Bois Forte Reservation 

Consolidated Enforcement Response 

and Penalty Policy 

for the

Pre-Renovation Education Rule; 

Renovation, Repair and Painting Rule; and

Lead-Based Paint Activities Rule

(LBP Consolidated ERPP)

February 2011 

Bois Forte Reservation 

Bois Forte Tribal Government 

Bois Forte Authorized Lead Program 

Bois Forte Environmental Services Department 
ii
Table of Contents

1 

Section 1: Introduction, Overview and Background

 Introduction ........................................................................................................................2 

 Overview ........................................................................................................................2 

 Background ........................................................................................................................3 

Section 2: Determining the Level of Enforcement Response

 Notices of Noncompliance ...................................................................................................5 

 Memorandum of Understanding....................................................................6 

 Computation of the Penalty .................................................................................................6 

 Independently Assessable Violations ..................................................................................9 

 Economic Benefit of Noncompliance .................................................................................9 

 Gravity-Based Penalty .......................................................................................................12 

 Nature .....................................................................................................................12 

 Circumstance..........................................................................................................13 

 Extent .....................................................................................................................14 

 Modification of the Penalty ...............................................................................................16 

 Degree of Culpability .............................................................................................16 

 History of Prior Violations.....................................................................................17 

 Ability to Pay/Continue in Business ......................................................................18 

 Other Factors as Justice May Require ...................................................................21 

 Voluntary Disclosures ................................................................................22 

 Attitude ......................................................................................................22 

 Special Circumstances/Extraordinary Adjustments ...................................22 

 Adjusting Proposed Penalties in Settlement ......................................................................23 

 Factual Changes .....................................................................................................23 

 Remittance of Penalties..........................................................................................23 

 

APPENDICES

Appendix A: Violations and Circumstance Levels.............................................. A1 – A10 

Appendix B: Gravity-Based Penalty Matrices....................................................... B1 – B3 

 Appendix C: Internet References for Policy Documents ............................................... C1 
Section 1: Introduction, Overview and Background

2

I. Introduction

 This document sets forth guidance for the Bois Forte Reservation (Bois Forte Tribal 

Government or Bois Forte) to use in determining the appropriate enforcement response and 

penalty amount for violations of Title IV of the Toxic Substances Control Act (TSCA) which 

gives Bois Forte the authority to address lead-based paint (LBP) and LBP hazards in target 

housing, and other buildings and structures. The goal of this consolidated Enforcement 

Response and Penalty Policy (ERPP) is to provide fair and equitable treatment of the regulated 

community, predictable enforcement responses, and comparable penalty assessments for 

comparable violations, with flexibility to allow for individual facts and circumstances of a 

particular case. The Renovation, Repair, and Painting Rule (RRP Rule),1

 Pre-Renovation 

Education Rule (PRE Rule),2

 and Lead-Based Paint Activities, Certification, and Training Rule 

(LBP Activities Rule)3

 were each promulgated under the authority of the Bois Forte Tribal 

Government and are addressed in this ERPP. 

 This guidance applies only to violations of Bois Forte’s civil regulatory programs. It 

does not apply to enforcement pursuant to criminal provisions of laws or regulations that are 

enforced by EPA. The procedures set forth in this document are intended solely for the guidance 

of the tribal government. They are not intended and cannot be relied on to create rights, 

substantive or procedural, enforceable by any party in litigation with the United States. Bois 

Forte reserves the right to act at variance with this policy and to change it at any time without 

public notice. This policy is not binding on Bois Forte. Enforcement staff should continue to 

make appropriate case-by-case enforcement judgments, guided by, but not restricted or limited 

to, the policies contained in this document. 

This Policy is immediately effective and applicable, and it supersedes any enforcement 

response or penalty guidance previously drafted or issued for the PRE Rule or LBP Activities 

Rule. 

II. Overview of the Policy

 This ERPP is divided into four main sections. The first section, “Introduction, Overview 

and Background” provides the statutory and regulatory setting for this policy. The second 

section, “Assessing Civil Administrative Penalties,” elaborates on Bois Forte’s policy and 

procedures for calculating civil penalties against persons who violate section 409 of TSCA by 

failing or refusing to comply with the regulatory requirements of the PRE, RRP and LBP 

Activities Rules. The forth section, the appendices, contains, among other things, tables to be 

used in calculating civil penalties for this policy. The appendices to this ERPP are: Appendix A 

 

1

 Bois Forte Lead Ordinance, Section 8 

2

 Bois Forte Lead Ordinance, Section 7 

3

 Bois Forte Lead Ordinance, Section 8 
Section 1: Introduction, Overview and Background

3

- Violations and Circumstance Levels; Appendix B - Gravity-Based Penalty Matrices; Appendix 

C - References for Policy Documents. 

III. Background 

 In 1992, the United States Congress enacted Title X - Residential Lead-Based Paint 

Hazard Reduction Act of 1992, 42 United States Code (U.S.C.) § 4851 (enacted as Title X of the 

Housing and Community Development Act of 1992). Section 1021 of Title X amended the 

Toxic Substances Control Act to add Title IV, entitled “Lead Exposure Reduction.” 

 Pursuant to Section 406(b) of TSCA, EPA promulgated regulations at 40 C.F.R. Part 745, 

Subpart E, residential property renovations, requiring, among other things, persons who perform 

for compensation a renovation of pre-1978 housing (“target housing”) to provide a lead hazard 

information pamphlet to the owner and occupant prior to commencing the renovation. 

 Pursuant to Section 402(a) of TSCA, EPA promulgated regulations at 40 C.F.R. Part 745, 

Subpart L, Lead-Based Paint Activities, prescribing procedures and requirements for the 

accreditation of training programs and renovations, procedures and requirements for the 

certification of individuals and firms engaged in lead-based paint activities, work practice 

standards for performing such activities, and delegation of programs. 

 Pursuant to Section 402(c)(3) of TSCA, EPA promulgated regulations amending at 40 

C.F.R. Part 745, Subparts E and L, residential property renovations, prescribing procedures and 

requirements for the accreditation of training programs, certification of individuals and firms, 

work practice standards for renovation, repair and painting activities in target housing and child 

occupied facilities, and delegation of programs (Subpart Q) under Section 404. 

 Pursuant to Section 404 of TSCA, EPA can authorize Tribes to carry out the statutory 

requirements of Sections 402(a) and (c)(3) and 406(b) of TSCA on their respective reservations. 

 The Bois Forte Reservation by resolution 141-2005, enacted the ordinance entitled (Bois 

Forte Lead Program) in order to provide clear and specific guidance in the assessment, 

inspection, pre-renovation notification and abatement of lead based paint activities on the Bois 

Forte Reservation. Penalties for non compliance are established, the ordinance targets all 

buildings on the Bois Forte Reservation. 

 Pursuant to Resolution 141-2005, Section 8 (a)(b)(c) (d) of the Bois Forte Lead 

Ordinance, addresses residential property renovations, requiring, among other things, persons 

who perform for compensation a renovation of pre-1978 housing (“target housing”) to provide a 

lead hazard information pamphlet to the owner and occupant prior to commencing the 

renovation, and also addresses residential property renovations, certification of individuals and 
Section 1: Introduction, Overview and Background

4

firms, work practice standards for renovation, repair and painting activities in target housing and 

child occupied facilities. 

 Pursuant to Resolution 141-2005, Section 7 of the Bois Forte Lead Ordinance, addresses 

Lead-Based Paint Activities, prescribing procedures for renovations, procedures and 

requirements for the certification of individuals and firms engaged in lead-based paint activities, 

work practice standards for performing such activities. 

 This ordinance is designed to be at least as protective as the federal law and provide for 

adequate enforcement of all provisions through a schedule of flexible remedies.
Section 2: Assessing Civil Administrative Penalties

5

 The failure or refusal to comply with any requirement of the Bois Forte Authorized 

Program for the PRE, RRP, or LBP Activities Rules shall be an unlawful act under Bois Forte 

Resolution 141-2005 and penalties can be assessed to address such violations. 

 Once Bois Forte finds that a violation of TSCA has occurred, it will need to determine 

the appropriate level of enforcement response for the violation. Bois Forte can respond with a 

range of enforcement response with the following responses: 

• Tribal Court Complaint 

• Notices of Noncompliance 

• Warning Letter(s) 

I. Tribal Court Complaints 

 A tribal court complaint is the appropriate response to violations of the PRE, RRP, and 

LBP Activities Rules or failure to comply with a Notice of Noncompliance. Violators may be 

subject to civil administrative action including the assessment of civil penalties, with or without 

conditions. Civil penalties are to be assessed by Bois Forte by an order made on the record, after 

the violator is given a written notice and opportunity to request a hearing on the order, within 15 

days of the date the notice is received by the violator. 

