The Texas Department of Health (department) adopts 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. Section 295.212 is adopted with changes to the proposed text as published in the December 13, 2002, issue of the Texas Register (27 TexReg 11686), as a result of comments received during the 30 day comment period. Sections 295.201 - 295.211, 295.213 - 295.216, and 295.218 - 295.220 are adopted without change, and therefore the sections will not be republished.

These sections are adopted 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 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 adopted changes are consistent with EPA language and regulations and none of the adopted 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 and 295.218 - 295.220 have been reviewed and the department has determined that the reasons for adopting the sections continue to exist.

A Notice of Intent to Review for §§295.201 - 295.216 and §§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 in response to publication of this notice.

The following is a summary of the comments received concerning the proposed rules. After each comment is the department's response and any resulting change(s).

Comment: Concerning §295.208(d)(7), one commenter suggested inserting the word, "onsite" for the word "available."

Response: Since §295.212(d)(2) is not being amended as proposed to require a certified supervisor to be onsite during all lead abatement activities, the change as recommended by the commenter is not necessary. Therefore, no change was made as a result of this comment.

Comment: Concerning §295.211(a), one commenter suggested strengthening the language in this section as it applies to cities and local governments. The commenter stated that many cities and local government entities would not make the connection that they themselves need to be certified as firms by reading the regulatory text. Alternatively, the commenter suggested using the language that any entity such as a corporation, company, sole proprietor, non-profit, or local government entity needs to be certified as a lead firm to perform lead-based paint activities and that all certified individuals conducting lead-based paint activities must work under a firm certification.

Response: The department disagrees. According to §295.202(13), a certified lead firm is defined as, "A company, contractor, partnership, corporation, sole proprietorship, association, or other business entity that performs or offers to perform lead-based paint activities, and that has been certified by the department." This definition is in complete agreement with the U.S. Environmental Protection Agency's definition of a certified firm as stated in 40 CFR 745.233. It is noted that governmental entities (local, municipal, state, federal, etc.) are not specifically identified in the above definitions. Furthermore, the department does not believe they are a business entity in the context of the definition and, therefore, are not required to be certified as a lead firm. No change was made as a result of this comment.

Comment: Concerning §295.212(a)(4), (b)(5), and (c)(11), one commenter was concerned that the proposed allowance of 30 days to prepare an inspection report, lead hazard screen report, or a risk assessment report would be in conflict with the federal Real Estate Notification and Disclosure (REND) rule, 40 CFR 745.110. This federal rule requires property sellers to allow purchasers a 10-day period to have a lead inspection, risk assessment, or lead hazard screen performed on pre-1978 residential home sale transactions. The commenter was also concerned that the 30-day requirement will "open the door" for contractors to charge target housing purchasers excessive fees to prepare a report within 10 days to comply with the contractual language for a target housing sales contract under the federal rule and will negatively impact the demand for this service by the consumer involved in a target housing transaction.

Response: The department agrees that the proposed rule may conflict with the federal regulation as stated and the timeframe requirement for the completion of the written reports for inspections, risk assessments, and lead hazard screens. Therefore, the proposed changes will not be adopted and changes were made to §295.212(a)(4), (b)(5), and (c)(11).

Comment: Concerning §295.212(d)(2), eight commenters opposed the proposed requirement of the lead abatement supervisor to be onsite during all abatement activities. The commenters expressed concern about the financial burden because the supervisor could then only supervise one project at a time instead of multiple projects as they currently are able to do. One of these commenters suggested a compromise of lowering the response time from two hours to one hour for supervisors to return to a job-site. Three commenters supported the change citing safety concerns, protection against hazards, and enforcing the Occupant Protection Plan.

Response: Until hearing the concerns from the commenters, the department did not realize that there would be a potential economic cost as a result of this proposed rule change, and the department is concerned about any financial impact that this change may cause the contractors. The department also feels that the current rule for supervisors does not compromise safety issues or lead hazards, or prevent implementing the Occupant Protection Plan. Therefore, the department has decided not to make any change to the existing rule.

Comment: Concerning §295.212(d)(6), one commenter suggests that in addition to requiring the lead inspection and/or risk assessment report at the worksite, the department should also require a copy of the project contract and its specifications be maintained at the job site in case an abatement is performed based upon a presumption of lead-based paint hazards being present.

