25 TAC §§295.301 - 295.338
The Texas Department of Health (department) adopts new §§295.301
- 295.338, concerning the regulation of mold-related activities that affect
indoor air quality. Sections 295.301 - 295.306, 295.308 - 295.326, 295.330,
295.331, 295.333, 295.334, and 295.338 are adopted with changes to the proposed
text as published in the January 30, 2004 issue of the
Texas Register
(29 TexReg 876). Sections 295.307, 295.327 - 295.329,
295.332, and 295.335 - 295.337 are adopted without changes, and the sections
will not be republished in the
Texas Register
.
The new sections cover the following: general provisions; definitions;
exceptions and exemptions to licensing and registration; code of ethics; general
conditions; general responsibilities; requirements for licensing, registration,
and accreditation; minimum work practices and procedures for mold assessment
and mold remediation; and enforcement.
These rules are required as a result of House Bill 329 (HB 329), 78th Legislative
Session, 2003, which added Chapter 1958 to the Texas Occupations Code (TOC),
and requires the department to develop rules to regulate mold-related activities,
including licensing and regulation of mold assessors and remediators and to
establish minimum performance standards for the licensees; Senate Bill 1152,
78th Legislative Session, 2003, which amended Government Code, Chapter 2054,
regarding the Texas Online Authority; and House Bill 2292 (HB 2292), 78th
Legislative Session, 2003, which revised Texas Health and Safety Code (THSC), §12.0111
and §12.0112, and requires two-year licenses effective January 1, 2005,
with a provision for staggering the issuance and renewal of licenses.
The following comments from the public were received concerning the proposed
sections during the comment period. Following each comment is the department's
response and any resulting change(s). Other minor editorial changes were made
for clarification purposes.
Comment: Concerning the rules in general, some commenters made comments
in favor of the rules and commended the department for its important work.
Some commenters opposed the rules believing they need more revision before
being adopted. One commenter expressed support for the purpose behind the
rules and conveyed the importance of imposing regulation on an unregulated
industry.
Response: The department is very aware that the underlying legislation,
HB 329, and these rules have generated much interest among many different
stakeholders, many of whom have differing points of view. The department appreciates
the efforts of so many to produce an effective first step in regulating mold-related
activities in Texas. While some will think the rules too strict in some areas
and too lenient in others, the department has tried to harmonize differing
viewpoints consistent with the statutory authority of HB 329. As this regulatory
program unfolds, the department remains open to receiving feedback about how
these rules might be revised in the future.
Comment: Concerning the rules in general, several commenters raised concerns
regarding the health effects of mold: some commenters believed the rules are
based on a false premise that mold is "toxic," and as such, are overly prescriptive,
while some believed the rules do not adequately address health concerns associated
with mold for workers and the general public.
Response: The department acknowledges the varied opinions regarding the
health effects of mold in indoor environments. It believes the rules as proposed
strike a balance by requiring minimum performance standards and work practices
(mandated in TOC, §1958.054) to protect both workers and the public,
and allowing more stringent practices and procedures on a case-by-case basis
based on professional judgment. Some changes were made regarding minimum work
standards and practices for mold assessment and remediation as discussed later
in this preamble.
Comment: Concerning the rules in general, one commenter requested that
the department issue only two licenses as described by TOC, §1958.101(a).
Response: The department disagrees. It does not read TOC, §1958.101(a),
to limit the types of licenses to two, but as describing broad categories
of mold-related activities. No change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter asked the department
to recognize the practice of registered professional engineers in reference
to these rules.
Response: The department agrees and has added §295.306(f) to indicate
that licensees are responsible for determining whether the mold-related activities
in which they will engage require additional credentials.
Comment: Concerning the rules in general, one commenter requested that
the department promulgate fair standard form contracts between a homeowner
and the person(s) conducting initial and post-clearance assessments.
Response: The department disagrees. The department is not authorized under
TOC, Chapter 1958, to develop, promulgate, or require such contracts. No change
was made as a result of this comment.
Comment: Concerning the rules in general, one commenter believes that training
and licensing requirements are not consistent for mold assessors and remediators,
because remediators are licensed based on the size of the project and the
type of structure involved, whereas assessors are licensed based on the client
and the activity.
Response: The department disagrees. The requirements for training are based
on the requirements for licensing in TOC, Chapter 1958, and none of them are
related to the type of client. The TOC, §1958.101, requires licensing
of both assessors and remediators based on the activities they perform. No
change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter requested that
the department require continuing education on homeowners' insurance issues
and that questions on homeowners' insurance be added to the state licensing
examinations.
Response: The department disagrees. Homeowners' insurance issues lie outside
the scope of TOC, Chapter 1958. No change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter felt that individual
licensees should use professional judgment in performing their duties but
that a three-to-five day training seminar was not sufficient training to allow
for professional judgment.
Response: The department agrees. In addition to prescribed training, assessment
consultants and remediation contractors who will be called upon to exercise
professional judgment are required under §295.312 and §295.315,
respectively, to meet substantial qualifications regarding prior education
and experience to become licensed by the department. The department believes
the combination of the required education, experience and prescribed training
is sufficient to allow the exercise of professional judgment by licensees.
No change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter requested that
the department add a "mold remediation supervisor" license.
Response: The department disagrees. The mold remediation contractor will
supervise mold remediation workers, as provided under §295.315(b); a
separate remediation supervisor license is not necessary. No change was made
as a result of this comment.
Comment: Concerning the rules in general, two commenters requested the
rule make moisture identification, prevention, and control its central focus,
rather than vaguely referring to "the causes of mold growth."
Response: The department disagrees. On-going prevention and control of
moisture problems in buildings is the maintenance responsibility of the property
owner and is outside the scope of the statute. No change was made as a result
of this comment.
Comment: Concerning the rules in general, one commenter requested the scope
be increased to provide more choices for consumers on how to get mold remediated.
Response: The department disagrees. The TOC, §1958.002, specifies
the scope of these rules. No change was made as a result of this comment.
Comment: Concerning the rules in general, two commenters requested the
rules include training for existing trades such as property owners and managers,
remodeling contractors, landscapers, architects, home inspectors, and code
inspectors.
Response: The department disagrees. This expansion would be outside the
scope of the statute. No change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter requested that
mold assessors and remediators be required to give the consumer a pamphlet
prepared by the department describing some of the mold remediation concerns.
Response: The department agrees and had already included a similar requirement
in §295.306(c) of the proposed rules. No change was made as a result
of this comment.
Comment: Concerning the rules in general, one commenter requested that
the department require individuals with no previous education and/or experience
in the control of hazards to attend classroom and hands-on instruction of
several weeks before being licensed under this subchapter.
Response: The department disagrees. The rules require all applicants for
individual licenses to have at least one year of experience in mold assessment,
mold remediation, building construction, or an "allied field" as defined in §295.302(3)
which is sufficient training. No change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter requested that
a General Educational Development (GED) or high school diploma be accepted
for non-commercial licenses.
Response: The department does not issue non-commercial licenses for mold-related
activities. Any licensee may work on any type of property regardless of use
or ownership. No change was made as a result of this comment.
Comment: Concerning the rules in general, a medical mycologist or physician
should interpret mold data because licensed individuals are not qualified.
Response: The department disagrees. The required training, education and
work experience are sufficient to qualify the licensee to interpret mold data.
Comment: Concerning the rules in general, one commenter recommended that
the word "contamination" be replaced by "growth" throughout the rules.
Response: The department disagrees. "Contamination" as defined in standard
dictionaries, such as Merriam-Webster's Collegiate® Dictionary, Tenth
Edition is the applicable and correct word for these rules. No change was
made as a result of this comment.
Comment: Concerning the rules in general, one commenter recommended that
quantitative measurement of mold must be done by a certified environmental
microbiology laboratory.
Response: The department disagrees. Analysis of mold samples collected
during the conduct of mold-related activities under this chapter must be done
by a licensed laboratory as described in §295.317. No change was made
as a result of this comment.
Comment: Concerning the rules in general, two commenters requested licensed
insurance adjusters be exempted as long as they are not performing assessment
or remediation. A staff comment suggested exempting public insurance adjusters
who perform similar duties. Another commenter requested the department clarify
what activities an insurance adjuster can perform regarding mold assessments.
Response: The department agrees and has clarified the adjuster's role in §295.303(g).
The rules prohibit insurance adjusters from performing mold assessments without
a mold assessment license if samples need to be collected for mold analysis
or a mold assessment needs to be performed for visible mold greater than 25
square feet.
Comment: Concerning the rules in general, one commenter requested the department
create a new license category of Loss Prevention Specialist.
Response: The department disagrees. The department has no statutory authority
to make this change as this work is neither "assessment" nor "remediation"
as defined in TOC, §1958.001. No change was made as a result of this
comment.
Comment: Concerning the rules in general, several commenters requested
that the department exempt school districts or provide non-commercial licenses
for government entities.
Response: The department disagrees. The department has no statutory authority
to exempt schools from the rules and does not see the need for non-commercial
licenses. No change was made as a result of this comment.
Comment: Concerning the rules in general, four commenters requested that
the department adopt existing standards; three specifically suggested the
Institute of Inspection, Cleaning, and Restoration Certification's Standard
and Reference Guide for Mold Remediation (IICRC S520) as a standard.
Response: The department disagrees. The IICRC S520 standard, and U.S. Environmental
Protection Agency's (EPA's) Mold Remediation in Schools and Commercial Buildings
are both excellent for mold remediation performance guidelines and the department
recommends they be used where applicable. However, the department feels that
it would be overly prescriptive to limit the licensees to these standards
for fulfilling the requirements of the statute. No change was made as a result
of this comment.
Comment: Concerning the rules in general, one commenter requested a single
license per company.
Response: The department disagrees. As with many other similar licensing
programs, individual licenses provide more effective and broad-based regulation.
No change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter requested that
training courses by the Indoor Air Quality Association and the Institute of
Inspection, Cleaning, and Restoration Certification be accepted as fulfilling
requirements for licensing.
Response: Any training courses that meet the training requirements specified
in the rules will be accepted where applicable. No change was made as a result
of this comment.
Comment: Concerning the rules in general, one commenter noted that "access
limitations" to property owners would add to remediation costs.
Response: The department found no "access limitations" in the proposed
rules. This comment may address language in an earlier draft. No change was
made as a result of this comment.
Comment: Concerning the rules in general, some commenters expressed concern
that there was not enough public input; one commenter noted that representatives
from the air-conditioning and building industries and national code officials
did not have input during the rulemaking process.
Response: The department disagrees about the lack of public input. The
rules were published in the
Texas Register
on
January 30, 2004, for a 30-day comment period and over 900 comments were received
from approximately 120 organizations and numerous individuals. The rules were
also posted on the Indoor Air Quality Branch's website since January 23, 2004.
From July to December of 2003, three revisions of draft rules were e-mailed
to over 150 stakeholders and posted on the department's website for comment.
Comments were received from those in numerous disciplines. The rules have
had national coverage. No change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter recommended the
licensing and notification fees for local governments such as school districts
be eliminated.
Response: The department disagrees. Although TOC, §1958.102, exempts
residential property owners, managing agents and builders from its licensing
and notification requirements under some circumstances, the department finds
no similar intent in the statute concerning exemptions for government entities.
No change was made as a result of this comment.
Comment: One commenter stated the requirements for worker protection and
minimum work practices are not stringent enough.
Response: The department disagrees. The statute directs the department
to establish only minimum work practices. The rules require the mold assessment
consultant to be trained and use professional judgment in developing the work
plan. There are excellent mold remediation performance guidelines available
for consultant use to go beyond the minimums, including the EPA's Mold Remediation
in Schools and Commercial Buildings and IICRC S520. No change was made as
a result of this comment.
Comment: Concerning the rules in general, one commenter requested the department
require an individual removing mold of less than 25 square feet to consider
asbestos, lead, or other hazardous materials.
Response: The department disagrees. It does not have the authority under
TOC, §1958.102(c), to regulate persons when the mold contamination is
less than 25 square feet. However, the department does require under §295.312(f)(4)
and §295.313(f)(5) of the rules that a licensed assessment consultant
and a licensed assessment company, respectively, inquire of a client about
the presence of hazardous materials. The 25 square feet threshold does not
apply to other regulatory programs such as asbestos or lead-based paint. No
changes were made as a result of this comment.
Comment: Concerning §295.301(a) and (b), several commenters requested
analytical laboratory work, analytical laboratories or laboratory analysis
be added as separate regulated entities or activities in these subsections.
Response: The department disagrees. These entities are already included
in these subsections as "mold assessment." Mold assessment is defined in §295.302(22)
and in TOC, §1958.001(6), and includes "analysis of a mold sample." No
change was made as a result of these comments.
Comment: Concerning §295.301(a), one commenter requested the addition
of a definition for "regulated buildings."
Response: The department disagrees but has deleted "in regulated buildings"
from this subsection. This subchapter regulates mold-related activities and
the persons performing them, rather than buildings.
Comment: Concerning §295.301(b), two commenters noted the scope is
limited to assessment and remediation in buildings. The commenters believe
the statute's provision for educational activities (TOC, §1958.052) allows
the department to enact requirements for the prevention of moisture and mold
problems.
Response: The department disagrees. The TOC, §1958.052, allows for
a statewide public education program but does not give the department the
authority to require licensees or others to take any specific action to prevent
moisture and mold problems. No change was made as a result of this comment.
Comment: Concerning §295.302, several commenters requested this section
be rewritten to reflect definitions commonly agreed upon by professionals
in the industry and definitions used in IICRC S520.
Response: The department disagrees. The definitions are taken directly
from the statute or added for clarity based on the statute, and definitions
from other sources were often unnecessary. No change was made as a result
of these comments. However, several changes were made in this section, as
discussed later in this preamble.
Comment: Concerning §295.302, one commenter recommended a definition
of "mold analysis laboratory" be added and provided a possible definition.
Response: The department agrees and has included a new definition in §295.302(21).
Comment: Concerning §295.302, one commenter requested the department
add a definition for "conflict of interest" as "any individual who performs
both mold assessment and mold remediation on the same project, for hire or
profit."
Response: The department disagrees. Language regarding "conflict of interest,"
which the department addressed in §295.307(a) of these rules, is taken
directly from TOC, §1958.155(a). The statute does not contemplate that
the conflict is based on being "for hire or profit." No change was made as
a result of this comment.
Comment: Concerning §295.302, one commenter requested new definitions
be added for "Commercial Property," "Institutional Property," and "Industrial
Property."
Response: The department disagrees. These definitions are not necessary
to effectively implement the statute. No change was made as a result of this
comment.
Comment: Concerning the definition of "allied field" in §295.302,
one commenter suggested "are applicable" be changed to "may be applicable."
Response: The department disagrees. The intent of this definition is to
be applicable in some aspects, not just "may" in all situations. No changes
were made as a result of this comment.
Comment: Concerning the definition of "assessor" in §295.302, two
commenters suggested that "technician" and "or company" be deleted.
Response: The department disagrees. These two entities are each a licensing
category and must be included in the definition. No change was made as a result
of this comment.
Comment: Concerning the definition of "containment" in §295.302, one
commenter recommended adding "in the building" after "areas".
Response: The department agrees and has made the recommended change.
Comment: Concerning the definition of "containment area" in §295.302,
one commenter requested the words "mold-containing dust or materials" be deleted.
Response: The department disagrees. The language is necessary for clarification.
No change was made as a result of this comment.
Comment: Concerning the definition of "containment area" in §295.302,
one commenter requested the word "prevent" be changed to "control."
Response: The department agrees and has made the requested change.
Comment: Concerning the definition of "contiguous" in §295.302, one
commenter recommended that "close proximity" be defined in terms of distance.
Response: The department disagrees. The determination of close proximity
will require prudent judgment by a consultant on a case-by-case basis. No
change was made as a result of this comment.
Comment: Concerning §295.302, numerous commenters disliked the definition
of "direct microscopic examination" and requested it be deleted or modified.
Response: The department agrees. This definition was deleted.
Comment: Concerning the definition of "indoor air" in §295.302, one
commenter suggested that the department exclude the air in attics and crawl
spaces that are vented to the outside from this definition.
Response: The department agrees and has made the suggested change.
Comment: Concerning the definition of "indoor mold" in §295.302, several
commenters requested this definition be deleted or clarified.
Response: The department disagrees. This definition is needed to distinguish
and clarify the terms "mold" and "indoor mold" used in the rules. The TOC, §1958.001(7),
defines mold remediation to apply to "mold" that was not purposely grown at
a location and TOC, §1958.002(a), limits the scope of this subchapter
to mold-related activities that affect indoor air quality. The definition
of "mold" in TOC, §1958.001(5), encompasses more than visible mold growth.
No change was made as a result of these comments.
Comment: Concerning the definition of "mold" in §295.302, two commenters
suggested changes to the definition.
Response: The department disagrees. The definition of "mold" in §295.302
comes directly from TOC, §1958.001(5). No change was made as a result
of these comments.
Comment: Concerning the definition of "mold analysis" in §295.302,
several commenters requested the definition be deleted or modified.
Response: The department disagrees. The TOC, §1958.001(6), includes
"analysis of a mold sample" in the definition of "mold assessment" and, therefore,
the department is required under the statute to regulate the practice of mold
analysis when it is performed. The TOC, §1958.001(6), does not limit
the techniques that might be utilized for mold analysis. No changes were made
as a result of these comments.
Comment: Concerning the definition of "mold assessment" in §295.302,
one commenter requested that subparagraph (B) be stricken from this definition
regarding the development of a mold management plan or mold remediation protocol.
Response: The department disagrees. The development of a mold management
plan or mold remediation protocol is an important function of mold assessment
activities. No change was made as a result of this comment.
Comment: Concerning the definition of "mold assessment" in §295.302,
one commenter requested the word "unit" be added after the word "dwelling"
because "dwelling" is not defined in the rules, whereas "dwelling unit" is.
Response: The department disagrees for the following reasons: §295.302(22)(A)
is identical to TOC, §1958.001(6)(A); the department believes the term
"dwelling" has a generally accepted meaning and is unambiguous; and a "dwelling
unit" as defined in proposed §295.302(14), which has been replaced by
the definition of "residential dwelling unit" in §295.302(34) in response
to a staff comment, is not necessarily a structure. No change was made as
a result of this comment.
Comment: Concerning the definition of "mold assessment" in §295.302,
one commenter suggested that "evaluation of mold" be changed to "evaluation
of mold growth."
Response: The department disagrees. The definition of "mold assessment"
was taken from TOC, §1958.001(6). No change was made as a result of this
comment.
Comment: Concerning the definition of "mold assessment report" in §295.302,
two commenters recommended changing "analysis" to "analytical."
Response: The department agrees and has made the requested change.
Comment: Concerning the definition of "mold remediation" in §295.302,
several commenters requested changes to the definition. One commenter suggested
that "and limited to" be inserted before "applying biocides."
Response: The department disagrees. The language in the first sentence
of the definition was taken directly from TOC, §1958.001(7). For clarity,
the department included a sentence regarding "preventive activities" in the
definition. The department is not authorized under TOC, Chapter 1958, to limit
the scope of preventive activities as requested. No changes were made as a
result of these comments.
Comment: Concerning the definition of "mold remediation protocol" in §295.302,
one commenter requested a new category of "mold remediation consultant" be
required to prepare a mold remediation protocol, rather than a mold assessment
consultant, because the commenter felt the mold assessment consultant was
not qualified.
Response: The department disagrees. Training required for licensing as
a mold assessment consultant is extensive and includes an overview of building
construction and building sciences in §295.320(c)(4). No change was made
as a result of this comment.
Comment: Concerning the definition of "mold remediation work plan" in §295.302,
one commenter recommended the following be added to end of the definition:
"will be performed to comply with the mold remediation protocol."
Response: The department disagrees. This concept is already addressed under
TOC, §1958.322(b), which states that a remediation contractor is required
to prepare a mold remediation work plan based on a mold remediation protocol.
No change was made as a result of this comment.
Comment: Concerning the definitions of "mold remediation protocol" and
"mold remediation work plan" in §295.302, several commenters objected
to the need for two documents that are so similar and suggested changes.
Response: The department disagrees. These definitions come from TOC, §1958.151(a),
("work analysis," which is referred to as a protocol in the rules) and §1958.152(a)
("work plan"). Mold remediation protocols and mold remediation work plans,
respectively, are separate documents prepared by different persons. The statute
requires both and the department has no authority to make the requested change.
No change was made as a result of these comments.
Comment: Concerning the definition of "remediator" in §295.302, one
commenter recommended "worker, contractor, or" be deleted. The same commenter
also requested the department license only mold remediation contractors.
Response: The department disagrees. The department determined the need
for the various licensing categories based on a variety of factors, including
the statute, stakeholder input and analogous regulatory programs. No change
was made as a result of this comment.
Comment: Concerning the definition of "remediator" in §295.302, one
commenter requested adding "supervisor" as one of the credentialed entities.
Response: The department disagrees. The department decided this licensing
category was unnecessary. No change was made as a result of this comment.
Comment: Concerning the definition of "residential property" in §295.302,
one commenter requested the department change the words "a person" in the
phrase "provide living quarters for a person" to the words "an individual."
Response: The department has modified the definition of "residential property"
so that the word "person" does not appear in it.
Comment: Concerning §295.302, several commenters requested the definitions
for "start-date" and "stop-date" be deleted and several requested clarifying
language.
Response: The department disagrees. The TOC, §1958.153(a), requires
a license holder to notify the department before the license holder starts
mold remediation at a property, unless an emergency exists. The license holder
must specify start and stop-dates to enable the department to ensure effective
compliance with minimum cost. Procedures for amending start and stop-dates
are specified in §295.325(b) and (c) of these rules. No changes were
made as a result of these comments.
Comment: Concerning the definition of "survey" in §295.302, one commenter
suggested that "growth" be inserted between "mold" and "or."
Response: The department disagrees. The definition is intended to cover
"indoor mold" as defined in §295.302(18). No change was made as a result
of this comment.
Comment: Concerning the definition of "total surface area of contiguous
square feet" in §295.302, one commenter suggested that "contamination"
be changed to "growth."
Response: The department disagrees. The definition is intended to cover
mold contamination, not mold growth. No change was made as a result of this
comment.
Comment: Concerning the definition of "total surface area of contiguous
square feet" in §295.302, one commenter was concerned that if mold covered
only five square feet of a piece of sheetrock, but it was more economical
or practical to replace 32 square feet (a typical size for sheetrock), this
situation would require a licensed person.
Response: The department disagrees. The language "that needs to be cleaned
or removed" in this definition is intended to clarify this concern. In the
example given, only five square feet needs to be cleaned or removed to remediate
the mold contamination. An unlicensed person could perform the work described.
No change was made as a result of this comment.
Comment: Concerning the definition of "training hours" in §295.302,
one commenter requested that scheduled lunch periods be included as part of
the classroom instruction.
Response: The department disagrees. The hours specified are required to
ensure adequate training. No change was made as a result of this comment.
Comment: Concerning the definition of "working days" in §295.302,
one commenter requested it be deleted because it does not comply with the
intent of the legislation.
Response: The department disagrees. This definition is in keeping with
the statutory scheme and is needed to clarify the use of this term in the
rules. No change was made as a result of this comment.
Comment: Concerning §295.303, two commenters requested clarification
as to when a property owner or managing agent falls under the regulations.
Response: The department clarifies that, as described under §295.305(a),
a property owner or managing agent must comply with this subchapter unless
one of the exemptions listed under §295.303 applies. Specifically, a
property owner or managing agent is subject to these rules:
(1) if the property in question is a residential property with ten or more
residential dwelling units and the mold contamination affects a total surface
area of 25 contiguous square feet or more for the project, as those terms
are defined in §295.302;
(2) if the property is not a residential property and the mold contamination
affects a total surface area of 25 contiguous square feet or more for the
project; or
(3) if the property owner or managing agent engages in the business of
performing mold assessment or mold remediation for the public.
No change was made as a result of this comment.
Comment: Concerning §295.303(a)(1)(C), one commenter questioned why
real estate inspectors are not required to be licensed.
Response: The department clarifies that real estate inspectors are required
to be licensed under this subchapter to perform mold assessment and remediation.
The exception under TOC, §1958.002(b)(1)(C), and §295.303(a)(1)(C)
of these rules applies only to real estate inspections that are not conducted
for the purpose of mold assessment or mold remediation. No change was made
as a result of this comment.
Comment: Concerning §295.303(b), several commenters requested changes
or clarification regarding the total surface area of less than 25 contiguous
square feet.
Response: The department disagrees. This language comes directly from TOC, §1958.102(c).
The department has no statutory authority to make the requested changes. The
definition of "total surface area of contiguous square feet" in §295.302
clarifies this subsection. No change was made as a result of these comments.
Comment: Concerning §295.303(c), two commenters requested the addition
of language to clarify that persons holding this exemption are not required
to perform mold assessment or remediation on the properties listed.
Response: The department clarifies that neither TOC, Chapter 1958, nor
this subchapter requires the assessment or remediation of mold by anyone on
any property. The statute and rules regulate those persons who choose to conduct
such activities and who are not exempt, as provided under TOC, §1958.102,
and §295.303 of this subchapter. No change was made as a result of these
comments.
Comment: Concerning §295.303(c), three commenters believe there is
no basis for exempting the owner or managing agent of a residential property
with fewer than 10 residential dwelling units.
Response: The department disagrees. The exemption comes directly from TOC, §1958.102(e).
No change was made as a result of these comments.
Comment: Concerning §295.303(e), one commenter requested that all
construction and renovation activity be included in this exemption.
Response: The department disagrees. This exemption comes directly from
TOC, §1958.102(d); therefore, the department has no statutory authority
to make the requested change. No change was made as a result of this comment.
Comment: Concerning §295.303(e), one commenter requested clarification
as to whether this exemption applies after the "building phase" or after the
builder has sold the home. The commenter expressed concern that if the exemption
applies after the home has been sold, the buyer will not receive a certificate
of mold remediation. The commenter suggested that the exemption apply only
during the building phase and asked the department to add a clarifying definition
of "repair work" to §295.302.
Response: The department clarifies that §1958.102(d) does not specify
a time limit for the exemption. Consequently, the department has no statutory
authority to make the requested change. The department notes, however, that
the exemption does not allow a person who constructed or improved a dwelling
to perform mold assessment or remediation without a license unless:
(1) the mold assessment or remediation is performed at the same time the
person performs the construction or improvement or
(2) the mold assessment or remediation is performed at the same time the
person performs repair work on the construction or improvement. Otherwise,
the person must be appropriately licensed under this subchapter.
If a buyer wants a certificate of mold remediation, the buyer can hire
someone who is not exempt to do the remediation. No change was made as a result
of this comment.
Comment: Concerning §295.304, one commenter expressed support for
the inclusion of a code of ethics in the rules, while several others questioned
its inclusion, believing it cannot be enforced.
Response: The TOC, §1958.059, required the department to develop a
code of ethics for license holders. The inclusion of a professional code of
ethics is common in many other state statutes, and provides impetus for "self-enforcing"
by professionals as well as the department. No change was made as a result
of these comments.
Comment: Concerning §295.304(b)(5), one commenter recommended changing
the words "to the extent required by law" to "unless otherwise required by
law" because the commenter felt that a person should keep such information
confidential unless required to disclose it.
Response: The department disagrees. The department does not have the statutory
authority to impose such a broad ban. Individual consumers can include such
"unless required by law" language in their contracts, if needed. No change
was made as a result of this comment.
Comment: Concerning §295.304(b)(5), one commenter expressed concern
that entities not in the health-care industry do not understand their legal
and ethical obligations related to medical information. The commenter recommended
that the department require input from medical professionals or mandatory
educational curricula in this area.
Response: The department clarifies that training on technical and legal
considerations, including regulatory requirements, is already required under §295.320(b)(4),
(c)(1), (d)(3)(D), and (e)(5). These legal considerations and regulatory requirements
include obligations related to information on medical conditions, and the
department will provide guidance to training providers and licensees in this
area. No change was made as a result of this comment.
Comment: Concerning §295.304(b)(9), one commenter felt that the word
"impaired" was not specific and requested the department objectively define
"impaired" in regard to alcohol and drug use.
Response: The department disagrees. This paragraph requires that licensees
"not allow those under their supervision to work if known to be impaired"
but does not mandate testing to prove impairment. The department also notes
that other codes of ethics for licensed professionals contain a general reference
to not working while impaired (see, for example, 22 TAC §781.401(a)(10)).
No change was made as a result of this comment.
Comment: Concerning §295.320(b)(10), one commenter requested this
section be changed to allow any training provided by a recognized trainer
to be acceptable.
Response: The department disagrees. The TOC, §1958.106, requires the
department to adopt rules regarding continuing education. To ensure that refresher
courses meet the necessary requirements, the department must have an accrediting
procedure to verify the trainers have the proper credentials and that the
courses cover the required material. No change was made as a result of this
comment.
Comment: Concerning §295.304(b)(13), two commenters felt that companies
should have the right to offer services at whatever costs they choose and
that this provision should be eliminated.
Response: The department disagrees. Licensees have an ethical duty not
to take advantage of customers by charging prices that are unreasonable or
excessive. The department recognizes, however, that costs are determined by
a variety of factors and has changed this paragraph to "provide mold-related
services at costs in keeping with industry standards."
