Official Site of The State of New Jersey

N.J.S.A. 34:5A-32 et seq. ASBESTOS SERVICES
34:5A-32. Legislative findings

The legislature finds that the application, enclosure, removal and encapsulation of asbestos when improperly performed creates unnecessary health and safety hazards which are detrimental to the State's interest in protecting the health, safety, and welfare of all citizens thereby exposed to such asbestos hazards.

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34:5A-33. Legislative declarations

The legislature declares it to be its purpose and policy to reduce asbestos-related hazards by:

a. Encouraging contracting parties, citizens and insurance companies in their efforts to reduce disabling asbestos hazards and to stimulate initiation of new and to perfect existing programs for controlling the application, use and removal of asbestos, an extremely dangerous substance;

b. Creating a climate for developing innovative methods, techniques and approaches for dealing with life-destroying asbestos materials;

c. Encouraging competence and knowledge in the field of asbestos application, enclosure, repair, removal, an encapsulation by the licensing of employers, including contractors, and the permitting of employees in an effort to ensure that incompetent work will not pose a health and safety threat to the public-at-large through subsequent exposure to asbestos;

d. Providing for the adoption of standards for the application, enclosure, removal, encapsulation, storage, sale, disposal and use of asbestos and asbestos-containing material; and

e. Establishing an enforcement program for these standards, which shall include reporting procedures.

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34:5A-34. Definitions

As used in this act:

a. "Asbestos" means the asbestiform varieties of chrysotile (serpentine); crocidolite (riebeckite); amosite (cummingtonitegrunerite); anthophyllite; termolite; and actinolite;

b. "Asbestos-containing material" means any material which contains more than 1% asbestos by weight;

c. "Employee" means any person suffered or permitted to work by an employer;

d. "Employer" means a body, board, person, corporation, partnership, proprietorship, joint venture, fund, authority or similar entity employing, permitting or suffering another to work. In the case of a corporation, the officers of the corporation and any agents having the management of the corporation shall be deemed to be employers of the employees of the corporation for the purposes of this act. This term shall apply to private employers and to the State, its political subdivisions, and any boards, commissions, schools, institutions, or authorities created or recognized thereby;

e. "Friable" means asbestos-containing material that when dry may be crumbled, pulverized or reduced to powder by hand pressure, and includes previously nonfriable asbestos-containing material after that material becomes damaged to the extent that when dry it may be crumbled, pulverized or reduced to powder by hand pressure.

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34:5A-35. Contracts for application, enclosure, removal or encapsulation of asbestos; licensure of contractors

Any private or public agency letting contracts for any activity involving the application, enclosure, repair, removal or encapsulation of asbestos in any structure for which a license is required shall include in these contracts specifications that these contracts are to be performed by contractors and subcontractors licensed by the Commissioner of Labor.

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34:5A-36. Licenses; requirements; posting

No employer shall either directly or indirectly perform any of the functions of application, enclosure, removal, or encapsulation of asbestos in any structure, nor enter into any contract with the owner or the owner's representative for the employer to perform such work or services, without first obtaining a nontransferable license from the Commissioner of Labor, except private employers subject to the federal occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) who use their own employees to apply, enclose, remove, repair, or encapsulate asbestos in their own facility, or as otherwise exempted pursuant to section 7 of P.L.1994, c. 21 (C. 34:5A-43).

This license shall be in writing, shall be dated when issued, shall contain an expiration date, and shall be signed by the commissioner. The commissioner may issue employer licenses with such conditions as the commissioner deems necessary, and as adopted by regulation, specifying the scope of work authorized by such license. No license shall be issued by the commissioner unless the employer has completed a course of training certified by, and satisfactorily has completed an examination approved by, and satisfactorily has completed an examination approved by, the Department of Health. The license shall give the name and address of the employer to whom it is issued. Licensed employers shall post a sign indicating, in letters more than four inches in height, "LICENSED BY THE STATE OF NEW JERSEY FOR ASBESTOS WORK," readily visible outdoors at the work site. The actual license shall be readily available at the work site for inspection by representatives of the Commissioners of Labor and Health and the contracting agency.

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34:5A-37. Employees; performance permit; training course

Every employee performing functions of application, enclosure, repair, removal, or encapsulation of asbestos, with the exception of employees of an employer subject to the federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) applying, enclosing, repairing, removing, or encapsulating asbestos at the employer's own facility, or as otherwise exempted pursuant to section 7 of P.L.1994, c. 21 (C. 34:5A-43), shall first procure from the Commissioner of Labor a performance permit. No permit shall be issued unless the employee has taken a course of training in asbestos control and removal, passed an examination thereon, and demonstrated the ability to perform asbestos control and removal safely, in accordance with the current state-of-the-art technology. The Commissioner of Health shall certify the course of training and approve the examination necessary for a permit. This permit shall be in writing, shall be dated when issued, shall contain an expiration date, and shall be signed by the Commissioner of Labor. It shall give the name and address of the employee to whom it is issued. The permit shall be carried upon the worker's person and be readily available for inspection by representatives of the Commissioners of Labor and Health and the contracting agency. The Commissioner of Labor may place reasonable conditions on employee permits which specify the scope of work authorized by such permit.

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34:5A-38. Licenses and permits; issuance; fees; duration

Beginning not later than one year following the effective date of this act, licenses and permits shall be issued by the Commissioner of Labor or his designee, and shall be valid for 12 months, in accordance with regulations promulgated under provisions of the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.). The Commissioner of Labor shall, in accordance with fee schedules adopted by regulation, establish, charge, and collect reasonable annual fees for licenses and permits. There shall annually be appropriated an amount equivalent to the amount anticipated to be collected by the Department of Labor pursuant to the provisions of this act and that amount shall be applied to enforcement and administration costs of the Division of Workplace Standards in the Department of Labor. The Commissioner of Health shall, in accordance with fee schedules adopted by regulation, establish, charge, and collect reasonable annual fees for the certification of all training agencies administering training courses and for the administration of all examinations required by this act. There shall annually be appropriated an amount equivalent to the amount anticipated to be collected by the Department of Health for the administration of the training and examination programs certified or approved by the department.

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34:5A-39. Standards and regulations

Not later than six months after the effective date of this act, the Commissioners of Labor and Health jointly shall, in consultation with the Commissioner of Environmental Protection, adopt all standards and regulations which they deem necessary for the proper administration and enforcement of this act. These standards and regulations shall include, but shall not be limited to, protective equipment specifications; application, enclosure, removal, and encapsulation procedures; administrative penalties; waste disposal; self-monitoring; cleanup; health checkup; license and permit issuance, suspension, renewal and revocation; fee charges; experience necessary for license or permit qualification; general subject matter of qualifying examinations; and continuing education. Any suspension, revocation, or refusal to renew any permit or license pursuant to this act shall be effectuated as follows: the department that is responsible for the issuance of the permit or license may suspend, revoke, or refuse to renew any license or permit because of a violation of any provision of this act. Prior to that suspension, revocation, or failure to renew, the department shall afford the applicant, licensee, or permit holder an opportunity for a hearing in accordance with the provisions of the "Administrative Procedure Act" P.L. 1968, c. 410 (C. 52:14B-1 et seq.), except that, if the department has reason to believe that a condition exists at a job site which poses an imminent threat to the public health, safety or welfare, it may order the immediate suspension of the license, permit, or certification pending outcome of the hearing.

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34:5A-40. Enforcement of asbestos act; order of abatement; injunction or restraining order; assessment of costs and civil administrative penalty

This act, and its standards and regulations, shall be enforced by the Commissioners of Labor and Health, who have the right-of-entry to all pertinent premises and records for purposes of inspection and information. Both commissioners may employ the following powers and remedies in enforcing their respective responsibilities under this act:

a. Whenever either commissioner finds that a person has violated any provision of this act for which that commissioner has the responsibility of enforcement, that commissioner may issue an administrative order specifying the provision or provisions of the act which the person has violated, ordering abatement of the violation and giving notice of the person's right to a hearing on the matters contained in that order. The person shall have 10 calendar days from receipt of the order within which to deliver to the commissioner a written request for a hearing. After the hearing, and upon finding that a violation has occurred, the commissioner may issue a final order. If no hearing is requested, the order shall become final upon expiration of the 10-day period. A request for a hearing shall not automatically stay the effect of an administrative order. A stay of an administrative order may only be granted by the commissioner upon a written request and a factual basis clearly supporting the appropriateness of the stay.

b. Either commissioner may institute an action or proceeding in the Superior Court for injunctive or other relief for any violation of this act for which that commissioner has the responsibility of enforcement and the court may proceed in the action in a summary manner. In the proceeding, the relief may restrain any violation or compel the taking of any action required pursuant to this act, and the court may grant temporary or interlocutory relief. The relief may include, singularly or in combination;

(1) A temporary or permanent restraining order or injunctive relief;

(2) Assessment of the violator for the costs of any investigation or inspection leading to the establishment of the violation and for the reasonable costs of preparing and litigating the case; and

(3) Assessment of the violator for the costs incurred by the State in correcting or terminating any adverse health and environmental effects resulting from the violation.

c. Either commissioner may assess a civil administrative penalty for any violation of this act for which that commissioner has the responsibility of enforcement not to exceed $25,000 for each violation. Each day during which the violation continues shall constitute an additional, separate and distinct offense. No assessment shall be levied pursuant to this section until after the violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute violated, a concise statement of the facts alleged to constitute a violation, a statement of the amount of civil administrative penalties to be imposed, and a statement of the violator's right to a hearing. The violator shall have 10 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing, and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 10-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount the department determines appropriate. Any penalty imposed pursuant to this section may be recovered with costs in a summary proceeding commenced by the commissioner pursuant to ‘the penalty enforcement law," N.J.S.2A:58-1 et seq.

d. A person who violates an administrative order issued pursuant to subsection a. of this section, or a court order issued pursuant to subsection b. of this section, or who fails to pay in full an administrative assessment pursuant to subsection c. of this section is subject, upon order of court competent jurisdiction, to a civil penalty not to exceed $50,000 per day for such violation.

The pursuit of any of the remedies specified in this section shall not preclude the commissioner from seeking any other remedy.

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34:5A-41. Violations; penalties

Any person who knowingly hinders or delays the Commissioner of Labor or Health and Senior Services or the authorized representative thereof, in the performance of the duty to enforce this act, or knowingly submits false or misleading information on any license or permit application required by this act, or fails to obtain licenses or permits required by the provisions of this act, or refuses to make these licenses or permits accessible to either commissioner, or the authorized representative thereof, or otherwise violates any provision of this act or any regulation adopted under this act, shall, upon conviction, be guilty of a crime of the third degree and, notwithstanding the provisions of N.J.S.2C:43-3, shall be subject to a fine of not more than $25,000 in addition to any other appropriate disposition authorized by subsection b. of N.J.S.2C43-2.

