SECTION 296.31. Conflict of Interest

(a) Independent third-party air monitoring. The public building owner or authorized representative must provide for an appropriately licensed third party to perform area monitoring and project clearance monitoring for airborne concentrations of asbestos fibers during an abatement project, as required in §296.211(h)(1) of this chapter (relating to General Requirements for Asbestos Abatement in a Public Building). The third party who analyzes an area sample collected during the abatement project must not be employed or subcontracted for that purpose by an asbestos abatement contractor hired to conduct the asbestos abatement project by or for the owner except that an O&M contractor who owns or manages the building may hire a licensed air monitoring technician, licensed air monitoring technician project monitor, or a licensed asbestos consultant to perform air clearance monitoring for that building as required 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).

(b) Licensee conflict of interest.

(1) Without limiting the restrictions of §1954.254 and §1954.255 of the Act, for a project in a public building:

(A) a licensed asbestos consultant or licensed asbestos consultant agency for the project must not hire a licensed asbestos abatement contractor for the same project;

(B) a licensed asbestos abatement contractor for the project must not hire a licensed asbestos consultant or a licensed asbestos consultant agency for the same project, except that a licensed asbestos consultant or licensed consultant agency may be hired to collect and analyze personal samples to evaluate worker exposure, in accordance with 29 CFR §1926.1101 (relating to Asbestos);

(C) a person that is a licensed asbestos abatement contractor and licensed asbestos consultant must not act in both capacities on the same project; and

(D) a licensed asbestos management planner, licensed asbestos management planner agency, or licensed asbestos inspector that is also a licensed asbestos abatement contractor must not act as the asbestos abatement contractor on a project for which the licensee also performed a survey or, if otherwise authorized by the person's license, developed the management plan.

(2) A person must not be the responsible person for two companies that hold the same type of license.

(c) Municipality exemption. Notwithstanding subsection (b) of this section, a municipality may hire a licensed person to perform asbestos surveys, write management plans, design abatement projects, and abate asbestos in the same building or facility, consistent with the scope of the individual's licensure. This exemption does not relieve a municipality from the requirements of subsection (a) of this section. Area and project clearance monitoring activities must be performed by an independent third party who is not an employee of the municipality.

Source Note: The provisions of this §296.31 adopted to be effective July 8, 2021, 46 TexReg 3880