Current through Reg. 49, No. 38; September 20, 2024
(a) Public building
owner responsibilities.
(1) The public
building owner is responsible for compliance with this chapter in relation to
the presence, condition, disturbance, renovation, demolition, and disposal of
any ACBM and ACWM that is encountered in the construction, operations,
maintenance, or furnishing of that public building, including when the building
is under management by others.
(2)
Before operations and maintenance, renovation, or demolition, the public
building owner is required to have an asbestos survey performed, identify the
presence of asbestos, and have ACBM that may be disturbed by the operations and
maintenance, renovation, or demolition activity abated, as required in this
chapter.
(3) The public building
owner must fulfill the following obligations, either personally or through the
building owner's authorized representative, including when the building is
under management by others:
(A) inform anyone
who performs any type of construction, maintenance, installation, repairs,
custodial services, renovation, or demolition work in the owner's building of:
(i) the presence and location of ACBM before
the start of any asbestos-related activity;
(ii) that the ACBM could be disturbed or
dislodged by those activities; and
(iii) that the person conducting those
activities must arrange for proper handling of ACBM and ACWM;
(B) hire or otherwise permit only
a person holding the required license to perform asbestos-related activity in
the building;
(C) require each
person described under subparagraph (B) of this paragraph to comply with all
applicable requirements of this chapter;
(D) ensure compliance with this chapter
during periods of vacancy; and
(E)
confirm that the regulated area meets the clearance level of 0.01 f/cc before
reoccupancy of that area.
(4) The building owner or the building
owner's authorized representative may provide the information described in
paragraph (3) of this subsection in writing or through documented oral
communication.
(b)
Commercial building owner responsibilities. The commercial building owner is
responsible for compliance with this chapter in relation to the presence,
condition, disturbance, renovation, demolition, and disposal of any asbestos
that is encountered in the construction, operations, maintenance, or furnishing
of that commercial building, including when the building is under management by
others. Before operations and maintenance, renovation, or demolition, the
commercial building owner is required to have a thorough inspection performed,
identify the presence of asbestos, and have the RACM that may be disturbed by
the operations and maintenance, renovation, or demolition activity abated in
accordance with NESHAP. The commercial building owner must also ensure
compliance with this chapter during periods of building vacancy.
(c) Facility owner responsibilities. The
facility owner is responsible for compliance with this chapter in relation to
the presence, condition, disturbance, renovation, demolition, and disposal of
any asbestos that is encountered in the construction, operations, maintenance,
or furnishing of that facility, including when the facility is under management
by others. Before operations and maintenance, renovation, or demolition, the
facility owner is required to have a thorough inspection performed, identify
the presence of asbestos, and have the RACM that may be disturbed by the
operations and maintenance, renovation, or demolition activity abated in
accordance with NESHAP. The facility owner must also ensure compliance with
NESHAP during periods of vacancy.
(d) Mandatory survey for ACBM before
renovation or demolition.
(1) Before any
renovation or dismantling outside of or within a public building, commercial
building, or facility, including preparations for partial or complete
demolition, the owner must have an asbestos survey performed.
(2) The work area and all immediately
surrounding areas that could foreseeably be disturbed by the actions necessary
to perform the project must be thoroughly surveyed and, as applicable, sampled
before renovation or demolition.
(3) A copy of the asbestos survey report that
includes the contents described in § 296.21(93) of this chapter (relating
to Definitions), as applicable, must be produced upon request by DSHS within 10
working days after the request.
(4)
A building may be demolished with RACM in place if a state or local government
orders the demolition because the building is structurally unsound and in
danger of imminent collapse, as determined by a professional engineer or a
city, county, or state government official who is qualified to make that
decision.
(A) The owner must maintain
documentation of such order.
(B) If
an owner is unable to obtain a survey because the building is structurally
unsound and unsafe to enter, and the owner is unable to obtain an order for
demolition and has a letter from a professional engineer stating the building
is structurally unsound and in danger of imminent collapse, the owner may
contact DSHS to request a waiver from the survey requirement. Documentation
supporting the inability to obtain an order must be submitted with the
request.
(C) If a survey cannot be
performed before demolition starts due to the building being structurally
unsound and unsafe to enter, all suspect material must be treated as RACM, in
accordance with NESHAP requirements in
40 CFR §
61.141 (relating to Definitions),
§61.145(a)(3) and (c)(4) - (9) (relating to Standards for demolition and
renovation), and §61.150(a)(3) (relating to Standard for waste disposal
for manufacturing, fabricating, demolition, renovation, and spraying
operations).
