Justification for Adoption of Administrative Rules

Mold Assessors and Remediators
16 TAC Chapter 78, amendments at §§78.58, 78.60, 78.62, 78.64, 78.70, 78.74, 78.80, 78.120, 78.130 and 78.150

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code, Chapter 78, §§78.58, 78.60, 78.62, 78.64, 78.70, 78.74, 78.80, 78.120, 78.130 and 78.150, regarding the Mold Assessors and Remediators program, without changes to the proposed text as published in the April 20, 2018, issue of the Texas Register (43 TexReg 2327). The rules will not be republished.

The adopted rules implement House Bill 4007, 85th Legislature, Regular Session (2017), for the Mold Assessors and Remediators program, which allows the remediation contractor to provide the required photos of the remediation area to the property owner within ten days (formerly seven) after remediation. Additional changes are also made to the records retention policy and to continue to require a mycologist or microbiologist to oversee a mold analysis laboratory. The adopted rules are necessary to implement H.B. 4007 and to clarify and simply existing rules.

The adopted amendment to §78.58 corrects a cross reference.

The adopted amendments to §78.60 remove the requirement for records to be kept at a Texas office. The amendments also correct a cross reference.

The adopted amendments to §78.62 correct the rule to restore the longstanding requirement for oversight of mold analysis activity in all licensed laboratories.

The adopted amendments to §78.64 require applicants for training provider accreditation to identify their designated responsible persons consistent with longstanding practice interpreting §78.10(38) and with the same requirement imposed on licensed entities. The amendments also make editorial corrections.

The adopted amendment to §78.70 removes the requirement for records to be kept at a Texas office and work site locations.

The adopted amendments to §78.74 clarify and simplify the records retention requirements regarding the Mold Assessors and Remediators program. On-site record requirements are removed unmodified and placed in §78.120.

The adopted amendments to §78.80 remove unnecessary redundant language.

The adopted amendments to §78.120 insert unmodified on-site record requirements formerly located in §78.74 and make editorial corrections.

The adopted amendment to §78.130 corrects a cross reference.

The adopted amendment to §78.150 implements H.B. 4007 by increasing the time period during which a licensed mold remediation contractor or company must provide the property owner with required photographs.

The Texas Department of Licensing and Regulation (Department) drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the April 20, 2018, issue of the Texas Register (43 TexReg 2327). The deadline for public comment was May 21, 2018. The Department received four comments during the 30-day public comment period. The public comments received are summarized below.

Comment--One commenter recommends that the provisions in §78.62(c)(4) regarding qualifications of persons analyzing mold samples should be amended. The commenter suggests that persons analyzing mold samples should be required to have training in mold analysis or have at least three years of experience as a mold microscopist, but should not be required to have both. The commenter compares the qualifications to those in §78.62(c)(5) for the person overseeing mold analysis activity at the laboratory, who is required to have “an advanced academic degree or at least two years of experience in mold analysis.”

Department Response --The requirements in §78.62(c)(4) for persons analyzing mold samples have been renumbered but no change has been made to the required qualifications, which include a bachelor’s degree in microbiology or biology, training, and experience. The requirements for the qualifications of the mycologist or microbiologist overseeing mold analysis activity likewise are unchanged, but through the amendment are again made applicable to all laboratories seeking a mold analysis license. The Department has not yet clarified the rule to specify that the full-time mycologist or microbiologist must have an advanced academic degree, but this characteristic is commonly required in the industry for persons overseeing mold analysis laboratories. In keeping with industry minimums, the rule may be amended in the future to clarify that the person overseeing mold analysis activity at the laboratory must have both an advanced academic degree and at least two years of experience in mold analysis. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter recommends that the Pan American Aerobiology Certified Spore Analyst Level 1 credential be accepted as proof of competency for persons analyzing mold samples.

