Asbestos Rules Amendments

Online comments: 8

• SAIDREZA B. FARROKH

  These are my objections due to extensive/unnecessary burden on the budget of the asbestos/abatement projects. NYC-DEP has not justified the reasoning for these changes (if the goal was to eradicate the corruption by the investigator “CAI” or the accuracy of inspection procedures or performing the abatement work). Furthermore, the compliance for these changes will add unnecessary budgetary expenses to do these type of assessments and there is always mishaps since there is no human being without flaws.

  My objections are:

  SRBF Objection – 01: Section 1.16 to be amended to describe “presence”: The Fifth Circuit’s opinion in Montague v. United States Postal Service makes clear that evidence of other similarly situated employees’ (or even a plaintiff’s) successfully performing the essential functions of their jobs remotely at some point may be relevant to the interactive process and to assessing whether an employee’s remote-work request is reasonable. At the same time, the Fifth Circuit reiterated its prior precedent that any requested accommodation must still have a regular, in-person component. The precise number of days and hours required for in-person attendance may vary, depending on the job. NYC-DEP diligently justify this issue of “presence”

  SRBF Objection – 02: Section 1-26 (b) – This may cause delays since certain times, the owner or the contractor has not selected all trade contractors for the project. NYC-DEP has not established reasonably why these information related to other trades are essential in performing asbestos abatement work including “Tenant or occupant protection plan”. This will add unnecessary burden to the owners since during any asbestos abatement work, 10-days notification is mandatory in the stated rules/regulations.

  In Skidmore v. Swift & Co., 323 U. S. 134 (1944), the Court explained that the “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon . . . specialized experience,” “constitute[d] a body of experience and informed judgment to which courts and litigants [could]properly resort for guidance,” even on legal questions.

  These changes to stated section [1-26 (b)] has nothing to do with the mandated NYC-DEP asbestos rules/regulation rather than the agency has exerted its authority to create an unnecessary burden to an asbestos abatement work.

  SRBF Objection – 03: Section 1-38, it is unnecessary burden. Again, NYC-DEP has not established its reasoning why CAI should be presence. The NYS-DOL inspector has enough experience and training to conduct an inspection under the existing state rules and regulations. Does NYC-DEP intend to preempt the state laws? As long as CAI is aware of the inspection and has established guidelines and procedures to be followed by NYS-DOL inspector, there should NOT be any issue if CAI is not presence at all time.

  New York Constitution Art. IX, section 2(c) and New York Municipal Home Rule Law section 10(1)(ii)(a)(12) (containing substantially the same language) confer power upon local governments to adopt laws that relate to, among other things, the “protection, order, conduct, safety, health and well-being of persons or property.” However, local laws may not conflict with the state constitution or general laws. This section clearly create conflicts that NYC-DEP has concerns about the NYS-DOL inspector.

  If NYC-DEP has concerns about corruptions, there are many avenues available to investigate such misdeeds or reject ACP-5 rather than additional cost by having a CAI to bulwark a NYS-DOL Inspector practices/collection procedures.

  SRBF Objection – 04: Section 1-108(f) – NYC DEP has not done its due diligence for changing “abrasive method”. There are areas that chemically removal of mastic and tiles are impossible due to the age and caking process. There could be existing cracks in slabs and floor beneath the mastic and tiles, the situations like that may allow seepage of chemicals to the floor below or groundwater.

  If NYC-DEP is concern of generated dust (such as asbestos fibers or silica), then the stated rules and regulations should be amended that “No abrasive removal is allowed unless a full enclosure is erected with the attached functional decontamination unit and the number of air changes per hour increased to from 4 to 8 or 12 as stated in the current rules and regulations”.

  I have other concerns/objections that I will submit prior to closure of comment period. At the end, if the department goals are to impede corruptions or clarified steps to be taken, then some of these changes (even though the NYS court of appeals has given such latitudes to the stated agency) ONLY added to unreasonable burdens of doing business within five boroughs of NYC .

  I thank you the entire NYC-DEP team for generous consideration in the above.

