New York City's Asbestos Regulation Revised. Again!

On April 28th, 2022, New York City published a notice of adoption in the City Record for the revisions to the Asbestos Control Program Rules and Regulations (RCNY Title 15 Chapter 1).  These revisions will become effective on May 28th, 2022.  Of course, there are some significant changes that asbestos contractors, asbestos consultants, & asbestos investigators should be prepared for.  These changes include:

NYCDEP will need to revise the confined space standard reference to 1926 Subpart AA Confined Spaces in Construction

• New wording regarding making a false statement/documents not only to the New York City Department of Environmental Protection (NYCDEP), but to any city agency or any individual related to an asbestos project, asbestos surveys, or any document required to be filed under these rules.
• The addition and subtraction of some definitions:
• Airtight was added which "means secured and sealed utilizing 6 mil plastic sheeting and tape to make a barrier through which no air, dust or debris can be transmitted."  Not sure we like this definition.  No air can be transmitted, with just plastic and tape?
• ARTS E-File was added.  Which is the web-based filing system that NYCDEP uses to file all things related to asbestos projects.
• Asbestos Project Air-Sampling Technician, Confined Space, Occupational Safety and Health Administration (OSHA) Construction Safety and Health card, and warning line system were added. 
• Bound Notebook was subtracted, but a Permanently bound log was added.  "Permanently bound log shall mean a log consisting of sequentially numbered sheets of paper, pre-printed or handwritten, that is permanently secured to the front and back covers by stitching, glue, and binding that creates a strong and lasting bond and makes readily discernible the removal or insertion of sheets after the log’s first use."  We added the bold section to point out that a composition notebook no longer can be used.  Since they are not glued.  We did a quick search and found that "Smyth Sewn (also known as Section Sewn)" would meet this requirement, we're sure there are others.
• The definition for disturb has been modified and "shall mean any activity that disrupts, impregnates, or strips the matrix of asbestos-containing material (ACM) or presumed asbestos-containing material (PACM), or that generates debris, visible emissions, or airborne asbestos fibers from ACM or PACM. This includes but is not limited to the removal, encapsulation, enclosure, renovation, repair, or cleanup of ACM or PACM."  Of course, when we read this we had to whip out our Thesaurus (dusting it off or of course, we could have googled it, sorry we're a little old school) to see why NYCDEP uses the word impregnate (obviously it would not be our first impression of the word, which leads to many very bad images)!  The second definition for impregnate is to soak or saturate (something) with a substance.  Interesting wonder if there might have been a better word to use?
• The definition of the log was changed to "shall mean a permanently bound official record of all activities that occurred during the project.  One log must be maintained by the abatement contractor in accordance with section 1-92 Work Place Entry and Exit Procedures, and one log must be maintained by the air monitoring company in accordance with section 1-37 Sampling Equipment Requirements."
• They added "Project monitor’s report. “Project monitor’s report” shall mean the "Form ACP-15" that the project monitor is required to submit for partial or complete asbestos project closeout as approved by NYCDEP."
• Variances must be made through the ARTS E-File System.  Submitted by a project designer and authorized by the building owner or authorized agent.  Including the description of the deviation, and a description of the hardship preventing the required procedures from being employed.  A sketch is no longer allowed it must be a drawing. 
• The addition of "any abatement activity to be performed within a work area located in a confined space" to the requirements of when an asbestos abatement permit is required.  This requires a Work Place Safety Plan (WPSP).  They added that the asbestos abatement permit would expire upon the expiration date of the asbestos project notification ACP-7 form.  In addition, sections in "Failure to terminate asbestos abatement permit within year" were deleted related to extending the permit.  Regarding the letter from the registered design professional finding additional ACM on a project, it must be filed through the ARTS E-File.
• Emergency project notifications must be filed through the ARTS E-File system (instead of telephone communication),  If the applicant does not have a valid ARTS E-File account, then telephone notification shall be made to 311.  The cover letter that accompanies the ACP-7 Form must be from the building owner or their authorized agent and must include:
• the nature of the emergency;
