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Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

On January 6, 2019, DEP amended its asbestos rules, which are found at Title 15, Chapter 1 of the Rules of the City of New York (RCNY). After DEP promulgated these rules, companies engaged in asbestos abatement requested several minor clarifications as follows:

• Clarify section 1-29 by specifying that only air monitoring technicians need to have their license at the work place, not all individuals;
• Clarify the requirements of section 1-36(b) as to how many air sampling technicians need to be present during sampling;
• Clarify that the requirements of section 1-42(a) regarding the placement of air samples apply to all asbestos projects, not only those that are conducted indoors;
• Change the requirements for lettering on notices to be posted under sections 1-81(a) and 1-125(a), as contractors advised that the required font sizes were impractical.

In addition, it was noted that the new Air Asbestos Penalty Schedule, found at Title 53 of Chapter 1 of the RCNY, which also became effective on January 6, 2019, had failed to carry over certain sections from the penalty schedule which had previously been located in the rules of the Office of Administrative Trials and Hearings.

Finally, the rule divides the penalty schedule into three subdivisions (specifically, the RCNY, the New York State Industrial Code, and the New York City Administrative Code). No substantive change is intended with respect to the amendments made by sections six and nine of the rule other than the addition of a penalty for a violation of Administrative Code § 24-1002.

The only public comments received were from the Asbestos Workers Union (Local 78), which opposed the change concerning the number of air sampling technicians and the change in font size for required notices. After assessing the comments, DEP has decided that the changes are justified.

After the public hearing was held, it was noted that the Air Asbestos Penalty Schedule contains an outdated statutory reference regarding violations for resuming work in violation of stop-work orders. The outdated reference is corrected in the final rule.

The rule is authorized by section 1043 of the Charter of the City of New York and sections 24-105 and 24-136 of the Administrative Code.

Effective Date: 
Fri, 09/20/2019

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, July 22, 2019
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

On January 6, 2019, DEP amended its asbestos rules, which are found at Title 15, Chapter 1 of the Rules of the City of New York (RCNY). After DEP promulgated these rules, companies engaged in asbestos abatement requested several minor clarifications. In response, DEP is proposing to revise the rules as follows:

• Clarify section 1-29 by specifying that only air monitoring technicians need to have their license at the work place, not all individuals;
• Clarify the requirements of section 1-36(b) as to how many air sampling technicians need to be present during sampling;
• Clarify that the requirements of section 1-42(a) regarding the placement of air samples apply to all asbestos projects, not only those that are conducted indoors;
• Change the requirements for lettering on notices to be posted under sections 1-81(a) and 1-125(a), as contractors advised that the required font sizes were impractical.

In addition, it was noted that the new Air Asbestos Penalty Schedule, found at Title 53 of Chapter 1 of the RCNY, which also became effective on January 6, 2019, had failed to carry over certain sections from the penalty schedule which had previously been located in the rules of the Office of Administrative Trials and Hearings. Accordingly, DEP proposes to amend the penalty schedule to correct those omissions.

Finally, the proposed rule divides the penalty schedule into three subdivisions (specifically, the RCNY, the New York State Industrial Code, and the New York City Administrative Code). No substantive change is intended with respect to the amendments made by sections six and nine of the proposal other than the addition of a penalty for a violation of Administrative Code § 24-1002.

Subject: 

DEP hearing- Amendment of Asbestos Rules and Air Asbestos Penalty Schedule.

Location: 
DEP 8th Floor Hearing
59-17 Junction Blvd 8th Floor Conference Room
Flushing, NY 11373
Contact: 

No contact

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, June 5, 2019
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

On January 6, 2019, DEP amended its asbestos rules, which are found at Title 15, Chapter 1 of the Rules of the City of New York (RCNY). After DEP promulgated these rules, companies engaged in asbestos abatement requested several minor clarifications. In response, DEP is proposing to revise the rules as follows:

• Clarify section 1-29 by specifying that only air monitoring technicians need to have their license at the work place, not all individuals;
• Clarify the requirements of section 1-36(b) as to how many air sampling technicians need to be present during sampling;
• Clarify that the requirements of section 1-42(a) regarding the placement of air samples apply to all asbestos projects, not only those that are conducted indoors;
• Change the requirements for lettering on notices to be posted under sections 1-81(a) and 1-125(a), as contractors advised that the required font sizes were impractical.

