Settlement Agreement Regarding Mold in NYC Public Housing

A December 16, 2013, New York Times article titled "Facing Suit, New York City Agrees to Remove Mold in Public Housing More Quickly: Hurricane Sandy" discusses the settlement agreement between the New York City Housing Authority and people living in housing projects and coping with asthma.  These residents have long complained that maintenance workers failed to identify the leaks and other sources of moisture that cause mold to grow, these problems have only become worse since Hurricane Sandy.  The settlement will require the authority not only to remove the mold but also to fix leaks, insulate pipes and address other sources of moisture.  The agency will be required, in most cases, to fix the problem within seven to 15 days following a work order.  In addition, it requires housing officials to recognize asthma as a disability and to make accommodations for tenants with the condition. For example, the authority could be expected to relocate a person with asthma and his or her family to another apartment, or to use low-toxicity fungicides or to allow extra air-conditioning units in apartments.



Water intrusion that is not cleaned up within 48 hours could lead to mold growth.

 

As many of us know in the Remediation industry, you must repair the source of the moisture or mold will return.  In addition, there has been plenty written that mold is only part of the problem when it comes to illnesses like asthma.  Problems caused by the water intrusion is more of a problem for asthma sufferers, even if their is no mold growth.  Fixing water intrusions and removing water damaged materials, quickly (within 48 hours) would help asthma sufferers more than removing and cleaning the mold after it has grown.  However, this agreement gives the Housing Authority too long (7-15 days) to handle the water intrusion, in that time period if the area remains moist/wet it will give mold the opportunity to grow.  Visit the Environmental Protection Agency (EPA) website for more information on mold, moisture, and your home.

Related articles

• Facing Suit, New York City Agrees to Remove Mold in Public Housing More Quickly
• Tenants Hail New Mold Guidelines For NYCHA
• NYCHA Mold Removal Settlement Has Wide Scope Thanks to High Asthma Rate
• Mold, mice and zip codes: Inside the asthma epidemic
• New York City Housing Authority Agrees to Address Mold, Contributor to Asthma Epidemic

Several Indicators Show Construction Spending Improving.

A USA Today article dated January 2, 2014 "Construction Spending:Strongest Pace In Years" reported that United States (U.S.) construction spending rose in November at the strongest pace since 2009.  Construction spending increased 1% in November (annually adjusted rate of $934.4 billion).

Residential construction rose 1.9% in November.  Home building last exceeded the November pace shortly before 2008.  Spending on single-family homes has increased 18.4% year over year, while spending on apartment buildings is up 36.3% during the same period.  More than 2/3's of the residential construction market comes from single-family homes.  According to the National Association of Home Builders each new home creates an average of three jobs for a year and generates about $90,000 in tax revenue.

Construction Work on a New Dock for Lake Champlain Ferry

Commercial projects also increased 2.7% in November.  Though Government construction spending fell 1.8%.  Declines in expenditures on roadways, health care facilities, & sewer systems led much of the decrease.

According to the Associated General Contractors of America (AGC) Press Release, November's year-over-year construction employment figures show that employment in the construction industry rose in 211 of 339 metropolitan areas between November 2012 and the same month in 2013.  According to a separate AGC Press Release, construction in November totaled $934 billion, up 5.9% since November 2012.  With private residential construction spending rising 17% and private nonresidential spending rising 1.0% since November 2012.  Public construction dropped 0.2 percent since November 2012.

While the Associated Builders and Contractors's Chief Economist Anirban Basu said the following in their Press Release, "Construction activity bounced back in November, due in part to the end of the federal government shutdown and an accompanying return to normalcy.  Nonresidential construction spending was up 2.3% on a seasonally adjusted basis compared to September, which makes a better comparison because October was so unusual."  "The recent acceleration in economic activity sets the stage for a much better 2014, both for the broader economy and the nonresidential construction industry," said Basu.  "We can expect nonresidential construction spending to expand during the first half of the year."

