SECTION 296.21. Definitions

The following words and terms, when used in this chapter, have the following meaning, unless the context clearly indicates otherwise.

(1) Abatement preparation--Preparation before asbestos abatement begins, which includes the following activities:

(A) removing any movable objects from the interior space of a public building once an asbestos abatement contractor takes control of that space for the purpose of asbestos abatement;

(B) pre-cleaning, wet wiping, HEPA vacuuming, and sealing a penetration or opening;

(C) installing plastic sheeting, such as a critical barrier, any part of a decontamination system, or any part of the water line connections to a shower, drain, or filtration;

(D) setting-up or using a load-out or bag-out system;

(E) selecting, installing, or maintaining a respiratory system or fiber reduction system (such as misting or spraying);

(F) posting warning signs;

(G) installing engineering controls, including local exhaust ventilation equipped with a HEPA filter dust collection system, construction of a containment or isolation mechanism to control processes producing asbestos dust, and ventilation of the regulated area to move contaminated air away from the breathing zone of persons in containment and toward a filtration or collection device equipped with a HEPA filter;

(H) installing scaffolding in an area in which asbestos may be disturbed during the installation; and

(I) installing, setting-up, and calibrating monitoring devices, including sampling systems and manometers.

(2) ACBM--Asbestos-containing building material. Surfacing, TSI, or miscellaneous ACM that is found in, or on interior structural members or other parts of, a public or commercial building.

(3) Accredited person--A person who has attended and passed, within the last year, the appropriate asbestos course, as described in the MAP, that:

(A) has been approved by DSHS and offered by a DSHS-licensed asbestos training provider;

(B) has been approved by another state that has the authority from EPA to approve courses; or

(C) has been approved directly by EPA.

(4) ACM--Asbestos-containing material. Materials or products, including any single material component of a structure or any layer of a material sample that, when analyzed for asbestos using the method specified in 40 CFR Part 763, Subpart E, Appendix E, Section 1 (relating to Polarized Light Microscopy), by a laboratory accredited by the NVLAP for polarized light microscopy, or by using the EPA-recommended method listed in EPA/600/R-93/116 for transmission electron microscopy, are found to contain:

(A) for purposes of complying with this chapter's provisions relating to a public building, 1.0% or more asbestos;

(B) for purposes of complying with AHERA provisions relating to a school building, greater than 1.0% asbestos;

(C) for purposes of complying with NESHAP provisions relating to commercial buildings and facilities, greater than 1.0% asbestos; or

(D) for purposes of complying with OSHA provisions relating to occupational asbestos exposure, greater than 1.0% asbestos.

(5) Act--The Texas Asbestos Health Protection Act, Texas Occupations Code, Chapter 1954.

(6) ACWM--Asbestos-containing waste material. This term includes mill tailings or any waste material that contains asbestos and is generated by a source subject to the provisions of NESHAP or this chapter. This term includes filters from control devices, friable asbestos waste material, and bags or other similar packaging contaminated with asbestos. As applied to demolition and renovation operations, this term also includes RACM and materials contaminated with asbestos, including disposable equipment and clothing.

(7) Adequately wet--Sufficiently mixed or penetrated with liquid to prevent the release of particulates. If visible emissions are observed coming from ACM, then that material is not adequately wet. However, the absence of visible emissions is not sufficient evidence of being adequately wet.

(8) Aggressive air sampling--Collecting air samples after walls, ceilings, and floors are swept with the exhaust of an unaltered leaf blower that is operated per the manufacturer's instructions and is directed at all surfaces to cause loose asbestos fibers to become airborne.

(9) AHERA--For purposes of this chapter, the Asbestos Hazard Emergency Response Act of 1986, 15 USC §2641, et seq., and EPA's implementing regulations under 40 CFR Part 763, Subpart E (relating to Asbestos-Containing Materials in Schools), adopted by reference as part of this chapter.

(10) Airlock--A system for permitting movement into and out of the containment that controls air-flow patterns such that the air flows only towards the inside of the enclosure to which the decontamination system is attached. An airlock may consist of overlapping curtains, partitions to a separate chamber, or both.

