Future Environment Designs, Inc. Celebrates 37 Years in Business With a New Program Called "After The Refresher"

On October 5, 1988, Angelo Garcia, III, founded Future Environment Designs, Inc. (FEDTC) as an indoor air quality consulting and training service to the facility management sector.  Since then, we have transformed the company into a provider of asbestos, mold, and Occupational Safety and Health Administration (OSHA) compliance training.  That has enabled us to continue for 37 years, with plans to continue for at least another 13 years.  

Once we converted the company into a training company, we became completely focused on our Blue Ocean Strategy of separating our company from our competitors by including additional services in our training courses to meet our clients' needs.  Services like:

• supplying personal protective equipment (PPE),
• providing quantitative respirator fit testing,
• providing respirator medical evaluations, 
• our monthly Safety Suzy newsletter with content on asbestos, mold, indoor air quality, and occupational safety and health information, 
• our blog where we post items of interest and discussion, 
• our negative air app, 
• our air sampling charts, 
• our training library, 
• our partnership with SiteDocs, 
• and all of it found on FEDTC's website.

In keeping with our Blue Ocean Strategy, we are starting a program called "After the Refresher".  "After the Refresher" will consist of interviews and recordings with people who attended our refresher classes, where our attendees get to introduce themselves and we discuss some of the topics we covered in the refresher class.  As we develop this program, we hope to interview people at conferences and other events that have an impact on the asbestos, mold, and OSHA compliance business.

In our first episode above, we discussed the different items we are currently discussing in our asbestos refresher courses.  In our second episode below, we interviewed John Paciulli of Insight Environmental, Inc., on the new New York State Department of Labor fact sheet on asbestos surveys and how it would impact the asbestos and mold industries.  We also discuss issues regarding contamination assessments.

As we continue to develop these programs and services, we are looking forward to what the next 13 years have to offer.  When you watch these programs, please don't forget to subscribe to Future Environment Designs Training Center's YouTube Channel and hit the like button.  Thank you!

Insights and Updates from Day 1 of PACNY's Environmental Conference: A Must-Attend Event for Industry Leaders

The Professional Abatement Contractors of New York's (PACNY's) 28th Annual Environmental Conference started with an action-packed first day (February 28th, 2025) at Turning Stone Casino in Verona, New York, setting the stage for a dynamic exchange of ideas, regulatory updates, and thought leadership. Attendees were treated to a robust lineup of expert speakers covering various critical topics, from asbestos and lead regulations to safety leadership and mental health in the workplace.

Frank Ehrenfeld (at the podium) and Tom Laubenthal speaking on the EPA Lead Rule

The morning session began with side-by-side presentations with Frank Ehrenfield, from Eurofins, and Tom Laubenthal, from TGL Consulting, Inc., delivering an essential update on "The Environmental Protection Agency (EPA) Lead Rule Update from November 2024" in the Mohawk room.  Their presentation discussed the EPA's November 2024, published new Lead-Based Paint rules regarding various definitions, dust levels for risk determination, and “clearance” values (which are now called “action levels”).  Once again, these values will be lowered to further lower risks to children in pre-1978 target housing and child-occupied facilities.  The new dust values are very low to “at reporting limits” (similar to a detection limit for simplicity), and the presentation also described in terms of the difficulties that may exist for some National Lead Laboratory Accreditation Program (NLLAP)-accredited labs, in meeting reporting limits. All stakeholders must read these regulations to understand the details and various applicability dates (see Lead and Environmental Hazards Association (LEHA) fact sheet).  While in the Cayuga room, Mary Parish, Principal Worker's Compensation Examiner in the office of the Advocate for Business, presented “Protecting Yourself and Your Team,” shifting the focus to workers' compensation and the legal framework protecting both employers and workers.  A key point from her talk was a reminder to make sure you are a certificate holder on your subcontractor's workmen's compensation insurance.

