1.2 Asbestos Control and Licensing Act (N.J.S.A. 34:5A-32 et seq.) & the Joint Rules (N.J.A.C. 12:120 / 8:60)

1.2 The Asbestos Control and Licensing Act & the Joint Rules

Quick Answer: The Asbestos Control and Licensing Act (ACLA), N.J.S.A. 34:5A-32 et seq. (P.L. 1984, c.173), requires any employer that applies, encloses, repairs, removes, or encapsulates asbestos to hold a nontransferable license from the Commissioner of Labor. It also requires each employee doing that work to hold a performance permit. The Departments of Labor and Health jointly adopted identical rules: N.J.A.C. 12:120 (Labor) and N.J.A.C. 8:60 (Health). NJDOL licenses employers and permits workers and supervisors. NJDOH certifies training agencies and courses and approves examinations.

Why the Legislature Acted

The Legislature found that improperly performed application, enclosure, removal, and encapsulation of asbestos creates unnecessary health and safety hazards (N.J.S.A. 34:5A-32). Its declared policy (N.J.S.A. 34:5A-33) is to reduce asbestos hazards by:

1. Encouraging contracting parties, citizens, and insurers to reduce hazards.
2. Encouraging new and better methods for handling asbestos.
3. Licensing employers and permitting employees so incompetent work does not endanger the public.
4. Adopting standards for application, enclosure, removal, encapsulation, storage, sale, disposal, and use of asbestos.
5. Establishing an enforcement program with reporting procedures.

N.J.S.A. 34:5A-35 adds a contracting rule: any public or private agency letting contracts for asbestos work that requires a license must write into the contract specifications that the work will be performed by contractors and subcontractors licensed by the Commissioner of Labor.

One Rule Text, Two Departments

N.J.A.C. 12:120-1.1 states that the chapter is a joint adoption. It is cited as N.J.A.C. 12:120 when enforced by Labor and N.J.A.C. 8:60 when enforced by Health. Under N.J.A.C. 12:120-3.3, the "interface of State agencies" is:

Exam tip: A question asking who approves training courses or the state exam is asking about Health. A question asking who issues the license, the photo permit, or receives the 10-day notice and its fee is asking about Labor. Both departments have right of entry for inspections (N.J.S.A. 34:5A-40).

Definitions You Must Know (N.J.S.A. 34:5A-34; N.J.A.C. 12:120-2.1)

• Asbestos: The asbestiform varieties of chrysotile, crocidolite, amosite, anthophyllite, tremolite, or actinolite. The rule adds that the term includes any asbestos-containing material.
• Asbestos-containing material (ACM): The statute defines it as material containing more than 1% asbestos by weight. The rule defines it as material containing more than one percent asbestos applied to any ceiling, wall, duct, boiler, tank, pipe, structural member, or other part of a building or equipment.
• Friable: ACM that when dry may be crumbled, pulverized, or reduced to powder by hand pressure. The term also includes previously non-friable ACM after it becomes damaged to that extent.
• Asbestos work: The application, enclosure, encapsulation, repair, or removal of ACM.
• Removal: Taking out or stripping asbestos-containing surfacing, thermal, or miscellaneous material from a building or structure. Roofing and exterior siding are excluded except in demolition projects.
• Limited repair: Using accepted engineering practices to return 3 linear feet or less or 3 square feet or less of damaged ACM on a pipe, duct, boiler, tank, structural member, or similar equipment to an intact state with duct tape, rewettable glass cloth, canvas, cement, or other sealable material.
• Repair: The same kind of work on more than 3 linear feet or 3 square feet.
• Category I non-friable ACM: Asbestos-containing packings, gaskets, resilient floor covering, and asphalt materials as defined in the federal NESHAP.
• Non-friable organically bound material (NOB): Non-friable materials in asphalt or vinyl matrices, such as vinyl asbestos tile, mastic, asphalt shingles, roofing, paint chips, caulking, and glazing.
• Permit: A certificate that NJDOL accepts a worker or supervisor as competent. Workers must work under the direction of a supervisor who holds a valid New Jersey supervisor permit.
• PCM: Phase contrast microscopy consistent with NIOSH Method 7400. TEM: Transmission electron microscopy. The TEM method for air clearance samples is the one in Appendix A to 40 CFR 763 Subpart E.

