Is There an Appropriate End Date for Asbestos Use?

When we first became an asbestos consultant over 39 years ago, we remember people telling us that buildings will remove all their asbestos materials in 5 years, 10 years, or 15 years depending on who we talked to.  Well, asbestos is still in buildings and this article is about why there are many years still left in this industry.  In the construction industry, there are some who think that a certain year was the end of asbestos use in building materials.  Over the years we have reviewed many asbestos inspection reports or property transfer reports (phase I environmental audits) reporting that since a building or a part of a building was built after 1980 there are no asbestos-containing materials.  The companies making this statement assume that the federal government banned all asbestos-containing materials in 1980.  In New York State, the Department of Labor (NYSDOL), which regulates asbestos abatement, uses the year 1974 in the regulations for determining which buildings require the assumption of building materials that contain asbestos.  While the federal government, under the Occupational Safety and Health Administration (OSHA) regulation 1926.1101 (k) (1), requires building owners to presume surfacing materials, and thermal system insulations, installed prior to 1980, to contain asbestos.  To refute this presumption these materials must be sampled.  Regarding asphalt and vinyl flooring materials installed no later than 1980 must also be considered asbestos-containing or sampled to refute the designation.  In addition, the regulation also requires if the employers/building owners have actual knowledge, or should have known through the exercise of due diligence, that other materials are asbestos-containing they too must be treated as such.  Owners are required to handle these building materials as asbestos-containing materials (ACM) until a certified asbestos inspector takes samples of the materials, in accordance with the Environmental Protection Agency's (EPA's) Asbestos Hazard Emergency Response Act (AHERA), and the samples verify the materials do not contain asbestos (which usually means multiple samples of the building material have to been taken and all samples must have results that no asbestos is in the building material).  However, are 1974 or 1980 appropriate dates to use in making a determination whether building materials can contain asbestos?  We think not!

Terrazo?

The Ban and Attempts to Ban Asbestos

The federal agency with the responsibility for banning asbestos is the EPA.  This agency, under the National Emissions Standards for Hazardous Air Pollutants (NESHAPS), banned the use of asbestos for sprayed-on application of fireproofing and insulating in 1973 and for decorating purposes in 1978.  In 1975 EPA’s NESHAPS regulation also banned the installation of pre-formed (molded) asbestos block insulation on boilers and hot water tanks and the wet-applied and pre-formed (molded) asbestos pipe insulation.  Since two of these bans did not go into effect until after 1974, the New York State end of use date is not appropriate and the construction industry should not use it to determine buildings that contain asbestos.  In 1985 EPA published "Guidance for Controlling Asbestos-Containing Materials in Buildings" which has become known as the "Purple Book".  The Purple Book in Appendix A has a list titled "Asbestos-Containing Materials in Buildings".  This list shows a large number of asbestos-containing materials that were still being used in 1981.  Based on this information, it seems 1980 is not an appropriate end date for asbestos use, including asphalt and vinyl flooring materials.  Under a separate regulation, the Toxic Substances Control Act (TSCA), EPA tried to ban and phase out the use of asbestos in 1989.  In 1991 the “Asbestos Ban and Phaseout Rule,” as the rule became known as, was vacated and remanded by the U.S. Fifth Circuit Court of Appeals.  In 1993 EPA stated that corrugated paper, roll board, commercial paper, specialty paper, flooring felt, and new uses of asbestos were still subject to the ban.  Vacating the “Asbestos Ban and Phaseout Rule” meant that a number of building materials could contain asbestos such as asbestos-cement corrugated sheet, asbestos-cement flat sheet, asbestos clothing, pipeline wrap, roofing felt, vinyl-asbestos floor tile, asbestos-cement shingle, millboard, asbestos-cement pipe, automatic transmission components, clutch facings, friction materials, disc brake pads, drum brake linings, brake blocks, gaskets, ceiling tiles, non-roofing coatings, and roof coatings are not banned and could still be used in buildings.  The recent attempt to ban asbestos was made under the amended TSCA regulation.  In 2016, President Barak Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act that amended TSCA and made needed improvements to the law including requiring risk-based chemical assessments.  In 2019 EPA published a final rule called the Significant New Use Rule (SNUR).  The SNUR requires manufacturers and importers to receive EPA approval before starting or resuming manufacturing and importing or processing of asbestos.  Materials subject to this law include adhesives; sealants; roof coatings; arc chutes; beater-add gaskets; extruded sealant tape; and other tapes; filler for acetylene cylinders; high-grade electrical paper; billboard; missile liner; packings; pipeline wrap; reinforced plastics; roofing felt; separators in fuel cells and batteries; vinyl-asbestos floor tile; cement products; woven products; and any other building material.  It is obvious that this law does not ban asbestos nor does it really answer the question of how much asbestos is in commerce currently.  

