring all contractors and subcontractors to submit copies of the OSHA ten hour card or training roster with the first certified payroll submitted to the contracting agency and on each succeeding payroll where any new or additional employee is first listed. This should clarify who needs to take the OSHA ten hour course. All workers who will be listed on the certified payroll have to take the OSHA ten hour course.
We have several courses on the schedule. We also can set-up a class At Your Convenience with 4 or more workers, so give us a call.
On August 18, 2007, a fire at the former Deutsche Bank Headquarters located in Manhattan, New York claimed the lives of two New York City firefighters. After the fire, the Occupational Safety and Health Administration (OSHA) inspected the site and issued citations to Bovis Lend Lease, John Galt Corp., and Paradise Energy Electrical Contractors. These contractors were responsible or involved with the demolition and asbestos abatement work on the buildings. Bovis Lend Lease was being fined $193,000, John Galt Corp. was being fined $271,500, and Paradise Energy Electrical was being fined $6,250. OSHA found the following hazards at the worksite:
Failing to inspect and maintain firefighting equipment to ensure that the standpipe system was operational and that sufficient water supply and presuure were available for firefighting
Obstructed emergency exit access (including sealed emergency stairwells, emergency stairwells blocked by construction, and unlighted stairwells)
Inadequate emergency escape procedures
Unmarked exits
Lack of fire extinguishers, emergency alarm procedures, and fire cutoffs
Failing to develop and follow a fire protection program
Smoking permitted in work areas
Temporary structures inside the building made of combustible materials
Scaffolds erected too close to power lines
Unprotected sides and edges of work areas, unprotected floor openings, missing or broken guardrails, and missing stair rails
Exposed live electrical parts, electrical panel boards in wet locations, and other electrical hazards.
Several of these items are reminders for abatement contractors and consultants, building owners, facility managers, general contractors, and project management firms. There are several OSHA regulations that apply to asbestos abatement, other than 1926.1101, and they require:
That temporary structures, such as the decontamination facility, must be constructed of non-combustible materials such as fire retardant wood.
Exists must be marked and alternate exits established. For example, using fluorscent paint to mark exits and designate alternate pathways.
Construct blocked fire exits so workers could still use them. For example installing knives near the exists so workers can cut the poly, and construct kick-out panels to access the fire exits.
Install a fire extinguisher (rated at least 2A) per 3000 square feet of protected building area. Install sufficient fire extinguishers so that the distance traveled shall not exceed 100 feet. At least one fire extinguisher shall be located adjacent to the stairway.
Develop and follow a fire protection program that includes: the preferred method for reporting fires and other emergencies; evacuation policy and procedures; emergency escape procedures and route assignments, such as floor plans, workplace maps, and safe or refuge areas; names, titles, departments, and telephone number of individuals both within and outside your company to contact for additional information or explanation of duties or responsibilities under the emergency plan; procedures for employees who remain to perform or shut down critical operations, operate fire extinguishers, or perform other essential services that cannot be shutdown for every emergency alarm before evacuating; and rescue and medical duties for any workers designated to perform them.
New York State Department of Labor mentioned at the PACNY conference that there might be some changes in the future based on the information gathered from this tragedy. From OSHA's press release we can learn some of these lessons now and apply them to our current projects. Should you need any assistance with developing these programs or plans, you can contact us, and we can assist you.
Future Environment Designs was recently working with a construction company that needed training to operate machinery (such as backhoes and excavators) inside an asbestos work area. These machines would be used to demolish a building that has asbestos containing roofing materials in place during the demolition.
Discussions with the New York State Department of Labor (NYSDOL) determined that the operating engineers operating the machinery would require asbestos handler training (32 hours of training with a full day refresher annually thereafter) and certificates ($50 fee to NYSDOL; http://www.labor.state.ny.us/formsdocs/wp/sh440.pdf). Our discussion with NYSDOL determined that it is there (NYSDOL) view that though operating engineers are not disturbing asbestos with their hands, they are disturbing asbestos with the machinery. Anyone that disturbs asbestos (by hand or machinery) are required to have an asbestos handler certificate. Operating engineers operating machinery inside an asbestos work area are required to have asbestos handler certificates. NYSDOL will enforce this position even though a separate asbestos contractor was hired to handle the asbestos at the site.
Realize this position means that the construction company employing these operating engineers needs to have an Asbestos Company License ($500 for an initial, $300 for a renewal; http://www.labor.state.ny.us/formsdocs/wp/SH430.pdf). In addition, to getting the company license, the company needs an individual with an asbestos supervisor certificate to be the designated supervisor on the company license. This means someone from the construction company has to be trained at the 40 hour level.
In summary, all of this means any equipment being used in an asbestos work area must be operated by an operating engineer who has an asbestos handler certificate and works for a construction company that is licensed to abate asbestos containing materials. In addition, that asbestos construction company needs a designated supervisor who will be the competent person for the asbestos construction company and be responsible for any infractions at the worksite. If that sounds complicated to you now, imagine if there are violations at the worksite. Which asbestos contractor will be responsible? The asbestos abatement contractor (handling the asbestos) or the asbestos construction contractor (operating engineers)? This will be interesting to see!
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