Proposed Changes to Title 15 by NYC Department of Environmental Protection: A Summary

The New York City Department of Environmental Protection (NYC DEP) has introduced proposed amendments to Chapter 1 of Title 15 of the Rules of the City of New York, aimed at clarifying procedures, improving safety standards, and addressing issues raised by the regulated community. NYC DEP is holding a public hearing on the proposed rule.  The hearing will take place on September 25, 2024 at 11:00 AM.  The hearing will be conducted by video conference (click here for more information).  These changes focus primarily on asbestos control and are designed to streamline processes and address specific concerns about project management, record-keeping, and compliance (or in other words where the regulated community has beaten NYC DEP at the NYC Office of Administrative Tribunals and Hearings (OATH)). Below is a summary of the most significant proposed changes:

State-Certified Asbestos Inspector must be supervised by physically present CAIs

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Key Definitions and Clarifications

• ARTS E-File: This web-based system is used by applicants to submit and manage asbestos project notifications, variances, permits, and related documents (including amending these documents). The definition has been clarified to reflect its role in the filing process.
• Asbestos Assessment Report: The "Form ACP-5" now has a clearer definition, ensuring that asbestos investigators accurately report the presence (or absence) of asbestos-containing materials (ACM) even if those materials will not be disturbed by construction activity.
• Physically Present: A new definition specifying that an individual, such as a certified asbestos investigator (CAI), must be physically on-site during asbestos surveys or project oversight. Virtual supervision is not permitted.

Variance Applications and Procedures

• The NYC DEP is proposing updates to how variance applications are handled, particularly for projects involving Section 1-22(b), which requires certification by the NYC Department of Buildings (DOB). New procedures ensure that work cannot start without the NYC DEP’s approval, preventing confusion and improving coordination between variance and non-variance work.  In addition, it creates a Form V2 and Form V5 both forms are required to be posted at the workplace.
• A new fee category has been created for variance applications related to notifications, permits, and recordkeeping, addressing a previous gap in the rules.

Transition to Digital Certificates

• The NYC DEP is preparing for a shift from plastic certificates to digital or electronic alternatives. These certificates will be issued to asbestos investigators, contractors, and workers, making the process more efficient and environmentally friendly.

On-Site Presence, Supervision, and Recordkeeping for CAIs

• Certified asbestos investigators (CAIs) must now be physically present while non-CAI assistants perform survey work.  Not only present but must be there for the duration of the survey. It has always been NYC DEP's intent that CAI be present onsite during the asbestos survey.  This just makes even more clear, that supervision cannot be from a distance or virtually.
• The rules clarify that both CAIs and State-certified asbestos inspectors can perform bulk sampling, provided that a CAI is physically present to supervise. 
• Recordkeeping clarifications that each requirement for recordkeeping must be satisfied independently.  In addition, the removal of "written description" from blueprint, diagram, or drawing section.  The addition, to this section exact location and type of material where bulk samples were collected or assumed to be ACM.  The survey report must now include the scope of work and information regarding non-certified individuals, along with a description of the activities they engaged in.  Chain of custodies must be prepared in accordance with Environmental Protection Agency (EPA) recording requirements (QA Handbook Volume II Section 8.00).

EPA Chain of Custody

Work Place Safety Plan (WPSP) Updates

• Proposed updates to the Work Place Safety Plan (WPSP) removing the requirement to list non-asbestos contractors and introduce a new requirement: an Occupant Protection Plan. This plan is required if the asbestos project is being performed in a building where both asbestos abatement workers and non-asbestos abatement workers are working at any time during the permitted project.

Record-Keeping and Inspection Procedures

• Clarifications have been made to improve how final inspection and other records are stored, with a specific focus on protecting records from water damage. Contractors, Design professionals, etc. must now report any damage to DEP, ensuring that vital documentation is preserved.

Air Monitoring and Abatement Requirements

• A new section has been added to prohibit abatement work from being performed without air monitoring, reinforcing safety measures to protect both workers and building occupants.  The air monitor must be physically present at the workplace and air monitoring is being conducted.
• New air monitoring requirement for areas where a negative air duct has become damaged.
• Visual inspection prior to clearance must be documented in the project air sampling log, along with the inspection required for the A-TR1 final inspection report.
• Abrasive removal methods, including the use of grinder and beadblasters, are prohibited.

Emergency Projects and Variances

• Emergency asbestos removal projects may now be exempt from certain requirements, streamlining the process to address hazardous situations more efficiently.
• Clarification of what must be filed with the emergency notification.

Project Closeout and Final Forms

• The ACP15 and A-TR1 forms must be submitted to DEP within 21 days of project completion. Failure to comply may result in suspension of a contractor or air monitor's ARTS E-File account. This aims to ensure timely submission and project closeout, reducing delays.

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Conclusion

The some of the proposed changes to Title 15 are a step toward increasing safety, clarity, and efficiency in asbestos project management in New York City.  With these amendments, NYC DEP is addressing issues brought up by the regulated community, improving procedural transparency (in other words, closing loopholes), and paving the way for digital record-keeping and certification. 