What the Rules Cover and Exempt

N.J.A.C. 12:120-1.4 applies the chapter to employer licensing, worker and supervisor training, examination and permitting, training agency certification, contractors hired by owners for asbestos work, and any public or private building, structure, or equipment where asbestos work is performed. The chapter does not apply to:

1. Limited repair of ACM on pipes, ducts, boilers, tanks, structural members, or similar equipment by taping or sealing.
2. Stripping, limited repair, or removal of 3 feet or less of ACM from piping.
3. Stripping, limited repair, or removal of 3 square feet or less of ACM from ducts, boilers, tanks, structural members, or similar equipment.
4. The sale or storage of asbestos.
5. Work on asbestos-containing roofing and exterior siding, except in demolition projects.
6. Licensing of private employers covered by federal OSHA that use their own employees in their own facility, and permitting of those employees.

NJDOH can also exempt specific activities involving non-friable ACM that is not rendered friable if data show no significant exposure. The data must be submitted at least 10 calendar days before work begins (N.J.A.C. 12:120-4.2 and 5.2).

Being outside ACLA does not mean being outside all asbestos law. OSHA's construction standard, the EPA NESHAP, New Jersey's solid waste rules, and the Uniform Construction Code subcode can still apply.

Bulk Sample Analysis Used by the Departments

When deciding whether a license is required, NJDOL and NJDOH analyze bulk samples with EPA/600/R-93/116. For Category I non-friable ACM and other NOB materials, the Appendix to N.J.A.C. 12:120 requires:

1. Gravimetric sample preparation.
2. Polarized light microscopy (PLM) first.
3. Point counting if PLM shows 10 percent asbestos or less.
4. TEM only if PLM shows 1 percent or less, including "none detected."

Enforcement Tools

Penalty factors include the degree of hazard, harm to the licensing program, culpability, compliance history, economic benefit, and cooperation (N.J.A.C. 12:120-3.5(c)). Ignorance of a legal requirement is treated as negligent, constructive notice as reckless, and actual notice as knowing.

Workers, supervisors, and trainees can also be penalized for working without a permit, falsifying permit, exam, or training information, cheating on an exam, or tampering with a permit (N.J.A.C. 12:120-3.5(b)).

Appeals and Citizen Complaints

• Appeals (N.J.A.C. 12:120-8.2): A written request is due within 10 calendar days of notice of the proposed action. An informal conference is held within 30 days, with a decision within 45 days after the conference. A formal hearing follows the Administrative Procedure Act. If a license or permit is suspended before a hearing, the person is entitled to a hearing within 10 days of the suspension notice.
• Citizen complaints (N.J.S.A. 34:5A-44; N.J.A.C. 12:120-8.3): The responsible department notifies the alleged violator within 10 days, schedules an investigation inspection within 30 days, and issues a final decision within 90 days.

Exam Traps

• "Stop-work order" wording: The ACLA's tools are administrative orders, penalties, court actions, immediate removal from the site, and suspension. Stop work orders on subcode projects are issued by the UCC enforcing agency under N.J.A.C. 5:23-8 (see Section 1.4).
• Criminal grade: An ACLA violation is prosecuted as a third-degree crime, not a disorderly persons offense. Disorderly-person status applies to retaliation against complaining employees.
• The 1% line: Material with 1.0% or less asbestos is not ACM under the Act. OSHA's exposure limits still protect workers who disturb it.

Compliance Scenario

A property manager in Woodbridge hires a mechanical contractor to replace 200 linear feet of damaged steam-pipe insulation in an occupied office building. An NJDOL inspector finds that two laborers have only course completion receipts and no permits, and that the firm's license expired three weeks earlier.

• License violation: A license is automatically cancelled on its expiration date. Anyone performing licensee duties with an expired license is subject to the Act's penalties (N.J.A.C. 12:120-4.8(f)).
• Permit violation: The employer can be penalized for allowing employees to work without permits, and the laborers can be penalized for working without them (N.J.A.C. 12:120-3.5).
• Immediate action: NJDOL can require immediate correction and removal of the unpermitted workers, and of the employer, from the job site. It can also assess civil penalties of up to $25,000 per violation per day.
• Scope check: The 3-foot exemption does not help. At 200 linear feet, this is licensed asbestos work.