 A tribal court complaint may include a proposed penalty that has been calculated 

pursuant to this policy. Alternatively, the complaint may specify the number of violations for 

which a penalty is sought, a brief explanation of the severity of each violation alleged, and a 

recitation of the statutory penalty authority applicable for each violation in the complaint. Bois 

Forte intends to calculate its own penalties in all such matters. 

 A civil administrative action can result in an enforceable agreement and the assessment 

of a penalty or a decision rendered by the Tribal Court.4

 Before an administrative penalty order 

becomes final, the Natural Resources Commissioner must provide each Respondent with notice 

and an opportunity for a formal hearing, on the record. 

II. Notices of Noncompliance

 

4

 Bois Forte may, at its discretion, issue a press release or advisory to notify the public of the filing of an 

enforcement action, settlement, or adjudication concerning a person’s violation of TSCA. A press release can be a 

useful tool to notify the public of Agency actions for TSCA noncompliance and specifically, to educate the public 

on the requirements of LBP Program. The issuance of a press release or advisory as well as the nature of their 

contents are within the sole discretion of the Agency and shall not be subject to negotiation with the violator. See, 

Restrictions on Communicating with Outside Parties Regarding Enforcement Actions, March 8, 2006. 
Section 2: Assessing Civil Administrative Penalties

6

On a case-by-case basis, Bois Forte may determine that the issuance of a notice of 

noncompliance (NON),5

 rather than a tribal court complaint is the most appropriate 

enforcement response to a violation.6

 A NON should be issued to address violations in 

the following circumstances: 

i. Where a first time violator’s violation has low probability of re-occurrence7

 and 

low potential for harm; or 

ii. When a violator is in substantial compliance with the requirement as the specific 

facts and circumstances support. 

A NON should, when necessary: 

i. Require corrective action by a specified date to return the violator to full 

compliance and resolve the violation(s); 

ii. Specify the type and nature of the corrective action necessary to return the 

violator to full compliance. 

iii. Require proof that the corrective action was taken by the specified date to 

demonstrate to Bois Forte’s satisfaction that further action is not necessary to 

resolve the violation(s) and prevent recurrence; and 

iv. Be placed in the violator’s inspection, case development report record, or other 

file to document Bois Forte’s response. 

A NON should not: 

i. Be issued to a violator for a subsequent violation of a provision of the same rule 

(e.g., the RRP Rule) reoccurring within 5 years; or

ii. Impose a monetary penalty. 

III. Bois Forte entering into a MOU

 

5

 A NON is not a formal enforcement action since there is no opportunity to respond to the notice on the record. 

6

 Supplementary guidance on this issuance of NONs in lieu of complaints may be provided for specific situations. 

7

 For example, if the same violation occurred on several occasions (e.g., a renovation firm failed to comply with the 

PRE Rule at 3 separate renovations including 3 units in a multi-unit renovation project), a NON should not be issued 

because the renovation firm demonstrated a pattern and practice of repeated violations. 
Section 2: Assessing Civil Administrative Penalties

7

Bois Forte will enter into a Memorandum of Understanding (MOU) with EPA to refer all 

criminal matters to the Agency. 

I. Computation of the Penalty 

 In determining the amount of any civil penalty for violations of the PRE, RRP, or LBP 

Activities Rules, “...Bois Forte shall take into account the nature, circumstances, extent, and 

gravity of the violation or violations and, with respect to the violator, ability to pay, effect on 

ability to continue to do business, any history of prior such violations, the degree of culpability, 

and such other matters as justice may require.”8

 Bois Forte is adopting EPA’s “Guidelines for 

Assessment of Civil Penalties Under Section 16 of the Toxic Substances Control Act; PCB 

Penalty Policy”9

 which describes in greater detail the “civil penalty system” under TSCA. The 

purpose of this system is to ensure that civil penalties are assessed in a fair, uniform and 

consistent manner; that the penalties are appropriate for the violation committed; that economic 

incentives for violating TSCA are eliminated and the penalty is a sufficient deterrent to future 

violations. The TSCA civil penalty system provides standard definitions and a calculation 

methodology for application of the statutory penalty factors that TSCA requires the 

Administrator to consider in assessing a civil penalty. The TSCA civil penalty system also states 

that as regulations are developed, specific penalty guidelines, such as EPA’s ERPP, will be 

developed adopting in detail the application of the general civil penalty system to the new 

regulation. In developing a proposed penalty, Bois Forte will take into account the particular 

facts and circumstances of each case, with specific reference to the TSCA statutory penalty 

factors. This ERPP follows the general framework described in the 1980 “Guidelines” for 

applying the TSCA statutory penalty factors to violations in civil administrative enforcement 

cases.10

For each violation, the penalty amount is determined in a multi-step process: 

1. Determine the number of independently assessable violations. 

 

8

 See, 15 U.S.C. 2615(a)(2)(B) 

9

 See, Appendix C, TSCA Enforcement Policy and Guidance Documents, Guidelines for Assessment of Civil 

Penalties Under Section 16 of the Toxic Substances Control Act; PCB Penalty Policy, 45 Fed. Reg. 59771, 

September 10, 1980. The Guidelines focus on what the proper civil penalty should be if a decision is made that a 

civil penalty is the proper enforcement remedy. The Guidelines do not discuss whether the assessment of a civil 

penalty is the correct enforcement response to a specific violation. 

10 EPA will not apply civil administrative penalty policies in civil judicial context, but rather will apply statutory 

factors. 
Section 2: Assessing Civil Administrative Penalties

8

2. Determine the economic benefit.11 One component of the total penalty is the estimated 

amount of economic benefit the respondent realized from non-compliance. This 

calculation is also subject to adjustment based on the violator’s ability to pay/ability to 

continue in business. Considerations for calculating economic benefit are discussed in 

Item III “Economic Benefit of Noncompliance” and Item V “Ability to Pay/Continue in 

Business,” of this Section.12

3. Determine the gravity-based penalty. The other component of the total penalty is the 

gravity-based penalty. Under the TSCA Civil Penalty Guidelines, gravity-based penalties 

are determined in two stages: 

a. The first stage is the determination of a gravity-based penalty (GBP) 

(gravity refers to the overall seriousness of the violation). 

To determine the gravity-based penalty, the following factors are considered: 

i. The nature of the violation; 

ii. The circumstances of the violation; and 

iii.The extent of harm that may result from a given violation. 

These factors are incorporated into the penalty matrices in Appendix B that specify the 

appropriate gravity-based penalty and are discussed in more detail in Item IV of this section. 

The penalty amounts in the gravity based penalty matrices in Appendix B have been 

increased pursuant to the Debt Collection Improvement Act of 1996, which requires federal 

agencies to periodically adjust the statutory maximum penalties to account for inflation. EPA 

has thus increased, and Bois Forte adopts in this ERPP, the maximum penalty amounts for TSCA 

violations to $5,000.00. Additional penalty inflation increases occur periodically and are 

incorporated by reference into this ERPP. 

b. The second stage involves adjusting the gravity-based penalty upward or 

downward. Adjustments to the penalty amount are made by considering several 

factors including the following: 

i. The violator’s ability to pay/ability to continue in business; 

ii. The violator’s history of prior violations; 

iii. The violator’s degree of culpability; and 

 

11 Determining economic benefit is not specifically required by the Act, but is authorized under the “as justice may 

require” factor of 15 U.S. C. § 2615(a)(2)(B). See, 45 Fed. Reg. 59771, September 10, 1980. 

12 See, Footnote 6. Please consult the current document for any requirement for consultation or concurrence. 
Section 2: Assessing Civil Administrative Penalties

9

iv. Such other matters as justice may require. 

These adjustments are discussed in more detail in Item V of this Section. 

II. Independently Assessable Violations 

 A separate civil penalty, up to the statutory maximum, can be assessed for each 

independent violation of TSCA. A violation is considered independent if it results from an act 

(or failure to act) which is not the result of any other violation for which a civil penalty is being 

assessed or if at least one of the elements of proof is different from any other violation. 

Each requirement of the PRE, RRP, and LBP Activities Rules is a separate and distinct 

requirement and a failure to comply with any requirement is a violation of the PRE, RRP, or 

LBP Activities Rules. To determine whether a violation of the PRE, RRP, or LBP Activities 

Rules has occurred, the applicable requirements must be reviewed to determine which regulatory 

provisions have been violated. 

