SECTION 295.212. Standards for Conducting Lead-Based Paint Activities

(a) Inspection.

(1) Lead-based paint inspections shall be conducted only by persons certified by the department as an inspector or risk assessor and must be conducted according to the procedures in this section.

(2) When conducting an inspection, the following locations shall be selected according to approved documented methodologies and tested for the presence of lead-based paint.

(A) For every residential dwelling and child-occupied facility, each interior component with a distinct painting history, and each exterior component with a distinct painting history shall be tested for lead-based paint, except those components that the inspector or risk assessor determines to have been replaced after 1978, or to not contain lead-based paint.

(B) If conducting an inspection in a multi-family dwelling or child-occupied facility, all components with a distinct painting history in every common area shall be tested for lead-based paint, except those components that the inspector or risk assessor determines to have been replaced after 1978, or to not contain lead-based paint.

(3) The collection and analysis of paint samples to determine the presence of lead-based paint shall be conducted using approved documented methodologies which incorporate adequate quality control procedures and analyzed according to subsection (e) of this section.

(4) The certified inspector or risk assessor shall prepare a written inspection report, which shall include the following information:

(A) date of inspection;

(B) address of buildings and units;

(C) date of construction of buildings and units;

(D) unit numbers (if applicable);

(E) name, address, and telephone number of the owner of buildings and units;

(F) name, signature, and certification number of each certified inspector, risk assessor, or both conducting testing;

(G) name, address, and telephone number of the certified firm employing or contracting with each inspector, risk assessor, or both;

(H) name, address, and telephone number of each recognized laboratory conducting an analysis of collected samples;

(I) each testing method, device, and sampling procedure employed for paint analysis, including quality control data, copy of laboratory reports, and, if used, the brand name, model, and serial number of any XRF device, including downloaded XRF data;

(J) specific locations of each painted component tested for the presence of lead-based paint; and

(K) the results of the inspection expressed according to the sampling method used.

(5) All inspection reports shall be retained for a minimum of three years.

(b) Lead hazard screen.

(1) A lead hazard screen shall be conducted only by persons certified by the department as risk assessors.

(2) A lead hazard screen shall be conducted as follows.

(A) Collect background information regarding the physical characteristics of the residential dwelling or child-occupied facility and occupant use patterns that may cause lead-based paint exposure to one or more children six years of age or younger.

(B) A visual inspection of the residential dwelling or child-occupied facility and common area shall be conducted to:

(i) determine if any deteriorated paint is present; and

(ii) locate at least two dust sampling locations.

(C) If deteriorated paint is present, each surface with deteriorated paint and having a distinct painting history shall be tested, using approved documented methodologies, for the presence of lead-based paint.

(D) In residential dwellings, two composite dust samples shall be collected, one from the floors and the other from the windows, in rooms, hallways, or stairwells where one or more children, age six or younger, are most likely to come in contact with dust.

(E) In multi-family dwellings and child-occupied facilities, in addition to the floor and window samples required in subparagraph (D) of this paragraph, the risk assessor shall also collect composite dust samples from any common areas where one or more children six years of age or younger are likely to come into contact with dust.

(3) Any paint and dust samples shall be taken using approved documented methodologies that incorporate adequate quality control procedures.

(4) Any collected paint chip or dust samples shall be analyzed according to subsection (e) of this section to determine if they contain detectable levels of lead that can be quantified numerically.

(5) The risk assessor shall prepare a written lead hazard screen report, which shall include the following:

(A) the information required in a risk assessment report as specified in subsection (c) of this section, excluding paragraphs (11)(P) - (R); and

(B) recommendations concerning the desirability for follow-up risk assessments.

(6) All lead hazard screen reports shall be retained for a minimum of three years.

(c) Risk assessment.

(1) A lead risk assessment shall be conducted only by persons certified by the department as risk assessors and must be conducted according to the procedures in this subsection.

(2) A visual inspection for risk assessment of the residential dwelling or child-occupied facility shall be undertaken to locate the existence of deteriorated paint, assess the extent and causes of the deterioration, and other potential sources of lead-based paint hazards. If deteriorated paint or other potential sources of lead-based paint hazards are present, each surface with deteriorated paint or each painted surface which is a potential lead-based paint hazard shall be tested using approved documented methodologies for the presence of lead.

(3) Background information shall be collected regarding the physical characteristics of the residential dwelling or child-occupied facility and occupant use patterns that may result in lead-based paint exposure to one or more children six years of age or younger.

(4) The following surfaces which are determined, using approved documented methodologies to have a distinct painting history, shall be tested for the presence of lead:

(A) each friction surface or impact surface with visibly deteriorated paint; and

(B) all other surfaces with visibly deteriorated paint.

(5) In residential dwellings, dust samples (either composite or single-surface samples) from the interior window sill(s) and floor shall be collected and analyzed for lead concentration in all living areas where one or more children six years of age or younger are most likely to come into contact with dust.

