NYS Mold Law Changes, Licensing Requirement Goes Into Effect January 1, 2016

On July 25, 2015 Governor Andrew Cuomo signed the Chapter Amendments to Article 32 of the New York State Mold Law.  The Chapter Amendments modify Article 32 adding new information, clarifying wording, and most importantly adding a deadline for licensing.  The deadline for licensing is now January 1, 2016.  

To assist people with the licensing requirements, Future Environment Designs has submitted three courses (mold worker, a two day course; mold remediation contractor a three day course; and mold assessment consultant, a four day course) for approval to New York State Department of Labor (NYS DOL).  We are hoping to be approved before November so we can start holding these classes in November & December, 2015 (give us a call to make arrangements).  

Mold Remediation Project in Nassau County. Licenses will be Required by 01/01/16.

NYS DOL has created a NYS Mold Program website.  At present, it has the original legislation, the chapter amendments and sample course outlines for the three licenses, along with an FAQ.

In our blogpost on February 7, 2015 we discussed the details of the law.  Some of the Chapter Amendments to Article 32, that revises the law include:

• a modification of the definition of mold to "any indoor multi-cellular fungi".
• Addition of the word "Project" and its definition, "means mold remediation, mold assessment, or mold abatement, of areas greater than ten square feet, but does not include (a) routine cleaning or (b) construction, maintenance, repair or demolition of buildings, structures or fixtures undertaken for purposes other than mold remediation or abatement."  So licensing is not required for routine cleaning (this seems like it could be abused) and mold projects 10 (2' x 5') square feet (SF) or less.
• The addition of "on a project" for what is unlawful.  For example, "It shall be unlawful for any individual to engage in mold abatement on a project or to advertise or hold themselves out as a mold abatement worker unless such individual has a valid mold abater's license issued by the commissioner."  The same has been added to the mold assessment & remediation licenses.
• Changes were made to the minimum requirements to get a mold assessment license.  Particularly a requirement for insurance to get the mold assessment license.  The mold assessment business entity "must provide insurance certificates evidencing workers' compensation coverage, if required, and liability insurance of at least $50,000 providing coverage for claims arising from the licensed activities and operations performed pursuant to this article."
• Substantial change to the minimum requirements for a mold remediation license include the elimination of the requirement for a financial statement audited by an independent auditor.  Mold remediation license will require providing "insurance certificates evidencing workers' compensation coverage, if required, and liability insurance of at least $50,000 providing coverage for claims arising from the licensed activities and operations performed pursuant to this article."
• Fees were changed.  Mold Remediation license fee is to be between $500 - $1,000.  Mold Assessment license fee is to be between $150 - $300.  Mold Abatement (worker) license fee is to be between $50 - $100. 
• Exemptions have changed.   Added to the list are "an owner or a managing agent or a full-time employee of an owner or managing agent who performs mold assessment [or], remediation, or abatement on a residential apartment building of more than four dwelling units owned by the owner provided, however, that this subdivision shall not apply if the managing agent or employee engages in the business of performing mold assessment [or], remediation, or abatement for the public;" and "a federal, state or local governmental unit or public authority and employees thereof that perform mold assessment, remediation, or abatement on any property owned, managed or remediated by such governmental unit or authority."
• Nothing has really changed between the difference between assessment and remediation and the conflicts of interest between them.
• One minor change was done to the minimum work standards which was a rewording and the replacement of "must" with "may".  Basically removing the requirement of a containment, and allowing a remediation plan not to require containment.

Mold Licensing will not be required for projects 10 SF or less or routine cleaning.

 Since NYS DOL has moved forward with the training requirements and has started the process of approving training providers, the next steps seem to be clarifying who is required to be trained for mold assessment and remediation (owners, supervisors, foremen, industrial hygienists, etc.).  In addition, the standards for assessment and remediation need to be fleshed out for a better understanding of what is expected.  Another words still alot to do between now and January 1, 2016. Tick Tock! Tick Tock!

