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.

Related articles

• Protecting Your Family from Asbestos-Contaminated Vermiculite Insulation
• Where to look for asbestos in older homes
• Libby Residents Concerned about Asbestos in Landfill
• What Happened in the Attic?

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

Related articles

• Business briefs: June 2, 2013

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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• Robin Wilson: Cheap Furniture Should Not Kill or Maim U.S. Workers
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• OSHA has dismal record preventing long-term workplace hazards
• When nerve-damaging glue is disabling workers, what can OSHA do? [The Pump Handle]
• A Bill Currently In The House Attempts To Give More Power To OSHA For Workplace Safety
• Worker Protection Too Costly!
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Filtering Facepiece Respirator or Dust Mask. Which is it?

Well the answer to the question in the title is similar to you saying tomatoe or tomato.  They are two ways of saying the same thing.  According to the Occupational Safety and Health Administration (OSHA) a dust mask is a filtering facepiece respirator.  For those involved in the safety and health field that is not news.  However, for everyone else it is.  In fact, we would argue that the average worker doesn't even consider the dust mask a respirator.  We recently ran into this miscommunication between an employer who was providing filtering facepiece respirators on a voluntary basis and assumed when the OSHA compliance safety and health officer was asking about respirators they were talking about the ones used in the paint booth.  Paint booth respirators were required, but the filtering facepiece respirators were not.  You could imagine the conversation.

Muster einer Atemluft-Einwegmaske (Photo credit: Wikipedia)



What is the consequence of such a miscommunication?  Well once you require the wearing of filtering facepiece respirators in the workplace, these respirators must follow all the requirements of 1910.134 the OSHA respiratory protection standard.  Which means the workers must be medically cleared to wear the respirator, fit tested with the respirator to ensure it fits, and trained on the use of the respirator.  However, if the filtering facepiece respirator is being used voluntarily, all you must provide is Appendix D of standard "Information for Employees Wearing Respirators When Not Required Under The Standard."  A big difference in requirements.  So be very careful when answering this question during an OSHA workplace inspection.

Another problem with dust masks is illustrated by the photo above in an article about Suffolk County's plan to spray pesticides.  What is wrong with the picture?  Well if this worker is spraying pesticides he is wearing the wrong respirator.  Filtering facepiece respirators (dust masks) only protect from dust or particulates.  They do not protect against chemicals that are in the form of mists, vapors, or gases (which is the form that the worker in the picture is spraying).  These forms of chemicals would penetrate through the mask or worse will be absorbed into the filter and potentially concentrate the chemical or allow the chewmical to sit on worker's face.

 

The only reason for wearing a filtering facepiece respirator (dust mask) is for nuisance dusts (i.e., wood dust, pollen, grass clippings, etc.).  Though this respirator is very comfortable, and lighweight, in our view, it is very dangerous because it is readily available, many people are using it improperly, and many people believe it can do more than it was designed to do.  Use this resapirator very carefully and again only for nuisance dusts, nothing more.  Be safe out there!

Related articles

• Worker Health Advocates Say 9/11 Mistakes Repeated in Sandy Clean-up (inthesetimes.com)
• City contract workers exposed to asbestos while on the job: "I'm scared" (khou.com)
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PACNY Conference New Faces, New Discussions

The 17th Annual Professional Abatement Contractors of New York (PACNY) Environmental Conference was a success.  Though this is not surprising given the lineup of speakers and great effort that was made by the conference organizers to bring it together.  We would suspect that the organizers might have been nervous about the event, since Mr. Christopher Alonge would not be a speaker on day two of the event.  If you had not heard, Mr. Alonge is no longer with New York State Department of Labor (NYSDOL) he is now with Dormitory Authority of the State of New York (DASNY).  Mr. Alonge was present at the event, and seemed to be enjoying himself.  However, Dr. Eileen Franco saved the day representing NYSDOL as the acting director for the Division of Safety & Health.  Dr. Franco discussed her unit, and updated us on the progress of the new ICR56, which in her words were "imminent".  She was entertaining and we hope she will take our suggestions regarding the asbestos control program and act on them.