• a description of the scope of work.  With respect to projects commenced under this section, the department, based on an inspection by the department and other relevant agencies, may exempt the project from the requirements of 15 RCNY § 1-26 Asbestos Abatement Permits.
• The Certified Asbestos Investigators (CAI) must respond to the NYCDEP’s request for inspection within fourteen (14) business days and provide a date, time, and location for an inspection which is within 21 days of the date of the request. Failure of the investigator to either respond to the NYCDEP’s request for an appointment or provide a date, time, and address for an inspection will result in the suspension of the CAI's certificate until such appointment is completed and these records are made available for inspection.
• Chain of custody forms (regarding the air sampling) are now part of the project record and shall be kept on-site at all times.  The chain of custody forms, along with the project air sampling log, and a copy of the project monitor's report is added to the records the asbestos abatement contractor shall maintain for at least 30 years after the end of the project.
• Changes to air sampling requirements include cassettes that "must be labeled with sample identification numbers prior to the commencement of air sampling".  Air sampling assembly must be checked for leaks and occlusions "throughout the shift and documented in the project air sampling log."  The project air sampling log must be a "permanently bound book."  Added to the notes of the air sampling table "Transmission Electron Microscopy (TEM) is required in schools in accordance with the Environmental Protection Agency's (EPA) Asbestos Hazard Emergency Response Act (AHERA) regulations." and removed from the notes was "or the pre-abatement area sampling result(s) for interior projects where applicable."  In addition, the following statement was added wherever multiple samples are required "which must be representative of the work area. The air samplers must be placed separate and apart from one another and must not be grouped together."  For clearance sampling "samplers shall be no further than (vs approximately) 50 feet from the entrance to the work area."
• During abatement air sampling for minor projects was added: "For minor projects employing glovebag or tent procedures, one area sample shall be taken outside the glovebag or tent, not more than five feet from the uncontaminated entrance to the glovebag or tent."  According to NYCDEP, this was added to be consistent with NY State (NYS) requirements regarding air sampling for minor projects.  Well, NYS Department of Labor Industrial Code Rule 56 (NYSDOL ICR56) does not require air sampling during abatement for minor projects.  It does require clearance upon glovebag failure or loss of integrity or tent failure or loss of integrity or incidental disturbance projects, but not during abatement.  In fact, this change would require clearance of the minor project if the during abatement sampling result exceeded 0.01 fibers per cubic centimeter (f/cc), or if there were visible emissions detected during the project, or if the work area to be reoccupied is an interior space at a school, healthcare, or daycare facility.
• They modified the section Materials and Equipment, with "Ladders or scaffolds of sufficient dimension and quantity shall be available so that all work surfaces can be easily and safely reached by inspectors and asbestos handlers."  Asbestos handlers were added to the section.  In addition, these subsections were added:
• Ladders: Where ladders are used to access or reach work surfaces for the conduct of abatement activities, care must be taken to prevent breaching of the containment areas and the ladder’s integrity must be maintained to ensure safety.  Ladders and their use shall comply with OSHA 29 CFR 1926. Subpart X Ladders 1926.1053.
• Scaffolds: Where scaffolds are used to reach work surfaces or for the conduct of abatement activities, scaffold joints and ends shall be sealed with tape to prevent the incursion of asbestos fibers. Scaffolds and their use shall comply with OSHA 29 CFR1926. Subpart L Scaffolds 1926.450; 451 and 452.
• Walking Surfaces. Walking and working surfaces shall be protected from tripping or stepping into or through holes or openings, including skylights, by covers secured to the surface in accordance with OSHA Section 29 CFR 1926.501.  According to NYCDEP, they added this section due to a recent fatal accident at an asbestos work site.  We did a search and it seems this accident may have happened on November 1, 2021.  It was reported by the NYC Department of Buildings (NYCDOB) as the Gowanus Roof Fall. Workers were performing asbestos abatement work on the roof of a three-story building at 289 3rd Avenue, Brooklyn.  One of the workers left the work area to use the restroom and apparently fell through a 15-inch gap between the building and the supported scaffold, falling approximately 25 feet from the roof onto a first story set back in the rear of the building. The worker died of his injuries.  OSHA did an inspection of this accident and issued 3 scaffold violations and 2 ladder violations for a total of $40,604 in fines, which are being contested.
