Who is Responsible?

Hi,

I hope someone can offer me their professional opinion on the situation below.

I’ve hired consulting firm “ABC” to filed an ACP-5 report which was approved by DOB two weeks ago. Last week, we received a letter from Department of Environmental Protection, said that they found that the inspector “ABC” used has not complied with Asbestos Control Program Rules and Regulations in the past, therefore, they have doubts on the accuracy of the report. DEP requests that we find a different inspector and refile a new ACP-5 form with DOB.

We went back to “ABC” asking them to refile thinking if they use an inspector who had a negative history of complying to rules, “ABC” would automatically refile and fix it but, “ABC” said they need to charge us an additional $1100 to refile because the ACP-5 report was not rejected by DOB. It was audited by DEP, just like IRS will audit any tax return. “ABC” also said we may hire any other Asbestos inspector to file the same report and still run into the same risk of being audited and fail.

Do you think this type of refile is common? Sh ould I be responsible for the refiling fee even though DEP said the inspector “ABC” used has not complied with Asbestos Control Rules and Regulations in the past? What happens if the second and/or third re-file is rejected in additional audits? Are we expected to keep paying $1100 each time? Just curious to know if this is normal and who should be responsible for the refile. Thank you very much for your time.

Guest User | 8 years and 5 months ago

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hkapstein | 8 years and 5 months ago

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The answer will be in your contract, but I don’t see them refiling unless the ACP-5 causes your application to be rejected by DOB. So there’s an easy solution, file your plans, if rejected call ABC and they will refile. If accepted, move forward. There is another issue, which is whether you are concerned that the inspector may not have properly checked your premises and you are worried about exposure. However even with proper inspection, there can easily be unseen asbestos behind walls and in other inaccessible locations so it not a guarantee. A third consideration I would worry about would be liability potential. If you knew that the inspector rubber stamped the job and your contractors are exposed to asbestos, could you be at risk legally as the property owner? That’s a question for a lawyer, which I am not.

In short, they are not going to pay unless DOB rejects, so submit your application or hire someone else. Your could sue in small claims, but you in my opi nion it would be tough to win unless you can show s/he did something wrong on your job, such as not showing up or not taking samples, or they missed something your new inspector finds.