Future Environment Design's New Tradeshow Display.

Like last year, one of the opening presentations was on PACNY's effort to change the notification fees.  The bill they are discussing is Assembly Bill A3675.  As we discussed last year, this bill would change the notification fee structure so demolition of residents impacted by a disaster would be a maximum of $200.  This change would help disaster affected areas and residential projects by allowing properly trained contractors to better compete with non-licensed or untrained contractors for the asbestos work.

The list of speakers included Brian Sampson from Unshackle Upstate; Joe Cantone from Colden Corporation; Paul Watson from Center for Toxicology & Environmental Health; Joe Hogan from Associated General Contractors of New York State; Dr. Dave Duford from CanAm Environmental Safety; Brent Kynoch from the Environmental Information Association; Dr. James Webber, formerly with NYS Department of Health; Marvin Stillman from the University of Rochester; and Mr. Chris Alund, from the NYSDOL Bureau of Public Work.  All the speakers were very good, however, two standout in our mind.  First Dr. Webber's presentation "Vermiculite: Looking for a Needle in a Leaf Pile" was awesome and had many speaking about it throughout the rest of the conference.  Pretty impressive considering after his presentation it was the cocktail hour in the exhibit hall.  Dr. Webber's presentation was our first official 3D presentation.  Towards the end of his presentation he passed out 3D glasses, and it was very impressive seeing vermiculite with Libby asbestos fibers in 3D.  The other presentation that stood out, was Mr. Stillman's regarding "Hazardous Waste at Project Sites".  Mr. Stillman's presentation included a lot of points that we were not aware of and will be included in future training classes regarding hazardous wastes.  During most of the presentations, we posted points we felt were important on Twitter.  Find those tweets at #FEDTCPACNY.

This year the Industry Roundtable Q&A was moderated by Steve Gheen, PE of Gheen Engineering, and included Darren Yehl of Cornerstone Training Institute, John Massa of Midlantic Environmental, and Angelo Garcia, III, of Future Environment Designs (me).  Questions this year were very interesting and brought out some distinctions in regions and how various types of asbestos work was being done.

The Exhibit Hall was a lot of fun, with the cocktail reception and the breaks spent meeting vendors, suppliers, and competitors (the friendly kind).  There were some new exhibitors and some new equipment at the show.  Fiberlock Technologies was exhibiting a new Advanced Peroxide Cleaner (APC) that removes mold & mildew stains on porous & non-porous materials, it seems to be an impressive product.  DiVal & Aramsco had dueling floor tile and mastic removal machines that sell or rent.  In addition, DiVal was showing a Dust Shroud for Reciprocating Saws from Dustless Technologies.  McLaughlin Vacuum Excavation Systems (Vermeer is the dealer network for this equipment) was another exhibitor with some impressive equipment.  Of course, United Rentals was there and we didn't win the toy truck, again!

Overall, the conference was a great time.  Turning Stone Resort & Casino does a great job with the food, drinks, & entertainment.  In the past few years, we've seen more representatives from Long Island based companies attending the PACNY conference.  We were glad to see George Maul of Insight Environmental, Paul Calzolano of Testing Mechanics, Paul Debiase of Dvirka & Bartilucci, Bart Gallagher of Enviroscience, & Travis Irving of H2M.  We look forward to seeing you next year and look forward to the Long Island contingent growing again next year. 

Related articles

• PACNY's 2013 Environmental Conference (futureenv.blogspot.com)
• NYSDOL Responds To Call To Waive Fees (futureenv.blogspot.com)

PACNY's 2013 Environmental Conference

Future Environment Designs is proud to be attending and exhibiting at the Professional Abatement Contractors of New York's (PACNY's) 17th Annual Environmental Conference.  The event is being held at the Turning Stone Casino & Resort on Thursday, February 28th & Friday, March 1, 2013.  This year we've updated our trade show booth and look forward to showing it off, assuming its ready in time.  We are also honored to have been selected to be on the industry panel again this year.  We look forward to meeting you in the exhibit hall or at one of the sessions.  For more information or to register for the event visit PACNY's website at http://www.pacny.org/conferences.asp.