Some of these updates highlight a commitment to worker and occupant safety, streamlined compliance processes, and clearer guidelines for asbestos professionals.  However, no changes to the air sampling requirements show that they are still in the dark ages for the need to switch to electron microscopic analysis of air samples for clearance.

Re-Post of our 20 Year Anniversary of 9/11, 10-Year Anniversary of the World Trade Center Health Program. Lesson Learned?

On September 11, 2001, Future Environment Designs (FEDTC) was teaching an asbestos supervisor refresher and an asbestos inspector initial course at the Underhill Blvd. Syosset office.  We were some of the fortunate individuals who were not in New York City when terrorists hijacked airplanes and proceeded to fly them into the World Trade Centers (WTC), the Pentagon, and crashed another in Pennsylvania.  On that day hundreds of thousands of people were exposed to a massive cloud of toxic gases and particulates from the terrorist attack on the WTC.  Significant failings by the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) led to tens of thousands of people who participated in the ensuing rescue, recovery, and clean-up efforts being exposed to the WTC toxic dust.  Nearly a half million people are estimated to be at increased risk of adverse health effects from exposures to physical, psychological, and emotional stressors in the days, weeks, and months following the terrorist attacks.  This year we honor their sacrifice on the 20th Anniversary of the attack on the World Trade Center.  On January 2, 2011, the James Zadroga 9/11 Health and Compensation Act of 2012 (the Zadroga Act) created the World Trade Center Health Program (WTCHP).  The WTCHP is administered by the director of the National Institute for Occupational Safety and Health (NIOSH).  So this year is also the 10th Anniversary of the WTCHP.  

We have no intention of changing our logo which depicts the NYC skyline with the WTC.

The WTCHP provides medical monitoring and treatment of covered health conditions for emergency responders, survivors, recovery and cleanup workers, and volunteers who helped at the WTC, the Pentagon, and the crash site near Shanksville, Pennsylvania, and maintains a research program aimed to improve the care and well-being of the affected population.  The WTCHP serves four groups of people affected by the 9/11 attacks:

• Fire Department of New York Responders,
• World Trade Center General Responders,
• World Trade Center Survivors (lived, worked, or went to school in NYC Disaster Area), and
• Pentagon/Shanksville Responders

From Express - 9/11 firefighters still Dying 20 years on - Devastating graph exposes the harrowing impact

As of December 31, 2020, 108,666 individuals have enrolled in WTCHP.  The ten most common certified conditions are:

• Chronic Rhinosinusitis
• Gastroesophageal Reflux Disease (GERD)
• Cancers
• Asthma
• Sleep Apnea
• Post-Traumatic Stress Disorder (PTSD)
• Chronic Respiratory Disorder - Fumes/Vapors
• WTC-Exacerbated Chronic Obstructive Pulmonary Disease (COPD)
• Anxiety Disorder (Not otherwise specified)
• Major Depressive Disorder

As the years go by, it will be interesting to see if this list changes.  In FEDTC's asbestos training courses, we discuss the latency period for asbestos-related diseases (asbestosis, lung cancer, and mesothelioma) are 10-50 years from the date of the first exposure.  In the next 5-10 years we will hit the beginning of the latency period for lung cancer and mesothelioma.  Currently, cancers only account for about 13% of WTCHP certified conditions with non-melanoma skin cancer (27%) and prostate cancer (21%) being the top two cancers.  Comparison studies indicate that prostate and thyroid cancer are elevated compared to other groups (without WTC toxic dust exposure). Other excess cancers at this time include bladder cancer, malignant melanoma, multiple myeloma, leukemia, and non-Hodgkin lymphoma.

It was published after the completion of the rescue, recovery, and clean-up efforts that there were no fatalities.  However, that isn't quite correct since we are seeing rescue, recovery, and clean-up workers dying from their exposure to the WTC toxic dust.  It is good to see that what occurred during the rescue, recovery, and clean-up at the WTC was not repeated at the recent rescue, recovery, and clean-up efforts at the Miami condo collapse.  As the picture below, from The Guardian, shows, rescue crews are wearing respirators to protect them from the potentially toxic dust from the collapse of that building.  If this is the lesson learned from the WTC tragedy, it was a hard lesson but one that will protect workers in other rescues, recoveries, and clean-ups in the future.  

 

The Guardian

Miami condo collapse: death toll rises to nine as crews search pile for survivors | Miami condo collapse | The Guardian

Future Environment Designs Celebrates Labor Day by Remembering Those Who Made Sacrifices!

 Future Environment Designs (FEDTC) wishes everyone a Happy Labor Day weekend!  We hope everyone takes the time to remember that today we are celebrating the contributions of the labor movement to the development and achievements of the United States of America (USA).  Many workers have sacrificed their lives in making these achievements.  On average, almost 100 workers are killed every week in the United States due to traumatic injuries suffered at work. Over 20 times as many die from occupational diseases, many due to exposure to hazardous substances many years before they died (for example, asbestos, silica, and coal dust) or from COVID-19 acquired at work.  It is important to remember those who made these sacrifices while working on the job.  These sacrifices also cost businesses profitability and increase workmen's compensation costs.  The Occupational Safety and Health Administration (OSHA) has created a tool to show the impact different types of injuries cost businesses.  

