Response: The department agrees and changed the language to state "below 60%, preferably below 50%" would be satisfactory in §297.5(g)(4). In §297.8(b)(4), Table 1, in the Asbestos (fibrous material) category, the MRL Guidelines was changed to "less than 60% (preferably 50%) year round".

Comment: Concerning §297.5(g)(4), one commenter suggested that rain, groundwater and plumbing be included as issues to address regarding the prevention of microbial growth.

Response: The department agrees and has added "prevent water intrusion from rain and groundwater by proper maintenance of the landscape, roof, and exterior structure materials;".

Comment: Concerning §297.5(g)(6)(B), one commenter suggested that CDC and/or NIOSH guidance be referenced regarding protocols for protecting building occupants and workers during cleanup of areas contaminated by animal waste.

Response: The department agrees and has added a reference to the United States Department of Health and Human Services/National Institute for Occupational Safety and Health Publication Number 97-146, September 1997, Histoplasmosis: Protecting Workers at Risk.

Comment: Concerning §297.5(g)(7), one commenter suggested that specific guidelines and standards regarding microbial remediation be referenced in this section, such as current EPA recommendations and/or the New York City Department of Health Fungal Remediation Protocols.

Response: The department agrees, and a change was made to add "current recognized" guidelines.

Comment: Concerning §297.5(g)(8), one commenter objects to the recommendation that sewage-contaminated porous materials be replaced with a non-porous material. Since sewage back up is not a common occurrence, the commenter does not feel the recommendation regarding non-porous materials is logical under these circumstances.

Response: The department agrees and a change was made. The phrase "preferably with non-porous materials" is deleted.

Comment: Concerning §297.5(h), regarding the recommendation that proper ventilation be provided in areas where animals may be allowed in a building, one commenter suggested that the ventilation should be negative.

Response: The department disagrees. The current wording is sufficient to allow the building operator to decide what level of ventilation is acceptable for a particular situation. No change was made as result of this comment.

Comment: Concerning §297.5(k), one commenter believes this section should be more specific about which procedures are to be followed for removal of toxic contaminants, suggesting wording referring to the use of "standard industry practices or applicable state and federal regulations."

Response: The department agrees and a change was made to recommend "recognized best practices" for the removal of toxic contaminants of concern when performing maintenance, repairs or remediation and to delete the phrase "the appropriate procedures." The last sentence was clarified to read, "Always follow any applicable state and federal laws."

Comment: Concerning §297.5(l)(1), one commenter suggested adding that sanitizers should not be used for general cleaning.

Response: The department agrees. A statement was added as suggested.

Comment: Concerning §297.5(n)(1), one commenter suggested that wording regarding the possibility of contaminants entering a building be clarified to state "...a known contaminant at the outside air intake."

Response: The department agrees and made a change to clarify the meaning.

Comment: Concerning §297.6(a), one commenter suggested that the use of signed checklists be recommended as a tool for ensuring the cleanliness of offices, classrooms, workrooms, etc.

Response: The department acknowledges that signed checklists would be useful for certain maintenance personnel; however, §297.6(a) applies to the responsibilities of individual building occupants, and such a recommendation is not applicable here. A new §297.5(o)(4) is added under §297.5(o), regarding records to be kept as a part of building operations and maintenance. The new language is: "Maintenance records. Maintenance should be documented by a signed and dated report or check-off list."

Comment: Concerning §297.6(i), one commenter suggested the addition of a recommendation that a food policy be implemented.

Response: The department acknowledges that the implementation of a food policy would be useful; however, this subsection applies to the responsibilities of individual building occupants, and such a recommendation is not applicable here. An addition is being made that "applicable food policies should be followed."

Comment: Concerning §297.7(g), one commenter believes the department must specifically define the qualifications one must meet to be considered "qualified" or "certified," otherwise anyone can claim to be qualified or certified.

Response: The department disagrees. "Qualified" is defined in the definitions. A clarification has been added to the statement regarding certified organizations as follows: "Laboratory analysis of samples, where required, should be performed by a laboratory recognized or, preferably, certified in performing the analyses requested." Further definition of "qualified" or "certified" is not within the scope of these rules.

Comment: Concerning §297.7(h)(1), one commenter suggested adding wording that the reason sampling is needed should be established, and the legal and/or recognized acceptable standard that will be used for comparison should be described.

Response: The department disagrees. Determining a reason for sampling is covered in §297.7(g); §297.7(h)(1) discusses the selection of a standard of comparison. No change was made as a result of this comment.

Comment: Concerning §297.7(i), one commenter noted that this section is the first reference to remediation practices, and the term "remediation" is not defined in the definition section of the guidelines.

Response: The department disagrees. The department has not developed and is not referring to a specific set of steps that would require a special definition of the word "remediation." It is used here as a generally accepted word meaning to "fix" a problem. No change was made as result of this comment.

Comment: Concerning §297.7(k)(1)(B), one commenter believes that training requirements for workers should be stated here, in addition to that of the contractor, to prevent the practice of a contractor hiring "day laborers" to perform a job.