Department Response --The Department agrees that the rules provide for the approval of additional mold analysis training programs for persons analyzing mold samples. To date the Department has not received a request to evaluate other programs for equivalency to the training provided by the McCrone Research Institute specified in the rule, and therefore has not made any such determinations. A review of current requirements and practices, and comparability to other training programs, would be necessary to approve other training programs. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter observes that the requirements in §78.62(c)(4) for persons who analyze mold samples exclude industrial hygienists and engineers with bachelor of science degrees who have many years of experience from qualifying to read mold samples and tape lifts, including doing so in the field. The commenter notes that these individuals may read and sign mold sample results in New Mexico and in Mexico, and the rule should be amended to allow them to analyze mold samples in Texas. The commenter suggests that persons analyzing mold samples should be required to fulfill the requirement for a bachelor’s degree or have the training and experience currently required, but all three qualifications should not be required.

Department Response --The requirements in §78.62(c)(4) for persons analyzing mold samples have been renumbered but no change has been made to the required qualifications. Therefore, the comments are outside the scope of this rulemaking. However; the Department is aware that the qualifications for various credentials in the mold program are in need of review and possible revision and invites stakeholders to provide input in that effort. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter recommends that the rule regarding personal protective equipment and containment requirements for mold remediation, §78.120, be amended to clarify that the remediation contractor must follow the remediation protocol for projects of less than 25 contiguous square feet.

Department Response --The noted rule sections have been renumbered but changes to the remediation requirements have not been proposed; therefore, the suggested changes are outside of the scope of this rulemaking. However, the Department agrees that the applicability of the rule should be clarified. The mold statute, Occupations Code Chapter 1958, is clear that a license is not required to perform mold remediation when the mold contamination affects a total surface area for the project of less than 25 contiguous square feet. The statue does not specify, however; whether a licensee performing such a remediation may do so without following the requirements of the mold statue and rules, as an unlicensed person could. The “Minimum Area Exemption” FAQ on the Department’s mold website explains that licensees are never excused from the applicable requirements of the statue and rules, even when performing a remediation project where the mold contamination affects a total surface area of less than 25 contiguous square feet. At the time the rule was originally written the expectation was that these small projects would rarely be performed by licensees working under the mold rules, such that the rules’ remediation requirements would seldom apply to these projects. This has proven to be true. The rule applicability was not changed when the mold program moved from the Department of State Health Services to the Department, but will be clarified by the Department in the future. The Department did not make any changes to the rules in response to this comment.

At its meeting held on July 20, 2018, the Commission adopted the proposed rules without changes as recommended by the Department.

The amendments are adopted under Texas Occupations Code, Chapters 51 and 1958, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51 and 1958. No other statutes, articles, or codes are affected by the adoption.

§78.58. Mold Remediation Contractor License.

(a) Licensing requirements. An individual must be licensed as a mold remediation contractor to perform activities listed under subsection (b). A licensed mold remediation contractor who employs more than one individual required to be licensed under this section or required to be registered under §78.56 must be separately licensed as a mold remediation company under §78.60.

(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 activities 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), including any of the activities of a registered mold remediation worker under §78.56.

(c) Qualifications. An applicant for a mold remediation contractor license must meet at least one of the following education and/or experience requirements:

(1) a bachelor's or graduate 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;

(2) 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;

(3) a high school diploma or GED certificate, plus at least five years of experience in an allied field or as a general contractor in building construction; or

(4) 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.

(d) Eligibility for licensing. To obtain a mold remediation contractor license, a person must:

(1) be at least 18 years old at the time of application;

(2) successfully pass a criminal history background check;

(3) comply with subsection (c);

(4) comply with the requirement for insurance coverage under §78.40;

(5) successfully complete a mold training course as described in §78.68(e);

(6) pass the required licensing examination prescribed under §78.24; and

(7) pay the fee required under §78.80.

(e) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) verifiable evidence that the applicant meets the requirement in subsection (c); and

(3) a copy of a course completion certificate for the applicable training course offered by a department-accredited training provider, as described in §78.68(e).