The United States Labor Department has produced a video to remember the history behind the creation of Labor Day.  Future Environment Designs hopes as we enjoy this weekend, we remember the importance and the sacrifices each of us makes to keep achieving and developing the USA, and even more importantly we remember solidarity, the sense that each of us should look out for the interests of all!

Sellers Required to fill out NYS Property Condition Disclosure Form by Chuck Merritt, President/LEED AP of Merritt Environmental Consulting Corp.

In March of 2024, New York State started to require the sellers of residential homes to fill out a “Property Condition Disclosure Statement” form.  Prior to the passage of the law, sellers could provide a $500 credit to the buyer and circumvent disclosing any “issues” that they were aware of.  The issues could range from past floods that may occurred to structural defects the seller may be aware of.  The new form has 56 questions of which 17 are environmental in nature ranging from knowledge of oil tanks (buried or above ground) to questions about the property being located in an agriculture district or designated wetlands. Each question is followed by a yes, no, unknown or not applicable box to check. 

Above Ground Storage Tank

The knee jerk reaction from many home owners I have interviewed was to just check 56 boxes as unknown. However, as the questions become more important to what a seller may or may not know, buyers (and their attorneys) may become uneasy with that approach.  Considering how prone areas of Long Island are to coastal flooding, checking unknown for this question will be a red flag to a buyer.  Checking one’s insurance policy could be an easy way to determine the yes or no box that will demonstrate a more transparent and cooperative effort. Questions about “known” material defects regarding structural systems, footings, beams, girders, lintels columns or partitions may very well be an unknown by the current home owner.  Considering most are not engineers and have lived in a home for many years with no problems, checking unknown may be appropriate.  Most buyers are still going to hire a home inspector to provide some due diligence to them as well.  When I meet with homeowners, they immediately tell me they know everything about the house because they have lived there for so many years.  By the time we go through the form together, they realize there are some questions on the form they don’t have any knowledge about. Not everyone knows the difference between fuses or circuit breakers in the electric panel.  That is one of the 56 questions.  My guess is most homeowners can answer 75% of the questions with a bit of leg work. Finding out the year of construction and school district (yup that is a question) do not take much effort.  

 

Legal Ramifications

 

Since the law is less than six (6) months old, the legal ramifications are still unfolding.  Can a new homeowner sue the seller for false or incorrect information on the property disclosure form?  Perhaps, but how long after buying the home and discovering the defect would that be considered appropriate?  There is no case law on this just yet. However, suing a seller several months or years after discovering the defect is discovered may be difficult.  Will attorneys want to take on these cases?  Will the fee be a portion of what they win for their clients, or will an attorney require a retainer for their services to take on the case?  For example, a defective patio or deck that may cost $20,000 to repair.  This is too big of an amount for small claims court that caps the amount one can sue for at $5,000.  Would an attorney want to take on the case for a portion of $20,000 or will they require a $5,000-$7,000 (or greater amount) retainer and then bill for additional time needed on the case.  Will the plaintiff be made whole after paying attorney fees?

 

Who Can Help With The Form

 

Real Estate agents are not supposed to be involved in the process for a variety of reasons.  Lawyers don’t typically know too much about the house they are drawing up a contract of sale on to get involved.  The time required may not be worth it to them considering their hourly billing rates.  Many I have spoken with do not want to tread into the areas like “wetland designations” as they can carry liability for being wrong.  Home inspectors have typically represented buyers and advocated for them as part of the due diligence before going to contract. Homeowners should look to see if they have such a report when they purchased the house as it may contain some of the information being asked in the property condition disclosure form. Being involved in real estate of all sizes and types for over 30 years, I have knowledge on most of the questions (especially the 17 environmental ones) and know where to find 95% of the other answers. Merritt Environmental Consulting Corp. (MECC) has developed a price point of $695 to provide a short report that the seller can use in answering the form and provide to the buyer for informational purposes. This will alleviate the concerns a buyer may have with 56 “I don’t know” boxes checked. 

Considering sellers once willingly gave a $500 credit to avoid answering such questions, the additional $195 should be money well spent. The form will be the responsibility of the seller as they must sign it, but having an advocate to assist and provide a report the buyer can have some comfort with, may be considered a good value to many.

Bio: MerrittEnvironmental Consulting Corporation (MECC) was formed in June of 2009, under the direction of Chuck Merritt who has been assisting lending institutions, insurance companies, attorneys, property owners and real estate investors for over two (2) decades. Our primary service is determining if legacy environmental issues exist at a property.

MECC located in Hauppauge which received a LEED Gold Certification in September of 2023 in addition, the firm has satellite offices in Florida and Vermont.  Chuck is a recognized expert in the field of environmental consulting and the Long Island Business News (LIBN) named Chuck a “Who’s Who in Engineering and Environmental Consulting” in 2007, 2013, and 2015.  Chuck is an Environmental Professional (EP) as defined by the ASTM governing body and a LEED (Leadership in Energy & Environmental Design) accredited professional (AP) issued by the United States Green Building Council (USGBC). 