Response: The department agrees that training the workers is an important consideration but not for the reasons stated by the commenter. A change was made to clarify the requirement to document the training of workers.

Comment: Concerning §297.7(k)(1)(F), one commenter requested that in addition to the types of insurance specified, the section should also specify that a contractor must have workers compensation coverage.

Response: The department disagrees. Workers compensation insurance is not required under Texas law. No change was made as a result of this comment.

Comment: Concerning §297.8(a)(1), and Figure 25 TAC §297.8(b)(4), one commenter believes that 70 degrees is too low of a temperature for occupant comfort in some cases, such as when the outside air dew point is in the 70's.

Response: The department agrees. A change was made to the range of recommended temperatures to state that the room temperature for a typical occupied office or classroom environment should be kept between 72 and 76 degrees Fahrenheit in the summer and 70 and 75 degrees Fahrenheit in the winter and controlled within a temperature range of ±2 degrees Fahrenheit for a given day. The changes were made to §297.8(a)(1) and the table in the Figure 25 TAC §297.8(b)(4) under the MRL Guidelines column.

Comment: Concerning §297.8(b), one commenter noted that the information in Table 1 is helpful, but requests documentation be provided as to the origin of each of the minimum risk levels given in the table.

Response: The information provided in Table 1 is from the documents referenced in §297.8(b). No change was made a result of this comment.

Comment: Concerning §297.8(b)(1), one commenter requested an explanation of the source of the multiplier 0.14, and further notes that there are no references listed as stated.

Response: The 0.14 "multiplier factor" was derived as follows: the Texas Commission on Environmental Quality (TCEQ), formerly the Texas Natural Resource Conservation Commission (TNRCC), uses a factor of 0.1 times lower concentration for one year exposures than the one-hour exposures and recommends multiplying a one-hour exposure by 0.7 to get an eight-hour exposure level. The multiplier was determined by a simple algebraic calculation: multiplying 0.7 by what "multiplier factor" would give 0.1 (the TCEQ factor for one year), or in equation format: 0.7 x "multiplier factor" = 0.1. Solving this equation, the "multiplier factor" = 0.1/0.7 = 0.143, or approximately 0.14. No change was made as result of this comment. An error in the rules which referred to references "below," should have stated "above". For clarity, the statement was corrected to read "references in subsection (b) of this section" which refers to §297.8(b).

Comment: Concerning Figure 25 TAC §297.8(b)(4), regarding the MRL guidelines recommended for Carbon Monoxide (CO), one commenter noted that an inside level of CO higher than that of the outside air should trigger concern about a problem in the building.

Response: The department agrees. Additional wording has been added in Table 1 under the MRL Guideline: "If the inside CO level is higher than the outside CO level, look for a possible inside source."

Comment: Concerning §297.9, one commenter opposed the wording of the recommendation that the guidelines be a required part of the lease agreement between a government entity and another public or private entity. The commenter believed that this would require the entire guideline document to be physically attached as an exhibit or part of a lease, and recommends that if indoor air quality issues are to be addressed in the lease agreement, that the language state that landlord is required to comply with "applicable current Texas Department of Health Standards for Indoor Air Quality." Another commenter noted that this section will impact all future lease agreements and increase costs. The commenter noted that significant future problems can be avoided if pre-work is done prior to lease signing.

Response: The department agrees that the entire guideline document does not have to be included as an attachment to a lease. This section was changed to state that a clause should be included in a lease agreement to require the property owner/property manager to comply with the current Texas Department of Health Voluntary Guidelines for Indoor Air Quality in Government Buildings.

Comment: Concerning §297.10 (b), one commenter suggested that the statement "The authority having jurisdiction should prioritize projects based on...," should be changed to "The building owner/operator should prioritize projects based on....". The commenter also suggested the removal of the following: "All correctional facilities in the state should be participating in the accreditation process with the American Correctional Association (ACA). This process involves evaluations for air circulation, illumination levels and noise levels." The concern is that small correctional facilities may not have the financial resources to comply with the ACA accreditation process, and the benefits in regards to indoor air quality have not yet been determined.

Response: The department agrees. The words "authority having jurisdiction" have been deleted, and replaced with "building owner/operator." The following sentences have been deleted: "All correctional facilities in the state should be participating in the accreditation process through the American Correctional Association (ACA). This process involves evaluations for air circulation, illumination levels and noise levels."

The comments on the proposed rules received by the department during the comment period were submitted by the Texas Building Owners and Managers Association, by the National Indoor Air Quality and Remediation Association, and by the Texas Department of Criminal Justice. In addition, two individuals submitted comments. The commenters were generally in favor of the rules, but expressed concerns, asked questions, and made recommendations.

The new sections are adopted under the Health and Safety Code, §385.002, which provides the Texas Department of Health with the authority to establish voluntary guidelines for indoor air quality in government buildings, and §12.001, which provides the board with the authority to adopt rules for performing every duty imposed by law on the board, the department, and the Commissioner of Health.