  Saidreza Farrokh
  HSE Compliance Director
  Practicing in asbestos industries since 1988

  Comment added August 27, 2024 5:44pm

• SAIDREZA B. FARROKH

  correction to be made to previous comments:

  “SRBF Objection – 01: Section 1.16 to be amended to describe “presence”: The Fifth Circuit’s opinion in Montague v. United States Postal Service makes clear that evidence of other similarly situated employees’ (or even a plaintiff’s) successfully performing the essential functions of their jobs remotely at some point may be relevant to the interactive process and to assessing whether an employee’s remote-work request is reasonable. At the same time, the Fifth Circuit reiterated its prior precedent that any requested accommodation must still have a regular, in-person component. The precise number of days and hours required for in-person attendance may vary, depending on the job. NYC-DEP has not diligently justified this issue of “presence”.

  It should have been: NYC-DEP has not diligently justified this issue of “presence” rather than NYC-DEP diligently justify this issue of “presence”.

  Thank you for generous consideration in the matter.

  Comment added August 27, 2024 6:06pm

• David Millner

  I have been an asbestos investigator, an inspector and now handler for the past forty years. The whole charade is meant to keep abatement contractors and city and state workers employed. It is a joke. Anyone who knows anything about asbestos including Weitz and Luxembourg know it is a joke. In working for the NYC S.C.A. at least 10% of the construction budget was spent on abatement. I had PS. 66 on 88th street. Out of seven hundred samples two were found to be positive. Obviously it was there mishandling yet the cost to to abatement was as expensive as the cost of the science labs. Any additional burdens will result in even less construction .

  Comment added August 28, 2024 9:44pm

• alan m friedman

  Reading the proposed rules section 16 subdivision (b) of section 1-28 paragraphs 1,2,3,4,5 all end in “and”
  Being a code consultant “And” is a cumulative for all facets so in essence all 5 paragraphs are actually 1 record as is stated in the proposed code.

  As stated by these sections any missing requirements would not qualify as a complete record since some of the information is duplicative it could be referred to in any part of the 5 part record requirement. Further since “AND” couples all 5 paragraphs as one record its a duplication of effort and time to show compliance for any one section individually

  For instance the description of material could be referenced on the spread sheet indicating condition and number of samples taken

  Much like building plans with legends that show wall type of fire rating for different walls erected in a building.

  The record of the investigation requires numerous sources to reconstruct what was on site at the time of the investigation. Trying to use one of the five required sections to piece together what was a building in my opinion will not adequately expose the existing conditions.

  It seems the proverb a picture is worth a 1000 words is being cast aside and books will now become the norm for all asbestos reports. This section will require undue hardship for owners to bear the cost to replicate onsite conditions as many extra hours of time will be relegated to conform to adherence to the promulgated rules

  Comment added August 29, 2024 1:44pm

• Michael Tuttle

  Section 16, Subdivision (b) of section 1-28

  I don’t have a problem with making a regulation that each item be satisfied independently but then don’t make the same information required in more than one item. That is redundant and requires more work in an industry already inundated with paperwork.

  Item 1 – Survey Report – why do we need to list all building materials in the areas involved in the scope of work even if that material will not be disturbed. The report will include the written scope of work and list all SACM sampled and that should be sufficient to support the ACP5.

  Item 2 – Blueprint, Diagram, Drawing – the type of material sampled and the date it was collected are already listed on the survey report, the COC, and the lab analysis report. Listing it again on the drawing is redundant, time consuming, and will clutter the drawing. The sample number is easy to reference on the COC.

  Item 3 – This item should be labeled as Lab Analysis Report as most of the information requested is on this document. The licenses should be item 4 as item 4 should be removed altogether. The COC should be item 5 as the printed name and signature of all samplers is on this document.

  Item 4 – Proposed Demo/Reno/Alt/Mod Document – This requirement should be removed entirely. The demo/reno/alt/mod is up to the discretion of the engineer and contractor. The CAI has no input into these matters. What purpose does it serve to make the CAI responsible to attain and keep a record of a written description of how this work will be done? It is difficult enough to get drawings with the scope of work detailed. The scope of work is written in the Item 1 (Survey Report) and this says what areas will be disturbed. Making this a CAI requirement will cause jobs to be held up by the CAI asking for something that may not exist which will require someone else to do more work and will make it look like the CAI is being difficult. This item is not necessary for the CAI to know what SACM will be disturbed. This item should be investigator and company licensees.

