Environmental Protection

Caswell F. Holloway Commissioner cholloway@dep.nyc.gov

59·17 Junction Boulevard Flushing, NY 11373 T: (718) 595-6565 F: (718) 595-3525

To:

From:

Date:

Re:

Memorandum

Mayor Michael R. Bloomberg

Cas HOJlOWa~ )une28,201 0

Oversight of Certified Asbestos Investigators

On March 26, 2010, a fonner Certified Asbestos Investigator, Saverio Todaro, pled guilty to falsifying asbestos inspection and testing reports in New York City. DEP licenses Certified Asbestos Investigators ("CAIs") to operate in the City, and Todaro held a license from January 1990 until February 2004, when his license was suspended following a DEP audit that revealed he had recei ved excessive otices of Violation ("NOV"). I The fact that Me. Todaro continued to conduct asbestos-related investigations following the suspension of his license raised concerns about whether there are sufficient safe!:,1Uards in place to ensure that only properly licensed CAis conduct asbestos investigations in New York City.

Over the past two months, wc have reviewed our internal procedures at DEP, met with City agencies that could usc or rely on the representations of CAls, and consulted with the State Department of Environmental Conservation, State Department of Labor, and Region 2 of the Federal Environmental Protection Agency about changes that should be considered to strengthen DEP's CAl program. As a result of these efforts, we arc instituting four significant enhancements to our oversight of Certified Asbestos Investigators: ( I) establishing data sharing and a notification process with other governmental entities; (2) Converting to web-based filing of Asbestos Assessment Reports; (3) increasing the number of office audits and field inspections; and (4) conducting additional outreach to educate the asbestos inspection and removal industry about proper practices and these recent changes to the Asbestos Control Program.

A. Background

DEP regulates the asbestos abatement industry through our Asbestos Control Program ("ACP"), which establishes training, certification, and work procedure requirements for contractors conducting asbestos inspections and abatements in New York City. The ACP is composed ofthrcc units:

I The NOVs issued to Mr. Todaro included failure to conduct a proper assessment at certain locations. failure to collect bulk samples in accordance with Asbestos Control Program requirements, and fai lure to compile and maintain adequate records.

• The Training & Certification Unit processes applications for asbestos handlers, supervisors, and invest igators, administers standardized examinations for new applicants, and issues license certificates that are valid for two years;

• The Enforcement Unit performs unscheduled inspections based on asbestos notifications and complaints (active complaints are responded to within 3 hours), issues notices of violations, and provides expert testimony at Environmental Control Board hearings; and

• The Technical Review Unit processes asbestos project notification forms, variance applications, and Asbestos Technical Review Unit ("A-TRU") Pennits.

CAls are private individuals who conduct building surveys and hazard assessments for asbestos on behalf of building owners. There are currently 543 CAls certified by OEP, and certifications must be renewed every two years. First-time applicants must pass a written examination administered by DEP, and the initial certification and any subsequent renewals require documentation of successful completion of a New York State Inspector course within the prior year that is administered by the State Department of Health; documentation of a medical examination performed by a physician within the prior year; and documentation of a qualitative or quantitative respirator fit test perfonned within the prior three months, including the signature of the industrial hygienist who administered the test.

8. DEP's Investigation and Audit Process as of March 20ID

As early as possible before significant construction or demolition work occurs in an existing building, the building owner is responsible for determining whether there is asbestos containing material ("ACM") that will be disturbed in the proposed work area. The building owner hires a CAl to conduct a survey and, if the investigator detennines that li ttle or no ACM will be disturbed by the work,2 he or she completes and signs an ACP5 fonn and submits the fonn to the Department of Buildings ("DOB") along with any other construction documents necessary to obtain a DOB pennit. If the CAt finds asbestos, it must be removed before construction can commence at the site, in accordance with DEP's rules and regulations. 3

As of March 2010 (up to and through the time that Mr. Todaro's fraud was di scovered), all ACP5 fonns submitted to DOB certifying that a construction site was free of asbestos were forwarded to DEP for review in weekly batches from DOB's Borough Offices. Every ACP5 is reviewed for completeness by ACP staff, and the name of every CAl on every ACP5 fonn is

