EPA PUBLIC MEETING 40 CFR PART 745: LEAD RENOVATION, REPAIR and PAINTING PROGRAM  PROPOSED RULE Tuesday, April 4, 2006 ATLANTA PEACH REPORTERS, LLC Court Reporting and Videography 3775 Clairmont Road Atlanta, Georgia 30341 Phone: ( 770) 452 0303 Fax: ( 770) 454 0348 2 P R O C E E D I N G S 1 1: 17 p. m. 2 MR. MARK HENSHALL: It looks like we've 3 proximated our quorum, so why don't we go 4 ahead and get started. 5 MS. JENNIFER KADUCK: Hello. Good 6 afternoon, everybody. I'm Jennifer Kaduck. 7 I'm chief of the land protection branch here 8 at the Georgia Environmental Protection 9 Division. 10 On behalf of EPD, I want to welcome you 11 to this public meeting on the lead Rule. And 12 we understand that there's going to be, maybe, 13 some comment on it. We're glad to host the 14 meeting. Glad to be working in partnership 15 with U. S. EPA and other state and private 16 sector partners on our lead abatement program 17 here in Georgia. We've had it for some time 18 and are continuing to improve it. Getting the 19 lead out is our business. And we are very 20 happy to host the meeting here today. 21 If you're looking for the restrooms, you 22 can go out this door ( indicating), turn right, 23 and there's a men's and women's bathroom. 24 There's also a snack room right across the 25 3 hall, if you want a soft drink or anything 1 like that. 2 Again, welcome to EPD. 3 MR. MARK HENSHALL: Thank you. 4 MS. JOANNE BENANTE: Good afternoon. My 5 name is Joanne Benante. I'm with the regional 6 office here of EPA. I'm in the pesticides and 7 toxic substances branch, which houses the lead 8 program. 9 First I want to give a big thank you to 10 Georgia EPD for hosting us there today. I 11 know a lot of work went into putting this 12 together. And it's such a great location. 13 It's easily accessible from the airport, of 14 course, and there's free parking, which is a 15 lot better than our downtown offices. We 16 appreciate your efforts. In particular, 17 Jennifer and Mark, Gwyn in the back, and 18 Maggie. We appreciate all of your efforts 19 today. 20 We're here today to talk about the new  21 You'll have to read it all  Lead, 22 Renovation, Repair and Painting Program. EPA 23 Region IV is committed to the fight against 24 poisoning of children. And we've worked with 25 4 our partners in order to meet our goal, 2010 1 goal, of elimination of lead poisoning in 2 children. That's with the states and with the 3 tribes, with the Center for Disease Control, 4 CDC; and HUD, Department of Housing and Urban 5 Development. And this Rule is sort of a step 6 toward meeting that 2010 goal of elimination 7 of poisoning children. 8 We appreciate your attendance here today. 9 And we look forward to your comments on the 10 proposed Rule. 11 With me here today is the Region IV Lead 12 Team, which includes our Regional Lead 13 Coordinator, which is Liz Wilde, Alex Winston. 14 Alex. There's Alex, so you know folks in the 15 regional office, and Pat Livingston. 16 Anybody else that I forgot from the 17 regional office? 18 Also, we have with us today, Mark 19 Henshall, from our headquarters office. Mark 20 has been with the Agency since 1989. Is that 21 correct, Mark? 22 MR. MARK HENSHALL: Uh huh ( affirmative). 23 MS. JOANNE BENANTE: Mark is in the 24 office pollution, prevention and toxins up in 25 5 headquarters. And I know I have to read this 1 part, the lead, heavy metals and inorganics  2 And he's worked in developing the lead based 3 paint regulations, not only these new rules, 4 but the original rules. So he is an expert on 5 lead based paint. And he is just going to 6 explain today before we comment on the new 7 regulations. 8 So with that, Mark, I'll handle it over 9 to you. 10 MR. MARK HENSHALL: Great. Thanks. 11 Now I won't to using much lead expertise 12 today, because today is not  Unlike many of 13 the other meetings that we've all been at, 14 today is not an opportunity to really engage 15 in sort of a dialogue in the regulations. 16 Today is an opportunity to all members of the 17 regulatory communities, state and local 18 governments to provide comment on  formal 19 comment on the Rule. 20 So first I want to thank EPD for hosting 21 us. I want to thank the folks at Region IV, 22 Alex, Liz, Joanne and Pat, for doing all the 23 work and getting this setup. 24 As you may know, this is one of five 25 6 public hearings that we're having on the 1 regulation. We've met so far in Washington, 2 New York City, here in Atlanta, in Chicago. 3 And then we have a meeting on Thursday in San 4 Francisco. 5 And the goal of these hearings, again, is 6 to give the public just another venue to 7 provide public comment on our proposed 8 regulations. 9 These comments will be transcribed by our 10 court reporter. They will be entered into the 11 docket alongside all other written comments 12 that we receive on the Rule. They'll be 13 treated no differently, the written comments. 14 They'll be recorded and responded to in the 15 exact same manner. 16 Just because you speak here today and 17 provide public comment or oral comment on the 18 Rule, does not preclude you in anyway from 19 presenting any written comment either now or 20 later on down the road. 21 If you do have any written materials that 22 you would like to see entered into the docket, 23 in addition to your oral testimony, provide 24 them to me or to Amy with ICF, and we will 25 7 make sure they get docketed. 1 If you could try to limit your comments 2 to about ten minutes or so. Please speak 3 slowly. State your name and your organization 4 when you begin so that we can get that into 5 the record accurately. 6 If you have not registered yet, please 7 register over here on the right hand side to 8 speak. Amy will be calling speakers in the 9 order in which they signed up. 10 And I think that's about it. Have I 11 missed anything, Amy? 12 MS. AMY MORTIMER: I think that's it. 13 MR. MARK HENSHALL: Then why don't we go 14 ahead and get started. 15 MS. AMY MORTIMER: So our first speaker 16 is Michael Wright. And then he'll be followed 17 by William Spain. 18 And just come up here to this table. 19 We've got a little microphone. 20 MR. MICHAEL WRIGHT: Good afternoon. My 21 name is Michael Wright. And I'm the managing 22 broker for Prudential Georgia Realty Midtown 23 Team, and president elect to the Atlanta Board 24 of Realtors. I'm also a member of the 25 8 National Association of Realtors, which I'll 1 refer to as NAR from this point forward just 2 for simplicity's sake. 3 On behalf of the 1.2 million members of 4 NAR, I appreciate the opportunity to provide 5 comments on this Proposed Lead Renovation, 6 Repair and Painting Rule. NAR has an interest 7 in this proposed rule because we represent 8 members who manage rental property as their 9 primary business. NAR also includes members 10 who manage single and multi family 11 properties, who would also be affected by this 12 Rule. The National Association of Realtors 13 has a number of concerns about this proposal. 14 Our first concern has to do with the 15 enforcement of the Rule. Even if this Rule 16 becomes deligible to the state governments, it 17 is completely unknown how it would be 18 enforced. Given the fact that many 19 renovators, contractors, painters and 20 carpenters are not licensed or regulated by 21 the states, it is unclear how these renovators 22 will even be aware that they are required to 23 be certified in this work practice standard. 24 Even if the states do create a separate 25 9 regulatory structure to ensure that the 1 renovators are certified, the cost of that 2 regulation will be passed along to the 3 renovators, who in turn will pass the cost on 4 through to property owners. That cost would 5 be in addition to the cost related to the 6 actual compliance for specific rules, 7 components of the rules, which will be 8 addressed shortly. 9 As related to this point regarding 10 renovators, the proposal requires certified 11 renovators to complete an EPA approved 12 training course. 13 It has been our experience that under 14 similar regulations, states have refused to 15 accept other states' training for work 16 conducted in their state. We strongly urge 17 EPA to require states to accept reciprocity 18 for all EPA approved training courses. 19 Without reciprocity renovators in neighboring 20 states would be required to take the same 21 course multiple times. Renovators would pass 22 on these additional education and 23 certification costs to their customers. 24 The proposed Rule requires that a 25 10 certified renovator supervise each and every 1 renovation defined as an activity that 2 disturbs more than two square feet of paint. 3 NAR believes that such a requirement will 4 result in a disincentive for property owners 5 to conduct regular maintenance on their 6 properties. This could result in deferred 7 maintenance of the targeted housing and 8 possibly creating greater lead hazards down 9 the road. 10 Due to the increased expense, 11 administrative burden and time involved in 12 complying with the Rule, some owners may be 13 forced to defer small maintenance activities 14 until they are forced to deal with a much 15 bigger problem. 16 EPA has requested comment on whether or 17 not the Rule should apply when housing is 18 unoccupied, for example, during turnover of a 19 unit. We would argue that requiring such work 20 practices in a vacant unit would be 21 unnecessary unless immediate occupancy after 22 the renovation work is complete is expected, 23 as the threat to the exposure is negligible 24 when no one is residing in the unit. 25 11 The proposed Rule requires that a 1 certified renovator be present at the work 2 site on a regular basis to oversee work 3 practices. The EPA requests comment on 4 whether this individual should be physically 5 present at the work site at all times. 6 Comments were also requested about 7 whether this individual should be prohibited 8 from being assigned to more than one job at a 9 time. 10 We believe that such a requirement would 11 be unnecessary. Providing oversight by the 12 certified renovator on a regular basis would 13 be sufficient to control air quality during 14 the project. 15 Further, the Rule states that all persons 16 performing renovation activities must have 17 on the job training by the certified 18 renovator. 19 This is sufficient for ensuring the 20 practices are used, without that person being 21 there all the time. 22 The Rule proposes a requirement that 23 signed and dated records be kept describing 24 the work practices, signed posting procedures 25 12 and containment and cleaning methods utilized 1 for every job. EPA expects this 2 record keeping burden to take no more than 3 five hours per year. NAR would strongly argue 4 that this requirement would be far more 5 time consuming than EPA believes. This 6 proposed revision would require the 7 development and maintenance of paper filing 8 systems, which would require floor space and 9 time to establish. For security purposes this 10 would most likely mean contracting for an 11 off site record storage company to keep and 12 maintain these files. Obtaining signatures on 13 documents is a time consuming process, as 14 well. For even small to medium sized 15 property managers and realtors with small 16 property management portfolios, this provision 17 would quickly take up an immense amount of 18 time and other resources far beyond the five 19 hours. 