Archive for the ‘asbestos’ Category

NYSDOH Issues New Guidance For Vermiculite Insulation

Thursday, May 9th, 2013

Back in April  2011, the New York State Department of Health (NYSDOH) Environmental Laboratory Approval Program (ELAP) along with the NYSDOH Bureau of Occupational Health (BOH) along with the NYS Department of Labor (DOL) issued a list of frequently asked questions (FAQs) that are commonly received by the agencies regarding asbestos analysis. This FAQ List was distributed to all ELAP- accredited asbestos laboratories and posted on the DOL website.

Recently, NYSDOH revised FAQ #10 “How can I tell if vermiculite contains asbestos or what sampling methods should be used? “ This new interpretation applies to renovation and/or demolishing of structures with vermiculite insulation and the origin of the vermiculite material is unknown.

NYSDOH explains in its new answer that the majority of the world’s supply of vermiculite historically came from a mine located near Libby, Montana that was closed in 1990 due to high levels of asbestos contamination. The vermiculite insulation which was often sold under the brand name Zonolite and a structural fireproofing material known as  “Monokote. Indeed, Monokote was extensively used in commercial buildings in the 1960s and 1970s. NYSDOH said vermiculite insulation from the Libby mine typically contained 1% to 5% of asbestos.

Since there is no mechanism to visually distinguish Libby Mine vermiculite from vermiculite from other mines, EPA has continued to emphasize caution when a building is being remediated and the origin of the vermiculite material is unknown. Indeed, the NYS Industrial Code Rule 56 (12 NYCRR Part 56) lists vermiculite as a suspect miscellaneous asbestos-containing material. NYSDOH advises that contractors and building owners should assume that vermiculite insulation contains asbestos.

The new answer addreses two categories of vermiculite insulation materials. For vermiculite used in thermal systems insulation, surfacing materials (i.e., spray-on fireproofing) and other miscellaneous ACM, the NYS ELAP Certification Manual Item 198.1 (PLM Friable) may be used. If vermiculite is calculated to be less than 10% of the entire material composition and no asbestos fibers are detected, the material may be reported as non-ACM. However, if any asbestos fibers are identified, an asbestos analysis must proceed according to Item 198.1 PLM and reported/managed as ACM. If vermiculite is calculated to be 10% or more of the material, the material must be reported as ACM. In other words, these building materials with more than 10% vermiculite will be presumed to be ACM and must comply with ACM notification and workpractices. This is essentially a non-rebuttable presumption because NYSDOH has taken the position that there are no reliable sampling protocols for determining asbestos content in vermiculite. It appears the only way to avoid having to manage the materials  is to verify that the vermiculite did not originate from the Libby mine (see last paragraph).

The second category of vermiculite insulation is attic fill, block fill and other loose bulk vermiculite materials. The NYSDOH guidance says this type of vermiculite poses greater public health concern because the loose material can easily release asbestos fibers if disturbed during renovation or demolition projects. Because there are no currently approved analytical methodology to reliably confirm vermiculite as non-asbestos, NYSDOH states these materials must be assumed to be  contaminated with asbestos and therefore designated as ACM.

NYSDOH did note that NYS Industrial Code Rule 56-5.1(c) allows for other documentation such as manufacturer documentation that adequately documents that a material is non-ACM (e.g., MSDS) in lieu of bulk sample analysis. The NYSDOH guidance states that this documentation, along with any available documentation indicating the origin of the vermiculite material, should be shared with the building owner for future renovation and demolition projects.

EPA Guidelines on Building Debris and Demolition Following Natural Disaster

Sunday, November 11th, 2012

Cleanup activities related to homes and businesses damaged by hurricanes or other natural disasters can pose significant health and environmental challenges. Immediate and life-threatening conditions may arise from  leaking natural gas lines, and carbon monoxide poisoning from using un-vented fuel-burning equipment indoors.

However, there are other serious hazards that are not immediately life threatening but may cause long-term health issues such as exposure to asbestos, PCBs, lead, mold and other harmful substances, EPA recommends that adequate measures be taken during emergency situations to minimize exposure to such materials from the demolition of buildings

Various federal regulations apply to building demolition activities. Areas of primary federal concern include asbestos demolition requirements, the proper disposal of electrical equipment containing PCBs (i.e., distribution transformers and capacitors) and underground storage tanks, lead-based paint, pesticides, herbicides, varnishes, pool chemicals, industrial grade cleaning solutions or other harmful substances.

EPA also suggests the segregation of various wastes streams such as:

  • automotive/marine batteries;
  • pesticide cans;
  • explosives;
  • automotive oils;
  • fuels and fluids;
  • solvents;
  • paint thinners and stripper;
  • compressed gas containers;
  • household white goods (refrigerators, washer/dryers and stoves);
  • asbestos containing materials (asbestos shingles, siding and insulation);
  • PCBs (electrical equipment such as distribution transformers and capacitors);
  • electronics (televisions, radios, stereos, cameras, VCRs, computers, microwaves);
  • tires;
  • shingles;
  • domestic garbage; and
  • preserved woods.

EPA has established a webpage “Dealing with Debris and Damaged Buildings” that provides recommendations for handling various environmental issues associated with demolition of buildings damaged by hurricanes and major storms.