(6) For multi-family dwellings and child-occupied facilities, the samples required in paragraph (4) of this subsection shall be taken. In addition, interior window sill and floor dust samples (either composite or single-surface samples) shall be collected and analyzed for lead concentration in the following locations:

(A) common areas adjacent to the sampled residential dwelling or child-occupied facility; and

(B) dripline/foundation areas where bare soil is present.

(7) For child-occupied facilities, interior window sill and floor dust samples (either composite or single-surface samples) shall be collected and analyzed for lead concentration in each room, hallway or stairwell utilized by one or more children, age six and under, and in other common areas in the child-occupied facility where one or more children, age six and under, are likely to come into contact with dust.

(8) Soil samples shall be collected and analyzed for lead concentrations in the following locations:

(A) exterior play areas where bare soil is present;

(B) the rest of the yard (i.e., non-play areas) where bare soil is present; and

(C) dripline/foundation areas where bare soil is present.

(9) Any paint, dust, or soil sampling or testing shall be conducted using approved documented methodologies that incorporate adequate quality control procedures.

(10) Any collected paint chip, dust, or soil samples shall be analyzed according to subsection (e) of this section to determine if they contain detectable levels of lead that can be quantified numerically.

(11) A written risk assessment report shall be completed by a certified risk assessor and the report shall include the following information:

(A) date of assessment;

(B) physical address of building;

(C) date of construction of building;

(D) unit numbers (if applicable);

(E) name, address, and telephone number of the owner of each building or unit;

(F) name, signature, and certification number of the certified risk assessor conducting the assessment;

(G) name, address, and telephone number of the certified firm employing each risk assessor;

(H) name, address, and telephone number of each recognized laboratory conducting analysis of collected samples;

(I) results of the visual inspection;

(J) testing method and sampling procedure for paint analysis employed;

(K) specific locations of each painted component tested for the presence of lead-based paint;

(L) all data collected from on-site testing including quality control data and, if used, the brand name, model, and serial number of any XRF device (including downloaded XRF data);

(M) copies of all laboratory analysis on collected paint, soil, and dust samples;

(N) any other sampling results;

(O) any background information collected pursuant to paragraph (3) of this subsection;

(P) to the extent that they are used as part of the lead-based paint hazard determination, an evaluation of the adequacy of any previous inspections or analyses for the presence of lead-based paint, or other assessments of lead-related hazards;

(Q) a description of the location, type, and severity of identified lead-based paint hazards and any other potential lead hazards; and

(R) a description of recommended interim controls and abatement options for each identified lead-based paint hazard, and a suggested prioritization for taking each action based on the immediacy and severity of the hazard. If the use of an encapsulant or enclosure is recommended, the report shall include a maintenance and monitoring schedule for the encapsulant or enclosure.

(12) All risk assessment reports shall be retained for a minimum of three years.

(d) Abatement.

(1) A lead abatement shall be conducted only by an individual certified by the department as a worker or supervisor, and if conducted, shall be conducted according to the procedures in this subsection.

(2) A certified supervisor is required for each abatement project and shall be onsite during all work site preparation and during the post-abatement cleanup of work areas. At all other times when abatement activities are being conducted, the certified supervisor shall be available either directly or by phone or answering service, and able to be present at the work site in no more than two hours.

(3) The certified supervisor and the certified firm employing that supervisor shall ensure that all abatement activities are conducted according to the requirements of this subsection and all other federal, state, and local requirements.

(4) Notification of the commencement of lead-based paint abatement activities in target housing or child-occupied facilities or as a result of a federal, state, or local order shall be given to the department, according to the procedures established in §295.214 of this title (relating to Notifications), prior to the commencement of abatement activities.

(5) A written occupant protection plan shall be developed and implemented for all abatement projects and shall be prepared according to the following procedures.

(A) The occupant protection plan shall be unique to each residential dwelling or child-occupied facility and be developed prior to the abatement. The occupant protection plan shall describe the measures and management procedures that will be taken during the abatement to protect any individual with access to the abatement area from exposure to any lead-based paint hazards.

(B) A certified supervisor or project designer shall prepare and sign the occupant protection plan.

(C) The occupant protection plan must be kept at the worksite by the certified lead abatement firm at all times during any abatement activity.

(6) Unless presumed lead, a copy of the lead inspection or lead risk assessment report prepared for the lead abatement project shall be kept at the worksite by the certified lead abatement firm and be available for department inspection.

(7) The following work practices shall be followed during a lead abatement.

(A) Open-flame burning or torching of lead-based paint is prohibited.

(B) Machine sanding or grinding or abrasive blasting or sandblasting of lead-based paint is prohibited unless used with High Efficiency Particulate Air (HEPA) exhaust control capable of removing particles of 0.3 microns or larger from the air at 99.97% or greater efficiency.

