The Texas Department of Health (department) proposes amendments to §§295.201 - 295.216, 295.218 - 295.220 concerning the certification, accreditation, and standards for lead-based paint activities in target housing and child-occupied facilities.

These sections are proposed to comply with House Bill 2085, 76th Legislature, 1999, which revised the Texas Civil Statutes, Article 9029; to clarify existing rule language for improved implementation; and to incorporate new provisions due to new and/or amended federal rules and regulations that have been issued. On January 5, 2001, the U.S. Environmental Protection Agency (EPA) amended Title 40 CFR, Part 745, entitled "Lead; Identification of Dangerous Levels of Lead; Final Rule," which established standards for identifying lead-based paint hazards, work clearance levels, and added amendments to dust and soil sampling requirements. These proposed amendments are required in order for Texas to maintain its status as an EPA authorized state to implement a state lead certification and accreditation program. Many of the proposed changes are consistent with EPA language and regulations and none of the proposed lead levels are more restrictive or exceed federal law.

Government Code, §2001.039 requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 295.201 - 295.216, 295.218 - 295.220 have been reviewed and the department has determined that the reasons for adopting the sections continue to exist and the revisions are described in this preamble.

A Notice of Intent to Review for §§295.201 - 295.216, 295.218 - 295.220 in regards to Government Code, §2001.039, agency review of rules was published in the June 7, 2002 issue of the Texas Register (27 TexReg 4997). No comments were received due to the publication of this notice.

Section 295.201, removes the compliance date of June 1, 1998, applicable to child-occupied facilities since that date has since passed.

Section 295.202 is amended to add, pursuant to EPA Title 40, Part 745, new definitions of arithmetic mean, chewable surface, common area group, concentration, dripline, interior window sill, loading, mid-yard, play area, residential building, soil sample, weighted arithmetic mean, window trough, and wipe sample; amends existing definitions, pursuant to EPA Title 40, Part 745, of deteriorated paint, friction surface, impact surface, lead abatement, lead-based paint hazard, room; and clarifies other definitions, such as, approved documented methodologies, ASTM, certified lead firm, complete certification application, ELNS, encapsulant, HEPA filter, non-profit, start-date, stop-date, testing, working days, and worksite, where used in other sections.

Section 295.203 is amended to update specifications for dust wipe and soil sampling procedures as referenced in approved federal documented methodologies.

Section 295.204 is amended to require training certificates to be approved by the department; adds new requirements for language on the certificates; pursuant to House Bill 2085, adds renewal fees of 1-1/2 times the normal fee if the accreditation has been expired 90 days or less or two times the normal fee if the accreditation has been expired more than 90 days but less than one year; and amended to reflect that hearings are conducted according to the department's Fair Hearing Procedures found at 25 TAC, §§1.51-1.55.

Section §295.205 is amended to list additional reasons for denial of applications, add initial or renewal certification language for clarification of the type of application; amends existing language to clarify restrictions when working with an expired certification; adds language to require notification of any change of name, address, telephone number, business name, organization affiliation, and/or firm's owner or authorized agent within 60 days of change and added requirements for failure to do so; amended pursuant to House Bill 2085 to provide renewal fees of 1-1/2 times the normal required fee if certifications are expired 90 days or less or two times the normal fee if expired more than 90 days to less than one year, and that certifications may not be renewed one year or more beyond expiration; and amended pursuant to House Bill 2085 to allow a person to obtain certification without any applicable reexamination who was certified in this state, moved to another state, and is currently certified and has been in practice in the other state for the two years preceding the date of application, and pays to the department a fee that is equal to two times the normally required renewal fee for the certification; and amended to reflect that hearings are conducted according to the department's Fair Hearing Procedures found at 25 TAC, §§1.51-1.55.

Sections 295.206, 295.207 and 295.208 have been amended to require a complete application for certification to be submitted with the appropriate fee within six months of passing the state certification examination and have added requirements for failure to do so; add initial or renewal certification language for clarification of the type of application; amended pursuant to House Bill 2085 to require the department to notify persons who fail the required examination of the examination results and allow them the opportunity to request in writing a department analysis of their performance on the examination; and amended to clarify that their responsibilities are distinct and mandatory.

Sections 295.209 and 295.210 have been amended to require a complete application for certification to be submitted with the appropriate fee within one year of completing the required training course(s) and have added requirements for failure to do so; added initial or renewal certification language for clarification of the type of application; and amended to clarify that their responsibilities are distinct and mandatory.

Section 295.211 is amended to delete the requirement for submitting to the department a Certificate of Good Standing from the Texas Comptroller when applying for certification; added initial or renewal certification language for clarification of the type of application; added provisions if firm has an assumed name; amended to clarify that their responsibilities are distinct and mandatory; adds language that ensures that each firm's employee engaged in lead-based paint activities is properly certified and possesses the proper credentials at the worksite; and amended pursuant to House Bill 2085 to provide renewal fees of 1-1/2 times the normal required fee if certifications are expired 90 days or less or two times the normal fee if expired more than 90 days to less than one year, and that certifications may not be renewed one year or more beyond expiration.