Electrical wire insulation

Asbestos Used Still Today

Is there an appropriate end date for asbestos use in buildings?  Some headlines indicate the answer to this question is no.  These headlines indicate that some current building materials are contaminated with asbestos or still contain asbestos sufficiently enough for the materials to be considered asbestos-containing materials.  For example, the Asbestos Disease Awareness Organization (ADAO) reported in November 2007 that they sampled a number of current building materials and determined that DAP’s “33” window glazing and “crack shot” spackling paste and Gardner’s leak stopper roof patch all contained asbestos.  DAP’s “33” window glazing was purchased at Home Depot and Lowes for the purpose of the study and contained 2.6% tremolite, and 0.13% chrysotile asbestos (2.73% total asbestos).  DAP’s “crack shot” spackling paste was also purchased at Home Depot and Lowes and contained 0.98% tremolite, and 0.066% chrysotile asbestos (1.05% total asbestos).  Gardner’s “leak stopper roof patch,” along with other products by Gardner, is listed with the National Institute of Health as known asbestos-containing material on the open market and contained 11% chrysotile asbestos.  It is important to remember that the definition of asbestos-containing materials is any material that contains greater than 1% of asbestos in the material.  Though this does not apply to the OSHA asbestos regulation which is more concerned about how much asbestos gets in the air from a material that contains any asbestos.  In addition, the New York Times reported on July 20, 2001, that W. R. Grace & Company’s Monokote (probably #5) fireproofing spray product (used in the late 1980s) was contaminated with tremolite asbestos.  The Seattle Post-Intelligencer reported on February 8, 2005, that seven of W. R. Grace & Company’s current or former executives were indicted on federal charges that they knowingly put their workers and the public in danger through exposure to vermiculite ore contaminated with tremolite asbestos from its mine in Libby, Montana.  In 1990 W. R. Grace & Company closed the mine but the ore was used as attic and wall insulation, wallboard, and fireproofing into the early 1990s.  The asbestos content in these materials can be as high as 2%.  In research conducted by EPA on vermiculite attic insulation in 2001 and 2002, found homeowners that use their attics could be exposed to airborne asbestos fibers above the OSHA permissible exposure limit (0.1 fibers/cubic centimeters).

asbestos woven products

The Liability of Ignorance

Since there is no total ban on the use of asbestos in building materials, it means that 1974 or 1980 are not appropriate cut off dates on the use of asbestos in building materials.  This means all buildings or facilities no matter when they were constructed should be inspected for asbestos-containing materials.  EPA's NESHAP regulation 40 CFR 61.145 Standard for demolition and renovation requires buildings/facilities to be thoroughly inspected before the renovation or demolition, no matter what date the building was built.  It also means that the construction industry should be very careful when working on buildings after these dates because it is possible that if an asbestos inspection or survey was done it may have not been done properly.  From our experience, we've seen inspectors not sample roofing materials, joint compound, sheetrock, textured paint, siding shingles, and window caulking just to name a few building materials that should be sampled.  Building owners, banks, facility managers, architects, engineers, general contractors, and subcontractors should not think that because the EPA regulation requires an inspection, and if the inspection is not done correctly that there is no chance for a violation or liability.  OSHA requires that employers inform their workers of all the potential hazards at a project (job) site.  Should materials that were not inspected turn out to be asbestos-containing or even if the sample result is 1% or trace asbestos and the exposure exceeds the permissible exposure limit (0.1 fibers per cubic centimeter based on an eight hour time-weighted average) or the excursion limit (1.0 fibers per cubic centimeter over thirty minutes) the employer would be in violation of the OSHA asbestos regulation.  No matter the construction date of the building.  The building owner could then face third-party litigation from the workers if they develop a disease (mesothelioma being the most significant because of its direct tie to asbestos exposure) from such an exposure.  In addition, the AHERA regulation which applies to public and private schools (kindergarten to 12th grade)  requires that architects that design new schools or renovations of existing schools certify that the building materials used do not contain asbestos.  Utilizing safety data sheets (SDS), which are required for most building products, to certify the products would not be sufficient considering that DAP’s SDS (discussed above) did not mention the asbestos contamination in the product and the NESHAPS regulation requires building materials to be sampled for the content of asbestos.  Meaning the only way to certify the products to limit liability would be to have suspected materials sampled and analyzed for asbestos.  It is very important for building owners, banks, facility managers, architects, engineers, general contractors, sub-contractors, asbestos inspectors, and phase I environmental auditors to realize that although the asbestos regulations refer to dates before 1980, inspections are advisable and required under the EPA's NESHAPS & OSHA's asbestos regulations since the installation of asbestos-containing materials into buildings can continue to this day.