Related articles

• Mold Legislation Threatens Restoration/Remediation Industries(futureenv.blogspot.com)

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Confined Spaces In Construction Goes Into Effect August 3, 2015

On August 3, 2015 the new Occupational Safety and Health Administration (OSHA) standard Subpart AA confined spaces in construction goes into effect (1926.1200-1213).  This standard is very similar to the confined space standard in general industry (1910.146).  OSHA recently announced that enforcement of the new standard is being postponed until October 2 to allow additional time for the construction industry to train workers and purchase equipment.  OSHA will not issue citations to employers making a good faith effort to comply with the standard.  Factors OSHA will consider if an employer is making a good faith effort to comply are:

1. If the employer has not trained its employees as required under the new standard, whether the employer has scheduled such training,
2. If the employer does not have the equipment required for compliance with the new standard, including personal protective equipment, whether the employer has ordered or otherwise arranged to obtain such equipment required for compliance and is taking alternative measures to protect employees from confined space hazards, and
3. Whether the employer has engaged in any additional efforts to educate workers about confined space hazards and protect workers from those hazards.

The standard does not apply to construction work regulated by:

1. Subpart P Excavations.
2. Subpart S Underground construction, caisson, cofferdams, & compressed air
3. Subpart Y Diving

The standard requires the employer to comply with this standard and any other provisions that are required in other standards that apply to confined space hazards (i.e., welding).

Like most standards it begins with definitions (1926.1202).  Most of them are again similar to the general industry standard.  For example the definition of a confined space means a space that:

1. Is large enough & so configured that an employee can bodily enter it;
2. Has limited or restricted means for entry and exit; and
3. Is not designed for continuous employee occupancy.

Confined Space Testing & Monitoring in Brooklyn

However, some of the more interesting changes entail the difference between construction and general industry.  For example the definition for a "Controlling Contractor" is the employer that has overall responsibility for construction at the worksite.  There is a note attached to this definition which indicates if the controlling contractor owns or manages the property, then it is both a controlling employer and a host employer. 

Entry employer means any employer who decides that an employee it directs will enter a permit space. The note on this definition warns that the employer cannot avoid the duties of this standard by refusing to decide.  OSHA will consider the failure to so decide to be an implicit decision to allow employees to enter those spaces if they are working in the proximity of the space.

The standard defines host employer as the employer that owns or manages the property where the construction work is taking place.  This definition also has a note that states if the owner of the property on which construction activity occurs has contracted with an entity for the general management of that property, and has transferred to that entity the information specified in 1203(h)(1), OSHA will treat the contracted management entity as the host employer for as long as that entity manages the property.  Otherwise, OSHA will treat the owner of the property as the host employer.  In no case will there be more than one host employer.

The general requirement of the standard requires each employer (host employer, controlling contractor, & entry employer) must ensure that a competent person identifies all confined spaces…and identifies each space that is a permit space, through consideration and evaluation of the elements of that space, including testing as necessary.  

Two interesting sections of the standard are 1926.1203(h) which dictates Permit Space Entry Communication & Coordination and 1926.1211 which dictates Rescue & Emergency Services.  Permit Space Entry Communication & Coordination (Section 1926.1203(h)) spells out what is expected in the communication and coordination between the host employer, controlling contractor and the entry employer. While the Rescue & Emergency Services (1926.1211) spells out the requirements for an emergency/rescue service entity (1926.1211(a)) or if the entry employer will designate employees to provide permit space rescue and/or emergency services (1926.1211(b)).

According to OSHA this new standard will improve safety and protect nearly 800 construction workers a year from serious injuries and reduce life-threatening hazards.  Training requirements for entrants, attendants, and supervisors are relatively the same as the general industry standard.  Give us a call and we can provide this training, at your location or ours.

Electronic Cigarettes & Vaping Catching on With High & Middle Schoolers

A recent YouTube video highlights the issues with electronic cigarettes.  These popular gadgets have become very popular with teens & tweens with their usage doubling from 2011 to 2012.  They are also very controversial with very little research available on there effectiveness.  In addition, there is very little regulation on e-cigarettes and the amount of nicotine in them.  New York City is one of the few governments that treats e-cigarettes as the same as regular cigarettes as part of the amendments of the Smoke-Free Air Act of 2002.    

According to WebMD, "all e-cigarettes work basically the same way.  Inside, there's a battery, a heating element, and a cartridge that holds nicotine and other liquids and flavorings.  Features and costs vary.  Some are disposable.  Others have a rechargeable battery and refillable cartridges.  Using an e-cigarette is called "vaping"."

One of the major concerns with e-cigarettes is the liquid nicotine that is used.  Since nicotine is highly addictive, e-cigarette users will have withdrawal symptoms of irritability, depression, restlessness, & anxiousness.  Nicotine is dangerous to people with heart problems and may damage arteries over time.  Many of these products claim to be nicotine free, however, testing has shown that some may have varying levels of nicotine in the vapor.