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34:5A-42. Discrimination against complaining employee; penalties

Any employer who discriminates against or otherwise sanctions an employee who complains or cooperates with the Commissioner of Labor or Health, or the designee thereof, in administering this act is a disorderly person and upon conviction is subject to the penalties specified in section 10 of this act.

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34:5A-43. Certification standards; exemptions; annual fees

a. The Commissioner of Health shall, by regulation, adopt standards and other requirements for the certification and training programs and for approving examination for the issuance of licenses or permits pursuant to P.L. 1984, c. 173 (C. 34:5A-32 et seq.).

b. The Commissioner of Health may, by regulation, exempt from the license or permit requirements of P.L. 1984, c. 173 (C. 34:5A-32 et seq.) designated asbestos-related activities should sufficient data indicate that no significant asbestos exposure exists. These exempted activities shall involve non-friable asbestos-containing material that is not rendered friable by the activity.

c. The Department of Health shall, in accordance with fee schedules adopted by regulation, establish, charge, and collect reasonable annual fees for the certification of all training agencies administering training courses and for approving all examinations required by this act. There shall annually be appropriated an amount equivalent to the amount anticipated to be collected by the Department of Health for the administration of the training and examination programs certified or approved by the department.

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34:5A-44. Citizen complaints; procedures

Any person who believes that a violation of this act has occurred may petition the Commissioner of Health or the Commissioner of Labor to bring an enforcement action pursuant to this section. Any citizen complaint filed pursuant to this section shall specify the provision alleged to have been violated, the facts which constitute the alleged violation and the name and address of the citizen lodging the complaint. Upon receipt of a citizen's complaint pursuant to this section, the commissioner who is responsible for enforcement action regarding the violation shall:

a. Give notice of the complaint within 10 calendar days to the person alleged to be in violation;

b. Give notice to the citizen who filed the complaint of the scheduling of an enforcement investigation inspection to investigate the complaint within 30 calendar days of its having been filed;

c. Afford the complaining citizen or his or her representative an opportunity to be present during the enforcement investigation inspection. Public employees who bring complaints shall have the right to accompany the commissioner on an enforcement investigation inspection and shall receive payment of normal wages for time spent during normal working hours on the inspection;

d. Afford the complaining citizen access to all public records regarding the commissioner's investigation; and

e. Render a final decision within 90 calendar days of receipt of a citizen complaint on the appropriate disposition, after investigation, of the citizen's complaint. The decision shall either reference the initiation of an enforcement action or state the factual and legal basis of the decision not to bring an enforcement action.

Public employees bringing a complaint pursuant to this section shall have all protections and rights set forth in section 21 of P.L.1983, c. 516 )C. 34:6A-45).

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Chapter Expiration Date: Chapter 120, Asbestos Licenses and Permits, expires on March 25, 2025.
CHAPTER 120
SUBCHAPTER 1. GENERAL PROVISIONS
12:120-1.1 Title and citation

(a) This chapter, as a Department of Labor and Workforce Development rule, shall be known and may be cited as N.J.A.C. 12:120, Asbestos Licenses and Permits.

(b) This chapter, as a Department of Health and Senior Services rule, shall be known and may be cited as N.J.A.C. 8:60, Asbestos Licenses and Permits.

(c) These rules are a joint adoption of the Department of Labor and Workforce Development and the Department of Health and Senior Services.

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12:120-1.2 Authority

These rules are promulgated pursuant to the authority of the Asbestos Control and Licensing Act, N.J.S.A. 34:5A-32 et seq.

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12:120-1.3 Purpose

(a) The purpose of this chapter is to provide reasonable standards for:

1. Licensing of employers;
2. Permitting of workers;
3. Permitting of supervisors; and
4. Certifying of training agencies and courses for the above job classifications.

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12:120-1.4 Scope

(a) This chapter shall apply to:

1. Licensing of employers;
2. Training, examination and issuance of permits to workers;
3. Training, examination and issuance of permits to supervisors;
4. Certifying of training agencies and courses for the above job classifications;
5. Employers having a contractual relationship for asbestos work with the owner of a building or structure or equipment for the application, enclosure, encapsulation, repair, or removal of asbestos-containing material; and
6. Any public or private building, structure or equipment on which asbestos work is performed, except as provided in (b) below.

(b) This chapter shall not apply to:

1. The limited repair of asbestos-containing material on any pipe, duct, boiler, tank, structural member or similar equipment by the application of duct tape, rewettable glass cloth, canvas, cement or other sealable material to seal exposed areas from which asbestos fibers may be released;
2. The stripping, limited repair, or removal of three feet or less of asbestos-containing material from piping;
3. The stripping, limited repair or removal of three square feet or less of asbestos-containing material from any duct, boiler, tank, structural member, or similar equipment;
4. The sale or storage of asbestos;
5. The application, enclosure, encapsulation, repair, or removal of asbestos-containing roofing and exterior siding materials in all but demolition projects;
6. The licensure of private employers subject to the Federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., using their own employees to apply, enclose, encapsulate, repair or remove asbestos-containing material in their own facility; or
7. The permitting of employees subject to the Federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., who apply, enclose, encapsulate, repair or remove asbestos-containing materials in their employer's own facility.

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12:120-1.5 Documents referred to by reference

The availability of standards and publications referred to in this chapter is set forth at N.J.A.C. 12:120-9 and 8:60-9.

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12:120-1.6 Validity

If any section, paragraph, sentence or word of this chapter is determined to be invalid by any court of competent jurisdiction, such determination shall not affect or impair the validity of the remainder of this chapter.

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SUBCHAPTER 2. DEFINITIONS
12:120-2.1 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Accepted engineering practices" means those practices which conform to accepted principles, tests, or standards of nationally recognized technical or scientific authorities.

"Act" means the Asbestos Control and Licensing Act, N.J.S.A. 34:5A-32 et seq.

"Applicant" means any person seeking to obtain either an asbestos abatement worker permit, an asbestos abatement supervisor permit or an employer license, or an agency seeking certification to conduct asbestos abatement training.

"Approved" means acceptable to the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, as the case may be.

"Asbestos" means the asbestiform varieties of chrysotile; crocidolite; amosite; anthophyllite; tremolite; or actinolite and includes any asbestos-containing material.

"Asbestos-containing material" (ACM) means any material containing more than one percent asbestos which has been applied on any ceiling, wall, duct, boiler, tank, pipe, structural member, or on any other part of a building or equipment.

"Asbestos work" means the application, enclosure, encapsulation, repair, or removal of asbestos-containing material.

"Bulk sample" means a sample of any material taken for identification and quantification of asbestos content, and may include a wide variety of friable and non-friable materials.

"Category I non-friable asbestos-containing material" means asbestos-containing packings, gaskets, resilient floor covering and asphalt materials as defined in 40 CFR Part 61, Subpart M, the National Emission Standard for Hazardous Air Pollutants (NESHAP), incorporated herein by reference, as amended and supplemented.

"Certificant" means any training agency certified by the Department of Health and Senior Services pursuant to N.J.A.C. 8:60-6 and 12:120-6.

"C.F.R." means the Code of Federal Regulations.

"Commissioner" means the Commissioner of Labor and Workforce Development or his or her authorized designee.

"Commissioner of Health and Senior Services" means the Commissioner of Health and Senior Services or his or her authorized designee.

"Contractor" means an employer who hires workers and supervisors to perform asbestos work or who performs the asbestos work directly.

"Control" means to exercise restraint or direction over any activity concerning asbestos for the purpose of reducing the number of airborne asbestos fibers.

"Department of Health and Senior Services" means the Environmental Health Services of the New Jersey Department of Health and Senior Services, PO Box 360, Trenton, N.J. 08625-0360.

"Division of Public Safety and Occupational Safety and Health" means the Division of Public Safety and Occupational Safety and Health of the New Jersey Department of Labor and Workforce Development, PO Box 386, Trenton, New Jersey, 08625-0386.

"Employee" means:

1. Any person, including supervisory personnel, suffered or permitted to work by an employer; or
2. A member of either a board, corporation, partnership, proprietorship, joint venture, fund, authority or similar entity directly performing asbestos work.

"Employer" means a body, board, person, corporation, partnership, proprietorship, joint venture, fund, authority or similar entity employing, permitting or suffering another to work or directly performing the asbestos work. In the case of a corporation, the officers of the corporation and any agents having the management of the corporation shall be deemed to be employers of the employees of the corporation for the purposes of this Act. This term shall apply to private employers and to the State, its political subdivisions and any boards, commissions, schools, institutions or authorities created or recognized thereby. This term also includes contractors and subcontractors.

"Facility" means any building or structure.

"f/cc" means fibers per cubic centimeter.

"Friable" means asbestos-containing material that when dry may be crumbled, pulverized or reduced to powder by hand pressure, and includes previously non-friable asbestos-containing material after that material becomes damaged to the extent that when dry it may be crumbled, pulverized, or reduced to powder by hand pressure.

"Instructor" means any person(s) hired by a training agency and approved by the Department of Health and Senior Services for the purpose of instructing a Department of Health and Senior Services approved asbestos training course.

"Interactive/participatory teaching method" means instruction which consists of active participation of the trainees, such as brainstorming, hands-on training, demonstration and practice, small group problem solving, discussions, problem posing, group work assignments, question and answer periods and role-playing sessions. Lecture is not considered an interactive participatory teaching method.

"License" means a certificate documenting acceptance by the Commissioner of an employer as competent to perform the application, enclosure, encapsulation, repair, or removal of asbestos-containing material and to bid for or to contract to perform such work.

"Limited repair" means the utilization of accepted engineering practices to minimize fiber release to return three linear feet or less or to return three square feet or less of damaged asbestos-containing material on any pipe, duct, boiler, tank, structural member or similar equipment to an undamaged condition or to an intact state by the application of duct tape, rewettable glass cloth, canvas, cement or other sealable material to seal exposed areas from which asbestos fibers may be released.

"May" indicates a discretionary action.

"N.J.A.C." means the New Jersey Administrative Code.

"N.J.S.A." means the New Jersey Statutes Annotated.

"Non-friable organically bound material" or "NOB" refers to a wide variety of non-friable building materials embedded in flexible-to-rigid asphalt or vinyl matrices, which includes, but is not limited to, VAT, mastic, asphalt shingles, roofing materials, paint chips, caulking and glazing.