(C) Dry scraping of lead-based paint is permitted only in conjunction with heat guns or around electrical outlets or when treating defective paint spots totaling no more than two square feet in any one room, hallway, or stairwell or totaling no more than 20 square feet on exterior surfaces.

(D) Operating a heat gun on lead-based paint is permitted only at a temperature below 1,100 degrees Fahrenheit.

(8) If conducted, soil abatement shall be conducted in one of the following ways.

(A) If soil is removed:

(i) the soil shall be replaced by soil with a lead concentration as close to local background as practicable, but less than 400 ppm; and

(ii) the soil that is removed shall not be used as top soil at another residential property or child-occupied facility.

(B) If soil is not removed, the soil shall be permanently covered, as defined in §295.202 of this title (relating to Definitions).

(9) The following post-abatement clearance procedures shall be performed by a certified inspector or risk assessor.

(A) Following an abatement, a visual inspection shall be performed to determine if deteriorated painted surfaces or visible amounts of dust, debris, or residue are still present. If deteriorated painted surfaces or visible amounts of dust, debris, or residue are present, these conditions must be eliminated prior to the continuation of the clearance procedures.

(B) Following the visual inspection and any post-abatement cleanup required by subparagraph (A) of this paragraph, clearance sampling for lead in dust shall be conducted. Clearance sampling may be conducted by employing single-surface sampling or composite sampling techniques.

(C) Dust samples for clearance purposes shall be taken using approved documented methodologies that incorporate adequate quality control procedures.

(D) Dust samples for clearance purposes shall be taken a minimum of one hour after completion of final post-abatement cleanup activities.

(E) The following post-abatement clearance activities shall be conducted as appropriate based upon the extent or manner of abatement activities conducted in or to the residential dwelling or child-occupied facility.

(i) After conducting an abatement with containment between abated and unabated areas, one dust sample shall be taken from one interior window sill and from one window trough (if present) and one dust sample shall be taken from the floors of each of no less than four rooms, hallways or stairwells within the containment area. In addition, one dust sample shall be taken from the floor outside the containment area. If there are less than four rooms, hallways or stairwells within the containment area, then all rooms, hallways or stairwells shall be sampled.

(ii) After conducting an abatement with no containment, two dust samples shall be taken from each of no less than four rooms, hallways or stairwells in the residential dwelling or child-occupied facility. One dust sample shall be taken from one interior window sill and window trough (if present) and one dust sample shall be taken from the floor of each room, hallway or stairwell selected. If there are less than four rooms, hallways or stairwells within the residential dwelling or child-occupied facility then all rooms, hallways or stairwells shall be sampled.

(iii) Following an exterior paint abatement, a visual inspection shall be conducted to determine and ensure that all horizontal surfaces in the outdoor living area closest to the abated surface shall be cleaned of visible dust and debris. In addition, a visual inspection shall be conducted to determine the presence of paint chips in bare soil in common areas, on the dripline or next to the foundation below any abated exterior surface. If paint chips are present, they must be removed from the site and properly disposed, according to all applicable federal, state, and local requirements.

(F) The rooms, hallways or stairwells selected for sampling shall be selected according to approved documented methodologies.

(G) The certified inspector or risk assessor shall compare the residual lead dust level (as determined by the laboratory analysis) from each single surface dust sample with clearance levels in paragraph (13) of this subsection for lead in dust on floors, interior window sills, and window troughs or from each composite dust sample with the applicable clearance levels for lead in dust on floors, interior window sills, and window troughs divided by half the number of subsamples in the composite sample. If the residual lead level in a single surface dust sample equals or exceeds the applicable clearance level or if the residual lead level in a composite dust sample equals or exceeds the applicable clearance level divided by half the number of subsamples in the composite sample, the components represented by the failed sample shall be recleaned and retested.

(10) In a multi-family dwelling with similarly constructed and maintained units, random sampling for the purposes of clearance may be conducted, provided:

(A) the individuals who abate or clean the units do not know which units will be selected in the sample;

(B) a sufficient number of units are selected for sampling to provide a 95% level of confidence that no more than 5.0% or 50 of the units (whichever is smaller) in the sampled population exceed the appropriate clearance levels; and

(C) the selected units are sampled and evaluated for clearance according to the procedures found in paragraph (9) of this subsection.

(11) All lead-based paint waste materials from the abatement project must be disposed of in accordance with applicable federal, state, and local requirements.