Section 295.212 has been restructured for clarification purposes and amended as follows: to require that a written inspection report must be prepared within 30 days of conducting an inspection; to require that inspection reports must be retained for a minimum of three years; to require that a written lead hazard screen report must be prepared within 30 days of conducting a lead hazard screen; to require that lead hazard screen reports must be retained for a minimum of three years; pursuant to EPA 40 CFR, Part 745 to designate where sampling for the presence of lead and lead hazards must be taken in residential dwellings and child-occupied facilities; to require that a written risk assessment report must be prepared within 30 days of a risk assessment being conducted by a certified risk assessor; to require that risk assessment reports must be retained for a minimum of three years; to require a copy of the inspection or risk assessment report prepared for the project to be kept at the worksite and available for inspection by the department; to require a written abatement report to be prepared within 60 days of the completion of the project; to reflect new federal clearance levels pursuant to EPA 40 CFR Part 745 (TSCA 403), entitled "Identification of Dangerous Lead Hazards; Final Rule," which provides determinations for lead hazards in paint, dust, and soil; clarification that laboratory samples must be analyzed by recognized EPA laboratories; add requirement of requiring copies of laboratory reports be included in all reports; clarify that reports must be written; clarify role of supervisor during abatement; and adding requirements for name, signature, and certification number of person completing dated post-abatement report.

Section 295.213 is amended to state where determinations for lead hazards in §295.212 are excluded from regulation and to require all certified firms to only employ certified individuals to conduct lead-based paint activities.

Section 295.214 is amended to allow the use of electronic mail when notifying the regional office of abatement projects and cancellations of projects; to increase the notification fee from $50 to $100 per notification; to delete the provision to refund $25 upon receiving a proper cancellation notice; and clarification on completing notification and amendment forms.

Section 295.215 is amended to require a reciprocal application from those seeking reciprocal certification and a signed statement that the applicant has read and understands the Texas lead rules.

Section 295.216 is amended to delete the certification fee exempt provision for federal, state, and local government employees effective September 1, 2003. Certification issued with a fee exemption prior to this date will continue to remain fee-exempt until the certification's next three-year renewal date.

Section 295.218 is amended to change language for clarification purposes.

Section 295.219 is amended to add probation, pursuant to HB 2085, as an enforcement action for noncompliance and amended to reflect that hearings are conducted according to the department's Fair Hearing Procedures found at 25 TAC, §§1.51-1.55.

Section 295.220 is amended to delete the 50% maximum reduction or enhancement of administrative penalties; to clarify the violation of failure to have proper identification (ID) at the worksite; to clarify and move working with an expired certification or training provider accreditation to Level II violations; and to add failure to have the occupant protection plan at the worksite to the Level III violations.

Mr. Alan Morris, Director, Toxic Substances Control Division, has determined that for each year of the first five years the sections are in effect, there will be fiscal implications as a result of administering the rules as proposed. The effect on state government will mean increased revenue to the department estimated to be $8,750 in FY2003, $42,117 in FY2004, $63,233 in FY2005, $84,350 in FY2006, and $84,350 in FY2007. The estimated impact on local government will be $21,117 starting in FY2004, $42,233 in FY2005, $63,350 in FY2006, and $63,350 in FY2007 in payment of increased fees.

Mr. Alan Morris also has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the sections will be a reduction in the prevalence of lead-based paint related diseases in children. A person owning a target house or child-occupied facility who contracts for a lead inspection, lead risk assessment, or lead abatement according to the provisions of these sections will incur an increased cost. Furthermore, a certified individual or lead firm conducting a lead inspection, lead risk assessment, or lead abatement at a target house or child-occupied facility according to the provisions of these sections will incur an increased cost. This cost is expected to be offset by the public health benefit of reduction of lead-based paint exposure to children. There will not be cost effects on micro-businesses or small businesses. This was determined by the interpretation of the rules that micro-businesses or small businesses will not be required to alter their business practices in order to comply with the rules as proposed. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated impact on local employment.

Comments on the proposed sections may be submitted to Mr. Keith Alexander, Chief, Environmental Lead Branch, Toxic Substances Control Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756, (512) 834-6612. Comments will be accepted for 30 days following publication of this proposal in the Texas Register.

The amendments are proposed under Texas Civil Statutes, Article 9029, which provides the Texas Department of Health with the authority to establish a program for certification and accreditation for lead-based paint activities in target housing and child-occupied facilities, and the Health and Safety Code, §12.001 which provides the Texas Board of Health (board) with authority to adopt rules to implement every duty imposed by law on the board, department, and commissioner of health.

The amendments affect Texas Civil Statutes, Article 9029, and Health and Safety Code, Chapter 12.