DEP memo on building owner asbestos testing results, March 2002

NYC 9/11 Public Portal Document

f necessary to the matter under consideration.” (Id.).

Interfering with or obstructing the Commissioner in carrying out any duty under the Air Code is prohibited (Ad. Code 24-111). However, enforcement of this provision, along with the other provisions of the Air Code, seems to be confined to the NOV process, through the Environmental Control Board.

2. Spill Bill. By way of contrast, it strikes me that the Spill Bill offers a more direct route to compelling production of the test results.

A “hazardous substance” includes all hazardous substances listed under Ad. Code 24- 609. The 24-609 list developed by DEP appears in our Spill Bill regulations at 15 RCNY Sect. 11-04(d). That list includes “asbestos”, “asbestos, anthophylite”, “asbestos, chrysolite”, “asbestos, crocodolite”, “asbestos, tremolite”, “asbestos, actinolite”, and “asbestos, amosite”. (Id.). The Spill Bill provides that when the DEP Commissioner

has reason to believe that there has been or there exists a substantial threat of a release into the environment of a hazardous substance which may present an immediate and substantial danger to public health or welfare or the environment, the commissioner may, in his or her discretion, order any or all responsible persons to implement any response measures, or to cooperate with and assist the commissioner in implementing any response measures, deemed by the commissioner to be necessary to protect the public health or welfare or the environment.... (Ad. Code 24-608(a)) (emphasis added).

It further provides that the DEP Commissioner “may ... order the production of documents relevant for determining the nature and extent of the release or threat of release.” (Id.) (emphasis added).

A “release” is defined as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment.” (Ad. Code 24-603(e)). A “responsible person” includes “[an] owner... of property at the time there is a release, or a substantial threat of a release, of a hazardous substance from such property into the environment...... ” (Ad. Code 24-603(g)(l)).

Given the foregoing, and in light of the ongoing public concern about air quality downtown and the presence or absence of asbestos in the downtown area, I believe it would be reasonable for the Commissioner to issue an order directing disclosure of the results of tests ordered by downtown building owners to help determine

1) whether there is asbestos present on the outside or inside of the buildings in question;

2

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