Related articles

• U.S. Construction Spending Near Five-Year High
• Construction spending: Strongest pace in years
• National construction spending hits $934B in November
• US construction spending on the upswing in November
• Spending on home construction reaches fastest pace since 2008

Happy New Year to one & all!

We would like to wish everyone, a Happy New Year!  Hope you all enjoy the day.  Be safe & well!

Changes to Asbestos Project Notification Fees Gets Closer

New York State Senator Catherine Young has sponsored S5917-2013.  This bill matches New York State Assembly Bill A3675A-2013 which is sponsored by Assemblywoman Donna Lupardo.  Both bills make changes to the Asbestos Project Notification Fee schedule.  The following are the reasons these bills should be supported:

• Original notification fees were arbitrarily set.

• In 2009 notification fees were arbitrarily doubled to raise income.

• From 2009 to 2010 income from fees rose from $6,606,700 to $12, 223,750.

• From 2009 to 2010 the Asbestos Control Bureau  (ACB) budget remained flat at $3,315,044 to $3,462, 574.

• The largest amount of asbestos in residential homes is non-friable

• A very small percentage of asbestos notifications are from residential homes

• Homes condemned  from disasters and, thus, not surveyed are being required to pay fees of $2,000 each for friable and non-friable material whether existing or not

• Most commercial projects of 1,500 square feet (SF) or less of non-friable material are not notified because of cost for a few hours of work.

• A home owner with 1,000 SF of floor tile pays the same fee as a commercial project of 100,000 SF.

• The bill refers to the footprint of a building as the ACB has taken the SF on some projects to include walls, floors, and ceilings.

• The proposed bill would be not be revenue neutral, however, the recent NYS Comptroller’s audit of the NYS Department of Labor (DOL) determined the DOL is not assessing and collecting all required fees and penalties in the ACB.  The audit recommended for the DOL to “Review the asbestos fee structure to determine whether a more equitable fee structure could be created based on the size of a project to possibly increase revenue.” Note: this can only be done through legislative action.

• This does not take into account the increase in residential, commercial, and industrial notifications because of the lower fees.

• Higher fees for larger projects above 5,000 SF will max out at the current $2,000 fee at 1,000 SF.

• Memos of support have come from Unshackle Upstate, NFIB, Manhattan Chamber of Commerce, Broome County Chamber of Commerce, Southern Tier Builders Association, Rochester Builders Exchange, Associated Building Contractors of the Triple Cities, Syracuse Builders Exchange, Northern New York Builders Exchange, Building Industry Employers and the Broome County Realtors Association.

Tom Meade, the Executive Director of the Professional Abatement Contractors of New York (PACNY), has been working on these bills for sometime now.  To support these bills contact us at angelo3@futureenv.com or Mr Meade at tmeade@stny.rr.com and we will provide you with the information needed including a sample letter created by Mr. Meade.  The sooner these letters of support can be sent to the sponsors the better as we would like this to become a part of the Governor's budget.  If you have any questions feel free to contact Mr. Meade at tmeade@stny.rr.com.

Metro-NY AIHA Meeting on Vermiculite, Part 2.

As we discussed in our previous post we attended the Metro New York (Metro-NY) American Industrial Hygiene Association (AIHA) chapter meeting on September 9, 2013.  This meeting was on the "New York State Asbestos & Vermiculite Analysis Guidance Update" it was presented in two parts, part one by Robert J. DeMalo, Senior Vice President of Lab. Services & Business Development and part two by Edward Cahill, Vice President of Asbesto, both from EMSL Analytical, Inc.  For pictures from the event visit Metro NY AIHA web album and for copies of EMSL's powerpoint presentation visit Metro-NY AIHA Meetings website for the Part 1 Handout and the Part 2 Handout.  Our previous post discussed part one of the presentation.  This post we will discuss part two, which was on the "Analytical Challenges of Vermiculite Containing Materials".

The second part of the presentation was significantly more complicated than the first part.  This does not mean the first part was not valuable, we are trying to indicate the second part really got into some of the details of analyzing the minerals utilizing polarized light microscopes, the quantitation of the samples, and additional methods of analysis including advantages and disadvantages (enough big words for everyone).

