40 CFR Part 745, Subpart E:
Residential Property Renovation
State, Territorial, and Tribal Program Authorization Guidance
Amended
December 28, 2017
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Table of Contents
CHAPTER 1: INTRODUCTION
A. PURPOSE OF THIS DOCUMENT Page 3
B. BACKGROUND Page 3
C. EPA'S APPROACH TO AUTHORIZING STATE AND TRIBAL PROGRAMS Page 4
D. THE FEDERAL RENOVATION PROGRAM Page 5
1. Federal Renovation Program Description Page
(a). Scope of Rule Page 5
(b). Applicability Page 6
(c). Pre-Renovation Education Requirements Page 7
(d). Renovation, Repair and Painting Requirements Page 7
2. Revisions to Federal Renovation Program Page
CHAPTER 2. PROGRAM AUTHORIZATION & APPLICATION PROCESS
A. INTRODUCTION Page 9
B. PURPOSE OF PROGRAM AUTHORIZATION Page 9
C. APPROVAL CRITERIA EXPLAINED Page 10
1. "At Least As Protective As" Page 10
2. "Adequate Enforcement" Page 11
D. APPLICATION PROCESS Page 11
1. Public Notice Page 11
2. Application Contents Page 11
3. Application Submission Page 12
4. Agency Review Page 12
E. COMPONENTS OF AN APPLICATION Page 13
1. Cover Sheet Page 13
2. Program Summary Page 13
3. Governor's Letter Page 13
4. Attorney General's Statement Page 14
5. Program Description Page 16
6. Program Certification (Available only to States) Page 16
CHAPTER 3. PROGRAM DESCRIPTION
A. INTRODUCTION Page 17
B. NARRATIVE DESCRIPTION OF PROGRAM Page 18
1. Pre-Renovation Education Page
2. Renovation, Repair and Painting Page
3. All Programs Page
C. PROGRAM ANALYSIS Page 19
CHAPTER 4. ENFORCEMENT AND COMPLIANCE PROGRAM DESCRIPTION
A. INTRODUCTION Page 20
B. INTERIM APPROVAL Page 21
C. FINAL APPROVAL Page 22
D. ENFORCEMENT AND COMPLIANCE ELEMENT 1 -
ADEQUATE STANDARDS, REGULATIONS, AND AUTHORITY Page 23
1. Renovation Requirements Page
2. Authority to Enter Page
3. Flexible Remedies Page
4. Adequate Resources Page
E. ENFORCEMENT AND COMPLIANCE ELEMENT 2 - PERFORMANCE COMPONENT Page 24
F. ENFORCEMENT AND COMPLIANCE ELEMENT 3 - SUMMARY ON PROGRESS
AND PERFORMANCE Page 24
STATE/TRIBAL PROGRAM AUTHORIZATION APPLICATION—COVER SHEET Page 25
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APPENDICES
A. Pre Renovation Education & RRP Application Checklist
B. Key Definitions
C. Application Template
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CHAPTER 1. INTRODUCTION
A. PURPOSE OF THIS DOCUMENT
This guidance document has been developed to assist States, Territories and Federally-
recognized Indian Tribes (Tribes) who are seeking authorization of Lead-Based Paint
Renovation Programs pursuant to 40 C.F.R., Part 745, subpart E and Section 404 of the Toxic
Substances Control Act (TSCA). This document does not establish any new Agency policy or
position and is not intended to replace or supplant any Federal regulation. Rather, this document
is intended to clarify and explain an existing Federal regulation, and any factual or interpretive
deviation from the regulation shall be construed in favor of the regulatory language or preamble
of the final rule. Please consult the final rule or your Regional Lead Coordinator (RLC) with any
questions.
Section 402(a) of TSCA directed the Agency to promulgate regulations governing lead-
based paint activities to ensure that individuals engaged in such activities are properly trained;
that training programs are accredited; and that contractors engaged in such activities are certified.
Section 404(a) of TSCA provides that any State that wishes to administer and enforce these
regulations may submit an application to the Administrator for authorization of such a program.
The Federal lead-based paint activities program is codified at 40 C.F.R. Part 745 subpart L.
Regulations governing the authorization of State, Territorial, and Tribal programs are codified at
40 C.F.R. Part 745, subpart Q.
Section 402(c)(3) of TSCA directed the Agency to revise the regulations under Section
402(a) to apply to renovation and remodeling activities that create lead-based paint hazards. In
2008, EPA promulgated regulations for the conduct of renovations for compensation in target
housing and child-occupied facilities (codified at 40 C.F.R. Part 745 subpart E). EPA also
modified the Pre-Renovation Education (PRE) provisions in 40 C.F.R. Part 745, subpart E. At
the same time, EPA amended the regulations for the authorization of State, Territorial or Tribal
programs at 40 C.F.R. Part 745, subpart Q, to also apply to renovation and remodeling activities.
Several rulemakings have amended the RRP Rule since 2008, including the procedures and
requirements for State and Tribal program authorization. This guidance addresses the
authorization of State and Tribal Pre-Renovation Education (PRE) and Renovation, Repair and
Painting (RRP) programs, including any revised requirements related to changes in Part 745
subparts E, L, and Q.
B. BACKGROUND
Title X of the Housing and Community Development Act of 1992, also known as the
Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X) was enacted to develop a
national strategy to build an infrastructure necessary to eliminate lead-based paint hazards in
housing and to establish a workable framework for lead-based paint hazard evaluation and
reduction. Title X amended TSCA by adding Title IV—Lead Exposure Reduction. Section 402
of Title IV directed EPA to establish regulations to ensure that individuals engaged in lead-based
paint activities are properly trained, that training programs are accredited, and that contractors
are certified. The statute also directed the Agency to develop standards for the conduct of these
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activities. EPA promulgated regulations that govern lead-based paint activities, including
inspections, risk assessments, lead hazard screens, and abatement in target housing and child-
occupied facilities, as well as regulations for pre-renovation education pursuant to Section 406(b)
of TSCA and hazard identification pursuant to Section 403 of TSCA. Currently, there are 45
States and Tribes that have authorized lead-based paint activities programs.
On January 10, 2006, pursuant to Section 402(c)(3) of TSCA, EPA issued a proposed
regulation covering renovation performed for compensation in target housing. The proposal
contained requirements designed to address lead-based paint hazards created by renovation,
repair and painting activities that disturb lead-based paint. EPA also proposed to allow interested
States, Territories, and Tribes the opportunity to apply for and receive authorization to
administer and enforce all of the elements of the new renovation provisions. EPA received 250
comments on the proposal and some commenters observed that the proposal did not cover
buildings where children under the age of six visit regularly, such as day care centers, pre-
schools and kindergarten classrooms. As a result, on June 5, 2007, EPA issued a Supplemental
Notice of Proposed Rulemaking to add child-occupied facilities to the universe of buildings
covered. On April 22, 2008, under the authority of Section 402(c)(3), 404, 406 and 407 of
TSCA, EPA issued the final RRP rule. The RRP Rule was fully effective April 22, 2010.
Shortly after the RRP Rule was finalized, several petitions were filed challenging the
RRP Rule. As part of a settlement agreement, EPA agreed to propose certain changes to the RRP
Rule regarding the opt-out, recordkeeping, and other miscellaneous provisions. On May 6, 2010,
EPA finalized the Opt-Out Rule, effectively eliminating the opt-out provision. The Rule also
made minor changes to the recordkeeping, certification, accreditation and state authorization
requirements. The Opt-Out Rule was effective July 6, 2010. EPA also agreed to separately
propose changes to the RRP Rule regarding clearance and dust wipe testing, paint chip sampling
by certified renovators, the training program accreditation application process, standards for e-
learning in accredited training programs, minimum enforcement provisions for authorized state
and tribal renovation programs, and minor revisions to the training and certification requirements
for renovators. On July 15, 2011, EPA finalized the Clearance Rule. The Clearance Rule does
not promulgate clearance and dust wiping testing requirements, but includes several revisions to
the RRP Rule. In addition to the areas of revision listed above, EPA also clarified the
requirements for vertical containment on exterior renovation projects, the prohibited or restricted
work practice provisions, and the requirements for high efficiency particulate air (HEPA)
vacuums. The Clearance Rule is effective October 4, 2011.
As provided in Section 404(a) of TSCA, and consistent with EPA's Policy for the
Administration of Environmental Programs on Indian Reservations, any State or Tribe that seeks
to administer and enforce the regulations developed pursuant to Section 402 or 406 may submit
an application to the Administrator for authorization of such a program. Also, because TSCA §
3(13) defines the term State to mean any State or territory or possession of the United States, it
should be understood that the term State in this document also means any territory or possession
of the United States. As provided in Section 404(b), the Administrator will approve such an
application if a State or Tribal program is found to be at least as protective as the Federal
program, and if it provides adequate enforcement. For any State, or Tribe that does not have a
402 or 406 program authorized by the Agency, the Federal program will go into effect.
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C. EPA'S APPROACH TO AUTHORIZING STATE AND TRIBAL PROGRAMS
Agency regulations, as amended by the RRP Rule, provide that "States and Indian Tribes
may seek authorization to administer and enforce subpart L of this part pursuant to this subpart at
any time. States and Indian Tribes may seek authorization to administer and enforce the PRE
provisions of subpart E of this part pursuant to this subpart at any time. States and Indian Tribes
may seek authorization to administer and enforce all of subpart E of this part pursuant to this
subpart effective June 23, 2008." Although authorization for both the PRE Rule and the RRP
Rule constitutes a complete Lead-Based Paint Renovation Program (Renovation Program), and
EPA believes that a State or Tribal, Renovation Program is more effective where both are
authorized, authorization for both is not required.
It is the intention of EPA to maximize the number of State and Tribal programs approved.
The Agency believes that this was the intention of Congress and that this program can be better
managed and implemented at the State and Tribal level. The Agency has pursued the goal of
maximizing the number of State and Tribal authorized programs using several strategies. First,
the Agency has consulted with many States and Tribes during the development of both the
Federal Renovation Program and the requirements for program approval. The goal of these
consultations was to produce a regulation that is both an appropriate and protective model for
States and Tribes to emulate an effective and functional Federal Renovation Program. The
procedures for program approval outlined here are intended to allow the authorization of State
and Tribal programs that are unique, while promoting national consistency. Second, the Agency
has produced this document to assist States and Tribes in applying for program authorization by
making the application process as easy and straightforward as possible. This authorization
process can be used either for those States and Tribes that have received prior approval for a
Federally-authorized Lead-Based Paint Activities Training and Certification Program under
TSCA Section 402(a), or for those that do not have an authorized Lead-Based Paint Activities
Training and Certification Program under TSCA Section 402(a). Furthermore, EPA encourages
States to use Program Certification as described in Chapters 2.D and 2.E of this guidance
document where and as appropriate. The advantage of this method of program authorization is
that the State's program is deemed authorized at the time the Agency receives the complete
application. This method is not available to Tribes because Tribes must first demonstrate to the
Agency that they meet the criteria at 40 CFR § 745.324(b)(4) for Treatment as a State ("TAS").
Although Tribes may be able to demonstrate that they have been approved for "Treatment as a
State" for any other environmental program (satisfying two of the four TAS criteria), the Agency
must make a separate determination that a Tribe has adequate jurisdictional authority and
administrative and programmatic capability regarding its lead program before it can determine
that the Tribe should be treated as a State.
This document describes EPA's expectations and the statutory and regulatory criteria for
program approval and provides sample letters and other materials that should facilitate the
application process.
Finally, the Agency will continue to devote considerable resources, both at the regional
and headquarters levels, to working with State or Tribal regulatory agencies and legislatures as
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they develop their enabling legislation or regulations, through their submission of an application
for program authorization.
Using this guidance with its appendices will help States and Tribes to develop a
successful authorization application. Appendix A is a list of all the items that should be covered
in the application and appendix B lists select definitions for the Federal Renovation Program.
Comparing the definitions in Appendix B and the regulations with the definitions in the State or
Tribal application will help to identify any differences that will need to be resolved prior to
approval. Appendix C is a series of worksheets that guide an applicant through the application
process; a step by step process outline and template that can make it easier to identify and
resolve variations from the Federal Renovation Program.
D. THE FEDERAL RENOVATION PROGRAM
On August 29, 1996, the Agency published the requirements and standards that constitute
the Federal Program for the training and certification of lead-based paint activities professionals
(codified at 40 C.F.R. Part 745, subpart L). These regulations became effective on August 31,
1998, in States and Indian Country without authorized programs. On June 22, 2008, the Agency
published the requirements and standards for renovation activities that disturb lead-based paint in
target housing and child-occupied facilities (the RRP Rule, codified at 40 C.F.R. Part 745,
subpart E).
Subsequently, EPA finalized several rules modifying and clarifying the Federal Program
requirements. The Fee Rule finalized on March 20, 2009, established fees for certification and
accreditation for the Federal Renovation Program and revised fees for the Federal Lead-Based
Paint Activities Program. The Minor Amendments to RRP Rule, finalized on July 15, 2009,
requires accredited training providers to submit post-course notifications, including photographs
of successful trainees, following all renovator and dust sampling technician courses. The Opt-
Out Rule, finalized on May 6, 2010, eliminated the opt-out provision and made several minor
changes to the recordkeeping, certification, accreditation and state authorization requirements.
The Clearance Rule, finalized on July 15, 2011, allows paint chip sampling by certified
renovators, and revised the training program accreditation application process, standards for e-
learning in accredited training programs, minimum enforcement provisions for authorized state
and tribal renovation programs, and the training and certification requirements for renovators. It
also clarifies the requirements for vertical containment on exterior renovation projects, the
prohibited or restricted work practice provisions, and the requirements for high efficiency
particulate air (HEPA) vacuums.
On the date that the Agency approves a State or Tribe's application for program
authorization, the requirements of that State or Tribe's program will apply in lieu of the Federal
Program. If the Agency withdraws a State or Tribe's program authorization, the Federal Program
will become effective in that State or Tribe on the date that the withdrawal is effective.
Implementation of the Federal Program occurs primarily through EPA's regional offices.
Because the Federal Renovation Program will be considered the benchmark or standard against
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which State and Tribal programs are evaluated, a description of the Federal Renovation Program
is found below.
1. Federal Renovation Program Description
(a). Scope of Rule
The regulations governing renovations are codified at 40 C.F.R. Part 745, subpart E.
