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RULE §295.37Licensing and Registration: Conflict of Interests

(a) Independent third-party air monitoring. Third-party area monitoring and project clearance monitoring for airborne concentrations of asbestos fibers during an abatement project shall be performed by a person under contract to the public building owner to collect samples by and for the owner of the public building being abated. Such persons must not be employed or subcontracted by the asbestos abatement contractor hired to conduct the asbestos abatement project, except that:

  (1) this restriction in no way applies to personal samples taken to evaluate worker exposure, as required by the Occupational Safety and Health Administration (OSHA) regulations; and

  (2) an air monitoring technician providing the service for the contractor meeting his/her responsibilities under OSHA regulations must also be licensed to perform that function; and

  (3) those who are licensed to perform asbestos abatement for their own account in their buildings shall employ an independent third-party air monitor for the purpose of obtaining area monitoring and final clearance.

(b) Licensee conflict of interest. Any person licensed according to these sections to perform an asbestos-related activity in a public building is subject to the following limitations on the same project in order to avoid a potential conflict of interest. These limitations apply whether the licensee is acting in his or her own capacity or as the agent of the building owner except as noted:

  (1) a consultant who performs asbestos inspections or surveys, writes management plans, or designs asbestos abatement projects, may not hire an asbestos abatement contractor to engage in asbestos abatement on a project that the consultant has inspected or designed or in a building for which the consultant has written the management plan;

  (2) an abatement contractor who engages in asbestos abatement may not hire a consultant to perform asbestos inspections or surveys, write management plans, or design asbestos abatement projects unless he is a building owner who is also licensed to engage in asbestos abatement and is acting as the abatement contractor in his own buildings in accordance with §295.34(d)(4) and (g) of this title (relating to Asbestos Management in Facilities and Public Buildings) on a project for which he is the abatement contractor;

  (3) an abatement contractor who engages in asbestos abatement may not hire an air monitor to perform baseline, ambient or clearance air monitoring unless the exceptions in subsection (a)(1) or (a)(3) of this section apply; and

  (4) certain conflict of interest provisions under this subsection do not apply to municipalities as indicated in subsection (c) of this section.

(c) Municipalities exemption. Municipalities are exempt from certain conflict of interest requirements. They may retain a licensed person who may perform asbestos inspections and surveys, write management plans, design abatement projects and abate asbestos in the same building or facility. This exemption does not allow a licensee who engages in these activities to conduct air monitoring or abatement project clearance procedures on the same project, which includes performing visual inspection and air samples for clearance in accordance with §295.58(i)(3) of this title (relating to Operation: General Requirements). Air monitoring activities must be performed by an independent third party who is not an employee of the municipality.

(d) An individual instructor shall not train himself/herself, nor shall an individual give himself/herself a physical examination in order to qualify for a license.

Source Note: The provisions of this §295.37 adopted to be effective October 20, 1992, 17 TexReg 6901; amended to be effective September 22, 1994, 19 TexReg 7098; amended to be effective December 13, 1998, 23 TexReg 12353; amended to be effective March 27, 2003, 28 TexReg 2549

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