The Texas Department of Health (department) adopts the repeal of existing §§297.1 - 297.6, and adopts new §§297.1 - 297.10, concerning voluntary guidelines for indoor air quality (IAQ) in government buildings. Sections 297.3 - 297.10 are adopted with changes to the proposed text as published in the August 9, 2002 issue of the Texas Register (27 TexReg 7022). New §§297.1 - 297.2 and the repeal of §§297.1 - 297.6 are adopted without changes, and the sections will not be republished in the Texas Register.

The repeal of §§297.1 - 297.6 is necessary because House Bill 2008 (HB 2008), passed in the 77th Legislature, 2001, amended the Health and Safety Code, Subtitle C, Title 5, Chapter 385, to require the Texas Board of Health (board) to establish voluntary guidelines for indoor air quality in government buildings rather than only in public school buildings. The adopted new §§297.1 - 297.10 include the changes necessary to cover other government buildings as well as public schools. The sections include recommendations for implementing an IAQ program; considerations regarding building design, construction, renovation, maintenance and operation; responsibilities of building occupants; guidance for assessing and resolving IAQ problems; guidelines on comfort and minimum risk levels; lease agreements; and special considerations.

Government Code §2001.039 requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 297.1 - 297.6 have been reviewed and the department has determined that the reasons for adopting the sections continue to exist; however, revisions to the rules are necessary as the existing rules will be repealed and new rules proposed.

The department published a Notice of Intention to Review for §§297.1 - 297.6 regarding the agency review of rules in accordance with Government Code, §2001.039 in the Texas Register (27 TexReg 4745) on May 31, 2002. No comments were received by the department on these sections.

The department is making the following minor changes due to staff comments to clarify the intent and improve the accuracy of the sections.

Change: Concerning §297.4(b)(2), a clarification has been added to reference all sections of the Texas Environmental Lead Reduction Rules.

Change: Concerning §297.8(b)(4), Table 1, a clarification has been added to the footnote regarding MRL Guidelines to include the definition of the MRL abbreviation to mean "Minimum Risk Level," and to explain that the concentration units listed in the footnote are for those units not otherwise defined in the MRL Guideline column. Regarding "Temperature" under the "Condition or Contaminant" column, the language in the MRL Guidelines was changed to be consistent with wording in §297.8(a)(1), and under the "Comments" column, "relative humidity" was spelled out. Regarding "Allergens" under the "Condition or Contaminant" column, the two sentences in the "Comfort/Health Effects" column were condensed into one sentence. Regarding "Particulate Matter" under the "Condition or Contaminant" column, under the column heading "Major Sources," "outside" was changed to read "numerous outside sources" for clarification; and under the column "Comfort/Health Effects," the words "more of" were changed to "of greater." Regarding "Pesticides" under the "Condition or Contaminant" column, under the column heading "Major Sources," the following language was added: "and fogging for mosquitoes or other pests."

Change: Concerning §297.10(b), wording was clarified to remove redundant phrasing: "some of the," and added the word "existing."

The following comments from the public were received concerning the proposed sections during the comment period. Following each comment is the department's response and any resulting change(s).

Comment: Concerning the rules in general, one commenter noted the most important statement in the proposed preamble is the following: "It is not the intent of the board or the department to require implementation of these guidelines, but rather to encourage the use of sound, cost-effective management practices to provide the best indoor air quality possible in government buildings." The commenter encouraged the department to explore all avenues available both private and public to develop a useful tool that can be used effectively and efficiently by all entities, not just governmental entities, and noted that the roll out of such a program could be similar to that used in the 1980's with the department's Hazard Communication Program.

Response: The department was directed by House Bill 2008 to establish by rule voluntary guidelines for indoor air quality in government buildings. The document could certainly be used by any entity as a guidance document to address indoor air quality issues in any type of building. The department continuously endeavors to provide information on indoor air quality to the public through educational programs and outreach. No changes were made as a result of the comment.

Comment: Concerning the rules in general, one commenter referred to a statement in the preamble that government agencies could save money on mold cleanup if steps are taken early on to prevent the conditions that allow mold to develop. The commenter noted that guidance regarding those early steps should be included in the rules.

Response: The department agrees and believes that such guidance is included in the rules. No change was made as result of this comment.

Comment: Concerning the rules in general, one commenter disagrees with the determination as stated in the preamble that there will be no significant fiscal implications for state or local governments.

Response: The department disagrees and reiterates the fact that because these rules are voluntary guidelines, and governments are not required to comply, specific costs cannot be determined. Each governmental entity can choose how much, if any, fiscal resources will be allocated to this voluntary program. If the guidelines are implemented, the department believes it will have a positive fiscal impact because the benefits of improving indoor air quality will outweigh the costs of implementation. No change was made as result of this comment.

