- Consolidated Laws - Labor
ARTICLE 30
ASBESTOS OR PRODUCTS CONTAINING ASBESTOS; LICENSING
Section 900. Legislative findings and declaration.
901. Definitions.
902. Licensing and certification requirements.
903. License and certification procedure.
904. Notice and recordkeeping requirements.
905. Training and education.
906. Regulations.
907. Investigations and complaints.
908. Injunction.
909. Civil penalties and revocation.
910. Enforcement.
911. Advisory board.
S 900. Legislative findings and declaration. The legislature hereby
finds and declares that exposure to asbestos fibers, a known
carcinogenic agent, creates a serious risk to the public health and
safety. The legislature also finds that the public is more frequently
exposed to these risks as a result of an increasing number of
rehabilitation and reconstruction projects on buildings containing
asbestos or asbestos materials.
The legislature finds that the risks associated with asbestos are
exacerbated by the improper and uninformed manner in which some
contractors and their employees handle asbestos. Improper design,
implementation or inspection of asbestos projects creates unnecessary
health and safety hazards which are detrimental to the state`s interest,
and that of its citizens.
The legislature, therefore, finds and declares it to be its purpose
and policy to reduce asbestos related hazards by encouraging proper
training of persons employed to design, implement or inspect asbestos
projects and those who supervise or employ them, by requiring the
licensing of contractors and the certification of individuals involved
in asbestos projects pursuant to regulations promulgated by the
commissioner, prior to the removal, enclosure, encapsulation or
disturbance of friable asbestos or any handling of asbestos material
which may result in the release of asbestos fiber and by conferring upon
the commissioner the authority to inspect ongoing asbestos projects and
promulgate and enforce safety and health standards regulating the
conduct of those projects through injunctions, and the imposition of
civil and criminal penalties.
S 901. Definitions. As used in this article, the following terms have
the meanings indicated:
1. "Approved asbestos safety program" means a program approved by the
commissioner of health providing training in the handling and use of
asbestos and asbestos material, education concerning safety and health
risks inherent in such handling and use and training in techniques for
minimizing exposure of the public to asbestos fibers.
2. "Asbestos" means any naturally occurring hydrated mineral silicate
separable into commercially usable fibers, including chrysotile
(serpentine), amosite (cummingtonite-grunerite), crocidolite
(riebeckite), tremolite, anthrophyllite and actinolite.
3. "Asbestos contract" means an oral or written agreement contained in
one or more documents for the performance of work on an asbestos project
and includes all labor, goods and services.
4. "Asbestos handling certificate" means a certificate issued by the
commissioner pursuant to the provisions of this article to a person who
has satisfactorily completed an approved asbestos safety program.
5. "Asbestos handling license" means a license issued by the
commissioner pursuant to the provisions of this article to a contractor
engaged in an asbestos project.
6. "Asbestos material" means any material containing more than one
percent by weight of asbestos.
7. "Asbestos project" means work undertaken by a contractor which
involves the removal, encapsulation, enclosure or disturbance of friable
asbestos, or any handling of asbestos material that may result in the
release of asbestos fiber except for work in an owner-occupied single
family dwelling performed by the owner of such dwelling and, for the
purpose of compliance with regulations promulgated pursuant to
subdivision one of section nine hundred six of this article, except for
in-plant operations as defined in subdivision twelve of this section.
Where all asbestos work on a project is subcontracted to a contractor
with an asbestos handling license, only that part of the work involving
asbestos shall be deemed to be an asbestos project.
8. "Commissioner" means the commissioner of labor.
9. "Contractor" means the state, any political subdivision of the
state, a public authority or any other governmental agency or
instrumentality thereof, self-employed person, company, unincorporated
association, firm, partnership or corporation and any owner or operator
thereof, which engages in an asbestos project or employs persons engaged
in an asbestos project.
10. "Department" means the department of labor.
