As part of Mayor Bloomberg’s initiative to improve the safety of asbestos abatement projects, and in accordance with newly enacted provisions of the New York City Administrative Code requiring the Commissioner of the New York City Department of Environmental Protection (DEP) to establish permit requirements for such projects, DEP has promulgated new rules governing the City’s Asbestos Control Program, which are codified in Chapter 1 of Title 15 of the Rules of the City of New York.

Subchapter C of the new rules, which will be phased in between October 13, 2009 and January 13, 2010, sets forth new requirements for “asbestos project” notification, permitting and record keeping. “Asbestos projects” are projects where the amount of asbestos containing material disturbed is greater than 10 square feet or 25 linear feet. Subchapter C of the new Asbestos Control Program rules require building owners to obtain an asbestos abatement permit from DEP for asbestos projects that require a permit from the New York City Department of Buildings (DOB), such as a demolition or alteration permit, or affect or obstruct means of egress or fire protection systems. In order to obtain an asbestos abatement permit, the building owner or its authorized representative must submit certain construction documents, and in some cases a workplace safety plan prepared by a licensed and registered architect or engineer, to DEP. The documents must be reviewed and approved by the newly formed DEP Asbestos Technical Review Unit (A-TRU) before DEP will issue an asbestos abatement permit. Workplace safety plans must include, among other things, floor plans showing the locations of asbestos project work areas, components of the fire alarm or fire protection system that have been deactivated or disengaged, obstructed or removed exit signage and lighting, and obstructed means of egress or required exit. Workplace safety plans must also specify mitigation measures that will be undertaken to mitigate compromised fire protection systems or means of egress.

The new rules prohibit DOB from issuing permits until asbestos projects are complete and DEP has issued an asbestos project completion form. Under the previous rules, DOB could issue a permit upon receipt of a “Not an Asbestos Project Notification” form (Form ACP-5), an asbestos exemption certificate (Form ASB4), or an “Asbestos Project Notification” form (Form APC-7). Under the new rules, however, DOB will no longer accept the ACP-7 form as a prerequisite to issuing a permit. Now, all abatement work must be completed and DEP must issue certain forms certifying that the abatement project is complete before DOB can issue a permit. Further, a registered design professional must perform a final inspection and file an inspection report (Form A-TR1) confirming that all work is complete before DEP will issue the project completion forms.

In addition to the new notification and permitting requirements, the rules also require investigators, contractors and building owners to maintain various records regarding asbestos inspections and projects. Failure to comply with any provision of the rules can subject building owners, contractors or air monitoring companies to civil and criminal enforcement actions or penalties.

To facilitate these new requirements, DEP has established an Asbestos Reporting and Tracking System on its website (www.nyc.gov/dep), which will act as a central location for electronically filing and managing asbestos notification forms, including the new APC-7 asbestos project notification form.The APC-7 form has been revised to include various detailed questions regarding conditions in the abatement work area to determine whether an asbestos work permit will be required.

The amendments to Subchapter C will begin to take effect on October 13, 2009 for asbestos abatement projects involving the abatement of 1000 or more linear or square feet of asbestos-containing material on a single floor of a building, and on January 13, 2010 for asbestos projects involving the abatement of less than 1000 linear or square feet of asbestos-containing material on a single floor of a building. The changes to Subchapter C will not affect applications for construction document approval filed with DOB prior to October 13, 2009 for projects involving the abatement of 1000 or more linear or square feet of asbestoscontaining material on a single floor of a building or those filed prior to January 13, 2010 for asbestos projects involving the abatement of less than 1000 linear or square feet of asbestos-containing material on a single floor of a building.

Once effective, the new permitting requirements will certainly complicate asbestos abatement and asbestos projects in New York City.