Proposed Changes to Title 15 by NYC Department of Environmental Protection: A Summary

The New York City Department of Environmental Protection (NYC DEP) has introduced proposed amendments to Chapter 1 of Title 15 of the Rules of the City of New York, aimed at clarifying procedures, improving safety standards, and addressing issues raised by the regulated community. NYC DEP is holding a public hearing on the proposed rule.  The hearing will take place on September 25, 2024 at 11:00 AM.  The hearing will be conducted by video conference (click here for more information).  These changes focus primarily on asbestos control and are designed to streamline processes and address specific concerns about project management, record-keeping, and compliance (or in other words where the regulated community has beaten NYC DEP at the NYC Office of Administrative Tribunals and Hearings (OATH)). Below is a summary of the most significant proposed changes:

State-Certified Asbestos Inspector must be supervised by physically present CAIs

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Key Definitions and Clarifications

• ARTS E-File: This web-based system is used by applicants to submit and manage asbestos project notifications, variances, permits, and related documents (including amending these documents). The definition has been clarified to reflect its role in the filing process.
• Asbestos Assessment Report: The "Form ACP-5" now has a clearer definition, ensuring that asbestos investigators accurately report the presence (or absence) of asbestos-containing materials (ACM) even if those materials will not be disturbed by construction activity.
• Physically Present: A new definition specifying that an individual, such as a certified asbestos investigator (CAI), must be physically on-site during asbestos surveys or project oversight. Virtual supervision is not permitted.

Variance Applications and Procedures

• The NYC DEP is proposing updates to how variance applications are handled, particularly for projects involving Section 1-22(b), which requires certification by the NYC Department of Buildings (DOB). New procedures ensure that work cannot start without the NYC DEP’s approval, preventing confusion and improving coordination between variance and non-variance work.  In addition, it creates a Form V2 and Form V5 both forms are required to be posted at the workplace.
• A new fee category has been created for variance applications related to notifications, permits, and recordkeeping, addressing a previous gap in the rules.

Transition to Digital Certificates

• The NYC DEP is preparing for a shift from plastic certificates to digital or electronic alternatives. These certificates will be issued to asbestos investigators, contractors, and workers, making the process more efficient and environmentally friendly.

On-Site Presence, Supervision, and Recordkeeping for CAIs

• Certified asbestos investigators (CAIs) must now be physically present while non-CAI assistants perform survey work.  Not only present but must be there for the duration of the survey. It has always been NYC DEP's intent that CAI be present onsite during the asbestos survey.  This just makes even more clear, that supervision cannot be from a distance or virtually.
• The rules clarify that both CAIs and State-certified asbestos inspectors can perform bulk sampling, provided that a CAI is physically present to supervise. 
• Recordkeeping clarifications that each requirement for recordkeeping must be satisfied independently.  In addition, the removal of "written description" from blueprint, diagram, or drawing section.  The addition, to this section exact location and type of material where bulk samples were collected or assumed to be ACM.  The survey report must now include the scope of work and information regarding non-certified individuals, along with a description of the activities they engaged in.  Chain of custodies must be prepared in accordance with Environmental Protection Agency (EPA) recording requirements (QA Handbook Volume II Section 8.00).

EPA Chain of Custody

Work Place Safety Plan (WPSP) Updates

• Proposed updates to the Work Place Safety Plan (WPSP) removing the requirement to list non-asbestos contractors and introduce a new requirement: an Occupant Protection Plan. This plan is required if the asbestos project is being performed in a building where both asbestos abatement workers and non-asbestos abatement workers are working at any time during the permitted project.

Record-Keeping and Inspection Procedures

• Clarifications have been made to improve how final inspection and other records are stored, with a specific focus on protecting records from water damage. Contractors, Design professionals, etc. must now report any damage to DEP, ensuring that vital documentation is preserved.

Air Monitoring and Abatement Requirements

• A new section has been added to prohibit abatement work from being performed without air monitoring, reinforcing safety measures to protect both workers and building occupants.  The air monitor must be physically present at the workplace and air monitoring is being conducted.
• New air monitoring requirement for areas where a negative air duct has become damaged.
• Visual inspection prior to clearance must be documented in the project air sampling log, along with the inspection required for the A-TR1 final inspection report.
• Abrasive removal methods, including the use of grinder and beadblasters, are prohibited.

Emergency Projects and Variances

• Emergency asbestos removal projects may now be exempt from certain requirements, streamlining the process to address hazardous situations more efficiently.
• Clarification of what must be filed with the emergency notification.

Project Closeout and Final Forms

• The ACP15 and A-TR1 forms must be submitted to DEP within 21 days of project completion. Failure to comply may result in suspension of a contractor or air monitor's ARTS E-File account. This aims to ensure timely submission and project closeout, reducing delays.

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Conclusion

The some of the proposed changes to Title 15 are a step toward increasing safety, clarity, and efficiency in asbestos project management in New York City.  With these amendments, NYC DEP is addressing issues brought up by the regulated community, improving procedural transparency (in other words, closing loopholes), and paving the way for digital record-keeping and certification. 

Some of these updates highlight a commitment to worker and occupant safety, streamlined compliance processes, and clearer guidelines for asbestos professionals.  However, no changes to the air sampling requirements show that they are still in the dark ages for the need to switch to electron microscopic analysis of air samples for clearance.