Comment: Concerning §295.304(b)(14), one commenter stated that the
required information in this paragraph should be on the Consumer Mold Information
Sheet required under §295.306(c) rather than on written contracts and
invoices supplied to a client.
Response: The department agrees and has modified this paragraph to apply
only to training providers and licensed mold analysis laboratories, because
they will not be giving a Consumer Mold Information Sheet to their customers.
Comment: Concerning §295.304(b)(14), one commenter requested the department
address and phone number be added.
Response: The department disagrees. This information is subject to change.
If written into this subsection, the result might require the license holder
to provide information that is incorrect. No change was made as a result of
this comment.
Comment: Concerning §295.305(a), one commenter requested inserting
"company or" before "person."
Response: The department disagrees. Companies are included in the definition
of "person" in §295.302(30). No change was made as a result of this comment.
Comment: Concerning §295.305(e)(1), two commenters requested clarification
on whether an individual without any credentials or experience is allowed
to take the state examination and become licensed.
Response: The department clarifies that an individual must have approved
prior training and experience before taking the state examination. The required
training, however, does not have to be from a department-accredited training
provider if the individual submits a complete application to the department
before January 1, 2005, and complies with the training requirements under §§295.311(c)(2),
295.312(c)(2)(B), or 295.315(c)(2)(B). No change was made as a result of these
comments.
Comment: Concerning §295.305(e)(1), two commenters requested that
the words "This paragraph does not apply to applicants who submit complete
applications to the department before January 1, 2005, as evidenced by a postmark
or shipping paperwork" be deleted from this section.
Response: The department disagrees. All individual applicants are required
to have appropriate training in order to obtain licenses. As described in
the previous response, §§295.311(c)(2), 295.312(c)(2)(B), and 295.315(c)(2)(B)
set forth alternative acceptable training requirements for individuals who
apply for licensure before January 1, 2005. No change was made as a result
of these comments.
Comment: Concerning §295.305(f), one commenter requested the department
to clarify if the state examination must be taken upon license renewal.
Response: The department clarifies that the examination requirements under §295.310
apply only to applicants for initial licenses. Section 295.305(f) refers to
a training course required under §295.305(e)(1), which deals only with
initial training courses; refresher training courses for licensees are addressed
in §295.305(e)(2). Similarly, §295.305(g)(1) and (3) distinguish
between initial and renewal applications regarding the examination requirement.
No change was made as a result of this comment.
Comment: Concerning §295.305(g)(2), two commenters believed five days
was too restrictive and suggested that it be changed to 30 days or 60 days
Response: The department agrees in part. Under §295.314(e) an individual
may work as a mold remediation worker without a department-issued registration
for up to 30 days after receiving training. The department included this provision
of interim registration because employers of remediation workers are directly
responsible for guaranteeing the training of their employees. To prevent abuse
of this provision, however, the department limited the period after training
during which workers are allowed to submit applications. In response to the
comment, the department has changed the section to allow ten calendar days.
Comment: Concerning §295.305(h)(2), one commenter requested "mold
training manager" be defined in the rules.
Response: The department disagrees. The department believes "mold training
manager" is discussed adequately in §295.318(c)(2)(A). No change was
made as a result of this comment.
Comment: Concerning §§295.305(h)(2) and (3), 295.312(d)(1), 295.315(d)(1),
and 295.318(d)(1), one commenter requested all credentials issued after January
1, 2005, be valid for two years.
Response: The department disagrees. As a part of the transition to mandatory
two-year license terms required under THSC, §12.0112, the department
is permitted to stagger the issuance and renewal of credentials. This staggering
is necessary for one year only, during 2005, to even out the renewal process
(i.e., so that the numbers of credentials requiring renewal in any given year
are roughly the same). As of January 1, 2006, all credentials will be issued
for two-year terms. No change was made as a result of this comment.
Comment: Concerning §295.305(j), one commenter proposed changing the
title of this subsection to "Licensed persons other than individuals."
Response: The department agrees and has changed the title to "Credentialed
persons other than individuals" to include a broader group than only licensees.
Comment: Concerning §295.306(a)(4), several commenters felt that the
availability and cost of insurance will be a significant issue for local governments,
including school districts and universities, who use in-house personnel to
handle mold projects, and requested that the department either provide such
coverage to local governments, as part of the fees collected for licenses
and notifications, or exempt local governments from such requirements.
Response: The department agrees and has changed §295.309(a) to provide
an exemption for governmental entities that are self-insured.
Comment: Concerning §295.306(b), one commenter requested that companies
be required to have a department-issued identification card at the worksite.
Response: The department disagrees. Identification cards are for the purpose
of identifying individuals on the worksite as licensed or registered for mold-related
work. The department does not believe a card for companies would serve a useful
purpose. No change was made as a result of this comment.
Comment: Concerning §295.306(c), one commenter requested the "Consumer
Mold Information Sheet" be deleted. Another commenter requested information
on how to obtain a copy of this document.
Response: The department disagrees regarding deletion of this paragraph,
and believes this document is an important provision to protect consumers'
interests. This document will be available by the effective date of these
rules from the department's web site at www.tdh.state.tx.us/beh/mold. A definition
of "Consumer Mold Information Sheet" was added in §295.302.
Comment: Concerning §295.307, one commenter requested the prohibition
of and/or a disclosure requirement to all involved parties when a license
holder offers compensation or other valuable incentives to another license
holder or authority having jurisdiction (i.e., a "no kick-back" clause).
Response: The department appreciates the concern expressed by the commenter.
Section 295.304 addresses this type of violation in subsection (b)(3), (4),
and (13), and the duty of credentialed individuals to report ethical violations
to the department is stated in §295.304(c). No change was made as a result
of these comments.
Comment: Concerning §295.307(a)(1), several commenters were concerned
that mold assessors could perform both mold assessment and mold analysis on
the same project and requested the language be changed to prevent this dual
activity.
Response: The department understands the commenter's concern; however,
TOC, §1958.001(6), defines mold assessment to include "sampling and analysis."
TOC, §1958.155, does not authorize the department to separate the various
duties of the mold assessment consultant. A consultant must have samples analyzed
by a licensed lab or be licensed as a lab himself. No change was made as a
result of this comment.
Comment: Concerning §295.307(a)(2), one commenter suggested replacing
"own an interest in" with the words "own more than a ten percent (10%) interest
in" for consistency with other provisions in the rules.
Response: The department disagrees. Section 295.307(a)(2) is a restatement
of TOC, §1958.155(b), which prohibits any ownership interest and does
not provide the department the authority to make this change. As required
in other sections, an ownership interest of greater than 10% must be reported
to the department. No change was made as a result of this comment.
Comment: Concerning §295.307(b), one commenter suggested replacing
"who is not an individual" with the phrase "who is a person other than an
individual," and other occurrences of "person" and "persons" with "individual"
and "individuals."
Response: The department disagrees. The language in question comes from
TOC, §1958.155(b). No change was made as a result of this comment.
Comment: Concerning §295.307(b), one commenter requested the words
"an applicant that is not an individual" in the first sentence be replaced
with "licensed persons other than individuals."
Response: The department disagrees. The phrase is appropriate because it
is more efficient to have applicants report this information at the time of
application rather than complete a second form after the license has been
issued. No change was made as a result of this comment.
Comment: Concerning §295.309(a) in general, some commenters thought
that "general liability" insurance was not adequate coverage and that other
types should be required. Some commenters wanted pollution/environmental insurance
and/or professional liability/errors & omissions (E&O) insurance and/or
products and completed operations insurance in coverage amounts ranging from
$250,000 to $1 million. Some thought that both assessors and remediators should
have several types of insurance; others thought that each licensing category
should have one type in addition to, or in some cases instead of, general
liability insurance. Two commenters requested the department conduct an inquiry
and/or consult with experts about the need for and cost of other types of
insurance. One commenter noted that a standard commercial general liability
(CGL) policy may exclude coverage for work related to mold under some circumstances.
Response: As a result of its inquiries, the department has decided not
to require, at this time, professional liability (E&O), pollution or completed
operations insurance. The primary factors in the decision not to require additional
insurance greater than that proposed are reports of limited availability for
those engaged in mold-related activities (unlike more established fields such
as asbestos abatement); an inability to verify cost of premiums because of
the number of variables involved, including the lack of claims history by
the industry and licensees; a general requirement for only some form of "liability
insurance" in TOC, §1958.104(5), with no particular type or amount of
insurance specified; and the lack of a consensus that CGL is inadequate, and
if so, what types of insurance, for which licensees and in what coverage amounts,
should be required.
In response to these comments, the department is, however, taking the following
actions. First, it is clarifying that a commercial general liability policy
for $1 million is the minimum required for all license categories (excluding
registered workers). Second, it strongly encourages those required to have
insurance to consider adding professional liability, pollution or completed
operations endorsements based on the nature of their work. Third, in the required
Consumer Mold Information Sheet (see §295.306(c)) the department will
encourage consumers to inquire about insurance as a factor in making hiring
decisions. Finally, the department remains open to revisiting, through a future
rulemaking, the issue of additional or different insurance as the discipline
and the insurance markets develop and there is a demonstrated need for other
than CGL insurance.
Comment: Concerning §295.309(a), one commenter wanted clarification
about the type of required "liability" insurance, another wanted the $1 million
requirement reduced to $250,000 and others wanted the department to require
additional insurance. One commenter said that CGL coverage was not needed
for assessors and that professional liability should be required instead.
Response: The department agrees and disagrees in part. It has added the
words "at a minimum" and "commercial" to clarify the insurance required. "Commercial
general liability" or CGL insurance is commonly available for those engaged
in mold-related activities. The policy amounts are not reduced because licensees
are likely to work on large residential and commercial projects requiring
greater coverage. CGL insurance has relevance to assessors as well as remediators,
both of whom could cause damage to persons or property in the course of their
duties.
Comment: Regarding §295.309(a), one commenter requested that this
section be amended to clarify which licensees need insurance.
Response: The department disagrees because §§295.311 - 295.317
already require that all license categories must have the insurance specified
in §295.309 except for registered workers (§295.314) who must work
for a company that has insurance. No change was made as a result of this comment.
Comment: Regarding §295.309(a), several commenters addressed the issue
of self-insurance by requesting that educational institutions and/or other
government entities be exempt from the insurance requirements. One commenter
also wanted a clarification of the waiver for self-insured companies and individuals.
The Texas Department of Insurance advised that it does not issue approvals
for those claiming to be self-insured and requested those references be deleted.
Response: The department agrees and has made the requested changes throughout §295.309(a)
- (d).
Comment: One commenter requested the department require that remediators
give homeowners an insurance disclosure statement advising the type and limits
of the remediator's insurance if the department did not require more than
CGL coverage.
Response: The department disagrees but reiterates that in the Consumer
Mold Information Sheet to be developed under §295.306, it will encourage
consumers to inquire about insurance in making hiring decisions. No change
was made as a result of this comment.
Comment: Concerning §295.309(b) and (d)(1), one commenter wanted advance
notice of cancellation to the department from the insurance company and the
licensee increased to 25 days.
Response: The department agrees and has changed the minimum notice from
an insurance company to 30 days and the minimum notice from the licensee to
20 days to allow the licensee ten days to contact the department after receiving
notice from the insurance company. In response to a staff comment, the rule
has been amended to require notice for cancellation "or material change for
any reason."
Comment: Concerning §295.309(d)(2), one commenter requested a clarification
and/or amendment of the maximum penalties that could be imposed under the
statute for working without proper insurance.
Response: The department agrees and has amended §295.331(d)(1) by
adding a new subparagraph (G) to address failure of a licensee to meet the
insurance requirements of §295.309. In addition, the department has authority
for license revocation, civil penalty and injunctive relief under §§295.330,
295.336, and 295.337 for all violations of the Act or rules.
Comment: Concerning §295.310, regarding the state licensing examination,
numerous commenters requested various changes including clarifying the required
passing score on the state examination, allowing exemptions and/or "grandfathering"
for certain individuals and allowing sufficient time to get licensed.
Response: The department has made some changes to this section in response
to the comments and for clarity. In §295.310(a)(1), the phrase "with
a score of at least 70% correct" was inserted after "the state examination."
In §295.310(a)(2), the words "department-approved training course" were
deleted and replaced with "training course approved under §295.319 of
this title (relating to Training: Approval of Training Courses and Instructors)
if the applicant has successfully completed the applicable training allowed
under §§295.311(c)(2), 295.312(c)(2), or 295.315(c)(2)." Additionally
in §295.310(a)(2), the department changed "state accredited training
course" to "training course approved under §295.319 of this title" for
consistency. Licensing is not required until January 1, 2005, thus providing
a grace period to obtain training and/or submit evidence of previous training
to the department, and to pass the state exam. See, for example, §295.312(e)
and §295.315(e).
Comment: Concerning §295.310, one commenter felt that accredited training
providers should be allowed to administer state licensing examinations to
students as part of approved training courses.
Response: The department disagrees. It is preferable to have the department
administer the state examinations because doing so safeguards the integrity
of the examination process. Allowing a training provider to administer a state
licensing examination would be a conflict of interest. It also could create
opportunities for fraud and abuse. No change was made as a result of this
comment.
Comment: Concerning §295.311 in general, one commenter expressed support,
while numerous commenters requested various changes to the section, including
changing the mold assessment technician license to a registration and eliminating
this section entirely.
Response: The department believes the category of mold assessment technician
is necessary and appropriate. Some changes were made, however, as discussed
in this preamble.
Comment: Concerning §295.311(b) and §295.312(b)(1) and (8), one
commenter suggested wording changes to replace "mold or suspected mold" and
"mold contamination" with "mold growth or suspected mold growth."
Response: The department disagrees. The definition of "mold" in TOC, §1958.001(5),
encompasses more than visible mold growth. No change was made as a result
of this comment.
Comment: Concerning §§295.311(c)(2), 295.312(c)(2)(B), and 295.315(c)(2)(B)
regarding licensing, prior to January 1, 2005, several commenters requested
these sections be modified to allow training taken either at any time or within
a period longer than two years to qualify for licensing.
Response: The department agrees. The phrase, "within two years prior to
the application date" was changed to "within four years of the application
date" in the requested sections. The department believes it is important to
accept only department-accredited training after January 1, 2005, to ensure
quality of training.
Comment: Concerning §§295.311(c)(2), 295.312(c)(2), and 295.315(c)(2),
two commenters recommended organizations listed under these paragraphs be
accredited by the Council on Engineering and Scientific Specialties Board
(CESB) and/or the National Commission on Certifying Agencies (NCCA).
Response: The department disagrees. The department believes such a requirement
would be excessive. No change was made as a result of these comments.
Comment: Concerning §§295.311(d), 295.312(d), 295.313(d), 295.314(d),
295.315(d), and 295.316(d), one commenter requested that licensing and registration
fees for school districts be reduced by 50% or waived entirely. Another commenter
requested that licensing fees in §§295.311(d), 295.312(d), and 295.313(d)
be reduced by at least 50% for all applicants.
Response: The department disagrees. The TOC, Chapter 1958, contains no
exemptions from fees for any entities. The department has structured the licensing
fees in amounts sufficient to recover the costs of administering the mold
program, as required in TOC, §1958.055, and Texas Health and Safety Code, §12.0111.
No change was made as a result of these comments.
Comment: Concerning §295.312(a), two commenters believe assessment
consultants doing business as sole proprietorships are not required to meet
the same insurance requirements as other assessment consultants and companies.
Response: The department disagrees. All individual assessment consultants
(including sole proprietors) are required to comply with the insurance requirements
under §295.309, as specified in §295.312(e)(1)(B), (2)(A), and (3)(B).
No change was made as a result of this comment.
Comment: Concerning §295.312, one commenter requested inclusion of
minimal quality assurance/quality control (QA/QC) protocols to be followed
by consultants.
Response: The department agrees. Minimum QA/QC protocols for consultants
are already in the rules at §295.321 and §295.324. No change was
made as a result of this comment.
Comment: Concerning §295.312(b), one commenter requested that §295.312(b)(1)
- (11) be deleted and replaced with reference to specific industry standards.
Response: The department disagrees. Permitted activities must be specified
to ensure compliance in a regulatory program. No change was made as a result
of this comment.
Comment: Concerning §295.312(b)(7), one commenter suggested that this
paragraph should include specifying clearance criteria, as required under
TOC, §1958.151(b)(4).
Response: The department agrees and this change was made.
Comment: Concerning §295.312(b)(7), one commenter felt that remediation
work plans should be prepared by an assessment consultant rather than by a
remediation contractor or that an assessment consultant should be required
to review a work plan before actual remediation activities begin.
Response: The department disagrees. The TOC, §1958.152(a), states
a license holder who intends to perform mold remediation shall prepare a work
plan and does not require review of the work plan by an assessment consultant.
No change was made as a result of this comment.
Comment: Concerning §295.312(b)(9), one commenter stated this paragraph
is unnecessary and should be deleted.
Response: The department disagrees. In accordance with TOC, §1958.154(b),
the mold assessment consultant is licensed to evaluate mold remediation projects
and prepare certificates of remediation. No change was made as a result of
this comment.
Comment: Concerning §295.312(b)(9), one commenter requested the word
"remediated" be changed to a descriptor such as "mitigated," "eliminated,"
or "corrected."
Response: The department disagrees. The term "remediated" is used in TOC, §1958.154(a).
No change was made as a result of this comment.
Comment: Concerning §295.312(c)(1), numerous commenters requested
more stringent qualifications than those proposed for a mold assessment consultant
license, and most believed that only certain degreed professionals were qualified
to hold this license. Several commenters requested a permanent "grandfathering"
allowance for persons with advanced degrees and/or professional certifications.
Response: The department disagrees. The department reviewed the paragraph
and believes the qualifications for mold assessment consultants are appropriate
and consistent with the statute. No change was made as a result of these comments.
Comment: Concerning §295.312(c)(1)(A) and (B), one commenter recommended
the words "or in the field in which he or she obtained his or her degree"
be added after the words "allied field."
Response: The department disagrees. Experience in an "allied field" as
defined in §295.302(3), is required because experience in the field of
an approved degree (such as science or engineering) is not necessarily directly
relevant to mold assessment and remediation. No change was made as a result
of this comment.
Comment: Concerning §295.312(c)(1)(D), one commenter recommended inserting
the words "such field or in" before the words "an allied field."
Response: The department disagrees. Experience in an "allied field," as
defined in §295.302(3), is required because mold assessment and remediation
experience is not required to obtain or maintain certification in one of the
listed fields. No change was made as a result of this comment.
Comment: Concerning §295.312(c)(1)(D) and §295.315(c)(1)(D),
one commenter requested clarification about whether the one year of required
experience was included in, or in addition to, the five years of experience
required to become a certified industrial hygienist.
Response: The department clarifies that an additional year of experience
is not required if the applicant obtained such experience while pursuing one
of the listed certifications. The department has changed the first "and" to
"with" to reflect this. The department also inserted "either" between "experience"
and "in" in §295.315(c)(1)(D) to further clarify the experience requirements
for the mold remediation contractor license.
Comment: Concerning §295.312(c)(2)(A), one commenter requested an
initial mold assessment technician course be added, based on the idea that
the consultant training should build on the technician training.
Response: The department disagrees. Although there is significant overlap
with the training of the assessment technician, the department believes the
training for the assessment consultant should be a separate course, because
the amount of time needed for the various subject areas will differ. No change
was made as a result of this comment.
Comment: Concerning §295.312(c)(2)(B), the same commenter also felt
that, contrary to the rule, all of the required training should be obtained
from the same organization.
Response: The department disagrees. The department believes such a requirement
would be overly restrictive. No change was made as a result of this comment.
Comment: Concerning §295.312(f)(6), one commenter suggested that the
words "and management plan" be inserted after the word "protocol."
Response: The department disagrees. The TOC, §1958.151(a), requires
an assessor to provide protocols (work analysis) to a client but does not
require providing a mold management plan. No change was made as a result of
this comment.
Comment: Concerning §295.313(b)(4) and (e)(2), one commenter suggested
changing the words "person" and "persons" to "individual" and "individuals."
Response: The department disagrees. The TOC, Chapter 1958, makes reference
to "persons" who are not individuals. No change was made as a result of this
comment.
Comment: Concerning §295.313(f)(9), one commenter requested the certificate
of mold remediation be issued by a mold assessment consultant to both the
remediation contractor and the owner rather than having the remediator issue
the certificate to the owner.
Response: The department clarifies that under §295.313(f)(9), an assessment
company is required to provide a passed clearance report, which is more detailed
than the certificate of mold remediation, to the client. The certificate of
mold remediation specified by the Texas Department of Insurance in 28 TAC §21.1007(e)(2)
includes a statement to be signed by the assessment consultant certifying
that the mold contamination identified for the project has been remediated
as specified in the mold management plan or remediation protocol. The TOC, §1958.154(a),
requires the remediation license holder, not the assessment license holder,
to provide the certificate of mold remediation to the property owner. No change
was made as a result of this comment.
Comment: Concerning §295.314, several commenters requested this section
be deleted.
Response: The department disagrees. The TOC, §1958.103, allows the
department to require registration of employees supervised by license holders.
The department believes workers should be registered to ensure they obtain
proper training both for their protection and that of the public. No change
was made as a result of these comments.
Comment: Concerning §295.314(b)(1), two commenters requested adding
"educational entity" to this paragraph.
Response: The department disagrees. An "educational entity" would have
to be licensed under §295.316 as a company to employ workers. No change
was made as a result of these comments.
Comment: Concerning §295.314(b)(2), two commenters requested only
accredited training providers be allowed to train remediation workers.
Response: The department disagrees. The department thinks that contractors/companies
can adequately provide the required training for the registered worker. No
changes were made as a result of these comments.
Comment: Concerning §295.314(d), one commenter requested "five working
days" be changed to "ten working days."
Response: The department agrees in part with the commenter. To allow enough
time for receipt, processing, and return of materials during the 30-day interim
registration period, "five working days" was changed to "ten calendar days"
in this subsection and in §295.305(g)(2).
Comment: Concerning §295.314(e), one commenter requested replacing
"Temporary" with "Interim."
Response: The department agrees and made the recommended change.
Comment: Concerning §295.314(g)(2), one commenter recommended adding
"unless the affected area is less than 25 contiguous square feet" after the
word "contractor."
Response: The department agrees with the commenter's concept and replaced
the words "as a contractor" with "requiring licensing as a remediation contractor
under this subchapter."
Comment: Concerning §295.315(c), one commenter requested more stringent
qualifications be required for this license.
Response: The department disagrees. The department reviewed the qualifications
and feels they are appropriate and consistent with the statute. No change
was made as a result of this comment.
Comment: Concerning §295.315(c)(1)(A), (B) and (D), three commenters
recommended the words "in the field in which he or she obtained his or her
degree," be added before the words "an allied field."
Response: The department disagrees. Experience in an "allied field," as
defined in §295.302(3), is required because experience in the field of
an approved degree (such as science or engineering) is not necessarily directly
relevant to mold assessment and remediation. No change was made as a result
of these comments.
Comment: Concerning §295.315(c)(1)(B), one commenter stated it is
not necessary to require a minimum grade.
Response: The department disagrees. A minimum grade is necessary to ensure
the competence of licensees. No change was made as a result of this comment.
Comment: Concerning §295.312(c)(1)(D), one commenter recommended inserting
the words "such field or in" before the words "an allied field."
Response: The department disagrees. Experience in an "allied field," as
defined in §295.302(3), is required because experience relevant to mold
assessment and remediation is not required either to obtain or to maintain
certification in one of the listed fields. No change was made as a result
of this comment.
Comment: Concerning §295.315(d)(1), one commenter suggested that this
paragraph be deleted.
Response: The department disagrees. The THSC, §12.0112, mandates that
fees be collected on a two-year basis after January 1, 2005. No change was
made as a result of this comment.
Comment: Concerning §295.315(f)(8) and §295.316(e)(4), one commenter
stated these paragraphs appear to conflict with proposed §295.312(b)(7),
which requires an assessment consultant to specify personal protective equipment
(PPE) in a mold remediation protocol.
Response: The department disagrees. Under §295.312(b)(6), an assessment
consultant specifies the PPE for the project in the mold remediation protocol.
The remediation contractor or company, however, is responsible under §295.315(f)(8)
or §295.316(e)(4), respectively, for ensuring that its employees are
provided with, fit tested for, and trained in the correct use of the specified
personal protection equipment. No change was made as a result of this comment.
Comment: Concerning §295.315(f)(11), one commenter felt a remediation
contractor should not issue a certificate of mold remediation. The commenter
suggested the department issue the certificate, or alternatively, the contractor
should issue the certificate to the assessment consultant who signed it, who
would then give it to the property owner.
Response: The department disagrees. The TOC, §1958.154(a), requires
that the remediation license holder provide a certificate of mold remediation
to a property owner. No change was made as a result of this comment.
Comment: Concerning §295.316(b)(4) and (d)(2), one commenter requested
the words "a person" be changed to "an individual."
Response: The department disagrees. It is the intent of the department
that the definition of "person" in §295.302 applies to these paragraphs.
No change was made as a result of this comment.
Comment: Concerning §295.316(e)(6), one commenter felt that remediation
work plans should be prepared by an assessment consultant rather than by a
remediation contractor.
Response: The department disagrees. The TOC, §1958.152(a), states
that a license holder who intends to perform mold remediation shall prepare
a work plan. No change was made as a result of this comment.
Comment: Concerning §295.317 in general, there was support for and
opposition to requiring mold analysis laboratories to be licensed and for
the qualifications criteria under §295.317(c).
Response: The department disagrees with those who oppose the section as
proposed. The TOC, §1958.101(a)(1), states that a person may not engage
in mold assessment, including analysis of a mold sample, unless the person
holds a mold assessment license. No change was made as a result of these comments.
Comment: Concerning §295.317, one commenter requested an exemption
from licensing for state university laboratories.
Response: The department disagrees. Licensing requirements as proposed
ensure that all laboratories meet a minimum standard. No change was made as
a result of this comment.
Comment: Concerning §295.317(a), one commenter noted that it appears
that an "individual" does not have to be licensed under this section.
Response: The department clarifies that §§295.311(f)(3), 295.312(f)(7),
and 295.313(f)(6) require assessors to use licensed laboratories to provide
analysis of mold samples and has deleted "other than an individual" from §295.317(a).
Comment: Concerning §295.317(c), one commenter suggested that the
qualifications for a laboratory should include participation in the AIHA Environmental
Microbiology Proficiency Analytical Testing (EMPAT) program.
Response: The department disagrees. The AIHA's EMPAT program does not include
a QA/QC requirement as does the AIHA's Environmental Microbiology Laboratory
Accreditation Program (EMLAP) as specified in §295.317(c)(1)(A). No change
was made as a result of this comment.
Comment: Concerning §295.317(c), one commenter felt that labs should
not have to meet the EMPAT minimum proficiency score.
Response: The department disagrees. This rule requires the necessary minimum
training and QA/QC program. No change was made as a result of this comment.
Comment: Concerning §295.317(c)(1), two commenters requested a grace
period of two years for labs to obtain accreditation before they are required
to be licensed.
Response: The department disagrees. Section 295.317(a) provides a grace
period until January 1, 2005, to obtain licensure. It is important that licensed
laboratories be available as soon as possible since the licensed mold assessment
consultants must use a licensed laboratory for their sample analyses. No change
was made as a result of this comment.
Comment: Concerning §295.317(c)(1), several commenters requested additional
accreditation or certification programs be added to the qualifications of
laboratories, including the Pan American Aerobiology Certification (PAAC)
program and the McCrone Research Institute (McRI).
Response: The department agrees and has added accreditation of all individuals
who will analyze mold samples by the PAAC or a program deemed equivalent by
the department, if the laboratory will analyze only non-culturable mold samples,
as new §295.317(c)(1)(C). The department also has added training by the
McRI or a program deemed equivalent by the department, possession of at least
a bachelor's degree in microbiology or biology, and three years of experience
as a mold microscopist for all individuals who will analyze the mold samples,
as new §295.317(c)(1)(D).
Comment: Concerning §295.317(c)(1), two commenters requested the department
allow a dual certification for Mold Assessment Laboratory licensing:
(1) License for Viable/Non-Viable sample analysis of Air/Bulk samples,
with accreditation by AIHA EMLAP for viable fungi identification; and
(2) License for Non-Viable sample analysis of Air/Bulk samples, with certification
of analyst by Pan American Aerobiology Certification Board, under the direction
of the Pan American Aerobiology Association.
Response: The department agrees in part. The Pan American Aerobiology Certification
(PAAC) program for mold spore analysts has been added to the qualification
for performing only non-viable sampling. However, the department feels laboratories
with the AIHA's EMPAT accreditation would have sufficient training to perform
spore analyses without additional certification or accreditation.
Comment: Concerning §295.317(c)(1), one commenter noted that only
about five labs will meet the requirements as proposed.
Response: The department disagrees. Section 295.317(c)(1)(B) allows for
the department to approve other accreditation or certification programs and
it has added Pan American Aerobiology Certification program for mold spore
analysts. No change was made as a result of this comment.
Comment: Concerning §295.317(c)(1), one commenter stated that EMLAP
and other accreditations are not applicable because most mold analysis labs
are doing work covered in the definition of "mold analysis" in §295.302,
not just "culturing" mold.
