New Vermiculite Guidance Shifts Liability to Consultants & Owners

On July 9, 2013, the New York State Department of Health (NYSDOH) Environmental Laboratory Approval Program (ELAP) released a further clarification regarding the analysis of surfacing materials, thermal system insulation, and miscellaneous materials that contain vermiculite (nothing has changed regarding loose fill vermiculite this still must be reported as an asbestos containing material (ACM)).  Visit Future Environment Design's Resource Page for the New Interim Vermiculite Guidance 7/9/13 from NYSDOH.

To sum up the changes, when you send surfacing materials, thermal system insulation, and miscellaneous materials for analysis the lab will start with the friable bulk sample method 198.1.  Once the material is determined to contain greater than 10% vermiculite the lab will then use the gravimetric reduction method 198.6.  No matter what result you get with the 198.6 method, the result must be accompanied with the following disclaimer:

“This method does not remove vermiculite and may underestimate the level of asbestos present in a sample containing greater than 10% vermiculite.”

We think most of you would agree the problem is not with having a disclaimer on results that report >1% asbestos, these are reported as ACM with the disclaimer.  The problem & liability come from materials that are now being reported as < 1% asbestos, these will be reported as non-ACM with the above disclaimer.  As far as we are concerned this disclaimer basically says these results may not be accurate.  This change puts heavy liability on the asbestos inspector (consultant) as the person who under Industrial Code Rule 56 (ICR 56) makes this decision.  As Dr. Eileen Franco, acting director of NYSDOL Division of Safety and Health, stated "The Certified Inspector who performs the sample collection and analysis in support of the required asbestos survey is responsible for determining if a material is ACM or not.  If they classify it as ACM, it is ACM and covered by ICR 56.  If they classify it as non-ACM, ICR 56 does not apply.  DOL enforces ICR 56 which is for asbestos.  If a product has greater than 1% asbestos it is asbestos. If they do further testing of something with >10% vermiculite and it is less than or equal to 1% asbestos it is non-ACM. "

Certified Asbestos Free by Who?
Thank you Mr. Henry Alilionis for the photo.

 In our opinion, this is insufficient to advise a client on what to do with a material that has a result of < 1% ACM with the disclaimer.  So the question is how do we proceed?  We obviously need more information.  It means asbestos inspectors need to do more research on the material (material safety data sheets, manufacture specifications, etc.) and the source of the vermiculite.  If that is not possible for whatever reason, maybe other types of analysis could be used.  Presently, other methods available are the Cincinnati method (Environmental Protection Agency (EPA) method A 600/R-04/004) which is a research method or the American Society for Testing and Materials (ASTM) D22.07 method, neither are approved by NYSDOH ELAP.  However, at this point NYSDOH has given us a result which says the material is non-ACM with a disclaimer.  As asbestos inspectors we must address the disclaimer.  NYSDOH has not given us a way to do that, allowing us to find our own way.  Our advice would be to research the material and if that is now successful, then use one of the other lab methods to address the disclaimer.  In our view this is what a reasonable person would do to avoid the potential liability of exposing construction workers to asbestos.

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DiNapoli's Audit of Asbestos Control Bureau Finds Problems

The New York State Office of the State Comptroller, run by Thomas P. DiNapoli, performed an audit titled "Assessment and Collection of Selected Fees and Penalties" of the New York State Department of Labor (NYSDOL) to determine if the NYSDOL was assessing and collecting all required fees and penalties.  The audit covered the period April 1, 2008 through July 31, 2011. The focus of this blog will be on the comments made regarding the Asbestos Control Bureau (ACB).

The overall key findings of the audit found:

• The NYSDOL does not assess and collect all required fees and fines.  In total, the Department did not collect about $3.8 million, including associated penalties.
• The NYSDOL does not have accurate records to show who is required to pay boiler inspection and asbestos-related project fees.  As a result, the health and safety of New York State residents may be at risk and potential revenue is not realized.

Details of this audit found:

• Most contractors adhere to the self-notification process and pay the required project notification fee.
• However, the Department has no method for determining whether there are other contractors that should be paying the fee, or how much the fee should be.
• As a result, there is no way to know how much more the Department could be collecting in revenue each year.
• To determine whether there are contractors which did not pay the required project notification fee, we obtained a list of landfills throughout the State that accepted asbestos and reviewed their associated documentation. In total, landfills accepted asbestos from 50 projects during our audit period where the amount of asbestos contaminated refuse disposed was at least ten tons.  We found that 45 out of the 50 contractors paid the project notification fee (one was exempt).  We averaged the amount paid by the 45 projects and estimate that the Department could have collected an additional $6,992 for the remaining four projects ($1,748 per project).
• The audit noted that the project notification fee was not equitable, as small asbestos projects can pay as much as those that are much larger. For example, a project with 1,725 linear feet and 35,263 square feet would pay the same $4,000 maximum fee as a project with 1,650 linear feet and 1,000 square feet. The Department should review this structure to determine whether a more equitable fee structure could be created based on the size of a project to provide greater equity and possibly increase revenue. Fees are statutorily set and any revisions would have to be sought through a change in the statute establishing the fees.