  Item 5 – The COC includes the name and signatures of the samplers and therefore this requirement should not be a part of item 3.

  Comment added September 5, 2024 3:29pm

• Five Star Environmental - Peter Wilk

  1. Double Fines Imposed on Contractors and Building Owners
  Asbestos abatement contractors and project monitors are frequently issued violation fines, which are also imposed on the building owners. This practice results in de facto double fines, as building owners typically recover the fines from contractors who are not directly responsible for the cited violations. Could you please clarify the legal grounds for imposing these duplicate fines under NYC DEP regulations? What specific provisions authorize this practice, and how does this align with the principles of fairness in enforcement actions? Are there legal precedents or rulings supporting this double penalization?
  2. Coercion in Offering Stipulations
  When offering stipulations to contractors and project monitors, DEP often warns that failure to accept such stipulations will result in the imposition of the maximum penalties. This practice seems coercive, especially when contractors believe they have grounds for defense. Can you provide the legal justification for offering stipulations under such conditions, and how does this align with the right to due process? What legal precedents or statutory authority permit the use of stipulations in this manner?
  3. Lack of Correction During On-Site Inspections
  It has been observed that NYC DEP inspectors issue fines long after asbestos abatement is completed, without providing the opportunity to correct deficiencies during on-site inspections. This is contrary to the practice of NYS DOL inspectors, who demand immediate correction of issues to prevent further harm. Could you please clarify the purpose of DEP’s on-site inspections? Is it the department’s policy to allow errors to persist, only to later issue fines, or should the inspections prioritize the protection of public health and the environment through immediate corrective action? Please reference any relevant regulations, including Title 15 and DEP policies, governing the conduct of on-site inspections.
  4. Failure to Update Title 15 After the 2022 Final Rule
  The current version of Title 15, as available on the DEP website, is dated December 7, 2018 (effective January 6, 2019), yet it does not reflect the significant regulatory changes introduced by the 2022 Final Rule. This omission creates confusion and leaves contractors unaware of updated obligations, potentially leading to unwarranted fines. Please explain why these updates have not been incorporated into the publicly available version of Title 15 and provide the timeline for their inclusion. This delay appears to contravene the principles of transparency and fairness in regulatory enforcement.
  5. Suggested Improvements to Title 15
  Title 15’s current format is difficult to navigate, especially given its narrative structure. To improve clarity and compliance, I recommend the following changes:
  o Create a table of contents like that in ICR56.
  o Use bullet points to itemize procedural steps, logbook entries, and air sampling layouts.
  o Introduce summary tables for certificates, sample locations, and document types.

  6. Variance Requirement for Chipping Guns and Roof Cutters with HEPA Attachments
  The requirement for a variance when using chipping guns and roof cutters with HEPA attachments seems excessive, especially since these tools, when properly equipped with HEPA vacuums and foam or amended water, provide effective dust control. Why does DEP continue to require variances for these tools, which are critical for roof work? Given the improved safety measures, could you provide the regulatory justification for this variance requirement, and does DEP have any plans to revise this rule to align with industry standards for dust control?
  7. Variance Requirement for Low RPM Buffers in Mastic Removal
  Similarly, the requirement for a variance when using low RPM buffers to remove floor mastic with mastic remover is perplexing. This method generates far less dust than manual scraping, and the DEP’s foam method is ineffective in mastic removal scenarios. Can you provide a detailed explanation for the variance requirement in this context, and if this rule remains necessary, would DEP consider creating a streamlined procedure or attachment that simplifies the variance process for this common method?
  8. Request for Uniform Logbook Templates
  The lack of a standardized logbook template for supervisors and air sampling technicians creates confusion in the field. Can DEP create and mandate a uniform template for logbook entries to ensure compliance and clarity? At a minimum, could Title 15 be updated to explicitly list the required entries in these logbooks?