(f) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, a licensed mold remediation contractor shall:

(1) supervise mold remediation workers as defined in §78.10(42). When supervising mold remediation workers, the licensee must:

(A) be physically present at the mold remediation project; or

(B) be accessible by telephone within ten minutes and able to be at the project within one hour of being contacted;

(2) ensure that all employees who will perform mold remediation activities are provided with, fit tested for, and trained in the correct use of personal protective equipment appropriate for the activities to be performed;

(3) ensure that all supervised persons performing mold remediation activities are licensed or registered under this chapter;

(4) ensure that the training and license or registration of each individual who is required to be licensed or registered to perform mold remediation activities under this chapter is current;

(5) comply with the requirements under §78.64(f)(2)-(3), (5)-(9), and (11) if the licensee provides mold remediation worker training as authorized in §78.68(d);

(6) maintain copies of the required training documents in accordance with §78.74(b)(2) if providing mold remediation worker training as authorized in §78.68(d);

(7) accurately interpret field notes, drawings, and reports relating to mold assessments;

(8) inquire of the client whether any known or suspected hazardous materials, including lead-based paint and asbestos, are present in the project area;

(9) advise clients about options for mold remediation;

(10) comply 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;

(11) properly prepare each mold remediation work plan that the mold remediation contractor prepared by:

(A) signing and dating the cover page;

(B) including the license number and license expiration date on the cover page; and

(C) initialing the work plan on every page that addresses the scope of work and on all drawings related to the remediation work;

(12) provide to each client a mold remediation work plan for the project at least one calendar day before the mold remediation preparation work begins;

(13) submit the required notification to the department as described in §78.110, unless employed by a licensed mold remediation company; and

(14) provide to the property owner a completed Certificate of Mold Damage Remediation as specified under §78.150.

§78.60. Mold Remediation Company License .

(a) Licensing requirements. A person performing mold remediation activities must be licensed as a mold remediation company if the person employs more than one individual required to be registered under §78.56 or licensed under §78.58. 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 chapter to assist in the company's mold remediation activity.

(b) Authorization and conditions. A licensed mold remediation company shall:

(1) designate one or more individuals licensed as mold remediation contractors as its responsible person(s);

(2) notify the department in writing of any changes in individual licensed mold remediation contractors as responsible persons within 30 calendar days following the change of the responsible person; and

(3) perform mold remediation activity only during periods with the active employment of at least one individual licensed mold remediation contractor designated as the responsible person for the company;

(4) not transfer the license to any other person, including to any company that has bought the licensed entity;

(5) apply for a name change on the license within 30 calendar days after a change in name only; and

(6) obtain a new license before performing any mold-related activities when the transfer of a licensed person occurs.

(c) Eligibility for licensing. To be eligible for licensing, a person must employ at least one licensed mold remediation contractor. To obtain a mold remediation company license, a person must:

(1) comply with the requirement for insurance coverage under §78.40; and

(2) pay the fee required under §78.80.

(d) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) the name, address, and occupation of each person that has an ownership interest of 10% or more in the applicant; 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 of §78.70 and all other applicable responsibilities in this chapter, a licensed mold remediation company shall:

(1) ensure that all employees who will perform mold remediation activities are provided with, fit tested for, and trained in the correct use of personal protective equipment appropriate for the activities to be performed;

(2) ensure that each person performing mold remediation activities is licensed or registered in accordance with this chapter, as applicable;

(3) ensure that the training and license or registration of each individual who is required to be licensed or registered to perform mold remediation activities under this chapter are current;

(4) comply with the requirements under §78.64(f)(2)-(3), (5)-(9), and (11) if the licensee provides mold remediation worker training as authorized in §78.68(d);

(5) maintain copies of the required training documents in accordance with §78.74(b)(2) if providing mold remediation worker training as authorized in §78.68(d);

(6) provide to each client a mold remediation work plan for the project at least one calendar day before the mold remediation preparation work begins;

(7) submit the required notification to the department as described in §78.110; and

(8) provide to the property owner a completed Certificate of Mold Damage Remediation as specified under §78.150.

§78.62. Mold Analysis Laboratory License .