• The abatement contractor's log requirements were moved to section 1-92 Work Place Entry and Exit Procedures.  "The abatement contractor’s log shall be permanently bound and at a minimum shall identify fully the building  owner, agents, contractor(s), the project, each work area and worker respiratory protection employed, and other pertinent information including daily activities, cleanings and waste transfers, names and certificate numbers of asbestos handler supervisors and asbestos handlers; results of inspections of decontamination systems, barriers, and negative pressure ventilation equipment; summary of corrective actions and repairs; work stoppages with reason for stoppage; manometer readings at least twice per work shift; daily checks of emergency and fire exits and any unusual events."
• Personal protective equipment shall be provided by the abatement contractor.
• NYCDEP added the following to the workplace entry and exit procedures:  "When abatement activities are located in a confined space the contractor must comply with all the requirements set forth in OSHA 29 CFR 1910.146.and 1926.21(a) and (b)."  This is very interesting because OSHA regulations 1910.146 do not apply to the construction industry.  Its 1926 Subpart AA Confined Spaces in Construction applies to the construction industry.  Read our blog post regarding the Confined Spaces in Construction standard and its requirements (very similar to the General Industry standard 1910.146, but with specific differences related to construction and technology that is available today that was not available when the 1910.146 came out). 
• An interesting change is that chutes can only be used inside a work area that is under negative pressure.  Deeming that chutes to transport asbestos from rooftops is unsafe.  We wonder what evidence they have for this?
• Encapsulation and Enclosure procedures must be conducted with the full containment of the work area or the tent procedures.  Some other modifications.
• Glovebag procedures now require "A visual clearance inspection must be conducted by the asbestos handler supervisor and project monitor after the work area dries, to ensure the absence of ACM residue or debris in the work area. The clearance inspection must be documented in the abatement contractor’s log and the project air sampling log."
• Added air monitoring in accordance with the air monitoring sections 15 RCNY §§ 1-31 through § 1-45 was added to the Tent procedures section, along with "A visual clearance inspection must be conducted by the asbestos handler supervisor and project monitor after the work area dries, to ensure the absence of ACM residue or debris in the work area. The clearance inspection must be documented in the abatement contractor’s log and the project air sampling log."
• Foam Procedure for Roof Removal changes include the establishment and maintenance of a warning line system on the roof throughout the project, the contractor must comply with OSHA 1926 Subpart M, specifically 1926.501 Duty to have fall protection & 1926.502 Fall protection systems criteria and practices, exterior or interior chutes are prohibited to transport asbestos-containing roofing material (ACRM) from the roof to lower floors, and visual inspection must be documented in the abatement contractor's log and project air sampling log.
• Foam/Viscous Liquid Use in Flooring Removal changes includes visual inspection must be documented in the abatement contractor's log and project air sampling log.
• Abatement from Vertical Exterior Surfaces changes include the contractor must comply with OSHA 1926 Subpart M, Fall Protection, 1926 Subpart L, Scaffolds, and the NYC Building code, change to sidewalk bridges is "Sidewalk bridges in the restricted area shall be covered with two layers of fire retardant 6-mil plastic, placed over and secured to the bridge, spread across the full width of the bridge and up the interior walls of the bridge so the walls are fully plasticized" and the clearance inspection must be documented in the abatement contractor's log 
• Controlled Demolition with Asbestos in Place has been changed "A condemnation order or declaration issued by the NYCDOB or a signed and sealed condemnation letter from the Owner’s registered design professional which has been acknowledged by the NYCDOB must be submitted to the NYCDEP through the ARTS E-File system.  A site-specific scope of work identifying the steps to control asbestos emissions during the controlled demolition must be submitted and approved by NYCDEP prior to the commencement of work.
• The final cleaning procedures were changed to add "After the plastic barriers on the walls and floors have been removed, a third cleaning shall be performed of all surfaces in the work area by wet cleaning and/or HEPA vacuuming. A minimum of a one-hour waiting period shall be conducted to allow the work area to dry prior to the visual inspection by the air monitor and asbestos supervisor."