"PCM" or "phase contrast microscopy" means the scientific method of air sampling analysis for the purpose of determining airborne asbestos fiber concentrations in fibers per cubic centimeter of air (f/cc). This analytical method is to be consistent with the National Institute of Occupational Safety and Health (NIOSH) method 7400 as referenced in the 4th Edition, August 15, 1994 with addenda of the NIOSH Manual of Analytical Methods.

"Permit" means a certificate documenting acceptance by the Commissioner of a worker or a supervisor as competent to perform the application, enclosure, encapsulation, repair, or removal of asbestos-containing material. Workers shall work under the direction of a supervisor who holds a valid New Jersey asbestos supervisor permit.

"Public or private building" means any building, including commercial buildings as defined in 40 C.F.R. Part 763, Appendix C to Subpart E. or as defined in N.J.A.C. 5:23-8.

"Removal" means the taking out or the stripping of asbestos-containing surfacing, thermal, or miscellaneous material from a building or structure. Specifically excluded from this definition are roofing and exterior siding materials in all but demolition projects.

"Repair" means the utilization of recommended work practices to minimize fiber release to return more than three linear feet or more than three square feet of damaged asbestos-containing material on any pipe, duct, boiler, tank, structural member or similar equipment to an undamaged condition or to an intact state by the application of duct tape, rewettable glass cloth, canvas, cement or other sealable material to seal exposed areas from which asbestos fibers may be released.

"Shall" indicates a mandatory requirement.

"Subcontractor" means an employer who hires workers and supervisors to perform asbestos work or who performs asbestos work directly.

"Supervisor" means any person who has completed an asbestos supervisor training course approved by the Department of Health and Senior Services and who has successfully passed a written asbestos supervisor examination devised and administered under the approval of the Department of Health and Senior Services for the position of supervisor and who possesses a valid asbestos supervisor permit issued by the Department of Labor and Workforce Development.

"TEM" or "transmission electron microscopy" means an analytical technique which utilizes an electron microscope for identification and quantitation of asbestos in a sample.

1. For asbestos bulk sample analysis, the analytical procedures for TEM are prescribed in the "Test Method -- Method for the Determination of Asbestos in Bulk Building Materials," EPA/600/R-93/116, July 1993, incorporated herein by reference, as amended and supplemented.
2. For asbestos air sample analysis, the analytical procedures for TEM are prescribed in 40 CFR Part 763, Subpart E, Appendix A to Subpart E --"Interim Transmission Electron Microscopy Analytical Methods -- Mandatory and Non-mandatory -- And Mandatory Section to Determine Completion of Response Actions," incorporated herein by reference, as amended and supplemented.

"Trainee" means any person who is enrolled in an asbestos worker or asbestos supervisor training course approved by the Department of Health and Senior Services.

"Training agency" means a training provider approved or certified by the Department of Health and Senior Services to conduct asbestos training courses.

"Training course" means any asbestos training course approved by the Department of Health and Senior Services in accordance with the requirements of N.J.A.C. 12:120 and 8:60.

"U.S.C." means the United States Code.

"U.S.E.P.A." means the United States Environmental Protection Agency.

"Vinyl asbestos tile" or "VAT" is a term which is widely used in the asbestos analysis and abatement industry to refer to a variety of flooring products such as vinyl or asphalt asbestos floor tiles and resilient floor coverings.

"Worker" means a person who has completed an asbestos worker training course approved by the Department of Health and Senior Services and who has successfully passed a written asbestos worker examination devised and administered under the approval of the Department of Health and Senior Services for the position of worker and who possesses a valid asbestos worker permit issued by the Department of Labor and Workforce Development.

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SUBCHAPTER 3. ADMINISTRATION
12:120-3.1 Scope of subchapter

This subchapter shall apply to the administration of the licensing, permitting and certification standards mandated by this chapter.

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12:120-3.2 Compliance

(a) Every employer falling within the scope of this chapter, who performs any of the functions of application, enclosure, repair, removal or encapsulation of asbestos in any structure, or who enters into any contract with the owner or owner's representative for the employer to perform such work or services, shall comply with the provisions of this chapter and shall be issued a nontransferable license by the Commissioner of Labor and Workforce Development.

(b) For the purpose of determining under (a) above whether an employer is performing any of the functions of application, enclosure, repair, removal or encapsulation of asbestos in any structure, or entering into any contract with the owner or owner's representative for the employer to perform such work and, therefore, whether the employer is required to comply with the provisions of this chapter and be issued a nontransferable license by the Commissioner of Labor and Workforce Development, the Department of Labor and Workforce Development and the Department of Health and Senior Services shall analyze all bulk samples obtained to determine the presence of asbestos utilizing the "Test Method -- Method for the Determination of Asbestos in Bulk Building Materials," EPA/600/R-93/116, July 1993, incorporated herein by reference, as amended and supplemented.

1. The Department of Labor and Workforce Development and the Department of Health and Senior Services shall analyze Category I non-friable asbestos containing material and other non-friable organically bound material utilizing the "Test Method -- Method for the Determination of Asbestos in Bulk Building Materials," EPA/600/R-93/116, July 1993, in the manner prescribed within the Appendix to this chapter.

(c) Every employee falling within the scope of this chapter who performs the functions of application, enclosure, repair, removal or encapsulation of asbestos shall procure a performance permit issued by the Commissioner of Labor and Workforce Development pursuant to this chapter.

(d) Every employer and employee shall take all prudent measures to comply with written recommendations made by the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, as the case may be.

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12:120-3.3 Interface of State agencies

(a) The Department of Labor and Workforce Development, under the provisions of this chapter, shall:

1. Issue licenses to qualified employers;
2. Issue permits to qualified workers;
3. Issue permits to qualified supervisors;
4. Collect the fees for licenses and permits;
5. Determine that employers have a valid license; and
6. Determine that workers and supervisors have valid permits.

(b) The Department of Health and Senior Services, under the provisions of this chapter, shall:

1. Certify training agencies which use Department of Health and Senior Services-approved courses to train workers and supervisors and to determine compliance by such training agencies with this chapter;
2. Certify the course of training for workers and supervisors;
3. Have the authority to develop, approve and administer examinations for workers and supervisors;
4. Collect fees for the certification of training courses and the administration of examinations;
5. Have the authority to determine that an employer has a valid license; and
6. Have the authority to determine that workers and supervisors have valid permits.

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12:120-3.4 Enforcement

(a) In accordance with N.J.S.A. 34:5A-41, any person who violates a provision of this chapter shall, upon conviction, be guilty of a crime of the third degree and, notwithstanding the provisions of N.J.S.A. 2C:43-3, shall be subject to a fine of not more than $25,000 in addition to any other appropriate disposition authorized by subsection b of N.J.S.A. 2C:43-2.

(b) The Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, as the case may be, as an alternative to or in addition to the fines and imprisonment authorized in (a) above, may employ the following powers and remedies in enforcing their respective responsibilities under the Act:

1. Whenever either the Commissioner of Labor and Workforce Development or Health and Senior Services find that a person has violated any provision of the Act for which that Commissioner has the responsibility to enforce, that Commissioner may issue an administrative order to abate the violation. The administrative order must:

i. Specify the provisions of the Act which the person has violated;

ii. Give notice of the person's right to an informal conference or hearing pursuant to N.J.A.C. 12:120-8 and 8:60-8, on the matters contained in the order. Upon a request for an informal conference or formal hearing, the Commissioner of Labor and Workforce Development or Health and Senior Services may grant a stay of the administrative order following review of a written request which includes a factual basis and clearly supports the appropriateness of the stay.

2. Either the Commissioner of Labor and Workforce Development or Health and Senior Services may institute an action or proceeding in the Superior Court for injunctive or other relief for any violation of this Act for which the Commissioner has the responsibility to enforce and the court may proceed in the action in a summary manner.

(c) Either the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services may assess a civil administrative penalty in accordance with N.J.A.C. 12:120-3.5 and 8:60-3.5, not to exceed $25,000 for each violation of this Act for which that Commissioner has the responsibility to enforce.

1. Each day during which the violation continues shall constitute an additional, separate and distinct offense.

2.  The assessment of a civil administrative penalty shall not be levied until after the alleged violator has been notified by certified mail or personal service. The notice of assessment shall include:

i. A reference to the section of the statute violated;

ii. A concise statement of the facts alleged to constitute a violation;

iii. A statement of the amount of civil administrative penalties to be imposed; and

iv. A statement of the alleged violator's right to an informal conference or formal hearing pursuant to N.J.A.C. 12:120-8 et seq. and 8:60-8 et seq.

3. Either Department may negotiate the amount of a civil administrative penalty as it deems appropriate.

4. Payment of the assessment of a civil administrative penalty is due upon issuance of a final order by the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services.

5. The Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services may file a civil action to recover a civil administrative penalty with costs pursuant to the Penalty Enforcement Law, N.J.S.A. 2A:58-1 et seq.

(d) A person who violates an administrative order issued pursuant to subsection (b)1 above, or who violates a court order issued pursuant to subsection (b)2 above, or who fails to pay in full an administrative assessment pursuant to subsection (c) above, shall be subject, upon court order, to a civil penalty not to exceed $50,000 per day for such violation.

(e) The pursuit of any of the remedies specified in this section shall not preclude either Commissioner from seeking any other remedy.

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12:120-3.5 Civil administrative penalties

(a) Employers, training agencies and instructors may be assessed civil administrative penalties not to exceed $25,000 for each violation of the Act or this chapter, including, but not limited to:

1. Performing as an employer without a license;
2. Allowing an employee to work without a permit;
3. Submitting false information on the application for a license;
4. Submitting false information on the application for a course certification or instructor approval;
5. Performing as a training agency without certification;
6. Failure to meet license performance standards when performing asbestos abatement work;
7. Failure to perform quality asbestos training;
8. Submitting false information on training records;
9. Failure to fulfill notification requirements pursuant to N.J.A.C. 12:120-7 and 8:60-7;
10. Other violations of the Act or this chapter.

(b) Workers, supervisors, and trainees may be assessed civil administrative penalties not to exceed $25,000 for each violation of the Act or this chapter, including, but not limited to:

1. Working as an employee without a permit;
2. Submitting false information on the application for a permit;
3. Submitting false information on the application for an examination;
4. Submitting false information to gain entrance into an examination;
5. Using fraudulent means during the taking of an examination;
6. Using fraudulent means to pass an examination;
7. Tampering with, altering, or defacing a permit;
8. Submitting false information on training records;
9. Other violations of the Act or this chapter;

(c) In assessing a civil administrative penalty pursuant to this chapter, the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, as the case may be, may consider the following factors, where applicable, in determining what constitutes an appropriate penalty for the particular violations:

1. Degree of hazard posed to human health and the environment;
2. Degree of harm posed to the proper administration of the licensing/permitting program;
3. Category of culpability evidenced by the violator's action, including knowing action, reckless action, or negligent action;

i. In determining culpability, ignorance of any legal requirement of the Act or this chapter shall constitute a negligent action unless the legal requirement is one of which the violator has constructive notice, in which case the violator's action shall be classified as reckless;

ii. Actual notice of the legal requirement of the Act or this chapter shall constitute a finding of knowing action;

1. Past history of compliance on the part of the violator;
2. Economic benefit which the violator accrues as a result of the violation; and
3. Cooperation of the violator in correcting the violation.

