Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 1 EPA Conference Call With State, Local, and Tribal Government Representatives About Possible LBP Activities Framework ( May 15, 2003)

1. Summary Discussion, Qs & As, and Comments Mike Wilson, EPA, and Eric Oetjen, ICF Consulting, opened the discussion by asking participants to focus their comments on the following five overarching topics:

1. Expanding Capacity. Will the updated framework, as currently described, increase the number of firms that perform hazard reduction? Increase the use of lead safe work practices ( LSWP) during renovation and remodeling ( R& R) activities?

2. Unintended Impacts on Interim Controls ( ICs) and/ or Use of LSWP. Are there aspects of the framework which, in their opinion, will hinder or discourage use of firms performing ICs or using LSWP during R& R?

3. Other Impacts on Industry. What's the overall impact on the abatement industry? On the R& R industry?

4. Cost and Quality of Lead based Paint ( LBP) Services. What are the cost implications of the possible framework changes? Are there any quality implications?

5. Other Implementation Issues. What other implementation issues do they foresee? Are there practical issues in terms of what state, tribes, and localities will need to do? What challenges would they and other stakeholders face?

Preliminary Qs and As, and Comments Before diving in to these five topics, participants had some general questions and comments regarding certification of firms and individuals:

Q: What is the point of certifying firms for renovation? It is hard enough to get R& R firms even to register, let alone to certify to do LSWP. ( Kerra) A: The statute directs EPA to look at R& R activities and to introduce requirements if EPA determines that R& R activities pose hazards. So, this possible framework would certify R& R contractors ( as well as hazard reduction contractors). For the purpose of this discussion, EPA is asking for comments on the need for such certification. Remember that the framework describes certification both for firms as well as for individuals ( e. g., supervisors). When you comment, please differentiate between these two possible certification requirements. ( Mike)

Q: In California, individuals have to go through a rigorous state contractor licensing board. Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 2 Has EPA thought about differential implications of adding to already existing programs versus implementing new requirements in places without existing contractor licensing? ( Larrie) A: EPA has considered the framework both ways   either as an element of an existing contractor licensing program or as a standalone program. ( Mike)

Comments:

° One rationale for requiring certification is to be able to have some leverage against a contractor that does poor, unsafe work. In this way, certification may be an " easy" means to enforce regulatory compliance. ( Ernie)

° EPA believes that unlike certification at only the individual level, certification of both firms and individuals provides the best balance between costs and benefits. ( Mark) Thus, a benefit of certification is that a state, tribal, or local government agency could oversee what's being done at either the firm or individual level. ( Mike)

° Regarding certification of supervisors, EPA may want to make sure that one bad supervisor can not move on to do poor work at another firm ( e. g., by taking away his individual certifications). ( Mike)

Topic 1: Expanding Capacity Question Posed by EPA: Will the updated framework, as currently described, increase the number of firms that perform hazard reduction? Increase the use of LSWP during R& R activities?

Answers, Comments, and Other Qs and As Number of firms may increase:

° The framework will increase the " ability" to increase the number of contractors, since it lowers the number of hours for supervisors training and the number of in class hours for workers. ( Tom)

Number of firms is hard to predict given other factors:

° There is a major negative inducement for R& R contractors to become trained and certified, which is not related to the possible framework. Namely, contractors are concerned about OSHA requirements regarding personal protection, medical monitoring, annual physicals, etc. These requirements impose a great deal of expenses on contractors. So, the number of R& R firms that certify may be driven by the cost of health monitoring, not potential framework changes. ( Ernie) Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 3 Hazard reduction firms may decrease as R& R firms increase:

° This framework seems to propose a two tiered standard   one for abatement/ hazard reduction contractors, which requires notification, etc., and one for R& R contractors that has less stringent requirements. The number of abatement/ hazard reduction contractors may go down, since these firms will flock toward the lower R& R tier ( and so, the number of R& R firms may increase). ( Bob)

Q: Has EPA considered a single standard ( e. g., any activity that disturbs more than 2 sq. ft. creates a lead hazard that is treated in one program, with clearance testing, accredited training, etc.) in addition to this two tiered program? ( Bob) A: EPA considers the framework to be a unified approach, with a single tier for training and certification. There would not be categories of firms such as " abatement" or " R& R" contractors; rather, there would be one group of " certified" contractors. The idea is that any certified firm could do lead work. Under the framework, for example, HUD could subcontract out the project design ( PD) and then contract with any local certified firm to do the work. EPA views this framework as a way to bring everyone in to the system. There may be a few additional requirements for abatement ( e. g., clearance testing), but only in the face of clear hazard reduction. ( Mike & Mark)

Topic 2: Unintended Impacts on ICs and/ or Use of LSWP Question Posed by EPA: Are there aspects of the framework which, in their opinion, will hinder or discourage use of firms performing ICs or using LSWP during R& R?

