New York City's Asbestos Regulation Revised. Again!

On April 28th, 2022, New York City published a notice of adoption in the City Record for the revisions to the Asbestos Control Program Rules and Regulations (RCNY Title 15 Chapter 1).  These revisions will become effective on May 28th, 2022.  Of course, there are some significant changes that asbestos contractors, asbestos consultants, & asbestos investigators should be prepared for.  These changes include:

NYCDEP will need to revise the confined space standard reference to 1926 Subpart AA Confined Spaces in Construction

• New wording regarding making a false statement/documents not only to the New York City Department of Environmental Protection (NYCDEP), but to any city agency or any individual related to an asbestos project, asbestos surveys, or any document required to be filed under these rules.
• The addition and subtraction of some definitions:
• Airtight was added which "means secured and sealed utilizing 6 mil plastic sheeting and tape to make a barrier through which no air, dust or debris can be transmitted."  Not sure we like this definition.  No air can be transmitted, with just plastic and tape?
• ARTS E-File was added.  Which is the web-based filing system that NYCDEP uses to file all things related to asbestos projects.
• Asbestos Project Air-Sampling Technician, Confined Space, Occupational Safety and Health Administration (OSHA) Construction Safety and Health card, and warning line system were added. 
• Bound Notebook was subtracted, but a Permanently bound log was added.  "Permanently bound log shall mean a log consisting of sequentially numbered sheets of paper, pre-printed or handwritten, that is permanently secured to the front and back covers by stitching, glue, and binding that creates a strong and lasting bond and makes readily discernible the removal or insertion of sheets after the log’s first use."  We added the bold section to point out that a composition notebook no longer can be used.  Since they are not glued.  We did a quick search and found that "Smyth Sewn (also known as Section Sewn)" would meet this requirement, we're sure there are others.
• The definition for disturb has been modified and "shall mean any activity that disrupts, impregnates, or strips the matrix of asbestos-containing material (ACM) or presumed asbestos-containing material (PACM), or that generates debris, visible emissions, or airborne asbestos fibers from ACM or PACM. This includes but is not limited to the removal, encapsulation, enclosure, renovation, repair, or cleanup of ACM or PACM."  Of course, when we read this we had to whip out our Thesaurus (dusting it off or of course, we could have googled it, sorry we're a little old school) to see why NYCDEP uses the word impregnate (obviously it would not be our first impression of the word, which leads to many very bad images)!  The second definition for impregnate is to soak or saturate (something) with a substance.  Interesting wonder if there might have been a better word to use?
• The definition of the log was changed to "shall mean a permanently bound official record of all activities that occurred during the project.  One log must be maintained by the abatement contractor in accordance with section 1-92 Work Place Entry and Exit Procedures, and one log must be maintained by the air monitoring company in accordance with section 1-37 Sampling Equipment Requirements."
• They added "Project monitor’s report. “Project monitor’s report” shall mean the "Form ACP-15" that the project monitor is required to submit for partial or complete asbestos project closeout as approved by NYCDEP."
• Variances must be made through the ARTS E-File System.  Submitted by a project designer and authorized by the building owner or authorized agent.  Including the description of the deviation, and a description of the hardship preventing the required procedures from being employed.  A sketch is no longer allowed it must be a drawing. 
• The addition of "any abatement activity to be performed within a work area located in a confined space" to the requirements of when an asbestos abatement permit is required.  This requires a Work Place Safety Plan (WPSP).  They added that the asbestos abatement permit would expire upon the expiration date of the asbestos project notification ACP-7 form.  In addition, sections in "Failure to terminate asbestos abatement permit within year" were deleted related to extending the permit.  Regarding the letter from the registered design professional finding additional ACM on a project, it must be filed through the ARTS E-File.
• Emergency project notifications must be filed through the ARTS E-File system (instead of telephone communication),  If the applicant does not have a valid ARTS E-File account, then telephone notification shall be made to 311.  The cover letter that accompanies the ACP-7 Form must be from the building owner or their authorized agent and must include:
• the nature of the emergency;