Mary Parish speaking about NYS Workmen's Compensation

The next speakers in the Mohawk Room, David Duford, from CanAm Environmental Safety, Inc., and Ryan Carney, from Wegmans Food Markets, took the stage to present "Managing Exposure Decisions and Improving Exposure Judgements," diving into practical strategies for assessing and managing workplace hazards. Their discussion highlighted the importance of accurate exposure judgments in protecting workers from hazardous environments utilizing Bayesian Statistics. Meanwhile, in the Cayuga Room, Anthony DiTucci, of Livingston Associates, continued the theme of leadership with "Safety Leadership in Project Management." He delivered a compelling case for strong safety leadership as a cornerstone of effective project management, underscoring the need for safety-first cultures in construction and abatement projects.

Anthony DiTucci in the Cayuga room, Ryan Carney (at the Podium), and Dr. David Duford in the Mohawk room

After a small break in the Vendor Exhibition Hall, Dr. Joe Spurgeon, CIH, followed in the Mohawk room with a targeted presentation, “Write a Mold Assessment Report, Not a Data Report,” emphasizing the need for clear, actionable mold assessment reports. Spurgeon challenged attendees to move beyond merely collecting data and focus on producing comprehensive reports that drive decision-making.  Zooming into the Cayuga Room, Dr. Barry Castleman delivered a hard-hitting presentation on the "Saranac Laboratory Coverups for the Asbestos Industry," revealing the historical injustices faced by asbestos victims and how industry efforts were made to downplay the dangers of asbestos exposure.

Joe Spurgeon in the Mohawk room and Barry Castleman zooming in the Cayuga room,

Closing out the morning session in Mohawk room was Steven Smigielski and Sean Fitzgerald, of Encorus Group, who addressed another timely issue in their talk, "Impact of New York State's Building and Energy Code Revisions on Hazardous Material Abatement." They examined how these revisions are shaping hazardous materials management and abatement strategies, giving attendees practical insights into compliance and operational adjustments.  Closing the morning session in the Cayuga Room, Megan Beaushemin, of New York State Department of Labor, provided a vital introduction to "NYS Code Rule 59 & 60," offering a comprehensive overview of these key regulations and how they impact worker safety practices and workers' compensation insurance.

Steven Smigielski and Sean Fitzgerald in the Mohawk room, and Megan Beauchemin in the Cayuga room

After a networking lunch, the highlight of the day was undoubtedly the Asbestos Inspections Panel moderated by Angelo Garcia, III, of Future Environment Designs, Inc. This distinguished panel, titled "Asbestos Inspections: EPA, OSHA, NYSDOL, NYCDEP & ASTM. Different Requirements and Goals," brought together leading experts to explore the varying requirements and objectives in asbestos inspections. Tom Laubenthal, of TGL Consulting, Inc., led the discussion with a focus on the American Society of Testing and Materials (ASTM) E2356 standard, offering a technical perspective. Chris Alonge, of the Dormitory Authority of New York (DASNY), presented the building owner's perspective, diving into the importance of thorough inspections to protect occupants and workers. Mr. Alonge shared some of the resources DASNY (click here for the DASNY resource page) provides to environmental consultants and contractors working for DASNY. Marc Rutstein, of Environmental Consulting and Management Services, Inc., shared his insights as a consultant, highlighting the regulatory challenges in NYCDEP and NYSDOL compliance. Finally, Matthew Brooks, of International Asbestos Removal, Inc., wrapped up with a contractor’s view, emphasizing the real-world application and costs of when inspectors don't follow these standards on job sites. The panel then had a discussion regarding the Occupational Safety and Health Administration's (OSHA's) Varga Letter regarding materials containing one percent or less of asbestos and how those materials should be handled.

Front Row - Tom Laubenthal & Matthew Brooks
Back Row - Chris Alonge, Marc Rutstein, & Angelo Garcia, III

The afternoon continued with Peter DeLucia, of Riedman Companies, and Mark Wiktorski, of Wonder Windows Showers and Baths, tackling an important but often overlooked topic—mental health. Their presentation, “Breaking the Stigma: Mental Health as a Critical Component of Workplace Safety,” emphasized how breaking the stigma attached to mental health issues is important to maintaining a safe, productive work environment.  An important website that promotes mental wellbeing in the workplace from the Construction Industry Alliance for Suicide Prevention.

Mark Wiktorski & Peter Delucia (at the Podium) 

Kevin Hutton, of EAST Centers of NY, rounded out the day with a much-anticipated session on "2024 TOP DOL Violations." His presentation gave attendees a close look at the year’s top safety violations, offering key takeaways for improving compliance and reducing risks in the workplace.