Answers, Comments, and Other Qs and As Hazard reduction versus renovation:

° The core of the issue is whether there's any rationale for conducting and regulating lead hazard reduction differently under hazard reduction versus R& R. In many cases, there is a good reason for handling the two activities differently: ° Hazard reduction may be associated with extreme events ( e. g., a lead poisoned child). In this case, the goal is to arrive at a lead safe household, cleaned to endpoints dictated by state standards. ° During R& R, contractors need to make sure they do not create additional hazards while they are doing the work. Not sure that training for a worker doing hazard reduction would be the same for a person doing R& R. ( Ernie)

° California has done some preliminary work in reviewing childhood lead poisoning cases. In about 1/ 3 of the cases, there was exposure during R& R activities. ( Larrie) Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 4 Q: Can California follow up its review with questions such as: Did a professional conduct the work? Was the family kept out of the work area? [ In a good number of R& R cases, children may not be kept out of the work area.] ( Mike) A: California is just starting to incorporate such questions in its follow up surveys. ( Larrie)

° These are excellent reasons for having performance based standards for R& R activities. ( Ernie)

Clearance and performance based standards:

Q: Re. clearance, are there any states that foresee having a problem requiring clearance if children are there? ( Kerra) A: Clearance will not tell you the whole story, since sofas and other furniture may not be easily cleaned. Poorly performed jobs could still poses issues; clearance will not tell that. ( Ernie)

Q: Would states prefer to use their ability to deviate from the federal model to implement more tailored clearance scheme that best suites their needs? ( Mark) A: In Utah, it is feasible for the state to be more stringent than the federal program, but the state needs to justify why it is more stringent. So, it would be best if the federal program looked more like what the state wants. ( Bob) California can also be more stringent than the federal program. The state currently regulates ICs with abatement and is looking at performance based standards. As proposed, there are no certification requirements; rather, contractors have to use LSWP, period. So, looking simply to mandate that anyone doing renovation must use LSWP. ( Larrie and Dan)

Q: Do California's requirements include work practices prohibited in the current abatement rule? ( Bob) A: California favors performance based versus prescriptive standards. The state does not prohibit work practices, since it's fiscally too prohibitive. ( Dan)

° In California, the perspective is that clearance is " the" performance based standard   the bottom line is that the work site be left clean. EPA would need to propose something along these lines to get California buy in on the framework. ( Larrie)

° EPA is studying whether electrostatic cleaning clothes, such as " swiffer" like products that you find in a grocery store, could be used for cleaning and determining if a job clears and passes the lead hazard standard. An ECC test could reinforce the idea of renovation with voluntary dust sampling  so not only cleanup, but also clearance. If ECCs are effective, then they could be incorporated in cleaning up the work area. If they fail, then EPA will need to look at options for interior clearance. EPA is interested in receiving Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 5 comments regarding the need for clearance. ( Mike)

° Would like to see clearance testing more uniform, e. g., required not only if children are there, since a family with children could move in to a place that previously had not housed kids, and vice versa. ( Bob)

Compliance with 406( b):

Q: What about compliance with 406( b)? ( Dan) A: Compliance with 406 is low, and enforcement is not robust. If it's difficult to comply with 406, it will be equally difficult to enforce R& R without clearance, and even more difficult to enforce R& R with clearance. You will never have 100 percent certification; any firm in the program will compete against ones that are not in compliance. ( Mike) [ It's less an issue of individuals not complying, and more an issue of making people aware of the 406 requirement. ( Tom)]

Q: Right, the R& R community is 90+ percent small businesses. So how do you get in touch with them and let them know about 406 and the framework? ( Mike) A: Massachusetts learns about projects by receiving tips and complaints from neighbors who are concerned about their potential exposure to migrating dust. The state also researches building permits, visits job sites, and has a state standard that essentially parallels the 406 rule for lead hazard information distribution. When the state gets a tip, they check with compliance for work practices and the 406 rule, and then in lieu of a penalty, have the contractor take LSWP training. The state also requires lead safe renovations for HUD IC work. Contractors have to get training and be licensed in order to gain access to that business. ( Ernie)

Topic 3: Other Impacts on Industry Question Posed by EPA: What's the overall impact on the abatement industry? On the R& R industry?

Answers, Comments, and Other Qs and As Abatement industry:

° In California, there are about 500 firms involved in the asbestos and abatement business. They will be very unhappy/ upset to see " the rug pulled out from under them" under the revised framework. These companies got their people certified to do abatement work, so whenever there is abatement to be done, they get the job. And they know the process for dealing with cases of elevated blood levels ( EBL). But under the possible framework, any certified firm ( including R& R contractors) may do hazard reduction. This equates to severe economic loss for those firms that have already invested in training, etc., under the existing abatement regulations. The changes take away all market incentive. If EPA sets Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 6 up separate groups with separate regulations, the state agency will lose credibility and will never get people to help out. ( Larrie)

° One of the key goals of the change is to increase the supply of firms that do hazard reduction, including abatement, as a means to help bring down the cost of abatement work. ( Mike)

R& R industry:

° In terms of policy itself, EPA has to think hard about implementation. R& R contractors will see this as a burden but will deal with it, since the requirements level the playing field ( e. g., give them access to hazard reduction work, if they so desire). ( Larrie)

Topic 4: Cost and Quality of LBP Services Question Posed by EPA: What are the cost implications of the possible framework changes? Are there any quality implications?

