SECTION 296.191. Asbestos Management in a Public Building, Commercial Building, or Facility

(a) Public building owner responsibilities.

(1) The public building owner is responsible for compliance with this chapter in relation to the presence, condition, disturbance, renovation, demolition, and disposal of any ACBM and ACWM that is encountered in the construction, operations, maintenance, or furnishing of that public building, including when the building is under management by others.

(2) Before operations and maintenance, renovation, or demolition, the public building owner is required to have an asbestos survey performed, identify the presence of asbestos, and have ACBM that may be disturbed by the operations and maintenance, renovation, or demolition activity abated, as required in this chapter.

(3) The public building owner must fulfill the following obligations, either personally or through the building owner's authorized representative, including when the building is under management by others:

(A) inform anyone who performs any type of construction, maintenance, installation, repairs, custodial services, renovation, or demolition work in the owner's building of:

(i) the presence and location of ACBM before the start of any asbestos-related activity;

(ii) that the ACBM could be disturbed or dislodged by those activities; and

(iii) that the person conducting those activities must arrange for proper handling of ACBM and ACWM;

(B) hire or otherwise permit only a person holding the required license to perform asbestos-related activity in the building;

(C) require each person described under subparagraph (B) of this paragraph to comply with all applicable requirements of this chapter;

(D) ensure compliance with this chapter during periods of vacancy; and

(E) confirm that the regulated area meets the clearance level of 0.01 f/cc before reoccupancy of that area.

(4) The building owner or the building owner's authorized representative may provide the information described in paragraph (3) of this subsection in writing or through documented oral communication.

(b) Commercial building owner responsibilities. The commercial building owner is responsible for compliance with this chapter in relation to the presence, condition, disturbance, renovation, demolition, and disposal of any asbestos that is encountered in the construction, operations, maintenance, or furnishing of that commercial building, including when the building is under management by others. Before operations and maintenance, renovation, or demolition, the commercial building owner is required to have a thorough inspection performed, identify the presence of asbestos, and have the RACM that may be disturbed by the operations and maintenance, renovation, or demolition activity abated in accordance with NESHAP. The commercial building owner must also ensure compliance with this chapter during periods of building vacancy.

(c) Facility owner responsibilities. The facility owner is responsible for compliance with this chapter in relation to the presence, condition, disturbance, renovation, demolition, and disposal of any asbestos that is encountered in the construction, operations, maintenance, or furnishing of that facility, including when the facility is under management by others. Before operations and maintenance, renovation, or demolition, the facility owner is required to have a thorough inspection performed, identify the presence of asbestos, and have the RACM that may be disturbed by the operations and maintenance, renovation, or demolition activity abated in accordance with NESHAP. The facility owner must also ensure compliance with NESHAP during periods of vacancy.

(d) Mandatory survey for ACBM before renovation or demolition.

(1) Before any renovation or dismantling outside of or within a public building, commercial building, or facility, including preparations for partial or complete demolition, the owner must have an asbestos survey performed.

(2) The work area and all immediately surrounding areas that could foreseeably be disturbed by the actions necessary to perform the project must be thoroughly surveyed and, as applicable, sampled before renovation or demolition.

(3) A copy of the asbestos survey report that includes the contents described in §296.21(93) of this chapter (relating to Definitions), as applicable, must be produced upon request by DSHS within 10 working days after the request.

(4) A building may be demolished with RACM in place if a state or local government orders the demolition because the building is structurally unsound and in danger of imminent collapse, as determined by a professional engineer or a city, county, or state government official who is qualified to make that decision.

(A) The owner must maintain documentation of such order.

(B) If an owner is unable to obtain a survey because the building is structurally unsound and unsafe to enter, and the owner is unable to obtain an order for demolition and has a letter from a professional engineer stating the building is structurally unsound and in danger of imminent collapse, the owner may contact DSHS to request a waiver from the survey requirement. Documentation supporting the inability to obtain an order must be submitted with the request.

(C) If a survey cannot be performed before demolition starts due to the building being structurally unsound and unsafe to enter, all suspect material must be treated as RACM, in accordance with NESHAP requirements in 40 CFR §61.141 (relating to Definitions), §61.145(a)(3) and (c)(4) - (9) (relating to Standards for demolition and renovation), and §61.150(a)(3) (relating to Standard for waste disposal for manufacturing, fabricating, demolition, renovation, and spraying operations).

