RULES AND REGULATIONS
Title 34--LABOR AND INDUSTRY
DEPARTMENT OF LABOR AND INDUSTRY
[34 PA. CODE CH. 203]
Lead Occupation Accreditation and Certification
[27 Pa.B. 5865] The Department of Labor and Industry (Department), by this order, adopts Chapter 203 (relating to lead-based paint occupations accreditation and certification) to read as set forth in Annex A.
A. Effective Date
These regulations are effective immediately upon publication in the Pennsylvania Bulletin.
B. Contact Person
For further information, the contact person is Sharon Lawson, Administrator, Asbestos Division, Bureau of Occupational and Industrial Safety, 1402 Labor and Industry Building, Seventh and Forster Streets, Harrisburg, PA 17120, (717)772-3396.
C. Statutory Authority
These regulations are adopted under the authority contained in section 4 of the Lead Certification Act (act) (35 P. S. § 5904) and section 1002 of the Lead-Based Paint Hazard Reduction Act (42 U.S.C.A. § 4851.)
D. Background and Purpose
The act was adopted to protect the public health and safety by prevention of exposure to lead through the regulation of lead-based paint activity. The purpose of the regulations is to establish a program to: train individuals engaged in lead-based paint activities to ensure that they have the necessary skill, training, experience and competence to perform these activities; accredit training providers to ensure that appropriate instruction is provided to persons engaged in lead-based paint abatement occupations; and to enforce work practices standards.
E. Public Comments
Notice of proposed rulemaking was published at 26 Pa.B. 1133 (March 16, 1996) and set forth a 30-day public comment period.
F. Summary of Comments and Changes From Proposed Rulemaking.
The Department received 17 public comments and comments from the Independent Regulatory Review Commission (IRRC).
Purpose of Proposed Rulemaking
Several of the commentators raised questions and suggested changes to the purpose of proposed rulemaking section in the Preamble. The Department chose to concentrate its review and changes in the substantive regulations rather than on the form of the Preamble.
One commentator stated that the regulations should state specific goals. The Legislative intent of the act which is also the purpose of the regulations is stated in the act (35 P. S. § 5902).
One commentator also seemed to suggest that there should be public hearings on these regulations. The Department has determined that written comments during the public comment period gave individuals and groups an adequate forum in which to make comments and suggestions concerning these regulations. The Department, prior to publication of the proposed rulemaking, solicited comments from the lead-based paint abatement industry and attempted (when appropriate) to incorporate some of the comments and suggestions made by the industry.
Section 203.1--Definitions.
Several individuals questioned why the definitions of ''abatement'' did not include ''renovation and remodeling or landscaping activities.'' Section 4(b) of the act (35 P. S. § 5904(b)) specifically states that the regulations can be no more stringent than the Environmental Protection Agency's (EPA) model plan. The EPA's model plan does not include renovation, remodeling or landscaping. The Department, therefore cannot regulate these activities.
Several commentators and IRRC stated that the definition of ''accessible surface'' used the term ''young child,'' which is not defined. The Department has amended the definition of ''accessible surface'' to use the term ''child,'' which is defined in the regulation.
Several commentators questioned the definition of ''contractor.'' One stated that it was not defined. It is defined in § 203.1 as ''certified contractor.'' The EPA model plan definitions are also incorporated by reference in § 203.2(d). One commentator stated that the definition of ''person'' does not include a contractor or firm. The definition of ''certified contractor'' includes both contractors and firms.
Two commentators suggested changes in the definition of ''friction surface.'' This definition is from the EPA model plan. To avoid confusion or conflict between State and Federal regulatory definitions, the Department has determined that a change to this definition would not be appropriate.
Several commentators stated that inspector and risk assessor occupations should be treated as separate and distinct occupations. Two comments were received regarding the planner-project designer occupational title. Several commentators and IRRC stated that the EPA's rulemaking and the act have different occupational titles with different training requirements. To deal with these differences, the Department has amended its regulations using the act's occupational titles and incorporating the EPA's occupational titles into the definitions of the act's titles.
One commentator stated the term ''public building'' should be replaced by ''child occupied facility'' in the EPA model plan. The Department has drafted the regulation to deal with changes in the Federal map. Section 203.2(d) (relating to general administrative requirements) incorporates the EPA model plan and its changes by reference.
One commentator disliked the use of the term ''single-family dwelling'' in the definition of ''residential dwelling.'' One commentator suggested changing the term ''zero-bedroom dwelling'' to ''zero-bedroom residential dwelling'' in the definition of ''target housing.'' Another commentator disagreed with the definition of ''superstructure.'' The Department cannot change the statutory definition of a term through regulations.