(d) In addition to other sanctions in the Act or this chapter, the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, as the case may be, shall have the authority to require:

1. The immediate correction of any violation;
2. The removal of the employer from the job site within the meaning and purposes of the Act;
3. The removal of any worker from the job site within the meaning and purposes of the Act;
4. The removal of any supervisor from the job site within the meaning and purposes of the Act; and
5. The removal of any instructor from the training course within the meaning and purposes of the Act.

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12:120-3.6 (Reserved)

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SUBCHAPTER 4. LICENSING OF EMPLOYERS
12:120-4.1 Scope of subchapter

This subchapter shall apply to the procedures required to obtain or to renew a license as an employer.

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12:120-4.2 Exempted activities

(a) The Commissioner of Health and Senior Services may exempt from the license requirements those designated asbestos-related activities based on sufficient data which indicates that no significant exposure exists to perform such activity. Such data shall be submitted to the Commissioner of Health and Senior Services for review at least 10 calendar days prior to the beginning of such work.

(b) These exempted activities involve non-friable asbestos containing material that is not rendered friable by the activity.

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12:120-4.3 Application for license

(a) The application for an employer license shall be made on forms provided by the Division of Public Safety and Occupational Safety and Health.

(b) The application for an employer license shall be typewritten or neatly and legibly printed in ink.

(c) All applications shall be carefully completed.

(d) Where applicable, applicants shall furnish evidence of applicable full time asbestos work experience as an employer. This experience shall have been completed within five years of the filing of the application. This experience shall be listed by job name, location, time involved, and cost of the contract.

(e) No license shall be granted to an employer:

1. If the employer is less than 21 years of age;
2. If the employer has been found to be in non-compliance with N.J.A.C. 12:120-3.2 and 8:60-3.2; or
3. If the employer is unable or unwilling to comply with N.J.A.C. 12:120-4.4 and 8:60-4.4 within one year of the date of receipt of the application by the Division of Public Safety and Occupational Safety and Health.

(f) All correspondence relative to applications for licenses shall be addressed to the Division of Public Safety and Occupational Safety and Health.

(g) The Division of Public Safety and Occupational Safety and Health shall be notified by the employer of any change of business and/or home residence. When writing, the license number shall be specified.

(h) The application fee for an annual license shall be $2,000. The fee for the issuance of a duplicate license shall be $200.00. The Commissioner may, by amendment to this section, reduce these fees based on a decrease in program costs.

(i) The application fee for an annual license shall accompany the application and is nonrefundable.

(j) The application fee for a license shall be paid by certified check or money order made payable to the Commissioner of Labor and Workforce Development.

(k) No liability shall be assumed by the Division of Public Safety and Occupational Safety and Health for loss in the transmission of the application fee.

(l) Applicants denied licenses shall not be permitted to resubmit an application for one year from the date of the denial of the application.

(m) Upon written request from the applicant, the Commissioner of Labor and Workforce Development may, at his or her discretion, waive the fees for licensing identified in (h) above.

1. The written request for waiver must identify that the applicant will suffer significant economic or financial hardship if the waiver is not granted.

i. The economic or financial hardship which will be suffered may not be the result of losses incurred by the applicant as a result of Federal, State or other governmental administrative disciplinary or regulatory action.

2. The granting of a waiver from the fees for licensing shall have no bearing on the applicant's eligibility for a license.

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12:120-4.4 Eligibility for employer license

(a) The applicant, to be eligible for a license as an employer, shall:

1. Provide evidence of having successfully completed the training course and pass the written examination for asbestos abatement supervisors devised and administered under the approval of the Department of Health and Senior Services as set forth at N.J.A.C. 12:120-6.2 and 8:60-6.2;
2. Have employed with the firm a job supervisor who holds a valid New Jersey asbestos supervisor permit; and
3. Disclose in and attach to the application form all information including, but not limited to, (a)4i through x below and such other information as shall demonstrate the applicant's reliability, responsibility, capability, competence, and knowledge to perform asbestos work safely and to minimize unnecessary health hazards to citizens:

i. A copy of the employer's certificate of insurance specifying the name of the insurance carrier, policy number, policy period under which the entire New Jersey Workers' Compensation obligation is insured, and which specifies both the New Jersey Department of Labor and Workforce Development, Asbestos Control and Licensing, and the New Jersey Department of Health and Senior Services, Environmental Health Services, as certificate holders of the insured;

ii. A listing of respiratory protective equipment including serial numbers and proof of purchase;

iii. A list of all other equipment and its location specific to asbestos abatement including serial numbers and proof of purchase;

iv. Any and all citations of violations issued by the Occupational Safety and Health Administration;

v. Any and all citations of violations issued by the Environmental Protection Agency;

vi. Any previous and pending civil litigation;

vii. Any previous and pending criminal litigation;

viii. Any previous and pending litigation pertaining to other State, Federal, local laws or regulations or both;

ix. A list of all public and private asbestos abatement projects performed within the past five years; and

x. A copy of the employer's standard operating procedures which demonstrate capability, competence and knowledge. Such policies and procedures should include, but are not limited to, respiratory protection and usage, personal protective equipment, engineering methods and controls, waste handling and disposal, decontamination, safety considerations and emergency procedures, and detailed abatement procedures for specific asbestos-containing materials.

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12:120-4.5 Granting of employer license

(a) A license shall be granted in accordance with (b) below, when an employer can comply with N.J.A.C. 12:120-4.4 and 8:60-4.4.

(b) The license for an employer shall:

1. Be in writing;
2. Contain the date of issuance;
3. Contain the date of expiration;
4. Contain the name and address of the employer to whom it is issued;
5. Be valid for one year from the date of issuance;
6. Be signed by the Commissioner of Labor and Workforce Development or his or her designee; and
7. Be nontransferable.
8. A transfer includes, but is not limited to, the sale of stock in the form of a statutory merger or consolidation, the sale of the controlling shares of the assets, the conveyance of real property, the dissolution of corporate identity, and the financial reorganization and initiation of bankruptcy proceedings.
   ii. The Commissioner shall reasonably have the right to examine and review all pertinent employer records relating to ownership to facilitate determinations on transfers.

(c) The license shall be issued by the Commissioner as:

1. An "A" license granting approval to the employer to perform any type of asbestos work.
2. A "B" license granting approval to the employer to remove asbestos-containing material from mechanical systems, such as pipes, boilers, ducts, flues, or breeching.

(d) The Commissioner may issue employer licenses with such conditions as the Commissioner deems necessary, and as adopted by regulation, specifying the scope of work authorized by such licenses.

(e) The Commissioner shall not grant a license unless the employer has certified that the employer's supervisor has completed a training course and examination certified and approved by the Department of Health and Senior Services.

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12:120-4.6 Identification of licensee

(a) The license shall be available at the worksite for examination by the Commissioner of Labor and Workforce Development, Commissioner of Health and Senior Services, the contracting agency, and the owner or the owner's representative.
 
(b) A sign meeting the requirements of this subsection shall be posted and displayed outdoors at the worksite.

1. The sign shall be readily visible; and
2. The sign shall contain the following information in letters not less than four inches in height: "LICENSED BY THE STATE OF NEW JERSEY FOR ASBESTOS WORK-LICENSE NUMBER ______________________".

(c) All vehicles in use commercially by an employer performing the functions of application, enclosure, encapsulation, repair, or removal of asbestos-containing material shall be visibly marked with the employer's New Jersey Department of Labor and Workforce Development-issued license number.

(d) The employer shall have a New Jersey Department of Labor and Workforce Development-issued duplicate of the original license available at each job site.

(e) All business correspondence shall display the employer's license number.

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12:120-4.7 License performance standards

(a) Every licensee shall ensure that all asbestos work performed conforms to those license performance standards as identified at N.J.A.C. 12:120-4.4(a) 3 and 8:60-4.4(a)3, including, but not limited to, the following:

1. Accepted engineering practices which protect human health and the environment;
2. Compliance with 40 C.F.R. Part 61, National Emission Standards for Hazardous Air Pollutants, Subparts A and M;
3. Compliance with N.J.A.C. 7:26, Non-Hazardous Waste Regulations; and
4. Compliance with N.J.A.C. 5:23-8, Asbestos Hazard Abatement Subcode of the Uniform Construction Code in educational facilities and public buildings as defined at N.J.A.C. 5:23-8.2.

(b) Every licensee who performs asbestos work shall ensure that a permitted supervisor is on-site throughout the course of the project.

1. The permitted supervisor and licensee shall be responsible for ensuring that the asbestos work is performed in accordance with the provisions of this section through periodic visual inspections and immediate correction of problems.

(c) Every licensee shall provide for a final inspection upon completion of the project.

1. This final inspection shall include a thorough visual inspection of the work site and clearance air monitoring. A sufficient number of air samples shall be taken to be representative of the work area.

i. For abatement actions less than or equal to 160 square feet, or less than or equal to 260 linear feet, clearance air samples may be analyzed by PCM. The clearance air samples shall be considered acceptable when each of the samples analyzed indicates a fiber concentration of less than or equal to 0.01 f/cc of air.

ii. For abatement actions greater than or equal to 160 square feet, or greater than or equal to 260 linear feet, clearance air sampling shall be conducted by TEM in accordance with 40 C.F.R. 763.90(i)(3) and (4).

(d) Every licensee shall be responsible for immediately having corrected at no additional charge to the customer, any violation of the standards of (a) above discovered in the work performed by the licensee.

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12:120-4.8 Suspension or revocation of employer license

(a) Any employer may have his license suspended or revoked for:

1. Incompetence;
2. Negligence;
3. Failure to comply with contract specifications; or
4. Any violation of the Asbestos Control and Licensing Act, N.J.S.A. 34:5A-32 et seq. or this chapter.

(b) Any employer shall have his or her license suspended or revoked for:

1. Loaning, abandoning, or allowing the license to pass from his personal control;
2. Debarment under the Act or any other State law;
3. Any valid reason establishing that the licensee is unfit to hold a license;
4. Any good cause within the meaning and purposes of the Act;
5. Any violation of N.J.A.C. 12:120 and 8:60 found to be of an extreme nature, taking into account the considerations, where appropriate, specified at N.J.A.C. 8:60-3.5(c) and 12:120-3.5(c); or
6. Any violation of an administrative order lawfully issued by the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services as the case may be.