Response: The department agrees in part with the commenter and has added
alternative qualifications for licensing as a laboratory analyzing only non-culturable
samples, including accreditation of individual analysts by the Pan-American
Aerobiology Certification Board. Although EMLAP focuses on culturable mold,
the training and other requirements for EMLAP accreditation will also qualify
the laboratory for analyzing non-culturable samples under §295.317(c)(1).
Comment: Concerning §295.317(c)(1), one commenter requested that the
department should require a written and documented QA/QC program consistent
with national standards (like ISO/IEC 17025:1999).
Response: The department disagrees. This change would require the department
to establish its own monitoring and compliance program to determine compliance
with the national standard, which would add additional and unnecessary cost
to the licensees. No change was made as a result of this comment.
Comment: Concerning §295.317(c)(1)(B), one commenter suggested that
this subsection should read, "accredited or certified by a program for the
preparation and analysis of bio-aerosols."
Response: The department agrees in part. This language was added to this
subparagraph, except the word "mold" replaced "bio-aerosols" to be more specific
and accurate.
Comment: Concerning §295.317(c)(1)(B), one commenter felt that the
requirements under subparagraph (A) are the industry standard and that subparagraph
(B) should be deleted.
Response: The department disagrees. Other accreditations are appropriate
for laboratories that do not perform analysis of culturable mold samples and
for which EMLAP accreditation is not relevant. However, the department has
specified acceptable alternatives to EMLAP accreditation for clarity.
Comment: Concerning §295.317(c)(1)(B), two commenters recommended
that programs recognized by the National Cooperation on Laboratory Accreditation
(NACLA) be "deemed equivalent by the department."
Response: The department disagrees. Accreditation by the NACLA does not
require proficiency that is specific to some types of mold analyses that the
department thinks is necessary. No change was made as a result of this comment.
Comment: Concerning §295.317(c)(2), several commenters requested that
work experience be allowed as a substitute for an advanced degree.
Response: The department agrees. The language of this paragraph was changed
to add a work experience option.
Comment: Concerning §295.317(c)(2), one commenter noted that an advanced
academic degree in any field should be allowed.
Response: The department clarifies that the advanced academic degree required
under §295.317(c)(2) is not limited to the fields of mycology and microbiology.
No change was made as a result of this comment.
Comment: Concerning §295.317(e)(1), one commenter felt that "person"
should be changed to "individual."
Response: The department disagrees. The TOC, §1958.155(c), indicates
that "person" and "individual" are not equivalent. No change was made as a
result of this comment.
Comment: Concerning §295.317(e)(2), one commenter stated that this
sentence should read: "evidence of laboratory accreditation and the most recently
available results of proficiency analytical testing in accordance with subsection
(c)(1)(A)."
Response: The department agrees and changed the wording to "require evidence
that the laboratory meets one of the qualification requirements under §295.317(c)(1)."
Comment: Concerning §295.317(f)(6), one commenter wanted language
clarifying that a mold assessment company with an in-house mold laboratory
is not required to have a separate general liability insurance policy for
its analysis activities.
Response: The department clarifies that a company is not required to maintain
separate insurance policies for different assessment activities under §§295.309,
295.313, or 295.317. No change was made as a result of this comment.
Comment: Concerning §295.318(b)(2)(A), one commenter requested the
words "area of licensure" replace the word "discipline."
Response: The department agrees. The word "discipline" throughout the rules
has been changed to "area of licensure," "license," or the appropriate equivalent.
Comment: Concerning §295.318(b)(2)(A), two commenters requested that
sections in the training courses for assessors and remediators that are similar
be combined to allow schools and government agencies a cost-effective means
of licensing their employees.
Response: The department disagrees. The department reviewed the training
requirements for each license category and believes that completely independent
courses, as proposed, are appropriate to ensure proper training for licensees.
Although topics for the various licenses appear to be the same, the amount
of time and specific approach to cover the "same" topic will vary with each
particular license. No change was made as a result of these comments.
Comment: Concerning §295.318(b)(3), two commenters requested this
paragraph be deleted because it puts an unnecessary burden on the business.
Response: The department disagrees. Advance notice of course scheduling
and cancellation is necessary so the department can schedule compliance audits
of training courses. No change was made as a result of this comment.
Comment: Concerning §295.318(b)(4), one commenter objected to limiting
training courses to eight hours a day because meeting the companies' schedule
should be permitted to save time and money for the client.
Response: The department disagrees. The department believes the requirements
as proposed ensure quality training for licensees. No change was made as a
result of this comment.
Comment: Concerning §295.318(b)(7), one commenter requested changing
the total number of students allowed in a class to a multiple of 15.
Response: The department disagrees. The student-to-teacher ratio was determined
by the department to be appropriate based on discussions with professional
instructors and trainers in similar training and educational settings. No
change was made as a result of this comment.
Comment: Concerning §295.318(d)(1), one commenter questioned the need
for both one-year and two-year accreditations and requested this paragraph
be deleted.
Response: The department disagrees. The THSC, §12.0112, requires the
two-year licenses to be issued as of January 1, 2005, so both fees are listed.
No change was made as a result of this comment.
Comment: Concerning §295.318(d)(1) and (2), one commenter requested
reducing the fees by 50%.
Response: The department disagrees. Both TOC, §1958.055(a), and THSC, §12.0111(b),
requires the license fees to be sufficient to cover the cost of the program.
The department has established the fee rates to meet this requirement. No
change was made as a result of this comment.
Comment: Concerning §295.318(f)(7)(B) and (C), one commenter suggested
fingerprints of students be taken rather than photographs.
Response: The department disagrees. The department believes that photographs
can help in verifying on-site identification of licensees and registrants.
No change was made as a result of this comment.
Comment: Concerning §295.318(f)(7)(C), two commenters recommended
this subparagraph be deleted as a superfluous burden on training providers.
Response: The department disagrees. The department believes the requirement
for a group photograph is effective to prevent licensing or training fraud.
No change was made as a result of these comments.
Comment: Concerning §295.318(f)(8) and §295.319(c)(8), one commenter
believed the required information cannot fit onto the limited space of a certificate.
Response: The department disagrees. The department reviewed the course
certificate requirements in §295.318(f)(8) and §295.319(c)(8) and
determined all the required information is necessary. The department did not
specify a size for the certificate; thus the provider can make it as large
as necessary. No change was made as a result of this comment.
Comment: Concerning §295.319, one commenter felt that significant
revisions should be made to this section and §295.320(b) - (d). The commenter
felt that static training requirements should not be included in the rules
due to the evolving nature of the industry.
Response: The department disagrees. It is necessary for the department
to require all training providers to cover the same topics in accredited training
courses to ensure uniformity. The rules as proposed do not prohibit teaching
new facts or processes. No change was made as a result of this comment.
Comment: Concerning §295.319, one commenter expressed concern that
the rules do not include criteria for approving or rejecting applications.
Response: The department disagrees. Section 295.319(c) addresses authorization
and conditions pertaining to approval of training courses. No change was made
as a result of this comment.
Comment: Concerning §295.319, one commenter believed that the requirements
of this section are excessive and requested that the department reduce them.
Response: The department disagrees. The department reviewed the section
and believes the requirements as proposed are necessary and appropriate to
ensure equitable and quality training for licensees. No changes were made
as a result of this comment.
Comment: Concerning §295.319(c)(3) and (7), one commenter felt that
these two paragraphs are a duplication of §295.319(e).
Response: The department agrees in part. Section 295.319(c) describes qualifications
for approval of training courses, while §295.319(e) relates to approval
of individual instructors. The department has, however, removed the requirement
concerning instructor qualifications from §295.319(c)(3).
Comment: Concerning §295.319(c)(3), (4) and (6), one commenter recommended
that these paragraphs be deleted to simplify the information that must be
provided in an application.
Response: The department disagrees. The department believes this information
is needed to ensure the course meets the requirements of content and format.
No change was made as a result of this comment.
Comment: Concerning §295.319(c)(5), one commenter recommended the
phrase "(written documentation of the proportion of test questions devoted
to each major topic in the course)" be deleted.
Response: The department disagrees. This language is intended for clarification
of the term "blueprint." No change was made as a result of this comment.
Comment: Concerning §295.319(d), one commenter suggested the word
"significant" be inserted after the words "approval for."
Response: The department disagrees. The department believes such an addition
would be inappropriate, as it would create many questions as to what changes
are considered significant or insignificant. No change was made as a result
of this comment.
Comment: Concerning §295.319(e)(1)(C), one commenter requested this
paragraph include the requirement for hands-on experience.
Response: The department agrees and added the language "with one year's
hands-on experience in mold related activities" to §295.319(e)(1)(C).
Comment: Concerning §295.319(e)(1)(A) - (D), one commenter requested
that class instructors be required to have had some training in mycology.
Response: The department disagrees. Instructors who meet any of the requirements
in §295.319(e)(1)(A) - (D) will be able to comprehend and teach the information
related to mycology that is required in the various courses. No change was
made as a result of this comment.
Comment: Concerning §295.319(e)(3), one commenter suggested changing
"Professional references" to "References" and requiring "at least one professional
reference" rather than "three professional references." One commenter requested
the paragraph be deleted.
Response: The department disagrees. The department believes that three
professional references are necessary and appropriate to ensure quality instructors
for the state-accredited training courses. No change was made as a result
of these comments.
Comment: Concerning §295.320, one commenter remarked that while training
requirements concerning mold assessment and remediation are quite detailed,
this section is ambiguous concerning the amount and content of training required
on the health effects of mold.
Response: The department disagrees. The department appreciates the commenter's
concerns and believes potential health effects are important and need to be
covered. However, the training requirements in §295.320 provide the basic
content of the courses, not specific time schedules and content. Section 295.319(c)(3)
requires the department's approval of the trainer's course curriculum, including
the specific topics taught and the amount of time allotted for each course
before they can be used. No change was made as a result of this comment.
Comment: Concerning §295.320, one commenter wanted training providers
to submit their proposed course content to the department for approval rather
than having this section describe in detail the required content of each course.
Otherwise, the commenter felt, static requirements would be written into rules
that would be difficult to change as the industry and science develop.
Response: The department disagrees. Section 295.320 provides broad topic
requirements to ensure that students receive substantially equivalent training
regardless of the training provider they select as well as to aid training
providers in creating curricula that address all areas of this subchapter.
The department does allow training providers some discretion in formulating
the content of each course, as long as the over-all requirements of this subchapter
are met. No change was made as a result of this comment.
Comment: Concerning §295.320, one commenter felt that applicants who
have a college degree and experience in a particular licensing area should
not have to complete the initial training but only refresher training.
Response: The department disagrees. A licensee under this subchapter needs
current knowledge of both the technical aspects and the requirements under
this subchapter regarding the practice of mold assessment or remediation.
To facilitate licensing of current practitioners, before January 1, 2005,
an applicant may substitute training that meets the applicable requirements
under §§295.311(c)(2), 295.312(c)(2)(B), or 295.315(c)(2)(B) for
an initial training course from a department-accredited training provider.
No change was made as a result of this comment.
Comment: Concerning §295.320, one commenter proposed that assessment
technicians be registered rather than licensed and that assessment consultants
and companies be permitted to train technicians.
Response: The department disagrees. Because assessment technicians are
allowed under §295.311 to perform certain duties as sole practitioners,
licensing is appropriate. Section 295.311 has been changed to clarify this.
Comment: Concerning §295.320, one commenter suggested adding a new
initial remediation supervisor course. The commenter also recommended making
successful completion of the supervisor course a prerequisite for taking the
remediation contractor course described under §295.320(e) and reducing
the number of hours for the remediation contractor course from 40 to eight.
Response: The department disagrees. Because the mold remediation contractor
will supervise mold remediation workers as provided under §295.315(b),
a separate remediation supervisor license is not necessary. As a result, the
course hours should not be reduced. No change was made as a result of this
comment.
Comment: Concerning §295.320(b) and (c), two commenters requested
the majority of training hours for mold assessment courses should focus on
building science, moisture dynamics, and identification of moisture problems,
including use of a moisture meter.
Response: The department disagrees. Although the department concurs that
training in these areas is important, it should not be required as the majority
of training hours, because there are many other equally important areas. No
change was made as a result of these comments.
Comment: Concerning §295.320(b) - (e), several commenters felt that
the department should increase the minimum number of training hours required
to obtain the listed credentials.
Response: The department disagrees. The department reviewed the training
requirements for these sections and believes the hours proposed are sufficient
to provide the necessary training required for these credentials. No change
was made as a result of these comments.
Comment: Concerning §295.320(b), one commenter stated that the required
subject matter would be difficult for an individual with only a high school
diploma or GED certificate to understand.
Response: The department disagrees. The subject matter may be difficult
for some students, regardless of academic background. However, those that
complete the course and pass the required exams should be able to perform
the duties within the scope of their license. No change was made as a result
of this comment.
Comment: Concerning §295.320(b), one commenter recommended reducing
the number of test questions from 100 to 50 to be consistent with test requirements
for 24-hour courses in the EPA asbestos and lead training curricula.
Response: The department agrees and made the requested change in §295.320(b).
Comment: Concerning §295.320(b)(2), (d)(3)(B), and (e)(2), one commenter
suggested that two department representatives should review the sections of
training course curricula covering health effects in consultation with two
members of the Texas Medical Association.
Response: The department agrees in part with the commenter. Because the
department has no authority under TOC, Chapter 1958, to compel the Texas Medical
Association to select any of its members for such a task, the department instead
has modified these paragraphs to indicate that training shall include potential
health effects, in accordance with a training protocol developed in consultation
with state professional associations, including at least one representing
physicians.
Comment: Concerning §295.320(b)(3), (c)(1), and (d)(3)(C), two commenters
felt that the department should not require specific training that does not
meet the standards of the federal Occupational Safety and Health Administration
(OSHA) relating to training in respiratory protection.
Response: The department disagrees. The training described in §295.320
is intended to instruct students on the requirements under this subchapter
concerning licensing and work practices for mold assessment and remediation
in Texas. The training is not intended to cover all areas of practice in or
substitute for training required by OSHA. It will, however, introduce students
to areas for which OSHA has training requirements. No change was made as a
result of this comment.
Comment: Concerning §295.320(c), one commenter suggested making successful
completion of the assessment technician course described in §295.320(b)
a prerequisite and reducing the number of hours for the assessment consultant
course from 40 to 16 and the number of test questions from 100 to 50.
Response: The department disagrees. Although there is significant overlap
with the training of the assessment technician, the department believes the
training for the assessment consultant should be a separate course, because
the amount of time needed for the various subject areas will differ. As a
result, the number of test questions will remain 100. No change was made as
a result of this comment.
Comment: Concerning §295.320(c), one commenter recommended that an
assessment consultant should be a graduate professional engineer, a licensed
architect, or a certified industrial hygienist.
Response: The department disagrees. Not having these specific certifications
does not mean an inability to perform adequately. Assessment consultants are
required to have education and experience relevant to mold assessment and
to pass a course and a state examination that will demonstrate their ability
to perform their duties. No change was made as a result of this comment.
Comment: Concerning §295.320(c)(2) and (e)(3), one commenter wanted
clarification of which aspects of medical surveillance programs involve the
practice of medicine with emphasis on the importance of involving competent
medical professionals.
Response: The department agrees and has modified these paragraphs to clarify
that training must cover the requirements concerning components of and development
of each listed plan or program.
Comment: Concerning §295.320(c)(10), one commenter suggested adding,
"writing mold remediation work plans" to this paragraph.
Response: The department disagrees. The TOC, §1958.152(a), states
that a license holder who intends to perform mold remediation shall prepare
a work plan. No change was made as a result of this comment.
Comment: Concerning §295.320(d) and (g), one commenter suggested requiring
a 50-question test for successful course completion, because the commenter
felt that workers will be exposed to hazardous and life-threatening conditions
associated with the construction industry.
Response: The department disagrees. The department believes the worker
training requirements of §295.320(d)(3) and the requirement in §295.314(g)
that the worker may only perform mold remediation under the supervision of
a licensed mold remediation contractor are adequate protection without requiring
a course test. No change was made as a result of this comment.
Comment: Concerning §295.320(d), several commenters requested only
accredited training providers be allowed to provide worker training. Two commenters
felt that allowing remediators to train their workers is a conflict of interest.
One of these commenters also stated that it is not in the best interest of
the workers.
Response: The department disagrees. Workers can be provided adequate training
by licensed remediation contractors or companies. No change was made as a
result of these comments.
Comment: Concerning §295.320(d), one commenter recommended that the
department require training providers and the remediation contractor or company
to adhere to the American National Standards Institute/American Society of
Safety Engineers (ANSI/ASSE) standard Z490.1-2001 (Criteria for Accepted Practices
in Safety, Health, and Environmental Training) in addition to other requirements.
The commenter also requested that a statement should appear on the training
certificate regarding adherence to this ANSI/ASSE standard.
Response: The department disagrees. The ANSI/ASSE standard is voluntary,
and training providers may adopt it if they wish. In addition, it is copyrighted
material that is not freely available to the public. No change was made as
a result of this comment.
Comment: Concerning §295.320(d)(1), one commenter remarked that it
is unfair for the department to require training providers to meet an extensive,
and potentially costly, set of qualifications, while remediation contractors
and companies that train their own workers are exempt from those requirements.
Response: The department disagrees. The more stringent requirements for
training providers (such as notification to the department) enable the department
to ensure the quality of training by, for example, auditing courses. In contrast,
remediation contractors and companies must notify the department of mold remediation
projects they perform, and the department will be able to evaluate the quality
of training that they provide to workers during compliance inspections of
the projects. No change was made as a result of this comment.
Comment: Concerning §295.320(d)(3)(A) and (B), one commenter felt
a person with no training in mycology is unqualified to teach mycology.
Response: The department disagrees that the trainer will have "no training"
in the topic. Extensive formal training in mycology is not a prerequisite
for presenting information appropriate for this level of registration. No
change was made as a result of this comment.
Comment: Concerning §295.320(d)(4) - (6), one commenter believed these
paragraphs should be moved or deleted.
Response: The department disagrees. Section 295.320(d)(4) - (6) are necessary
to specify recordkeeping and other requirements for persons who are not accredited
training providers but train their employees. No change was made as a result
of this comment.
Comment: Concerning §295.320(d)(4)(B), two commenters requested the
group photo requirement be deleted.
Response: The department disagrees. Because the department will not conduct
on-site audits of remediation worker classes, requiring a group photograph
promotes compliance with the worker training requirements. No change was made
as a result of this comment.
Comment: Concerning §295.320(e)(9), one commenter felt that remediation
work plans should be prepared by an assessment consultant rather than by a
remediation contractor and that training curricula should reflect this.
Response: The department disagrees. The TOC, §1958.152(a), states
that a license holder who intends to perform mold remediation shall prepare
a work plan. No change was made as a result of this comment.
Comment: Concerning §295.320(f), one commenter recommended that the
department allow continuing education, professional development courses, and
other training to substitute for an eight-hour refresher course.
Response: The department disagrees. One of the purposes of refresher training,
as specified in §295.320(f), is to review state regulations related to
mold assessment and remediation, components that are not necessarily included
in continuing-education or professional development courses. The department
believes that eight hours is needed to provide adequate refresher training
for licensees. No change was made as a result of this comment.
Comment: Concerning §295.320(f), one commenter felt that four hours
of refresher training for a remediation worker is not logical when the initial
training is four hours. The commenter suggested that the employer be responsible
for this training, cover it throughout the year as part of a safety program,
and submit a statement that the workers have received appropriate training.
Response: The department disagrees. The department believes that four hours
is needed to provide adequate refresher training for remediation workers,
who must review state regulations related to mold remediation. In addition,
piecemeal refresher training would not enable registrants to meet the application
timeline in §295.314(d). No change was made as a result of this comment.
Comment: Concerning §295.320(g), one commenter felt that requiring
a state examination under §295.310 is unnecessary, because training providers
have to use training course tests provided or approved by the department.
Response: The department disagrees. A course test allows training providers
to evaluate the immediate effectiveness of their training and the short-term
mastery of that material by a student, whereas a state examination provides
a uniform statewide standard by which to measure an applicant's knowledge
independently of where (s)he received training. No change was made as a result
of this comment.
Comment: Concerning §§295.321 - 295.324, several commenters suggested
additional or alternative work practices or clearance criteria. Other commenters
proposed that numerical values and specific assessment and remediation techniques
be removed from the rules. One of these commenters recommended that such techniques
be published separately as guidelines, while the others requested that the
department reference industry standards in the rules.
Response: The department agrees in part with the commenters and has revised
these sections to allow assessment consultants to use more professional judgment
in specifying techniques. The department believes that its rules more precisely
meet the requirements of HB 329 than broader industry standards.
Comment: Concerning §295.321, one commenter recommended that the department
specify required PPE for those performing initial mold assessments.
Response: The department will defer to the professional judgment of assessors
to determine if PPE is necessary during an assessment and, if it is, to supply
the PPE and ensure that employees are trained to use it properly. This responsibility,
which was already present in §295.313(f)(4), has been added as new §295.312(f)(5)
and §295.321(c).
Comment: Concerning §295.321(c), one commenter requested that the
department require an assessment consultant to specify the analytical methods
and tools appropriate for the project at the beginning of the project and
to use only these methods and tools for the duration of the project.
Response: The department understands the commenter's concern for consistent
methods of sampling and analysis throughout a project. However, certain circumstances,
such as unexpected discovery of additional mold contamination, might dictate
the use of other analytical methods. No change was made as a result of this
comment.
Comment: Concerning §295.321(c)(5), two commenters asked that the
department delete this requirement.
Response: The department disagrees. The definition of "mold assessment"
in TOC, §1958.001, includes "analysis of a mold sample," and TOC, §1958.101(a),
states that a person may not engage in mold assessment unless the person holds
a mold assessment license. It is therefore required that a lab be licensed
and that an assessment consultant or technician use only a licensed laboratory
for "mold analysis." No change was made as a result of this comment.
Comment: Concerning §295.321(d), one commenter said that a written
mold remediation protocol is not necessary for every remediation project and
should not be required in all situations.
Response: The department disagrees. The TOC, §1958.151(a), requires
an assessment license holder (consultant) to prepare a work analysis (protocol)
and provide it to the client before the mold remediation begins. No change
was made as a result of this comment.
Comment: Concerning §295.321(d), one commenter felt that persons who
prepare mold remediation protocols for commercial and institutional projects
must be Texas licensed architects or Texas registered professional engineers.
Response: The department disagrees. Many mold remediation protocols will
not include specifications that constitute the practice of architecture as
defined under TOC, Chapter 1051, or the practice of engineering as defined
under TOC, Chapter 1001. Licensees should ensure, however, that they are not
engaging in activities for which they are not appropriately credentialed.
No change was made as a result of this comment.
Comment: Concerning §295.321(d), one commenter felt that the development
of mold remediation protocols requires higher qualifications than other assessment
duties and that it should be limited to a new license category for "mold remediation
planners."
Response: The department disagrees. Under §295.312(c) and (e), applicants
for licensure must provide proof of training, knowledge, and experience in
mold assessment sufficient to allow the development of protocols. No change
was made as a result of this comment.
Comment: Concerning §295.321(d), two commenters requested that the
mold remediation protocol specify the proposed personal protective equipment,
including respirators.
Response: The department agrees with the commenters and has made the requested
change.
Comment: Concerning §295.321(d)(2), one commenter said that the quantity
of materials to be removed to remediate the mold is a rough guess at best
and felt that licensees will usually have to file amended notifications in
order to comply with this paragraph.
Response: The department notes that the requirements of this paragraph
come from TOC, §1958.151(b)(2), and that the notification requirement
of TOC, §1958.153, and §295.325 do not require the quantities of
materials to be included in a notification. No amendments would be necessary
for this reason. No change was made as a result of this comment.
Comment: Concerning §295.321(d)(5), one commenter said that this paragraph
conflicts with §295.324(d), which establishes clearance criteria.
Response: The department agrees and has made changes to clarify these sections.
Comment: Concerning §295.321(g), one commenter suggested inserting
"of the building" before "outside."
Response: The department agrees and has made the recommended change.
Comment: Concerning §295.322, one commenter said that this section
does not address such things as contents remediation and how soft goods should
be sampled and cleared.
Response: The department disagrees. This section does not exempt remediation
of contents from its requirements if not expressly exempted under TOC, §1958.002,
and §295.303. As discussed elsewhere in this preamble, changes have been
made to leave specific decisions about sampling and clearance to the judgment
of the assessment consultant involved. No change was made as a result of this
comment.
Comment: Concerning §295.322(a), one commenter felt that assessment
consultants should also assist in the development of more detailed requirements.
Response: The department agrees and has modified the language of §295.321
to reflect this suggestion. The department also notes that under §295.322(b),
a remediation contractor is required to prepare the remediation work plan
based upon a remediation protocol that is prepared by an assessment consultant.
Comment: Concerning §295.322(b), one commenter felt that remediation
work plans should be prepared by an assessment consultant rather than by a
remediation contractor.
Response: The department disagrees. The TOC, §1958.152(a), states
that a license holder who intends to perform mold remediation shall prepare
a work plan. No change was made as a result of this comment.
Comment: Concerning §295.322(c), one commenter felt that the department
should reference Title 29, Code of Federal Regulations (CFR), §1910.134
(the Occupational Safety and Health Administration's respiratory protection
standard).
Response: The department disagrees. Although all licensees must comply
with these rules, 29 CFR §1910.134 does not necessarily apply to all
licensees. No change was made as a result of this comment.
Comment: Concerning §295.322(c), a number of commenters felt that
the minimum required PPE should be an N-95 respirator, regardless of the amount
of mold present, and that assessment consultants should be allowed to use
their judgment in specifying any additional PPE requirements. Other commenters
stated that the department should leave the selection of PPE entirely up to
the professional judgment of assessment consultants and should only recommend
an N-95 respirator, because requiring a specific type of respirator subjects
licensees to all of the respiratory protection program requirements of 29
CFR 1910.134. Still other commenters believed that an N-95 respirator does
not sufficiently protect workers and that the minimum PPE requirements should
be stronger. One commenter said that an N-95 respirator should be the maximum
required PPE. Another commenter said that PPE should be required for any activity
associated with mold remediation, such as erecting walk-in containment.
Response: The department has modified §295.322(c), as well as §295.321(e),
to specify that the recommended PPE is an N-95 respirator when mold will be
disturbed and that the assessment consultant may use professional judgment
in specifying what PPE remediators are to use. Persons performing remediation
are required to follow the recommendations of the assessment consultant regarding
PPE.
Comment: Concerning §295.322(d), one commenter requested that this
subsection be changed such that containment "must prevent the spread of mold
to building areas outside the containment."
Response: The department disagrees. Releasing concentrated amounts of mold
or mold-containing dust to the outside could adversely affect the health of
sensitive individuals who are nearby. The containment requirements have been
modified, however, to note that air in a walk-in containment can be vented
to the outside if filtered through a HEPA filter. No change was made as a
result of this comment.
Comment: Concerning §295.322(d), several commenters stated that an
assessment consultant should be allowed to use professional judgment to determine
whether containment to prevent the spread of mold is necessary for a project.
Two commenters suggested that containment should be required regardless of
whether or not a building is occupied, while one commenter felt that containment
is not necessary in most circumstances.
Response: The department agrees concerning the use of professional judgment
and has modified §295.322 to reflect this change while continuing to
require some form of containment as defined in §295.302.
Comment: Concerning §295.322(d), one commenter suggested that "prevent"
be changed to "control" because containment might not be able to totally prevent
the release of mold to surrounding areas.
Response: The department disagrees. Although the department understands
the commenter's concern, the department thinks that "prevent" more accurately
conveys the purpose of containment. No change was made as a result of this
comment.
Comment: Concerning §295.322(e), one commenter recommended that the
word "notice" replace the word "warning" throughout the subsection. Three
commenters requested that this subsection be deleted.
Response: The department agrees and has changed the word "warning" to "notice"
and has made additional changes to the signage requirement.
Comment: Concerning §295.322(f), two commenters supported having an
assessment consultant provide written approval of clearance. Three commenters
disagreed, saying that verbal clearance or a simple written statement is sufficient.
Response: The department agrees with those that think that written approval
of clearance is appropriate. No changes were made as a result of these comments.
Comment: Concerning §295.322(f), one commenter said that requirement
of a written notice conflicts with §295.327(a).
Response: The department disagrees. Section 295.322(f) concerns a written
notice given by an assessment consultant to a remediation consultant or company,
whereas §295.327(a), which is required under TOC, §1958.154(a),
relates to a certificate of mold remediation issued by a mold remediation
license holder to a property owner. No change was made as a result of this
comment.
Comment: Concerning §295.322(g), two commenters requested that the
department define "wood-infesting organism" and clarify the circumstances
under which licensing by the Structural Pest Control Board is required.
Response: Although the department understands the commenters' desire for
clarification, questions on the interpretation and applicability of TOC, Chapter
1951, should be addressed by the Structural Pest Control Board. The rule imposes
no new duties but merely alerts licensees to an existing rule of another state
agency. No change was made as a result of this comment.
Comment: Concerning §295.322(g), one commenter felt that this subsection
should address the management and disposal of biocides and wastes.
Response: The department disagrees. The issues raised by the commenter
are under the jurisdiction of the EPA, the Texas Commission on Environmental
Quality, and local governments. No change was made as a result of this comment.
