CHAPTER
Env-Sw 2100 MANAGEMENT AND CONTROL OF
ASBESTOS DISPOSAL SITES NOT OPERATED AFTER JULY 9, 1981
Statutory
Authority: RSA 141-E:4, XVIII
REVISION
NOTE:
This chapter was formerly designated
Env-Wm 3900. Document #7647, effective
2-16-02, adopted Env-Wm 3900 containing rules governing asbestos disposal sites
where dumping activities ceased by July 10, 1981 pursuant to RSA 141-E:2,
III. Chapter Env-Wm 3900 was
subsequently redesignated editorially with a new subtitle and number as Env-Sw
2100 pursuant to a rules reorganization plan for Department rules approved by
the Director of the Office of Legislative Services on 9-7-05.
Prior to the Document #7647, the rules
governing sites where dumping activities had ceased by July 10, 1981 had been
contained within Env-Wm 2601 as filed under Document #5172, effective 7-1-91,
and Document #6535 (interim rule), effective 7-1-97. The former rules within Env-Wm 2601 that
governed such asbestos disposal sites expired as interim rules on 10-29-97.
Env-Wm 2601 as filed under Document
#6619-B, effective 10-29-97, did not apply to sites where disposal ceased by
July 10, 1981. Env-Wm 2601 was
subsequently readopted with amendments and renumbered and redesignated as
Env-Sw 901 in Chapter Env-Sw 900 by Document #8459, effective 10-28-05. See Revision Note at chapter heading for
Env-Sw 900.
PART Env-Sw
2101 PURPOSE AND SCOPE
Env-Sw 2101.01 Purpose.
(a)
The purpose of this chapter is to protect public health, safety, and the
environment by establishing requirements for managing asbestos disposal sites
not regulated under the state solid waste management act, RSA 149-M, and rules
adopted pursuant thereto, namely sites where asbestos exists on or in the
ground due to dumping activities that ceased prior to July 10, 1981, including
but not limited to the many sites in Nashua and Hudson filled with asbestos
manufacturing waste from the company then known as the Johns-Manville
Corporation.
(b)
It is intended that this chapter be used in conjunction with other federal,
state, and local requirements for managing and controlling asbestos, including
but not limited to:
(1) New Hampshire administrative rules in Env-A
1800 pertaining to licensing contractors and certifying individuals who disturb
asbestos at asbestos disposal sites, as adopted by the department pursuant to
RSA 141-E;
(2) New Hampshire administrative rules in Env-Sw
901 pertaining to the collection, storage and off-site transfer, processing,
treatment, and disposal of asbestos waste, as adopted by the department
pursuant to RSA 149-M;
(3) Federal regulations pertaining to
occupational safety and health, including regulations established and
implemented by:
a. The Occupational Safety and Health
Administration in 29 CFR 1910 and 29 CFR 1926; and
b. The U.S. Environmental Protection Agency
(USEPA) in 40 CFR 763;
(4) Federal regulations pertaining to
transportation of asbestos, including regulations established by the U.S.
Department of Transportation in 49 CFR 107 and 49 CFR 171-172; and
(5) Federal
regulations pertaining to management of inactive disposal sites for asbestos,
including regulations established by the USEPA in 40 CFR 61 or the substitute
provisions, if any, approved by the USEPA under 40 CFR 63.93 and identified in
40 CFR 63.99.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3901.01); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2101.02 Applicability.
(a)
This chapter shall apply to asbestos disposal sites as defined by RSA
141-E:2, III and Env-Sw 2102.03.
(b)
The asbestos disposal sites identified in (a), above, shall include but
not be limited to the many sites in Nashua and Hudson filled prior to July 10,
1981 with asbestos manufacturing waste from the company then known as the
Johns-Manville Corporation.
(c)
This chapter shall not apply to asbestos abatement activities, as
defined in RSA 141-E:2, II, that are subject to the NH administrative rules for
asbestos management and control, Env-A 1800, including but not limited to the
removal, repair, or encapsulation of asbestos containing materials during
demolition or renovation of buildings.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3901.02); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
PART Env-Sw
2102 DEFINITIONS
Env-Sw 2102.01 “Asbestos” means “asbestos” as defined by RSA
141-E:2, I, as reprinted in Appendix C.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.01); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.02 “Asbestos waste” means any asbestos or
asbestos-containing material, product, or by-product that is discarded or
abandoned.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.02); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.03 “Asbestos disposal site (ADS)” means
“asbestos disposal site” as defined in RSA 141-E:2, III, as reprinted in
Appendix C.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.03); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.04 “ADS worker identification information” means
the certificate number and expiration date of the certificate issued to a
certified ADS worker under RSA 141-E:11, and whether the worker is designated
as an experienced worker or a worker-in-training as provided in Env-A
1812.08(b).
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.04); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.05 “ADS contractor identification information”
means the license number and expiration date of the license issued to a
contractor for work at asbestos disposal sites pursuant to RSA 141-E:10, I, and
Env-A 1811.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.05); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.06 “Certified ADS worker” means an individual
who holds a valid ADS worker certificate issued by the department pursuant to
RSA 141-E:11 and Env-A 1812. The term includes
individuals certified as experienced workers and workers-in-training pursuant
to Env-A 1812.08(b).
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.06); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.07 “Certificate-exempt work” means asbestos disposal
site work that can be performed, pursuant to Env-A 1812.03, by an individual
who is not a certified ADS worker.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.07); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.08 “Certificate- required work” means asbestos
disposal site work that is not certificate-exempt work.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.08); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.09 “Contractor” means “contractor” as defined in
RSA 141-E:2, IV, as reprinted in Appendix C.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.09); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2102.10 “Cover material” means
non-asbestos-containing material overlying asbestos at an asbestos disposal
site. The term includes but is not
limited to earth materials such as clean soil or crushed rock, geosynthetics
such as geotextiles, concrete, bituminous concrete, and vegetation.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.10); ss by #9645,
eff 2-16-10; ss by #12605, eff 9-1-18 (formerly Env-Sw
2102.04)
Env-Sw 2102.11 “Department” means the New Hampshire
department of environmental services.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.11); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18 (formerly Env-Sw
2102.05)
Env-Sw 2102.12 “Emergency project” means an unforeseen major
or minor project that is the result of a sudden or unexpected event and must
proceed expeditiously in order to protect public health, safety, or the
environment. The term does not include
work that is extraneous to abating the immediate threat to public health,
safety, or the environment.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.12); ss by #9645, eff
2-16-10 (from Env-Sw 2102.13); ss by #12605, eff 9-1-18
(formerly Env-Sw 2102.06)
Env-Sw 2102.13 “Licensed ADS contractor” means a contractor
who holds a valid ADS contractor license pursuant to RSA 141-E:10 and Env-A
1811.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3902.13); ss by #9645, eff
2-16-10 (from Env-Sw 2102.14); ss by #12605, eff 9-1-18
(formerly Env-Sw 2102.07)
Env-Sw 2102.14 “License-exempt work” means asbestos disposal
site work that can be performed, pursuant to Env-A 1811.03, by an individual or
entity that is not a licensed ADS contractor.
Source. #12605, eff 9-1-18
Env-Sw 2102.15 “License-required work” means work that is
not license-exempt work.