11. "Friable" means that condition of crumbled, pulverized, powdered,
crushed or exposed asbestos which is capable of being released into the
air by hand pressure.
12. "In-plant operations" means work within the premises of an
employer other than the state, any political subdivision of the state, a
public authority or other governmental agency or instrumentality
thereof, in an area to which persons other than employees of that
employer directly involved in the work will not have access during the
course of the work and which is performed in a manner consistent with
federal regulations promulgated under the federal occupational safety
and health act pursuant to chapter 17 of title twenty-nine of the United
States code, and is performed in a manner which will not expose the
public or employees of that employer not directly involved with the
asbestos project to asbestos fibers in excess of background levels or
.01 fibers per cubic centimeter, provided that the work involves the
encapsulation, enclosure, removal, disturbance or handling of (a) less
than one hundred sixty square feet or two hundred sixty linear feet of
asbestos or asbestos material and is performed by employees of such
employer or (b) built up roofing, roofing shingles, asbestos cement or
galbestos siding, shingle siding, transite piping or vinyl asbestos
tile.
13. "Person" means any natural person.
S 902. Licensing and certification requirements. 1. It shall be
unlawful for any contractor to engage in an asbestos project unless such
contractor has a valid asbestos handling license issued by the
commissioner. Such license will not be issued without evidence of
successful completion by the contractor, or a supervisor designated to
act as the contractor`s agent, of an approved asbestos safety program
which is, at the least, equivalent to the U.S. Environmental Protection
Agency Model Accreditation Plan (40 CFR Part 763) and the submission of
any additional information which the commissioner may require.
2. A copy of a valid asbestos handling license or other proof of the
issuance of a valid asbestos handling license granted to the contractor
who will be undertaking the asbestos project must be submitted by the
bidder in a form acceptable to the commissioner prior to the award of
any public works contract all or part of which involves an asbestos
project.
3. A copy of a valid asbestos handling license must be conspicuously
displayed at the work site on an asbestos project.
4. It shall be unlawful for any contractor to engage in or to permit a
person employed by the contractor, including but not limited to
handlers, project designers, inspectors and management planners, to
engage in work on an asbestos project or to supervise persons engaging
in work on an asbestos project unless each such person and supervisor
has a valid asbestos handling certificate. Such certificate will not be
issued without evidence of successful completion by each such person of
an approved asbestos safety program and the submission of any additional
information which the commissioner may require.
5. Any person employed on an asbestos project or the supervisor of any
person engaged in work on an asbestos project or any other person who is
otherwise required by law or regulation to obtain an asbestos handler`s
certificate shall have in his or her possession at all times during the
work on the project a copy of the asbestos handling certificate issued
to the person by the commissioner.
S 903. License and certification procedure. 1. All applications for
asbestos handling licenses or certificates shall be submitted in writing
on forms furnished by the commissioner and shall contain such
information which the commissioner may require. An application for an
asbestos handling license shall contain a verified statement by the
contractor or its duly authorized representative that all persons
employed by the contractor on any asbestos project whose duties involve
the removal, encapsulation, enclosure or disturbance of friable
asbestos, or any handling of asbestos material that may result in the
release of asbestos fiber or the supervision thereof, shall have valid
asbestos handling certificates and that the contractor will abide by all
the rules and regulations promulgated pursuant to this article. The
commissioner shall have the authority to deny the issuance or renewal of
a license for good cause shown, including the applicant`s serious
violation of state, federal or local laws with regard to the applicant`s
conduct of any job involving asbestos or asbestos material.
2. The fee for an asbestos handling license shall be three hundred
dollars, which shall accompany each license application.
3. The renewal fee for an asbestos handling license shall be three
hundred dollars, which shall accompany each license renewal application.
4. An asbestos handling license shall be valid for a period of one
year from the date of issuance and may be renewed on conditions set by
the commissioner related to additional training.
5. The fee for an asbestos handling certificate shall be assessed in
accordance with the following and shall accompany each certificate
application.