Answers, Comments, and Other Qs and As Cost of abatement:

° Costs of abatement may increase, since currently the supervisor can design and do the project. But under the possible framework, while supervisors training decreases, PD training increases, and those PDs must do the project design plan. In California, there are 5,000 certified individuals, less than 100 of whom are PDs. The state is in the process of dropping the PD classification, since it's a duplication of work activities with supervisors. ( Dan)

° Hopefully the framework would allow abatement not to be viewed as so extreme. ( Mark) Note that abatement and ICs are often funded with federal dollars. ( Mike)

Level of effort:

Q: Can EPA provide any information on the level of resources it might be able to provide states in implementing the program? It takes a significant level of effort ( LOE) for states to implement programs such as these. ( Bob) A: EPA will be discussing state resource needs internally in about a week. LOE concerns are not lost on either EPA Headquarters or Regional staff. EPA will begin the process of getting the concern elevated to and formalized through the chain of budgeting command. ( Mark)

° Additionally, when states think about costs, especially states that seek authorization to pick up this program, they also need to consider enforcement. There are about 25 million Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 7 renovation " events" annually. If only 1 percent led to a tip or complaint, that would mean 250,000 tips, or almost 700 calls a day about R& R projects that might not be in compliance. How would states handle that volume of tips? How quickly would states be able to respond to such tips? Also, note that if enforcement personnel have not actually witnessed non compliant work practices, it would also make enforcement very difficult to pursue. ( Mike)

State authorization and enforcement:

Q: Will the program be authorized under Section 402/ 404, or Section 406? ( Dan) A: EPA has not decided at this time; it could go a number of ways. For example, it could go as a single authorization, or it could be divided in to two parts ( hazard reduction and renovation). Clearly, it would be best if all implementation and enforcement was done in a state by either the state or the federal government. ( Mark)

° Even if states were delegated authority, there still should be some level of concurrent federal authority. Sometimes states would want to collaborate with EPA under its concurrent authority. ( Ernie)

° Along that vein of authorization under sections 402, 404, or 406, EPA also needs to look at this from the standpoint of funding and enforcement. Kansas, for example, already has 406 program and has already pursued R& R. ( Barry)

° California has state authority only for 402/ 404; it would need legislative authority for 406. So, authorization under Section 402 would be okay, but authorization under Section 406 would pose a problem. ( Larrie)

° EPA is thinking of making changes to Section 406 at some point to make it easier to implement. ( Mark) EPA is also developing a new pamphlet under Section 406, with more useful tools. He will bring the most latest version of the draft to San Antonio. ( Mike)

Topic 5: Other Implementation Issues Question Posed by EPA: What other implementation issues do they foresee? Are there practical issues in terms of what state, tribes, and localities will need to do? What challenges would they and other stakeholders face?

Answers, Comments, and Other Qs and As Interagency, cross jurisdictional coordination:

° There are multi tiered, cross jurisdictional issues ( e. g., permitting through local building departments; working with 60+ health and environmental jurisdictions and hundreds of Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 8 counties, cities, etc.). The state has $ 2.5 million in funding for cross jurisdictional support on the program, but that's not enough. ( Larrie)

° Echos that   Utah has 12 different but similar local health jurisdictions, which have incorporated lead into their programs, but have zero new hires to support the program. ( Bob)

° In Kansas, tried to get the health department, city code officials to get on board the Section 406 program, but it was just another cost they did not want to incur. So, it is up to him to travel across the state to deal with 406, 404, etc. This level of outreach would be key to setting up a new program across the state. Kansas also tried to give money to local jurisdictions for 406, but only got two applications ( i. e., the money was not sufficient for the work to be performed). ( Cory)

° EPA needs to get building code officials, i. e., the folks who issue permits, on board with the lead program. Building inspectors do not think it's their job to be concerned about lead. HUD totally failed at changes to the uniform building code. ( Larrie)

° In Massachusetts, building code officials have come around over time on this issue. ( Ernie) That's why it's important to get them at the table. ( Larrie)

° In California, the law gave state and local agencies authority to enforce lead hazards. So, now the agency is going out to building and housing staff to get them knowledgeable ( e. g., trying to train code enforcement staff). So it's a 2 prong approach: ( 1) LSWP required as an enforceable standard, with huge fines for noncompliance; and ( 2) education of code enforcement staff re. the codes and their ability to cite noncompliant outfits. ( Dan)

Outreach:

° EPA needs to raise awareness of/ education on lead issues across the general populace. ( Kurt)

° He agrees   there needs to be outreach to the public to increase lead safety awareness, combined with a paradigm shift from contractors themselves. EPA should set thresholds ( e. g., performance based standards), and contractors should report other firms that are not working appropriately. That's why certification of firms is so important. Certified firms will assist EPA and the states by policing their competitors. EPA needs the leverage to take away a noncompliant firm's ability to work. ( Ernie)

° Compliance assistance is going to be a big part of implementing the program. Kansas spent time and money on advertising to get information to contractors and consumers regarding Section 406. Note: it was hard to gauge the success of the advertising campaign. EPA needs to communicate to the public ( e. g., families with kids), to hire certified/ licensed contractors versus " fly by night" firms even if it would cost the Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 9 consumer more money. In terms of cost, people have a short term cost orientation; need to get to homeowners with clear and compelling arguments. ( Barry)