Kevin Hutton

The day concluded with a lively happy hour in the exhibition hall, where a record 31 exhibitors were on hand, showcasing the latest products and services in the industry. It was a fitting end to a day full of rich learning and networking opportunities, giving attendees a chance to connect and unwind after a full day of presentations.

As the conference continues (Day 2 was Friday, February 28, 2025; look out for Part Two), the knowledge and insights shared on day one have already set a high bar for the discussions to come. Whether you're looking to stay ahead of regulatory changes or enhance your leadership in safety practices, PACNY's Environmental Conference is the place to be.

Always thankful for Sheryl Esposito's (and Matt Desch) presence managing the booth!

The Role of Asbestos Inspections in Construction Safety: Don't Miss the Asbestos Inspection Panel at PACNY's Environmental Conference!

In the construction world, one of the most pressing concerns for worker safety is the potential asbestos exposure.  This hazardous material, once commonly used in various building materials for its fire-resistant and other properties, has been linked to serious health risks, including lung cancer, asbestosis, and mesothelioma.  Asbestos exposure remains a significant threat, especially in older buildings undergoing renovation or demolition.  The Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) have set strict guidelines to minimize this danger, but compliance hinges on one key factor: thorough and accurate asbestos inspections.

To explore the intricacies of asbestos inspections, Angelo Garcia, III of Future Environment Designs, Inc., will be moderating a distinguished panel at PACNY's 2025 Environmental Conference on Thursday, February 27, 2025. The panel will dive deep into the importance and differences in asbestos inspections from various perspectives. This includes Tom Laubenthal of TGL Consulting and ASTM E2356 Chairman, who will discuss the ASTM asbestos inspection standard, Chris Alonge now with Dormitory Authority of the State of New York (DASNY) who will provide insights from an owner's perspective, Marc Rutstein from Environmental Consulting & Management Services, who will offer a consultant's viewpoint and highlight the differences between NYCDEP and NYSDOL inspections, and Matt Brooks from International Asbestos Removal (IAR), who will speak on the contractor’s perspective.

Asbestos pipe insulation with fitting insulation

Asbestos inspections play a vital role in identifying materials that may contain asbestos before they are disturbed. This proactive approach not only prevents worker exposure but also ensures that proper abatement procedures are followed. A well-executed asbestos inspection is the first line of defense against the release of airborne asbestos fibers, which can be deadly when inhaled.

Understanding the Importance of Homogeneous Areas

At the heart of every asbestos inspection is the process of determining whether a material is classified as a surfacing material, thermal system insulation, or miscellaneous material.  Once the material type is identified, the inspector must establish whether the materials are homogeneous.  According to the EPA’s Asbestos Hazard Emergency Response Act (AHERA), a homogeneous area is defined as one where the material is uniform in color and texture.  

Floor tiles and numerous homogeneous areas

However, that is not the only definition of homogeneous area/material.  For example, the American Society for Testing and Materials (ASTM) has established a Standard Practice for Comprehensive Asbestos Surveys (ASTM E2356-18) in this standard the definition of homogeneous area is surfacing material, thermal system insulation material, or miscellaneous material that is uniform in color and texture and apparent or known date of installation. The other definitions that are used by inspectors also include some reference to installation or formulation in addition to color and texture.  This classification is crucial because it informs the number of samples that must be taken to accurately assess the presence of asbestos.

Sampling Procedures: The Foundation of a Successful Inspection

For surfacing materials, the size of the homogeneous area directly influences the number of samples needed. Under the EPA’s guidelines, inspectors follow the “3-5-7 rule.” This means that three samples are required for areas smaller than 1,000 square feet, five samples for areas between 1,000 and 5,000 square feet, and seven samples for areas larger than 5,000 square feet. Additionally, the EPA’s “Pink Book,” formally known as Asbestos in Buildings: Simplified Sampling Scheme for Friable Surfacing Materials, recommends taking nine samples per homogeneous area, regardless of the square footage, for increased accuracy.

