<<Prev Rule

Texas Administrative Code

Next Rule>>
TITLE 25HEALTH SERVICES
PART 1DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 295OCCUPATIONAL HEALTH
SUBCHAPTER CTEXAS ASBESTOS HEALTH PROTECTION
RULE §295.34Asbestos Management in Facilities and Public Buildings

(a) General. Building owners are required to inform all persons in writing, or document oral communication between the owner (or their authorized representative) and those who perform any type of maintenance, custodial, renovation, or demolition work, of the presence and location of asbestos-containing building materials (ACBM) prior to the start of any asbestos-related activity.

  (1) Demolition and/or renovation of a facility or commercial building. Before performing any demolition or renovation activity in a facility or commercial building, building owners or operators shall ensure that all friable asbestos-containing material (ACM) or asbestos-containing materials which may become friable (i.e. Category II nonfriable ACM) are inspected and abated in accordance with 40 CFR Part 61, Subpart M.

  (2) Demolition and/or renovation of a public building. Before performing any demolition in a public building, building owners shall ensure that all friable asbestos-containing material (ACM) or ACM which may become friable (i.e. Category II nonfriable ACM) are surveyed and abated in accordance with 40 CFR Part 61, Subpart M. Before performing any renovation in a public building, building owners are required to survey and perform asbestos abatement for all asbestos-containing building material (ACBM) that could foreseeably be disturbed in the area to be renovated in accordance with these rules. The asbestos survey and abatement for the demolition and/or renovation shall be conducted by persons licensed in accordance with these rules, and according to the standards for removal specified in §§295.58 - 295.60 of this title.

(b) Statement of responsibility. The building owner retains the primary responsibility for compliance with these rules for the presence, condition, disturbance, renovation, demolition, and disposal of any asbestos encountered in the construction, operations, maintenance, or furnishing of that building or facility, including:

  (1) the responsibility for the periods of vacancy, and for all preparations prior to actual demolition; all regulated asbestos-containing material (RACM) must be removed prior to demolition in accordance with the National Emission Standards for Hazardous Air Pollutants (NESHAP), and in a public building, comply with §295.60 of this title (relating to Operations: Abatement Practices and Procedures);

  (2) the obligation to inform those who enter the building or facility for purposes of construction, maintenance, installation, repairs, etc., of the presence and location of asbestos that could be disturbed by those activities, and to arrange for proper handling of any asbestos that would be disturbed or dislodged by such activity;

  (3) the responsibility for periods when the building or facility is under management by others;

  (4) the responsibility to ensure licensees have in effect workers' compensation insurance issued by a company authorized and licensed to issue workers' compensation insurance in this state and written in this state on the Texas form, or evidence of self-insurance, if workers' compensation insurance is required by the specifications or owner;

  (5) the responsibility to hire a contractor at the building owner's discretion to oversee certain tasks. Only a contractor engaged in asbestos-related activities, as described in these sections, must be licensed. The building owner retains primary responsibility for compliance with these rules. The building owner may delegate the following duties to a contractor:

    (A) preparing bid documents, which do not include plans and specifications as defined in §295.32(76) of this title (relating to Definitions);

    (B) entering into contracts for asbestos-related activities with qualified licensees;

    (C) overseeing the work performance of a licensee, as it relates to contractual obligations; and

    (D) paying for asbestos related activities on behalf of the owner; and

  (6) the responsibility to hire an agent other than a contractor in accordance with the responsibility provisions of paragraph (5) of this subsection subject to the conflict of interest limitations of §295.37 of this title (relating to Licensing and Registration: Conflicts of Interests).

(c) Conditions requiring a mandatory asbestos survey for ACBM. Prior to any renovation or dismantling within a public building, commercial building, or facility, including preparations for partial or complete demolition, as required by 40 CFR, §61.145, owners must have a thorough survey performed. The work area and all immediately surrounding areas which could foreseeably be disturbed by the actions necessary to perform the project must be inspected and sampled as applicable prior to renovations or demolition. A copy of the survey report must be produced upon request by the Texas Department of Health (department). If a survey cannot be performed before demolition or renovation is started due to the building being structurally unsound and unsafe to enter, all material must be presumed to contain asbestos and must be treated as ACBM.

  (1) In a public building the inspection must be performed by a person appropriately licensed in accordance with these rules. Criteria to rebut the presence of ACBM in a public building shall be based upon surveys which conform to generally accepted industry standards such as the protocol specified in §763.85, commonly referred to as the "AHERA" rules, which are the required method for schools. Other factors should be taken into consideration when deciding on the best method to determine the location, extent and condition of the ACBM in a non-school building. Multi-story buildings may require investigation of the systems in the building in order to identify all possible ACBM. Under no circumstances will less than three samples for each suspect homogeneous area be collected for purposes of rebutting the presence of ACBM. During the construction of or renovation in a public building, a person appropriately licensed in accordance with these rules, Texas-registered architect or Texas-licensed professional engineer may compile the information from material safety data sheets (MSDS) of all products used in the construction of the building and, finding no asbestos in any of those products, prepare a signed written certification that he has reviewed the MSDSs for all products used in the construction and that none of those products contain ACBM and; therefore, the building materials do not contain asbestos. This certification, together with copies of the MSDSs and copies of any previous asbestos surveys, may be used as an asbestos survey.

  (2) In a commercial building the inspection must be performed by an accredited inspector. This person is not required to be licensed but must have the applicable Model Accreditation Plan training.

