How to Comply with NYC Asbestos-Handling Requirements
Asbestos exposure has long been linked to an increase risk of cancer, particularly for workers in construction jobs involving the use of asbestos materials. Asbestos was used as a fire-retardant insulation in the construction of buildings long before it was known to pose severe environmental and health hazards. As a result, buildings built before the mid-1970s often contain asbestos insulation around heating systems, plumbing lines, and in ceilings and other areas. And until 1981, asbestos was also widely used in many other building materials, such as vinyl flooring and tiles.
Under New York City regulations, every repair, maintenance, renovation, or remodeling project that requires a Department of Buildings (DOB) work permit also requires an asbestos survey. If you are considering these types of construction projects, you must hire certified asbestos investigators to check for the presence of asbestos. It does not matter how small your property is. There must be verification that no asbestos is present in the materials that will be demolished before the construction work can begin.
Owners need to have a basic understanding of New York City's asbestos regulations in order to avoid getting hit with violations, fines, and stop-work orders. With the help of Ganesh Rajagopalan of Big Apple Occupational Safety Corporation, we will distinguish the two types of asbestos and provide an overview on how to comply with the city's asbestos regulations.
Types of Asbestos
Asbestos comes in two forms: friable and non-friable. It is particularly dangerous in its “friable” state, when it is easily crumbled or flaked by hand. Friable asbestos fibers can become airborne when crushed and have the potential to become a significant health problem to tenants or people working in the area. The dust created by typical construction work generates much asbestos dust, creating a potential risk of asbestos inhalation. Non-friable asbestos contained in material floor tiling and most roofing materials is thicker and tougher, and therefore not as easily released into the air as friable asbestos material.
The distinction is important in understanding when you will need to hire an asbestos investigator. In one case last year, the New York City Department of Environmental Protection (DEP) issued a violation notice to an owner and its contractor. The contractor was removing asbestos-containing roof shingles and flashing. The contractor said that the roofing material wasn't “friable,” so it wasn't subject to the city's asbestos project regulations. Under the regulations, “friable” asbestos material was asbestos that could be crumbled or reduced to a powder when handled. The administrative law judge initially ruled for the owner and the contractor, and dismissed the violations. However, DEP appealed, claiming that loose pieces of roofing materials removed by the contractor were friable. DEP's inspector had testified that he saw dusty loose pieces of roofing material scattered about the roof and stairways. The Environmental Control Board ruled for DEP, and the owner and the contractor were fined $15,600.
Some types of renovation, alteration, and demolition work do not usually disturb asbestos, so they are exempt from the asbestos inspection requirement. New rules governing the abatement of asbestos have been issued; they are to take effect on November 13.
The prior rules provided a full list of exempt projects. Some examples of these projects included awning, sign, and fire escape erections; exterior concrete work such as sidewalks; replacing exterior water tanks; replacing roof-top air conditioning units not involving the modification or removal of ductwork or retaining walls; sealing of dumbwaiters; underpinning of buildings; and zoning lot reapportionment. With the new rules, the list has been substituted with general guidelines.
According to the new rules, if the permit sought does not involve the performance of any physical work, such as permits for zoning lot subdivisions, zoning lot reapportionment, or changes in the certificate of occupancy; or no existing building materials are to be disturbed by the proposed work, then you are exempt from the asbestos inspection requirement.
In these instances, where the work to be performed requires a permit to be issued by the DOB, you can submit an asbestos exemption certification (ASB4 Form) that certifies that your project falls within these guidelines.
Asbestos Investigator Duties
If the work is not exempt, you will need to hire an asbestos investigator before you can get a DOB permit for the renovation, alteration, or demolition work. For New York City apartment buildings, an asbestos investigator certified by both the city and the state must conduct the asbestos survey.
Working from demolition plans provided by the project's designer or architect, the investigator takes samples of each type of material from the areas that will be disturbed or demolished during the project. The number of samples taken depends on the type of material and the amount of surface area being demolished. The samples are then sent to a certified laboratory for analysis. The lab determines the amount of both types of asbestos in the materials and sends the results to the investigator.
Little or no friable asbestos found. If no friable asbestos-containing materials (ACM) are present, the investigator completes an ACP-5 (Asbestos Control Program) form. The ACP-5 states that there is no friable asbestos-containing material or that the friable ACM area is less than 10 square feet or less than 25 linear feet. The form also notes if there is non-friable ACM present.
The ACP-5 is then filed with the DOB and DEP, verifying that the work is a not a friable asbestos project. It still, however, may be a “non-friable asbestos project,” meaning that, although no friable ACM was found, there is non-friable ACM that will be disturbed in the course of demolition.
Friable asbestos exists. If the investigator finds that the proposed work will disturb more than 10 square feet or 25 linear feet of friable asbestos material, the work is then classified as an “asbestos project.” This means that an owner must complete an “Asbestos Inspection Report” (Form ACP-7) and file it with your application for a permit from the DOB. Unlike the ACP-5, the ACP-7 is filed only with DEP, not with the DOB, and anyone can file it, not just the inspector. Typically, the asbestos abatement contractor does so. After filing, an asbestos abatement project must be conducted before any construction or renovation work can begin.
It is important to note that only a contractor licensed to remove asbestos can perform the work—not the investigator or the contractor hired for the repair project. Owners are required at this point to follow strict DEP asbestos control regulations, which involve tenant notification form requirements, worker certification and protections requirements, strict asbestos handling and disposal methods, and air sampling, monitoring, and analysis. Owners should be careful to hire a licensed and certified abatement contractor to supervise and perform the abatement work.
The contractor should file the necessary agency notification forms, hire certified workers who are equipped with special clothing and respirators, and supervise the manner in which the asbestos is removed. They'll also be sure you comply with any required air monitoring testing by hiring a qualified subcontractor. After the asbestos-containing material is removed, the investigator returns to the site to verify that the ACM has been removed, and then files the ACP-5.