Tuesday, December 11, 2018

NYC Department of Environmental Protection Asbestos Rule Amendment Goes Into Effect January 6, 2019

New York City Department of Environmental Protection (NYCDEP) posted a "Notice of Adoption of Final Rule" that goes into effect January 6, 2019.  This Asbestos Rule Amendment includes quite a few changes to Chapter 1 of Title 15 of the Rules of the City of New York.  For a copy of the Asbestos Rules Amendment, click here.  In addition, going into effect on January 6, 2019, is the "Promulgation of Air Asbestos Penalty Schedule".  This penalty schedule has been incorporated into Title 15 and includes the revised violation schedule for the changes made to Title 15 by the Amendment.  For a copy of this Penalty Schedule, click here.

Asbestos Training Course
As expected most of the changes to Title 15 was in response to the almost year ago indictment and arrest of the 17-18 NYCDEP asbestos investigators, see below for the press conference or click here for Spectrum News NY 1's report.  Those indictments included recommendations from the New York City Department of Investigations (NYCDOI) click here to see the press release on the arrests and the summary of recommendations made by NYCDOI.


Some of the changes regarding asbestos investigators:
  • Subchapter A Section 1-01 subdivision (j) (3) now allows NYCDEP may block an asbestos investigator from filing an ACP5 form along with the previous wording of denying asbestos permits for non-payment of civil penalties by the abatement contractor, building owner or air monitoring company,
  • A requirement of an electronic recordkeeping system and to protect records from water damage, and a requirement to immediately report if any records are damaged, lost or destroyed,
  • Non-certified individuals may not collect bulk samples,
  • New applicants must submit documentation of successful completion of an 8 hour minimum introductory blueprint-reading course or any applicable building design and construction training or certification as established by the department and posted on the NYCDEP website,
  • Registered design professionals, certified industrial hygienist or certified safety professionals must have documentation of 6 months post-graduate experience in building survey for asbestos,
  • Associate Degree individuals must have 2 years (instead of one year) post-graduate experience in conducting surveys for asbestos,
  • Individuals with extensive experience must show 3 years (instead of two years) of experience in conducting surveys for asbestos,
  •  Applicants are allowed three attempts to achieve a passing grade on the exam.  After the third attempt results in failure, the applicant must retake the New York State Inspector Training to retake the NYCDEP exam, 
  • Section 1-16 letter (j) gives NYCDEP the authority to deny any application submitted if it is determined the applicant has failed to meet the six standards listed,
  • Section 1-16 letter (k) gives NYCDEP the authority to immediately suspend an investigator issued a notice of violation alleging unprofessional conduct that demonstrates a willful disregard for public health, safety or welfare,
  • Section 1-16 letter (l) gives NYCDEP authority for reasonable cause to believe an investigator's surveys have been performed improperly or fraudulently such that work performed poses or may pose a threat to human safety, the Commissioner may invalidate any or all ACP-5s filed by the investigator and may order the building owner to stop all work, have a new survey conducted by a different investigator, and have a new ACP5 submitted.
  • Section 1-16 letter (m) investigators must disclose prior convictions, etc.
  • Replacement certificates may only be obtained twice in any two-year validity period.
  • The addition of the number of samples required based on Surfacing Materials, Thermal System Insulation, and Suspect Miscellaneous Materials.
  • Skim coat of joint compound included in surfacing materials utilizing 3,5,7 rule.
  • Bulk Sample results/reports must be submitted within 72 hours of request (used to be 5 calendar days).
What's wrong with this picture?
Some of the changes regarding other parts of Title 15:

  • Several other definition modifications or changes, including:
    • Bound Notebook -notebook manufactured so that the pages cannot be removed without being torn out,
    • Start Date - shall mean the date when a worker decontamination enclosure system is installed and functional,
  • Approved Variances changes including automatically canceling a written approval of a variance when the building owner changes contractors,
  • Section added to experience requirement of asbestos handler supervisor,
  • Sections added to the renewal of restricted asbestos handler certificate,
  • Work Place Safety Plan's (WPSP) floor plans must now also show the location of the decontamination enclosure systems along with all project work areas,
  • Failure to comply with the approved WPSP is a violation of these rules was added.
  • A requirement that a registered design professional must submit a letter to the Asbestos Technical Review Unit affirming that the professional visited the workplace and that additional asbestos abatement, for the additional ACM added to a project, is consistent with the approved WPSP and the proposed changes will not impact egress or fire protection.
  • Electronic recordkeeping of the project record for abatement projects,
  • Air Monitoring Company must maintain electronic records for 30 years after the end of the project including:
    • NYCDEP Certificate number of all individuals who worked on the project;
    • location & general description of the project;
    • start and completion dates for the project;
    • name, address, & ELAP registration number of the laboratory used for air sample analysis;
    • a copy of the project air sampling log.
  • One air sample technician must be present per 3 work areas in one work site.
  • A rotometer's calibration sheet must be available at the worksite,
  • Project air sampling log must be created & maintained in a bound notebook by the air monitoring company.  A copy of the log must be submitted within 72 hours of a request, used to be 24 hours.
  • Sample location sketches must be made within one hour of the beginning of sample collection.
  • Air sampling results/reports must be submitted within 72 hours of request (used to be 5 calendar days).
  • OSHA personal sampling must be made available within 72 hours of request.
  • Entry and exit log must be submitted within 72 hours of a request, used to be 48 hours.
  • Glovebag procedures may only be used on horizontal piping.
  • The addition of on any individual floor for tent procedures.
AHERA TEM method counts for total asbestos structures per cubic centimeter averaged 22 times greater than the PCM fiber counts on the same filters.

Considering this was primarily focused on the indicted asbestos investigators and recommendations from NYCDOI, there seemed to be a lot of things NYCDEP needed to clean-up in other parts of Title 15.  It is interesting that third-party analysis recommended by NYCDOI was left out of the amendment, and Future Environment Design's comment about requiring transmission electron microscope (TEM) analysis for asbestos floor tile projects was ignored.  So much for the revised purpose of these rules being to protect public health and the environment by minimizing emissions of asbestos fibers.  Not including TEM analysis for floor tile projects does exactly the opposite of that purpose.  For more information regarding this issue see our Floor Tile Debate blog post.

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