Fire Door

Future Environment Designs Training Center's Pandemic Policy, Updated Policy 06/19/21!

Future Environment Designs Training Center (FEDTC) recognizes that the safety and health of our clients and their family are our shared concerns.  We also recognize that our clients need to renew licenses that are necessary to perform work in the field and that in-person classes are required by law.  FEDTC always reserves the right to refuse to train anyone we feel may be too ill to attend a course.  We will and can hold a private class at a mutually beneficial time after they have gotten better for these individuals.  Until this pandemic has ended we will follow the following procedures to reduce the potential interactions that could increase the risk of spreading disease (on June 19, 2021, we have modified our procedures based on the revised Centers for Disease Control (CDC) Policies and that we were immunized on April 18, 2021 (Pfizer 2 shots).  This policy will remain in effect until the pandemic is over (revisions are underlined):

Social Distancing Policy:
During training classes, the instructor and the students will be requested to:

• All students & instructors before they leave home should take their temperature (it should be less than 100 degrees Fahrenheit) and document absence of shortness of breath, new or change in cough, sore throat, loss of smell or taste, and muscle aches.  They should also check the CDC website for other symptoms at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.  If possible, take the CDC self-check found at the site.  If you are ill or your temperature is above 100 degrees Fahrenheit they should call to reschedule the course.
• All students upon arrival will be asked what their temperature was before they left home, and do they have any of the symptoms of shortness of breath, new or change in cough, sore throat, and muscle aches.  We will also use a contactless thermometer to measure forehead temperature.  If students answer yes to any questions or the thermometer measurement is above 100 degrees Fahrenheit the student will not be allowed to attend training and must reschedule.
• All students will also, be asked if they are vaccinated and to show proof of vaccination (we recommend students use the NYS Excelsior Pass App).
• All students will be encouraged to bring and wear a face-covering during the training (FEDTC will provide face coverings, when available).  Students who prove they are vaccinated do not need to wear masks or social distance as per the CDC.
• FEDTC will be using our larger training rooms and advising students to sit at least 6 feet from each other and avoid person-to-person contact such as shaking hands.
• Instructors will perform all training at least 6 feet from students, will wear face coverings during training, and we are immunized.
• Cover coughs and sneezes using tissues or into the elbow of your sleeve.  To prevent droplets containing germs from entering the air or contaminating your hands.
• Wash your hands frequently with soap and water for at least 20 seconds (sing "Happy Birthday" twice).
• Use waterless hand sanitizer where soap and water (which are preferred) are not available.
• Instructors will avoid any unnecessary travel and cancel or postpone any courses they are feeling unwell or shall use a face covering while training.
• Instructors will be provided with a kit to help with the recommended procedures.

Pandemic Kit:

The pandemic kit each instructor will be provided with will include:

• Tape measure
• Surgical masks, when available
• N95 Disposable Respirators, when available
• Hand Sanitizers, when available
• Tissues
• Cleaning Disinfectant Wipes for cleaning tables
• Forehead Thermometer

Training Courses:

At the beginning of the course we will go over the basic steps for personal protection & prevention.  This will include a slide set and video regarding basic information on protection and prevention before the course begins.

FEDTC feels these steps will help reduce the risk of spreading disease and still enable students to refresh training in accordance with current regulations.  Should you have any questions feel free to give us a call.  Be safe! 

When Do Asbestos Certificates (Hard Cards) Expire Under COVID-19? New Update: No more extensions!

