Home Table of Contents

007.40.2-IX. Enforcement

AR ADC 007.40.2-IXArkansas Administrative CodeEffective: September 27, 2021

West's Arkansas Administrative Code
Title 007. Department of Health
Division 40. Center for Public Health Practice
Rule 2. Rules Pertaining to Lead-Based Paint Activities
Effective: September 27, 2021
Ark. Admin. Code 007.40.2-IX
Formerly cited as AR ADC 007.04.11-IX
007.40.2-IX. Enforcement
(a) Violations
(1) The following, in addition to any violations set forth in any chapter contained within this rule, shall be considered violations incurred by an individual conducting or offering to conduct lead -- based paint activities as defined by this rule on target housing or child-occupied facilities:
(A) Failure or refusal to permit access, entry, or inspection by Department staff in the performance of their duties;
(B) Failure or refusal to permit inspection or copying of any document or record required to be kept under the provisions of this rule by Department staff in the performance of their duties;
(C) Failure to establish or maintain copies required by this rule for three years;
(D) Failure to obtain training from a licensed training provider, an EPA-approved training program, or state or Indian Tribal training program approved by EPA and apply and receive certification from the Department prior to conducting or offering to conduct lead -- based paint activities for which the appropriate certification has not been received;
(i) Failure to obtain training from a licensed training provider, an EPA-approved training program, or a training program approved by state or Indian Tribal program which has been approved by EPA as an inspector or risk assessor and apply and receive certification from the Department in the appropriate discipline as an inspector or risk assessor prior to conducting or offering to conduct lead -- based paint inspections and post-abatement clearance procedures;
(ii) Failure to obtain training from a licensed training provider, an EPA-approved training provider, or a training provider approved by state or Indian Tribal program which has been approved by EPA as risk assessor and apply and receive certification from the Department in the appropriate discipline as a risk assessor prior to conducting or offering to conduct lead -- based paint lead-hazard screens, inspections, or risk assessments;
(iii) Failure to obtain training from a licensed training provider, an EPA-approved training provider, or a training program approved by state or Indian Tribal program approved by EPA as a supervisor or project designer and apply and receive certification from the Department in the appropriate discipline as a supervisor or project designer prior to conducting or offering to conduct lead -- based paint occupant protection plans;
(iv) Failure to obtain training from a licensed training provider, an EPA-approved training program, or a training program approved by a state or Indian Tribal program which has been approved by EPA as a supervisor or worker and apply and receive certification from the Department in the appropriate discipline as a supervisor or worker prior to conducting or offering to conduct a lead -- based paint abatement;
(v) Failure to obtain training from a licensed training program, an EPA-approved training program, or a training program approved by a state or Indian Tribal program as a supervisor and apply and receive certification from the Department as a supervisor prior to supervising and conducting or offering to conduct a lead -- based paint abatement;
(vi) Fraudulently obtaining training through misrepresentation of admission requirements;
(vii) Fraudulently obtaining certification through fraud or misrepresentation of certification requirements, including education, training, professional registration, or experience;
(viii) Negligently allowing the duplication or use of the certified individual's certification by another individual;
(ix) Failure to present certification documents at a lead -- based paint activities work site to Department staff in the performance of their duties;
(x) Failure to comply with the work practice standards set forth in this rule;
(a) Performing a lead -- based paint abatement with open-flame burning or torching of lead -- based paint;
(b) Performing a lead -- based paint abatement by machine sanding or grinding or abrasive blasting or sandblasting of lead -- based paint unless this process is used with a High Efficiency Particulate Air (HEPA) exhaust control which removes particles of 0.3 microns or larger from the air at 99.97 percent or greater efficiency;
(c) Performing a lead -- based paint abatement by dry scraping of lead -- based paint is only allowed in the following limited circumstances:
(1) In conjunction with a heat gun:
(2) Around electrical outlets;
(3) When treating defective paint spots totaling no more than 20 square feet on exterior surfaces;
(4) Performing a lead -- based paint abatement by operating a heat gun on lead -- based paint at temperatures below 1,100 degrees Fahrenheit;
(xi) Failure to work for a licensed lead -- based paint consultant, lead -- based paint contractor, or as an in-house employee as defined by this rule;
(xii) Failure to submit an accurate and complete Notice of Intent which omits any or all of the following:
(a) Failure to provide notification of the documented methodology used for the abatement project;
(b) Failure to provide the beginning date for the project, including site preparation;
(c) Failure to provide the applicable certification and license numbers;
(d) Failure to provide notification of scheduled work hours;
(e) Knowingly submitting a Notification as an Emergency Notification when the factual situation does not comply with the provisions of the rule concerning an emergency;
(2) The following shall be considered violations for a training manager or other person with supervisor authority over a lead -- based paint activities training program to perform the following:
(A) Failure to obtain a license from the Department prior to providing, offering to provide, or claiming to provide a lead -- based paint activities training course;
(B) Misrepresenting the contents of a lead -- based paint activities training course to the Department and/or the student population;
(C) Failure to submit information required pursuant to this rule in a timely manner;
(D) Failure to establish or maintain records required to be kept pursuant to this rule;
