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Showing posts with label asbestos containing materials. Show all posts
Showing posts with label asbestos containing materials. Show all posts

Saturday, July 09, 2022

AHERA Bulk Sampling Rules and Other Requirements that Apply to Asbestos Surveys.

In 2008, the Environmental Protection Agency (EPA) responded to a question by the New York State Department of Labor (NYSDOL) regarding the minimum number of bulk samples required for suspect asbestos-containing miscellaneous materials (see our blog post dated 6/24/08 and rebooted 07/09/22). This clarification determined that the minimum number of samples is two (2) samples for each suspect homogeneous miscellaneous materials.  This clarification was determined based on a review of the EPA's Asbestos Hazard Emergency Response Act (AHERA) section 763.86 -Sampling. This section of the AHERA regulation is used by asbestos inspectors to determine the number of samples to take for each homogeneous area.  However, it is important to remember when sampling joint compound and add-on material (which are miscellaneous materials) that EPA's "Sampling Bulletin 093094", requires 3 samples per homogeneous area for joint compound and 3 samples per homogeneous area of add-on material.
The core of all asbestos inspections is the determination of the type of material (surfacing material, thermal system insulation, or miscellaneous material) and whether the materials are homogeneous. A homogeneous area is defined as a type of material that is uniform in color and texture (as per 763.83). Once the type of material is determined and the material is classified as a homogeneous area, then the number of samples for each area is determined.
If the suspect asbestos material is a surfacing material, the square feet of the homogeneous area is determined which provides the inspector with the minimum number of samples that shall be taken. If the homogeneous area is less than 1,000 square feet, the inspector shall take 3 samples. If the area is between 1,000 and 5,000 square feet, the inspector shall take 5 samples. When the area is over 5,000 square feet, the inspector shall take 7 samples. This is sometimes known in the industry as the 3-5-7 rule.  In addition, EPA also published "Asbestos in Buildings: Simplified Sampling Scheme for Friable Surfacing Materials," otherwise known as the "Pink Book."  This document not only describes the process for random sampling but also recommends that for surfacing materials the number of samples should be 9 per homogeneous area no matter the number of square feet.
Should the suspect asbestos material be classified as thermal system insulation then the inspector must determine if the material is a homogeneous area, a patch material, or a cement or plaster used on fittings (tees, elbows, or valves). Homogeneous areas of thermal system insulations shall require 3 samples, while each homogeneous area of patch material less than 6 linear feet or 6 square feet shall require only 1 sample. Cement or plaster used on fittings shall be sampled based on each insulated mechanical system (hot water, cold water, steam, chilled water, etc.) and shall require a minimum of 2 samples to  be taken.  In addition, EPA strongly recommends that at least three samples be taken in large homogeneous areas, even when the regulations do not require it.  This recommendation was published in EPA's 700/B-92/001 A Guide To Performing Reinspections Under AHERA.
Some general rules to remember when taking bulk samples is sampling should be taken in a randomly distributed manner, samples cannot be composited, and shall be submitted to laboratories accredited by the National Voluntary Laboratory Accreditation Program (NVLAP) and, in New York State, approved New York State Department of Health Environmental Laboratory Approval Program (NYSDOH ELAP).  Asbestos Inspectors determine a homogeneous area contains asbestos when one of the required numbers of samples contains asbestos in the amount greater than 1%. Should all the required samples taken in a homogeneous area result in asbestos amounts less than or equal to 1%, then the area does not contain asbestos as per EPA. However, you must make sure your client is aware that under the Occupational Safety and Health Administration (OSHA) regulation 1926.1101 these materials are still regulated as asbestos and there are specific requirements under the OSHA regulation on handling these materials, see OSHA's standard interpretation letter dated November 24, 2003.  
As Asbestos Inspectors we should also remember that the American Society of Testing and Materials (ASTM) has a Standard Practice for Comprehensive Asbestos Survey ASTM E2356-18.  This standard practice has also been approved by EPA as the method for performing asbestos surveys for the purposes of complying with the National Emissions Standards for Hazardous Air Pollutants (NESHAPS) regulation.  That regulation requires a "thorough inspection" of the facility for asbestos and EPA expects an owner/operator to follow the steps described in Sections 1 through 5 and section 8 (the pre-construction survey) in the ASTM standard.  Being an Asbestos Inspector and performing an asbestos survey is not an easy task.  There are a lot of different documents that you have to have knowledge about to be able to perform your task and then on top of that you must have knowledge regarding where asbestos was used in building materials.

Saturday, June 05, 2021

Is There an Appropriate End Date for Asbestos Use?