20 We are also opposed to the possible 21 requirement that EPA be notified prior to the 22 start of all renovation projects. 23 As a practical matter, this would be 24 infeasible and may result in property owners 25 13 deferring all maintenance until such time that 1 they can take care of all of their jobs at the 2 same time in order to consolidate 3 notification. 4 We urge EPA to stick with the proposal 5 not to require such notification. 6 The proposed Rule does not require 7 dust clearance sampling after each renovation 8 project. We fully support the reasoning that 9 EPA has used in not requiring this testing. 10 Dust sampling is expensive and time consuming. 11 While waiting for the test results, the 12 renovation area would have to remain 13 unoccupied. This would create a tremendous 14 burden on property owners and residents. Such 15 a requirement would result in deferred 16 maintenance and deteriorating properties. 17 In order to gain the most possible 18 compliance, EPA should stay away from 19 requirements that make the use of lead safe 20 practices more difficult. We strongly urge 21 EPA to stand by their decision not to require 22 dust clearance sampling for renovation 23 projects. 24 The proposed Rule requires that certified 25 14 renovators take  using cleaning verification 1 swipes with a Swiffer type cloth. These 2 cloths generally run one to two dollars each. 3 We would urge EPA to allow use of the 4 ASTM approved dust testing cloths. These 5 cloths are the type used in dust sampling. 6 They are readily available and cost between 7 two and five cents each. 8 In addition, the Rule requires that the 9 results of the cleaning verification be kept 10 for three years. We are concerned about this 11 provision with respect to 1018 disclosure 12 requirements. Would the results of all 13 renovation cleaning have to be disclosed to 14 buyers and lessees at the time of sale or 15 lease? 16 EPA is unclear regarding this important 17 relationship between the proposed Rule and the 18 Section 1018 disclosure rule. And NAR 19 requests clarification in this area. 20 The proposed Rule makes several mentions 21 of fees. Fees for applications, fees for 22 training. 23 NAR urges EPA to make the training for 24 certified renovators free for some period of 25 15 time in order to facilitate the creation of 1 this kind of workplace. EPA and HUD have 2 provided this kind of free training for other 3 rules. And that has been helpful in gaining 4 compliance. We also request this free 5 training be heavily publicized in advance of 6 the training sessions. We urge EPA to do the 7 same with this Rule. 8 Finally, the docket for the proposed Rule 9 is voluminous in additional sources that have 10 been added since the Rule was proposed. Due 11 to the sheer volume of reports and studies, we 12 have asked EPA for an extension of the comment 13 period to provide sufficient comment to review 14 all the materials included in docket, 15 particular those information items that were 16 placed in the docket after the public comment 17 period commenced. 18 So I thank you once again for the 19 opportunity to comment on this proposed Rule, 20 on behalf of the membership of the National 21 Association of Realtors. 22 MR. MARK HENSHALL: Thank you very much. 23 One point of clarification. And it 24 hasn't been announced yet at federal registry, 25 16 but the Agency did make the decision on Friday 1 or Monday that it would be extending the 2 public comment period on this Rule until May 3 25th. 4 And, Michael, thank you for reminding me 5 of that. 6 MS. AMY MORTIMER: William Spain. And 7 after William, Tom Laubenthal. 8 MR. WILLIAM SPAIN: I'm William Spain, 9 with the Georgia Environmental Protection 10 Division, land protection branch, which is 11 Jennifer's branch, lead based paint and 12 asbestos program. And thanks for the 13 opportunity to review and provide input on 14 this. And we will be providing written 15 comments to the record, also, before the May 16 deadline. 17 We start by saying congratulations to EPD 18 and all those people who have been involved in 19 conducting the research and writing the great 20 background on this very challenging issue. 21 The proposed standard, particularly the 22 background portion of it, is a wonderfully 23 written document that serves as great guidance 24 concerning the issue and what is already known 25 17 and how it is known and what is being 1 considered, and proposes a variety of options. 2 We have reviewed some of those options and 3 want to give input at this point. 4 One of the questions asked in the 5 proposed Rule is would a rule limited to 6 provisions of information, certification and 7 training and accreditation requirements be 8 more enforceable? 9 And our position is, yes, it would be 10 more enforceable. A bottom line, that I'm 11 going to come back to, is we're concerned 12 about the enforceability of this  well, what 13 might come out as the final Rule. We're 14 concerned about the ability for EPA to enforce 15 it in the states for which they'll be 16 responsible. And I would fear that might be a 17 much larger number than it is with the 18 lead abatement states. And we're concerned 19 about the ability of states who might sign 20 agreements with you to be able to enforce it. 21 It would take a lot of manpower, and it's very 22 challenging to get down to the level of firms 23 and operations that perform these types of 24 work. I'll come back to that issue briefly. 25 18 One of the questions is that better 1 clarification or better wording should be used 2 for the exception in coverage. And let me 3 read to you one of the exceptions that is 4 proposed. An exemption is proposed that says 5 the following: Exceptions. Components free 6 of regulated lead based paint. EPA is 7 proposing to continue to exempt renovations 8 that only affect painted components that have 9 been determined by a certified inspector or 10 risk assessor to be free of paint. 11 That's fine. 12 But then it goes ahead to say: or other 13 surface coatings that contain lead equal to or 14 in excess of one milligram per centimeter, 15 squared, or 5/ 10 percent by weight. 16 I think many people will read that that 17 surfaces which have coatings on them in access 18 of one milligram per centimeter, squared, are 19 in excess of a half a percent by weight are, 20 in fact, exempted, which obviously was not the 21 intent. 22 So a request for clarification in 23 wording, which is a good point, in my opinion, 24 to express the concern that the regulated 25 19 constituents under this Rule, when it comes 1 out, will fit into probably two extreme 2 categories, those working for public housing 3 and apartment complexes and other businesses 4 where, in fact, they are in a corporate 5 structure and are trained and supervised. And 6 then the other half of the regulated community 7 are those persons working out of the back of a 8 pickup truck or maybe they have not even been 9 able to buy a pickup truck yet, and they're 10 still doing these repair and repainting and 11 renovation activities out of a car. And 12 across the South, from the East Coast to the 13 West Coast, a lot of these repainting 14 operations are being performed by Latin crews 15 working out of a van with lots of ladders. 16 One of the concerns is how are they going to 17 learn about all of these requirements and how 18 will enforcement be achieved in that 19 small firm segment of the regulated community? 20 And I think the enforceability is 21 complicated by several, or perhaps we should 22 say many, it then approaches which are written 23 into the standards, where it will say under 24 these circumstances it's covered, under these 25 20 circumstances it isn't covered, under these 1 circumstances you have to do this, under these 2 circumstances you have to do that. That is a 3 challenge even for larger corporation 4 employees to follow. And it becomes almost 5 un interpretable by the levels of persons that 6 I referred to who are working out of their 7 cars, vans and trucks; one person firms, 8 two person firms, three person firms, or two 9 people who get together and they're a firm 10 today, and they have their own firm tomorrow. 11 A lot of repainting operations are being done 12 on that basis across the South. 13 One of the things that is proposed in the 14 standard is to encourage or, yea, even enforce 15 the development of lead test kits, which will 16 not yield any more than five percent false 17 negatives or ten percent false positives at 18 one milligram per centimeter, squared, or 5/ 10 19 of a percent lead concentration. 20 Two issues concerning that. One is OSHA 21 regulates lead activities under their Lead and 22 Construction Standard 1926.62, at any 23 detectible quantity. 24 We and people in the regulated community 25 21 or some people in the regulated community, 1 have been depending upon test methods such as 2 lead checks to tell us whether it appeared 3 there were detectible quantities there. We 4 realize that they didn't detect 0.1 milligrams 5 per centimeter, squared, or 0.01 percent. But 6 we figured it was much more sensitive than the 7 one milligram per centimeter, squared. 8 Some of us have the concern that if you 9 force them to redevelop these kits, that they 10 will become the only ones which are available, 11 and we will once again lose a reasonable 12 possibility for persons to test to see whether 13 there's any detectible quantity for purposes 14 of complying with the OSHA 1926.62 Standard. 15 Yes, we realize that theoretically two 16 categories of tests kits could remain 17 available. The new version which has  the 18 five percent and ten percent dependability 19 rates for false negatives and false positives 20 and then the original one, which was more 21 sensitive than that. But I am concerned that 22 might not occur and we will lose the ability 23 to make inexpensive quick determinations of 24 whether detectible quantities of lead are 25 22 present for purposes of complying with the 1 OSHA Lead Standard. So I would encourage  2 We encourage the EPA to confer some with OSHA 3 in regard to that. It's not likely that 4 persons doing those small repaint jobs and 5 sometimes even large repaint jobs, are going 6 get a lead inspection with an XRF instrument 7 or have representative numbers of paint chips 8 collected and submitted for laboratory 9 analysis. We have thought we were doing well 10 when we moved them to check it with one of the 11 chemical test methods in the field. 12 One of the things proposed in the 13 Standard is that emergency projects be 14 exempted. And I think that is a very valid 15 consideration, that emergency projects should 16 be exempted. But we get the opportunity to 17 work with the regulated community every day. 18 And not all of them try to comply with the 19 rules nearly equally. So we propose that 20 perhaps you consider adding a requirement that 21 each firm have to keep the a log of projects 22 which were performed on an emergency basis so 23 that there will be the opportunity to look 24 back over a period of time and see how many 25 23 projects you did under the emergency exception 1 basis. 