SECTION 296.251. Notifications

(a) General provisions. DSHS must be notified using DSHS's online asbestos notification system on its website or on a form specified by DSHS of any asbestos abatement or demolition, as required in paragraphs (1) and (2) of this subsection. Notification must be made to DSHS no fewer than 10 working days before commencement of the activity. Submitting the notification form online on DSHS's website or by hard copy meets the requirements for notification to DSHS under both NESHAP and this chapter. The notification form must be properly completed and submitted as required in this section.

(1) Public buildings. DSHS must be notified of any demolition of a public building whether or not asbestos has been identified. DSHS must be notified of any asbestos abatement within a public building. Notification must be submitted as required in this section.

(2) Facilities. For all facilities, including commercial buildings that are not otherwise subject to this chapter as public buildings, DSHS must be notified of any demolition of a facility, whether or not asbestos has been identified. DSHS must be notified of any renovation operation if the combined amount of RACM to be stripped, removed, dislodged, cut, drilled, or similarly disturbed meets or exceeds the NESHAP threshold, in accordance with 40 CFR §61.145 (relating to Standard for demolition and renovation) of 160 square feet of surface area, 260 linear feet of pipe length, or 35 cubic feet off facility components where the length or area could not be measured. Notification must be submitted in accordance with NESHAP.

(b) Responsibility for proper notification.

(1) Public buildings. It is the responsibility of the public building owner and delegated agent (such as a licensed asbestos abatement contractor, asbestos consultant, or demolition contractor) to submit a notification to DSHS for each project. When the task to notify is delegated, the building owner's delegation and the name of the delegated agent must be specified on the notification form. The building owner and the delegated agent are responsible for the accuracy and timeliness of the notification and one or both may be found in violation for failing to accurately and timely notify DSHS of a project.

(2) Facilities. It is the responsibility of the facility owner or operator to submit a notification to DSHS for each project. The facility owner and operator are responsible for the accuracy and timeliness of the notification and one or both may be found in violation for failing to accurately and timely notify DSHS of a project.

(c) Completion of the notification form. The DSHS notification form must be fully and properly completed.

(1) No applicable form field as specified on the notification form and notification instructions may be left blank and form fields must contain accurate information. Form fields that are not applicable must be marked "NA." The fields on the form for the work site, building description, building owner, abatement and waste transportation companies, and start and stop dates and times must be filled in. Use of the designation "NA" for any of these fields does not comply with the requirements of this section or 40 CFR §61.145 (relating to Standard for demolition and renovation).

(2) The building owner or the delegated agent must submit an amendment to the notification for any changes. This includes changes to the start and stop dates, phased schedule form, amounts of asbestos to be removed, and cancellations. An amendment is not required if the amount of asbestos to be removed changes by less than 20%.

(3) A hard copy notification form must contain an original signature. DSHS does not accept a copied signature.

(d) Submission of the notification form and an amendment to the notification.

(1) The notification form and an amendment to the notification must:

(A) be submitted online on DSHS's website;

(B) be postmarked and delivered by the United States Postal Service (USPS);

(C) be date-stamped and delivered by commercial delivery service; or

(D) be delivered by hand during normal business hours.

(2) Printed notification forms must not be submitted by fax or email.

(e) Timeliness of an initial notification and an amendment to the notification.

(1) The initial notification of asbestos abatement or demolition must be submitted to DSHS at least 10 working days before the asbestos abatement or demolition start date. If the initial notification is for both asbestos abatement and demolition, the initial notification must be submitted 10 working days before either the asbestos abatement or demolition start date, whichever is earliest.

(2) If a project start date, stop date, phased project schedule, scheduled work day, or time changes from the current notified date, schedule, scheduled work day, or time, an amended notification must be submitted to DSHS, as required in subsections (f) - (j) and (q)(2) of this section.

(f) Start date change to an earlier date. When asbestos abatement or demolition will begin on a date earlier than the date in the notification:

(1) an amended notification must be submitted to DSHS at least 10 working days before the new start date, as required in subsection (d) of this section;

(2) the appropriate DSHS regional office must be provided with a fax or email copy of the amended notification at least 10 working days before the new start date; and

(3) for notifications not submitted online, the appropriate DSHS regional office must also be contacted by phone at least 10 working days before the new start date.