Comment: Concerning the rules in general, one commenter disagreed with the determination as stated in the preamble that there will be minimal to no effect on micro-businesses or small businesses.

Response: The department disagrees. Because these rules are voluntary guidelines, the department does not anticipate a sudden change in practices that would have a major effect on micro-businesses or small businesses. The department would expect some businesses to be affected beneficially over several years, such as those that sell products or provide services related to indoor air quality issues. Some building owners or building managers may be financially impacted, but as stated above, the department believes the benefits of improving indoor air quality will outweigh costs to implement changes and improvements. No change was made as a result of this comment.

Comment: Concerning the rules in general, one commenter recommended that in order to protect the public health and reduce the chances of litigation to state and local governments, the board institute a system of certification for indoor air quality assessors, testers, and mold remediation and an endorsement for HVAC contractors.

Response: The board cannot institute such programs unless specific legislation is passed directing the board to do so. No change was made as a result of this comment.

Comment: Concerning §297.2(7), one commenter asked if the definition of government buildings covers day care/child care entities that may receive some funding from a government entity.

Response: The definition of government buildings as stated does not cover day care/child care facilities unless the facility is located within a government building as defined. No change was made as result of this comment.

Comment: Concerning §297.2(20), one commenter suggested that minimum criteria be specified to define what makes a person "qualified."

Response: As there are many different situations that may arise where a "qualified" person is recommended to perform a given task, the department believes the definition as given is appropriate. No change was made as result of this comment.

Comment: Concerning §297.3(a)(2), one commenter suggested that a clarification is needed concerning who should be allowed to evaluate the medical history of building occupants, due to the personal and confidential nature of such information.

Response: The department agrees that the gathering of and evaluation of medical histories of building occupants is a sensitive issue. It is not the intent of the department to recommend that medical histories of individuals be collected in order to implement an indoor air quality program, but rather, that the characteristics of populations as a whole that use or occupy a building be taken into account. If a building is occupied by groups of persons with known characteristics, such as children, the elderly, or hospital patients, for example, different protocols will be indicated to ensure good indoor air quality than would be indicated in a typical office building occupied by healthy adults. It is not within the scope of these rules to define who should be allowed to evaluate medical histories of building occupants. Each governmental entity developing an IAQ management plan should determine who specifically will investigate indoor air quality complaints that might arise and how any medical information shared by occupants with that investigator should be handled under existing state and federal laws that govern medical records and privacy issues. Section 297.3(b)(3) discusses the development of a complaint response as part of an IAQ management plan. To clarify the intent of this subsection, §297.3(a)(2) has been reworded as follows: "When implementing an IAQ program for a building, characteristics and activities of the population occupying and visiting the building should be considered, as these may indicate unique needs relating to indoor air quality." The statement "Examples of population parameters to consider would include but not be limited to: age, medical history, immune-compromised conditions (cancer, HIV or other), amount of time in building and activities performed by occupants" has been deleted in §297.3(a)(2).

Comment: Concerning §297.3(a)(3), one commenter suggested that wording regarding assessments of facilities to identify and document building operations and problem areas be based on current use, rather than original facility design intent.

Response: The department agrees. The wording "original facility design intent" has been deleted and replaced by "current use."

Comment: Concerning §297.3(b)(5), (b)(7), and (c), one commenter expressed concerns about the recommended annual updates of maintenance and operation plans, annual inspection/review of facilities, and annual administrative reviews, noting that such reviews and updates should be done on a periodic basis and at an interval not greater than two years.

Response: The department disagrees and believes that annual reviews and updates are appropriate and reasonable. No change was made as a result of this comment.

Comment: Concerning §297.3(b)(2), one commenter suggested that "pesticide use" be added to the parenthetical list of activities that may impact IAQ.

Response: The department agrees and the addition was made.

Comment: Concerning §297.4(a)(2)(C), one commenter suggested the addition of more climate factors, such as temperature, relative humidity, dew point, rain quantity and prevailing direction to the type of climate assessment data that should be developed and evaluated in selecting a building site.

Response: The department agrees and added "temperature, relative humidity, dew point, rain quantity and prevailing direction" to the types of climate assessment data that should be evaluated.

Comment: Concerning §297.4(a)(4)(D), one commenter suggested a more detailed discussion of methods to prevent moisture.

Response: The department agrees that more information would be useful; however, this level of detail is not within the scope of these rules. A change was made to add "water intrusion" to the types of moisture problems that should be avoided through the proper design and installation of building components.

Comment: Concerning §297.4(a)(5)(A), one commenter suggested the addition of wording regarding dehumidification of outside air.

Response: The department agrees. The last sentence was changed to read, "Preconditioning of outside air supplies, particularly dehumidification, is recommended where possible."

Comment: Concerning §297.4(a)(5)(G), one commenter suggested additional discussion about drain lines.

Response: The department agrees, and added a new sentence, "Drain lines need to be adequately sloped to provide proper drainage."

