Changes to Asbestos Project Notification Fees Gets Closer

New York State Senator Catherine Young has sponsored S5917-2013.  This bill matches New York State Assembly Bill A3675A-2013 which is sponsored by Assemblywoman Donna Lupardo.  Both bills make changes to the Asbestos Project Notification Fee schedule.  The following are the reasons these bills should be supported:

• Original notification fees were arbitrarily set.

• In 2009 notification fees were arbitrarily doubled to raise income.

• From 2009 to 2010 income from fees rose from $6,606,700 to $12, 223,750.

• From 2009 to 2010 the Asbestos Control Bureau  (ACB) budget remained flat at $3,315,044 to $3,462, 574.

• The largest amount of asbestos in residential homes is non-friable

• A very small percentage of asbestos notifications are from residential homes

• Homes condemned  from disasters and, thus, not surveyed are being required to pay fees of $2,000 each for friable and non-friable material whether existing or not

• Most commercial projects of 1,500 square feet (SF) or less of non-friable material are not notified because of cost for a few hours of work.

• A home owner with 1,000 SF of floor tile pays the same fee as a commercial project of 100,000 SF.

• The bill refers to the footprint of a building as the ACB has taken the SF on some projects to include walls, floors, and ceilings.

• The proposed bill would be not be revenue neutral, however, the recent NYS Comptroller’s audit of the NYS Department of Labor (DOL) determined the DOL is not assessing and collecting all required fees and penalties in the ACB.  The audit recommended for the DOL to “Review the asbestos fee structure to determine whether a more equitable fee structure could be created based on the size of a project to possibly increase revenue.” Note: this can only be done through legislative action.

• This does not take into account the increase in residential, commercial, and industrial notifications because of the lower fees.

• Higher fees for larger projects above 5,000 SF will max out at the current $2,000 fee at 1,000 SF.

• Memos of support have come from Unshackle Upstate, NFIB, Manhattan Chamber of Commerce, Broome County Chamber of Commerce, Southern Tier Builders Association, Rochester Builders Exchange, Associated Building Contractors of the Triple Cities, Syracuse Builders Exchange, Northern New York Builders Exchange, Building Industry Employers and the Broome County Realtors Association.

Tom Meade, the Executive Director of the Professional Abatement Contractors of New York (PACNY), has been working on these bills for sometime now.  To support these bills contact us at angelo3@futureenv.com or Mr Meade at tmeade@stny.rr.com and we will provide you with the information needed including a sample letter created by Mr. Meade.  The sooner these letters of support can be sent to the sponsors the better as we would like this to become a part of the Governor's budget.  If you have any questions feel free to contact Mr. Meade at tmeade@stny.rr.com.

Metro-NY AIHA Meeting on Vermiculite, Part 2.

As we discussed in our previous post we attended the Metro New York (Metro-NY) American Industrial Hygiene Association (AIHA) chapter meeting on September 9, 2013.  This meeting was on the "New York State Asbestos & Vermiculite Analysis Guidance Update" it was presented in two parts, part one by Robert J. DeMalo, Senior Vice President of Lab. Services & Business Development and part two by Edward Cahill, Vice President of Asbesto, both from EMSL Analytical, Inc.  For pictures from the event visit Metro NY AIHA web album and for copies of EMSL's powerpoint presentation visit Metro-NY AIHA Meetings website for the Part 1 Handout and the Part 2 Handout.  Our previous post discussed part one of the presentation.  This post we will discuss part two, which was on the "Analytical Challenges of Vermiculite Containing Materials".

The second part of the presentation was significantly more complicated than the first part.  This does not mean the first part was not valuable, we are trying to indicate the second part really got into some of the details of analyzing the minerals utilizing polarized light microscopes, the quantitation of the samples, and additional methods of analysis including advantages and disadvantages (enough big words for everyone).

The second presentation started with a discussion of the new NYS DOH Guidance letter regarding the analysis of vermiculite containing materials (VCM).  We discussed this issue in our Blog on 7/21/13.  The big issue is the disclaimer being placed on the results and what is the best course of action for results that indicate greater than 10% vermiculite and less than or equal to 1% asbestos with the disclaimer.  

To understand the problems with analysis Mr. Cahill’s presentation showed us that vermiculite comes in three types – large (light), medium, & fine (dark).  See figure below:

As you can see the material is varying levels of “chunkiness”.  According to EMSL, when picking through the sample rice grain sized asbestos chunks can sometimes be detected visually.  However, the absence of these chunks does not mean the sample is asbestos free.  The polarized light microscope (PLM) methodology is strong for identification, while quantification is weak.  The PLM analysis is only as good as the prep (especially for point counting).  The sample must be uniform, random, & a monolayer (the height of a particle size prevents a nice monolayer).   Based on this information the problems regarding vermiculite analysis are:

• Particle size prohibits making a proper slide mount.
• Asbestos not always homogeneous within the sample
• Asbestos can be locked between plates & therefore not easily detected
• Non-regulated Libby Amphiboles are present.

