Asbestos Rules and Penalty Relief Program Update

/in /by

To Our Clients, Co-Counsel and Friends:
We write to provide you with important updates relating to the New York City Department of Environmental Protection (“DEP”). For those of you engaged in the asbestos abatement industry, we write to alert you to recently enacted changes to the asbestos rules. We also write to alert property owners in the City of New York of an opportunity to resolve violations to be heard before the Environmental Control Board (“ECB”) through the new Penalty Relief Program.

The recent amendments to the DEP Asbestos Rules, 15 RCNY 1-01 et seq., are numerous. Some of the most critical amendments include the following:

  • 1. Asbestos material must now be “Adequately Wet,” defined as complete penetration of a material with amended water to prevent the release of particulates.
  • 2. An Asbestos Investigation Report will now be referred to as an Asbestos Project Notification and
    DEP form ACP-7 should be used.
  • 3. All plastic sheeting materials used to contain or dispose of asbestos material must now be flame retardant.
  • 4. A thin coat of encapsulant must now also be applied to all surfaces in the work area that were not subject to removal or abatement including the cleaned layer of surface barriers.
  • 5. All references to “friable” asbestos material have been removed and the rules now apply to all asbestos-containing material.
  • 6. Log Book requirements have been updated and now require greater specificity including, but not limited to, daily activities, certification numbers for handlers and supervisors, and the results of daily safety checks.
  • 7. There are two new titles associated with abatement work: Project Designer (a person who holds a valid Project Designer Certificate from the NYS Department of Labor) and Project Monitor (a person who holds a valid Project Monitor Certificate from the NYS Department of Labor). All ACP-9 forms must be completed by a Project Designer.
  • 8. The following projects must be certified to the New York City Department of Buildings: (1) full demolitions; (2) alterations, renovations or modifications; and (3) plumbing work. Certification can be made by submission of an Asbestos Assessment Report (ACP-5), an Asbestos Exemption Certificate (ASB4), an Asbestos Project Completion Form, or an Asbestos Project Conditional Close-out Form.
  • 9. An Asbestos Abatement Permit and Work Place Safety Plan are now required for activities involving certain obstructions to egress and/or affecting fire or safety features.
  • 10. Asbestos Investigators must maintain a permanent record for every building survey/hazard assessment for asbestos.
  • 11. All air technicians must now possess a NYS Department of Labor Asbestos Handling License and may not have any business and/or personal relationship with the asbestos contractor (a relationship will be presumed when the same air monitor works on substantially all of an asbestos contractor’s jobs).
  • 12. The air sampling technician must maintain a detailed Air Sampling Log, not merely a Chain of Custody.
  • 13. A floor plan showing the areas to be abated must be posted in the building lobby.
  • 14. Existing light sources may not be used. Emergency lighting that is temporarily blocked due to work must be replaced by battery operated or other temporary emergency lighting.
  • 15. Glovebag procedures may only be used in conjunction with full containment of the work area or tent procedures. All glovebags must pass a smoke test.
  • 16. Within twenty-one days of completion of the project cleanup (including successful air monitoring) a Project Monitor’s Report must be submitted to the DEP.
  • 17. New sections have been added to deal with the following topics: Foam Procedure for Roof Removal; Foam/Viscous Liquid Use in Flooring Removal; Abatement from Vertical Exterior Surfaces; and Controlled Demolition with Asbestos in Place.

The ECB Penalty Relief Program permits business and homeowners to resolve any violations with the ECB that are in default. The violations will be resolved by payment of the underlying fine, without additional penalties, late fees or interest. Common ECB violations include: dirty sidewalks, failure to properly post permits, failure to properly separate recycling materials, failure to restore a street cut, illegal posting of a handbill, sidewalk obstruction and street closing without a permit. The Penalty Relief Program expires on December 21, 2009.

If you have any questions regarding this Update, a particular violation from the ECB or a general asbestos abatement issue, please do not hesitate to contact us.