When we first became an asbestos consultant over 39 years ago, we remember people telling us that buildings will remove all their asbestos materials in 5 years, 10 years, or 15 years depending on who we talked to.  Well, asbestos is still in buildings and this article is about why there are many years still left in this industry.  In the construction industry, there are some who think that a certain year was the end of asbestos use in building materials.  Over the years we have reviewed many asbestos inspection reports or property transfer reports (phase I environmental audits) reporting that since a building or a part of a building was built after 1980 there are no asbestos-containing materials.  The companies making this statement assume that the federal government banned all asbestos-containing materials in 1980.  In New York State, the Department of Labor (NYSDOL), which regulates asbestos abatement, uses the year 1974 in the regulations for determining which buildings require the assumption of building materials that contain asbestos.  While the federal government, under the Occupational Safety and Health Administration (OSHA) regulation 1926.1101 (k) (1), requires building owners to presume surfacing materials, and thermal system insulations, installed prior to 1980, to contain asbestos.  To refute this presumption these materials must be sampled.  Regarding asphalt and vinyl flooring materials installed no later than 1980 must also be considered asbestos-containing or sampled to refute the designation.  In addition, the regulation also requires if the employers/building owners have actual knowledge, or should have known through the exercise of due diligence, that other materials are asbestos-containing they too must be treated as such.  Owners are required to handle these building materials as asbestos-containing materials (ACM) until a certified asbestos inspector takes samples of the materials, in accordance with the Environmental Protection Agency's (EPA's) Asbestos Hazard Emergency Response Act (AHERA), and the samples verify the materials do not contain asbestos (which usually means multiple samples of the building material have to been taken and all samples must have results that no asbestos is in the building material).  However, are 1974 or 1980 appropriate dates to use in making a determination whether building materials can contain asbestos?  We think not!

Terrazo?
The Ban and Attempts to Ban Asbestos

The federal agency with the responsibility for banning asbestos is the EPA.  This agency, under the National Emissions Standards for Hazardous Air Pollutants (NESHAPS), banned the use of asbestos for sprayed-on application of fireproofing and insulating in 1973 and for decorating purposes in 1978.  In 1975 EPA’s NESHAPS regulation also banned the installation of pre-formed (molded) asbestos block insulation on boilers and hot water tanks and the wet-applied and pre-formed (molded) asbestos pipe insulation.  Since two of these bans did not go into effect until after 1974, the New York State end of use date is not appropriate and the construction industry should not use it to determine buildings that contain asbestos.  In 1985 EPA published "Guidance for Controlling Asbestos-Containing Materials in Buildings" which has become known as the "Purple Book".  The Purple Book in Appendix A has a list titled "Asbestos-Containing Materials in Buildings".  This list shows a large number of asbestos-containing materials that were still being used in 1981.  Based on this information, it seems 1980 is not an appropriate end date for asbestos use, including asphalt and vinyl flooring materials.  Under a separate regulation, the Toxic Substances Control Act (TSCA), EPA tried to ban and phase out the use of asbestos in 1989.  In 1991 the “Asbestos Ban and Phaseout Rule,” as the rule became known as, was vacated and remanded by the U.S. Fifth Circuit Court of Appeals.  In 1993 EPA stated that corrugated paper, roll board, commercial paper, specialty paper, flooring felt, and new uses of asbestos were still subject to the ban.  Vacating the “Asbestos Ban and Phaseout Rule” meant that a number of building materials could contain asbestos such as asbestos-cement corrugated sheet, asbestos-cement flat sheet, asbestos clothing, pipeline wrap, roofing felt, vinyl-asbestos floor tile, asbestos-cement shingle, millboard, asbestos-cement pipe, automatic transmission components, clutch facings, friction materials, disc brake pads, drum brake linings, brake blocks, gaskets, ceiling tiles, non-roofing coatings, and roof coatings are not banned and could still be used in buildings.  The recent attempt to ban asbestos was made under the amended TSCA regulation.  In 2016, President Barak Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act that amended TSCA and made needed improvements to the law including requiring risk-based chemical assessments.  In 2019 EPA published a final rule called the Significant New Use Rule (SNUR).  The SNUR requires manufacturers and importers to receive EPA approval before starting or resuming manufacturing and importing or processing of asbestos.  Materials subject to this law include adhesives; sealants; roof coatings; arc chutes; beater-add gaskets; extruded sealant tape; and other tapes; filler for acetylene cylinders; high-grade electrical paper; billboard; missile liner; packings; pipeline wrap; reinforced plastics; roofing felt; separators in fuel cells and batteries; vinyl-asbestos floor tile; cement products; woven products; and any other building material.  It is obvious that this law does not ban asbestos nor does it really answer the question of how much asbestos is in commerce currently.  