… … …

This question is the overwhelming number one question we at Future Environment Designs (FEDTC) are being asked at this time.  So, to answer this question we must remember that there are two agencies that regulate asbestos licensing and training.  The license (companies are licensed; individuals get certificates) or more appropriately the asbestos certificate (hard card) is issued by the New York State Department of Labor (NYSDOL).  This certificate expires annually on the last day of your birth month.  Currently, NYSDOL is enforcing expiration dates on certificates.  You may continue to work with your existing cards as long as it is not expired.  In addition, NYSDOL is no longer extending the number of days you can work with a DOH 2832 form when you took an initial course.  NYSDOL is allowing you to work with the DOH 2832 form for 45 days.

Hard card with picture (certificate) & Company license

The second agency that plays a part in this is the New York State Department of Health (NYSDOH).  The NYSDOH enforces 10 NYCRR Part 73 Asbestos Safety Program Requirements which regulates the asbestos training providers and also says that the training certificate (the DOH 2832 Form, the piece of paper you get once the class is completed) expires after one year on the date you took the training.  In addition, it has a grace period after that date that lasts a year.  Once the grace period is over you must take an initial course to get another certificate (DOH 2832) for that title.  Realize there has not been any waiver on this issue and so you will need to keep an eye on your training certificate expiration date and make sure you don't go over the grace period.  NYSDOH is now allowing virtual instructor-led courses, see FEDTC's Wednesday, May 27, 2020, blog post on the requirements for that training.  Because of this, there is no need to let your hard card or your training certificate expire.

DOH 2832 Form

Those of you who work in New York City, New York City Department of Environmental Protection (NYCDEP) regulate Asbestos Rules and Regulations, Title 15, Chapter 1 of the Rules of the City of New York.  This regulation also has certificates (NYCDEP hard cards) for individuals who are handlers, handler supervisors, investigators, and restricted handlers.  These hard cards expire every two years based on your birthday (but you must still meet the NYSDOL & NYSDOH requirements of training every year).  NYCDEP is allowing workers whose hard card expired on March 15, 2020, or later to continue to work using their existing card until August 31, 2021.  See NYCDEP's Extension of Asbestos Certification Deadline website for more information.

Hopefully, that answers everyone's questions and we hope to see you in a virtual or in-person class soon.

Top Ten OSHA Violations for 2020 and a hint to the Top Ten for 2021.

The Occupational Safety and Health Administration (OSHA) annually publishes the top ten most frequently cited OSHA standards violated in the previous fiscal year.  Unfortunately, the list has not been published yet on the OSHA website.  OSHA unveiled a preliminary list of its top 10 violations during a webinar with the National Safety Council's (NSC) Safety+Health magazine.  In the webinar, OSHA discussed the stats for the fiscal year (FY) 2020 (which runs from October 1, 2019, to September 30, 2020).  Here is the list of most frequently cited OSHA standards:

1. Fall Protection, construction (1926.501)
2. Hazard Communication Standard, general industry (1910.1200)
3. Respiratory Protection (1910.134)
4. Scaffolding, general requirements, construction (1926.451)
5. Ladders, construction (1926.1053)
6. Control of Hazardous Energy (lockout/tagout), general industry (1910.147)
7. Powered Industrial Trucks, general industry (1910.178)
8. Fall Protection - training requirements, construction (1926.503)
9. Eye and Face Protection (1926.102)
10. Machinery & Machine Guarding, general requirements, general industry (1910.212)

Proper Fall Protection and Scaffolding

It is interesting to see that Respiratory Protection moved into third place and Ladders moved into the top 5.  Considering OSHA published a list of the frequently cited standards related to COVID-19 inspections in November 2020, and that list also includes respiratory protection violations.  We may continue to see Respiratory Protection in the top three of most frequently cited violations again next year.  The COVID-19 list includes:

1. Provide a medical evaluation before a worker is fit-tested or uses a respirator.
2. Perform an appropriate fit test for workers using tight-fitting respirators.
3. Assess the workplace to determine if COVID-19 hazards are present, or likely to be present, which will require the use of a respirator and/or other personal protective equipment (PPE). 
4. Establish, implement, and update a written respiratory protection program with required worksite-specific procedures. 
5. Provide an appropriate respirator and/or other PPE to each employee when necessary to protect the health of the employees (ensuring the respirator and/or PPE used is the correct type and size).
6. Train workers to safely use respirators and/or other PPE in the workplace, and retrain workers about changes in the workplace that might make previous training obsolete.
7. Store respirators and other PPE properly in a way to protect them from damage, contamination, and, where applicable, deformation of the facepiece and exhalation valve.
8. For any fatality that occurs within 30 days of a work-related incident, report the fatality to OSHA within eight hours of finding out about it. 
9. Keep required records of work-related fatalities, injuries, and illness.