Day Two of PACNY's 27th Annual Environmental Conference: Key Updates and Interactive Sessions, Part Two

The second day of the 27th Annual Environmental Conference hosted by the Professional Abatement Contractors of New York (PACNY) at Turning Stone Casino continued to deliver valuable insights and critical updates for industry professionals. As a Sapphire Sponsor, Future Environment Designs, Inc. was proud to be part of this informative and engaging event.

Long Island Contingent - Matthew Brooks, IAR and Chuck Merritt, Merritt Environmental Consulting

State of PACNY: Leadership Insights and Organizational Updates

The day began with an address from Kevin Hutton, PACNY President, and Craig Kaputa, PACNY Past President, who provided an overview of the state of PACNY. Their presentation highlighted the organization's accomplishments over the past year, ongoing initiatives, and future goals. The duo emphasized PACNY's commitment to advancing industry standards and supporting its members through education, advocacy, and networking opportunities.  Angelo Garcia, III was honored by receiving the PACNY's President Award for his efforts in handling the LinkedIn postings for the conference, sitting on the conference planning committee, and participating as a Board Member. 

Kevin Hutton, PACNY President and Craig Kaputa, PACNY Past President Awarding Angelo Garcia, III the President's Award

Interactive Keynote: Navigating an OSHA Inspection

The keynote speaker, Mike Rubin of Ogletree Deakins, delivered an impactful and interactive session, "An Interactive Walk Through an OSHA Inspection." Rubin's presentation was a deep dive into the intricacies of handling OSHA inspections, focusing on key points that every employer must know:

• Know Your Rights: Employers should be well-versed in their rights during an OSHA inspection to ensure they are adequately prepared.
• Scope of Inspection: It is crucial to verify that OSHA's requests are within the scope of the inspection to avoid unnecessary overreach.
• Cooperate But Be Informed: While cooperation with OSHA inspectors is essential, employers should remain informed and vigilant about their rights and obligations.
• Document Requests in Writing: Employers should always request that OSHA put their document requests in writing to maintain clear and accurate records.

Rubin's interactive approach, including role-playing scenarios, allowed attendees to gain practical knowledge and confidence in managing real-life OSHA inspections.

Keynote Speaker Michael Rubin of Ogletree Deakins

Vendor Exhibition and Networking: Engaging with Industry Leaders

Following Rubin's session, attendees had the opportunity to network and explore the vendor exhibition hall during the final coffee break. The exhibition hall was bustling with activity as professionals connected with vendors, discovered the latest industry products, and shared experiences and insights.

Vendor Exhibit Hall

NYSDOL Presentations: Streamlining Processes and Introducing New Capabilities

The late morning session featured a series of presentations from key representatives of the New York State Department of Labor (NYSDOL) Asbestos Control Bureau.  Matthew Robinson-Loffler, Deputy Director of the Division of Safety and Health, began by highlighting improvements in the licensing process for asbestos and mold professionals. He noted that filing applications through the MPWR website ensures that paperwork is handled by department personnel within 24 hours, significantly speeding up the turnaround time for obtaining licenses and certificates.

Matthew Robinson-Loffler - NYSDOL Deputy Director of Division of Safety and Health

The most significant announcement from NYSDOL was the introduction of online variance filing through the MPWR website. Chek Beng Ng, Program Manager of the Engineering Services Unit, provided a detailed walkthrough of the new variance filing process. He demonstrated how to navigate the system and submit variance requests efficiently. Chek Beng Ng also addressed numerous questions from attendees, clarifying various aspects of the process. It was evident that while the new online system is a work in progress, it represents a significant step towards streamlining administrative procedures.

Chek Beng Ng, NYSDOL Program Manager of the Engineering Services Unit

Kirk Fisher, Program Manager of the Asbestos Control Bureau, concluded the NYSDOL presentations by reinforcing the importance of compliance.  This year we had one of the highest attendances from the different District Offices of NYSDOL's Asbestos Control Bureau.

NYSDOL Asbestos Control Bureau Attendees

Networking Lunch: Building Connections and Fostering Collaboration

The conference concluded with a networking lunch, offering attendees a final opportunity to engage with peers, discuss the day's insights, and establish new connections. The collaborative atmosphere fostered by PACNY's conference emphasized the importance of community and shared knowledge in advancing the environmental industry.

As we reflect on the second day of PACNY's 27th Annual Environmental Conference, it is clear that the event successfully provided valuable updates, practical knowledge, and opportunities for professional growth. Future Environment Designs, Inc. looks forward to continuing our involvement with PACNY and supporting the industry's ongoing efforts to enhance safety, compliance, and innovation.  We look forward to seeing everyone at the 28th Annual Environmental Conference on February 27th and 28th, 2025. 

PACNY's 27th Annual Environmental Conference: Insights and Innovations Unveiled at Turning Stone Casino, Part One.

Future Environment Designs, Inc. (FEDTC) was a proud Sapphire Sponsor at the 27th Annual Environmental Conference hosted by the Professional Abatement Contractors of New York (PACNY). Held at the illustrious Turning Stone Casino in Verona, New York, on February 15th and 16th, 2024, this two-day event was packed with enlightening presentations, industry updates, and valuable networking opportunities.