The purpose of these e-cigarettes were to help smokers with their smoking cessations programs.  However, these are now being marketed and popularity is bringing them to underage students (primarily because there are no laws limiting their sale to minors - there are some laws regarding nicotine and liquid nicotine, but not enough).  A Centers for Disease Control (CDC) study found that during 2011-2013, the number of youths who had never smoked a cigarette but had used e-cigarettes at least once increased three-fold (from 79,000 in 2011 to 263,000 in 2013).  Never-smokers who had ever used e-cigarettes were nearly twice as likely to have an intention to smoke conventional cigarettes than never smokers who had not used e-cigarettes (43.9% vs 21.5%).

According to Fortune Magazine, e-cigarette sales in the United States, were estimated to be $1.5 billion in 2014, with estimated growth of 24.2% per year through 2018.  With the current state of lack of regulations are we looking at a next generation of smokers hooked on nicotine from e-cigarettes and hence the next health crisis.  It may be time to start regulating this industry specifically the use of nicotine in these products.  Truth in advertising would go a long way to resolving many of the concerns with this potentially useful gadget.  

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NIH Still Active in Gulf Region Five Years After Oil Spill

NIH Still Active in Gulf Region Five Years After Oil Spill - as we've written in the past, the increase use of respirators during disasters is a necessary step to prevent worker exposure to contaminants that make them sick immediately or in the future.  Respirator use during disasters continues to be optional when it should be mandatory.  Disasters typically involve exposures to asbestos, silica, lead, poly-chlorinated biphenyls (PCBs), etc.  The only way to protect yourself from many of these contaminants is through the use of properly fitted air-purifying respirators.

English: Respirator (Photo credit: Wikipedia)

A properly fitted air purifying respirator will protect workers for most disaster and demolition exposure issues.  Providing workers with this type of respirator requires that you meet the Occupational Safety and Health Administration's (OSHA) 1910.134 respirator standard.  The standard is not that difficult to comply with.  It does require a plan for respirator use (selecting the type of respirator that will protect workers), medical evaluation for employees using respirators (to ensure they can wear the respirator), fit testing (to ensure the employee wears the correct size and it fits), and training the worker (so they know how to wear a respirator and its limitations).  There are other requirements but these are minimal compared to the four main requirements listed above.

John Stenhouse's respirator (Photo credit: Wikipedia)

As respirator use increases, we suspect improvements will be made to make them more comfortable, easier to use, and easier to get a proper fit.  We hope the lessons of Hurricane Katrina, the 9/11 World Trade Center, and Gulf-oil spill disasters lead us to ensure respirators are used in the next disaster as we saw many wearing during the Hurricane Sandy Disaster.

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NYSDOL Roundtable Highlight of PACNY Environmental Conference

The Professional Abatement Contractors of New York's (PACNY's) 19th Annual Environmental Conference started with lots of buzz and the conference did not disappoint.  The conference had over 800 total attendees for the three days.  The Vendor Exhibit Hall had over 25 exhibitors (an increase from last year) including a bunch of new exhibitors like RJ Lee Group, US Micro, & the Zonolite Attic Insulation Trust added to the old standbys of Aramsco, DiVal, Fiberlock, & Grayling Industries.  The conference organizer Deborah (Johnson) Sanscrainte, from Aramsco, did a fantastic job putting together the conference while also bringing a new life into the world.  Lisa Brown was her beautiful self greeting everyone and registering the attendees (and commenting on men's hosiery).  The conference planning committee went overboard putting this year's conference together.  From our understanding the last day of the conference only came together a week or two before the conference.

Panorama View of the Vendor Hall from DiVal's Safety Ladder

The first day of the conference which has become known as Proficiency Day and involved a new audience polling process that involved using the attendees messaging device to poll the audience.  As usual it was very informative in learning anonymously what the audience's answers were on particular topics.  This year the polling device was used for the entire conference (much better than last year's devices).  Presenters included Diana Wolgemuth of Dale Carnegie (great take away was the 6 x 6 rule for slides); Kevin Malone of NYS Department of Health (NYSDOH); Andy Oberta of the Environmental Consultancy & Sean Hart of Energy & Environment, discussing "Visual Inspection: Comparing ASTM E 1368 and NYSDOL Rule 56".  Mr. Malone filled us in on the 2014 training statistics - NYSDOH issued 27,790 certificates based on 3,481 courses that were held.  In addition, Mr. Malone provided us with this link http://www.gpo.gov/fdsys/search/home.action to find electronic copies of the most up-to-date federal regulations.