These regulations consist of two distinct and complementary rules. The PRE Rule establishes
requirements for providing information on lead poisoning and lead based paint hazards to
owners, occupants, parents and guardians, prior to disturbing lead based paint in pre-1978
residences and child-occupied facilities The RRP Rule establishes requirements for training
renovators, other renovation workers, and dust sampling technicians; for certifying renovators,
dust sampling technicians, and renovation firms; for accrediting providers of renovation and dust
sampling technician training; for renovation work practices; and for recordkeeping. These
regulatory requirements are briefly outlined and summarized below. Please refer to the
appropriate regulatory citations for complete information on the requirements.
(b). Applicability
The applicability of both the PRE Rule and the RRP Rule is described in detail at 40
C.F.R. § 745.82. The rules apply to all renovations performed for compensation in target housing
and child-occupied facilities except:
(1). Renovations affecting components that have been determined to be lead-based
paint free by a certified inspector or risk assessor or a certified renovator using an
EPA-recognized test kit;
(2). Renovations involving only minor repair and maintenance;
(3). Emergency renovations, which are exempt from the PRE Rule and from the
training, certification, and work practice requirements of the RRP Rule to the
extent necessary to respond to the emergency;
(4). Renovations involving owner-occupied target housing where the owner-occupant
has provided the renovation firm with a signed statement indicating that the
renovation will occur in the owner's residence, no child under age 6 or pregnant
woman resides there, the housing is not a child-occupied facility, and the owner
acknowledges that the renovation firm will not be required to use the RRP Rule's
work practices;
(c). Pre-Renovation Education Requirements
The PRE requirements are described in detail at 40 C.F.R. § 745.84. The PRE rule
requires renovation firms to provide a lead hazard information pamphlet to the owners and
occupants of target housing before beginning renovations. The final RRP Rule amended the PRE
Rule by:
(1). Requiring a new pamphlet "Renovate Right" be distributed;
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(2). Extending the pre-renovation education requirements to child-occupied facilities;
and
(3). Modifying the definition of minor repair and maintenance, this is not subject to
the pre-renovation education requirements).
(d). Renovation, Repair and Painting Requirements
(1). Training Provider Accreditation
The requirements for accreditation of training programs are described in detail at 40 CFR
§ 745.225. To become an accredited training provider, an entity must submit an application and
pay a fee. Among other things listed in 40 CFR § 745.225, the application must include
documentation of the appropriate education, training and work experience of the training
manager and principal instructor(s). A training provider wishing to use a course other than
EPA's recommended model course, such as one approved by an authorized State or Indian Tribe,
must also submit the course materials and agenda with the application to EPA for review.
Courses for renovators and dust sampling technicians must cover all of the curriculum
requirements identified in 40 CFR § 745.225, last a minimum of 8 hours, and include 2 hours of
hands-on training in the course topics outlined in 40 CFR § 745.225(d). Refresher courses for all
disciplines except project designer must also include a hands-on component. Specific standards
for electronic learning are set forth in 40 CFR § 745.225.
Once accredited, training providers must seek re-accreditation every 4 years. Further,
they must amend their accreditation application within 90 days whenever there is a change to the
information presented in their most recent accreditation or re-accreditation application. All
training records must be retained for a period of 5 years. Photographs on course completion
certificates are an accurate and recognizable image of the trainee and at least one square inch in
size.
(2). Renovator and Dust Sampling Technician Training and Certification
The training and certification requirements for Renovators and Dust Sampling
Technicians are described in detail at 40 C.F.R. §§ 745.225, 745.90(a) & 745.89. To become a
Certified Renovator or Certified Dust Sampling Technician, an individual must successfully
complete an accredited renovator or dust sampling technician course. Individuals who have
successfully completed an accredited abatement worker or supervisor course, or individuals who
successfully completed an EPA, HUD, or EPA/HUD model renovation training course before
October 4, 2011 may take an accredited refresher renovator training course in lieu of the initial
renovator training course to become a certified renovator. Individuals who have successfully
completed an accredited lead-based paint inspector or risk assessor course before October 4,
2011, but are not currently certified in the discipline, may take an accredited refresher dust
sampling technician course in lieu of the initial training to become a certified dust sampling
technician. Individuals who are currently certified as lead-based paint inspectors or risk assessors
may act as certified dust sampling technicians without further training. The certified individual
must then complete an accredited refresher course every 5 years.
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(3). Firm Certification and Responsibilities.
Firm responsibilities are described in detail at 40 C.F.R. § 745.85, 86 and 89(d).
Renovations must be performed by certified firms using certified renovators and other trained
individuals. In order to become certified to conduct renovations, a firm must submit an
application and pay a fee. Certified renovation firms must be re-certified every 5 years.
When conducting a renovation, a renovation firm must ensure that:
a. Renovations are performed by Certified Renovators or by persons trained by a
Certified Renovator;
b. A Certified Renovator is assigned to each renovation;
c. All renovations are performed in accordance with the work practice
requirements;
d. The pre-renovation education requirements have been performed; and
e. The recordkeeping requirements are met.
(4). Certified Renovator Responsibilities
Certified Renovator responsibilities are described in detail at 40 C.F.R. § 745.90(b).
Certified Renovators must:
a. Perform the cleaning verification and either perform or direct workers who
perform the required set-up (warning signs, containment) and post-renovation
cleaning;
b. Provide training to workers on the work practices required by § 745.85(a) they
will be using in performing their assigned tasks;
c. Be physically present at the work site when the warning signs are being posted,
while containment is being established, and while the post-renovation
cleaning is performed;
d. Regularly direct work being performed by other individuals to ensure that the
work practices required by § 745.85(a) are being followed, including
maintaining the integrity of the containment barriers and ensuring that dust or
debris does not spread beyond the work area;
e. Be available, either on-site or by telephone, at all times that renovations are
being conducted;
f. When requested by the party contracting for renovation services, use an EPA-
approved test kit to determine whether components to be affected by the
renovation contain lead-based paint;
g. Have with them at the work site copies of their initial course completion
certificate and their most recent refresher course completion certificate; and
h. Prepare the required records required by § 745.86(b)(l)(ii) and (6).
(5). Dust Sampling Technician Responsibilities.
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Dust Sampling Technician responsibilities are described in detail at 40 C.F.R. §
745.90(c). Certified Dust Sampling Technicians may be used to perform optional dust clearance
testing after renovation activities. Their responsibilities include:
a. Collecting dust samples;
b. Sending collected samples to an EPA-recognized laboratory;
c. Comparing the results to established clearance levels; and
d. Having with them at the work site copies of their initial course completion
certificate and their most recent refresher course completion certificate.
(6). Work Practice Standards.
Work Practice Standards are described in detail at 40 C.F.R. § 745.85. The work practice
standards were developed to minimize exposure to lead-based paint hazards created during
renovation, remodeling and painting activities, taking into account reliability, effectiveness, and
safety. The work practice standards include:
a. Warning signs directing occupants and bystanders to remain clear of the work
area;
b. Containment of the work area to prevent the spread of dust and debris,
including a requirement of vertical containment for exterior renovations
projects within 10 feet of the property line;
c. A prohibition on certain dangerous work practices:
Open flame burning or torching
Machines that remove paint or other surface coatings through high speed
operation such as sanding, grinding, power planing, needle guns, abrasive
blasting or sandblasting, unless such machines have shrouds or
containment systems and are equipped with a HEPA vacuum attachment to
collect dust and debris at the point of generation
Operating a heat gun above 1100 degrees Fahrenheit
d. A requirement for the proper transportation and disposal of waste; and
e. A specific post-renovation cleaning protocol, followed by a visual inspection
and cleaning verification.
(7). Recordkeeping.
Recordkeeping requirements are detailed at 40 C.F.R. § 745.86. Renovation firms must
maintain records to demonstrate compliance with the PRE Rule and the RRP Rule, including:
a. Copies of pamphlet acknowledgement forms;
b. Records prepared by a certified renovator after collecting paint chip samples;
and
c. Documentation and certification that work practice requirements were
followed.
2. Revisions to Federal Renovation Program
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Changes to the Federal Renovation Program will necessitate certain actions by authorized
State or Tribal Renovation programs, applicants pending authorization for a State or Tribal
Renovation program, and new applicants. When EPA publishes in the Federal Register revisions
to the Federal Renovation Program requirements:
(a). A State or Tribe with a renovation program approved before October 4, 2011 must
demonstrate that it meets the new requirements no later than the first report that it
submits pursuant to Sec. 745.324(h) but no later than October 4, 2013.
(b). A State or Tribe with an application for approval of a renovation program submitted
but not approved before October 4, 2011 must demonstrate that it meets the new
requirements either by amending its application or in the first report that it submits
pursuant to Sec. 745.324(h) but no later October 4, 2013.
(c). A State or Tribe submitting its application for approval of a renovation program on or
after October 4, 2011 must demonstrate in its application that it meets the
requirements of the new renovation program requirements.
CHAPTER 2. PROGRAM AUTHORIZATION & APPLICATION PROCESS
A. INTRODUCTION
This chapter provides an overview of the elements that must be contained in a State,
Territorial or Tribal application for program authorization. The chapter briefly describes each of
these components and, in some cases, provides sample correspondence that may aid States and
Tribes in developing their own applications. Appendix C provides a template for the application.
B. PURPOSE OF PROGRAM AUTHORIZATION
Section 404(a) of TSCA allows any State to seek authorization to administer and enforce
a Renovation Program in lieu of the Federal Renovation Program. The implementing regulations
are at 40 C.F.R. §§ 745.320 through 327, and in accordance with EPA's Policy for the
Administration of Environmental Programs on Indian Reservations, also apply to authorization
of Tribal programs. Upon authorization of a State or Tribal program, the requirements of the
State or Tribe's laws and regulations will apply in lieu of the Federal Renovation Program. In
addition, Section 404(b) of TSCA makes it unlawful for any person to violate, or fail or refuse to
comply with any requirement of an approved State or Tribal program. See also 40 C.F.R. §
745.324(f). Although EPA reserves its right to exercise its enforcement authority under TSCA,
once EPA approves a State or Tribal program, the State or Tribe will be responsible for
administering and enforcing the program in that State or Tribal area. States and Tribes will still
be responsible for reporting program implementation progress to EPA.
The Summary on Progress and Performance reports required by 40 C.F.R. § 745.327(d)
must summarize the results of implementing the State or Tribal program and will be used by
EPA for purposes of oversight. Initially, these reports must be submitted annually, but after the
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first 3 years of authorization, EPA may extend the reporting interval to every two years if the
reports demonstrate successful program implementation. See 40 C.F.R. § 745.324(h).
C. APPROVAL CRITERIA EXPLAINED
Section 404(a) provides that upon application by a State, the Agency may authorize such
State to administer and enforce the standards, regulations, or other requirements established
under Section 402 or 406 of TSCA. EPA's regulations for State and Tribal authorization were
established pursuant to and in accordance with Section 404 of TSCA and EPA's Policy for the
Administration of Environmental Programs on Indian Reservations. Specifically, pursuant to
Section 404(b), the Agency may only approve a Renovation Program if the Administrator finds
that:
"(1) the State program is at least as protective of human health and the environment as
the Federal program under [Section 402, Section 406 or both] ..., and
(2) such State program provides adequate enforcement."
A State or Tribal program can, however, be more protective than the Federal program.
Specifically, Section 404(e) states:
"Nothing in this title shall be construed to prohibit any State or political subdivision
thereof from imposing any requirements which are more stringent than those imposed by
this title."
1. "At Least as Protective as"
In making its determination regarding whether the State or Tribal Renovation Program is
"at least as protective as" the Federal Renovation Program, the Agency will consider the
Program Analysis, which is described in Chapter 3 (Section C) and the template "regulatory
crosswalks" that are provided in appendix C. The Program Analysis addresses each of the
program elements identified at 40 C.F.R. § 745.326. That analysis should highlight the
differences between the Federal program and the applicant's program and provide an explanation
of why the applicant believes that these differences do not make their program any less
protective than the Federal program. This comparison should focus on the individual program
elements (e.g., procedures for the accreditation of renovation training programs) and explain why
the program element, as a whole is at least as protective as the equivalent element of the Federal
program. That is, a conclusion that one of the program elements is less protective than the
Federal program generally cannot be offset by a conclusion that another program element is
more protective than the Federal program.
2. "Adequate Enforcement"
To provide maximum flexibility, two processes are available for approving the
compliance and enforcement program portion of a State or Tribal Renovation Program.
Depending on the status of their compliance and enforcement programs, States or Tribes may
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apply for either: (1) final approval of the compliance and enforcement program portion of the
State or Tribal Renovation Program; or (2) interim approval subject to a specific expiration date.
See 40 C.F.R. § 745.320(d) and 745.327(a). The basis for receiving either interim approval or
final approval is described in Chapter 4.
D. APPLICATION PROCESS
1. Public Notice
Before the State or Tribe can develop an application, it must provide public notice of
intent to seek authorization and an opportunity for public hearing on its application. The State or
Tribe is free to determine the method it will employ to provide this public notice and, if
necessary, to conduct hearings. See 40 C.F.R. § 745.324(a)(2).
2. Application Contents
Any State or Tribe that is seeking program authorization must complete and submit an
application to the Agency according to the requirements at 40 C.F.R. § 745.324.
The following are the components of a State or Tribal program application, along with
other recommended materials that will facilitate application review. These components are
described in more detail in Chapter 2 E. of this document:
(a). Cover sheet;
(b). A summary of the State, Territorial or Tribal program;
(c). A transmittal letter from the Governor or Tribal chairperson (or equivalent official)
requesting program approval;
(d). An Attorney General or Tribal equivalent's statement that the State or Tribe's laws
and regulations provide the adequate legal authority to administer and enforce this
program;
(e). A Renovation Program description, including:
(1). an enforcement and compliance program description that must include an
analysis comparing the program to the Federal program and demonstrate how
the program is as protective as the Federal program;
(2). copies of all applicable State or Tribal statutes and regulations; and
(3). for any Tribe, documentation that the Tribe is eligible for Treatment as a State
and a map or other information that identifies the extent of the territory over
which the Tribe exercises jurisdiction.
(f). For States: An optional certification, signed by the Governor or Attorney General,
that the State program meets the criteria established for program authorization. (Not
available for Tribes.) (This option allows for instant authorization of the program
upon receipt of the certification by EPA. The State's program will be deemed
authorized until EPA either disapproves the application or withdraws the State's
authorization.)
3. Application Submission
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When complete, the State or Tribe should submit three (3) copies of the entire application
to their regional EPA office at the address given at the end of this document.