Application
Schedule: Asbestos Handling Certificate Category Fee
Management Planner $150
Project Designer 150
Inspector 100
Air Monitor 50
Supervisor 50
Asbestos Handler 30
6. The renewal fee for any annual asbestos handling certificate shall
be equal to the application fee set forth herein, and shall accompany
each certificate renewal application.
7. An asbestos handling certificate shall be valid for a period of one
year from date of issuance and may be renewed on conditions set by the
commissioner related to additional training.
8. Within thirty days of the receipt of the application and fee for
any license or certificate issued under this section, the commissioner
shall either issue the license or certificate or deny the license or
certificate setting forth the reason for such denial in writing.
S 904. Notice and recordkeeping requirements. 1. Each contractor shall
keep and maintain for at least thirty years a record of each asbestos
project in which it engages, which record shall include the following
information: the name, address and social security number of the person
who supervised the asbestos project; the location and description of the
asbestos project; the amount of asbestos or asbestos material that was
removed, enclosed, encapsulated, or disturbed; the starting and
completion date of the asbestos project; the name and address of the
deposit or waste disposal site or sites where the asbestos material was
deposited or disposed of; the name and address of any interim storage
sites used for the asbestos or asbestos materials prior to deposit or
disposal; the name and address of any transporters used to move asbestos
or asbestos material; the name, address and social security number of
all persons who worked on the asbestos project; and any other
information which the commissioner may require.
2. Any contractor engaged in an asbestos project involving more than
two hundred sixty linear feet or more than one hundred sixty square feet
of asbestos or asbestos materials shall notify both the United States
Environmental Protection Agency, Region II, Air and Hazardous Material
Division and the commissioner in writing ten days prior to the
commencement of work on the project or, if emergency conditions make it
impossible to provide ten days prior notice, as soon as practicable
after identification of the project. The notice to the commissioner
shall include the following information: the name, address and asbestos
handling license number of the contractor working on the project; the
address and description of the building or area, including size, age and
prior use of the building or area; the amount of friable asbestos
material present in square feet and/or linear feet, if applicable; room
designation numbers or other local information where such asbestos
material is found unless such material is found throughout the entire
structure; the scheduled starting and completion dates for removal; the
procedures and equipment, including ventilating systems that will be
employed; any additional information which the commissioner may require;
and shall be accompanied by a project notification fee as follows:
Project Size/Linear Feet Fee
260-429 $100
430-824 200
825-1649 500
1650 or more 1000
Project Size/Square Feet Fee
160-259 $100
260-499 200
500-999 500
1000 or more 1000
3. Upon the expiration, revocation or non-renewal of an asbestos
handling license, or at any other time at the request of the
commissioner, any records required to be kept pursuant to this section
shall be given to the commissioner.
4. A contractor shall post or otherwise provide for written
notification to residential and business occupants of a building ten
days prior to the commencement of work on any asbestos project in the
building or, if the work is scheduled to begin less than ten days after
the execution of the contract, at least three days prior to the
commencement of work, or if emergency conditions make it impossible to
provide ten days notice or three days notice as applicable, as soon as
practicable after identification of the project. The notification shall
be made in such a manner and shall contain such information as is
reasonably necessary to advise such occupants of any asbestos project in
the building, according to regulations promulgated by the commissioner.
If posted, such notice shall remain in place until completion of the
project. It shall be a violation of this chapter for any person to
interfere with the obligations of a contractor under this subdivision.
S 905. Training and education. 1. The commissioner of health shall
have authority to approve asbestos safety programs and shall maintain a
list of approved programs which shall be made available to license
applicants, certificate applicants and other interested parties upon
request. The commissioner of health shall promulgate rules and
regulations setting forth the criteria for approval of such programs,
the procedures to be followed in applying for such approval and any
other rules or regulations as shall be necessary and proper to
effectuate the purposes of this section and to comply with the
requirements of the Federal Asbestos Hazard Emergency Response Act and
any other applicable federal standards.
2. (a) The commissioner of health shall assess a fee of no more than
twenty dollars for each asbestos safety program completion certificate
requested by the training sponsor for each full asbestos safety program
and a fee of no more than twelve dollars for each asbestos safety
program completion certificate requested by the training sponsor for
each refresher training asbestos safety program, provided, however, that
in no event shall the cost of such certificates be assessed by the
sponsor against the participants.
(b) There shall be established within the special revenue fund-other
an asbestos safety program account. All fees assessed and collected
pursuant to the provisions of this subdivision shall be paid and
deposited into the asbestos safety program account established by this
paragraph for the purposes of offsetting the costs incurred by the
commissioner of health for the administration of asbestos safety
programs.
S 906. Regulations. The commissioner shall promulgate such rules and
regulations as shall be necessary and proper to effectuate the purposes
and provisions of this article and to comply with the requirements of
the Federal Asbestos Hazard Emergency Response Act and any other
applicable federal standards. Such regulations shall include but not be
limited to (1) standards for asbestos projects including methods of
removing, encapsulating, enclosing or disturbing friable asbestos and
standards for any handling of asbestos material which may result in the
creation of friable asbestos or any handling of asbestos material that
may result in the release of asbestos fibers, as shall be necessary to
protect the public health and safety and shall include regulations which
will permit such disturbance that results from actions that are
necessary to abate an emergency which poses an immediate threat to
safety or the public health; (2) standards for asbestos projects and
in-plant operations setting licensing and certification requirements;
and (3) standards for asbestos projects and in-plant operations setting
goal air monitoring and clearance requirements, including those
necessary to insure that asbestos work is properly designated as an
in-plant operation as defined in subdivision twelve of section nine
hundred one of this chapter.
S 907. Investigations and complaints. The commissioner shall have the
authority to inspect ongoing or completed asbestos projects and to
conduct an investigation upon his or her own initiation or upon receipt
of a complaint by any person or entity.
S 908. Injunction. If the commissioner finds that any asbestos project
is not being performed in accordance with this article or the rules and
regulations promulgated hereunder, the commissioner may, by delivery of
notice to the contractor engaged in the asbestos project or its agent or
representative, enjoin any further work on such asbestos project. Such
notice shall specifically enumerate the violations of law or regulation
which are occurring on the asbestos project and shall prohibit any
further work on the asbestos project until the violations complained of
cease and the notice is rescinded by the commissioner. Upon receipt of a
written notification from the contractor that the violations have been
corrected, the commissioner shall, within ten days, issue a
determination as to whether the notice shall be rescinded. Any person or
contractor who may be adversely affected by a notice or determination
issued under this section may challenge the validity or applicability of
such notice or determination by commencing a proceeding pursuant to
article seventy-eight of the civil practice law and rules.
S 909. Civil penalties and revocation. 1. a. The commissioner may
impose a civil penalty upon a contractor of up to one thousand five
hundred dollars for the initial violation of section nine hundred two of
this article and up to two thousand five hundred dollars for the second
or subsequent violation of such section.
b. If, after an investigation and a formal hearing, the commissioner
finds that a contractor has violated any provision of this article,
other than section nine hundred two or any rule or regulation
promulgated hereunder, the commissioner shall, by an order which shall
describe in detail the nature of the violation or violations, assess the
contractor a civil penalty of not more than the greater of twenty-five
percent of the monetary value of the contract upon which the violation
was found to have occurred or five thousand dollars per violation. Any
contractor who, having previously been assessed a civil penalty under
this section, violates any provision of this article or any rule or
regulation promulgated hereunder, shall be subject to a civil penalty of
not more than the greater of fifty percent of the monetary value of the
contract upon which the violation was found to have occurred or
twenty-five thousand dollars per violation. Each day a violation
continues may be considered a separate violation under this section. In
assessing the amount of penalty, the commissioner shall give due
consideration to the size of the contractor`s business, the good faith
of the contractor, the gravity of the violation and the history of
previous violations.
2. If, after an investigation and a formal hearing, the commissioner
finds that a contractor has violated any provision of this article or
any rule or regulation promulgated hereunder within three years of the
last assessment of a civil penalty against the contractor under this
article, or has been found to have committed serious violations of other
state, federal or local laws with regard to the contractor`s conduct of
any asbestos project or has otherwise demonstrated a lack of
responsibility in the conduct of any job involving asbestos or asbestos
material of such seriousness as to warrant the revocation of the
contractor`s license, the commissioner may, by an order which describes
in detail the nature of the violation or violations, revoke the
contractor`s asbestos handling license and such contractor shall not be
eligible to apply for a new asbestos handling license for a period of up
to two years.
3. If, after an investigation and a formal hearing, the commissioner
finds that a person who has been issued an asbestos handling certificate
has willfully violated any provision of this article, or any rule or
regulation promulgated hereunder, the commissioner may, by order which
describes in detail the nature of the violation or violations, suspend
or revoke the asbestos handling certificate of such person.
4. Any person or contractor who may be adversely affected by an order
issued under this section may challenge the validity or applicability of
such order by commencing a proceeding pursuant to article seventy-eight
of the civil practice law and rules. The commissioner may file with the
county clerk of the county where the employer resides or has a place of
business, the order containing the amount of civil penalty, unless a
proceeding for judicial review as provided in this article shall then be
pending or the time for initiation of such proceeding has not expired.
The filing of such order or decision shall have the full force and
effect of a judgment duly docketed in the office of such clerk. The
order or decision may be enforced by and in the name of the commissioner
in the same manner, and with like effect, as that prescribed by the
civil practice law and rules for the enforcement of a money judgment.
S 910. Enforcement. 1. Nothing in this article shall be construed to
prevent municipalities from enacting local laws or ordinances which
impose standards or requirements relating to the handling of asbestos or
asbestos material more effective than those set forth in this article or
in any rule or regulation promulgated hereunder.
2. The commissioner shall enforce the provisions of this article and
rules and regulations adopted hereunder; provided, however, that the
provisions of this section and sections nine hundred seven, nine hundred
eight and nine hundred nine of this article shall not be enforced in
reference to persons or contractors performing work in a city or
municipality which files with the commissioner a duly certified copy of
a local law or ordinance assuming full responsibility for enforcing the
provisions of this article and the rules and regulations adopted
hereunder. Such city or municipality shall have all the powers of the
commissioner in enforcing the provisions of this article and the rules
and regulations adopted hereunder, including but not limited to the
collection and retention of monetary penalties.
3. Each city or municipality which elects such local enforcement
option shall submit a report to the commissioner annually on or before
the first day of June of the manner in which this article and the rules
and regulations promulgated thereunder have been and are administered,
and the results of such administration under the jurisdiction of such
city or municipality and shall from time to time submit to the
commissioner such other reports as to such other matters as the
commissioner may require.
4. A city or municipality may file with the commissioner a duly
certified copy of a local law or ordinance terminating its enforcement
responsibilities which shall be effective thirty days from the filing
thereof.
S 911. Advisory board. There shall be a five person advisory board,
with three persons appointed by the governor, one by the majority leader
of the senate and one by the speaker of the assembly, which shall meet
on a quarterly basis to advise the commissioner on the implementation
and operation of this article. The chairperson of the board shall be
designated by the governor from among the persons appointed. The members
shall represent the public, employers, employee organizations, medical
or health professions and architects. The members shall not receive a
salary or other compensation, but shall be reimbursed for necessary
expenses. The commissioners of health, education, economic development
and environmental conservation shall have ex officio representation. The
board shall prepare an annual report for the governor and the
legislature, copies of which shall be sent to the commissioners of
health, education, economic development, labor and environmental
conservation.