The discussion then turned to other methods of analysis, noting that monokote fireproofing has removable matrix.  Methods with matrix removal include:

·         EPA (600) PLM NOB

·         EPA (600) TEM NOB

·         NYS ELAP 198.6 (PLM)

·         NYS ELAP 198.4 (TEM)

·         Chatfield SOP (TEM)

At this point, the preferred NYS ELAP method is 198.6, but that means you get the disclaimer on your results.  EMSL’s presentation discussed 4 different approaches of what to do regarding VCM, these approaches are:

1. Cancel or delay asbestos surveys if possible until final regulations are in place.
2. If initial analysis determines vermiculite content >10% they are stopping.  The material is treated as ACM.
3. If 198.1 analysis determines vermiculite content >10% proceed to 198.6 to determine the asbestos percentage.  Materials are classified as ACM or non-ACM accordingly, disclaimer is tolerated.
4. Approach 2 or 3 are followed for regulatory compliance and then various additional prep and analysis steps are requested.  Transmission Electron Microscopy (TEM) analysis is typically a part of this process to demonstrate “Best Available Technology”.

Options available for Approach 4 are:

• Cincinnati Method – vermiculite separated into fractions, floating, sinks, & suspended fractions.  Analysis is by a combination PLM/TEM
• CARB (CA Air Resource Board) 435 Method – Sample is milled, followed by a PLM point count
• EPA 600 Milling followed by PLM/EPA 600 Milling followed by TEM analysis – Can break out of mass percent with & without the contribution of Libby amphiboles
• ASTM TEM Qualitative Method – excellent fiber ID but no quantification
• Addison Davies Method – remove vermiculite prior analysis

We learned a lot in this seminar regarding different methodologies and the problems involved with analyzing vermiculite and VCM.  It will be interesting moving forward to see which direction the analysis of these materials goes.   Based on the presentation, the EPA 600 milling followed by TEM analysis sounds interesting and promising.  However, NYS ELAP or EPA will be making that decision and only time will tell.

Related articles

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Metro-NY AIHA Meeting on Vermiculite, Part 1

We attended the Metro New York (Metro-NY) American Industrial Hygiene Association (AIHA) chapter meeting on September 9, 2013.  This meeting was on the "New York State Asbestos & Vermiculite Analysis Guidance Update" it was presented in two parts, part one by Robert J. DeMalo, Senior Vice President of Lab. Services & Business Development and part two by Edward Cahill, Vice President of Asbesto, both from EMSL Analytical, Inc.  For pictures from the event visit Metro NY AIHA web album and for copies of EMSL's powerpoint presentation visit Metro-NY AIHA Meetings website for the Part 1 Handout and the Part 2 Handout.

Sample Passed Around the During the Meeting

Some very interesting facts from the first part of the presentation included:

• The Libby mine was the source of an estimated 70-90% of all vermiculite sold in the US from 1919 to 1990.
• Veins of asbestos contaminated most, if not all of the material taken from the mine; Libby Amphibole was an accessory mineral."
• The Libby mine in 1926 opened up a vein of asbestos that is considered one of the largest deposits of asbestos ever uncovered.
• Regardless of the method used to analyze the material a mixture of regulated asbestos as well as non-regulated asbestos is likely to be encountered.
• "Libby Amphiboles" is a collective term for the complex mixture of amphiboles that are known to exist at the Libby mine site.  That mixture is Winchite (nonregulated amphibole); Richterite (nonregulated amphibole); and Tremolite (regulated amphibole).
• Increased mortality rates are observed not only among the miners and their families, even in citizens with no direct connection to the mine.  Mortality rates are 40 times higher than the rest of Montana and 60 times higher than the rest of the US.

Based on the above information it is clear that Libby Amphiboles are the problem and that the nonregulated amphibole portions of the vermiculite is also a problem.  According to the US Geological Survey, the amount of asbestiform amphiboles contaminating the Libby vermiculite as approximately 84% winchite, 11% richterite, and 6% tremolite (American Mineralogist; November 2003; v. 88; no. 11-12; p. 1955-1969).  The mortality rate indicates a need to regulate these amphiboles plus others minerals that we now typically call elongated mineral particles (see NIOSH website for more information regarding asbestos fibers and other elongated mineral particles).  In our next blog post we will discuss part two of the vermiculite meeting.

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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.

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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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