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Section 2: Asbestos-Containing Materials

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TxDOT's Perspective (Overview)

Proposed right-of-way or easements may include building or facility structures. Federal and state asbestos laws and regulations apply to the removal and disposal of obstructions including the remains of houses, foundations, floor slabs and basements. When required, asbestos inspections, notifications and abatement must be completed prior to demolition or renovation of structures within the right-of-way. Although TxDOT Standard Specification, Item 100, Preparing Right of Way requires removal and disposal of all obstructions from the right-of-way and from designated easements, asbestos-related activities are to be completed prior to letting of the transportation construction contract. Asbestos services and demolition typically occur after the right-of-way or easements have been acquired. If not accomplished prior to letting, then asbestos-related activities associated with preparing the right-of-way should be agreed upon in a contract separate from that of roadway construction.

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Asbestos Regulation Summary

Renovations and demolitions of buildings are regulated by federal and state asbestos regulations. Major asbestos regulations include the National Emission Standards for Hazardous Air Pollutants (NESHAP), regulated by the Environmental Protection Agency (EPA), and Texas Asbestos Health Protection Rules (TAHPR), regulated by the Department of State Health Services (DSHS.) NESHAP 40 Code of Federal Register (CFR), Part 61, Subpart M regulates all facilities and exteriors of public buildings; TAHPR 25 TAC Chapter 295, §§295.31-295.73 regulates public building interiors and provides for TDH enforcement of NESHAP. In certain instances, TAHPR requirements are more stringent than NESHAP requirements. In accordance with applicable Occupational Safety and Health Act (OSHA) regulations, employers are also responsible for employee safety and health concerns due to asbestos.

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Definitions

A facility is defined as “…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 residential buildings having four or fewer dwelling units); any ship; and any active or inactive waste disposal site. For purposes of this definition, any building, structure, or installation that contains a loft used as a dwelling is not considered a residential structure, installation or building. Any structure installation or building that was previously subject to this subpart is not excluded, regardless of its current use or function." 40 CFR §61.141.

Both NESHAP and TAHPR exclude private residences and apartment buildings with no more than four dwelling units. However, the EPA and TDH do not consider a residential structure to be exempt if it has been demolished or renovated as part of a commercial or public project. "The demolition of one or more houses as part of…a highway construction project… would be subject to the NESHAP" Federal Register, Volume 55, No. 224, Page 48412, Definition of Facility, Tuesday, November 20, 1990, Rules and Regulations.

A public building is defined as "The interior space of a building used or to be used for purposes that provide for public access or occupancy, including prisons and similar buildings. Interior space includes exterior hallways connecting buildings, porticos, and mechanical systems used to condition interior space. The term includes any building during a period of vacancy, including the period during preparations prior to actual 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 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 limited to workers and invited guests under controlled conditions; or (F) a building, facility, or any portion of which has been determined to be structurally unsound and in danger of imminent collapse by a professional engineer, registered architect, or a city, county, or state government official." 25 TAC §295.32.

A building owner is defined as "the owner of record of any building or any person, such as a property manager, who exercises control over such building to the extent that said person contracts for or permits renovation to or demolition of said building. A general contractor hired by the building owner for the purpose of performing a renovation or demolition cannot act as the building owner." Similar in definition, a facility owner is defined as "the owner of record of any facility or public building or any person who exercises control over a facility or public building to the extent that said person contracts for or permits renovation to or demolition of said facility or public building." An owner or operator of a demolition or renovation activity is defined as "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." 25 TAC §295.32.

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Asbestos Management in Facilities and Public Buildings

Pursuant to 25 TAC §295.34, building owners are required to inform all persons in writing of the presence and location of asbestos-containing building materials (ACBM), or to document any related personal communication between the owner (or his/her authorized representative) and the person or persons who are to perform any type of maintenance, custodial, renovation or demolition work. The owner retains primary responsibility for the presence, condition, disturbance, renovation, demolition and disposal of any asbestos encountered in the construction, operations, maintenance or furnishing of that building or facility. The owner of a public building and any other person who contracts with or otherwise permits any person to perform any asbestos-related activity without the appropriate valid license, registration, accreditation or approved exemption is subject to administrative or civil penalty under the Texas Health Protection Act, §§1954.351-402 of the Occupation Code, not to exceed $10,000 a day for each violation, or criminal penalty not to exceed $25,000, confinement in jail for no longer than two years or both.