(5) Without
otherwise limiting the scope of an asbestos survey, each survey for a public
building must treat any building material listed in subsection (o)(2) of this
section as suspect ACBM and include all such materials in the asbestos survey
if the materials could foreseeably be disturbed during the renovation or
demolition activities.
(6) In a
public building, the mandatory survey requirement must be met in one of the
following two ways.
(A) A person appropriately
licensed as required in this chapter and the Act performs a survey which
conforms to generally accepted industry standards, such as the AHERA
requirements specified in 40 CFR Part 763, Subpart E (relating to
Asbestos-Containing Materials in Schools), §§763.85 - 763.88, the
required method for schools. The licensee must prepare a survey report that
includes the contents described in § 296.21(93) of this chapter. To
demonstrate that there is no ACBM, the licensed individual must collect a
minimum of three samples from each suspect homogeneous area.
(B) A Texas-registered architect or a
Texas-licensed professional engineer certifies that the architect or engineer
has compiled and reviewed the information from MSDSs and SDSs of the materials
used in the original construction of the building and the renovations or
alterations of all parts of the building affected by the planned renovation or
demolition, matches the MSDSs and SDSs to materials on-site, reviews any
asbestos survey reports of the building previously conducted as required at the
time of the survey, and certifies that in the architect's or engineer's
professional opinion, no part of the building, including the building
materials, affected by the planned renovation or demolition contain asbestos.
This certification must also clearly identify the name of the building, the
street address and specific area of the building that applies to the
certification, the survey report date of each previous asbestos survey report
reviewed, whether the relevant work was new construction or renovation, and the
specific dates of completion of all original construction and renovations or
alterations that apply to the certification. A Texas-registered architect must
prepare this certification in accordance with the rules of professional conduct
in 22 TAC Chapter 1. A Texas-licensed professional engineer must prepare this
certification in accordance with the rules of professional conduct in 22 TAC
Chapter 137. A complaint that a certification was not performed as required in
this paragraph will be referred to the Texas licensing boards or another
government agency with jurisdiction over the complaint as needed. A building
owner that meets the mandatory survey requirement, as described in this
subparagraph, must keep the certification, copies of the MSDSs or SDSs or both,
and any previous asbestos surveys as required in § 296.291(j) of this
chapter (relating to Recordkeeping) that were reviewed by the architect or
engineer. A certification prepared as described in this paragraph does not meet
the OSHA or NESHAP requirement for an asbestos survey.
(7) In a commercial building, an accredited
inspector who has completed the MAP inspector training may perform the asbestos
survey.
(8) In a facility that is
not a public or commercial building, the survey must conform to
40 CFR §
61.145. OSHA regulations or other EPA
regulations may apply.
(e) Asbestos survey.
(1) A limited asbestos survey may be
performed to address a specific area of a building, such as an area identified
for renovation. A limited asbestos survey may not be substituted for a thorough
asbestos survey of the entire building.
(2) A comprehensive asbestos survey covering
the entire building is required before demolition of a building.
(3) An asbestos survey report remains
acceptable if the asbestos survey is done in compliance with the applicable
law, including the Texas Asbestos Health Protection rules in effect at the time
the asbestos survey is completed and the asbestos survey addresses and
accurately represents ACM and ACBM, as applicable, for the building affected by
the planned renovation, demolition, or O&M activity, including its
location, type, and condition.
(4)
An environmental assessment report may not be used as an asbestos survey report
unless it is conducted by an appropriately accredited or licensed person and
contains all of the required elements of an asbestos survey report, as
applicable.
(f) Sampling
for asbestos in a public building. A licensed asbestos inspector must perform
an asbestos survey in accordance with generally accepted standards, such as the
methods described in 40 CFR
§§
763.85-
763.88. The survey and survey
report must identify, including its location, type, and condition, all ACBM
that is found to be ACM. To assess the presence of ACBM and determine the need
for any O&M activity or abatement, the licensed asbestos inspector must
collect a minimum of three samples from each homogeneous area. The samples must
be evaluated by a licensed asbestos laboratory. If one sample from a
homogeneous area is found to be ACM, the remaining samples from that
homogeneous area do not have to be analyzed. Building materials that have not
been surveyed as required in this subsection and are suspected of containing
asbestos must be treated as ACBM.
(1) When
conducting core sample analysis, each layer must be analyzed and reported
separately. Core sample analysis in a public building must not be reported as
an average or a composite result.
(2) A result of visual estimation by
polarized light microscopy (PLM) analysis of 0% asbestos or no asbestos
detected does not require further analysis for the detection of asbestos in
friable or nonfriable suspect materials.