(11) Air monitoring--The collection of air samples for the analysis of fibers.

(12) Amended water--Water to which a surfactant (wetting agent) has been added to increase the ability of the liquid to penetrate ACM.

(13) Asbestos--The asbestiform varieties of chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite.

(14) Asbestos abatement--Asbestos removal, encapsulation, or enclosure to reduce or eliminate, or that has the effect of reducing or eliminating, a concentration of asbestos fibers or an ACM.

(15) Asbestos abatement activity--Asbestos abatement, or any on-site abatement preparations or cleanup related to the abatement.

(16) Asbestos abatement project design--The design for an asbestos abatement project that includes, at minimum:

(A) the review of the survey report of a public building for ACBM;

(B) the evaluation and selection of appropriate asbestos abatement methods;

(C) the preparation of the project layout;

(D) the preparation of specifications and plans; and

(E) the determination of environmental controls, abatement procedures, and personal protection equipment to be employed every day of the asbestos abatement activity, from the start through the completion date of the project.

(17) Asbestos-related activity--Activities including:

(A) the removal, encapsulation, or enclosure of asbestos, whether intentional or unintentional;

(B) the preparations for final clearance;

(C) the performance of an asbestos survey;

(D) the development of an asbestos survey report, management plan, or response action;

(E) the design of an asbestos abatement project;

(F) the collection or analysis of a bulk asbestos sample;

(G) the monitoring for airborne asbestos; or

(H) any other activity for which a license is required under the Act.

(18) Asbestos removal--Any action that disturbs, dislodges, strips, or otherwise takes away asbestos fibers or ACM.

(19) ASTM E1494-18--The 2018 edition of the Standard Practice for Testing Physical Properties of Friable Surfacing Materials developed by ASTM International, www.astm.org.

(20) Bag-out area--An area distinct from the decontamination area that is used to decontaminate asbestos waste bags before placing them into outer bags.

(21) Building owner--The owner of record of a building.

(22) Category I nonfriable ACM--Asbestos-containing packings, gaskets, resilient floor-covering material, and asphalt roofing products determined to be ACM.

(23) Category II nonfriable ACM--Any material determined to be ACM, excluding Category I nonfriable ACM, that when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.

(24) CFR--The Code of Federal Regulations.

(25) Commercial building--The interior space of any building that does not otherwise fall within the definition of a public building. Interior space includes exterior hallways connecting buildings, porticos, and mechanical systems used to condition interior space. This term includes industrial buildings, federal government-owned buildings, warehouses, and factories. This term does not include a detached single private residence or single apartment building with four or fewer dwelling units.

(26) Commissioner--The commissioner of the Department of State Health Services.

(27) Containment--A portion of the regulated area that has been sealed and placed under negative air pressure using negative air machines with HEPA filters.

(28) Critical barrier--An impermeable barrier, such as plastic sheeting or dividing wall, sealing any opening between the containment and adjacent areas.

(29) Decontamination area--An enclosed area consisting of an equipment room, shower room, and clean room that is used for the decontamination of persons, materials, and equipment that are contaminated with asbestos. This area is adjacent to, and where feasible, connected to, the containment.

(30) Demolition--The wrecking or removal of any load-supporting structural member of a public building or facility for the purpose of razing the building or portion of the building to the ground, or the intentional burning of any public building or facility. The removal of load-supporting structural members followed by resupport of the structure is considered renovation, not demolition. Moving a building from its foundation is considered demolition.

(31) Designated person--The individual designated by an LEA in accordance with, and to ensure compliance with, AHERA.

(32) Disturbance--Activities that disrupt the matrix of ACM, render ACM friable, or generate visible debris from ACM.

(33) DSHS--The Department of State Health Services.

(34) Emergency renovation operation--A renovation operation that was not planned but results from a sudden, unexpected event that, if not immediately attended to, presents a safety or public health hazard, is necessary to protect equipment from damage, or is necessary to avoid imposing an unreasonable financial burden. This term includes operations necessitated by nonroutine failures of equipment or systems, such as water, steam, and electrical systems.

(35) Emergency responder--Any person responsible for mitigation activities in a medical emergency, fire emergency, hazardous material emergency, or natural disaster.