(c) Any employer who has his license suspended or revoked pursuant to this section shall not perform asbestos work, including any work which is in progress, any work for which bids are in, or any work which has been contracted for until such license is restored by the Department.

(d) The Commissioner shall suspend a license for violations of this section of this subchapter provided that:

1. Written or oral notice of the violations is provided to the employer; and
2. The employer has the opportunity to respond to the charges.

(e) All employer licenses shall expire one year from the date of issuance.

(f) A license shall be automatically cancelled on the date of its expiration. Any person performing the duties of a licensee and holding an expired license shall be subject to the penalty provisions of the Act.

(g) Any person using fraudulent means to obtain a license shall be subject to prosecution under the Act. Any license acquired through such means shall be invalid.

(h) In all cases where the Commissioner of Labor and Workforce Development proposes to revoke or suspend a license, or denies an application for a license, the employer shall have the right to an informal conference or formal hearing, or both, pursuant to N.J.A.C. 12:120-8.

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12:120-4.9 Renewal of employer license

(a) The application for renewal of a license shall be submitted at least 30 days prior to the date of expiration. When the application for renewal of a license is submitted within the required time period, the license may continue in effect until the Commissioner renders a determination regarding the application.

(b) The license shall be renewed annually.

(c) The application fee for renewal of a license shall be the same as the application fee charged for an initial license under N.J.A.C. 12:120-4.3(h) and 8:60-4.3(h).

(d) The application fee for renewal of a license shall accompany the application and is non-refundable.

(e) The application fee for renewal of a license shall be paid by certified check or money order made payable to the Commissioner of Labor and Workforce Development.

(f) No liability shall be assumed by the Division of Public Safety and Occupational Safety and Health for loss in transmission of the application fee for renewal of a license.

(g) An application for renewal of a license shall not be approved until all outstanding penalties lawfully imposed on the applicant under the Act or this chapter have been paid.

(h) An application for renewal of a license that has expired shall be treated as an original application.

(i) The replacement cost of a license which has been altered, defaced, mutilated, or lost shall be the same as the fee charged for the issuance of a duplicate license under N.J.A.C. 12:120-4.3(h) and 8:60-4.3(h). Replacement shall be made only after review by the Commissioner.

(j) Photostats, photographs, or reproductions of a license shall have no status and shall not be recognized.

(k) In all cases where the Commissioner refuses to renew a license, the employer shall have the right to an informal conference or formal hearing, or both, pursuant to N.J.A.C. 12:120-8.

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SUBCHAPTER 5. REQUIREMENTS AND PROCEDURES FOR OBTAINING AN ASBESTOS WORKER OR AN ASBESTOS SUPERVISOR PERMIT
12:120-5.1 Scope of subchapter

This subchapter shall apply to each person applying for or renewing either an asbestos worker permit or an asbestos supervisor permit.

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12:120-5.2 Exempted activities

(a) The Commissioner of Health and Senior Services may exempt from the permit requirements those designated asbestos-activities based on sufficient data which indicates that no significant exposure exists to perform such activity. Such data shall be submitted to the Commissioner of Health and Senior Services for review at least 10 calendar days prior to the beginning of such work.

(b) These exempted activities shall involve non-friable asbestos containing material that is not rendered friable by the activity.

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12:120-5.3 Requirements for obtaining an asbestos worker or an asbestos supervisor permit

(a) The Commissioner shall issue a permit to each applicant who satisfies the requirements listed below. The applicant shall:

1. Be at least 18 years of age;

2. Successfully complete either the asbestos abatement worker or asbestos abatement supervisor training course approved by the Department of Health and Senior Services and pass a written examination devised and administered under the approval of the Department of Health and Senior Services for each respective position; and

i. Proof of passing the written examination shall be submitted with the permit application.

3. Complete the permit application, a copy of which may be obtained from the Department of Labor and Workforce Development.

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12:120-5.4 Procedures for completing training course and examination

(a) Each applicant required by this subchapter to complete asbestos training shall register at a training agency which has been certified by the New Jersey Department of Health and Senior Services to offer such training. A list of certified training agencies is available from the Department of Health and Senior Services.

1. The topics for worker training are set forth at N.J.A.C. 12:120-6.2 and 6.6 and N.J.A.C. 8:60-6.2 and 6.6;
2. The topics for supervisor training are set forth at N.J.A.C. 12:120-6.2 and 6.7 and N.J.A.C. 8:60-6.2 and 6.7; and
3. Upon successful completion of the training course, all applicants shall complete an "Asbestos Trainee Evaluation" form (ASB-24).

(b) Upon successful completion of the training course, each applicant shall register to take a written examination administered under the approval of the Department of Health and Senior Services.

1. Each applicant shall bring the following to the examination:

i. The trainee's copy of the "Asbestos Trainee Evaluation" form (ASB-24);

ii. A recent passport-size color photograph of the applicant taken against a white background or backdrop with the applicant's face not being less than three-quarters of an inch in width. The applicant shall not wear a hat, glasses, or any other item which may alter or disguise the overall features of the face in the photograph. This photograph shall be surrendered at the examination site; and

iii. Any document with the trainee's signature which establishes the applicant's identity.

(c) Each applicant who receives a score of at least 70 percent on the worker examination shall pass the examination for the worker permit.

1. If an applicant fails to pass the worker examination within one year of completion of training and still desires to obtain a worker permit, such applicant shall retake the entire worker training course.

(d) Each applicant for a supervisor permit who achieves a score of at least 70 percent on the supervisor examination shall pass the examination for the supervisor permit.

1. If an applicant fails to pass the supervisor examination within one year of completion of training and still desires to obtain a supervisor permit, such applicant shall retake the entire supervisor training course.

(e) Applicants who receive a permit as a supervisor may perform the duties of a worker without possessing a separate work permit.

(f) Any applicant who copies or retains any questions or answers used in the asbestos worker or asbestos supervisor examination shall be subject to prosecution under the Act and this chapter. Any permit acquired through such means shall be invalid.

(g) Any applicant using fraudulent means during the taking of an asbestos worker or asbestos supervisor examination shall be subject to prosecution under the Act and this chapter. Any permit acquired through such means shall be invalid.

(h) Applicants who do not take or pass the examination within one year of completion of their training shall retake the complete training prior to being examined.

(i) Applicants who have met the requirements as set forth in this section, but have failed to submit an application or obtain a permit within one year of completion of initial training, shall provide evidence of having successfully completed an annual refresher training course pursuant to N.J.A.C. 12:120-6.8 and 8:60-6.8 in order to qualify for an asbestos permit.

(j) Each applicant who holds a valid New Jersey worker permit and wishes to upgrade to a supervisor permit must complete all training as set forth at N.J.A.C. 12:120-6.2(b) and 6.7 and N.J.A.C. 8:60-6.2(b) and 6.7 and the requirements of this section.

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12:120-5.5 Procedures for completing permit application

(a) Each applicant for a permit shall complete an application which can be obtained from the Division of Public Safety and Occupational Safety and Health.

(b) Each applicant shall provide the following to the Division of Public Safety and Occupational Safety and Health:

1. Name, address, date of birth, age, sex, height, weight, eye color, driver's license number, and telephone number;

2. The name and location of the course where the applicant has successfully completed asbestos training, the date of completion, and number of hours of training.

i. The applicant shall submit to the Division of Public Safety and Occupational Safety and Health documentation that indicates successful completion of the asbestos training course with the application for permit.

ii. The applicant shall submit proof of passing the written examination.

3. Two recent, identical passport-size color photographs taken against a white background or backdrop with the applicant's face being not less than three quarters of an inch in width. The applicant shall not wear a hat, glasses or any other item which may alter or disguise the overall features of the face in the photographs; and

i. The applicant shall legibly print his or her name on the back of both photographs submitted.

ii. The applicant shall attach one passport size color photograph in the space provided on the application.

4. The name and address of the applicant's present employer, the applicant's position with the employer and the date employment commenced.

(c) Each applicant is requested to voluntarily provide his or her social security number in his or her permit application to assist the Commissioner in the enforcement of the provisions of N.J.S.A. 34:5A-32 et seq.

1. Each social security number collected may be used as an identifier in the Commissioner's computerized recordkeeping system to aid in the processing of permit applications.
2. Each social security number collected shall remain confidential to the Department of Labor and Workforce Development.

(d) The applicant shall sign and date a statement certifying that the information contained in the application is accurate, true, and complete to the best of his or her knowledge.

(e) The applicant for a worker permit shall submit a $100.00 non-refundable fee (certified check or money order made payable to the Commissioner of Labor and Workforce Development) with the permit application. The Commissioner may, by amendment to this section, reduce this fee based on a decrease in program costs

(f) The applicant for a supervisor permit shall submit a $150.00 non-refundable fee (certified check or money order made payable to the Commissioner of Labor and Workforce Development) with the permit application. The Commissioner may, by amendment to this section, reduce this fee based on a decrease in program costs

(g) Upon written request from the applicant, the Commissioner of Labor and Workforce Development may, at his or her discretion, waive the fees for permit identified in subsections (e) and (f) above.

1. The written request for waiver must identify that the applicant will suffer significant economic or financial hardship if the waiver is not granted.

i. The economic or financial hardship which will be suffered may not be the result of losses incurred by the applicant as a result of Federal, State or other governmental administrative disciplinary or regulatory action.

2. The granting of a waiver from the fees for permit shall have no bearing on the applicant's eligibility for a permit, waive the fees for permits identified in subsections (e) and (f) above.

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12:120-5.6 Length of permit

(a) Each permit issued by the Commissioner shall be valid for one year from the date of issuance.

(b) A permit shall be automatically cancelled on the date of its expiration.

(c) Any person performing asbestos work requiring a permit under the Act or this chapter who performs such work while holding an expired permit shall be subject to the penalty provisions of the Act.

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12:120-5.7 Contents of permit

(a) Each permit for an asbestos worker or asbestos supervisor shall be issued in writing, signed by the Commissioner of Labor and Workforce Development, and shall contain:

1. The date of issuance;
2. The expiration date;
3. The name and address of the worker or supervisor to whom it is issued; and
4. The worker's or supervisor's unique identification number supplied by the Department of Labor and Workforce Development.

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12:120-5.8 Identification of permit holder

(a) Each worker or supervisor performing asbestos work shall have their permits available at the job site and readily available for inspection by representatives of the Commissioners of the Department of Labor and Workforce Development and Health and Senior Services and of the contracting agency.

(b) Tampered with, altered, or defaced permits shall be void.

(c) Any photostats, photographs, or reproductions of a permit shall be invalid.

