Future Environment Designs Training Center's Blog

Monday, September 09, 2013

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.

Monday, August 19, 2013

Using Biocides Properly And Safely

… … … After all the water damage Tropical Storm Sandy caused, we started getting phone calls on what was the proper procedure for cleaning up moldy surfaces and such. Inevitably they would ask should they use bleach to clean the surfaces.As we always do we recommend the use of cleaners (i.e., Dawn), water, and lots of elbow grease (scrubbing). For those of you who need a reference for this recommendation click on this EPA link. The point of this post is to clear up some of the misconceptions regarding bleach and biocides as a whole.

As the term biocide implies "life killer", it is designed to destroy/kill living organisms. This is one of the dangers with a biocide, we are a living organism and these chemicals could kill/damage us. Its important to remember that everything is a poison, what matters is the dose. So the dosage is very important when working with biocides. This information also means that there must be a regulation or regulatory agency that regulates biocides, of course. The regulation that regulates most biocides is called the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Environmental Protection Agency (EPA) is the agency that enforces it. Before EPA can approve an application under FIFRA, "the applicant must show, among other things, that using the pesticide according to specifications "will not generally cause unreasonable adverse effects on the environment." This act regulates chemicals used to disinfect, sanitize, or kill molds, fungi, bacterias, etc. One of the key words in the quote above is the word "specification". What the quote is basically saying, is that the biocide manufacturer must come up with the safe procedures to use when using that manufacturer's biocide. Another words the label on the biocide has the safe procedures for using the product (the label is the law, if its not on the label you can't use it that way). Which in some ways makes things easy, follow the instructions on the label and it can be used safely.

Which brings us to what the label on bleach says?

As you can see above, bleach is a corrosive. This means it could do damage to the skin, eyes, or the respiratory system. This part of the label tells you what to do if you happen to get this product on your skin or in your eyes. The next label tells you how to use it safely:

For disinfecting surfaces you use 1/2 cup bleach to 1 gallon of water. Please note that the label requires that the surface you are disinfecting should be pre-washed/cleaned. The reason for this is that dirt, or other organic materials can deactivate bleach reducing its disinfecting ability. In order for bleach to disinfect a surface, the surface must be cleaned first. Which brings us back to our suggestion at the beginning of this post, the most effective way to get rid of mold is to clean the surface with a detergent and elbow grease.

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Sunday, August 04, 2013

PACNY Fishing Derby Was An Adventure

On July 17, 2013 we attended the Professional Abatement Contractors of New York (PACNY) fishing derby. We decided to attend the fishing derby because we've never fished for salmon before and going on a fishing trip with the PACNY group sounded like a lot fun!

Well the day started with a great sunrise (photo above), as we learned which boats we were on. We were placed on one of the two Cornerstone Training Institute (CTI) boats. Our boat was named the Irish Thunder with Captain Joe T. & First Mate Charlie. Our team consisted of Heather King of KBH, Chris Miller of LeChase, Kevin Hutton of CTI, and ourselves.

Once we were all on-board our respective boats , we headed out to the shotgun start (see video above). Which means all the boats line up straight across & when the bell is rung the boats speed out to the fishing areas. It was a very hot day and sun shone brightly, meaning we were thankful for air movement. Captain Joe T. & First Mate Charlie, were very experienced in finding fish and it wasn't long before we had our first catch of the day. Ms. Heather King reeled in the first fish. All of us took turns reeling in fish, however, Mr. Chris Miller reeled in the first over 20 pound salmon. Which we all teased him in how long it was taking him to bring the fish in (we would regret that later). We were thankful to Mr. Kevin Hutton for stocking his cooler with some really good local craft beers (thank you!).

As you can see above, we caught ourselves an over 20 pound king salmon. Catching a salmon is not an accurate description of what actually took place. A better description would be is having a tug-of-war with an unknown opponent. Once you grab a hold of the rod & reel you spend what feels like an eternity (actually 10-20 minutes) of doing forearm curls. Pull the rod up, then reel in excess line; pull the rod up, reel in the excess line; repeat, repeat, repeat (now regretting teasing Chris about how long it took him to bring the fish in). Just about the time our arms were saying "we give up", the salmon appeared several yards away from the boat. Giving us a second wind to bringing the fish on board. When we were a kid we remember a cartoon that likened fishing to pulling a drain plug from the lake, we now get that cartoon.

Once the derby was over we gathered at the Black North Inn for lunch, weigh-in, & the awarding of the prizes. The scoreboard above details the scores. Congratulations to team Aramsco for the biggest basket (three largest fish) and the $500 award. Congratulations to Brian Warren from the Aramsco/Envoy boat for the big fish. His 30.5 lb king salmon won him $150 cash.

We had a great time and hope to do this again. Our team was fantastic and entertaining. Our team won one of the prizes. We also got to bring some salmon home for smoking & grilling (as you see above). It was the best salmon we ever ate.

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Sunday, July 28, 2013

New? NYS Education Department Asbestos Clearance Air Sampling Requirements

On July 12, 2013, New York State Education Department (NYSED) released a table regarding the various asbestos clearance air sampling requirements. The table compares the Environmental Protection Agency's (EPA) Asbestos Hazard Emergency Response Act (AHERA) regulation to the New York State Department of Labor's (NYSDOL) Industrial Code Rule 56 (ICR56) and the table has a center column designating what we assume to be NYSED's requirement for schools. It is interesting to note that New York State Department of Health (NYSDOH) noted these items were a problem in 2009, when they were doing AHERA audits for EPA. Visit Future Environment Design's Resource Page for the Asbestos Clearance Table Requirements from NYSED.

What's wrong with this picture?

There is some very interesting information on this table. An example of this is the requirement of 5 inside samples for asbestos projects that range from three (3) linear feet (LF) or square feet (SF) to < 160 SF or < 260 LF. These samples are analyzed using the phase contrast microscope methodology (National Institute of Occupational Safety and Health (NIOSH) method 7400). We wonder how many schools are actually doing five (5) samples inside the work area for small projects (> 10 SF or 25 LF but < 160 SF or 260 LF) or the minor projects (> 3 LF or SF to < 10 SF or 25 LF)?

In actuality to comply with both AHERA and ICR56 for small projects (> 10 SF or 25 LF but < 160 SF or 260 LF), a school should also run a minimum of three (3) outside samples. So, for a small project in a school in NYS the project air sampling technician should run five (5) samples inside each work area, three (3) samples outside each work area, and two (2) blanks. This current table, with the adjustment mentioned above, provides Asbestos Air Sample Technicians with the total number of samples, based on the size of the project, necessary to clear an asbestos abatement work area located in a school that will comply with AHERA, NYSED, & ICR56.

Sunday, July 21, 2013

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.