° What EPA has notably misjudged in the past was the level of incremental value consumers put on abatement/ LSWP   i. e., that the job not only needs to be done well, but also leadsafe ( Mark)

° Massachusetts has done several outreach campaigns   bill boards, posters on mass transit, painters caps custom printed with lead safe message, etc. These methods target contractors and consumers. He thinks contractors like to wear these caps, since it differentiates them in the marketplace. ( Ernie)

° Agrees that EPA needs to get information out for the program to succeed. How do you get the information out?   At trade shows, house fairs, etc. Lead has been phased out of gasoline and has not been used in paint since 1978. So, in designing outreach materials, EPA needs to clarify that while the issue is being resolved, it's not resolved yet. ( Jack)

Clearance:

° Clearance should be required after renovation when children are on the property. Neither LSWP nor clearance are 100 percent protective, but together they provide more assurance that the job has been performed and cleaned up safely. ( Kerra)

° Clearance following R& R may have immediate value, but in many cases, requirements for clearance could drive the property to being abated. There may be costs associated with that outcome. ( Ernie)

Certification, training, and 3rd party exams:

° Agrees with EPA's approach to drop requirements for accreditation and certification of workers, since ( 1) training will still be required ( e. g., on the job ( OJT)), and ( 2) a certified supervisor will be on site at key times. ( Bob)

° Agrees, but supervisors should be there 100 percent of the time in the case of a lead poisoned child. Additionally, OJT of new abatement workers should be directly supervised by trained supervisors. ( Kerra) Q: How do the potential changes effect 3rd party exams? ( Dan) A: The desirability of a 3rd party exam for supervisors ( and perhaps for PDs, too) is currently up in the air, so EPA is open for input. ( Note that there is no LST discipline now.) If EPA went with a 3rd party approach, then it would apply to all supervisors   both under hazard reduction and renovation.. ( Mike)

Re. 3rd party for PDs: Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 10 ° They need to be tested if they have increased responsibility under the framework. ( Kerra)

Re. 3rd party for supervisors:

° California would see benefits; there is no issue with reciprocity. The state has a 29 percent failure rate on clearance test. The exams are really important, since they ask hard questions that relate to things in the field ( e. g., regarding how supervisors should be able to read an MSDS). Since supervisors have more responsibility ( e. g., training workers), they should be tested. ( Larrie)

° Utah could see doing away with 3rd party for supervisors, since their own training is scaled back. ( Bob)

° If EPA is doing away with abatement worker certification, then would still need some gauge of their supervisors ( e. g., to ensure they can properly teach workers on the job). ( Kerra)

° It makes sense that R& R supervisors be trained and certified parallel to abatement ( e. g., " de leading") supervisors, but logistically and economically it could be quite a challenge. ( Ernie)

Project design:

Q: One of the flaws is that there is no real consensus regarding just how far abatement should go. Should you simply engage in LSWP? Or totally remove all paint? Or just change windows? It is conceivable that R& R contractors could do maintenance work, but it is also conceivable that R& R contractors might not have the sophisticated knowledge/ protocols to do hazard reduction work. ( Ernie) A: Remember that a project design plan would be done by a certified PD, who would understand the specific requirements in the state and write up the plan for what to do, where to do it, etc. Renovation activities would follow this professional plan, which would be drawn up in advance of the work. ( Mike)

Q: Would extra training bridge this perceived gap? ( Mark) A: It's possible that training could correct some of the skills of de leading scheme. Some of the R& R contractors now excluded from hazard reduction have the skills and efficiency; one could even end up with a higher quality de leading project. ( Ernie)

Q: Why does EPA think it needs a PD designation? Right now, supervisors must be on site 100 percent of the time. Will a PD do that under the framework? ( Kurt) A: EPA envisions the same supervisors course for hazard reduction and renovation. Thus, it does not want to incorporate PD elements for hazard reduction into the supervisors Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 11 course, since the number of renovation supervisors ( who do not have to have project design plans for renovations) will be so much larger. One of the reasons to decrease supervisors training is to remove design elements and business type issues. Those topics will be moved into a more robust PD course. ( Mike)

Q: Would current supervisors be grandfathered in to PDs, since that's the level of training they received under the current abatement regime? ( Kurt) A: Yes, EPA would have to consider previous training; this would increase participation in the PD discipline. ( Mike)

° There may be a perception issues with PD; some consumers would perceive the PD as superfluous level of classification. ( Ernie)

Risk assessors and PDs:

Q: Supportive of new requirements for PDs. But, is there any parallel effort to modify the descriptions of " inspector" or " risk assessor"? ( Kerra) A: EPA is considering some changes to these categories, too, but did not want to include them in this framework update. Please forward any comments you may have on this issue to EPA. ( Mike)

Q: Wouldn't it be more palatable to meld the risk assessor and PD categories together? At one time people though abatement and R& R were really different, and now they are shown to have many similarities. ( Ernie) A: The experience and education requirements of a risk assessor and a PD are quite different. The original intent of the two disciplines was different. ( Bob)