(E) Falsification of certification records, instructor qualifications, or other certification related information or documentation;
(F) Failure to comply with the training standards and requirements in this rule;
(G) Failure to comply with Federal or state lead -- based paint statutes or rules;
(H) Making false or misleading statements to the Department in application or reapplication documents upon which the Department relied in approving the application or reapplication;
(3) The following shall be considered violations for any firm performing lead -- based paint activities as defined by this rule on child-occupied facilities or target housing:
(A) Failure to obtain licensing from the Department prior to conducting or offering to conduct lead -- based paint activities;
(B) Failure to employ individuals who are both trained in EPA-approved training programs or state or Indian Tribal programs approved by EPA and certified by the Department to perform lead -- based paint activities on target housing or child-occupied facilities including the following;
(i) Failure to employ individuals who have both obtained training from an EPA-approved, or state or Indian Tribal EPA-approved training provider as an inspector or risk assessor and apply and receive certification from the Department in the appropriate discipline as an inspector or risk assessor prior to conducting or offering to conduct lead -- based paint inspections and post-abatement clearance procedures;
(ii) Failure to employ individuals who have both obtained training from an EPA-approved, or state or Indian Tribal EPA-approved training provider as risk assessor and apply and receive certification from the Department in the appropriate discipline as a risk assessor prior to conducting or offering to conduct lead -- based paint lead-hazard screens, inspections, or risk assessments;
(iii) Failure to employ individuals who have both obtained training from an EPA-approved, or state or Indian Tribal EPA-approved training provider as a supervisor or project designer and apply and receive certification from the Department in the appropriate discipline as a supervisor or project designer prior to conducting or offering to conduct lead -- based paint occupant protection plans;
(iv) Failure to employ individuals who have both obtained training from an EPA-approved, or state or Indian Tribal EPA-approved training provider as a supervisor or worker and apply and receive certification from the Department in the appropriate discipline as a supervisor or worker prior to conducting or offering to conduct a lead -- based paint abatement;
(v) Failure to employ individuals who have both obtained training from an EPA-approved, or state or Indian Tribal EPA-approved training provider as a supervisor and apply and receive certification from the Department prior to supervising and conducting or offering to conduct or supervise a lead -- based paint abatement;
(C) Failure to comply with work practice standards set forth in § VIII(a) through § VIII(i) including the following:
(i) Performing a lead -- based paint abatement with open-flame burning or torching of lead -- based paint;
(ii) Performing a lead -- based paint abatement by machine sanding or grinding or abrasive blasting or sandblasting of lead -- based paint unless this process is used with a High Efficiency Particulate Air (HEPA) exhaust control which removes particles of 0.3 microns or larger from the air at 99.97 percent or greater efficiency;
(iii) Performing a lead -- based paint abatement by dry scraping of lead -- based paint is only allowed in the following limited circumstances:
(a) In conjunction with a heat gun;
(b) Around electrical outlets;
(c) When treating defective paint spots totaling no more than 20 square feet on exterior surfaces;
(iv) Performing a lead -- based paint abatement by operating a heat gun on lead -- based paint at temperatures below 1,100 degrees Fahrenheit;
(D) Failure to comply with Federal or state lead -- based paint statutes and rules;
(E) Submission of false or misleading facts in any documentation provided to the Department upon which the Department relies upon in rendering any decision, including certification, licensing, or enforcement documents;
(F) Failure to maintain a supervisor who is both trained in an EPA -- approved lead -- based paint activities training course, or a state or Indian Tribal EPA -- approved training course and certified by the Department on site at the worksite during the lead -- based paint abatement project; site preparation, abatement, and post-abatement cleanup work.
(G) Failure to establish and maintain all records required to be kept by this rule for three years;
(b) Appeal
Any individual or firm subject to denial, revocation, modification, suspension, or other enforcement action by the Director shall be afforded an opportunity for notice and hearing.
(c) Penalty assessment
(1) The Department is authorized to institute a civil action in any court of competent jurisdiction to accomplish any or all of the following:
(A) Restrain any violation of, or compel compliance with, the provisions of the Lead -- Based Paint-Hazard Act of 2011 and any rules, orders, issued pursuant thereto;
(B) Affirmatively order that remedial measures be taken as may be necessary or appropriate to implement or effectuate the purposes and intent of the Lead -- Based Paint-Hazard Act of 2011;
(C) Recover all costs, expenses, and damages to the Department and any other agency or subdivision of the State in enforcing or effectuating the provisions of this Act, including, but not limited to, natural resource damages;
(2) Any person who violates any provision of this Rule may be assessed an administrative civil penalty not to exceed one thousand dollars ($1,000) per violation.
(A) Each day of a continuing violation may be deemed a separate violation for purposes of penalty assessment;
(B) No civil penalty may be assessed until the person charged with the violation has been given the opportunity for a hearing;
(C) All hearings and appeals arising under § IX(c)(2) shall be conducted in accordance with the procedures prescribed by Administrative Procedure Act;

Credits

Adopted Dec. 11, 2020; Sept. 27, 2021.
Current with amendments received through February 15, 2024. Some sections may be more current, see credit for details.
Ark. Admin. Code 007.40.2-IX, AR ADC 007.40.2-IX
End of Document