Section 404(b) of TSCA requires the Agency to provide notice and an opportunity for a
public hearing before approving an application for authorization. Based on the regulations at 40
C.F.R. § 745.324(a)(4), the Agency will publish in the Federal Register a notice announcing the
receipt of a State or Tribe's complete application, a summary of the State or Tribal program
(discussed below), the location of copies of the application available for public review, and the
dates and times that the application will be available for public review and a request for public
comment. The public comment period will not be less than 45 days. EPA will consider
comments it receives during its review of the application.
In addition, within 60 days of submission of a complete State or Tribal application, EPA
will, if requested, hold a public hearing in each State or Indian Country seeking program
authorization. See § 745.324(a)(5). This opportunity for public hearing is separate and distinct
from the opportunity for public hearing that the State or Tribe must offer before developing an
application for approval.
4. Agency Review
With respect to States that seek authorization using the Program Certification method, the
State program is deemed authorized until such time as the EPA disapproves the program
application or withdraws the State authorization. The Program Certification method is only
available to States.
With respect to applications that do not contain a State program certification, once the
Agency receives a complete application, it will have 180 days to approve or disapprove the
application. See § 745.324(e) and (d). The State or Tribal program will be deemed authorized at
the time the Agency approves the application. Authority for State and Tribal program
authorization has been delegated to EPA's Regional Administrators.
EPA encourages States and Tribes to engage in frequent communication with EPA's
Regional offices before submitting an application. Pre-application consultation and coordination
between applicants and their Regional EPA contacts is the key to timely and successful
processing of authorization applications. The applicant will need to decide on the type, coverage
and scale of its program assess existing and needed statutes and regulations as well as existing
and needed resources. Because EPA can only act on a "complete" application, EPA recommends
that States and Tribes submit at least one draft submittal (without Governor, Attorney General, or
Tribal equivalent's signature) of all parts of the application. It is EPA's expectation that this will
significantly reduce the processing time for the final application. At the end of this document is a
list of EPA's Regional Lead Contacts. They will serve as the primary EPA contact as the State or
Tribe goes through the process of applying for authorization. Their advice and counsel will be
useful in making the application successful for States and Tribes.
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As a State or Tribe begins developing its application, the applicant and the EPA region,
working together, can identify any legislative or regulatory modifications that may need to be
made to satisfy the "at least as protective as" and "adequate enforcement" criteria. EPA also
recommends that the State Attorney General or Tribal equivalent's office, be consulted during
these early reviews so that later conflict may be avoided. The EPA regional counsels' staff will
also be available to the State Attorney General or Tribal equivalent's staff for consultation on
legal matters. Many problems can be avoided if these contacts are established before a State or
Tribe submits its official application.
E. COMPONENTS OF AN APPLICATION
1. Cover Sheet
At the end of this document is a cover sheet that can be used and included with the
application to facilitate the processing of the application. The information on the sheet will allow
EPA to quickly identify the name of the primary contact within the State or Tribe and identify
the documents that have been included in the authorization application. A more complete
checklist of documents is included in appendix A and a separate, optional, worksheet document
is included in appendix C.
2. Program Summary
The Program Summary is a short (2 pages maximum) summary of the State or Tribal
program. See § 745.324(a)(3)(ii). If the State or Tribe has an existing Lead-Based Paint program,
this summary should include the changes to its existing program, where applicable. This
summary will be used by the Agency to provide notice to the residents of the State or Tribe for
which the State or Tribe is seeking a new program authorization or changes to its existing
program authorization. The summary should describe which parts of subpart E are included in
the application (RRP, PRE or both) the activities and building types covered by the State or
Tribal program, provide a short summary of the certification and accreditation requirements, a
short description of the work practice standards included in the program, information distribution
requirements, and any additional material the State or Tribe chooses to include.
3. Governor's Letter
A letter from the Governor or Tribal equivalent officially transmits the State or Tribe's
application for approval of its program and acts as a formal request for EPA's review of the
application. See § 745.324(a)(3)(i). It is recommended that the letter to EPA include a reference
to the Federal statute, a specific request for authorization of the State or Tribal Renovation
Program, and the Governor or Tribal equivalent's signature. It is also recommended that the
letter designate the State or Tribal agency that is responsible for administering and enforcing the
program and that will serve as the key point of contact for the Renovation Program. In order to
facilitate the processing of the application, included below is a sample letter that may be used as
part of a State or Tribal application.
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Ms. Susan Smith
Regional Administrator
Region XX
U.S. Environmental Protection Agency
Street Address
City, State, Zip Code
Dear Ms. Smith:
In accordance with Section 404 of the Toxic Substances Control Act, I am
forwarding an application for authorization of the Lead-Based Paint Renovation
Program for (State, Territory or Tribe). The application has been forwarded
directly to the Environmental Protection Agency's Region XX program office for
review. I believe you will find it contains the provisions necessary to implement an
effective Renovation Program.
Should you require further information, please contact (Director) of (Lead
Agency). Thank you for your assistance.
Sincerely,
Joseph Amori
Governor
Enclosures
cc: Regional Lead Coordinator, Office Address of RLC
4. Attorney General's Statement
States or Tribes applying for program authorization must submit an Attorney General or
Tribal equivalent's statement that certifies that the statutes and regulation of the State or Tribe
provide adequate authority to administer and enforce a Renovation Program as described in the
State or Tribe's application. See §§ 745.324(a)(3)(iv) and 745.324(c)(1). This statement must
include citations to the specific statues and regulations providing that legal authority. If the
application is for Program Certification, all statutes and regulations cited by the Attorney
General must be fully effective by the time the program is approved.
The Tribal legal certification (the equivalent to the Attorney General's statement) may
also be submitted and signed by an independent attorney retained by the Tribe for representation
in matters before EPA or the courts pertaining to the Tribe's program. The certification shall
include an assertion that the attorney has the authority to represent the Tribe with respect to the
Tribe's authorization application.
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Where a State or Tribe has incorporated by reference any Federal regulations, the
Attorney General or Tribal equivalent should demonstrate the authority to adopt State or Tribal
regulation in this manner. The Attorney General or Tribal equivalent should cite the State or
Tribal statues and regulations, listing the comparable Code of Federal Regulations citation and
effective date. A sample letter has been included below that may be used as part of a State or
Tribal application.
Ms. Susan Smith
Regional Administrator
Region XX,
U.S. Environmental Protection Agency
Street Address
City, State, Zip Code
Dear Ms. Smith:
I hereby certify pursuant to my authority as (Insert Official Title) and in accordance with
Section 404 of the Toxic Substances Control Act, and 40 CFR § 745.324 that the laws and
regulations of (State, Territory or Tribe) provide adequate legal authority to administer and
enforce the Lead-Based Paint Renovation Program as described in the enclosed application
and submitted. The statutes and regulatory citations below have been lawfully adopted at the
time this statement is signed and will be effective by the time this program is approved.
The statutory and regulatory authorities providing adequate legal authority are:
(number the statutes and regulations cited)
1.
2.
3.
4.
5.
6.(etc.)
Sincerely,
Jane Wilson
Attorney General
5. Program Description
The purpose of the program description section is to provide an overview and analysis of
a State or Tribe's Renovation Program. See § 745.324(b). This section of the application should
include a simple narrative that describes the program and an analysis of the applicant's program
as it relates to the Federal program. Information requested includes the name of the State or
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Tribal agency that will be responsible for administering and enforcing the program and that will
serve as the key point of contact for the Renovation Program, the name of a contact in that
agency, a description of the program, and an analysis of the State or Tribe's programmatic and
enforcement provisions. Because this section makes up the bulk of an application, it is discussed
in greater detail in Chapter 3.
Two processes are available for approving the compliance and enforcement program
portion of the State or Tribal program. These different processes are designed to provide
maximum flexibility to applicants. Depending on the status of their compliance and enforcement
programs, States or Tribes may apply for either: (1) final approval of the compliance and
enforcement programs portion of the State or Tribal Renovation Program; or (2) interim approval
subject to a specific expiration date. The basis of receiving either interim approval or final
approval is described in Chapter 4.
6. Program Certification (Available only to States)
Section 404(a) of TSCA provides that a State may also certify to the Agency that its
program meets the criteria for program authorization, i.e., the State program is at least as
protective as the Federal Renovation Program found at 40 C.F.R. § 745 Subpart E and the State
has authority to adequately enforce such State renovation program. This optional certification
must be presented to EPA in the form of a letter from the Governor or the Attorney General to
the Regional Administrator. This certification must be supported by the analysis of the State
program contained in the program description portion of the application. If this certification is
included in a State application, the State's program will be deemed authorized until such time as
EPA disapproves the program application or withdraws the program authorization. A sample
program certification letter is shown below.
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Ms. Susan Smith
Regional Administrator
Region XX, U.S. EPA
Street Address
City, State, Zip
Dear Ms. Smith:
I hereby certify in accordance with Section 404(a) of the Toxic Substances Control Act
and 40 C.F.R. § 745.324, (c), that based on the analysis conducted as part of this
application, the laws of (State or Tribe) as described in this application are at least as
protective as the Federal Lead-Based Paint Renovation Program found at 40 C.F.R. Part
745, subpart E and provide authority to adequately enforce compliance with our
Renovation Program.
Sincerely,
Joseph Amori
Governor
CHAPTER 3. PROGRAM DESCRIPTION
A. INTRODUCTION
The Program Description is a critical part of a State or Tribal Program application. It
must effectively demonstrate that the State or Tribal Program is at least as protective as the
Federal Program. As required under 40 C.F.R. § 745.324(b), this part of the application must
include the following:
1. The name, addresses, phone numbers, and email addresses of the State or Tribal agency
that is responsible for administering and enforcing the program and the name of an
official point of contact for EPA1. This information can be included in the cover sheet for
the application package.
2. A narrative description of the program that demonstrates that the program contains all of
the elements specified in § 745.326.
3. An analysis of the programmatic elements of the State or Tribal program that compares
the program to the Federal Renovation Program. The analysis must demonstrate how the
program is at least as protective as the elements in the Federal program at subpart E.
1 If more than one agency is responsible for administering and enforcing the program, the State or Tribe must
designate a primary agency to oversee and coordinate administration and enforcement of the program and to serve as
the primary contact with EPA. If this is the case, the State or Tribe must also describe the functions to be performed
by each agency, and how the program will be coordinated by the primary agency to ensure consistency and effective
administration of the Renovation Program within the State or Tribe. See 40 C.F.R. § 745.324(b)(l)(iii).
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4. A description of State or Tribal lead-based paint compliance and enforcement program
that demonstrates that the program contains all of the elements specified at § 745.327.
EPA will use this information in evaluating the protectiveness of the program. Appendix C
provides a template for the application and the Program Description.
B. NARRATIVE DESCRIPTION OF PROGRAM
A State or Tribal application must include a description of the program that demonstrates
that the program contains all of the elements specified in 40 C.F.R. § 745.326. Generally, this
must include the following:
1. Pre-Renovation Education:
(a). Procedures and requirements for the distribution of lead hazard information to
owners and occupants of target housing and child-occupied facilities as well as the
parents and guardians of children using child-occupied facilities before renovations
for compensation are performed.
2. Renovation, Repair and Painting:
(a). Procedures and requirements for the accreditation of Renovator and Dust Sampling
Technicians training programs2;
(b). Procedures and requirements for the certification of Renovators and Dust Sampling
Technicians;
(c). Procedures and requirements for the certification of firms and/or individuals;
(d). Requirements that all renovations be conducted by appropriately certified individuals
and/or firms;
(e). Work practice standards for the conduct of renovations; and
(f). Development of the appropriate infrastructure or government capacity to effectively
carry out the State or Tribal RRP program.
3. All Programs:
(a). Development of the appropriate infrastructure or government capacity to effectively
carry out the State or Tribal program.
For detailed requirements relating to pre-renovation education, refer to 40 C.F.R. §
745.326(b), § 745.84 and page 24 of appendix C. For detailed requirements relating to
renovation, repair and painting, refer to 40 C.F.R. § 745.326 and pages 27, 30, 32 and 34 of
appendix C.
2 State and Tribes are not required to incorporate the Dust Sampling Technician discipline if their programs
otherwise require dust sampling to be performed only by a certified inspector or risk assessor.
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The program description must also show that the State or Tribal Program will provide
adequate enforcement. Applications must include a description of the compliance and
enforcement program, including copies of all policies, certifications, plans, reports, and other
materials, and demonstrate that the program contains all elements specified at § 745.327.
Detailed requirements for compliance and enforcement programs are discussed in Chapter 4.
Finally, this section should also include the special program description requirements for
Tribes, if applicable. See § 745.324(b)(4)(i)-(iii). A Tribal application must contain a map, legal
description, or other information that identifies the geographical extent of the territory over
which the Tribe exercises jurisdiction. In addition, the application must include a demonstration
that the Tribe:
(1). Is recognized by the Secretary of the Interior;
(2). Has an existing government that exercises substantial governmental duties and
powers;
(3). Has adequate civil regulatory jurisdiction over renovation activities and the
entities regulated by the Tribe's Renovation Program; and
(4). Is reasonably expected to be capable of administering its Renovation Program.
If EPA has already determined that a Tribe has met the requirements in (1) and (2) above
for another EPA program, the Tribe need only provide the renovation-specific information in (3)
and (4) above.
C. PROGRAM ANALYSIS
In this section, the State or Tribe is asked to conduct an evaluation of its own program.
The analysis must demonstrate that each element of the program meets the objectives as
described in 40 C.F.R. § 745.326. The analysis must compare the State or Tribal Renovation
Program to the Federal Renovation Program, note any significant differences, and explain why,
in these instances, the State or Tribal program is at least as protective, on an element by element
basis, as the Federal program. If the State or Tribe incorporated the Federal Regulations by
reference or duplicated the Federal Regulations, an abbreviated, comparative analysis may be
sufficient, but if the State or Tribe has drafted its own legislation and/or regulations, a detailed
analysis will be necessary for EPA to evaluate the application. The analyses of the program
elements section complement and expand on the previous section of the application.
The required "Program Elements" for PRE and RRP programs are also listed in appendix
C, with a "crosswalk" of Federal and applicant citations for each element, in order to ensure that
any variations are addressed and can be resolved. Page 42 of appendix C asks for all differences
between the Federal Renovation Program to be identified, and for the applicant to explain why
and how the variations for each element are as protective as the Federal program.