Comment: Concerning §297.4(a)(5)(J), regarding positive building pressure, one commenter suggested that wording be added to address pressure differentials between wall cavities, plenums and rooms.

Response: The department agrees, and additional wording has been added to the first sentence as follows: "The rooms of the buildings should be maintained at a net positive pressure (minimum of 1 Pascal) with respect to the wall cavities and plenums, and the wall cavities should be maintained at a net positive pressure (minimum of 1 Pascal) with respect to the outside atmospheric pressure."

Comment: Concerning §297.4(a)(5)(L), one commenter noted that the word "prior" should be changed to "proper."

Response: The department agrees that the word "prior" was an error, and has changed the word to "proper."

Comment: Concerning §297.4(a)(5)(O), one commenter suggested the addition of a comment regarding the control of relative humidity.

Response: The department agrees and an additional sentence was added as follows: "Humidistats should be used in rooms where humidity control is important."

Comment: Concerning §297.4(b), one commenter suggested adding specific examples of the types of fumes and dusts from which building occupants should be protected during renovation, to include asbestos, lead, mold, pesticides and heavy metals. Another commenter suggested that the wording of this statement be expanded, possibly as follows, "Building occupants should be protected from airborne contaminants that may be disturbed, generated, released during mitigation and/or renovation."

Response: The department agrees with these comments, and made changes to delete the words "fumes and dusts" and state as follows, "Building occupants should be protected from airborne contaminants that may be disturbed, generated, or released during mitigation and/or renovation, including irritating or toxic substances such as asbestos, lead, pesticides, heavy metals, mold, cement dust, paint vapors, and roof tarring vapors."

Comment: Concerning §297.4(b)(9), one commenter suggested that information on the type of filters to use be included.

Response: The department agrees and an additional sentence was added to state, "The highest possible MERV rated filters should be used during renovation and for a few days after to minimize exposure to renovation related particulates and dust."

Comment: Concerning §297.4(g), one commenter suggested the addition of wording regarding re-occupation of an area or building.

Response: The department agrees. "Initial occupancy" was deleted from the proposed sentence and an additional sentence was added as follows: "During initial occupancy of a new area and during re-occupancy following repairs or renovations, the fresh air rate and the total air supply rate may need to be increased until any out-gassing of the new material has decreased to a level that will not cause adverse heath effects to the occupants."

Comment: Concerning §297.5(d), one commenter suggested that a subsection be added to address the use of "track-off systems" as a housekeeping consideration.

Response: The department agrees and added new section §297.5(d)(5): "Walk-off mats. Use walk-off mats (barrier mats) to trap dirt at all entry ways into the building, including pedestrian entrances, loading docks, receiving areas, freight entrances, and garages." The EPA refers to such systems as walk-off or barrier mats, so to maintain consistency, that terminology was used rather than "track-off systems."

Comment: Concerning §297.5(f)(1), one commenter noted that the recommendation to cover outside air intakes with a grill to prevent insects from entering would mean frequent cleaning of such grills.

Response: The department agrees and added the recommendation that such grills be routinely inspected and cleaned to prevent clogging by dirt and debris.

Comment: Concerning §297.5(f)(3), one commenter suggested the additional wording "designed and" be added to the statement regarding the operation of HVAC systems.

Response: The department disagrees because this subsection is referring only to the operation of HVAC systems. The design of HVAC systems, including factors to control moisture, is covered under the proposed §297.4(a)(5). No change was made as result of this comment.

Comment: Concerning §297.5(f)(4)(B), one commenter suggested wording be changed to state more clearly that the cleaning of internally lined ducts should not be done, because all published literature on this subject recommends against cleaning of these surfaces.

Response: The department disagrees. The department feels that the present wording adequately conveys concern about cleaning such surfaces when they are contaminated, and that replacement is the preferred action. No change was made as result of this comment.

Comment: Concerning §297.5(f)(7), one commenter suggested the addition of wording regarding the need to control relative humidity overnight and on weekends.

Response: The department agrees that consideration of the need to control relative humidity overnight and on weekends should be included; however, we believe that it is more appropriate to include this in §297.5(g)(4) referring to steps to prevent microbial growth. The words "at all times" was added after "below 60%, preferably below 50%".

Comment: Concerning §297.5(g), and proposed wording about conditions that allow or encourage microbial growth, one commenter suggested that the word "enhance" be considered as a descriptor, rather than "allow or encourage" as proposed.

Response: The department disagrees. The present wording is sufficient, and conveys the same meaning. No change was made as result of this comment.

Comment: Concerning §297.5(g)(4), and §297.8(b)(4), regarding the relative humidity levels of less than 50% to prevent mold growth, a commenter stated that it would be basically impossible to achieve this goal in building in many areas of Texas. The commenter requested that it should 60% instead of 50%.