Examples of the pre-renovation education requirements: 

• Deliver pamphlet to the owner and adult occupant before renovation begins (but not more 

than 60 days before work begins) or mail pamphlet to owner at least 7 days before 

renovation begins. 

• Obtain from the owner and adult occupant, written acknowledgement that they received 

the pamphlet or obtain a certificate of mailing at least 7 days before the renovation 

begins. 

Examples of a renovation/abatement project: 

• Retain all records for 3 years following completion of a project to demonstrate 

compliance with the PRE, RRP, or LBP Activities Rules. 

• Follow work practice standards in each unit of a multi-family housing building. 

After identifying each applicable regulatory requirement, the next step is to determine the 

number of renovations that took place or the number of affected persons to which information 

was required to be distributed or training provided. The total number of violations depends in 

part on the number of renovations or on the number of affected entities to which information was 

required to be distributed. For example: 
Section 2: Assessing Civil Administrative Penalties

10

1. A renovator contracts with a homeowner for renovation activities within the 

homeowner’s one owner-occupied unit. Even if several renovation activities were 

conducted at that location, the activity is considered one renovation for purposes of 

determining whether violations of the PRE Rule occurred, since only one person 

needs to be notified – the homeowner. 

2. A renovator contracted with an owner of a multi-unit apartment building for 20 units 

to undergo renovation. This resulted in 20 separate requirements to comply with the 

PRE Rule for purposes of determining the number of violations because each unit had 

a separate adult occupant that the renovator needed to contact. 

3. In another example, if there are three unrelated children under the age of 6 at a childoccupied facility undergoing renovation and the renovator fails to notify the 

parents/guardians of all 3 children, the total number of violations for failure to 

provide the pamphlet is 3. 

Similar calculations can be performed for applicable requirements for other parts of the 

PRE, RRP, and LBP Activities Rules to determine which regulatory provisions have been 

violated. A detailed list of some, but not all, potential violations of the PRE, RRP, and LBP 

Activities Rules is provided in Appendix A. 

III. Economic Benefit of Noncompliance 

 An individual renovator, renovation or abatement contractor, training firm, or any other 

entity that has violated the PRE, RRP, or LBP Activities Rule(s) and Section 409 of TSCA 

should not profit from their actions. 

The Bois Forte’s Policy on Civil Penalties, mandates the recapture of any significant 

economic benefit (EBN) that accrues to a violator from noncompliance with the law. Economic 

benefit can result from a violator delaying or avoiding compliance costs or when a violator 

otherwise realizes illegal profits through its noncompliance. A fundamental premise of the 1984 

Policy is that economic incentives for noncompliance are to be eliminated. If, after the penalty is 

paid, violators still profit by violating the law, there is little incentive to comply. Therefore, 

enforcement professionals should always evaluate the economic benefit of noncompliance in 

calculating penalties. Note that economic benefit can not exceed the statutory maximum penalty 

amount. 

 An economic benefit component should be calculated and added to the gravity-based 

penalty component when a violation results in “significant” economic benefit to the violator. 

“Significant” is defined as an economic benefit that totals more than $50 per room renovated per 
Section 2: Assessing Civil Administrative Penalties

11

renovation project13 for all applicable violations alleged in the complaint. In the interest of 

simplifying and expediting an enforcement action, enforcement professionals may use the “rules 

of thumb” (discussed in Section 3. IV. b., below) to determine if the economic benefit will be 

significant. 

 Bois Forte generally will not settle cases for an amount less than the economic benefit of 

noncompliance. However, the Agency’s 1984 Policy on Civil Penalties explicitly sets out three 

general areas where settling for less than the economic benefit may be appropriate. Since 

issuance of the 1984 Policy, the Agency has added a fourth exception for cases where ability to 

pay is a factor. The four exceptions are: 

• The economic benefit component is an insignificant amount (defined for purposes of 

this policy as less than $50 per room renovated per renovation project); 

• There are compelling public concerns that would not be served by taking a case to 

trial; 

• It is unlikely, based on the facts of the particular case as a whole, that Bois Forte will 

be able to recover the economic benefit in litigation; and 

• The company has documented an inability to pay the total proposed penalty.14

a. Economic Benefit from Delayed Costs and Avoided Costs 

 Delayed costs are expenditures that have been deferred by the violator’s failure to comply 

with the requirements. The violator eventually will spend the money to achieve compliance. 

Delayed costs are either capital costs (i.e., equipment), if any, or one-time non-depreciable costs 

(e.g., certification fees for renovation firms, tuition fees for courses for certification). 

 Avoided costs are expenditures that will never be incurred, as in the case of a failure to 

implement renovation or abatement work practices. In this example, avoided costs include all 

the costs associated with procuring supplies and implementing engineering controls for dust or 

using banned practices for LBP removal. Those costs were never and will never be incurred. 

b. Calculation of Economic Benefit from Delayed and Avoided Costs 

 Since 1984, it has been Agency policy to use either the BEN computer model or “rules of 

thumb” to calculate the economic benefit of noncompliance. The “rules of thumb” are straight- 

 

13 Alternatively, cost information can be derived from the Economic Analysis for the TSCA Lead Renovation, Repair 

and Painting Program Final Rule for Target Housing and Child-Occupied Facilities; Economic and Policy Analysis 

Branch, Exposure and Technology Division, Office of Pollution Prevention and Toxics. March, 2008. 

14 See, Section 3, Item V; Modification of Penalty, for a discussion of ability to pay/continue in business. 
Section 2: Assessing Civil Administrative Penalties

12

forward methods to calculate economic savings from delayed and avoided compliance 

expenditures. They are discussed more fully in the Agency’s General Enforcement Policy #GM22, entitled “A Framework for Statute-Specific Approaches to Penalty Assessments," issued on 

February 16, 1984, at pages 7-9. Enforcement professionals may use the “rules of thumb” 

whenever the economic benefit penalty is not substantial (generally under $50 per room 

renovated per renovation project) and use of an expert financial witness may not be warranted. 

If the “rules of thumb” yield an amount over $50 per room renovated per renovation project, the 

case developer should use the BEN model and/or an expert financial witness to calculate the 

higher economic benefit penalty. Using the “rules of thumb,” the economic benefit of delayed 

compliance may be estimated at: 5% per year of the delayed one-time capital costs, if any, and/or 

one-time non-depreciable costs for the period from the date the violation began until compliance 

was or is expected to be achieved. For avoided annual costs, the “rule of thumb” is the annual 

expenses avoided until the date compliance is achieved less any tax savings. These rules of 

thumb do not apply to avoided one-time or avoided capital costs. Enforcement professionals 

should calculate the economic benefit of avoided one-time and avoided capital costs, if any, by 

using the BEN model. 

 The primary purpose of the BEN model is to calculate economic savings for settlement 

purposes. The model can perform a calculation of economic benefit from delayed or avoided 

costs based on data inputs, including optional data items and standard values already contained 

in the program. Enforcement professionals wishing to use the BEN model should take the Basic 

BEN training course offered by the Special Litigation and Projects Division in cooperation with 

NETI. Enforcement professionals who have questions while running the model can access the 

model’s help system which contains information on how to: use BEN, understand the data 

needed, and understand the model’s outputs. 

 The economic benefit component should be calculated for the entire period for which 

there is evidence of noncompliance, i.e., all time periods for which there is evidence to support 

the conclusions that the respondent was violating TSCA and thereby gained an economic benefit. 

Such evidence should be considered in the assessment of the penalty proposed for the violations 

alleged or proven, up to the statutory maximum for those violations. In certain cases, credible 

evidence may demonstrate that a respondent received an economic benefit for noncompliance for 

a period longer than the period of the violations for which a penalty is sought. In such cases, it 

may be appropriate to consider all of the economic benefit evidence in determining the 

appropriate penalty for the violations for which the respondent is liable. For example, the 

economic benefit component of a penalty for failure to comply with work practice standards at a 

large, multi-year renovation project during which Bois Forte conducted compliance monitoring 

for only one year should be based on a consideration of the economic benefit gained for the 

entire period of the renovation, but the total penalty is limited to the statutory maximum for the 

specific violations alleged and proven. 