CHAPTER 4. ENFORCEMENT AND COMPLIANCE PROGRAM DESCRIPTION
A. INTRODUCTION
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This section of the program description provides information regarding the State or Tribal
enforcement and compliance program for renovation activities. If a State or Tribe does not
qualify to receive final approval for the compliance and enforcement portion of the State or
Tribal Renovation Program, such State or Tribe may apply for interim approval. Interim
approval of the compliance and enforcement portion of the State or Tribal Renovation Program
can be granted by EPA once only and will be subject to a specific expiration date. For the
purposes of interim and final approval, States and Tribes are not required to provide duplicate
copies of information that was submitted with their Renovation Program authorization
applications. Appendix C provides a step by step guide to identifying and describing components
of an enforcement and compliance program for renovation activities, for determining when the
requirements for final versus interim approval are met, and for identifying variations from the
requirements that will need to be resolved.
Tribes are not required to exercise criminal enforcement jurisdiction as a condition for
program authorization. However, a Tribe that receives authorization for its Renovation Program
must enter into a Memorandum of Agreement with the EPA Regional Administrator that
provides for the timely and appropriate referral to EPA for those criminal enforcement matters
over which the Tribe does not have the authority. See 40 CFR § 745.327(e).
B. INTERIM APPROVAL
The requirements for interim approval can be found at 40 C.F.R. § 745.327(a)(1). To be
considered adequate for purposes of obtaining interim approval for the compliance and
enforcement program portion of a State or Tribal Renovation Program, a State or Tribe must:
1. Demonstrate it has the legal authority and ability to immediately implement Enforcement
and Compliance Element 1—Adequate Standards, Regulations, and Authority (40 C.F.R.
§ 745.327(b)(l)-(4)). This section should include a statement that the State or Tribe,
during the interim approval period, will carry out a level of compliance monitoring and
enforcement necessary to ensure that the State or Tribe addresses any significant risks
posed by noncompliance with PRE and or RRP requirements;
2. Present a plan with time frames identified for implementing in the field each component
of Enforcement and Compliance Element 2—Performance Component (40 C.F.R. §
745.327(c)(l)-(7)). All components of Element 2 must be fully implemented no later than
3 years from the date of EPA's interim approval of the compliance and enforcement
program portion of the State or Tribal Renovation Program. A statement of resources
must be included in the State or Tribal plan that identifies what resources the State or
Tribe intends to devote to the administration of the compliance and enforcement portion
of its Renovation Program; and
3. Agree to submit to EPA the Summary on Progress and Performance of Renovation
Program compliance and enforcement activities. The content requirements for the
Summary on Progress and Performance can be found at 40 C.F.R. § 745.327(d).
Any interim approval granted by EPA for the compliance and enforcement portion of a
State or Tribal Renovation Program will expire not later than 3 years from the date of EPA's
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interim approval. One hundred and eighty days before this expiration date, a State or Tribe must
apply to EPA for final approval. Final approval will be given to any State or Tribe that has in
place all three elements described above. If a State or Tribe does not receive final approval for
the compliance and enforcement portion of a State or Tribal Renovation Program, by the date 3
years after the date of EPA's interim approval, the Administrator or his or her designee will, by
such date, initiate the process to withdraw authorization of the State or Tribal program as
specified at 40 C.F.R. § 745.324(i).
C. FINAL APPROVAL
Final approval of the compliance and enforcement program portion of a State or Tribal
Renovation Program can be granted by EPA either through the Section 404 application process
described at 40 C.F.R. § 745.324(a) or, for States or Tribes that previously received interim
approval as described above, through a separate application addressing only the compliance and
enforcement portion of a State or Tribal Renovation Program as described in 40 C.F.R. §
745.327(a)(2).
In order for the compliance and enforcement program portion of a State or Tribal
Renovation Program to be considered adequate for final approval through the Section 404
application described at 40 C.F.R. § 745.324(a), a State or Tribe must in its application:
1. Demonstrate that it has the legal authority and ability to immediately implement the
components of the Enforcement and Compliance Element 1—Adequate Standards,
Regulations, and Authority; and Enforcement and Compliance Element 2—Performance
Component;
2. Submit a statement that identifies the resources (e.g. fiscal and personnel) that the State
or Tribe intends to devote to the administration of the State or Tribal renovation
compliance and enforcement program; and
3. Agree to submit to EPA the Summary on Progress and Performance of renovation
compliance and enforcement activities pursuant to 40 C.F.R. § 745.327(d).
For States or Tribes that previously received interim approval to receive final approval, a
State or Tribe must in its application:
1. Demonstrate that it has the legal authority and ability to immediately implement the
components of the Enforcement and Compliance Element 1—Adequate Standards,
Regulations, and Authority; and Enforcement and Compliance Element 2—Performance
Component;
2. Submit a statement that identifies the resources (e.g. fiscal and personnel) that will be
devoted by the State or Tribe to the administration of the State or Tribal, renovation
compliance and enforcement program;
3. Agree to submit to EPA the Summary on Progress and Performance of renovation
compliance and enforcement activities; and
4. To the extent not previously submitted as part of the application process, submit copies of
all applicable State or Tribal statutes, regulations, standards, and other material that
provide the State or Tribe with authority to administer and enforce the renovation
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compliance and enforcement program, and copies of the policies, certifications, plans,
reports, and any other documents that demonstrate that the program meets the
requirements established at 40 C.F.R. § 745.327(b) and (c) for compliance and
enforcement program approval.
D. ENFORCEMENT AND COMPLIANCE ELEMENT 1 -
ADEQUATE STANDARDS, REGULATIONS AND AUTHORITY
The regulatory requirements for Element 1 can be found at 40 C.F.R. § 745.327(b). At a
minimum, a renovation compliance and enforcement program must include components 1-4
discussed below.
1. Renovation Requirements. 40 C.F.R. § 745.327(b). State or Tribal renovation compliance
and enforcement programs will be considered adequate if the State or Tribe demonstrates,
in its application at Section 745.324(b)(2), that it has established a program that contains
all of the elements specified in 40 C.F.R. § 745.326.
2. Authority to Enter. 40 C.F.R. § 745.327(b)(2). State or Tribal officials must be able to
enter, through consent, warrant, or other authority, premises or facilities where lead-
based paint violations may occur for purposes of conducting inspections. State or Tribal
officials must also have authority to enter a training program's place of business, and a
renovation firm's place of business or work site. Finally, State or Tribal officials must
have authority to take samples and review records as part of the inspection process.
3. Flexible Remedies. 40 C.F.R. § 745.327(b)(3). State or Tribal renovation compliance and
enforcement programs must provide for a diverse and flexible array of enforcement
authorities and remedies. These authorities and remedies must be reflected in an
enforcement response policy, and include the following:
(a). Authority to issue Warning Letters, Notices of Noncompliance, Notices of
Violation, or the equivalent;
(b). Authority to assess administrative or civil fines, including a maximum penalty
authority for any violation in an amount no less than $5,000 per violation per day;
(c). Authority to assess the maximum penalties or fines for each instance of violation
and, if the violation is continuous, the authority to assess penalties or fines up to
the maximum amount for each day of violation, with all penalties assessed or
collected being appropriate for the violation after consideration of factors as the
State or Tribe determine to be relevant, including the size or viability of the
business, enforcement history, risks to human health or the environment posed by
the violation, and other similar factors;
(d). Authority to commence an administrative proceeding or to sue in courts of
competent jurisdiction to recover penalties;
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(e). Authority to suspend, revoke, or modify the accreditation of any training provider
or the certification of any individual or firm;
(f). Authority to commence an administrative proceeding or to sue in courts of
competent jurisdiction to enjoin any threatened or continuing violation of any
program requirement, without the necessity of a prior suspension or revocation of
a trainer's accreditation or a firm's or individual's certification; and
(g). Authority to apply criminal sanctions, including recovering fines; and Authority
to enforce its authorized program using a burden of proof standard, including the
degree of knowledge or intent of the respondent that is no greater than it is for
EPA under TSCA.
4. Adequate Resources. 40 C.F.R. § 745.327(b)(4). An application must include a statement
identifying the resources (fiscal and personnel) that will be devoted to the compliance
and enforcement program. These requirements are also described in detail on page 46 of
Appendix C.
E. ENFORCEMENT AND COMPLIANCE ELEMENT 2 -
PERFORMANCE COMPONENT
For final approval of a State or Tribal renovation compliance and enforcement program,
the program must include the components set forth below. (See 40 C.F.R. § 745.327(c)). For
purposes of reviewing an application for a State or Tribal renovation compliance and
enforcement program, these components can be documented to EPA through submission of the
applicable State or Tribal standards and documents associated with each element.
1. Training.
2. Compliance assistance.
3. Sampling techniques. (This is not required for PRE only applications)
4. Tracking renovation tips and complaints.
5. Targeting renovation inspections.
6. Follow-up to renovation inspection reports.
7. Renovation compliance monitoring and enforcement.
These requirements are described in detail in 40 C.F.R 745.327(c) and on page 52 of appendix C.
F. ENFORCEMENT AND COMPLIANCE ELEMENT 3 -
SUMMARY ON PROGRESS AND PERFORMANCE
A State or Tribal renovation compliance and enforcement program must agree to submit
a Summary on Progress and Performance report, which summaries the results of implementing
the renovation compliance and enforcement program. See 40 C.F.R. § 745.327 (d). This report is
not required at the time of application but in subsequent years. This State or Tribal summary is a
component of the report required at 40 C.F.R. § 745.324(h). The written summary must be
provided to the Regional Administrator for the EPA Region in which the State or Tribe is
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located. The report must include a summary of the scope of the regulated community within the
State or Tribe (which would include the number of individuals and firms certified in lead-based
activities and the number of training programs accredited), the inspections conducted,
enforcement actions taken, compliance assistance provided, and the level of resources committed
by the State or Tribe to these activities and any other lead-based paint administrative and
compliance or enforcement activities.
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STATE OR TRIBAL PROGRAM
AUTHORIZATION APPLICATION
TSCA Section 402/404 Lead-Based Paint Renovation Program
U.S. Environmental Protection Agency
State/T rib e/T erritory
Applying for (circle one or both):
Pre-Renovation Education Renovation, Repair, and Painting
Contact Name:
Agency:
Title:
Address:
Phone:
Fax:
E-Mail:
The following documents (with a check mark) are included, in order, with this application.
A summary of the State or Tribal program;
A transmittal letter from the Governor or Tribal equivalent;
An Attorney General or Tribal equivalent's statement that the State's or Tribe's laws and
regulations provide the necessary legal authority to administer and enforce this program;
A program description, including an enforcement and compliance program description and, for
any Tribe, documentation that the Tribe is eligible for Treatment as a State (This must include an
analysis comparing the program to the Federal Program and demonstrating how the program is as
protective as the Federal Program);
Copies of all applicable State or Tribal statutes and regulations; and
OPTIONAL. For States Only: A certification, signed by the Governor, that the State
program meets the criteria established for program certification (40 C.F.R. § 745.324(d))
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APPENDIX A
AUTHORIZATION CHECKLIST FOR RRP & PRE
~ Name of responsible agency.
~ Point of contact name and contact information.
~ Primary Agency designation (where applicable).
~ Roles & responsibilities of each participating agency (where applicable), and how
coordination will be addressed.
~ Program Elements
1) Procedures & requirements for the distribution of lead hazard information to owners,
occupants, parents and guardians of target housing and child-occupied facilities, before
renovation for compensation, that include:
(a) clear standards that trigger information distribution requirements;
(b) procedures for distributing lead hazard information to owners, occupants, parents
and guardians; and
(c) a requirement that the pamphlet Renovate Right or an EPA approved substitute be
provided.
2.1) Procedures & requirements for the accreditation of Renovator and Dust Sampling
Technician1 training programs that include:
(a) curriculum requirements;
(b) training hour requirements;
(c) hands-on training requirements;
(d) trainee competency & proficiency requirements;
(e) requirements for training program quality control;
(f) procedures for the reaccreditation of training programs; and
(g) procedures for the oversight of training programs.
or
2.2) Procedures and regulations, for the purposes of certification, for the acceptance of
training offered by an accredited training provider in a State authorized by EPA.
3) Procedures & requirements for the certification of individuals and/or firms that:
(a) ensure Renovator and Dust Sampling Technician training by accredited training
programs;
1 If a State or Tribal program can demonstrate that it is as protective as the Federal program without requirements
for a Dust Sampling Technician, e.g., a State or Tribe has requirements for Certified Inspectors or Certified Risk
Assessors to do clearance sampling, the State or Tribe program may be authorized without requirements for a Dust
Sampling Technician discipline.
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(b) stipulate appropriate education or experience qualifications;
(c) establish procedures for recertification;
(d) require conduct in accordance with State or Tribal work practice standards; and
(e) establish procedures for suspension, revocation or modification.
4) Requirements that all renovations be conducted by appropriately certified contractors
using properly trained individuals.
5) Procedures & requirements for the certification of Renovators and Dust Sampling
Technicians that:
(a) ensure training by accredited training programs;
(b) establish procedures for recertification;
(c) require conduct in accordance with State or Tribal work practice standards; and
(d) establish procedures for suspension, revocation or modification.
6) Work practice standards for Renovations that include:
(a) lead safe work practices; and
1. prohibited practices
2. containment
3. cleaning
4. cleaning verification
5. waste transportation and disposal
(b) record keeping.
7) Adequate infrastructure/capacity to effectively carry out a program.
8) An analysis of the submitted program that compares the program to the Federal Program,
and which demonstrates how it is "at least as protective" as the Federal Program.
9) Demonstration of Adequate Enforcement Procedures (for final approval)
(if applying for interim approval follow the check list below)
Each of the following enforcement elements (including copies of all relevant policies,
certifications, plans, reports or other supporting materials):
(a) A statement of resources which identifies what resources will be devoted to
administering compliance and enforcement components of the program.
(b) A commitment to submit to EPA the required Summary on Progress and
Performance.
(c) A demonstration of legal authority and ability to immediately implement the
following:
1. authority to enforce procedures and requirements for pre-renovation
notification activities;
2. authority to enforce the accreditation of training programs;
3. authority to enforce the certification of Renovators & Dust Sampling
Technicians;
4. authority to enforce the adopted work practice standards;
5. authority to enforce the certification of Renovation Firms;
6. authority to enter premises for inspection purposes;
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7. authority to engage flexible remedies that includes warning letters,
administrative and civil actions (all applicants) and criminal actions
(excluding Tribes)
(d) A training program for enforcement officers and enforcement personnel.
(e) A compliance assistance program for the public and regulated community.
(f) An ability to react to tips and complaints.
(g) An ability to target inspections.