• a description of the scope of work.  With respect to projects commenced under this section, the department, based on an inspection by the department and other relevant agencies, may exempt the project from the requirements of 15 RCNY § 1-26 Asbestos Abatement Permits.
• The Certified Asbestos Investigators (CAI) must respond to the NYCDEP’s request for inspection within fourteen (14) business days and provide a date, time, and location for an inspection which is within 21 days of the date of the request. Failure of the investigator to either respond to the NYCDEP’s request for an appointment or provide a date, time, and address for an inspection will result in the suspension of the CAI's certificate until such appointment is completed and these records are made available for inspection.
• Chain of custody forms (regarding the air sampling) are now part of the project record and shall be kept on-site at all times.  The chain of custody forms, along with the project air sampling log, and a copy of the project monitor's report is added to the records the asbestos abatement contractor shall maintain for at least 30 years after the end of the project.
• Changes to air sampling requirements include cassettes that "must be labeled with sample identification numbers prior to the commencement of air sampling".  Air sampling assembly must be checked for leaks and occlusions "throughout the shift and documented in the project air sampling log."  The project air sampling log must be a "permanently bound book."  Added to the notes of the air sampling table "Transmission Electron Microscopy (TEM) is required in schools in accordance with the Environmental Protection Agency's (EPA) Asbestos Hazard Emergency Response Act (AHERA) regulations." and removed from the notes was "or the pre-abatement area sampling result(s) for interior projects where applicable."  In addition, the following statement was added wherever multiple samples are required "which must be representative of the work area. The air samplers must be placed separate and apart from one another and must not be grouped together."  For clearance sampling "samplers shall be no further than (vs approximately) 50 feet from the entrance to the work area."
• During abatement air sampling for minor projects was added: "For minor projects employing glovebag or tent procedures, one area sample shall be taken outside the glovebag or tent, not more than five feet from the uncontaminated entrance to the glovebag or tent."  According to NYCDEP, this was added to be consistent with NY State (NYS) requirements regarding air sampling for minor projects.  Well, NYS Department of Labor Industrial Code Rule 56 (NYSDOL ICR56) does not require air sampling during abatement for minor projects.  It does require clearance upon glovebag failure or loss of integrity or tent failure or loss of integrity or incidental disturbance projects, but not during abatement.  In fact, this change would require clearance of the minor project if the during abatement sampling result exceeded 0.01 fibers per cubic centimeter (f/cc), or if there were visible emissions detected during the project, or if the work area to be reoccupied is an interior space at a school, healthcare, or daycare facility.
• They modified the section Materials and Equipment, with "Ladders or scaffolds of sufficient dimension and quantity shall be available so that all work surfaces can be easily and safely reached by inspectors and asbestos handlers."  Asbestos handlers were added to the section.  In addition, these subsections were added:
• Ladders: Where ladders are used to access or reach work surfaces for the conduct of abatement activities, care must be taken to prevent breaching of the containment areas and the ladder’s integrity must be maintained to ensure safety.  Ladders and their use shall comply with OSHA 29 CFR 1926. Subpart X Ladders 1926.1053.
• Scaffolds: Where scaffolds are used to reach work surfaces or for the conduct of abatement activities, scaffold joints and ends shall be sealed with tape to prevent the incursion of asbestos fibers. Scaffolds and their use shall comply with OSHA 29 CFR1926. Subpart L Scaffolds 1926.450; 451 and 452.
• Walking Surfaces. Walking and working surfaces shall be protected from tripping or stepping into or through holes or openings, including skylights, by covers secured to the surface in accordance with OSHA Section 29 CFR 1926.501.  According to NYCDEP, they added this section due to a recent fatal accident at an asbestos work site.  We did a search and it seems this accident may have happened on November 1, 2021.  It was reported by the NYC Department of Buildings (NYCDOB) as the Gowanus Roof Fall. Workers were performing asbestos abatement work on the roof of a three-story building at 289 3rd Avenue, Brooklyn.  One of the workers left the work area to use the restroom and apparently fell through a 15-inch gap between the building and the supported scaffold, falling approximately 25 feet from the roof onto a first story set back in the rear of the building. The worker died of his injuries.  OSHA did an inspection of this accident and issued 3 scaffold violations and 2 ladder violations for a total of $40,604 in fines, which are being contested.