(3) Point counting may be used to analyze
either a friable or nonfriable material. Nonfriable materials, such as mastics
and floor tile where fibers are occluded by a binding matrix must be processed
using a technique that renders the material friable, such as acid washing and
ashing outlined in EPA/600/R-93/116.
(4) A result of visual estimation by PLM
analysis of greater than 0% and less than 10% asbestos may be demonstrated to
be material that is not ACBM only if the material is further analyzed using
other analysis based upon the hierarchy and terms of the following:
(A) The result of point counting by PLM
analysis of a sample supersedes and replaces the initial result of visual
estimation by PLM.
(B) The result
of gravimetric preparation, followed by point counting or transmission electron
microscopy (TEM) visual estimation analysis of a sample, supersedes and
replaces the result of visual estimation by PLM and the result of point
counting by PLM.
(g) Conditions requiring mandatory abatement.
Before any renovation or dismantling of a public building, commercial building,
or facility, including preparations for partial or complete demolition, the
building owner must have ACBM abated, as required in this section.
(1) Demolition or renovation of a public
building. Before performing any demolition in a public building, the building
owner must ensure that all suspect ACBM is surveyed and RACM is abated in
accordance with NESHAP and as required in this chapter. Before performing any
renovation in a public building, the building owner must ensure that all
suspect ACBM that could foreseeably be disturbed in the area to be renovated is
surveyed and ACBM is abated, as required in this chapter.
(2) Demolition or renovation of a commercial
building. Before performing any demolition, renovation, or O&M activity in
a commercial building, the owner or operator must ensure that all suspect ACBM
is surveyed and RACM is abated in accordance with NESHAP by a person
accredited, as required § 296.151 of this chapter (relating to
Accreditation for Asbestos-Related Activities in a Commercial Building) and in
accordance with the MAP.
(3)
Demolition or renovation of a facility. Before performing any demolition,
renovation, or O&M activity in a facility, the owner or operator must
ensure that all suspect ACM is surveyed and RACM is abated in accordance with
NESHAP. Any structure, installation, or building that was previously subject to
NESHAP is not excluded, regardless of its current use or function.
(4) Demolition or renovation of a residential
building that contains four or fewer dwelling units.
(A) Two or more residential buildings that
contain four or fewer dwelling units are considered an installation and are
subject to NESHAP if they are on the same site and under the control of the
same owner or operator or owner or operator under common control as part of the
same renovation or demolition project. Residential buildings are considered to
be on the same site if they are within 660 feet of each other. Demolitions
planned at the same time or as part of the same planning or scheduling period,
that is often a calendar year, fiscal year, or the term of a contract, are
considered to be part of the same project. Each owner or operator of the
residential buildings must ensure that all suspect ACM is surveyed and RACM is
abated in accordance with NESHAP.
(B) A residential building that is being
demolished together with any other type of building as part of a larger private
or public project, such as an urban renewal, shopping mall, or highway
construction project is subject to NESHAP and each owner or operator must
ensure that all suspect ACM in the residential building, as well as in the
other building types, is surveyed and RACM is abated in accordance with NESHAP.
If one residential building that contains four or fewer dwelling units is the
only building being demolished, NESHAP regulations do not apply.
(C) Any renovation or demolition of a
residential building is subject to NESHAP if the residence contains greater
than four dwelling units or if it meets the conditions described in
subparagraphs (A) or (B) of this paragraph.
(h) Demolition with ACM left in place.
(1) Category I nonfriable ACM may be left in
place if it is not in poor condition, has not become friable, and will not
become RACM during demolition.
(2)
Category II nonfriable ACM may be left in place if the probability is low that
the material will become RACM, or be crumbled, pulverized, or reduced to a
powder during demolition.
(3) RACM
on a facility component that is encased in concrete or other similarly hard
material and is adequately wet whenever exposed during demolition may be left
in place.
(4) RACM that is not
accessible for testing and is, therefore, not discovered until after demolition
begins and, because of the demolition the material, cannot be safely removed
may be left in place. If not removed for safety reasons, the exposed RACM and
any asbestos-contaminated debris must be treated as ACWM and adequately wet at
all times until disposed of.
(i) Mandatory asbestos abatement project
design for friable ACBM in a public building. An asbestos abatement project
design is required and must be conducted by a licensed asbestos consultant for
a project that involves any of the following activities:
(1) a response action other than an SSSD
activity;
(2) a maintenance
activity that disturbs friable ACBM other than an SSSD activity or a small
project or repetitive task described in § 296.233 of this chapter
(relating to Alternative Asbestos Practices and Procedures for Small Projects
and Repetitive Tasks in a Public Building); or
(3) a response action for a major fiber
release episode.