 In most cases, the violator will have the funds gained through non-compliance available 

for its continued use or competitive advantage until it pays the penalty. Therefore, for cases in 
Section 2: Assessing Civil Administrative Penalties

13

which economic benefit is calculated by using BEN or by a financial expert, the economic 

benefit should be calculated through the anticipated date a consent agreement would be entered. 

If the matter goes to hearing, this calculation should be based on a penalty payment date 

corresponding with the relevant hearing date. It should be noted that the respondent will 

continue to accrue additional economic benefits after the hearing date, until the assessed penalty 

is paid. However, there are exceptions for determining the period of economic benefit when 

using a “rule of thumb.” In those instances, the economic benefit is calculated in the manner 

described in the first paragraph of this subsection. 

IV. Gravity-Based Penalty 

Lead poisoning in children, including poisoning in-utero, causes intelligence quotient 

deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, 

hyperactivity and behavior problems. In severe cases it may lead to seizures, coma, and death. 

In as many as 38 million homes in the United States, children’s health is endangered by leadbased paint and/or lead-based paint hazards. Lead in housing and child-occupied facilities 

remains the most important source of lead exposure for young children and pregnant women. 

Providing information about the dangers from lead exposures and controlling exposures to lead 

is the focus of the PRE, RRP, and LBP Activates Rules. The nature and circumstance of a 

violation of these rules and the extent to which the violation poses a potential for harm are 

incorporated into the matrices that specify the appropriate gravity-based penalty for that specific 

or similar violations. 

 Nature 

 The TSCA Civil Penalty Guidelines define the nature of a violation as the essential 

character of the violation, and incorporates the concept of whether the violation is of a “chemical 

control,” “control-associated data gathering,” or “hazard assessment” nature. With respect to 

both the RRP and LBP Activities Rules, the requirements are best characterized as “chemical 

control” in nature because they are aimed at limiting exposure and risk presented by lead-based 

paint by controlling how lead-based paint is handled by renovators and abatement contractors. 

In contrast, the requirements of the PRE Rule are best characterized as “hazard assessment” in 

nature. The PRE Rule requirements are designed to provide owners and occupants of target 

housing, owners and proprietors of child-occupied facilities, and parents and/or guardians of 

children under the age of 6 in child-occupied facilities, with information that will allow them to 

weigh and assess the risks presented by renovations and to take proper precautions to avoid the 

hazards. This information is vital to occupants of target housing and child-occupied facilities 

undergoing renovations or abatements to enable them to take proper precautions to avoid 

unnecessary exposure, especially to children under the age of 6 and pregnant women, that may 

be created during a renovation or abatement activity. The “nature” of the violation will have a 

direct effect on the measure used to determine the appropriate “circumstance” and “extent” 

categories are selected on the GBP Matrix in Appendix B. 
Section 2: Assessing Civil Administrative Penalties

14

 Circumstance 

 The term “circumstance” represents the probability of harm resulting from a particular 

type of violation. The PRE, RRP, and LBP Activities Rules constitute a comprehensive leadbased paint regulatory program. The PRE Rule requirements provide a warning of dangers from 

lead associated with pending renovations or abatements. The RRP Rule and LBP Activities Rule 

requirements provide for engineering controls to limit exposures to lead during renovation and 

abatements and the cleanup procedures to reduce exposures to lead following renovations and 

abatements. Post-cleanup sampling provides for verification of the effectiveness of the 

engineering controls and cleanup procedures by testing for residual exposures, if any, to lead. 

Therefore, the greater the deviation from the regulations, the greater the likelihood that 

people will be uninformed about the hazards associated with lead-based paint and any 

renovations, that exposures will be inadequately controlled during renovations, or that residual 

hazards and exposures will persist after the renovation/abatement work is completed. 

 Under the TSCA Penalty Guidelines, “Circumstances” are categorized as High, Medium,

and Low and each category has two levels, for a total of six Circumstance levels. Consequently, 

the ERPP ranks potential violations using 6 levels that factor in compliance with the 

requirements of the PRE, RRP, or LBP Activities Rules. These requirements are associated with 

lack of knowledge of lead-based paint and lead-based paint hazards, increased exposure to lead 

or lead hazards, and verification of lead or lead hazard reduction after the actual 

renovation/abatement work is completed. For example: 

1. For a PRE Rule violation, the harm is associated with the failure to provide information 

on LBP hazards prior to renovations (a “hazard assessment” activity by its nature under 

this policy). Therefore, the primary circumstance to be considered is the occupant’s 

ability to assess and weigh, via the PRE Rule notification process, the factors associated 

with the risk to their health from the planned renovation, so they can take proper 

precautions to avoid any lead hazards. 

2. For a RRP Rule violation of the technical workplace standards, the harm is associated 

with the failure to control exposures to lead during a renovation (i.e., a “chemical 

control” activity by its nature under this policy). Therefore, the primary Circumstance to 

be considered is whether the specific violation has a high, medium, or low probability of 

impacting human health. 

For purposes of this policy, specific violations of the PRE, RRP, and LBP Activities 

Rules have been categorized as follows: 

Levels 1 and 2: Violations having a high probability of impacting human health and the 

environment. 
Section 2: Assessing Civil Administrative Penalties

15

Levels 3 and 4: Violations having a medium probability of impacting human health and 

the environment. 

Levels 5 and 6: Violations having a low probability of impacting human health and the 

environment. 

 Extent 

 The term “extent” represents the degree, range, or scope of a violation’s potential for 

harm. The TSCA Penalty Guidelines provide three “extent” categories: Major, Significant, and 

Minor. In the context of the PRE, RRP, and LBP Activities Rules, the measure of the “extent” of 

harm focuses on the overall intent of the rules and the amount of harm the rules are designed to 

prevent (e.g., serious health effects from childhood lead poisoning). For example, the potential 

for harm due to the failure of the renovator to provide the Renovate Right pamphlet could be 

considered “Major” if risk factors are high for exposure. In the example of an RRP violation of 

the technical workplace standards, the harm is associated with the failure to control exposures to 

lead during a renovation. Therefore, the primary consideration for determining the extent of 

harm to be considered is whether the specific violation could have a serious or significant or 

minor impact on human health, with the greatest concern being for the health of a child under 6 

years of age and a pregnant woman in target housing. Even in the absence of harm in the form 

of direct exposures to lead hazards, the gravity component of the penalty should reflect the 

seriousness of the violation in terms of its effect on the regulatory program. For example, course 

completion certificates are used by inspectors to identify individuals at worksites who must 

perform key renovation activities under the RRP Rule. This allows inspectors to efficiently 

identify those individuals excluded from regulated renovation activities that require certified 

renovators and to document that each renovation firm employs and uses a certified renovator. 

TSCA Civil Penalty Guidelines provide the following definitions for the 3 Extent categories: 

 Major: Potential for serious damage to human health or the environment. 

 Significant: Potential for significant damage to human health or the environment. 

 Minor: Potential for lesser amount of damage to human health or the environment. 

 Under these categories, the appropriate extent category for failure or refusal to comply 

with the provisions of the Rules is based upon 3 determinable facts: 

• The age of any children who occupy target housing; 

• Whether a pregnant woman occupies target housing; and 
Section 2: Assessing Civil Administrative Penalties

16

• Whether a child or children under six had access to the child-occupied facility during 

renovations/abatements. 

Age of child(ren) occupying target housing: Age will be determined by the age of the 

youngest child residing in the target housing at the time the violation occurred or at the time the 

renovation occurred. However, any individual can be adversely affected by exposure to lead. 

Children under the age of 6 are most likely to be adversely affected by the presence of leadbased paint and/or lead-based paint hazards based on habits (particularly hand-to-mouth activity) 

and vulnerability due to their physical development. 

If Bois Forte knows or has reason to believe that a child under the age of 6 is present, 

then for purposes of proposing a gravity-based penalty, the Major extent category should be 

used. Where the age of the youngest individual is not known, or a respondent is able to 

demonstrate to Bois Forte’s satisfaction that the youngest individual residing in the target 

housing at the time of the violation was at least 6 years of age and less than eighteen, then a 

Significant extent factor should be used. Where a respondent is able to demonstrate to Bois 

Forte’s satisfaction that no individuals younger than eighteen were residing in the target housing 

at the time of the violation, then a Minor extent factor should be used. 

Pregnant women living in target housing: Lead exposure before or during pregnancy 

can alter fetal development and cause miscarriages. If Bois Forte determines that a pregnant 

woman occupied the target housing at the time a violation occurred, then a Major extent should 

be used. 