Requirement Summary: Table 3-1 below presents a summary of the asbestos requirements for demolition depending upon whether the building or structure is defined as a public building under TAHPR or a non-public building under NESHAP. Since improvements on the right-of-way may be TAHPR public buildings and/or NESHAP facilities, the use of licensed rather than the accredited asbestos inspectors, consultants, and abatement contractors for asbestos-related activities is recommended to ensure compliance.

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Requirement Determination

Public Buildings

Non-Public Buildings

Is building a "public building" as defined in TAHPR? What are the inspection requirements?

Yes. Asbestos inspection is to be performed by TDH Licensed Inspector.

No. Asbestos inspection is to be performed by either an Accredited or TDH Licensed Inspector.

Is friable asbestos or asbestos-containing material present in building that may become friable during demolition?

Yes. Friable ACM.

No. Non-friable ACM.

Yes. Friable ACM.

No. Non-friable ACM.

Abatement requirements?

Friable ACM must be removed prior to demolition.

Non-friable ACM must be removed prior to demolition (see notes 1 & 2).

Friable ACM must be removed prior to demolition.

Non-friable ACM does not require removal prior to demolition (see notes 1& 2).

Is an asbestos abatement project design (specification) required?

Yes. Specification for friable ACM must be prepared by a TDH Licensed Consultant.

No. Specification for non-friable ACM is not required unless the quantities given in 25 TAC §295.34(g) are exceeded (see note 1).

Yes. Specification for friable ACM must be prepared by an accredited project designer.

No. Specification for non-friable ACM is not required, but must be treated in accordance with NESHAP.

What are the notification requirements?

For friable ACM, submit notification to TDH a minimum of 10 working days prior to the removal of the ACM.

For non-friable ACM, submit notification to TDH a minimum of 10 working days prior to the demolition start date.

For friable ACM, submit notification to TDH a minimum of 10 working days prior to the removal of the ACM.

For non-friable ACM, submit notification to TDH a minimum of 10 working days prior to the demolition start date.

What are the asbestos abatement contractor license requirements?

Friable ACM must be removed by a TDH Licensed Contractor prior to demolition.

Non-friable ACM must be removed by a TDH Licensed Contractor prior to demolition (see note 2).

Friable ACM must be removed prior to demolition by an EPA MAP (or equivalent) contractor (see notes 2 & 3).

Non-friable ACM must be removed by an EPA MAP (or equivalent) contractor prior to demolition (see notes 2 & 3).

Note 1

Asbestos abatement project design in public buildings with a combined amount of non-friable asbestos exceeding 25 TAC §295.34(g) quantities must be prepared by a TDH Licensed Asbestos Consultant.

Note 2

Exemption (see 25 TAC §295.36). Non-friable resilient floor coverings removed according to "Recommended Work Practices for the Removal of Resilient Floor Coverings," Resilient Floor Covering Institute (RFCI), 1992, are exempt from the licensing and registration requirements. However, an eight-hour training course in RFCI methods is required.

Note 3

EPA's Model Accreditation Plan (MAP) provides standards for initial training, examinations, refresher training courses, applicant qualifications, decertification, and reciprocity applicable to schools (40 CFR Chapter 753, Subpart E). However, MAP or equivalent is referenced by OSHA Standards 29 CFR §1926.1101. TDH Licensed Asbestos Abatement Supervisor is equivalent.

Citation for Licenses

Asbestos Consulting:

25 TAC §295.47. Licensure: Individual Asbestos Consultant

25 TAC §295.48. Licensure: Asbestos Consultant Agency

25 TAC §295.49. Licensure: Asbestos Project Manager

25 TAC §295.50. Licensure: Asbestos Inspector

25 TAC §295.52. Licensure: Air Monitoring Technician

Asbestos Abatement and Transportation:

25 TAC §295.42. Registration: Asbestos Abatement Workers

25 TAC §295.45. Licensure: Asbestos Abatement Contractor

25 TAC §295.46. Licensure: Asbestos Abatement Supervisor

25 TAC §295.56. Licensure: Asbestos Transporters

Laboratory:

25 TAC §295.54. Licensure: Asbestos Laboratory

25 TAC §295.52. Licensure: Air Monitoring Technician

Sources: Based on TDH APB #2 Flow Chart, 25 TAC Chapter 295, and 29 CFR §1926.1101.



Inspection (Asbestos Survey): An asbestos inspection or survey is performed to determine the presence, location, condition and friability of ACM by visual or physical examination, or by collecting samples of such materials. Per 25 TAC §295.34, an owner must have a thorough inspection performed prior to any renovation or dismantling within a public building, commercial building or facility, including preparations for partial or complete demolition as required by 40 CFR §61.145. The work area and all immediately surrounding areas that might be disturbed by the actions necessary to perform the project must be inspected and sampled, as applicable prior to renovations or demolition. Asbestos inspections or surveys must be performed by an asbestos consultant with an asbestos inspector working for the firm.