(36) Employee--A person who works in expectation of compensation in the service of an employer and whose work performance is subject to the direction and control of the employer.

(37) Encapsulation--A method of control of asbestos fibers in which the surface of ACM is penetrated by or covered with a coating prepared for that purpose. Painting with a non-encapsulant that does not disturb asbestos is not an asbestos-related activity.

(38) Enclosure--The construction of an airtight, impermeable, permanent wall and ceiling or comparable barrier around ACM to prevent the release of asbestos fibers into the air.

(39) EPA--The United States Environmental Protection Agency.

(40) Exposure assessment--A determination by an employer in accordance with 29 CFR §1926.1101(f) of the level of employee exposure to asbestos fibers by analyzing breathing zone air samples that are representative of an 8-hour time-weighted average and a 30-minute representative short-term exposure of each employee.

(41) Facility--Any institutional, commercial, public, industrial, or residential structure, installation, or building (including any structure, installation, or building containing condominiums or individual dwelling units operated as a residential cooperative, but excluding a single residential building having four or fewer dwelling units); any ship; and any active or inactive waste disposal site. For purposes of this chapter, any building, structure, or installation that contains a loft used as a dwelling is not considered a residential structure, installation, or building.

(42) Facility owner or operator--Any person who owns, leases, operates, controls, or supervises the facility being demolished or renovated or any person who owns, leases, operates, controls, or supervises the demolition or renovation operation, or both.

(43) Federal government-owned building--Any building owned by the United States Federal Government. This term does not include space leased by the United States Federal Government.

(44) Friable asbestos material--Any ACM that, when dry, can be crumbled, pulverized, or reduced to powder by hand pressure.

(45) HEPA--A high-efficiency particulate air filtration, capable of trapping and retaining 99.97% of mono-dispersed airborne particles that are 0.3 micron or larger in diameter.

(46) HVAC--Heating, ventilation, and air conditioning.

(47) Independent third-party air monitor--A person retained to collect area air samples to be analyzed for the owner of the building or facility being abated.

(48) Installation--A building or structure, or group of buildings or structures, at a single demolition or renovation site controlled by the same owner or operator. A project involving a single private residence or a single apartment building with no more than four dwelling units is not considered an installation. When there are two or more residential buildings on the same site that are controlled by the same owner or operator, the buildings are considered an installation under NESHAP.

(49) Intact--As defined in 29 CFR §1926.1101(b), ACM that has not crumbled, been pulverized, or otherwise deteriorated so that the asbestos is no longer likely to be bound with its matrix.

(50) Layer--Any constituent of an asbestos bulk sample that exhibits different physical properties, such as color or composition, and can be separated from the rest of the sample with an instrument, such as a modeler's knife.

(51) LEA--Local education agency. An LEA includes:

(A) a public board of education or other public authority legally constituted within a state for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a state, or such combination of school districts or counties as are recognized in a state as an administrative agency for its public elementary or secondary schools;

(B) any other public institution or agency having administrative control and direction of a public elementary or secondary school; and

(C) the owner of any nonpublic, nonprofit elementary or secondary school building.

(52) License--Any license or registration issued under this chapter.

(53) Licensee--A person who has been issued a license or registration by DSHS under this chapter.

(54) Major fiber release episode--Any uncontrolled or unintentional disturbance of ACBM, resulting in a visible emission, which involves the falling or dislodging of more than three square feet or three linear feet of friable ACBM.

(55) Management plan--A written plan for a public building that describes appropriate actions for surveillance and management of ACM in the building.

(56) MAP--Asbestos Model Accreditation Plan. As described in Appendix C (relating to Asbestos Model Accreditation Plan) of AHERA and adopted by reference into this chapter, EPA's model accreditation plan that provides standards for initial training, examinations, refresher training courses, applicant qualifications, decertification, and reciprocity.

(57) Mini-containment--A small walk-in containment that accommodates no more than two people and conforms to its localized work area. A mini-containment is constructed of 6-mil thick plastic sheeting or the equivalent and is kept under negative pressure by means of a HEPA vacuum or similar ventilation unit as described for a mini-enclosure in 29 CFR §1926.1101(g)(5)(vi).

