Investigator Performed Insufficient Asbestos Testing

December 1, 2007

LVT Number: #20024

ECB found that an asbestos investigator performed insufficient sampling at three locations and imposed a fine of $2,400 for each violation. The investigator appealed, claiming that ECB's decision was arbitrary and unreasonable. The court ruled against the investigator. ECB reasonably interpreted the Rules of the City of New York Section 1-16(a)(3) as requiring a minimum of three samples for "homogeneous friable materials." The investigator argued that not all of the sites sampled were friable materials requiring three samples.

ECB found that an asbestos investigator performed insufficient sampling at three locations and imposed a fine of $2,400 for each violation. The investigator appealed, claiming that ECB's decision was arbitrary and unreasonable. The court ruled against the investigator. ECB reasonably interpreted the Rules of the City of New York Section 1-16(a)(3) as requiring a minimum of three samples for "homogeneous friable materials." The investigator argued that not all of the sites sampled were friable materials requiring three samples. But he raised this claim for the first time on appeal, so it couldn't be considered. The court didn't find the penalty to be unfair.

Kan v. New York City Environmental Control Board: NYLJ, 11/5/07, p. 25, col. 6 (App. Div. 1 Dept.; Lippman, PJ, Mazzarelli, Friedman, Marlow, Buckley, JJ)

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