2 One of the questions asked in the 3 proposed Rule is do we, the regulated 4 community, believe that there will be more 5 do it yourself projects. 6 Well, I am a homeowner myself. And based 7 on my experience as being a homeowner and 8 working for the regulated community, I predict 9 that there will be more do it yourself 10 projects, as a result of these proposed rules. 11 Some people will not want to pay the extra 12 monies which would be justified to be charged 13 in order to comply with these rules. 14 A key requirement of the proposed 15 regulations are, quote, " renovations, which 16 are performed for compensation." And we 17 request that stronger clarification be given 18 to what counts as renovation for 19 compensations. For example, does picking up a 20 day laborer at the Home Depot Store or at the 21 other local locations where we know day 22 laborers can be picked up, and having them 23 work for cash under the table constitute work 24 being  renovation being performed for 25 24 compensation? Would those activities be 1 covered by this Rule? A good number of small 2 demolition, small renovation and repainting 3 projects use personnel of that nature across 4 South. 5 Going way back to the issue of the 6 revised test kits. If test kits are forced or 7 allowed to be brought to the marketplace that 8 do not yield anymore than five percent false 9 negatives, ten percent false positives at the 10 EPA/ HUD trigger quantities, will these test 11 kids then be considered acceptable for 12 purposes of conducting a lead based paint 13 inspection under the existing rules? Or will 14 the existing rules continue to force them to 15 either use XRF instruments or paint chips? 16 Another issue is we find in the proposed 17 rules, quote, " some references to the term 18 lead based paint free." And we are concerned 19 that the use of the term lead based paint free 20 can lead to confusion by the overlapping rules 21 and regulations. Does lead based paint free 22 mean there is no detectable quantity? Or, no, 23 does it just mean it's below the one milligram 24 per centimeter, squared, or the 0.5 percent? 25 25 It appears that it means that it's below the 1 one milligram per centimeter, squared, or 0.5 2 percent. 3 That can lead to legitimate and 4 illegitimate confusion about the applicability 5 of other rules, such as the OSHA Standard, 6 1926.62, which is triggered by any detectable 7 quantity, and by other rules, such as our 8 hazardous site response inventory rules here 9 in the State of Georgia. 10 One of the questions that gets asked 11 repeatedly is what types of facilities and 12 projects should be covered, based on 13 construction dates, based on occupants, based 14 on circumstances, based on the work 15 activities? An issue which we deal with on 16 approximately a weekly basis is someone having 17 bought vacant property that's been sitting 18 there for a while, such as single family homes 19 that have been deteriorating. They can be 20 bought rather inexpensively. They're sending 21 in crews, often day laborers, to do repaint 22 and other activities, which we find leading to 23 both lead violations and asbestos violations. 24 The lead violations which we find are improper 25 26 disposal of the material. 1 Yes, we acknowledge and accept the EPA 2 exemption for residential disposal. But that 3 doesn't allow them to scrape paint and allow 4 it to contaminate property and be left there. 5 We consider this buying and renovating of 6 vacant houses where they're going to perhaps 7 put it into an investment pool or just try to 8 flip it for a profit, to be a significant 9 problem. And we  Not only for the direct 10 property, but for neighbors on both sides. 11 Often we find out about these projects by a 12 neighbor complaining that somebody is scraping 13 paint on the adjacent house and they are 14 contaminating our property. 15 One of the questions that's asked in here 16 is should certain facilities and activities be 17 covered if there is a pregnant woman in the 18 facility. 19 And while that is certainly an issue 20 worthy of consideration, it is probably a very 21 complicated one to enforce. And I go back to 22 the issue of what kinds of work crews are we 23 talking about here. 24 It's difficult enough to know whether 25 27 there is a child six years of age residing in 1 the property or not. And now we want to add 2 the issue of is perhaps there a pregnant on 3 the property. 4 Another issue closely related to that is 5 the issue of the primary residents. Some 6 properties were going to be exempted on the 7 basis that they didn't meet the criteria of a 8 primary residence. And I think that will lead 9 to a source of confusion about whether this is 10 or is not a target house, which is covered by 11 these proposed rules and regulations, since 12 there is an exception for the possibility of 13 it not being covered if it's not a primary 14 residence of a child six years of age or 15 younger. 16 Multiple places in the proposed Rule, 17 they ask should you cover facilities which are 18 in the construction age of 1960 through 1978. 19 Should you cover them at all, or should you do 20 delayed coverage or should you wait until the 21 revised lead based paint test kits come out? 22 Well, I was surprised and amazed to learn 23 that it was reported in here that the 24 lead based paint content on certain building 25 28 components was higher in houses constructed in 1 the 1960 to 1978 timeframe. And one of those 2 components was windows. And window 3 replacement is a common renovation activity 4 occurring either under federal funds or 5 private funds. So I question the logic of 6 excluding window coverage and  in residences 7 that were constructed from 1960 to 1978 or 8 delaying that beyond the initial Phase One 9 enforcement date. 10 One provision in the Standard was that 11 certified renovators do not have to be present 12 on the renovation projects while they are 13 being performed, but they, quote mark, " just 14 have to be available." 15 Based on our experience for lead 16 abatement projects and asbestos abatement 17 projects where they are supposed to be present 18 on the job site, and we even have difficulty 19 with that, I predict that there will be 20 substantial difficulty with a final rule that 21 says a certified renovator only has to be 22 available, that they do not have to be on the 23 job site. 24 A couple of other issues, and then I'll 25 29 come back to the bottom line. 1 One of the questions that you 2 specifically asked us to address is, should 3 any category of specialty contractor be 4 excluded from this proposal? If so, are you 5 aware of any data that would support such 6 exclusions? 7 Well, we have not attempted to generate 8 the data. But as a result of our lead based 9 paint and asbestos enforcement activities, we 10 go on a lot of apartment renovation projects 11 where multiple trades are working, such as 12 HVAC, plumbers and electricians. And we  13 Electricians are one of the ones that wanted 14 to know should they be excludable from the 15 coverage of the rules. And we observed that 16 electricians end up making their own trade 17 cuts. And even a certified person has been 18 hired to make a trade cut in a specific area 19 for them it ends up not being in the right 20 location, and the electrician ends up 21 enlarging the hole or generating where they 22 really wanted it in the first place. So I 23 cannot think of any specialty trades that you 24 were considering covering that would not run 25 30 the potential of disturbing some of these 1 lead coated surfaces. So our input would be 2 that probably you need to leave all of those 3 in as being covered, specialty contractors. 4 And then next to the last issue that I'll 5 try to cover is, you asked is the proposed 6 minor maintenance exemption of two square feet 7 for building interiors and 20 square feet for 8 exteriors an appropriate surrogate for 9 roofing, building maintenance activities. 10 Well, yes, that is in your other 11 standards, including the pre renovation rule. 12 So it seems appropriate that that would be 13 maintained for any rule which would come out 14 for R and R purposes. 15 I go back to the bottom line that we are 16 concerned about. And that bottom line is the 17 enforceability of this. We are concerned 18 whether the program for any particular state 19 is being run by federal EPA or by the few 20 states who may figure out a way to sign an 21 agreement with this, that it will be 22 substantially unenforceable. How do you 23 regulate these kinds of people doing these 24 kinds of activities? That goes back to the 25 31 issue of maybe should we just educate them and 1 accredit them and depend on a degree of 2 voluntary compliance. 3 Thank you for the opportunity to give 4 input. And we will give written input, also. 5 MR. MARK HENSHALL: Thank you, William. 6 MS. AMY MORTIMER: Okay. Our next 7 speaker is Rom Laubenthal. 8 MR. TOM LAUBENTHAL: Good afternoon. 9 Thank you for the opportunity to be here. My 10 name is Tom Laubenthal. And I am the 11 technical chief of the Environmental 12 Institute, one of the largest training 13 providers of lead based paint training in the 14 Southeast. 15 I actually was made aware of this meeting 16 at the last minute while I was teaching a lead 17 inspector course this morning. So please 18 forgive my informality of dress. And my 19 comments are going to be brief because of 20 that, as well. 21 I have a number of issues that I'd like 22 to talk about, things that we'll have to 23 address as training providers. And the first 24 two that I think will be difficult have to 25 32 deal with the quantitative aspect of doing 1 this work. And first is the clearance 2 requirements that are proposed, which is a 3 very qualitative standard, comparing lights 4 versus that, which is already mandated under 5 Title X, which is at 40 micrograms per 6 square foot clearance standard and child like 7  facilities. There's a grave difference 8 between these two in the amount of protection 9 that it affords the occupants, especially 10 children and pregnant women. 11 But in the aspect of actually trying to 12 trying to train individuals to do these 13 qualitative measurements, we're going to 14 really need some clearance if those exist at 15 all. Also, the question is, who really 16 performs these tests? Is this something that 17 should be done by the contractor themselves? 18 A disinterested third party is almost, in 19 general in this industry, have been preached 20 and taught in both asbestos and lead and 21 related disciplines. This third party needs 22 to be trained. They need to have specific 23 instructions as to how to perform these tests. 24 And if it is qualitative, we need to make sure 25 33 that as training providers we exactly know how 1 to explain this and what is expected of these 2 folks when they perform this. 3 There is no doubt in my mind that the 4 time and cost involved in doing things like 5 clearance testing in work like this is very 6 time consuming and very expensive. But I 7 think we need to be balance with the safety of 8 the occupants and the children within these. 