SECTION 296.211. General Requirements for Asbestos Abatement in a Public Building

(a) Responsibility. The public building owner or the owner's delegated agent must engage persons licensed as required in this chapter to perform any asbestos-related activity.

(b) Project supervision and monitoring.

(1) Every asbestos abatement project undertaken by a licensed asbestos abatement contractor in a public building under this section must be supervised by at least one licensed asbestos abatement supervisor and monitored by a licensed asbestos consultant or the consultant's designated licensed project manager or licensed asbestos air monitoring technician project monitor (AMT/PM). Except as described in the following subparagraphs, these supervisory and monitoring requirements extend to all projects performed in a public building under Subchapter K of this chapter (relating to Asbestos Management in a Public Building, Commercial Building, or Facility), Subchapter L of this chapter (relating to General Requirements, and Practices and Procedures for Asbestos Abatement in a Public Building), and Subchapter M of this chapter (relating to Alternative Asbestos Practices and Procedures in a Public Building).

(A) A licensed asbestos consultant or a licensed project manager or licensed AMT/PM designated by the consultant is not required to monitor or assess an SSSD O&M activity conducted under §296.213 of this chapter (relating to Asbestos Operations and Maintenance (O&M) Practices and Procedures for O&M Licensees in a Public Building), except that, for a project involving the use of a mini-containment, visual clearance must be performed by a licensed asbestos consultant or a licensed project manager or licensed AMT/PM designated by the consultant and third-party air clearance monitoring must be performed by a licensed air monitoring technician (AMT), licensed AMT/PM, or a licensed asbestos consultant before the mini-containment is removed.

(B) An asbestos abatement supervisor, consultant, or designated project manager or AMT/PM licensed under this chapter is not required to supervise, monitor, or assess, as applicable, a project conducted in accordance with §296.231 of this chapter (relating to Alternative Practices and Procedures for Removal of Asbestos-Containing Resilient Floor-Covering Material in a Public Building).

(2) Except as otherwise provided under paragraph (1) of this subsection:

(A) A licensed asbestos abatement supervisor and a licensed asbestos consultant or the consultant's designated licensed asbestos project manager or licensed AMT/PM must remain on-site and in immediate proximity to the abatement activity during all periods of that activity.

(B) A licensed asbestos abatement supervisor must supervise the asbestos abatement activity from inside the containment area during at least 25% of each day on which asbestos abatement activity occurs in a containment.

(C) A licensed asbestos consultant or the consultant's designated licensed asbestos project manager or licensed AMT/PM must enter and inspect the containment and monitor asbestos abatement activities, conducted as required in Subchapter L of this chapter and Subchapter M of this chapter, as applicable, every day of the asbestos abatement activity, before the start of asbestos abatement activity for the day, routinely throughout the day, for the duration of the project from the beginning of containment to the final visual inspection of the project site and loading of ACWM for transport, as applicable, to:

(i) monitor the asbestos abatement activity by observing, reporting, and documenting that the regulated area, containment, or both is in compliance with this chapter and the specifications and plans, as applicable;

(ii) identify and document any correction needed;

(iii) document correction of any identified issue of noncompliance with asbestos abatement activity in a regulated area, containment, or both, as applicable, before work proceeds; and

(iv) report any identified issue of noncompliance that was not corrected to DSHS, as required in §296.41(f) of this chapter (relating to License and Registration Requirements).

(D) At least one licensed asbestos O&M supervisor or licensed asbestos abatement supervisor must supervise every SSSD O&M activity performed as described in §296.213 of this chapter during all periods of asbestos abatement activity.

(c) Employees. If an employee or delegated agent of any licensee who is an employer must intentionally disturb, handle, or otherwise work with ACBM, or engage in an asbestos abatement project, asbestos SSSD O&M activity, or other asbestos-related activity, the employee must have an annual medical examination and respirator fit-test that meets the requirements stated in the asbestos regulations of the EPA or OSHA, as applicable, and be properly equipped, trained, and licensed as required in this chapter.

(d) Records. Project records for each asbestos-related activity in a public building must be kept for 30 years from the date of project completion and made available for inspection and review upon request from DSHS. Project records include all findings of violation and disciplinary action issued against a licensee by the EPA, OSHA, or a state agency. The recordkeeping responsibilities for licensees are described in §296.291 of this chapter (relating to Recordkeeping).

(e) Inspections and investigations. Each licensee, RFCI contractor, and building owner must assist and cooperate with all properly identified representatives of DSHS in the conduct of an asbestos inspection or investigation, as described in §296.271 (relating to Inspections and Investigations) of this chapter at any reasonable time, with or without prior notice or permission.

