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.

EPA Clarifies Miscellaneous Materials Sampling - RePublished

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.

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

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!

Save The Dates February 26th through February 28th 2020!!! PACNY's Environmental Conference Is Set!!

The Professional Abatement Contractors of New York (PACNY) have announced the dates for their annual Environmental Conference to be held on February 26th through February 28th, 2020.  It will be held at the Turning Stone Resort & Casino in Verona, New York.  To register for the conference or sponsor the conference click here!

NYSDOL Asbestos & Mold Control Bureau 

This year Future Environment Designs  is working with PACNY to put together the Wednesday, February 26th, 2020, Proficiency Day.  We are working with the regulatory bodies to start the conference with a bang and get the professional development points for professional engineers/architects, which would also apply for the American Council for Accredited Certifications (ACAC) and the American Board of Industrial Hygiene (ABIH).  We are focusing on Asbestos Contamination Assessments - what is expected by the New York State Department of Labor (NYSDOL) Engineering Department to approve a Site-Specific Variance and What NYSDOL Enforcement expects in the cleanup process?

Professional Presentations

On Thursday, February 27, 2020, will be the Professional Day this day will include information on Vinyl Asbestos Tile (VAT) removal; exposure updates on talc; mercury flooring; waste management, recycling, and your carbon footprint; New York State (NYS) harassment training; and NYS Women-Owned Business Enterprise (WBE)/Minority-Owned Business Enterprise (MBE) requirements.  The Vendor Exhibit Hall will also open on Thursday.  As usual Future Environment Designs will have a booth and we will have our book for sale "Do As I Say Not As I Did" and it can be signed by the author Angelo Garcia, III.

Vendor Exhibit Hall

On Friday, February 28, 2020, will be Regulatory Day.  The day will open with a round table panel and discussion including survey requirements expert panel discussion.  Afterward, the NYSDOL Asbestos Control Bureau will once again be present to update us and answer questions from the attendees.  It plans to be another fantastic conference and we look forward to seeing you there!

NYC DEP Asbestos Rule Amendment Went Into Effect January 6, 2019, Public Comments On New Amendment Closes on July 22, 2019.

New York City Department of Environmental Protection (NYCDEP) announced that they are holding a public hearing on Monday, July 22, 2019, on amending/correcting some of the amendments that went into effect on January 6, 2019.  All comments on this new amendment must be made by July 22, 2019.   The Asbestos Rule Amendment of January 6, 2019, included quite a few changes to Chapter 1 of Title 15 of the Rules of the City of New York, for a copy of the rule with the changes incorporated, click here.  For a copy of the Asbestos Rule Amendments only, click here.  In addition, the "Promulgation of Air Asbestos Penalty Schedule" went into effect on January 6, 2019.  This penalty schedule has been incorporated into Title 53 of Chapter 1 and includes the revised violation schedule for the changes made to Title 15 by the Amendment.  For a copy of this Penalty Schedule, click here.

Asbestos Training Course

As expected most of the changes to Title 15 was in response to the over a year ago indictment and arrest of the 17-18 NYCDEP asbestos investigators, see below for the press conference or click here for Spectrum News NY 1's report.  Those indictments included recommendations from the New York City Department of Investigations (NYCDOI) click here to see the press release on the arrests and the summary of recommendations made by NYCDOI.

Some of the changes regarding asbestos investigators:

• Subchapter A Section 1-01 subdivision (j) (3) now allows NYCDEP may block an asbestos investigator from filing an ACP5 form along with the previous wording of denying asbestos permits for non-payment of civil penalties by the abatement contractor, building owner or air monitoring company,
• A requirement of an electronic recordkeeping system and to protect records from water damage, and a requirement to immediately report if any records are damaged, lost or destroyed,
• Non-certified individuals may not collect bulk samples,
• New applicants must submit documentation of successful completion of an 8 hour minimum introductory blueprint-reading course or any applicable building design and construction training or certification as established by the department and posted on the NYCDEP website,
• Registered design professionals, certified industrial hygienist or certified safety professionals must have documentation of 6 months post-graduate experience in building survey for asbestos,
• Associate Degree individuals must have 2 years (instead of one year) post-graduate experience in conducting surveys for asbestos,
• Individuals with extensive experience must show 3 years (instead of two years) of experience in conducting surveys for asbestos,
•  Applicants are allowed three attempts to achieve a passing grade on the exam.  After the third attempt results in failure, the applicant must retake the New York State Inspector Training to retake the NYCDEP exam, 
• Section 1-16 letter (j) gives NYCDEP the authority to deny any application submitted if it is determined the applicant has failed to meet the six standards listed,
• Section 1-16 letter (k) gives NYCDEP the authority to immediately suspend an investigator issued a notice of violation alleging unprofessional conduct that demonstrates a willful disregard for public health, safety or welfare,
• Section 1-16 letter (l) gives NYCDEP authority for reasonable cause to believe an investigator's surveys have been performed improperly or fraudulently such that work performed poses or may pose a threat to human safety, the Commissioner may invalidate any or all ACP-5s filed by the investigator and may order the building owner to stop all work, have a new survey conducted by a different investigator, and have a new ACP5 submitted.
• Section 1-16 letter (m) investigators must disclose prior convictions, etc.
• Replacement certificates may only be obtained twice in any two-year validity period.
• The addition of the number of samples required based on Surfacing Materials, Thermal System Insulation, and Suspect Miscellaneous Materials.
• Skim coat of joint compound included in surfacing materials utilizing 3,5,7 rule.
• Bulk Sample results/reports must be submitted within 72 hours of request (used to be 5 calendar days).

What's wrong with this picture?

Some of the changes regarding other parts of Title 15:

• Several other definition modifications or changes, including:
• Bound Notebook -notebook manufactured so that the pages cannot be removed without being torn out,
• Start Date - shall mean the date when a worker decontamination enclosure system is installed and functional,
• Approved Variances changes including automatically canceling a written approval of a variance when the building owner changes contractors,
• Section added to experience requirement of asbestos handler supervisor,
• Sections added to the renewal of restricted asbestos handler certificate,
• Work Place Safety Plan's (WPSP) floor plans must now also show the location of the decontamination enclosure systems along with all project work areas,
• Failure to comply with the approved WPSP is a violation of these rules was added.
• A requirement that a registered design professional must submit a letter to the Asbestos Technical Review Unit affirming that the professional visited the workplace and that additional asbestos abatement, for the additional ACM added to a project, is consistent with the approved WPSP and the proposed changes will not impact egress or fire protection.
• Electronic recordkeeping of the project record for abatement projects,
• Air Monitoring Company must maintain electronic records for 30 years after the end of the project including:
• NYCDEP Certificate number of all individuals (the new amendment would change this to air monitoring technicians)  who worked on the project;
• location & general description of the project;
• start and completion dates for the project;
• name, address, & ELAP registration number of the laboratory used for air sample analysis;
• a copy of the project air sampling log.
• One air sample technician must be present per 3 work areas in one work site (the new amendment would add: except that if there are multiple work areas on the same floor, only one air sampling technician is required for that floor). 
• A rotometer's calibration sheet must be available at the worksite,
• Project air sampling log must be created & maintained in a bound notebook by the air monitoring company.  A copy of the log must be submitted within 72 hours of a request, used to be 24 hours.
• Sample location sketches must be made within one hour of the beginning of sample collection.
• Air sampling results/reports must be submitted within 72 hours of request (used to be 5 calendar days).
• OSHA personal sampling must be made available within 72 hours of the request.
• Entry and exit log must be submitted within 72 hours of a request, used to be 48 hours.
• Glovebag procedures may only be used on horizontal piping.
• The addition of on any individual floor for tent procedures.