  9. Improvement of Decontamination Unit Illustrations
  The illustrations (I, II, and III) of decontamination units in Title 15 are unclear and unfit for use in project designs. Could DEP provide clearer and more detailed illustrations that can be incorporated into phasing plans? This would greatly benefit project designers and contractors alike.
  10. Delays in Variance Approvals
  In the past, variance approvals were typically processed within two weeks. However, in recent years, approval times have extended to over four weeks, with some applications languishing in the ARTS e-file system for weeks before review. This delay harms the asbestos abatement industry, as designers are held responsible for project delays. Could DEP take steps to expedite the variance approval process, such as hiring additional reviewers? Is there a plan in place to address the backlog and improve response times?
  11. Asbestos Sampling and Survey Procedures
  Title 15 lacks specific guidelines regarding asbestos sampling procedures, documentation, and forms. Asbestos investigators are often left to rely on EPA AHERA and ICR 56, which may not apply in certain private sector contexts. Can DEP develop and publish a clear guide outlining the procedures, methodologies, and documentation requirements for asbestos surveys? This would mitigate confusion and reduce the likelihood of fines imposed due to incomplete or incorrect procedures.
  12. Proposal for a Public Q&A Portal for the Asbestos Industry
  Could DEP establish a public portal where contractors and asbestos industry professionals can submit questions and receive official answers? This would foster transparency and serve as an educational resource for the entire industry. Additionally, it would provide much-needed clarity on procedural and regulatory matters that often result in confusion and fines.
  13. Request for a DEP Consulting Team for Contractors
  Finally, I propose that DEP create a consulting team to assist contractors in resolving procedural issues and ensuring regulatory compliance. NYS DOL has a successful engineering department that works closely with contractors, and a similar program within DEP could greatly benefit the asbestos abatement industry. Would DEP consider implementing such a service?
  14. Clarification on DEP Form Requirements for CAI and ACP5
  There appears to be confusion regarding the purpose and correct usage of the so-called DEP form that the Certified Asbestos Investigator (CAI) must complete alongside the ACP5 form. Could you please clarify the intended purpose of this form? Additionally, we require specific guidance on how to quantify asbestos-containing materials (ACMs) for these forms. For instance, when replacing an ACM fire door that will disturb adjacent ACM walls, should the entire wall be quantified, or only the portion directly impacted by the disturbance? The ambiguity in the current guidelines makes compliance challenging. Could DEP provide clearer instructions, perhaps in the form of a detailed FAQ or an official update to the relevant regulations, specifying how quantities should be calculated in such scenarios?

  Comment attachment
  QUESTIONS.docx

  Comment added September 5, 2024 11:39pm

• Veronica Kero (Omega)

  Section 1-108(f) would be amended to clarify that abrasive methods of removal are not permitted during flooring abatements. Purpose: To clarify permitted floor removal techniques.

  (Concern/comment regarding feasibility) – DEP should be aware that not permitting VAT mastic grinding within an asbestos containment could potentially result in exposure of new flooring installation workers to asbestos fibers and/or other environmental health and safety risks related to the following considerations. In addition, NYSDOL currently permits wet method grinding.
  – 100% ACM mastic removal is not guaranteed unless grinding of the concrete floor slab is performed to remove the top surface layer of concrete. Specifically, use of alternative methods such as chemical stripping and/or manual scraping typically only achieve 99% removal, where there is still trace leftover mastic. Since certain types of new flooring require a 100% clean ground down condition for adhesion (no faint black mastic lines remaining), new flooring crews may be forced to grind down the slab themselves outside of containment which could result in release of trace asbestos fibers as well as Silica dust. From an overall project health and safety perspective, it is highly preferred to perform grinding/shot blasting within the asbestos negative air containment with workers wearing PPE.
  – Due to chemical odors, use of chemical stripping is typically not permitted in health care and/or school buildings. Non-toxic “green” chemicals are not always effective ACM mastic removal. For this reason, in addition to not achieving 100% mastic removal required for many types of new flooring, the chemical stripping method has limitations.

  Sections 1-112(m) and 1-128(h) would be amended to provide that both the A-TR1 form and the ACP-15 Form must be submitted to DEP within 21 days of project completion, that failure to timely submit the ACP-15 form will result in the suspension of the contractor and air monitor ARTS E-File accounts and that final visual inspection must be documented in the air monitor’s log. Purpose: To clarify requirements for project closeout.