(h) An ability to implement a compliance monitoring and enforcement program that
ensures the correction of violations.
ADDITIONAL APPLICATION REQUIREMENTS SPECIFIC TO INDIAN TRIBES
~ A map, legal description, or other information sufficient to identify the geographical extent
of the territory over which the tribe exercises jurisdiction.
~ A demonstration that the Tribe:2
(1) is recognized by the Secretary of the Interior;
(2) has an existing government exercising substantial governmental duties and powers;
(3) has adequate civil regulatory jurisdiction over the subject matter and entities regulated;
and
(4) is reasonably expected to be capable of administering the Federal Program for which it is
seeking authorization.
~ If the Tribal legal certification is submitted by an independent attorney, the certification must
include an assertion that the attorney has the authority to represent the Tribe for this purpose.
REQUIREMENTS APPLICABLE TO INTERIM APPROVAL STATUS
• Interim approval of the compliance and enforcement program portion of the Renovation
Program may be granted by EPA only once, and is subject to a specific expiration date.
• Any interim approval granted by EPA for the compliance and enforcement portion of the
program must expire no later than 3 years from the date of EPA's interim approval. If the
applicant does not receive final approval by this deadline, EPA shall, by that date, initiate the
process to withdraw the applicant's authorization.
~ In the compliance and enforcement portion of the program description, the applicant must
address the following items in its authorization application:
(1) Demonstrate that it can immediately implement the compliance and enforcement element
of the EPA rule relating to "Standards, Regulations and Authority".
(2) Demonstrate that it will carry out compliance and enforcement activities to address
significant risks posed by noncompliance with renovation requirements.
2 If EPA has previously determined that a Tribe has demonstrated (1) and (2), only (3) and (4) are required.
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(3) Present a plan for implementing the compliance and enforcement element of the EPA
rule relating to "performance" within 3 years.
(4) Submit a statement of resources that will be devoted to the administration of the
compliance and enforcement program.
(5) Agree to submit to EPA the Summary on Progress and Performance (annually).
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APPENDIX B
SELECT TERMS & DEFINITIONS
The terms defined below are necessary for a basic understanding of the Federal program. For a complete
listing of all key definitions, readers must refer to 40 C.F.R. § 745, subpart E, L and Q, as well as in
TSCA sections 401 and 402.
Accredited training program (745.223) means a training program that has been accredited by EPA
pursuant to 745.225 to provide training for individuals engaged in lead-based paint activities and
renovation.
Certifiedfirm (745.83, 745.223) means a company, partnership, corporation, sole proprietorship or
individual doing business, association, or other business entity; a Federal, State, Tribal or local
government agency; or a nonprofit organization. A certified firm is a firm that performs lead-based paint
activities or renovation, repair and painting activities to which EPA has issued a certificate of approval
pursuant to 745.89 or 745.226(f).
Cleaning verification card (745.83) means a card developed and distributed, or otherwise approved, by
EPA for the purpose of determining, through comparison of wet and dry disposable cleaning cloths with
the card, whether post-renovation cleaning has been properly completed.
Certified inspector (745.223) means an individual who has been trained by an accredited training
program, as defined by this section, and certified by EPA pursuant to §745.226 to conduct inspections. A
certified inspector also samples for the presence of lead in dust and soil for the purposes of abatement
clearance testing.
Certified risk assessor (745.223) means an individual who has been trained by an accredited training
program, as defined by this section, and certified by EPA pursuant to §745.226 to conduct risk
assessments. A risk assessor also samples for the presence of lead in dust and soil for the purposes of
abatement clearance testing.
Child-occupiedfacility (745.83) means a building, or portion of a building, constructed prior to 1978,
visited regularly by the same child, under 6 years of age, on at least two different days within any week
(Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined
weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied
facilities may include, but are not limited to, day care centers, preschools and kindergarten classrooms.
Child-occupied facilities may be located in target housing or in public or commercial buildings. With
respect to common areas in public or commercial buildings that contain child-occupied facilities, the
child-occupied facility encompasses only those common areas that are routinely used by children under
age 6, such as restrooms and cafeterias. Common areas that children under age 6 only pass through, such
as hallways, stairways, and garages are not included. In addition, with respect to exteriors of public or
commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only
the exterior sides of the building that are immediately adjacent to the child-occupied facility or the
common areas routinely used by children under age 6.
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Common Area (745.223) means a portion of a building that is generally accessible to all occupants. Such
an area may include, but is not limited to, hallways, stairways, laundry and recreational rooms,
playgrounds, community center, garages, and boundary fences.
Component or Building Component (745.83) means specific design or structural elements or fixtures of a
building or residential dwelling that are distinguished from each other by form, function, and location.
These include, but are not limited to, interior components such as: Ceilings, crown molding, walls, chair
rails, doors, door trim, floors, fireplaces, radiators and other heating units, shelves, shelf supports, stair
treads, stair risers, stair stringers, newel posts, railing caps, balustrades, windows and trim (including
sashes, window heads, jambs, sills or stools and troughs), built in cabinets, columns, beams, bathroom
vanities, counter tops, and air conditioners; and exterior components such as: Painted roofing, chimneys,
flashing, gutters and downspouts, ceilings, soffits, fascias, rake boards, cornerboards, bulkheads, doors
and door trim, fences, floors, joists, lattice work, railings and railing caps, siding, handrails, stair risers
and treads, stair stringers, columns, balustrades, windowsills or stools and troughs, casings, sashes and
wells, and air conditioners.
Dry Disposable Cleaning Cloth (745.83) means a commercially available dry, electrostatically charged,
white disposable cloth designed to be used for cleaning hard surfaces such as uncarpeted floors or counter
tops.
Dust Sampling Technician (745.90(c), 745.85(c)) is a certified professional who has taken an accredited
Dust Sampling Training course and may take dust wipe samples for renovation projects where clearance
is required in lieu of cleaning verification as permitted by 745.85(c).
Dust Sampling Technician Course (745.225(c)(6)(vii)) must last a minimum of 8 training hours, with a
minimum of 2 hours devoted to hands-on training activities. The minimum curriculum requirements are
specified at 745.225(d)(7). Hands-on training activities must cover dust sampling methodologies.
Emergency Renovations (745.82(b)) are renovation activities that were not planned but result from a
sudden, unexpected event (such as non-routine failures of equipment) that, if not immediately attended to,
presents a safety or public health hazard, or threatens equipment and/or property with significant damage.
Interim controls performed in response to an elevated blood lead level in a resident child are also
emergency renovations.
HEP A Vacuum (745.83) means a vacuum cleaner which has been designed with a high-efficiency
particulate air (HEPA) filter as the last filtration stage. A HEPA filter is a filter that is capable of
capturing particles of 0.3 microns with 99.97% efficiency. The vacuum cleaner must be designed so that
all the air drawn into the machine is expelled through the HEPA filter with none of the air leaking past it.
Indian Country (745.323) means (1) all land within the limits of any American Indian reservation under
the jurisdiction of the U.S. government, notwithstanding the issuance of any patent, and including rights-
of-way running throughout the reservation; (2) all dependent Indian communities within the borders of
the United States whether within the original or subsequently acquired territory thereof, and whether
within or outside the limits of a State; and (3) all Indian allotments, the Indian titles which have not been
extinguished, including rights-of-way running through the same.
Indian Tribe (or Tribe) (745.323) means any Indian Tribe, band, nation, or community recognized by the
Secretary of the Interior and exercising substantial governmental duties and powers.
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Interim Controls (745.83) means a set of measures designed to temporarily reduce human exposure or
likely exposure to lead-based paint hazards, including specialized cleaning, repairs, maintenance,
painting, temporary containment, ongoing monitoring of lead-based paint hazards or potential hazards,
and the establishment and operation of management and resident education programs.
Lead-based paint (15 U.S.C. § 2681(9), 40 CFR § 745.103) means paint or other surface coatings that
contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight.
Minor repair & maintenance activities (745.83) are activities, including minor heating, ventilation or air
conditioning work, electrical work, and plumbing, that disrupt 6 square feet or less of painted surface per
room for interior activities or 20 square feet or less of painted surface for exterior activities where none of
the work practices prohibited or restricted by §745.85(a)(3) are used and where the work does not involve
window replacement or demolition of painted surface areas. When removing painted components, or
portions of painted components, the entire surface area removed is the amount of painted surface
disturbed. Jobs, other than emergency renovations, performed in the same room within the same 30 days
must be considered the same job for the purpose of determining whether the job is a minor repair and
maintenance activity.
Pamphlet (745.83) means the EPA pamphlet titled Renovate Right: Important Lead Hazard Information
for Families, Child Care Providers and Schools developed under section 406(a) of TSC A for use in
complying with section 406(b) of TSCA, or any State or Tribal pamphlet approved by EPA pursuant to 40
C.F.R. § 745.326 that is developed for the same purpose. This includes reproductions of the pamphlet
when copied in full and without revision or deletion of material from the pamphlet (except for the
addition or revision of State or local sources of information). Before December 22, 2008, the term
"pamphlet" also means any pamphlet developed by EPA under section 406(a) of TSCA or any State or
Tribal pamphlet approved by EPA pursuant to § 745.326.
Post-renovation cleaning verification (745.85(b)) means the use of disposable cleaning cloths as specified
in 40 C.F.R. § 745.85(b) to wipe the windowsill, uncarpeted floor and countertops of the renovation work
area and compare them to a cleaning verification card to determine if the work area has been adequately
cleaned.
Recognized test kit (745.83) means a commercially available kit recognized by EPA under §745.88 as
being capable of allowing a user to determine the presence of lead at levels equal to or in excess of 1.0
milligrams per square centimeter, or more than 0.5% lead by weight, in a paint chip, paint powder, or
painted surface.
Renovation (745.83) means the modification of any existing structure, or portion thereof, that results in
the disturbance of painted surfaces, unless that activity is performed as part of an abatement as defined by
this part (40 C.F.R. § 745.223). The term renovation includes (but is not limited to): the removal,
modification or repair of painted surfaces or painted components (e.g., modification of painted doors,
surface restoration, window repair, surface preparation activity (such as sanding, scraping, or other such
activities that may generate paint dust)); the removal of building components (e.g., walls, ceilings,
plumbing, windows); weatherization projects (e.g., cutting holes in painted surfaces to install blown-in
insulation or to gain access to attics, planing thresholds to install weather-stripping), and interim controls
that disturb painted surfaces. A renovation performed for the purpose of converting a building, or part of a
building, into target housing or a child-occupied facility is a renovation under this subpart. The term
renovation does not include minor repair and maintenance activities.
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Renovator (745.83) means an individual who either performs or directs workers who perform renovations.
A certified renovator is a renovator who has successfully completed a renovation course accredited by
EPA or an EPA-authorized State or Tribal program.
Renovator Course (745.225(c)(6)(vi)) must last a minimum of 8 training hours, with a minimum of 2
hours devoted to hands-on training activities. The minimum curriculum requirements are specified at
745.225(d)(6). Hands-on training activities must cover renovation methods that minimize the creation of
dust and lead-based paint hazards, interior and exterior containment and cleanup methods, and post-
renovation cleaning verification.
Target housing (15 U.S.C. § 2681(17)) means any housing constructed prior to 1978, except housing for
the elderly or persons with disabilities or any 0-bedroom dwelling (unless any child who is less than 6
years of age resides or is expected to reside in such housing).
Training hour (745.83) means at least 50 minutes of actual learning, including, but not limited to, time
devoted to lecture, learning activities, small group activities, demonstrations, evaluations, and hands-on
experience.
Wet disposable cleaning cloth (745.83) means a commercially available, pre-moistened white disposable
cloth designed to be used for cleaning hard surfaces such as uncarpeted floors or counter tops.
Work area (745.83) means the area that the certified renovator establishes to contain the dust and debris
generated by a renovation.
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APPENDIX C
State and Tribal Renovation Program Description
Subpart E for RRP &/or PRE (406(b))
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TABLE OF CONTENTS
Page
I. Application Process Highlights 1
A. Public Notice 1
B. Application Contents 1
C. Application Submission 1
D. Agency Review 2
II. State, Territorial or Tribal Programs Authorization - Application Contents 3
A. Transmittal Letters, Program Summaries and Statutes, Rules and Standards 4
1. Cover Sheet 6
2. Transmittal Letter from State Governor or Equivalent 7
3. Attorney General or Equivalent's Statement 9
4. Summary of State, Territorial or Tribal Program 11
5. Public Notice and Hearing Summary 13
6. Copies of Statutes, Rules, Standards and Other Materials 15
7. (Optional) Program Certification from Governor or Attorney General 17
B. State, Territorial or Tribal Program Description 19
1. State, Territorial or Tribal Primary and/or Secondary Administering Agencies 20
2. Program Elements 24
a. Procedures and Requirements for PRE (406(b)) 24
b. Procedures and Requirements for Accreditation 26
c. Procedures and Requirements for Certification 30
d. Work Practice Standards 32
e. Appropriate Infrastructure or Government Capacity 34
f. Tribal Information (Tribes only) 36
3. Program Analysis 42
4. Compliance and Enforcement Program 44
a. Interim Approval 46
b. Final Approval 62
Appendix A — Summary on Progress and Performance 85
Appendix B — Memorandum of Agreement 85
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I. Application Process Highlights
A. Public Notice
Before the State or Tribe can develop an application, it must provide public notice of
intent to seek authorization and an opportunity, if requested during public notice, for
public hearing on its application. Also, because TSCA Section 3(13) defines the term
State to mean any State or territory or possession of the United States, it should be
understood that the term State in this document also means any territory or possession of
the United States. The State or Tribe should conform with applicable State or Tribal
Administrative Procedure requirements to provide this public notice and, if necessary, to
conduct hearings.
B. Application Contents
Any State or Tribe that is seeking program authorization must complete and submit an
application to the Agency according to the requirements at 40 CFR 745.324.
The following are the components of a State or Tribal program application:
(1) Cover sheet;
(2) A summary of the State or Tribal program;
(3) A transmittal letter from the Governor, or Tribal equivalent;
(4) An Attorney General or Tribal equivalents' statement that the State or Tribe's
laws and regulations provide the necessary legal authority to administer and
enforce this program;
(5) A program description, including a program analysis, an enforcement and
compliance program description, and, for any Tribe, documentation that the Tribe
is eligible for treatment as a State;
(6) Copies of all applicable State or Tribal statutes and regulations, policies and
procedures; and
(7) For States only: An optional certification, signed by the Governor, that the State
program meets the criteria established for program authorization (this certification
is not available to Tribes).