Quantifit Respirator Fit Testing System (QNFT)

In FY 2020, OSHA conducted 21,674 inspections, including 12,948 (about 60%) unprogrammed inspections, which include employee complaints, injuries/fatalities, and referrals, all of which were impacted by the COVID-19 pandemic.  In FY 2019 OSHA conducted 33,393 inspections which mean OSHA conducted 35% fewer inspections in 2020.  This reduction in inspections has been noted and criticized by the Department of Labor's Office of the Inspector General (OIG)  in its audit of OSHA.  That audit concluded OSHA received 15% more complaints in 2020 compared with the same period in 2019 but performed 50% fewer inspections.  Leading the audit to the conclusion that reduced OSHA inspections leave US workers' safety at increased risk.

     

Scaffolding Violations are number 4 for all industries & number 3 for the remediation industry

The top 10 violations in the Remediation Services Industry (which includes asbestos abatement, lead abatement, crime scene cleanups, oil spill cleanup, mold remediation, and hazardous materials remediation companies) were:

1. Duty to have fall protection (1926.0501)
2. Respiratory Protection (1910.0134)
3. Scaffolding, general requirements (1926.0451)
4. Reporting Fatality, Injury and Illness Information to the Government (1904.0039)
5. Hazard Communication (1910.1200)
6. Ladders (1926.1053)
7. Duty to have fall protection and falling object protection (1910.0028)
8. Fall protection systems criteria and practices (1926.0502)
9. Asbestos (1926.1101)
10. Respirable crystalline silica (1926.1153)

It certainly seems like fall protection has now become part of the focus in the remediation industry with 5 of the top ten involving falls.  Interesting how the respirator violations remain number two in the remediation industry.  When this should be the industry's specialty.

Mold Remediation Industry 

As you can see OSHA is still performing inspections and still issuing citations.  Though under President Biden's Administration, OSHA inspections are likely to increase, along with citations.  Which shouldn't be hard considering the few inspections conducted in FY 2020.  Though fall protection is still number one on OSHA's focus, respiratory protection is starting to creep up the ranks. 

5 Benefits of Online Safety Training by Natasha Serafimovska

The construction industry has come a long way since the early 1900s when the world was just learning about the harmful effects of asbestos and mold on people’s health. Today, Local Law 196 by the City of New York and other government regulations make safety training mandatory for all construction workers to ensure their own safety as well as the safety of others.

Online Safety Training

Despite New York's construction industry shrinking 8.5% since the pandemic hit, experts expect it to quickly recover and serve as the backbone of the U.S. economy in upcoming years. Construction in healthcare is expected to see the biggest rise with growth of 38% between 2020 and 2023. 

All of this is great news for construction workers as well as individuals who might be out of a job and thinking about joining the industry. However, this news also means that there will be an increased demand for safety training in times when physical movement and social interactions are very limited.

This is where online training can make a real difference. Traditionally associated with soft skills and IT training, online learning is a real game-changer when it comes to health and safety training. Not only is it more affordable than its face-to-face alternative, but it’s far more flexible and accessible in a time when people’s mobility is restricted.

Whether you’re looking for mold remediation certification or asbestos training classes, here we cover the top five benefits you can expect from your online safety training.

Asbestos pipe insulation

It’s More Affordable

When it comes to safety, no cost is too high. Still, the increase in job uncertainty and market volatility has made people very cost-sensitive. In a world where no job is secure, every cent counts. 

In this context, online training is a winner as online courses can be as much as 10 times less expensive than its face-to-face alternative. In-person training often requires significant logistical effort, both from the training provider and the construction worker. This includes the time the instructor needs to spend in preparing for and delivering training, printing and preparing materials, arriving at and leaving the training premises, etc. Likewise, the construction worker needs to invest time in getting to and out of their training, taking away from the valuable time they can spend working or with their families. 