FEDTC's Booth at PACNY's Environmental Conference

Day One Highlights: A Deep Dive into Environmental Challenges

The conference kicked off with an array of expert speakers, setting the tone for an engaging and informative event. Ben Reich of Eurofins opened the sessions with his talk on "Interpretation of Laboratory Results: Complicated Considerations Challenging Mold Sample Reporting." Reich's detailed analysis shed light on the complexities of mold sample reporting, emphasizing the need for meticulous interpretation of laboratory results.

Ben Reich of Eurofins

Also opening the conference on the second track was Charles Merritt of Merritt Environmental Consulting Corp. who educated us with "PFAS: Primary Introduction, 'What is all the talk about?"  Merritt's comprehensive overview of PFAS (per- and poly-fluoroalkyl substances are a group of synthetic chemicals that have been used in consumer products and industrial processes since the 1940s) provided attendees with crucial knowledge on this emerging environmental concern.

Charles Merritt of Merritt Environmental Consulting Corp.

Brent Kynoch of the Environmental Information Association (EIA) followed on the first track with "Compliance Chronicles: Understanding Environmental Protection Agency (EPA) Lead Rules." His presentation provided a thorough overview of the current EPA lead regulations, helping attendees navigate the intricate compliance landscape.

Brent Kynoch of EIA

Lisa Rogers of Mycometer and Frank Ehrenfeld of Eurofins collaborated on "American Society of Testing Materials (ASTM) Standards: Reducing Risk and Adding Value for the Analytical, Environmental, and Occupational Health & Safety Professional." Their presentation highlighted the importance of ASTM standards in mitigating risks and enhancing value across various sectors, including analytical, environmental, and occupational health and safety.

Frank Ehrenfeld of Eurofins, and Lisa Rogers of Mycometer 

Jerrod Garrett from LeChase brought a practical perspective with "Safety by Design: The Crucial Role of Well-Considered Task Hazard Analysis." Garrett's insights into task hazard analysis underscored the importance of proactive safety measures in project planning and execution.

Jerrod Garrett from LeChase

The Fallacy of PCM Clearance: A Critical Examination

Just before lunch, we had the honor of presenting on a topic close to our heart: "The Fallacy of PCM Clearance."  Our presentation aimed to challenge the conventional reliance on Phase Contrast Microscopy (PCM) for clearance in asbestos abatement projects.  By highlighting PCM's limitations and potential inaccuracies, we advocated for more rigorous and reliable clearance methodologies, like the EPA's Asbestos Hazard Emergency Response Act (AHERA) Transmission Electron Microscopy (TEM) method.

Angelo Garcia, III of Future Environment Designs, Inc.

Addressing Disposal Challenges and Standards Updates

Also just before lunch, Jonathan Wagman, the Area Director of Industrial Sales for NY/NE Market for Waste Management, tackled a critical issue with "PCB Disposal: Identification and Disposal of PCB Contaminated Debris." Wagman's expertise in hazardous waste management offered valuable guidance on identifying and properly disposing of PCB-contaminated materials.

Jonathan Wagman of Waste Management

Cole Stanton, representing Sentinel Products, updated attendees on the latest "Institute of Inspection Cleaning and Restoration Certification (IICRC) standards" with his presentation. Stanton's discussion on standards in the restoration industry highlighted recent advancements and best practices, ensuring professionals stay abreast of current protocols.

Cole Stanton representing Sentinel Products

Engaging Panel Discussions and Safety Insights

Lunch and Networking Break

After lunch, the conference continued with the two tracks coming together for the PACNY Panel Discussion featuring insights from industry leaders including Jesse Scuderi of AEG, Angela Liddell of Paradigm, and Mike Waller of Lozier.  Kevin Hutton of EAST, acted as the moderator. Their dialogue on "Project Designers Discuss Variances and Project Design" offered diverse perspectives on tackling variances and optimizing project designs.

Jesse Scuderi of AEG, Mike Waller of Lozier, and Angela Liddell of Paradigm

After the Variances panel discussion, we returned to the two-track presentations.  The first track was the collaboration between Jeremy Starr of MSA and Jerrod Garrett of LeChase in "Elevating Safety: Unraveling the Importance of Fall Protection for Contractors and Consultants" which was particularly impactful. Their emphasis on fall protection underscored the critical need for comprehensive safety protocols in the construction and environmental sectors.

Jeremy Starr of MSA

Joel Hoomans from Livingston Associates discussing "Attracting and Retaining the Best Talent and Managing an Intergenerational Workforce" was in the second track.  Hoomans' strategies for workforce management resonated with many attendees facing challenges in talent retention and engagement.

Joel Hoomans of Livingston Associates

Finishing Day One and Heading Into Happy Hour

Elizabeth Kirkland of the New York State Department of Labor wrapped up the day's sessions with "Common DOL Inspector Observations." Kirkland's firsthand insights into frequent violations and inspection observations provided invaluable knowledge for ensuring compliance and avoiding penalties.

