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:
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| State-Certified Asbestos Inspector must be supervised by physically present CAIs |
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).
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| 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.
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.
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