Comment: Concerning §295.323, one commenter urged the department to
include minimum work practices for heating, ventilation, and air conditioning
(HVAC) systems that included more than applying disinfectants, biocides, and/or
antimicrobial coatings.
Response: The department agrees and has modified this section to indicate
that all provisions of §295.321 and §295.322 apply to HVAC systems
as well.
Comment: Concerning §295.323(a), one commenter requested that the
department address the use of biocides and antimicrobials that are manufactured
on-site (e.g. ozone) and are not regulated by the EPA.
Response: The department notes that the use of such compounds is already
prohibited by this subsection, which permits a licensee to apply a disinfectant,
biocide, or antimicrobial coating in a HVAC system only if it is registered
by the EPA for the intended use. No change was made as a result of this comment.
Comment: Concerning §295.323(a), one commenter felt that it is not
necessary to notify all building occupants concerning the use of disinfectants,
biocides, or anti-microbial coatings if the HVAC system only affects a part
of the building.
Response: The department agrees and added "in potentially affected areas"
after "occupants."
Comment: Concerning §295.323(a) and (b), one commenter felt that these
subsections are contradictory.
Response: The department disagrees. Section 295.323(a) gives the requirements
for applying disinfectants, biocides and antimicrobial coatings in HVAC systems
and §295.323(b) gives information on other license requirements that
may be applicable for mold remediators under some circumstances. No change
was made as a result of this comment.
Comment: Concerning §295.324(a)(1), two commenters recommended that
the department delete the reference to wood rot.
Response: The department disagrees. The TOC, §1958.001(5), defines
mold as any living or dead fungi or related products or parts, which includes
wood rot. The term is used separately in the rule for clarity. No change was
made as a result of this comment.
Comment: Concerning §295.324(b), two commenters said that this subsection
should require verification that all identified moisture problems have been
corrected, while one commenter felt that the subsection as proposed created
liability for licensees in areas over which they have no control. Another
commenter suggested that the department modify this subsection to more closely
reflect the requirements under TOC, §1958.154(a).
Response: The department agrees and has modified this subsection to more
closely reflect the requirements under TOC, §1958.154(a).
Comment: Concerning §295.324(b), one commenter recommended that "mold"
be changed to "mold growth."
Response: The department disagrees. The wording in question comes from
TOC, §1958.154(a). No change was made as a result of this comment.
Comment: Concerning §295.324(c), one commenter recommended that this
subsection include a requirement that the sampling be conducted using the
analytical methods specified in the mold remediation protocol.
Response: The department agrees and has made the requested change.
Comment: Concerning §295.324(c), one commenter stated that "if walk-in
containment is used" did not make sense, because containment is required under §295.322(d).
Response: The department disagrees. The term "walk-in containment" is just
one type of "containment" which can include techniques such as wall-mounted
glove boxes and wrapping or overlaying contaminated materials with protective
sheeting. The department has added a definition of "containment" in §295.302
for clarity.
Comment: Concerning §295.324(c), one commenter recommended that this
subsection should require air filtration equipment to be operated in scrubbing
mode and not to be exhausted to the outside. The commenter also recommended
the air filtration equipment not be deactivated prior to clearance testing.
Response: The department notes that these are important concerns but to
employ the proper techniques most effectively for each situation requires
evaluation and determination of a trained licensed professional. The department
has decided that "professional judgment" is the correct approach and has made
the appropriate language revisions to reflect this.
Comment: Numerous commenters were against the use of "direct microscopic
examination" as an analytical method in §295.324(d). The vast majority
of these same commenters were in favor of adding air sampling as an analytical
method in §295.324(d).
Response: The department agrees and has deleted reference to direct microscopic
examination throughout the rules. Regarding air sampling in §295.324(d),
the department will not require specific analytical methods, but has changed
the appropriate wording to allow the licensed mold assessment consultant to
use professional judgment and prescribe the analytical evaluation and clearance
requirements for each particular project.
Comment: Concerning §295.324(d), one commenter requested that use
of analytical methods not be required.
Response: The department disagrees. The TOC, §1958.154(a), requires
an assessment license holder to use visual, procedural, and analytical evaluation
to determine whether the mold contamination identified for a project has been
remediated as outlined in the mold management plan or remediation protocol.
To be consistent with the statute, "analytical method" has been replaced with
"analytical evaluation."
Comment: Concerning §295.324(d), one commenter suggested that assessment
consultants should be required to submit any air samples taken for clearance
purposes to a licensed mold analysis laboratory rather than personally analyzing
the samples.
Response: The department disagrees. The department notes that this is an
important concern but realizes that some licensed mold assessment consultants
may obtain a mold laboratory license and so may be able to perform mold analyses
on the worksite. The consultants are required to use professional judgment
when doing assessments. Performing a mold analysis that the licensed consultant
is unqualified to do would be considered by the department a serious violation.
No change was made as a result of this comment.
Comment: Concerning §295.324(d), one commenter requested that the
department develop new clearance standards to protect homeowners' interests.
Response: The department agrees with this concern, but has found no generally
accepted standard to adopt. Therefore, changes have been made to allow assessment
consultants to use professional judgment in setting clearance criteria for
a project.
Comment: Concerning §295.324(d), one commenter expressed concern that
cost-conscious consumers may not allow consultants to conduct the necessary
clearance testing by limiting the number of samples that consultants can take.
Response: The department disagrees but has revised the language in §295.322
to leave the selection of clearance methods and criteria to the consultant's
judgment, and in §295.324 to require the consultant to use the analytical
methods and clearance criteria as specified in the remediation protocol that
must be given to the client under §295.321(d). No change was made as
a result of this comment.
Comment: Concerning §295.324(d), one commenter felt that a remediation
project should not pass clearance if mold spores are present on remediated
surfaces.
Response: The department disagrees but has revised the language in §295.322
to leave the selection of clearance methods and criteria, which might include
the allowable number of spores on surfaces, to the consultant's judgment.
The consultant's protocol must be submitted to the client under §295.321(d).
No change was made as a result of this comment.
Comment: Concerning §295.324(d), one commenter felt that the rules
do not address what should be done if a project is unable to meet the specified
clearance standards.
Response: The department has modified this subsection to indicate that
analytical methods and clearance criteria will be specified by the assessment
consultant. A consultant who is unable to certify under §1958.154(a)
and §295.327(a) that the mold contamination specified for a project has
been remediated as outlined in the mold remediation protocol should not give
approval to a certificate of mold remediation. Questions related to remedies
for failure to comply with contractual obligations are outside the department's
scope of authority.
Comment: Concerning §295.323(e), one commenter felt that requiring
a passed clearance report creates a tremendous liability for the assessment
consultant.
Response: The department disagrees. Issuing a passed clearance report creates
no greater liability for a consultant than complying with the requirements
under TOC, §1958.154(a) and §295.327(a), concerning the certificate
of mold remediation. No change was made as a result of this comment.
Comment: Concerning §295.324(e)(4), one commenter requested that this
section be modified to reflect TOC, §1958.154.
Response: The department agrees and has made the requested changes.
Comment: Concerning §295.324(e)(4), one commenter suggested that digital
photographs and videotapes be allowed.
Response: The department agrees and clarifies that photographs include
digital photographs printed in hard copy format. Videotapes may be included
in the file, but are not a substitute for the required photographs. No change
was made as a result of this comment.
Comment: Concerning §295.324(f), one commenter requested clarification
whether this subsection applies to projects when a consultant continues to
be involved.
Response: The department clarifies that this subsection applies only to
projects with which a consultant ceases to be involved. No change was made
as a result of this comment.
Comment: Concerning §295.325, a number of commenters expressed overall
disagreement with the notification requirements and asked that they be eliminated.
Response: The department understands the commenters' concerns but notes
that notifications are required under TOC, §1958.153. No change was made
as a result of this comment.
Comment: Concerning §295.325(a), one commenter requested that the
threshold for notification be changed from 25 contiguous square feet to 100
contiguous square feet.
Response: The department disagrees. A person not exempt under TOC, §1958.102(c),
must be licensed to engage in mold remediation, and a license holder must
notify the department about a remediation project under TOC, §1958.153.
No change was made as a result of this comment.
Comment: Concerning §295.325, several commenters expressed concern
that the start/stop-date notification requirements are too stringent. Some
commenters said if the requirement for a start-date is not reduced or eliminated,
emergency notification will become the default notification method. Other
commenters said that there should be a grace period for changes without requiring
an amendment. One commenter requested notifications be filed after a project
had begun and/or ended rather than before.
Response: The department understands the commenters' concerns but notes
that TOC, §1958.153, specifies many of the requirements for notifications
that the rules must contain. No change was made as a result of this comment.
Comment: Concerning §295.325(a), one commenter suggested that "mold
contamination" be changed to "area of mold growth."
Response: The department disagrees. The definition of "mold" in TOC, §1958.001(5),
encompasses more than visible mold growth. No change was made as a result
of this comment.
Comment: Concerning §295.325(a) and (f), one commenter suggested inserting
"mold remediation" before "contractor or company" for clarity.
Response: The department agrees and has made the requested changes.
Comment: Concerning §295.325(e), one commenter suggested changing
"contamination" to "growth."
Response: The department disagrees. The wording comes directly from TOC, §1958.153(b).
No change was made as a result of this comment.
Comment: Concerning §295.325(f)(1), three commenters requested lowering
notification fees. One of those said schools should be totally exempt.
Response: The department agrees in part with the commenters. The notification
fee has been lowered to $25 for a remediation project in an owner-occupied
dwelling unit that is part of a residential property with fewer than 10 dwelling
units to not disadvantage individual homeowners from using licensed providers.
The notification fee for schools remains $100.
Comment: Concerning §295.326, one commenter requested that the department
reconsider the requirements under this section and delete §295.326(b)(2)(B),
(D), and (E); deleting the words "and any other written contracts related
to the mold remediation project between the company or contractor and any
other party" from §295.326(b)(2)(C); and delete §295.326(c)(1)(C)
and (D).
Response: The TOC, §1958.156(c), requires mold remediators to maintain
the records listed under §295.326(b)(2)(B) - (D) for three years. The
department, however, agrees with the commenter in part concerning the recordkeeping
requirements and has deleted §295.326(b)(2)(E) and §295.326(c)(1)(D),
(H), and (J). The department has amended §295.326(b)(2)(A) to require
retention of only the remediation work plan for three years. The department
also has amended §295.326(c)(2) to require retention of the listed documents
only until the assessment company or consultant either issues a final status
report to a customer or provides all certificates of mold remediation for
a project to a remediation company or contractor.
Comment: Concerning §295.326, one commenter suggested that the rules
allow the required information to be maintained in a digital format.
Response: The department agrees concerning §295.326(b)(2) and (d)
and has modified these sections to allow licensees to maintain the required
records in an electronic format. Remediators who do so, however, must provide
hard copies of such records to a department inspector during an inspection
if requested by the inspector.
Comment: Concerning §295.326(b)(2)(B), a commenter noted that photographic
documentation is required as a recordkeeping responsibility although the rule
contains no explicit requirements to take the photos. Further, the commenter
requested clarification as to how many and what types of photographs are required.
Response: The department clarifies that the number of photographs taken
and the specific areas of the remediation project documented are left to the
professional judgment of the mold remediation contractor, who has a duty under
TOC, §1958.156(c)(1), to take before and after photos of the scene. No
change was made as a result of this comment.
Comment: Concerning §295.326(c), one commenter suggested that "companies"
be changed to "contractors."
Response: The department disagrees, noting that the rules do not contain
a "mold assessment contactor" license category and that mold remediation contractors
and companies are regulated separately under §295.326(b). No change was
made as a result of this comment.
Comment: Concerning §295.326(c)(1)(G), one commenter felt that remediation
work plans should be prepared by an assessment consultant rather than by a
remediation contractor and that recordkeeping requirements should reflect
this.
Response: The department disagrees. The TOC, §1958.152(a), states
that a license holder who intends to perform mold remediation shall prepare
a work plan. No change was made as a result of this comment.
Comment: Concerning §295.326(d), one commenter suggested that the
department does not license mold analysis laboratories and that this subsection
should be deleted.
Response: The department disagrees. The definition of "mold assessment"
in TOC, §1958.001, includes "analysis of a mold sample," and TOC, §1958.101(a),
states that a person may not engage in mold assessment unless the person holds
a mold assessment license. No change was made as a result of this comment.
Comment: Concerning §295.326(e)(1) and (3), one commenter believed
that these paragraphs should be deleted as unnecessary because this information
must be submitted to the department with an application for accreditation
as a training provider.
Response: The department agrees and has made the requested changes. The
department also has clarified under §295.318(f)(8) that the information
a training provider is required to maintain for a course includes the names
of all instructors and guest speakers who taught the course and a roster of
all students in the course.
Comment: Concerning §295.327, one commenter requested the department
revise the Certificate of Mold Remediation to limit the assessor's responsibility
to determine the underlying cause of the mold.
Response: The department disagrees. The TOC, §1958.154(a), specifies
the requirements for the certificate and this statutory language is used in
the rules. The assessor has no statutory duty to determine the underlying
cause of mold. No change was made as a result of this comment.
Comment: Concerning §295.327(a) and (b), a commenter suggested that
the section should be deleted on the basis that it is not within the authority
of a regulatory agency to require the mold remediator or assessor to submit
reports to the building owners.
Response: The department disagrees. The remediator is required under TOC, §1958.156(d),
to submit photos to building owners. No change was made as a result of this
comment.
Comment: Concerning §295.327(a), a commenter suggested that digital
video formats should be accepted as photographic documentation.
Response: The department clarifies that photographs must be in hard-copy
form. Digital or standard film formats may be used to create the required
photos. Video documentation may not be substituted for the required photographs.
No change was made as a result of this comment.
Comment: Concerning §295.327(b), one commenter stated obtaining laboratory
results often takes more than ten days and that a remediation contractor would
not be able to comply with the required time frame. The commenter asked that
"10th day" be changed to "30th day."
Response: The department disagrees. The ten-day deadline specified in §295.327(b)
of the rules is the tenth day after the project stop-date, which is defined
in §295.302(37) as the date following the date on which final clearance
is achieved, i.e., after the laboratory results are received. No change was
made as a result of this comment.
Comment: Concerning §295.327(b), one commenter felt that requiring
the remediation contractor or company to provide the certificate of mold remediation
is a conflict of interest and suggested that an assessment consultant should
provide the certificate to the property owner.
Response: The department disagrees that there is a conflict of interest.
The TOC, §1958.154(a), requires that a remediation license holder provide
a certificate of mold remediation to a property owner based on an evaluation
by the consultant. No change was made as a result of this comment.
Comment: Concerning §295.327, several commenters suggested that the
certificate of remediation form adopted by the Texas Department of Insurance
(TDI) should qualify the mold assessor's statement in a manner that would
prevent the assessor from incurring undue liability.
Response: The department concurs that the TDI form should be reasonable
and not impose undue liability on the assessor. However, the statute in TOC, §1958.154(d),
gives responsibility for the form to TDI. No change was made as a result of
these comments.
Comment: Concerning §295.327(b)(2), one commenter stated that assessment
and remediation personnel cannot force a building owner to repair water intrusion.
The commenter felt that this paragraph creates liability for licensees in
areas over which they had have no control and that it should be deleted.
Response: The department understands the commenter's concerns. This paragraph
mirrors the language in TOC, §1958.154(a). There is no requirement for
a certificate of remediation to include the language in §295.327(b)(2),
but it must include the language in §295.327(b)(1). No change was made
as a result of this comment.
Comment: Concerning §295.327(d), a commenter inquired as to the time
limit a property owner would have to keep a certificate of remediation.
Response: The TOC, §1958.154(b), requires an owner who sells a property
to provide to the buyer a copy of each certificate of remediation issued for
the property. The statute gives no time period affecting certificates. Therefore,
prudent property owners should keep the records until the property is sold.
No change was made as a result of the comment.
Comment: Concerning §295.327(d), a commenter suggested that the subsection
should be deleted, as it is not within the department's authority.
Response: The department disagrees. It is required under TOC, §1958.154(b).
No change was made as a result of the comment.
Comment: Concerning §295.327(d), one commenter suggested that a homeowner
would be in violation of the requirement to provide a certificate of remediation
to a buyer if the remediation project consistently failed clearance and the
owner was never issued the certificate.
Response: The department disagrees. The TOC, §1958.154(b), and §295.327(d)
do not require any property owner to produce a certificate that does not exist.
No change was made as a result of this comment.
Comment: Concerning §295.328, a commenter suggested that the department
expand the section to include other consumer protection provisions such as
requiring reference checks on licensees.
Response: The department disagrees because it has no statutory authority
to require reference checks by property owners. The department will consider
including such a recommendation in the public education program required under
TOC, §1958.052, or the Consumer Mold Information Sheet described in §295.306(c).
No change was made as a result of this comment.
Comment: Concerning §295.328, a commenter suggested that the department
have procedures that ensure names of complainants are disclosed to companies
subjected to a complaint investigation.
Response: The department disagrees. The department maintains that the person
filing the complaint should have the option to remain anonymous to the extent
allowed by law. Requests for information may be made in accordance with the
Public Information Act. No change was made as a result of the comment.
Comment: Concerning §295.329, one commenter felt that a TDH inspector
should be required to talk with the assessment consultant for the project
before entering a containment system.
Response: The department disagrees. Imposing such a limitation on the compliance
inspector could limit the ability of the inspector to perform a timely and
thorough inspection of a project. No change was made as a result of this comment.
Comment: Concerning §295.331, two commenters suggested that the violations
mentioned in the section have no impact on human health and safety.
Response: The department disagrees and maintains that violations involving
fraud or misrepresentation of credentials may have a direct negative impact
on public health and safety. No change was made as a result of the comment.
Comment: Concerning §295.331(d), one commenter suggested that the
requirements for training providers are more stringent than for contractors
who train their workers on the job.
Response: Contractors who train their workers on the job must meet specific
criteria in §295.320(d). Failing to do so is listed as a violation in §295.331(d)(2)(D),
which applies to both contractors and accredited training providers. No change
was made as a result of the comment.
Comment: Concerning §295.331(d), the department received a comment
to §295.309(d) requesting clarification of the amount of administrative
penalty for failing to have insurance.
Response: The department has amended §295.331(d)(1), (2) and (3) to
clarify that the listed violations may have an impact on public health, safety
"or welfare" and has added a new penalty under §295.331(d)(1)(G) for
"failing to meet the insurance requirements of §295.309."
Comment: Concerning §295.331(d), one commenter suggested that failure
to isolate the remediation area during removal of mold contaminated building
materials should be listed as an example of a violation in §295.331(d).
Response: The department agrees and has added relevant examples in §295.331(d)(1).
Comment: Concerning §295.331(d)(1)(E), one commenter remarked that
this subparagraph conflicts with §295.320(d)(1)(A).
Response: The department agrees and has inserted the words "except as provided
under §295.320(d)(1)(A) of this subchapter (relating to Training: Required
Mold Training Courses)" after the word "speaker(s)."
Comment: Concerning §295.331(d)(3)(E), one commenter suggested that
a $1,000 penalty under Severity Level III for course scheduling violations
of training providers is excessive.
Response: The department clarifies that the penalty amounts listed in §295.331(d)(1)
- (3) are maximum penalties and may be assessed at a lesser amount. Section
295.331(c) lists factors the department shall consider when assessing a penalty.
Severity Level III (maximum $1000 administrative penalty per violation) is
the lowest severity level. No change was made as a result of this comment.
The department is making the following change based on an amendment offered
by a member of the Board of Health and adopted by the Board.
Change: Concerning the rules in general, the department changed the passing
score on course tests and on state examinations from 70% correct to 80% correct.
The department is making the following minor changes due to staff comments
to clarify the intent and improve the accuracy of the sections.
Change: Concerning §295.302, the department added a definition of
"routine cleaning" for clarity.
Change: Concerning the definition of "allied field" in §295.302, the
department changed "analysis" to "assessment" as a correction.
Change: Concerning the definition of "assessor" in §295.302, the department
inserted "mold assessment" before "consultant" and before "company" for clarity.
Change: Concerning the definition of "board" in §295.302, the department
deleted this definition because the term was not used in this sense in this
subchapter.
Change: Concerning the definition of "commissioner" in §295.302, the
department added "or his successor" because HB 2292 abolishes the Texas Department
of Health. Most activity of the Texas Department of Health will be transferred
to the new Department of State Health Services.
Change: Concerning the definition of "department" in §295.302, the
department added "or its successor" because HB 2292 abolishes the Texas Department
of Health. Most activity of the Texas Department of Health will be transferred
to the new Department of State Health Services. The department also deleted
"Texas Department of Health" and replaced it with "department" in the definition
of "program administrator" in §295.302 and in §295.308(a)(1).
Change: Concerning the definition of "remediator" in §295.302, the
department inserted "mold remediation" before "contractor" and before "company"
for clarity.
Change: Concerning the definition of "residential property" in §295.302,
the department inserted "or oversight" after "care" in subparagraph (B) for
clarification.
Change: Concerning the definition of "survey" in §295.302, the department
changed "growth" to "contamination" to more accurately reflect the language
of TOC, Chapter 1958.
Change: Concerning §295.303, the department added new subsection (g)
to clarify that all persons engaged in mold-related activities must be licensed,
registered or accredited as outlined in this subchapter, except that those
professionals currently licensed by the state in another field who provide
to a mold licensee only consultation related to that other field are not required
to be separately licensed under this subchapter.
In response to a comment about licensed insurance adjusters the staff also
added in subsection (g) that a public insurance adjustor is not required to
be licensed under this subchapter if engaging only in the performance of regulated
activities of a licensed public insurance adjuster pursuant to Article 21.07-5
of the Texas Insurance Code.
Change: Concerning §§295.308(d)(2), 295.330(d), and 295.333(a),
the department deleted "(relating to the Board of Health)" because under HB
2292 the Texas Department of Health will be abolished and an advisory body
will replace the Board of Health.
Change: Concerning §295.309(c), the department changed "initial or
renewal licenses" to "an initial or renewal license" as a correction.
Change: Concerning §295.310(a)(1), the department inserted "course"
after "the required training" for consistency with the rest of the subchapter.
Change: Concerning §295.310(a)(2), the department deleted the commas
after each occurrence of "2005" as a correction.
Change: Concerning §295.310(b), the department changed "licensing"
to "state" for consistency with the rest of the subchapter.
Change: Concerning §295.311(c) and §295.312(c)(1)(C), the department
changed "high-school" to "high school" as corrections.
Change: Concerning §295.312(a), the department changed "one" to "two"
as a correction; "two" appears in a similar provision in §295.313(a)
and does not require correction.
Change: Concerning §295.312(f)(15), the department changed the number
"(11)" to "(13)" as a correction.
Change: Concerning §295.315(a), the department deleted the sentence,
"A mold remediation company shall designate one or more individuals licensed
as mold remediation contractors as its responsible person(s)" and inserted
it as the last sentence in §295.316(a), as a correction.
Change: Concerning §295.315(f)(3), the department added the words
"mold remediation" following the word "preparing" for clarification.
Change: Concerning §295.315(f)(4), the department deleted the word
"project," and added the phrase "for the project" after the word "plan" for
clarification.
Change: Concerning §295.316(e)(3), the department added the words
"for the" after the word "plan" for clarification.
Change: Concerning §295.318(b)(1), the department changed the word
"technician" to "worker" as a correction.
Change: Concerning §295.319(d), the department changed the number
"(9)" to "(8)" as a correction.
Change: Concerning §295.319(e)(1)(B) and (D), the department changed
"one year's" to "one year of" for consistency with similar usage in other
portions of the subchapter.
Change: Concerning §295.320(b)(1), the department changed "sources
of indoor mold and conditions necessary for indoor mold growth" to "sources
of, conditions necessary for, and prevention of indoor mold growth" to more
accurately reflect the intent of the statute.
Change: Concerning §295.321, new §295.321(a) was added for consistency
with §295.322(a).
Change: Concerning §295.321(b), the department inserted "assessment"
before "consultant" for clarity.
Change: Concerning §295.321, the department deleted proposed §295.321(b)
and moved it to §295.321(e) so that it is in a more logical sequence
in the section.
Change: Concerning §295.322(d), the department changed "of this subchapter"
to "of this title" as a correction.
Change: Concerning §295.334, the department inserted "to" between
"relating" and "Decisions" as a correction.
Change: Concerning §295.338(b), the department inserted "under" before
"§295.327" for clarity.
The comments on the proposed rules received by the department during the
comment period were submitted by Representative Elliott Naishtat; A &
B Environmental Services, Inc.; Abbott Labs; Acute Engineering, Inc.; Advantage
Environmental Solutions, LLC; Alliance for Healthy Homes; Alvin Independent
School District (ISD); Amarillo ISD; American Industrial Hygiene Association;
American Insurance Association; Aon Risk Services of Texas; Armstrong Forensic
Laboratory; Associated General Contractors--Texas Building Branch; ATC Associates,
Inc.; Austin Engineering Group; Basic Industries, Inc.; Becker Engineering,
Ltd.; Boone's Restoration Technologies; Building Science Investigations, Inc.;
CAM Environmental Services; Chemical Response and Remediation Contractors,
Inc.; Clean Environments; Corporate Investigative Services, Inc.; Crosby ISD;
Cypress-Fairbanks ISD; Dallas Area Rapid Transit; DDD Construction Management,
Inc.; Dallas ISD; Dolphin Environmental Consultants; Dotson Group LLC; Eastman
Chemical Company; EMI Envira; EnvirOSH Services, Inc.; EMSL Analytical; Engineering
and Fire Investigations, Inc.; Engineering Consulting Services, LTD; Engineering
Systems, Inc.; ENPROTEC, Inc.; EORM, Inc.; Envirochex; Environmental &
Occupational Health Strategies; Envirotest; ETC Information Services, LLC;
ERC, Inc.; Farmers Insurance Group; Fort Worth ISD; GHH Engineering, Inc.;
Gobbell Hays Partners, Inc.; Haley and Aldrich, Inc.; Harris County Department
of Education; Houston Community College; Harvard School of Public Health;
HBC/Terracon; Heart of Texas Health Care Network; HNP, Inc.; HomeTeam Inspection
Service; IAQ Consultants, Inc.; Independent Bankers Association of Texas;
Independent Colleges and Universities of Texas; Indoor Air Quality Association;
Indoor Environmental Consultants, Inc.; International Association of Mold
Remediation Specialists; International Council of Shopping Centers; Jenkins
Environmental Consulting, LLC; Jernberg Law Group; Katy ISD; KBR; Lauderdale
Environmental Engineering; Lubbock ISD; MACTEC Engineering and Consulting;
McClean Environmental Services; Medical Mycology Research Center, University
of Texas Medical Branch, Galveston; Moisture Technology Corporation; Moldlab,
Ltd.; Motorola; Moody Labs; Mycotech Biological, Inc.; Naismith Engineering;
Nalco Energy Services; NATEC of Texas, Inc.; National Association of Industrial
Office Parks--North Texas Chapter; National Center for Healthy Housing; Northside
ISD; Occupational-Environmental Control, Inc.; Occupational Health Program,
Baylor College of Medicine, Houston; Office of Public Insurance Council; Patriot
Maritime Compliance, LLC; Powers Environmental, Inc.; Precision Analytical
Lab, Inc.; Pro Check Inspection Services; The Provident Group; Region IV Education
Service Center; River Road ISD; Reliant Resources; Rimkus Consulting Group,
Inc; Robert J. Reda & Associates, LLC; SafeNet Environmental Services,
LLC; San Antonio ISD; Service Master; SBC Communications; Specialized Adjusting,
Inc.; Steamatic, Inc; Steve Moody Micro Services, Inc.; Sun City Analytical,
Inc.; TEAMS of Texas, Inc; Texans for Sensible Mold Policy; Texas Affiliation
of Affordable Housing Providers; Texas Apartment Association; Texas Association
for Indoor Air Quality; Texas Association of Builders; Texas Association of
Business; Texas Association of Realtors; Texas Association of School Boards;
Texas Board of Architectural Examiners; Texas Building Owners and Managers
Association; Texas Chapter of the National Association of Housing and Redevelopment
Officials; Texas Department of Criminal Justice; Texas Hotel and Lodging Association;
Texas Housing Association; Texas Legislative Action Committee, Community Associations
Institute; Texas Mini Storage Association; Texas Petroleum Marketers and Convenience
Store Association; TMS Environmental, Austin, LLC; Triune Engineering, Inc.;
University of Houston, Clear Lake; University of Texas System Environmental
Advisory Committee; Unocal Corporate HES; United Services Automobile Association;
University of Texas Health Science Center; University of Texas M.D. Anderson
Cancer Center; University of Texas, San Antonio; William C. Hart Construction;
Ysleta ISD; and ZuniBear HSE, LLC. In addition, numerous individuals submitted
comments. Four commenters were against the rules in their entirety. The other
commenters were neither for nor against the rules in their entirety; they
expressed concerns, asked questions, and suggested recommendations for change
as discussed in the summary of contents.
The new sections are adopted under the Texas Occupations Code, §1958.053,
which provides the department with the authority to adopt necessary regulations
to discharge the powers and duties of Chapter 1958; and Texas Health and the
Safety Code, §12.001, which provides the Texas Board of Health (board)
with the authority to adopt rules for the performance of every duty imposed
by law on the board, the department, and the commissioner of health.
§295.301.General Provisions.