• The abatement contractor's log requirements were moved to section 1-92 Work Place Entry and Exit Procedures.  "The abatement contractor’s log shall be permanently bound and at a minimum shall identify fully the building  owner, agents, contractor(s), the project, each work area and worker respiratory protection employed, and other pertinent information including daily activities, cleanings and waste transfers, names and certificate numbers of asbestos handler supervisors and asbestos handlers; results of inspections of decontamination systems, barriers, and negative pressure ventilation equipment; summary of corrective actions and repairs; work stoppages with reason for stoppage; manometer readings at least twice per work shift; daily checks of emergency and fire exits and any unusual events."
• Personal protective equipment shall be provided by the abatement contractor.
• NYCDEP added the following to the workplace entry and exit procedures:  "When abatement activities are located in a confined space the contractor must comply with all the requirements set forth in OSHA 29 CFR 1910.146.and 1926.21(a) and (b)."  This is very interesting because OSHA regulations 1910.146 do not apply to the construction industry.  Its 1926 Subpart AA Confined Spaces in Construction applies to the construction industry.  Read our blog post regarding the Confined Spaces in Construction standard and its requirements (very similar to the General Industry standard 1910.146, but with specific differences related to construction and technology that is available today that was not available when the 1910.146 came out). 
• An interesting change is that chutes can only be used inside a work area that is under negative pressure.  Deeming that chutes to transport asbestos from rooftops is unsafe.  We wonder what evidence they have for this?
• Encapsulation and Enclosure procedures must be conducted with the full containment of the work area or the tent procedures.  Some other modifications.
• Glovebag procedures now require "A visual clearance inspection must be conducted by the asbestos handler supervisor and project monitor after the work area dries, to ensure the absence of ACM residue or debris in the work area. The clearance inspection must be documented in the abatement contractor’s log and the project air sampling log."
• Added air monitoring in accordance with the air monitoring sections 15 RCNY §§ 1-31 through § 1-45 was added to the Tent procedures section, along with "A visual clearance inspection must be conducted by the asbestos handler supervisor and project monitor after the work area dries, to ensure the absence of ACM residue or debris in the work area. The clearance inspection must be documented in the abatement contractor’s log and the project air sampling log."
• Foam Procedure for Roof Removal changes include the establishment and maintenance of a warning line system on the roof throughout the project, the contractor must comply with OSHA 1926 Subpart M, specifically 1926.501 Duty to have fall protection & 1926.502 Fall protection systems criteria and practices, exterior or interior chutes are prohibited to transport asbestos-containing roofing material (ACRM) from the roof to lower floors, and visual inspection must be documented in the abatement contractor's log and project air sampling log.
• Foam/Viscous Liquid Use in Flooring Removal changes includes visual inspection must be documented in the abatement contractor's log and project air sampling log.
• Abatement from Vertical Exterior Surfaces changes include the contractor must comply with OSHA 1926 Subpart M, Fall Protection, 1926 Subpart L, Scaffolds, and the NYC Building code, change to sidewalk bridges is "Sidewalk bridges in the restricted area shall be covered with two layers of fire retardant 6-mil plastic, placed over and secured to the bridge, spread across the full width of the bridge and up the interior walls of the bridge so the walls are fully plasticized" and the clearance inspection must be documented in the abatement contractor's log 
• Controlled Demolition with Asbestos in Place has been changed "A condemnation order or declaration issued by the NYCDOB or a signed and sealed condemnation letter from the Owner’s registered design professional which has been acknowledged by the NYCDOB must be submitted to the NYCDEP through the ARTS E-File system.  A site-specific scope of work identifying the steps to control asbestos emissions during the controlled demolition must be submitted and approved by NYCDEP prior to the commencement of work.
• The final cleaning procedures were changed to add "After the plastic barriers on the walls and floors have been removed, a third cleaning shall be performed of all surfaces in the work area by wet cleaning and/or HEPA vacuuming. A minimum of a one-hour waiting period shall be conducted to allow the work area to dry prior to the visual inspection by the air monitor and asbestos supervisor."

