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.

PACNY's 2022 25th Annual Environmental Conference is Back! Part Two.

After the lunch break at the Turning Stone Resort & Casino in Verona, New York, the Professional Abatement Contractors of New York's (PACNY's) 25th Annual Environmental Conference continued for the rest of the day on Thursday, March 3, 2022, and into the next day Friday, March 4, 2022.   

Ms. Elizabeth Kirkland, Senior Industrial Hygienist of New York State Department of Labor's (NYSDOL's) Asbestos Control Bureau

The conference continued with Ms. Elizabeth Kirkland, Senior Industrial Hygienist of New York State Department of Labor's (NYSDOL's) Asbestos Control Bureau (ACB), her presentation was on "Industrial Code Rule 56 Deficiencies: Common NYSDOL Inspector Observations."  Her presentation was entertaining and eye-opening on the common deficiencies she found when performing inspections at asbestos abatement project sites.   The next presentation was Mr. Kevin Hutton, President & CEO of EAST Centers of NY, LLC, presenting on “Mold Work Practices: Should, Shall, Must, Recommended, Required?” His presentation discussed the difference between the Environmental Protection Agency (EPA) mold guidelines and similar guidelines, versus the Institute for Inspection Cleaning and Restoration Certification (IICRC) S520 Standard. It seemed to be a plug for the IICRC S520 standard.  

Panel Discussion on the Value of Sampling in Post Remediation Verification

After a break in the Exhibitor Hall, the last presentation was a panel discussion on mold regarding the “Value of Sampling in Post Remediation Verification”.   The panel consisted of Brian King, President of HSE Consulting Services, LLC, Jack Springston, Industrial Hygiene Services Manager and Training Director of Atlas Technical, and Russel Vent, General Manager of Paul Davis Restoration of Greater Rochester, NY with Kevin Hutton posing the questions for the panelists.  The panelists did a great job responding to the questions and giving excellent answers, Russel Vent's questions resulted in very interesting discussions regarding post-remediation verification.  As in the past, the first-day presentations ended with the Vendor Reception in the Exhibitor Hall with pass-around food, hors d’oeuvres, and an open bar (see video below).

Friday, March 4, 2022, started with Kevin Hutton's, again, and Mary Anne Kaputa's, President and CEO of Adirondack Operations, LLC, presentation on "The Changing Role of the NYS Project Monitor."  The presentation highlighted the expansion of the NYS project monitor role in asbestos abatement projects including knowledge regarding waste disposal and Occupational Safety and Health Administration (OSHA) regulations, other than asbestos.  The major question from this presentation was "what is the actual role of the project monitor?"  This question has been bouncing around the industry for over 35 years.  We remember discussing this very question with Mr. Brendan Broderick of J.C. Broderick & Associates and Mr. Rich Maniscalco of Jet Environmental Testing, Inc., many years ago.  The reality of this question is that our clients decide what that role is.  If the client develops a scope of services required or we provide our clients with a scope of services offered, this is what decides the role of the project monitor.  For example, if we develop a scope of services offered and we say we are not responsible for OSHA regulations other than asbestos, well that tells the client the role of the project monitor.  The client then must decide if that is what they want and if they are willing to pay for that scope of services.

Mary Anne Kaputa, President and CEO of Adirondack Operations, LLC

After a short break, the final presentation was the NYSDOL Roundtable with Questions & Answers Session which included:  Ms. Amy Phillips, the Director of the NYSDOL ACB Program; Mr. Edward Smith, P.E., Program Manager of the NYSDOL Engineering Services Unit; Mr. Kirk Fisher, new Program Manager of NYSDOL ACB & Enforcement; & Paul Demick, Associate Safety & Health Inspector representing the NYSDOL Licensing & Certification Unit.

Ed Smith, Paul Demick, Kirk Fisher, & Amy Phillips, the NYSDOL Roundtable.

Mr. Ed Smith, P.E. mentioned that a wrap and cut Applicable Variance was imminent.  In addition, when filing a variance application only the application and the check need to be mailed.  The supporting documentation can be sent by email.  Many of the questions during the Q&A were related to hard cards, licenses, delays in processing applications, and violations.  The conference ended with the usual networking lunch.  It was a good beginning to bringing back the PACNY Environmental Conference and look forward to a more diverse conference next year.