(g) Stop date change to an earlier date. An amendment is required for a stop date that changes to an earlier date unless the stop date changes by one working day for every seven calendar days of scheduled work in the notification but does not change by more than seven working days from the notified stop date. This provision does not grant an extension of time to amend the notification. When asbestos abatement or demolition ends on a date earlier than the date in the notification:

(1) an amended notification of the new stop date must be submitted as required in subsection (d) of this section to DSHS as soon as possible, but no later than the new stop date;

(2) the appropriate DSHS regional office must be provided with a fax or email copy of the amended notification as soon as possible, but no later than the new stop date; and

(3) for notification not submitted online, the appropriate DSHS regional office must also be contacted by phone of the new stop date as soon possible, but no later than the new stop date.

(h) Start date change to a later date. When asbestos abatement or demolition will begin later than the date in the notification:

(1) an amended notification with the new start date must be submitted as required in subsection (d) of this section to DSHS as soon as possible, but no later than the current notified start date;

(2) the appropriate DSHS regional office must be provided with a fax or email copy of the amended notice as soon as possible, but no later than the current notified start date; and

(3) for notification not submitted online, the appropriate DSHS regional office must also be contacted by phone of the new start date as soon as possible, but no later than the current notified start date.

(i) Stop date change to a later date. An amendment is required for a stop date that changes to a later date unless the stop date changes by one working day for every seven calendar days of scheduled work in the notification but does not change by more than seven working days from the notified stop date. This provision does not grant an extension of time to amend the notification. When asbestos abatement or demolition will end on a date later than the current notified stop date:

(1) an amended notification of the new stop date must be submitted as required in subsection (d) of this section to DSHS as soon as possible, but no later than the current notified stop date;

(2) the appropriate DSHS regional office must be provided with a fax or email copy of the amended notice as soon as possible, but no later than the current notified stop date; and

(3) for notification not submitted online, the appropriate DSHS regional office must also be contacted by phone of the new stop date as soon as possible, but no later than the current notified stop date.

(j) Cancellation.

(1) When asbestos abatement or demolition is cancelled, the building owner or the delegated agent must:

(A) submit a notice of the cancellation as required in subsection (d) of this section to DSHS as soon as possible, but no later than the current notified start date;

(B) the appropriate DSHS regional office must be provided with a fax or email copy of the notice of cancellation as soon as possible, but no later than the current notified start date; and

(C) the appropriate DSHS regional office must also be contacted by phone of the cancellation as soon as possible, but no later than the current notified start date.

(2) When asbestos abatement and demolition are both notified on the same notification, and either the abatement or demolition will not occur, an amendment must be submitted to remove the abatement or demolition activity that will not occur on or before the notified start date for that activity.

(k) Consolidated notification of nonscheduled asbestos O&M activities in a public building.

(1) Notification of a series of nonscheduled, separate O&M activities involving ACBM, each of which does not meet or exceed a threshold of 160 square feet of surface area, 260 linear feet of pipe length, or 35 cubic feet volume off facility components where the length or area could not be measured previously, may be made annually. An individual project that meets or exceeds this threshold must be notified separately and must not be notified as part of the consolidated notification. The consolidated notification must include a prediction of the cumulative amount of asbestos to be removed, enclosed, or encapsulated from January 1 through December 31 of the calendar year for which consolidated notification is being given. Consolidated notifications must be submitted at least 10 working days before the calendar year for which notification is being given for a single building, or for a group of public buildings at one site under the control of one owner or operator. Consolidated notification must be submitted as required in subsection (d) of this section.

(2) The building owner or delegated agent must notify the appropriate DSHS regional office by fax or email before each O&M activity for which notification is given in a consolidated notification under this subsection.

(3) The building owner must keep records of the individual O&M activities. If, at any point during the calendar year for which consolidated notification was given, the amount of asbestos removed, enclosed, or encapsulated changes from the notified amount by 20% or more, an amendment must be submitted within 10 working days thereafter.

(l) Consolidated notification of nonscheduled renovation operations in a facility that is not a public building.

(1) A notification is required when the combined amount of RACM for planned renovation operations involving individual nonscheduled renovation operations, such as renovations resulting from equipment failure, meets or exceeds the NESHAP threshold of 160 square feet of surface area, 260 linear feet of pipe length, or 35 cubic feet off facility components where the length or area could not be measured. To determine whether notification is required, the facility owner or operator must predict the combined additive amount of RACM to be removed from January 1 to December 31 of the calendar year for which consolidated notification is being given. These operations may be notified on a single consolidated notification form for each facility for which a consolidated notification is required under this paragraph. Consolidated notifications must be submitted at least 10 working days before the calendar year for which notice is being given. Consolidated notification must be submitted as required in subsection (d) of this section.