In a public building, inspections must conform to accepted standards such as the sampling protocol specified in 40 CFR Part 763 Subpart E, Asbestos Hazard Emergency Response Act (AHERA), which is the required method for schools. Per 25 TAC §295.34(c)(1), effective December 13, 1998, a minimum of three samples for each homogeneous area must be collected for public buildings. Other factors should also be taken into account when considering the best method to determine the location, extent and condition of the ACBM in a non-school building. All suspected asbestos-containing materials (ACM), not just friable or potentially friable asbestos, are to be sampled. This will require a limited amount of destructive testing.

Typically, an asbestos inspector will base his/her estimate of the required number of samples on the square footage of a building or structure. However, the true number of samples will depend upon the actual number of homogeneous areas encountered during the survey.

Asbestos Abatement Project Design (Abatement Specification): Asbestos abatement project design includes: the inspection, evaluation and selection of appropriate asbestos abatement methods; project layout; the preparation of plans, specifications and contract documents; and the review of environmental controls, abatement procedures and personal protection equipment employed during the project. An asbestos abatement project design, specification for asbestos removal is typically required for most demolition.

Per 25 TAC §295.34, with respect to friable ACBM, a project design must be prepared by either a licensed asbestos consultant for a school or public building or by an accredited project designer for a commercial building. As outlined in 25 TAC §295.34(g), an abatement project for a public building with a combined amount of non-friable asbestos exceeding 160 square feet (15 square meters) of surface area, 260 linear feet (80 linear meters) of pipe length or 35 cubic feet (1 cubic meter) of material to be removed must be designed by a licensed asbestos consultant. Floor tile removed in accordance with 25 TAC §295.36 (relating to Licensing and Registration: Exemptions, Emergency) is exempted from this design requirement. In a commercial building, non-friable material does not require a design but must be treated in accordance with NESHAP.

Per 25 TAC §295.47(a)(2): "If an asbestos abatement project includes alterations to a building's structure, its electrical, mechanical, safety systems, or their components, a licensed individual consultant in conjunction with or who is a licensed Professional Engineer (PE) in Texas must prepare the appropriate plans and specifications as required by the Texas Engineering Practice Act, Article 3271a and the rules of the Texas State Board for Registration for Professional Engineers…"

Ten (10) Day Notification: Notification is required for the demolition of any facility or public building, whether or not asbestos has been identified. In a facility, a notification to abate amounts described in NESHAP must be submitted to the TDH by the facility owner and/or operator. In a public building, a notification to abate any amount of asbestos must be submitted to the TDH by the public building owner and/or operator and may be delegated to a licensed asbestos abatement contractor or consultant in writing. If a licensed abatement contractor or consultant is not required, the task may be delegated to the demolition contractor. The notification may only be signed by the legal owner, his designated legal representative, the operator of the site, the licensed abatement contractor or a licensed consultant.

The TDH Demolition/Renovation Form (APB #4) combines the notification requirements of NESHAP and TAHPR. The notification form must be postmarked at least 10 working days (not calendar days) prior to the abatement project start date, except in the case of an emergency or ordered demolition. If asbestos abatement prior to demolition is not required, then only the 10-day notification to TDH for demolition is required. A telephone facsimile (FAX) is not acceptable. Work must commence on the date shown on the notification. If there is a change in the start date, then an addendum must be sent to TDH at least 10 working days prior to the revised start of work. Notifications that do not meet the 10-day requirement or are incomplete are considered to be improper and may result in enforcement proceedings.

Abatement and Monitoring: Asbestos abatement is the removal, encapsulation or enclosure of asbestos to reduce or eliminate airborne concentrations of asbestos fibers or amounts of ACM. Once the specification, if required, and proper notification have been completed, abatement can occur before performing the demolition or renovation activity.

Per 25 TAC §295.34, facility owners are required to abate all friable ACBM or ACM which may become friable (regulated asbestos-containing material [RACM]) in accordance with NESHAP. Public building owners are required to abate friable and non-friable ACBM in accordance with NESHAP and TAHPR. Those removing resilient floor covering materials in public buildings are exempt from the licensing and registration requirements of these sections, provided that the requirements of 25 TAC §295.36(a) regarding Licensing and Registration: Exemptions, Emergency are met.