(d) Any worker or supervisor who loses his or her permit or has it stolen shall immediately notify the Division of Public Safety and Occupational Safety and Health in writing.

(e) An altered, defaced, mutilated, lost, or stolen permit may be replaced upon written request and a review of the circumstances by the Commissioner.

(f) A request for a replacement or duplicate permit shall be notarized and include:

1. The name, address and date of birth of the permit holder;
2. The worker's or supervisor's unique identification number;
3. The circumstances surrounding the loss of the permit, including when, where and how the permit was altered, defaced or mutilated, lost or stolen; and
4. The altered, defaced, or mutilated permit, if applicable.

(g) The cost for a replacement or duplicate permit shall be $10.00 for a worker permit and $15.00 for a supervisor permit.

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12:120-5.9 Suspension and revocation of permit

(a) The Commissioner may suspend or revoke any permit for the following reasons:

1. The worker or supervisor is incompetent to perform asbestos work;
2. The worker or supervisor is negligent in performing asbestos work; and/or
3. The worker or supervisor loans the permit, abandons the permit, or allows it to pass from his or her possession.

(b) The Commissioner may order the immediate suspension or revocation of an asbestos abatement worker or an asbestos abatement supervisor permit if there is an imminent danger to the health and safety of the public or the employees.

1. Any asbestos abatement worker or asbestos abatement supervisor who has his or her permit suspended or revoked pursuant to this section shall not perform asbestos work until such permit is restored by the Department of Labor and Workforce Development.

(c) Prior to suspending or revoking a permit, the Commissioner shall provide the worker or supervisor with written notice of the violations. This subsection shall not apply to situations set forth at (b) above.

1. Each worker or supervisor shall have an opportunity to respond to the charges.

(d) Any individual performing the duties of an asbestos abatement worker or an asbestos abatement supervisor and possessing an expired permit shall be subject to the penalties under the Act and this chapter.

(e) Any applicant using fraudulent means to obtain an asbestos worker or an asbestos supervisor permit shall be subject to prosecution under the Act and this chapter. Any permit acquired through such means shall be invalid.

1. The use of fraudulent means to obtain an asbestos supervisor permit shall invalidate any other New Jersey asbestos permit which the applicant may possess.

(f) In all cases where the Commissioner proposes to revoke or suspend a permit, or denies an application for a permit, the worker or supervisor shall have the right to an informal conference or formal hearing, or both, pursuant to N.J.A.C. 12:120-8 and 8:60-8.

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12:120-5.10 Renewal of permit

(a) An application for renewal of a permit shall be submitted at least 30 days prior to its expiration date. When the application for renewal is submitted within the required time period, the permit may continue in effect until the Commissioner renders a determination regarding the application. The applicant shall be notified in writing by the Department whether a valid extension has been granted. This validation together with the expired permit shall be carried upon the worker's person and be readily available for inspection by representatives of the Commissioners of the Departments of Labor and Workforce Development and Health and Senior Services and the contracting agency.

(b) The Commissioner shall renew a worker or supervisor permit if the renewal applicant has:

1. Completed an application as set forth at N.J.A.C. 12:120-5.5 and 8:60-5.5 within one year of the expiration date of the expired permit;

2. Provided evidence of refresher training pursuant to N.J.A.C. 12:120-6.8 and 8:60-6.8; and

i. Permit holders whose permits expire on or after October 1, 1990 shall submit proof of refresher training.

3. Paid all penalties lawfully imposed on the renewal applicant under the Act and this chapter.

(c) The Commissioner shall treat an application for renewal of a permit which has expired more than one year as an original application.

(d) In all cases where the Commissioner refuses to renew a permit, the worker or supervisor shall have the right to an informal conference or formal hearing, or both, pursuant to N.J.A.C. 12:120-8 and 8:60-8.

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SUBCHAPTER 6. CERTIFICATION OF TRAINING COURSES
12:120-6.1 Scope of subchapter

This subchapter shall apply to the procedures and qualifications required to obtain and maintain or renew certification from the Commissioner of Health and Senior Services to conduct training courses on asbestos abatement as provided for in the Act. At a minimum, training courses shall meet the following requirements as set forth in this subchapter or 40 CFR 763, "Asbestos Model Accreditation Plan; Interim Final Rule," whichever is more stringent.

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12:120-6.2 Types of courses

(a) The asbestos abatement worker training course shall be presented over four days and shall include a minimum of 28 hours of training, of which a minimum of 14 hours shall be dedicated to the conduct of hands-on-training. The topics which shall be presented are set forth at N.J.A.C. 12:120-6.6 and 8:60-6.6.

(b) The asbestos abatement contractor/supervisor training course shall be presented over five days and shall include a minimum of 35 hours of training, of which a minimum of 14 hours shall be dedicated to the conduct of hands-on-training. The topics which shall be presented are set forth at N.J.A.C. 12:120-6.7 and 8:60-6.7.

(c) Annual refresher training for asbestos workers shall be at least seven hours. Annual refresher training for asbestos supervisors shall be at least eight hours. The items required to be presented during refresher training are set forth at N.J.A.C. 12:120-6.8 and 8:60-6.8.

(d) The hour requirements listed in (a) through (c) above shall be exclusive of lunch and break times.

(e) Demonstrations not involving individual participation shall not be considered hands-on training.

(f) Initial and refresher training courses for both disciplines shall be specific to a single discipline and shall not be combined with training for other disciplines.

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12:120-6.3 Application for certification of training courses

(a) An applicant for certification of an asbestos abatement training course shall submit an application and a proposal on forms provided by the Department of Health and Senior Services, specifying the following:

1. The name and address of the agency, institution or private firm which plans to conduct the training course, the name of the responsible individual and his or her telephone number, a list of any other states in which asbestos training certification is presently or has been held, and a statement of ownership;
2. A description of the course location, including dimensions and location of hands-on training, and course fees;
3. A description of the public outreach and publicity efforts which will be made to inform the appropriate potential trainees of the course availability;
4. Detailed outlines of the course curricula, as set forth at N.J.A.C. 12:120-6.6 through 6.8 and 8:60-6.6 through 6.8 the amount of time allotted for each topic, and a list of the instructors for each topic;
5. A description of the interactive/participatory teaching methods to be used to present each topic, including, where appropriate, discussions, demonstrations, hands-on training, and audio-visual materials. Lecture is not considered an interactive/participatory teaching method. When applicable, the name, producer, and date of production of audio-visual materials to be used shall be included;
6. Copies of written materials to be distributed as part of the training course;
7. Evidence demonstrating that the applicant has employed or contracted to employ a minimum of three instructors, either on a full time or temporary basis, to satisfy the education, experience and qualifications criteria as set forth at N.J.A.C. 12:120-6.5 and 8:60-6.5. Resumes describing special training and education and/or prior experience shall be submitted as documentation of compliance with the instructor criteria;
8. A list of the types, brand names and quantities of respirators to be used to demonstrate fit test or flow test;
9. A description of the type and quantity of protective clothing to be used during practice exercises and demonstrations;
10. A description and the quantities of the materials to be used for hands-on practice exercises and demonstrations including, but not limited to, hand tools, ladders, scaffolding, plastic sheeting, and other barrier construction supplies, air filtration units, water spray devices, decontamination facilities, simulated asbestos material and Material Safety Data Sheets (where applicable);
11. Any restrictions on attendance such as literacy requirements, English language only or other language to be used;
12. For any non-English language training course, all course materials, examinations and related course literature shall be translated into that language, with a written certification that the translation is accurate and valid;
13. Instructor-to-student ratio for the hands-on practice exercises and demonstrations shall be a maximum of 10 students per one instructor;
14. Evidence that a no-smoking policy will be established, maintained and enforced during all aspects of training;
15. A copy of the applicant's valid training agency certification previously issued by the Department of Health and Senior Services pursuant to this subchapter where applicable; and
16. A copy of the written examinations to be administered to the trainees by the training agency.

(b) All materials submitted in connection with the application shall be typewritten or machine printed.

(c) The applicant shall be required to successfully pass a pre-commencement inspection of the training facility conducted by the Department of Health and Senior Services.

(d) The applicant shall immediately notify the Department of Health and Senior Services in writing of any change(s) in the application information occurring either prior to or after certification.

(e) A non-refundable application fee for annual certification in the amount of $500.00 per discipline shall be forwarded with the application. The application fee shall be paid by certified check or money order and made payable to the New Jersey Department of Health and Senior Services. No liability shall be assumed by the Department for the loss in the transmission of the application.

(f) Certification of refresher training courses is expressly conditioned upon maintaining a certification in good standing for that discipline which the applicant is applying.

(g) Upon written request from the applicant, the Commissioner of Health and Senior Services may, at his or her discretion, waive the fees for certification of training agencies identified in (e) above.

1. The written request for waiver must identify that the applicant will suffer significant economic or financial hardship if the waiver is not granted.

i. The economic or financial hardship which will be suffered may not be the result of losses incurred by the applicant as a result of Federal, State or other governmental administrative disciplinary or regulatory action.

2. The granting of a waiver from the fees for certification of training agencies shall have no bearing on the applicant's eligibility for certification.

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12:120-6.4 Training agency operating requirements

(a) Certified training agencies shall have the burden of demonstrating compliance, or the ability to comply, with the requirements of this subchapter.

(b) Certified training agencies shall have access to sufficient classrooms, off-site demonstration facilities, equipment, materials and instructors to ensure that adequate training courses meeting the requirements of this subchapter can be conducted.

(c) Certified training agencies shall use any training materials, examinations, forms, questionnaires, surveys, informational or audiovisual aids which may be required by the Department of Health and Senior Services.

(d) Certified training agencies shall ensure that at least one course instructor represents them at any meeting sponsored by the Department of Health and Senior Services for the purpose of maintaining uniform and high quality training courses among certificants.

(e) Certified training agencies shall limit class size to 25 students for initial training courses.

(f) Certified training agencies shall limit class size to 30 students for refresher training courses.

(g) All certified training agencies shall notify the Department of Health and Senior Services at least two weeks in advance of the beginning of any training course. All notifications shall be in writing and shall be submitted on forms provided by the Department of Health and Senior Services. If any course information changes, the training agency shall notify the Department of Health and Senior Services as soon as that agency becomes aware of such changes.

(h) Certified training agencies shall ensure that all refresher trainees have met the requirements for obtaining a New Jersey permit as outlined at N.J.A.C. 12:120-5.3 and 8:60-5.3. Certificates of completion shall be issued only to those individuals who have met these requirements and have successfully completed the refresher course.

(i) Certified training agencies shall submit instructor documentation meeting the requirements of N.J.A.C. 12:120-6.5 and 8:60-6.5 to the Department of Health and Senior Services for approval prior to allowing that instructor to conduct any training course.