(2) Upon request by DSHS, the facility owner or operator must be able to demonstrate that the amount of RACM stripped or removed did not change from the notified amount by 20% or more. If, at any point during the calendar year for which consolidated notification was given, the amount of RACM stripped or removed changes from the notified amount by 20% or more, an amendment must be submitted within 10 working days thereafter.

(3) If the facility owner or operator determines that the NESHAP threshold amount will be exceeded and a consolidated notification was not previously submitted under this subsection, a notification must be submitted at least 10 working days before the start date of the activity that will exceed the threshold.

(m) Notification of emergency renovation operations.

(1) An emergency notification must be submitted when the need for an emergency renovation operation arises. A description of the sudden, unexpected event precipitating the emergency renovation operation must be documented on the form. Notification of an emergency renovation operation must be submitted as soon as possible, but no later than the first working day after the date of the incident that precipitates the emergency operation. Initial notification can be made by phone followed by written notification, as required in subsection (d) of this section.

(2) The building owner or the delegated agent or the facility owner or operator, as applicable, must also notify the appropriate DSHS regional office by phone and fax or email as soon as possible, but no later than the first working day after the date of the incident that precipitates the emergency renovation operation. The fax or email must include a description of the emergency and a copy of the notification form.

(n) Addition of asbestos abatement or demolition to an existing notification. If asbestos abatement or demolition is to be added to a notification and the notified abatement or demolition stop date has not passed, a notification amendment must be submitted to DSHS, as required in subsection (d) of this section to add the asbestos abatement or demolition no fewer than 10 working days before the start date of the added abatement or demolition.

(o) Notification of ordered demolitions for structurally unsound buildings.

(1) If the facility is being demolished under an order of a state or local government agency or a court-issued order because the facility is structurally unsound and in danger of imminent collapse, the DSHS notification must be submitted as soon as possible, but no later than the first working day after the start date of the demolition. The determination that a structure is in danger of imminent collapse or that it is unsafe for anyone to enter must be made by a professional engineer or government official reasonably qualified to make the decision. A copy of the order must be attached to the notification form. Notification must be made as required in subsection (d) of this section. If an owner is unable to obtain a demolition order from a city, county, or state government official and has a letter from a professional engineer stating that the building is structurally unsound and in danger of imminent collapse, the owner may contact DSHS to request a waiver from the 10 working day notification deadline. Documentation supporting the inability to obtain an order must be submitted with the waiver request.

(2) For structurally unsound buildings that are in danger of imminent collapse, the building owner or the delegated agent or the facility owner or operator must also notify the appropriate DSHS regional office by phone and fax or email as soon as possible, but no later than the first working day after the start date of the demolition. The email must include a copy of the demolition order or letter from a professional engineer, as applicable, and the notification form.

(p) Notification of asbestos abatement and demolition. In a public building or a facility, including a commercial building, when asbestos abatement and demolition are notified on the same notification form and all asbestos abatement included in the notification concludes early, the demolition may start as early as the next calendar day when an amended notification is submitted, as required in the following paragraphs. It is the responsibility of the person that submits the notification to amend the abatement stop date and demolition start date.

(1) A statement must be included on the initial notification submitted that demolition will start early if abatement concludes early.

(2) An amended notification must be submitted, as required in subsection (d) of this section to DSHS as soon as possible, but no later than the new abatement stop date.

(3) The appropriate DSHS regional office must be provided with a fax or email copy of the amended notice as soon as possible, but no later than the new abatement stop date.

(4) The appropriate DSHS regional office must also be contacted by phone of the amended notice as soon as possible, but no later than the new abatement stop date and demolition start date.

(q) Notification of a phased project for asbestos abatement, demolition, or abatement and demolition in a public building or facility.

(1) To qualify as a phased project, the project must have planned periods of inactivity and all of the abatement and demolition work must be performed at one site. The site may contain more than one building, such as an office complex or university, if the buildings are under the control of one owner or operator. Notification of a phased project must not cover a period that exceeds 12 calendar months from the project start date. A completed Phased Project Schedule form must be submitted with each notification. The notification form must be submitted at least 10 working days before the start date of the first phase. The notification form must be submitted, as required in subsection (d) of this section.

