Promulgation of Air Asbestos Penalty Schedule

Adopted Rules: Closed to Comments

Effective Date: 
Sunday, January 6, 2019

Statement of Basis and Purpose of Rule

DEP is promulgating this rule, to be found at Title 15 of the Rules of the City of New York (RCNY) Chapter 53, to establish penalties for violations of Title 15, Chapter 1 of the Rules of the City of New York, also known as the Asbestos Control Program Rules (ACP Rules). The rule is authorized by section 1043 of the Charter of the City of New York and sections 24-136 and 24-178 of the Air Pollution Control Code.
DEP is making a number of changes to the existing ACP Rules which require changes to the existing Air Asbestos Penalty Schedule. These changes include the addition of penalties for several new sections of the ACP Rules (sections 1-26(b)(4), 1-26(h), 1-26(i), 1-28(f), 1-29(d), 1-38, 1-109(c), and 1-109(d)).
The current Air Asbestos Penalty Schedule, which is located in the rules of the Office of Administrative Trials and Hearings (OATH) at 48 RCNY § 3-110, will be repealed by OATH on the same day that this rule takes effect.
DEP did not receive any comments regarding the rule, but is making one change to the penalty schedule to remove section 1-16(a)(3), which has been replaced by section 1-38 in the new ACP Rules.
Although OATH ECB is empowered to impose penalties under the New York City Charter and has until now promulgated penalty schedules, the regulatory and enforcement agencies have the necessary expertise to determine appropriate penalties for violations of the rules and of the laws within their jurisdiction based on the severity of each violation and its effect on City residents. Moving the penalty schedule to DEP’s rules will also make it easier for the public to find the penalties. Finally, the rule relocation will speed up the rulemaking process by eliminating the need for OATH ECB approval of proposed or amended penalties for agency rules that have already been established by the legislature and/or that have already undergone the City Administrative Procedure Act (CAPA) process by the enforcement agency.
Working with the City’s rulemaking 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of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that will be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and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. The repeal of 48 RCNY §3-101 was identified as meeting the criteria for this initiative.