Helpful Federal Resources for Homeowners and Businesses Damaged By Sandy

Sunday, November 11th, 2012

The federal Department of Housing and Urban Development (HUD)  Office of Policy Development and Research (PD&R) has prepared a number of guides, brochures, reports and other resources to assist contractors and homeowners with flood-damaged homes and buildings. Following are links to some of these resources:

  • Rehabbing Flooded Homes: A Guide for Builders and Contractors – This resource discusses methods for determining how badly a building has been damaged and how to repair it are relatively similar no matter where you are working.
  • Creating a Healthy Home: A Field Guide for Cleanup of Flooded Homes– This guide is meant for do-it-yourselfers and contractors who need to clean up mold in flooded homes before starting to rebuild or renovate. This booklet tells how to clean up after flooding, but does not describe how to rebuild.
  • The Rehab Guide– This nine-volume guidebooks covers distinct elements of housing rehabilitation. It  focuses on state-of-the-art building technologies, materials, components, and techniques.
  • Moisture-Resistant Homes– This report describes best practices for designing, building, and maintaining houses to  effectively manage moisture penetration. It addresses many common moisture-related problems that are well known to builders, homeowners, and insurers.

Centers for Disease Control and Prevention (CDC)  has a webpage for Preventing and Treating Illnesses and Injuries After a Hurricane or Flood. This page contains fact sheets and videos on various topics including the following:

The federal Department of Energy ( DOE) Building Technologies Program is partnering with State Energy Offices (SEOs) to encourage regional exchange of information and best practices. The DOE website  Disaster Recovery and Building Reconstruction provides numerous links for builders, home owners and local officials. The FEMA Hurricane Sandy website offers a wide variety of resources, including a Frequently Asked Questions Webpage- The SBA provides low interest disaster loans to homeowners, renters, businesses of all sizes and private, nonprofit organizations to repair or replace real estate, personal property, machinery & equipment, inventory and business assets that have been damaged or destroyed in a declared disaster. Information is available at the SBA Disaster Loans webpage.

Ct Upholds Limitation of Liability in Consultant Negligence Case

Thursday, December 8th, 2011

When retaining environmental consultants, one of the key issues to review in the consultant’s standard terms and conditions is the limitation of liability (LOL) clause. This clause frequently seeks to cap the consultant’s liability at the amount of its fees. Because consultants are usually expected to carry at least $1MM in liability coverage,  clients often want consultants to be liable for at least the amount of their  insurance  limits.  Depending on the relative bargaining power of the parties, a compromise amount in the form of liquidated damages is usually negotiated that will be between these two extremes (usually $50K-$100K).

The LOL are occasionally challenged as being against public policy. There have been a few cases involving school districts where the courts have not honored the LOL clause but in most private litigation, the clauses are generally upheld. A recent example is Cat Iron, Inc. v. Bodine Environmental Services, Inc. , 2011 U.S. Dist. LEXIS 123057 (C.D.ILL. 10/25/11).

In this case, the plaintiff retained the defendant to perform a complete National Emission Standards for Hazardous Air Pollutants (NESHAPS) asbestos inspection and comprehensive survey report. The standard terms and conditions of the defendant’s agreement contained a limitation of liability of the $6,100 fee for the work. The agreement also provided that ” Bodine warrants that the findings contained herein have been prepared with the level of care and skill exercised by experienced and knowledgeable environmental consultants who are appropriately licensed and trained to perform asbestos building inspections . . . Bodine used due diligence inspecting the structures and sampling for suspect [asbestos containing materials]”.

As it turned out, the defendant failed  to identify approximately 195,000 square feet of asbestos-containing building materials, consisting primari;y of exterior walls and roofing. The plaintiff incurred substantially more asbestos abatement costs than it had anticipated and filed a lawsuit in federal district court, alleging breach   of contract; breach of express warranty; ordinary negligence; willful and wanton negligence; and negligence misrepresentation.

The defendant argued that the LOL applied and because of the liability limit, the district court did not have jurisdiction to hear the case since the damages could not reach the $75K threshold.  Plaintiff asserted that the LOL was an exculpatory clause that violated public policy since both Illinois and federal law expressed interest in asbestos related matters, especially the demolition of asbestos laden buildings.

The court said that exculpatory clauses are valid and enforceable in the absence of fraud or or wanton and willful negligence, if there is substantial disparity in the bargaining position of the two parties; if upholding the exculpatory clause would be violative of the public policy; or if there is something in the social relationship between the two parties that would militate against upholding the clause.

On the public policy issue, the court agreed that the state and federal government had an interest in the health concerns associated with asbestos but that it was not clear that such concerns extended to a contract between two sophisticated corporate entities to remove asbestos from a structure. However, in a June opinion, the court reserved on the wanton and willful negligence claim and ordered further discovery.

Following discovery, the court said the plaintiff had failed to offer any admissible evidence supporting a finding that Defendant was either intentionally or recklessly willfully and wantonly negligent. The court said there clearly was no support that Defendant’s omission of the ACMs from the Report was undertaken with an actual or deliberate intent to harm the Plaintiff.  Likewise, the court said while Illinois allowed claimed of reckless willful and wanton negligence inference, a plaintiff had to show that the defendant either failed to exercise ordinary care to prevent impending danger after acquiring knowledge of the impending danger, or  failed to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. The court said the plaintiff had not offered any evidence to support either circumstance.

As a result, the court found the LOL clause to be enforceable and granted summary judgement to the defendant on the willful and wanton negligence claim. However, the court decided to continue to exercise jurisdiction over the remaining claims, ruling that those claims would be subject to the LOL.