Elizabeth Kirkland of NYSDOL

At the Happy Hour, after day one of the conference, attendees further discussed and got better acquainted with the speakers, made new connections, met the conference sponsors, and left day one with a renewed commitment to advancing environmental practices. Stay tuned for our detailed coverage of the presentations and insights from the second day of PACNY's 27th Annual Environmental Conference!

The Fallacy of Asbestos Clearance Air Sampling, or 5 Reasons Why We Should Stop Using Phase Contrast Microscopy for Clearance.

The Environmental Protection Agency's (EPA's) Asbestos Hazard Emergency Response Act (AHERA) regulation introduced the requirement of clearance sampling after an asbestos abatement project was completed.  The AHERA regulation applies to schools from Kindergarten to 12th grade (K-12), both public and private schools.  However, for all intents and purposes, the AHERA method of clearance serves as the industry standard when final clearance is performed for most asbestos abatement projects, especially when areas are to be re-occupied.  The requirements for clearance are found in two sections of the rule:

• Response Actions; §763.90 (i)
• Appendix A (to Subpart E) - Interim Transmission Electron Microscopy Analytical Methods - Mandatory and NonMandatory - and Mandatory Section to Determine Completion of Response Actions

AHERA allows final clearance air sampling to be done by phase contrast microscopy (PCM) methodology for projects less than or equal to 160 square feet (SF) or 260 linear feet (LF) by the National Institute for Occupational Safety and Health (NIOSH) 7400 methodology (Issue 3: 14 June 2019 is the current issue).  For projects greater than 160 SF or 260 LF clearance shall be done by the AHERA transmission electron microscopy (TEM) method (requirements at 763.90 (i) (4) and Appendix A).  Since this article's purpose is to discuss why we should not be using the PCM method we will focus our discussion on this method specifically.  An important point to remember is that the method was designed for personal sampling of workers in environments with actual asbestos exposures.  AHERA adapted the method for clearance requiring that each sample must be less than or equal to a limit of quantitation (LOQ) for PCM of 0.01 fibers per cubic centimeter (f/cc).

Over the years, it has become abundantly clear that the PCM method should not be used for clearance sampling.  The top five reasons it should not be used for clearance sampling are:

Size of the Fibers Analyzed

The rules for the NIOSH 7400 method specifically require the microscopist to count only fibers that are greater than 5 micrometers (microns) length.  When it comes to diameter it is questionable whether fibers less than 0.25 microns in diameter can or cannot be detected by the method.  All other fiber lengths and narrow widths are not counted they are too thin with normal PCM resolution.  At the Professional Abatement Contractors of New York 2023 Environmental Conference, Lee Poye, Vice President Emeritus, Eurofins Built Environment, discussed his presentation "Asbestos in Human Tissue and the Environment - Does Size Matter?"

Lee Poye Presenting at PACNY 2023

According to his presentation, in an article titled "Short, Fine, and WHO Asbestos Fibers in the Lungs of Quebec Workers With an Asbestos-Related Disease" by G. Adib, F. Labreche, L. DeGuire, C. Dion, & A. Dufresne and published in the American Journal of Industrial Medicine in 2013 the type of fibers that are seen in diseased tissue are less than 5 microns and less than 0.25 microns in width.

 

Lee Poye Presenting at PACNY 2023

Mr. Lee Poye's own research (not published) found a similar finding see below.  Based on his presentation, we know that size does matter regarding diseased human tissue.  Mr. Poye's conclusion from his presentation were:

• What's the skinniest PCM fiber a "typical AMT" can see? 0.18 micron.
• Just how much chrysotile is missed by PCM? Almost ALL of it!
• What % of chrysotile fibers detected in human tissue would've been visible by PCM?  Maybe 2% to 3% at best!

Lee Poye's Own Research at PACNY 2023 

Considering between 98-99% of the chrysotile fibers that are seen in the tissue of diseased lungs are not seen by the PCM method.  Why are we using a method that does not detect the fibers that actually cause disease for clearance?

Is the Work Area Actually Clean?

In 2003, Applied Occupational and Environmental Hygiene published a study called "Asbestos Release During Removal of Resilient Floor Covering Materials by Recommended Work Practices of the Resilient Floor Covering Institute" by Marion Glenn Williams, Jr. and Robert N. Crossman, Jr. from the University of Texas Health Center at Tyler, Tyler Texas.  The major points from this study were:

• Asbestos used in flooring materials is Grade 7 - Shorts and Floats.  The dimensions of this material are very small and may not be resolvable by the Polarized Light Microscope (PLM).  This is why New York State Environmental Laboratory Approval Program (NYS ELAP) requires floor tiles to be analyzed as a nonfriable organically bound (NOB) material (analysis by PLM and if negative result for asbestos, then analysis by TEM).
• Many research studies have found the preponderance of fibers at autopsy left in lung tissue, pleural plaques, and lymph nodes of persons who have occupational asbestos exposure are shorter than 5 microns in length.
• The NIOSH 7402 TEM method is flawed because it underreports the amount of asbestos in the samples because it ignores all fibers less than or equal to 5 microns and all those fibers longer than 5 microns but less than 0.25 micron in diameter.
• AHERA TEM method counts for total asbestos structures per cubic centimeter averaged 22 times greater than the PCM fiber counts on the same filters.
• AHERA TEM asbestos concentrations obtained during mastic removal with a commercial mastic remover averaged 11 times higher than those measured when removal used amended water.
• The study also found that there was considerable amounts of asbestos dust settled on exposed surfaces during tile removal.  Indicating a need to thoroughly HEPA vacuum and wet clean surfaces or dust may remain that could be re-entrained by occupant activity.
• The study also indicates that workers in these areas, would not have to wear respirators, so anyone in these areas would have inhaled asbestos fibers or structures of respirable dimensions.

