Anonymous public comment

The proposed rule is a little difficult to follow because it not only involves the new Renovation, Repair and Painting Rule, but also the existing rule dealing with lead based paint (LBP) services such as abatements, inspections and risk assessments. In the following analysis the term “Renovation program” is used to identify the former, and term “LBP activities program” the latter. Definitions Looking to the Definitions sections of both the LBP activities program and Renovation program, one notes some significant variations in what types of entities are regulated:   LBP activities program (745.233 Definitions)   Certified firm means a company, partnership, corporation, sole proprietorship, association, or other business entity that performs lead-based paint activities to which EPA has issued a certificate of approval pursuant to Section 745.226(f).   Renovation program (745. 83 Definitions) Firm 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.   Comments:   It appears that the 745.233 Definition of a Certified firm was modified by interpretation for Federal agencies per the following from the EPA Lead Program Home Page:   “Q/A(14) Applicability to Other Federal Agencies Q14: Must employees of Federal agencies who conduct lead-based paint activities be certified as individuals? Must their agencies be certified as firms? Must Federal agencies pay certification fees for individuals and firms? A14: Yes. TSCA section 408 generally requires Federal agencies and their employees to comply with all Federal, State, interstate, and local requirements, both substantive and procedural, respecting lead-based paint, lead-based paint activities, and lead-based paint hazards in the same manner and to the same extent as any non-governmental entity is subject to such requirements. The regulations at 40 CFR 745.220(c) specifically state that Federal government agencies and their employees must comply with the requirements of 40 CFR part 745, subpart L. This includes payment of certification fees. Therefore, Federal employees who conduct lead- based paint activities as defined in 745.223 must be certified as individuals, and Federal agencies whose employees conduct lead based paint activities must be certified as firms. To become certified, these individuals and firms must pay certification fees.”   Based on the above, it appears the current LBP activities program definition of a Certified firm would be:   Certified firm means a company, partnership, corporation, sole proprietorship, association, Federal agency or other business entity that performs lead-based paint activities to which EPA has issued a certificate of approval pursuant to Section 745.226(f).  The following questions arise:   A. One notes that individuals doing business, State, Tribal, or local government agencies; or nonprofit organizations are included in the Renovation program definition, but not in the LBP activities program definition.  Is there some reason for the differences between the two definitions? B. Can individuals certified to perform a LBP service conduct provide the service without being employed by a certified LBP activities program firm? The LBP activities program rule requires a firm to employ certified individuals, but there appears to be no complementary requirement that a certified individual be employed by a certified firm when the individual is providing a LBP service. This question appears to be covered in the Renovation program definition which includes an “individual doing business” within the scope of what constitutes a firm; basically the Renovation program requires the individual in a one-man business to be qualified by training as a Renovator and pay the fees to be a certified renovation firm.   Recordkeeping   Both the LBP activities program and Renovation program have requirements for recordkeeping:   In the LBP activities program, they are described in under Work practice:   “Section 745.227 (h) Recordkeeping. All reports or plans required in this section shall be maintained by the certified firm or individual who prepared the report for no fewer than 3 years. The certified firm or individual also shall provide copies of these reports to the building owner who contracted for its services.”   In the Renovation program recordkeeping requirements are covered under Recordkeeping and reporting requirements:   “Section 745.86 (a) Firms performing renovations must retain and, if requested, make available to EPA all records necessary to demonstrate compliance with this subpart for a period of 3 years following completion of the renovation. This 3– year retention requirement does not supersede longer obligations required by other provisions for retaining the same documentation, including any applicable State or Tribal laws or regulations. ………………………”   Comments:   One notes in the LBP activities program the records can be maintained by either a certified LBP activities firm or a certified LBP activities individual (such an Inspector, Risk Assessor, Supervisor, or Project Designer), while in the Renovation program, record retention requirements are the responsibility of the Renovation firm, not the individual Renovator.  In the former case, this statement tends to further cloud the case as to whether there is requirement for the individual to be employed by a certified LBP activities program firm when they perform a LBP service, which often requires an appropriate record be created. This is a question that has been asked repeatedly at virtually every conference, symposium, etc that I have attended. This would also clarify the question as to what “standing” does a report generated by an individual certified to provide LBP services but not employed by a certified LBP activities program firm when the results of the report are used to support an exemption from other regulations (such as a Inspection Report for the 1018 Disclosure Rule).   One also notes that on the current LBP activities application for individuals and firms, a place for business address is listed.  However, there is no assurance that this is the same address as the location of the records generated by the results of the individual’s or business’s LBP activities operation.  From an enforcement perspective, this requirement needs to be levied, for both the LBP activities program and Renovation program along with requirement that it be kept up to date.  The application form can still provide an option, as it does now, for a business mailing address.   