16 Del. Admin. Code § 4459-4.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 4459-4.0 - Certification of Individuals and Firms Engaged in Lead-Based Paint Activities

4.1 Certification of individuals.

4.1.1 Individuals seeking certification to engage in lead-based paint activities must either:

4.1.1.1 Submit to the Secretary, an application demonstrating that they meet the requirements established in subsections 4.2 and 4.3 for the particular discipline for which certification is sought; or

4.1.1.2 Pass the appropriate State of Delaware certification examination and submit to the Secretary, an application that includes:

4.1.1.2.1 A copy of a valid lead-based paint activities certification (or equivalent) from a State or Tribal program that has been authorized by the EPA;

4.1.1.2.2 A digital photo of the applicant; and

4.1.1.2.3 The associated certification fee.

4.1.2 Following the submission of an application demonstrating that all the requirements of this section have been met, the Secretary shall certify an applicant as an Inspector, Risk Assessor, Supervisor, Project Designer, or Abatement Worker, as appropriate.

4.1.3 Upon receiving certification from the Secretary, individuals conducting lead-based paint activities shall comply with the work practice standards for performing the appropriate lead-based paint activities as established in Section 5.0 of these regulations.

4.1.4 It shall be a violation of the work practice standards for conducting lead-based paint activities for an individual to conduct any of the lead-based paint activities described in Section 5.0 if that individual has not been certified by the Secretary pursuant to this section to do so.

4.1.5 An individual certified outside of Delaware as an Abatement Worker under a jurisdiction with which Delaware does not have reciprocity (see subsection 6.3) may apply for provisional certification for a period of 1 year provided the individual's certification is issued through an EPA-approved training course and approved provider.

4.2 Discipline Requirements.

4.2.1 To become certified as an Inspector, Risk Assessor, or Supervisor an individual must:

4.2.1.1 Successfully complete an accredited course in the appropriate discipline and receive a course completion certificate from an accredited training provider;

4.2.1.2 Pass the certification examination in the appropriate discipline; and,

4.2.1.3 Meet or exceed the following experience and education requirements:

4.2.1.3.1 Inspectors.

4.2.1.3.1.1 No additional experience or education requirements.

4.2.1.3.2 Risk Assessors.

4.2.1.3.2.1 Successful completion of an accredited training course for Inspectors; and

4.2.1.3.2.2 Bachelor's degree and 1 year of experience in a related field (e.g., lead, asbestos, environmental remediation work, or construction), or an associate's degree with 2 years' experience in a related field; or

4.2.1.3.2.3 Certification as an industrial hygienist, professional engineer, registered architect or certification in a related engineering/health/environmental field (e.g. safety professional, environmental scientist); or

4.2.1.3.2.4 A high school diploma (or equivalent), and at least 3 years of experience in a related field (e.g. lead, asbestos, environmental remediation work or construction).

4.2.1.3.3 Supervisor.

4.2.1.3.3.1 One year of experience as meeting the standards of a certified lead-based paint Abatement Worker; or

4.2.1.3.3.2 At least 2 years of experience in a related field (e.g., lead, asbestos, or environmental remediation work) or in the building trades.

4.2.2 To become certified as an Abatement Worker or Project Designer an individual must:

4.2.2.1 Successfully complete an accredited course in the appropriate discipline and receive a course completion certificate from an accredited training provider; and

4.2.2.2 Meet or exceed the following experience and education requirements:

4.2.2.2.1 Abatement Workers.

4.2.2.2.1.1 No additional experience or education requirements.

4.2.2.2.2 Project Designers.

4.2.2.2.2.1 Successful completion of an accredited training course for Supervisors.

4.2.2.2.2.2 Bachelor's degree in engineering, architecture, or a related profession, and 1 year of experience in building construction and design or a related field; or,

4.2.2.2.2.3 Four years of experience in building construction and design or a related field.

4.2.3 The following documents shall be recognized by the Secretary as evidence of meeting the requirements listed in subsection 4.2:

4.2.3.1 Official academic transcripts or diploma, as evidence of meeting the education requirements.

4.2.3.2 Resumes, letters of reference, or documentation of work experience, as evidence of meeting the work experience requirements.

4.2.3.3 Course completion certificates from lead-specific or other related training courses, issued by accredited training programs, as evidence of meeting the training requirements.

4.2.4 In order to take the certification examination for a particular discipline an individual must:

4.2.4.1 Successfully complete an accredited course in the appropriate discipline and receive a course completion certificate from an accredited training provider.