9 Because, as I mentioned, we do have a 40 10 micrograms per square foot clearance standard 11 in other buildings with similar occupants. 12 Second would be the proposed infield 13 paint testing protocols. I think Mr. Spain 14 has covered that quite in detail. I think 15 what's very important is if we are going to 16 issue something like this, we have to make 17 sure there are some succinct but clear 18 training materials that explain to people that 19 they must liberate all paint layers and make 20 sure that there are a minimum of false 21 negatives. 22 We want to make sure that we are 23 determining whether lead paint is there. Our 24 problems with doing this on this basis, on 25 34 worker protection basis, with OSHA already 1 having a  any detectable lead bases. So our 2 main concern here is how to specifically teach 3 these methods. And then once someone is in 4 the field, will they be properly trained, in 5 terms of actually sampling the paint and 6 whether or not we can quantitatively say 7 whether we have lead based paint or not. 8 Work practices. I think we need to have 9 very clear work practices for those that are 10 performing this. I think the training 11 materials that are already provided on line 12 are very good. But as we work out the issues 13 here as training providers, we need to know 14 exactly what is expected of these folks, 15 because they will be asking us what do we have 16 to do, what do we not have to do. And they're 17 going to draw lines. So we need to know where 18 the corners are, in terms of the expectations. 19 This is not only going to be from the 20 federal EPA Standard, but work practices will 21 probably also be instituted by the states, 22 which we're going to have to incorporate, 23 which will probably be more stringent, as 24 well. We also feel, just like with any of 25 35 this, we need to have supervision onsite, and 1 that supervision needs to be onsite if it's 2 not available. 3 Another concern is the enforcement basis. 4 What we already see in our classroom is that 5 larger entities tend to participate in these 6 programs. They're aware of them because of 7 the trade associations they may belong to. 8 They may have members that are involved in 9 training programs that are made aware of 10 additional issues regarding worker training 11 and the like. But I think smaller entities 12 will be ignorant of these issues. There is a 13 language barrier, in terms of many or our . . 14 . many or our participants in the renovation 15 work force are Hispanic. And will they be 16 able to get the message that they need to 17 provide training to their workers. Will the 18 worker  Will the training providers  Will 19 there be enough Hispanic training providers to 20 get this information and certification to 21 these people? Smaller entities will probably 22 not be getting this training. 23 And my big fear for those who do put a 24 lot of money and time into trying to meet this 25 36 is that once again we're going to have an un 1 level playing field. People that are not 2 taking the training and not performing 3 testing, not providing for supervision, while 4 many may not. And the saddest part of that is 5 that we're probably not going to be providing 6 the protection that I think is within this 7 regulation that is admirable. And I think we 8 just need to make sure that all these edges 9 are covered, otherwise the Reg won't meet, I 10 think, what we're trying to set out to do, 11 which is protect occupants. 12 Thank you for your time. 13 MR. MARK HENSHALL: Great. Thank you 14 very much. 15 That's all of the speakers that we have 16 registered at the moment. 17 Do we have anybody else who would like to 18 speak who is not registered at this time? 19 Okay. If not, what I'm proposing to do 20 then is we will adjourn the meeting for 21 one half hour, and then we'll reconvene at 22 2: 15, and see if anyone else has come to 23 speak. 24    25 37 ( Whereupon, a short break was taken from 1 1: 58 p. m. until 2: 43 p. m.) 2    3 MR. MARK HENSHALL: Let's go ahead and 4 reconvene and see if we have any other 5 speakers that have signed up to speak. 6 Amy, do we have any other speakers? 7 MS. AMY MORTIMER: We have one. 8 MR. MARK HENSHALL: We have one more 9 speaker. 10 MS. AMY MORTIMER: Possibly two. 11 MR. MARK HENSHALL: Possibly two. All 12 right. 13 We're here until 5: 00, Jackie, so take 14 your time. 15 Anybody else who has not had an 16 opportunity to speak yet that would like to 17 speak, you can see Amy, provide your name. 18 Otherwise, we will call the next speaker. 19 MS. AMY MORTIMER: All right. So Jackie 20 followed by Adrienne. 21 MR. MARK HENSHALL: Great. Just a 22 reminder to Jackie and all the other speakers 23 to speak slowly. And begin with your name and 24 your agency so we can get it into the record. 25 38 Okay? 1 MS. JACKIE MANUEL: My name is Jackie 2 Manuel, State of Tennessee. Currently, right 3 now, I do the accreditation of firms and 4 individuals that conduct lead based paint 5 work. 6 I haven't read the total Rules, but I'm 7 just going to go over some of the things that 8 I've just read at the beginning. 9 And one of the points was allowing the 10 use of work practices in lieu of, you know, 11 telling people what they can and cannot do. 12 We have a problem with the people that are 13 certified that have gone through these 14 five day training programs that will 15 circumvent the rules if they think no one is 16 looking. So I have a problem with renovators 17 who will probably go out  I'm not sure what 18 the training requirements were. Two days? 19 One day? And then they turn around and they 20 go and they hire workers, like he said before, 21 possibly day laborers or just ride by the 22 corner and pickup somebody else that's 23 standing, and okay, we're going to do a 24 tail gate training to tell you how to do this 25 39 work. 1 I have a problem with that, because I've 2 seen in construction sites or in other works 3 that some things that will happen with day 4 laborers, they like  I knew of a case where 5 there was an insurance company that had gotten 6 some people to come in and do some work. It 7 was a fire at a hotel or whatever. They just 8 brought the people in, put them in a suit, 9 gave them  Didn't give them gloves, you 10 know. There was no worker protection there. 11 They weren't protected. They were exposed to 12 all types of chemicals and debris. And I just 13 think that giving renovators the option of not 14 having to have to be  people to be, you 15 know, trained properly, this is what we'll 16 wind up with again. 17 Not only that, but if they are given the 18 option to use work practice standards or 19 decide what quality of care they need to do, 20 they're going to always do the less. 21 The problem with that, too, is that the 22 kids are going to be contaminated again. So 23 your 2010 date is going to stretch out to 3010 24 ( sic), because people are not going to do 25 40 anything in which they have to do it properly 1 if they're not made to do it properly. They 2 just won't. 3 The cleaning verification and do a 4 clearance testing. It's like you can't see 40 5 micrograms per square foot. You can't see it. 6 I mean, I have a problem with the white glove 7 test. Are the test gloves going to be 8 quantitative? Do they have a meter on them 9 that says you're over the limit or under the 10 limit? 11 You can  I can take and  The test 12 that a lot of the training providers use a lot 13 of times is they take their little pack of 14 saffron ( phonetic) and spray it across the 15 room. If you was to go back and do a 16 dust wipe test on that, the room fails, but 17 you wouldn't see it on the white glove. It's 18 not quantitative. 19 I just think that adhesive work practices 20  And there was something in there about 21 unintended consequences. We keep talking 22 about this money thing. People that are doing 23 renovation and remodeling now without being 24 certified. The people that  You have people 25 41 that know what they are supposed to do. You 1 have the big players that know what they're 2 supposed to do. They don't do it a lot of 3 times, if somebody doesn't come in and knock 4 on their door and say this is what you're 5 supposed to comply with. You have the smaller 6 people that don't do it. So noncompliance is 7 not an issue about whether it's a big company 8 or a small company, it's about due diligence 9 on that person that's doing the work. 10 Sometimes it's just the bottom line. If the 11 bottom says  If they think they can get away 12 with it, then they don't. Or they charge the 13 people the same rate as if they were doing the 14 abatement project, and they're not following 15 those work practice standards. 16 And as far as  As I hop around here. 17 Going back to whether the contractor can do 18 the clearance. Okay. The thing that we've 19 always stressed with contractors is that they 20 have to have a third party to do the 21 clearance. If  It's like the hen watching 22 the chicken coup or whatever you want to call 23 it, the fox watching the hen house. If that 24 person  If nobody is watching them do it or 25 42  I guess the thing is that they will always 1 say that their property has cleared, because 2 they know that in order to get paid they have 3 to meet clearance. And the white glove test, 4 no dust, it's just not quantitative enough to 5 be protective of children six and under. It's 6 just, it's not protective of them. 7 And I had a question, too, it was, like, 8 I noticed that the proposed Rule only chose 9 target housing. I wondered what happened to 10 child occupied facilities? I wonder how did 11 that fall out? I wasn't sure how that fell 12 out or . . . 13 And there was something in there about 14 the first stages about target housing. Deals 15 with EBL status. Right now most of the time 16 when these guys go in and do the work, even 17 the abatement contractors, they don't know 18 whether there's an EBL child there or not. 19 They just were made to go  They are asked to 20 go in and do the work. And I think that 21 sometimes may be a little too much 22 information. 23 Owner occupied facilities or  I'm 24 sorry, owner occupied housing. Whether  And 25 43 you're getting a statement from that person 1 saying that there's no one there that's going 2 to reside there under six. Okay. How long 3 does that have to  How long to they have to 4 attest to that? Because I could have the work 5 done and say that no child under six is living 6 there. But tomorrow  God forbid, I don't 7 have a grandchild  But the grandchild could 8 come in for some reason or another and you may 9  they may be there to live there, you know. 10 So how long  What is this? How long does 11 this attest for? 12 And I did have a problem with this term 13 certified renovators. If a course does not 14 certify an individual, who does certify them? 15 I mean, is the  once they do, like, would 16 the abatement  Would they access this 17 abatement when they go to the training 18 provider and they come away with a class? 