(a)
Purpose. This subchapter implements the provisions of the
Texas Occupations Code, Chapter 1958 (relating to Mold Assessors and Remediators),
concerning the regulation of mold assessors and remediators conducting mold-related
activities that affect indoor air quality.
(b)
Scope. This subchapter contains requirements for the licensing
and registration of persons performing mold assessments and mold remediation,
requirements for the accreditation of mold training providers, minimum work
standards for the conduct of mold assessments and remediation by licensed
and registered persons, a code of ethics, and penalties.
(c)
Severability. Should any section or subsection in this
subchapter be found to be void for any reason, such finding shall not affect
any other sections.
(d)
TexasOnline. The department is authorized to collect subscription
and convenience fees, in amounts determined by the TexasOnline Authority,
to recover costs associated with processing applications, examinations, and
notifications specified under this subchapter through TexasOnline, in accordance
with the Texas Government Code, Chapter 2054, §2054.111 (relating to
Use of TexasOnline Project).
§295.302.Definitions.
The following words and terms within this subchapter shall have the
following meanings, unless the context clearly indicates otherwise.
(1)
Accredited training program--A training program that has
been accredited by the department to provide training for persons seeking
licensure or registration under this subchapter.
(2)
Act--The Texas Occupations Code, Chapter 1958 (relating
to Mold Assessors and Remediators).
(3)
Allied field--Mold assessment, mold remediation, and any
field whose principles and practices are applicable to mold assessment or
mold remediation, including asbestos abatement, lead abatement, industrial
hygiene, building sciences, public health, and environmental remediation.
(4)
Assessor--A person who conducts mold assessment as defined
in this section and who is licensed under this subchapter as a mold assessment
technician, mold assessment consultant, or mold assessment company.
(5)
Building sciences--The field of study covering the design,
construction, management, and performance of building systems, including structures,
enclosures, electrical and mechanical systems, environmental systems (such
as temperature and moisture control), safety systems (such as fire suppression
and alarms), lighting, acoustics, and diagnosis and correction of problems
with building systems.
(6)
Commissioner--The Texas Commissioner of Health or his successor.
(7)
Consumer Mold Information Sheet--A document prepared and
made available by the department that describes the persons who are required
to be licensed under this subchapter and provides information on mold assessment
and mold remediation, including how to contact the department for more information
or to file a complaint. A licensee under this subchapter who is overseeing
mold-related activities, with the exception of activities performed by a mold
analysis laboratory, must ensure that each client is provided a copy of the
Consumer Mold Information Sheet prior to the initiation of any mold-related
activity.
(8)
Containment--A component or enclosure designed or intended
to control the release of mold or mold-containing dust or materials into surrounding
areas in the building. The broad category of containment includes such sub-categories
as walk-in containment, surface containment (such as plastic sheeting), and
containment devices (such as wall-mounted glove boxes).
(9)
Containment area--An area that has been enclosed to control
the release of mold or mold-containing dust or materials into surrounding
areas.
(10)
Contiguous--In close proximity; neighboring.
(11)
Contiguous square feet--See "Total surface area of contiguous
square feet".
(12)
Credential--A license, registration, or accreditation
issued under this subchapter.
(13)
Department--The Texas Department of Health or its successor.
(14)
Employee--An individual who is paid a salary, wage, or
remuneration by another person or entity for services performed and over whom
the person or entity exerts supervision or control as to the place, time,
and manner of the individual's work.
(15)
Facility--Any institutional, commercial, public, governmental,
industrial or residential structure or building.
(16)
Indoor air--Air within the envelope of a building, including
air in spaces normally occupied by persons in the building but excluding air
in attics and crawl spaces that are vented to the outside of the building.
(17)
Indoor mold--Mold contamination that was not purposely
grown or brought into a building and that has the potential to affect the
indoor air quality of the building.
(18)
License--Any license issued under this subchapter. The
term "license" does not include a registration, accreditation, or approval
issued under this subchapter.
(19)
Mold--Any living or dead fungi or related products or
parts, including spores, hyphae, and mycotoxins.
(20)
Mold analysis--The examination of a sample collected during
a mold assessment for the purpose of:
(A)
determining the amount or presence of or identifying the
genus or species of any living or dead mold or related parts (including spores
and hyphae) present in the sample;
(B)
growing or attempting to grow fungi for the purposes of
subparagraph (A) of this paragraph; or
(C)
identifying or determining the amount or presence of any
fungal products, including but not limited to mycotoxins and fungal volatile
organic compounds, present in the sample.
(21)
Mold analysis laboratory--A person, other than an individual,
that performs mold or mold-related analysis on a sample collected to determine
the presence, identity, or amount of indoor mold in the sample.
(22)
Mold assessment--Activity that involves:
(A)
an inspection, investigation, or survey of a dwelling or
other structure to provide the owner or occupant with information regarding
the presence, identification, or evaluation of mold;
(B)
the development of a mold management plan or mold remediation
protocol; or
(C)
the collection or analysis of a mold sample.
(23)
Mold assessment report--A document, prepared by a licensed
mold assessment consultant or licensed mold assessment technician for a client,
that describes any observations made, measurements taken, and locations and
analytical results of samples taken by an assessment consultant or by an assessment
technician during a mold assessment. An assessment report can be either a
stand-alone document or a part of a mold management plan or mold remediation
protocol prepared by a mold assessment consultant.
(24)
Mold management plan--A document, prepared by a licensed
mold assessment consultant for a client, that provides guidance on how to
prevent and control indoor mold growth at a location.
(25)
Mold-related activities--The performance of mold assessment,
mold remediation or any other related activities.
(26)
Mold remediation--The removal, cleaning, sanitizing, demolition,
or other treatment, including preventive activities, of mold or mold-contaminated
matter that was not purposely grown at a location. Preventive activities include
those intended to prevent future mold contamination of a remediated area,
including applying biocides or anti-microbial compounds.
(27)
Mold remediation protocol (mold remediation work analysis)--A
document, prepared by a licensed mold assessment consultant for a client,
that specifies the estimated quantities and locations of materials to be remediated
and the proposed remediation methods and clearance criteria for each type
of remediation in each type of area for a mold remediation project.
(28)
Mold remediation work plan--A document, prepared by a
licensed mold remediation contractor that provides specific instructions and/or
standard operating procedures for how a mold remediation project will be performed.
(29)
Office--A stationary physical location assigned a street
address by the United States Postal Service, where a licensee or an employee
of a licensee may be contacted to conduct business related to mold assessment
and/or mold remediation.
(30)
Person--An individual, corporation, company, contractor,
subcontractor, association, firm, partnership, joint stock company, foundation,
institution, trust, society, union, governmental entity, or any other association
of individuals.
(31)
Program administrator--The administrator of the department's
Mold Licensing Program.
(32)
Project--All activities connected with a mold remediation
work plan, including activities necessary for the preparation of the work
plan and any associated mold remediation protocol(s), site preparation, and
post-remediation assessment and clearance.
(33)
Remediator--A person who conducts mold remediation as
defined in this section and who is credentialed under this subchapter as a
mold remediation worker, mold remediation contractor, or mold remediation
company.
(34)
Residential dwelling unit--A detached single-family dwelling;
an attached single-family dwelling in a building that contains two or more
separate single-family dwellings; or a bedroom in group housing. Examples
of residential dwelling units include single homes, mobile homes (house trailers),
duplexes, apartments, and condominiums. In group housing, such as dormitories,
fraternity or sorority houses, and boarding houses, each bedroom is a residential
dwelling unit.
(35)
Residential property--A building containing one or more
residential dwelling units intended to provide living quarters for more than
a transitory period, including a residential property that is vacant or under
construction. A residential property includes dormitories and employee housing
in a non-residential setting (e.g., staff housing at an institutional or commercial
facility). Residential properties do not include:
(A)
lodgings (such as hotels and motels) that rent units on
a transient basis;
(B)
institutional facilities that provide care or oversight
for residents or inmates (such as hospitals, nursing homes, homes for children
with physical or mental disabilities, mental institutions, jails, prisons
and detention centers); and
(C)
former residential properties that do not currently provide
living quarters (such as houses converted into shops or restaurants).
(36)
Responsible person--An employee or principal designated
by a licensed mold assessment company, mold remediation company, or mold analysis
laboratory or by an accredited mold training provider as responsible for its
operations and compliance with rules concerning mold-related activities or
mold-related training.
(37)
Routine cleaning--Cleaning that is ordinarily done on
a regular basis and in a regular course of procedures.
(38)
Start date--The date on which the actual remediation of
mold begins.
(39)
Stop date (completion date)--The date following the date
on which final clearance is achieved following a mold remediation project.
(40)
Supervise--To direct and exercise control over the activities
of a person by being physically present at the job site or, if not physically
present, accessible by telephone and able to be at the site within one hour
of being contacted.
(41)
Survey--An activity undertaken in a building to determine
the presence, location, or quantity of indoor mold or to determine the underlying
condition(s) contributing to indoor mold contamination, whether by visual
or physical examination or by collecting samples of potential mold for further
analysis.
(42)
Total surface area of contiguous square feet--The contiguous
area of surface material that needs to be cleaned or removed to remediate
visible mold contamination.
(43)
Training hours--Hours spent in classroom instruction,
hands-on activities, and field trips, including time used for course tests
and brief breaks but not including scheduled lunch periods.
(44)
Visible--Exposed to view; capable of being seen.
(45)
Work analysis--A mold remediation protocol.
(46)
Work plan--A mold remediation work plan.
(47)
Working days--Monday through Friday, including holidays
that fall on those days.
§295.303.Exceptions and Exemptions.
(a)
Exceptions. This subchapter does not apply to:
(1)
the following activities when not conducted for the purpose
of mold assessment or mold remediation:
(A)
routine cleaning;
(B)
the diagnosis, repair, cleaning, or replacement of plumbing,
heating, ventilation, air conditioning, electrical, or air duct systems or
appliances;
(C)
commercial or residential real estate inspections; and
(D)
the incidental discovery or emergency containment of potential
mold contamination during the conduct or performance of services listed in
this subsection. For purposes of this subsection, an emergency exists if a
delay in mold remediation services in response to a water damage occurrence
would increase mold contamination;
(2)
the repair, replacement, or cleaning of construction materials
during the building phase of the construction of a structure;
(3)
the standard performance of custodial activities for, preventive
maintenance of, and the routine assessment of property owned or operated by
a governmental entity; or
(4)
a pest control inspection conducted by a person regulated
under the Texas Occupations Code, Chapter 1951 (relating to Structural Pest
Control).
(b)
Minimum area exemption. A person is not required to be
licensed under this subchapter to perform mold remediation in an area in which
the mold contamination for the project affects a total surface area of less
than 25 contiguous square feet.
(c)
Residential property exemption. An owner, or a managing
agent or employee of an owner, is not required to be licensed under this subchapter
to perform mold assessment or mold remediation on a residential property which
is owned by that person, and which has fewer than 10 residential dwelling
units. This exemption applies regardless of the total surface area within
the residential property that is affected by mold growth. This exemption does
not apply to a managing agent or employee who engages in the business of performing
mold assessment or mold remediation for the public.
(d)
Facility exemption. An owner or tenant, or a managing agent
or employee of an owner or tenant, is not required to be licensed under this
subchapter to perform mold assessment or mold remediation on property owned
or leased by the owner or tenant. This exemption does not apply:
(1)
if the managing agent or employee engages in the business
of performing mold assessment or mold remediation for the public;
(2)
if the mold remediation is performed in an area in which
the mold contamination affects a total surface area of 25 contiguous square
feet or more; or
(3)
to a person exempt under subsection (c) of this section.
(e)
Construction and improvement exemption. A person is not
required to be licensed under this subchapter to perform mold assessment or
mold remediation in a one-family or two-family dwelling that the person constructed
or improved if the person performs the mold assessment or mold remediation
at the same time the person performs the construction or improvement or at
the same time the person performs repair work on the construction or improvement.
This exemption applies regardless of the total surface area that is affected
by mold growth. This exemption does not apply if the person engages in the
business of performing mold assessment or mold remediation for the public.
For purposes of this subsection, "improve" means "to build, construct, or
erect a new building or structure or a new portion of a building or structure
that is attached to an existing building or structure" and "improvement" means
"a building or structure, or a portion of a building or structure, that was
built, constructed, or erected as an attachment to an existing building or
structure after the construction or erection of the existing building or structure."
(f)
Supervised employee exemption. An employee of a license
holder is not required to be licensed under this subchapter to perform mold
assessment or mold remediation while supervised by the license holder. Such
an employee must, however, be registered as provided under §295.314 of
this title (relating to Mold Remediation Worker: Registration Requirements).
(g)
Exceptions for licensed professionals. All persons engaged
in mold-related activities must be licensed, registered or accredited as outlined
in this subchapter, except that those professionals currently licensed by
the state in another field (including, but not limited to, medicine, architecture,
or engineering) who provide to a mold licensee only consultation related to
that other field are not required to be separately licensed under this subchapter.
In such a case, the responsibility for the project or activity remains with
the mold licensee. A person is not required to be licensed under this subchapter
if engaging only in the performance of regulated activities of a licensed
insurance adjuster pursuant to Article 21.07-4 of the Texas Insurance Code
or in the performance of regulated activities of a licensed public insurance
adjuster pursuant to Article 21.07-5 of the Texas Insurance Code, including
the investigation and review of losses to insured property, assignment of
coverage, and estimation of the usual and customary expenses due under the
applicable insurance policy, including expenses for reasonable and customary
mold assessment and remediation.
(h)
Loss of exemption. A person who is performing mold remediation
under the licensing exemptions of subsection (b) or (d) of this section and
identifies additional mold such that the total mold contamination affects
a total surface area of 25 contiguous square feet or more shall:
(1)
immediately cease all remediation work and implement emergency
containment if necessary; and
(2)
advise the person requesting the remediation that the exemption
under subsection (b) or (d) of this section has been lost and that any additional
mold remediation and post-remediation assessment in the area must be done
by a person licensed or registered under this subchapter.
(i)
Fee exemption for department employees. Employees of the
department who engage in mold-related activity as a condition of their employment
shall be exempt from examination fees and credentialing fees under this subchapter.
Fee-exempted credentials shall be restricted for use only in required departmental
duties, and the credentials will indicate the restriction. An employee who
is no longer required to possess a credential as a condition of employment
shall immediately return that credential to the Mold Licensing Program for
closure. An individual who terminates employment with the department shall
immediately return all unexpired credentials to the Mold Licensing Program
for closure. The department may impose an administrative penalty or take other
disciplinary action against any employee or former employee who uses a fee-exempt
credential to engage in a mold-related activity that is not a required departmental
duty.
§295.304.Code of Ethics.
(a)
The purpose of this section is to establish the standards
of professional and ethical conduct required of all persons holding credentials
or approvals issued under this subchapter.
(b)
All credentialed persons or approved instructors shall,
as applicable to their area of credentialing or approval:
(1)
undertake to perform only services for which they are qualified
by license, education, training or experience in the specific technical fields
involved;
(2)
meet or exceed the minimum standards for mold assessment
and remediation as set forth in this subchapter;
(3)
not participate in activities where a conflict of interest
might arise, pursuant to §295.307 of this title (relating to Conflict
of Interest and Disclosure Requirement) and disclose any known or potential
conflicts of interest to any party affected or potentially affected by such
conflicts;
(4)
provide only necessary and desired services to a client
and not sell unnecessary or unwanted products or services;
(5)
to the extent required by law, keep confidential any personal
information regarding a client (including medical conditions) obtained during
the course of a mold-related activity;
(6)
not misrepresent any professional qualifications or credentials;
(7)
not provide to the department any information that is false,
deceptive, or misleading;
(8)
cooperate with the department by promptly furnishing required
documents or information and by promptly responding to requests for information;
(9)
not work if impaired as a result of drugs, alcohol, sleep
deprivation or other conditions and not allow those under their supervision
to work if known to be impaired;
(10)
maintain knowledge and skills for continuing professional
competence and participate in continuing education programs and activities;
(11)
not make any false, misleading, or deceptive claims, or
claims that are not readily subject to verification, in any advertising, announcement,
presentation, or competitive bidding;
(12)
not make a representation that is designed to take advantage
of the fears or emotions of the public or a customer;
(13)
provide mold-related services at costs in keeping with
industry standards; and
(14)
if the credentialed person is an accredited mold training
provider or a licensed mold analysis laboratory, notify each client of the
name, mailing address, and telephone number of the department for the purpose
of directing complaints to the department:
(A)
on each written contract for services; or
(B)
in each bill for services provided to the client.
(c)
Duty to report ethical violations. All credentialed persons:
(1)
have the responsibility of promptly reporting alleged misrepresentations
or violations of the Act or this subchapter to the department;
(2)
are responsible for competent and efficient performance
of their duties and shall report to the department incompetent, illegal or
unethical conduct of any practitioner of mold assessment and/or remediation;
and
(3)
shall not retaliate against any person who reported in
good faith to the department alleged incompetent, illegal or unethical conduct.
§295.305.Credentials: General Conditions.
(a)
Licensing or registration requirement. A person must be
licensed or registered in compliance with this subchapter to engage in mold
assessment or mold remediation unless specifically exempted under §295.303
of this title (relating to Exceptions and Exemptions).
(b)
Accreditation requirement. A person must be accredited
as a mold training provider in compliance with this subchapter to offer mold
training for fulfillment of specific training requirements for licensing under
this subchapter.
(c)
Age requirement. Each individual applying to be licensed
or registered under this subchapter must be at least 18 years old at the time
of application.
(d)
Office requirement. A person licensed under this subchapter
must maintain an office in Texas. An individual employed by a person licensed
under this subchapter is considered to maintain an office in Texas through
that employer.
(e)
Training requirement.
(1)
An applicant for an initial license under §295.311
of this title (relating to Mold Assessment Technician: Licensing Requirements), §295.312
of this title (relating to Mold Assessment Consultant: Licensing Requirements),
or §295.315 of this title (relating to Mold Remediation Contractor: Licensing
Requirements) must successfully complete an initial training course offered
by a department-accredited training provider in that area of licensure and
receive a course-completion certificate before applying for the license. This
paragraph does not apply to applicants who submit complete applications to
the department before January 1, 2005, as evidenced by a postmark or shipping
paperwork.
(2)
Except as described under subsection (g)(3) of this section,
an applicant for renewal of a license listed under paragraph (1) of this subsection
must successfully complete a refresher training course offered by a department-accredited
training provider in the area of licensure for which renewal is sought and
receive a course-completion certificate before applying for the renewal. The
applicant must successfully complete the refresher course no later than 24
months after successful completion of the previous course and no earlier than
12 months prior to the expiration date of the license.
(3)
Except as described under subsection (g)(3) of this section,
an applicant for an initial or renewal registration under §295.314 of
this title (relating to Mold Remediation Worker: Registration Requirements)
must successfully complete a training course as described under §295.320(d)
and (f) of this title (relating to Training: Required Mold Training Courses)
and receive a course-completion certificate before applying for the registration.
If a refresher course is required, the applicant must successfully complete
the refresher course no later than 24 months after successful completion of
the previous course and no earlier than 12 months prior to the expiration
date of the registration.
(f)
Examination requirement. In accordance with §295.310
of this title (relating to Licensing: State Licensing Examination), an applicant
for an initial license under §§295.311, 295.312, or 295.315 of this
title must pass the state licensing examination in that area of licensure
with a score of at least 80% correct before applying for the license. All
applicants must pass the state examination within six months of completing
any training course required under subsection (e)(1) of this section in three
or fewer attempts or must successfully complete a new initial training course
before re-taking the state examination.
(g)
Applications. Each application for a credential or approval
must provide all required information. An applicant shall indicate that a
question does not apply by answering "not applicable" or "N/A". Applicants
must submit complete applications, including all supporting documents, for
each credential or approval sought.
(1)
An applicant for an initial license under §§295.311,
295.312, or 295.315 of this title must submit the complete application to
the department within six months of passing the required state licensing examination,
as evidenced by a postmark or shipping documents, or must successfully complete
a new initial training course, receive a new training certificate, and pass
a new state examination before submitting a new initial license application.
(2)
An applicant for an initial or renewal registration under §295.314
of this title must submit the complete application to the department within
ten calendar days (not working days) of successfully completing the required
training course, as evidenced by a postmark or shipping paperwork.
(3)
An applicant for a renewal of a license listed under paragraph
(1) of this subsection must successfully complete a required refresher training
course and receive a course-completion certificate before applying for renewal,
except that this paragraph does not apply to a holder of an initial license
that is valid for one year, as described under subsection (h)(1) and (2)(A)
of this section. The applicant must complete the refresher course before the
expiration date of the license but no earlier than 12 months prior to the
expiration date of the license and no later than 24 months after completion
of the previous course.
(h)
Term and expiration.
(1)
All credentials issued before January 1, 2005, are valid
for one year and expire on the anniversary of the effective date.
(2)
A credential issued between January 1, 2005, and December
31, 2005 (including renewal of a credential issued before January 1, 2005,
regardless of the issue date of the renewal) is valid for:
(A)
one year and expires on the anniversary of the effective
date, if the birth year of the applicant (or the birth year of the mold training
manager or the first individual named as a responsible person, as described
under subsection (j) of this section, if the applicant is not an individual)
is an odd number; or
(B)
two years and expires on the second anniversary of the
effective date, if the birth year of the applicant (or the birth year of the
mold training manager or the first individual named as a responsible person,
as described under subsection (j) of this section, if the applicant is not
an individual) is an even number.
(3)
All credentials issued on or after January 1, 2006, except
as specified in paragraph (2) of this subsection, are valid for two years
and expire on the second anniversary of the effective date.
(4)
Fees commensurate with a two-year credential must be included
with any application for a credential that will expire on the second anniversary
of its effective date.
(5)
A credential holder is in violation of this subchapter
if the holder practices with lapsed qualifications.
(i)
Condition of issuance. No credential, identification (ID)
card, or approval issued under this subchapter shall be sold, assigned, or
transferred. ID cards issued by the department must be present at the worksite
any time an individual is engaged in mold-related activities. The department
retains the right to confiscate and revoke any credential, ID card, or approval
that has been altered.
(j)
Credentialed persons other than individuals. A mold assessment
company, mold remediation company, mold analysis laboratory, or mold training
provider that has been issued a credential under this subchapter:
(1)
shall designate one or more individuals as responsible
persons. The credentialed person must notify the department in writing of
any additions or deletions of responsible persons within 10 days of such occurrences;
(2)
shall not transfer that credential to any other person,
including to any company that has bought the credentialed entity. The credentialed
entity must apply for a new credential within 60 days of being bought; and
(3)
must submit to the department a name-change application
and a processing fee of $20 within 60 days of any change.
§295.306.Credentials: General Responsibilities.
(a)
Persons who are licensed, registered, or accredited under
this subchapter shall:
(1)
adhere to the code of ethics prescribed by §295.304
of this title (relating to Code of Ethics);
(2)
comply with work practices and procedures of this subchapter;
(3)
refrain from engaging in activity prohibited under §295.307(a)
of this title (relating to Conflict of Interest and Disclosure Requirement);
(4)
maintain any insurance required under §295.309 of
this title (relating to Licensing: Insurance Requirements) while engaging
in mold-related activities regulated under this subchapter;
(5)
cooperate with department personnel in the discharge of
their official duties, as described in §295.329 of this title (relating
to Compliance: Inspections and Investigations); and
(6)
notify the department of changes in mailing address and
telephone number.
(b)
All individuals who are required to be licensed or registered
under this subchapter must have a valid department-issued identification card
present at the worksite when engaged in mold-related activities, except as
provided under §295.314(e) of this title (relating to Mold Remediation
Worker: Registration Requirements) for applicants for registration as mold
remediation workers.
(c)
The license holder overseeing mold-related activities,
with the exception of activities performed by a mold analysis laboratory,
must ensure that a client is provided a copy of the department Consumer Mold
Information Sheet prior to the initiation of any mold-related activity.
(d)
A credentialed person who becomes aware of violations of
this subchapter must report these violations within 24 hours to the department
if, to that person's knowledge, the responsible party has not corrected the
violations within that timeframe.
(e)
The individual that is designated by a licensed mold assessment
company or mold remediation company as its responsible person shall not be
the responsible person for another licensee with the same category of license.
(f)
Credentialed persons are responsible for determining whether
the mold-related activities in which they will engage require additional credentials
beyond those required under this subchapter.
§295.308.Credentials: Applications and Renewals.
(a)
General requirements. Applications for a license, registration
or accreditation must be made on forms provided by the department and signed
by the applicant. The department shall consider only complete applications.
The application form must be accompanied by:
(1)
a check or money order for the amount of the required fee
made payable to the department, unless the application fee is paid through
TexasOnline, as provided under the Texas Government Code, Chapter 2054, §2054.252
(relating to TexasOnline Project);
(2)
a current one-inch by one-inch photograph of the applicant's
face (or, if the application is for a company license, of the face of the
individual designated as the responsible person for the company) with a white
background. The photograph of the face is not required with applications for
approvals. If the application is for an individual license and successful
completion of a department-approved training course is being used to satisfy
the training requirement, a copy of the wallet-size photo-identification card
from the applicable training course as required under §295.318(f)(6)(B)
of this title (relating to Mold Training Provider: Accreditation) must also
be submitted; and
(3)
proof that the applicant meets all other requirements for
obtaining the credential being sought.
(b)
Inquiries. Applicants who wish to discuss or obtain information
concerning qualification requirements may call the program administrator at
(512) 834-4509 or (800) 293-0753 (toll-free). Applicants may visit the Mold
Licensing Program's website at www.tdh.state.tx.us/beh/mold to obtain information
and download forms.
(c)
Denials. The department may deny a credential to a person
who fails to meet the standards established by this subchapter.
(d)
Processing applications and renewals.
(1)
Reimbursement of fees. The department shall refund application
fees, less an administrative fee of $50 ($20 for remediation worker applications),
if an applicant does not meet the requirements for the credential. The department
shall refund fees paid in excess of the amounts required under this subchapter,
less a $10 administrative fee. The department will not refund fees if the
application was abandoned due to the applicant's failure to respond to a written
request from the department for a period of 90 days.
(2)
Contested case hearing. The applicant has the right to
request a hearing in writing within 30 days of the date on the department's
letter denying the credential. The hearing will be conducted in accordance
with the Administrative Procedure Act (Texas Government Code, Chapter 2001)
and the department's formal hearing rules in Chapter 1 of this title.
(e)
Renewal notices. At least 60 days before a person's license,
registration, or accreditation is scheduled to expire, the department shall
send a renewal notice by first-class mail to the person's last known address
from the department's records. A person credentialed by the department retains
full responsibility for supplying the department with a correct current address
and phone number. The renewal notice will state:
(1)
the type of credential requiring renewal;
(2)
the time period allowed for renewal;
(3)
the amount of the renewal fee; and
(4)
how to obtain and submit a renewal application.
(f)
Renewal requirements. A person seeking to renew a license,
registration, or accreditation shall submit a renewal application no sooner
than 60 days before the credential expires. The department shall renew the
license, registration, or accreditation for a term as provided under §295.305(h)
of this title (relating to Credentials: General Conditions) if the person:
(1)
is qualified to be credentialed;
(2)
pays to the department the nonrefundable renewal fee;
(3)
submits to the department a renewal application on the
prescribed form along with all required documentation; and
(4)
has complied with all final orders resulting from any violations
of this subchapter, unless an exception is granted in writing by the department
and submitted with the application.
(g)
Renewals and late fees. A person shall not perform any
mold-related activity with an expired license, registration, or accreditation.
If a person makes a timely and complete application for the renewal of a valid
credential, the credential does not expire until the department has finally
granted or denied the application. The department shall renew a credential
that has been expired for 180 days or less if the person meets the requirements
of subsection (f) of this section. A person whose credential has been expired
for more than 180 days must obtain a new credential and must comply with current
requirements and procedures, including any state examination requirements.
(h)
Replacements. A person desiring a replacement credential
or ID card shall submit a request in writing on a department-issued form with
a $20 fee.
§295.309.Licensing: Insurance Requirements.
(a)
Persons required to have insurance must, at a minimum,
obtain policies for commercial general liability insurance in the amount of
not less than $1 million per occurrence. Governmental entities that are self-insured
are not required to purchase insurance under this subchapter. A non-governmental
entity (business entity or individual) may be self-insured if it submits to
the department for approval an affidavit signed by an authorized official
of the entity or by the individual stating that it has a net worth of at least
$1 million. A current financial statement indicating a net worth of at least
$1 million must accompany the affidavit. A new affidavit and current financial
statement must be submitted with each renewal application. An individual required
to have insurance must obtain individual coverage unless covered under the
policy of the individual's employer or employed by a governmental entity or
a person approved by the department to be self-insured. Insurance policies
required under this section must be currently in force and must be written
by:
(1)
an insurance company authorized to do business in Texas;
(2)
an eligible Texas surplus lines insurer as defined in the
Texas Insurance Code, Article 1.14-2 (relating to Surplus Lines Insurance);
(3)
a Texas registered risk retention group; or
(4)
a Texas registered purchasing group.
(b)
The certificate of insurance must be complete, including
all applicable coverages and endorsements, and must name the Texas Department
of Health, Toxic Substances Control Division, as a certificate holder. Each
required policy shall be endorsed to provide the department with at least
a 30-day notice of cancellation or material change for any reason.