The new amendment which is open for public comment until July 22, 2019, makes the following revisions:

• Clarify section 1-29 by specifying that only air monitoring technicians need to have their license at the workplace, not all individuals (see the note above);
• Clarify the requirements of section 1-36(b) as to how many air sampling technicians need to be present during sampling (see the note above);
• Clarify that the requirements of section 1-42(a) regarding the placement of air samples apply to all asbestos projects, not only those that are conducted indoors;
• Change the requirements for lettering on notices to be posted under sections 1-81(a) and 1-125(a), as contractors advised that the required font sizes were impractical.
• Air Asbestos Penalty Schedule, found at Title 53 of Chapter 1 of the Rules of the City of New York (RCNY), which also became effective on January 6, 2019, had failed to carry over certain sections from the penalty schedule which had previously been located in the rules of the Office of Administrative Trials and Hearings. Accordingly, DEP proposes to amend the penalty schedule to correct those omissions.
• Finally, the proposed rule divides the penalty schedule into three subdivisions (specifically, the RCNY, the New York State Industrial Code, and the New York City Administrative Code). No substantive change is intended with respect to the amendments made by sections six and nine of the proposal other than the addition of a penalty for a violation of Administrative Code § 24-1002.

AHERA TEM method counts for total asbestos structures per cubic centimeter averaged 22 times greater than the PCM fiber counts on the same filters.

Considering this was primarily focused on the indicted asbestos investigators and recommendations from NYCDOI, there seemed to be a lot of things NYCDEP needed to clean-up in other parts of Title 15.  It is interesting that third-party analysis recommended by NYCDOI was left out of the amendment, and Future Environment Design's comment about requiring transmission electron microscope (TEM) analysis for asbestos floor tile projects was ignored.  So much for the revised purpose of these rules being to protect public health and the environment by minimizing emissions of asbestos fibers.  Not including TEM analysis for floor tile projects does exactly the opposite of that purpose.  For more information regarding this issue see our Floor Tile Debate blog post.

Proficiency Day Awards Architects & Engineers 3 Professional Development Hours - PACNY's 23rd Annual Environmental Conference - Day One

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.

TS Steakhouse Waitress making the "Gotham"

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!

Related Articles:

• NYCDEP Asbestos Rule Amendment Goes Into Effect January 6, 2019
• Countdown to PACNY's 23rd Annual Environmental Conference Begins!

Countdown to PACNY's 23rd Annual Environmental Conference Begins!

It's that time again!  If you haven't registered to attend the Professional Abatement Contractors of New York's (PACNY's) 23rd Annual Environmental Conference, its time to do so (It is only 21 days away, from this posting).  The Conference will be held on February 27, 28, and March 1, 2019, at the Turning Stone Casino & Resort in Verona, NY.  This three-day conference, as usual, will include the Wednesday Proficiency Day with the PACNY President's Reception, the Thursday Technical Sessions with the Vendor Hall, and the Vendor Cocktail Party, and completing Friday with the Regulatory Session including a panel from New York State Department of Labor and lunch.  Registration and sponsorship information can be found here.

It all begins on Wednesday, February 27, 2019, at 12:30 PM with a presentation from Ms. Karen Cummings, M.P.H., New York State Department of Health's (NYSDOH's) Director of the Asbestos Safety Training Program.  Her presentation will update us on the status of asbestos training in NYS.  Along with some failings of training providers.  It will continue with presentations from Pete Delucia & Gregg Mance, both of AAC Contracting and myself, Angelo Garcia, III, of Future Environment Designs (#FEDTC), discussing asbestos inspection requirements, and polling of the audience to make this presentation interactive.  Finishing the session will be a presentation of the amendments to the New York City Department of Environmental Protection (NYDEP's) Title 15 Asbestos Regulations (NYCDEP has been invited to present by teleconference).  We have also submitted the information regarding this day of the conference to the Practicing Institute of Engineering (PIE) for the purpose of being able to award three (3) Professional Development Hours (PDH) to the attendees. The President's Reception is later that evening.

The second day will include presentations by Ms. Sue Rossi, of Waste Management, discussing "Waste Management NY Landfills with acceptance of waste streams"; Adam Schrader of Ecospect with George Schanbach, of NYS AARST, discussing Radon and DOH Regulations Update"; Brian Sampson, of Unshackle Upstate, discussing Albany 2019 What You Need to Know and How it Will Impact Your Business"; Mike Rubin Esq., Partner at Goldberg Segalla, discussing "Best Practices for Abatement Contractors"; Mike Waller, of Rochester Regional Health, discussing "Sustainability?solutions and How to Balance"; and a representative of EIA discussing the "TSCA Update".  The vendor reception/networking will follow the presentations on Thursday.

