Tuesday, July 02, 2013

DiNapoli's Audit of Asbestos Control Bureau Finds Problems

The New York State Office of the State Comptroller, run by Thomas P. DiNapoli, performed an audit titled "Assessment and Collection of Selected Fees and Penalties" of the New York State Department of Labor (NYSDOL) to determine if the NYSDOL was assessing and collecting all required fees and penalties.  The audit covered the period April 1, 2008 through July 31, 2011. The focus of this blog will be on the comments made regarding the Asbestos Control Bureau (ACB).

The overall key findings of the audit found:

  • The NYSDOL does not assess and collect all required fees and fines.  In total, the Department did not collect about $3.8 million, including associated penalties.
  • The NYSDOL does not have accurate records to show who is required to pay boiler inspection and asbestos-related project fees.  As a result, the health and safety of New York State residents may be at risk and potential revenue is not realized.
Details of this audit found:

  • Most contractors adhere to the self-notification process and pay the required project notification fee.
  • However, the Department has no method for determining whether there are other contractors that should be paying the fee, or how much the fee should be.
  • As a result, there is no way to know how much more the Department could be collecting in revenue each year.
  • To determine whether there are contractors which did not pay the required project notification fee, we obtained a list of landfills throughout the State that accepted asbestos and reviewed their associated documentation. In total, landfills accepted asbestos from 50 projects during our audit period where the amount of asbestos contaminated refuse disposed was at least ten tons.  We found that 45 out of the 50 contractors paid the project notification fee (one was exempt).  We averaged the amount paid by the 45 projects and estimate that the Department could have collected an additional $6,992 for the remaining four projects ($1,748 per project).
  • The audit noted that the project notification fee was not equitable, as small asbestos projects can pay as much as those that are much larger. For example, a project with 1,725 linear feet and 35,263 square feet would pay the same $4,000 maximum fee as a project with 1,650 linear feet and 1,000 square feet. The Department should review this structure to determine whether a more equitable fee structure could be created based on the size of a project to provide greater equity and possibly increase revenue. Fees are statutorily set and any revisions would have to be sought through a change in the statute establishing the fees.
NYSDOL ACB's response to the audit is included in the document.  That response was:
  • In 2011, NYSDOL used a reconcilitaion of Department records to ensure and verify that asbestos contractors, building owners, & others in the regulated community follow all regulations.
  • This reconcilitation included examination of air monitoring records, demolition permits, site-specific variances, surveys, & waste manifests.
  • Elevated air monitoring reports are cross checked with notifications listed in the system.
  • Demolition permits from all major cities and many towns, villages, & smaller cities have been obtained.  Local fire companies is listed as another source of information, regarding a list of fires in their area (late 2011 this started).
  • In early 2012 contact with all major landfills that accept friable waste for access to data was established.  Some of these landfills have begun sending monthly waste manifests for their site.  ACB has now expanded the contact to landfills outside NYS that accept waste from NY.
  • ACB has discussed possibly changing the fee structure, however, revisions need legislative action.
Based on the above, ACB feels this is sufficient to protect the public.  We strongly disagree!  We recommend the following, in addition to what they are already doing:
  • ACB should investigate all emergency response, plumbing, electrical, roofing, floor tile, and siding contractors for licensing and certification of their workers.  If these contractors indicate the subcontracting of asbestos work require proof of subcontracting, and proof of asbestos inspections performed before they performed work on materials that were not ACM.
  • ACB should investigate Department of Public Works, Water Authorities, and other water works companies that manage asbestos cement pipe systems for licensing, certification, and work practices. 
  • ACB should also initiate contact with landfills that accept nonfriable ACM (construction /demolition waste) throughout NYS.  Most of the illegal dumping is going on at these sites.
  • ACB should cross train the Boiler inspectors to recognize ACM.  This would allow them to inform the ACB of suspicious activities.
As we've complained before, ACB needs to spend more time/resources investigating those that are breaking the rules by not notifying, not air monitoring, and not disposing ACM properly versus those in the asbestos industry who according to Mr. DiNapoli's audit are mostly following the rules.
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