No roof parapet walls will require guardrails on asbestos roof removals

As you can see there are a number of changes some significant and some minor.  NYCDEP regulation first went into effect in 1985.  The first changes were made in 2011, and then additional changes were made in 2019.  Here we are three years later with more changes which they held a public hearing on December 23, 2021, and announced through the ARTS E-File system.  It seems they were reluctant to change the regulations much in the past (1985 to 2011) but now seem more than willing to make changes when they feel it's necessary.  Unlike, NYSDOL which has wanted to modify ICR56 since 2011 and still has not been able to.

    

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.

Winter Storm Impacts PACNY Conference, Part One.

Turning Stone Lodge before the Storm

This year was the Professional Abatement Contractors of New York (PACNY) 22nd Annual Environmental Conference.  This year's conference was overshadowed by Winter Storm Riley which turned into a Nor'easter and hit Turning Stone Casino between Thursday night & Friday Morning, March 1-2, 2018 with about 7 inches of snow.  Which put a dampener on attendance with only a few Long Islanders making the conference this year.  However, the Vendor Display/Exhibit Hall seemed to have the usual amount of vendors, maybe we even had more than the usual.  This year's schedule was a little different from past years in that presenters were given a little more time for their presentations and more time was given between presentations to spend in the Vendor Display/Exhibit Hall.  As usual the PACNY Board did an excellent job of putting everything together, which special accolades to Ms. Deborah Sanscrainte of Aramsco, the conference chairperson and Ms. Lisa Brown of Summit Environmental, Administrator.

Mr. Meacham discussing the Enforcement Process

The first day, known as Proficiency Workshop day consisted of two presentations the first was Mr. James Meacham, PE, program manager for New York State Department of Labor' (NYSDOL)'s Asbestos Control Bureau (ACB), discussing "Solving the Mysteries of the Asbestos Control Bureau".  Mr. Meacham's presentation went through the process of an inspection, the issuance of a Notice of Violation (NOV), and then continued with the process of resolving the NOV.  His presentation did an excellent job of bringing transparency to the enforcement process.  A key point of Mr. Meacham's presentation, was the response from the contractor (violator) issued the NOV.  Contractors have two opportunities to address a violation, onsite during the inspection and the second time, is when responding to the written violation.  Onsite, if their is no dispute contractors should stop work, fix the discrepancy(ies) and document the actions in the logbook.  If there is a discrepancy, contractors should work towards complying with what can be done, document your position on the deficiency, and document your corrective actions in the logbook.  When a violator receives a violation,  the contractor should review the project with their staff, gather the compliance documentation, and submit a response to the NOV.  This is important part of the process and could go a long way in mitigating violations.

Mr. Meacham discussing the Violation Review Process

The second presenter was Mr. Kevin Hutton, of Cornerstone Training Institute, discussing "Complexities of NYSDOL, OSHA, and EPA".  Mr. Hutton provided a handout called a "Guide to NYS CR56-11.1 In-Plant Operations", this guide provided basic information regarding how Industrial Code Rule 56 handles the requirements for in-plant operations and what Occupational Safety and Health Administration (OSHA) 1926.1101 work practices would apply under in-plant operations.  In addition, Mr. Hutton's presentation, discussed NYSDOL Engineering Service Unit's addition of full-time project monitoring to many variance applications.  The additions have included wording of what the responsibilities of the project monitor are for these variances (since Industrial Code Rule 56, itself, does not provide much information regarding that).  Which brings up the question whether project monitors realize the scope of their responsibilities on such projects.  We suspect not, since we've already seen some project monitors being issued violations for not following the variance requirements.

Mr. Hutton discussing full-time Project Monitoring added to Variances

That ended the first day of presentations, with later that evening the PACNY President's (Joseph Cantone, of Colden Corporation) reception was held, where many of us gathered and discussed concerns regarding the pending storm.  Stay tuned for Part Two the Technical Sessions and the Vendor Reception!