NYSDOL Panel 2018

The final day will be Friday morning with a Lead (Pb) panel discussion followed by the NYSDOL panel discussion.  Friday ends with lunch and few stragglers discussing the week in review.

Sheryl Esposito Will Be Back at the FEDTC booth this year!

 #FEDTC will have a booth, again, this year and Ms. Sheryl Esposito will be womaning the booth.  We will also have the book I wrote "Do As I Say, Not As I Did! What I've Learned After 30-Years of Being in Business." available at the booth.  You can follow the conference on Twitter, Facebook, & Linked-In by searching for the #FEDTCPACNY.     We are looking forward to teaming with Peter and Greg to do our presentation on Wednesday and hope all of you will join us!

Related Articles:

• Winter Storm Impacts PACNY Conference, Part One.
• PACNY's Second Day, Part Two - A Storm is Coming!
• PACNY's Environmental Conference, Part Three-Bomb Cyclone Hits

PACNY's Environmental Conference - The Very Technical Sessions - Day Two!

The second day of the Professional Abatement Contractors of New York (PACNY) environmental conference at the Turning Stone Casino in Verona, NY started with the Technical Sessions.  The day started with opening remarks from Sean Hart, of Energy & Environment, President of PACNY and Deb Sanscrainte, of Aramsco, the Conference Chair.  This year's Technical Session seemed much more intense & focused with a lot of good information presented.  The presentations kicked off with Dr. Martin Rutstein, of Ecological Consulting & Management Services, discussing "Talc with Tremolite & Other Amphiboles." Discussed the issues of talc contaminated with asbestos or silica and the potential for diseases correlated to talc related asbestosis, silicosis or talcosis.  Dr. Rutstein's presentations are always entertaining and are eye opening in regards to the science of geology.  The next presenter was Mr. Tom Laubenthal, of The Environmental Institute (a division of ATC Group Services) discussing "Using ASTM E2356 Standard Practice for Comprehensive Building Surveys".  Mr. Laubenthal's discussion brought up interesting points regarding the use of Safety Data Sheets (SDS) and Architect/Engineer Certifications of no asbestos containing materials used as part of the Environmental Protection Agency's (EPA's) Asbestos Hazard Emergency Response Act (AHERA) and its applicability for the purposes of a "thorough inspection" under the EPA's National Emission Standards for Hazardous Air Pollutants (NESHAPS).  After Mr. Laubenthal's presentation, we took a break to wander the Vendor Exhibit Hall and meet with some of the vendors like Grayling/ILC Dover (glovebags, etc.) and AMA Analytical (laboratory services).

Mr. Ed Stuber, of Galson Laboratories

We returned from the break for Mr. Ed Stuber's, of Galson Laboratories, update on the "Occupational Safety and Health Administration's (OSHA's) Silica regulation."  One of the key points of his presentation is that the silica standard is no longer a moving target.  Previously, the standard was based on a formula.  The current standard has a set permissible exposure limit (PEL) of 50 micrograms per cubic meter and a set action level of 25 micrograms per cubic meter.  In additions, it is very important to ensure you see the lab's proficiency testing data because labs that analyze silica samples have till June 23, 2018 to comply with the OSHA standard.  Dr. Chris Goulah, of EMSL Analytical, presented on "Legionella".  The presentation was on the New York City outbreak in 2015 and the regulations created by New York City (NYC) and New York State (NYS) to protect against Legionella.  Dr. Goulah's presentation noted that Legionnaires' Disease is on the rise since 2000 and that most cases are the result of exposure to Legionella asssociated with building water systems (potable & non-potable).  Mr. Jim Redmond, of Associated General Contractors of NYS, gave us a "Regulatory Update on OSHA."  Mr. Redmonds discussed the electronic submission of injuries and illnesses (goes into effect on July 1, 2017 for more information visit OSHA's website) and construction industry citations based on the multi-employer work-site policy (creating, exposing, correcting, & controlling).  We then broke for the buffet lunch and another stroll through the Exhibit Hall and meet vendors like DiVal Safety Equipment and Frederico Demolition.

