NYC Asbestos Rules Update

To Our Clients, Co-Counsel, and Friends: We write to provide you with an important update relating to the New York City Department of Environmental Protection (the “DEP”) Asbestos Rules as revised effective October 13, 2009. On June 23, 2010, the DEP announced that certain activities previously subject to asbestos sampling requirements are now exempt. The DEP has recognized that the October 2009 revisions created practical difficulties. Therefore the following activities no longer require an asbestos survey to be performed and filed prior to the issuance of a permit from the Department of Buildings and the commencement of work:

  • 1. Awnings;
  • 2. Cranes (not anchored to building/structure);
  • 3. Emergency power not involving hard wiring (e.g. battery packs);
  • 4. Exterior concrete work (except if waterproofing component is present);
  • 5. Exterior scaffolding (not anchored to building/structure);
  • 6. Exterior trenching and drainage;
  • 7. Ground-mounted flagpoles;
  • 8. New storefronts in existing masonry openings (no disturbance to existing building);
  • 9. Radio antennas (towers, free standing);
  • 10. Relocating parking lot sheds (free standing);
  • 11. Replacing rooftop air conditioning unit (no modification of ductwork or disturbance of building);
  • 12. Roadway asphalt;
  • 13. Sealing unsafe or abandoned buildings with cinderblock/mortar;
  • 14. Sidewalk sheds, bridges, fences, elevators, hoists and café signs (no penetration of building materials);
  • 15. Street furniture;
  • 16. Installation of new outdoor swimming pool;
  • 17. Tents (free standing); and
  • 18. Erection of temporary structures (e.g. trailers) with water/electric lines only; and
  • 19. Applications with no physical work to be performed.

The foregoing exceptions will be reinstated to the Asbestos Rules as part of an upcoming
DEP revision. If you have any questions regarding this update, a particular building, or a general construction or environmental issue, please do not hesitate to contact us.

NYCDEP Variances for Complex Abatement Projects

To Our Clients, Co-Counsel and Friends:
We write to provide you with an important update relating to the New York City Department of Environmental Protection (the “DEP”) filing procedures for complex asbestos abatement or alteration projects. On June 1, 2010 the DEP announced that abatement contractors may now apply for a variance from the DEP that would allow the New York City Department of  Buildings (the”DOB”) to issue a permit prior to completion of the abatement activities.

The DEP has recognized that requiring all asbestos abatement activities be completed at a job site before DOB can issue a permit for any related construction work  presents an undue hardship for complex and/or multi-phased projects. This new DEP variance is intended to allow flexible phasing of projects.

The DEP Asbestos Technical Review Unit, in consultation with the New York City Fire Department, will determine whether to grant or deny a variance application. In order to receive a variance you must complete the Asbestos Variance Application (ACP9) and comply with the following steps:

  • 1. Obtain DOB Approval (Application for Construction Document Approval (PW1 Form));
  • 2. Submit ACP7 and ACP9 Forms to DEP Asbestos Technical Review Unit;
  • 3. Obtain DOB Permit (by way of submitting the Variance to DOB);
  • 4. Abatement and DOB-permitted work commences (a party may not engage in asbestos abatement work and DOB permit work simultaneously in the same work area); and
  • 5. DOB Permit Sign-Off (upon submission of all ACP20 and ACP21 forms, the DOB permit can be signed-off).

If you have any questions regarding this update, a particular building or a general construction issue, please do not hesitate to contact us

New EPA Lead-Based Paint Rule Effective This Week

To Our Clients, Co-Counsel and Friends: We write to provide you with an important update relating to the Renovation, Repair and Remodeling Rule promulgated on April 22, 2008 (effective April 22, 2010) by the United States Environmental Protection Agency (“EPA”), 40 C.F.R. 475 (the “Rule”). The Rule regulates lead-safe work practices for owners of rental properties and contractors who renovate, repair, or prepare surfaces for painting (“Lead Paint Activities”) in pre-1978 buildings used as homes, child-care facilities or schools. The Rule’s requirements can be divided into certification and training, notice, record-keeping, and work practices.