(a) Licensing requirement. A person must be licensed in compliance with the provisions of this section to engage in activities listed under subsection (b). A person licensed under this section is not required to be separately licensed under §78.54.

(1) Branch offices that perform mold analysis must fulfill the same equipment and operational standards as the main office that has been licensed and must comply with subsection (c) for the types of analysis they will be performing.

(2) A licensed mold analysis laboratory shall:

(A) designate one or more individuals as responsible persons;

(B) not transfer the license to any other person, including to any company that has bought the licensed entity;

(C) apply for a name change on the license within 30 calendar days after a change in name only; and

(D) obtain a new license before performing any mold-related activities when the transfer of a licensed person occurs.

(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; and

(3) obtain any other information that the laboratory deems useful.

(c) Qualifications. A person must submit documentation showing that:

(1) the laboratory is accredited by the American Industrial Hygiene Association under the Environmental Microbiology Laboratory Accreditation Program (EMLAP); or

(2) the laboratory is accredited or certified by a program deemed equivalent by the department for the preparation and analysis of mold; or

(3) all individuals who will analyze mold samples are certified 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

(4) all individuals who will analyze mold samples:

(A) have at least a bachelor's degree in microbiology or biology;

(B) 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

(C) have a least three years of experience as a mold microscopist

(5) mold analysis activity at the laboratory is overseen by a full-time mycologist or microbiologist with:

(A) an advanced academic degree; or

(B) at least two years of experience in mold analysis.

(d) Eligibility for licensing. To obtain a mold analysis laboratory license, a person must:

(1) comply with subsection (c);

(2) comply with the requirement for insurance coverage under §78.40; and

(3) pay the fee required under §78.80.

(e) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) proof of compliance with the insurance requirement for licensees specified in §78.40;

(2) evidence acceptable to the department that the laboratory meets one of the qualification requirements under subsection (c);

(3) the name, address, and occupation of each person that has an ownership interest of 10% or more in the laboratory; and

(4) the name of each individual designated by the applicant as a responsible person.

(f) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, the mold analysis laboratory shall:

(1) provide 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;

(2) provide the department-issued license number of the laboratory on its analysis reports;

(3) ensure that all individuals who will conduct mold analysis are properly trained in analysis techniques; and

(4) maintain accreditation or certification required under subsection (c). A licensed mold assessment laboratory that loses the required accreditation or certification must:

(A) provide to the department written notification of a change in accreditation or certification status within 30 calendar days after the change; and

(B) cease providing services until the accreditation or certification is reinstated or it otherwise comes into compliance with subsection (c).

§78.64. 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) Accredited training providers:

(A) may not transfer the accreditation to any other person, including to any company that has bought the accredited entity; and

(B) must apply for a name change within 30 calendar days after a change in the name of the accredited entity only.

(2) A person must obtain accreditation before providing training when the transfer of an accredited person occurs.

(3) A person shall not advertise, offer, or provide a training course for fulfillment of requirements for a license or renewal of a license under this chapter unless the department or the department's designee has approved the course under §78.66.

(A) 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.

(B) Accredited training providers shall use only approved instructors for mold remediation worker training courses.

(4) Accredited training providers must offer approved courses as described below.

(A) Each training course shall address only one license type and shall not be combined with other areas of licensure. Initial training courses shall not be combined with continuing education courses. This prohibition against combined training applies to hands-on training sessions as well as other aspects of the course.

(B) Training providers shall conduct each course in one language throughout and a course shall not be 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.

(C) Accredited mold training providers are authorized to offer:

(i) a mold assessment technician or mold assessment consultant training course to persons applying for a mold assessment technician license; and

(ii) a mold assessment technician or mold assessment consultant continuing education training course to persons renewing a mold assessment technician license.

(5) Training providers shall not conduct any approved course for more than eight training hours (including hands-on portions) in a calendar day.

(6) A training provider must require instructors and guest speakers to present in person during 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 videos, but audiovisual materials shall not be used as substitutes for the required in-person presentations or the hands-on instruction.

(7) 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.