Child-occupied facilities: Child-occupied facilities are, by definition, regularly visited 

by the same child(ren) under the age of 6. Bois Forte will generally consider failures by 

renovation/abatement firms to notify parents or guardians of children under 6 as Major in extent. 

Where a respondent demonstrates to Bois Forte’s satisfaction that no children under 6 visited the 

facility during the renovation (i.e., from the beginning of the renovation through the final 

cleaning verification), such as during an elementary school’s summer break, then an extent factor 

other than Major should be used. 

V. Modification of the Penalty

 In addition to the factors discussed in Subsection IV Gravity-Based Penalty above,Bois 

Forte shall also consider regarding the violations which are the subject of the specific action, 

with respect to the violator: 

• The degree of culpability; 

• Any history of prior such violations; 

• The ability to pay/ability to continue to do business; and 
Section 2: Assessing Civil Administrative Penalties

17

• Such other matters as justice may require.15

 All appropriate upward adjustments of the gravity-based penalty amount should be made 

prior to the issuance of the proposed penalty, while downward adjustments16 generally should 

not be made until after the proposed penalty has been issued, at which time these factors may be 

considered either during settlement negotiations or litigation. 

 Degree of Culpability 

 This factor may be used to increase or decrease the gravity-based penalty. TSCA is a 

strict liability statute for civil actions, so that culpability is irrelevant to the determination of legal 

liability. However, this does not render the violator’s culpability irrelevant in assessing an 

appropriate penalty. Knowing or willful violations generally reflect an increased culpability on 

the part of the violator and may even give rise to criminal liability. The culpability of the 

violator should be reflected in the amount of the penalty, which may be adjusted upward or 

downward by up to 25% for this factor. In assessing the degree of culpability, all of the 

following points should be considered: 

• Amount of control the violator had over the events constituting the violation; 

• Level of sophistication (knowledge of the regulations) of the violator in dealing with 

compliance issues; and 

• Extent to which the violator knew, or should have known, of the legal requirement that 

was violated. (For example, was the violator previously informed of the federal 

requirement to provide the “Renovate Right” pamphlet in a prior notice of a local code 

violation from a local building permit or code office?) 

 History of Prior Violations 

 A prior history of violations of the PRE, RRP, or LBP Activities Rules should be 

reflected in the amount of the penalty. The gravity-based penalty matrices are designed to apply 

to “first offenders.” Where a violator has demonstrated a similar history of “such violations” the 

Act requires the penalty to be adjusted upward by as much as 25% under the Guidelines for 

Assessment of Civil Penalties under Section 16 of TSCA. The need for such an upward 

adjustment is usually justified because the violator has not been sufficiently motivated to comply 

 

15 See, 15 U.S.C. § 2615(a)(2)(B). Under unusual circumstances there may be other factors not specified herein that 

must be considered to reach a just resolution. 

16 See, Footnote 6. Please consult the current document for any requirement for consultation or concurrence. 
Section 2: Assessing Civil Administrative Penalties

18

with the PRE, RRP, or LBP Activities Rules by the penalty assessed for the previous 

violation(s). 

 For the purpose of this policy, Bois Forte interprets “prior such violations” to mean any 

prior violation(s) of the PRE, RRP, or LBP Activities Rules. For example, the following 

guidelines apply in evaluating the history of such violations to the PRE Rule: 

To constitute a prior violation: 

1. The prior violation must have resulted in a consent agreement and final order or 

consent order (CAFO), consent decree, default judgment (judicial decision), or 

criminal conviction; and 

2. The resulting order/judgment/conviction was entered or executed within five 

calendar years prior to the date the subsequent violation occurred. Receipt of 

payment made to the U.S. Treasury can be used as evidence constituting a prior 

violation, regardless of whether a respondent admits to the violation and/or enters 

into a CAFO. Issuance of a NON does not constitute a prior violation for 

purposes of this policy since no violation is formally found and no opportunity to 

contest the notice is provided. In order to constitute a prior violation, a prior 

violation must have resulted in a final order. Violations litigated in Federal courts 

under the Act’s imminent hazard (§ 7), specific enforcement and seizure (§ 17), 

and criminal (§ 16(b)) provisions, are also part of a violators history for penalty 

assessment purposes. 

• Two or more corporations or business entities owned by, or affiliated with, the same 

parent corporation or business entity may not necessarily affect each other’s history (such 

as with independently-owned franchises) if they are substantially independent of one 

another in their management and in the functioning of their Boards of Directors. Bois 

Forte reserves the right to request, obtain, and review all underlying and supporting 

financial documents that elucidate relationships between entities to verify their accuracy. 

If the violator fails to provide the necessary information, and the information is not 

readily available through other sources, then Bois Forte is entitled to rely on the 

information it does have in its control or possession. 

• In the case of wholly-owned subsidiaries, the parent corporation’s history of violation 

will apply to all of its subsidiaries. Similarly, the history of violation for a wholly-owned 

subsidiary will apply to the parent corporation. 
Section 2: Assessing Civil Administrative Penalties

19

 Ability to Pay/Continue in Business 

 Section 16(a)(2)(B) of TSCA requires that the violator’s ability to pay the proposed civil 

penalty be considered as a statutory factor in determining the amount of the penalty. Absent 

proof to the contrary, Bois Forte can establish a respondent’s ability to pay with circumstantial 

evidence relating to a company’s size and annual revenue. Once this is done, the burden is on 

the respondent to demonstrate an inability to pay all or a portion of the calculated civil penalty.17

 To determine the appropriateness of the proposed penalty in relation to a person’s ability 

to pay, the case team should review publicly-available information, such as Dun and Bradstreet 

reports, a company’s filings with the Securities and Exchange Commission (when appropriate), 

or other available financial reports before issuing the complaint. In determining the amount of a 

penalty for a violator when financial information is not publicly-available, relevant facts 

obtained concerning the number of renovation contracts signed by a violator and the total 

revenues generated from such renovation contracts may offer insight regarding the violator’s 

ability to pay the penalty. 

 The Tribal Government will notify the respondent of its right under the statute to have 

Bois Forte consider its ability to continue in business in determining the amount of the penalty. 

Any respondent may raise the issue of ability to pay/ability to continue in business in its answer 

to the complaint or during the course of settlement negotiations. If a respondent raises “inability 

to pay” as a defense in its answer or in the course of settlement negotiations, the Tribal 

Government should ask the respondent to present appropriate documentation, such as tax returns 

and financial statements. The respondent should provide records that conform to generally 

accepted accounting principles and procedures at its expense. Bois Forte generally should 

request the following types of information: 

• The last three to five years of tax returns; 

• Balance sheets; 

• Income statements; 

• Statements of changes in financial position; 

 

17 Note that under the Environmental Appeals Board ruling in In re: New Waterbury, LTD, 5 E.A.D. 529 (EAB 

1994), in administrative enforcement actions for violations under statutes that specify ability to pay (which is 

analogous to ability to continue in business) as a factor to be considered in determining the penalty amount, Bois 

Forte must prove it adequately considered the appropriateness of the penalty in light of all of the statutory factors. 

Accordingly, enforcement professionals should be prepared to demonstrate that they considered the respondent’s 

ability to continue in business as well as the other statutory penalty factors and that their recommended penalty is 

supported by their analysis of those factors. Bois Forte may obtain information regarding a respondent’s ability to 

continue in business from the respondent, independent commercial financial reports, or other credible sources. 
Section 2: Assessing Civil Administrative Penalties

20

• Statement of operations; 

• Information on business and corporate structure; 

• Retained earnings statements; 

• Loan applications, financing agreements, security agreements; 

• Annual and quarterly reports to shareholders and the SEC, including 10K reports; 

and 

• Statements of assets and liabilities. 

 ABEL is an EPA computer model that is designed to assess inability to pay claims from 

corporations and partnerships. The evaluation is based on the firm’s excess cash flow. ABEL 

looks at the money coming into the entity and the money going out. It then looks at whether the 

excess cash flow is sufficient to cover the firm’s environmental responsibilities (i.e., compliance 

costs) and the proposed civil penalty. Bois Forte may consult EPA for use of program. Because 

the program only focuses on a violator’s cash flow, there are other sources of revenue that should 

also be considered to determine if a firm or individual is unable to pay the full penalty. These 

include: 

• Certificates of deposit, money market funds, or other liquid assets; 

• Reduction in business expenses such as advertising, entertainment, or compensation 

of corporate officers; 

• Sale or mortgage of non-liquid assets such as company cars, aircraft, or land; and 

• Related entities (e.g., the violator is a wholly owned subsidiary of Fortune 500 

company). 