We are also happy to announce that on Wednesday, February 27, 2013 at Turning Stone Casino we will be holding an Asbestos Project Designer Refresher course together with Cornerstone Training Institute.  Hopefully, that will work with people's schedule and we look forward to seeing you at that event, too.

OSHA 300A Posting Required On Feb.1

Hopefully, you remembered to post your Occupational Safety and Health Administration (OSHA) 300A form on February 1, 2013.  As required by OSHA, the 300A form is the summary of the OSHA 300 form which is the log of injuries and illnesses your company had over the past year.  If your looking for the forms follow this link: http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf.  The form is required to be posted from February 1 to April 30, 2013.  If you have 10 or fewer employees this regulation does not apply to your business.


Proper Scaffold Construction in Ithaca, NY

 The following is posted on the OSHA website:

What is recordable under OSHA's Recordkeeping Regulation?

• Covered employers must record all work-related fatalities.
• Covered employers must record all work-related injuries and illnesses that result in days away from work, restricted work or transfer to another job, loss of consciousness or medical treatment beyond first aid (see OSHA's definition of first aid below).
• In addition, employers must record significant work-related injuries or illnesses diagnoses by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.
• Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation.
• Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease (i.e. contact dermatitis), respiratory disorder (i.e. occupational asthma, pneumoconiosis), or poisoning (i.e. lead poisoning, solvent intoxication).
• OSHA's definition of work-related injuries, illnesses and fatalities are those in which an event or exposure in the work environment either caused or contributed to the condition. In addition, if an event or exposure in the work environment significantly aggravated a pre-existing injury or illness, this is also considered work-related.
• For further questions or clarifications, take advantage of the additional resources on this page (under "In Focus") or call 1-800-321-OSHA (6742).

4,609 workers died on the job in 2011 (as per OSHA website).

Related articles

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• OSHA Log Form 300A Posting Due February 1, 2011 (futureenv.blogspot.com)
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Future Environment Designs Has Published Its 2013 Future Focus Newsletter

Future Environment Designs has published our 2013 newsletter "Future Focus".  As usual the current newsletter will be part of our manuals and handed out in our classes.  If you don't want to wait until you take a class with us, you can find our newsletter at our website at: http://futureenvironmentdesigns.com/newsletter.html. 



Chrysotile Asbestos display at Thetford Mines Mineralogical & Mining Mueseum

In our current newsletter, the lead article is about "Asbestos In Current Building Materials".  We discuss how material safety data sheets (MSDS) and the new safety data sheets (SDS) cannot be used to determine if current building materials contain asbestos, especially when discussing foreign building materials.  We hope this newsletter acts as a warning to asbestos inspectors, facility directors, building managers, architects/engineers, and building owners, etc. in determining whether current and new building materials have asbestos.

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NYSDOL Responds To Call To Waive Fees

Several months ago, we called on Governor Mario Cuomo and the New York State Department of Labor to waive asbestos notification fees in response to the burden these fees created in response to Super Storm Sandy.  We received a response to our call.  Needless to say the response was not positive.  Visit our website at http://futureenvironmentdesigns.com/news.html to see the response letter. 


Sandy downed tree took out car

We are disappointed with the response and we feel Governor Cuomo and the NYSDOL, both should recognize the damage being done by this negative response.  Asbestos removals are going on without notification and without licensed contractors and trained workers.  In addition, only Suffolk County is determining if their are any asbestos problems, along with mold and lead (as reported in Newsday).  While Nassau County is ignoring the asbestos issue.  Its very sad to see the same issues that occurred during previous storms/hurricanes continue to be issues.