(5) Without otherwise limiting the scope of an asbestos survey, each survey for a public building must treat any building material listed in subsection (o)(2) of this section as suspect ACBM and include all such materials in the asbestos survey if the materials could foreseeably be disturbed during the renovation or demolition activities.

(6) In a public building, the mandatory survey requirement must be met in one of the following two ways.

(A) A person appropriately licensed as required in this chapter and the Act performs a survey which conforms to generally accepted industry standards, such as the AHERA requirements specified in 40 CFR Part 763, Subpart E (relating to Asbestos-Containing Materials in Schools), §§763.85 - 763.88, the required method for schools. The licensee must prepare a survey report that includes the contents described in §296.21(93) of this chapter. To demonstrate that there is no ACBM, the licensed individual must collect a minimum of three samples from each suspect homogeneous area.

(B) A Texas-registered architect or a Texas-licensed professional engineer certifies that the architect or engineer has compiled and reviewed the information from MSDSs and SDSs of the materials used in the original construction of the building and the renovations or alterations of all parts of the building affected by the planned renovation or demolition, matches the MSDSs and SDSs to materials on-site, reviews any asbestos survey reports of the building previously conducted as required at the time of the survey, and certifies that in the architect's or engineer's professional opinion, no part of the building, including the building materials, affected by the planned renovation or demolition contain asbestos. This certification must also clearly identify the name of the building, the street address and specific area of the building that applies to the certification, the survey report date of each previous asbestos survey report reviewed, whether the relevant work was new construction or renovation, and the specific dates of completion of all original construction and renovations or alterations that apply to the certification. A Texas-registered architect must prepare this certification in accordance with the rules of professional conduct in 22 TAC Chapter 1. A Texas-licensed professional engineer must prepare this certification in accordance with the rules of professional conduct in 22 TAC Chapter 137. A complaint that a certification was not performed as required in this paragraph will be referred to the Texas licensing boards or another government agency with jurisdiction over the complaint as needed. A building owner that meets the mandatory survey requirement, as described in this subparagraph, must keep the certification, copies of the MSDSs or SDSs or both, and any previous asbestos surveys as required in §296.291(j) of this chapter (relating to Recordkeeping) that were reviewed by the architect or engineer. A certification prepared as described in this paragraph does not meet the OSHA or NESHAP requirement for an asbestos survey.

(7) In a commercial building, an accredited inspector who has completed the MAP inspector training may perform the asbestos survey.

(8) In a facility that is not a public or commercial building, the survey must conform to 40 CFR §61.145. OSHA regulations or other EPA regulations may apply.

(e) Asbestos survey.

(1) A limited asbestos survey may be performed to address a specific area of a building, such as an area identified for renovation. A limited asbestos survey may not be substituted for a thorough asbestos survey of the entire building.

(2) A comprehensive asbestos survey covering the entire building is required before demolition of a building.

(3) An asbestos survey report remains acceptable if the asbestos survey is done in compliance with the applicable law, including the Texas Asbestos Health Protection rules in effect at the time the asbestos survey is completed and the asbestos survey addresses and accurately represents ACM and ACBM, as applicable, for the building affected by the planned renovation, demolition, or O&M activity, including its location, type, and condition.

(4) An environmental assessment report may not be used as an asbestos survey report unless it is conducted by an appropriately accredited or licensed person and contains all of the required elements of an asbestos survey report, as applicable.

(f) Sampling for asbestos in a public building. A licensed asbestos inspector must perform an asbestos survey in accordance with generally accepted standards, such as the methods described in 40 CFR §§763.85 - 763.88. The survey and survey report must identify, including its location, type, and condition, all ACBM that is found to be ACM. To assess the presence of ACBM and determine the need for any O&M activity or abatement, the licensed asbestos inspector must collect a minimum of three samples from each homogeneous area. The samples must be evaluated by a licensed asbestos laboratory. If one sample from a homogeneous area is found to be ACM, the remaining samples from that homogeneous area do not have to be analyzed. Building materials that have not been surveyed as required in this subsection and are suspected of containing asbestos must be treated as ACBM.

(1) When conducting core sample analysis, each layer must be analyzed and reported separately. Core sample analysis in a public building must not be reported as an average or a composite result.

(2) A result of visual estimation by polarized light microscopy (PLM) analysis of 0% asbestos or no asbestos detected does not require further analysis for the detection of asbestos in friable or nonfriable suspect materials.

