Asbestos Abatement:
To Whom Can an Owner Turn?
The Texas Department of Health (TDH) is responsible for regulating
the renovation and demolition of buildings which contain asbestos. The
TDH recently issued a new Regulatory Clarification of the role that a
general contractor, or other agent, may play in the renovation and
demolition of such buildings.
Building Owners
While building owners retain the primary responsibility for any
asbestos encountered in the construction, operations, maintenance, or
furnishing of a building or facility, a building owner may retain a
third party to contract with any asbestos licensee on behalf of the
building owner. However, a building owner cannot be insulated from
liability for violations of Texas Asbestos Health Protection Rules (TAHPR)
by using a general contractor or agent. Properly licensed individuals
must perform all asbestos-related activities. TDH will enforce its rules
against a licensee when the violations fall under the responsibilities
of that licensee, as mandated by the TAHPR.
Building Owners and Their Agents/General Contractors
TDH rules allow: 1) the building owner’s agent to hire the air
monitor; 2) the building owner’s agent to contract with the abatement or
operations and maintenance contractor; 3) the building owner’s agent to
hire the consultant; 4) notification to be submitted by the building
owner or its agent; and 5) the notification fee to be paid by the
building owner’s agent.
Conflicts of Interest Prohibited by TDH Rules
The TDH rules do have some prohibitions, the purpose of which is to
ensure that the work performed can be independently evaluated by someone
not working directly for the abatement contractor. A building owner or
its agent may hire any asbestos licensee subject to the following three
conflicts of interest rules: 1) A consultant may not hire an abatement
contractor; 2) an abatement contractor may not hire a consultant; and
3) an abatement contractor may not hire an air monitor. These conflicts
rules could limit agents’ hiring practices. A general contractor who
works as a licensee on a project may not be able to hire other licensees
if prohibited by the conflicts rules. For example, if a general
contractor is also the abatement contractor, it could not hire the air
monitor or the consultant. The building owner or another agent would
have to hire the air monitor and consultant.
Under the TDH Asbestos Program, the building owner retains
responsibility for hiring licensed professionals, having a survey done
before renovating, and paying fees on time. If an agent is allowed to
perform these duties on behalf of the building owner and the agent
violates the TAHPR duties, the building owner will retain the liability
and may receive the "Notice of Violation." Building owners should select
agents who will ensure that the building owner’s responsibilities are
performed according to the TDH rules and the TAHPR.
For further information on this topic, please contact Beth Tiggelaar at beth.tiggelaar@strasburger.com.
|