 A respondent may argue that it cannot afford to pay the proposed penalty even though the 

penalty as adjusted does not exceed Bois Forte’s assessment of its ability to pay. In such cases, 

Bois Forte may consider a delayed payment schedule.

18 In exceptional circumstances, Bois 

Forte may also consider further adjustment below the calculated ability to pay. 

 

18

 
Section 2: Assessing Civil Administrative Penalties

21

 Finally, Bois Forte will generally not collect a civil penalty that exceeds a violator’s 

ability to pay as evidenced by a detailed tax, accounting, and financial analysis.19 However, it is 

important that the regulated community not choose noncompliance as a way of aiding financially 

troubled businesses. Therefore, Bois Forte reserves the option, in appropriate circumstances, of 

seeking a penalty that might exceed the respondent’s ability to pay, cause bankruptcy, or result in 

a respondent’s inability to continue in business. Such circumstances may exist where the 

violations are egregious20 or the violator refuses to pay the penalty. 

Size of Violator: Bois Forte estimated21 that about 300 firms supply renovation services in and 

around the Bois Forte reservation area including 150 small residential remodeling firms that 

employ less than 4 people. An additional 1,000 people are self-employed contractors covered 

under the RRP Rule, including 500 remodelers. There are approximately 300 firms near the 

reservation that may do some LBP renovation work on the reservation. The general presumption 

is that small, independent renovation firms lack the level of knowledge and awareness of the 

LBP rules shared by larger renovators with more employees and more extensive involvement in 

the renovation industry. Therefore, this factor should be considered when considering economic 

benefit from noncompliance, ability to pay/continue in business22 for very small firms and the 

self-employed. 

 Other Factors as Justice May Require 

 This provision allows an adjustment to the gravity-based component of a penalty for 

other factors which may arise on a case-by-case basis. The factors discussed in this section may 

or may not be known at the time a pre-filing letter is sent or a complaint is issued. To the extent 

that these and other relevant factors become known, adjustments to gravity-based penalties 

calculated using the factors in Section 3. IV. above, may be made prior to issuing a complaint or 

at any time thereafter. 

Voluntary Disclosure of Violations prior to an Inspection, Investigation, or Tip/Complaint

 

19 See, TSCA Penalty Guidelines, 45 Fed. Reg. 59775, September 1, 1980. Each financial analysis of a respondent’s 

ability to pay should assume an ability to pay at least a small penalty to acknowledge and reinforce the respondent’s 

obligations to comply with the regulatory requirements cited as violations in the tribal court complaint. 

20 An example of an egregious situation would be where a firm or individual renovator failed to follow any work 

practice standard, including containment, cleanup, or post-cleanup verification, or used prohibited or restricted 

practices which resulted in a paint, dust, or soil lead hazard in target housing where a pregnant woman or child 

under 6 resided or in a child occupied facility. 

21 See, Footnote 25, pages 2-16 through 2-20. 

22 See, Footnote 31, concerning reinforcing a respondent’s obligation to comply. 
Section 2: Assessing Civil Administrative Penalties

22

Violations must be disclosed to Bois Forte before the Tribal Government receives any 

information about the violations or initiates an inspection or investigation of the firm or 

individual. No penalty reductions should be given under the Audit Policy, Small Business 

Policy, or for other voluntary disclosures where the penalties are based on inspections or other 

investigations. 

Audit Policy: A renovator who conducts an audit and voluntarily self-discloses any 

violations of the PRE, RRP, or LBP Activities Rules under the “Incentives for SelfPolicing: Disclosure, Correction and Prevention of Violations” (65 FR 19618, April 11, 

2000 (Audit Policy)), may be eligible for a reduction of the gravity-based penalty if all 

the criteria established in the audit policy are met.23 Reference must be made to that 

document to determine whether a regulated entity qualifies for this penalty mitigation. 

Small Business Policy: A business with fewer than 100 employees may be eligible for 

a reduction of a gravity-based penalty under the EPA’s Policy on Compliance Incentives 

for Small Business (Small Business Policy, June 10, 1996).24 Reference must be made 

to that document to determine whether a regulated entity qualifies for this penalty 

mitigation. 

Voluntary Disclosures: If a firm or individual self-disclosures a violation of the PRE, 

RRP, or LBP Activities Rules but does not qualify for consideration under either the 

Audit Policy or the Small Business Policy, the proposed civil penalty amount may still 

be reduced for such voluntary disclosure. To encourage voluntary disclosures of 

violations, EPA may make a reduction of up to 10% of the gravity-based penalty. An 

additional reduction up to 10% (for a total reduction of up to 20%) may be given to 

those violators who report the potential violation to EPA within 30 days of selfdiscovery of the violation(s). 

Attitude 

 In cases where a settlement is negotiated prior to a hearing, after other factors have been 

applied as appropriate, Bois Forte may reduce the resulting adjusted proposed gravity-based 

penalty up to a total of 30%, but not more than the calculated economic benefit from noncompliance for attitude,25 if the circumstances warrant. In addition to creating an incentive for 

cooperative behavior during the compliance evaluation and enforcement process, this adjustment 

factor further reinforces the concept that respondents face a significant risk of higher penalties in 

litigation than in settlement. The attitude adjustment has 3 components: cooperation, immediate 

steps taken to comply with the LBP rules, and early settlement: 

 

23 See, Appendix C, Audit Policy 

24 See, Appendix C, Small Business Policy. 

25 See, TSCA Civil Penalty Guidance, attitude of the violator. 45 Fed. Reg. 59773; September 10, 1980 
Section 2: Assessing Civil Administrative Penalties

23

• Bois Forte may reduce the adjusted proposed penalty up to 10% based on a 

respondent’s cooperation throughout the entire compliance monitoring, case 

development, and settlement process. 

• Bois Forte may reduce the adjusted proposed penalty up to 10% for a respondent’s 

immediate good faith efforts to comply with the violated regulation and the speed and 

completeness with which it comes into compliance. 

• Bois Forte may reduce the adjusted proposed penalty up to 10% if the case is settled 

before the filing of pre-hearing exchange documents. 

Special Circumstances/Extraordinary Adjustments

 A case may present other factors that the case team believes justify a further reduction of 

the penalty.26 For example, a case may have particular litigation strengths or weaknesses that 

have not been adequately captured in other areas of this ERPP. If the facts of the case or the 

nature of the violation(s) at issue reduce the strength of the Bois Forte’s case, then an additional 

penalty reduction may be appropriate. 27 If after careful consideration, the Bois Forte 

determines that an additional reduction of the penalty is warranted, it should ensure the case file 

includes substantive reasons why the extraordinary reduction of the civil penalty is appropriate, 

including: (1) why the penalty derived from the Bois Forte civil penalty matrices and gravity 

adjustment is inequitable; (2) how all other methods for adjusting or revising the proposed 

penalty would not adequately resolve the inequity; (3) the manner in which the adjustment of the 

penalty effectuated the purposes of the Act; and (4) documentation of management concurrence 

in the extraordinary reduction. Bois Forte should still obtain a penalty sufficient to remove any 

economic incentive for violating applicable TSCA requirements. 

VI. Adjusting Proposed Penalties in Settlement

 Certain circumstances may justify adjustment of the proposed penalty. These 

circumstances may come to Bois Forte’s s attention when a respondent files an answer to a civil 

complaint or during pre-filing settlement discussions. 

 1) Factual Changes 

 Bois Forte will recalculate the proposed penalty if the respondent can demonstrate that 

facts material to the initial calculation are different. For example: 

 

26 See, Appendix C, TSCA Enforcement Policy and Guidance Documents, Memorandum, Documenting Penalty 

Calculations and Justifications of EPA Enforcement Actions, James Strock, August 9, 1990. 

27 See, Footnote 6. Please consult the current document for any requirement for consultation or concurrence. 
Section 2: Assessing Civil Administrative Penalties

24

• The owner of a property undergoing renovation/abatement provides appropriate 

documentation28 that the portion of the property undergoing renovation/abatement is 

lead-based paint free; 

• A renovator or renovation firm provides appropriate documentation that it was 

renovating/abating a portion of property previously demonstrated to them to be LBP free; 

or 

• A renovator or renovation firm provides appropriate documentation that it had renovated/ 

abated a portion of property subsequently demonstrated to them to be LBP free. 

In every case, the burden is on the respondent to raise those new factors which may justify 

the recalculation, consistent with the new facts. 

 2) Remittance of Penalty 

 The statute authorizes the Tribe to compromise, modify or remit, with or without 

condition, any civil penalty which may be imposed under this section.29 The terms of the 

remittance and suspension or revocation must be incorporated into a Compliance Agreement and 

Final Order. 

 

28 “Appropriate documentation” or “demonstration” such as reports of lead inspections conducted in accordance 

with HUD’s Guidelines for Assessment of Lead-Based Paint and Lead-Based Paint Hazards. 

29 See, 15 U.S.C. 2615(a)(2)(C), Section 16(a)(2)(C) of TSCA. 
APPENDICES 
Appendix A Violations and Circumstance Levels

A-1

CIRCUMSTANCE LEVEL 

Circumstance Level Rule Violation 

Information Distribution Requirements 

Level 1b 

1-Renovation in Dwelling Unit: Failure to provide the owner of the unit with the EPA-approved lead 

hazard information pamphlet pursuant to 40 C.F.R. § 745.84(a)(1) 

Level 1b 

2-Renovation in Dwelling Unit: Failure to provide the adult occupant of the unit (if not the owner) 

with the EPA-approved lead hazard information pamphlet pursuant to 40 C.F.R. § 745.84(a)(2) 

Level 1b 

3-Renovation in Common Area: Failure to provide the owner of the multi-family housing with the 

EPA-approved lead hazard information/pamphlet or to post informational signs pursuant to 40 C.F.R. 

§ 745.84(b)(1) 

Level 1b 

4-Renovation in Common Area: Failure to notify in writing, or ensure written notification of, each 

unit of the multi-family housing and make the pamphlet available upon request prior to the start of 

the renovation, or to post informational signs pursuant to 40 C.F.R. §745.84(b)(2) 

Level 1b 

5-Renovation in Child-Occupied Facility: Failure to provide the owner of the building in which the 

child-occupied facility is located with the EPA-approved lead hazard information pamphlet pursuant 

to 40 C.F.R. §745.84(c)(1)(i) 

Level 1b 

6-Renovation in Child-Occupied Facility: Failure to provide an adult representative of the childoccupied facility with the pamphlet, if the owner is not the operator of the child-occupied facility, 

pursuant to 40 C.F.R. §745.84(c)(1)(ii) 

Level 1b 

7-Renovation in Child-Occupied Facility: Failure to provide the parents and/or guardians of children 

using the child-occupied facility with the pamphlet and information describing the general nature and 

locations of the renovation and the anticipated completion date, by mailing or hand-delivering the 

pamphlet and renovation information, or by posting informational signs describing the general nature 

and locations of the renovation and the anticipated completion date, posted in areas where they can 

be seen by parents or guardians of the children frequenting the child-occupied facility, and 

accompanied by a posted copy of the pamphlet or information on how interested parents or guardians 

can review a copy of the pamphlet or obtain a copy from the renovation firm at no cost to the parents 

or guardians, pursuant to 40 C.F.R. §745.84(c)(2) 

Level 1b 

8-All Renovations: Failure of firms to post signs clearly defining the work area and warning 

occupants and other persons not involved in renovation activities to remain outside of the work area; 

to prepare, to the extent practicable, signs in the primary language of the occupants; and/or to post 

signs before beginning the renovation and make sure they remain in place and readable until the 

renovation and the post-renovation cleaning verification have been completed, pursuant to 40 C.F.R. 

§745.85 (1). 

Test Kits 

Level 1a 

1-All Renovations: Failure to use an EPA approved dust test kit when determining the presence of 

lead, pursuant to 40 C.F.R. §745.88 where the test kit result provided a false negative result for lead 

(i.e., no lead) 

Level 5a 

2-All Renovations: Failure to use an EPA approved dust test kit when determining the presence of 

lead, pursuant to 40 C.F.R. §745.88 where the test kit provided an accurate result for the presence of

lead 

Failure to Allow Access to Records, or Refusal of An Inspection 

Level 2a 

1-All Renovations: Failure or refusal to permit entry or inspection, pursuant to 40 C.F.R. §745.87(c), 

which states that such failure or refusal to permit entry or inspection is also a violation of TSCA §15 

and TSCA §409 

Level 2a 

2-Target Housing and Child-occupied Facilities: Failure or refusal to permit entry or inspection,

pursuant to 40 C.F.R. §745.235(c), as required by §745.237 and section 11 of TSCA (15 U.S.C. § 

2610) is a prohibited act under sections 15 and 409 of TSCA (15 U.S.C. § 2614, 2689) 
Appendix A Violations and Circumstance Levels

A-2

Circumstance Level Rule Violation 

Failure to Establish and Maintain Records, Failure or Refusal to Make Records Available 

Level 3a 

1-All Renovations: Failure or refusal to establish and maintain records, or to make available such 

records, pursuant to 40 C.F.R. §745.87(b), which states that such failure or refusal is a violation of

TSCA§409 

Level 3a 

2-Target Housing and Child-occupied Facilities: Failure or refusal to establish maintain, provide, 

copy, or permit access to records or reports, pursuant to 40 C.F.R. §745.225, § 745.226, and/or 

§745.227 

Acknowledgment and Certification Statement Requirements 

Level 4b 

1-Renovation in Dwelling Unit: Failure to obtain, from the owner, a written acknowledgment that 

the owner has received the pamphlet, pursuant to 40 C.F.R. § 745.84(a)(1)(i) or failure to obtain a 

certificate of mailing at least 7 days prior to the renovation, pursuant to 40 C.F.R. § 745.84(a)(1) 

Level 4b 

2-Renovation in Dwelling Unit: Failure to obtain, from the adult occupant, a written 

acknowledgment that the adult occupant has received the pamphlet, pursuant to 40 C.F.R. § 

745.84(a)(2)(i) or failure to obtain a certificate of mailing at least 7 days prior to the renovation,

pursuant to 40 C.F.R. § 745.84(a)(2) 

Level 4b 

3-Renovation in Common Area: Failure to obtain, from the owner, a written acknowledgment that 

the owner has received the pamphlet, or that information signs have been posted, pursuant to 40 

C.F.R. § 745.84(b)(1)(i) or failure to obtain a certificate of mailing at least 7 days prior to the 

renovation, pursuant to 40 C.F.R. § 745.84(b)(1) 

Level 4b 

4-Renovation in Common Area: Failure to prepare, sign, and date a statement describing the steps 

performed to notify all occupants of the intended renovation activities and to provide the pamphlet, 

pursuant to 40 C.F.R. §745.84(b)(3) 

Level 5b 

5-Renovation in Common Area: Failure to notify, in writing, the owners and occupants if the scope, 

locations or expected starting and ending dates of the planned renovation activities change after the 

initial notification, before the renovator initiates work beyond that which was described in the 

original notice, pursuant to 40 C.F.R. § 745.84(b)(4) 

Level 4b 

6-Renovation in Child-Occupied Facility: Failure to obtain, from the owner of the building, a written 

acknowledgment that the owner has received the pamphlet, or failure to obtain a certificate of 

mailing at least 7 days prior to the renovation, pursuant to 40 C.F.R. §745.84(c)(1)(i) 

Level 4b 

7-Renovation in Child-Occupied Facility: Failure to obtain from an adult representative of the childoccupied facility, if the operator of the child-occupied facility is not the owner of the building, a 

written acknowledgment that the operator has received the pamphlet, or failure to obtain a certificate

of mailing at least 7 days prior to the renovation, pursuant to 40 C.F.R. § 745.84(c)(1)(ii) 

Level 4b 

8-Renovation in Child-Occupied Facility: Failure to prepare, sign and date a statement describing 

the steps performed to notify all parents and guardians of the intended renovation activities and to 

provide the pamphlet pursuant to 40 C.F.R. §745.84(c)(3) 

Level 5b 

9-All Renovations: Failure to include a statement recording the owner or occupant’s name and 

acknowledging receipt of the pamphlet prior to the start of the renovation, the address of the unit 

undergoing renovation, the signature of the owner or occupant as applicable, and the date of 

signature, pursuant to 40 C.F.R. § 745.84(d)(1) 

Level 5b 

10-All Renovations: Failure to provide the written acknowledgment of receipt on either a separate 

sheet or as part of any written contract or service agreement for the renovation, and be written in the 

same language as the text of the contract or agreement or lease or pamphlet, pursuant to 40 C.F.R. § 

745.84(d)(2) and (3) 