(j)
Asbestos abatement project design for friable ACM in a commercial building. An
asbestos abatement project design for a response action in a commercial
building must be conducted by a person appropriately accredited to conduct a
project design in accordance with AHERA.
(k) Mandatory asbestos abatement project
design for nonfriable ACBM in a public building.
(1) An asbestos abatement project design is
required and must be conducted by a licensed asbestos consultant for an
abatement project in a public building that has a combined amount of nonfriable
ACBM to be removed in excess of 160 square feet of surface area, 260 linear
feet of pipe length, or 35 cubic feet of material.
(2) Only individual amounts of nonfriable
ACBM to be removed that are in the same unit of measurement require combination
for purposes of determining whether a project design is required.
(3) An asbestos abatement project that has a
combined amount of nonfriable ACBM to be removed equal to or less than 160
square feet of surface area, 260 linear feet of pipe length, or 35 cubic feet
of material; and a project conducted as described in § 296.231 of this
chapter (relating to Alternative Practices and Procedures for Removal of
Asbestos-Containing Resilient Floor-Covering Material in a Public Building);
§ 296.232 of this chapter (relating to Alternative Asbestos Abatement
Practices and Procedures for Certain Nonfriable Asbestos-Containing Building
Material (ACBM) in a Public Building); § 296.233 of this chapter; and
§ 296.234 of this chapter (relating to Alternative Practices and
Procedures for Removal of Whole Components of Intact Asbestos-Containing
Material (ACM) in a Public Building) does not require an asbestos abatement
project design.
(4) In a commercial
building, nonfriable material does not require a project design, but must be
treated in accordance with NESHAP.
(l) Asbestos control and abatement in a
public building. The public building owner must manage the asbestos found in
the owner's building in accordance with the following requirements.
(1) The building owner must hire a licensed
asbestos consultant, licensed asbestos consultant agency, licensed asbestos
management planner, or licensed asbestos management planner agency to perform
an asbestos survey that may be used for O&M activities, renovation, or
demolition.
(2) The building owner
must hire a licensed asbestos abatement contractor to conduct:
(A) asbestos abatement in accordance with
§ 296.212 of this chapter (Standard Asbestos Abatement Practices and
Procedures in a Public Building);
(B) asbestos abatement of nonfriable ACBM
using the work practices described in § 296.232 of this chapter, where
applicable;
(C) small projects or
repetitive tasks involving the disturbance of friable ACBM, under the
conditions and using the work practices described in § 296.233 of this
chapter; and
(D) an activity
described and conducted in accordance with § 296.234 of this
chapter.
(3) The building
owner must hire or retain a licensed asbestos abatement contractor or a
licensed asbestos O&M contractor to conduct an SSSD O&M activity or
cleanup affecting asbestos, in accordance with in § 296.213 of this
chapter (relating to Asbestos Operations and Maintenance (O&M) Practices
and Procedures for O&M Licensees in a Public Building). When utility work
is to be performed, the building owner must either have the affected ACM
removed before the work of a utility contractor or require the utility
contractor to be licensed to handle ACM.
(4) A building owner licensed as an asbestos
abatement contractor, as required in § 296.50 of this chapter (relating to
Asbestos Abatement Contractor) or as an asbestos O&M contractor, as
required in § 296.52 of this chapter (relating to Asbestos Operations and
Maintenance Contractor) may conduct the activities described in paragraphs (2)
and (3) of this subsection, as applicable.
(5) The building owner must hire a licensed
asbestos management planner, licensed asbestos management planner agency,
licensed asbestos consultant, or licensed asbestos consultant agency to develop
a management plan to control ACM during O&M, renovation, and demolition, if
applicable.
(m) Mandatory
notification. Notification is required under § 296.251 of this chapter
(relating to Notifications) under the following conditions.
(1) Notification is required for any
demolition of a facility or public building, whether or not asbestos has been
identified.
(2) In a public
building, a notification to abate any amount of ACBM must be submitted to DSHS
by the public building owner or operator or delegated agent.
(3) In a facility, a notification to abate an
amount of RACM described in NESHAP must be submitted to DSHS by the facility
owner or operator.
(n)
Requirement for survey and management plan. A building owner or the building
owner's authorized representative, if required by certified letter from DSHS,
must immediately obtain an asbestos survey report and asbestos management plan
completed by a licensed asbestos inspector, licensed asbestos management
planner, or licensed asbestos consultant, if, in the opinion of DSHS following
a site inspection of a public building, there appears to be a danger or
potential danger from ACBM in poor condition to the workers or occupants of the
building or to the general public. A copy of the management plan must be
submitted for review and approval to DSHS within 90 days after receipt of the
certified letter. A copy of the plan must be on file with the owner or
management agency and in the possession of the supervisor in charge of building
operations and maintenance.
