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RULE §295.36Licensing and Registration: Exemptions; Emergency

(a) Exemption. Those who remove resilient floor covering materials in public buildings are exempt from the licensing and registration requirements of these sections, provided that:

  (1) if the floor covering materials and/or adhesives have been sanded, ground, mechanically chipped, drilled, abraded or cut (includes sawing but does not include shearing, slicing or punching) prior to the start of the project, then an appropriately licensed person must be used for the abatement;

  (2) upon initiating the RFCI work practices, the flooring material does not become friable, is not made into RACM, remains intact (as defined in 29 CFR 1926.1101), or is not sanded, ground, mechanically chipped, drilled, abraded or cut (includes sawing but does not include shearing, slicing or punching). Failure to stop the project under these circumstances is a violation of this section and §295.34(a) of this title (related to Asbestos Management in Facilities and Public Buildings), and subjects the contractor and the building owner to penalties in accordance §295.70 of this title (relating to Compliance: Administrative Penalty);

  (3) all those engaged in removal of resilient floor coverings shall have received training in an eight-hour course which covers the elements described in the document titled, "Recommended Work Practices for Removal of Resilient Floor Coverings," published by the RFCI in 1998;

  (4) in addition to the training in §295.36(a)(3), employees of schools (kindergarten through 12th grade) who elect to use this exempt method must first complete the 16-hour custodial training, as required by federal regulations adopted under authority of the Asbestos Hazard Emergency Response Act of 1986 (AHERA). Possession of a valid worker registration or supervisor license eliminates the individual's need for the 16-hour training;

  (5) the actual removal of floor coverings and adhesive under this exemption is limited to the exempted methods of removal and must be conducted according to the work practices published for distribution by the RFCI in 1998, or as directed by the commissioner of health; and

  (6) the asbestos activity permitted by the exemption is limited to the removal of resilient floor covering and adhesives, and does not apply to any other asbestos-related activity, nor does the training or experience gained from such practices qualify for any other asbestos-related activity. The exemption is strictly limited to flooring materials maintained in a non-friable state. RFCI guidelines are to be used; however, the permissible exposure limit (PEL) may not be exceeded. If the flooring materials become friable or the PEL is exceeded either before or during the removal, then:

    (A) the person removing the floor covering is required to be licensed; and

    (B) removal under RFCI exempted methods must cease, and abatement activity must conform to the requirements of these sections.

(b) Notification required. The Texas Department of Health shall receive written notification that has been postmarked or hand delivered at least ten working days prior to commencing any removal of floor coverings from public buildings permitted under the terms of this exemption, as required in §295.61 of this title (relating to Operations: Notifications). Telephone facsimile (FAX) is not acceptable.

(c) Failure to comply. Persons who fail to comply with subsection (a)(1)-(6) of this section are subject to an administrative penalty of not more than $10,000 per violation per day. Persons who fail to comply with notification requirements, or other applicable sections of the Texas Asbestos Health Protection Act (Act) or rules, are subject to administrative, civil, or criminal penalties.

(d) Abatement emergency. In an abatement emergency affecting public health or safety that results from a sudden, unexpected event that is not a planned renovation or demolition the department, on notification, may waive the requirement for a license. Call the servicing department regional office, environmental and consumer health division or (512) 834-6600 for consultation about emergencies.

Source Note: The provisions of this §295.36 adopted to be effective October 20, 1992, 17 TexReg 6901; amended to be effective September 22, 1994, 19 TexReg 7098; amended to be effective March 27, 2003, 28 TexReg 2549

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