Our waitress serving "The Gotham" at the TS Steakhouse

Related articles

• Nor'easter hits East Coast, grounds flights and halts trains(bostonherald.com)

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• Bombogenesis turns winter storm Riley into a monster as it batters US coast(telegraph.co.uk)

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• PACNY's Environmental Conference - The NYSDOL Round Table - Day Three and So It Ends!(futureenv.blogspot.com)

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

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New Vermiculite Guidance Shifts Liability to Consultants & Owners

On July 9, 2013, the New York State Department of Health (NYSDOH) Environmental Laboratory Approval Program (ELAP) released a further clarification regarding the analysis of surfacing materials, thermal system insulation, and miscellaneous materials that contain vermiculite (nothing has changed regarding loose fill vermiculite this still must be reported as an asbestos containing material (ACM)).  Visit Future Environment Design's Resource Page for the New Interim Vermiculite Guidance 7/9/13 from NYSDOH.

To sum up the changes, when you send surfacing materials, thermal system insulation, and miscellaneous materials for analysis the lab will start with the friable bulk sample method 198.1.  Once the material is determined to contain greater than 10% vermiculite the lab will then use the gravimetric reduction method 198.6.  No matter what result you get with the 198.6 method, the result must be accompanied with the following disclaimer:

“This method does not remove vermiculite and may underestimate the level of asbestos present in a sample containing greater than 10% vermiculite.”

We think most of you would agree the problem is not with having a disclaimer on results that report >1% asbestos, these are reported as ACM with the disclaimer.  The problem & liability come from materials that are now being reported as < 1% asbestos, these will be reported as non-ACM with the above disclaimer.  As far as we are concerned this disclaimer basically says these results may not be accurate.  This change puts heavy liability on the asbestos inspector (consultant) as the person who under Industrial Code Rule 56 (ICR 56) makes this decision.  As Dr. Eileen Franco, acting director of NYSDOL Division of Safety and Health, stated "The Certified Inspector who performs the sample collection and analysis in support of the required asbestos survey is responsible for determining if a material is ACM or not.  If they classify it as ACM, it is ACM and covered by ICR 56.  If they classify it as non-ACM, ICR 56 does not apply.  DOL enforces ICR 56 which is for asbestos.  If a product has greater than 1% asbestos it is asbestos. If they do further testing of something with >10% vermiculite and it is less than or equal to 1% asbestos it is non-ACM. "

Certified Asbestos Free by Who?
Thank you Mr. Henry Alilionis for the photo.

 In our opinion, this is insufficient to advise a client on what to do with a material that has a result of < 1% ACM with the disclaimer.  So the question is how do we proceed?  We obviously need more information.  It means asbestos inspectors need to do more research on the material (material safety data sheets, manufacture specifications, etc.) and the source of the vermiculite.  If that is not possible for whatever reason, maybe other types of analysis could be used.  Presently, other methods available are the Cincinnati method (Environmental Protection Agency (EPA) method A 600/R-04/004) which is a research method or the American Society for Testing and Materials (ASTM) D22.07 method, neither are approved by NYSDOH ELAP.  However, at this point NYSDOH has given us a result which says the material is non-ACM with a disclaimer.  As asbestos inspectors we must address the disclaimer.  NYSDOH has not given us a way to do that, allowing us to find our own way.  Our advice would be to research the material and if that is now successful, then use one of the other lab methods to address the disclaimer.  In our view this is what a reasonable person would do to avoid the potential liability of exposing construction workers to asbestos.

Related articles

• Protecting Your Family from Asbestos-Contaminated Vermiculite Insulation
• Where to look for asbestos in older homes
• Libby Residents Concerned about Asbestos in Landfill
• What Happened in the Attic?

Kings Park Psychiatric Center's Lowest Bidder - Cause for Concern?