(58) MSDS--Material safety data sheet. (See also the definition of SDS.)

(59) Municipality--A general-law, home-rule, or special-law municipality as defined in the Texas Local Government Code §1.005 (relating to Definitions).

(60) Negative exposure assessment--A demonstration by an employer in accordance with 29 CFR §1926.1101(f) that employee exposure during an operation is expected to remain below the PELS for the duration of the applicable asbestos-related activity.

(61) NESHAP--The EPA National Emission Standards for Hazardous Air Pollutants specific to asbestos, in 40 CFR Part 61, Subpart M (relating to National Emission Standard for Asbestos), as adopted by reference in this chapter.

(62) NIOSH--The National Institute for Occupational Safety and Health.

(63) Nonfriable ACM--ACM that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.

(64) Nonscheduled renovation operation--A renovation operation necessitated by the routine failure of equipment, which is expected to occur within a given period based on past operating experience, but for which an exact date cannot be predicted.

(65) NVLAP--National Voluntary Laboratory Accreditation Program. NVLAP is a federal program administered by the National Institute of Standards and Technology, an office of the U.S. Department of Commerce. NVLAP provides third-party accreditation to testing and calibration laboratories based on evaluation of their technical qualifications and competence to carry out specific calibrations or tests. Accreditation procedures and requirements are described in 15 CFR Part 285 (relating to National Voluntary Laboratory Accreditation Program), which references clauses 4 and 5 of the international standard, ISO/IEC 17025, as the criteria for accreditation.

(66) O&M activity--Operations and maintenance activity that includes repairs, maintenance, renovation, installation, replacement, or cleanup of building materials or equipment.

(67) OSHA--The Occupational Safety and Health Administration, part of the U.S. Department of Labor.

(68) OSHA regulations--Regulations found in 29 CFR (relating to Labor), including 29 CFR §1926.1101 and portions of 29 CFR Parts 1926 (relating to Safety and Health Regulations for Construction) and 1910 (relating to Occupational Safety and Health Standards), as referenced in this chapter or otherwise applicable to a person subject to this chapter.

(69) Owner or operator of a demolition or renovation activity--Any person who owns, leases, operates, controls, or supervises a facility being demolished or renovated, or any person who owns, leases, operates, controls, or supervises the demolition or renovation operation, or both.

(70) PELS--Permissible exposure limits, as described in 29 CFR §1926.1101(c).

(71) Permit--A license, certificate, approval, registration, consent, or other form of authorization that a person is required by law, rule, regulation, order, or ordinance to obtain to perform an action, or initiate, continue, or complete a project.

(72) Person--A person is:

(A) an individual, including a sole proprietorship; or

(B) a corporation, partnership, governmental subdivision or agency, association, or any other legal entity.

(73) Planned renovation operation--A renovation operation, or a number of renovation operations, in which some RACM will be removed or stripped within a given period of time and that can be predicted. Individual nonscheduled renovation operations are included if a number of renovation operations can be predicted to occur during a given period of time based on operating experience.

(74) Public building--The interior space of a building used, either in the past or at present, or to be used, for a purpose that involves public access or occupancy, such as a school, hospital, or prison. Interior space includes exterior hallways connecting buildings, porticos, and mechanical systems used to condition interior space. The term includes any such interior space during a period of vacancy, including the period during preparations before demolition. The term does not include:

(A) an industrial facility to which access is limited principally to employees of the facility because of processes or functions that are hazardous to human safety or health;

(B) a federal government-owned building or installation (civilian or military);

(C) a private residence;

(D) an apartment building with no more than four dwelling units;

(E) a manufacturing facility or building that is part of a manufacturing facility, to which access is limited to workers and invited guests under controlled conditions;

(F) a building, facility, or any portion of which, before demolition, has been determined to be structurally unsound and in danger of imminent collapse by a professional engineer or a city, county, or state government official; or

(G) the portion of a building that has become structurally unsound due to demolition.

(75) Public school--An elementary or secondary school operated by publicly elected or appointed school officials in which the program and activities are under the control of these officials and that is supported primarily by public funds.