It is critical to note that this update addresses the Rule as it pertains to Lead Paint Activities as defined above. Lead Paint Activities do not include lead paint  abatement. The Rule defines “abatement” as “any measure or set of measures designed to permanently eliminate lead-based paint hazards.” This, of course, is different and distinct from renovation activities that may disturb lead-based paint.

Certification and Training:

Effective April 22, 2010 all (1) property owners of rental housing or child-occupied facilities (“Property Owners”);1[1] and (2) contracting firms must be certified by the EPA before performing any Lead Paint Activities. All Renovators (individuals directing or performing Lead Paint Activities) must be trained pursuant to an EPA accredited training course before they can become certified. Individuals who have previously completed an accredited lead-based paint abatement worker/supervisor course, or EPA, Department of Housing and Urban Development renovation training course may be eligible for the four (4) hour refresher course in lieu of the eight (8) hour
initial renovator training course.

To become certified a Property Owner or contracting firm must submit the Application for Firm Certification with payment of the appropriate fee (fees will vary  depending on the number of states and type of certification sought). EPA has ninety (90) days from receipt of your application to approve or disapprove. Certification lasts for five (5) years. Every five (5) years renovators will be 1[1] The requirements discussed in this update do not apply to homeowners engaging in Lead Paint Activities in their own home. required to take a refresher training course.


Prior to commencing Lead Paint Activities contracting firms must: distribute EPA’s information pamphlet entitled Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools to the owner and occupants and/or parents of the children attending a child-occupied facility. In lieu of such distribution, if the premises is a multi-family housing or childoccupied facility, informational notices may be placed in visible locations on the premises describing the nature, location and dates for the Lead Paint Activities.


All documents must be retained for three (3) years following the completion of the Lead Paint Activities. Documents that must be retained specifically include, but are not limited to: reports certifying that lead paint is not present; records relating to notice; any documents exempting the premises from compliance with the Rule; and all documents supporting compliance with the Rule.

Work Practices:

Renovators must ensure overall compliance during Lead Paint Activities. A Renovator’s duties include the following: using EPA acceptable materials; providing training to all workers engaging in Lead Paint Activities; and remaining physically present at the premises during Lead Paint Activities.

If you have any questions regarding this update, a particular building or a general construction issue, please do not hesitate to contact us.

Critical Insurance Coverage Issues

To Our Clients, Co-Counsel and Friends:
We write to provide you with an important update relating to recent efforts by various insurance carriers to exclude certain coverage most critical to contractors and property owners in New York. Our firm is presently litigating various issues arising out of these very circumstances.

Contractors rely on their General Liability Insurance (“GL”) to guard themselves and their additional insured parties (usually the property owner and, where applicable, a general contractor and/or construction manager) against claims of property damage and personal injury. Further, the Workers’ Compensation Law and the statutorily-prescribed Workers’ Compensation Insurance protect the contracting firm from suit brought by an injured employee and compensate the employee for the injury. However, the practical reality is that an employee of the contracting firm who is injured on a jobsite might sue the property owner, i.e., an additional insured on the contractor’s GL policy. The owner would then normally make a claim against the GL policy and should be covered for the claims of the employee thereby receiving the benefits of defense and indemnification as
promised by the contractor’s GL carrier.

In recent years, however, carriers have begun to add exclusionary endorsements to policies issued to contractors who, at a minimum, perform work in New York. These exclusionary endorsements, referred to by some carriers as “Employee Liability Exclusion Endorsements,” remove from the otherwise applicable GL coverage any claims arising out of an injury to the employee of the primary insured party, i.e., the contractor. By proxy, therefore, the contractor’s additional insured party, i.e., the property owner, is not covered for any claims arising out of an injury to an employee of the contractor.

As such, when the property owner is sued by the injured employee, its claim against the contractor’s GL policy is denied and the owner is forced to make a claim under its own policy. The property owner’s insurance carrier then exercises its right of subrogation and brings a third-party action against the contractor (though the employee cannot sue the contractor directly, the Workers’ Compensation Law does not prohibit this apparent end-around).

In light of the foregoing, it is absolutely critical for all contractors and property owners to verify the existence of appropriate coverage. Regrettably, we have seen cases where a carrier has amended the language of a contractor’s GL policy without proper notice.

If you have any questions regarding this Update or a particular insurance coverage issue, please do not hesitate to contact us.