Ownership-General   The propose regulation reads: Lead; Renovation, Repair, and Painting Program 2. Renovation firms—b. Certification of firms ………………………. Firm certifications are not transferable--if the firm is sold, the new owner must submit a new initial application for certification in accordance with 40 CFR 745.89(a). ………………   Comments:   This requirement implies that when there is a change of ownership of a Renovation program firm, the firm will have to pay the initial fee.  There appears to be no rationale in the preamble or proposed rule for this requirement.  This gives rise to the following questions:   A. What is the criteria the regulated community to use to determine whether there’s a change in ownership?  Renovation firms often are incorporated or LLC’s which implies a number of individuals whose degree of “ownership” of the business can vary widely.  Consequently, developing some workable and understandable standard might for ownership might be difficult.   As an alternative, one might take the following approach:  Typically when firms are sold, the transaction involves transfer of liabilities as well assets.  Currently, in the LBP activities program, when a firm applies for certification, the attesting official, who may or may not be an owner of a firm, attests that the firm will comply with regulatory requirements.  Applying the transfer of assets and liabilities approach to the Renovation program, would mean that when a firm is sold, the existing certification would be considered an asset and the requirement to comply with regulatory requirements the associated liability.  Including this in the regulatory language would be a means of explicitly conveying the requirement.   Ownership-Application to Tribal Firms and Tribal employees   The ownership question is of immediate interest based on the following in the preamble:   The propose regulation reads: Lead; Renovation, Repair, and Painting Program 2. Renovation firms—b. Certification of firms   “……..In addition, EPA has received input from stakeholders that indicates that Indian Tribes may be having difficulty paying firm and individual certification fees. While TSCA section 402(a)(3) exempts State, local government, and non-profit training programs from Federal accreditation fees, it does not provide an exemption for certification fees. It is EPA's understanding that Indian Tribes typically incur certification fees for Tribal employees who perform lead-based paint inspections and risk assessments in Tribal housing. EPA estimates that only a small number of Indian Tribes and Tribal employees will seek certification each year to perform these activities. Accordingly, if EPA were to impose only a nominal certification fee on Tribal firms (Indian Tribes seeking firm certification) and Tribal employees, and apportion the remainder of the costs for these certifications across all of the other accreditation and certification activities, the impact on the resulting fee estimates for all of the other fee activities is negligible.     Therefore, in revising the existing fees, …………..  In addition, EPA is also proposing to establish nominal fees for firm certification and re-certification for Federally-recognized Indian Tribes and nominal fees for individual certification and re-certification for Tribal employees.   Comments:   One can understand the merits of the reduced fees for the limited situations described above. However, as to how the above will be applied, the following questions arise:   Tribal firm certification (LBP activities program and Renovation program)   A. What is the criteria the regulated community to use to determine whether the firm is owned by a Tribe? Would a Federal agency whose primary focus is support of Tribes (such as the Indian Health Service or Bureau of Indian Affairs) qualify for the reduced fee? B. What type of supporting documentation will have to be submitted with the application to confirm the firm is owned by a Tribe? C. Since the Renovation program is national in nature, could a Tribal firm certified under the Renovation program perform renovations in both EPA-administered Tribal jurisdictions and EPA- administered State jurisdictions? If they can, would there be a fee and what would this fee be?  For example, if a Tribal firm paid a fee of $20 for their initial Renovation program certification to perform renovations in an EPA-administered Tribal jurisdiction , would there be fee for them to also perform renovations in an EPA-administered State jurisdiction such as the $300 initial fee required of a non-Tribal firm to perform renovations? In another example, if a Tribal firm paid a fee of $20 for their initial LBP activities certification in an EPA-administered Tribal jurisdiction, would the fee for them to perform LBP activities in an EPA-administered State jurisdiction be $35 (the normal to LBP activities fee for adding a jurisdiction), or the $550 initial fee required of a non-Tribal firm to perform LBP activities?   Tribal employee certification (LBP activities program)   A. What is the criteria the regulated community to use to determine whether the employee is employed by a Tribe?  One notes that the way the proposed regulation reads, a Tribal employee applying for an individual Tribal certification would not necessarily have to be employed by a certified Tribal firm nor be a Tribal member; they would be eligible if they were employed by any Tribal operation.  B. Would an employee of a Federal agency such as the Indian Health Service or Bureau of Indian Affairs qualify for the reduced fee? C. What type of supporting documentation will have to be submitted with the application to confirm the individual is a Tribal employee? D. Could an individual certified under the LBP activities program perform LBP activities in both EPA-administered Tribal jurisdictions and EPA-administered State jurisdictions after paying an additional fee?  If they can, what would this fee be?  For example, if a Tribal employee paid a fee of $10 for their initial EPA-administered LBP activities Tribal jurisdiction certification, would the fee for him to operate in an additional EPA-administered State jurisdiction be $35 (the normal fee for adding a jurisdiction), or the $410/$310 initial fee required of a non-Tribal employee? E. Is the Tribal employee’s LBP activities certification contingent on continued employment by a Tribal function? F. In Section 745.238 (c) (1), the LBP Activities fee table, individuals column, states “Tribal certification (all disciplines)”. Presumably what is meant is the $10 fee payment is for each discipline applied for and not all discipline applied for (individuals can apply for multiple disciplines if they have the appropriate training). If this is the case, the language should be modified accordingly.