(76) RACM--Regulated asbestos-containing material. RACM means:

(A) friable asbestos material;

(B) Category I nonfriable ACM that has become friable;

(C) Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, or abrading; or

(D) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations.

(77) Regulated area--An area where on-site asbestos-related activity is performed, and any adjoining area where debris and waste accumulate from such asbestos-related activity, including any area within which airborne concentrations of asbestos exceed or there is a reasonable possibility they may exceed the PELS, in accordance with 29 CFR §1926.1101 (relating to Asbestos).

(78) Renovation--Additions to or alterations of a building, including by removal, repairing, or rebuilding.

(79) Resilient floor-covering material--For purposes of this chapter, this term includes adhesives, sheet vinyl flooring, and resilient tile, such as vinyl composition tile, asphalt tile, and rubber tile.

(80) Response action--A method, including removal, encapsulation, enclosure, repair, and operations and maintenance that protects human health and the environment from friable ACBM.

(81) Responsible person--The individual that is appointed by the licensed asbestos abatement contractor, asbestos operations and maintenance contractor, asbestos laboratory, asbestos consultant agency, asbestos management planner agency, or asbestos training provider as responsible for compliance with the requirements for the licensee under this chapter.

(82) RFCI--Resilient Floor Covering Institute.

(83) School--Any day or residential public or private non-profit elementary or secondary school, kindergarten through grade 12.

(84) School building--Any structure suitable for use as a classroom, including:

(A) a school facility, such as a laboratory, library, eating facility, or facility used for the preparation of food;

(B) a gymnasium or other facility that is specially designed for athletic or recreational activities for an academic course in physical education;

(C) a facility used for the instruction or housing of students or for the administration of educational or research programs;

(D) a maintenance, storage, or utility facility, including any hallway, essential to the operation of any of the preceding facilities described in this definition;

(E) a portico or covered exterior hallway or walkway; or

(F) an exterior portion of a mechanical system used to condition interior space.

(85) SDS--Safety data sheet. A written or printed material concerning a hazardous chemical that is prepared in compliance with OSHA regulations in 29 CFR §1910.1200(g) (relating to Hazard communication). This term reflects a change in terminology from MSDS and updated format requirements, based upon the adoption of the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals.

(86) Specifications and plans--Site-specific asbestos abatement description, consisting of:

(A) a clear and understandable written description of the determinations made during the asbestos abatement project design, including the work to be performed, such as asbestos abatement methods and air clearance procedures to be used, abatement preparations to be made, and equipment to be used; and

(B) drawings, floor plans, or the equivalent, that distinctly display the location of asbestos abatement activities and equipment to be used with a level of detail and in a size sufficient to make each location visually discernable.

(87) SSSD activities--Small-scale, short-duration activities are work operations where a negative-pressure containment cannot be constructed because of the configuration of the work environment. SSSD activities include tasks, such as removal of asbestos-containing insulation on pipes, removal of small quantities of asbestos-containing insulation on beams or above ceilings, replacement of an asbestos-containing gasket on a valve, installation or removal of a small section of drywall, or installation of electrical conduits through or proximate to ACM. SSSD activities can be further defined as the following:

(A) removal of small quantities of ACM only if required in the performance of another maintenance activity not intended as asbestos abatement;

(B) removal of asbestos-containing TSI, not to exceed amounts greater than those that can be contained in a single, standard (60 inches by 60 inches) glove bag and not intended as asbestos abatement;

(C) minor repairs to damaged TSI that do not require removal;

(D) repairs to a piece of asbestos-containing wallboard; and

(E) repairs, involving encapsulation, enclosure, or removal, to small amounts of ACM only if required in the performance of emergency or routine maintenance activity and not intended solely as asbestos abatement. Such work may not exceed amounts greater than those which can be contained in a single prefabricated mini-containment.

(88) SSSD O&M activity--An O&M activity that is limited to SSSD activities.

(89) Start date--The date defined as:

(A) Asbestos abatement start date. For the purpose of notification to DSHS as required in §296.251 of this chapter (relating to Notifications), the date that the actual disturbance of asbestos begins. Abatement preparation that does not disturb asbestos is not the asbestos abatement start date.