(8) 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.

(9) Accredited training providers shall conduct approved training courses in facilities acceptable as classrooms and conducive to learning. The facilities must have restrooms available for the students.

(10) Course instructors shall maintain an 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.

(11) An accredited training provider shall verify and keep a written record of the student scores on each course test.

(A) The training provider shall have a written policy concerning the administration of tests, including allowing only one re-test per student for each course.

(B) The use of the same questions for both the original and re-test is prohibited.

(C) Oral course 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.

(D) If a student fails the re-test, the student must repeat the course and pass a new test.

(12) An individual instructor shall not train himself/herself to qualify for a license or a registration.

(c) Qualifications. To qualify for an accreditation, a training provider must:

(1) have a written policy concerning refunds and cancellations including cancellation procedures in all languages in which training is offered;

(2) provide the refund and cancellation policy to students before payment of fees;

(3) designate one or more individuals as responsible persons;

(4) employ a mold training manager who meets at least one of the following requirements in (A), (B), or (C):

(A) at least two years of experience, education, or training in teaching adults;

(B) a bachelor's or graduate degree in building construction technology, engineering, industrial hygiene, safety, public health, education, or business administration or program management;

(C) at least two years of experience in managing an occupational health and safety training program specializing in environmental hazards; and

(D) has demonstrated experience, education, or training in mold assessment or remediation, lead or asbestos abatement, occupational safety and health, or industrial hygiene;

(5) provide for each course a qualified principal instructor who is:

(A) approved by the training provider; and

(B) meets the requirements under §78.66; and

(6) 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) Eligibility for accreditation. To obtain a mold training provider accreditation, a person must:

(1) comply with subsection (c); and

(2) pay the fee required under §78.80.

(e) Applications. Unless otherwise indicated, an applicant must submit all required information and documentation on department-approved forms or in a manner specified by the department. In addition to fulfilling the requirements in §78.21, an applicant must submit the following required documentation:

(1) the name, address, and occupation of each person that has an ownership interest of 10% or more in the applicant;

(2) a complete application for approval of at least one training course; and

(3) a description of the training provider's organization, including:

(A) the address of its central office;

(B) the names and business addresses of its principals;

(C) the name of each individual designated by the applicant as a responsible person;

(D) a statement of any affiliation with other mold-related companies doing business in Texas;

(E) a listing of the courses to be offered; and

(F) the identity of the qualified staff member designated as the mold training manager.

(f) Responsibilities. In addition to the requirements of §78.70 and all other applicable responsibilities in this chapter, an accredited mold training provider shall:

(1) present to students all course information and material approved by the department;

(2) furnish appropriate equipment in good working order and in sufficient quantities for each training session in which equipment is required;

(3) maintain 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 §78.68;

(4) maintain the validity and integrity of each course test to ensure that it accurately evaluates the student's knowledge and retention of the course topics;

(5) at the conclusion of each training course, provide to each student who successfully completes the course and passes the required course test, if applicable:

(A) a course completion certificate as described in §78.66(c); and

(B) information regarding the state application and examination process, as applicable;

(6) submit to the department within seven calendar days after the completion date of each course the names and number identifiers of each student who attended the course, on a department-approved form or in a manner specified by the department;

(7) make all records required under this section available for inspection by the department or the department's designee immediately upon conclusion of a course and the course test;

(8) document that each person who receives a certificate has successfully completed a training course in accordance with §78.68 and has achieved a passing score on the written test, if applicable;

(9) for each mold training course for a license or registration, maintain a file that includes:

(A) the training course name;

(B) the date the course was provided;

(C) the subject area of the course taught;

(D) the names of all instructors and guest speakers who taught the course;

(E) a roster of all students in the course;

(F) the names of students receiving certificates;

(G) the certificate numbers; and

(H) the expiration date of the training, if applicable; and

(10) for each training course for a mold license, maintain in the file:

(A) a copy of the course test;

(B) each student's identified, graded answer sheet;

(C) the date and location where the test was administered; and

(D) the name of the test proctor; and

(11) ensure that all information from the training course and course test, if applicable, corresponds to the information on each person's course completion certificate.