 

Online training removes all of this complexity while not compromising on quality, making it a super affordable option. Learners need a computer or a smartphone with a good internet connection and they’re good to go.

Silica Sampling

Easy Access to the Latest Information

Health and safety standards are continuously updated in order to keep in line with the latest research and developments in healthcare. One clear example is the pandemic and the sudden need for training on SARS-CoV-2 for all construction workers.

However, updating materials when they’re printed and ready for distribution might not be the easiest task. Say, for instance, there was a slight change in regulations on how construction workers need to secure a space before they commence work. If the training is already scheduled for the following day, there might not be enough time to get the training materials updated in time for that training session.

However, that isn’t the case with online training. Online learning materials can be uploaded in small learning units which can easily be edited and re-uploaded to reflect the latest information on the topic. Regardless of whether you bought the training before the change was introduced, your online training materials will always be up-to-date. 

COVID-19 Training

Accessible at Any Time, Anywhere

Online safety training might not have been an option 30 or even 20 years ago because the internet was still not a thing. However, the last decade has seen a dramatic increase in the adoption of online learning across all industries. This is not only because learning technologies have greatly evolved in this period, but also because individuals have become increasingly interconnected with the use of smartphones. 

The fact that you can now get training while commuting from work or during your lunch break at work means that you can save yourself a great amount of time. No longer do you need to block out days from your calendar to take hours-long training. Nor do you need to take time off of work to finish the training before your certificate expires. Online training puts you in the driver’s seat on where and when you get trained without making any major changes to your schedule.  

It’s More Personalised

Face-to-face training works well because it’s familiar and people know what to expect. However, face-to-face training is also designed to fit the needs of the group, leaving very little room for a personalized approach to training. If you’re struggling with one part of the training, it will require an extra effort on your part to flag that up with your instructor and get additional support.

Online training makes this much easier as the instructor can often see how you’re progressing through the coursework and offer advice on additional materials you might benefit from, all from the comfort of your own home. Likewise, different people have different learning styles. While you might prefer to learn through videos, others could learn better by hearing a step-by-step guide on how something is done. Online training offers that flexibility where learning materials can come either as videos, audio recordings, or digital instruction manuals for you to use. This can make the learning process more engaging and effective and help you learn better.

Construction Safety Training

It’s Easily Scalable

When training people on-site, there’s a limit to how many people can attend the training based on compliance requirements as well as restrictions imposed by the pandemic. This could mean that you won’t be able to get your slot well into the future depending on available spaces.

This can make things complicated if your certificate is about to expire and you require to take your training within a very limited timeframe. Online training solves that problem by making it possible for any number of people to book their training at any given time. There’s no problem with over-booking or under-booking training sessions, meaning that your training is always going ahead. Not to mention that the training will always be delivered at the highest possible standard, to all people attending the course.

Online training has often been pushed to the sidelines when it comes to safety training. Some people might argue that there’s something counterintuitive in delivering safety training remotely. However, nothing can be further from the truth. A big part of what construction workers have to know has to do with observing regulations and standards and understanding how to maneuver in a potentially hazardous environment. A lot of this learning can be done online, at home, saving yourself and the instructor time and money. And that is something we can all use a bit more of today.

NYSDOL and NYCDEP Provide Guidance for Asbestos Project Designers Applying for Variances!

In our blogpost "PACNY's Environmental Conference Day Three - A NYSDOL Surprises with Fast Track Variances!"  we discussed the New York State Department of Labor's (NYSDOL) Engineering Services Unit (ESU) announcement at last year's Professional Abatement Contractors of New York's (PACNY's) 2020 Environmental Conference, of a pilot program for certain site-specific variances.  These new variances are called Fast Track Variances.  These are variances that the ESU has been issuing regularly and don't really change each time an asbestos project designer requests them.  ESU has created 10 Fast Track Variances and may create more in the future.