(B) Demolition start date. The date that the demolition begins. Asbestos preparation that does not wreck or remove a load-bearing structural member or move a building from its foundation is not the demolition start date.

(90) Stop date--The date defined as:

(A) Asbestos abatement stop date (completion date).

(i) For the purpose of notification to DSHS as required in §296.251 of this chapter, the date that clearance is achieved as described in §296.211(h)(C)(iii) of this chapter (relating to General Requirements for Asbestos Abatement in a Public Building).

(ii) For removal of resilient floor-covering material in accordance with §296.171 of this chapter (relating to Removal of Resilient Floor-Covering Material), the asbestos abatement stop date is the date that the ACBM is removed from the substrate and properly containerized as required in the RFCI work practices.

(iii) For NESHAP projects, the asbestos abatement stop date is the date that all RACM is removed from the substrate and properly containerized.

(B) Demolition stop date (completion date). In public buildings, commercial buildings, or facilities that do not contain RACM, the date that the wrecking or removal operations of load-bearing structural components or both are completed. In structurally unsound buildings or facilities that contain RACM, the demolition stop date is the date that load-bearing structural components are removed and RACM is containerized or removed from the site in accordance with 40 CFR §61.150 (relating to Standard for waste disposal for manufacturing, fabricating, demolition, renovation, and spraying operations).

(91) Surfacing material--Material that is sprayed on, troweled on, or otherwise applied to surfaces, such as acoustical plaster on ceilings and fireproofing materials on structural members, or other materials on surfaces for acoustical, fireproofing, or other purposes.

(92) Survey--An inspection activity undertaken in a public building, commercial building, or facility to determine the quantities and locations of homogeneous areas of ACBM by assuming suspect material or collecting samples of such material and assessing its condition, whether by visual or physical examination.

(A) This term includes reinspections of friable and nonfriable known or assumed ACBM previously identified, as described in 40 CFR §763.85(b) (relating to Inspection and reinspections).

(B) This term does not include:

(i) a periodic surveillance as described in 40 CFR §763.92(b) (relating to Training and periodic surveillance) performed solely for the purpose of recording or reporting a change in the condition of known or assumed ACBM;

(ii) an inspection performed by an employee or agent of federal, state, or local government solely for the purpose of determining compliance with applicable statutes or regulations; or

(iii) a visual inspection of the type described in 40 CFR §763.90(i) (relating to Response actions) solely for the purpose of determining proper completion of a response action.

(93) Survey report--A report that contains:

(A) for a public building:

(i) a written description, diagram, or both that clearly and accurately identifies and reflects the location of each homogeneous area of suspected ACBM that is assumed to be ACM or was sampled for ACM, including the sampling location for each bulk sample and the dates that each sample was collected;

(ii) a written description of:

(I) the manner used to determine sampling locations;

(II) the estimated amount of ACBM in each homogeneous area in square feet or, for ACBM on piping, in linear feet;

(III) the type of material sampled; and

(IV) the condition and friability of the ACBM, and the assessment of ACBM must conform 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, which is the required method for schools;

(iii) the name, signature, and, as applicable, accreditation and state of accreditation or license number of the inspector performing each activity;

(iv) the name, signature, and as applicable, accreditation and state of accreditation or license number of the licensed management planner or consultant employing the licensed asbestos inspector performing each activity; and

(v) a copy of the analyses of any bulk samples, the dates of analyses, and a copy of any other laboratory reports pertaining to the analyses; or

(B) for a NESHAP facility, a record of the thorough inspection of the affected facility or part of the facility where the demolition or renovation operation will occur for the presence of asbestos, including Category I and Category II nonfriable ACM that identifies:

(i) the location of ACM; and

(ii) the inspector that performed the survey.

(94) TSI--Thermal system insulation. TSI is ACM applied to pipes, fittings, boilers, breeching, tanks, ducts, or other interior structural components to prevent heat loss or gain, water condensation, or for other similar purposes.

(95) USC--The United States Code.

(96) Working days--Monday through Friday, including a holiday that falls on one of those days.

Source Note: The provisions of this §296.21 adopted to be effective July 8, 2021, 46 TexReg 3880