Another commentator felt that the definition of ''risk assessment'' was unclear. The definition of ''risk assessment'' is the same as the definition in the act. The Department has made no change in this definition.
Finally, one commentator stated that there were no definitions for ''worker'' and ''supervisor'' in these regulations. The Department has added those definitions to the regulations.
Section 203.2--General administrative requirements.
One commentator suggested changing the term ''employment'' to ''certification'' in § 203.2(b)(3) and expanding § 203.2(c) to include inspection and risk assessment. The Department changed subsection (b)(3) as suggested and amended subsection (c) to include all ''lead-based paint activities.''
Another commentator stated that the EPA may later add additional classifications and the Department may wish to do so also. This is addressed in § 203.2(d). The regulations reference 40 CFR Part 745 (relating to lead-based paint poisoning prevention in certain residential structures), and incorporate successor regulations by reference.
Section 203.3--Training course accreditation procedures
IRRC commented that § 203.3(b)(3) stated that to receive accreditation the applicant must meet the Department's requirements. IRRC felt that the regulations did not adequately state the Department's requirements. The Department has amended its regulations to state that the courses must comply with EPA requirements with citation to these requirements.
IRRC commented that the reaccreditation process for training providers seemed unnecessarily burdensome. To address IRRC's concern, the Department has revised § 203.3(b)(6) to clearly state that the reaccreditation process is separate from and less burdensome than the original accreditation process. The renewal application will only require a provider to reaffirm its address and identifying information and inform the Department of any changes to its courses.
IRRC also commented on the Department's requirement of the minimum number of multiple choice test questions that must be contained in each lead occupation course test. IRRC stated that the EPA did not have such a requirement. The Department has deleted its test question minimum requirement from § 203.3(c)(3). The Department will follow the EPA's requirements. Proposed § 203(c)(5) has also been amended to state that a passing grade on the course test is 70%. There was a typographical error in the proposal.
One commentator also questioned the grading requirement for the hands-on portion of the training. Neither the Department's regulations nor the EPA model plan have grading requirements for hands-on training.
IRRC commented that the requirement for training providers to provide the third-party testing agency with the student's address, telephone number, unique identification number and course test score within 5 days of the completion of the course was unduly burdensome. The Department has deleted the requirement in § 203.3(e) that the training provider provide the third-party testing agency with student identification information. The Department has amended this section to require that the training provider give the student documentation of successful completion of the training course and provide a copy of the documentation to the Department. The time frame to provide this information has also been expanded from 5 to 15 days.
One commentator questioned the required items on the training certificate. The Department has deleted the requirement in § 203.3(e)(3)(vi) which required the date of the course. All other requirements remain the same.
One commentator stated that the regulation failed to address specific training instructor qualifications. Section 203.2(d) incorporates by reference the EPA model plan, which sets out specific instructor qualifications in 40 CFR 745.255(c)(2)(i), (ii)--(iii).
IRRC questioned the Department's provision for conditional accreditation. Under the proposed regulations, conditional accreditation was given to providers so they may begin their course within a reasonable time after they apply for accreditation. Based on IRRC's suggestion, the Department has deleted its conditional accreditation provisions from § 203.3. The Department will not give conditional accreditation. The Department will only give full accreditation. If problems arise after a Department audit of the course, the Department will work with the training provider to correct the problem. If the problem continues, the Department will take steps to revoke the training provider's accreditation.
IRRC commented that the Department's annual reaccreditation is more stringent than the Federal requirement, which requires reaccreditation once every 3 years. IRRC stated that section 4 of the act prohibits the Department's regulations from being more stringent than the Federal regulations. The act specifically requires annual reaccreditation for training providers. The Department cannot promulgate regulations which are contrary to the act. It is the act, not the regulations, which is more stringent than the Federal regulations. To address IRRC's concerns about the burden of the reaccreditation process on training providers, the Department has revised § 203.3(b)(6) to state clearly that the reaccreditation process is separate from and less burdensome than the original accreditation process. The renewal application will only require a provider to reaffirm its address and identifying information and inform the Department of any changes to its courses.
Section 203.4--Certification procedures and requirements.
One commentator questioned the Department's enforcement resources. He stated that, unless the Department is able to provide adequate resources in its enforcement efforts and require lead abatement contractor notification, these regulations will only serve to increase costs for complying contractors. Section 203.10 (relating to contractor notification requirement) requires notification prior to commencing lead abatement work. Section 203.9 (relating to enforcement procedures and penalties) outlines the enforcement procedures. The Department plans to enforce the act vigorously.