Brent Kynoch of EIA

The afternoon started with Dr. James Haklar, from EPA Region 2, discussing "Polychlorinated Biphenyl (PCBs) Case Studies".    Dr. Haklar's presentation discussed the primary sources of PCBs in buildings (caulk, fluorescent light ballasts, paints and mastics) and secondary sources (building materials contaminated by releases of PCBs from the primary sources).  Dr. Haklar's presentation also discussed exposure levels for evaluating PCBs in Indoor School Air (to keep the total exposure below the oral reference dose of 20 nanograms PCB per kilogram-day) and the EPA's agreement with NYC.  Up next was Mr. Brent Kynoch, of the Environmental Information Association (EIA), updating us on "What Does Toxic Substance Control Act (TSCA) Reform Mean to the Asbestos Abatement Industry?"  Mr. Kynoch discussed "unreasonable risk" and the EPA's need to take final risk management action within 2 years or 4 years if an extension is needed.  In addition, Mr. Kynoch informed us that asbestos was selected in the "Top 10" chemicals for review by EPA and as of the PACNY conference the public comment period was open (it has since closed, here is the docket information:  https://www.regulations.gov/docket?D=EPA-HQ-OPPT-2016-0736).  The final speakers for the day were Mr. Cole Stanton, of Fiberlock Technologies, and Mr. Fred Schauf, of Spectrum Environmental presenting on "Environmental Indicators: Changes in Policy and Practice that WILL Impact Restoration & Abatement in 2017 -2018 and Beyond."  Mr. Stanton and Mr. Schauf discussed the 2016 Indoor Air Quality Association (IAQA) report to NYS Department of Labor (NYSDOL).  This report indicated the following:

Mr. Cole Stanton, of Fiberlock Technologies, and Mr. Fred Schauf, of Spectrum Environmental

• Remediators perform own assessments/final inspections
• Mold Remediation Plans are incomplete:
• No quantities per work area
• No Personal Protective Equipment (PPE) mentioned
• EPA registered biocides etc. without specifying a product
• No method for remediation, only "industry standards"
• No cost estimate
• Non NYSDOL licensed assessors provide the inspection/assessment.
• Real Estate agents are assessing and preparing Mold Remediation Plans for properties they are listing (does not appear to violate Article 32, it does appear to violate their code of ethics.)
• Mold remediators are still providing homeowners with checklist used as assessment and mold remediation plan
• and/or, No Mold Remediation Work Plans provided.
• Training Quality needs significant improvement:
• Incorrect information presented, such as: asbestos testing is not necessary as mold takes precedence over asbestos containing materials; a check list by the homeowner is OK; sampling is required; biocides are preferable to removal.
• Classes last less than 5 hours a day
• Mold assessment classes being taught by teachers without mold experience.

Vendor Reception in the Exhibit Hall

That ended the Technical Sessions on day 2.  The Vendor Reception in the Exhibit Hall started, where further networking with the vendors and the attendees continued.  It was a very informative day 2 and the amount of information was fantastic.  Looking forward to day 3 and our presentation.  Thank you to the Long Island contingent that attended the conference this year.

Part of the Long Island Contingent that Attended This Year 

Related articles:

• PACNY's Environmental Conference - Day 1 - And So It Begins!(futureenv.blogspot.com)

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• NYC's Legionnaire Outbreak Over, Leading to New Requirements for Building Owners.(futureenv.blogspot.com)

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• NYC Legionnaires' outbreak up to 10 dead, 100 diagnosed(newsday.com)

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• OSHA slams co. after 2 men died(bostonherald.com)

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Asbestos Dust Sampling in New York State

In our recent asbestos inspector/designer classes we have been informing them about the New York State (NYS) requirements for dust/surface sampling.  Under NYS Department of Labor (NYSDOL) Industrial Code Rule 56, dust and debris are listed as suspect miscellaneous asbestos containing materials (ACM).  Meaning that if the building was built pre-1974, this debris and dust that is visually assessed by the inspector shall be treated and handled as ACM and shall be assumed ACM, until bulk sampling is done.  Well the question comes how do you bulk sample debris and dust?