Source. #12605, eff 9-1-18
Env-Sw 2102.16 “Major project” means any activity at an
asbestos disposal site that involves the excavation, removal, exposure, or
other disturbance of more than 160 square feet, which is approximately 15
square meters, or 35 cubic feet, which is approximately one cubic meter, of
asbestos or any material mixed with or containing asbestos, where the total
disturbance involved in a project is measured cumulatively.
Source. #12605, eff 9-1-18 (formerly Env-Sw 2102.08)
Env-Sw 2102.17 “Minor project” means any activity at an
asbestos disposal site that involves the excavation, removal, exposure, or
other disturbance of asbestos, or any material mixed with or containing
asbestos that is not a major project
The term does not include a major project divided into smaller segments.
Source. #12605, eff 9-1-18 (formerly Env-Sw 2102.09)
Env-Sw 2102.18 “Owner” means the owner of record of a parcel
of land where there is an asbestos disposal site.
Source. #12605, eff 9-1-18 (formerly Env-Sw 2102.10)
Env-Sw 2102.19 “Qualified ADS contractor” means:
(a)
A licensed ADS contractor; or
(b)
For the performance of license-exempt work that is not undertaken by a
licensed ADS contractor, the qualified individual who is in charge of a project
at an asbestos disposal site.
Source. #12605, eff 9-1-18
Env-Sw 2102.20 “Qualified individual” means an individual
who:
(a)
Is capable of identifying asbestos, asbestos waste at asbestos disposal
sites, and asbestos hazards;
(b)
Is capable of selecting the appropriate control strategies to prevent
the release of asbestos fibers to the environment and human asbestos exposure;
(c)
Understands the requirements established in this chapter and the
information provided in the document titled “Guidance for Managing Asbestos
Disposal Sites”, published by the department in May, 2000;
(d)
For license-required work, personally holds a valid ADS contractor
license unless doing the work for and under the authority of a licensed ADS
contractor pursuant to the exemption in Env-A 1811.03(a);
(e)
For certificate-required work or when otherwise required by this
chapter, is a certified ADS worker; and
(f)
Holds such other licenses, certificates, registrations or other
authorizations as are required by applicable federal, state, or local law for
the performance of the work or the delivery of services that necessitates the
qualifications, for example a license to practice professional engineering, a
license to practice land surveying, or a license to install septic systems.
Source. #12605, eff 9-1-18 (formerly Env-Sw 2102.11)
Env-Sw 2102.21 “Public authority” means a state or federal
agency or a political subdivision.
Source. #12605, eff 9-1-18
Env-Sw 2102.22 “Utility/transportation project” means:
(a)
A minor or major project undertaken by a utility company or public
authority or pursuant to a contract with a utility company or public authority
to install, repair, replace, or decommission a private or public utility system,
or portion thereof, at locations where the responsible utility company or
public authority holds such rights of access, and includes the installation,
repair, replacement, and decommissioning of the following:
(1) Sanitary sewerage, water, or drainage
systems, and related appurtenances;
(2) Steam lines and related appurtenances;
(3) Natural gas pipelines and related
appurtenances; and
(4) Above-ground
or underground electric, telephone, telecommunication cables or other conduits,
and related appurtenances;
(b)
A minor or major project undertaken by a public authority or pursuant to
a contract with a public authority to construct, reconstruct, or repair all or
a portion of a public way such as a street, road, or highway; or
(c)
A minor or major project undertaken to repair, restore, or remove
railroad tracks.
Source. #12605, eff 9-1-18 (formerly Env-Sw 2102.12)
Env-Sw 2102.23 “Valid ADS contractor license” means an
asbestos disposal contractor license issued pursuant to RSA 141-E:10 and Env-A
1811 that has not expired or been suspended or revoked.
Source. #12605, eff 9-1-18
Env-Sw 2102.24 “Valid ADS worker certificate” means an
asbestos disposal worker certificate issued pursuant to RSA 141-E:11 and Env-A
1812 that has not expired or been suspended or revoked.
Source. #12605, eff 9-1-18
Env-Sw 2102.25 “Visible emission” means any emission that is
visually detectable without the aid of instruments, coming from asbestos
waste. The term does not include
condensed, uncombined water vapor.
Source. #12605, eff 9-1-18 (formerly Env-Sw 2102.13)
PART Env-Sw
2103 WAIVERS
Env-Sw 2103.01 Applicability. This part shall apply in lieu of Env-Sw 202
to any person seeking a waiver to a requirement in this chapter.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3903.01); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2103.02 Who May Request a Waiver.
(a)
If the waiver is intended to
apply to an asbestos disposal site on a single lot or to a
single non-utility/transportation project involving multiple lots that are
asbestos disposal sites, then the owner(s) of the lot(s) shall request the
waiver.
(b)
If the waiver is intended to apply to a utility/transportation project,
the utility or public authority responsible for the project shall request the
waiver.
(c)
For all other waiver requests, including any waiver intended to apply
without regard to a specific asbestos disposal site, the person responsible for
the work or service to which the waiver would apply shall file the request.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3903.02); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2103.03 Waiver Requests.
(a)
Any person who is or will be responsible for undertaking work at an
asbestos disposal site who seeks a waiver to a requirement in this chapter
shall submit a waiver request to the department, in writing, as specified in
(b) through (e), below, in lieu of the filing requirements in Env-Sw 303.
(b)
Prior to or upon submitting the request to the department, the requestor
shall provide a copy of the request to:
(1) The local health officer; and
(2) Each affected owner, if the waiver request is
being submitted by a utility or public authority pursuant to Env-Sw 2103.02(b)
and is specific to an identified asbestos disposal site or project.
(c)
Each waiver request shall include the following:
(1) The name, mailing address, email address, and
daytime telephone number with area code of the requestor;
(2) Identification of each specific rule the
requestor is seeking to have waived; and
(3) For each specific rule identified in (2),
above, the following:
a. Identification of the asbestos disposal
site(s) to which the waiver is intended to apply, if granted, or a statement
that the requested waiver is intended to apply without regard to a specific
site;
b. Description of the specific project(s) to
which the waiver is intended to apply, if granted, or a statement that the
requested waiver is intended to apply without regard to a specific project;
c. The period of time during which the requestor
wishes the waiver to be effective;
d. If the waiver is intended to apply to a
specific asbestos disposal site, a statement indicating whether the requestor
wants the waiver, if granted, to transfer automatically to subsequent owners;
e. A full explanation of why the waiver is being
requested, including an explanation of:
1. The economic and operational consequences of
complying with the rule as written; and
2. The potential adverse impacts to public health, safety, or the
environment of complying with the rule as written, including, for a waiver that
is specific to a particular site or project, the impact(s) of having to perform
the work, implement the project, or maintain the site in accordance with these
rules as written without the waiver;
f. A full explanation, with supporting data, of
the alternative(s) the requestor proposes to use in lieu of complying with the
rule as written and an explanation of the potential adverse impacts to public
health, safety, or the environment of implementing the alternative(s) as
compared to having to having to comply with the rules as written;
g. A full explanation of how each of the
alternatives proposed pursuant to f., above, is consistent with the purpose and
intent of RSA 141-E, this chapter, the alternative control method(s) approved
by USEPA if applicable pursuant to Env-Sw 2103.05(e), and is otherwise adequate
to protect public health, safety, and the environment; and
h. If the requestor is seeking a waiver for
which USEPA approval as specified in Env-Sw 2103.05(e) is required, a copy of
the approval issued by the USEPA.
(d)
Each request for waiver shall be dated and signed as specified in Env-Sw
2103.04.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3903.03); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2103.04 Signatures and Certifications.