Linda Reinstein & the author at the Future Environment Designs Booth

The second day of the conference was even better including presentations by Brent Kynoch of the Environmental Information Association (EIA); Linda Reinstein of the Asbestos Disease Awareness Organization (ADAO) discussing "Asbestos - The Human Cost of Inaction" visit slideshare for her presentation; Christopher Alonge from Dormitory Authority of the State of New York (DASNY) and Matthew Darin from Bluepoint Environmental did a joint presentation on "New NYS Mold Bill...SIGNED!" logistically it should be interesting to see how NYSDOL handles the bill; Matt Sanchez from RJ Lee Group discussing "Amphibole type and Morphologies that Occur in Vermiculite from Select Sources Around the World"; Dr. Marty Rutstein discussing "Asbestos Abatement, how did we get HERE and WHERE are we going?"; Dr. Barry Castleman discussing "Criminality and the Global Asbestos Industry"; Mr. Andy Oberta of the Environmental Consultancy discussing "Exposure Assessments in Asbestos Abatement: Understanding and Using ASTM D7886" which interesting lead to a disagreement with the audience on whether he had achieved an actual negative exposure assessment; and Mr. Jack Springston of TRC Environmental Corp discussing "Industrial Hygiene Lessons Learned from the World Trade Center Disaster" whose presentation was perfectly timed to allow for the Cocktail Hour in the Vendor's Hall.

Jack Springston presenting IH Lessons Learned from the WTC

The third day of the conference was the best day especially with NYSDOL bringing all the major players who regulate the asbestos industry and the soon to be regulated mold industry.  The third day started with the awarding of the door prizes and an impromptu presentation by Tom Meade, the Executive Director of PACNY.  The presentation/rant was discussing the information received from NYSDOL through the FOIL process regarding revenue generated by NYSDOL in 2011, 2012, & 2013 (visit our FED Course CD under Helpful Links and General Information for FL-14-0583) and the process of trying to incorporate A3675 notification bill through the budget process (a very frustrating process with what seems to be unintended consequences).  Mr. Ed Cahill from EMSL discussed the "New Vermiculite Method 198.8", it will be interesting if they do decide to expand the 198.8 method and/or the Lab 55 method into other vermiculite containing materials.  The final presentation was the NYSDOL round table led by Dr. Eileen Franko, and included Mr. James Meacham, PE, Acting Program Manager, Asbestos Control Bureau; Mr. Edward Smith, PE, Associate Engineer, Engineering Services Unit; Mr. Kirk Fisher, Program Manager, Licensing and Certification Unit; and Senior Attorney Mr. Matthew Robinson-Loffler.  One thing you definitely got from this round table is that the asbestos control program is probably the most organized it has ever been.  In addition, more changes were announced, NYSDOL has hired Mr. Don Pearce away from NYSDOH.  Mr. Pearce was working on the Environmental Protection Agency's (EPA) Grant regarding Asbestos Hazard Emergency Response Act (AHERA) audits on schools.  EPA is now coordinating with NYSDOL to perform the grant.  It will be interesting to see how NYSDOL handles these inspections since they have enforcement capabilities where NYSDOH did not.  Mr. Alonge must have disappointed to hear that the proposed changes to Industrial Code Rule 56, that he wrote before he left, are now dead and being rewritten again.  NYSDOL is getting lots of support (probably more information than they need)  in creating the mold regulations but it is obvious that NYSDOL is expecting the new Assembly A4759-2015 & Senate 3674-2015 Bills to help them and give them more time to create the regulations.

NYSDOL Roundtable Panel

Overall this was one of the best PACNY conferences, but we think we say that every time we write about the conference.  There are lots of conferences out there fighting for our time.  However, very few deliver on the ability to meet people in the remediation industry that are leading the way and trying to make a difference.  In addition, the conference provides the ability to meet regulators and ask questions that directly impact the work we do.  PACNY's environmental conferences, over the years, has delivered this every year and we suspect will continue to deliver on this type of access into the future.  Plus it's a fun place to learn and enjoy a break from the day-to-day grind of work. We look forward to next year!

Told you it's a fun place!!

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