° Believes that multiple tiers in categories of consultants ( e. g., various sampling disciplines such as LSTs, risk assessors, etc.) will create problems in the states and in the real estate/ rental industry. There's a lot of money involved in risk assessment, etc., which already raises costs to homeowners. ( Ernie)

° Wisconsin has tried to address this. For example, XRF was pulled out of the standard curriculum; it is now only " tacked on" to training if required. This significantly reduced training for inspectors ( putting it more on line with that for LSTs). ( Mike)

° In California, PDs are typically CIHs. Many of them are also risk assessors ( although not all risk assessors are PDs). ( Larrie)

Closing Comments ° Participants may provide written comments to Miek at wilson. mike@ epa. gov. [ Bob Ford provided written comments, which are provided in Section 2 below.] Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 12 ° Mike will use these comments in preparing for the national lead program meeting, in June in San Antonio.

° Steve Johnson, EPA AA, may be interested in discussing possible framework changes with group members after that meeting. Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 13 2. Written Comments Submitted by Bob Ford, Utah DEQ, on the Updated Framework under Consideration " I want you all to know that I like the direction you are going in with the upcoming R& R rule and I agree with a majority of the items you are proposing to do for both R& R and the existing abatement program. However, I look at things from a program management and regulation enforcement perspective and I think there are some potential problems in the some of the items you are proposing. Where I believe we have the ability to rectify those issues at the state level, I want to share these issues with you prior to your publishing the proposed R& R regulation in the Federal Register.

There are two overlying principles that I feel need to be incorporated into this upcoming rule, the existing USEPA LBP Abatement Program and the USHUD LBP regulation. Those principles are a " single standard" ( not multiple standards for USEPA/ USHUD Abatement, USEPA R& R, and USHUD R& R in target housing and child occupied facilities and the upcoming bridges, buildings and structures ( BB& S) rule) and the KIS ( keep it simple) concept. Overall, I think we can simplify things for the regulated public and maintain the level of protection for individuals who both live and work in pre 1978 structures and it may actually increase the level of protection as a simplified rule may increase the number of contractors willing to comply.

I am going to list items that I think need to be revisited by USEPA ( and may already have been considered) in no particular order of importance. As always, I am willing to discuss these items with you to provide additional clarification at your convenience. Thanks for the opportunity to provide input to you and I look forward to seeing you all in San Antonio.

A. APPLICABILITY 1. Instead of having three different standards of Abatement, Interim Controls and Renovation ( and a possible fourth if you include operation and maintenance ( O& M)), just have one standard where if you disturb more than 2 ft2 of LBP on the interior of a structure ( and this applies the BB& S rule when it is promulgated also) or 20 ft2 on the exterior of a structure, then you need to comply with all aspects of this regulation. This rule needs to apply to all structures that have LBP as currently defined and not just pre 1978 housing or child occupied facilities. If you disturb more than 2 ft2/ 20 ft2 of LBP, then you would need to follow the regulations of this program.

2. The only exclusion to this is if a rental unit owner wants to work in a unit that they are not currently living in or wants to work in a housing unit that has an EBL child, then they would need to take the training and get certified as an individual and as a firm. The EBL child exception that you have in the current abatement rule needs to be extended to the proposed R& R rule also.

3. You must assume you have LBP on all pre 1978 housing unless you have documentation Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 14 from a certified and independent LBP inspector and/ or risk assessor stating that it is not LBP that is verified through an NLLAP accredited laboratory or using an XRF following all protocols outlined on the performance characteristic sheets. Any building, bridge or other structure that has a coated surface must assume LBP regardless of age ( the 1978 CPSC ban is for LBP applied to residential housing) unless documented using the previously described methods by a certified and independent LBP inspector/ risk assessor.

B. CERTIFICATION OF FIRMS 1. Firms need to be certified for enforcement and program revenue generation issues ( we need to be self sustaining). Revoking a certification is a typical program enforcement strategy with companies that repeatedly violate program regulations.

C. WORKERS 1. Workers need to continue to receive accredited training. I have discussed OSHA program training concerns ( not unlike the OJT training proposed by USEPA) with Utah program inspectors and there are concerns whether the training ever takes place. Also, there are issues that the information being taught by firms is inaccurate information ( i. e. no training may be better than bad training). I do think the current training could be trimmed to from 16 hours to 8 hours ( 4 hour refresher every 3 years) that is heavy on demonstrating safe work practices and hands on activities for workers.

2. Workers do not need to be certified. Having a current training certificate on site for the worker would be documentation of compliance with the training rule. This would need to be incorporated with a requirement that at least one certified supervisor be on site at all times.

D. SUPERVISORS 1. One or more certified supervisors need to be on site at all times when work activities are being performed ( see Section C). Training could be scaled back from the 32 hours requirement to 16 hours ( 8 hour refresher every 3 years). Training needs to be accredited and be focused on lead safe work practices, OSHA requirements for personal protection, and compliance with federal, state, and local regulations. Other existing requirements should be removed or moved to an expanded Project Designer course ( see Section F).

2. We have spoken with all of our certified firms about not requiring worker certification and requiring certified supervisors to be on site 100% of the time. They all said this would be a preferred regulatory alternative to the current requirement. Small firms with only one supervisor on staff thought this may be a problem but would probably end up getting a second individual certified as a supervisor.