Response: Although the department agrees with the commenter's suggestions, the department believes it would be more prudent to consider project contract and specifications requirements at a future rule amendment process for full stakeholders' input. The department's decision at this time is based on the potential hardship that the change suggested by the commenter would place on municipalities to have the documents at the worksite. However, the wording "unless presumed lead," was added to the beginning of §295.212(d)(6).

Comment: Concerning §295.212(d)(8)(A)(i), two commenters suggest changing "no greater than 400 ppm" to read "less than 400 ppm" in order to comply with 40 CFR 745.65(c) which states: "A soil-lead hazard...contains total lead equal to or exceeding 400 parts per million (µg/g) in a play area..."

Response: The department agrees with the commenter and has changed §295.212(d)(8)(A)(i) to read "less than 400 ppm" to ensure that if contaminated soil is replaced, then the replacement soil is below the soil lead hazard level as stated in 40 CFR 745.65(c).

Comment: Concerning §295.212(d)(9)(E)(i), one commenter suggests changing the wording to "Clearance samples for an abatement done under containment will have one dust sample shall be (sic) taken from an interior window (if present) and one dust sample taken from the floor inside containment for no less than four rooms. In addition, one dust sample will be taken from the floor and from a window (if available) i.e., hallways or stairwells within the containment area. One dust sample will be taken just outside the contained area to verify the absence or quantity of lead present on the floor outside of containment." Another commenter also suggesting changing the wording of this section because it is confusing as proposed.

Response: Although the department understands the suggestion by the commenters, at this time the wording must stay consistent with 40 CFR 745.227(e)(8)(v)(A) and 40 CFR 745.227(e)(8)(v)(B) in order for Texas to maintain its status as an EPA authorized state. The department will continue to seek interpretation from EPA on matters such as these to pass on to the regulated community. Therefore, no changes to the proposed language were made as a result of the comments.

Comment: Concerning §295.212(d)(9)(E)(ii), one commenter suggests that the wording of this section be changed to clarify whether the samples are required to be composite samples and whether samples are to be taken from the window sill or trough.

Response: Although the department understands the suggestion by the commenter, at this time the wording must stay consistent with 40 CFR 745.227(e)(8)(v)(A) and 40 CFR 745.227(e)(8)(v)(B) in order for Texas to maintain its status as an EPA authorized state. The department will continue to seek interpretation from EPA on matters such as these to pass on to the regulated community. Therefore, no change to the proposed language was made as a result of the comment.

Comment: Concerning §295.212(d)(12)(E), one commenter suggests also requiring that the risk assessor or inspector include a signed letter stating the date and results of any visual inspection if a visual inspection is the only clearance required. The commenter's reason for this change would be so that the department would not be dependent on the contractor for determining the actual stop-date.

Response: The department disagrees with the commenter since it is the responsibility of the contractor to determine the stop-date of the project. No changes were made as a result of the comment.

Comment: Concerning §295.212(g)(2)(C), one commenter suggests changing the "and" at the end of the statement to an "or."

Response: The department agrees with the commenter that "or" correctly expresses the intent of the section and the department has replaced the "and" with "or."

Comment: Concerning §295.212(g)(3)(B), one commenter suggests changing the "and" at the end of the statement to an "or."

Response: The department agrees with the commenter that "or" correctly expresses the intent of the section and the department has replaced the "and" with "or."

A majority of the commenters were concerned about §295.212(d)(2) as proposed. Commenters opposed to §295.212(d)(2) were Watson Consolidated, Ortho Construction/Renovation, Diamondhead International Sales Company, South West Texas Environmental Contractors, Inc., City of Houston Home Repair Program, City of Houston Department of Health and Human Services, and two individuals. Commenters in favor of proposed §295.212(d)(2) were Certified Lead Technologies, Environmental/Occupational Solutions Corp., and one individual. The U.S. Environmental Protection Agency had a few questions and comments, but was generally supportive of the proposed rules. Other comments were received from Environmental/Occupational Solutions Corp. and Region 8, Texas Department of Health.

The amendments are adopted 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; and implements Government Code §2001.039.