(a) The purpose of this subchapter is to protect public health and safety and the environment by minimizing the emission of asbestos fibers into the air of the city when buildings or structures that contain asbestos-containing material are renovated, altered, repaired, or demolished.
(b) For purposes of this section, the following terms shall have the following meanings:
"Asbestos" means any hydrated mineral silicate separable into commercially usable fibers, including but not limited to chrysotile (serpentine), amosite (cumingtonite-grunerite), crocidolite (riebeckite), tremolite, anthrophyllite and actinolite.
"Asbestos investigator" means an individual certified by the commissioner as having satisfactorily demonstrated his or her ability to identify the presence and evaluate the condition of asbestos in a building or structure.
"Asbestos containing material" shall mean asbestos or any material containing more than one percent asbestos by weight.
"Asbestos handling certificate" means a certificate issued to a person who has satisfactorily completed an approved asbestos safety and health program.
"Asbestos project" means any form of work performed in a building or structure or in connection with the replacement or repair of equipment, pipes, or electrical equipment not located in a building or structure, which will disturb more than twenty-five linear feet or more than ten square feet of asbestos containing material or such smaller amounts as the commissioner may establish by rule.
"Asbestos project notification" means a form filed to notify the department that an asbestos project will be taking place.
"AHERA" means the asbestos hazard emergency response act of nineteen hundred eighty-six, as amended (15 U.S.C. § 2641, et seq.).
"Work place safety plan" means documents prepared by a registered design professional and submitted to the department in order to obtain an asbestos abatement permit.
(c) (1) It shall be unlawful for any individual to handle asbestos material in the course of performing work for compensation on an asbestos project unless such individual is a holder of a current, valid asbestos handling certificate.
(2) It shall be unlawful to employ or otherwise permit any individual to handle asbestos material on an asbestos project when such person is not a holder of a current, valid asbestos handling certificate.
(d) The commissioner shall promulgate rules establishing procedures for the safeguarding of the health and safety of the public, including procedures to be followed by persons who work at or in the vicinity of an asbestos project. The commissioner, in consultation with the fire commissioner and the commissioner of buildings, shall promulgate rules which give further guidance to contractors on how to maintain egress at asbestos projects, as such projects are defined in the rules of the department, in accordance with all applicable laws, codes, rules and regulations.
(e) (1) The commissioner shall promulgate rules establishing criteria for certifying individuals as eligible to receive an asbestos handling certificate. The commissioner may restrict the asbestos handling certificate as to certain supervisory and nonsupervisory functions and responsibilities.
(2) The commissioner shall promulgate rules establishing criteria for certifying individuals as asbestos investigators.
(3) Any certificate issued under this subdivision shall be valid for a period of two years unless sooner suspended or revoked and may be renewed for a period of two years upon submission of proof satisfactory to the commissioner that the individual continues to meet the criteria established pursuant to this subdivision.
(4) The commissioner may suspend or revoke any certificate issued under this subdivision where the holder has violated this section or any rules promulgated thereunder. Determinations made by the environmental control board as to notices of violation issued by the department shall be considered proof of violation for purposes of this section. The certificate holder shall be notified of the suspension or revocation by certified mail sent to the holder's address on file with the department, and shall be given an opportunity to be heard within fifteen calendar days. The hearing shall be conducted in accordance with the rules of the department. The holder's certificate shall be suspended from the date of the notice until the hearing is held and the commissioner makes a final determination.
(5) The commissioner shall charge a fee not to exceed two hundred dollars to process the application to issue or renew an asbestos handling certificate and a fee not to exceed five hundred dollars to process the application of an individual as an asbestos investigator.
(6) The commissioner may suspend the processing of applications for certification of individuals as asbestos handlers or investigators when the commissioner determines that regulations promulgated pursuant to article thirty of the labor law for the certification of such individuals are essentially equivalent to rules promulgated by the commissioner, and that such certifications are in fact being issued.
(7) No certificate issued under this subdivision shall be renewed if the holder has failed to pay in full any civil penalty imposed by the board for violations of this section or any rules promulgated thereunder.
(f) (1) The commissioner shall prescribe forms for and the content of asbestos project notifications to be submitted to the department. Such notifications shall require the furnishing of information deemed relevant by the commissioner for evaluating the scope, complexity and duration of the project and the compliance with the provisions of this section, any rules promulgated thereunder, and any applicable federal, state, or local laws, rules or regulations.
(2) If the work to be performed will cause the generation of waste which is asbestos containing material, the asbestos project notification shall include: (i) the name of the person who will remove the waste and the number of the industrial waste transporter permit issued to such person pursuant to article twenty-seven of the environmental conservation law; and (ii) the site at which such waste will be disposed.
(g) The commissioner may promulgate any rules he or she deems necessary to protect public health and safety and the environment in connection with work not constituting an asbestos project in which asbestos is or is likely to be disturbed.