4.2.4.2 Meet or exceed the education and experience requirements in subsections 4.2.1 and 4.2.2.

4.2.5 After passing the appropriate certification examination (if required); submitting an application demonstrating that the individual meets the appropriate training, education, and experience prerequisites described in subsections 4.2.1 and 4.2.2; signing a statement that certified individuals must permit the Secretary access to enter premises or facilities where the certified individual conducts business, including work sites, to execute reasonable inspection, including taking samples, to ensure compliance with regulations; and paying the associated fee, an individual shall be issued a certificate by the Secretary. To maintain certification, an individual must be re-certified as described in subsection 4.4.

4.2.6 An individual may take the certification examination for a lead inspector, risk assessor or supervisor no more than 2 times within 6 months of the date of the initial accredited program course test for that discipline.

4.2.7 If an individual does not pass the certification examination for a lead inspector, risk assessor or supervisor within 6 months of the date of the initial accredited program course test, the individual must retake the appropriate course from an accredited training program before reapplying for certification.

4.3 Re-Certification of Individuals.

4.3.1 Except as provided in subsection 4.3.2, to maintain certification in a particular discipline, a certified individual shall apply to and be re-certified by the Secretary in that discipline within 2 years from the date of successful completion of the initial or refresher training course, as applicable.

4.3.2 An individual may apply to and be recertified by the Secretary during the 6-month period following certification expiration only if the individual has not performed any lead-based paint activities authorized by that certification after the date that the certification expired.

4.3.3 An individual shall be re-certified if the individual successfully completes the appropriate accredited refresher training course, submits a valid copy of the appropriate refresher course completion certificate, signs a statement that certified individuals must permit the Secretary access to enter premises or facilities where the certified individual performs lead-based paint activities, including work sites, to execute reasonable inspection, including taking samples, to ensure compliance with regulations, and pays the associated fee.

4.3.4 An individual may maintain re-certification for multiple disciplines by successfully completing the appropriate highest discipline accredited refresher training course and meeting the experience and education parameters defined in subsection 4.2 for those disciplines.

4.4 Certification of firms.

4.4.1 All firms which perform or offer to perform any of the lead-based paint activities described in Section 5.0 shall be certified by the Secretary.

4.4.2 A firm seeking certification shall submit to the Secretary, the required fee, a certification application, and a letter attesting the following:

4.4.2.1 The firm shall only employ appropriately certified employees to conduct lead-based paint activities;

4.4.2.2 The firm and its employees shall follow the work practice standards in Section 5.0 for conducting lead-based paint activities; and

4.4.2.3 The firm and its employees shall permit the Secretary access to enter premises or facilities where the certified firm conducts business, including work sites, to execute reasonable inspection, including taking samples, to ensure compliance with regulations.

4.4.3 From the date of receiving the firm's certification application, letter, and the associated fee, the Secretary shall have 45 days to approve or disapprove the firm's request for certification. Within that time, the Secretary shall respond with either a certificate of approval or a letter describing the reasons for disapproval.

4.4.4 The firm shall maintain all records pursuant to requirements in Section 5.0.

4.4.5 Firms shall apply to the Secretary for certification to engage in lead-based paint activities.

4.4.6 Combined Renovation and Lead-Based Paint Activities Firm Applications will have no additional cost to the initial $550 Delaware certification fee for the Lead-Based Paint Activities Firm Applications.

4.5 Recertification of firms.

4.5.1 To maintain certification, a firm shall apply to and be re-certified by the Secretary every 2 years.

4.5.2 The recertification application shall be approved if it meets the requirements in subsection 4.4.2 and includes the appropriate fee.

4.6 Suspension, revocation, and modification of certifications of individuals engaged in lead-based-paint activities.

4.6.1 The Secretary may, after notice and opportunity for hearing, suspend, revoke, or modify an individual's certification if an individual has:

4.6.1.1 Obtained training documentation through fraudulent means.

4.6.1.2 Gained admission to and completed an accredited training program through misrepresentation of admission requirements.

4.6.1.3 Obtained certification through misrepresentation of certification requirements or related documents dealing with education, training, professional registration, or experience.

4.6.1.4 Performed work requiring certification at a job site without having proof of certification.

4.6.1.5 Permitted the duplication or use of the individual's own certificate by another.

4.6.1.6 Performed work for which appropriate certification has not been received.

4.6.1.7 Failed to comply with the appropriate work practice standards for lead-based paint activities in Section 5.0.

4.6.1.8 Failed to comply with Federal, State of Delaware or local lead-based paint statutes or regulations.

4.6.1.9 Denied the Secretary access to enter premises or facilities where the certified individual conducts business, including work sites, to execute reasonable inspection, including taking samples, to ensure compliance with regulations.

4.6.2 In addition to an administrative or judicial finding or violation, for purposes of this section only, execution of a consent agreement in settlement of an enforcement action constitutes evidence of a failure to comply with relevant statutes or regulations.