(2) When there is a change to the phased project schedule, the building owner or the delegated agent or the facility owner or operator, as applicable, must:

(A) submit a notification amendment along with the revised Phased Project Schedule form to DSHS as soon as possible, but no later than the new proposed start date, stop date, or both of the phased project, whichever is earlier; and

(B) also fax or email a revised Phased Project Schedule form to the appropriate DSHS regional inspector as soon as possible, but no later than the new proposed start date, stop date, or both of the phased project, whichever is earlier.

(r) Asbestos notification fees.

(1) Applicability. The building owner or the delegated agent or the facility owner or operator, as applicable, must pay to DSHS an asbestos notification fee, as required in this subsection. The fee is based upon the amount of asbestos removed and includes a subscription fee in an amount determined by the Texas Department of Information Resources to recover costs associated with the development and maintenance of Texas.gov services. The subscription fee is 3% of the total notification fee. The minimum fee for notification or the cancellation of a notification is $55.

(2) Payment.

(A) When a notification is submitted online, the user has the option to pay the notification fee at the time of submission or request to have an invoice mailed. DSHS mails an invoice to the building owner or the delegated agent or the facility owner or operator, as applicable, within 30 working days after the completion of the notified project. Payment must be received by DSHS within 60 calendar days after the invoice date.

(B) When a notification is submitted by mail, DSHS mails an invoice to the building owner or the delegated agent, or the facility owner or operator, as applicable, within 30 working days after the completion of the notified project. Payment must be received by DSHS within 60 calendar days after the invoice date.

(3) Notification fees.

(A) Fees for asbestos abatement projects.

(i) Notification fees for asbestos abatement are based on the total amount of the RACM or ACBM reported on the notification form to be abated, as required in §296.191 of this chapter (relating to Asbestos Management in a Public Building, Commercial Building, or Facility) and this section. Fees for abatement are required to be paid based upon a $30 fee for each asbestos reporting unit (ARU).

(ii) The minimum asbestos abatement notification fee per notification is $55 and the maximum fee per notification is $3,210 for abatement projects of 107 ARUs or more, except that the maximum fee per notification for a school building is $320.

(iii) Notification fees are calculated by measuring the amount of RACM or ACBM to be abated in square feet, linear feet, or cubic feet.

(I) ARU calculation for square feet. The number of ARUs is determined by measuring the total amount of RACM or ACBM to be abated in square feet, dividing that number by 160, and, if applicable, rounding that total down to a whole number.

(II) ARU calculation for linear feet. The number of ARUs is determined by measuring the total amount of RACM or ACBM to be abated from pipes in linear feet, dividing that number by 260, and, if applicable, rounding that number down to a whole number.

(III) ARU calculation for cubic feet. The number of ARUs is determined by measuring the total amount of RACM or ACBM to be abated from off facility components where the length or area could not be measured previously, dividing that number by 35, and, if applicable, rounding that number down to a whole number.

(IV) Notification fee calculation. The notification fee is calculated by adding the total number of ARUs for each category (square feet, linear feet, and cubic feet) and multiplying the total number of ARUs by $30.

(B) Fees for demolition only projects. The fee per notification for demolition for which RACM or ACBM will not be abated or will be left in place is $55.

(C) Fees for abatement and demolition projects. The fee per notification for abatement with demolition is based solely on the amount of RACM and ACBM removed during the abatement. If an abatement notification is amended to add demolition, no additional fee is required for adding the demolition to the notification.

(4) Reimbursement of notification fees. The building owner or the delegated agent or the facility owner or operator, as applicable, may submit a request for reimbursement based upon cancellation of the abatement or demolition or overestimation in calculating the number of ARUs of the amount of RACM or ACBM to be abated. If less than the reported amount will be removed, a notification amendment must be provided to DSHS with the reimbursement request. The written request must be received by DSHS within 10 working days after the notified project end date or its timely cancellation. DSHS deducts an administrative fee of $57 from any reimbursement for an excess payment of a notification fee. The requestor is not entitled to reimbursement of a notification fee for $62 or less.

(5) Nonpayment of fees. Failure to pay the required fee by the invoice due date is a violation under this chapter and may subject the building owner or the delegated agent or the facility owner or operator, as applicable, to an administrative penalty under §296.318 of this chapter (relating to Administrative Penalty).

Source Note: The provisions of this §296.251 adopted to be effective July 8, 2021, 46 TexReg 3880