(f) Respiratory protection program. Each employer with one or more employees who perform any asbestos-related activity must comply with the requirements in 29 CFR §1910.134 (relating to Respiratory protection) for establishing and following a written respiratory protection program, with worksite-specific procedures, and in accordance with 29 CFR §1926.1101(h)(2) (relating to Asbestos), 29 CFR §1910.1001(g)(2) (relating to Asbestos), and 40 CFR Part 763, Subpart G (relating to Asbestos Worker Protection), whichever is applicable. Each employer must maintain a current copy of the respiratory protection program at all project locations. Required respirators must be properly worn at all times in containment and as otherwise required during asbestos abatement activity.

(1) The employer must provide for personal air monitoring to determine airborne concentrations of asbestos exposure to its employees in compliance with 40 CFR Part 763, Subpart G (relating to Asbestos Worker Protection), or 29 CFR §1926.1101, whichever is applicable, unless the employer has obtained a negative exposure assessment in compliance with 29 CFR §1926.1101.

(2) The employer must maintain, in a safe working condition, a sufficient number of respirators of the types and styles approved by NIOSH to meet all requirements for the employees. The employer and any representative of the employer must not permit any person whose facial characteristics, hair, mustache, or beard preclude the tight fit of a negative-pressure respirator to enter the containment during any asbestos abatement activity. The employer must select and provide an appropriate respirator that correctly fits the employee, such as a positive pressure or supplied-air respirator designed for usage with facial hair.

(g) Suspect ACBM found during the asbestos abatement project. A suspect building material found during an asbestos abatement project that has not been surveyed must be treated as ACBM. The material may be proven to be non-asbestos-containing by laboratory analysis, as required in §296.191(f) of this chapter (relating to Asbestos Management in a Public Building, Commercial Building, or Facility).

(h) Project air monitoring, personal air monitoring, and project work practice monitoring. The licensed asbestos consultant for an abatement project in a public building must specify in writing the duties, responsibilities, and authority of the licensed project manager, air monitoring technician, and AMT/PM. When asbestos is abated under an alternative work practice established in Subchapter M of this chapter, the project monitoring requirements for the chosen work practice apply and air sampling and analysis must comply with the NIOSH 7400 requirements outlined in paragraph (1) of this subsection, as applicable.

(1) Ambient air sampling. Air samples must be collected by a licensed asbestos air monitoring technician, AMT/PM, or asbestos consultant. The sample pumps must be monitored throughout the day during the sampling period by the person collecting the samples. For all projects, samples must be collected and analyzed using the NIOSH 7400 method, counting rules A, Phase-contrast Microscopy (PCM). Samples must be collected at a flow rate between 0.5 to 16 liters per minute on 0.8 micron mixed cellulose ester (MCE) filters in cassettes with electrically conductive extension cowls. Only one cassette may be placed on a pump at a time. PCM must be used in accordance with the NIOSH 7400 method to determine the fiber concentration present. Alternatively, the AHERA protocol may be used to determine volume and flow rate needed for transmission electron microscopy (TEM) analysis in accordance with the mandatory provisions of Appendix A (relating to Interim Transmission Electron Microscopy Analytical Methods--Mandatory and Nonmandatory--and Mandatory Section to Determine Completion of Response Actions) of AHERA.

(A) Baseline.

(i) Baseline air samples must be collected before the start of any asbestos abatement project that requires a design as described in §296.191(i) and (j) of this chapter. The samples must be collected from inside the space that will become the regulated area for the project before any asbestos abatement activity that disturbs ACBM begins. A minimum of three samples must be collected on 0.8 micron (MCE) filters loaded in cassettes with electrically conductive extension cowls. The locations from which baseline air samples are collected must provide suitable data for comparison with indoor air monitoring samples collected after asbestos abatement activities begin. Sampling and, if any, analysis must conform to the NIOSH 7400 method, counting rules A. For each sample, a sample volume of at least 1,250 liters must be drawn. Only one cassette may be placed on a pump at a time.

(ii) Baseline air samples must be kept for no fewer than 30 days after clearance is achieved.

(B) Air sampling during the project.

(i) Ambient air samples must be collected continually during disturbance of ACM or when asbestos abatement is being conducted in a containment. Air samples must be analyzed in accordance with the NIOSH 7400 method, counting rules A and only one cassette may be placed on a pump at a time.

(ii) Ambient air samples must be collected:

(I) inside containment adjacent to the abatement activities;

(II) outside containment but inside the building, if applicable;

(III) within 10 feet of the unobstructed exhaust from the negative air unit discharge, but not directly in the airstream, where feasible;

(IV) immediately outside the entrance to the decontamination area used to enter the containment (representative of the air being drawn into the containment area) or in the case of a remote decontamination area, immediately outside the entrance to the containment;

(V) immediately outside the entrance of the bag-out area, if applicable; and

(VI) at any other location required by the specifications and plans.

(C) Clearance.

(i) Project clearance must consist of an initial visual inspection, followed by air clearance sampling, removal of containment, and a final visual inspection.