We recently received a copy of the range of bids on the Kings Park Psychiatric Center project.  Though the low bidder is under the budgeted amount of $15 million (see Newsday article), the spread between them and the next bidder is $1.78 million.  The spread between the second and third bidder was only approximately $230,000 and the average bid was $13.988 million.  This spread and the fact the low bidder is half the average bid may or may not be cause for concern.  It is important to remember that lowest bidder must be a responsible bidder.  On this point there are two obvious concerns regarding the lowest bidder, first they are an out-of-state bidder (Indiana) and, as of February 21, 2012, they are not a New York State Licensed Asbestos Contractor.  Under New York State Industrial Code Rule 56-3.1 (c), "a copy of a valid New York State Asbestos Handling License shall be submitted by the bidder prior to award of any contract all or part of which involves an asbestos project." At this point, unless the low bidder has a subcontractor doing the asbestos work involved with this contract, they cannot be awarded bid.  In addition, out-of-state contractors always cause worries because it brings up questions like: 

• Do they know New York State is a prevailing wage state (meaning you must pay workers on the project the prevailing wage rate for Suffolk County based on their job classification)? 
• Do they know that New York State has asbestos regulations that are some of strictest in the country? 
• Do they know  that New York State requires all workers, including the operating engineers to have asbestos supervisor or handler certificates?
• Do they know that when you do controlled demolition (56-11.5) with asbestos in place in New York State you cannot salvage/recycle/or reuse the building materials, they all (except obvious must be disposed of as regulated asbestos containing materials (RACM)?  This means the material have to be hauled by asbestos licensed hauler to an Environmental Protection Agency approved landfill that accepts RACM materials.
• Do they meet the insurance requirements in New York State, has their insurance provided riders or attachments for workers compensation and disability?

Controlled Demolition is covered under NYSDOL ICR 56

We have many clients who set-up post bid meetings (some even video tape these meetings) with the contractor and ensure the contractor understands all sections of the contract giving the contractor the opportunity to pull-out of the contract if they missed or misunderstood something.  We strongly recommend the designers/owners of this project give this contractor every opportunity to withdraw their bid and make sure the contract is awarded to someone that understands and can meet all the requirements and intricacies of working inside New York State.

Related articles

• NYCDEP Issues Advisory Memo (futureenv.blogspot.com)
• What Happened with NYS ELAP Ceiling Tile Analysis? (futureenv.blogspot.com)
• Kings Park Psychiatric Center Goes Up For Bid (futureenv.blogspot.com)

PACNY Conference Opens on Thursday, February 25, 2010

This Thursday, February 25, 2010 opens the Professional Abatement Contractors of New York's (PACNY) 14th Annual Environmental Conference at Turning Stone Casino, in Verona, New York.  This is the premier event in New York State regarding the abatement field.  Between the Vendor Exhibit Hall (recently spoke with Mr John Hill of Grayling Industries, they will be exhibiting) and the industry speakers (including Chris Alonge from New York State Department of Labor (DOL)) this is THE event to attend.  This year marks the return of Craig Benedict from the US Attorney's Office, he will be discussing "Recent Criminial Prosecutions: Remediation, Laboratory, and Project Monitoring Fraud."  Considering recent press releases this should be an interesting discussion.  With new Environmental Protection Agency regulations going to effect on renovators Mr. Andrew McClellen's presentation should be informative.  Of course on the last day of the event; will Mr. Chris Alonge be dropping any bombshells on the attendees this year.  Based on previous presentations by Mr. Alonge (see our entry on 11/25/09 on the Metro-Section of the AIHA's meeting http://futureenv.blogspot.com/2009/11/results-of-metro-ny-aihas-ehs-global.html) could the long anticipated revision of Industrial Code Rule 56 be available?  We shall see.  I will be attending as I usually do, remember Turning Stone is a dry casino so BYOB, and I hope to see you there.

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Results of the Metro NY AIHA's EHS Global & Local Update Meeting

On November 19, 2009, the Metropolitan New York Chapter of the American Industrial Hygiene Association (AIHA) sponsored the Environmental Health and Safety (EHS) – Global and Local Updates: Asbestos, Fire/Life Safety and EHS program at the Pfizer Conference Center.  For the list of speakers and their biographies click on the title above. The program was excellent and each of the speakers provided a lot of valuable information.  Because of the recent activity by regulatory agencies regarding asbestos, the three speakers speaking on asbestos drew a large crowd.  The speakers were:

• Mr. Carlstein Lutchmedial speaking on the revisions to the New York City Department of Environmental Protection (NYC DEP) asbestos regulations;
• Mr. Chris Alonge speaking on the proposed revisions to the New York State Department of Labor Industrial Code Rule 56 (NYS DOL ICR56);
• Mr. Kevin Malone speaking on the New York State Department of Health’s asbestos training program and their program on performing audits/inspections of schools regarding their compliance with the Asbestos Hazard Emergency Response Act (AHERA).

