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Texas Register Preamble


The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes amendments to §295.202, concerning Definitions, and §295.212, concerning Standards for Conducting Lead-Based Paint Activities.

BACKGROUND AND PURPOSE

The proposal is necessary to comply with Texas Occupations Code, §1955.051, which requires that Texas environmental lead reduction rules be consistent with federal standards. The Environmental Lead Program (program) is updating the Texas environmental lead reduction rules for consistency with the United States Environmental Protection Agency (EPA) regulation under 40 Code of Federal Regulations (CFR), §745.227(h)(3), effective January 6, 2020, and 40 CFR §§745.223 and 745.227(e)(8)(viii), effective December 21, 2020, and as required in 40 CFR §745.325(e)(1).

The EPA lowered the dust-lead hazard standards and dust-lead clearance standards for lead in dust on floors and window sills from 40 micrograms (µg) of lead in dust per square foot (ft2 ) on floors and 250 µg of lead in dust per ft2 on interior window sills, to 10 µg/ft2 and 100 µg/ft2 , respectively. The EPA provided that states authorized to administer lead abatement programs have two years to update the state rules to be at least as protective as the new EPA rule. As a result, the deadline for implementation of the federal dust-lead hazard standard is January 6, 2022, and the dust-lead clearance standard is March 8, 2023.

These new lower levels are consistent with the levels that the United States Department of Housing and Urban Development (HUD) requires of property owners that do lead hazard control and lead abatement to receive HUD funding assistance. HUD requires certain property owners to conduct lead hazard control or lead abatement and meet the 10 µg/ft2 and 100 µg/ft2 dust-lead hazard and clearance levels.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §295.202 corrects outdated references, including the EPA dust-lead standards, and edits the rule language for consistency with EPA and health and human services formatting of rules.

The proposed amendment to §295.212 updates the EPA dust-lead hazard and clearance standards, corrects an internal reference, and edits the rule language for consistency with health and human services formatting of rules.

FISCAL NOTE

Donna Sheppard, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

DSHS has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of DSHS employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to DSHS;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will not expand, limit, or repeal existing rules;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Donna Sheppard has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; does not impose a cost on regulated persons; are necessary to receive a source of federal funds or comply with federal law; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Associate Commissioner, Consumer Protection Division, has determined that for each year of the first five years the rules are in effect, the public will benefit from adoption of the rules because DSHS-certified lead risk assessors will use the new dust-lead hazard standards to make recommendations to property owners to minimize the lead exposure risk for children in regulated housing and child-occupied facilities. DSHS-certified lead inspectors and risk assessors will use the new dust-lead clearance standards to clear lead abatement projects in the same types of properties.

Donna Sheppard has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the rules do not require that a property owner conduct lead abatement or follow the lead risk assessor's recommendations.

TAKINGS IMPACT ASSESSMENT

DSHS has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to the Environmental Hazards Branch Rules Coordinator, Texas Department of State Health Services, P.O. Box 149347, Mail Code 1987, Austin, Texas 78714-9347; or by email to EHGRulesCoordinator@dshs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked before the last day of the comment period or (2) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on 21R034 TELRR" in the subject line.

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code, §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code, §1001.075, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by DSHS, for the administration of Texas Health and Safety Code, Chapter 1001, and to implement Texas Occupations Code, Chapter 1955, which requires the Executive Commissioner of HHSC to establish rules for certification of persons involved in lead-based paint activity in target housing or in a child-occupied facility and accreditation of training providers for persons involved in lead-based paint activity and requires that certain rules adopted under its authority must be consistent with applicable federal law and rules.

The amendments affect Texas Government Code, Chapter 531; Texas Health and Safety Code, Chapter 1001; and Texas Occupations Code, Chapter 1955.



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