(a)
Each waiver request shall be dated and signed by the requestor(s)
identified pursuant to Env-Sw 2103.02(a), as follows:
(1) If the requestor is an individual or sole
proprietorship, the requestor shall sign and date the request; and
(2) If the requestor is other than an individual
or sole proprietorship, the individual who has been authorized by the requestor
to sign the request on behalf of the requestor shall sign and date the request.
(b)
For a waiver request relating to license-exempt or certificate-exempt
work to be performed on residential property by the property owner(s), the
waiver request shall be signed by each owner of record of the property,
provided that if one owner has legal authority to bind one or more other owners,
the owner having the authority may sign for such owners and submit a certified
copy of the document conferring the authority, such as a power of attorney or
guardianship order, with the waiver request.
(c)
A signature provided pursuant to (a) or (b), above, shall constitute
certification that copies of the request have been provided as required by
Env-Sw 2103.03(b).
(d)
If the waiver request applies to doing certificate-required work and the
qualified ADS contractor is known at the time of the request, the request for
waiver also shall be signed and dated by the qualified ADS contractor, as
follows:
(1) If the qualified ADS contractor is an
individual or sole proprietorship, the individual shall sign and date the
request and provide his or her ADS contractor identification information or, if
the waiver request applies to doing license-exempt work that is
certificate-required work, the individual’s ADS worker identification
information; or
(2) If the qualified ADS contractor is other than
an individual or sole proprietorship, the individual who has been authorized by
the qualified ADS contractor to sign the application on behalf of the entity
shall sign and date the request and, if applicable, provide the entity’s ADS
contractor identification information.
(e)
A signature provided pursuant to (a), (b), or (d), above, shall
constitute certification that:
(1) The information being submitted is true,
complete, and not misleading to the best of the signer’s knowledge and belief;
(2) The signer understands that:
a. The submission of false, incomplete, or
misleading information is grounds for:
1. Denying the request; or
2. Suspending or revoking any waiver that is
granted based on the information; and
b. The signer is subject to the penalties
specified in New Hampshire law, currently RSA 641, for falsification in
official matters; and
(3) The requestor will comply with any conditions
included in the waiver pursuant to Env-Sw 2103.06(a).
Source.
#12605, eff 9-1-18
Env-Sw 2103.05 Review; Criteria.
(a) The department shall review each
waiver request within the time frames specified in RSA 541-A:29.
(b)
Subject to (c) through (e), below, the department shall grant a waiver
if:
(1) Granting a waiver:
a. Is consistent with the purpose and intent of
RSA 141-E and this chapter;
b. Will protect the public health, safety, and
environment to the same or greater extent than the rule being waived;
c. Does not violate RSA 141-E or any other state
or federal requirement for management and control of asbestos, including but
not limited to the requirements identified in Env-Sw 2101.01(b); and
d. Is enforceable; and
(2) At least one of the following conditions is
satisfied:
a. Strict compliance with the rule as written
will result in an adverse effect on the public health, safety, or the
environment; or
b. Strict compliance with the rule will provide
no benefit to the public and will cause the requestor to experience economic or
operational difficulties.
(c)
The department shall not grant a waiver to any rule in this chapter that
reflects a statutory requirement, including but not limited to:
(1) Env-Sw 2104.02 and Env-Sw 2105.05(a),
prohibiting the release of asbestos fibers to the environment; and
(2) Env-Sw 2104.08(a), specifying disclosure
requirements.
(d)
Subject to (e), below, the department shall not grant a waiver when both
(1) and (2), below, are true:
(1) The request is to waive a rule that the USEPA
has approved pursuant to 40 CFR 63.93 and identified in 40 CFR 63.99 as a
substitute for a rule promulgated under §112 of the federal Clean Air Act; and
(2) The waiver is intended to apply to an
asbestos disposal site that was operated by sources covered under 40 CFR
61.142, 40 CFR 61.144, and 40 CFR 61.147, including but not limited to the
sites in Nashua and Hudson formerly operated by the entity then known as the
Johns-Manville Corporation.
(e)
The department shall grant a waiver of a rule that meets the criteria of
(d), above, only if the requestor:
(1) First obtains an approval from the USEPA
pursuant to 40 CFR 61.151(c) for the alternative control method to be used in
lieu of complying with the rule;
(2) Provides a copy of the approval from the
USEPA with the waiver request as specified in Env-Sw 2103.03(c)(3)h; and
(3) Meets all other criteria for granting a
waiver specified in (b), above.
Source.
#12605, eff 9-1-18
(formerly Env-Sw 2103.03)
Env-Sw 2103.06 Decision; Conditions.
(a)
The department shall include such conditions as are needed to ensure
compliance with Env-Sw 2103.05(b) in any waiver granted.
(b)
The department shall notify the following in writing of the decision to
either grant or deny a waiver:
(1) The requestor;
(2) The qualified ADS contractor, if the waiver
is site-specific or project-specific and the qualified ADS contractor is known;
(3) The local health officer and any owner(s) the
requestor was required to notify pursuant to Env-Sw 2103.03(b); and
(4) The USEPA, if the waiver is for a rule that
cannot be waived without having first obtained USEPA approval of the
alternative control method, as specified in Env-Sw 2103.05(d) and (e).
(c)
If the department denies the waiver, the notice provided pursuant to
(b), above, shall:
(1) Clearly state the reason(s) for denial; and
(2) Inform the requestor of the procedures by
which the decision can be appealed.
(d)
Waivers, when issued, shall include:
(1) The name of the person(s) to whom the waiver
is issued;
(2) Identification of the rule(s) being waived;
(3) For a waiver that is specific to a site,
project, activity, person, or work plan, or any combination thereof,
identification of the specific site, project, activity, person, or work plan,
or any combination thereof, to which the waiver applies;
(4) If the waiver is not specific to a particular
site, project, activity, person, or work plan, or some combination thereof, a
statement to that effect;
(5) The terms and conditions under which the
waiver is granted, including provisions for:
a. Transfer if the waiver is site specific and
is intended to run with the property;
b. Ensuring compliance with any alternative to
be used in lieu of complying with the rule as written; and
c. Ensuring the criteria for the granting of the
waiver in Env-Sw 2103.05 are met;
(6) The effective date and expiration date; and
(7) The signature of the department’s
commissioner or designee.
(e)
In no case shall the waiver of any requirement in this chapter be
construed as:
(1) An authorization of any activity that
occurred prior to the effective date of the waiver;
(2) An authorization of any activity that does
not comply with RSA 141-E and the requirements of this chapter that have not
been waived;
(3) A waiver of any obligation to comply with all
other applicable federal, state, and local requirements for asbestos management
and control, including, but not limited to the requirements identified in
Env-Sw 2101.01(b);
(4) A waiver of any obligation to obtain all
requisite local, state, and federal permits or approvals; or
(5) A waiver of any cause of action for
violations predating the waiver.
Source.
#12605, eff 9-1-18
PART Env-Sw
2104 GENERAL SITE MANAGEMENT
REQUIREMENTS
Env-Sw 2104.01 Applicability. This part shall apply to managing and
controlling asbestos disposal sites.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3904.01); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2104.02 Release Prohibited.
(a)
As stated in RSA 141-E:21, no person shall cause or allow asbestos
fibers to be released to the environment from an asbestos disposal site.