Mr. Lutchmedial, the Director of Enforcement for NYC DEP, discussed the new asbestos regulations, filing requirements, and the new regulation’s relationship with what occurred at the Deutsche Bank Fire. The key points of his presentation were:

• New filing requirement and process for ACP7s (see our Autumn 2009 Newsletter for further information on this process http://futureenvironmentdesigns.com/newsletter.htm );
• The new regulations are aligned with the fire code and specific fire safety requirements;
• There is no grandfathering of the regulation. If you had a project that started before the regulations took effect (November 13, 2009), you must bring your project into compliance with the new regulation;
• Preparation of the work area must be in the order the regulations are written (i.e., occupant notification, posting of floor plan with location of all fire exists, vacate area, shutdown electric, worker decontamination enclosure, erection of barriers);
• Added a section defining unprofessional conduct;
• No longer need a variance for floor tile removals;
• All variances must be designed by a NYS certified Asbestos Project Designer.

Mr. Alonge’s, the DOSH Associate Safety and Health Engineer NYS DOL and author of the current ICR56, presentation was similar to the PACNY presentation (visit http://www.labor.state.ny.us/workerprotection/safetyhealth/DOSH_CODE_RULE_56_TRANSITION.shtm if you want to see the presentation and see my blog post on that presentation at http://futureenv.blogspot.com/2009_03_01_archive.html ). In our refresher classes we’ve been discussing Mr. Alonge’s presentation since he was kind enough to provide us with a copy of the presentation. The big difference with this presentation is he provided a rough timeline for when the new regulations may come out and eventually go into effect. The key points of Mr. Alonge’s presentation were:

• The new regulation will have several references to the current NYS fire and building code. Mr. Alonge views many of changes to ICR56 as already being required by the fire and building code, with a few exceptions (i.e., negative air unit disconnect switch);
• An audience question brought on a discussion regarding the use of dust samples in determining the extent of incidental disturbance. Mr. Alonge’s view was that Asbestos Inspectors should rarely use dust sampling. When dust sampling is necessary then it should follow the American Society for Testing and Materials (ASTM) standard method D5755 for sampling and the analysis must follow NYS DOH Environmental Laboratory Accreditation Program (ELAP) methodology (this methodology provides you with qualititative results of positive or negative for asbestos).
• Expected dates: Draft is currently at Counsel. Once Counsel is completed, anticipate submittal to the Governor’s Office of Rules and Regulation (GORR) around Jan/Feb 2010. Publish for comments April 2010. Final version by July 2010.

Mr. Malone’s, Section Chief of the Asbestos Safety Training Program of NYS DOH, discussion was on the asbestos training program and the audit/inspection program of NYS schools determining compliance with the Environmental Protection Agency’s (EPA) AHERA regulation. Key points of his discussion were:

• NYS DOH issued 26,000 asbestos certificates in New York State through 72 training providers.
• Mr. Malone’s discussion of NYS DOH’s audit/inspection program for EPA highlighted several areas where schools are not complying with the AHERA regulations. These are:
• Recordkeeping
• No warning labels
• Short term worker notification
• Custodial/Maintenance Staff Training
• Not identifying all ACBM
• Project Designer
• Clearance Sampling
• The last two are significant in that once Mr. Malone discussed what was required, most people in the audience realized in regards of the last two not a single school in NYS is probably doing them. Visit our discussion group at http://groups.google.com/group/fed-forum?hl=en for a copy of the spreadsheets that Mr. Malone provided the attendees on this topic.
• AHERA requires project designs developed by a Certified Asbestos Project Designer for all projects greater than a small scale short duration or minor fiber release (less than or equal to 3 linear feet (LF) or 3 square feet (SF)). Meaning in a school, even a NYS minor asbestos project (less than or equal to 10 SF or 25 LF) would require an asbestos project design written by a certified asbestos project designer.
• Clearance testing for projects greater than 3 LF to less than 260 LF or greater than 3 SF to less than 160 SF require 5 inside air , 5 outside air and 3 blank samples analyzed by phase contrast microscopy. As you can see from the spreadsheet, this is a NYS State Education Department requirement. AHERA on the other hand would require only 5 inside and 2 blanks samples analyzed by PCM.