19 Are they then considered to be certified? I 20 think the term  I think what happens is a 21 lot of times, from what I see with this 22 program, we have a hard enough time in the 23 lead program trying to get people  and 24 certified. 25 44 Okay. If we come to a point where we're 1 certifying renovators through training 2 providers, it's going to dry up the lead 3 programs. They're already drying up. The 4 amount of people that are being done  being 5 certified, companies that are being certified, 6 the numbers are going down as we sit here and 7 speak today. The numbers are going down 8 because  one of the reasons  I'm not going 9 to say the only reason. One of the reasons 10 may be because HUD is putting out less money. 11 So if they're not using government funds to do 12 this work, they don't do the work anyway. 13 So when 2010 comes and passes, we're 14 going to have people that are not going to be 15 certified. The renovation and remodeling Rule 16 is going to maybe negate some of the things 17 that people normally would have done. Because 18 why to be certified in a state when I can be a 19 renovator and I can still do the same work and 20 don't have to be as regulated? 21 I think I have a  I'm not sure about 22 voluntary. But then again, I am. Because 23 it's like the lead based paint program pretty 24 much is voluntary. You can volunteer to be 25 45 part of the programs if they decide to do the 1 work. But they also know that if they don't 2  if they're not certified to do the work and 3 they don't have the proper training, that 4 there is some recourse. So I guess I'm kind 5 of mixed about the voluntary statement. 6 I think they need to be  I need the  7 I think they need to know that they need to 8 comply with the rules and regulations, and we 9 need to be clear about what it, about what it 10 is they need to comply with. 11 If you can be he a sampling technician 12 and not have properly  not have all the 13 training, you know, I have a problem with 14 that. I just have a problem with some of the 15 things about the limited amount of training 16 that you're going to require these people to 17 do to be protective of the children that are 18 six and under that are already 19 disproportionately being affected. And I 20 think this won't help them not get  I think 21 it'll push your date out past out where you 22 think it's going to be. 23 Okay. I'm through. 24 MR. MARK HENSHALL: Thank you. 25 46 Next speaker? 1 MS. AMY MORTIMER: The next speaker is 2 Adrienne. 3 MS. ADRIENNE WHITE: Hi. My name is 4 Adrienne White, and I'm with the State of 5 Tennessee lead based paint program. 6 All of my comments are not as organized 7 as I would like for them to be, because we've 8 been very busy in Tennessee dealing with an 9 upcoming meeting that we're having of the mid 10 states. 11 But one of the first things that I did 12 when I was looking at the proposed Rule was to 13 go back and look at Title X. And one of the 14 first paragraphs of Title X says that the 15 purpose of Title X is to encourage effective 16 action to prevent childhood lead poisoning by 17 establishing a workable framework for 18 lead based paint hazard and reduction ending 19 the current confusion over reasonable 20 standards of care. The keywords here are 21 ending confusion over reasonable standards of 22 care. 23 Now why  Although I commend EPA for the 24 proposed Rule and come up with an R and R 25 47 regulation, I think in many respects it is 1 going to be counter to the first paragraph of 2 Title X. Rather than ending confusion, I 3 think it's going to cause and enhance 4 confusion over standard of care. 5 One of the first things I looked at, if 6 you look on the proposed Rule, it's cited at 7 745.81  I really was going to go through 8 this Rule sentence by sentence and come up 9 with a page of things and comments. But I 10 know I do not have that much time here today. 11 So I'll just go over some of the more 12 interesting comments that I've come up with. 13 In this particular part of the proposed 14 Rule, it says the firm may not begin work if 15 they  And I'm just paraphrasing this  in 16 parentheses ( provide the owner or occupant an 17 opportunity to inform the firm that there is a 18 child living there who may be EBL. EBL case 19 stands for Elevated Blood Lead Level. 20 Well, first of all I think that 21 requirement would have the firm find out 22 whether or not there's an EBL child in the 23 house maybe in violation of HIPA regulations. 24 And do I have to explain what HIPA stands 25 48 for? I probably should, but I can do that in 1 written comments. But those are medical 2 requirements. 3 And plus, I think that this requirement 4 takes some of the legal liability off the 5 owner of the property. It is not unreasonable 6 that owners of properties would probably tell 7 a renovation and remodeling firm that they do 8 not have kids in the house. So, therefore the 9 onerous is on the owner make sure that the 10 firm knows whether or not there's a child in 11 the house. 12 Many owners do try to circumvent the 13 lead based paint regulations that we currently 14 have by saying that a lot of the work that's 15 being conducted is currently unregulated R and 16 R. So I think we need to be careful with 17 removing some of the liability from the owner 18 and trying to place it on the firm that's 19 conducting the work. Again, due diligence 20 must be the legal burden of the owner and not 21 transferred to firm. 22 Under 745.90, definitions lead safe work 23 practices. Certified renovator must train. 24 Okay. That's what a certified renovator is. 25 49 It is also a person who must train. 1 I'm still unaware as to what it is that 2 this certified renovator is going to do in 3 providing this o the job training to their 4 workers. How are they going to do it? When 5 should they do it? Where should they do it? 6 And exactly what is it that they're doing? 7 That's not in that particular definition. 8 Is this going to be an apprenticeship, as 9 recognized by the Department of Labor, and 10 therefore, you know, some certificate is given 11 to the worker so that they can leave the 12 employment of that renovator and go to another 13 firm and say hey, I'm a certified renovator 14 worker and I can do R and R work. 15 Okay. I have a concern about the 16 renovator being able to identify lead based 17 paint using test kits. As I was going through 18 the proposed preamble to the Rule, there were 19 a lot of publications in there. And I'm glad 20 to hear that the comment period has been 21 extended. While I pride myself in having kept 22 up on a lot of reading, there were some 23 references that I, number one, were unaware of 24 even though the preamble said that they were 25 50 sent out for peer review. I know constantly 1 that we keep asking  We have asked the 2 states in Region IV who have authorized 3 programs about various studies that have been 4 done. And so this extended time for comment 5 hopefully will allow, you know, those who are 6 concerned to actually go back and read some of 7 the references that were cited in the proposed 8 Rule. 9 If you will bear with me. 10 As a state regulator of an authorized 11 lead based paint program  And I'm sure that 12 maybe a lot of state programs that are 13 authorized, I really don't mind adopting other 14 regulations. And, Mr. Henshall, I want to 15 commend you for having amended the existing 16 regulations, which makes it easier for us to 17 adopt, compared to having to come up with a 18 new one. 19 However, one thing that was missing in 20 the proposed Rule is the timeframe. There's a 21 word that says states who are authorized may 22 after one year adopt this regulation. 23 Well, in the State of Tennessee, you 24 can't give Tennessee an option. And to me, 25 51 the word may is an option. If it is a year, 1 it needs to be put in there you have to adopt 2 these requirements one year after the 3 effective date or  And I think that part is 4 important that we do have a year in that 5 mandate or people will just drag their feet. 6 I do have a question or concerns about 7 the white glove test. I know my colleague 8 previously gave comment. When I was working 9 in private industry as a chemist, I used to 10 pride myself in saying that I perfect MI's 11 ( phonetic)  an instrumentation that allows 12 you to look, you know, at the various 13 substances and give them an analytical result. 14 I knew that I did not have eyes with that 15 accuracy to be able to say that, yes, this 16 glove is clean and this glove is not. Or, 17 yes, this glove does not have 40 micrograms 18 per square feet of lead dust and this one 19 does. 20 I question that we may be challenging of 21 those people who are going to school to 22 actually learn what qualitative, quantitative 23 instrumental analysis is and why we have it. 24 The human eye is different for each 25 52 individual. And I think we should keep that 1 in mind. 2 To be able to have a glove test that 3 tells you the concentration is anywhere from 4 40 to 200 micrograms per square foot, in the 5 State of Tennessee we have some contractors 6 that are very good at what they do. But one 7 thing we do know, for a floor, if you do not 8 put a finish on the floor, you will never pass 9 40 micrograms a square foot. 10 As a regulator, if I want to come in 11 behind you, I can always find a level of lead 12 dust that would cause you not to pass the 40 13 micrograms per square foot. And, furthermore, 14 you may not be able to see any dust on that 15 particular white glove. 16 Is just do want to make a couple of last 17 comments right quick on one of the speakers 18 representing the National Association of 19 Realtors. There are a lot of good things 20 about the existing 406 treatment abatement. 21 In reading the proposed renovation remodeling 22 Rule, I think it will probably, as written, 23 put a lot of lead based paint certified firms 24 out of business. I think what we should do is 25 53 look for a common balance. That would not 1 exist with renovation remodeling that we 2 wanted to be covered within the lead based 3 paint program. I think that's what we should 4 do. Take what was not working to bridge that 5 gap, and fix 402 so that it works. 6 406 is a very good regulation. However 7 else you want it to work, let's go back and 8 amend it. But to replace 406 with the 9 existing proposed Rule I think is going to be 10 a demise of the lead based paint regulations. 11 And after the year 2010 has come and gone, and 12 the year 2025 after I have retired, we're 13 going to have our predecessors saying I 14 thought the states and EPA took care of those 15 lead problems. 16 Thank you very much. 17 MR. MARK HENSHALL: Think you, Adrienne. 18 Do we have any other speakers signed up? 19 Any other speakers that are present? 