In addition, it was noted that the new Air Asbestos Penalty Schedule, found at Title 53 of Chapter 1 of the RCNY, which also became effective on January 6, 2019, had failed to carry over certain sections from the penalty schedule which had previously been located in the rules of the Office of Administrative Trials and Hearings. Accordingly, DEP proposes to amend the penalty schedule to correct those omissions.

Finally, the proposed rule divides the penalty schedule into three subdivisions (specifically, the RCNY, the New York State Industrial Code, and the New York City Administrative Code). No substantive change is intended with respect to the amendments made by sections six and nine of the propose other than the addition of a penalty for a violation of Administrative Code § 24-1002.

Consistent with the above, DEP proposes to promulgate the following amendments, to be found at 15 RCNY Chapter 1 and 53.

The rule is authorized by section 1043 of the Charter and sections 24-105 and 24-136 of the Administrative Code.

Subject: 

DEP HEARING CONCERNING CORRECTIONS TO THE ASBESTOS PENALTY SCHEDULE

Location: 
DEP 8th Floor Conference Room
59-17 Junction Boulevard 8th Floor
Flushing, NY 11373
Contact: 

No contact

Adopted Rules: Closed to Comments

Adopted Rules Content: 

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.

Effective Date: 
Sun, 01/06/2019

Adopted Rules: Closed to Comments

Adopted Rules Content: 

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.

Effective Date: 
Sun, 01/06/2019

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, September 5, 2018
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

DEP is adopting a new rule, to be found at Chapter 51 of Title 15 of the Rules of the City of New York (RCNY), 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 proposed rules are authorized by section 1043 of the Charter of the City of New York and sections 24-136 and 24-178 of the Administrative 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 § 3-101, will be repealed by OATH on the same day that this proposed rule takes effect.
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, which will be located within the same chapter as the rules supporting the violations alleged in the summonses. Finally, the proposed 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. The public will still have the opportunity to comment on proposed penalties during that process.
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 proposed repeal of 48 RCNY §3-101 was identified as meeting the criteria for this initiative.
The rule makes no substantive changes to the subject matter that precedes the schedule as set forth in Section 51-02.
DEP’s authority for these rules is found in sections of the New York City Charter section 1043 and Section 24-136 and 24-178 of the New York City Administrative Code.

Subject: 

PROMULGATION OF AIR ASBESTOS PENALTY SCHEDULE

Location: 
DEP 8th floor Conference Room
59-17 Junction Boulevard 8th Floor Conference Room
Flushing, NY 11373
Contact: 

No contact

Proposed Rules: Closed to Comments (View Public Comments Received:7)

Agency:
Comment By: 
Wednesday, February 14, 2018
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed 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 Enviornmental 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.

Among other changes, the proposed rule:
• clarifies the purpose of the rule;
• adds definitions;
• adds sections related to the Asbestos Assessment Report and 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), 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 exit stairway;
• requires a sample location sketch to be made within one hour of the beginning of sample collection of suspected asbestos-containing material;
• requires additional training for investigators with a high school diploma including blueprint-reading courses;
• requires a minimum of six months graduate experience in building survey or a certified asbestos investigator;
• allows for electronic recordkeeping;
• clarifies for the investigator what a chain of custody must include;
• sets required procedures for encapsulation and enclosure;
• requires applicants 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 that a variance for the use of a remote worker decontamination enclosure be obtained;
• 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;
• requires that a sample location sketch must be made within one hour of the beginning of sample collection;
• amends section 1-26 to always require a work place safety plan when a permit is required;
• clarifies the roofing, flooring, vertical surface, and pre-demolition procedures; and
• includes minor plain-language revisions.

Subject: 

Amendment of Asbestos Control Program Rules

Location: 
DEP 8th Floor Conference Room
59-17 Junction Boulevard 8th Floor Conference Room
Flushing, NY 11373
Contact: 

No contact

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, March 21, 2016
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule Subchapter 5 of Chapter 1 of Title 24 of the Administrative Code, which set forth fees to be imposed under the Air Pollution Control Code, was repealed by Local Law 38 of 2015, which has an effective date of May 6, 2016. The proposed rule establishes fees to replace the repealed subchapter. The new fee schedule retains the existing fees and establishes fees for previously unregulated equipment that will be regulated under the revised Air Code. These sources include char broilers, which will require a registration, and cogeneration systems, which will require a certificate of operation. The new fee schedule also reflects the changes that have been made in the revised Air Code to reflect more accurate units of measurement for various types of equipment, such as kilowatts for generators and horsepower for engines. The current code uses British Thermal Units (btu) as the unit of measurement for all types of fuel burning equipment. The revised Air Code clarifies that the output of some types of equipment is more accurately measured by horsepower (HP) or kilowatts (KW) and the new fee schedule reflects this. The use of this more accurate terminology does not affect the fees imposed. The revised fee schedule also reflects the change that has been made in the Air Code, which increases the threshold for boiler and engine registrations from 2.8 million Btu per hour to 4.2 million Btu per hour. By increasing the threshold, more boiler applications can be filed through the registration process, which is available for on-line filing. Finally, the asbestos fees, which are set forth in Subchapter 6 of the current Air Code, were also repealed by Local Law 38 and will be replaced by fees set forth in the proposed Rule. The amounts of the existing fees will not be changed.