(b)
A release to the environment, as specified in (a), above, shall include
but not be limited to:
(1) A visible emission;
(2) An uncontained airborne concentration of
asbestos fibers that exceeds the ambient concentration;
(3) An off-site discharge of storm water, surface
water, or waste water that has been in contact with asbestos, unless the water
is filtered and discharged in accordance with Env-Sw 2105.14(c);
(4) The off-site removal of asbestos, unless the
asbestos is collected, stored, transferred, and disposed in accordance with
Env-Sw 901; and
(5) The off-site
removal of individuals, equipment, supplies, clothing, or any other materials
or items that have been in contact with asbestos, unless first decontaminated
in accordance with Env-Sw 2105.14 or collected, stored, transferred, and
disposed in accordance with Env-Sw 901.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3904.02); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2104.03 Capping System Requirements.
(a)
All asbestos at an asbestos disposal site shall be buried under a
capping system that is designed to meet the criteria specified in (b) through
(e), below.
(b)
The capping system shall be designed and maintained to prevent the
asbestos from becoming exposed under the following site-specific conditions and
events:
(1) The 100-year, 24-hour storm;
(2) The 100-year flood;
(3) Seasonal frost action;
(4) Erosion due to wind, water, and other
factors; and
(5) Site land use and activities.
(c)
The capping system shall have cover materials placed in layers, as
follows:
(1) Surface cover materials shall be of such type
as will eliminate or control erosion, including but not limited to one or more
of the following:
a. Riprap, densely packed;
b. Bituminous concrete, free of cracks or
openings;
c. Portland cement concrete, free of cracks or
openings; and
d. Vegetation that, if up-rooted, will not
expose the underlying asbestos layer;
(2) The cover material immediately below the
surface cover materials shall be of sufficient character and thickness to
support and enhance the long-term effectiveness of the surface cover materials;
and
(3) Earthen cover material below the layer
described in (2), above, and above the asbestos deposit shall be a
free-draining sandy gravel material.
(d)
The total combined depth of the cover materials shall be the depth
required to meet the performance standards established in (b), above, but in no
case shall the combined depth of cover materials be less than 6 inches.
(e)
Geosynthetics shall be incorporated in the capping system when necessary
to:
(1) Inhibit asbestos from becoming exposed to the
ground surface as a result of frost action;
(2) Prevent different layers of cover materials
from inter-mixing; or
(3) Create a
barrier to warn against digging into the underlying asbestos.
(f)
In addition to the cover materials described above, the capping system
shall include such structures and features as are needed to fully contain and
cover the waste as required by (b), above, such as retaining walls or curbing
used to contain the waste and support the cover materials, drainage swales used
to intercept and direct storm water away and off from the capping system, and
other structures necessary to support the integrity and performance of the
capping system.
(g)
Nothing stated in (a) through (f), above, shall be construed to waive
compliance with other local, state, and federal building codes, construction
standards, and other requirements that apply to establishing the capping system
and undertaking the type of land uses and activities the capping system is
designed to support pursuant to (b)(5), above.
To the extent another applicable code conflicts with these rules, the
requirement(s) that are more protective of public health, safety, and the
environment shall apply, provided that all necessary approvals are obtained as
specified in this chapter.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3904.03); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2104.04 Activity and Use Restrictions.
(a)
No person shall excavate, remove, expose, or otherwise disturb any
asbestos at an asbestos disposal site unless the work is conducted in
accordance with the work practices and engineering controls in Env-Sw 2105.
(b)
No person shall alter the capping system at an asbestos disposal site,
including the cover materials and supporting features required by Env-Sw
2104.03(f), in a manner that causes the capping system to be less effective in
meeting the performance criteria specified in Env-Sw 2104.03(b).
(c)
Owners shall:
(1) Restrict the use of a site to only those uses
and activities that the capping system is designed and maintained to sustain
without loss of integrity, as required by Env-Sw 2104.03(b)(5); and
(2) Not allow any person to excavate, remove,
expose, or otherwise disturb asbestos at their property except in compliance
with this chapter.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3904.04); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2104.05 Access Control. The owner shall control access to the site as
necessary to comply with Env-Sw 2104.04.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3904.05); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2104.06 Site Monitoring and Reporting.
(a)
The owner shall monitor the asbestos disposal site to assure that:
(1) All asbestos waste remains covered in
accordance with the requirements of this chapter; and
(2) The capping system maintains its integrity
relative to meeting the design performance standards in Env-Sw 2104.03(b).
(b)
The owner shall promptly report to the local health officer and the
department any situation involving either uncovered asbestos waste or a release
to the environment as identified in Env-Sw 2104.02(b), or both.
(c)
The owner shall promptly report to the local health officer and the
department any conditions developing at the site that have the potential to
result in either uncovered asbestos waste or a release to the environment as
identified in Env-Sw 2104.02(b), or both.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3904.06); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2104.07 Site Maintenance. Owners shall provide site maintenance as
needed to keep the site covered in compliance with Env-Sw 2104.03 and prevent a
release to the environment as identified in Env-Sw 2104.02(b).
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3904.07); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2104.08 Disclosure and Record Keeping.
(a)
Owners shall comply with the disclosure requirements specified in RSA
141-E:23, including requirements for:
(1) Recording notice in the chain of title for
the property;
(2) Providing notice to tenants, contractors, and
other site users;
(3) Providing notice to potential buyers; and
(4) Providing notice to the department following
a transfer of title.
(b)
Owners shall register sites in accordance with Env-Sw 309 and provide to
the department, in writing, other information needed to maintain the registry
of sites required by RSA 141-E:3, XVII.
(c)
Owners shall keep records or have access to records required to comply
with the seller to buyer disclosure requirements in RSA 141-E:23, I(d),
including:
(1) A site plan showing the asbestos disposal
area and the cover materials;
(2) Site monitoring and maintenance records
pursuant to Env-Sw 2104.06 and Env-Sw 2104.07;
(3) Site inspection reports, including reports
prepared for inspections conducted pursuant to RSA 141-E:24; and
(4) Project summary information for all major and
minor projects undertaken at the site, including, as applicable:
a. A copy of project commencement notices
pursuant to Env-Sw 2105.07;
b. Weekly project reports pursuant to Env-Sw
2105.17(a);
c. Project completion reports pursuant to Env-Sw
2105.17(b); and
d. Site clearance determinations and information
obtained pursuant to Env-Sw 2105.15.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3904.08); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
PART Env-Sw
2105 WORK PRACTICES AND ENGINEERING
CONTROLS
Env-Sw 2105.01 Purpose. The purpose of this part is to establish work
practices and engineering controls for excavating, removing, exposing, or
otherwise disturbing asbestos at an asbestos disposal site to ensure the work
is done and sites are managed in a manner that prevents a release as described
in Env-Sw 2104.02(b) and otherwise is protective of public health, safety, and
the environment.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.01); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.02 Applicability. The requirements in this part shall apply to
all minor and major projects.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.02); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.03 Qualified Individuals Required.
(a)
No individual shall excavate, remove, expose, or otherwise disturb
asbestos at an asbestos disposal site unless the individual is a qualified
individual.
(b)
A qualified individual who is certified as a worker-in-training shall
perform all certificate-required work under the direct supervision of a
qualified individual who holds a valid ADS worker certificate issued with the
experienced worker designation.
(c)
Any individual who supervises the work of one or more individuals
performing certificate-required work shall be a qualified individual who holds
a valid ADS worker certificate issued with the experienced worker designation,
even when the supervisor is not personally and actively engaged in the actual
task of disturbing the asbestos waste.