20 MS. AMY MORTIMER: Did anyone sign up? 21 MR. MARK HENSHALL: Well, what I'd like 22 to do then is adjourn the meeting until four 23 o'clock. If I get any other speakers between 24 now and four, we'll have them speak then. But 25 54 otherwise we're adjourned. Thank you. 1    2 ( Whereupon, a short break was taken from 3 3: 05 p. m. until 4: 08 p. m.) 4    5 MR. MARK HENSHALL: What I'd like to do 6 is to reconvene the meeting and see if we have 7 any other speakers that have shown up or who 8 have expressed interest in speaking. When 9 those speakers are done, we will adjourn the 10 meeting until five o'clock, and I'll see if 11 any other speakers have shown up between now 12 and then. After this round of speakers, 13 though, if folks want to feel free to go ahead 14 and leave, I think that would fine. 15 So do we have any other speakers? 16 MS. AMY MORTIMER: We have Peter Tadin. 17 MR. MARK HENSHALL: Great. 1 18 MR. PETER TADIN: Hi. My name is Peter 19 Tadin. I represent the Texas Department of 20 State Health Services in Austin. We've had a 21 lead program there for about 11 years. And 22 certainly we are going full steam ahead with 23 out lead program in regards to abatement 24 inspections. 25 55 We've become aware, or course, of the 1 proposal Rule, and  that deals with 2 renovation and remodeling, and would certainly 3 like to make a few comments regarding that, 4 and hopefully, make it a better rule, if it's 5 going to be a rule. I know that's the intent 6 of it. So, therefore, we certainly want to 7 add to that. We'll also be submitting written 8 comments, as well. 9 One of the concerns that we have, of 10 course, maybe relates to enforceability. But 11 certainly there's no notification requirements 12 for these activities. We certainly see this 13 is a complaint driven deal. And we will 14 probably see a lot of complaints being 15 generated, as results of X house complaining 16 about the activities on Y house. And 17 certainly word will get around that some of 18 the fly by night operations, the small agency 19 operations, the one or two person operations, 20 we seem to feel that those will slip through 21 the cracks, because you'll see them do one 22 job, and you'll never see them again. And  23 But the problem is the cause and there's 24 nobody to go after. And then we've got to 25 56 deal with the problems of the child being in 1 the home, being exposed to potentially lead 2 dust. 3 Of course it's already been mentioned, 4 but still we want to go on record with regards 5 to absence of child  facilities. Certainly 6 that's an issue that we feel very strongly 7 about because of the children being present 8 there. I assume it sums up the definition of 9 child facility that's in the current lead 10 rule of abatement inspection from risk 11 assessment. We feel that the child is going 12 to be there for so many hours a week, and 13 therefore run the potential of getting exposed 14 in a particular facility, especially built 15 before 1960 and of course before 1978, maybe 16 to a lesser degree. I don't know. I don't 17 have the study for the results that they 18 provided as far as how much lead dust was 19 created in structures built in that period. 20 The clearance test issue. I don't know 21 why we're  we feel that it's less important 22 to have definitive clearance tests done in 23 renovation activities, where the hazards 24 presented are no less dangerous than are 25 57 presented when you have a abatements type 1 complaints. We certainly a stronger advocate 2 of having the current clearance test 3 requirements done, such as paint chip analysis 4  or not paint chip analysis, I'm sorry, but 5 the dust samples collected over a certain area 6 of a floor space, windowsills and whatever 7 horizontal surfaces there might be and in the 8 place of a lead check or a lead swab or other 9 quick and dirty type of tests taking place or 10 even the white glove test that's being 11 proposed. 12 We are also concerned about differing 13 understandings of what a potential child would 14 be, in regards to the enforceability of this 15 Rule. Is it under six, as it's proposed? Is 16 it six and under? Is it under seven? We want 17 to see some uniformity across all the rules. 18 We're certain you've been wrestling with that 19 matter, because we've seen it now in two 20 places where it says under the age seven and 21 six and under. And we find that to be 22 somewhat palatable, because it kind of means 23 the same things. But now we're introducing 24 another term called under six. And I don't 25 58 know if that's the direction of the Agency, if 1 it is, certainly we ought to go across the 2 board, not just with EPA but also with HUD's 3 requirements in regards to that, as well, so 4 that there's no misunderstanding when we talk 5 about those issues. 6 We're also concerned about the formal 7 training requirement for the lead renovator 8 workers. Of course, in the current lead rule 9 for abatements, we do have lead worker 10 training. And that's formalized through 11 accredited trainers. But we also need to get, 12 as we feel, trained as formalized by 13 accredited trainers for these lead regulator 14 workers, if you want to call them that. We 15 feel that this tail gate type training for 16 these individuals is not adequate. And we 17 feel strongly that these folks should not be 18 allowed to slip through the loop hole. 19 We don't want to under service the 20 population, either. We have, through our 21 experience, seemed to find out that these 22 folks are minority type workers, and we want 23 to give them the same level of training as we 24 would for anybody else. And even if it's in 25 59 Spanish or some other language, that they 1 would benefit from. 2 We also have some concerns about the 3 issue of not have renovator supervisor on 4 site. We are wrestling with the current rule, 5 in regards to the two hour  having the lead 6 abatement supervisor be there or at least 7 within two hours of the project site. That's 8 hard to prove. And we've yet in all of our 9 experience of having the rule in place, we've 10 never been able to enforce that without 11 actually testing it, without actually having a 12 situation in place where we actually had to 13 have them there. And only wanted them there 14 to see if this thing could work. We never had 15 to actually have the lead abatement workers 16 call and see if they can be there within two 17 hours. And yet we have some background 18 knowledge that these supervisors are doing 19 jobs in cities hundreds of miles apart at the 20 same time. And we certainly see this 21 happening, as well, with this type of 22 situation, maybe even worse, because there's 23 not even a two hour requirement, just being 24 accessible by telephone. 25 60 And, you know, the bottom line is, we 1 heard from, I think the State of Georgia, 2 enforceability. Right now, as proposed, I 3 guess to put it nicely, we see this as 4 something very difficult to enforce, something 5 that I feel that could more easily have been 6 taken care of by removing the renovation and 7 remodeling loophole from the current lead 8 abatement regulation. It would have been a 9 better idea. But with this in place now and 10 what we're trying to propose here, the 11 enforceability of this, I don't see much more 12 than asking for voluntary compliance. And 13 maybe that's the better way to go. 14 I think maybe we ought to put our 15 resources more into outreach and get voluntary 16 compliance, as opposed to trying to trying to 17 go after the hundreds of thousands of workers 18 out there, probably more than ten of 19 thousands, that are doing this kind of work in 20 the State of Texas. It's going to be very 21 difficult to really uniformly and equitably 22 enforce this across the board. And chasing 23 down these people is going to take a lot of 24 resources. And I don't know if these 25 61 resources are going to be well spent in this 1 direction, as opposed to really piling money 2 into the arena of outreach. We really want to 3 get the word out. I don't know if 4 enforceability of the current proposed Rule is 5 really going to work very well. And at this 6 point, it's going to really need a lot of 7 cleaning up to make this think palatable, 8 especially to our state and our state 9 legislators, and getting something passed 10 where we can accommodate something like this. 11 I want to thank you for the opportunity, 12 of course, to comment on this. And like I 13 said before, will also be submitting written 14 comments, as well. 15 MR. MARK HENSHALL: Great. Thank you. 16 Do we have any other speakers? 17 MS. AMY MORTIMER: That's all we've got. 18 MR. MARK HENSHALL: All right. I'd like 19 to go ahead and adjourn the meeting. I 20 appreciate all of you coming. Thank you very 21 much. 22 Oh, are you on the docket? 23 MR. MARCUS MINCEY: Yes. 24 MR. MARK HENSHALL: Okay. Great. Go 25 62 ahead. State your name and your organization. 1 MR. MARCUS MINCEY: I'm Marcus Mincey. 2 I'm with the Georgia Environmental Protection 3 Division, lead based paint and asbestos 4 program. And I'd like to take this 5 opportunity  First of all, I'd like to thank 6 you for letting me make comments about the 7 proposed Rules. 8 And I have a brief statement regarding 9 the handout with the Rules, as it pertains to 10  on the second page  as it pertains to 11 where it says economic analysis. It says to 12 what extent do renovators/ contractors already 13 conduct any of the individual activities 14 described in the rules? 15 And I'm here to tell you, they do not. 16 And this is an issue that really bothers our 17 program, pretty much daily. Not necessarily 18 daily, but presently right now even certified 19 individuals have a problem with actually 20 getting clearance, dust clearance. And I do 21 have a visual simulated lead based paint 22 visual aid here, where we have 40 micrograms. 23 I'll pass it around. But, you know, you can 24 barely see it. So  And then 250. 25 63 So our concern is that with the clearance 1 aspect of it, these individuals will have a 2 hard time actually getting this clearance, to 3 these clearance levels. We're presently 4 working on a  it's a complaint at this point 5 where an individual came in and prepped the 6 house for resale. And individuals have 7 actually scraped and paint chips are falling 8 all over the ground, and thereby, the houses 9 are close together, so an individual next door 10 has a pregnant wife. And that's a concern. 11 And for a renovator or a contractor to get 12 clearance, we see it that it would be a big 13 problem. So we're saying that, you know, this 14 needs to be looked at a little harder. 15 And dust tends to migrate on areas off 16 the property. And most contractors don't put 17 any type of protection down to prevent this. 18 So that's a big concern of ours. So I think 19 that should be addressed. 20 That's it. 21 MR. MARK HENSHALL: Great. Thanks, 22 Marcus. Appreciate it. 23 I think now we're done. Excellent. 24 Thank you for coming. We appreciate all your 25 64 comments. And, again, please do not forget 1 you can submit  You're encouraged to submit 2 written comments, as well, in addition to all 3 these submitted here. And thanks for coming. 4    5 ( Whereupon, a short break was taken from 6 4: 22 p. m. until 5: 06 p. m., at which time the 7 meeting was officially adjourned) 8    9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 65 C E R T I F I C A T E CLAYTON COUNTY STATE OF GEORGIA I hereby certify that this is a true,