(3) Point counting may be used to analyze either a friable or nonfriable material. Nonfriable materials, such as mastics and floor tile where fibers are occluded by a binding matrix must be processed using a technique that renders the material friable, such as acid washing and ashing outlined in EPA/600/R-93/116.

(4) A result of visual estimation by PLM analysis of greater than 0% and less than 10% asbestos may be demonstrated to be material that is not ACBM only if the material is further analyzed using other analysis based upon the hierarchy and terms of the following:

(A) The result of point counting by PLM analysis of a sample supersedes and replaces the initial result of visual estimation by PLM.

(B) The result of gravimetric preparation, followed by point counting or transmission electron microscopy (TEM) visual estimation analysis of a sample, supersedes and replaces the result of visual estimation by PLM and the result of point counting by PLM.

(g) Conditions requiring mandatory abatement. Before any renovation or dismantling of a public building, commercial building, or facility, including preparations for partial or complete demolition, the building owner must have ACBM abated, as required in this section.

(1) Demolition or renovation of a public building. Before performing any demolition in a public building, the building owner must ensure that all suspect ACBM is surveyed and RACM is abated in accordance with NESHAP and as required in this chapter. Before performing any renovation in a public building, the building owner must ensure that all suspect ACBM that could foreseeably be disturbed in the area to be renovated is surveyed and ACBM is abated, as required in this chapter.

(2) Demolition or renovation of a commercial building. Before performing any demolition, renovation, or O&M activity in a commercial building, the owner or operator must ensure that all suspect ACBM is surveyed and RACM is abated in accordance with NESHAP by a person accredited, as required §296.151 of this chapter (relating to Accreditation for Asbestos-Related Activities in a Commercial Building) and in accordance with the MAP.

(3) Demolition or renovation of a facility. Before performing any demolition, renovation, or O&M activity in a facility, the owner or operator must ensure that all suspect ACM is surveyed and RACM is abated in accordance with NESHAP. Any structure, installation, or building that was previously subject to NESHAP is not excluded, regardless of its current use or function.

(4) Demolition or renovation of a residential building that contains four or fewer dwelling units.

(A) Two or more residential buildings that contain four or fewer dwelling units are considered an installation and are subject to NESHAP if they are on the same site and under the control of the same owner or operator or owner or operator under common control as part of the same renovation or demolition project. Residential buildings are considered to be on the same site if they are within 660 feet of each other. Demolitions planned at the same time or as part of the same planning or scheduling period, that is often a calendar year, fiscal year, or the term of a contract, are considered to be part of the same project. Each owner or operator of the residential buildings must ensure that all suspect ACM is surveyed and RACM is abated in accordance with NESHAP.

(B) A residential building that is being demolished together with any other type of building as part of a larger private or public project, such as an urban renewal, shopping mall, or highway construction project is subject to NESHAP and each owner or operator must ensure that all suspect ACM in the residential building, as well as in the other building types, is surveyed and RACM is abated in accordance with NESHAP. If one residential building that contains four or fewer dwelling units is the only building being demolished, NESHAP regulations do not apply.

(C) Any renovation or demolition of a residential building is subject to NESHAP if the residence contains greater than four dwelling units or if it meets the conditions described in subparagraphs (A) or (B) of this paragraph.

(h) Demolition with ACM left in place.

(1) Category I nonfriable ACM may be left in place if it is not in poor condition, has not become friable, and will not become RACM during demolition.

(2) Category II nonfriable ACM may be left in place if the probability is low that the material will become RACM, or be crumbled, pulverized, or reduced to a powder during demolition.

(3) RACM on a facility component that is encased in concrete or other similarly hard material and is adequately wet whenever exposed during demolition may be left in place.

(4) RACM that is not accessible for testing and is, therefore, not discovered until after demolition begins and, because of the demolition the material, cannot be safely removed may be left in place. If not removed for safety reasons, the exposed RACM and any asbestos-contaminated debris must be treated as ACWM and adequately wet at all times until disposed of.

(i) Mandatory asbestos abatement project design for friable ACBM in a public building. An asbestos abatement project design is required and must be conducted by a licensed asbestos consultant for a project that involves any of the following activities:

(1) a response action other than an SSSD activity;

(2) a maintenance activity that disturbs friable ACBM other than an SSSD activity or a small project or repetitive task described in §296.233 of this chapter (relating to Alternative Asbestos Practices and Procedures for Small Projects and Repetitive Tasks in a Public Building); or

(3) a response action for a major fiber release episode.