(o)
Installation of new materials in a public building. Texas Health and Safety
Code, Chapter 161, Subchapter Q (relating to Installation of Asbestos),
requires the following:
(1) A person who
installs a building material or replacement part designated in paragraph (2) of
this subsection in a public building must obtain an MSDS or SDS before the
installation. A person must not install a material or part designated in
paragraph (2) of this subsection that requires an MSDS or SDS under this
paragraph unless:
(A) the person obtains an
MSDS or SDS for the material proposed to be installed showing that the material
or replacement part is not ACM; or
(B) the material or replacement part,
according to the MSDS or SDS, is ACM, but the building owner or contractor can
demonstrate that there is no alternative material or part.
(2) A person must obtain an MSDS or SDS
before installing the following building materials or replacement parts:
(A) surfacing materials:
(i) acoustical plaster;
(ii) decorative plaster/stucco;
(iii) textured paint/coating;
(iv) spray applied insulation;
(v) blown-in insulation;
(vi) fireproofing insulation;
(vii) joint compound; and
(viii) spackling compounds;
(B) TSI:
(i) taping compounds (thermal);
(ii) HVAC duct insulation;
(iii) boiler insulation;
(iv) breaching insulation;
(v) pipe insulation; and
(vi) thermal paper products;
(C) miscellaneous material:
(i) cement pipes;
(ii) cement wallboard/siding;
(iii) asphalt/vinyl floor tile;
(iv) vinyl sheet flooring/vinyl wall
coverings;
(v) floor
backing;
(vi) construction
mastic;
(vii) ceiling tiles/lay-in
ceiling panels;
(viii) packing
materials;
(ix) high temperature
gaskets;
(x) laboratory hoods/table
tops;
(xi) fire
blankets/curtains;
(xii) elevator
equipment panels;
(xiii) elevator
brake shoes;
(xiv) ductwork
flexible fabric connections;
(xv)
cooling towers;
(xvi) heating and
electrical ducts;
(xvii) electrical
panel partitions;
(xviii)
electrical cloth/electrical wiring insulation;
(xix) chalkboards;
(xx) roofing shingles/tiles;
(xxi) roofing felt;
(xxii) base flashing;
(xxiii) fire doors;
(xxiv) caulking/putties;
(xxv) adhesives/mastics;
(xxvi) wallboard; and
(xxvii) vermiculite.
(p) Application for
exemption. An owner or licensee may apply to DSHS for an exemption of a
demolition or renovation project from any rule under this chapter relating to
demolition and renovation activities, that DSHS, in its sole discretion, may
grant if the rule exemption is not inconsistent with the Act and it meets one
of the following conditions:
(1) the EPA has
exempted the project from federal regulations; or
(2) DSHS determines that:
(A) the project will use a method for the
abatement or removal of asbestos that provides protection for the public health
and safety at least equivalent to the protection provided by the procedure
required in this chapter for the abatement or removal of asbestos;
and
(B) the project does not
violate federal law.
(q) Survey or certification required for
municipal permit. A municipality that requires a person to obtain a permit
before renovating or demolishing a public or commercial building must not issue
the permit unless the applicant provides one of the following types of
documentation:
(1) written evidence
acceptable to the municipality that an asbestos survey of all parts of the
building affected by the planned renovation or demolition has been completed by
a person licensed in accordance with the Act and this chapter (for a public
building) or accredited under the MAP (for a nonpublic building) to perform a
survey; or
(2) written
certification from a Texas-registered architect or Texas-licensed professional
engineer that:
(A) identifies the name of the
building, the street address, and the specific area of the building that
applies to the certification;
(B)
certifies that the Texas-registered architect or Texas-licensed professional
engineer has compiled and reviewed the information from:
(i) MSDSs and SDSs of the materials used in
the original construction of the building and any renovations or alterations of
all parts of the building affected by the planned renovation or demolition, has
matched them by manufacturer to materials on-site in the construction;
and
(ii) any previous asbestos
survey report of the building that is conducted as required at the time of the
survey;
(C) certifies
based upon review of the information in subparagraph (B) of this paragraph that
in the architect's or engineer's professional opinion, no part of the building,
including the building materials, affected by the planned renovation or
demolition contain asbestos;
(D)
specifies the dates of each asbestos survey report reviewed;
(E) specifies whether the relevant work was
new construction or renovation; and
(F) specifies the dates of completion of all
original construction and renovations or alterations that apply to the
certification.