Electrical wire insulation
Asbestos Used Still Today

Is there an appropriate end date for asbestos use in buildings?  Some headlines indicate the answer to this question is no.  These headlines indicate that some current building materials are contaminated with asbestos or still contain asbestos sufficiently enough for the materials to be considered asbestos-containing materials.  For example, the Asbestos Disease Awareness Organization (ADAO) reported in November 2007 that they sampled a number of current building materials and determined that DAP’s “33” window glazing and “crack shot” spackling paste and Gardner’s leak stopper roof patch all contained asbestos.  DAP’s “33” window glazing was purchased at Home Depot and Lowes for the purpose of the study and contained 2.6% tremolite, and 0.13% chrysotile asbestos (2.73% total asbestos).  DAP’s “crack shot” spackling paste was also purchased at Home Depot and Lowes and contained 0.98% tremolite, and 0.066% chrysotile asbestos (1.05% total asbestos).  Gardner’s “leak stopper roof patch,” along with other products by Gardner, is listed with the National Institute of Health as known asbestos-containing material on the open market and contained 11% chrysotile asbestos.  It is important to remember that the definition of asbestos-containing materials is any material that contains greater than 1% of asbestos in the material.  Though this does not apply to the OSHA asbestos regulation which is more concerned about how much asbestos gets in the air from a material that contains any asbestos.  In addition, the New York Times reported on July 20, 2001, that W. R. Grace & Company’s Monokote (probably #5) fireproofing spray product (used in the late 1980s) was contaminated with tremolite asbestos.  The Seattle Post-Intelligencer reported on February 8, 2005, that seven of W. R. Grace & Company’s current or former executives were indicted on federal charges that they knowingly put their workers and the public in danger through exposure to vermiculite ore contaminated with tremolite asbestos from its mine in Libby, Montana.  In 1990 W. R. Grace & Company closed the mine but the ore was used as attic and wall insulation, wallboard, and fireproofing into the early 1990s.  The asbestos content in these materials can be as high as 2%.  In research conducted by EPA on vermiculite attic insulation in 2001 and 2002, found homeowners that use their attics could be exposed to airborne asbestos fibers above the OSHA permissible exposure limit (0.1 fibers/cubic centimeters).

asbestos woven products

The Liability of Ignorance

Since there is no total ban on the use of asbestos in building materials, it means that 1974 or 1980 are not appropriate cut off dates on the use of asbestos in building materials.  This means all buildings or facilities no matter when they were constructed should be inspected for asbestos-containing materials.  EPA's NESHAP regulation 40 CFR 61.145 Standard for demolition and renovation requires buildings/facilities to be thoroughly inspected before the renovation or demolition, no matter what date the building was built.  It also means that the construction industry should be very careful when working on buildings after these dates because it is possible that if an asbestos inspection or survey was done it may have not been done properly.  From our experience, we've seen inspectors not sample roofing materials, joint compound, sheetrock, textured paint, siding shingles, and window caulking just to name a few building materials that should be sampled.  Building owners, banks, facility managers, architects, engineers, general contractors, and subcontractors should not think that because the EPA regulation requires an inspection, and if the inspection is not done correctly that there is no chance for a violation or liability.  OSHA requires that employers inform their workers of all the potential hazards at a project (job) site.  Should materials that were not inspected turn out to be asbestos-containing or even if the sample result is 1% or trace asbestos and the exposure exceeds the permissible exposure limit (0.1 fibers per cubic centimeter based on an eight hour time-weighted average) or the excursion limit (1.0 fibers per cubic centimeter over thirty minutes) the employer would be in violation of the OSHA asbestos regulation.  No matter the construction date of the building.  The building owner could then face third-party litigation from the workers if they develop a disease (mesothelioma being the most significant because of its direct tie to asbestos exposure) from such an exposure.  In addition, the AHERA regulation which applies to public and private schools (kindergarten to 12th grade)  requires that architects that design new schools or renovations of existing schools certify that the building materials used do not contain asbestos.  Utilizing safety data sheets (SDS), which are required for most building products, to certify the products would not be sufficient considering that DAP’s SDS (discussed above) did not mention the asbestos contamination in the product and the NESHAPS regulation requires building materials to be sampled for the content of asbestos.  Meaning the only way to certify the products to limit liability would be to have suspected materials sampled and analyzed for asbestos.  It is very important for building owners, banks, facility managers, architects, engineers, general contractors, sub-contractors, asbestos inspectors, and phase I environmental auditors to realize that although the asbestos regulations refer to dates before 1980, inspections are advisable and required under the EPA's NESHAPS & OSHA's asbestos regulations since the installation of asbestos-containing materials into buildings can continue to this day.

Fire Door

Tuesday, March 31, 2020

Proficiency Day - Day One of PACNY's 24th Annual Environmental Conference!