(c)
An applicant for an initial or renewal license must provide
proof of insurance in one of the following forms:
(1)
a copy of the required certificate of insurance;
(2)
if claiming to be self-insured, a statement that it is
a governmental entity, or, if a non-governmental entity, the affidavit and
current financial statement described under subsection (a) of this section;
or
(3)
proof that the applicant is employed by a licensed mold
assessment or remediation company that has the required insurance.
(d)
The department may impose an administrative penalty or
take other disciplinary action against any person who fails to have the insurance
required under this section.
(1)
If a policy is canceled or materially changed, the licensee
shall notify the department in writing not later than 20 calendar days prior
to the change or cancellation effective date. A licensed company may file
a single notification for the company and its licensed employees.
(2)
If a policy expires or is canceled or materially changed,
the policy shall promptly be renewed or replaced without any lapse in coverage.
If no insurance is in effect, the licensee shall cease work. Prior to resuming
work, the licensee must either:
(A)
provide to the department a certificate of the renewal
or replacement policy; or
(B)
submit to the department the affidavit and current financial
statement described under subsection (a) of this section and receive departmental
approval to be self-insured.
(3)
If an individual licensee ceases to be covered under an
employer's insurance, the individual must obtain replacement coverage either
individually or through a new employer. The individual must submit the documentation
required under subsection (c) of this section to the department before engaging
in any mold-related activities.
§295.310.Licensing: State Licensing Examination.
(a)
Examination requirements.
(1)
An applicant for an initial individual license who has
successfully completed the required training course from a department-accredited
training provider must pass the state examination with a score of at least
80% correct prior to applying for the license. The applicant must pass the
examination within six months of completing the training course.
(2)
An applicant is permitted to take the state examination
before January 1, 2005, without completing a training course approved under §295.319
of this title (relating to Training: Approval of Training Courses and Instructors)
if the applicant has successfully completed the applicable training allowed
under §295.311(c)(2) of this title (relating to Mold Assessment Technician:
Licensing Requirements), §295.312(c)(2) of this title (relating to Mold
Assessment Consultant: Licensing Requirements), or §295.315(c)(2) of
this title (relating to Mold Remediation Contractor: Licensing Requirements).
The applicant must pass the examination with a score of at least 80% correct
and submit a complete application to the department before January 1, 2005
(as evidenced by a postmark or shipping paperwork). An applicant who fails
to pass the examination in three or fewer attempts or to submit a complete
application before January 1, 2005, must successfully complete a training
course approved under §295.319 of this title and then pass a state examination
with a score of at least 80% correct before re-applying for a license.
(b)
Re-examination. An individual is permitted to take two
re-examinations after failing an initial examination. An individual who fails
both re-examinations must repeat the initial training course, submit a new
application for the state examination, and provide a copy of the new training
certificate.
(c)
Scheduling and registration. Annually, the department shall
publish a schedule of examination dates and locations. Training providers
shall provide state examination schedules as a part of their instruction.
Registrations must be submitted by mailing, faxing, or e-mailing a registration
form to the administrator and must be received by the department no later
than five working days before the examination date. Information on the examination
schedule and assistance with registration is available by calling the Mold
Licensing Program at (512) 834-4509 or (800) 293-0753 (toll-free in Texas).
Entrance into the examination site will be allowed only upon presentation
of a valid photo identification from an accredited training provider. Companies
with 30 or more employees to be tested may call the department to arrange
an additional examination date for a $50 per person examination fee.
(d)
Fees. A fee of $25 is required for any examination or re-examination.
A fee of $50 per person shall be paid for examinations administered at locations
and times other than those published. The department must receive the required
fees no later than five working days before the examination.
(e)
Grading and reporting of examination scores. A grade of
at least 80% correct must be achieved in order to pass the examination. Scores
will be reported only by mail no later than 30 working days after the date
the examination is taken. Information regarding re-examination, if necessary,
will be included.
(f)
Request for information concerning examination. If requested
in writing by an individual who fails a licensing examination, the department
shall furnish the individual with a written analysis of the individual's performance
on the examination.
§295.311.Mold Assessment Technician: Licensing Requirements.
(a)
Licensing requirement. Unless exempted under §295.303
of this title (relating to Exceptions and Exemptions), as of January 1, 2005,
an individual must be licensed as a mold assessment technician to perform
activities listed under subsection (b) of this section, except that an individual
licensed under §295.312 of this title (relating to Mold Assessment Consultant:
Licensing Requirements) is not required to be separately licensed under this
section.
(b)
Scope. An individual licensed under this section is authorized
to determine the location and extent of mold or suspected mold present in
a facility. A mold assessment technician is licensed to:
(1)
record visual observations and take on-site measurements,
including temperature, humidity, and moisture levels, during an initial or
post-remediation mold assessment;
(2)
collect samples for mold analysis during an initial mold
assessment;
(3)
prepare a mold assessment report; and
(4)
as directed by an on-site assessment consultant, collect
samples during a post-remediation mold assessment.
(c)
Qualifications. In addition to the requirements for all
applicants listed in §295.305 of this title (relating to Credentials:
General Conditions) and §295.309 of this title (relating to Licensing:
Insurance Requirements), an applicant must be a high school graduate or have
obtained a General Educational Development (GED) certificate. If the application
is for an initial license and a complete application is submitted to the department
before January 1, 2005, as evidenced by a postmark or shipping paperwork,
the applicant may satisfy the training requirement under §295.305(e)(1)
of this title by either:
(1)
successfully completing an initial mold assessment technician
course offered by a department-accredited training provider and receiving
a course-completion certificate; or
(2)
successfully completing, within four years prior to the
application date, a minimum of 24 hours of instruction in mold assessment.
The applicant is not required to receive all 24 hours of instruction from
the same organization. Successful completion shall be shown by a certificate
of course completion. Any instruction used to satisfy this requirement must
be offered by one of the following:
(A)
a college or university accredited by an organization recognized
by the Council for Higher Education Accreditation;
(B)
a training provider accredited by the federal government
to provide instruction on hazardous materials;
(C)
a national professional organization that is administered
by an active board of directors and whose criteria for full membership include
minimum education and experience requirements and adherence to a published
code of ethics;
(D)
an organization that is administered by an active board
of directors, that offers certification to individuals who fulfill minimum
education and experience requirements at least equivalent to the education
and experience requirements under this section, and that requires passing
a certification examination with a score of at least 80% correct in order
to receive the certification; or
(E)
a training provider that is approved by an organization
meeting the requirements under subparagraph (D) of this paragraph to offer
training required by the organization.
(d)
Fees. The fees for a mold assessment technician license
are:
(1)
$100 for a one-year license issued before January 1, 2006;
and
(2)
$200 for a two-year license issued on or after January
1, 2005.
(e)
Applications and renewals. Applications shall be submitted
as required by §295.308(a) of this title (relating to Credentials: Applications
and Renewals). An applicant shall include the following:
(1)
if the application is for an initial license and a complete
application is submitted to the department before January 1, 2005, as evidenced
by a postmark or shipping paperwork:
(A)
a copy of a high school diploma or GED certificate;
(B)
proof of compliance with the insurance requirement specified
in §295.309 of this title;
(C)
proof of successfully fulfilling the training requirement
under subsection (c)(1) and (2) of this section; and
(D)
proof of successfully passing the state licensing examination
with a score of at least 80% correct;
(2)
if the application is for an initial license and a complete
application is submitted to the department on or after January 1, 2005:
(A)
a copy of a high school diploma or GED certificate;
(B)
proof of compliance with the insurance requirement specified
in §295.309 of this title;
(C)
a copy of a certificate of training as described in §295.320(b)
of this title (relating to Training: Required Mold Training Courses); and
(D)
proof of successfully passing the state licensing examination
with a score of at least 80% correct; or
(3)
if the application is for renewal of a license:
(A)
a copy of a certificate of training as described in §295.320(g)
of this title, unless the applicant is exempt under §295.305(g)(3) of
this title; and
(B)
proof of compliance with the insurance requirement specified
in §295.309 of this title.
(f)
Responsibilities. In addition to the requirements listed
in §295.306 of this title (relating to Credentials: General Responsibilities),
a licensed mold assessment technician shall:
(1)
perform only activities allowed under subsection (b) of
this section;
(2)
comply with mold sampling protocols accepted as industry
standards, as presented in training course materials or as required by his/her
employer;
(3)
utilize the services of a laboratory that is licensed by
the department to provide analysis of mold samples; and
(4)
provide to the client a mold assessment report following
an initial (pre-remediation) mold assessment, if the technician is not acting
as an employee of a licensed mold assessment consultant or company.
§295.312.Mold Assessment Consultant: Licensing Requirements.
(a)
Licensing requirements. Unless exempted under §295.303
of this title (relating to Exceptions and Exemptions), as of January 1, 2005,
an individual must be licensed as a mold assessment consultant to perform
activities listed under subsection (b) of this section. A licensed mold assessment
consultant who employs two or more individuals required to be licensed under
this section or §295.311 of this title (relating to Mold Assessment Technician:
Licensing Requirements) must be separately licensed as a mold assessment company
under §295.313 of this title (relating to Mold Assessment Company: Licensing
Requirements), except that an individual licensed as a mold assessment consultant
and doing business as a sole proprietorship is not required to be separately
licensed under §295.313 of this title.
(b)
Scope. An individual licensed under this section is also
licensed to perform all activities of a mold assessment technician listed
in §295.311(b) and (f) of this title. In addition, a licensed mold assessment
consultant is licensed to:
(1)
plan surveys to identify conditions favorable for indoor
mold growth or to determine the presence, extent, amount, or identity of mold
or suspected mold in a building;
(2)
conduct activities recommended in a plan developed under
paragraph (1) of this subsection and describe and interpret the results of
those activities;
(3)
determine locations at which a licensed mold assessment
technician will record observations, take measurements, or collect samples;
(4)
prepare a mold assessment report, including the observations
made, measurements taken, and locations and analysis results of samples taken
by the consultant or by a licensed mold assessment technician during the mold
assessment;
(5)
develop a mold management plan for a building, including
recommendations for periodic surveillance, response actions, and prevention
and control of mold growth;
(6)
prepare a mold remediation protocol, including the evaluation
and selection of appropriate methods, personal protective equipment (PPE),
engineering controls, project layout, post-remediation clearance evaluation
methods and criteria, and preparation of plans and specifications;
(7)
evaluate a mold remediation project for the purpose of
certifying that mold contamination identified for the remediation project
has been remediated as outlined in a mold remediation protocol;
(8)
evaluate a mold remediation project for the purpose of
certifying that the underlying cause of the mold has been remediated so that
it is reasonably certain that the mold will not return from that remediated
cause; and
(9)
complete appropriate sections of a mold remediation certificate
as specified under §295.327(b) of this title (relating to Photographs;
Certificate of Mold Remediation; Duty of Property Owner).
(c)
Qualifications. In addition to the requirements for all
applicants listed in §295.305 of this title (relating to Credentials:
General Conditions) and §295.309 of this title (relating to Licensing:
Insurance Requirements), an applicant must:
(1)
meet at least one of the following education and/or experience
requirements:
(A)
a bachelor's degree from an accredited college or university
with a major in a natural or physical science, engineering, architecture,
building construction, or building sciences, and at least one year of experience
in an allied field;
(B)
at least 60 college credit hours with a grade of C or better
in the natural sciences, physical sciences, environmental sciences, building
sciences, or a field related to any of those sciences, and at least three
years of experience in an allied field;
(C)
a high school diploma or a General Educational Development
(GED) certificate and at least five years of experience in an allied field;
or
(D)
certification as an industrial hygienist, a professional
engineer, a professional registered sanitarian, a certified safety professional,
or a registered architect, with at least one year of experience in an allied
field; and
(2)
if a complete application for an initial license is submitted
to the department before January 1, 2005, as evidenced by a postmark or shipping
paperwork, satisfy the training requirement under §295.305(e)(1) of this
title by either:
(A)
successfully completing an initial mold assessment consultant
course offered by a department-accredited training provider and receiving
a course-completion certificate; or
(B)
successfully completing, within four years prior to the
application date, a minimum of 40 hours of instruction in mold assessment.
The applicant is not required to receive all 40 hours of instruction from
the same organization. Successful completion shall be shown by a certificate
of course completion. Any instruction used to satisfy this requirement must
include classroom and hands-on training and must be offered by an entity meeting
one of the qualifications listed under §295.311(c)(2)(A) - (E) of this
title.
(d)
Fees. The fees for a mold assessment consultant license
are:
(1)
$300 for a one-year license issued before January 1, 2006;
and
(2)
$600 for a two-year license issued on or after January
1, 2005.
(e)
Applications and renewals. Applications shall be submitted
as required by §295.308(a) of this title (relating to Credentials: Applications
and Renewals). An applicant shall include the following in the application
package:
(1)
if the application is for an initial license and a complete
application is submitted to the department before January 1, 2005, as evidenced
by a postmark or shipping paperwork:
(A)
verifiable evidence that the applicant meets at least one
of the eligibility requirements under subsection (c)(1)(A) - (D) of this section;
(B)
proof of compliance with the insurance requirement specified
in §295.309 of this title;
(C)
proof of successfully fulfilling the training requirement
under subsection (c)(2) of this section; and
(D)
proof of successfully passing the state licensing examination
with a score of at least 80% correct;
(2)
if the application is for an initial license and a complete
application is submitted to the department on or after January 1, 2005:
(A)
all documentation required under paragraph (1)(A), (B),
and (D) of this subsection; and
(B)
a copy of a certificate of training as described in §295.320(c)
of this title (relating to Training: Required Mold Training Courses); or
(3)
if the application is for renewal of a license:
(A)
a copy of a certificate of training as described in §295.320(g)
of this title, unless the applicant is exempt under §295.305(g)(3) of
this title; and
(B)
proof of compliance with the insurance requirement specified
in §295.309 of this title.
(f)
Responsibilities. In addition to the requirements listed
in §295.306 of this title (relating to Credentials: General Responsibilities),
a licensed mold assessment consultant shall:
(1)
provide adequate consultation to the client to diminish
or eliminate hazards or potential hazards to building occupants caused by
the presence of mold growth in buildings;
(2)
provide, in accordance with a client's instructions, professional
services concerning surveys, building conditions that have or might have contributed
to mold growth, proper building operations and maintenance to prevent mold
growth, and compliance with work practices and standards;
(3)
comply with mold sampling protocols as presented in training
course materials or as required by his/her employer;
(4)
inquire of the client whether any hazardous materials,
including lead-based paint and asbestos, are present in the project area;
(5)
ensure that all employees who will conduct mold assessment
activities are provided with, fit tested for, and trained in the correct use
of personal protection equipment appropriate for the activities to be performed;
(6)
ensure that the training and license of each licensed employee
are current, as described in §295.320 of this title and §295.311
or §295.312 of this title, respectively;
(7)
provide to the client a mold assessment report following
an initial (pre-remediation) mold assessment. If the consultant includes the
results of the initial assessment in a mold remediation protocol or a mold
management plan, a separate assessment report is not required;
(8)
provide to the client a mold remediation protocol before
a remediation project begins;
(9)
utilize the services of a laboratory that is licensed by
the department to provide analysis of mold samples;
(10)
if he/she performs post-remediation assessment on a project
and ceases to be involved with the project before it achieves clearance, provide
a final status report to the client and to the mold remediation contractor
or company performing mold remediation work for the client as specified under §295.324(f)
of this title (relating to Post-Remediation Assessment and Clearance);
(11)
provide a passed clearance report to the client as specified
under §295.324(e) of this title and complete applicable sections of a
certificate of mold remediation as specified under §295.327(b) of this
title (relating to Photographs; Certificate of Mold Remediation; Duty of Property
Owner);
(12)
comply with recordkeeping responsibilities under §295.326(c)
of this title (relating to Recordkeeping);
(13)
sign and date each mold assessment report and each mold
management plan that he/she prepares and include his/her license number and
expiration date on each report and each plan;
(14)
sign and date each mold remediation protocol on the cover
page, including his/her license number and expiration date. The consultant
must also initial the protocol on every page that addresses the scope of work
and on all drawings related to the remediation work; and
(15)
review and approve changes to any protocol by signing
or initialing according to paragraph (14) of this subsection.
§295.313.Mold Assessment Company: Licensing Requirements.
(a)
Licensing requirements. A person performing mold assessment
work on or after January 1, 2005 must be licensed as a mold assessment company
if the person employs two or more individuals required to be licensed under §295.311
of this title (relating to Mold Assessment Technician: Licensing Requirements)
or §295.312 of this title (relating to Mold Assessment Consultant: Licensing
Requirements), except that an individual licensed as a mold assessment consultant
and doing business as a sole proprietorship is not required to be separately
licensed under this section. A mold assessment company shall designate one
or more individuals licensed as mold assessment consultants as its responsible
person(s).
(b)
Authorization and conditions. As a condition of licensure,
a mold assessment company must:
(1)
notify the department in writing of any changes in individual
licensed mold assessment consultants as responsible persons within 10 days
of such occurrences;
(2)
maintain commercial general liability insurance, as described
in §295.309 of this title (relating to Licensing: Insurance Requirements);
(3)
refrain from mold assessment activity during any period
without the active employment of at least one individual licensed mold assessment
consultant designated as the responsible person for the company;
(4)
notify the department in writing of any change related
to a person who has an ownership interest of 10% or more (including additions
to or deletions from any list of such persons previously supplied to the department
and any changes in the names, addresses, or occupations of any persons on
such a list) within 10 days of the change; and
(5)
refrain from engaging in activity prohibited under §295.307(a)
of this title (relating to Conflict of Interest and Disclosure Requirement).
(c)
Eligibility for licensing. To be eligible for licensing,
an applicant must:
(1)
employ at least one licensed mold assessment consultant;
and
(2)
maintain an office in Texas.
(d)
Fees. The fees for a mold assessment company license are:
(1)
$500 for a one-year license issued before January 1, 2006;
and
(2)
$1,000 for a two-year license issued on or after January
1, 2005.
(e)
Applications and renewals. Applications shall be submitted
as required by §295.308(a) of this title (relating to Credentials: Applications
and Renewals). An applicant shall include the following in the application
package:
(1)
proof of compliance with the insurance requirement specified
in §295.309 of this title;
(2)
the name, address, and occupation of each person that has
an ownership interest of 10% or more in the company; and
(3)
the name and license number of each licensed mold assessment
consultant designated by the applicant as a responsible person.
(f)
Responsibilities. In addition to the requirements as listed
in §295.306 of this title (relating to Credentials: General Responsibilities),
a licensed mold assessment company shall:
(1)
follow the recordkeeping requirements, at both the Texas
office and work site locations, as described in §295.326(c) of this title
(relating to Recordkeeping);
(2)
provide each client with a mold assessment report following
an initial (pre-remediation) mold assessment. If the company includes the
results of the initial assessment in a mold remediation protocol or a mold
management plan, a separate assessment report is not required;
(3)
provide each client a mold remediation protocol before
remediation begins;
(4)
ensure that all employees who will conduct mold assessment
activities are provided with, fit tested for, and trained in the correct use
of personal protection equipment appropriate for the activities to be performed;
(5)
ensure that the training and license of each licensed employee
are current, as described in §295.320 of this title (relating to Training:
Required Mold Training Courses) and §295.311 or §295.312 of this
title, respectively;
(6)
utilize the services of a laboratory that is licensed by
the department to provide analysis of mold samples;
(7)
maintain commercial general liability insurance, as described
in §295.309 of this title;
(8)
if the company performs post-remediation assessment on
a project and ceases to be involved with the project before it achieves clearance,
provide a final status report to the client and to the mold remediation contractor
or company performing mold remediation work for the client as specified under §295.324(f)
of this title (relating to Post-Remediation Assessment and Clearance); and
(9)
provide a passed clearance report to the client as specified
under §295.324(e) of this title and provide a certificate of mold remediation,
with applicable sections completed by a mold assessment consultant, to a mold
remediation company or contractor, as specified under §295.327(b) of
this title (relating to Photographs; Certificate of Mold Remediation; Duty
of Property Owner).
§295.314.Mold Remediation Worker: Registration Requirements.
(a)
Registration requirement. Unless exempted under §295.303
of this title (relating to Exceptions and Exemptions), as of January 1, 2005,
an individual must be registered as a mold remediation worker to perform mold
remediation, except that an individual licensed under §295.315 of this
title (relating to Mold Remediation Contractor: Licensing Requirements) is
not required to be separately registered under this section.
(b)
Qualifications. In addition to the requirements for all
applicants listed in §295.305 of this title (relating to Credentials:
General Conditions), an applicant must:
(1)
be employed by a licensed mold remediation contractor or
company; and
(2)
complete a mold remediation worker training course provided
by either the applicant's employer or an accredited mold training provider,
as described under §295.320(d) of this title (relating to Training: Required
Mold Training Courses).
(c)
Fees. The fees for a mold remediation worker registration
are:
(1)
$30 for a one-year registration issued before January 1,
2006; and
(2)
$60 for a two-year registration issued on or after January
1, 2005.
(d)
Applications and renewals. Applications shall be submitted
as required by §295.308(a) of this title (relating to Credentials: Applications
and Renewals) and shall include a copy of the training certificate required
under §295.320(d)(5)(A) of this title, unless the applicant is exempt
under §295.305(g)(3) of this title. An applicant must submit an application
to the department within ten calendar days of completing a worker training
course, as evidenced by a postmark or shipping paperwork.
(e)
Interim registration. An individual who has successfully
completed remediation worker training and received a training certificate
may perform mold remediation work allowed under this section for a period
of not more than 30 days from the training date if:
(1)
the individual has submitted an application for registration
to the department as required under subsection (d) of this section;
(2)
a copy of the training certificate is present at the work
site at all times while the individual engages in mold remediation; and
(3)
the individual is in possession of a valid government-issued
photo identification at all times while performing mold remediation work.
(f)
Responsibilities. In addition to the requirements as listed
in §295.306 of this title (relating to Credentials: General Responsibilities),
a registered mold remediation worker shall use remediation techniques specified
in the project mold remediation work plan.
(g)
Prohibitions. Registered mold remediation workers are prohibited
from:
(1)
performing mold remediation except under the supervision,
as defined in §295.303(f) of this title, of a licensed remediation contractor;
and
(2)
engaging in any mold-related activity requiring licensing
as a remediation contractor under this subchapter.
§295.315.Mold Remediation Contractor: Licensing Requirements.
(a)
Licensing requirements. Unless exempted under §295.303
of this title (relating to Exceptions and Exemptions), as of January 1, 2005,
an individual must be licensed as a mold remediation contractor to perform
activities listed under subsection (b) of this section. A licensed mold remediation
contractor who employs one or more individuals required to be licensed under
this section or §295.314 of this title (relating to Mold Remediation
Worker: Registration Requirements) must be separately licensed as a mold remediation
company under §295.316 of this title (relating to Mold Remediation Company:
Licensing Requirements), except that an individual licensed as a mold remediation
contractor and doing business as a sole proprietorship is not required to
be separately licensed under §295.316 of this title.
(b)
Scope. An individual licensed under this section may perform
mold remediation and supervise registered mold remediation workers performing
mold remediation. In addition, a licensed mold remediation contractor is licensed
to provide mold remediation services including:
(1)
preparing a mold remediation work plan providing instructions
for the remediation efforts to be performed for a mold remediation project;
and
(2)
conducting and interpreting the results of activities recommended
in a work plan developed under paragraph (1) of this subsection, including
any of the activities of a registered mold remediation worker under §295.314
of this title.
(c)
Qualifications. In addition to the requirements for all
applicants listed in §295.305 of this title (Credentials: General Conditions)
and §295.309 of this title (relating to Licensing: Insurance Requirements),
an applicant must:
(1)
meet at least one of the following education and/or experience
requirements:
(A)
a bachelor's degree from an accredited college or university
with a major in a natural or physical science, engineering, architecture,
building construction, or building sciences and at least one year of experience
either in an allied field or as a general contractor in building construction;
(B)
at least 60 college credit hours with a grade of C or better
in the natural sciences, physical sciences, environmental sciences, building
sciences, or a field related to any of those sciences, and at least three
years of experience in an allied field or as a general contractor in building
construction;
(C)
a high school diploma or General Educational Development
(GED) certificate, plus at least five years of experience in an allied field
or as a general contractor in building construction; or
(D)
certification as an industrial hygienist, a professional
engineer, a professional registered sanitarian, a certified safety professional,
or a registered architect, with at least one year of experience either in
an allied field or as a general contractor in building construction; and
(2)
if the application is for an initial license and a complete
application is submitted to the department before January 1, 2005, as evidenced
by a postmark or shipping paperwork, satisfy the training requirement under §295.305(e)(1)
of this title by either:
(A)
successfully completing an initial mold remediation contractor
course offered by a department-accredited training provider and receiving
a course-completion certificate; or
(B)
successfully completing, within four years prior to the
application date, a minimum of 40 hours of instruction in mold remediation.
The applicant is not required to receive all 40 hours of instruction from
the same organization. Successful completion shall be shown by a certificate
of course completion. Any instruction used to satisfy this requirement must
include classroom and hands-on training and must be offered by an entity meeting
one of the qualifications listed under §295.311(c)(2)(A) - (E) of this
title (relating to Mold Assessment Technician: Licensing Requirements).
(d)
Fees. The fees for a mold remediation contractor license
are:
(1)
$250 for a one-year license issued before January 1, 2006;
and
(2)
$500 for a two-year license issued on or after January
1, 2005.
(e)
Applications and renewals. Applications shall be submitted
as required by §295.308(a) of this title (relating to Credentials: Applications
and Renewals). An applicant shall include the following in the application
package:
(1)
if the application is for an initial license and a complete
application is submitted to the department before January 1, 2005, as evidenced
by a postmark or shipping paperwork:
(A)
verifiable evidence that the applicant meets at least one
of the eligibility requirements under subsection (c)(1) of this section;
(B)
proof of compliance with the insurance requirement specified
in §295.309 of this title;
(C)
proof of successfully fulfilling the training requirement
under subsection (c)(2) of this section; and
(D)
proof of successfully passing the state licensing examination
with a score of at least 80% correct;
(2)
if the application is for an initial license and a complete
application is submitted to the department on or after January 1, 2005:
(A)
verifiable evidence that the applicant meets at least one
of the qualifications under subsection (c)(1) of this section;
(B)
proof of compliance with the insurance requirement specified
in §295.309 of this title;
(C)
a copy of a certificate of training indicating successful
completion within the past six months of an initial training course offered
by a department-accredited training provider as described in §295.320(e)
of this title (relating to Training: Required Mold Training Courses); and
(D)
proof of successfully passing the state licensing examination;
or
(3)
if the application is for renewal of a license:
(A)
a copy of a certificate of training as described in §295.320(g)
of this title, unless the applicant is exempt under §295.305(g)(3) of
this title; and
(B)
proof of compliance with the insurance requirement specified
in §295.309 of this title.
(f)
Responsibilities. In addition to the requirements as listed
in §295.306 of this title (relating to Credentials: General Responsibilities),
the mold remediation contractor shall be responsible for:
(1)
accurate interpretation of field notes, drawings, and reports
relating to mold assessments;
(2)
advising clients about options for mold remediation;
(3)
complying with standards for preparing mold remediation
work plans, as presented in training course materials or as required by the
mold remediation company by whom the contractor is employed;
(4)
providing to a client a mold remediation work plan for
the project before the mold remediation begins;
(5)
inquiring of the client whether any known or suspected
hazardous materials, including lead-based paint and asbestos, are present
in the project area;
(6)
signing and dating each mold remediation work plan that
he/she prepares on the cover page. The cover page shall also include his/her
license number and expiration date. He/she must also initial the work plan
on every page that addresses the scope of work and on all drawings related
to the remediation work;
(7)
submitting the required notification to the department,
as described in §295.325 of this title (relating to Notifications), unless
employed by a licensed mold remediation company;
(8)
ensuring that all individuals who conduct activities specified
under paragraph (4) of this subsection are provided with, fit tested for,
and trained in the correct use of personal protection equipment required under §295.322(c)
of this title (relating to Minimum Work Practices and Procedures for Mold
Remediation);
(9)
if the mold remediation contractor is doing business as
a sole proprietorship and is not required to be separately licensed as a mold
remediation company under §295.316 of this title (Mold Remediation Company:
Licensing Requirements):
(A)
ensuring that the training, as described in §295.320
of this title (relating to Training: Required Mold Training Courses), and
license of each employee who is required to be licensed under this subchapter
is current;
(B)
ensuring that the training, as described in §295.320
of this title, and registration of each registered employee is current;
(C)
ensuring that each unregistered employee who is required
to be registered under this subchapter is provided the training required under §295.320(d)
of this title before performing any mold remediation work;
(D)
complying with all requirements under §295.320(d)
of this title if the contractor provides the training; and
(E)
ensuring that a previously unregistered employee who is
provided training as specified in subparagraph (C) of this paragraph:
(i)
has applied to the department for registration before allowing
that employee to perform any mold remediation work, except as provided under §295.314(e)
of this title; and
(ii)
is registered before allowing that employee to perform
any mold remediation work more than 30 days after the date of the training,
in accordance with §295.314(e) of this title;
(10)
complying with recordkeeping responsibilities under §295.326
of this title (relating to Recordkeeping); and
(11)
providing to the property owner a completed mold remediation
certificate as specified under §295.327 of this title (relating to Photographs;
Certificate of Mold Remediation; Duty of Property Owner).
§295.316.Mold Remediation Company: Licensing Requirements.
(a)
Licensing requirements. A person performing mold remediation
work on or after January 1, 2005 must be licensed as a mold remediation company
if the person employs one or more individuals required to be registered under §295.314
of this title (relating to Mold Remediation Worker: Registration Requirements)
or licensed under §295.315 of this title (relating to Mold Remediation
Contractor: Licensing Requirements), except that an individual licensed as
a mold remediation contractor and doing business as a sole proprietorship
is not required to be separately licensed under this section. A mold remediation
company shall designate one or more individuals licensed as mold remediation
contractors as its responsible person(s).
(b)
Authorization and conditions. A licensed mold remediation
company is specifically authorized to employ mold remediation contractors
and mold remediation workers who are currently licensed or registered under
this subchapter to assist in the company's mold remediation activity. As a
condition of licensure, a mold remediation company must:
(1)
employ at least one licensed mold remediation contractor
and refrain from mold remediation activity during any period without the active
employment of at least one individual licensed mold remediation contractor
designated as the responsible person for the company;
(2)
notify the department in writing of any additions or deletions
of responsible persons within 10 days of such occurrences;
(3)
maintain commercial general liability insurance, as described
under §295.309 of this title (relating to Licensing: Insurance Requirements);
(4)
notify the department in writing of any change related
to a person who has an ownership interest of 10% or more (including additions
to or deletions from any list of such persons previously supplied to the department
and any changes in the names, addresses, or occupations of any persons on
such a list) within 10 days of the change; and
(5)
refrain from engaging in activity prohibited under §295.307(a)
of this title (relating to Conflict of Interest and Disclosure Requirement).
(c)
Fees. The fees for a mold remediation company license are:
(1)
$500 for a one-year license issued before January 1, 2006;
and
(2)
$1,000 for a two-year license issued on or after January
1, 2005.
(d)
Applications and renewals. Applications shall be submitted
as required by §295.308(a) of this title (relating to Credentials: Applications
and Renewals). An applicant shall include the following in the application
package:
(1)
proof of compliance with the insurance requirement specified
in §295.309 of this title;
(2)
the name, address, and occupation of each person that has
an ownership interest of 10% or more in the company; and
(3)
the name and license number of each licensed mold remediation
contractor designated by the applicant as a responsible person.
(e)
Responsibilities. In addition to the requirements as listed
in §295.306 of this title (relating to Credentials: General Responsibilities),
the mold remediation company shall be responsible for:
(1)
complying with recordkeeping requirements, at both central
office and work site locations, as described in §295.326 of this title
(relating to Recordkeeping);
(2)
submitting the required notification to the department,
as required under §295.325 of this title (relating to Notifications);
(3)
providing to each client a mold remediation work plan for
the project before the mold remediation begins;
(4)
ensuring that all employees who will conduct mold remediation
activities are provided with, fit tested for, and trained in the correct use
of personal protection equipment required under §295.322 of this title
(relating to Minimum Work Practices and Procedures for Mold Remediation);
(5)
ensuring that the training, as described in §295.320
of this title (relating to Training: Required Mold Training Courses), and
license of each employee who is required to be licensed under this subchapter
is current;
(6)
ensuring that the training, as described in §295.320
of this title, and registration of each registered employee is current;
(7)
ensuring that each unregistered employee who is required
to be registered under this subchapter is provided the training required under §295.320(d)
of this title before performing any mold remediation work;
(8)
complying with all requirements under §295.320(d)
of this title if the company provides the training; and
(9)
ensuring that a previously unregistered employee who is
provided training as specified in paragraph (7) of this paragraph:
(A)
has applied to the department for registration before allowing
that employee to perform any mold remediation work, except as provided under §295.314(e)
of this title; and
(B)
is registered before allowing that employee to perform
any mold remediation work more than 30 days after the date of the training,
in accordance with §295.314(e) of this title.
§295.317.Mold Analysis Laboratory: Licensing Requirements.
(a)
Licensing requirement. A person must be licensed in compliance
with the provisions of this section to engage in activities listed under subsection
(b) of this section on or after January 1, 2005. Branch offices that perform
mold analysis must fulfill the same equipment and operational standards as
the main office that has been licensed and must be accredited in accordance
with subsection (c) of this section for the types of analysis they will be
performing.
(b)
Scope. A person licensed under this section is authorized
to analyze samples collected during mold-related activities to:
(1)
determine the presence, identity, or amount of mold present;
(2)
provide any other information regarding the sample that
the submitter requests; or
(3)
obtain any other information that the laboratory deems
useful.
(c)
Qualifications. Applicants must submit documentation showing
that:
(1)
either:
(A)
the laboratory is accredited by the American Industrial
Hygiene Association under the Environmental Microbiology Laboratory Accreditation
Program (EMLAP);
(B)
the laboratory is accredited or certified by a program
deemed equivalent by the department for the preparation and analysis of mold;
(C)
all individuals who will analyze mold samples are accredited
by the Pan-American Aerobiology Certification Board or a program deemed equivalent
by the department, if the laboratory will analyze only non-culturable samples;
or
(D)
all individuals who will analyze the mold samples:
(i)
have at least a bachelor's degree in microbiology or biology;
(ii)
have successfully completed training in mold analysis
offered by the McCrone Research Institute or by a program deemed equivalent
by the department, including receiving a training certificate; and
(iii)
have a least three years of experience as a mold microscopist;
and
(2)
mold analysis activity at the laboratory is overseen by
a full-time mycologist or microbiologist with either:
(A)
an advanced academic degree; or
(B)
at least two years of experience in mold analysis.
(d)
Fees. The fees for a mold analysis laboratory license are:
(1)
$500 for a one-year license issued before January 1, 2006;
and
(2)
$1,000 for a two-year license issued on or after January
1, 2005.
(e)
Applications and renewals. Applications shall be submitted
as required by §295.308(a) of this title (relating to Credentials: Applications
and Renewals). An applicant shall include the following in the application
package:
(1)
the name, address, and occupation of each person that has
an ownership interest of 10% or more in the laboratory;
(2)
evidence that the laboratory meets one of the qualification
requirements under subsection (c)(1) of this section;
(3)
proof of compliance with the insurance requirements specified
in §295.309 of this title (relating to Licensing: Insurance Requirements);
and
(4)
the name of each individual designated by the applicant
as a responsible person.
(f)
Responsibilities. In addition to the requirements as listed
in §295.306 of this title (relating to Credentials: General Responsibilities),
the mold analysis laboratory shall be responsible for:
(1)
following recordkeeping requirements as described in §295.326(d)
of this title (relating to Recordkeeping);
(2)
providing to a client, as applicable, details of analysis
methods used, amounts (percentages) analyzed, raw counts for each genus of
mold that is identified, magnification used for counting and identifying mold,
and culture media and conditions used;
(3)
ensuring that all employees who will conduct mold analysis
are properly trained in analysis techniques;
(4)
maintaining accreditation required under subsection (c)
of this section. A licensed mold assessment laboratory that loses the required
accreditation must:
(A)
provide to the department written notification of a change
in accreditation status within 10 working days of the change; and
(B)
cease providing services related to the licensure until
the accreditation is reinstated;
(5)
notifying the department in writing of any additions or
deletions of responsible persons within 10 days of such occurrences; and
(6)
maintaining commercial general liability insurance, as
described in §295.309 of this title.
§295.318.Mold Training Provider: Accreditation.
(a)
Accreditation requirement. A person must be accredited
as a mold training provider to offer mold training courses that are prerequisites
for licensing.
(b)
Authorizations and Conditions. The following shall apply
to issuance of accreditations under this section.
(1)
No person shall advertise or offer as initial or refresher
training courses, for fulfillment of requirements for licensing under this
subchapter, any courses that the department has not approved under §295.319
of this title (relating to Training: Approval Of Training Courses and Instructors).
Accredited training providers may offer, without department approval, mold
remediation worker training courses and other courses relevant to mold-related
activities, including, but not limited to, courses on respirator training
and compliance.
(2)
Accredited training providers must offer approved courses
as described below.
(A)
Each initial and refresher course shall address only one
licensee and shall not be combined with other areas of licensure. Initial
training courses shall not be combined with refresher courses. This prohibition
against combined training applies to hands-on training sessions as well as
other aspects of the course.
(B)
Each course shall be conducted in one language throughout
and not combined with the same course taught in another language. A training
provider may offer a course in a language other than English if all instructors
and guest speakers are fluent in that language and all books, training materials,
and course tests are in that language.
(3)
Each accredited training provider shall submit schedules
for approved training courses to the department at least 14 calendar days
prior to the start of any course on the schedule. Requests for exceptions
to the 14-day rule shall be submitted in writing to the program administrator
along with a written justification describing why the notice could not be
submitted earlier. Approval requests for shorter notice must be received by
the department 72 hours prior to the start of the course and will be granted
in writing if approved. A training provider that cancels a scheduled course
must notify the department in writing at least 24 hours prior to the scheduled
start time of the course. The department will accept facsimiles of cancellation
notices. If the training provider cannot provide written notice of cancellation
at least 24 hours in advance, the training provider shall notify the department
by phone not later than two hours after the scheduled class start time and
provide a written explanation of the short cancellation notice within 24 hours
of the phone call.
(4)
Training courses must be conducted during scheduled hours
as notified in accordance with paragraph (3) of this subsection. Training
providers shall not conduct any approved course for more than eight training
hours (including hands-on portions) in a calendar day.
(5)
A training provider must require instructors and guest
speakers to present in person at least 50% of the classroom instruction and
all of the hands-on instruction. The training provider may allow an instructor
or guest speaker to use training films and videotapes, but audiovisual materials
shall not be used as substitutes for the required in-person presentations
or the hands-on instruction.
(6)
Courses requiring hands-on practical training must be presented
in an environment that permits each student to have actual experience performing
tasks associated with the mold-related activity.
(7)
The maximum number of students in a lecture session shall
be 40. Hands-on training sessions shall maintain a student-to-instructor ratio
of not more than 15 to one and must be conducted so that the instructor is
able to assist and evaluate each student individually. Field trips shall maintain
a student-to-instructor ratio of not more than 40 to one.
(8)
Approved training courses shall be conducted in facilities
acceptable as classrooms and conducive to learning. The facilities must have
restrooms available for the students.
(9)
Course instructors shall maintain a master attendance record
for each course and take attendance at the beginning of each four-hour instruction
segment. A student who is absent from more than 10% of the course instruction,
including hands-on sessions and field trips, is ineligible to complete the
course.
(10)
An accredited training provider must verify and keep a
written record of any student achieving a minimum score of 80% correct on
each course test. The training provider shall have a written policy concerning
the administration of tests, including allowing only one re-test per student
for each course. The use of the same questions for both the original and re-test
is not allowed. Oral tests are not allowed; however, a training provider may
read the written test questions and possible answers to a student who must
then mark his or her answer on an answer sheet. If a student fails the re-test,
the student must repeat the course and pass a new test.
(11)
Each training provider shall send at least one course
instructor to any meeting held by the department for the purpose of ensuring
quality training. The department shall hold no more than two such meetings
per year.
(12)
An individual instructor shall not train himself/herself
to qualify for a license or a registration.
(c)
Qualification. To qualify for an accreditation, each applicant:
(1)
must have a written policy concerning refunds and cancellations
in all languages in which training is offered. The refund and cancellation
policy must be made available to students prior to payment of fees and shall
include the cancellation procedures;
(2)
shall employ a mold training manager who:
(A)
meets at least one of the following requirements:
(i)
at least two years of experience, education, or training
in teaching workers or adults;
(ii)
a bachelor's or graduate degree in building construction
technology, engineering, industrial hygiene, safety, public health, education,
or business administration or program management; or
(iii)
at least two years of experience in managing an occupational
health and safety training program specializing in environmental hazards;
and
(B)
has demonstrated experience, education, or training in
mold assessment or remediation, lead or asbestos abatement, occupational safety
and health, or industrial hygiene;
(3)
shall provide for each course a qualified principal instructor
who meets the requirements under §295.319 of this title; and
(4)
must develop and implement a plan to maintain and improve
the quality of the training program. This plan shall contain at least the
following elements:
(A)
procedures for periodic revision of training materials
and the course test to reflect innovations in the field; and
(B)
procedures for the training manager's annual review of
instructor competency.
(d)
Fees. The fees for mold training provider accreditation
are:
(1)
$500 for a one-year accreditation issued before January
1, 2006; and
(2)
$1,000 for a two-year accreditation issued on or after
January 1, 2005.
(e)
Applications and renewals. Applications shall be submitted
as required by §295.308(a) of this title (relating to Credentials: Applications
and Renewals). An applicant shall include:
(1)
for an initial accreditation, at least one complete application
for approval of a training course and at least one complete application for
approval of an instructor, as described under §295.319 of this title;
(2)
for a renewal accreditation, a list of all of the training
provider's courses and instructors currently approved by the department; and
(3)
a description of the training provider's organization,
including the address of its central office, the names and business addresses
of its principals, a statement of any affiliation with another mold-related
company doing business in Texas, and a listing of the courses to be offered.
The organization shall designate a staff member as the mold training manager
who meets the qualifications of subsection (c)(2) of this section.
(f)
Responsibilities. In addition to the requirements listed
in §295.306 of this title (relating to Credentials: General Responsibilities),
an accredited mold training provider shall be responsible for:
(1)
confirming, before enrolling a student in a refresher training
course, that the student has successfully completed a previous training course
in the same area of licensure within 24 months;
(2)
maintaining the hands-on skills assessment to ensure that
it accurately evaluates student performance of the work practices and procedures
associated with the course topics contained in §295.320 of this title
(relating to Training: Required Mold Training Courses);
(3)
maintaining the validity and integrity of the course test
to ensure that it accurately evaluates the student's knowledge and retention
of the course topics;
(4)
furnishing appropriate equipment in good working order
and in sufficient quantities for each training session in which equipment
is required;
(5)
presenting to students all course information and material
approved by the department;
(6)
at the conclusion of each training course, providing to
each student who successfully completes the course and passes the required
test:
(A)
a course-completion certificate as described in §295.319(c)(8)
of this title;
(B)
a wallet-size photo-identification card, indicating the
course completed, the effective date, and a number identifier for the student;
(C)
a current one-inch square photo of the student's face on
a white background taken during the course to be attached by the student to
an application for licensing or registration; and
(D)
a copy of the application and schedule for the state licensing
examination;
(7)
submitting to the department, within 10 working days of
the completion date of each course:
(A)
the names and number identifiers of each student who attended
the course, on a form provided by the department;
(B)
individual one-inch square photos of the face of each student
on a white background taken during the course; and
(C)
a group photo taken at the end of the course that identifies
which students did and did not pass the course. Digital or scanned images
will be accepted. The group photograph must be no smaller than a standard
3 1/2-inch by 4 1/4-inch print;
(8)
documenting that each person who receives a certificate
has successfully completed an initial course in accordance with §295.320
of this title (relating to Training: Required Mold Training Courses) and has
achieved a passing score on the written test. The training provider must maintain
a file for each course that includes the training course name, dates and area
of licensure, the names of all instructors and guest speakers who taught the
course, a roster of all students in the course, a copy of the course test
and each student's name and graded answer sheet, the date and location where
the test was administered, the name of the test proctor, the names of students
receiving certificates, the certificate numbers, and the expiration date of
the training. All information from the training course and test must correspond
to the information on each person's course-completion certificate. All records
under this section shall be available for inspection by the department immediately
upon conclusion of the course and the test; and
(9)
complying with all requirements under §295.320(d)
of this title if the company provides training to individuals seeking registration
as mold remediation workers and maintaining copies of the required training
documents at a central location at its Texas office.
(g)
Inspections and audits. Training providers shall permit
department representatives to attend, evaluate, and monitor any training course,
without charge or advance notice, to ensure compliance with this subchapter.
The following criteria are grounds for suspending or withdrawing training
provider accreditations or instructor approvals under §295.330 of this
title (relating to Compliance: Reprimand, Suspension, Revocation, Probation)
or for assessing administrative penalties under §295.331 of this title
(relating to Compliance: Administrative Penalty):
(1)
failure to adhere to the training standards and requirements
of this subchapter;
(2)
misrepresentation of the extent of approval of a training
course or instructor;
(3)
falsification of records or submitting false information
to the department;
(4)
failure to submit required information in a timely manner;
or
(5)
failure to comply with these regulations in a manner that
demonstrates a lack of ability, capacity or fitness to perform training duties
and responsibilities.
§295.319.Training: Approval Of Training Courses and Instructors.
(a)
General provisions. The department must approve all training
courses and instructors in advance of the course being offered except as provided
under §295.318(b)(1) of this title (relating to Mold Training Provider:
Accreditation). Applications for approval of courses or instructors submitted
with an application for initial accreditation under §295.318 of this
title will be reviewed at the same time for no additional approval fee. Each
application for course or instructor approval must be made on a separate application
form.
(b)
Fees. The application fee for approval of each initial
or refresher training course is $100 per mold training course, except as provided
in subsection (a) of this section. There is no separate application fee for
approval of an instructor.
(c)
Application for course approval. An application must be
submitted to the department in writing. Within 30 working days after receiving
an application, the department shall acknowledge receipt of the application
and notify the applicant of any deficiency in the application. The department
will approve or deny the application upon receipt of the complete application.
A complete application for training course approval shall include:
(1)
the training program provider's name, business address
and telephone number;
(2)
the area of licensure and type of course (initial or refresher)
for which approval is being sought, including the course length in training
hours;
(3)
a detailed outline of each course curriculum including
the specific topics taught, the amount of time allotted to each topic, and
the amount and type of hands-on training for each topic;
(4)
a description of the facilities and equipment available
for lecture and hands-on training;
(5)
a copy of the course test blueprint (written documentation
of the proportion of test questions devoted to each major topic in the course);
(6)
a copy of all course materials (student manuals, instructor
notebooks, handouts, and other course-related materials) in all languages
taught;
(7)
the names and qualifications of all course instructors.
Instructors must meet the requirements under subsection (e) of this section;
and
(8)
a description and example of the photo identification cards
and course certificates to be issued to students. Each certificate must have
a unique certificate number and must include:
(A)
the school's name, address, and telephone number;
(B)
the student's name;
(C)
a statement that the student successfully completed the
course and the name and dates of the training course completed;
(D)
an expiration date two years after the date of course completion;
(E)
the signature of the course instructor; and
(F)
the signature of the course director or the principal officer,
owner, or chief executive officer of the training provider.
(d)
Changes to training courses. An accredited training provider
must receive department approval for changes to any of the items in subsections
(c)(1) - (8) of this section. Accredited training providers must submit requests
in writing and shall not offer training courses incorporating any changes
until the department has granted approval.
(e)
Application for instructor approval. Only state-approved
instructors are permitted to provide instruction in courses required under
this subchapter, except that guest speakers are permitted to provide limited
instruction as provided under subsection (f) of this section. A training provider
shall submit for approval a resume or other documentation to show the qualifications
of each instructor conducting mold training courses. The department must approve
all instructors before they are permitted to provide instruction. The training
provider will notify the department of additions and deletions to its instructor
roster within 15 working days of actual occurrence. Department approval of
an instructor or a guest speaker for an area of licensure applies to that
area of licensure only and does not convey approval for any other area of
licensure.
(1)
Instructor qualifications. Instructors shall be qualified
in at least one of the categories in subparagraphs (A) - (D) of this paragraph.
Instructor qualifications must be fully documented and verifiable by the department.
The categories include:
(A)
at least two years of actual hands-on experience in mold-related
activities for the subject that the instructor will teach, and a high school
diploma and completion of at least one teacher education course in vocational
or industrial teaching;
(B)
graduation from an accredited college or university with
a bachelor's degree or advanced degree in natural or physical sciences or
a related field, with one year of hands-on experience in mold-related activities;
(C)
at least three years teaching experience and completion
of one or more teacher education courses in vocational or industrial teaching
from an accredited two or four year college, with one year of hands-on experience
in mold-related activities; or
(D)
a vocational teacher with certification from the Texas
Education Agency with one year of hands-on experience in mold-related activities.
(2)
Instructor training. Each instructor shall meet the training
requirements under §295.305(e)(1) and (2) of this title (relating to
Credentials: General Conditions) for each area of licensure in which the instructor
seeks department approval to teach. Instructors are not required to be separately
licensed or registered.
(3)
Professional references. Each instructor application shall
include three professional references attesting to teaching experience and
mold-related qualifications of the applicant. No more than two references
will be accepted from an applicant's current company. References must be submitted
on a form provided by the department and must be mailed directly to the department
by the author.
(4)
Complete applications. The department shall consider only
complete applications for instructor approval including sufficient, verifiable
references.
(f)
Guest speakers. Training providers may utilize guest speakers
to present training who have documentable and verifiable professional expertise
on the subject about which they are speaking. Training providers are not required
to obtain department approval for guest speakers but must maintain proof of
each guest speaker's qualifications as described under §295.326 of this
title (relating to Recordkeeping).
(g)
Suspension and revocation of approval. The following criteria
are grounds for suspending or withdrawing approval from a training course
or instructor under §295.330 of this title (relating to Compliance: Reprimand,
Suspension, Revocation, Probation):
(1)
failure of an instructor or guest speaker to adhere to
the standards and requirements of this subchapter;
(2)
failure of a training course, instructor, or guest speaker
to provide training that meets the requirements of the department or this
subchapter;
(3)
falsification or misrepresentation by an instructor of
his/her qualifications;
(4)
submittal by an accredited training provider to the department
of false information for training course or instructor approval;
(5)
misrepresentation by an accredited training provider of
the extent of a department-approved training course or instructor; and
(6)
violation by an approved training course instructor or
a guest speaker of other mold-related activity regulations in a manner that
indicates a lack of ability, capacity or fitness to perform training duties
and responsibilities.
§295.320.Training: Required Mold Training Courses.
(a)
General provisions. Individual applicants for licensing
or renewal must submit evidence acceptable to the department of fulfillment
of specific training requirements.
(b)
Assessment technician training. The assessment technician
course shall consist of at least 24 training hours that includes lectures,
demonstrations, audio-visuals and hands-on training, course review, and a
written test of 50 multiple-choice questions. The course requirements in paragraphs
(3), (5) - (8), and (10) of this subsection require hands-on training as an
integral part of the course. The assessment technician course shall include:
(1)
sources of, conditions necessary for, and prevention of
indoor mold growth;
(2)
potential health effects, in accordance with a training
protocol developed in consultation with state professional associations, including
at least one representing physicians;
(3)
workplace hazards and safety, including personal protective
equipment, and respirators;
(4)
technical and legal considerations for mold assessment,
including applicable regulatory requirements, the role of the mold assessment
technician, and the roles of other professionals (including an assessment
consultant);
(5)
performance of visual inspections where mold might be present
and determining sources of moisture problems, including exterior spaces (including
crawlspaces and attics), interior components (including windows, plumbing,
walls, and ceilings) and heating, ventilation, and air-conditioning (HVAC)
systems (including return air and supply ducts);
(6)
utilization of physical measurement equipment and tools,
including moisture meters, humidity meters, particle counters, data-logging
equipment, and visual and robotic inspection equipment;
(7)
biological sampling strategies and methodologies, including
sampling locations and techniques, and minimizing cross-contamination;
(8)
sampling methodologies, including bulk, surface (including
tape, swab, and vacuum sampling), and air sampling (including the differences
between culturable and particulate sampling, sampling times, calibrating pumps,
selecting media for culturable samples, and sampling for fungal volatile organic
compounds);
(9)
state-of-the-art work practices and new technologies;
(10)
proper documentation for reports, including field notes,
measurement data, photographs, structural diagrams, and chain-of-custody forms;
(11)
an overview of mold remediation projects and requirements,
including containment and air filtration; and
(12)
clearance testing and procedures, including review of
mold remediation protocols, work plans, visual inspections, and sampling strategies.
(c)
Assessment consultant training. The assessment consultant
course shall consist of at least 40 training hours that includes lectures,
demonstrations, audio-visuals and hands-on training, course review, and a
written test of 100 multiple-choice questions. The assessment consultant course
shall include:
(1)
all topics listed under subsection (b) of this section,
including appropriate hands-on activities;
(2)
requirements concerning workplace safety, including components
of and development of respiratory protection plans and programs, workplace
safety plans, and medical surveillance programs;
(3)
technical and legal considerations for mold assessment,
including applicable regulatory requirements, the role of the assessment consultant,
the roles of other professionals, recordkeeping and notification requirements,
insurance, and legal liabilities;
(4)
an overview of building construction, building sciences,
moisture control, and water intrusion events;
(5)
prevention of indoor air quality problems, including avoiding
design and construction defects and improving maintenance and housekeeping;
(6)
basics of HVAC systems and their relationship to indoor
air quality (including pyschrometrics, filtration, ventilation and humidity
control), HVAC inspection and assessment, and remediation of HVAC systems;
(7)
survey protocols for effective assessment, covering the
areas described under subsection (b)(5) - (8) of this section;
(8)
interpretation of data and sampling results;
(9)
interviewing building occupants, minimum requirements for
questionnaires, and interpreting results;
(10)
writing mold management plans and mold remediation protocols,
including format and contents (including structural components, HVAC systems,
and building contents), defining affected areas (including floor plans), identifying
and repairing moisture sources and their causes, developing a scope of work
analysis, specifying containment and air filtration strategies, determining
post-remediation assessment criteria, and clearance criteria;
(11)
post-remediation clearance testing and procedures, including
review of mold remediation plans, visual inspections, sampling strategies,
and quality assurance; and
(12)
case studies.
(d)
Remediation worker training. Remediation worker training
shall consist of at least four training hours that includes lectures, demonstrations,
audio-visuals, and hands-on training. The training shall include all course
information and material required under this subsection. An individual must
successfully complete worker training and submit an application for registration
as a mold remediation worker prior to performing any work on a mold remediation
project.
(1)
The training must be provided by either:
(A)
the licensed mold remediation contractor or company employing
the individual receiving the training; or
(B)
a mold training provider accredited by the department.
(2)
The principal instructor for the training must be either:
(A)
a licensed mold remediation contractor; or
(B)
an individual who is approved by the department under §295.319
of this title to teach mold-related courses.
(3)
The training shall adequately address the following areas
and shall include hands-on training in the areas described in subparagraphs
(C) and (E) - (F) of this paragraph:
(A)
sources of indoor mold and conditions necessary for indoor
mold growth;
(B)
potential health effects and symptoms from mold exposure,
in accordance with a training protocol developed in consultation with state
professional associations, including at least one representing physicians;
(C)
workplace hazards and safety, personal protective equipment
including respirators, personal hygiene, personal decontamination, confined
spaces, and water, structural, and electrical hazards;
(D)
technical and legal considerations for mold remediation,
including applicable regulatory requirements, the role of the worker, and
the roles of other professionals;
(E)
an overview of how mold remediation projects are conducted,
including containment and air filtration; and
(F)
work practices for removing, cleaning, and treating mold.
(4)
The person providing the training shall submit to the department,
within five working days of a training session:
(A)
the following items, on a form provided by the department:
(i)
the name, address, telephone number, and license number
of the person listed under paragraph (1) of this subsection who provided the
training;
(ii)
the date of the training;
(iii)
the printed name, address, telephone number, number identifier,
and signature of each individual who attended the training; and
(iv)
the printed name and signature of the principal instructor;
(B)
a group photo, taken at the end of the training, that identifies
each individual who attended the training. Digital or scanned images will
be accepted. The group photograph must be no smaller than a standard 3 1/2-inch
by 4 1/4-inch print; and
(C)
a statement indicating which individuals successfully completed
the training and which individuals did not.
(5)
The person providing the training shall provide the following
to each individual who successfully completes the training:
(A)
a training certificate. Each certificate must include:
(i)
the name, address, telephone number, and license number
of the person listed under paragraph (1) of this subsection who provided the
training;
(ii)
the date of the training;
(iii)
the name, address, telephone number and number identifier
of the individual;
(iv)
the printed name and signature of the principal instructor;
and
(v)
a statement that the individual successfully completed
the training;
(B)
a current one-inch square photo of the individual's face
on a white background, taken during the course, to be attached by the individual
to an application for registration; and
(C)
a copy of the registration application.
(6)
The person providing the training must maintain a file
for each training session that includes the date, the certificate numbers,
and the names, addresses, and telephone numbers of students receiving training
certificates. All information from the training must correspond to the information
on each certificate.
(e)
Remediation contractor training. The remediation contractor
course shall consist of at least 40 training hours that includes lectures,
demonstrations, audio-visuals and hands-on training, course review, and a
written test of 100 multiple-choice questions. The course requirements in
paragraphs (3) and (7)-(8) of this subsection require hands-on training as
an integral part of the training. The course shall adequately address:
(1)
sources of indoor mold and conditions necessary for indoor
mold growth;
(2)
potential health effects, in accordance with a training
protocol developed in consultation with state professional associations, including
at least one representing physicians;
(3)
requirements concerning workplace hazards and safety, personal
protective equipment including respirators, personal hygiene, personal decontamination,
confined spaces, and water, structural, and electrical hazards;
(4)
requirements concerning worker protection, including components
of and development of respiratory protection plans and programs, workplace
safety plans, and medical surveillance programs;
(5)
technical and legal considerations for mold remediation,
including applicable regulatory requirements, the role of the mold remediation
contractor, the role of the mold remediation worker, the roles of other professionals,
insurance, legal liabilities, and recordkeeping and notification requirements;
(6)
building sciences, moisture control, and water intrusion
events;
(7)
an overview of how mold remediation projects are conducted
and requirements thereof, including containment, and air filtration;
(8)
work practices for removing, cleaning, and treating mold,
including state-of-the-art work practices and new technologies;
(9)
development of a mold remediation work plan from a protocol,
including writing the work plan, detailing remediation techniques for the
building structure, HVAC system, and contents, delineating affected areas
from floor plans, developing appropriate containment designs, determining
HEPA air filtration requirements, and determining dehumidification requirements;
(10)
clearance testing and procedures, including a review of
typical clearance criteria, visual inspection of the work area prior to clearance,
and achieving clearance;
(11)
contract specifications, including estimating job costs
from a protocol and determining insurance and liability issues; and
(12)
protecting the public and building occupants from mold
exposures.