No roof parapet walls will require guardrails on asbestos roof removals

As you can see there are a number of changes some significant and some minor.  NYCDEP regulation first went into effect in 1985.  The first changes were made in 2011, and then additional changes were made in 2019.  Here we are three years later with more changes which they held a public hearing on December 23, 2021, and announced through the ARTS E-File system.  It seems they were reluctant to change the regulations much in the past (1985 to 2011) but now seem more than willing to make changes when they feel it's necessary.  Unlike, NYSDOL which has wanted to modify ICR56 since 2011 and still has not been able to.

    

NYSDOL and NYCDEP Provide Guidance for Asbestos Project Designers Applying for Variances!

In our blogpost "PACNY's Environmental Conference Day Three - A NYSDOL Surprises with Fast Track Variances!"  we discussed the New York State Department of Labor's (NYSDOL) Engineering Services Unit (ESU) announcement at last year's Professional Abatement Contractors of New York's (PACNY's) 2020 Environmental Conference, of a pilot program for certain site-specific variances.  These new variances are called Fast Track Variances.  These are variances that the ESU has been issuing regularly and don't really change each time an asbestos project designer requests them.  ESU has created 10 Fast Track Variances and may create more in the future.

NYSDOL ESU's Ed Smyth discussing variances at PACNY

In addition, the New York City Department of Environmental Protection (NYCDEP) has released a service notice regarding the filing of an ACP-9 variance request "Variance (ACP-9) Filing Instructions".  The service notice gives instructions on the information that must be provided in applying for a variance from NYCDEP.  Required documents for NYCDEP include the building authorization letter; the ACP-9 form including fee ($300-$1,800); and the proposed method of work (variance proposal) and layout drawing.  NYCDEP also has the equivalent of Fast Track Variances which they call Attachments (there are 13 of them).  Visit Future Environment Designs Training Center's (FEDTC's) dropbox folder to access them.   

NYCDEP Attachment D & DI are regarding remote decons and decons inside the work area.

The process for getting a Fast Track Variance from NYSDOL ESU for all intents and purposes is the same for getting a site-specific variance.  You will still need a licensed and certified project designer to sign and complete the SH 752 application.  The application must be completed fully including the hardship.  One difference is no information about the work plan should be included in the SH 752 application.  The variance fee is still $350.  In section 9, Industrial Code Rule 56 (ICR56) Relief Sought, of the SH 752 application the designer must enter the Fast Track Variance number they are seeking.  There are 10 Fast Track Variances:

Available Fast-Track Variances

FTV Number	FTV Name
FTV-1	Negative Air Shutdown
FTV-2	Exhausting to An Interior Space
FTV-3	Elevator Door Removal
FTV-4	Fire Door Removal
FTV-5	Crawlspace with Dirt Floor
FTV-6	Intact Component Removal
FTV-7	Buried Cementitious (e.g. Transite) Pipe
FTV-8	HEPA Drilling Spot Removal
FTV-9	Air Sampling at Elevated Exhaust Duct Locations
FTV-10	Controlled Demolition with Non-Friable in Place

As you can see each variance deals with very specific situations.  We summarize these specific situations below:  