NYSDOL ESU's Ed Smyth discussing variances at PACNY

In addition, the New York City Department of Environmental Protection (NYCDEP) has released a service notice regarding the filing of an ACP-9 variance request "Variance (ACP-9) Filing Instructions".  The service notice gives instructions on the information that must be provided in applying for a variance from NYCDEP.  Required documents for NYCDEP include the building authorization letter; the ACP-9 form including fee ($300-$1,800); and the proposed method of work (variance proposal) and layout drawing.  NYCDEP also has the equivalent of Fast Track Variances which they call Attachments (there are 13 of them).  Visit Future Environment Designs Training Center's (FEDTC's) dropbox folder to access them.   

NYCDEP Attachment D & DI are regarding remote decons and decons inside the work area.

The process for getting a Fast Track Variance from NYSDOL ESU for all intents and purposes is the same for getting a site-specific variance.  You will still need a licensed and certified project designer to sign and complete the SH 752 application.  The application must be completed fully including the hardship.  One difference is no information about the work plan should be included in the SH 752 application.  The variance fee is still $350.  In section 9, Industrial Code Rule 56 (ICR56) Relief Sought, of the SH 752 application the designer must enter the Fast Track Variance number they are seeking.  There are 10 Fast Track Variances:

Available Fast-Track Variances

FTV Number	FTV Name
FTV-1	Negative Air Shutdown
FTV-2	Exhausting to An Interior Space
FTV-3	Elevator Door Removal
FTV-4	Fire Door Removal
FTV-5	Crawlspace with Dirt Floor
FTV-6	Intact Component Removal
FTV-7	Buried Cementitious (e.g. Transite) Pipe
FTV-8	HEPA Drilling Spot Removal
FTV-9	Air Sampling at Elevated Exhaust Duct Locations
FTV-10	Controlled Demolition with Non-Friable in Place

As you can see each variance deals with very specific situations.  We summarize these specific situations below:  