3. Paying a state certification fee to the training provider may not be acceptable to all Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 15 states/ tribes or the training providers. Currently, we have that option with our principal in state training provider, but all states/ tribes/ training providers may not be willing to do that.

E. LEAD SAMPLING TECHNICIANS 1. I believe HUD called these individuals " Dust" Sampling Technicians and I like that terminology better ( especially if those individuals can only conduct visual inspections and collect dust wipe samples and not collect lead samples in the form of paint chips, XRF, soil, water, etc.). Keep the same name for the discipline so there will be no confusion.

2. I think we should create this discipline though I am sure that there will be a concern from currently certified LBP inspectors and risk assessors. I have reviewed the curriculum ( though some time ago) and do not have an issue with teaching people how to collect, ship, do chain of custody, choose a NLLAP accredited laboratory, etc, etc. in 4 hours. I think we should require refresher training every three years ( could be the same 4 hour course).

F. PROJECT DESIGNER 1. Accredited project designer training of 24 hours, a prerequisite of attending and successfully passing the LBP Supervisor course and 3rd party test. Certification should also be required. Project design should be required for all projects that disturb more than 2 ft2/ 20 ft2 for hazard reduction, R& R, O& M or whatever you want to call it. Simple, repetitive projects ( like window removal, paint preparation, etc.) could have a generic project design created that should be reviewed for applicability and potential modification prior to project start.

2. Project designer training should be expanded to include all items being removed from the Supervisor training course. Supervisor/ Project Designer training should be no more than 40 total hours.

G. WORK PRACTICE STANDARDS   GENERAL 1. I am absolutely ecstatic about the performance based standards and believe that should be used for all projects ( i. e. abatement, R& R, O& M, BBS, etc.) using the " single standard".

2. Hazard reduction and R& R ( as well as O& M, BB& S, etc.) should include a project design, and occupant protection plan, and lead reduction report.

3. A certified supervisor should be required to be on site 100% of the time when regulated activities are being performed. Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 16 4. Notification should be required for all projects disturbing more than 2 ft2/ 20 ft2 of LBP. The thought of regulatory over site and a proactive enforcement program would help ensure regulated LBP projects are performed effectively and Lead Safe.

5. Emergency projects are problematic from an enforcement perspective ( i. e. everything is an emergency). " Deferring" the project from regulation ( not " exempting" the project) while it poses an "... endangerment to public health or substantial property damage..." is necessary. Notification should still be required and as soon as the building no longer poses an "... endangerment to public health or substantial property damage...", all regulatory requirements should be required before proceeding.

H. PROHIBITED PRACTICES 1. A single standard should be used whenever more than 2 ft2/ 20 ft2 of LBP is disturbed ( i. e. whether it is abatement, R& R, O& M, BB& S, etc.). Open flame burning or torching, machine sanding, grinding, abrasive or sand blasting without HEPA exhaust control, extensive dry scraping or sanding ( above 2 ft2/ 20 ft2) or heat guns above 1100 degrees F. should be prohibited regardless of the intent of the project.

I. INTERIOR CLEARANCE 1. Current requirements for interior clearance of LBP abatement projects should be used for all projects disturbing more than 2 ft2/ 20 ft2 of LBP. " Dust" sampling technicians could be used for interior clearance. Intent of the project should not be a consideration in the decision making process of whether to perform clearance. Adequate cleaning after a project will only be performed on regulated projects if clearance is a requirement.

2. I personally feel that clearance after a regulated LBP project is the best insurance a contractor can have. It is good " bang" for the " buck". Clearance samples collected after the end of a project could help prevent lawsuits and regulatory enforcement issues. Especially with performance based standards, this would be the documentation that a project has been successfully completed and is ready for re occupancy ( which is required by HUD projects).

3. I believe HUD currently requires the firm performing the regulated LBP abatement or R& R project cannot perform the inspection/ risk assessment before the project or perform the clearance after the project. I believe that USEPA should revisit this issue and modify the rules to be consistent with HUD requirements ( i. e. single standard).

J. EXTERIOR CLEARANCE 1. Current requirements for exterior clearance of LBP abatement projects should be used for all projects disturbing more than 2 ft2/ 20 ft2 of LBP. " Dust" sampling technicians could be Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 17 used for exterior clearance. Intent of the project should not be a consideration in the decision making process of whether to perform clearance.

2. I believe HUD currently prohibits contractors performing abatement/ R& R activities from performing clearance on their own projects ( see I3, above) and USEPA should modify their existing and future rules to be consistent with HUD requirements ( i. e. single standard).

K. OTHER ISSUES 1. We have had some issues with the definition of Certified Firm as some non profits, military bases, local health jurisdictions, state agencies have come to us and said they are not a "... company, partnership, corporation, sole proprietorship, association or other business entity..." and therefore they are not required to be certified as a firm. We are considering changing the language to say "... or any other business entity...".