• Fast Track Variance-1 (FTV-1) is about shutting down the negative air units overnight.  The negative air units must run a minimum of 30 minutes after completion of all abatement/cleaning activity for the day and must run 30 minutes after the manometer achieves a negative 0.02 water pressure differential before entering the work area the next day. 
• FTV-2 is about exhausting negative air machines to an interior space.  The variance requires air monitoring of each negative air exhaust (no banking allowed) and must be exhausted into an existing, vacant room or an area within a larger space isolated, consistent with vacate, restrict entry, & post signs (ICR56-7.4) by barrier tape and warning signs.  The location must be adequately sized to accommodate the increase in positive pressure to the area.  All openings within 25 feet of the negative air machine exhaust must be sealed with two layers of 6 mil fire retardant poly.  The variance includes a process for elevated air monitoring results. 
• FTV-3 is about the removal of ACM filled elevator doors intact without impact to the matrix during removal operations.  Project monitor required, elevator technician involved with door removal must be allied trades certified, no waiting periods, air samples 10 feet from the barriers, and inside the work area.  The most recent final air sample results are the clearance results if they meet the clearance standard.
• FTV-4 is about the removal of ACM filled fire doors intact without impact to the matrix during removal operations.  Not surprisingly this variance seems exactly the same as FTV-3 without the elevator technician.
• FTV-5 is about the removal of pipe insulation and dirt in a crawl space.  The variance requires attached large project personal and waste decontamination unit but allows, if space limitations, for a small project personal and waste combination decontamination unit in accordance with ICR56-7.5 (c) & 56-7.5(e9).  If no public access, it allows 2-layer six-mil fire retardant plastic sheeting in lieu of hardwall barriers.  8 air changes per hour required.  Glovebags without tents allowed.  Soil removal as per American Society Testing and Materials (ASTM) 1368 (latest edition), Section 9.1.1-9.1.5 inspection criteria.  It is interesting to note that the requirement does not include 9.1.6 & 9.1.7 of the standard.  9.1.6 uses a personal sampler on the project monitor during the visual inspection as a representative indication of fiber exposure for re-occupancy and 9.1.7 discusses soil sampling in accordance with ASTM test method D7521.  In addition, to the regular air sampling for an asbestos project, air sampling inside the work area is required for the entire work shift based on the size of the project (i.e. 1-minor, 3-small, 5-large).  The project requires a prep waiting (4-hours) and a final drying/settling period (8-hour).  Clearance is based on the most recent daily abatement air samples collected during cleaning operations.
• FTV-6 is the intact removal of nonfriable ACM components.  The variance allows removal inside of tents or removal as part of a larger work area.  Removal without tents requires critical barriers and dropcloths.   Background sampling and a pre-abatement waiting period are not required.  Power tools require manufacturer equipped shroud and HEPA-vacuum.  Daily inside work area samples (i.e. 1-minor, 3-small, 5-large) required in addition to the regular during abatement samples.  The most recent daily samples will be used to compare to the clearance criteria after the visual inspection by the project monitor.  There is only one drying/settling period, time is based on the item being removed can be either 4- or 2-hours. 
• FTV-7 is for the removal of non-friable ACM transite piping from below ground.  One of the requirements is the regulated area, decontamination units, airlocks, and dumpster area shall be cordoned off at a distance of 25 feet, if not then a daily abatement air sample shall be collected in the reduced barrier.  In addition, even if you do the 25 feet condoning off, the variance requires air sampling taken on opposites of the work area at the perimeter barriers.  Extending those barriers.  In our opinion, this requirement by itself seems onerous.  We realize not all projects are in a roadway but for those projects that are this means closing the roadway or closing a few lanes or setting up a sample in the middle of the road which means your shutting that road anyway.  Meaning these projects will probably require flaggers to control the traffic around these barriers.  The variance allows the equipment operator to be allied trades (see our blogpost regarding the difference between allied trades and operations & maintenance) as long as they only excavate the soil to within 6 inches of the buried pipe and lifting the section out of the trench using nylon slings.  Requires a negative pressure tent if sawing or other methods that would render the piping friable.  Requires project monitor visual inspection to complete the project.
• FTV-8 is HEPA-drilling to allow for the installations of building system upgrades into ACM joint compound/drywall wall and ceiling.  Requires dropcloth decontamination area and dropcloth under each drilling/cutting location.  Power tools require a shroud and HEPA vacuum.  Requires wet methods (allows shaving cream or foam as a wet method).  Supervisor visual inspection as per minor projects.
• FTV-9 is air sampling of elevated exhaust duct locations.  Basically, if the negative air exhaust ducts are exhausting at a height above ground where air sampling of the exhaust is not possible, that is this variance.  We find this an interesting variance in that most consultants that work on high-rise buildings throughout the state should be applying for this variance. 
• FTV-10 is controlled demolition with nonfriables to remain.  Requires a full-time project monitor on-site and the individual will have a number of specific requirements.  One of the most interesting requirements of the variance is the requirement that the Environmental Protection Agency (EPA) Document 340/1-92-013 "EPA Guide to Normal Demolition Practices Under the Asbestos NESHAP" be consulted by the petitioner to anticipate demolition methods will cause Regulated Asbestos Containing Materials (RACM) to be created.  This EPA document published in 1992 is an excellent source of information from EPA about various demolition practices and whether those practices will cause a category I or II nonfriable asbestos-containing material to become a RACM.  Air sampling for the variance includes the usual large project requirements for air sampling plus air sampling upwind and downwind of the work area.  Soil/Earth/Dirt cleanup has to meet the ASTM 1368, Sections 9.1.1-9.1.5 inspection criteria.