The second presentation started with a discussion of the new NYS DOH Guidance letter regarding the analysis of vermiculite containing materials (VCM).  We discussed this issue in our Blog on 7/21/13.  The big issue is the disclaimer being placed on the results and what is the best course of action for results that indicate greater than 10% vermiculite and less than or equal to 1% asbestos with the disclaimer.  

To understand the problems with analysis Mr. Cahill’s presentation showed us that vermiculite comes in three types – large (light), medium, & fine (dark).  See figure below:

As you can see the material is varying levels of “chunkiness”.  According to EMSL, when picking through the sample rice grain sized asbestos chunks can sometimes be detected visually.  However, the absence of these chunks does not mean the sample is asbestos free.  The polarized light microscope (PLM) methodology is strong for identification, while quantification is weak.  The PLM analysis is only as good as the prep (especially for point counting).  The sample must be uniform, random, & a monolayer (the height of a particle size prevents a nice monolayer).   Based on this information the problems regarding vermiculite analysis are:

• Particle size prohibits making a proper slide mount.
• Asbestos not always homogeneous within the sample
• Asbestos can be locked between plates & therefore not easily detected
• Non-regulated Libby Amphiboles are present.

The discussion then turned to other methods of analysis, noting that monokote fireproofing has removable matrix.  Methods with matrix removal include:

·         EPA (600) PLM NOB

·         EPA (600) TEM NOB

·         NYS ELAP 198.6 (PLM)

·         NYS ELAP 198.4 (TEM)

·         Chatfield SOP (TEM)

At this point, the preferred NYS ELAP method is 198.6, but that means you get the disclaimer on your results.  EMSL’s presentation discussed 4 different approaches of what to do regarding VCM, these approaches are:

1. Cancel or delay asbestos surveys if possible until final regulations are in place.
2. If initial analysis determines vermiculite content >10% they are stopping.  The material is treated as ACM.
3. If 198.1 analysis determines vermiculite content >10% proceed to 198.6 to determine the asbestos percentage.  Materials are classified as ACM or non-ACM accordingly, disclaimer is tolerated.
4. Approach 2 or 3 are followed for regulatory compliance and then various additional prep and analysis steps are requested.  Transmission Electron Microscopy (TEM) analysis is typically a part of this process to demonstrate “Best Available Technology”.

Options available for Approach 4 are:

• Cincinnati Method – vermiculite separated into fractions, floating, sinks, & suspended fractions.  Analysis is by a combination PLM/TEM
• CARB (CA Air Resource Board) 435 Method – Sample is milled, followed by a PLM point count
• EPA 600 Milling followed by PLM/EPA 600 Milling followed by TEM analysis – Can break out of mass percent with & without the contribution of Libby amphiboles
• ASTM TEM Qualitative Method – excellent fiber ID but no quantification
• Addison Davies Method – remove vermiculite prior analysis

We learned a lot in this seminar regarding different methodologies and the problems involved with analyzing vermiculite and VCM.  It will be interesting moving forward to see which direction the analysis of these materials goes.   Based on the presentation, the EPA 600 milling followed by TEM analysis sounds interesting and promising.  However, NYS ELAP or EPA will be making that decision and only time will tell.

Related articles

• Metro-NY AIHA Meeting on Vermiculite, Part 1
• The Dirtiest Word in Integration: V-E-R-M-I-C-U-L-I-T-E
• The Facts about Vermiculite!
• Vermiculite Attic Insulation and Its Influence on Authentic Estate Transactions

Metro-NY AIHA Meeting on Vermiculite, Part 1

We attended the Metro New York (Metro-NY) American Industrial Hygiene Association (AIHA) chapter meeting on September 9, 2013.  This meeting was on the "New York State Asbestos & Vermiculite Analysis Guidance Update" it was presented in two parts, part one by Robert J. DeMalo, Senior Vice President of Lab. Services & Business Development and part two by Edward Cahill, Vice President of Asbesto, both from EMSL Analytical, Inc.  For pictures from the event visit Metro NY AIHA web album and for copies of EMSL's powerpoint presentation visit Metro-NY AIHA Meetings website for the Part 1 Handout and the Part 2 Handout.