Asbestos Fireproofing

For thermal system insulation, the process differs slightly. Inspectors must determine if the material is homogeneous, patch material, or material used on fittings like elbows and valves. Homogeneous areas of thermal system insulation require three samples, while patch materials smaller than six linear or square feet only need one sample (the only time one sample is allowed). Cement or plaster used on fittings must be sampled based on the specific mechanical system in question, and a minimum of two samples is required for each system. However, the EPA in A Guide to Performing Reinspections Under AHERA strongly advises taking at least three samples in larger homogeneous areas, even if regulations don't mandate it.

For materials such as joint compound and add-on materials, however, the EPA’s “Asbestos Sampling Bulletin dated September 30, 1994” specifies that three samples are required for each material. These distinctions are critical for asbestos inspectors to ensure compliance and accuracy in their assessments (see our original blog post on asbestos surveys).

In May 2007, the EPA provided important clarification on sampling requirements.  Mr. Chris Alonge, at the time, was working for New York State Department of Labor (NYSDOL) and he requested clarification regarding the number of samples that should be taken for each suspect asbestos-containing homogeneous miscellaneous material.  The clarification was distributed by the Professional Abatement Contractors of New York (PACNY) in November 2007. According to this clarification, the minimum number of samples that should be taken of miscellaneous materials (i.e., floor tiles, roofing, caulk, ceiling tiles) is two (see our original blog post on this issue).

Respirator and protective clothing should be worn by the inspector during sampling

Following proper sampling protocols is crucial because asbestos is considered present if any one of the samples from a homogeneous area contains more than 1% asbestos. Conversely, if all samples return asbestos concentrations at or below 1%, the area is deemed asbestos-free—though it’s important to remember that materials containing 1% or less of asbestos are still regulated under OSHA’s asbestos standard (see the Varga letter).

The Legal and Health Implications of Incomplete Inspections

Inadequate or incorrect asbestos inspections can have severe consequences.  From a legal standpoint, failing to adhere to EPA and OSHA regulations can result in hefty fines and penalties.  Remember neither regulation has a specific end date for buildings not containing asbestos (see our post Is There an Appropriate End Date for Asbestos Use?).  More importantly, from a health perspective, improperly identifying or failing to identify asbestos-containing materials (ACMs) can expose construction workers to dangerous fibers, leading to long-term health problems.  Given that asbestos-related diseases may take decades to develop, the human cost of negligent inspections can be devastating.

The closet door with asbestos core was cut without any precautions costing over $30,000 to clean up the contamination.

Mr. Tom Laubenthal wrote EPA in November 2014 regarding The Standard Practice for Comprehensive Asbestos Surveys (ASTM E2356-18) Pre-Construction Survey (section 8 of the standard) meeting the requirement under National Emissions Standards of Hazardous Air Pollutants (NESHAPS) of a thorough inspection.  EPA responded that they would expect an owner/operator to follow the steps in Sections 1 through 5 and Section 8 to comply with the NESHAPS regulation. This standard provides a framework for conducting thorough asbestos inspections, particularly in pre-construction scenarios, ensuring that no asbestos-containing material goes unnoticed.

Conclusion: The Essential Role of Inspections

Asbestos inspections are the cornerstone of any effort to protect workers from exposure to this hazardous material. By adhering to the EPA’s and OSHA’s strict sampling and inspection guidelines, inspectors can identify asbestos-containing materials before they are disturbed, reducing the risk of airborne fibers and subsequent health issues. Given the serious implications of asbestos exposure, thorough inspections are not just a regulatory requirement—they are a moral imperative in safeguarding the health and well-being of workers.

Asbestos Floor Tiles disturbed before identification led to a clean-up costing over $250,000

In the end, the responsibility lies with all stakeholders—building owners, contractors, and asbestos inspectors alike—to ensure that every construction or renovation project is free from asbestos hazards. As inspectors, staying current on regulations, maintaining rigorous sampling standards, and educating clients on the risks and regulations associated with asbestos are critical components in this ongoing battle against a deadly substance.

The asbestos inspection panel promises to be an invaluable session for professionals across the construction, consulting, and regulatory industries. With these diverse viewpoints, we aim to shed light on the critical role inspections play in protecting workers and ensuring compliance with ever-evolving asbestos regulations.  Asbestos inspections are not just about checking boxes—they are about saving lives.

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.