Re-Post of our 20 Year Anniversary of 9/11, 10-Year Anniversary of the World Trade Center Health Program. Lesson Learned?

On September 11, 2001, Future Environment Designs (FEDTC) was teaching an asbestos supervisor refresher and an asbestos inspector initial course at the Underhill Blvd. Syosset office.  We were some of the fortunate individuals who were not in New York City when terrorists hijacked airplanes and proceeded to fly them into the World Trade Centers (WTC), the Pentagon, and crashed another in Pennsylvania.  On that day hundreds of thousands of people were exposed to a massive cloud of toxic gases and particulates from the terrorist attack on the WTC.  Significant failings by the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) led to tens of thousands of people who participated in the ensuing rescue, recovery, and clean-up efforts being exposed to the WTC toxic dust.  Nearly a half million people are estimated to be at increased risk of adverse health effects from exposures to physical, psychological, and emotional stressors in the days, weeks, and months following the terrorist attacks.  This year we honor their sacrifice on the 20th Anniversary of the attack on the World Trade Center.  On January 2, 2011, the James Zadroga 9/11 Health and Compensation Act of 2012 (the Zadroga Act) created the World Trade Center Health Program (WTCHP).  The WTCHP is administered by the director of the National Institute for Occupational Safety and Health (NIOSH).  So this year is also the 10th Anniversary of the WTCHP.  

We have no intention of changing our logo which depicts the NYC skyline with the WTC.

The WTCHP provides medical monitoring and treatment of covered health conditions for emergency responders, survivors, recovery and cleanup workers, and volunteers who helped at the WTC, the Pentagon, and the crash site near Shanksville, Pennsylvania, and maintains a research program aimed to improve the care and well-being of the affected population.  The WTCHP serves four groups of people affected by the 9/11 attacks:

• Fire Department of New York Responders,
• World Trade Center General Responders,
• World Trade Center Survivors (lived, worked, or went to school in NYC Disaster Area), and
• Pentagon/Shanksville Responders

From Express - 9/11 firefighters still Dying 20 years on - Devastating graph exposes the harrowing impact

As of December 31, 2020, 108,666 individuals have enrolled in WTCHP.  The ten most common certified conditions are:

• Chronic Rhinosinusitis
• Gastroesophageal Reflux Disease (GERD)
• Cancers
• Asthma
• Sleep Apnea
• Post-Traumatic Stress Disorder (PTSD)
• Chronic Respiratory Disorder - Fumes/Vapors
• WTC-Exacerbated Chronic Obstructive Pulmonary Disease (COPD)
• Anxiety Disorder (Not otherwise specified)
• Major Depressive Disorder

As the years go by, it will be interesting to see if this list changes.  In FEDTC's asbestos training courses, we discuss the latency period for asbestos-related diseases (asbestosis, lung cancer, and mesothelioma) are 10-50 years from the date of the first exposure.  In the next 5-10 years we will hit the beginning of the latency period for lung cancer and mesothelioma.  Currently, cancers only account for about 13% of WTCHP certified conditions with non-melanoma skin cancer (27%) and prostate cancer (21%) being the top two cancers.  Comparison studies indicate that prostate and thyroid cancer are elevated compared to other groups (without WTC toxic dust exposure). Other excess cancers at this time include bladder cancer, malignant melanoma, multiple myeloma, leukemia, and non-Hodgkin lymphoma.

It was published after the completion of the rescue, recovery, and clean-up efforts that there were no fatalities.  However, that isn't quite correct since we are seeing rescue, recovery, and clean-up workers dying from their exposure to the WTC toxic dust.  It is good to see that what occurred during the rescue, recovery, and clean-up at the WTC was not repeated at the recent rescue, recovery, and clean-up efforts at the Miami condo collapse.  As the picture below, from The Guardian, shows, rescue crews are wearing respirators to protect them from the potentially toxic dust from the collapse of that building.  If this is the lesson learned from the WTC tragedy, it was a hard lesson but one that will protect workers in other rescues, recoveries, and clean-ups in the future.  

 

The Guardian

Miami condo collapse: death toll rises to nine as crews search pile for survivors | Miami condo collapse | The Guardian

Future Environment Designs Celebrates Labor Day by Remembering Those Who Made Sacrifices!

 Future Environment Designs (FEDTC) wishes everyone a Happy Labor Day weekend!  We hope everyone takes the time to remember that today we are celebrating the contributions of the labor movement to the development and achievements of the United States of America (USA).  Many workers have sacrificed their lives in making these achievements.  On average, almost 100 workers are killed every week in the United States due to traumatic injuries suffered at work. Over 20 times as many die from occupational diseases, many due to exposure to hazardous substances many years before they died (for example, asbestos, silica, and coal dust) or from COVID-19 acquired at work.  It is important to remember those who made these sacrifices while working on the job.  These sacrifices also cost businesses profitability and increase workmen's compensation costs.  The Occupational Safety and Health Administration (OSHA) has created a tool to show the impact different types of injuries cost businesses.  

The United States Labor Department has produced a video to remember the history behind the creation of Labor Day.  Future Environment Designs hopes as we enjoy this weekend, we remember the importance and the sacrifices each of us makes to keep achieving and developing the USA, and even more importantly we remember solidarity, the sense that each of us should look out for the interests of all!