(j) Certified training agencies shall issue a certificate of completion to trainees upon their successful completion of an initial or a refresher training course. The certificate shall specify the following:

1. A unique certificate number;
2. The full name of the trainee;
3. Discipline;
4. The expiration date of the certificate;
5. The course completion date;
6. The name, address and telephone number of training agency;
7. The language in which the training course was given; and
8. Shall bear the signature of the course instructor.

(k) Certified training agencies shall permit entry to all training courses by representatives of the Department of Health and Senior Services for the purposes of course evaluation and determination of compliance with this subchapter.

(l) Certified training agencies shall limit individual classes to one language.

(m) Certified training agencies shall maintain the following records:

1. All documents specified in N.J.A.C. 12:120-6.5 and 8:60-6.5 that demonstrate the qualifications of the course instructors;
2. Student training records;
3. Daily class attendance records bearing the signature of the course instructor;
4. Copies of examinations administered by the training agency; and
5. Copies of instructor performance review records.

(n) Certified training agencies shall permit representatives of the Department to inspect and evaluate these records. Upon request by the Department of Health and Senior Services, training agencies shall provide copies of all training records for the purpose of inspection, evaluation and compliance.

(o) Certified training agencies shall maintain training records for a minimum of five years. The Department of Health and Senior Services shall be notified and be given the opportunity to take possession of all training records should an agency cease to conduct training.

(p) Certified training agencies shall notify the Department of Health and Senior Services, in writing, in advance of any changes in information submitted on its agency and course applications. Any course modifications made subsequently to certification shall require 10 days prior notification and shall be subject to Department of Health and Senior Services approval.

(q) Notwithstanding (g) above, certified training agencies shall notify the Department of Health and Senior Services in writing at least four weeks advance of any changes in their hands-on training site. Any changes in location and/or renovations to the site shall require a reinspection of the facility before training can be conducted at that site.

(r) Certified training agencies shall maintain a quality control plan which shall include, at a minimum, the following:

1. Procedures for periodic revision of training materials to reflect innovations in the field;
2. Procedures for annual review of instructor competency;
3. Procedures for administering the course examination to ensure the validity and integrity of the examination; and
4. Procedures for ensuring the adequacy of facilities and equipment.

(s) Certified training agencies shall cooperate fully with the Department of Health and Senior Services in all matters relating to the conduct of certified training courses, the administration of examinations, and the permitting of individuals pursuant to this chapter.

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12:120-6.5 Criteria for training course instructors

(a) To be eligible for certification of any training course, three or more course instructors shall be employed. A sufficient number of instructors shall be hired to ensure that all of the education and experience criteria for instructors set forth below are met:

1. At least one instructor shall have experience in both the design, field performance and evaluation of air monitoring programs, and in the design and implementation of respiratory protection programs.
2. All applicants applying for instructor approval after April 3, 1995 must take the New Jersey asbestos supervisor course and successfully complete the examination approved by the Department of Health and Senior Services.
3. To teach the sections of the course concerning the health effects of asbestos, the instructor shall be a qualified health professional.
4. To qualify to teach the hands-on training sessions, an instructor shall have at least one year of experience as a New Jersey asbestos abatement contractor or as a supervisor of asbestos abatement workers. This person shall have had direct experience in all phases of asbestos abatement work.
5. At least one instructor shall have experience in designing, implementing, and evaluating either employee educational programs in occupational health and safety or vocational education programs.
6. To qualify to teach the smoking cessation topics, instructors shall have successfully completed a course in smoking cessation approved by the Department of Health and Senior Services.

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12:120-6.6 Criteria for topics in asbestos abatement worker training course

(a) Training courses shall be designed and conducted to include, at a minimum, the following topics:

1. Background information on asbestos:

i. History of asbestos use; and

ii. Physical characteristics of asbestos.

2. Relevant Federal, State, and local regulatory requirements, procedures and standards;

3. Health effects related to asbestos exposure:

i. Effects of smoking; and

ii. Effects of smoking cessation, various smoking cessation methodologies and resources available to aid in smoking cessation;

4. Purposes and methods of asbestos monitoring and testing;

5. Case studies;

6. Personal protection of the worker (hands-on training required);

7. Preparation of the work area (hands-on training required);

8. Asbestos abatement and hazard reduction methods (hands-on training required);

9. Proper clean-up and disposal (hands-on training required);

10. Personal hygiene;

11. Decontamination (hands-on training required);

12. Additional safety hazards; and

13. Course review and course examination.

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12:120-6.7 Criteria for topics in the asbestos abatement contractors/supervisor training course

(a) Training courses shall be designed and conducted to include, at a minimum, the following topics:

1. All of the topics pursuant to N.J.A.C. 12:120-6.6 and 8:60-6.6;
2. Respiratory protection programs and medical monitoring programs (hands-on training required);
3. Insurance and liability issues;
4. Recordkeeping for asbestos abatement projects;
5. Supervisory techniques for asbestos abatement activities;
6. Contract specifications; and
7. Course review and course examination.

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12:120-6.8 Criteria for topics in refresher training courses

(a) Refresher training for asbestos worker and contractor/supervisor courses shall consist of the topics designed to increase or enhance an individual's skills and knowledge necessary to perform the job tasks and job functions associated with the respective certification.

(b) Refresher training shall include, but not be limited to:

1. An overview of key health and safety practices;
2. An update on any relevant Federal, State or local regulatory changes;
3. Any new developments in applicable state-of-the-art technologies and abatement procedures;
4. Respiratory protection programs and medical surveillance; and
5. Course review.

(c) The Department of Health and Senior Services reserves the right to require additional refresher training course topics within one month of a certified training agency's receipt of written notice.

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12:120-6.9 Granting of certification

(a) No training agency shall be eligible for course certification unless the applicant has first received certification as an approved training agency pursuant to either this section or N.J.A.C. 8:60-6.4 and 12:120-6.4.

(b) An annual certification shall be granted to a training agency which has demonstrated the ability to meet the requirements of this subchapter including course content, teaching methods, and instructor qualification based upon the application submission required by N.J.A.C. 12:120-6.3 and 8:60-6.3, and such investigation as the Commissioner of the Department of Health and Senior Services should deem necessary.

(c) All applicants shall be of good moral character. If the applicant is a corporation, this requirement shall apply both to the corporation and to those individuals who are responsible for the day-to-day operation of the corporation.

(d) An annual letter of certification shall:

1. Specify the date of issuance;
2. Specify an expiration date;
3. Specify the name and address of the training agency which is certified;
4. Specify what training courses the certificant is authorized to teach;
5. Be signed by the Commissioner of the Department of Health and Senior Services or his or her designee; and
6. Be nontransferable.

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12:120-6.10 Renewal of training agency certification

(a) In order to approve a training agency certification renewal application, the Commissioner of Health and Senior Services shall determine, based upon the application, that:

1. The certificant has certified that all information contained on the original application is still correct, or where applicable, has updated such information;
2. All outstanding penalties lawfully imposed on the certificant have been paid;
3. The certificant has exhibited competence, integrity, and responsibility; and
4. The training agency can operate in compliance with this subchapter.

(b) A complete application for renewal of a certification shall be submitted at least 30 days prior to the date of its expiration. When a complete application is submitted within the required time period, the certification shall continue in effect until the Commissioner of Health and Senior Services renders a final decision on the application.

(c) The annual application fee for renewal shall be $500.00 per discipline. The application fee shall be submitted with the application and shall be non-refundable. The application fee shall be paid by certified check or money order and made payable to the New Jersey Department of Health and Senior Services. No liability shall be assumed by the Department of Health and Senior Services for the loss or delay in the transmission of the application fee.

(d) Upon written request from the applicant, the Commissioner of Health and Senior Services may, at his or her discretion, waive the fees for renewal of certification of training agencies identified to (c) above.

1. The written request for waiver must identify that the applicant will suffer significant economic or financial hardship if the waiver is not granted.

i. The economic or financial hardship which will be suffered may not be the result of losses incurred by the applicant as a result of Federal, State or other governmental administrative disciplinary or regulatory action.

2. The granting of a waiver from the fees for certification of training agencies shall have no bearing on the applicant's eligibility for renewal of certification.

(e) Any application not complying with (b) above shall be treated as a new application pursuant to N.J.A.C. 8:60-6.3 and 12:120-6.3.

(f) Any application from a certified training agency whose certification has lapsed shall be treated as a new application pursuant to N.J.A.C. 8:60-6.3 and 12:120-6.3.

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12:120-6.11 Suspension or revocation of training agency certification or instructor approval

(a) Any certified training agency may have its application denied, certification suspended or revoked and/or shall be required to pay the administrative penalties set forth at N.J.A.C. 12:120-3.5 and 8:60-3.5 for each violation listed below:

1. Incompetence;
2. Failure to adequately present either the topics set forth in this subchapter or any other materials required by the Department of Health and Senior Services;
3. Any violation of N.J.A.C. 8:60-6.10 and 12:120-6.10;
4. Submitting false information on an initial or renewal application, trainee evaluation form, or course notification form;
5. Failure to submit information or notification within the required time periods specified in this subchapter;
6. Falsification of training records, instructor qualifications, or other certification information;
7. Failure to maintain required records;
8. Any violation of this subchapter; or
9. Any good cause within the meaning and purpose of the law.

(b) Any instructor may have his or her application denied, approval suspended or revoked and/or shall be required to pay the administrative penalties set forth at N.J.A.C. 12:120-3.5 and 8:60-3.5 for each violation listed below:

1. Submitting false information on an application for approval as an asbestos training instructor;
2. Falsification of training records;
3. Failure to perform quality training;
4. Any violation of this subchapter; or
5. Any good cause within the meaning and purpose of the law.

(c) In all cases where the Commissioner of Health and Senior Services proposes to revoke or suspend certification or instructor approval, or denies an application for certification or instructor approval, the applicant shall have the right to an informal conference or formal hearing, or both, pursuant to N.J.A.C. 12:120-8 and 8:60-8.

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12:120-6.12 (Reserved)

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12:120-6.13 (Reserved)

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12:120-6.14 (Reserved)

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SUBCHAPTER 7. ASBESTOS WORK NOTIFICATION REQUIREMENTS
12:120-7.1 Purpose and scope of subchapter

(a) The purpose of this subchapter is to establish the requirements for notifying the Departments of Labor and Workforce Development and Health and Senior Services as to when and where asbestos work will be undertaken.

(b) This subchapter shall be applicable to all employers who are required to possess an asbestos license pursuant to N.J.A.C. 12:120-4 and 8:60-4 and who enter into a contract to perform asbestos work in New Jersey.