IRRC commented that the regulations do not specifically require an individual to pass a certification examination to become fully certified. The Department has amended § 203.4(b) to state specifically that an individual must successfully complete a training course and pass a certification examination in order to become fully certified.
One commentator expressed concern about the different levels of regulations (Federal, State and local) and compliance with each. The Department has incorporated the EPA model plan in its regulations by reference. This should simplify compliance. Several commentators questioned the use of a third-party testing agency, stating that it was costly, inconvenient, and if used, should be used for all occupations. The EPA requires third-party testing for three of the lead-based paint occupations.
IRRC also recommended that the third-party test fee be stated in the regulations. The Department cannot at this point add that information to the regulations. The Department has not yet published its request for proposal for a third-party testing service, and therefore does not know what a third-party testing company will charge. Also, this fee may change over the years due to examination attendance and inflation. The Department will print the test fee with the general application and certification information which will be available to the public.
Several commentators questioned the course requirements for occupations. The course requirements follow the EPA model plan. One commentator asked if there should be a limit to the period of time in which an applicant can apply for certification in § 203.4(b). The certification period is based on the expiration of the training certificate. This creates an automatic 1-year time period from the completion of training for certification. The Department has further clarified this issue in § 203.4(g).
Several commentators questioned the certification of firms. The EPA model plan, which is incorporated by reference, addresses the certification of firms in 40 CFR 745.226 (relating to certification of individuals and firms engaged in lead-based paint activities; target housing and child occupied facilities). Pennsylvania will administer and enforce its program in accordance with the model plan.
Section 203.6--Work Practices
Several commentators stated that this section of the regulations referred to the Department of Housing and Urban Development (HUD) standards. HUD uses guidelines not standards. The regulations have been changed to reference HUD guidelines. One commentator noted that the EPA standards and HUD guidelines are not always consistent, and the Department's requirement that both HUD and EPA standards be followed could create some problems. The Department has amended § 203.6(a) to state that, if HUD and EPA standards conflict, the EPA standards should be followed.
IRRC commented that the regulations allowed the Department the broad power to require additional unspecified information at the work site. IRRC recommended that this provision be deleted or that the Department specifically state information required at the work site. The Department deleted § 203.6(b)(1)(vi), which would have allowed the Department to request additional information from contractors.
Section 203.7--Reciprocity
IRRC commented that the regulations stated that the Department may enter into reciprocal agreements with other jurisdictions for reciprocity, whereas, the act requires the Department to do so. The Department has amended § 203.7(a) to require the Department to establish reciprocal agreements with other jurisdictions for training and certification requirements.
IRRC along with several other commentators stated that the regulations should be amended to include a grandfather clause that will describe how the Department will exempt individuals who have successfully completed a lead-based paint training course that meets the Department educational standards. Section 203.7(a)(2) has been amended to specifically include occupation certification and course accreditation received prior to November 8, 1997.
Section 203.8--Fees
IRRC and numerous other commentators suggested that the fees are excessive. The Department has reviewed its fee structure in relationship to the information requested by IRRC in its comments. The fee structure was developed to cover costs only. The risk assessor, project designer and inspector fees have been reduced by $100. The supervisor fee was reduced by $25. The Department expects to do no more than cover the cost of the program with the fees collected.
Several commentators questioned the waiver of fees. The act provides a certification and accreditation fee waiver for State and local governments and nonprofit organizations. The Department is limited by statutory requirements and cannot extend this waiver to other parties.
Section 203.9--Enforcement procedures and penalties
One commentator stated that an appeal process should be developed for disagreement over citations. Section 203.9(e) allows for exceptions to Department orders to be filed within 15 days after receipt of notification of penalty. This allows for an appeal from a Department order or finding of a violation.
One commentator stated that § 203.9(b)(2) should be amended to state how long an order of violation should be posted on the premises. This commentator also stated that the act held the property owner liable and not the contractor. The act holds any person who causes, permits or allows lead-based paint activity to be performed in violation of the act liable. This would include contractors and property owners.