correct, and complete record of proceedings held by the Environmental Protection Agency on April 4,

2006, before Kathleen A. Baxter, Certified Court Reporter.

This, the 14th day of April 2006.

____________________________ Kathleen A. Baxter Certified Court Reporter Certificate No. B 2271


[Federal Register Volume 82, Number 179 (Monday, September 18, 2017)]
[Notices]
[Pages 43652-43654]
[FR Doc No: 2017-19762]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0381; FMCSA-2014-0382; FMCSA-2015-0115]

Qualification of Drivers; Exemption Applications; Epilepsy and
Seizure Disorders

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of renewal of exemptions; request for comments.

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SUMMARY: FMCSA announces its decision to renew exemptions for three
individuals from the requirement in the Federal Motor Carrier Safety
Regulations (FMCSRs) that interstate commercial motor vehicle (CMV)
drivers have ``no established medical history or clinical diagnosis of
epilepsy or any other condition which is likely to cause loss of
consciousness or any loss of ability to control a CMV.'' The exemptions
enable these individuals who have had one or more seizures and are
taking anti-seizure medication to continue to operate CMVs in
interstate commerce.

DATES: The renewed exemptions were applicable on June 10, 2017. The
renewed exemptions will expire on June 10, 2019. Comments must be
received on or before October 18, 2017.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. If you have
questions regarding viewing or submitting material to the docket,
contact Docket Services, telephone<PHONE_NUMBER>.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket No. FMCSA-2014-0381; FMCSA-2014-0382;
FMCSA-2015-0115 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
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     Fax: 1-202-493-2251.
    Instructions: Each submission must include the Agency name and the
docket number(s) for this notice. Note that all comments received will
be posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading below
for further information.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The FDMS is available 24 hours each day e.t.,
365 days each year. If you want acknowledgment that we received your
comments, please include a self-addressed, stamped envelope or postcard
or print the acknowledgement page that appears after submitting
comments online.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to http://www.regulations.gov, as described in
the system of records notice (DOT/ALL-14 FDMS), which can be reviewed
at http://www.dot.gov/privacy.

I. Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
for two years if it finds ``such exemption would likely achieve a level
of safety that is equivalent to or greater than the level that would be
achieved absent such exemption.'' The statute also allows the Agency to
renew exemptions at the end of the two-year period.
    The physical qualification standard for drivers regarding epilepsy
found in 49 CFR 391.41(b)(8) states that a person is physically
qualified to drive a CMV if that person:

    Has no established medical history or clinical diagnosis of
epilepsy or any other condition which is likely to cause the loss of
consciousness or any loss of ability to control a CMV.

    In addition to the regulations, FMCSA has published advisory
criteria to assist Medical Examiners in determining whether drivers
with certain medical conditions are qualified to operate a CMV in
interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391--MEDICAL
ADVISORY CRITERIA, section H. Epilepsy: Sec.  391.41(b)(8), paragraphs
3, 4, and 5.]
    The three individuals listed in this notice have requested renewal
of their exemptions from the Epilepsy and Seizure Disorders prohibition
in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures.
Accordingly, FMCSA has evaluated these applications for renewal on
their merits and decided to extend each exemption for a renewable two-
year period.

II. Request for Comments

    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these drivers are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315, FMCSA will take immediate steps to revoke the
exemption of a driver.

III. Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no
longer than two years from its approval date and may be renewed upon
application. In accordance with 49 U.S.C. 31136(e) and 31315, each of
the three applicants has satisfied the conditions for obtaining an
exemption from the Epilepsy and Seizure Disorder requirements and were
published in the Federal Register (80 FR 60744; 80 FR 55164; 80 FR
57034). In addition, for Commercial Driver's License (CDL) holders, the
Commercial Driver's License Information System (CDLIS) and the Motor
Carrier Management Information System (MCMIS) are searched for crash
and violation data. For non-CDL holders, the Agency reviews the driving
records from the State Driver's Licensing Agency (SDLA). These factors
provide an adequate basis for predicting each driver's ability to
continue to safely operate a CMV in interstate commerce.
    The three drivers in this notice remain in good standing with the
Agency, have maintained their medical monitoring and have not exhibited
any medical issues that would compromise their ability to safely
operate a CMV during the previous two-year exemption period. FMCSA has
concluded that renewing the exemptions for each of these applicants is
likely to achieve a level of safety equal to that existing without the
exemption. Therefore, FMCSA has decided to renew each exemption for a
two-year period for the following applicants:

Monte J. DeRocini (PA)
Teddy H. Dixon (GA)
Bryan R. Jones (PA)

IV. Conditions and Requirements

    The exemptions are extended subject to the following conditions:
(1) Each driver must remain seizure-free and maintain a stable
treatment during the two-year exemption period; (2) each driver must
submit annual reports from their treating physicians attesting to the
stability of treatment and that the driver has remained seizure-free;
(3) each driver must undergo an annual medical examination by a
certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each
driver must provide a copy of the annual medical certification to the
employer for retention in the driver's qualification file, or keep a
copy of his/her driver's qualification file if he/she is self-employed.
The driver must also have a copy of the exemption when driving, for
presentation to a duly authorized Federal, State, or local enforcement
official. The exemption will be rescinded if: (1) The person fails to
comply with the terms and conditions of the exemption; (2) the
exemption has resulted in a lower level of safety than was maintained
before it was granted; or (3) continuation of the exemption would not
be consistent with

the goals and objectives of 49 U.S.C. 31136(e) and 31315.

V. Preemption

    During the period the exemption is in effect, no State shall
enforce any law or regulation that conflicts with this exemption with
respect to a person operating under the exemption.

VI. Conclusion

    Based upon its evaluation of the three exemption applications,
FMCSA renews the exemptions of the aforementioned drivers from the
Epilepsy and Seizure Disorders requirement in 49 CFR 391.41 (b)(8). In
accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be
valid for two years unless revoked earlier by FMCSA.

    Issued on: September 8, 2017.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2017-19762 Filed 9-15-17; 8:45 am]
 BILLING CODE 4910-EX-P


[Federal Register Volume 84, Number 240 (Friday, December 13, 2019)]
[Notices]
[Pages 68196-68197]
[FR Doc No: 2019-26840]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87690; File No. SR-CboeBYX-2019-009]

Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of
Withdrawal of a Proposed Rule Change To Amend the Fee Schedule Assessed
on Members To Establish a Monthly Trading Rights Fee

December 9, 2019.
    On May 2, 2019, Cboe BYX Exchange, Inc. (``BYX'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend the BYX Fee Schedule to establish a
monthly Trading Rights Fee to be assessed on Members.\3\ The proposed
rule change was immediately effective upon filing with the Commission
pursuant to Section 19(b)(3)(A) of the Act.\4\ The proposed rule change
was published for comment in the Federal Register on May 16, 2019.\5\
On June 28, 2019, the Commission temporarily suspended the proposed
rule change and instituted proceedings to determine whether to approve
or disapprove the proposed rule change.\6\ In response to the BYX OIP,
the Commission received three comment letters, including a response
letter from the Exchange.\7\ On November 12, 2019, pursuant to Section
19(b)(2) of the Act,\8\ the Commission designated a longer period
within which to approve or disapprove the proposed rule change.\9\ On
November 22, 2019, the Exchange withdrew the proposed rule change (SR-
CboeBYX-2019-009).
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ The Commission notes that BYX initially filed the proposed
rule change on April 29, 2019 (SR-CboeBYX-2019-006). On May 2, 2019,
BYX withdrew that filing and submitted the present proposal (SR-
CboeBYX-2019-009).
    \4\ 15 U.S.C. 78s(b)(3)(A).
    \5\ See Securities Exchange Act Release No. 85841 (May 10,
2019), 84 FR 22199.
    \6\ See Securities Exchange Act Release No. 86232, 84 FR 32227
(July 05, 2019) (``BYX OIP'').
    \7\ See Letters from Theodore R. Lazo, Managing Director and
Associate General Counsel, SIFMA, dated July 26, 2019; Tyler
Gellasch, Executive Director, Healthy Markets, dated July 26, 2019;
and Rebecca Tenuta, Counsel, Cboe Global Markets, dated August 9,
2019.
    \8\ 15 U.S.C. 78s(b)(2).
    \9\ See Securities Exchange Act Release No. 87499, 84 FR 63698
(November 18, 2019). The Commission designated January 11, 2020, as
the date by which the Commission would approve or disapprove the
proposed rule change.

