Proposed Administrative Rules

Chapter 78. Mold Assessors and Remediators
Proposal Filed: April 5, 2018 – Published in the Texas Register: April 20, 2018
Deadline for Public Comment: May 21, 2018

Underlined text is new language.

[ Strikethrough text ] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), 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.

JUSTIFICATION AND EXPLANATION OF THE RULES

House Bill 4007 (H.B. 4007), 85th Legislature, Regular Session (2017), modified Texas Occupations Code, Chapter 1958, which provides statutory authority for the Mold Assessors and Remediators program. Primarily, H.B. 4007 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 proposed rules are necessary to implement H.B. 4007 and to clarify and simply existing rules.

SECTION- BY- SECTION SUMMARY

The proposed amendment to §78.58 corrects a cross reference.

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

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

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

The proposed 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 proposed amendments to §78.80 remove unnecessary redundant language.

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

The proposed amendment to §78.130 corrects a cross reference.

The proposed 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.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed rules are in effect, there are no foreseeable implications relating to costs or revenues to state or local government as a result of enforcing or administering the proposed amendments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not affect local economies, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis has also determined that for each year of the first five-years that the proposed rules are in effect, the public will benefit by simplifying and clarifying the record retention requirements as well as removing outdated requirements to retain paper records at a central location at the licensee’s Texas office. These changes contribute to an effective and efficient regulatory program for mold assessment and remediation which protects the health, safety, and welfare of the citizens of Texas.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There is no anticipated adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules.

Because the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed new rules will be in effect, the agency has determined the following:

(1) The proposed rules do not create or eliminate a government program.

(2) Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed rules do not require an increase or decrease in fees paid to the agency.

(5) The proposed rules do not create a new regulation.

(6) The proposed rules repeal the requirement to keep records at a central location at a Texas office, and repeal the requirement to make records available to a law enforcement agency upon request. (7) The proposed rules do not increase or decrease the number of individuals subject to the rule’s applicability.

(8) The proposed rules do not positively or adversely affect this state’s economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov . The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The new rules are proposed 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 proposal are those set forth in Texas Occupations Code, Chapters 51 and 1958. No other statutes, articles, or codes are affected by the proposal.

§78.58. Mold Remediation Contractor License.

(a) - (e) (No change.)

(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) - (5) (No change.)

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

(7) - (14) (No change.)

§78.60. Mold Remediation Company License.

(a) - (d) (No change.)

(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) - (4) (No change.)

(5) maintain copies of the required training documents [ at a central location at its Texas office ] in accordance with §78.74(b)(2) [ 78.74(e) ] if providing mold remediation worker training as authorized in §78.68(d);

(6) - (8) (No change.)

§78.62. Mold Analysis Laboratory License.

(a) - (b) (No change.)

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

(1) - (3) (No change.)

(4) all individuals who will analyze mold samples: [ the laboratory meets the following requirements: ]

[ (A) all individuals who will analyze mold samples: ]

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

(B) [ (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

(C) [ (iii) ] have a least three years of experience as a mold microscopist[ ; and ]

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

(A) [ (i) ] an advanced academic degree; or

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

(d) - (f) (No change.)

§78.64. Mold Training Provider Accreditation.

(a) (No change.)

(b) Authorizations and Conditions. The following shall apply to issuance of accreditations under this section.

(1) - (5) (No change.)

(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 [ videotapes ], but audiovisual materials shall not be used as substitutes for the required in-person presentations or the hands-on instruction.

(7) - (12) (No change.)

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

(1) - (2) (No change.)

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

(4) [ (3) ] 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) [ (4) ] 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) [ (5) ] 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) (No change.)

(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) - (2) (No change.)

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

(A) - (B) (No change.)

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

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

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

(F) [ (E) ] 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) - (9) (No change.)

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

(A) - (D) (No change.)

(11) (No change.)

(g) (No change.)

§78.70. Responsibilities of Credentialed Persons.

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

(1) - (5) (No change.)

(6) comply with the recordkeeping responsibilities under §78.74 [ at both the Texas office and work site locations as applicable ];

(7) - (8) (No change.)

(b) - (h) (No change.)

§78.74. Records.

(a) Record retention. Records and documents [ required by this section ] shall be retained for the time periods specified in this section [ subsection (b)(2) for mold remediation companies and contractors, subsection (c)(2) for mold assessment companies and consultants, subsection (d) for mold analysis laboratories, and subsection (e)(1) for training providers ].

(1) Records and documents shall be made available for inspection by the department or the department’s representative or designee [ or any law enforcement agency ] 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. [ Failure to comply may result in disciplinary action .]

(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. [ A licensed mold remediation company shall maintain the records listed in paragraphs (1) and (2) for each mold remediation project performed by the company and the records listed in paragraph (4) 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) for each mold remediation project performed by the contractor and the records listed in paragraph (4) for each remediation worker training session provided by the mold remediation contractor. ]

(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 [ contractor shall maintain the following records and documents on-site at the location of the mold-related activities 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 or 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 paragraph (1)(A) ];

(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.

[ (3) A remediation contractor or company may maintain the records required under paragraphs (1) and (2) in an electronic format. 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 licensed mold remediation company that provides mold remediation worker training to meet the requirements under §78.68(d) 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 or a licensed mold assessment consultant not employed by a company shall maintain the following records and documents [ at a central location at its Texas office ] for the time period required under paragraph (2) for each mold assessment project that the company or consultant 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) for each project that the contractor performs ]:

(A) - (G) (No change.)

(2) (No change.)

(d) (No change.)

(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: [ 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 or the department's representative or designee. ]

(1) the accreditation of the training provider; [ The training provider shall maintain records for at least five years from the date of each training course. ]

(2) the approval of a course or instructor; [ A training provider may maintain the records required under paragraph (1) in an electronic format. 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. ]

(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. [ Unless otherwise specified, the fees established in this section must be paid to the department before a license, registration, or accreditation will be issued or renewed. ]

(b) - (e) (No change.)

[ (f) All fees paid to the department are nonrefundable .]

§78.120. Minimum Work Practices and Procedures for Mold Remediation .

(a) - (b) (No change.)

(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) [ (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 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) [ (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.

(1) - (4) (No change.)

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

(1) - (2) (No change.)

(g) [ (f) ] 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) [ (g) ] Disinfectants, biocides, and antimicrobial coatings.

(1) A disinfectant, biocide, or [ and ] 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) - (3) (No change.)

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

(a) - (b) (No change.)

(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)[ (g) ]. 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) (No change.)

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

(a) Not later than ten [ seven ] 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) - (e) (No change.)

REVIEW BY AGENCY COUNSEL

This agency hereby certifies that the proposal 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 5, 2018.


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