Every year we look forward to the Professional Abatement Contractors of New York's (PACNY's) Environmental Conference.  This year was no exception considering it was the 24th annual.  The conference started on Wednesday, February 26, 2020, with Proficiency Day and Mr. Angelo Garcia, III of Future Environment Designs, Inc., (FEDTC) who had the honor this year of starting off the conference.  Proficiency Day this year focused on asbestos contamination assessment that was suggested by Mr. James Meacham, PE, of New York State Department of Labor (NYSDOL) and we greatly appreciated his agreeing to also do a presentation on the topic.  In addition, we were able to convince Mr. Bart Gallagher, of Enviroscience Consultants, Inc., to do a case study presentation on the contamination assessment involved with the Long Island dumping cases.  For the second year in a row, proficiency day provided 3 PDH for professional engineers, architects, & other certifications.

Poll Everywhere Result

Angelo Garcia, III's presentation focused on the regulatory requirements or the lack of regulatory requirements of asbestos contamination assessments. The presentation also included polling of the audience using Poll Everywhere.  The basic points of the presentation were that most of the information we use regarding contamination assessments come from the Guidance Document which was a frequently asked questions document created by NYSDOL as a supplement to NYSDOL Industrial Code Rule 56 - Asbestos Regulation and the collection of dust and debris samples is very tricky, and the most important thing is how do you interpret the results?


Mr. James Meacham, P.E. discussing Contamination Assessments
 James Meacham's presentation focused on some of the issues NYSDOL has been seeing regarding contamination assessments.  He discussed the assessment tools such as using your eyes, documentation, bulk sampling, air sampling, wipe sampling, micro-vacuum sampling, and tape lifts.  What do the results mean using these assessment tools and does it need to be zero?  Well maybe not.  Clean air under state law is less than 0.01 fibers per cubic centimeters of air (that's not zero).  Mr. Meacham also discussed debris pile assessment and the need for the inspector to visually inspect the debris for suspect asbestos-containing materials (ACM) and determine if representative sampling is feasible and can be done safely.  The presentation included a draft decision tree for debris assessment.

Bart Gallagher discussing the Case Study
After a short break, Bart Gallagher's presentation was on the contamination assessment that was done for the Long Island dumping case.  Mr. Gallagher's presentation went into the different causes of damage such as environmental causes or ignorance, carelessness, and neglect.  Criminal actions are rare...but are committed.  The specific points of the Long Island dumping case were that soil borings were done with Geoprobe and split-spoon sampling to test for volatile organic compounds (VOCs), semi-VOCs, metals, polychlorinated biphenyls (PCBs) and pesticides.  Test trenches were more effective for finding ACM than the Geoprobe.  The variance application to NYSDOL was similar to 56-11.5 controlled demolition with machine excavation and loading into lined trucks/roll-offs, decontamination area for equipment, proper disposal, and project monitoring and air sampling.

"Remember I'm not in the book"
The first day then continued later that evening with the PACNY President's (Timothy Thomas, of Tetra Tech) reception which included drinks and appetizers and a lot of networking.  Some of the above presentations are available in our dropbox folder under conference presentations (2020PACNY presentations) or you can also find them at PACNY's website.  The first day went extremely well and did a great job warming everyone up for the conference yet to come!



Monday, January 21, 2013

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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Monday, December 10, 2012

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!
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Tuesday, October 02, 2012

OSHA Cites SMG For Asbestos Violations at Nassau Coliseum

English: Nassau Veterans Memorial Coliseum Lic...
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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Wednesday, December 21, 2011

What Happened with NYS ELAP Ceiling Tile Analysis?

On April 8, 2011, New York State Department of Health's Environmental Laboratory Approval Program (ELAP) issued an FAQ regarding asbestos sample analysis.  In this FAQ, ELAP informed us that ceiling tiles with cellulose need to be analyzed using the procedures in Items 198.6/198.4.  This meant analysis using gravimetric reduction and inconclusive results requiring transmission electron microscopy analysis (TEM).  In addition, the NYS Education Department (SED) in their newsletter #107 (July 2011) recommended that if schools have not tested their ceiling tiles in accordance with the current protocols, they should do so either as part of an existing or planned capital improvement or as an independent analysis prior to disturbance.


Well its been over six months since this new procedure/protocol was announced, and next month it will be six months since the SED clarification.  We would like to hear if this procedure has led to any new findings/concerns or are ceiling tiles still coming back primarily not containing asbestos?  Please let us know what you are experiencing regarding this issue?  So, far our experience is that most ceiling tiles are coming back not containing asbestos.  What is your experience?
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That Time of Year! Conferences, Posting Requirements, and OSHA Violations Increased!

It's that time of year again. We're between conferences.  February 15-16, 2024 was the Professional Abatement Contractors of New Yor...