(g) Inspections and audits. The department or its representative or designee may audit any training course. Training providers shall permit the department or its representatives or designees to attend, evaluate, and monitor any training course, without charge or advance notice, to ensure compliance with this chapter.

§78.70. Responsibilities of Credentialed Persons.

(a) Persons who are licensed, registered, or accredited under this chapter shall, as applicable:

(1) adhere to the code of ethics prescribed by §78.72;

(2) comply with work practices and procedures of this chapter;

(3) present to the department or the department's representative upon request any identification card, credential, or certificate issued by the department or the department's representative or designee;

(4) comply with the requirements of §1958.155 of the Act (relating to Conflict of Interest; Disclosure Required);

(5) maintain insurance coverage required under §78.40 while engaging in mold-related activities regulated under this chapter;

(6) comply with the recordkeeping responsibilities under §78.74;

(7) cooperate with department personnel and representatives or designees of the department in the discharge of their official duties, as described in §78.85; and

(8) notify the department of the following changes no later than the indicated time period after such changes occur, on a department-approved form in a manner specified by the department:

(A) withdrawal of licensed mold remediation contractor or licensed mold remediation company from association with a mold remediation project- five calendar days.

(B) addition of licensed mold remediation company to association with a mold remediation project- one calendar day.

(C) change in mailing address or telephone number- 30 calendar days.

(D) change of persons who have an ownership interest of 10% or more in a person licensed or accredited under this chapter, 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- 30 calendar days.

(E) addition or deletion of a responsible person- 30 calendar days.

(b) All individuals who are required to be licensed or registered under this chapter must have a valid department-issued identification card, credential, or certificate, as applicable, present at the worksite when engaged in mold-related activities.

(c) The licensee overseeing mold-related activities, with the exception of activities performed by a mold analysis laboratory, must ensure that a client and the property owner (or the property owner's designee), if not the same, are provided a copy of the department Consumer Mold Information Sheet (CMIS).

(1) The licensee shall provide the CMIS on the earlier of:

(A) the first contact with the client, potential client, or property owner or designee of the property owner, or

(B) at least one calendar day before the initiation of any mold-related activity.

(2) In an emergency as described in §78.110(e), the licensee shall ensure that the Consumer Mold Information Sheet is provided to the client and the property owner (or the property owner's designee), if not the same, as soon as practicable but not later than the following calendar day after the licensee identifies the emergency.

(d) Credentialed persons are responsible for determining whether the mold-related activities in which they will engage require additional credentials beyond those required under this chapter.

(e) No person shall sell, assign, or transfer a credential, identification card, certificate, or approval issued under this chapter. A person shall obtain a new credential or approval after the transfer of a person that is not an individual before activities requiring a credential or approval under this chapter may be conducted.

(f) 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.

(g) Consumer complaint information.

(1) A licensed or accredited person shall notify each client of the department's name, web address, mailing address, and telephone number for the purpose of directing complaints to the department.

(2) The information shall be displayed on written documents provided by the credentialed person to a client, property owner, or third party, including mold assessment reports and protocols, mold remediation work plans, bids, estimates, contracts, bills for service, and information brochures.

(h) Office requirement. A person licensed under this chapter must maintain an office in Texas. An individual employed by a person licensed under this chapter is considered to maintain an office in Texas through that employer.

§78.74. Records .

(a) Record retention. Records and documents shall be retained for the time periods specified in this section.

(1) Records and documents shall be made available for inspection by the department or the department’s representative or designee immediately upon request.

(2) Licensees and accredited training providers who cease to do business shall notify the department in a manner specified by the department at least 30 calendar days before such event to advise how they will maintain all records during the minimum three- or five-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 calendar days after their receipt or make other arrangements approved by the department.

(3) Licensees and accredited training providers may maintain the records required under this section in an electronic format unless otherwise indicated.