(d)
The work plans required by Env-Sw 2106 shall be prepared and signed by a
qualified individual.
(e)
The clearance determinations required by Env-Sw 2105.15 shall be
performed and signed by a qualified individual who holds a valid ADS worker
certificate issued with the experienced worker designation.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.03); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.04 Types of Projects.
(a)
For the purposes of this chapter, work involving the disturbance of
asbestos at asbestos disposal sites shall be classified as either a:
(1) Major project, as defined in Env-Sw 2102; or
(2) Minor project, as defined in Env-Sw 2102.
(b)
For the purposes of this chapter, each major and minor project shall be
further classified as either:
(1) An emergency project, as defined in Env-Sw
2102; or
(2) A non-emergency project.
(c)
Any of the project types specified in (a) and (b), above, also shall be
further classified as either:
(1) A utility/transportation project, as defined
in Env-Sw 2102; or
(2) A non-utility/transportation project.
(d)
Any of the projects types specified in (a) through (c), above, also
shall be further classified as:
(1) License-exempt work, as defined in Env-Sw
2102, or license-required work as defined in Env-Sw 2102; and
(2) Certificate-exempt work, as defined in Env-Sw
2102, or certificate-required work as defined in Env-Sw 2102.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.04); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.05 General Project Requirements; When Work
Plans Required.
(a)
The excavation, removal, exposure, or other disturbance of asbestos at
an asbestos disposal site shall be conducted in a manner that:
(1) Is protective of public health, safety, and
the environment; and
(2) Does not cause a release of asbestos fibers
to the environment, including any release identified in Env-Sw 2104.02.
(b)
The excavation, removal, exposure, or other disturbance of asbestos at
an asbestos disposal site shall be carried out in conformance with all
applicable federal, state, and local requirements pertaining to the management
and control of asbestos, including but not limited to the requirements listed
in Env-Sw 2101.01(b), as applicable.
(c)
Major non-emergency projects involving certificate-required work shall
proceed in accordance with a project-specific or generic work plan prepared and
approved pursuant to Env-Sw 2106.
(d)
For any project that is subject to the work plan requirement cited in
(c), above, the qualified individual shall maintain a copy of the approved work
plan at the work site for the duration of the project, for reference by workers
and for inspection by the department and the local health officer on request.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.05); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.06 Factors to Consider. The following site-specific factors shall be
considered when determining the appropriate engineering controls, work
practices, and equipment needed to comply with this part and when preparing
work plans in accordance with Env-Sw 2106:
(a)
Pathways by which asbestos fibers could be released from the site to the
environment, including but not limited to releases to air and surface water,
and releases off-site by contaminated persons or equipment leaving the site;
(b)
Number and proximity of human receptors;
(c)
Prevailing wind direction;
(d)
Weather and seasonal conditions, including but not limited to frozen
ground and flooding;
(e)
Project duration;
(f)
Quantity and area of asbestos being disturbed;
(g)
Nature of the asbestos being disturbed, including:
(1) Whether it is friable or non-friable; and
(2) If non-friable, whether it has the potential
to become friable when disturbed;
(h)
Vertical and lateral limits of the asbestos disposal site;
(i)
Depth and type of cover materials;
(j)
Existing site features, including but not limited to:
(1) Surface topography;
(2) Property lines, rights-of-way, and easements;
(3) Surface waters and wetlands;
(4) Roadways, driveways and parking areas;
(5) Buildings and other structures;
(6) Above-ground and below-ground utilities; and
(7) Above-ground and below-ground storage tanks;
(k)
Slope stability;
(l) Load bearing capacity of the site;
(m)
Visibility and illumination;
(n)
Site accessibility;
(o)
Site history information; and
(p)
Site assessment and characterization information, and degree of
confidence that the information is both complete and accurate.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.06); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.07 Project Notice Requirements.
(a)
Except as provided in (b) and (c), below, the owner shall notify the
following persons, as specified in (d) below, about the commencement of work:
(1) The local health officer;
(2) The department’s division of air resources;
and
(3) For major projects only, the department’s
division of waste management.
(b)
In the case of a utility/transportation project, the responsible utility
company or public authority shall notify the following persons in writing about
the commencement of work:
(1) The local health officer;
(2) The owners of properties that will be
disturbed by the project or, where the project will occur on land owned by the
public utility or public authority, owners of properties abutting such
property;
(3) The department’s division of air resources;
and
(4) For major projects only, the department’s
division of waste management.
(c)
No notice shall be required for projects involving certificate-exempt
work only.
(d)
Notice required by this section shall be provided according to the
following schedule:
(1) If the project is an emergency project,
notice shall be provided by speaking to the individual being notified in person
or by telephone as soon as practicable under the circumstances and written
confirmation shall be provided within 48 hours of commencing the project;
(2) If the project is a minor non-emergency
project, notice shall be provided by speaking to the individual being
notified in person or by telephone prior
to doing the work or, in the case of an unexpected disturbance, as soon as
practicable after the person doing the work knows or should have known the work
involves asbestos and written confirmation shall be provided within 48 hours
following project commencement; and
(3) If the project is a major non-emergency
project that is subject to the work plan requirements in Env-Sw 2106, written
notice shall be provided as specified in the work plan approval issued pursuant
to Env-Sw 2106.
(e)
Notice transmitted via e-mail or fax shall constitute a form of written
notice.
(f)
Notice provided pursuant to this section shall include the following
information:
(1) Project location;
(2) The name, mailing address, email address, and
daytime telephone number including area code of:
a. The owner, if the owner is initiating and
undertaking the project; or
b. The entity,
individual, utility, or public authority responsible for initiating and
undertaking the project;
(3) The qualified ADS contractor’s name, mailing
address, daytime telephone number including area code, email address, and ADS
contractor identification information, if the contractor holds a valid ADS
contractor license;
(4) The name, mailing address, daytime telephone
number including area code, and ADS worker identification information of the
qualified individual who will be in charge of the work for the qualified ADS
contractor;
(5) If the work that involves the disturbance of
asbestos is license-exempt work, the following:
a. A statement that a licensed ADS contractor is
not required, with a citation to the applicable provision in Env-A 1811.03; and
b. The name, mailing address, daytime telephone
number including area code, and email address of the qualified individual who
will be in charge of the work, and the qualified individual’s ADS worker
identification information;
(6) Project schedule, including the starting and
completion dates;
(7) Reason for disturbing the asbestos and a
general description of the project;
(8) If the project is subject to the work plan
requirements in Env-Sw 2106, the date the work plan was approved by the
department and whether it is a project-specific or generic work plan; and
(9) If the project will be conducted under a
generic work plan approval, the date it was approved and a statement signed by
the qualified ADS contractor identified pursuant to (3) or for license-exempt
work, the qualified individual pursuant to (4), above, that the work plan is up
to date with the requirements of RSA 141-E and this chapter and is relevant to
the planned work.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.07); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.08 Site Preparation. Prior to commencing a minor or major project,
a qualified individual shall prepare the site so that the work can be executed
in accordance with the approved work plan, if applicable, and all other
requirements of this chapter.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.08); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.09 Site Work Zones.
(a)
To reduce the potential for asbestos fibers to be released to the environment
by persons and equipment leaving a major or minor project site, site work zones
shall be established and delineated to:
(1) Separate clean operations from contaminated
operations; and
(2) Control the flow of personnel and equipment
between such operations.