Related articles

• Sandy Relief - Eliminate Asbestos Notification Fees (futureenv.blogspot.com)
• FEMA Jobs to Help with Sandy Cleanup (harlemworldmag.com)
• Suffolk waives some fees for those rebuilding post-Sandy (newsday.com)
• Senators call for Sandy tax relief (newsday.com)
• Mold a Key Hurdle in Rebuilding After Sandy (newsday.com)
• New York Congressman Introduces Asbestos-related Bill (mesothelioma.com)
• NY Mesothelioma Lawyer Urges Hurricane Sandy Cleanup Crews to be Cautious about Asbestos Exposure as Relief Package Nears Completion (prweb.com)

What Out-of-State Employers with Employees Working in New York State Need to Know.

We received a recent newsletter from Dan Borgna at the Dale Group.  The newsletter discussed the Workers Compensation/Disability requirements for out-of-state contractors.  We found it very interesting with permission from Mr. Borgna of the Dale Group (Thank you for allowing us to reprint it) here is the newsletter post:  

 

If you have no office location in New York, but have employees on site in NY, this article is important to your business.

WORKERS COMPENSATION INSURANCE REQUIREMENTS

New York State workers' compensation insurance covers employees for work-related accidents, injuries or illness.   
As part of the 2007 Workers' Compensation Reform Legislation, all out-of-state employers with at least one employee working in New York State will be required to carry a full statutory New York State workers' compensation insurance policy. The workers' compensation insurance policy must be effective no later than the first day you have employees working in NY State.  

Misconception - "I have all states coverage listed in section 3.c of my home state workers compensation policy".
Reality- As part of the reform, having "all states" in section 3.c is no longer valid. "NY" must be specifically listed in section 3.a of the workers compensation declarations page or endorsement. 
Penalties - Failure to maintain this coverage can result in the following: 

1.     Failure to carry Workers' Compensation Insurance for more than 5 employees within a twelve month period is a class E felony and is punishable by a fine not less than $5,000 nor more than $50,000.

2.     For 5 or less employees within a twelve month period, it is a misdemeanor punishable by a fine not less than $1,000 nor more than $5,000.

3.     Subsequent convictions within a 5 year period shall constitute a class D felony and fines not less than $10,000 nor more than $50,000.

4.     Any employer who fails to maintain a workers' compensation policy when it is required or owes a fine or assessment to the Board may be issued a stop-work order, meaning the business must shut down all activity until the order is lifted.

5.     A penalty in the sum of $2,000 for each ten-day period of non-compliance or a sum not in excess of two times the cost of compensation for the period of such failure may be imposed 

DISABILITY BENEFITS INSURANCE REQUIREMENTS

NY State statutory disability benefits (DB) insurance coverage is totally different from and is not included in NYS workers' compensation insurance coverage. Statutory NY State disability benefits insurance covers employees for off-the-job accident, injury or illness.
If you have one or more employees for 30 days in a calendar year, you are required to obtain NYS disability benefits insurance coverage. Such insurance must be effective no later than four weeks after the 30th day you have employees.  

Penalties under the Disability Benefits Law 

1.     Failure to carry Disability Benefits Insurance is a misdemeanor punishable by a fine of not less than $100 nor more than $500 or imprisonment for not more than one year, or both, with increased monetary penalties for second and third or subsequent violations, and

2.     Where an employee of a non-insured employer is disabled due to an off-the-job injury or illness, the noninsured employer will be responsible for payment of the amount of benefits to which the employee is entitled or for payment of 1% of his/her payroll for the period of non-compliance, whichever is greater. And

3.     Where an employer fails to carry Disability Benefits Insurance, the Chair will impose a penalty not in excess of ½ of 1% of the employer's weekly payroll for the period of non-compliance and a further amount not in excess of $500 

Employees traveling through the State not stopping for deliveries, pick-ups, or other work are not deemed to have worked a day here. An employer that has reason to know that it will meet these criteria in the current year, even if it has not done so in the prior year, must obtain the required coverage.

For a complete description of the Form and Regulation, please visit the following link at the New York State Workers Compensation Board.

http://www.wcb.ny.gov/content/main/forms/oc923.pdf 

If you are concerned that your company may not be compliant, please contact Dan Borgna at Dale Group (973)437-9664 or danb@dalegroup.com who will be happy to discuss the matter with you.

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