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).

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 (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.

NYC DEP Seeks Public Comments on Mold Notification Requirement

New York City Department of Environmental Protection (NYCDEP) is requesting public comments on a Notice of Mold Remediation Work.  A public hearing is being held on Wednesday, February 6, 2019, at 11:00 AM in the NYCDEP's 8th-floor conference room at 59-17 Junction Boulevard, Flushing, New York 11373.  The public comment period closes Wednesday, February 6, 2019.

Mold Growth in Corridor

Local Law Number 61 of 2018 (also known as Intro 978-D) amended the Administrative Code by adding a new Section 24-154, which provides that, before the performance of mold remediation work in certain buildings, the New York State-licensed mold remediation contractor must file a notice of mold remediation with NYCDEP no later than two business days before the project start date.  Section 24-154(c)(3)(b) further provides that notice may be filed within 24 hours after the project starts, instead of at least two days before, if the mold condition to be remediated poses an immediate risk of harm to any person or damage to property.  The purpose of the above public comment period is to establish a rule when such risk of harm exists.  In other words what the exception for two-day notification would be.  NYCDEP is proposing that projects that have at least 30 square feet or more of visible mold within one room or excessive water accumulation or flooding exists could notify NYCDEP 24 hours after the project starts with appropriate documentation that the condition exists.

Mold Abatement/Remediation/Assessment Course for Article 32 Licensing

Local Law 61 of 2018 went into effect on January 1, 2019.  The law requires licensing pursuant with New York State Department of Labor's Article 32 "Licensing of Mold Inspection, Assessment, and Remediations Specialists and Minimum Work Standards Law" to assess, remediate, and abate for mold incidents larger than 10 square feet.  The bill applies to residential buildings containing 10 or more units or commercial buildings larger than 25,000 square feet.  This law prohibits the owners or their direct employees from performing mold remediation or assessment work, which Article 32 allows.  Under this law, the person holding a mold assessment license must file with the NYCDEP a mold remediation form and work plan as well as a mold post assessment form and a mold certification form.  These forms are located at NYCDEP's Air Pollution website under Mold Remediation and Assessment.  It appears it will be an electronic submission and consists of a 6-page form for the mold remediation plan and a 4-page form for the mold post-assessment. 

Its Summertime! Asbestos Project Monitor Overtime Heaven?

Here we are again another summertime and another year of complaining about how bad asbestos project monitors are.  It seems this has become a summertime tradition.  Project monitors who don't show up, don't do what they are told, don't know the regulations, sleep on the job, leave the job, don't know how many samples to take, etc., etc.  We find this interesting because the project  monitor should be one of the most knowledgeable people on an asbestos project.  Not only should the asbestos project monitor understand air sampling requirements & theory, they should be able to read and understand building plans, be able to communicate effectively to get the contractor to follow the specifications, regulations, and drawings, write legibly & diligently so the log can be read by others & they can know what happened on the project, be ready to testify in a court of law regarding what they observed on the project, handle scheduling, phasing, & timing on a project and handle a number of other issues related to asbestos abatement including occupational safety and health issues.

When we have these discussions in our classes, our belief is that a project monitor should have a college education.  In our opinion, high school students should never be hired for project monitoring (can we say interns, which is a person who should be in training (directly supervised) for the position they are interning for).  As Albert Einstein said:

"The value of a college education is not the learning of many facts but the training of the mind to think."