Section 203.10--Contractor notification requirements
IRRC commented that the notification requirement in the proposed regulations was duplicative of the notification required by the Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003) and the Department of Environmental Protection's (DEP) regulations. The Department attempted to change these regulations to reference DEP's regulation and to state that compliance with the DEP's regulations are sufficient to comply with these regulations and the act. However, after several discussions with DEP, it appears that the notification required by DEP under the Solid Waste Management Act will not provide the Department with sufficient notification that lead abatement activity will be occurring. DEP's notification only requires reporting of the amount of solid waste. It does not require notification of the type of waste disposed or the location of the abatement project. If the Department were to rely on the DEP solid-waste notification, it would be unable to enforce these regulations or the act.
IRRC commented that fax notification should be allowed and that the Department should state that in these regulations. The Department has amended § 203.10(a)(2) to allow fax notification.
Finally, IRRC questioned the need for the Department to have a copy of the contractors' Model OSHA Written Compliance Plan. In response the Department has deleted that provision from § 203.10(b).
G. Benefits and Costs
Affected Persons
These regulations will affect the general public, lead-based paint contractors, workers and training providers.
Fiscal Impact and Paperwork
These regulations will increase costs to the State and to lead-based paint abatement contractors, training providers and consumers of lead-based paint abatement activities. This is a public safety issue and will provide training to workers to prevent exposure and illness to lead-based paint abatement workers.
H. Sunset Date
A sunset date is not appropriate because these standards will be necessary as long as the EPA is regulating this industry and as long as lead-based paint abatement is occurring.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 28, 1996, the Department submitted a copy of the notice of proposed rulemaking published at 26 Pa.B. 1133 (March 16, 1996), to IRRC and to the Chairpersons of the House Committee on Labor Relations and the Senate Committee on Labor and Industry. In accordance with section 5(b.1) of the Regulatory Review Act, the Department provided the Committees with a copy of IRRC's comments.
In preparing these final-form regulations, the Department has considered the public comments received and the comments received from IRRC.
These final-form regulations were deemed approved by the House and Senate Committees on August 13, 1997. IRRC met on August 22, 1997, and approved the regulations in accordance with section 5(c) of the Regulatory Review Act.
J. Findings of the Department
The Department finds that:
(1) Public notice of intention to adopt these regulations was given in accordance with sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240)(45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa.Code §§ 7.1 and 7.2.
(2) A public-comment period was provided as required by law, and that all comments received were considered.
(3) Modifications to the proposed text do not enlarge the original purposes or the scope of the proposed regulations.
(4) These regulations are necessary and appropriate to the administration and enforcement of the act.
K. Order
The Department, acting in accordance with the authorizing statutes, hereby orders that:
(a) The regulations of the Department, 34 Pa.Code, is amended by adding §§ 203.1--203.10 to read as set forth in Annex A.
(b) The Secretary shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to legality and form, as required by law.
(c) The Secretary shall certify this order and Annex A, and shall deposit them with the Legislative Reference Bureau, as required by law.
(d) The regulations, as set forth in Annex A, shall take effect upon publication in the Pennsylvania Bulletin.
JOHNNY J. BUTLER,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 4596 (September 6, 1997).)
Fiscal Note: Fiscal Note 12-47 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART X. BUREAU OF OCCUPATIONAL AND INDUSTRIAL SAFETY
CHAPTER 203. LEAD-BASED PAINT OCCUPATION ACCREDITATION AND CERTIFICATION Sec.
203.1. Definitions. 203.2. General administrative requirements. 203.3. Training course accreditation procedures. 203.4. Certification procedures and requirements. 203.5. Denial, suspension or revocation of certification or accreditation. 203.6. Work practices. 203.7. Reciprocity. 203.8. Fees. 203.9. Enforcement procedures and penalties. 203.10. Contractor notification requirements. § 203.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings:
Abatement--A set of measures designed to eliminate or reduce lead-based paint hazards in accordance with standards established by the EPA.
(i) The term includes the following:
(A) The removal of lead-based paint and lead-contaminated dust, the permanent containment or encapsulation of lead-based paint, the replacement of lead-painted surfaces or fixtures and the removal or covering of lead-contaminated soil.
(B) The preparation, cleanup, disposal and post-abatement, clearance-testing activities associated with these measures.
(C) Less-than-full abatement whereby the sources of lead contamination are reduced sufficiently to create a ''lead-safe'' environment rather than a ''lead-free'' environment.
(ii) The term does not include renovation and remodeling or landscaping activities by contractors whose primary intent is not to permanently eliminate or reduce lead-based paint hazards, but is instead to repair, restore or remodel a given structure or dwelling.
(iii) The term does not include renovation and remodeling activities conducted by homeowners in their homes.
Accessible surface--An interior or exterior surface painted with lead-based paint that is accessible for a child to mouth or chew.
