Int 0183-1998

Be it enacted by the Council as follows: Section 1. Declaration of legislative findings and intent. In 1985, the council enacted local law number 76 for such year, having made the legislative finding that exposure to airborne asbestos fibers and particles has been linked by reputable medical and scientific authorities to a significant increase in asbestos-related diseases. Because the predominant cause of asbestos becoming airborne was the performance of building renovation and demolition without adequate adherence to procedures for safeguarding the public health, local law 76 was enacted with the purpose of establishing procedures governing building renovation, alteration and demolition work involving the disturbance of asbestos. Local law number 80 for the year 1986 subsequently amended section 9 of local law 76, to provide that no later than December 1, 1988, the commissioner of environmental protection shall have submitted to the council a report identifying the potential risks, if any, which may be posed to the public from existing in-place asbestos-containing materials in New York city buildings. Therefore, the commissioner of environmental protection having submitted to the council a report documenting the findings of a recent scientific study which concluded that there are substantial amounts of asbestos in many buildings of all types in the city of New York, including recommendations for actions deemed appropriate to ameliorate the significant public health risks due to improperly maintained or deteriorated in-place asbestos-containing materials, it is the purpose of this local law to: (1) provide for the establishment of rules which require inspection and sampling of buildings to determine the presence, amounts and condition of in-place asbestos-containing materials; (2) require the development and implementation of an operations and maintenance plan for each building found to contain in-place asbestos-containing materials; (3) require a comprehensive management plan for such buildings, and (4) require the implementation of appropriate response actions with respect to in-place asbestos-containing materials in New York city buildings, while avoiding the costs and potential health risks associated with unnecessary removal. �2. Subchapter 6 of chapter 1 of title 24 of the administrative code of the city of New York is amended by adding a new section 24-146.3 to read as follows: 24-143.2 In-place asbestos-containing materials. (a) For purposes of this section, the following terms shall have the following meanings: (1) "AHERA school building" shall mean any school building as defined by subdivision thirteen of section two hundred two of the asbestos hazard emergency response act of nineteen hundred eighty-six, as amended (15 U.S.C. section 2641, et seq.). (2) "Building classification" shall mean the classification of a building identified in the annual record of assessed valuation as published by the New York city department of finance pursuant to section fifteen hundred ten of the New York city charter. (3) "Inaccessible in-place asbestos-containing material" shall mean in-place asbestos-containing material, as defined by paragraph four of this subdivision, which is fully enclosed in a column or between the inner and outer walls of a building, and for which there is no reasonable possibility that asbestos fibers may become airborne and transported outside such enclosure unless the integrity of the enclosure is breached. (4) "In-place asbestos-containing material" shall mean surfacing material, as defined by paragraph eight of this subdivision, and thermal system insulation, as defined by paragraph nine of this subdivision, which contains more than one percent asbestos by weight. It shall include such material or insulation no longer attached to or part of the surface to which it was applied, but remaining at a building subject to inspection for in-place asbestos-containing material. (5) "One-family dwelling" shall mean any building with the building classification A, R1 or S1, and shall include any residential building containing one dwelling unit; any detached, attached or semi-detached building; any townhouse and any mobile home. (6) "Owner" shall mean, with respect to a building, a person or entity having legal title to such building, or in the case of a non-residential building or non-residential portion of a building, the party having control. The commissioner shall promulgate rules containing standards for determining whether control exists, which may include, but shall not be limited to, having sole responsibility for the operation, maintenance and repair of the building, as prescribed in a legally binding lease between the owner and another party. Nothing herein shall preclude the parties to a non-residential lease from allocating by agreement the cost of compliance with the provisions of this section, but such allocation shall not alter the responsibility for compliance with such provisions. (7) "Response actions" shall mean the methods intended to abate the condition of in-place asbestos-containing materials so as to protect human health and the environment from asbestos-containing materials, including but not limited to enclosure, encapsulation, removal, and repair, or an action to prevent in-place asbestos-containing materials from being disturbed or deteriorated. (8) "Surfacing material" shall mean any material sprayed, troweled, or otherwise applied onto surfaces such as structural members, ceilings and walls for such purposes as fireproofing, acoustical, or decorative, and shall include ceiling tile. (9) "Thermal system insulation" shall mean insulation applied to steam, hot or cold water systems and heating, ventilation or air conditioning systems for such purposes as preventing heat transfer and water condensation. The term "thermal system insulation" shall include, but not be limited to, insulation on pipes, such as pipe fittings, elbows, flanges or valves; and insulation applied to boilers, water tanks, compressors, air-handling equipment, radiators and ducts. (10) "Two-family dwelling" shall mean any building with the building classification B or S2, and shall include any residential building containing two dwelling units. (b) Program requirements. The commissioner shall promulgate rules as described in this subdivision, which shall apply to all buildings in the city of New York except: AHERA school buildings; all buildings constructed after enactment of this section; all vacant buildings, until prior to the time that such buildings are occupied, consistent with the schedule set forth in subdivision (h) of this section; and inaccessible in-place asbestos-containing material for which the commissioner shall prescribe alternative procedures and requirements. (1) Inspection and sampling of buildings. The commissioner shall promulgate rules prescribing procedures for conducting inspections for, and taking samples of, in-place asbestos-containing materials in all buildings in the city of New York subject to the provisions of this subdivision. Such inspection and sampling shall be the responsibility of the building owner and shall be conducted by individuals certified in accordance with the provisions of subdivision (c) of this section. A report of such inspection and sampling shall be incorporated into the comprehensive management plan as required by paragraph five of this subdivision. The commissioner shall prescribe the form for and the content of an inspection and sampling completion notice which shall require the furnishing of information deemed relevant to the commissioner for evaluating the compliance with the provisions of this section and rules promulgated thereunder. Such inspection and sampling completion notice shall be signed by an individual certified in accordance with the provisions of subdivision (c) of this section and shall be filed with the department. No inspection and sampling completion notice shall be accepted for filing unless accompanied by the payment of a fee established by the commissioner not to exceed two hundred fifty dollars. The commissioner may by rule prescribe circumstances and procedures under which the results of an inspection and sampling conducted for purposes other than compliance with this section may be used to satisfy the inspection and sampling requirements of this paragraph. (2) Circumstances requiring response actions. The commissioner shall promulgate rules based upon the best available health, safety and risk information and analyses prescribing the circumstances necessitating response actions with respect to in-place asbestos-containing materials in buildings identified upon inspection and sampling conducted pursuant to this section, and shall prescribe the appropriate response to be taken in such situations using any remediation method permitted by this law or rules promulgated thereunder which provides an adequate level of protection for human health and the environment. A building owner shall ensure that a response action plans for the abatement of such in-place asbestos-containing condition shall be developed by an individual certified in accordance with the provisions of subdivision (c) of this section. (3) Implementation of response action plan. The commissioner shall promulgate rules establishing implementation procedures and schedules for such procedures for a response action plan to contain in-place asbestos-containing materials, including rules prescribing the determination of when a response action shall be deemed completed. The implementation of a response action plan shall be the responsibility of the building owner and shall be conducted by an individual certified in accordance with the provisions of subdivision (c) of this section. The implementation of any response action plan shall be in accordance with the requirements of section 24-146.1 of this subchapter and the provisions pertaining to asbestos abatement which are contained in titles twenty-six and twenty-seven of the administrative code of the city of New York, the rules promulgated thereunder, and any applicable federal and state laws or regulations. Notice of a building's response action plan completion, in a form prescribed in rules promulgated by the department, shall be signed by an individual certified in accordance with the provisions of subdivision (c) of this section to conduct the response action plan implementation, and shall be filed with the department. No such response action plan completion form shall be accepted for filing unless accompanied by the payment of a fee established by the commissioner not to exceed two hundred fifty dollars. (4) Operations and maintenance plan. The commissioner shall promulgate rules requiring the development of an operations and maintenance plan for any building which upon inspection and sampling has been found to require a response action. Such operations and maintenance plan shall be incorporated into the comprehensive management plan as required by paragraph five of this subdivision and shall include such practices as dictated by the best available health, safety and risk information, including but not limited to, as warranted, a building worker training and protection program approved by the department; special work practices related to in-place asbestos-containing materials; a schedule for periodic building reinspection, as required by paragraph six of this subdivision; and recordkeeping procedures which shall, at a minimum, include a log of all maintenance work, and provisions for the on-site identification marking of asbestos-containing material in the building. Any building owner whose building contains in-place asbestos-containing materials requiring a response action shall ensure that the operations and maintenance plan for his or her building shall be implemented in accordance with rules promulgated by the commissioner. (5) Comprehensive management plan. The commissioner shall promulgate rules requiring the development of a comprehensive management plan for any building which upon inspection and sampling has been found to contain in-place asbestos-containing materials requiring a response action. Such comprehensive management plan shall be the responsibility of the building owner and shall include, but not be limited to, as warranted, proof of building worker training, an inspection and sampling report, an inspection and sampling completion notice, any subsequent reinspection completion report, any response action plan, any response action plan completion notice, and the operations and maintenance plan required by paragraph four of this subdivision. Such comprehensive management plan shall be prepared by an individual certified in accordance with the provisions of subdivision (c) of this section, and notice of completion of such comprehensive management plan shall be filed with the department. No comprehensive management plan completion notice shall be accepted for filing unless accompanied by the payment of a fee established by the commissioner not to exceed two hundred fifty dollars. The building owner shall provide written notification to each tenant, and other-wise ensure that all individuals with a legitimate purpose for being in the building are notified, that documents prepared in connection with the completion of such comprehensive management plan are available for inspection during normal business hours. (6) Reinspection of buildings. In the event that an inspection and sampling of a building conducted pursuant to paragraph one of this subdivision reveals that in-place asbestos-containing materials are present, the owner of such building shall cause to be conducted a reinspection of such building, in accordance with the provisions of paragraph one of this subdivision, periodically as required by rules promulgated by the commissioner. Such reinspection shall also be required if a significant event, as defined in rules promulgated by the commissioner, which may result in a change in the condition of in-place asbestos-containing material, including but not limited to fire, flood or explosion, has occurred since the initial inspection and sampling. Upon reinspection a notice in a form prescribed by the commissioner shall be signed by an individual certified in accordance with the provisions of subdivision (c) of this section, and shall be filed with the department. If upon such reinspection it is determined that circumstances exist which necessitate a response action with respect to in-place asbestos-containing materials, the owner of such building shall cause to be developed a response action plan in accordance with the provisions of paragraph two of this subdivision, and shall cause to be implemented such response action plan in accordance with the provisions of paragraph three of this subdivision. Such response action plan, the implementation thereof determined to be required upon reinspection of such building, and a reinspection report, shall be incorporated into the comprehensive management plan required by paragraph five of this subdivision. If upon reinspection it is determined that the building no longer contains in-place asbestos-containing materials requiring a response action, a notice in a form prescribed by the commissioner shall so state, shall be signed by an individual certified in accordance with the provisions of subdivision (c) of this section, and shall be filed with the department. No reinspection completion notice required by this paragraph shall be accepted for filing unless accompanied by the payment of a fee established by the commissioner not to exceed two hundred fifty dollars. (7) For purposes of compliance with these program requirements or with other provisions of this section, any tenant shall permit access to the building owner upon prior notice. (c) Certification. (1) a. The commissioner shall promulgate rules establishing criteria for certifying individuals to conduct inspections and sampling for in-place asbestos-containing materials in accordance with the provisions of subdivision (b) of this section and the provisions of paragraph two of subdivision (d) of section 24-146.1 of this subchapter. b. The commissioner shall promulgate rules establishing criteria for certifying individuals to conduct response actions in accordance with the provisions of paragraph three of subdivision (b) of this section and the provisions of paragraph one of subdivision (d) of section 24-146.1 of this subchapter. c. The commissioner shall promulgate rules establishing criteria for certifying individuals to develop response action plans, operations and maintenance plans, and comprehensive management plans with respect to the abatement of the condition of in-place asbestos-containing materials, in accordance with the provisions of paragraphs two, four and five of subdivision (b) of this section. d. The commissioner shall promulgate rules establishing criteria for certifying training programs in connection with the issuance of certificates to perform the functions set forth in subparagraphs a, b and c of this paragraph. (2) The commissioner may restrict the certificates issued pursuant to subparagraphs a, b, c and d of paragraph one of this subdivision as to certain supervisory and non-supervisory functions and responsibilities. (3) Any certificate under this subdivision shall be valid for a period of two years unless sooner suspended or revoked and may be renewed upon submission of proof satisfactory to the commissioner that the holder continues to meet the criteria established pursuant to this subdivision. (4) The commissioner, after providing notice and opportunity to be heard, may suspend or revoke any certificate issued pursuant to this subdivision where it is found that the holder has failed to comply with this section or any rules promulgated thereunder. (5) The commissioner shall charge a fee not to exceed one hundred dollars to process the application for certification or recertification of an individual pursuant to subparagraphs a, b and c of paragraph one of this subdivision. The commissioner shall charge a fee not to exceed fifteen hundred dollars to process the application for certification or recertification of training programs established pursuant to subparagraph d of paragraph one of this subdivision. (6) The commissioner shall cause to be undertaken an ongoing program to compile and analyze data, and where appropriate, sponsor research into the health, safety and welfare risks associated with in-place asbestos-containing materials, including different levels of exposure and various circumstances under which individuals might come into contact with such materials. (d) Variances. The commissioner may grant variances from particular requirements of this section whenever it is found, upon presentation of adequate proof, that compliance with such requirements would impose unreasonable hardship and that the individual is taking all reasonable steps to protect health and safety, or that an individual can fulfill the requirements of this section in an alternative manner which is deemed to be consistent with the intent of this section. In granting a variance the commissioner may impose such conditions as the policies of titles twenty-four, twenty-six and twenty-seven of the administrative code of the city of New York may require, and shall publish in the City Record no later than seven days after the granting of such variance a statement of the reasons leading to his or her decision. The commissioner may charge a fee not to exceed eighteen hundred dollars to process an application for a variance. (e) Entry, inspection and sampling by the department. (1) The department, upon providing prior notice, shall have the authority to inspect and conduct sampling in any building subject to the requirements of this section, during normal business hours, and in connection with such inspection and sampling, review the comprehensive management plan required by paragraph five of subdivision (b) of this section. In addition, whenever there is a reason to believe that any such building is in violation of the requirements of this section, the department shall be authorized to inspect and sample the building or the comprehensive management plan without prior notice. Any building owner or his or her representative who refuses to allow an authorized employee or representative of the department to conduct an inspection and sampling of the building after appropriate credentials are presented shall be in violation of this section and shall be subject to the penalties provided in subdivision (f) of this section. (2) Whenever the commissioner determines that there exists an immediate threat to public health or safety from any in-place asbestos-containing materials, he or she shall order that a response action be immediately conducted by the building owner. If such response action is not undertaken within a period of time prescribed in rules promulgated by the commissioner, the commissioner shall cause such response action to be undertaken by the department. Whenever the department has conducted an emergency response action under such circumstances, the costs attributable to such response action shall be recoverable by the city in accordance with the provisions set forth in subchapter two of chapter six of this title. (f) Violations. (1) Any person who knowingly or recklessly makes any false statement, representation or certification on any document filed with the department pursuant to this section shall, upon conviction, be subject to a fine of not more than one thousand dollars, or imprisonment of up to one year, or both. (2) Any person who causes or permits a violation of any requirement of this section, or a violation of any provision of any rule promulgated pursuant to this section, shall be liable, for each such violation, for a civil penalty as set forth in paragraph five of subdivision (b) of section 24-178 of this chapter, for each day such violation continues. Such penalties may be recovered in a civil action brought in the name of the commissioner or in a proceeding before the environmental control board. In determining the civil penalty, the hearing officer or judge shall consider any evidence presented by the defendant showing a good faith effort to comply with relevant requirements of this section, the nature and seriousness of the defendant's violation of the section, previous violations, if any, of this subchapter and any other evidence found to be relevant. Any person who causes or permits to occur three violations of the same requirement of this section within a ten-year period shall be subject to a fine not to exceed one thousand dollars or imprisonment of up to one year, or both. (3) Any person who without justification refuses to allow an inspection and sampling of a building pursuant to subdivision (e) of this section shall be subject to a civil penalty returnable before the environmental control board or in civil court in the name of the commissioner, in an amount not to exceed ten thousand dollars. (g) One-family and two-family dwellings. (1) The commissioner shall undertake an educational and outreach program to provide guidance to owners of one-family and two-family dwellings on how to address the condition of in-place asbestos-containing materials. (2) The commissioner shall promulgate rules establishing requirements for inspection and sampling, with respect to in-place asbestos-containing materials, of one-family and two-family dwellings. Such rules shall require that such an inspection and sampling shall be performed before the transfer of title to any such dwelling and disclosed to the transferee at the time of transfer of title, except where an inspection and sampling performed before a prior transfer of such property pursuant to this subdivision determined that no in-place asbestos-containing materials were present in such dwelling, and documentation of such inspection and sampling performed in connection with such prior transfer is provided to the transferee. Documentation of the results of such inspection and sampling shall be provided to the transferee in a form prescribed in rules promulgated by the commissioner. Such inspection and sampling shall be conducted in accordance with the requirements of paragraph one of subdivision (b) of this section by an individual certified in accordance with the provisions of subdivision (c) of this section. The commissioner shall prescribe the form for and the content of an inspection and sampling completion notice, which shall be signed by an individual certified in accordance with the provisions of subdivision (c) of this section and filed with the department. (h) Timetable for compliance. The commissioner shall promulgate rules establishing schedules for the implementation of the requirements of subdivision (b) of this section for the following groups of buildings such that: (1) Within six years and six months after the date of enactment of this section owners of buildings with the following building classifications shall have complied with the requirements of subdivision (b) of this section: a. tall Office Buildings (building classification O having eight or more stories above ground); b. Hospitals and Health (building classification I); c. Asylums and Homes (building classification N); d. post-secondary school Educational Structures (building classifications W2, W3, W4, W5, W6, W7, W8, W9 and X7); e. Elevator Apartment Buildings (building classifications D, R4, R5 and R9); f. Hotels (building classification H); g. Transportation Facilities (building classification T); h. Utility Bureau Properties (building classification U); i. Selected Government Installations (building classification Y); j. Miscellaneous (building classifications Z1, Z2, Z3, Z4, Z5, Z9); k. Fully Exempt Properties (building classifications X1, X2, X3, X4, X9 and X0). (2) Within nine years and six months after the date of enactment of this section owners of buildings with the following building classifications shall have complied with the requirements of subdivision (b) of this section: a. short Office Buildings (building classification O having seven or fewer stories above ground); b. Theatres (building classification J); c. Places of Public Assembly (Indoor) and Cultural (building classification P); d. Factory and Industrial Buildings (building classification F); e. Loft Buildings (building classification L); f. Warehouses (building classification E). (3) Within twelve years and six months after the date of enactment of this section owners of buildings with the following building classifications shall have