2. The definition of inspection has been problematic for us in that some individuals who perform partial inspections don't believe they are required to get certified as either an inspector or as a firm ( and I agree with them considering the current language). USEPA should evaluate the need to define a partial inspection or augment their current definition to include partial inspections as a regulated activity." Draft Deliberative  Do Not Cite or Quote   June 2, 2003   Page 18 3. Workgroup Participants on the May 15, 2003, State, Local and Tribal Government Stakeholder Group Call Legislators The Honorable Jack Barraclough, Idaho House of Representatives State Programs Larrie Lance, Kendra Frazier, Russell Stowe, and Dan Scannell California Department of Health Childhood Lead Poisoning Prevention Program Gary Flentge, Glen Garner, and Kurt McAfee Illinois Department of Public Health Environmental Lead Program Barry Brooks, Tom Morey, and Cory Lambrecht Kansas Department of Health and Environment Childhood Lead Poisoning Prevention Program Ernie Kelly Massachusetts Department of Labor and Workforce Development Kerra Rouderbush, Cheryl Bradley, Lynnette Jordan, and Kevin Tallant Oklahoma Department of Environmental Quality Air Quality Division Bob Ford Utah Department of Environmental Quality Division of Air Quality


[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Rules and Regulations]
[Pages 15-17]
[FR Doc No: 2010-32968]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-TX-0012; FRL-9246-3]

Approval and Promulgation of Implementation Plans; Texas;
Emissions Banking and Trading of Allowances Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving portions of four revisions to the Texas State
Implementation Plan (SIP) that create and amend the Emissions Banking
and Trading of Allowances (EBTA) Program. The EBTA Program establishes
a cap and trade program to reduce emissions of oxides of nitrogen
(NOX) and sulfur dioxide (SO2) from participating
electric generating facilities. The Texas Commission on Environmental
Quality (TCEQ) originally submitted the EBTA program to EPA as a SIP
revision on January 3, 2000. Since that time, the TCEQ has submitted
SIP revisions for the EBTA Program on September 11, 2000; July 15,
2002; and October 24, 2006. EPA has determined that these changes to
the Texas SIP comply with the Federal Clean Air Act (the Act or CAA)
and EPA regulations, are consistent with EPA policies, and will improve
air quality. This action is being taken under section 110 and parts C
and D of the Act.

DATES: This final rule will be effective February 2, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2005-TX-0012. All documents in the docket are listed in
the http://www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 FOIA
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays
except for legal holidays. Contact the person listed in the FOR FURTHER
INFORMATION CONTACT paragraph below or Mr. Bill Deese at<PHONE_NUMBER>
to make an appointment. If possible, please make the appointment at
least two working days in advance of your visit. There will be a 15
cent per page fee for making photocopies of documents. On the day of
the visit, please check in at the EPA Region 6 reception area at 1445
Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal related to this SIP revision, and which is part
of the EPA docket, is also available for public inspection at the State
Air Agency listed below during official business hours by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning
today's final rule, please contact Ms. Adina Wiley (6PD-R), Air Permits
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue
(6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number is
(214) 665-2115. Ms. Wiley can also be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'',
``us'', or ``our'' is used, we mean the EPA.

Table of Contents

I. What final action is EPA taking?
II. What is the background for this action?
III. What are EPA's responses to comments received on the proposed
action?
IV. Statutory and Executive Order Reviews

I. What final action is EPA taking?

    We are fully approving severable portions of four revisions to the
Texas State Implementation Plan (SIP) that create and amend the
Emissions Banking and Trading of Allowances (EBTA) Program. The EBTA
Program establishes a cap and trade program to reduce emissions of
oxides of nitrogen (NOX) and sulfur dioxide (SO2)
from participating electric generating facilities. The TCEQ originally
submitted the EBTA program to EPA as a SIP revision on January 3, 2000.
Since that time, the TCEQ has submitted SIP revisions for the EBTA
Program on September 11, 2000; July 15, 2002; and October 24, 2006.
    EPA acted on the above SIP revisions through a direct final
rulemaking and accompanying proposed rule action on November 16, 2010,
at 75 FR 69884 and 75 FR 69909, respectively. In our direct final
action we stated that we would withdraw our direct final approval if we
received relevant adverse comments before December 16, 2010. Because
EPA received one adverse comment, we withdrew our direct final action
on December 15, 2010. As we discussed in our direct final and proposed
rulemaking actions, we are proceeding with a final action and
responding to the comments received in this notice. Today, we are
approving the EBTA program and subsequent revisions as we proposed and
find that they comply with the CAA and EPA regulations, are consistent
with EPA policies, and will improve air quality. This final approval is
being taken under parts C and D of the CAA.

