Mayor Bloomberg Signs Legislation Impacting Asbestos Projects in NYC

On June 29, 2009, Mayor Bloomberg signed several pieces of legislation (introductory numbers 1001-A, 1002, 1003-A, 1005 & 1007) that will impact asbestos abatement projects in New York City (NYC). The legislation and what they regulate include:

• 1001-A - prohibits smoking on any floor where asbestos abatement activity is taking place. The regulation also prohibits tobacco, lighters, and matches at asbestos abatement work sites.


• 1002 - prohibits smoking at construction sites.


• 1003-A - establishes a permitting requirement for asbestos abatement jobs that pose the greatest risk to the safety of workers, first responders and the general public.


• 1003-A - a. creates a NYC Department of Environmental Protection (DEP) office (Asbestos Technical Review Unit (A-TRU)) to review and permit significant abatement projects.


• 1003-A - b. NYC Fire Department will receive automatic notification for all jobs requiring a permit and will dispatch the local fire company to inspect the site.


• 1003-A - c. authorizes the NYC Fire Department to delegate to the NYC DEP authority to enforce the fire codes at abatement sites, so that NYC DEP inspector can issue violations for dangerous conditions.


• 1005 - requires NYC DEP to promulgate rules giving guidance to contractors on how to maintain safe abatement project sites. NYC DEP, NYC Department of Building (NYC DOB), and Fire Department of NY (FDNY), in collaboration with the Office of Operations, have developed new rules that will soon be promulgated to strengthen safety at abatement jobs.


• 1007 - requires NYC DEP, FDNY, and NYC DOB to establish a procedure to share information regarding violations issued as a result of building inspections that meet agreed-upon criteria.

OSHA Issues Clarifications on PPE

Sorry for the long lead time on this issue. However, this issue seems like it should be common sense. On December 12, 2008, OSHA published a final rule clarifying emloyers' duty to provide personal protective equipment (PPE) and train each employee. This rule revises the OSHA standards to clarify that, for employers to be in compliance, they must provide PPE and hazards training for each employee covered by the standards. Each employee not protected may be considered a separate violation and penalties assessed accordingly. The revison is consistent with language in other standards for which per-employee citatiuons have been upheld.

In addition, realize by May 15, 2008, OSHA also required all employers to provide PPE at no cost to their employees (the employer must pay for the PPE). These requirements addressed many kinds of PPE, such as: hard hats, gloves, goggles, safety shoes, safety glasses, welding helmets and goggles, faceshields, chemical protective equipment, fall protection equipment, and other types of safety equipment. Certain safety equipment were excluded from the provision of employer payment of PPE, these excluded items are certain safety-toe shoes and boots, prescription safety eyewear, and logging boots. OSHA considers these three items personal in nature, are used from jobsite to jobsite (employer to employer), and are typically used off the jobsite.

Proposed Settlement Regarding Asbestos in CSI Toy

A nationwide class action against CBS Broadcasting, Inc. and major toy retailers, if approved, would give cash refunds to consumers and effectively implement a nationwide recall of toy science kits, based on the popular "CSI" television drama series. Click on the title to see the press release. To request a claim form visit www.csitoyssettlement.com. The class action covered two toy kits "The CSI: Crime Scene Investigation Fingerprint Examination Kit (CSI Exam Kit)" and "The CSI: Crime Scene Investigation Forensic Lab Kit (CSI Lab Kit)." Both toys were made by now-bankrupt Planet Toys, Inc. The Asbestos Disease Awareness Organization conducted tests in 2007 on the white fingerprint powder in the toy kits and found tremolite asbestos. Consumers seeking refunds must submit claim form to a claims administrator by January 14, 2010.

Prevent Mold From Growing During Rainfalls

In the last few months we have seen significant rainfall in the northeast. This rainfall is causing some minor problems with our plants and grass (how many times are we going to have to cut the grass this year?). These problems are a nuisance; however they are easily resolved with very little expense. When this rainfall enters our homes or business establishments, these problems can lead to some significant costs for repairs and if we ignore the problems then mold can grow. We have seen previously several articles, when the rainfall was previously significant and it intruded into buildings, regarding tenants or occupants having to move or close their businesses because of the water damage to property or equipment. To prevent this from happening in this current period of significant rainfall, remember the following tips from the Environmental Protection Agency (EPA):

• Fix all leaks in the building envelope (i.e., roof leaks, foundation cracks)
• Look for condensation and wet spots, fix the cause and dry these areas quickly
• Prevent condensation by either reducing surface temperature (by insulating or increasing air circulation) or reducing moisture level in air. Reduce moisture levels by either increasing ventilation (if outside air is cold and dry) or dehumidify (if outdoor air is warm and humid).
• Keep heating, ventilation, and air conditioning (HVAC) drip pans clean, flowing properly, and unobstructed.
• Clean and dry wet or damp spots within 48 hours
• Do not let foundations stay wet. Provide drainage and slope the ground away from the foundation.
• Any water damaged materials that remain wet for more than 48 hours should be disposed of or hire a water restoration expert to handle the situation.
• If you have significant water damage, contact your insurance company immediately.
• Many insurance companies exclude mold growth in their policies. The sooner you notify the insurance company of your claim, excluding your claim becomes less of likely.