(4) Licensees and accredited training providers who maintain the required records in an electronic format shall provide paper copies of records or the original paper documents to the department or the department’s representative or designee on request.

(b) Mold remediation companies and contractors.

(1) A licensed mold remediation company or a licensed mold remediation contractor not employed by a company shall maintain the following records and documents for three years following the stop date of each project that the company or contractor performs:

(A) the mold remediation work plan;

(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.

(2) A licensed mold remediation contractor or a licensed mold remediation company providing mold remediation worker training shall maintain the records required to be created, compiled, or maintained by §78.58(f)(5) and §78.60(e)(4) for five years following the provision of a training course or the issuance of a training certificate.

(c) Mold assessment companies and consultants.

(1) A licensed mold assessment company or a licensed mold assessment consultant not employed by a company shall maintain the following records and documents for the time period required under paragraph (2) for each mold assessment project that the company or consultant performs:

(A) the name and mold credential 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 §78.140;

(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) 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; or

(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 Damage Remediation to a mold remediation contractor or company, if a Certificate of Mold Damage 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 retain all records required to be created, compiled, or maintained by §§78.64, 78.66, and 78.68 for a period of five years following the most recent applicable event related to the records, including:

(1) the accreditation of the training provider;

(2) the approval of a course or instructor;

(3) the employment of a mold training manager;

(4) the termination of an instructor or mold training manager;

(5) the termination of the training provider accreditation;

(6) the provision of a training course;

(7) the issuance of a training certificate;

(8) the creation, amendment, or termination of a plan or policy.

§78.80. Fees

(a) All fees paid to the department are nonrefundable.

(b) Schedule of Fees.

(1) Fees for Notifications:

(A) Notification of mold remediation, initial: owner-occupied residential dwelling unit--$25

(B) Notification of mold remediation, initial: other than owner-occupied residential dwelling unit--$25

(2) Fees for Credentials:

(A) Mold assessment technician license or renewal--$150

(B) Mold assessment consultant license or renewal--$500

(C) Mold assessment company license or renewal--$850

(D) Mold remediation worker registration or renewal--$50

(E) Mold remediation contractor license or renewal--$450

(F) Mold remediation company license or renewal--$850

(G) Mold analysis laboratory license or renewal--$750

(H) Mold training provider accreditation or renewal--$750

(3) Fees for Approval of Training Courses:

(A) Application for approval of initial mold training course--$100

(B) Application for approval of initial mold training course when submitted concurrent with application for mold training provider initial accreditation--$0

(C) Application for approval of continuing education mold training course--$100

(D) Application for approval of continuing education mold training course when submitted concurrent with application for mold training provider initial accreditation--$0

(4) Fee for a replacement or duplicate credential, certificate, or identification card --$25

(c) Late renewal fees for licenses, registrations, and accreditations issued under this chapter are prescribed under §60.83 of this title (relating to Late Renewal Fees).

(d) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

(e) The fee for a dishonored/returned check or payment is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

§78.120. 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 that is specific to each project, fulfills all the requirements of the mold remediation protocol, and provides specific instructions and/or standard operating procedures for how a mold remediation project will be performed.

(c) On-site records. A licensed mold remediation company and a licensed mold remediation contractor who is not employed by a company shall maintain the following records and documents on-site at the location of the mold-related activities at a project for its duration:

(1) a current copy of the mold remediation work plan and all mold remediation protocols used in the preparation of the work plan; and

(2) a listing of the names and license or registration numbers of all individuals working on the remediation project.

(d) 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 individuals 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 square feet or more. The recommended minimum PPE is an N-95 respirator.

(1) Each individual who is provided PPE must receive training on the appropriate use and care of the provided PPE.

(2) The remediation contractor or company must document successful completion of the training before the individual performs regulated activities.

(e) 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.

(1) Containment is not required if only persons who are licensed or registered under this chapter occupy 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 §78.110.

(2) 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.

(3) 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.

(A) Operation of equipment to recirculate air inside of containment without maintaining negative air pressure may be conducted when the specific conditions, phases, and time periods during which it may or must occur are specified in the mold remediation protocol before commencing this use of equipment.

