The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts amendments to §295.202, concerning Definitions, and §295.212, concerning Standards for Conducting Lead-Based Paint Activities. The amendment to §295.202 is adopted with changes to the proposed text as published in the July 16, 2021, issue of the Texas Register (46 TexReg 4261) and will be republished. The amendment to §295.212 is adopted without changes to the proposed text and will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to comply with Texas Occupations Code, §1955.051, which requires that the 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.

COMMENTS

The 31-day comment period ended August 16, 2021.

During this period, DSHS did not receive any comments regarding the proposed rules.

A minor editorial change is made to §295.202(84) to correct an equation in the rule that was published incorrectly with strikethroughs in the Texas Register.

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. The amendments are also authorized by Texas Health and Safety Code, §1001.075, which authorizes the Executive Commissioner 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 including DSHS duties under the Texas Occupations Code, Chapter 1955. Texas Occupations Code, Chapter 1955 requires the Executive Commissioner 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.