Handling Vermiculite Insulation for Building Inspections and Air Monitoring

The Environmental Protection Agency’s (EPA) recent decision to declare a public health emergency at the Libby asbestos site in Montana has brought vermiculite insulation back in front of people’s minds. EPA’s announcement did not mention what to do if you have this type of insulation. Remember there are some major issues with this type of insulation. First it seems the vermiculite can actually hide the tremolite asbestos from detection, leading to false results. When individuals disturb the vermiculite insulation it can release tremolite asbestos at significant levels into the air.

Because of these technical issues EPA and the Agency for Toxic Substances and Disease Registry (ATSDR) both recommend that if you find vermiculite insulation that you not test it for asbestos. Instead they recommend you assume the vermiculite insulation is from Libby and assume it contains asbestos. The Libby mine was the source for over 70% of the vermiculite sold in the United States from 1919 to 1990. EPA and ATSDR feel that the technical issues involving vermiculite sampling can complicate testing for the presence of asbestos fibers and interpreting the risk from exposure. This is a significant statement and interesting that it has not been published more.

Based on this, as an asbestos inspector, environmental inspector, home inspector, and/or air quality consultant, you must evaluate vermiculite insulation as containing asbestos (without sampling). In addition, you must inform the owner that sampling the material will not provide a definitive answer. EPA and ATSDR both recommend that professional asbestos abatement contractors handle any disturbance of the vermiculite insulation. The best practice for air monitoring and analysis of these projects, for the protection of the public, is Transmission Electron Microscopy. As these issues are not well known, even in the asbestos industry, it is important for owners to be aware of this potential problem and take the precautions necessary.

Public Health Emergency Declared in Libby, Montana

As with everyone else who is aware of this tragedy we applaud the Environmental Protection Agency’s decision on June 17, 2009 to declare that a public health emergency exits at the Libby asbestos site (vermiculite mine contaminated with tremolite asbestos) in northwest Montana. The New York Times, Newsday and other newspapers covered this press release and the Asbestos Disease Awareness Organization issued their own release covering this issue. The documentary film “Dust to Dust” directed by Michael Brown told the Libby story (we have watched this film in some of our classes). As the press release indicates, this announcement, which is long overdue, will provide funds for the continued clean-up of the contaminated areas in the towns of Libby and Troy. In addition, the Department of Health and Human Services will provide grant money to provide medical care for the area residents impacted by the contamination.

Different Regulations for Different States on Asbestos-Cement Pipe

One of our regular clients, during a class, provided us with a copy of the article linked to the title above. The title of the article is “End of the Line” by Kent Von Aspern, P.E. Public Works magazine published this article in March 2009. One of the first things we need to note about the article is that the author works in Northern California and we should not take this article as the requirements for every state. Each state may and can handle asbestos in their state differently. For example, the New York State Department of Labor under Industrial Code Rule 56 regulates asbestos cement or transite pipe. Under this regulation, only licensed companies (even a sewage or water district or Department of Public Works are required to be licensed to handle asbestos) can handle any quantity of asbestos containing material (ACM). In addition, only workers/employees certified by NYSDOL as operations and maintenance, handlers, or supervisors can handle ACM. The size projects handled by the workers would dictate which certificate the workers are required to have. NYSDOL does not stop at just licensing and certification requirements it also dictates the work procedures. Under the Guidance Document version 2.0, question 237 indicates the work procedures for cement/transite pipe. It indicates that abandoned asbestos containing cement/transite pipe cannot remain in the trench. According to ICR56 buried asbestos cement or transite pipe must be removed and disposed of in accordance with the Environmental Protection Agency’s (EPA) National Emission Standards for Hazardous Air Pollutants (NESHAPS) regulation as Category II nonfriable asbestos containing material and under New York State Department of Environmental Conservation’s (NYS DEC) asbestos waste regulations. Remember when you read information on the internet or in national magazines or industry publications it is difficult for one author to know all the requirements in each state. Many times the author is writing specifically of experiences they have in their state. That experience many times may not apply in a different state or states.