Received a NYS DOL Asbestos NOV?

You Don’t Have to Be an Asbestos Contractor

When most contractors think about asbestos violations, they probably assume they are an issue for asbestos abatement contractors.

Increasingly, that isn’t what we are seeing.

At EAST Centers of NY, we have recently been assisting a variety of contractors who have received Notices of Violation (NOVs) from the New York State Department of Labor involving asbestos regulations—including companies that are not in the asbestos abatement business at all.

In many cases, the contractor did not intentionally disregard an asbestos regulation. They simply didn’t realize the asbestos regulations applied to the work they were performing.

Unfortunately, not knowing about the requirement does not prevent an NOV from being issued.

Asbestos Rules Extend Beyond Asbestos Abatement

New York has extensive requirements governing asbestos and work that may disturb asbestos-containing materials.

That means asbestos compliance can become an issue during demolition, renovation, restoration, mechanical work, plumbing, electrical work, roofing, flooring, construction and many other activities.

A contractor may believe:

“We’re not an asbestos contractor, so Code Rule 56 doesn’t apply to us.”

That assumption can create significant problems.

A contractor does not necessarily need to be performing an asbestos abatement project to encounter asbestos-related regulatory obligations.

Questions can arise before work even begins:

Was an asbestos survey required?

Was the contractor provided with the survey?

Did the survey adequately address the materials that would be disturbed?

Did field conditions differ from the survey?

Did the contractor encounter suspect material and continue working?

Was asbestos-containing material disturbed during demolition, renovation or restoration activities?

Should work have stopped until the material was evaluated?

Those questions can quickly turn an ordinary construction project into an asbestos enforcement matter.

“We Didn’t Know” Is Understandable—but It May Not Be a Defense

This is one of the more difficult conversations we have with contractors.

A company may have experienced employees, an excellent safety record and no intention whatsoever of performing asbestos work. They may have believed they were simply doing demolition, reconstruction, mechanical work or restoration.

Then an inspector arrives.

Suddenly, the contractor is being asked questions about asbestos surveys, regulated work areas, disturbance of suspect materials, certifications, notifications and requirements they may never have encountered before.

The contractor’s surprise may be completely genuine.

But the regulatory issue still has to be addressed.

That is where EAST can help.

Start by Determining What Actually Happened

Receiving an NOV does not automatically mean that every allegation is correct.

It also does not mean that every citation should automatically be contested.

The first step should be a careful technical and regulatory review.

We look at questions such as:

• What work was the contractor actually performing?

• What materials were disturbed?

• Was an asbestos survey completed?

• What did the survey identify?

• Was the contractor given the survey before beginning work?

• Did the contractor have reason to suspect asbestos was present?

• What does 12 NYCRR Part 56 actually require under those circumstances?

• What did the NYS DOL inspector observe?

• Do photographs and project records support that observation?

• Were other contractors or building representatives involved?

• What happened before and after the alleged violation?

• Were corrective actions taken?

The answers can substantially change how an NOV should be approached.

Sometimes the Contractor Has a Strong Argument

There are cases where the facts, project documentation or regulatory language provide a legitimate basis for questioning a citation.

There are also cases where a violation probably occurred, but important circumstances need to be explained.

And there are cases where the contractor simply made a mistake because the company did not understand that an asbestos requirement applied.

Those situations should not necessarily receive the same response.

Our job is to help determine which situation you are actually dealing with.

EAST does not manufacture defenses or look for technicalities simply to avoid responsibility.

We help contractors understand what the regulation requires, compare that requirement with what actually occurred, identify weaknesses as well as defenses, and develop a response that is accurate, credible and technically supportable.

Sometimes the most important advice we provide is identifying an argument that a contractor should not make because it could undermine an otherwise reasonable position.

The Bigger Lesson May Come After the NOV

For contractors outside the asbestos industry, an NOV can reveal a much larger problem:

If this happened on one project, could it happen again?

That may be the most important question.

An NOV should not only trigger a response to the Department. It should trigger a review of the company’s procedures.

For example:

How does your company determine whether an asbestos survey is required before starting work?

Who reviews the survey?

Do your project managers and supervisors know what information they should be looking for?

What happens when workers encounter a material that wasn’t identified in the survey?

Do employees know when they should stop work?

Are your subcontractors creating asbestos-related risks for your company?

These are management issues—not simply asbestos-abatement issues.

Our NOV Work Makes Our Training Better

One of the benefits of assisting contractors with NOVs is that we see how asbestos regulations collide with actual construction projects.

Regulations that seem straightforward in a classroom can become much more complicated on a demolition, restoration or renovation project.

Those experiences make their way back into EAST’s training and consulting.

We can show contractors not only what a regulation says, but how a decision made at 10:00 Tuesday morning on a jobsite may look two months later when someone is reviewing an inspector’s photographs and writing an NOV response.

That is an entirely different perspective.

If You Receive an Asbestos NOV, Get Help Early

Whether you are an asbestos contractor, general contractor, restoration company, demolition contractor, mechanical contractor, property manager or another company involved in renovation or demolition, an asbestos-related NOV deserves careful attention.

Preserve the photographs.

Save the survey.

Keep the emails.

Talk to the people who were actually there.

Document what happened while memories are still fresh.

Then determine what the regulation actually required before deciding how to respond.

EAST Centers of NY can assist with reviewing NYS DOL asbestos NOVs, evaluating the underlying regulatory and technical issues, preparing responses, and—perhaps most importantly—helping contractors identify what needs to change so the same problem does not happen on the next project.

Because in New York, you don’t have to be an asbestos contractor to have an asbestos problem.

Disclaimer: EAST Centers of NY provides technical and regulatory consulting based on our experience with asbestos regulations, industry practices, and compliance matters. We are not a law firm and do not provide legal advice or legal representation. When an NOV involves significant penalties, licensing consequences, litigation, or other legal issues, contractors should consult with qualified legal counsel. EAST can work alongside a contractor’s attorney to provide technical and regulatory support.