2 15 RCNY § \-02 Minor project - "Minor projecC shall mean a project involving the disturbance (e.g. removal. enclosure, encapsulation, repair) of 25 linear feet or less of asbestos containing material or 10 square feet or less of asbestos containing material. JThe City has enacted a number of ncw laws and rules to cn~ure that asbcstos abatement i~ conducted safcly. These laws impact the ways that asbestos projects are filed. approved, and inspected, and established new levcls of coopcralion betwcen the City agencies that oversee asbestos abatement and construction safew DEP, the Depanment of Buildings (DOB), and thc Fire Depanment (FDNY). These changes were made to implement the recommendations of the Construction, Demolition, and Working Group that you fonned in 2007. The Working Group's repon is available online at www.nvc.gov/hlmVQOl/pdrJ200S/pr277-Q8 safety rcpon ,odf.

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checked against DEP's li st of certi fied CAls, to confirm that the investigator is validly certified at the time the survey was conducted.

If a problem is discovered with any ACP5, DEP wi ll further investigate and, if necessary, a DEP inspector will commence an office audit of the CAL An office audit consists ofa DEP inspector travelling to the CAl's office to review the records for at least five different locations where the CAl conducted an ashcstos survey,4 and the inspector will issue an NOV ifany record is missing or incomplete. Through March of this year, DEP inspectors conducted an average of 40 office audits per year. DEP also conducts field inspections at constructions sites based on 311 complaints, and if disturbance of ACM is observed at a site where a CAl has certified that no asbestos is present, an NOV would be issued to the investigator,S and the building owner would be ordered to hire a licensed asbestos contractor to remove the material in accordance with the asbestos rules. A CAl"who violates the DEP Asbestos Rules is subject to having their certification suspended or revoked.

C. Enhancements to the CAl Program

DEP's rebTUlation of asbestos investigators through March 20 I 0 focused on post-auditing ACP5 submissions to DOB, to ensure that the investigators conducting the more than 25,000 surveys that are done every year are actually certified, and properly complete their submissions. That procedure was sufficient to detect Mr. Todaro's substandard investigations (DEP suspended his certification in 2004), but the lack of a notification protocol to other City, State and Federal agencies who could obtain or rel y on Mr. Todaro's services was a gap in the existing program. And because DEP reviewed ACP5 submissions only after DOB issued a construction permit, an expired or fraudulent CA I license might not be detected until well after construction work had begun at a site that was falsely certified as free of asbestos.

To address these issues, and strengthen DEP's oversight of ACP5 certifications generally, we are augmenting The Asbestos Control Program to include the following enhancements:

1. Data Sharing and Not(/icarion Process

DEP has instituted a data sharing and notification protocol with the Federal EPA; the State Departments of Environmental Conservation, Labor, and Health; and the City Departments of Buildings, Health and Mental Hygiene, and a number of other City agencies.6 We have provided

4 As part of an office audit, a DEP inspector 'will attempt 10 verify the fo llowing records for cach CAl survey reviewed: (i) the Survey Report indicating the condition of the work area at the time ofinspcction: (ii) the diagrams or written description of each building or portions inspected, the locations where bulk samples were collected. and the locations where any areas are assumed to have asbestos-containing material; (iii) lab reports of any samples taken; (iv) detailed description of the scope of work; and (v) the chain-of-custody form tracking the integrity of the CA r s inspection. S Three NOV types can be issued to CAk (i) filing a false or mislcading statement; (ii) not perfonning a survey properly (usually failure to samp le or to take an adequatc number of samples); and (iii) failure to maintain (or make available for inspection) required records. 6 Other agencies participating in this process are the Department of Design and Construction, the Department of Citywide Administrative Services, the Department of Transportation. the Department of Housing Preservation and Development. the Departmcnt of Educalion, the Department of Parks & Recreation, School Construction Authority, and thc New York City Housing Authority.

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our database of CAls to a designated contact person within the appropriate department at each agency, and will update that list on a quarterly basis. DEP will notify each agency of any suspension or rcvocation of a CAl certification, and any other adverse action or information relevant to a CAl's performance and integrity.