(f)
Refresher training. The refresher courses for mold assessment
technicians, mold assessment consultants, and mold remediation contractors
shall be at least eight training hours in length. Refresher training for mold
remediation workers shall be at least four training hours in length and shall
be provided by a person specified under subsection (d)(1) of this section.
Refresher training shall include a review of state regulations, state-of-the-art
developments, and key aspects of the initial training course. All individual
licensees and registrants shall receive refresher training every two years.
(g)
Course tests. Each training provider shall administer a
closed-book written test to students who have completed an initial or refresher
training course, except that no examination is required of students in remediation
worker training. The test for assessment technician training shall consist
of 50 multiple-choice questions, and the tests for assessment consultant training
and remediation contractor training shall consist of 100 multiple-choice questions.
Training providers may include demonstration testing as part of the test.
A student must answer correctly at least 80% of the questions to receive a
course-completion certificate. Training providers shall use tests provided
or approved by the department.
§295.321.Minimum Work Practices and Procedures for Mold Assessment.
(a)
Scope. These general work practices are minimum requirements
and do not constitute complete or sufficient specifications for mold assessment.
More detailed requirements developed by an assessment consultant for a particular
mold remediation project shall take precedence over the provisions of this
section.
(b)
Purpose. The purpose of a mold assessment is to determine
the sources, locations and extent of mold growth in a building, to determine
the condition(s) that caused the mold growth, and to enable the assessment
consultant to prepare a mold remediation protocol.
(c)
Personal protective equipment for assessors. If an assessment
consultant or company determines that personal protective equipment (PPE)
should be used during a mold assessment project, the assessment consultant
or company shall ensure that all employees who engage in assessment activities
and who will be, or are anticipated to be, exposed to mold are provided with,
fit tested for, and trained on the appropriate use and care of the specified
PPE. The assessment consultant or company must document successful completion
of the training before the employees perform regulated activities.
(d)
Sampling and data collection. If samples for laboratory
analysis are collected during the assessment:
(1)
sampling must be performed according to nationally accepted
methods;
(2)
preservation methods shall be implemented for all samples
where necessary;
(3)
proper sample documentation, including the sampling method,
the sample identification code, each location and material sampled, the date
collected, the name of the person who collected the samples, and the project
name or number must be recorded for each sample;
(4)
proper chain of custody procedures must be used; and
(5)
samples must be analyzed by a laboratory licensed under §295.317
of this title (relating to Mold Analysis Laboratory: Licensing Requirements).
(e)
Mold remediation protocol. An assessment consultant shall
prepare a mold remediation protocol for each project and provide the protocol
to the client before the remediation begins. The mold remediation protocol
must specify:
(1)
the rooms or areas where the work will be performed;
(2)
the estimated quantities of materials to be cleaned or
removed;
(3)
the methods to be used for each type of remediation in
each type of area;
(4)
the PPE to be used by remediators. A minimum of an N-95
respirator is recommended for all mold remediation projects. Using professional
judgment, a consultant may specify additional or more protective PPE if he
or she determines that it is warranted;
(5)
the proposed types of containment, as that term is defined
in §295.302(9) of this subchapter (relating to Definitions) and as described
in subsection (g) of this section, to be used during the project in each type
of area; and
(6)
the proposed clearance procedures and criteria, as described
in subsection (i) of this section, for each type of remediation in each type
of area.
(f)
Building occupants. A mold assessment consultant shall
consider whether to recommend to a client that, before remediation begins,
the client should inform building occupants of mold-related activities that
will disturb or will have the potential to disturb areas of mold contamination.
(g)
Containment requirements. Containment must be specified
in a mold remediation protocol when the mold contamination affects a total
surface area of 25 contiguous square feet or more for the project. Containment
is not required if no person who is not licensed or registered under this
subchapter occupies the building in which the remediation takes place at any
time between the start date and stop date for the project as specified on
the notification required under §295.325 of this title (relating to Notifications).
The containment specified in the remediation protocol must prevent the spread
of mold to areas of the building outside the containment under normal conditions
of use. If walk-in containment is used, supply and return air vents must be
blocked, and air pressure within the walk-in containment must be lower than
the pressure in building areas adjacent to the containment.
(h)
Disinfectants, biocides and antimicrobial coatings. An
assessment consultant who indicates in a remediation protocol that a disinfectant,
biocide, or antimicrobial coating will be used on a mold remediation project
shall indicate a specific product or brand only if it is registered by the
United States Environmental Protection Agency (EPA) for the intended use and
if the use is consistent with the manufacturer's labeling instructions. A
decision by an assessment consultant to use such products must take into account
the potential for occupant sensitivities and possible adverse reactions to
chemicals that have the potential to be off-gassed from surfaces coated with
such products.
(i)
Clearance procedures and criteria. In the remediation protocol
for the project, the assessment consultant shall specify:
(1)
at least one nationally recognized analytical method for
use within each remediated area in order to determine whether the mold contamination
identified for the project has been remediated as outlined in the remediation
protocol;
(2)
the criteria to be used for evaluating analytical results
to determine whether the remediation project passes clearance;
(3)
that post-remediation assessment shall be conducted while
walk-in containment is in place, if walk-in containment is specified for the
project; and
(4)
the procedures to be used in determining whether the underlying
cause of the mold identified for the project has been remediated so that it
is reasonably certain that the mold will not return from that same cause.
§295.322.Minimum Work Practices and Procedures for Mold Remediation.
(a)
Scope. These general work practices are minimum requirements
and do not constitute complete or sufficient specifications for a mold remediation
project. More detailed requirements developed by an assessment consultant
for a particular project shall take precedence over the provisions of this
section.
(b)
Remediation work plan. A remediation contractor shall prepare
a mold remediation work plan based on a mold remediation protocol and shall
provide the mold remediation work plan to the client before the mold remediation
begins.
(c)
Personal protective equipment (PPE) requirements. If an
assessment consultant specifies in the mold remediation protocol that PPE
is required for the project, the remediation contractor or company shall provide
the specified PPE to all employees who engage in remediation activities and
who will, or are anticipated to, disturb or remove mold contamination, when
the mold affects a total surface area for the project of 25 contiguous feet
or more. The recommended minimum PPE is an N-95 respirator. Each employee
who is provided PPE must receive training on the appropriate use and care
of the provided PPE. The remediation contractor or company must document successful
completion of the training before the employee performs regulated activities.
(d)
Containment requirements. The containment specified in
the remediation protocol must be used on a mold remediation project when the
mold affects a total surface area of 25 contiguous square feet or more for
the project. Containment is not required if no person who is not licensed
or registered under this subchapter occupies the building in which the remediation
takes place at any time between the start date and stop date for the project
as specified on the notification required under §295.325 of this title
(relating to Notifications). The containment, when constructed as described
in the remediation work plan and under normal conditions of use, must prevent
the spread of mold to areas outside the containment. If walk-in containment
is used, supply and return air vents must be blocked, and air pressure within
the walk-in containment must be lower than the pressure in building areas
adjacent to the containment.
(e)
Notice signs. Signs advising that a mold remediation project
is in progress shall be displayed at all entrances to remediation areas adjacent
to occupied areas of a building. The signs shall be at least eight (8) inches
by ten (10) inches in size and shall bear the words "NOTICE: Mold remediation
project in progress" in black on a yellow background. The text of the signs
must be legible from a distance of ten (10) feet.
(f)
Removal of containment. No person shall remove or dismantle
any walk-in containment structures or materials from a project site prior
to receipt by the licensed mold remediation contractor or remediation company
overseeing the project of a written notice from a licensed mold assessment
consultant that the project has achieved clearance as described under §295.324
of this title (relating to Post-Remediation Assessment and Clearance).
(g)
Disinfectants, biocides and antimicrobial coatings. Disinfectants,
biocides and antimicrobial coatings may be used only if their use is specified
in a mold remediation protocol, if they are registered by the United States
Environmental Protection Agency (EPA) for the intended use and if the use
is consistent with the manufacturer's labeling instructions. If a protocol
specifies the use of such a product but does not specify the brand or type
of product, a remediation contractor may select the brand or type of product
to be used, subject to the other provisions of this subsection. A decision
by an assessment consultant or remediation contractor to use such a product
must take into account the potential for occupant sensitivities and possible
adverse reactions to chemicals that have the potential to be off-gassed from
surfaces coated with the product. A person who applies a biocide to wood to
control a wood-infesting organism must be licensed by the Texas Structural
Pest Control Board as provided under the Texas Occupations Code, Chapter 1951
(relating to Structural Pest Control) unless exempt under the Texas Occupations
Code, Chapter 1951, Subchapter B (relating to Exemptions).
§295.323.Mold Remediation of Heating, Ventilation and Air Conditioning (HVAC) Systems.
(a)
All provisions of §295.321 of this title (relating
to Minimum Work Practices and Procedures for Mold Assessment) shall apply
to the assessment of mold in HVAC systems.
(b)
All provisions of §295.322 of this title (relating
to Minimum Work Practices and Procedures for Mold Remediation) shall apply
to the remediation of mold in HVAC systems.
(c)
Disinfectants, biocides and antimicrobial coatings. A licensee
under this subchapter may apply a disinfectant, biocide or antimicrobial coating
in an HVAC system only if its use is specified in a mold remediation protocol,
if it is registered by the EPA for the intended use and if the use is consistent
with the manufacturer's labeling instructions. The licensee shall apply the
product only after the building owner or manager has been provided a material
safety data sheet for the product, has agreed to the application, and has
notified building occupants in potentially affected areas prior to the application.
The licensee shall follow all manufacturer's label directions when using the
product.
(d)
Other license requirements. Persons who perform air conditioning
and refrigeration contracting (including the repair, maintenance, service,
or modification of equipment or a product in an environmental air conditioning
system, a commercial refrigeration system, or a process cooling or heating
system) must be licensed by the Texas Department of Licensing and Registration,
as provided under the Texas Occupations Code, Chapter 1302 (relating to Air
Conditioning and Refrigeration Contractors). A person who performs biomedical
remediation as defined under 16 TAC, §75.10(5) (relating to Definitions)
must be licensed by the Texas Department of Licensing and Regulation in accordance
with 16 TAC, Chapter 75 (relating to Air Conditioning and Refrigeration Contractor
License Law) unless exempt under 16 TAC, §75.30 (relating to Exemptions)
or 16 TAC, §75.100 (relating to Technical Requirements).
§295.324.Post-Remediation Assessment and Clearance.
(a)
Clearance criteria. For a remediation project to achieve
clearance, a licensed mold assessment consultant shall conduct a post-remediation
assessment using visual, procedural, and analytical methods. If walk-in containment
is used at a project site, the post-remediation assessment shall be conducted
while the walk-in containment is in place. The post-remediation assessment
shall determine whether:
(1)
the work area is free from all visible mold and wood rot;
and
(2)
all work has been completed in compliance with the remediation
protocol and remediation work plan and meets clearance criteria specified
in the protocol.
(b)
Underlying cause of mold. Post-remediation assessment shall,
to the extent feasible, determine that the underlying cause of the mold has
been remediated so that it is reasonably certain that the mold will not return
from that remediated cause.
(c)
Analytical methods.
(1)
The assessment consultant shall perform a visual, procedural,
and analytical evaluation in each remediated area in order to determine whether
the mold contamination identified for the project has been remediated as outlined
in the remediation protocol.
(2)
The consultant shall use only the analytical methods and
the criteria for evaluating analytical results that were specified in the
remediation protocol, unless circumstances beyond the control of the consultant
and the remediation contractor or company necessitate alternative analytical
methods or criteria. The consultant shall provide to the client written documentation
of the need for any deviation from the remediation protocol and the alternative
analytical methods and criteria selected, and shall obtain approval from the
client for their use, before proceeding with the post-remediation assessment.
(3)
Where visual inspection reveals deficiencies sufficient
to fail clearance, analytical methods need not be used.
(d)
Passed clearance report. An assessment consultant who determines
that remediation has been successful shall issue a written passed clearance
report to the client at the conclusion of each mold remediation project. The
report must include the following:
(1)
a description of relevant worksite observations;
(2)
the type and location of all measurements made and samples
collected at the worksite;
(3)
all data obtained at the worksite, including temperature,
humidity, and material moisture readings;
(4)
the results of analytical evaluation of the samples collected
at the worksite;
(5)
copies of all photographs the consultant took; and
(6)
a clear statement that the project has passed clearance.
(e)
Final status report. If the mold assessment consultant
determines that remediation has not been successful and ceases to be involved
with the project before the project passes clearance, the consultant shall
issue a written final status report to the client and to the remediation contractor
or company performing the project. The status report must include the items
listed in subsections (d)(1) - (5) of this section and any conclusions that
the consultant has drawn.
§295.325.Notifications.
(a)
General provision. A mold remediation contractor or company
shall notify the department of a mold remediation project when mold contamination
affects a total surface area of 25 contiguous square feet or more. Notification
shall be received by the department no less than five working days (not calendar
days) prior to the anticipated start date of the activity and shall be submitted
by United States Postal Service, commercial delivery service, hand-delivery,
electronic mail (E-mail), or facsimile on a form specified by the department.
The form must be filled out completely and properly. Blanks that do not apply
shall be marked "N/A". The designation of "N/A" will not be accepted for identification
of the work site, building description, building owner, individuals required
to be identified on the notification form, or start and stop dates. A signature
of the responsible person is required on each notification form. The contractor
or company shall retain a confirmation that the notification was received
by the department.
(b)
Start-date change to later date. When mold remediation
activity begins later than the date contained in the notice, the department
shall be notified by telephone as soon as possible but prior to the original
start date. A written amended notification is required immediately following
the telephone notification and shall be faxed or overnight mailed to the department.
(c)
Start-date change to earlier date. When mold remediation
activities begin on a date earlier than the date contained in the notice,
the department shall be provided with written notice of the new start date
at least five working days before the start of work unless the provisions
of subsection (e) of this section apply. The licensee shall confirm that the
notice is received five working days before the start of work.
(d)
Start-date/stop-date (completion date) requirement. In
no event shall mold remediation begin or be completed on a date other than
the date contained in the written notice except for operations covered under
subsection (e) of this section. Amendments to start date changes must be submitted
as required in subsections (b) and (c) of this section. An amendment is required
for any stop dates that change by more than one workday for each week (seven
calendar day period). The contractor or company shall provide schedule changes
to the department no less than 24 hours prior to the new stop date. Changes
less than five days in advance shall be confirmed with the appropriate department
regional office by telephone, facsimile, or e-mail and followed up in writing
to the department's central office at 1100 West 49th Street, Austin, Texas,
78756.
(e)
Provision for emergency. In an emergency, notification
to the department shall be made as soon as practicable but not later than
the following business day after the license holder identifies the emergency.
Initial notification shall be made to the department's central office either
immediately by telephone, followed by formal notification on the department's
notification form, or immediately by facsimile on the department's notification
form. The contractor or company shall retain a confirmation that the notification
was received by the department. Emergencies shall be documented. An emergency
exists if a delay in mold remediation services in response to a water damage
occurrence would increase mold contamination.
(f)
Notification fees.
(1)
For each initial notification of a mold remediation project,
the mold remediation contractor or company shall remit to the department a
fee of $100, except that the fee shall be $25 for a remediation project in
an owner-occupied residential dwelling unit. Amendments to a notification
shall not require a separate fee.
(2)
The department shall send an invoice for the required fee
to the contractor or company after the department has received the notification.
Payment must be remitted in the manner instructed on the invoice no later
than 60 working days following the date on the notification invoice. Failure
to pay the required fee after an invoice has been sent is a violation, and
the department may seek administrative penalties as listed in §295.331
of this title (relating to Compliance: Administrative Penalty).
§295.326.Recordkeeping.
(a)
Record retention. Records and documents required by this
section shall be retained for a period of three years from the date of project
completion unless otherwise stated. Such records and documents shall be made
available for inspection by the department or any law enforcement agency immediately
upon request. Licensees and accredited training providers who cease to do
business shall notify the department in writing 30 days prior to such event
to advise how they will maintain all records during the minimum three-year
retention period. The department, upon receipt of such notification and at
its option, may provide instructions for how the records shall be maintained
during the required retention period. A licensee or accredited person shall
notify the department that it has complied with the department's instructions
within 30 days of their receipt or make other arrangements approved by the
department. Failure to comply may result in disciplinary action.
(b)
Mold remediation companies and contractors. A licensed
mold remediation company shall maintain the records listed in paragraphs (1)
and (2) of this subsection for each mold remediation project performed by
the company and the records listed in paragraph (3) of this subsection for
each remediation worker training session provided by the company. A licensed
mold remediation contractor not employed by a company shall personally maintain
the records listed in paragraphs (1) and (2) of this subsection for each mold
remediation project performed by the contractor and the records listed in
paragraph (3) of this subsection for each remediation worker training session
provided by the mold remediation contractor.
(1)
A licensed mold remediation contractor shall maintain the
following records and documents on-site at a project for its duration:
(A)
a current copy of the mold remediation work plan and all
mold remediation protocols used in the preparation of the work plan; and
(B)
a listing of the names and license/registration numbers
of all individuals working on the remediation project.
(2)
A licensed mold remediation company shall maintain the
following records and documents at a central location at its Texas office
for three years following the stop date of each project that the company performs.
A licensed mold remediation contractor not employed by a company shall maintain
the following records and documents at a central location at his or her Texas
office for three years following the stop date of each project that the contractor
performs:
(A)
a copy of the mold remediation work plan specified under
subparagraph (1)(A) of this subsection;
(B)
photographs of the scene of the mold remediation taken
before and after the remediation;
(C)
the written contract between the mold remediation company
or remediation contractor and the client, and any written contracts related
to the mold remediation project between the company or contractor and any
other party;
(D)
all invoices issued regarding the mold remediation; and
(E)
copies of all certificates of mold remediation issued by
the company or contractor.
(3)
A remediation contractor or company may maintain the records
required under paragraphs (1) and (2) of this subsection in an electronic
format rather than as paper documents. A remediation contractor or company
who maintains the required records in an electronic format must provide paper
copies of records to a department inspector during an inspection if requested
to do so by the inspector.
(4)
A licensed mold remediation contractor or remediation company
who trains employees to meet the requirements under §295.320(d) of this
title (relating to Training: Required Mold Training Courses) shall maintain
copies of the required training documents at a central location at its Texas
office.
(c)
Mold assessment companies and consultants.
(1)
A licensed mold assessment company shall maintain the following
records and documents at a central location at its Texas office for the time
period required under paragraph (2) of this subsection for each project that
the company performs. A licensed mold assessment consultant not employed by
a company shall maintain the following records and documents at a central
location at his or her Texas office for the time period required under paragraph
(2) of this subsection for each project that the contractor performs:
(A)
the name and mold certificate number of each of its employees
who worked on the project and a description of each employee's involvement
with the project;
(B)
the written contract between the mold assessment company
or consultant and the client;
(C)
all invoices issued regarding the mold assessment;
(D)
copies of all laboratory reports and sample analyses;
(E)
copies of all photographs required under §295.324
of this title (relating to Post-Remediation Assessment and Clearance);
(F)
copies of all mold remediation protocols and changes prepared
as a result of mold assessment activities; and
(G)
copies of all passed clearance reports issued by the company
or consultant.
(2)
For each project, a licensed mold assessment company or
consultant shall maintain all the records listed in paragraph (1) of this
subsection until:
(A)
the company or consultant issues a mold assessment report,
management plan, or remediation protocol to a client, if the company or consultant
performs only the initial assessment for the project;
(B)
the company or consultant issues the final status report
to the client, if a final status report is issued; or
(C)
the company or consultant provides the signed certificate
of mold remediation to a mold remediation contractor or company, if a certificate
of mold remediation is provided.
(d)
Mold analysis laboratories. A licensed mold analysis laboratory
shall maintain copies of the results, including the sample identification
number, of all analyses performed as part of a mold assessment or mold remediation
for three years from the date of the sample analysis.
(e)
Training providers. Accredited training providers shall
comply with the following record-keeping requirements. The training provider
shall maintain the records in a manner that allows verification of the required
information by the department.
(1)
Training records. The training provider shall maintain
records for at least three years from the date of the class in accordance
with §295.318(f)(8) and (9) of this title (relating to Mold Training
Provider: Accreditation).
(2)
A training provider may maintain the records required under
paragraph (1) of this subsection in an electronic format rather than as paper
documents. A training provider who maintains the required records in an electronic
format must provide paper copies of records to a department inspector during
an inspection if requested to do so by the inspector.
§295.330.Compliance: Reprimand, Suspension, Revocation, Probation.
(a)
After notice of the opportunity for a hearing in accordance
with subsection (d) of this section, the department may take any of the disciplinary
actions outlined in subsection (c) of this section. If the department suspends
a credential on an emergency basis, the department shall provide an opportunity
for a hearing in accordance with subsection (d) of this section within 20
days.
(b)
A person who is denied a credential for failure to meet
the qualifications under this subchapter is ineligible to reapply until all
qualifications are met. A suspension shall be for a period of not more than
two years. A person whose application or credential has been revoked shall
be ineligible to reapply for any mold-related credential for up to three years.
(c)
The department may issue an administrative penalty as described
in §295.331 of this title (relating to Compliance: Administrative Penalty),
deny an application, suspend, suspend on an emergency basis, suspend with
probationary terms, or revoke a credential of a person who:
(1)
fails to comply with this subchapter;
(2)
has fraudulently or deceptively obtained or attempted to
obtain the credential, ID card or approval, including engaging in misconduct
or dishonesty during the state licensing examination, such as cheating or
having another person take or attempt to take the examination for that person;
(3)
duplicates or allows another person to duplicate a credential,
ID card or approval;
(4)
uses a credential issued to another person or allows any
other person to use a credential, ID card or approval not issued to that other
person;
(5)
falsifies records for mold-related activities that the
department requires the person to create, submit, or maintain; or
(6)
is convicted of a felony or misdemeanor arising from mold-related
activity.
(d)
The contested-case hearing provisions of the Administrative
Procedure Act (Texas Government Code, Chapter 2001) and the formal hearing
procedures of the department in Chapter 1 of this title shall apply to any
enforcement action under this section. A person charged with a violation shall
be notified of the alleged violation, the grounds upon which any disciplinary
action is based, the proposed penalty, and the opportunity to request a hearing.
§295.331.Compliance: Administrative Penalty.
(a)
If a person violates the Act, this subchapter or an order,
the department may assess an administrative penalty.
(b)
The penalty shall not exceed $5,000 per violation except
as indicated. Each day a violation continues will be considered a separate
violation for violations listed in subsections (d)(1)(A) - (B) and (d)(2)(A)
- (B) of this section. The department may reduce or enhance penalties as warranted.
(c)
In assessing administrative penalties, including reductions
or enhancements, the department shall consider:
(1)
whether the violation was committed knowingly, intentionally,
or fraudulently;
(2)
the seriousness of the violation;
(3)
any hazard created to the public health and safety;
(4)
the person's history of previous violations; and
(5)
any other matter that justice may require, including demonstrated
good faith.
(d)
Violations shall be placed in one of the following severity
levels.
(1)
Critical violation. Severity Level I violations have or
may have a direct negative impact on public health, safety, or welfare. This
category includes fraud and misrepresentation. The penalty for a Level I violation
may be up to $5,000 per violation. Violations listed in subparagraphs (A)
and (B) of this paragraph may be assessed at up to $5,000 per violation per
day. Examples include but are not limited to:
(A)
working without a valid credential, ID card or approval
or with a credential or ID card that has been expired for more than one month;
(B)
engaging in a conflict of interest as described in §295.307(a)(1)
and (2) of this title (relating to Conflict of Interest);
(C)
engaging in misconduct or dishonesty during the state licensing
examination;
(D)
submitting a forged or altered training certificate;
(E)
offering training required under this subchapter without
valid department approval of the course, instructor(s) or guest speaker(s),
except as provided under §295.320(d)(1)(A) of this subchapter (relating
to Training: Required Mold Training Courses);
(F)
providing training certificates for a course required by
the department to persons who have not successfully completed the course;
(G)
failing to meet the insurance requirements of §295.309
of this title (relating to Licensing: Insurance Requirements);
(H)
failure of an assessment consultant to specify containment
in a mold remediation protocol; and
(I)
failure of a remediator to use the containment specified
in the mold remediation protocol for the project.
(2)
Serious violation. Severity Level II violations could compromise
public health, safety, or welfare. The maximum penalty for Level II violations
is $2,500 per violation. Violations listed in subparagraphs (A) and (B) of
this paragraph may be assessed at up to $2,500 per violation per day. Examples
include but are not limited to:
(A)
working with a credential or ID card that has been expired
for one month or less;
(B)
failing to disclose an ownership interest as required in §295.307(b)
of this title;
(C)
failing to submit a timely notification;
(D)
failure to conduct a training course as specified under §295.320
of this title (relating to Training: Required Mold Training Courses); and
(E)
failure of a credentialed person to maintain current required
training.
(3)
Significant violation. Severity Level III violations, while
not having a direct negative impact on health, safety, or welfare, could lead
to more serious circumstances. The maximum penalty for Level III violations
is $1,000 per violation. Examples include but are not limited to:
(A)
failure to provide the department Consumer Mold Information
Sheet as required under §295.306 of this title (relating to Credentials:
General Responsibilities);
(B)
failure to have a department-issued identification card
at a job site;
(C)
submitting an incorrect or improper notification;
(D)
failure of a training provider to submit information to
the department regarding training course schedules or to notify the department
of cancellations within the specified time periods;
(E)
failure of a training provider to submit course completion
information within the time period specified in §295.319(f)(7) of this
title (relating to Mold Training Provider: Accreditation);
(F)
failure of a remediation company, remediation contractor,
or training provider to submit worker training information within the time
period specified in §295.320(d) of this title (relating to Mold Training
Provider: Accreditation); and
(G)
failure of a training provider to maintain the required
trainee-instructor ratio in a training course.
§295.333.Compliance: Notice; Opportunity for Hearing; Order.
(a)
The commissioner shall impose an administrative penalty
under this subchapter only after a person is given written notice of the opportunity
for a hearing conducted in accordance with the Administrative Procedure Act
(Texas Government Code, Chapter 2001) and the department's formal hearing
procedures in Chapter 1 of this title.
(b)
The written notice of violation must state the facts that
constitute the alleged violation, the law or rule that has been violated,
the proposed penalty, and the opportunity for a hearing.
(c)
If a hearing is held, the commissioner shall make findings
of fact and issue a written decision as to the occurrence of the violation
and the amount of any penalty that is warranted.
(d)
If a person fails to exercise the opportunity for a hearing,
the commissioner, after determining that a violation occurred and the amount
of penalty warranted, is authorized to impose a penalty and issue an order
requiring the person to pay.
(e)
Not later than the 30th day after the date the commissioner
issues an order, the commissioner shall inform the person of the amount of
any penalty imposed.
(f)
The commissioner is authorized to consolidate a hearing
under this section with another proceeding.
§295.334.Compliance: Options Following Administrative Order.
(a)
Not later than the 30th day after the date the commissioner's
decision or order concerning an administrative penalty assessed under §295.331
of this title (relating to Compliance: Administrative Penalty) becomes final
as provided by the Texas Government Code, Chapter 2001, §2001.144, (relating
to Decisions; When Final) to the person against whom the penalty is assessed
either shall pay the administrative penalty or shall file a petition for judicial
review.
(b)
A person who files a petition for judicial review can stay
enforcement of the penalty either by paying the penalty to the commissioner
for placement in an escrow account or by giving the commissioner a bond, in
a form approved by the commissioner, that is for the amount of the penalty
and that is effective until judicial review of the commissioner's decision
or order is final.
§295.338.Civil Liability Exemption for Certain Property Owners or Governmental Entities.
(a)
A property owner is not liable for damages related to mold
remediation on a property if a certificate of mold remediation has been issued
under §295.327 of this title (relating to Photographs; Certificate of
Mold Remediation; Duty of Property Owner) for that property and the damages
accrued on or before the date of the issuance of the certificate.
(b)
A person is not liable in a civil lawsuit for damages related
to a decision to allow occupancy of a property after mold remediation has
been performed on the property if a certificate of mold remediation has been
issued under §295.327 of this title for the property, the property is
owned or occupied by a governmental entity, including a school, and the decision
was made by the owner, the occupier, or any person authorized by the owner
or occupier to make the decision.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 26, 2004.
TRD-200402751
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: May 16, 2004
Proposal publication date: January 30, 2004
For further information, please call: (512) 458-7236