4.7 Suspension, revocation, and modification of certification of firms engaged in lead-based paint activities.

4.7.1 The Secretary may, after notice and opportunity for hearing, suspend, revoke, or modify a firm's certification if a firm has:

4.7.1.1 Performed work requiring certification at a job site with individuals who are not certified.

4.7.1.2 Failed to comply with the work practice standards established in Section 5.0.

4.7.1.3 Misrepresented facts in its certification application or letter.

4.7.1.4 Failed to maintain required records.

4.7.1.5 Failed to comply with Federal, State of Delaware, or local lead-based paint statutes or regulations.

4.7.1.6 Denied the Secretary access to enter premises or facilities where the certified firm conducts business, including work sites, to execute reasonable inspection, including taking samples, to ensure compliance with regulations.

4.7.2 In addition to an administrative or judicial finding of violation, for purposes of this section only, execution of a consent agreement in settlement of an enforcement action constitutes evidence of a failure to comply with relevant statutes or regulations.

4.8 Procedures for suspension, revocation, or modification of the certification of individuals or firms.

4.8.1 Prior to taking action to suspend, revoke, or modify the certification of any individual or firm, the Secretary shall notify the affected entity in writing of the following:

4.8.1.1 The legal and factual basis for the suspension, revocation, or modification.

4.8.1.2 The anticipated commencement date and duration of the suspension, revocation, or modification.

4.8.1.3 Actions, if any, which the affected entity may take to avoid suspension, revocation, or modification or to receive certification in the future.

4.8.1.4 The opportunity and method for requesting a hearing prior to final action to suspend, revoke, or modify certification.

4.8.1.5 Any additional information which the Secretary may provide.

4.8.2 If a hearing is requested by the certified individual or firm, the Secretary shall:

4.8.2.1 Provide the affected entity an opportunity to offer written statements in response to the Secretary's assertions of the legal and factual basis for its proposed action, and any other explanations, comments, and arguments it deems relevant to the proposed action.

4.8.2.2 Provide the affected entity such other procedural opportunities as the Secretary may deem appropriate to ensure a fair and impartial hearing.

4.8.2.3 Appoint an official Hearing Officer. No person shall serve as Hearing Officer if the person has had any prior involvement with the specific matter.

4.8.3 The Hearing Officer appointed pursuant to subsection 4.8.2.3 shall:

4.8.3.1 Conduct a fair, orderly, and impartial hearing within 90 days of the request for a hearing.

4.8.3.2 Consider all relevant evidence, explanation, comment, and argument submitted.

4.8.3.3 Notify the Secretary in writing within 45 days of completion of the hearing of the Hearing Officer's decision. The Secretary shall either accept or reject the decision. If accepted, the Secretary issues a final order within 45 of receiving the Hearing Officer's decision. Such an order is a final agency action, which may be subject to judicial review.

4.8.4 If the Secretary determines that the public health, interest, or welfare warrants immediate action, to suspend the certification of any individual or firm, or if an individual or firm denies the Secretary access for purposes of inspection or taking samples, prior to the opportunity for a hearing, the Secretary shall:

4.8.4.1 Notify the affected entity of its intent to immediately suspend certification for the reasons listed in subsections 4.6.1 or 4.7.1. If a suspension, revocation, or modification notice has not previously been issued pursuant to subsection 4.8.1, it shall be issued at the same time the immediate suspension notice is issued.

4.8.4.2 Notify the affected entity in writing of the grounds upon which the immediate suspension is based and why it is necessary to suspend the entity's certification before an opportunity for a hearing to suspend, revoke, or modify the individual's or firm's certification.

4.8.4.3 Notify the affected entity of the commencement date and duration of the immediate suspension.

4.8.4.4 Notify the affected entity of its right to request a hearing on the immediate suspension within 15 days of the suspension taking place and the procedures for the conduct of such a hearing.

4.8.5 Any notice, decision, or order issued by the Secretary under this section, any transcripts or other verbatim record of oral testimony, and any documents filed by a certified individual or firm in a hearing under this section shall be available to the public. Any such hearing at which oral testimony is presented shall be open to the public, except that the Hearing Officer may exclude the public to the extent necessary to allow presentation of information which may be entitled to confidential treatment.

4.9 To execute reasonable inspections, including taking samples, and ensure compliance with these regulations, the Secretary has the authority to enter premises where certified firms and certified individuals conduct business and perform work.

16 Del. Admin. Code § 4459-4.0

16 DE Reg. 537 (11/01/12)
26 DE Reg. 697 (2/1/2023)
27 DE Reg. 766 (4/1/2024) (Final)