Sample Passed Around the During the Meeting

Some very interesting facts from the first part of the presentation included:

• The Libby mine was the source of an estimated 70-90% of all vermiculite sold in the US from 1919 to 1990.
• Veins of asbestos contaminated most, if not all of the material taken from the mine; Libby Amphibole was an accessory mineral."
• The Libby mine in 1926 opened up a vein of asbestos that is considered one of the largest deposits of asbestos ever uncovered.
• Regardless of the method used to analyze the material a mixture of regulated asbestos as well as non-regulated asbestos is likely to be encountered.
• "Libby Amphiboles" is a collective term for the complex mixture of amphiboles that are known to exist at the Libby mine site.  That mixture is Winchite (nonregulated amphibole); Richterite (nonregulated amphibole); and Tremolite (regulated amphibole).
• Increased mortality rates are observed not only among the miners and their families, even in citizens with no direct connection to the mine.  Mortality rates are 40 times higher than the rest of Montana and 60 times higher than the rest of the US.

Based on the above information it is clear that Libby Amphiboles are the problem and that the nonregulated amphibole portions of the vermiculite is also a problem.  According to the US Geological Survey, the amount of asbestiform amphiboles contaminating the Libby vermiculite as approximately 84% winchite, 11% richterite, and 6% tremolite (American Mineralogist; November 2003; v. 88; no. 11-12; p. 1955-1969).  The mortality rate indicates a need to regulate these amphiboles plus others minerals that we now typically call elongated mineral particles (see NIOSH website for more information regarding asbestos fibers and other elongated mineral particles).  In our next blog post we will discuss part two of the vermiculite meeting.

Related articles

• New Vermiculite Guidance Shifts Liability to Consultants & Owners
• The Facts about Vermiculite!
• Where Have You Been, Davey Boy?
• Baucus brings Medicare official to Libby, seeks fix for asbestos victims

NYSDOL Clarifies New Enforcement Tactics

New York State Comptroller Thomas P. DiNapoli in an audit of New York State Department of Labor's (NYSDOL) Asbestos Control Program revealed several issues which we discussed in our July 2, 2013 blogpost.  NYSDOL's response to the DiNapoli audit revealed several tactics that NYSDOL was currently using to ensure compliance and enforcement of the regulations.  The Professional Abatement Contractors of New York (PACNY) requested additional clarification of these tactics.  NYSDOL's response can be found at our Resources webpage on our website.  To sum up NYSDOL's response, they are cross-referencing all the information they get from notifications, survey reports, air sampling results, waste manifests, etc. to make sure they are being notified & the quantities are accurate.

Waste manifests are on of the tactics being used by NYSDOL

Based on NYSDOL response this cross-referencing tactic has led to several enforcement actions.  These include:  

• Air Monitoring Data has led to catching 2 contractors not notifying their project, 136 notices of violations for 18 contractors.
• Demolition Permit Data has led to catching 4 contractors not notifying their project, 28 notices of violations for 10 contractors.
• Site Specific Variances Data has led to catching 1 contractor not notifying their project, 2 notices of violations for 1 contractor.
• Two other lines of data Surveys & Waste Manifests have not found any violations.

We are glad to see NYSDOL at least checking the data they receive to ensure everything is being done correctly.  However, we still don't see how NYSDOL is going after those that do things totally illegally.  Still no sign of how they are attempting to catch those companies doing illegal abatements during emergencies, floor tiles, siding, & roofing projects.  Our suggestion would be to track the waste entering construction & demolition landfills to see if this will get you those that should be notifying.  In addition, accessing tax records may also indicate roofing, siding, floor, & emergency contractor's projects that would allow a targeting of records to determine illegal abatement activities.

Related articles

• New? NYS Education Department Asbestos Clearance Air Sampling Requirements
• New Vermiculite Guidance Shifts Liability to Consultants & Owners