Statement of Basis and Purpose
The Department of Environmental Protection (DEP) has requested that the Environmental Control Board (ECB) amend the Air Asbestos and Air Code Penalty Schedules. Some of these proposed changes have been requested to address evolving industry practices that raise safety concerns, while other changes are being introduced in response to revisions of the Rules of City of New York (RCNY). Cure periods are not included in the proposed provisions, because the governing statutes mandate the imposition of minimum penalties.
Requested Changes to the Air Asbestos Penalty Schedule
Ad. Code § 24-1002(c)
On February 4, 2014, Mayor de Blasio signed Local Law 3 of 2014, which amends Title 24 of the Administrative Code by adding a new Chapter 10. The amendment requires the DEP to establish a program to provide for the registration of practicing Master Environmental Hazard Remediation Technicians. Since the registration program will be administered by the Asbestos Control Program, ECB proposes to add the following penalty for this provision to the Air Asbestos Penalty Schedule.
Section 24-1003 specifies a minimum penalty of $1000 for any violation of Chapter 10. No maximum penalty is set forth. A review of section 24-1002(c) makes it unlawful to identify oneself as a Master Hazard Remediation Technician without being registered by the DEP.
15 RCNY 1-91(n)
ECB is also adding a penalty to the Air Asbestos Penalty Schedule for section 15 RCNY 1-91(n), a provision of the subchapter on engineering controls. This section requires contractors to carefully install ducting for negative pressure units because improper installation threatens the release of asbestos fibers into uncontaminated building areas.
Requested Changes to the Air Code Penalty Schedule
15 RCNY 12-18(a), 12-18(b), 12-18(c), and 12-18(d)
15 RCNY 12-18 provides for the posting of notices by dry cleaning facilities. The notices address the use of chemicals in the dry cleaning process.
Penalties for the section are governed by the Air Code Table of Civil Penalties. This table is found at 24-178(b)(5). The Air Code Penalty Schedule currently provides a penalty for failure to post a required notice in an easily visible location in dry cleaning facilities. This notice is required by New York State. ECB proposes to retain the existing penalty for 12-18(a) with an amended description.
Additionally, ECB proposes to add penalties for subdivisions (b), (c) and (d). Section 12-18(b) requires dry cleaners using perc (also known as PCE and perchloroethylene) to post a notice informing customers that the chemical is used in its dry cleaning process. The notice must include a web address where the Material Safety Data Sheet can be viewed. The sign required by 12-18(b) differs from the sign required by 12-18(a); 12-18(a) complies with New York State law and thus its penalty is higher than the penalties for 12-18(b), (c) and (d). Section 12-18(c) requires dry cleaners using alternatives to perc, known as non-perchloroethlene (non-perc) to post a sign identifying the chemical being used along with a web address where the Material Safety Data Sheet for the chemical can be viewed. Section 12-18(d) requires dry cleaners using perc and non-perc to post notices as required by subdivisions (a), (b), and (c).
15 RCNY 2-09 and 15 RCNY 40-02(b)
15 RCNY Chapter 2 sets forth performance standards and engineering criteria for boilers and water heaters. Specifically, Section 2-09 states that boilers requiring a certificate of operation undergo an annual tune-up and combustion efficiency test. These results must be kept and submitted to DEP upon request.
15 RCNY Chapter 40 states that emergency generators (defined in 15 RCNY 40-01) must be registered and pass a smoke test. Specifically, section 40-02(b) requires the owner or operator of an emergency generator to maintain records documenting the generator’s hours of operation and provide these records to the DEP upon request.
Currently, there are no existing penalties for 15 RCNY 2-09 and 15 RCNY 40-02(b). Since these sections are most similar to the recordkeeping provisions of 24-177(b) and (c), it is proposed that the penalties for 24-177 are adopted for these two new charges.
Ad. Code § 24-168.1
Paragraph (1) of subdivision (b) of section 24-168.1 of the Air Pollution Control Code prohibits the use or delivery of heating oil that contains less than two per cent biodiesel by volume. Local Law 43 of 2010 added two penalties related to these provisions to the Air Code Table of Civil Penalties found in Administrative Code section 24-178(b)(5). The first provision states that the minimum and maximum penalties for a violation of 24-168.1 of using noncompliant heating oil are “as per schedule E.” The second provision sets a minimum penalty of $1000 and a maximum of $10,000 for the delivery of noncompliant heating oil, in addition to “twice the amount of money saved for failure to comply.”