Collecting Payments on Construction and Demolition Projects in the Present Economy

To Our Clients, Co-Counsel and Friends:
Not a single recipient of this Update needs us to advise you that the economy is in a troubling condition. The mainstream media has focused the public’s attention on the status of the banking industry, the stock market and the federal bailout of the auto industry. The question that we discuss here, however, is what the  status of the economy means for the construction  industry and how our clients can best protect themselves in this difficult economic climate.

Lehman Brothers filed for bankruptcy. Merrill Lynch and Wachovia were bought-out. Fannie Mae and Freddie Mac were taken over by the federal government. The banking industry is in a state of flux and still quite reluctant to issue new financing vehicles or otherwise to extend existing financing. Owners have run out of funds and contractors are running out of time. But what does that mean for those of us in the trenches building our nation’s infrastructure? The answer is fairly obvious: payments on construction, demolition and abatement projects have slowed and, in many cases, stopped.

Indeed many contractors have sought our counsel on this very issue. Our advice is fairly simple: make all amicable attempts at payment but, if not successful, the contractor must file a Mechanics’ Lien. The statute of limitation for filing a Mechanics’ Lien in New York is eight (8) months and in New Jersey is 90 days, both running from the last date that work was performed on a project. After our office files and serves the Mechanics’ Lien we can then initiate an action to foreclose on the lien. If, however, a Mechanics’ Lien is not timely filed the contractor cannot maintain an action to foreclose on the lien and will be left with only the somewhat more challenging breach of contract action.

Indeed, given the state of the banking industry, the increase in Mechanics’ Liens has been staggering. For example, the number of Mechanics’ Liens filed in New York City skyrocketed from a monthly average of 394 in 2006 to a monthly average of 769 in September, October and November 2008. We expect this number to continue to rise as contractors find themselves with ever-increasing accounts receivable.

If you have any questions regarding this Update, a particular claim for payment or a general construction or environmental law issue, please do not hesitate to contact us.

New Department of Buildings Enforcement Programs

To Our Clients, Co-Counsel and Friends:
We write to provide you with important updates relating to recent initiatives of the New York City Department of Buildings (“DOB”) arising out of various new Local Laws of the City of New York.

The DOB is enforcing new Local Laws pertaining to standpipes and sprinkler systems that go into effect during 2010. Additionally, the DOB has recently begun enforcing the 2007 New York State Energy Conservation Construction Code in an effort to reduce carbon emissions.

Effective February 4, 2010 Local Law 63/09, regulating pressure testing of standpipe and sprinkler systems, now requires that such testing be performed by either a licensed master plumber or a licensed fire suppression contractor. For new buildings, hydrostatic pressure testing must now be conducted at 75 feet, 175 feet and for every 100 feet thereafter. Also effective February 4, 2010 Local Law 64/09, regulating Standpipe Pressurized Alarm Systems, has been revised to require that
a registered design professional file the installation application. Further, the following parties are now required to have a permit for installation: licensed electrician, licensed master plumber and licensed fire suppression contractor. Before any planned deactivation of the system or upon discovery of an out of service standpipe, the fire department must be notified.

Effective March 2, 2010, pursuant to Local Law 58/09, all exposed standpipes and sprinkler pipes must be painted red and the valve handles must be color coded as follows: red for a designated standpipe, green for a designated sprinkler and yellow for a combination. These color code requirements apply to all buildings regardless of size or occupancy. Existing buildings must be brought into compliance no later than June 2, 2010. Compliance for new buildings should be certified by the special inspector prior to enclosing the wall. Compliance for existing buildings should be certified by one of the following persons: licensed master plumber, licensed master fire suppression piping contractor, registered design professional or a person with appropriate fire
department certification of fitness. The Color Coding Certification must be kept on the premises at all times.

Finally, the DOB has begun enforcing the 2007 New York State Energy Conservation Construction Code which applies to all new buildings, residential or commercial, and to substantial rehabilitation of existing buildings (defined as Alteration Types 1, 2, or 3). The Code includes detailed requirements for envelope systems, HVAC and hot water systems, and lighting and power

If you have any questions regarding this Update, a particular building or a general construction issue, please do not hesitate to contact us.

Asbestos Rules and Penalty Relief Program Update

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.