NYSDOL ACB's response to the audit is included in the document.  That response was:

• In 2011, NYSDOL used a reconcilitaion of Department records to ensure and verify that asbestos contractors, building owners, & others in the regulated community follow all regulations.
• This reconcilitation included examination of air monitoring records, demolition permits, site-specific variances, surveys, & waste manifests.
• Elevated air monitoring reports are cross checked with notifications listed in the system.
• Demolition permits from all major cities and many towns, villages, & smaller cities have been obtained.  Local fire companies is listed as another source of information, regarding a list of fires in their area (late 2011 this started).
• In early 2012 contact with all major landfills that accept friable waste for access to data was established.  Some of these landfills have begun sending monthly waste manifests for their site.  ACB has now expanded the contact to landfills outside NYS that accept waste from NY.
• ACB has discussed possibly changing the fee structure, however, revisions need legislative action.

Based on the above, ACB feels this is sufficient to protect the public.  We strongly disagree!  We recommend the following, in addition to what they are already doing:

• ACB should investigate all emergency response, plumbing, electrical, roofing, floor tile, and siding contractors for licensing and certification of their workers.  If these contractors indicate the subcontracting of asbestos work require proof of subcontracting, and proof of asbestos inspections performed before they performed work on materials that were not ACM.
• ACB should investigate Department of Public Works, Water Authorities, and other water works companies that manage asbestos cement pipe systems for licensing, certification, and work practices. 
• ACB should also initiate contact with landfills that accept nonfriable ACM (construction /demolition waste) throughout NYS.  Most of the illegal dumping is going on at these sites.
• ACB should cross train the Boiler inspectors to recognize ACM.  This would allow them to inform the ACB of suspicious activities.

As we've complained before, ACB needs to spend more time/resources investigating those that are breaking the rules by not notifying, not air monitoring, and not disposing ACM properly versus those in the asbestos industry who according to Mr. DiNapoli's audit are mostly following the rules.

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Future Environment Designs Will Be Exhibiting at Plattsburgh Business Expo

We are looking forward to our annual exhibit at the 25th Annual Business Expo on this Thursday, June 6, 2013 at the Plattsburgh State University Field House.  Join us from 10 AM to 5 PM and we can discuss the various training courses we provide in the area.  We hope to see you there!  In addition, if you "Like" the North Country Chamber on Facebook you can get Free Admission.  Follow the link below:

25th Annual Business Expo - June 6th Don't miss the largest networking event of the year! 180 Businesses will showcase their products and services this Thursday, June 6th at the SUNY Field House. Join us from 10 - 5 to learn what area businesses can do for, enter to win hundreds of prizes, and make new business contacts.  Admission is $5. Or, Like the North Country Chamber on Facebook TODAY for Free Admission.    The VIP List will be printed tomorrow - so be sure to Like us Today and you will be on the list for free admission. Click for more info

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Domino Sugar Factory Abatement - Brings Up Questions

The Domino Sugar Factory in Brooklyn, NY is undergoing asbestos abatement and unfortunately for New York Insulation they were caught doing asbestos abatement on the roof.  Whenever, you do asbestos abatement outside of containment, it is vitally important that you do the work perfectly.  One mistake or two will just bring about a whole bunch of trouble.  Below is the video, please watch it and let us know what you think in the comments:

In our classes we have been watching it and discussing the various issues, here is a list:

• In the video you do not see one person wetting anything down.  Wet methods are required by New York City Department of Environmental Protection (NYCDEP), New York State Department of Labor (NYSDOL), the Occupational Safety and Health Administration (OSHA), and the Environmental Protection Agency (EPA).  Under EPA regulations not wetting asbestos or dry removal is a criminal violation.
• In the video you do not see a High Efficiency Particulate Air (HEPA) filtered vacuum anywhere.  HEPA vacuuming is required by NYCDEP, NYSDOL, & OSHA.
• Workers in the video are hammering what looks like asbestos containing transite panels.  These panels are considered non-friable and if intact they are not regulated by EPA.  However, that changed as soon as the workers started hammering (crumbling & pulverizing) the materials.  These materials are no longer intact and have become regulated asbestos containing materials (RACM).  Meaning these materials must be placed in labeled asbestos bags or wrappings and sent to an EPA approved landfill for disposal.  In addition, the crumbling & pulverizing of the materials probably means NYCDEP & NYSDOL would require a containment.
• Two workers inside the work area are not wearing suits and respirators, obviously a violation of the PPE requirements for this work.
• Under NYCDEP, NYSDOL, & OSHA materials are required to be bagged or wrapped immediately.  Obviously, the hammering of the materials means they were not bagged or wrapped immediately.
• In the video we can see one air sample station in the work area.  NYCDEP requires four (4) inside work area samples during the abatement.  Since the one sample is located where they were hammering the panel with a crowbar it would be interesting to see the results of that air sample.  Though it may be likely it will show nothing since it would depend on which way the wind was blowing.