C. Application Submission
When complete, the State or Tribe should submit three (3) copies of the entire application
to its Regional EPA office.
Section 404(b) of TSCA requires the Agency to provide notice and an opportunity for
public hearing on a State or Tribal application for authorization. Accordingly, the Agency
will publish in the Federal Register a notice announcing the receipt of a State or Tribe's
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application, a summary of the State or Tribal program (discussed below), the location of
copies of the application available for public review, and the dates and times that the
application will be available for public review. Individuals may at that time submit a
request to the Agency for a public hearing on the State or Tribal application. This
opportunity for public hearing is separate and distinct from the public notice that a State
or Tribe must provide before developing an application for program approval.
D. Agency Review
With respect to States that seek authorization using the Program Certification method, the
State program is deemed authorized until such time as the EPA disapproves the program
application or withdraws the State authorization. The Program Certification method is
only available to States.
With respect to all other applications, once the Agency receives a complete application, it
will have 180 days to approve or disapprove the application. If a State or Tribe does not
have an authorized Renovation Program by April 22, 2010, EPA shall, by such date,
administer and enforce all of the relevant provisions of the Federal program in that State
or Tribe.
The program shall be authorized only if the Regional Administrator finds that the State or
Tribal program is at least as protective of human health and the environment as the
corresponding Federal program and provides adequate enforcement. If a State or Indian
Tribe does not have an authorized program by August 31, 1998, EPA shall, by such date
establish and enforce the provisions of the Federal program in that State or Indian
Country.
4
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II. State or Tribal Programs Authorization
Application Contents
A. Transmittal Letters, Program Summaries and Statutes, Rules, Standards, Policies
and Procedures
(continued on next page)
5
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II.A.1.
Cover Sheet
The next page provides a helpful cover sheet that may be filled out and included with
your application. The sheet provides the name of the primary contact within the State or Tribe
and a list of the documents that are contained in your application.
6
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State or Tribal Program
Authorization Application
TSCA § 402/404 Renovation Program
U.S. Environmental Protection Agency
State or Tribe
Applying for (circle one or both):
Pre-Renovation Education Renovation, Repair, and Painting
Contact Name:
Agency:
Title:
Address:
Phone:
Fax:
E-Mail:
The following documents (with a check mark) are included, in order, with this application.
A summary of the State or Tribal program;
A transmittal letter from the Governor;
An Attorney General's or Tribal equivalent's statement that the State's or Tribe's laws and
regulations provide the necessary legal authority to administer and enforce this program;
A program description, including an enforcement and compliance program description and, for
any Tribe, documentation that the Tribe is eligible for Treatment as a State (This must include an
analysis comparing the program to the Federal Program and demonstrating how the program is as
protective as the Federal Program);
Copies of all applicable State or Tribal statutes and regulations; and
OPTIONAL. For States Only: A certification, signed by the Governor, that the State
program meets the criteria established for program authorization
7
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II.A.2. Transmittal Letter from State Governor or Tribal
Equivalent Requesting Program Approval
(§ 745.324(a)(3))
A letter from the Governor or Tribal equivalent officially transmits the State or Tribe's
application for approval of its program and acts as a formal request for EPA approval. The letter
to EPA should include reference to the Federal statute, a request for authorization of the State or
Tribal program, and the Governor or Tribal equivalent's signature. The letter also designates the
State or Tribal agency that is responsible for administering and enforcing the program and that
will serve as the key point of contact for the Renovation Program. A sample letter has been
included on the adjacent page that contains all the necessary information and may be used as part
of a State or Tribal application.
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Ms. Susan Smith
Regional Administrator Region XX
U.S. Environmental Protection Agency
Street Address
City, State, Zip Code
Dear Ms. Smith:
In accordance with Section 404(a) of the Toxic Substances Control Act, I am forwarding an
application for authorization of the Lead Based Paint Renovation Program for (State or Tribe).
The application has been forwarded directly to the Environmental Protection Agency's Region
XX program office for review. I believe you will find it contains the provisions necessary to
implement an effective Renovation Program.
Should you require further information, please contact, (Director) of (Lead Agency). Thank you
for your assistance.
Sincerely,
Joseph Amori
Governor
Enclosures
cc: Regional Lead Coordinator, Office Address of RLC
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II.A.3. Attorney General or Tribal Equivalent's Statement
(§ 745.324(a)(3)(iv) and (c))
A State or Tribe must submit a written statement signed by the Attorney General or Tribal
equivalent, certifying that the laws and regulations of the State or Tribe provide adequate legal
authority to administer and enforce the State or Tribal Renovation Program. This statement shall
include citations to the specific statutes and regulations providing that legal authority. The Tribal
legal certification (the equivalent to the Attorney General's statement) may also be submitted and
signed by an independent attorney retained by the Tribe for representation in matters before EPA
or the courts pertaining to the Tribe's program. The certification shall include an assertion that
the attorney has the authority to represent the Tribe with respect to the Tribe's authorization
application.
Where a State or Tribe has incorporated by reference any Federal regulations, the
Attorney General or Tribal equivalent, should demonstrate the authority to adopt the State or
Tribal regulations in this manner. The Attorney General or Tribal equivalent, should cite the
State or Tribal statutes and regulations, listing the comparable CFR cite and effective date.
A sample letter has been included on the adjacent page that may be used as part of a State
or Tribal application.
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Ms. Susan Smith
Regional Administrator
Region XX
U.S. Environmental Protection Agency
Street Address
City, State, Zip Code
Dear Ms. Smith:
I hereby certify pursuant to my authority as (Insert Official Title) and in accordance with Section
404(a) of the Toxic Substances Control Act, and 40 CFR § 745.324 that the laws and regulations
of (State or Tribe) provide adequate legal authority to administer and enforce the Lead-Based
Paint Renovation Program as described in the enclosed application and submitted. The statutes
and regulatory citations below have been lawfully adopted at the time this statement is signed
and will be effective by the time this program is approved.
The statutory and regulatory authorities providing adequate legal authority are:
(number the statutes and regulations cited)
1.
2.
3.
4.
5.
6. (etc.)
Sincerely,
Jane Wilson
Attorney General
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II.A.4. Summary of State or Tribal Program
(§ 745.324(a)(3)(H))
A summary of the State or Tribal program must be included in the application. The
summary should be a short (1-2 page) description of the State or Tribe's program. The summary
should describe the activities and building types covered by the program, provide a short
summary of the pre-renovation notification requirements, renovation certification and
accreditation requirements, a short summary of the renovation work practice standards included
in the program, and any additional material the State or Tribe chooses to include.
After a State or Tribe submits an application, the Agency will publish a Federal Register
notice announcing the receipt of the State or Tribal application, a summary of the program, and a
request for public comment. EPA will use the program summary provided by the State or Tribe
in the Federal Register notice to provide notice to residents of the State or Tribe.
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II.A.4. Summary of State or Tribal Program
(§ 745.324(a)(3)(H))
13
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II.A.5. Public Notice and Hearing Summary
(§ 745.324(a)(2))
Before developing an application for authorization, a State or Tribe must disseminate a
public notice of intent to seek such authorization and provide an opportunity for a public hearing.
The application should reflect how the public participation requirements were met. Requirements
for such procedures should be covered by the State or Tribal Administrative Procedures Act. The
application should include detail as to whether or not a public hearing was held, as well as a
record of comments received with the State or Tribe's response to the comments. The State or
Tribe's initial and final notice should reflect adequately the details of the public participation.
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II.A.5. Public Notice and Hearing Summary
(§ 745.324(a)(2))
15
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II.A.6. Copies of Statutes, Rules, Standards and other
Materials (§ 745.324(a)(3)(v))
Copies of all applicable State or Tribal statutes, regulations, standards, and other
materials (i.e. policies, administrative procedures, etc.) that provide the State or Tribe with the
authority to administer and enforce a Renovation Program must be included in the application.
Applicable materials should be attached here.
Common authorities that will typically need to be shown by the State or Tribe include:
pre-renovation education statute and regulations, renovation, repair and painting statute and
regulations, administrative hearing procedures, penalty authorities (both criminal and civil
penalty authorities), authority to incorporate by reference federal regulations (if applicable),
authority to immediately suspend activities in response to immediate threats to human health or
the environment, authority to suspend, revoke or modify certifications and accreditations.
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II.A.6. Copies of Statutes, Rules, Standards and other
Materials (§ 745.324(a)(3)(v))
Please list attached statutes, regulations, standards, and other materials:
1.
2.
3.
4.
5.
6. (etc. as needed)
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II.A.7. Program Certification for States (optional)
(§ 745.324(d))
Section 404(a) of TSCA provides that a State may also certify to the Agency that its
program meets the criteria for program authorization. This optional certification must be
presented to EPA in the form of a letter from the Governor or the Attorney General to the
Regional Administrator. This certification must reference the program analysis contained in the
program description portion of the application as the basis for concluding that the State program
is at least as protective as the Federal program and provides for adequate enforcement. If this
certification is included in a State application, the State's program will be deemed authorized
until the Regional Administrator disapproves or withdraws the program's authorization. A
program shall not be deemed authorized pursuant to this subpart to the extent that jurisdiction is
asserted over Indian Country, including non-member fee lands within an Indian reservation. If
the application does not contain such certification, the State program will be authorized only after
the Regional Administrator authorizes the program.
A sample letter is included on the adjacent page.
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Ms. Susan Smith
Regional Administrator
Region XX
U.S. Environmental Protection Agency
Street Address
City, State, Zip Code
Dear Ms. Smith:
I hereby certify in accordance with Section 404(a) of the Toxic Substances Control Act, and 40
CFR § 745.324(c), that based on the analysis conducted as part of this application the laws of
(State) are at least as protective as the Federal Lead-Based Paint Renovation Program found at 40
CFR Part 745 Subpart E and State law provides adequate authority to enforce compliance with
our Renovation Program.
Sincerely,
Joseph Amori
Governor
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II. State or Tribal Programs
Authorization Application Contents
B. State or Tribal Program Description
(continued on next page)
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II.B.1. State or Tribal Primary and/or Secondary
Administering Agencies (§ 745.324(b)(1))
a. A State or Tribe seeking to administer and enforce a program must submit a description
of the program. The description of the State or Tribal program must include:
• the name of the State or Tribal agency(s) that is or will be responsible for
administering and enforcing the program;
• the name of the official in the agency(s) designated as the point of contact with
EPA; and
• addresses and phone numbers where the official(s) can be contacted.
b. Where more than one agency is or will be responsible for administering and enforcing the
program, the State or Tribe must designate a primary agency to oversee and coordinate
administration and enforcement of the program and serve as the primary contact with
EPA.
c. In the event that more than one agency is or will be responsible for administering and
enforcing the program, the application must also include a description of the functions to
be performed by each agency. The description shall explain how the program will be
coordinated by the primary agency to ensure consistency and effective administration of
the lead-based paint training accreditation and certification program within the State or
Tribe.
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II.B.1. State or Tribal Primary and/or Secondary
Administering Agencies (§ 745.324(b)(1))
a. Please list the name of the State or Tribal agency(s) that is or will be responsible for
administering and enforcing the program, the name of the official in the agency(s)
designated as the point of contact with EPA, and addresses and phone numbers where the
official(s) can be contacted:
Agency:
Contact Name:
Title:
Address:
Telephone:
Fax:
E-mail:
Agency:
Contact Name:
Title:
Address:
Telephone:
Fax:
E-mail:
22
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b. Where more than one agency is or will be responsible for administering and enforcing the
program, please designate a primary agency to oversee and coordinate administration and
enforcement of the program and serve as the primary contact with EPA:
Primary Agency:
Secondary Agency (or Agencies):
c. In the event that more than one agency is or will be responsible for administering and
enforcing the program, please include a description of the functions to be performed by
each agency:
23
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II.B.2. Program Elements (§ 745.326(a)(1))
To demonstrate that the State or Tribal pre-renovation education
program is at least as protective as the Federal program, the State
or Tribal application must include a description of the program
that demonstrates that the program contains all of the following
elements:
• Procedures and Requirements for the distribution of lead hazard
information to owners and occupants of target housing and child
occupied facilities before renovations for compensation
• Appropriate Infrastructure or Government Capacity
a. Pre-Renovation Education
The State or Tribe must have procedures and requirements for the distribution of lead hazard
information to owners and occupants of target housing and child-occupied facilities before
renovations for compensation.
24
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II.B.2.a. Program Elements - Procedures and requirements for pre-renovation
education (§ 745.326(b))
Procedures and Requirements for the
distribution of lead hazard info, to owners
and occupan ts of target housing &
child-occupied facilities prior to
renovations for compensation:
40 CFR Part 745
Subpart E reference
(Federal Program)
Applicant's
Citation
Reference:
Indicate if varies
from Federal
Program (**)
Reason given
for variation
Clear standards for identifying renovation
activities that trigger the information
distribution requirements:
§ 745.80(a)
§ 745.82
§ 745.83
§ 745.84
Procedures for distributing the lead
hazard information to owners and
occupants of housing & child-occupied
facilities prior to renovation activities:
§ 745.84
Require distribution of Renovate Right or
an approved alternate, meeting TSCA
406(a) content requirements, and in a
format readable by State or Tribes
diverse audience of housing and
child-occupied owners and occupants:
§ 745.81(b)
§ 745.326(b)(3)
25
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II.B.2. Program Elements (§745 326(a)(2))
To demonstrate that the State or Tribal renovation training,
certification, accreditation, and work practice standards program
is at least as protective as the Federal program, the State or Tribal
application must include a description of the program that
demonstrates that the program contains all of the following
elements:
• Procedures and Requirements for Accreditation of Renovator
and Dust Sampling Technician Training Programs.
• Procedures and Requirements for Certification of Individuals
and/or Firms.
• Requirements that all Renovations be Conducted by
Appropriately Certified Individuals and/or Firms using properly
trained individuals.
• Work Practice Standards for the Conduct of Renovations.
• Appropriate Infrastructure or Government Capacity.
• Tribal Information (Tribes Only).
b. Accreditation
The State or Tribe must have either procedures and requirements for the accreditation of training
programs or procedures and requirements for the acceptance of renovation training offered by
training providers accredited by EPA or a State or Tribal program authorized by EPA under 40
C.F.R. Part 745 subpart E. Applicant must indicate which procedures and requirements will be
used in the accreditation of trainers.