(12) A written abatement report shall be prepared by a certified supervisor or project designer as required in this section. This report shall be completed within sixty days of the stop-date on each abatement notification. The abatement report shall include the following information:

(A) start and completion dates of abatement;

(B) the name and address of each certified firm conducting the abatement and the name of each supervisor assigned to the abatement project;

(C) the occupant protection plan prepared pursuant to paragraph (5) of this subsection;

(D) the name, address, and signature of each certified risk assessor or inspector conducting clearance sampling and the date of clearance testing;

(E) a copy of all laboratory reports of clearance testing and all soil analyses (if applicable) and the name of each recognized laboratory that conducted the analyses;

(F) a detailed written description of the abatement, including abatement methods used, locations of rooms or components, or both where abatement occurred, reason for selecting particular abatement methods for each component, and any suggested monitoring of encapsulants or enclosures;

(G) the name, address, and telephone number of the waste disposal site; and

(H) the name, signature, and the department certification number of the person completing the post-abatement report and the completion date of the report.

(13) Clearance levels for lead in dust that are appropriate for the purposes of this section are:

(A) dust wipes for floors: <10 micrograms per square foot (µg/ft² );

(B) dust wipes for interior window sills: <100 µg/ft² ; and

(C) dust wipes for window troughs: <400 µg/ft² .

(e) Collection and laboratory analysis of samples. Any paint chip, dust, or soil samples collected pursuant to the standards contained in this section shall be:

(1) collected by persons certified by the department as a lead inspector or risk assessor; and

(2) ensured by the lead inspector or risk assessor to be analyzed by a laboratory recognized by the Environmental Protection Agency pursuant to §405(b) of the Toxic Substances Control Act (TSCA) as being capable of performing analyses for lead in paint chip, dust, and soil samples.

(f) Composite dust sampling. Composite dust sampling may only be conducted in the situations specified in subsections (b) - (d) of this section. If such sampling is conducted, the following conditions shall apply:

(1) composite dust samples shall consist of at least two subsamples;

(2) every component that is being tested shall be included in the sampling; and

(3) composite dust samples shall not consist of subsamples from more than one type of component.

(g) Determinations of presence of lead-based paint and lead hazards.

(1) Lead-based paint is present:

(A) on any surface that is tested and found to contain lead equal to or in excess of 1.0 milligrams per square centimeter or equal to or in excess of 0.5% by weight; and

(B) on any surface like a surface tested in the same room equivalent that has a similar painting history and that is found to be lead-based paint.

(2) A paint-lead hazard is present:

(A) on any friction surface that is subject to abrasion and where the lead dust levels on the nearest horizontal surface underneath the friction surface (e.g., the window sill or floor) are equal to or greater than the dust hazard levels identified in paragraph (3)(A) of this subsection;

(B) on any chewable lead-based paint surface on which there is evidence of teeth marks;

(C) where there is any damaged or otherwise deteriorated lead-based paint on an impact surface that is caused by impact from a related building component, such as a door knob that knocks into a wall or a door that knocks against its door frame; or

(D) if there is any other deteriorated lead-based paint in any residential building or child-occupied facility or on the exterior of any residential building or child-occupied facility.

(3) A dust-lead hazard is present in a residential dwelling or child-occupied facility:

(A) in a residential dwelling on floors and interior window sills when the weighted arithmetic mean lead loading for all single surface or composite samples of floors and interior window sills are equal to or greater than 10 µg/ft² for floors and 100 µg/ft² for interior window sills, respectively;

(B) on floors or interior window sills in an unsampled residential dwelling in a multi family dwelling, if a dust-lead hazard is present on floors or interior window sills, respectively, in at least one sampled residential unit on the property; or

(C) on floors or interior window sills in an unsampled common area in a multi-family dwelling, if a dust-lead hazard is present on floors or interior window sills, respectively, in at least one sampled common area in the same common area group on the property.

(4) A soil-lead hazard is present:

(A) in a play area when the soil-lead concentration from a composite play area sample of bare soil is equal to or greater than 400 parts per million (ppm); or

(B) in the rest of the yard when the arithmetic mean lead concentration from a composite sample (or arithmetic mean of composite samples) of bare soil from the rest of the yard (i.e., non-play areas) for each residential building on a property is equal to or greater than 1,200 ppm.

(h) Recordkeeping. All reports or plans required in this section shall be maintained by the certified firm or individual contractor, who prepared the report, for no less than three years. The certified firm or individual contractor also shall provide copies of these reports to the building owner who contracted for its services and these reports shall be made available to the department upon request. Building owners are subject to the requirements mandated under §1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 and 40 Code of Federal Regulations, §745, Subpart F, "Disclosure of Known Lead-based Paint and/or Lead-based Paint Hazards Upon Sale or Lease of Residential Property."

Source Note: The provisions of this §295.212 adopted to be effective February 19, 1996, 21 TexReg 968; amended to be effective May 10, 1998, 23 TexReg 4280; amended to be effective March 23, 2003, 28 TexReg 2347; amended to be effective January 1, 2005, 29 TexReg 11987; amended to be effective November 9, 2021, 46 TexReg 7608