(B) Operation of equipment to recirculate air inside of containment without maintaining negative air pressure is prohibited during periods of active mold remediation activity.

(4) The mold remediation contractor shall ensure that the containment is maintained in accordance with the work plan and the requirements of this chapter until the containment is removed.

(f) Notice signs. Signs advising that a mold remediation project is in progress shall be displayed at all accessible entrances to remediation areas.

(1) Notice 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.

(2) Notice signs must be displayed continuously during the period in which active mold

remediation is ongoing.

(g) Removal of containment. No person shall remove or dismantle any walk-in containment structures or materials from a project site before 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 §78.140.

(h) Disinfectants, biocides, and antimicrobial coatings.

(1) A disinfectant, biocide, or antimicrobial coating may be used only if:

(A) its use is specified in a mold remediation protocol;

(B) it is registered by the United States Environmental Protection Agency (EPA) for the intended use; and

(C) the use is consistent with the manufacturer's labeling instructions.

(2) If a protocol specifies the use of a disinfectant, biocide, or antimicrobial coating 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.

(3) A person who applies a biocide to wood to control a wood-infesting organism must be licensed by the Structural Pest Control Service of the Texas Department of Agriculture 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).

§78.130. Mold Remediation of Heating, Ventilation and Air Conditioning (HVAC) Systems.

(a) All provisions of §78.100 shall apply to the assessment of mold in HVAC systems.

(b) All provisions of §78.120 shall apply to the remediation of mold in HVAC systems.

(c) Disinfectants, biocides and antimicrobial coatings. A licensee or registered worker under this chapter may apply a disinfectant, biocide or antimicrobial coating in an HVAC system only in accordance with §78.120(h). The licensee or registered worker 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 before the application. The licensee or registered worker shall follow all applicable manufacturer's label directions when using the product.

(d) Other license requirements.

(1) 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 department as provided under the Texas Occupations Code, Chapter 1302 (relating to Air Conditioning and Refrigeration Contractors).

(2) A person who performs biomedical remediation as defined under 16 TAC, §75.10(6) must be licensed by the department in accordance with 16 TAC, Chapter 75 (relating to Air Conditioning and Refrigeration) unless exempt under 16 TAC, §75.30 (relating to Exemptions) or 16 TAC, §75.100 (relating to Technical Requirements).

§78.150. Photographs; Certificate of Mold Damage Remediation; Duty of Property Owner.

(a) Not later than ten calendar days after the project stop-date, the licensed mold remediation contractor or company shall provide the property owner with copies of required photographs of the scene of the mold remediation taken before and after the remediation.

(b) Not later than ten calendar days after the project stop-date, the licensed mold remediation contractor or company shall provide a Certificate of Mold Damage Remediation to the property owner on a form adopted by the Texas Commissioner of Insurance. The top section of this certificate is signed by a licensed mold assessment consultant and a mold remediation contractor for projects performed under the Texas mold assessment and remediation rules. The Certificate of Mold Damage Remediation must include the following:

(1) a statement by a licensed mold assessment consultant (not the licensed mold remediator) that based on visual, procedural, and analytical evaluation, the mold contamination identified for the project has been remediated as outlined in the mold remediation protocol; and

(2) a statement on the certificate that the underlying cause of the mold has been remediated, if the licensed mold assessment consultant determines that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that same cause.

(c) The bottom section of the Certificate of Mold Damage Remediation is signed by a licensed mold assessment consultant on mold remediation projects that may be legally performed by unlicensed persons, certifying the property does not contain evidence of mold damage.

(d) The mold assessment company or consultant and the mold remediation company or contractor shall retain copies of the completed certificate in their business files in accordance with the requirements in §78.74.

(e) If a property owner sells the property, the property owner shall provide to the buyer a copy of each Certificate of Mold Damage Remediation issued for the property under this section during the five years preceding the date the property owner sells the property.

Filed with the Office of the Secretary of State, on July 30, 2018.

Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation