Asbestos Removal Requirements in New York Under Code Rule 56

In an effort to better conform to federal asbestos regulations and align asbestos requirements in New York with those of OSHA and the EPA, in early 2006 the New York State Department of Labor adopted the amended Industrial Code Rule 56, relating to hazards to the public safety and health during the removal, encapsulation, enclosure, repair or disturbance of friable and non-friable asbestos, or the handling of asbestos material that may result in the release of asbestos fiber. See Industrial Code Rule 56-1.1.

Pursuant to the amended Industrial Code Rule 56, a survey or inspection is required prior to any building or structure demolition, remodeling, renovation, or repair if construction of the building commenced prior to 1974. An owner or an owner’s agent is required to have an asbestos survey completed by a licensed asbestos contractor using certified inspectors prior to the commencement of work. See generally Rule 56-5.1. Furthermore, pursuant to OSHA guidelines, all materials are presumed to contain asbestos if the building was constructed prior to 1980, unless tested. These requirements apply unless the structure is agricultural, structurally unsound, condemned, or is a one or two-family dwelling and the owner does not control the work. See Rule 56-5.1(b). Only certified personnel working for an asbestos removal contractor may inspect the portion of a structure impacted by a project, and testing of new materials or certification from suppliers of new materials that they are asbestos free is required. See Rule 56-5.1(a).

Asbestos abatement contractors are required to inform all employers and non-asbestos contractors at a worksite about known and assumed potential asbestos-containing material at the site. See Rule 56-5.1(h)(1). Occupants of the areas adjacent to the project must also be informed each time there is an occurrence or elevated air sample results. See Rule 56-1.4(b). Furthermore, non-asbestos contractors are required to inform the owner of any discovery of asbestos in the course of performing their work. Rule 56-1.4(c). Thereafter, all activities shall cease in the area where the suspected asbestos-containing material was discovered and the Asbestos Control Bureau shall be notified with written notice. See Rule 56-5.1(j).

Under Code Rule 56, the responsibility for cleanup is on the owner for all incidental disturbances or disturbances on part of a controlled asbestos project. See Rule 56-1.5. The owner is required to contract with a licensed asbestos contractor for the immediate isolation and removal of discovered asbestos-containing materials, and to vacate effected areas until cleanup can be completed. See Id. The owner must also contract for air monitoring, which must be independent from the contractor conducting the asbestos removal. See Rules 56-4.3 and 56-4.4. Project air sampling requirements necessitate that technicians be on site during sample collection events and clearance sampling is required for incidental disturbance and post-work phases. See generally Rule 56-4, General Project Air Sampling and Laboratory Analysis Requirements.

The amended Rule 56 details changes to the engineering controls used to maintain negative air pressure equipment, which shall run continuously, twenty-four (24) hours per day, through the cleanup operations and until satisfactory clearance air sampling results are obtained. See Rule 56-7.8(a). Negative air ventilation units are to be installed and operational after critical barriers and isolation barriers are installed. See Rule 56-7.8(2). The exhaust for ventilations units must be vented to the outside of the building, to a controlled area away from public access. See Rule 56-7.8(11). All waste is to be removed for the site within ten (10) calendar days and the completion of the final clearance, and compliance must be documented with the Environmental Protection Agency National Emission Standards for Hazardous Air Pollutants. See Rule 56-10.4. A majority of these requirements fall upon the licensed asbestos abatement contractor. However, owners should make themselves familiar with said requirements.

The amended Rule 56 expands the recordkeeping requirements for an asbestos abatement project, requiring the maintenance of the project record documents to remain on-site during the project and must be produced upon verbal or written request of the Asbestos Control Bureau. See Rule 56-3.4.

Many abatement projects will require variances pursuant to Article 2, Section 30 of the Labor Law, such as in an emergency abatement scenario. Failure to comply with the terms and conditions of a variance will result in the variance itself being found null and void and regard to the project. See 56-12.2. All approved variance decisions must be obtained prior to proceeding with an abatement project. See Rule 56-11.2(e).

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