  (Concern/comment regarding feasibility) – While submitting an ATR-1 form within 21 days may be feasible for corridor/stairwell blocking ATRU triggers, other project types such as spray-on fireproofing (SOFP) replacement and re-installation of FR enclosures (shafts/risers) and walls/ceilings by General Contracting trades require additional time to complete beyond 21 days.
  SOFP REPLACEMENT DRYING TIME: During humid summer condition months, especially when HVAC is shut down for abatement, new SOFP curing typically requires 3+ weeks before an adhesion test can be performed. While the new SOFP is drying over 3+ weeks, the material is soft and will not pass the required ASTM adhesion test.
  ASBESTOS FIRE DOOR REPLACEMENT: In some cases (ADA door enlargement, etc.), the replacement fire doors have to be re-hung after the completion of wall re-configuration which is also at the end of a renovation project.
  FR ENCLOSURE AND WALL/CEILING RE-BUILD BY G.C. TRADES: Since the G.C. typically has to complete MEP re-installation and tie-ins before re-enclosing FR shafts/risers and completing new wall/ceiling assemblies, the FR assembly replacement work sometimes cannot be completed withing 21 days. Temporary FR re-enclosure can be used in some cases, but where access is required to the shaft/wall/ceiling assembly for new work, the temporary FR enclosure has to be removed.
  If the DEP requires ATR-1 closeouts within 21 days of abatement completion, then there would need to be a procedure to request a project-specific time extension. Another option would be to transfer the abatement FR restoration Special Inspections to the general construction phase of the project under their required Special Inspection list.

  Comment added September 16, 2024 10:17am

• MKM

  – Double Violations for Air Monitoring Companies and Building Owners:
  Currently, it appears that the DEP issues double violations—one to the air monitoring company and one to the building owner—for the same offense. In practice, however, the air monitoring company often ends up paying both fines. This creates an undue financial burden on the air monitoring company, which not only has to cover its own penalty but also the building owner’s

  – Proposed Change: The DEP should either issue a single violation to the party responsible for the infraction or apportion fines more fairly between the building owner and the air monitoring company, based on actual fault and responsibility. Moreover, the DEP should clarify its legal basis for issuing multiple violations for the same offense, as this practice could lead to challenges regarding its legality and fairness. The rules should clearly delineate when and why multiple parties are held liable

  – Need for Warnings Before Issuing Heavy Violations
  The DEP currently issues thousands of dollars in violations without any prior warning or opportunity for correction. In contrast, other city agencies, such as the Department of Housing Preservation and Development (HPD) and the Department of Health (DOH), contact contractors before issuing penalties. These agencies often ask questions or give contractors the chance to fix the problem, especially when the issue is a minor mistake. This approach recognizes that human error is inevitable, particularly when working across multiple city agencies with complex regulations.

  The DEP, however, imposes significant fines without this crucial step, sometimes amounting to hundreds of thousands of dollars, all before giving contractors an opportunity to rectify issues. This practice is unnecessarily punitive, especially when many violations could be avoided with a simple notification or clarification.

  Proposed Change: The DEP should implement a warning system, similar to that used by HPD and DOH, to allow contractors and businesses the chance to fix minor issues before facing heavy penalties. This would promote fairness, enhance cooperation between contractors and the DEP, and reduce the burden of disproportionate fines for minor or unintentional infractions. Providing a warning before issuing fines is a common-sense approach that fosters compliance and allows for the resolution of problems without causing significant financial strain. The available dataset shows that the total violation amount recorded so far for 2024 is at least $76,970 as of 09/15

  – Communication with DEP is a significant challenge. Contractors often face delays when trying to contact DEP for clarification or to resolve minor issues, sometimes waiting days for a reply. This delay not only affects contractors but also impacts clients who are waiting for important forms such as the ACP5 or ACP7, which are essential for project completion.

  Proposed Change: Improve communication channels within DEP. There should be a simple and direct way to contact someone at DEP to address urgent matters. Waiting days for a response, especially when clients are waiting for critical forms, is not sustainable. A more responsive system is needed to ensure smoother operations for contractors and faster service for clients.

  We also approve the change regarding the requirement for the physical presence of the investigator; however, the regulations surrounding this need to be clarified. A Certified Asbestos Investigator (CAI) should be present, as the NYS-DOL inspector does not have sufficient experience and training to conduct a thorough inspection.

  Comment added September 17, 2024 12:32pm