At the 2017 PACNY Environmental Conference a debate occurred about our call for TEM clearance sampling for all asbestos floor tile projects based on the above study.  This debate led to our writing the article Asbestos Floor Tile Debate Results Post and our article in Healthy Buildings.  Our major points were:

• When using the AHERA TEM method for clearance, what was the typical size of the fibers found?  The answers we got were 58.8% less than 5 microns; 29.4% of both sizes were equal amounts; and 11.8% greater than 5 microns.
• Have you ever encountered during asbestos flooring removal when utilizing both the NIOSH 7400 (PCM) & the AHERA (TEM) methods of analyses, that the NIOSH 7400 passed while the AHERA TEM method failed?  The answers we got were 52.6% yes, 36.8% no, and 10.5% never used both.
• AHERA TEM method counts for total asbestos structures per cubic centimeter averaged 22 times greater than the PCM fiber counts on the same filters.

• AHERA TEM asbestos concentrations obtained during mastic removal with a commercial mastic remover averaged 11 times higher than those measured when removal used amended water.

At the 2020 PACNY Environmental Conference – Jack Snider, III CSP LAC, GC of AMRC presented on Take-Home Asbestos Exposure. During the removal of floor tile, mastic, and other non-friable ACM, workers are typically wearing street clothes into the work area, and they are not showering nor vacuuming themselves/their clothing upon exiting the containment.  

Mr. Snider's presentation found workers performing floor tile projects had significant Take-Home Asbestos Exposure.  These points all bring up the question of whether the work area is actually clean when we use the PCM method.  Many building abatement projects are passing by PCM that would not pass clearance by TEM.  

Is 0.01 fibers/cubic centimeter (f/cc) Safe?

Well based on the World Health Organization (WHO), and the EPA there is no safe level of exposure.  If we look at how many asbestos fibers we are breathing in at 0.01 f/cc if we were making a moderate effort it would be approximately 100 asbestos fibers per minute or for an 8-hour day it would be 48,000 asbestos fibers.  If we look at the amount of asbestos fibers in a cubic foot of space it would be 283 asbestos fibers/CF.  So what is the risk at 0.01 f/cc?  In 2021, the Committee for Risk Assessment (RAC) prepared an expert opinion for the European Chemical Agency (ECHA) on the scientific evaluation of occupational exposure limits for asbestos. They have concluded that there is no “safe” level of asbestos exposure. Instead, they provided an exposure-risk relationship to express the excess risk of cancer at different levels of asbestos exposure.  According to the RAC, the risk of excess lifetime cancer risks is 12 cases per 100,000 exposed at 0.01 f/cc. 

Compare that risk with the following, in 2022, 1,069 construction professionals died while working, a rate of 9.6 fatalities per 100,000 full-time workers, according to a report by the Bureau of Labor Statistics.  That fatality rate was the third highest, behind agriculture, forestry, fishing and hunting (18.6 per 100,000) and transportation and warehousing (14.1 per 100,000).  Realize the current Occupational Safety and Health Administration (OSHA) Permissible Exposure Limit (PEL) is 0.1 f/cc based on an 8-hour time-weighted average (TWA) and according the RAC that risk is 125 per 100,000 exposed.

Industry, occupation, and exposure history of mesothelioma patients in the U.S. National Mesothelioma Virtual Bank, 2006–2022 found these points:

• Among the 1023 industries recorded for those having mesothelioma, the most frequent cases were found for those in manufacturing (n = 225, 22.0%), construction (138, 13.5%), and education services (66, 6.5%)….
• Males (583) or persons aged >40 years (658) at the time of diagnosis tended to have worked in industries traditionally associated with mesothelioma (e.g., construction), while females (163) or persons aged 20–40 years (27) tended to have worked in industries not traditionally associated with mesothelioma (e.g., health care). 

Malignant Mesothelioma Mortality — United States, 1999–2015 Weekly / March 3, 2017 / 66(8);214–218 Jacek M. Mazurek, MD, PhD1; Girija Syamlal, MBBS1; John M. Wood, MS1; Scott A. Hendricks, MS2; Ainsley Weston, PhD1 found:

• Current occupational exposure occurs predominantly during maintenance and remediation of asbestos-containing buildings.
• Continuing occurrence of malignant mesothelioma deaths in persons aged <55 years suggests ongoing inhalation exposure to asbestos fibers and possibly other causative EMPs.