Accreditation--A certificate issued by the Department permitting a person to conduct lead-based paint occupation training courses.
Act--The Lead Certification Act (35 P. S. § 5901--5916).
CDC--The United States Centers for Disease Control and Prevention.
Certification--A certificate issued by the Department permitting a person to work in a lead-based paint occupation and which contains a recent photograph of that person.
Certified contractor--A person, firm, company or institution which has been approved by the Department to perform lead-based paint activities in this Commonwealth. This term includes a ''certified firm'' as defined by the EPA's regulation at 40 CFR 745.223 (relating to definitions).
Children--Individuals who are under 6 years of age.
Commercial building--A building constructed for the purpose of commercial or industrial activity and not primarily intended for use by the general public, including office complexes, industrial buildings, warehouses, factories and storage facilities.
Deleading--Activities conducted by a person who offers to eliminate or reduce lead-based paint or lead-based paint hazards or to plan these activities.
Demolition--Pulling down or completely destroying a building or structure or substantial removal of building elements.
Department--The Department of Labor and Industry of the Commonwealth.
Discipline--A classification for a specific lead-hazard activity.
EPA--The Environmental Protection Agency.
Friction surface--An interior or exterior surface that is subject to abrasion or friction. The term includes certain window, floor and stair surfaces.
Hazard activities--Any set of measures designed to eliminate or reduce lead hazards in accordance with standards established by the EPA and other Federal agencies.
Hazardous condition--A condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil or a lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces or impact surfaces that would result in adverse human health effects as established by the administrator of the EPA under section 403 of the Toxic Substance Control Act (15 U.S.C.A. § 2683).
HUD--The Department of Housing and Urban Development.
Impact surface--An interior or exterior surface that is subject to damage by repeated impacts; for example, certain parts of door frames.
Inspection--
(i) A surface-by-surface investigation to determine the presence of lead-based paint, as provided in section 302(c) of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C.A. § 4822(c)).
(ii) The provision of a written report explaining the results of the investigation.
Inspector-risk assessor--A person trained and certified to perform all activities of the inspector-technician as well as to identify the presence of lead-based paint and to collect additional information designed to assess the level of risk to residents of target housing. The term includes a ''certified risk-assessor'' as defined by the EPA's regulation in 40 CFR 745.223.
Inspector-technician--A person trained and certified to perform inspections solely for the purpose of determining the presence of lead-based paint through the use of onsite testing, such as XRF analysis, and the collection of samples for laboratory analysis. The term includes a ''certified inspector'' as defined by the EPA's regulation in 40 CFR 745.223.
Lead-based paint--Paint or other surface coatings that contain lead in excess of the most current HUD standards, or in the case of paint or other surface coatings on target housing, such lower level as may be established by the Secretary of HUD under section 302(c) of the Lead-Based Paint Poisoning Prevention Act.
Lead-based paint activities--The term includes the following:
(i) With respect to target housing, the term includes risk assessment, inspection and abatement.
(ii) With respect to a public building constructed before 1978, or a commercial building, bridge or other structure or superstructure, the term includes identification of lead-based paint and materials containing lead-based paint, deleading and removal of lead from bridges and demolition.
Lead-based-paint hazard--A condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil or lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces or impact surfaces, which exposure would result in adverse human health effects as established by the Department.
Nonprofit training provider--A training provider organized for a purpose not involving pecuniary profit, incidental or otherwise, to its members.
Occupations--Occupations include worker, supervisor, inspector, risk-assessor, inspector-technician, project designer and all other occupations covered by EPA and OSHA rules, regulations and guidelines on lead-based paint activities.
OSHA--The Occupational Safety and Health Administration.
Person--Any of the following:
(i) An individual.
(ii) A corporation, partnership or association.
(iii) The Commonwealth, including an agency and instrumentality of the Commonwealth.
(iv) A political subdivision, including an agency or instrumentally of a political subdivision.
Planner-project designer--A person trained and certified to plan and design lead-based-paint activities. The term includes a ''certified project designer'' as defined by the EPA's regulation in 40 CFR 745.223.
Public building--A building constructed prior to 1978 which is generally open to the public or occupied or visited by children. The term includes schools, day-care centers, museums, airport terminals, hospitals, stores, restaurants, office building, convention centers and government buildings. The term excludes target housing.
Renovation and remodeling activities--Activities whose primary intent is not to permanently eliminate or reduce lead-based-paint hazards, but is instead to repair, restore or remodel a given structure or dwelling.
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