(h) An order to stop work may be issued by the commissioner, or his or her authorized representative, at any time when it is found that work is being performed in violation of the provisions of this section, or any rules or regulations promulgated thereunder and which poses a threat to human safety. Upon issuance of a stop work order by the commissioner, all work shall immediately stop unless otherwise specified. Such order may be given orally or in writing to the owner, lessee or occupant of the property involved, or to the agent of any of them, or to the person or persons performing the work and may require all persons in or about the building or premises to vacate the same forthwith, and also require such work to be done as, in the opinion of the commissioner, may be necessary to remove the danger therefrom. A verbal stop work order shall be followed promptly by a written order and shall include the reason for the issuance of the stop work order. A stop work order issued pursuant to this subdivision may be appealed in accordance with the rules of the department, and the commissioner shall provide notice and an opportunity to be heard within fourteen days of the filing of such appeal. A stop work order shall be lifted (i) if, upon appeal, the commissioner determines that the issuance of such order was not proper, or (ii) when it has been determined that the condition that gave rise to its issuance has been corrected. Notwithstanding any inconsistent provision of this subdivision, if, upon inspection, the condition is determined by the inspector to be immediately curable, work shall be stopped only until the condition is corrected.
(i) The commissioner may grant individual variances for asbestos projects at specific sites, from particular requirements related to asbestos prescribed by this code and rules or orders of the commissioner promulgated thereunder, whenever it is found, upon presentation of adequate proof, that compliance with such requirements would impose unreasonable hardship. In granting a variance the commissioner may impose such conditions as the policies of this code may require.
(j) (1) In addition to submission of the asbestos project notification, the commissioner may by rule require additional notification to the department prior to the start of the asbestos project. No person shall cause or permit any abatement of asbestos containing material without compliance with any such additional notification requirements.
(2) The commissioner may prescribe by rule the circumstances under which an asbestos project notification may be amended, and the circumstances under which a new project notification shall be submitted to the department. The commissioner may consider the extent of the proposed amendment, including but not limited to change in floor size, quantity of asbestos containing material involved, project phasing, project duration, and replacement of abatement contractor.
(k) The commissioner shall adopt rules specifying the standards for the construction of temporary structures for asbestos abatement activities. In addition to any other requirements, such rules shall provide that materials used in the construction of such structures be non-combustible or flame resistant in compliance with reference standard NFPA 255-06 or NFPA 701-99, as such standards may be modified by local law or by the department of buildings pursuant to applicable rules.
(l) Sharing the results of inspections. The commissioner, in coordination with the commissioner of buildings and the fire commissioner, shall establish a procedure to share information regarding violations issued pursuant to this section, in accordance with the requirements of section 28-103.7.1 of the code.
(m) (1) No asbestos abatement activities shall be performed within a building concurrently with demolition work for the full demolition of such building or concurrently with the removal of one or more stories of such building, except as provided in this subdivision and the rules of the department.
(2) Prior to the issuance of a full demolition permit by the department of buildings, the owner of the building to be demolished shall submit to the department of buildings (i) certification, in a form to be provided by the rules of the department of environmental protection, that the building is free of asbestos containing material or, (ii) documentation that the commissioner of environmental protection has issued a variance from this requirement pursuant to subdivision (i) of this section and the rules of the department, subject to the additional conditions set forth in paragraph four of this subdivision.
(3) Prior to the issuance of an alteration permit by the department of buildings to remove one or more stories of a building, the owner of the building shall submit certification to the department of buildings in a form to be provided by the rules of the department of environmental protection (i) that the stories to be removed are free of asbestos containing material and that no abatement activities will be performed anywhere in the building concurrently with the removal work authorized by such permit or (ii) that the commissioner of environmental protection has issued a variance from these requirements pursuant to subdivision (i) of this section and the rules of the department, subject to the additional conditions set forth in paragraph four of this subdivision.
(4) Prior to granting any variance pursuant to subdivision (i) of this section relating to the full demolition of a building or the removal of one or more stories of a building that would permit the performance of abatement activities concurrent with such demolition or removal work within the same building, the commissioner of environmental protection shall notify and consult with the commissioner of buildings and the fire commissioner regarding the appropriate safeguards for such work. Notwithstanding any inconsistent provision of section 24-138 of this code, where a variance is issued to perform abatement activities and demolition or removal work concurrently within the same building, the asbestos abatement activities may not be performed without an asbestos permit issued pursuant to section 24-138 of this code, regardless of whether such a permit would otherwise be required to perform such activity.
(5) The commissioner shall post on-line within seven days notice of any variance granted under this subdivision with a statement of the reasons leading to his or her decision.
(6) This subdivision shall not apply to full demolition or the removal of one or more stories performed as emergency work pursuant to article 215 of chapter 2 of title 28 of the administrative code where the emergency warrants immediate commencement of the work or full demolition with asbestos in place authorized in accordance with 12 NYCRR 56-11.5.
(n) The owner of a building or structure where asbestos abatement activity occurs or where asbestos-containing material is disturbed shall be responsible for the performance of the work by the agent, contractor, employee, or other representative of such owner.
(Am. L.L. 2015/038, 5/6/2015, eff. 5/6/2016)
Editor's note: this section formerly was codified as § 24-146.1 of subchapter 6 of this chapter.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/037 and L.L. 2009/039.