  (3) In a facility the inspection must conform with 40 CFR §61.145.

  (4) Asbestos surveys remain acceptable if the asbestos survey was done in compliance with the Texas Asbestos Health Protection Rules (TAHPR) in effect at the time the asbestos survey was completed, and if the asbestos survey continues to represent accurately the suspect asbestos-containing building materials, location(s) of the materials surveyed, and any asbestos conditions in the building.

(d) Asbestos control and abatement. A public building owner has the following options for managing the asbestos found in his/her buildings.

  (1) Building owners may hire a licensed asbestos abatement contractor to conduct asbestos abatement.

  (2) Building owners may hire or retain a licensed asbestos abatement contractor or a licensed asbestos Operations and Maintenance (O&M) contractor to conduct small-scale, short-duration work activities or cleanup affecting asbestos. When utility work is to be performed, the building owner shall either have the affected asbestos-containing material removed prior to the work of a utility contractor, or require the utility contractor to be licensed to handle asbestos-containing materials.

  (3) Building owners may conduct asbestos O&M activities within public buildings with their own employees for their own account if they obtain an asbestos operations and maintenance contractor (restricted) license, according to §295.43 of this title (relating to Licensure: Asbestos Operations and Maintenance Contractor (Restricted)), have a licensed supervisor according to §295.44 of this title (relating to Licensure: Asbestos Operations & Maintenance Supervisor (Restricted)), and have registered workers according to §295.42 of this title (relating to Registration: Asbestos Abatement Workers).

  (4) Building owners may conduct asbestos abatement projects, including asbestos O&M activities, if they obtain an asbestos abatement contractor's license, as set forth in §295.45 of this title (relating to Licensure: Asbestos Abatement Contractor).

(e) Prohibition. The owner of a public building and any other person who contracts with or otherwise permits any person without appropriate valid license, registration, accreditation, or approved exemption to perform any asbestos-related activity is subject to administrative or civil penalty under the Texas Health Protection Act (Act), not to exceed $10,000 a day for each violation, or criminal penalty not to exceed $25,000, confinement in jail for not more than two years, or both.

(f) Mandatory notification. Notification is required in accordance with §295.61 of this title (relating to Operations: 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 asbestos must be submitted to the Texas Department of Health (department) by the public building owner and/or operator. In a facility, a notification to abate amounts described in NESHAP must be submitted to the department by the facility owner and/or operator.

(g) Mandatory abatement project design. A project design, with respect to friable ACBM, must be prepared by either a licensed consultant (for a school or public building) or an accredited project designer (for a commercial building) for all projects which involve any of the following activities:

  (1) A response action other than a SSSD activity,

  (2) a maintenance activity that disturbs friable ACBM other than a SSSD activity, or

  (3) a response action for a major fiber release episode. Abatement projects which have a combined amount of non-friable asbestos exceeding 160 square feet of surface area, or 260 linear feet of pipe length, or 35 cubic feet of material to be removed from a public building shall require that the project be designed by a licensed asbestos consultant. The exception to this requirement is for floor tile removed in accordance with §295.36 of this title (relating to Licensing and Registration: Exemptions; Emergency). In a commercial building, non-friable material does not require a design but must be treated in accordance with 40 CFR Part 61, Subpart M.

(h) Requirement for survey and management plan. If, in the opinion of the department following a site inspection of a public building, there appears to be a danger or potential danger from asbestos-containing building materials in poor condition to the workers or occupants of the building or the general public, the department shall, by written request, require the building owner or authorized representative to complete an immediate survey and asbestos management plan by a licensed asbestos inspector and licensed management planner or licensed consultant. A copy of the management plan shall be submitted for review and approval to the department within 90 days of receipt of the written request. Copies of the plan shall be on file with the owner or management agency, and in the possession of the supervisor in charge of building operations and maintenance.

(i) A person may not install building materials or replacement parts as stated in subsection (j) of this section, in a public building unless:

  (1) the person obtains a required MSDS showing that the materials or replacement parts contain 1.0% or less of asbestos; or

  (2) the materials or replacement parts, according to the MSDS, contain more than 1.0% asbestos but there is no alternative material or part as demonstrated by the building owner or contractor.

(j) A MSDS shall be obtained for the following building materials or replacement parts including but not limited to:

  (1) surfacing materials:

    (A) acoustical plaster;

    (B) decorative plaster/stucco;

    (C) textured paint/coating;

    (D) spray applied insulation;

    (E) blown-in insulation;

    (F) fireproofing insulation;

    (G) joint compound; and

    (H) spackling compounds.

  (2) thermal system insulation:

    (A) taping compounds (thermal);

    (B) HVAC duct insulation;

    (C) boiler insulation;

    (D) breaching insulation;

    (E) pipe insulation; and

    (F) thermal paper products.

  (3) miscellaneous material:

    (A) cement pipes;

    (B) cement wallboard/siding;

    (C) asphalt/vinyl floor tile;

    (D) vinyl sheet flooring/vinyl wall coverings;

    (E) floor backing;

    (F) construction mastic;

    (G) ceiling tiles/lay-in ceiling panels;

    (H) packing materials;

    (I) high temperature gaskets;

Cont'd...

Next Page

Link to Texas Secretary of State Home Page | link to Texas Register home page | link to Texas Administrative Code home page | link to Open Meetings home page