II. What is the background for this action?

    The TCEQ created the EBTA Program to implement the requirements of
Texas Senate Bill 7 (SB 7), from the 76th Legislature, 1999, which
deregulated the electric utility industry. Under Texas SB 7, TCEQ was
required to develop a permitting system and a mass cap and trade system
to distribute allowances for use by electric generating facilities. The
EBTA program is designed to achieve a 50 percent reduction in
NOX emissions and a 25 percent reduction in SO2
emissions, both based on 1997 heat input data, from participating
sources. EPA has taken separate action on the permitting system
required under Texas SB 7 and established at 30 TAC Chapter 116,
Subchapter I (See docket EPA-R06-OAR-2005-TX-0031).
    In our November 16, 2010, direct final action, we presented our
evaluation of the EBTA program. Generally, SIP rules must be
enforceable and must not relax existing requirements. See Clean Air Act
sections 110(a), 110(l), and 193. EPA's review of the January 3, 2000;
September 11, 2000; July 15, 2002; and October 24, 2006 SIP revisions
finds that all 4 SIP submittals are consistent with the requirements at
40 CFR Part 51 and are considered complete SIP submittals in accordance
with 40 CFR Part 51, Appendix V. This detailed analysis is available in
the Technical Support Document (TSD) for this rulemaking. Additionally,
we reviewed the EBTA program with respect to EPA's

Economic Incentive Program (EIP) Guidance ``Improving Air Quality with
Economic Incentive Programs'' (EPA-452/R-01-001, January 2001) (EIP
Guidance). Our analysis, as detailed in the TSD accompanying this
rulemaking, finds that the EBTA program is consistent with the criteria
for discretionary source specific emissions cap programs. The EBTA
program will provide compliance flexibility to participating electric
generating facilities in Texas and achieve the programmatic emission
reduction goals of Texas SB 7. Further, EPA finds that the EBTA program
is consistent with section 110(l) of the CAA and will not interfere
with any applicable requirements concerning attainment and reasonable
further progress towards attainment of the NAAQS or any other
applicable requirements of the Act.

III. What are EPA's responses to comments received on the proposed
action?

    EPA received one adverse comment on our proposed action, available
in the docket. As discussed previously, because we received an adverse
comment within the comment period, EPA withdrew our direct final
rulemaking on December 15, 2010. We are proceeding with a separate
final action on the EBTA program in this notice.
    Comment 1: The comment EPA received states in its entirety: ``No
cap and trade other than through Congress!''
    Response 1: The commenter did not provide any basis for why cap and
trade should only be done through Congress or provide any specific
comment on the EBTA program. There is nothing in the comment that
convinces EPA that the EBTA program should not be approved. The Clean
Air Act was enacted by Congress. 42 U.S.C.A. 7401. Under the Act, EPA
is authorized to set clean air standards. 42 U.S.C.A. 7409. States are
authorized to choose control strategies to meet these standards. 42
U.S.C.A. 7410(a). EPA can approve the strategies into State
implementation plans, as long as the strategies are consistent with the
Act. 42 U.S.C.A. 7410(l). As we stated in our proposal, and in section
II of this notice, EPA finds the EBTA program to be consistent with the
Act. EPA is making no changes to our proposed action as a result of
this comment.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 4, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Volatile organic compounds.

    Dated: December 21, 2010.
Carl E. Edlund,
Acting Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended by adding a new centered heading titled
``Division 2--Emissions Banking and Trading of Allowances'' immediately
after the entry for Section 101.311 under Chapter 101--General Air
Quality Rules, Subchapter H--Emissions Banking and Trading, followed by
new entries for sections 101.330, 101.331, 101.332, 101.333, 101.334,
101.335, 101.336, 101.338 and 101.339.
    The additions read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                       State approval/
        State citation              Title/Subject      submittal date     EPA approval date       Explanation
----------------------------------------------------------------------------------------------------------------
                                     Chapter 101--General Air Quality Rules
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                   Subchapter H--Emissions Banking and Trading
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Section 101.311..............  Program Audits and            11/10/04  9/6/06, 71 FR 52698.    .................
                                Reports.
----------------------------------------------------------------------------------------------------------------
                             Division 2--Emissions Banking and Trading of Allowances
----------------------------------------------------------------------------------------------------------------
Section 101.330..............  Definitions...........      12/16/1999  1/3/2011 [Insert FR     .................
                                                                        page number where
                                                                        document begins].
Section 101.331..............  Applicability.........      12/16/1999  1/3/2011 [Insert FR     .................
                                                                        page number where
                                                                        document begins].
Section 101.332..............  General Provisions....      12/16/1999  1/3/2011 [Insert FR     .................
                                                                        page number where
                                                                        document begins].
Section 101.333..............  Allocation of               08/09/2000  1/3/2011 [Insert FR     .................
                                Allowances.                             page number where
                                                                        document begins].
Section 101.334..............  Allowance Deductions..      12/16/1999  1/3/2011 [Insert FR     .................
                                                                        page number where
                                                                        document begins].
Section 101.335..............  Allowance Banking and       12/16/1999  1/3/2011 [Insert FR     .................
                                Trading.                                page number where
                                                                        document begins].
Section 101.336..............  Emission Monitoring,        12/16/1999  1/3/2011 [Insert FR     .................
                                Compliance                              page number where
                                Demonstration, and                      document begins].
                                Reporting.
Section 101.338..............  Emission Reductions         10/04/2006  1/3/2011 [Insert FR     .................
                                Achieved Outside the                    page number where
                                United States.                          document begins].
Section 101.339..............  Program Audits and          10/04/2006  1/3/2011 [Insert FR     .................
                                Reports.                                page number where
                                                                        document begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-32968 Filed 12-30-10; 8:45 am]
BILLING CODE 6560-50-P