26
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II.B.2.b. Program elements - Procedures and requirements for
the accreditation of renovation training programs (§745.326(0))
Please indicate State or Tribal procedures and requirements that will be used for the
accreditation of Renovation training programs or the acceptance of Renovation
training offered by a training provider accredited by EPA or by a State or Tribe
authorized by EPA under Section 745, Subpart E(%):
The State or Tribe has established requirements for the
accreditation of Renovation training programs (proceed to Procedures
and Requirements for Accreditation,® Item 2.a.)
The State or Tribe has established procedures or regulations for
the acceptance of Renovation training offered by an accredited training
provider in a State or Tribe authorized by EPA (proceed to Procedures
and Requirements for Certification,@ Item 2.b.).
Please describe procedures or requirements:
27
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II.B.2. Program elements (§745.326(0))
b. Accreditation (cont.)
The State or Tribe must have requirements for the accreditation of renovation
training providers. State or Tribal citations for renovation training provider
requirements must be included in this section.
28
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II.B.2.b. Program Elements - Procedures and requirements for the accreditation of
training programs (§ 745.326(c))
Procedures and Requirements for
the accreditation of renovation and
dust sampling technician training
programs:
40 CFR Part 745
Subpart E& L
reference
(Federal Program)
Applicant's
Citation
Reference:
Indicate if varies
from Federal
Program (**)
Reason given
for variation
Training curriculum and
application requirements:
§ 745.225(b)(c) & (e)
§ 745.225(d)(6) & (7)
Training hour requirements:
§ 745.225(c)(6)
§ 745.225(e)(2)
Hands-on training requirements:
§ 745.225(d)
§ 745.225(c)(6)
Trainee competency and
proficiency requirements:
§ 745.225(c)(7)
Requirements for training
program quality control:
§ 745.225(c)
Procedures for the
re-accreditation of training
programs:
§ 745.225(f)
Procedures for the oversight of
training programs:
§ 745.225 (c) & (f)
§ 745.225(i)
Procedures for suspension
revocation, or modification of
training program accreditations:
§ 745.225(g)
§ 745.225(h)
29
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II.B.2. Program Elements (§745.326(d))
c. Certification
The State or Tribe must have procedures and requirements for the certification of renovators
and/or firms. If a State or Tribal program can demonstrate that it is as protective as the Federal
program without requirements for a Dust Sampling Technician, e.g., a State or Tribe has
requirements for Certified Inspectors or Certified Risk Assessors to do clearance sampling, the
State or Tribe program may be authorized without requirements for a Dust Sampling Technician
discipline. Citations to the State or Tribal certification requirements must be included in this
section. Also include a citation of regulation requiring that renovation activities are conducted by
appropriately certified individuals and/or firms using properly trained individuals.
30
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II.B.2.C. Program Elements - Procedures and requirements for the certification of
individuals and firms engaged in renovation activities (§745.326(d))
The State or Tribe must
have requirements for the certification of
individuals and firms that ensure:
40 CFR Part 745
Subpart E reference
(Federal Program)
Applicant
Citation
Reference:
Indicate if varies
from Federal
Program (**)
Reason given
for variation
Renovators and dust sampling technicians
are trained by an accredited training
program:
§ 745.90(a)
Require certification requirement process
for Firms
§ 745.89(a)&(c)
Establish procedures for re-certification:
§ 745.90(a)(4)
§ 745.89(b)
Require the conduct of renovation activities
in accordance with work practice standards
established by the State or Tribe:
§ 745.85(a)
§ 745.90(b)
Establish procedures for the suspension,
revocation, or modification of certifications:
§ 745.91
Responsibilities of renovators, dust
sampling technicians & firms
§ 745.90(b) & (c)
§ 745.89(d)
Requirements that all renovation activities
be conducted by appropriately certified
individuals and/or firms using properly
trained individuals:
§ 745.85(a)
31
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II.B.2. Program Elements (§745.326(e))
The State or Tribe must have requirements or standards that ensure
that renovation activities are conducted reliably, effectively, and
safely. Required work practice standards for Renovations are:
• Renovations must be conducted by certified individuals
and/or firms using properly trained individuals
• Renovations are conducted using lead-safe work practices
that are at least as protective as the requirements in §
745.85
• Certified contractors must retain appropriate records
d. Work Practice Standards
Citations to the State or Tribal work practice standards for renovation activities.
32
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I.B.2.C. Program Elements - Work practice standards for the conduct of renovations
(§ 745.326(e))
The State or Tribe's work practice standards for
conducting renovations must contain the following
requirements:
40 CFR Part 745
Subpart E reference
(Federal Program)
Applicant
Citation
Reference:
Indicate if varies
from Federal
Program (**)
Reason given
For variation
Renovations are conducted only by individuals and/or
Firms certified by the appropriate State or Tribal
authority to conduct or supervise renovations:
§ 745.80(b)
§ 745.85(a)
Renovations are conducted using lead-safe work
practices that do not increase the hazards of
lead-based paint to the occupants of the dwelling or
child-occupied facility and are at least as protective as
the requirements in § 745.80(b):
§ 745.85(a)
§ 745.82
Renovations include post-renovation cleaning
protocols, including cleaning verification protocols, or
optional dust clearance testing where required by
contract in conformance with clearance levels
established or adopted by the State or Tribe as long as
they are as protective as the standards established
under TSCA § 403:
§ 745. 85(b) (c) & (d)
§ 745.227(e)(8)
The certified firm retains appropriate records:
§ 745.86
33
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II.B.2. Program Elements (§ 745 326(a)(3))
e. Infrastructure
The State or Tribe must develop appropriate infrastructure or government capacity to
effectively carry out a State or Tribal Renovation Program. The development of this
capacity should be presented here. Infrastructure or capacity include personnel and
their expertise; program processes, including the processes of accrediting and
certifying renovation professionals; capability to conduct inspections and enforcement
to ensure regulatory compliance with State or Tribal Renovation Program
requirements; and possession of materials and equipment necessary to operate and
implement a Renovation Program.
Examples of government capacity and infrastructure may be found in State and Tribal
work plans from the TSCA 404(g) Lead-Based Paint Program grant (cooperative
agreement assistance) program. As developing adequate infrastructure and government
capacity to carry out a lead-based paint activities program was a purpose of the grant
program, many of the activities funded through the cooperative assistance would
illustrate State or Tribal infrastructure and government capacity.
34
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II.B.2.e. Program elements - Development of the appropriate
infrastructure or government capacity to effectively carry
out a State or Tribal program (§ 745 326(a)(3))
Present here development of infrastructure and government capacity:
35
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II.B.2. Program Elements (§ 745 324(b)(4))
Tribal programs shall also include the following: The program description shall
identify the geographical extent of the territory over which the Tribe exercises
jurisdiction, as well as demonstrate that the Tribe is recognized by the Secretary
of the Interior, has an existing government exercising substantial governmental
duties and powers, has adequate civil regulatory jurisdiction over the subject
matter and entities regulated and is reasonably expected to be capable of
administering the Federal program for which it is seeking authorization.
f. Tribal Programs
The program description for a Tribe shall include a map, legal description, or other information sufficient
to identify the geographical extent of the territory over which the Tribe exercises jurisdiction.
36
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II.B.2.f. Program Elements - Tribal-specific Information:
Geographical Extent (§ 745 324(b)(4))
The Tribe shall include a map, legal description, or other information sufficient
to identify the geographical extent of the territory over which the Tribe
exercises jurisdiction:
37
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II.B.2. Program Elements (§ 745 324(b)(4))
The program description for a Tribe shall also include a demonstration that the
Tribe meets the following criteria. The Tribe (i) is recognized by the Secretary
of the Interior; (ii) has an existing government exercising substantial
governmental duties and powers; (iii) has adequate civil regulatory jurisdiction
(as shown in the Tribal legal certification) over the subject matter and entities
regulated; and (iv) is reasonably expected to be capable of administering the
Renovation Program for which it is seeking authorization. If the Agency has
previously determined that the Tribe has met the first two of these elements
(and requested in (ii)(A) and (ii)(B) on page 40) for another EPA program, the
Tribe need provide only that information unique to the renovation program
required by the third and fourth elements (and captured in questions (ii)(C)
and (ii)(D)) on page 42.
f. Tribal Programs (cont.)
The program description for a Tribe shall also include a demonstration that the Tribe:
(ii)(A) Is recognized by the Secretary of the Interior
(ii)(B) Has an existing government exercising substantial governmental duties and powers.
If it has previously been determined that the Tribe has met the requirements in (ii), reference to this
determination shall be included here.
38
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I.B.2.f. Program Elements - Tribal-specific Information
(§ 745.324(b)(4))
(ii)(A). The Tribe shall demonstrate that the Tribe is recognized by the Secretary of the
Interior:
(ii)(B). The Tribe shall demonstrate that the Tribe has an existing government
exercising substantial governmental duties and powers:
39
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II.B.2. Program Elements (§ 745 324(b)(4))
f. Tribal Programs (cont.)
The program description for a Tribe shall also include a demonstration that the Tribe:
(ii)(C) Has adequate civil regulatory jurisdiction (as shown in the Tribal legal certification in §
745.324(c)(2)) over the subject matter and entities regulated.
(ii)(D) Is reasonably expected to be capable of administering the Federal program for which it is
seeking authorization.
40
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II.B.2.f. Program Elements - Tribal-specific Information (§ 745 324(b)(4))
(ii)(C) The Tribe shall demonstrate that the Tribe has adequate civil
regulatory jurisdiction over the subject matter and entities regulated:
(ii)(D) The Tribe shall demonstrate that it is reasonably expected to be capable
of administering the Federal program for which it is seeking authorization.
41
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II.B.3. Program Component Analysis (§ 745 324(b)(2)(H))
A State or Tribe must conduct an analysis of the State or Tribal
program that compares the program to the Federal program in
subpart E of 40 CFR Part 745. This analysis shall demonstrate
how the program is, in the State or Tribe's assessment, at least as
protective as the elements in the Federal program. EPA will use
this analysis to evaluate the protectiveness of the State or Tribal
Renovation Program in making its determination of approval or
disapproval of authorization.
In conducting the analysis of the Renovation Program, the applicant should include an overview
of the State or Tribal program, and address how the asterisked (**) elements of Section 2 -
Program Elements (elements which vary from the Federal Renovation Program) result in a State
or Tribal program which is as protective as the Federal Program. The analysis of the program
elements must demonstrate the program is as protective, on an element by element basis, as the
Federal program.
42
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II.B.3. Program Component Analysis (§ 745.324(b)(2)(H))
43
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II.B.4. Compliance and Enforcement Program (§745 327)
To demonstrate that the State or Tribal program provides adequate
enforcement, the State or Tribal application must include a description
of the State or Tribal renovation compliance and enforcement program
that contains all of the elements specified at 40 CFR § 745.327. This
description shall include copies of all statutes, regulations, policies,
certifications, plans, reports, and other materials that demonstrate that
the State or Tribal program contains all of the elements specified at §
745.327.
A State or Tribe seeking authorization of a Renovation Program can apply for and receive either
interim or final approval of the compliance and enforcement program portion of its Renovation
Program.
Note: Tribes are not required to exercise criminal enforcement jurisdiction as a condition for
program authorization.
44
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II.B.4. Compliance and Enforcement Program (§ 745.327(a))
Please indicate the type of approval for which the applicant is
applying:
_ Applying for Interim Approval
(proceed to page 46)
_ Applying for Final Approval
(proceed to page 62)
45
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II.B.4. Compliance and Enforcement Program (§ 745 327(b)(2) and (3))
Interim approval of the compliance and enforcement program
portion of the State or Tribal Renovation Program may be granted
by EPA only once, and subject to a specific expiration date.
a. Interim Approval
To be considered adequate for interim approval of the compliance and enforcement program
portion of a State or Tribal Renovation Program, a State or Tribe must:
• Demonstrate that it has the authority to enter, through consent, warrant, or other
authority, premises, or facilities where lead-based paint activities violations may
occur for purposes of conducting inspections.
• Provide for a diverse and flexible array of enforcement remedies. At a minimum,
the remedies that must be reflected in an enforcement response policy must
include warning letters, notices of noncompliance, notices of violation, or the
equivalent; administrative or civil actions, including penalty authority; authority to
apply criminal sanctions or other criminal authority.
46
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II.B.4.a. Interim Approval - Standards, regulations, and authority (§ 745 327(b)(2) and (3))
Authority to enter
Applicant Citation
Reference:
Analysis
Comment
State or Tribal officials must be able to enter premises or facilities
where those engaged in training for renovation activities and those
engaged in conducting renovations conduct business, as well as
premises or facilities where renovation violations may occur.
State or Tribal officials must have authority to take samples and
review records as part of the renovation inspection process.
Flexible remedies
Warning Letters, Notices of Noncompliance, Notices of Violation,
or the equivalent.
Administrative or civil actions, including penalty authority (e.g.,
accreditation or certification suspension, revocation, or
modification).
Authority to apply criminal sanctions or other criminal authority
using existing State or Tribal laws, as applicable.
Attachment: The State or Tribe should attach all policies and/or procedures that as such represent the State or Tribe's
enforcement response policy. Such policies should establish a prioritization scheme for determining severity of violations and
procedures for determining the response actions to such violations.
47
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II.B.4. Compliance and Enforcement Program (§ 745 327(b)(4))
a. Interim Approval (cont.)
To be considered adequate for interim approval of the compliance and enforcement program
portion of a State or Tribal Renovation Program, a State or Tribe must, in its application, also:
• Include a statement of resources which identifies what resources the State or Tribe
intends to devote to the administration of its renovation compliance and
enforcement program. This statement must address fiscal and personnel resources
that will be devoted to the program.
The statement of resources may use information presented in the Infrastructure description of the
State or Tribal program (see Section n.B.2.d., Program Elements - Infrastructure). However, this
statement must specifically focus on the resources dedicated to compliance and enforcement for
renovation.
48
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II.B.4.a. Compliance and Enforcement Program - Interim Approval:
Statement of Resources (§ 745 327(b)(4))
Please include statement of resources here:
49
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II.B.4. Compliance and Enforcement Program (745 327(a)(1))
a. Interim Approval (cont.)
To be considered adequate for purposes of obtaining interim approval for the compliance and
enforcement program portion of a State or Tribal Renovation Program, a State or Tribe must, in
its application:
• Demonstrate it has the legal authority and ability to immediately implement the
preceding elements pertaining to the ability to enter, a flexible array of
enforcement remedies, and adequate resources. This demonstration shall include a
statement that the State or Tribe, during the interim approval period, shall carry
out a level of compliance monitoring and enforcement necessary to ensure that the
State or Tribe addresses any significant risks posed by noncompliance with
renovation requirements.