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12:120-7.2 Notification requirements

(a) Every employer under the scope of this subchapter who plans to perform asbestos work in New Jersey shall submit a written notification of intent to perform asbestos work at least 10 calendar days prior to beginning such work on forms specified by the Department of Health and Senior Services except where such work is exempted at N.J.A.C. 12:120-1.4(b) (8:60-1.4(b)).

1. The date of submission of the notice is determined to be the date as postmarked by the United States Postal Service on the transmittal envelope.
2. If the postmark is not legible, or if metered mail is used, the date of submission of the notice is determined to be the date of receipt by either the Commissioner of Labor and Workforce Development or Health and Senior Services.
3. If an earlier mailing date is established by proof of mailing with a recognized United States Postal Service receipt, the date of submission of the notice is determined to be the established date.
4. The pick-up date of a recognized overnight delivery or courier service shall be deemed equivalent to a United States Postal Service postmark.
5. Facsimile transmissions of written notifications of intent to perform asbestos work are only accepted as submissions where emergency circumstances are warranted pursuant to this subchapter.

(b) The written notification required by (a) above shall include:

1. The name, address, and telephone number of the licensee;
2. The license number and type of license held by the licensee;
3. The name and address of the owner of the facility;
4. The location and description of the facility;
5. A description of the asbestos work to be performed;
6. The starting and scheduled completion dates of the asbestos work;
7. The name and address of the waste disposal site where the asbestos-containing material will be disposed;
8. The name, address and New Jersey Waste Hauler identification number of the registered waste hauler; and
9. A $200.00 non-refundable fee (certified check or money order made payable to the Commissioner of Labor and Workforce Development); and
10. Any other relevant information which the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, as the case may be, determines to be necessary.

(c) Amended written notifications shall be submitted in accordance with and pursuant to N.J.A.C. 12:120-7.2(a) and (b) and 8:60-7.2(a) and (b). Amended notifications to the Commissioner of Labor and Workforce Development and the Commissioner of Health and Senior Services are required when:

1. The starting date is delayed beyond the scheduled completion date as submitted on the initial notification;
2. The scheduled completion date will extend beyond the scheduled completion date as submitted on the initial notification:
3. The scope or description of the asbestos work to be performed for the facility changes; or
4. Any other items as required pursuant to N.J.A.C. 12:120-7.2(b) and 8:60-7.2(b) that may change.

(d) The Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, as the case may be, may allow less than 10 calendar days prior notification where emergency circumstances warrant less than a 10 calendar day prior notification.

1. Where emergency circumstances warrant less than a 10 calendar day prior notification, an employer shall still be required to adhere to the remaining requirements of N.J.A.C. 12:120-7.2(a) and (b) and 8:60-7.2(a) and (b) when it plans to perform asbestos work in New Jersey.
2. To enable the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services to determine whether a waiver of the 10 calendar day prior notification may be granted, the notifying party shall:

i. Submit a written explanation from the facility owner or from the third party environmental engineer representing the facility owner to both the Commissioner of Labor and Workforce Development and the Commissioner of Health and Senior Services which details:

(1) The unexpected situation or sudden occurrence of a serious and urgent nature that demands immediate action; and

(2) The impact upon the facility owner should a waiver of the 10 calendar day prior notification not be granted.

ii. By facsimile transmission or express delivery, submit a written notice for the emergency circumstance pursuant to N.J.A.C. 12:120-7.2(b) and 8:60-7.2(b).

• • A request for a waiver of the 10 calendar days prior notification may be reviewed for approval by the Commissioner of Labor and Workforce Development or Health and Senior Services when received by facsimile transmission or express delivery. Only after the Commissioner of Labor and Workforce Development or Health and Senior Services has determined and has authorized that the emergency circumstance warrants a waiver, may the asbestos work proceed as notified.

(e) Written notifications required pursuant to this subchapter shall be submitted to:

New Jersey Department of Labor and Workforce Development
Asbestos Control and Licensing Section
1 John Fitch Plaza, 3rd Floor
PO Box 392
Trenton, NJ 08625-0392

and

New Jersey Department of Health and Senior Services
Consumer and Environmental Health Services
PO Box 369
Trenton, NJ 08625-0369

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12:120-7.3 (Reserved)

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SUBCHAPTER 8. APPEALS AND COMPLAINTS
12:120-8.1 Scope of subchapter

This subchapter shall apply to the procedures for appealing any action or inaction by the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, under the Act, including, the revocation, suspension or refusal to renew a license or permit, or denial of an application for a license or permit; the denial, revocation or suspension of a training agency certification or instructor approval; and the assessment of a civil administrative penalty. It shall also apply to the procedures for filing a citizen complaint alleging a violation of the Act.

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12:120-8.2 Appeals

(a) Any individual who is aggrieved by any action or inaction of the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services or his or her designee, under this chapter, shall have the right to an informal conference under (c) below or a formal hearing under (d) below or both upon receipt by the Commissioner of Labor and Workforce Development or Health and Senior Services, as the case may be, of a written request within 10 calendar days of receipt of notice of the proposed agency action.

(b) In the interest of protecting employee or public health and safety, the Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services may suspend a license, permit, instructor approval or training agency certification prior to a hearing. When the license, permit, training agency certification or instructor approval has been suspended, the aggrieved person shall have the right to a hearing within 10 calendar days of the notice of suspension.

(c) Upon receipt of the written request, an informal conference shall be held before a designee of the Commissioner of Labor and Workforce Development or Health and Senior Services, as the case may be, within 30 calendar days. The designee of the Commissioner of Labor and Workforce Development or Health and Senior Services as the case may be, shall render a decision within 45 calendar days of the conference. Such decision shall state the findings and conclusions and shall be transmitted to the aggrieved person.

(d) Any party who disagrees with the decision of the Commissioner of Labor and Workforce Development or Health and Senior Services' designee may submit a written request for a formal hearing in accordance with (e) below.

(e) Upon receipt of the written request, a formal hearing shall be held pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(f) For purposes of this section, due notice shall mean written notice mailed to the aggrieved person's last filed address which specifies:

1. The intended agency action;
2. The legal basis for such action;
3. The facts supporting such legal basis; and
4. Notice of the right to an informal conference or formal hearing;

i. The 10 calendar day period to request such informal conference or formal hearing; and

ii. The address to which such requests shall be sent.

(g) When an aggrieved person fails to request an informal conference or formal hearing within the 10 calendar day period, his or her right to an informal conference or formal hearing pursuant to this section shall be deemed waived and the proposed agency action shall become final.

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12:120-8.3 Citizen complaints

(a) Any person who believes a violation of the provisions of the Act has occurred may file a citizen complaint petitioning the Commissioner of Labor and Workforce Development or Health and Senior Services to bring an enforcement action. The citizen complaint shall specify:

1. The alleged violation;
2. The facts constituting the alleged violation; and
3. The name and address of the citizen filing the complaint.

(b) Upon receipt of a citizen complaint, the Commissioner responsible for enforcement of the provision allegedly violated shall:

1. Give notice of the citizen complaint to the alleged violator within 10 calendar days;
2. Give notice to the complaining citizen and the alleged violator of the scheduling of an enforcement investigation inspection within 30 calendar days of the date of the complaint filing;
3. Afford the complaining citizen or his or her representative an opportunity to be present during the enforcement investigation inspection, provided the complaining citizen shall hold the State harmless from all legal liabilities arising out of the enforcement investigation including, but not limited to, litigation resulting from any potential exposure to asbestos;
4. Afford the complaining citizen access to all public records regarding the Commissioner's investigation; and
5. After investigation, the Commissioner shall render a final decision on the appropriate disposition of the complaint within 90 calendar days of the date of receipt of the citizen complaint.

(c) A public employee who files a citizen complaint pursuant to this section shall:

1. Have the right to accompany the Commissioner on an enforcement investigation inspection;
2. Receive payment of normal wages for the time spent during normal working hours on the inspection; and
3. Have all protections and rights as set forth under N.J.S.A. 34:6A-45.

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SUBCHAPTER 9. STANDARDS AND PUBLICATIONS REFERRED TO IN THIS CHAPTER
12:120-9.1 Documents referred to by reference

(a) The full title and edition of each of the standards and publications referred to in this chapter are as follows:

1. 40 CFR Part 61, National Emission Standards for Hazardous Air Pollutants;
2. N.J.A.C. 1:1, Uniform Administrative Procedure Rules;
3. N.J.A.C. 5:23-8, Asbestos Hazard Abatement Subcode of the Uniform Construction Code;
4. N.J.A.C. 7:26, Non-Hazardous Waste Regulations;
5. N.J.S.A. 34:5A-32 et seq., Asbestos Control and Licensing Act;
6. N.J.S.A. 52:14B-1 et seq., Administrative Procedures Act;
7. 29 C.F.R. 1910.134--Respiratory Protection;
8. 29 C.F.R. 1926.1101(h)--Respiratory Protection; and
9. 40 C.F.R. Part 763--Asbestos Model Accreditation Plan; Interim Final Rule.
10. "Test Method -- Method for the Determination of Asbestos in Bulk Building Materials," EPA/600/R-93/116, July 1993.

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12:120-9.2 Availability of documents for inspection

A copy of each of the standards and publications referred to in this chapter is on file and may be inspected at the following office of the Division of Public Safety and Occupational Safety and Health between the hours of 9:00 A.M. and 4:00 P.M. on normal working days:

New Jersey Department of Labor and Workforce Development
Division of Public Safety and Occupational Safety and Health
1 John Fitch Plaza; 3rd Floor
PO Box 392
Trenton, New Jersey 08625-0392

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12:120-9.3 Availability of documents from issuing organization

Copies of the standards and publications referred to in this chapter may be obtained from the organizations listed below. The abbreviations preceding these standards and publications have the following meaning, and are the organizations issuing the standards and publications listed in N.J.A.C. 12:120-9.1 and 8:60-9.1.

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APPENDIX

For the purpose of analyzing Category I non-friable asbestos containing material and other non-friable organically bound material, the Department of Labor and Workforce Development and the Department of Health and Senior Services shall utilize the "Test Method -- Method for Determination of Asbestos in Bulk Building Materials," EPA/600/R-93/116, July 1993, in the following manner:

1. Samples shall be prepared using the gravimetric sample preparation procedures.
2. Samples shall be analyzed first by Polarized Light Microscopy (PLM).
3. In the event that the results of PLM analysis indicate that a sample contains less than or equal to 10 percent asbestos, the sample shall be point counted.
4. Only where PLM analysis indicates that a sample contains one percent or less than one percent asbestos (including findings that a sample contains no asbestos), shall the sample be analyzed by Transmission Electron Microscopy (TEM).

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