The above table is from the above referenced material.  However, we have added the last column based on a 30-year latency period which gives an interesting perspective based on when the person most likely was exposed to asbestos.  Consider that over 650 individuals were most likely exposed before working age.  this could result from exposures due to take-home exposure, do-it-yourself projects, or from attending schools that are not managing asbestos properly.  It is also interesting to note that the number of mesothelioma deaths between 1999-2015 has remained roughly the same, between 2479-2873 individuals. 

Based on all this information a better clearance level would be 0.001 f/cc and a better occupational exposure limit would be 0.01 f/cc or 0.005 f/cc as an 8-hour TWA.  In November 2023, the European Union has adopted a reduction of the exposure limit for workers to 0.01 f/cc as an 8-hour TWA and after a maximum transition period of six years, member states will have to switch to electron microscopy.  In addition, in the EPA's chrysotile asbestos ban beginning November 5, 2024,....no person is exposed to an airborne concentration of chrysotile asbestos in excess...0.005 fibers per cubic centimeter (f/cc) as an 8-hour time-weighted average (TWA).  Considering all of this it is obvious 0.01 f/cc is not an appropriate level for clearance.  Utilizing TEM for clearance would ensure we are achieving the lowest protective level possible.

Are We Sampling Correctly?

In our blog post The Reality of Asbestos Clearance Air Sampling! Are You Sampling Enough? and our article in Healthy Buildings "You Can't Handle The Truth....About Clearance Sampling."  The major points from these articles were:

• Many believe or have been misled to believe that PCM sampling is the same as TEM sampling in terms of sampling volume.  This is not the case.  A PCM sample volume meeting AHERA clearance requirements are not at 1200 liters.  To do so is outside of the NIOSH 7400 method requirements for this purpose.  Even others have used the limit of detection sample volume to collect 560 liters.  
• In the NIOSH 7400 method, the issue regarding "relatively clean" environments" is addressed on page 4, number 4, note number 1 which states  "In relatively clean atmospheres, where targeted fiber concentrations are much less than 0.1 f/cc, use larger sample volumes (3000 to 10,000 liters) to achieve quantifiable loadings."
• Even though the formula calculates that 3,850 liters of air should be collected, many people use note 1 to collect 3,000 liters of air for clearance.  Either way clearance samples should be collected using no less than 3,000 liters of air as the minimum allowed for the NIOSH 7400 method requirements and AHERA compliance. 

Airbox Calibration Setup

In New York State the recommended sampling volume is 1,200 liters of air (based on the NYSDOH ELAP and the Bureau of Occupational Health and the New York State Department of Labor (NYSDOL) FAQ#13) and in the New York City Department of Environmental Protection (NYCDEP) Title 15 the required sampling volume is 1,800 liters of air for PCM clearance.  Based on the LOQ formula what are the consequences of not collecting the required volume?  Remember this is a formula and if you modify the formula to solve for L instead of t.  You then plug in the amount of time you're actually sampling for then you get the actual result you are achieving.

The NIOSH 7400 method, utilizes the formula above to determine the amount of time needed to achieve the fiber density, E, for optimum filter loading.  So, the minimum density the method allows is 100 fibers per square millimeter (mm²).  The Ac is the collection area for a 25-mm cassette which is 385 mm².  The Q is the sampling flow rate in LPM, and t is the time we are collecting the sample.  Modifying the formula to calculate for L or the LOQ concentration, we get this for 560 liters.

When using 1200 liters we get the following:

When using 1800 liters we get the following:

The consequences of the above numbers are that the:

• EPA AHERA clearance requirement of less than or equal to 0.01 f/cc is not being met. 
• NYSDOL Industrial Code Rule 56 (ICR56) clearance requirement of less than 0.01 f/cc is not being met.
• NYCDEP Title 15 clearance requirement of less than 0.01 f/cc is not being met

According to the RAC, the risk of excess lifetime cancer risks is 25 cases per 100,000 exposed at 0.02 f/cc and somewhere between 25 and 65 cases per 100,000 exposed at 0.03 f/cc.

At the 2024 Environmental Information Association (EIA) National Conference & Exhibition we conducted a survey of the attendees regarding the volume of air they collected for PCM clearance.  Below are the results:

As you can see from the results none of the individuals that answered the question are actually collecting the correct volume of air required by the NIOSH 7400 methodology.  Improper collection of PCM samples is not meeting the clearance requirements.

The Cost of Clearance Sampling

We know what you are going to say TEM samples cost way more than PCM samples.  We agree they do, but not compared to when AHERA first came out.  When AHERA first came out there were hardly any laboratories that did TEM analysis and those that did the samples cost between $350-500 per sample.  The difference between PCM analysis costs and TEM analysis costs has come way down.  A recent quote we received from a reputable laboratory for PCM analysis with a 3-hour turnaround was $12.50 per sample while TEM AHERA analysis with a 4-hour turnaround was $150 per sample.  The price difference is smaller than it once was. The odd math is that the difference in price between PCM and TEM for many projects is not even a rounding error to the overall budget, where the total construction budget could be in the millions (renovations). 

If PCM cannot see the fibers that cause disease or even determine that the area is clean, is it worth the money or the paper it is printed on when it comes to final clearance air sampling? 

TEM should be the only method employed for clearance air sampling!