1.4 UCC Asbestos Hazard Abatement Subcode (N.J.A.C. 5:23-8): Scope, Permits, Inspections & Certificates

1.4 The UCC Asbestos Hazard Abatement Subcode (N.J.A.C. 5:23-8)

Quick Answer: N.J.A.C. 5:23-8, adopted under the Uniform Construction Code Act and enforced by the Department of Community Affairs (DCA) or authorized municipal enforcing agencies, governs asbestos abatement in educational facilities and public buildings. An asbestos hazard abatement project is removal, enclosure, or encapsulation of more than 25 square feet of ACM, or removal or encapsulation of more than 10 linear feet on piping. Such a project requires a construction permit, a licensed contractor, an owner-hired Asbestos Safety Control Monitor (ASCM), and a DCA-certified Asbestos Safety Technician (AST) on site from preparation through final visual inspection. Reoccupancy requires a Certificate of Completion from the ASCM followed by a Certificate of Occupancy from the enforcing agency.

Why a Building Code Governs Asbestos

N.J.A.C. 5:23-8.1 treats removal, replacement, repair, enclosure, or encapsulation of friable asbestos as construction work that requires a construction permit. Because asbestos was often installed to meet fire-safety requirements, material used for that purpose may not be removed unless it is replaced, as part of the project, with material of equivalent fire or heat resistance. Encapsulants must also meet construction requirements.

Scope: Which Buildings?

For all other buildings, the subcode remains advisory (N.J.A.C. 5:23-8.1(d)). Private offices, factories, and homes are still subject to the ACLA license, permit, and notification rules, OSHA, NESHAP, and N.J.A.C. 7:26.

Enforcing agency: DCA is the sole enforcing agency for State-owned, State-leased, or State-managed buildings. Otherwise, DCA or a municipality using a DCA-authorized ASCM enforces the subcode (N.J.A.C. 5:23-8.3 and 8.5(c)).

Project Thresholds and Operations & Maintenance

Projects may not be broken into smaller parts to qualify as O&M (N.J.A.C. 5:23-8.14). A licensed contractor is required for a hazard abatement project but not for an O&M activity (N.J.A.C. 5:23-8.3(b)). Remember that ACLA's separate exemption line is 3 feet / 3 square feet, so O&M work above those amounts may still need a licensed contractor and permitted workers under N.J.A.C. 12:120.

O&M records must list the building, exact work locations, type and scope of work, replacement material, date, names and addresses of personnel, and disposal site.

The Construction Permit (N.J.A.C. 5:23-8.5)

The owner or the owner's authorized representative must apply to the enforcing agency and obtain the permit before any asbestos hazard abatement project. The application must include:

1. The asbestos contractor's name, address, and NJDOL license number.
2. An asbestos hazard assessment by NJDOH, a county or local health department, or an EPA Model Accreditation Plan-accredited inspector, unless NJDOH waives it in writing.
3. The name and address of the owner-hired ASCM.
4. Four sets of plans and specifications showing the scope, type and percentage of asbestos, quantities, containment provisions (separation barriers, critical barriers, waste route), site plan, and a floor plan showing exits. After approval, one set goes to each of the construction official, ASCM, owner, and project site.
5. Documentation that the building will be unoccupied, unless the ASCM approves occupancy under N.J.A.C. 5:23-8.19.
6. The NJDEP-registered waste hauler and landfill.
7. Scheduled start and completion dates.
8. The method of air analysis for final clearance.

The permit is issued only after the ASCM releases the plans and specifications in writing. Any change to the application requires an amendment before the change takes place. Failure to adhere can lead to a stop work order (N.J.A.C. 5:23-8.5(g)).

Notices:

• If a municipality is the enforcing agency, the owner must send DCA a copy of the application and permit within 3 business days of permit issuance.
• The owner must also send the NESHAP notification to EPA Region II and to DCA.
• The ASCM must notify DCA in writing at least 10 days before a project starts. The AST must telephone DCA on the first day (N.J.A.C. 5:23-8.11(c)).

Fees (N.J.A.C. 5:23-8.4, 8.9, and 8.10):

• $118 administrative fee per construction permit.
• $24 per certificate of occupancy.
• $571 for a variation application.
• $74 for AST certification or recertification.