(b)
The site work zones required to comply with (a), above, shall be
established and maintained in accordance with the provisions for site control
provided in Chapter 9 of the Occupational Safety and Health Guidance Manual for
Hazardous Waste Site Activities, NIOSH publication No. 85-115, available as
noted in Appendix B.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.09); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.10 Access Control and Site Security.
(a)
Access control and site security shall be provided as necessary to:
(1) Prevent unauthorized persons and unprotected
persons from being exposed to site hazards;
(2) Reduce the potential for vandalism or unlawful
dumping of other wastes at the project site;
(3) Reduce the potential for neighborhood pets
and other animals to enter the project site and traverse contaminated areas;
and
(4) Avoid interference with safe working
procedures.
(b)
Access control and site security shall include displaying a warning sign
in such manner and location that a person can easily read the legend, including
the following information:
(1) Asbestos work in progress; and
(2) Authorized persons only.
(c)
Site security and access control pursuant to (a) and (b), above, shall
be provided during both working and non-working hours.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.10); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.11 Excavation or Other Disturbance.
(a)
The area of excavation, removal, exposure, or other disturbance of
asbestos waste at an asbestos disposal site shall be confined to the smallest
area practicable.
(b)
Wet methods, or wetting agents, shall be used to prevent the airborne
release of asbestos fibers during a major or minor project.
(c)
All asbestos being removed from a site shall be managed in accordance
with Env-Sw 901.
(d)
The excavation, removal, exposure, or other disturbance of asbestos
waste at an asbestos disposal site shall not result in increasing the size of
the disposal area.
(e)
Upon completion of the excavation, removal, exposure, or other
disturbance activity, cover materials shall be placed in conformance with
Env-Sw 2104.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.11); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.12 Personal Protective Equipment. No individual shall enter or be in a
contaminated work area unless the individual uses personal protective equipment
in conformance with the personal protective equipment requirements for asbestos
workers established by the Occupational Safety and Health Administration in 29
CFR 1910 and 29 CFR 1926.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.12); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.13 Air Monitoring. Air monitoring shall be provided in
accordance with 29 CFR 1910, 29 CFR 1926; 40 CFR 763, and the approved work
plan, as applicable.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.13); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.14 Decontamination of Personnel and Equipment.
(a)
All personnel, equipment, supplies, and materials situated within a
contaminated work zone established pursuant to Env-Sw 2105.09 shall be
decontaminated prior to being removed to a clean zone established pursuant to
Env-Sw 2105.09.
(b)
Decontamination shall be achieved by removing all asbestos contamination
from the personnel, equipment, supplies, and materials in accordance with the
decontamination methods and procedures set forth in Chapter 10 of the
Occupational Safety and Health Guidance Manual for Hazardous Waste Site
Activities, NIOSH publication No. 85-115, available at no cost as noted in
Appendix B.
(c)
Waste water from decontamination procedures shall be either:
(1) Discharged to the ground at the project site
within a portion of the open excavation area that is already asbestos
contaminated and in such a manner as not to become surface run-off; or
(2) Discharged off-site in accordance with
applicable local, state, and federal waste water discharge requirements, after
being filtered through progressively smaller filters ending with a filter with
openings no larger than 5 microns.
(d)
Filters used pursuant to (c), above, shall be handled and disposed as asbestos
waste in accordance with Env-Sw 901.
(e)
Care shall be taken during the decontamination process to avoid cross
contamination of equipment, personnel, or materials.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.14); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.15 Clearance Determination.
(a)
Following completion of any major or minor project that includes
certificate-required work, and before allowing normal use of the site to
resume, a qualified individual holding a valid ADS worker certificate issued
with the experienced worker designation shall make a site clearance
determination in accordance with (b), below.
(b)
A site clearance determination shall not be made unless the qualified
individual determines that all of the following statements are true:
(1) All excavated, removed, exposed, or other
disturbed asbestos either:
a. Has been removed from the site in accordance
with Env-Sw 901; or
b. Is covered in accordance with Env-Sw 2104.03;
(2) No asbestos-contaminated equipment,
materials, clothing, or other supplies remain at the site; and
(3) It is safe to resume use of the site in a
manner consistent with Env-Sw 2104.04.
(c)
The qualified individual who made the site clearance determination shall
provide a written copy of the clearance determination with a copy of the
individual’s ADS certificate, signed and certified as provided in (d), below,
to the following persons:
(1) The qualified ADS contractor that implemented
the project;
(2) For
non-utility/transportation projects, the owner for use as required by Env-Sw
2104.08(c)(4); or
(3) For utility/transportation projects, the
utility company or public authority, as applicable, to be placed in the project
record maintained by the utility company or public authority and made
accessible to owners when requested to satisfy the disclosure requirements of
Env-Sw 2104.08(c).
(d)
The signature provided pursuant to (c), above, shall:
(1) Constitute certification that:
a. The individual holds a valid ADS worker
certificate with the experienced worker designation; and
b. The information provided in the clearance
report is true, complete, and not misleading to the best of the signer’s
knowledge and belief; and
(2) Subject the signer to penalties for
falsification in official matters, currently in RSA 641.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.15); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.16 Project Recordkeeping and Reporting.
(a)
Activities involving the excavation or other disturbance of asbestos at
an asbestos disposal site shall be documented and records thereof shall be
maintained by the owner as specified in Env-Sw 2104.08(c).
(b)
Waste shipment records shall be maintained in accordance with 40 CFR 61
and 49 CFR 171-172, as applicable.
(c)
Within 60 days after completion of a project that changes either the
lateral limits of the disposal area, the depth of the disposal area, or any
aspects of the capping system, including but not limited to the type or
thickness of cover materials and structures and features required by Env-Sw
2104.03(f), the owner or, in the case of a utility/transportation project, the
utility company or public authority, shall submit to the department as-built
drawings that:
(1) Show the new
configuration of the disposal area and capping system, including the
boundaries, the cover materials, and all other capping system design features;
and
(2) Bear the stamp of a professional engineer
licensed in New Hampshire, when required pursuant to RSA 310-A:18, with
certification either that the altered capping system complies with Env-Sw
2104.03 or that the capping system requirements in Env-Sw 2104.03 no longer
apply to the site because all asbestos has been removed from the site.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.16); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2105.17 Additional Reporting Requirements for
Major Projects.
(a)
During a major project taking longer than 2 weeks to complete, the
qualified ADS contractor and owner or, in the case of a utility/transportation
project, the qualified ADS contractor and the utility company or public
authority, shall submit the following in writing to the department and the
local health officer no later than the close of business on the second business
day following the end of the reporting week:
(1) Weekly progress reports; and
(2) Notice of any schedule adjustments for the
balance of the project.
(b)
Within 60 days after a major project is completed, the qualified ADS
contractor and owner or, in the case of a utility/transportation project, the qualified
ADS contractor and the utility company or public authority, shall sign and
submit a written project completion report to the department and the local
health officer.
(c)
The signature provided pursuant to (b), above, shall:
(1) Constitute certification that:
a. The signer has been duly authorized to sign
the project completion report; and
b. The information provided in the report is
true, complete, and not misleading to the best of the signer’s knowledge and
belief; and
(2) Subject the signer to penalties for
falsification in official matters, currently in RSA 641.
