Asbestos Rule Amendment

Adopted Rules: Closed to Comments

Effective Date: 
Sunday, January 6, 2019

Statement of Basis and Purpose of Rule

Working with the City’s rule-making agencies, the Law Department, the Mayor’s Office of Management and Budget, and the Mayor’s Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that will be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. In light of this review, the Department of Environmental Protection (“DEP” or “the department”) is making several changes to its asbestos regulations to update them and make them easier for the public and the regulated community to understand. The rule also explicitly codifies requirements that were previously incorporated by reference including the addition of new section 1-38; those changes are not substantive and have been made for clarification purposes based upon public comments received. Sections 24-105 and 24-136 of the Administrative Code authorizes the department to promulgate this rule.

Among other changes, this rule:
• clarifies the purpose of the rule;
• adds definitions;
• adds sections related to the Asbestos Assessment Report which explains sampling requirements for a certified asbestos investigator; and the renewal of the Restricted Asbestos Handler Certificate;
• clarifies variance-related issues;
• clarifies the qualifications required for investigator certificates;
• clarifies record-keeping requirements for the contractor, air monitor and investigator;
• updates language on, and the specifications of, required warning signs and labels;
• prohibits employees of the department’s Asbestos Control Program from applying for an asbestos investigator certificate or from applying for renewal of the certificate;
• allows in certain instances individuals denied a certificate to appeal the decision;
• repeals section 1-22 (b)(2), the Asbestos Exemption Certification;
• limits the number of times any certificate holder may receive a replacement certificate to twice in any two-year validity period;
• requires an asbestos abatement permit when there is an obstruction of an interior stairway leading to an exit or exit passageway of a buidling;
• requires a sample location sketch to be made within one hour of the beginning of sample collection of suspected asbestos-containing material;
• requires a registered design professional, a certified industrial hygienist, or a certified safety professional to have a minimum of six months graduate experience in building survey for asbestos;
• allows for electronic recordkeeping;
• clarifies for the investigator what a chain of custody must include;
• sets required procedures for encapsulation and enclosure and modified tent proceedings without glovebag procedures during a large asbestos project;
• requires applicants for an asbestos investigator certificate to achieve a passing grade on a departmental examination by the third attempt;
• makes failure to comply with a work place safety plan a violation of the rules;
• requires a variance for the use of a remote worker decontamination enclosure;
• requires a building owner or its authorized representative to retrieve the approved, stamped copy of the work place safety plan from DEP and post that copy at the work place;
• amends section 1-26 to always require a work place safety plan when a permit is required;
• amends the requirements and qualifications contained in section 1-16 to become a certified asbestos investigator;
• requires a CAI to disclose prior criminal convictions as part of the application, to the extent permitted by law;
• clarifies the roofing, flooring, vertical surface, and pre-demolition procedures; and
• includes minor plain-language revisions.

DEP revised the proposed rule in response to comments received at the public hearing as well as written comments received during the public comment period. The final rule includes the following changes from the proposed rule:
• half the required experience for certain applicants to be an asbestos handler supervisor must be on large projects, except for employees of electric utilities, whose full experience can be on minor or small projects due to the specialized nature of that work experience;
• any related science is deemed to be an environmental science and in compliance with qualifications to become a certified asbestos investigator;
• all applicants to become asbestos investigators 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;
• one air sampling technician must be present per three work areas in one work site;
• clarifying that the department may deny any application for an asbestos investigator certificate where the applicant has failed to meet the established standard;
• clarifying that the commissiomer may issue a stop work order and invalidate any falsified asbestos assessment report (ACP 5) and then require the building owner to have a new survey performed as well as a new ACP 5 submitted when there is a threat to human safety;
• the building asbestos survey and sampling conditions are clarified by clearly listing out all requirements rather than incorporating by reference the state and federal regulations;
• work place safety plans now require the additional submission of a decontamination enclosure system on the floor plan;
• repeal of 1-16(a)(3) as the requirements are now codified in the newly created section 1-38, asbestos survey and sampling requirements;
• the proposed change to require notification of a minor project has been removed from sections 1-81 and 1-125, as there is no requirement to notify the department of buildings of the abatement and the requirement is onerous relative to a minor project; and
• the proposed changes to 1-36(a)(4) have not been retained, and the original language has been restored.