NYC DEP Asbestos Rule Amendment Went Into Effect January 6, 2019, Public Comments On New Amendment Closes on July 22, 2019.

New York City Department of Environmental Protection (NYCDEP) announced that they are holding a public hearing on Monday, July 22, 2019, on amending/correcting some of the amendments that went into effect on January 6, 2019.  All comments on this new amendment must be made by July 22, 2019.   The Asbestos Rule Amendment of January 6, 2019, included quite a few changes to Chapter 1 of Title 15 of the Rules of the City of New York, for a copy of the rule with the changes incorporated, click here.  For a copy of the Asbestos Rule Amendments only, click here.  In addition, the "Promulgation of Air Asbestos Penalty Schedule" went into effect on January 6, 2019.  This penalty schedule has been incorporated into Title 53 of Chapter 1 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 over a 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).

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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 (the new amendment would change this to air monitoring technicians)  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 (the new amendment would add: except that if there are multiple work areas on the same floor, only one air sampling technician is required for that floor). 
• 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 the 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.

The new amendment which is open for public comment until July 22, 2019, makes the following revisions:

• Clarify section 1-29 by specifying that only air monitoring technicians need to have their license at the workplace, not all individuals (see the note above);
• Clarify the requirements of section 1-36(b) as to how many air sampling technicians need to be present during sampling (see the note above);
• Clarify that the requirements of section 1-42(a) regarding the placement of air samples apply to all asbestos projects, not only those that are conducted indoors;
• Change the requirements for lettering on notices to be posted under sections 1-81(a) and 1-125(a), as contractors advised that the required font sizes were impractical.
• Air Asbestos Penalty Schedule, found at Title 53 of Chapter 1 of the Rules of the City of New York (RCNY), which also became effective on January 6, 2019, had failed to carry over certain sections from the penalty schedule which had previously been located in the rules of the Office of Administrative Trials and Hearings. Accordingly, DEP proposes to amend the penalty schedule to correct those omissions.
• Finally, the proposed rule divides the penalty schedule into three subdivisions (specifically, the RCNY, the New York State Industrial Code, and the New York City Administrative Code). No substantive change is intended with respect to the amendments made by sections six and nine of the proposal other than the addition of a penalty for a violation of Administrative Code § 24-1002.

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.