(j) Asbestos abatement project design for friable ACM in a commercial building. An asbestos abatement project design for a response action in a commercial building must be conducted by a person appropriately accredited to conduct a project design in accordance with AHERA.

(k) Mandatory asbestos abatement project design for nonfriable ACBM in a public building.

(1) An asbestos abatement project design is required and must be conducted by a licensed asbestos consultant for an abatement project in a public building that has a combined amount of nonfriable ACBM to be removed in excess of 160 square feet of surface area, 260 linear feet of pipe length, or 35 cubic feet of material.

(2) Only individual amounts of nonfriable ACBM to be removed that are in the same unit of measurement require combination for purposes of determining whether a project design is required.

(3) An asbestos abatement project that has a combined amount of nonfriable ACBM to be removed equal to or less than 160 square feet of surface area, 260 linear feet of pipe length, or 35 cubic feet of material; and a project conducted as described in §296.231 of this chapter (relating to Alternative Practices and Procedures for Removal of Asbestos-Containing Resilient Floor-Covering Material in a Public Building); §296.232 of this chapter (relating to Alternative Asbestos Abatement Practices and Procedures for Certain Nonfriable Asbestos-Containing Building Material (ACBM) in a Public Building); §296.233 of this chapter; and §296.234 of this chapter (relating to Alternative Practices and Procedures for Removal of Whole Components of Intact Asbestos-Containing Material (ACM) in a Public Building) does not require an asbestos abatement project design.

(4) In a commercial building, nonfriable material does not require a project design, but must be treated in accordance with NESHAP.

(l) Asbestos control and abatement in a public building. The public building owner must manage the asbestos found in the owner's building in accordance with the following requirements.

(1) The building owner must hire a licensed asbestos consultant, licensed asbestos consultant agency, licensed asbestos management planner, or licensed asbestos management planner agency to perform an asbestos survey that may be used for O&M activities, renovation, or demolition.

(2) The building owner must hire a licensed asbestos abatement contractor to conduct:

(A) asbestos abatement in accordance with §296.212 of this chapter (Standard Asbestos Abatement Practices and Procedures in a Public Building);

(B) asbestos abatement of nonfriable ACBM using the work practices described in §296.232 of this chapter, where applicable;

(C) small projects or repetitive tasks involving the disturbance of friable ACBM, under the conditions and using the work practices described in §296.233 of this chapter; and

(D) an activity described and conducted in accordance with §296.234 of this chapter.

(3) The building owner must hire or retain a licensed asbestos abatement contractor or a licensed asbestos O&M contractor to conduct an SSSD O&M activity or cleanup affecting asbestos, in accordance with in §296.213 of this chapter (relating to Asbestos Operations and Maintenance (O&M) Practices and Procedures for O&M Licensees in a Public Building). When utility work is to be performed, the building owner must either have the affected ACM removed before the work of a utility contractor or require the utility contractor to be licensed to handle ACM.

(4) A building owner licensed as an asbestos abatement contractor, as required in §296.50 of this chapter (relating to Asbestos Abatement Contractor) or as an asbestos O&M contractor, as required in §296.52 of this chapter (relating to Asbestos Operations and Maintenance Contractor) may conduct the activities described in paragraphs (2) and (3) of this subsection, as applicable.

(5) The building owner must hire a licensed asbestos management planner, licensed asbestos management planner agency, licensed asbestos consultant, or licensed asbestos consultant agency to develop a management plan to control ACM during O&M, renovation, and demolition, if applicable.

(m) Mandatory notification. Notification is required under §296.251 of this chapter (relating to 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 ACBM must be submitted to DSHS by the public building owner or operator or delegated agent.

(3) In a facility, a notification to abate an amount of RACM described in NESHAP must be submitted to DSHS by the facility owner or operator.

(n) Requirement for survey and management plan. A building owner or the building owner's authorized representative, if required by certified letter from DSHS, must immediately obtain an asbestos survey report and asbestos management plan completed by a licensed asbestos inspector, licensed asbestos management planner, or licensed asbestos consultant, if, in the opinion of DSHS following a site inspection of a public building, there appears to be a danger or potential danger from ACBM in poor condition to the workers or occupants of the building or to the general public. A copy of the management plan must be submitted for review and approval to DSHS within 90 days after receipt of the certified letter. A copy of the plan must be on file with the owner or management agency and in the possession of the supervisor in charge of building operations and maintenance.

