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.

PACNY's Day Two - So Much Information Packed Into One Day, Amazing!

On Thursday, February 27, 2020, Ms. Deb Sanscrainte, of ARAMSCO and the conference chairwoman, and Timothy Thomas of Tetra Tech and President of PACNY,  opened the second day, known as the Professional Day, of the Professional Abatement Contractors of New York's (PACNY's) 24th annual Environmental Conference, being held at the Turning Stone Casino in Verona, New York.  Attendees expected a full day of presentations ending with the Conference Sponsors Reception.  Presentations from the conference can be found on PACNY's website.  The Professional Day of the conference includes the opening of the Vendor Exhibit Hall with a continental breakfast and 30 vendors attending the conference, an increase from last year!  See the reception video to see the various vendors!

The keynote speaker for the conference was Ms. Luann Meyer, Solid Waste Administrator for Monroe County Department of Environmental Services, speaking on "Recycling-The Long and Winding Road".  She discussed that most counties have fact sheets to know what is or aren't recyclable or you can tell by the shape of the container.  She also discussed the New York State's plastic bag ban that went into effect March 1, 2020, all single-use plastic bags have been banned.  Paper bags are not part of the ban and all stores that collect sales tax are impacted.  Our next speaker was Jack Snider III, President & Sr. Consultant of AMRC Environmental Services, speaking on "Take Home Asbestos Exposure".  Mr. Snider discussed the asbestos abatement illusion regarding the decontamination of the workers.  He stated that workers, in Florida, during the removal of the floor tile, mastic, and other non-friable asbestos-containing materials (ACM) typically wore street clothes into the work area, and they are not showering nor vacuuming themselves/their clothing upon exiting the containment.  If showers and vacuums are provided the showers are not connected nor attached to the work areas.  When questioned why the workers did not decontaminate or wear proper personal protective (PPE) common responses included "the air samples did not show elevated fibers"; "It's floor tile"; and "I have been doing this longer than you!".  The presentation then went into how he collected his samples using the American Society of Testing and Material (ASTM) standard D5755-09 microvacuum sampling method to collect several samples from workers, their clothing, vehicles, and surface areas after clearance of the work area was conducted.  Findings from his study suggest asbestos abatement workers are bringing home significant amounts of asbestos fibers from these types of projects.  The presentation was eye-opening! 

Ms. Luann Meyer Discusses Recycling

After a break in the Vendor Exhibit Hall, the presentations continued.  Similar to the first day of the conference, the next two presentations and the last presentation of the day awarded continuing education points for architects and engineers attending the conference.  These points were awarded by the American Institute of Architects (AIA) and were coordinated by Kevin Hutton, of the Rochester Colonial Manufacturing Corp.  The presentations awarding these points were Martin S. Rutstein, Ph.D. & Marc E. Rutstein, CAI, Presidents of Ecological Consulting & Management Services, Inc., discussing "Regulations - How did we get here and Where are we going?"; Sean Miller's and Mike Mazzara's, of Genesee Environmental, LLC, presentation included information provided by Stephen R. Gheen, PE, of Gheen Engineering (who could not present due to illness), on "Mercury in Sports Floors, Regulatory Guidance, Remediation, and Disposal"; and Joseph Cantone, of Colden Corp., Sean Hart, of Energy & Environment, and Peter Delucia, of AAC Contracting, presentation "Asbestos Surveys: The Good, The Bad, and the Ugly".

Kevin Hutton, of the Rochester Colonial Manufacturing Corp. 

The Rutstein's presentation talked about the asbestos regulations and some advice for asbestos professionals -  plan the job-take a fresh look, hire good staff (exert oversight of site staff), maintain required records, and plan for unexpected contingencies!  Mr. Miller's and Mr. Mazzara's presentation on Mercury in Sports Floors was a deep dive into mercury remediation regulations, guidelines, and the disposal process.  An important point made in the presentation was how it was different from an asbestos job.  In addition, Mr. Mazzara's section on mercury waste handling, transportation, and disposal provided a lot of information on handling hazardous wastes.

   

Sean Miller Discusses Its Not An Asbestos Job

 

Mike Mazzara Discusses Mercury Waste Handling, Transportation & Disposal

After a lunch break and time spent in the Vendor Exhibit Hall, the next presenter was Jennifer Kavney Harvey, Esq., Partner of Coach White, LLP,  discussing "NYS WBE/MBE Requirements".  Ms. Harvey's presentation pointed out that spending in the last nine years for Minority-owned and Women-owned Business Enterprises (MWBEs) has increased by 25 times (in dollars) while the number of MWBEs has increased by 18%.  In addition, she discussed the Governor's 2014 press release increasing the statewide composite goal to 30% without a disparity study basis, modifying the Executive Law, or modifying the MWBE regulations. Most goals from 2014 to the present were 30%.  After a short break in the Vendor Exhibit Hall, the next presenter was Karlee Bolanos, Partner at Bolanos Lowe PLLC, discussing "Understanding Your NYS Sexual Harassment Prevention Obligations".  Ms. Bolanos discussed Sexual Harassment Prevention requirements that were effective October 9, 2018, that included a New York model policy that at a minimum must prohibit sexual harassment; provide examples of prohibited conduct; include information concerning the federal and state laws; include a statement regarding applicable local laws & contacting law enforcement; include a standard complaint form: include a procedure for the timely and confidential investigation of complaints and due process for all parties; include information about rights of redress; clearly state that sexual harassment is considered a form of employee misconduct; and clearly state that retaliation against individuals...is prohibited.  She also discussed recent changes that were effective October 11, 2019, regarding behavior beyond a "petty slight" or "trivial inconvenience" that may be illegal.  

Jennifer Kavney Harvey, Esq Discusses MWBE Spending & Utilization

Karlee Bolanos discussing Sexual Harassment Law

The final presentation of the day was Joseph Cantone, of Colden Corp., Sean Hart, of Energy & Environment, and Peter Delucia, of AAC Contracting, discussing "Asbestos Surveys: The Good, The Bad, and the Ugly".  Obviously, their presentation was broken into three sections with Mr. Cantone talking about good asbestos surveys,  Mr. Hart talking about bad asbestos surveys, and Mr. Delucia talking about ugly asbestos surveys.  The day ended in the Vendor Exhibit Hall with the Conference Sponsors Reception, which included Hors d'oeuvres, food, and an open bar.  The after-party at Dival's Safety Equipment's hospitality suite allowed for more time to network and discuss the presentations of the past two days!  All the presentations were excellent and provided very useful information for those who attended the conference.  Looking forward to day three and the New York State Department of Labor Panel! 

 

Peter Delucia, Sean Hart & Joseph Colden

 

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

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

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

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

NYSDOL Panel 2018

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

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

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

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