(d)
The report required by (b), above, shall include:
(1) The name, mailing address, email address, and
daytime telephone number including area code of:
a. The owner or in the case of a
utility/transportation project, the utility or public authority;
b. The qualified ADS contractor, and if the
contractor is licensed under RSA 141-E:10, the relevant ADS contractor
identification information; and
c. The qualified individual who was in charge of
the work, and the individual’s ADS worker identification information;
(2) The location of the project site;
(3) The date the project commenced and the date
it was completed;
(4) A brief narrative description of the work undertaken,
including a description and explanation of any deviation from the applicable
approved work plan and any unexpected events;
(5) For any asbestos removed from the site, a
copy of the waste shipment records pursuant to 40 CFR 61 and 49 CFR 171 - 172,
as applicable;
(6) A brief narrative description of site
conditions following completion;
(7) As-built drawings of the completed work that
conform to Env-Sw 2105.16(c);
(8) A summary of the air monitoring results
obtained pursuant to Env-Sw 2105.13;
(9) A copy of the site clearance determination
pursuant to Env-Sw 2105.15; and
(10) A statement, signed and dated by the
qualified ADS contractor as specified in (e), below, certifying that:
a. The information submitted in the report is
correct and complete;
b. The required work was completed in
conformance with the approved work plan, except as noted pursuant to (b)(4),
above, and the requirements of this chapter; and
c. In order to facilitate compliance with RSA
141-E:23, I(d), either:
1. The owner has been provided a copy of the
project completion report and has access to the air monitoring laboratory
results and related data that is the basis of the summary provided pursuant to
(8), above; or
2. In the case of a utility/transportation project,
the owner has been notified that a copy of the project completion report and
the air monitoring laboratory results and related data that is the basis of the
summary provided pursuant to (8), above, is available from the utility company
or public authority, by request as needed to comply with Env-Sw 2104.08(c).
(e)
The person signing the report pursuant to (d)(10), above, shall be as
follows:
(1) If the qualified ADS contractor is an
individual or sole proprietorship, that individual shall sign and date the
report; and
(2) If the qualified ADS contractor is other than
an individual or sole proprietorship, the individual who has been authorized by
the qualified ADS contractor to sign the report on behalf of the qualified ADS
contractor shall sign and date the report.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3905.17); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
PART Env-Sw
2106 WORK PLANS FOR MAJOR NON-EMERGENCY
PROJECTS
Env-Sw 2106.01 Applicability. This part shall apply to work plans for major
non-emergency projects that include any certificate-required work.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3906.01); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2106.02 Work Plans Required.
(a)
No person shall undertake a major non-emergency project that includes
certificate-required work except in accordance with a written work plan
prepared and approved in accordance with this part.
(b)
Work plans shall be:
(1) Prepared in writing by a qualified
individual;
(2) Stamped by a registered professional engineer
in New Hampshire when required by RSA 310-A;
(3) Submitted to the department for approval by
the applicants identified in (d), below; and
(4) Concurrently submitted to the local health
officer.
(c)
Work plans shall provide sufficient detail to allow qualified
individuals to implement the plan and complete the proposed work tasks in
compliance with the work practices and engineering controls specified in Env-Sw
2105, all other requirements in this chapter, and RSA 141-E without further
explanation or guidance.
(d)
The applicant for work plan approval shall be as follows:
(1) For a project-specific work plan for a
non-utility/transportation project, the owner and the qualified ADS contractor,
if known at the time the plan is prepared for submittal;
(2) For a project-specific work plan for a
utility/transportation project, the applicable utility company or public
authority and the qualified ADS contractor, if known at the time the plan is
prepared for submittal; or
(3) For a generic work plan, the owner, qualified
ADS contractor, utility company, public authority, or other entity or individual
who will be authorized to use the work plan if it is approved.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3906.02); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2106.03 Types of Work Plans.
(a)
There shall be 2 basic types of work plans, as follows:
(1) Project-specific work plans, developed for
the performance of work involving a discrete project at a discrete time and
place; and
(2) Generic work plans, developed for the
performance of recurrent types of work that will be undertaken at indeterminate
times and places, including but not limited to utility/transportation projects.
(b)
A project-specific work plan shall be used to establish the work
procedures to be used by persons disturbing asbestos at a specific asbestos
disposal site during a project that is planned in advance of the work actually
taking place.
(c)
A generic work plan shall be used to establish the work procedures to be
used by persons disturbing asbestos during projects that are routinely
undertaken by the responsible party at various locations and at various times
not specifically known at the time the plan is prepared.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3906.03); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2106.04 Project-Specific Work Plans; Content. A project-specific work plan shall include:
(a)
Name, mailing address, email address, daytime telephone number including
area code, and credentials of the qualified individual who prepared the plan;
(b)
Project location and name, mailing address, email address, and daytime
telephone number including area code of each owner;
(c)
Name, mailing address, email address, and daytime telephone number
including area code of the entity or individual responsible for initiating and
undertaking the project, if not the owner(s);
(d)
Project schedule, including the anticipated starting date and completion
date;
(e)
For work plans that include license-required work, the name, mailing
address, email address, daytime telephone number including area code, and ADS
contractor identification information of the qualified ADS contractor, if known
at the time the work plan is submitted;
(f)
If the work plan includes license-exempt work only and will not be done
by a licensed ADS contractor, a statement to that effect;
(g)
If known, the name, mailing address, email address, telephone number
including area code, and ADS worker identification information of the qualified
individual who will be in charge of the work;
(h)
A description of the work to be undertaken, including:
(1) The reason for undertaking the work;
(2) Quantity of asbestos to be disturbed;
(3) Type and general description of asbestos to
be disturbed;
(4) Sequence of tasks, starting with site
preparation pursuant to Env-Sw 2105.08 and ending with the site clearance
determination required by Env-Sw 2105.15;
(5) A description of the procedures and equipment
to be used to control emissions during the excavation, storage, transport, and
ultimate disposal of the asbestos waste, including the methods and procedures
by which the work practices and engineering controls in Env-Sw 2105 will be
met; and
(6) The location of any temporary storage site
and the final disposal site for asbestos excavated or otherwise removed from
the site;
(i)
A scaled plan of the site showing the existing site features and the
proposed work area;
(j)
A scaled plan and related
specifications showing the proposed conditions of the site following completion
of the work, including information that demonstrates the proposed post-project
conditions comply with the cover requirements in Env-Sw 2104.03;
(k)
Provisions for providing project commencement notice pursuant to Env-Sw
2105.07;
(l) A list and status of all other local, state,
or federal permits and other approvals required to implement the plan;
(m)
A statement, signed by the qualified individual who prepared the plan,
certifying that the plan meets all applicable local, state, and federal
requirements for management of asbestos, including but not limited to the
requirements listed in Env-Sw 2101.01(b), as applicable, and this chapter; and
(n)
A signed statement by the applicant, certifying acceptance of the
proposed work plan.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3906.04); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2106.05 Generic Work Plans; Content. A generic work plan for major non-emergency
projects shall include:
(a)
Name, mailing address, email address, daytime telephone number including
area code, and credentials of the qualified individual who prepared the plan;
(b)
Name, mailing address, email address, and daytime telephone number
including area code of the owner, qualified ADS contractor, utility company,
public authority, or other entity or individual who will be authorized to use
the work plan, if it is approved;
(c)
For work plans applicable to license-required work, and if known and
different than (b), above, the name, mailing address, email address, daytime
telephone number including area code, and ADS contractor identification
information of the qualified ADS contractor who will be implementing the plan;
(d)
If known and different than (b) above, the name, mailing address, email
address, daytime telephone number including area code, and ADS worker
identification information of the qualified individual who will be in charge of
the work conducted under the plan;
(e)
A description of the work to be undertaken, including:
(1) The type and scope of work
that the plan is designed to address, for example trenching for underground
utility installation and repair, digging holes to install fencing or utility
poles, excavating to construct foundations, retaining walls, or curbing, or
placing capping materials over exposed asbestos;
(2) The sequence of tasks, starting with site
preparation pursuant to Env-Sw 2105.08 and ending with the site clearance
determination required by Env-Sw 2105.15;
(3) A description of the procedures and equipment
to be used to control emissions during the excavation, storage, transport, and
ultimate disposal of the asbestos waste, including the methods and procedures
by which the work practices and engineering controls in Env-Sw 2105 will be
met; and
(4) The location of any temporary storage site
and the final disposal site for asbestos excavated or otherwise removed from
the site;
(f)
A description of how the site will be left following completion of the
work, including related drawings of the capping system, including the
replacement cover materials and supporting infrastructure in conformance with
Env-Sw 2104.03;
(g)
Provisions for providing project commencement notice pursuant to Env-Sw
2105.07;
(h)
If the entity or individual named pursuant to (b), above, is not the
owner, a statement indicating how the project records will be made available to
the owner to facilitate compliance with RSA 141-E:23, I(d) and Env-Sw
2104.08(c);
(i)
A list and status of all other local, state, or federal permits and
other approvals required to implement the plan, to the extent known;
(j)
A statement, signed by the qualified individual who prepared the plan,
certifying that the plan meets all applicable local, state, and federal
requirements for management of asbestos, including but not limited to the
requirements listed in Env-Sw 2101.01(b), as applicable, and these rules; and
(k)
A statement, signed by the applicant certifying acceptance of the
proposed work plan.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3906.05); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2106.06 Work Plan Submittal, Review, and Approval.