Subject: 

Hearing to Establish Fees Under the Air Pollution Control Code.

Location: 
NYC DEP
59-17 Junction Blvd. 9 Floor Conference Rm.
Flushing, NY 11373
Contact: 

Russell Pecunies

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Proposed Rule Section 1403(c) of the New York City Charter and Section 24-105 of the New York City Administrative Code authorize the Commissioner of Environmental Protection to regulate and control the emission of harmful air pollutants into the open air. Section 24-146.1(d)(1) of the Administrative Code authorizes the Commissioner to make rules establishing criteria for certifying individuals to receive an asbestos handling certificate and for certifying programs as approved safety and health programs. The Commissioner may restrict the asbestos handling certificate as to certain functions and responsibilities. Section 24-163.1(d)(2) authorizes the Commissioner to make rules establishing criteria for certifying individuals as asbestos investigators. The amendments codify the existing practices of the Asbestos Control Program. The New York State-approved training courses for asbestos handler supervisors and asbestos investigators are administered only in English, so the DEP examination for these certificates is also given only in English. Asbestos handler supervisors need to speak and understand English to ensure that there is someone at the work site who can communicate with a DEP inspector. Asbestos investigators must speak English to perform their responsibilities, which includes communicating with DEP inspectors at office and field audits. The amendments to the Adjudications chapter provide that translation services will be made available for all hearings held under that chapter except for those related to the possible suspension or revocation of asbestos handler supervisor and asbestos investigator certificates. As holders of those certificates must pass a training course and a certification exam in English, it will not be necessary to provide translation services for those hearings. Subdivision (e) of Section 32-01 of Chapter 32 of Title 15 of the Rules of the City of New York has been repealed because Local Law 38 of 2015 includes the repeal of Administrative Code § 24-133 (from the Air Pollution Control Code).

Effective Date: 
Mon, 09/28/2015

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, July 20, 2015
Proposed Rules Content: 

Section 1403(c) of the New York City Charter and Section 24-105 of the City Administrative Code authorize the Commissioner of Environmental Protection to regulate and control the emission of harmful air pollutants into the open air.

 

Section 24-146.1(d)(1) of the Administrative Code authorizes the Commissioner to make rules establishing criteria for certifying individuals to receive an asbestos handling certificate and for certifying programs as approved safety and health programs. The commissioner may restrict the asbestos handling certificate as to certain functions and responsibilities. Section 24-163.1(d)(2) authorizes the Commissioner to make rules establishing criteria for certifying individuals as asbestos investigators.

 

The proposed changes would codify the existing practices of the Asbestos Control Program. The New York State-approved training courses for asbestos handler supervisors and asbestos investigators are administered only in English, so the DEP examination for these certificates is also given only in English. Asbestos handler supervisors need to speak and understand English to ensure that there is someone at the work site who can communicate with a DEP inspector. Asbestos investigators must speak English to perform their responsibilities, which includes communicating with DEP inspectors at office and field audits.

 

The proposed changes to the Adjudications chapter would provide that translation services will be made available for all hearings held under that chapter except for those related to the possible suspension or revocation of asbestos handler supervisor and asbestos investigator certificates. As holders of those certificates must pass a training course and a certification exam in English, it would not be necessary to provide translation services for those hearings.Subdivision (e) of Section 32-01 of Chapter 32 of Title 15 of the Rules of the City of New York would be repealed because Local Law 38 of 2015 includes the repeal of Administrative Code § 24-133 (from the Air Pollution Control Code).

Subject: 

DEP Rule to Establish standards and requirements concerning Asbestos Handler Supervisor Certificates

Location: 
DEP 8th Floor Conference Room
59-17 Junction Boulevard 8 Floor
Flushing, NY 11368
Contact: 

Russell Pecunies