Stringent conflict of interest requirements are associated with asbestos abatement in public buildings. Per 25 TAC §295.37(a) regarding Licensing and Registration: Conflict of Interest, "…third-party area monitoring and project clearance monitoring for airborne concentrations of asbestos fibers during an abatement project shall be performed by a person under contract to the public building owner to collect samples by and for the owner of the public building being abated…Such persons must not be employed or subcontracted by the asbestos abatement contractor hired to conduct the asbestos abatement project…".

Any air monitoring technician (AMT) must be licensed to perform air monitoring services for an asbestos abatement project or related activity in a public building. An air monitoring technician may obtain baseline, area, personal and clearance samples. For purposes of asbestos abatement activities, a licensed air monitoring technician shall be an employee of an asbestos laboratory or an asbestos consultant agency when taking area or clearance samples, or an employee of or under contract to an asbestos abatement contractor when taking personal samples.

Per 25 TAC §295.37(b) Licensee Conflict of Interest, a licensed asbestos consultant who performs asbestos inspections or surveys, writes management plans or designs asbestos abatement projects shall not also engage in the removal of asbestos from those buildings.

The asbestos abatement contractor is responsible for providing the proper temporary storage and final disposal of waste asbestos. A person must be licensed as an asbestos transporter to engage in the transport of asbestos in the State of Texas. All asbestos-containing waste material is to be delivered to an approved TCEQ facility (permitted landfill) for disposal or follow the regulations of the receiving State.

Demolition: Once any required abatement has been performed and notification has occurred, the structure can be demolished.

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Owner Retention, Acquisition and Sale of Improvements

Three typical scenarios in which asbestos must be considered are routinely encountered during the right-of-way acquisition process:

  • owner retention of the improvement
  • TxDOT acquisition of improvement
  • TxDOT acquisition and sale of improvement.

Owner Retention of Improvement Option: The first scenario is unique in that the real property acquisition does not include the improvements, typically residential structures. TxDOT property acquisition policy allows for owner retention of an improvement in return for a credit of the retention value of that improvement. For example, a residential property owner may elect to retain a house or mobile home and remove it from the property acquired by TxDOT. Under these circumstances, ownership of the improvement never passes to the State.

When an owner retains the improvement and legal ownership, TxDOT does not have the authority or right-of-entry to test for ACBM. Owners of public buildings and facilities are still required to conform to applicable NESHAP and TAHPR standards. Deeds and agreements should state that all such responsibility remains with the owner.

Demolition of residential structures may not be exempt from NESHAP once the land beneath the facility or structure is acquired by the State. TxDOT should notify the legal owner of the residential structure that demolition should not be performed on-site until it is confirmed that asbestos-related activities are performed by persons with the appropriate valid license, registration, accreditation or approved exemption. Due to the additional requirements, it is doubtful that the legal owner of a residential structure will want to demolish the structure on-site.

If an owner elects to retain an improvement and does not take appropriate steps to remove it, a standard deed provision, included with all TxDOT real property conveyances, provides for ownership of the structure to convey to TxDOT. If this occurs, then TxDOT would become the owner of the improvement and must then remove the improvement in accordance with applicable regulations.

TxDOT Acquires and Retains Ownership of Improvement Option: This second scenario results from any combination of circumstances by which TxDOT comes into actual ownership of a structure and must then take action to remove and dispose of the improvement. When TxDOT acquires ownership of the improvement, explicit responsibility for ACM rests solely with TxDOT.

Generally, TxDOT sells the acquired improvement, discussed in the following option. However, if TxDOT does not sell or transfer the legal ownership of the improvement, the inspection, notification, specification, abatement and disposal of ACM in accordance with applicable requirements are incumbent upon TxDOT. When TxDOT decides to retain ownership of an improvement, a district should contract with an asbestos consultant to perform an asbestos inspection and/or survey. The same asbestos consultant can also be contracted to provide an abatement project design specification, if needed. It is generally more cost effective for a single consultant to conduct the asbestos survey, abatement project design, notification, independent third-party air monitoring and final report.

The entire asbestos inspection report and abatement project design should be attached to a purchase of service specification for abatement and/or demolition request for bids. This documentation discloses the presence and location of asbestos-containing materials, better ensures compliance with applicable regulations and facilitates the preparation of more informed competitive bids. To reduce photocopying expenses, a summary of the inspection report or project design can be attached to the abatement/demolition specification if it clearly states that the entire report is available from the district. Districts should ensure that the contractor received or receives a copy of the entire inspection report and abatement project design once the contract is awarded.

The abatement and/or demolition specification should address and specify requirements for the following:

  • certificate of insurance and performance bonds
  • proof of license and certification requirements
  • third-party independent monitoring requirements
  • notification and fee requirements
  • transportation and disposal of ACM.

TxDOT should confirm that any contractor or consultant performing asbestos-related activity on the right-of-way has the appropriate valid license, registration, accreditation or approved exemption. TxDOT should also request a copy of the completed notification form, and documentation that the form was received by TDH, to confirm that notification requirements have been met.

TxDOT Acquires and Sells Ownership of Improvement Option: The third scenario results from circumstances similar to those of the earlier scenarios in which TxDOT becomes the owner of improvements such as public buildings and/or facilities. TxDOT’s surplus property procedures include transferring the title or ownership of improvements to a purchaser. In this scenario, TxDOT does not hire contractors but sells the improvement outright by issuing an Invitation for Bid (IFB) to conduct a sale of improvement through the competitive bid process. This type of sale is typically a sale by negative bid where the successful bidder or buyer may actually receive funds. The terms of the contract with the successful bidder usually include responsibilities for proper handling, disposal of asbestos and removal of the improvement. The purchaser can include in the formulation of the bid the costs of all required asbestos-related activities and any demolition costs.

In addition to the certificate of insurance and performance bond requirements, the terms and conditions of the IFB should address the transfer of responsibilities for the following requirements:

  • license and certification
  • inspection
  • asbestos abatement project design
  • abatement
  • third-party independent monitoring (abatement contractor cannot contract, subcontract or employ the independent third-party air monitor)
  • notification and fees
  • transportation and disposal of improvement and/or ACM.

When TxDOT acquires and sells the improvement, the following choices related to asbestos inspection, abatement project design, notification, air monitoring, and final report are available:

  1. Attach Asbestos Inspection: A recommended approach to provide information about the presence and location of asbestos-containing materials, ensure compliance with applicable regulations and obtain more informed competitive bids is to attach the results of an asbestos inspection (asbestos survey) to an IFB. The entire asbestos inspection report should be attached to obtain more informed competitive bids. To reduce photocopying expenses, a summary of the inspection report can be attached as long as the IFB states that the entire report is available from the district. The district should ensure that the successful bidder receives a copy of the entire inspection report.
  2. Attach Asbestos Inspection and Abatement Project Design: Although it is not required, the purpose of attaching the asbestos inspection report and abatement project design to the IFB would be to obtain more informed competitive bids. It is also generally more cost effective to have the consultant who performed the asbestos inspection also conduct the asbestos abatement project design. However, TxDOT's terms and conditions in a Sale of Improvement make no warranties. The successful bidder would not be obligated to perform abatement in accordance with the terms of the asbestos abatement project design.
  3. Attach Asbestos Inspection and Abatement Project Design and Provide Additional Asbestos Consulting Services: Although not required or recommended when TxDOT sells the improvement, a district can procure or provide additional consultant services (notification, third-party air monitoring and/or final report) in addition to the asbestos inspection and abatement project design. The successful bidder would not be obligated to perform abatement in accordance with the terms of the abatement project design specification. Additionally, it may be difficult to coordinate the activities of the abatement contractor with those of the asbestos consultant if the firms are contracted by separate entities. Lastly, the transfer of responsibility under TAHPR and NESHAP may no longer apply if these additional asbestos-consulting services are provided to the successful bidder. If a district decides to provide these additional asbestos-consulting services, then the "TxDOT Acquires and Retains Ownership of Improvement Option," as discussed earlier, should be reconsidered.

In the IFB, TxDOT should request a copy of the completed notification form as well as documentation that the form was received by TDH prior to abatement or demolition. In addition, TxDOT should require any contractors or consultants performing asbestos-related activity on the right-of-way to have the appropriate valid license, registration, accreditation or approved exemption. Receipt of the completed 10-day notification form provides TxDOT with documentation that license requirements are met.

When TxDOT sells an improvement, the legal ownership or title of the building is transferred to the purchaser. As the building owner, the purchaser can contract the abatement and independent third-party air monitoring to separate entities. It is up to the purchaser to remove the improvement or demolish the improvement on-site. The purchaser is responsible for removal of the structure according to applicable regulations. Any on-site salvage or demolition activities should also follow applicable regulations.

Question three of the TDH Demolition/Renovation Notification Form requests information about the Facility Owner. The person completing the form is asked to "provide information on the legal owner of the facility." Although the State still owns the land beneath the facility or building, the legal owner of the facility or building is the purchaser. Therefore, TxDOT's name is not required on the notification form. TDH sends the invoice for the notification fee to this address.

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Options for Obtaining Asbestos Services

Additional information on obtaining asbestos services from consultants and contractors is provided in Chapter 6 (Hazardous Materials Services Contracts).

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