We are continuing to work with these agencies to determine what additional pertinent information should be shared about licensed environmental professionals in the City. The list of certified CAIs, as well as information about suspended and revoked CAl licenses will be shared byemail. EPA and the State Department of Labor have af,'Teed to share similar information on suspended or revoked Inspectors under their jurisdiction. In addition we are planning to initiate a process whereby the public can enter the name of a CAl on DEP's website to obtain the investigator's license number and date of expiration. We also plan to post the list of revoked and suspended CAl licenses on DEP's website.

In addition, working with DEP, DOB, has begun to require that CAl license numbers to be entered at the time ofajob application filing. DOB is sending a daily electronic report to DEP containing this information with a link to the scanned image of the ACP5 submitted to DOB. Moving forward, DOB and DEP are working together to improve electronic validation methods for all ACP5s submitted to DOB for job application filings.

2. Web-based ACP5 Form Filing

To prevent the issuance of a construction pennit to an unlicensed or suspended CAl in the future, DEP has developed a web-based ACP5 Form, which will automatically verify the licensing status of each investigator before the ACP5 can be submitted to DOB certifying that a particular site is free of asbestos. 7 If a CAl has been suspended, or is not certitied at the time the ACP5 is completed or on the date a survey is conducted, DEP's database will not allow further data entry. This should largely eliminate the possibility of ACP5 filings by uncertified and suspended asbestos investigators. The new ACP5 filing system was in place as of June 1, 2010, and we are working with DOB to notify the industry and ensure a smooth transition from paper to electronic submissions by August 1 of this year.

3. Increase Office Audits and Field Inspections

Since March, DEP has substantially increased the number of CAl office audits and site field inspections. As of June I, we have conducted 138 field inspections and 65 otlice audits. We issued 5 NOVs for field inspections and 57 NOVs tor office audits. As a result ofthcse inspections we are currently in the process of suspending the license of one CAT who received violations for failure to perfonn the requisite inspections.

7 When an applicant files a notification for an asbe~tos project in ARTS. the contractor and the air monitor licensing status are verified with infonnation that is provided by the licensing agency, the New York State Department of l.abor. Using a similar procedure, we developed a web-based [onn that require each CAl to set up an account with DEP; the system will verify their status before the CAL can log on and complete an ACP5 form for submission to DOB.

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Going forward, DEP will increase office audits perfonned from 40 to 75 per year, covering nearly 15% of CAIs who perfonn investigations in New York City every year. In addition, we have hired two additional ACP inspectors, and will conduct a total of 500 field inspections per year. DEP's field inspectors will verify the accuracy of infonnation provided on ACP5 fonns regarding the scope of work at a particular site, and will also look for any evidence of disturbance of ACM. The inspections will be conducted on the basis of public complaints and ACP5 submissions to DOB. We will adjust these targets as necessary depending on our findings throughout the year.

4. I1Idustry Outreach

DEP has been conducting extensive outreach with stakeholders as we have developed these enhancements. We recently met with affected City agencies to initiate the new verification process, and presented an overview of these measures at DOB's Construction Safety Week program, and the NYS Association for Affordable Housing Conference in April. We have also met with the Environmental Contractors Association ("ECA" ), which represents the major asbestos abatement contractors in the City, and we will continue to meet with ECA, and borough-bascd builders and developers associations throughout the summer.

In addition, thanks to the new Asbestos Reporting and Tracking System (ARTS) that was built to implement the recommendations of the Construction, Demolition, and Abatement Working Group you fonned in 2007, we now have more than one thousand email accounts on file, which we will use to notify the asbestos abatement community about these new procedures.

We believe these measures wi ll prevent uncertified inspectors like Mr. Todaro from conducting asbestos investigations in the future, and will strenbJthen this aspect of DEP's oversight of asbestos removal in the New York City. We will continue to evaluate our practices going forward, and I will keep you infonned of additional findings and changes to our Asbestos Control Program.

c: Stephen Goldsmith, Deputy Mayor for Operations Rose Gil-Hearn, Commissioner, NYC Department of Investigation Robert LiMandri, Commissioner, NYC Department of Buildings

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