(a)
The applicant for work plan approval shall be as specified in Env-Sw
2106.02(d).
(b)
The applicant shall submit one paper copy and one electronic copy of the
proposed work plan to the department with a signed cover letter that:
(1) Clearly identifies the applicant’s name,
mailing address, email address, and daytime telephone number including area
code; and
(2) Certifies that a copy of the application is
being submitted concurrently to the local health officer.
(c)
The department shall review a proposed work plan in accordance with RSA
541-A:29.
(d)
Subject to (e), below, if the department determines that the work plan
does not satisfy the work practices and engineering controls in Env-Sw 2105, the
work plan clarity and specificity requirements in Env-Sw 2106.02(b), other
requirements in this chapter, or RSA 141-E, the department shall so notify the
applicant and provide an opportunity for the applicant to correct the
deficiencies.
(e)
If no deficiencies are noted or the deficiencies are correctable by
issuing a conditional approval, the department shall approve the work plan with
or without conditions as appropriate and so notify the applicant in writing.
(f)
The department shall provide a copy of the work plan approval to the
local health officer.
(g)
Work plan approval shall not be construed in any way as:
(1) An authorization of any activity that
occurred prior to the effective date of the approval;
(2) An authorization of any activity that does
not comply with the requirements of RSA 141-E or this chapter that have not
been waived pursuant to Env-Sw 2103;
(3) An authorization of any activity that is not
in compliance with other applicable federal, state, or local requirements, including
the requirements identified in Env-Sw 2101.01(b);
(4) A waiver of any cause of action for
violations predating approval; or
(5) A waiver of any obligation to obtain all
requisite local, state, and federal permits or approvals for the proposed activities.
(h)
Approval of a work plan shall not be construed so as to allow
non-compliance with any other applicable federal, state, and local requirements
for asbestos management and control, including, but not limited to the
requirements identified in Env-Sw 2101.01(b).
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3906.06); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2106.07 Obligation to Update Generic Work Plans.
(a)
The individual or entity who obtains approval of a generic work plan
shall ensure that the work plan remains relevant and in compliance with current
requirements.
(b)
If a generic work plan is no longer relevant or does not comply with
current requirements, or both, the individual or entity who obtained approval
of the plan shall discontinue any work being done under the plan and either:
(1) Prior to undertaking any additional work that
would be covered by the plan, submit and obtain approval for a plan that meets
current requirements and contains all information required by Env-Sw 2106.05;
or
(2) Notify the department that no future work
will be conducted under the work plan and voluntarily surrender the approval.
Source.
#12605, eff 9-1-18
PART Env-Sw 2107 SUSPENSION AND REVOCATION
Env-Sw 2107.01 Procedure.
(a)
Revocation or suspension of any approval issued pursuant to this chapter
shall proceed in accordance with RSA 541-A:30 and the provisions of Env-C 200
that apply to adjudicative proceedings.
(b)
The department shall revoke an approval if:
(1) Good cause as described in Env-Sw 2107.02
exists; and
(2) There are no circumstances under which the
holder of the approval can correct or eliminate the underlying problem.
(c)
The department shall suspend an approval if:
(1) Good cause as described in Env-Sw 2107.02
exists; and
(2) Given time to
do so, the holder of the approval can correct or eliminate the underlying
problem.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3907.01); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Env-Sw 2107.02 Good Cause. The following shall constitute good cause to
suspend or revoke an approval issued pursuant to this chapter:
(a)
The approval was issued based on false, incomplete, or misleading
information and the approval would not have been issued if true, complete, and
not misleading information had been provided;
(b)
The terms and conditions of the approval are not being met; or
(c)
The approved activity, once implemented, fails to meet the criteria for
having issued the approval.
Source. #7647, eff 2-16-02 (See Revision Note at
chapter heading for Env-Sw 2100) (formerly Env-Wm 3907.02); ss by #9645, eff
2-16-10; ss by #12605, eff 9-1-18
Appendix A: State Statutes, Federal Regulations
Implemented
Rule Sections |
Statute(s) Being Implemented |
Env-Sw 2100 (see
also specific part listed below) |
RSA 141-E:21-24 |
Env-Sw 2103 |
RSA 541-A:22, IV |
Appendix B: Documents Incorporated by Reference
Rule |
Title (Date) |
Obtain at: |
|
Occupational
Safety and Health Guidance Manual for Hazardous Waste Site Activities, NIOSH
publication No. 85-115, (1985) |
U.S. Department
of Labor Occupational
Safety & Health Admin. Download at no
charge from: https://www.osha.gov/Publications/complinks/OSHG-HazWaste/4agency.html OR https://www.cdc.gov/niosh/docs/85-115/pdfs/85-115.pdf?id=10.26616/NIOSHPUB85115 |
Env-Sw
2105.09(b) |
Chapter 9 |
|
Env-Sw
2105.14(b) |
Chapter 10 |
Appendix C: Statutory Definitions
RSA 141-E:2
I. “Asbestos'” means amosite,
chrysotile, crocidolite, or asbestiform tremolite, actinolite, or
anthophyllite.
III. “Asbestos disposal site'” means
land where asbestos waste exists, either in or on the ground, due to dumping
activities which ceased by July 10, 1981. The term includes inactive disposal
sites as defined by 40 CFR 61.141. The term does not include any disposal site
which is subject to the permitting requirements of RSA 149-M.
IV. “Contractor'” means any
partnership, firm, association, corporation, or sole proprietorship which
engages in asbestos abatement activities and/or activities involving the
disturbance of asbestos at asbestos disposal sites.