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

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
---------------------------------------------------------------------------

    \10\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-26840 Filed 12-12-19; 8:45 am]
 BILLING CODE 8011-01-P


From:
Jones, DonnaLee<EMAIL_ADDRESS>Sent:
Monday, May 16, 2016 4:36 PM
To:
<EMAIL_ADDRESS>Cc:
Paul Saffrin<EMAIL_ADDRESS>Raymond, Gabrielle<EMAIL_ADDRESS>Subject:
RE: Erie Coke

Here is our resolution for your issue.

Method 201A vs Method 5 on Pushing Emission Control System (PECS); uses a stationary baghouse
 Sample using Method201A throughout the entire pushing time period and do not turn off sampling when moving from door to door until the full volume required by the method (2 dscm) is collected. This also will reduce the number of ovens pushed during testing.
 We understand that this testing may result in data that is significantly different from data collected at facilities with PCMs or sheds, i.e., data collected during sampling that is started and stopped for the pushes. Because there are at least three facilities with PECS, we will be examine the data collected and if significantly different can create a subcategory for regulatory purposes

_____________________________________________________________
Regards,
Donna Lee Jones, Ph.D.
Senior Technical Advisor, Metals Sector
U. S. Environmental Protection Agency
Office of Air Quality Planning and Standards
Sector Policies and Programs Division / Metals & Inorganic Chemicals Group (D 243-02)
Research Triangle Park, NC  27711  Tele:<PHONE_NUMBER>  Fax<PHONE_NUMBER>
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"Reasonableness never fails to be appreciated."  - anon.

From: Randy Wiler<EMAIL_ADDRESS>Sent: Tuesday, May 10, 2016 3:03 PM
To: Jones, DonnaLee<EMAIL_ADDRESS>Cc: Paul Saffrin<EMAIL_ADDRESS>Subject:

Dr. Donna Lee Jones,

Attached is a correspondence from Montrose explaining a test problem with the pushing emission control stack (PECS) that Erie Coke would like to resolve.

If you have any questions, please contact the undersigned.

Sincerely
Erie Coke Corporation

R.G. Wiler
Environmental Manager


[Federal Register Volume 83, Number 136 (Monday, July 16, 2018)]
[Rules and Regulations]
[Pages 32794-32796]
[FR Doc No: 2018-15049]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0337; FRL-9980-68--Region 3]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Interstate Transport Requirements for the 2012 Fine
Particulate Matter Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the Commonwealth of
Virginia (the Commonwealth or Virginia). This revision pertains to the
infrastructure requirement for interstate transport of pollution with
respect to the 2012 fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS). EPA is approving this revision
in accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on August 15, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2017-0337. All documents in the docket are listed on
the http://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
http://www.regulations.gov, or please contact the person identified in
the ``For Further Information Contact'' section for additional
availability information.

FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp,<PHONE_NUMBER>,
or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 9, 2018 (83 FR 21233), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA
proposed approval of Virginia's submittal to address the infrastructure
requirements under section 110(a)(2)(D)(i) of the CAA for the 2012
PM2.5 NAAQS. The formal SIP revision was submitted by
Virginia through the Department of Environmental Quality (VADEQ) on May
16, 2017.

II. Summary of SIP Revision and EPA Analysis

    Virginia's May 16, 2017 SIP submittal includes a summary of annual
emissions of oxides of nitrogen (NOX) and sulfur dioxide
(SO2), both of which are precursors of PM2.5. The
emissions summary shows that emissions from Virginia sources have been
steadily decreasing for sources that could potentially contribute, with
respect to the 2012 PM2.5 NAAQS, to nonattainment in, or
interfere with maintenance of, any other state. The submittal also
included currently available air quality monitoring data for
PM2.5, and its precursors SO2 and NO2,
which Virginia alleged show that PM2.5 levels continue to be
below the 2012 PM2.5 NAAQS in Virginia.
    Additionally, Virginia described in its submittal several existing
SIP-approved measures and other federally enforceable source-specific
measures, pursuant to permitting requirements under the CAA, that apply
to sources of PM2.5 and its precursors within Virginia.
Virginia concludes that the Commonwealth does not significantly
contribute to, nor interfere with the maintenance of, another state for
the 2012 PM2.5 NAAQS.
    A detailed summary of Virginia's submittal and EPA's review and
rationale for approval of this SIP revision as meeting CAA section
110(a)(2)(D)(i)(I) for the 2012 PM2.5 NAAQS may be found in
the NPR and Technical Support Document (TSD) for this rulemaking
action, which are available online at www.regulations.gov, Docket
number EPA-R03-OAR-2017-0337.
    EPA used the information in the 2016 PM2.5 Memorandum\1\
and additional information for the evaluation and came to the same
conclusion as Virginia. As discussed in greater detail in the TSD, EPA
identified the potential downwind nonattainment and maintenance
receptors identified in the 2016 PM2.5 Memorandum, and then
evaluated them to determine if Virginia's emissions could potentially
contribute to nonattainment and maintenance problems in 2021, the
attainment year for moderate PM2.5 nonattainment areas. EPA
concluded Virginia was not significantly contributing to nonattainment
nor interfering with maintenance with 2012 PM2.5 NAAQS by
any other state.
---------------------------------------------------------------------------

    \1\ ``Information on the Interstate Transport ``Good Neighbor''
Provision for the 2012 Fine Particulate Matter National Ambient Air
Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I),''
Memorandum from Stephen D. Page, Director, EPA Office of Air Quality
Planning and Standards (March 17, 2016). A copy is included in the
docket for this rulemaking action.
---------------------------------------------------------------------------

III. Public Comments

    Two anonymous public comments were received on the NPR. The first
comment generally discussed greenhouse gases and climate change and was
determined to not be relevant nor specific to this rulemaking action.
Thus, no response is provided for this comment. The second comment
expressed that the commenter would not like to see particulate
pollution from Virginia or any state degrade Allegheny County,
Pennsylvania's air. As explained in the proposed rulemaking in detail,
EPA determined that Virginia's emission sources do not contribute
significantly to nonattainment, nor interfere with maintenance, of the
2012 PM2.5 NAAQS in another state. EPA also concluded

that Allegheny County, Pennsylvania was likely to attain the 2012
PM2.5 NAAQS without the need for further emission
reductions. Thus, EPA does not expect emissions from Virginia to
degrade Allegheny County, Pennsylvania's air quality.

IV. Final Action

    EPA is approving the May 16, 2017 SIP revision addressing the
interstate transport requirements for the 2012 PM2.5 NAAQS
to the Virginia SIP because the submittal adequately addresses section
110(a)(2)(D)(i)(I) of the CAA.

V. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
federally authorized environmental programs in a manner that is no less
stringent than their federal counterparts. . . .'' The opinion
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by federal law to maintain program delegation, authorization or
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on federal
enforcement authorities, EPA may at any time invoke its authority under
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.

VI. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 CAA. 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
     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 CAA; 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).
    The SIP is not approved to apply on any Indian reservation land as
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).

B. Submission to Congress and the Comptroller General

    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).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 14, 2018. 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, addressing Virginia's interstate transport for the
2012 PM2.5 NAAQS, 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, Particulate matter.

    Dated: July 2, 2018.
Cosmo Servidio,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (e)(1) is amended by adding
a second entry for Section 110(a)(2) Infrastructure Requirements for
the 2012 Particulate Matter NAAQS after the first entry to read as
follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (e)* * *
    (1)* * *

----------------------------------------------------------------------------------------------------------------
                                                             State
  Name of  non-regulatory SIP     Applicable  geographic   submittal   EPA approval date  Additional explanation
            revision                       area               date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Section 110(a)(2)                Statewide..............     05/16/17  7/16/2018,         Docket 2017-0337. This
 Infrastructure Requirements                                            [Insert Federal    action addresses the
 for the 2012 Particulate                                               Register           infrastructure
 Matter NAAQS.                                                          citation].         element of CAA
                                                                                section
                                                                                110(a)(2)(D)(i)(I).

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

* * * * *
[FR Doc. 2018-15049 Filed 7-13-18; 8:45 am]
 BILLING CODE 6560-50-P