In 2009, the New York City Department of Environmental Protection (DEP) promulgated rules governing New York City's Asbestos Control Program, codified in Chapter 1 of Title 15 of the Rules of the City of New York, in order to improve the safety of asbestos abatement projects.  These rules (Subchapter C) establish new requirements for asbestos project notification, permitting and record keeping.  This post describes some of the amendments to these rules that were promulgated by DEP in February 2011.  In addition, this post describes the Environmental Control Board's proposed amendments to its Air Asbestos Penalty Schedule. 

Asbestos Control Program

Prior to any alteration, renovation, modification, demolition or plumbing work, a building owner is responsible for determining whether the work will disturb asbestos-containing material and thus constitutes an "asbestos project."  This determination can be made by DEP-certified asbestos investigators.  The recently enacted amendments expand the definition of an "asbestos project."  Previously, an "asbestos project" was defined as a project where the amount of asbestos-containing material disturbed is greater than 10 square feet or 25 linear feet.  The new amendments expand the definition of an asbestos project to also include any work performed "in connection with the replacement or repair of equipment, pipes or electrical equipment not located in a building or structure" that disturbs more than 10 square feet or 25 linear feet of asbestos-containing material.  In these instances, all abatement work must be completed and DEP must certify that the abatement project is complete before DOB can issue a permit.

The amended rules now specify 18 activities that would be eligible for Asbestos Exemption Certification (Form ASB4).  These activities include, among other things, work on: replacing rooftop air conditioning (so long as there is no modification of ductwork or disturbance of the building), new storefronts in existing masonry openings (so long as there is no disturbance of the building), awnings, emergency power not involving hard wiring (i.e., battery packs), and erecting temporary structures with electric/water lines only (i.e., trailers).  Submitting a Form ASB4 allows DOB to issue a permit for the exempted activity without requiring any reports or approvals from DEP. 

The amended rules also set forth requirements for work place safety plans, which must be submitted to DEP in certain instances prior to receiving an asbestos abatement permit.  Work place safety plans now must include, among other things, several types of floor plans, a written description of measures taken to mitigate compromised fire protection systems or means of egress, a tenant protection plan if the asbestos project takes place in a building where any dwelling units are to be occupied for the duration of the asbestos abatement permit, and a list of all non-asbestos contractors who will perform work on the project.  The amended rules note that the items to be included in the work place safety plan are contingent upon the size and scope of the asbestos project.

The amendments include numerous other minor modifications to the City's Asbestos Control Program, so parties engaging in asbestos abatement projects should ensure that they are using the most up-to-date rules.

Proposed Amendments to Air Asbestos Penalty Schedule

On a related note, the Environmental Control Board (ECB) has proposed to amend the Air Asbestos Penalty Schedule, which is found in Chapter 3 of Title 48 of the Rules of the City of New York.  The proposed amendments would add two new penalties that would apply to projects involving asbestos abatement activity during adverse weather conditions such as rain, snow, sleet, high winds, and temperatures below 32 degrees Fahrenheit.  The proposed amendments also would require the use of High Efficiency Particulate Air (HEPA) filters on all power tools used in the removal of asbestos.  According to ECB, HEPA filters are capable of trapping and retaining 99.97 percent of certain asbestos fibers.  Penalties would range from $1,000 to $10,000 per violation.