In addition to the above speakers, Ms. Gee Kay, acting Director of the Manhattan area office, representing OSHA informed us that the Obama Administration increased OSHA’s budget by 10% increasing inspections to 6,000 and allowing OSHA to hire more Compliance Safety and Health Officers. There are currently 20 CSHO in Manhattan and 5 in Queens. She also informed us of OSHA’s increased activity in rule making including the hazard communication, combustible dust, and acetylene standards. Mr. Julian Bazel, Counsel and Mr. James Hansen, Director of Code Revision, of the NYC Fire Department discussed the new fire code in NYC. Ms. Nancy Orr, Director - Global Environment, Health and Safety for Becton Dickinson, spoke about developing a global health and safety process/netrics in a de-centralized multinational corporation.  While our host Mr. Michael West from Pfizer spoke on climate change and occupational hygiene; the whole day was very informative and entertaining. The Metro Chapter did a great job putting this program together. The program was well worth the trip into Manhattan and meeting some old friends made it even better.

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Paragon's Asbestos Superisor Pleads Guilty

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As those of you who take our refresher classes know on May 29, 2009, Certified Environmental Services, Inc., an asbestos air monitoring company and laboratory, were indicted on charges of providing false and fraudulant air monitoring results while the asbestos contractor performed illegal asbestos removal.  The dominos are starting to fall, as the supervisor for Paragon pleaded guilty and is cooperating with investigators in regards this investigation.  This is the first time we are seeing not only the owners of the company being charged but the individual air monitors are also being charged.  This case may show the extent of the liability an individual air monitor has in performing air monitoring/sampling.  Air monitors (Asbestos Project Sampling Technicians) should follow this case because it will show the level of individual liability in performing air sampling/monitoring.

NYC DEP Posts New Forms for Asbestos Projects

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New York City Department of Environmental Protection has posted new forms on their website that are required as part of the new asbestos regulations that started going into effect in October 13, 2009.  Today, all the new asbestos rules (work procedures and practices) went into effect.  Additional operational changes go into effect November 16, 2009, including the use of the Project Monitor’s Report (required to be submitted to NYC DEP by an NYS Asbestos Project Monitor within three weeks of successful clearance air monitoring) and the new ACP 9 form -variance application (NYS Asbestos Project Designers are required to file this report).  These new forms are designed to be used with the new electronic filing system "Asbestos Reporting and Tracking System (ARTS) that has been in effect for projects more than or equal to 1,000 feet since October 13, 2009.

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NYC DEP Revisions to Title 15 - Asbestos Regulations, Part 1

The Autumn issue of Future Focus is now posted on our website. In Part 1 we cover the revisions in the permitting process for the NYC Department of Buildings, NYC Department of Environmental Protection, and NYC Fire Department. Most of these changes and revisions attributable to the Deutsche Bank Fire. Click on the title of this post and it will take you to Future Environment Designs newsletter page.

NYC DEP New Asbestos Regulations Go Into Effect

New York City Department of Environmental Protection's Asbestos regulations have been promulgated. The new asbestos regulations go into effect October 13, 2009 and the full regulations go into effect November 13, 2009. Visit the NYC DEP website to get a copy of the new asbestos regulations. Once we have read through it we will write a post for this blog and an article in our next newsletter on the new regulation.

NYC DEP Releases Draft Revision to Asbestos Regulations

New York City Department of Environmental Protection has released a draft revision to Title 15 - Asbestos Regulations. Visit out Future Environment Designs Discussion Group (click on the title to go to the website) files for a copy of the draft regulation. A big Thank You to Gloria Schmitt from Hazard Elimination Corp. for giving us a copy of the draft.