• Fast Track Variance-1 (FTV-1) is about shutting down the negative air units overnight.  The negative air units must run a minimum of 30 minutes after completion of all abatement/cleaning activity for the day and must run 30 minutes after the manometer achieves a negative 0.02 water pressure differential before entering the work area the next day. 
• FTV-2 is about exhausting negative air machines to an interior space.  The variance requires air monitoring of each negative air exhaust (no banking allowed) and must be exhausted into an existing, vacant room or an area within a larger space isolated, consistent with vacate, restrict entry, & post signs (ICR56-7.4) by barrier tape and warning signs.  The location must be adequately sized to accommodate the increase in positive pressure to the area.  All openings within 25 feet of the negative air machine exhaust must be sealed with two layers of 6 mil fire retardant poly.  The variance includes a process for elevated air monitoring results. 
• FTV-3 is about the removal of ACM filled elevator doors intact without impact to the matrix during removal operations.  Project monitor required, elevator technician involved with door removal must be allied trades certified, no waiting periods, air samples 10 feet from the barriers, and inside the work area.  The most recent final air sample results are the clearance results if they meet the clearance standard.
• FTV-4 is about the removal of ACM filled fire doors intact without impact to the matrix during removal operations.  Not surprisingly this variance seems exactly the same as FTV-3 without the elevator technician.
• FTV-5 is about the removal of pipe insulation and dirt in a crawl space.  The variance requires attached large project personal and waste decontamination unit but allows, if space limitations, for a small project personal and waste combination decontamination unit in accordance with ICR56-7.5 (c) & 56-7.5(e9).  If no public access, it allows 2-layer six-mil fire retardant plastic sheeting in lieu of hardwall barriers.  8 air changes per hour required.  Glovebags without tents allowed.  Soil removal as per American Society Testing and Materials (ASTM) 1368 (latest edition), Section 9.1.1-9.1.5 inspection criteria.  It is interesting to note that the requirement does not include 9.1.6 & 9.1.7 of the standard.  9.1.6 uses a personal sampler on the project monitor during the visual inspection as a representative indication of fiber exposure for re-occupancy and 9.1.7 discusses soil sampling in accordance with ASTM test method D7521.  In addition, to the regular air sampling for an asbestos project, air sampling inside the work area is required for the entire work shift based on the size of the project (i.e. 1-minor, 3-small, 5-large).  The project requires a prep waiting (4-hours) and a final drying/settling period (8-hour).  Clearance is based on the most recent daily abatement air samples collected during cleaning operations.
• FTV-6 is the intact removal of nonfriable ACM components.  The variance allows removal inside of tents or removal as part of a larger work area.  Removal without tents requires critical barriers and dropcloths.   Background sampling and a pre-abatement waiting period are not required.  Power tools require manufacturer equipped shroud and HEPA-vacuum.  Daily inside work area samples (i.e. 1-minor, 3-small, 5-large) required in addition to the regular during abatement samples.  The most recent daily samples will be used to compare to the clearance criteria after the visual inspection by the project monitor.  There is only one drying/settling period, time is based on the item being removed can be either 4- or 2-hours. 
• FTV-7 is for the removal of non-friable ACM transite piping from below ground.  One of the requirements is the regulated area, decontamination units, airlocks, and dumpster area shall be cordoned off at a distance of 25 feet, if not then a daily abatement air sample shall be collected in the reduced barrier.  In addition, even if you do the 25 feet condoning off, the variance requires air sampling taken on opposites of the work area at the perimeter barriers.  Extending those barriers.  In our opinion, this requirement by itself seems onerous.  We realize not all projects are in a roadway but for those projects that are this means closing the roadway or closing a few lanes or setting up a sample in the middle of the road which means your shutting that road anyway.  Meaning these projects will probably require flaggers to control the traffic around these barriers.  The variance allows the equipment operator to be allied trades (see our blogpost regarding the difference between allied trades and operations & maintenance) as long as they only excavate the soil to within 6 inches of the buried pipe and lifting the section out of the trench using nylon slings.  Requires a negative pressure tent if sawing or other methods that would render the piping friable.  Requires project monitor visual inspection to complete the project.
• FTV-8 is HEPA-drilling to allow for the installations of building system upgrades into ACM joint compound/drywall wall and ceiling.  Requires dropcloth decontamination area and dropcloth under each drilling/cutting location.  Power tools require a shroud and HEPA vacuum.  Requires wet methods (allows shaving cream or foam as a wet method).  Supervisor visual inspection as per minor projects.
• FTV-9 is air sampling of elevated exhaust duct locations.  Basically, if the negative air exhaust ducts are exhausting at a height above ground where air sampling of the exhaust is not possible, that is this variance.  We find this an interesting variance in that most consultants that work on high-rise buildings throughout the state should be applying for this variance. 
• FTV-10 is controlled demolition with nonfriables to remain.  Requires a full-time project monitor on-site and the individual will have a number of specific requirements.  One of the most interesting requirements of the variance is the requirement that the Environmental Protection Agency (EPA) Document 340/1-92-013 "EPA Guide to Normal Demolition Practices Under the Asbestos NESHAP" be consulted by the petitioner to anticipate demolition methods will cause Regulated Asbestos Containing Materials (RACM) to be created.  This EPA document published in 1992 is an excellent source of information from EPA about various demolition practices and whether those practices will cause a category I or II nonfriable asbestos-containing material to become a RACM.  Air sampling for the variance includes the usual large project requirements for air sampling plus air sampling upwind and downwind of the work area.  Soil/Earth/Dirt cleanup has to meet the ASTM 1368, Sections 9.1.1-9.1.5 inspection criteria.

OSHA Announces The Annual Increase in OSHA Penalties Effective January 15, 2021

On January 8, 2021, the Occupational Safety and Health Administration (OSHA) announced effective January 15, 2021, in accordance with the Inflation Adjustment Act has increased the maximum civil penalties (fines) for serious, other-than-serious, and posting requirements to $13,653, from $13,494.  Failure to Abate violations has increased to $13,653 per day beyond the abatement date from $13,494 and Willful/Repeat violations have increased to $136,532 from $134,937.  These civil penalty increases were mandated by Congress, on November 2, 2015, through legislation that required all federal agencies to adjust their civil penalties to account for inflation.  OSHA increased their penalties on August 1, 2016, the link to our previous blog post discussing that increase is below.  Moving forward, as the legislation requires, the penalties will be adjusted each year based on the Consumer Price index.  Click here for the 2021 increase announcement.  OSHA will continue to do penalty reductions based on the size of the employer and other factors.  The OSHA January 8, 2021 details the penalty increase, minimum penalties, gravity-based penalty amounts, and serious willful penalty reductions.  In addition, OSHA launched a new website to provide information and guidance to employers on debt collection activity.  The site is designed to help employers pay their debts with OSHA click here to visit the site.

A serious violation, as this picture shows, would now result in a $13,653 penalty. 

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