complied with the requirements of subdivision (b) of this section: a. Churches, Synagogues, etc. (building classifications M, X5 and X6); b. Outdoor Recreation Facilities (building classification Q); c. Walk-up Apartments (building classifications C, R2, S3, S4, S5 and X8); d. Store Buildings (building classifications K and Z8); e. Garages and Gasoline Stations (building classification G). (4) Notwithstanding the schedules for implementation set forth in paragraphs one through three of this subdivision, any building acquired by the city in rem or other foreclosure taking shall be exempt from the requirements of subdivision (b) of this section up to and including the second anniversary of the vesting of title in the city. Thereafter, the city shall, subject to any regulations which may be promulgated by the commissioner, have a period of either three years or the deadline specified in paragraph one, two or three of this subdivision as appropriate, whichever date occurs later, to bring the building into compliance with the requirements of subdivision (b) of this section. (5) The commissioner may promulgate rules designating spaces used for a particular function within any building which shall be in full compliance with the requirements of subdivision (b) of this section at a time earlier than the date otherwise established in rules promulgated pursuant to this subdivision for the relevant building classification. (i) Within six months of the effective date of this section, the commissioner shall establish an asbestos advisory board ("board") consisting of no fewer than fifteen members representing community boards, city agencies, property owners, tenant organizations, labor organizations, health organizations, environmental organizations, business organizations and members of the general public. Members shall serve for a term of three years without compensation and shall designate one member to serve as chairperson and one member to serve as vice-chairperson. The board shall review the effectiveness of this section and any rules or regulations promulgated pursuant thereto and make recommendations concerning improvements or changes. Any reports or recommendations that the board prepares shall be submitted to the mayor and the council. (j) Prior to conducting an inspection for or sampling of in-place asbestos-containing material, or prior to conducting a response action, any individual or firm that is employed to conduct such work shall disclose to the building owner any financial or other interest such individual or firm has in any other individual or firm that conducts inspections for or samplings of, or response actions to, in-place asbestos-containing material. For purposes of this subdivision, the term "firm" shall mean a sole proprietorship, joint venture, partnership, corporation or any other form of enterprise, but shall not include a public benefit corporation or local development corporation. (k) Within twenty-four months of the effective date of this section, the mayor shall report to the council on the results of a study that shall have been conducted to evaluate the availability of financial assistance to owners of buildings with respect to compliance with the provisions of this section. (l) The commissioner may promulgate any additional rules he or she deems necessary to effectuate the purposes of this section. �3. The table of civil penalties contained in subparagraph (i) of paragraph 5 of subdivision (b) of section 24-178 of subchapter 9 of such chapter, as amended by local law number 76 for the year 1985, is amended by inserting between the penalty prescribed for a violation of section 24-146.1(b)(1) and the penalty prescribed for a violation of section 24-147 the following penalties: Civil Penalties Maximum Minimum 24-146.2 10,000.00 1,000.00 �4. Article 13 of subchapter 19 of chapter 1 of title 27 of such code is amended by adding a new section 27-1070 to read as follows: 27-1070 Use or application of asbestos prohibited. No in-place asbestos-containing material, as defined by paragraph four of subdivision (a) of section 24-146.2 of the administrative code, shall be used or applied in the construction or renovation of any building in the city. �5. Severability. The provisions of this local law shall be severable and, if any clause, sentence, paragraph, subdivision, or other part of this local law shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this local law, but shall be confined in its operation to the clause, sentence, paragraph, subdivision or other part of this local law directly involved in and adjudged invalid in the controversy in which said judgment has been rendered. �6. This local law shall take effect 30 days after its enactment into law except that subdivision (b) and paragraph 1 of subdivision (g) of section 24-146.2 of the administrative code of the city of New York as added by section 2 of this local law shall take effect 18 months after its enactment; paragraph 2 of subdivision (g) of such section shall take effect 4 years and 6 months after its enactment, and subdivision (c) of such section shall take effect 1 year after its enactment, but all actions necessary to prepare for the implementation of this local law may be taken prior to its effective date. Referred to the Committee on Environmental Protection. Int. No. 165