50
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II.B.4.a. Compliance and Enforcement Program - Interim Approval:
Legal Authority and Ability (§ 745 327(a)(1))
Statement that during the interim approval period, the State or Tribe will carry out a level of
compliance monitoring and enforcement necessary to ensure that any significant risks posed
by noncompliance with renovation requirements are addressed:
51
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II.B.4. Compliance and Enforcement Program
(§ 745.327(a)(1)(B))
An implementation plan for the Final Compliance and Enforcement
Program elements must be included in the State or Tribal application
for interim program approval. Elements include:
• Training of enforcement and inspection personnel
• Compliance Assistance
• Sampling Techniques
• Tracking Tips and Complaints
• Targeting Inspections
• Follow-up to Inspection Reports
• Compliance Monitoring and Enforcement
a. Interim Approval (cont.)
To be considered adequate for interim approval of the compliance and enforcement program
portion of a State or Tribal Renovation Program, a State or Tribe must, in its application also:
• Present a plan, with time frames identified, for implementing in the field each
element identified above. All elements must be fully implemented no later than 3
years from the date of EPA's interim approval of the compliance and enforcement
program portion of a State or Tribal Renovation Program.
Present here information on the State or Tribal plan for implementing:
• Training of Enforcement and Inspection Personnel; and
• Compliance Assistance Activities.
52
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II.B.4.a. Compliance and Enforcement Program - Interim Approval:
Compliance and Enforcement Final Program Implementation (§ 745 327(a)(1)(B))
Activity
Plan
Time Frames
Training of enforcement
and inspection personnel
Compliance Assistance
53
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II.B.4. Compliance and Enforcement Program (§745 327(a)(1)(B))
a. Interim Approval (cont.)
Present here information on the State, Territorial or Tribal plan for implementing:
• Sampling Techniques; and
• Tracking Tips and Complaints.
54
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II.B.4.a. Compliance and Enforcement Program - Interim Approval:
Compliance and Enforcement Final Program Implementation (§745 327(a)(1)(B))
Activity
Plan
Time Frames
Sampling Techniques
Tracking Tips and
Complaints
55
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II.B.4. Compliance and Enforcement Program (§745 327(a)(1)(B))
a. Interim Approval (cont.)
Present here information on the State or Tribal plan for implementing:
• Targeting Inspections, and
• Follow-up to Inspection Reports.
56
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II.B.4.a. Compliance and Enforcement Program - Interim Approval:
Compliance and Enforcement Final Program Implementation (§745 327(a)(1)(B))
Activity
Plan
Time Frames
Targeting Inspections
Follow-up to Inspection
Reports
57
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II.B.4. Compliance and Enforcement Program (§745 327(a)(1)(B))
a. Interim Approval (cont.)
Present here information on the State or Tribal plan for implementing:
• Compliance Monitoring and Enforcement
58
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II.B.4.a. Compliance and Enforcement Program - Interim Approval:
Compliance and Enforcement Final Program Implementation (§745 327(a)(1)(B))
Activity
Plan
Time Frames
Compliance Monitoring and
Enforcement
59
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II.B.4. Compliance and Enforcement Program (§745 327(a)(1)(c))
a. Interim Approval (cont.)
The State or Tribal applicant shall also agree to submit to EPA the Summary on Progress and
Performance of renovation compliance and enforcement activities (as described at Appendix A
of this application).
60
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.4.a. Compliance and Enforcement Program - Interim Approval:
Agreement to Submit to EPA the Summary on Progress and
Performance (§ 745.327(a)(1)(C))
Please include statement that applicant agrees to submit Summary on
Progress and Performance:
61
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II.B.4. Compliance and Enforcement Program (§ 745 327(a)(2))
Final approval of the compliance and enforcement program portion
of a State or Tribal renovation can be granted by EPA either
through the application process described at 40 CFR
§ 745.324(a), or, for States or Tribes which previously received
interim approval as described in 40 CFR § 745.327(a)(1), through a
separate application addressing only the compliance and
enforcement program portion of a State or Tribal Renovation
Program.
b. Final Approval
To be considered adequate for final approval of the compliance and enforcement program portion
of a State or Tribal Renovation Program, a State or Tribe must in its application:
• Demonstrate the authority to enter, through consent, warrant, or other authority,
premises, or facilities where lead-based paint activities violations may occur for
purposes of conducting inspections.
• Provide for a diverse and flexible array of enforcement remedies. At a minimum,
the remedies that must be reflected in an enforcement response policy must
include warning letters, notices of noncompliance, notices of violation, or the
equivalent; administrative or civil actions, including penalty authority; authority to
apply criminal sanctions or other criminal authority.
62
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II.B.4.b Final Approval - Standards, Regulations, and Authority
(§ 745.327(b)(2) and (3))
Authority to enter
Applicant Citation
Reference:
Analysis
Comment
State or Tribal officials must be able to enter premises or
facilities where those engaged in training for renovations and
those engaged in conducting renovations conduct business, as
well as premises or facilities where renovation violations may
occur.
State or Tribal officials must have authority to take samples
and review records as part of the renovations inspection
process.
Flexible remedies
Warning Letters, Notices of Noncompliance, Notices of
Violation, or the equivalent.
Administrative or civil actions, including penalty authority
(e.g., accreditation or certification suspension, revocation, or
modification).
Authority to apply criminal sanctions or other criminal
authority using existing State or Tribal laws, as applicable.
Attachment: The State or Tribe should attach all policies and/or procedures that as such represent the State or Tribe's
enforcement response policy. Such policies should establish a prioritization scheme for determining severity of violations and
procedures for determining the response actions to such violations.
63
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I.B.4. Compliance and Enforcement Program (§ 745 327(a)(2))
b. Final Approval (cont.)
To be considered adequate for final approval of the compliance and enforcement program portion of a State or Tribal Renovation
Program, a State or Tribe must, in its application, also:
• Include a statement of resources which identifies what resources the State or Tribe intends to devote to the
administration of its renovation compliance and enforcement program. This statement must address fiscal and personnel
resources that will be devoted to the program.
The statement of resources may use information presented in the Infrastructure description of the State or Tribal program (see Section
II.B.2.b., Program Elements - Infrastructure). However, this statement should specifically focus on the resources dedicated to
renovation compliance and enforcement.
64
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Statement of Resources (§ 745 327(a)(2))
Please include statement of resources here:
65
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II.B.4. Compliance and Enforcement Program (§745.327(0))
A State or Tribal Compliance and Enforcement Program for
Renovations must also include the following performance elements to
be adequate for final program approval. Elements include:
• Training of renovation enforcement and inspection
personnel
• Compliance Assistance for renovations
• Sampling Techniques for renovations
• Tracking Renovation Tips and Complaints
• Targeting Renovation Inspections
• Follow-up to Renovation Inspection Reports
• Compliance Monitoring and Enforcement of
Renovations
b. Final Approval (cont.)
A State or Tribal renovation compliance and enforcement program must implement a process for
training enforcement and inspection personnel and ensure that enforcement personnel and
inspectors are well-trained. Enforcement personnel must understand case development
procedures and the maintenance of proper case files. Inspectors must successfully demonstrate
knowledge of renovation work practice requirements and the requirements of the particular
discipline (e.g., Renovator, Dust Sampling Technician or Workers receiving on the job training
from Renovators) for which they have compliance monitoring and enforcement responsibilities.
Inspectors must also be trained in violation discovery, methods of obtaining consent, evidence
gathering, preservation of evidence and chain-of-custody, and sampling procedures. A State or
Tribal renovation compliance and enforcement program must also implement a process for the
continuing education of enforcement and inspection personnel.
66
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Training of Enforcement and Inspection Personnel
(§ 745.327(c)(1))
Please discuss process for training o f enforcement and inspection personnel:
67
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II.B.4. Compliance and Enforcement Program (§ 745 327(c)(2))
b. Final Approval (cont.)
A State or Tribal renovation compliance and enforcement program must provide compliance
assistance to the public and the regulated community to facilitate awareness and understanding of
and compliance with State or Tribal requirements governing the conduct of renovations. The type
and nature of this assistance can be defined by the State or Tribe to achieve this goal.
68
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Compliance Assistance (§ 745 327(c)(2))
Please describe how the State or Tribe will conduct compliance assistance activities
to facilitate awareness and understanding of and compliance with State or Tribal
requirements governing the conduct of renovations:
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II.B.4. Compliance and Enforcement Program (§ 745 327(c)(3))
b. Final Approval (cont.)
A State or Tribal renovation compliance and enforcement program must have the technological
capability to ensure compliance with the Renovation Program requirements. A State or Tribal
application for approval of a Renovation Program must show that the State or Tribe is
technologically capable of conducting a renovation compliance and enforcement program. The
State or Tribal program must have access to the facilities and equipment necessary to perform
sampling and laboratory analysis as needed. This laboratory facility must be a recognized
laboratory as defined at § 745.223, or the State or Tribal program must implement a quality
assurance program that ensures appropriate quality of laboratory personnel and protects the
integrity of analytical data.
70
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Sampling Techniques (§ 745 327(c)(3))
Please describe how the State or Tribe has the technological capability to ensure
compliance with the Renovation Program requirements:
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II.B.4. Compliance and Enforcement Program (§ 745 327(c)(4))
b. Final Approval (cont.)
A State or Tribal renovation compliance and enforcement program must demonstrate the ability
to process and react to tips and complaints or other information indicating a violation. The State
or Tribe should include information such as tracking mechanisms, prioritization schemes, and
time frames within which the State or Tribe anticipates responding to tips and complaints.
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Tracking Tips and Complaints (§ 745 327(c)(4))
Please describe how the State or Tribe has the ability to process, prioritize, and
respond to tips and complaints:
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II.B.4. Compliance and Enforcement Program (§ 745 327(c)(5))
b. Final Approval (cont.)
A State or Tribal renovation compliance and enforcement program must demonstrate the ability
to target inspections to ensure compliance with the Renovation Program requirements. A neutral
administrative inspection scheme is one mechanism a State or Tribe might use to target
inspections.
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Targeting Inspections (§ 745 327(c)(5))
Please describe how the State or Tribe will target inspections to ensure compliance
with the lead-based paint program requirements:
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II.B.4. Compliance and Enforcement Program (§ 745 327(c)(6))
b. Final Approval (cont.)
A State or Tribal renovation compliance and enforcement program must demonstrate the ability
to reasonably, and in a timely manner, process and follow-up on inspection reports and other
information generated through enforcement-related activities associated with the Renovation
Program. The State or Tribal program must be in a position to ensure correction of violations and,
as appropriate, effectively develop and issue enforcement remedies/responses to follow up on the
identification of violations. The State or Tribe should illustrate here procedures used to follow up
on inspections, including case development, consent agreement and consent orders, follow up
inspections, case closeout, and time frames within which the State or Tribe aims to achieve
report follow up, and resolution of non-compliance.
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Follow Up to Inspection Reports (§ 745 327(c)(6))
Please describe how the State or Tribe has the ability to process and follow-up on
inspection reports and other information generated through enforcement-related
activities:
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II.B.4. Compliance and Enforcement Program (§ 745 327(c)(7))
b. Final Approval (cont.)
A State or Tribal renovation compliance and enforcement program must demonstrate, in its
application for approval, that it is in a position to implement a compliance monitoring and
enforcement program. Such a compliance monitoring and enforcement program must ensure
correction of violations, and encompass either planned and/or responsive renovation compliance
inspections and development/issuance of State or Tribal enforcement responses which are
appropriate to the violations. The State or Tribe must demonstrate it has the legal authority and
ability to immediately implement the required elements of this section (II.B.4.b.).
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Compliance Monitoring and Enforcement (§ 745 327(c)(7))
Please describe whether the State or Tribe has, in its opinion, the required elements
o f this section in place:
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II.B.4. Compliance and Enforcement Program (§ 745 327(a)(2))
b. Final Approval (cont.)
To be considered adequate for final approval of the compliance and enforcement program portion
of a State or Tribal Renovation Program, a State or Tribe must, in its application, also:
• Include a statement of resources which identifies what resources the State or Tribe
intends to devote to the administration of its renovation compliance and
enforcement program. This statement must address fiscal and personnel resources
that will be devoted to the program.
The statement of resources may use information presented in the Infrastructure description of the
State or Tribal program (see Section n.B.2.d., Program Elements - Infrastructure). However, this
statement should specifically focus on the resources dedicated to compliance and enforcement.
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II.B.4.b. Compliance and Enforcement Program - Interim Approval:
Statement of Resources (§ 745 327(a)(2))
Please include statement of resources here:
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II.B.4. Compliance and Enforcement Program (§ 745 327(a)(2))
b. Final Approval (cont.)
The State or Tribal applicant must also agree to submit to EPA the Summary on Progress and
Performance of renovation compliance and enforcement activities (as described at Attachment A
of this appendix).
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II.B.4.b. Compliance and Enforcement Program - Final Approval:
Agreement to submit to EPA the Summary on Progress and
Performance (§ 745.327(a)(2))
Please include statement that applicant agrees to submit Summary on
Progress and Performance:
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Attachments
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Attachment A Summary on Progress and Performance (§ 745 327(d))
The Summary on Progress and Performance described below is part of the required elements for
the compliance and enforcement program portion of a State or Tribal Renovation Program. A
State or Tribal renovation compliance and enforcement program must submit to the appropriate
EPA Regional Administrator a report which summarizes the results of implementing the State or
Tribal renovation compliance and enforcement program, including a summary of the scope of the
regulated community within the State or Tribe, as required by § 745.324(h). The summary would
include the number of individuals and firms certified for renovations and the number of training
programs accredited, as well as the inspections conducted, enforcement actions taken,
compliance assistance provided, and the level of resources committed by the State or Tribe to
these activities. The report shall be submitted according to the requirements at § 745.324(h).
Attachment B Memorandum of Agreement (§ 745 327(e))
A Tribe that obtains Renovation Program approval must establish a Memorandum of Agreement
with the Regional Administrator. The Memorandum of Agreement shall be executed by the
Tribe's counterpart to the State Director (e.g., the Director of Tribal Environmental Office,
Program or Agency). The Memorandum of Agreement must include provisions for the timely
and appropriate referral to the Regional Administrator for those criminal enforcement matters
where that Tribe does not have the authority (e.g., those addressing criminal violations by
non-Indians or violations meriting penalties over $5,000). The Agreement must also identify any
enforcement agreements that may exist between the Tribe and any State.
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