Occupancy

All abatement is conducted in unoccupied buildings unless the ASCM files a signed statement allowing occupancy. Occupied-building projects must meet the stricter rules in N.J.A.C. 5:23-8.19: rigid separation barriers, pressure of at least 0.05 inch w.c., occupied-space air sampling, and a contingency plan (see Sections 6.2 and 8.1). The owner must notify occupants in writing 20 business days before the project and post the notice 7 days before work-area preparation.

The Inspection Sequence (N.J.A.C. 5:23-8.7)

Pre-commencement inspection: The AST confirms that:

• Containment is complete.
• Every worker presents a valid NJDOL permit.
• Disposal arrangements are in place.
• An emergency phone list is posted. It must include the ASCM, fire, police, emergency squad, hospital, health officer, NJDOL, NJDOH, and DCA.

Conditional approval is not allowed. If the site is not in order, corrective action comes first. DCA may perform its own pre-commencement inspection.

Progress inspections: The AST is continuously present and directs corrective action whenever irregularities appear. Where a sealant is required after removal, a pre-sealant inspection confirms removal is complete before sealant goes on, and the AST records acceptance in writing.

Clean-up inspection: The contractor requests it at least 48 hours in advance. It must occur before critical barriers are removed. The site must be free of all visible dust and ACM, and all waste must be in a locked, secure container outside the work area. After acceptable air results, the AST issues written authorization to remove barriers.

Final inspection: Within 48 hours after critical barriers are removed, the AST confirms that no visible asbestos remains and that waste has been properly disposed of off-site under N.J.A.C. 7:26.

Violations and Stop Work Orders

If work violates the subcode:

1. The AST directs corrective action.
2. If the contractor refuses, or habitually and excessively violates the rules, the AST orders in writing that the work be stopped.
3. If the contractor ignores that order, the AST notifies the enforcing agency. The agency issues a stop work order, secures the work area until violations are abated, and assesses a penalty under N.J.A.C. 5:23-2.31. That penalty may not be reduced or settled.

Certificates

• Certificate of Completion (N.J.A.C. 5:23-8.8(b)): Issued by the ASCM only when all information is complete, the AST's final inspection shows no visible asbestos, all subcode requirements are met, and acceptable final air monitoring under N.J.A.C. 5:23-8.21 is documented in writing. The owner or agent must request it within five days of project completion.
• Certificate of Occupancy (N.J.A.C. 5:23-8.8(a)): Issued by the enforcing agency after it receives the Certificate of Completion. It is unlawful to reoccupy a vacated area before the Certificate of Occupancy is issued. Items damaged during the work must be repaired or refinished.

Variations (N.J.A.C. 5:23-8.4)

No variation from the subcode is allowed without written DCA approval. The owner applies with the ASCM's recommendation and must show practical difficulties and a feasible, equally protective alternative. An approved variation becomes invalid if work does not start within 12 months or is suspended for 12 months. An AST cannot waive subcode procedures on its own authority.

Coordination With Other Permits and Demolition

• For repair, renovation, or demolition permits, an architect or engineer, or the contractor if no design professional is involved, must certify whether and how much asbestos will be disturbed. If asbestos will be disturbed, an assessment is required. Abatement must finish before the disturbing work proceeds, although a partial permit can cover unaffected work (N.J.A.C. 5:23-8.6).
• In partial demolition, or where a building will be reoccupied by people without respirators, all friable ACM, and ACM that will become friable, must be removed first. A separate demolition permit is still required (N.J.A.C. 5:23-8.18).

Exam Traps

• Who hires whom: The owner hires the ASCM. The ASCM may have no economic relationship with any other party on the project, and its laboratory may have none with the abatement contractor (N.J.A.C. 5:23-8.11(d)).
• Which certificate: The ASCM issues the Certificate of Completion, and the construction official issues the Certificate of Occupancy. There is no "DCA Certificate of Clearance."
• Thresholds: The subcode's 25 square feet / 10 linear feet line is different from ACLA's 3 feet / 3 square feet exemption and from NESHAP's 160 square feet / 260 linear feet line.
• Private college dorms: Private colleges are educational facilities and are covered.