(ii) Clearance air samples must be collected inside the containment, as specified by a licensed asbestos consultant, with a minimum of two samples per containment or in accordance with AHERA and OSHA regulations, as applicable. Only one cassette may be placed on a pump at a time.

(iii) All project activities, except an SSSD O&M activity performed as described in §296.213 of this chapter, must be cleared by using aggressive air sampling. For each sample, a sample volume of at least 1,250 liters must be drawn. All air sampling and analysis must comply with the NIOSH 7400 requirements. Clearance is achieved if no sample is reported greater than 0.01 f/cc by the analysis report from the licensed laboratory.

(D) Air sample results. The licensed air monitoring technician, AMT/PM, or licensed asbestos consultant must record in writing the results of area, baseline, and clearance air samples that are analyzed and document that the results are provided to the asbestos abatement contractor verbally by the following time frames, unless the consultant designs a sampling strategy that deviates from these time frames, as described in paragraph (4) of this subsection:

(i) the next working day after the date of sampling, for any air sample analyzed on-site; or

(ii) for asbestos abatement of friable ACBM, the third working day after the date of initial sampling, for any air sample analyzed in an asbestos laboratory off-site.

(2) Personal air monitoring.

(A) Unless a negative exposure assessment is made in compliance with 29 CFR §1926.1101(f)(2)(iii) (relating to Asbestos), personal air samples must be collected, monitoring conducted, and employees informed of results, in compliance with 40 CFR Part 763, Subpart G (related to Asbestos Worker Protection) or 29 CFR §1926.1101 (relating to Asbestos), as applicable, and subsection (f) of this section.

(B) Without limiting the requirements of 40 CFR Part 763, Subpart G or 29 CFR §1926.1101, as applicable, a licensed air monitoring technician, AMT/PM, or asbestos consultant must record in writing the results of personal air samples that are analyzed and document that the results are provided to the asbestos abatement contractor in writing by the following time frames, unless the asbestos consultant designs a sampling strategy that deviates from these time frames, as described in paragraph (4) of this subsection:

(i) the next working day after the date of sampling, for any air sample analyzed on-site; or

(ii) for asbestos abatement of friable ACBM, the third working day after the date of initial sampling for any air sample analyzed in an asbestos laboratory off-site.

(3) Other monitoring requirements.

(A) Initial visual inspection. The licensed asbestos abatement supervisor must perform an initial visual inspection of the abatement area to confirm that all specified ACM was removed, encapsulated, or enclosed. The asbestos abatement supervisor must ensure that all abatement-related items are removed from the containment, excluding negative air machines and equipment essential to maintain the containment and to perform the visual inspection. Once the asbestos abatement supervisor confirms that all specified ACM is addressed, a licensed asbestos consultant, or a licensed asbestos project manager or licensed AMT/PM whom the asbestos consultant has given written authorization to perform the visual inspection, must perform a visual inspection to determine that all specified ACM was removed, encapsulated, or enclosed. The initial visual inspection must be performed to ensure compliance with this chapter, the site-specific specifications and plans, AHERA, and NESHAP.

(B) Final visual inspection. A final visual inspection must be performed after the removal of containment and the initial visual inspection to determine if any ACM escaped the containment or any ACWM remains. This visual inspection must be conducted by a licensed asbestos consultant or the consultant's designated licensed asbestos project manager or licensed AMT/PM and as required in subsection (b)(1) of this section. The licensed asbestos abatement contractor must abate all ACM and remove any ACWM discovered by the final visual inspection, as required in this chapter.

(4) Deviations. A licensed asbestos consultant must design the air monitoring strategies and may deviate from this subsection or from the time frames required under §296.54(c)(4) of this chapter (relating to Asbestos Air Monitoring Technician) and paragraphs (1)(D) and (2)(B) of this subsection for reporting air sampling results only if the consultant demonstrates in writing in the specifications and plans that the engineering controls are at least as protective of public health as the requirements of this subsection, or for deviations from the time frames, why the deviation is necessary and any additional controls put in place as a result of the deviation. The deviation must be documented on the notification form and described in the project specifications and plans. The asbestos consultant must, upon request by DSHS, provide documentation and justification to support any deviation and must be able to demonstrate that the design is as protective of public health as the requirements of this subsection, paragraphs (1)(D) and (2)(B) of this subsection, or §296.54(c)(4) of this chapter, as applicable.

(i) Posting documents. Each licensed asbestos abatement contractor, licensed O&M contractor, and RFCI contractor must post the following documents visible to the public at the entrance to the regulated area:

(1) the Violation Notification Procedure poster issued by DSHS; and

(2) a copy of any asbestos-related order issued by DSHS or any other order from a federal or state asbestos-regulating authority; each order must be posted for a period of 12 months after the effective date of the order or for a federal asbestos-related order, the period required by the federal asbestos-regulating authority.

Source Note: The provisions of this §296.211 adopted to be effective July 8, 2021, 46 TexReg 3880