Asbestos Inspector Initial Course

The best way is to collect the debris and dust by scraping it into a asbestos sample bag using a knife or a scraper.  This material could then be analyzed using NYS Department of Health (NYSDOH) Environmental Laboratory Accreditation Program (ELAP) method 198.1.  NYSDOH ELAP method 198.1 is the standard polarized light microscope method utilizing dispersion staining and point counting.  

Another popular method for collecting debris and dust samples is the American Society of Testing and Materials (ASTM) standard "D5755 - Microvaccum Sampling and Indirect Analysis of Dust by Transmission Electron Microscopy for Asbestos Structure Number Concentrations"  The D5755 method requires vacuuming a known surface area (100 squared centimeters is mentioned in the standard but it could be larger or smaller).  The vacuuming is done with a standard 25 or 37-millimeter air sampling cassette (the air sampling cassette should have a mixed cellulose ester (MCE) or polycarbonate (PC) filter membrane with a pore size less than or equal to 0.8 micron) and an air sampling pump.  A plastic tube should be attached to the inlet orifice to act as a nozzle and should be cut at a 45 degree angle.  The air sampling pump should be calibrated to run at 2 liters per minute.  The D5755 method incorporates a method of analysis for the sample, however, in NYS that method cannot be used.  According to the NYSDOH ELAP Frequently Asked Questions (FAQ) number 8, "all bulk samples collected must be analyzed by ELAP approved methodology at an ELAP accredited laboratory.  ASTM method D5755 ....... are not certified as ELAP approved methods of analysis."  The method of analysis that shall be used, especially if you want transmission electron microscope analysis, is NYSDOH ELAP method 198.4.  

SKC Catalog Photo

ASTM standard "D6480 - Standard Test Method for Wipe Sampling of Surfaces, Indirect Preparation, and Analysis for Asbestos Structure Number Concentration by Transmission Electron Microscopy" is another method for collecting debris and dust samples.  This method involves wiping a surface of a known area (100 squared centimeters is mentioned in the standard but it could be larger or smaller) with a wipe material (particle free, sealed edge, continuous filament cloth sampling medium such as a clean room wiper) to collect a sample.  See the video below by IAQTV for visual instructions on collecting this type of sample:

  

The D6480 method also incorporates a method of analysis for the sample, however, again in NYS that method cannot be used.  According to the NYSDOH ELAP Frequently Asked Questions (FAQ) number 8, "all bulk samples collected must be analyzed by ELAP approved methodology at an ELAP accredited laboratory.  ASTM method......and D6480 are not certified as ELAP approved methods of analysis."  The method of analysis that shall be used is NYSDOH ELAP method 198.4. 

The interesting part about this is, NYS ELAP approved laboratories should be advising asbestos inspectors they cannot use the ASTM methods of analysis.  However, we've heard of several times when this has not occurred.  According to the above information, an inspector should be getting results for the samples collected in percent by weight (%), which they can then use to compare with the Environmental Protection Agency's (EPA's) definition that an asbestos containing material contains greater than 1% of asbestos by weight.  If they use the ASTM methods they will get results of structures per square centimeter.  There is no government standard to compare these results to and be able to give a determination is the material asbestos containing or not.  However, that has not prevented individuals from determining that areas are contaminated, or that debris or dust is ACM.  This has cost owners thousands and millions of dollars to cleanup areas based on this analysis.  It is even more interesting to note that ASTM in the "Significance and Use" section states:

• This test method does not describe procedures or techniques required for the evaluation of the safety or habitability of buildings with asbestos-containing materials, or compliance with federal, state, or local regulations or statutes.....
• At present, a single direct relationship between asbestos sampled from a surface and potential human exposure does not exist.....

When using the two ASTM methods, an inspector must be very careful in collecting the samples and interpreting the data that you get from these methods.  Experience and knowledge are key.