These are just some of the ones we have discussed in our classes or have been posted in our New York Asbestos Group on Linked-In.  Let us know if you see anything in the comments below.

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NY Times Article Criticizing OSHA, Doesn't Criticize It Enough!

On March 30, 2013, the New York Times wrote the article "As OSHA Emphasizes Safety, Long Term Health Risks Fester."  You can click on the title of the article to read the article if by chance you have not read it or saw it.  As many of you know I am a sharp critic of the Occupational Safety and Health Administration (OSHA) and their inability to protect worker health at Ground Zero, at the BP Oil Spill, Katrina, etc, etc, etc!  Here is another sad case of OSHA failing to do their job and claiming there is nothing they can do!  Are they kidding us!  Lets see the facts in this case:

• The culprit in this chemical exposure story is a chemical known as n-propyl bromide, or nPB.  “Medical researchers, government officials and even chemical companies that once manufactured nPB have warned for over a decade that it causes neurological damage and infertility when inhaled at low levels over long periods…”  So we know that exposure to this chemical is hazardous (fact!).
• 
  



3D diagram of n-propyl bromide molecule. Prepared with Discovery Studio Visualizer 1.7 and GIMP 2.2 (Photo credit: Wikipedia)


• Did we have an exposure?  “For about five years, Ms. Sheri Farley, 45, stood alongside about a dozen other workers, spray gun in hand, gluing together foam cushions for chairs and couches sold under brand names like Broyhill, Ralph Lauren, and Thomasville.  Fumes from the glue formed a yellowish fog inside the plant, and Ms. Farley’s doctors say that breathing them in eventually ate away at her nerve endings, resulting in what she and her co-workers call “dead foot”."  That sounds like an exposure to us (fact!).
• What did the employer do to protect the workers?  “Even as worker after worker fell ill, records from the Occupational Safety and Health Administration show that managers at Royale Comfort Seating, where Ms. Farley was employed, repeatedly exposed gluers to nPB levels that exceeded levels federal officials considered safe, failed to provide respirators and turned off fans meant to vent fumes."  So the employer knew the dangers and didn't protect the workers (fact!).
• What's a willfull violation?  According to OSHA, a willfull violation is a violation that the employer intentionally and knowingly commits or a violation that the employer commits with plain indifference to the law.  OSHA may propose penalties of a maximum of $70,000 for each willfull violation (fact!).

So if you buy into this argument that OSHA is powerless to act.  Then why did violations only total, as per the article, "less than $20,000 in OSHA fines related to glue fumes."  That is a travesty!  OSHA needs to wake up and do its job.  

What does the Director of OSHA have to say about this?  “I’m the first to admit this is broken,” said David Michaels, the OSHA director, referring to the agency’s record on dealing with workplace health threats.  “Meanwhile, tens of thousands of people end up on the gurney.”  You're the director and that's your answer.  Get your act together and fix the problem.  You know there's a problem and you're not fixing it.  You should be fired!  You've been the OSHA Director for what four years and we must admit you've done a lot of good.  However, at the same time this issue of protecting worker health has continued to fester and you know its broken and you haven't fixed it.  If you were on Donald Trump's Apprentice program, you would've been fired.


Let's look at the issue that the business claims they can't afford to protect workers.  Based on the article it says Royale "which employs about 100 workers and had around $7.5 million in sales in 2011",  in addition, Royale has also "paid nearly a half-million dollars - in court settlements, required upgrades....".  Where did these business owners get their education on running a business?  Here are some statistics from the article that makes you wonder about business owners and support a need for OSHA to do a better job of protecting worker's health:

• "Chronic ailments caused by toxic workplace air - black lung, stonecutter's disease, asbestosis, grinder's rot, pneumoconiosis, - incapacitate more than 200,000 workers in the United States annually.  More than 40,000 Americans die prematurely each year from exposure to toxic substances at work - 10 times as many as those who die from refinery explosions, mine collapses and other accidents that grab most of the news media attention."
• Occupational illnesses and injuries like Ms. Farley's cost the American economy roughly $250 billion per year because of medical expenses and lost productivity, according to government data analyzed by J. Paul Leigh, an economist at the University of California, Davis, more than the cost of diabetes or chronic obstructive pulmonary disease.  Roughly 40 percent of medical expenses from workplace hazards, or about $27 billion a year, is paid by public programs like Medicare and Medicaid."

In our opinion, it would be more effective to have a respiratory protection program using respirators and proper filters.  The probable cost of a respiratory protection program for 100 workers would be around $40,000.  It seems to us it would be cheaper to provide the workers with respirators than to pay for court settlements, worker's compensation insurance costs, disability insurance costs, etc.  It is way past time we started recognizing the need to push respirator use to handle situations that either the political will, financial will, or just plain indifference is not protecting workers.

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