English: Albert Einstein Français : portrait d'Albert Einstein (Photo credit: Wikipedia)

We see the problem as that asbestos project monitors are not respected for what they should be doing.  This disrespect is primarily coming from certain building owners who feel there is no need for an asbestos project monitor who coordinates the project and legally documents the project.  The hourly rate for an asbestos project monitor should have been increasing over the years, however, this is not the case.  Then you have building owners and abatement contractors who feel project monitors delay projects, well a good project monitor would actually reduce the amount of time a project takes.  We agree with some that asbestos project monitors should be individually held responsible and liable for the work they do or don't do.  This would definitely increase the quality of work and would make sure project monitors had some gumption! However, are project monitoring firms ready for a project monitor who actually dictates the job like project monitors in the past used to?

We have recently reviewed a number of project monitor logs and in the logs we reviewed project monitors made no entries other than the time they arrived, time for lunch, and the time they left for an 8-hour day.  In our view New York State Industrial Code Rule 56 created a minimum standard for a project monitor log by creating requirements for a supervisor log.  Since the project monitor's log is supposed to document the project legally, the supervisor requirements are the minimum requirements, along with any additional information and events that occurred at the site/project that are legally important for the building owner.  In addition, if the project monitor didn't write it, it didn't happen.  What does that mean?  Well if the project monitor didn't make an entry in their log about aggressive sampling such as the amount of time for leaf blowing or the number of fans installed, etc.  Well guess what, the project monitor didn't do it.  The log is supposed to be a legal journal of what was done on the project.  If the project monitor doesn't make an entry, well it probably wasn't done.  Why would anyone assume otherwise?

In our view this is what has been forgotten regarding the importance of the asbestos project monitoring. We've heard of a number of issues with contractors and workers where they do not properly protect the workers from exposure or workers are not decontaminating properly.  As a building owner this is important information that should be documented by the asbestos project monitor cause if a worker or a family member were to develop mesothelioma then the log would protect the owner from a potential third party litigation.  This is one of the most important reasons for hiring an asbestos project monitor, the documentation of contractor, worker, & visitor violations and the cause of their potential exposure or the reason they were probably not exposed.

Recent investigations of project monitoring companies like CES (though a recent court decision may vindicate CES) and JMD, both of NY, indicate that the Federal government is recognizing a problem with asbestos project monitoring.  Even New York City Department of Environmental Protection (NYCDEP) has focused some of its inspections/violations on the project monitoring firms.   Covering everything from logbooks, chain of custodies, air sampling stands, visual inspections, etc.  We think its time for some individual responsibility and the regulatory agencies should start issuing violations to the individual asbestos project monitor (as NYCDEP has done with asbestos supervisors).  This would definitely increase the professionalism of the asbestos project monitors and hence increase the quality of the work performed on asbestos projects.

 

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NYCDEP Issues Advisory Memo

We recently received an advisory memorandum from Mr. Steven A. Camaiore, P.E., the Director of the Asbestos Control Program for New York City Department of Environmental Protection (NYCDEP).  The Advisory had several important points and interesting bits of information.  For example did you know NYCDEP was issuing violations directly to asbestos handlers for obvious violations in which the handler was directly at fault?  Some of the violations they have issued are:

• worker not wearing gloves,
• worker engaged in dry removal,
• worker not taking a shower,
• or a worker altering their certificate.

This seems to have opened a new area of revenue for NYCDEP.  Though I don't know how much money they are likely to get from asbestos handlers.

Asbestos Supervisors are already getting violations for dry removal or 5 or more violations on the site.

Another enforcement action NYCDEP announced was giving applicants until March 15, 2012 to close out projects filed in the January and February of 2011.  Applicants are required to close-out their project(s), NYCDEP, with this memo, is notifying applicants that if their project is still open after March 15 they will take enforcement action.  In addition, NYCDEP will begin strictly enforcing the following sub-sections of the asbestos regulations:

• 1-26 (e) Failure to terminate asbestos abatement permit within year
• 1-44(d) Analysis and Reporting Results
• 1-112 (m) Additional Clean-up Procedures (Final)
• 1-28 (h) Clean-up Procedures: Preparation for Clearance Air Monitoring

It certainly seems NYCDEP continues to show how government agencies should be enforcing their regulations.  You can find the memo at: http://futureenvironmentdesigns.com/news.html.

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