(o) Installation of new materials in a public building. Texas Health and Safety Code, Chapter 161, Subchapter Q (relating to Installation of Asbestos), requires the following:

(1) A person who installs a building material or replacement part designated in paragraph (2) of this subsection in a public building must obtain an MSDS or SDS before the installation. A person must not install a material or part designated in paragraph (2) of this subsection that requires an MSDS or SDS under this paragraph unless:

(A) the person obtains an MSDS or SDS for the material proposed to be installed showing that the material or replacement part is not ACM; or

(B) the material or replacement part, according to the MSDS or SDS, is ACM, but the building owner or contractor can demonstrate that there is no alternative material or part.

(2) A person must obtain an MSDS or SDS before installing the following building materials or replacement parts:

(A) surfacing materials:

(i) acoustical plaster;

(ii) decorative plaster/stucco;

(iii) textured paint/coating;

(iv) spray applied insulation;

(v) blown-in insulation;

(vi) fireproofing insulation;

(vii) joint compound; and

(viii) spackling compounds;

(B) TSI:

(i) taping compounds (thermal);

(ii) HVAC duct insulation;

(iii) boiler insulation;

(iv) breaching insulation;

(v) pipe insulation; and

(vi) thermal paper products;

(C) miscellaneous material:

(i) cement pipes;

(ii) cement wallboard/siding;

(iii) asphalt/vinyl floor tile;

(iv) vinyl sheet flooring/vinyl wall coverings;

(v) floor backing;

(vi) construction mastic;

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

(viii) packing materials;

(ix) high temperature gaskets;

(x) laboratory hoods/table tops;

(xi) fire blankets/curtains;

(xii) elevator equipment panels;

(xiii) elevator brake shoes;

(xiv) ductwork flexible fabric connections;

(xv) cooling towers;

(xvi) heating and electrical ducts;

(xvii) electrical panel partitions;

(xviii) electrical cloth/electrical wiring insulation;

(xix) chalkboards;

(xx) roofing shingles/tiles;

(xxi) roofing felt;

(xxii) base flashing;

(xxiii) fire doors;

(xxiv) caulking/putties;

(xxv) adhesives/mastics;

(xxvi) wallboard; and

(xxvii) vermiculite.

(p) Application for exemption. An owner or licensee may apply to DSHS for an exemption of a demolition or renovation project from any rule under this chapter relating to demolition and renovation activities, that DSHS, in its sole discretion, may grant if the rule exemption is not inconsistent with the Act and it meets one of the following conditions:

(1) the EPA has exempted the project from federal regulations; or

(2) DSHS determines that:

(A) the project will use a method for the abatement or removal of asbestos that provides protection for the public health and safety at least equivalent to the protection provided by the procedure required in this chapter for the abatement or removal of asbestos; and

(B) the project does not violate federal law.

(q) Survey or certification required for municipal permit. A municipality that requires a person to obtain a permit before renovating or demolishing a public or commercial building must not issue the permit unless the applicant provides one of the following types of documentation:

(1) written evidence acceptable to the municipality that an asbestos survey of all parts of the building affected by the planned renovation or demolition has been completed by a person licensed in accordance with the Act and this chapter (for a public building) or accredited under the MAP (for a nonpublic building) to perform a survey; or

(2) written certification from a Texas-registered architect or Texas-licensed professional engineer that:

(A) identifies the name of the building, the street address, and the specific area of the building that applies to the certification;

(B) certifies that the Texas-registered architect or Texas-licensed professional engineer has compiled and reviewed the information from:

(i) MSDSs and SDSs of the materials used in the original construction of the building and any renovations or alterations of all parts of the building affected by the planned renovation or demolition, has matched them by manufacturer to materials on-site in the construction; and

(ii) any previous asbestos survey report of the building that is conducted as required at the time of the survey;

(C) certifies based upon review of the information in subparagraph (B) of this paragraph that in the architect's or engineer's professional opinion, no part of the building, including the building materials, affected by the planned renovation or demolition contain asbestos;

(D) specifies the dates of each asbestos survey report reviewed;

(E) specifies whether the relevant work was new construction or renovation; and

(F) specifies the dates of completion of all original construction and renovations or alterations that apply to the certification.

Source Note: The provisions of this §296.191 adopted to be effective July 8, 2021, 46 TexReg 3880