Record Retention Requirements 

Level 6a 

1-All Renovations: Failure to retain all records necessary to demonstrate compliance with the 

residential property renovation for a period of 3 years following completion of the renovation 

activities pursuant to 40 C.F.R. § 745.86 

Level 6a 

2-All Renovations: Failure of a training program to maintain and make available to EPA upon 

request, records for a period of 3 years and 6 months, pursuant to 40 C.F.R. § 745.225 (i) 
Appendix A Violations and Circumstance Levels

A-3

Circumstance Level Rule Violation 

Level 6a 

3-Target Housing and Child-occupied Facilities: Failure or refusal to establish, maintain, provide, 

copy, or permit access to records or reports as required by §§745.225, 745.226, or 745.227, pursuant 

to 40 C.F.R. § 745.235 (b) 

Renovation Firm and Individual Renovator Certification Requirements 

Level 3a31

1-All Renovations: Failure of a firm that performs, offers or claims to perform renovations or dust 

sampling for compensation to obtain initial certification from EPA, under to 40 C.F.R. §745.89(a) 

pursuant to 40 CFR § 745.81(a)(2)(ii) 

Level 5a 

2-All Renovations: Failure of an EPA-certified firm to stop renovations or dust sampling if it does 

not obtain recertification under 40 CFR § 745.89(a), pursuant to 40 C.F.R. §745.89(b)(1)(iii) 

Level 5a 

3-All Renovations: Failure of an EPA-certified firm to amend its certification within 90 days of the 

date a change occurs to information included in the firm's most recent applications, pursuant to 40 

C.F.R. §745.89(b). Failure of a firm to halt renovations or dust sampling until its certification is 

amended, pursuant to 40 C.F.R. §745.89(c) 

Level 1a 

4-All Renovations: Failure of a firm to carry out all their responsibilities during a renovation, under 

40 C.F.R. §745.89(d), pursuant to 40 C.F.R. §745.81(a)(2) 

Level 3a 

5-All Renovations: Failure of a renovator or dust sampling technician, performing renovator or dust 

sampling responsibilities under 40 C.F.R. § 745.90(b) or (c) to obtain a course completion certificate

(proof of certification) under 40 CFR § 745.90(a) ), pursuant to 40 C.F.R. §745.81(a)(3) 

Level 4a 

5-All Renovations: Failure of a renovator or dust sampling technician, performing renovator or dust 

sampling responsibilities under 40 C.F.R. § 745.90(b) or (c) to maintain copies of their course 

completion certificate(s) (proof of certification) at the work site pursuant to 40 CFR § 745.90(b)(7) 

Level 1a 

6-All Renovations: Failure of an individual to perform responsibilities for ensuring compliance with 

40 C.F.R. §745.85 at all renovations to which they are assigned, pursuant to 40 C.F.R. § 745.90(b) or 

(c) 

Level 1a 

7-All Renovations: Failure of a dust sampling technician to perform optional dust clearance 

sampling under §745.85(c), pursuant to 40 C.F.R. § 745.90(c) 

Level 5a 

8-Target Housing and Child-occupied Facilities: Failure of an EPA-certified individual to stop 

directing renovations if he or she does not obtain recertification under 40 CFR § 745.90(a)(4), 

pursuant to 40 C.F.R. §745.81(a)(3) 

Level 5a 

9-Target Housing and Child-occupied Facilities: Failure of an EPA-certified individual to stop 

renovations or dust sampling if he or she does not obtain recertification under 40 CFR § 745.90(a)(4),

pursuant to 40 C.F.R. §745.81(a)(4) 

 

 

31 For a self-employed renovator or very small firm (<4 employees), the “Extent” category is usually “minor” for 

“offering to perform” renovations. For larger firms, such as those acting as general contractors, the “Extent” 

category is usually “major” because the potential impact is greater in the number and size of renovations. 
Appendix A Violations and Circumstance Levels

A-4

Circumstance Level Rule Violation 

 

 

 

Work Practice Standards for Conducting Lead-Based Paint Activities: Target Housing and Child-Occupied Facilities 

Level 1a 

1-Target Housing and Child-occupied Facilities: Failure to perform all lead-based paint activities 

pursuant to the work practice standards, appropriate requirements, methodologies and clearance 

levels specified and referenced, pursuant to 40 C.F.R. §745.227(a)(1) 

Level 2a 

2- Target Housing and Child-occupied Facilities: Failure to ensure that a lead-based paint activity 

described by the certified individual as an inspection, lead-hazard screen, risk assessment or 

abatement, is performed by a certified individual in compliance with the appropriate requirements, 

pursuant to 40 C.F.R. §745.227(a)(2) 

Level 2a 

3-Target Housing and Child-occupied Facilities: Failure to ensure that an inspection is conducted

only by a person certified by EPA as an inspector or risk assessor and, if conducted, must be 

conducted according to the prescribed procedures, pursuant to 40 C.F.R. §745.227(b)(1) 

Level 1a 

4-Target Housing and Child-occupied Facilities: Failure in an inspection to select locations 

according to documented methodologies to be tested for the presence of lead-based paint, pursuant to 

40 C.F.R. §745.227(b)(2) 

Level 3a 

5-Target Housing and Child-occupied Facilities: Failure to test for lead-based paint each interior 

and/or exterior component with a distinct painting history in a residential dwelling and/or childoccupied facility, pursuant to 40 C.F.R. §745.227(b)(2)(i) 

Level 3a 

6-Target Housing and Child-occupied Facilities: Failure to test for lead-based paint each interior 

and/or exterior component with a distinct painting history in a multi-family dwelling, pursuant to 40 

C.F.R. §745.227(b)(2)(ii) 

Level 5a 

7-Target Housing and Child-occupied Facilities: Failure to ensure that paint sampled for analysis to 

determine the presence of lead was conducted using documented methodologies which incorporate 

adequate quality control procedures, pursuant to 40 C.F.R. §745.227(b)(3)(i) 
Appendix A Violations and Circumstance Levels

A-5

Circumstance Level Rule Violation 

Level 3a 

8- Target Housing and Child-occupied Facilities: Failure to ensure that all collected paint chip 

samples were analyzed according to 40 C.F.R. §745.227(f) to determine if they contain detectable 

levels of lead that can be quantified numerically, pursuant to 40 C.F.R. §745.227(b)(3)(ii) 

Level 3a 

9- Target Housing and Child-occupied Facilities: Failure of an inspector or risk assessor to prepare 

an inspection report that includes the required information, pursuant to 40 C.F.R. §745.227(b)(4) 

Level 2a 

10-Target Housing and Child-occupied Facilities: Failure to ensure that a lead hazard screen is 

conducted only by a person certified by EPA as a risk assessor, pursuant to 40 C.F.R. §745.227(c)(1) 

Level 3a 

11- Target Housing and Child-occupied Facilities: Failure to ensure that a lead hazard screen 

includes the collection of background information regarding the physical characteristics of the 

residential dwelling or child-occupied facility and occupant use patterns that may cause lead-based 

paint exposure to one or more children age 6 years and under, pursuant to 40 C.F.R. 

§745.227(c)(2)(i) 

Level 3a 

12-Target Housing and Child-occupied Facilities: Failure to ensure that a lead hazard screen 

includes a visual inspection to determine the presence of deteriorated paint, pursuant to 40 C.F.R. 

§745.227(c)(2)(ii)(A) 

Level 3a 

13-Target Housing and Child-occupied Facilities: Failure to ensure that a lead hazard screen 

includes a visual inspection to locate at least two dust samples performed according to the prescribed

methodologies, pursuant to 40 C.F.R. §745.227(c)(2)(ii)(B) 

Level 3a 

14- Target Housing and Child-occupied Facilities: Failure to ensure that a lead hazard screen 

includes the collection and analysis of dust samples according to the prescribed methodologies, 

pursuant to 40 C.F.R. §745.227(c)(3) 

Level 3 

15-Target Housing and Child-occupied Facilities: Failure to ensure that a lead hazard screen 

includes the collection and analysis of paint samples according to the prescribed methodologies, 

pursuant to 40 C.F.R. §745.227(c)(4) 

Level 3a 

16-Target Housing and Child-occupied Facilities: Failure of a risk assessor to prepare a lead hazard 

screen report that includes the required information, pursuant to 40 C.F.R. §745.227(c)(5) 

Level 3a 

17-Target Housing and Child-occupied Facilities: Failure to ensure that a risk assessment is 

conducted only by a person certified by EPA as a risk assessor, pursuant to 40 C.F.R. §745.227(d)(1) 

Level 3a 

 8-Target Housing and Child-occupied Facilities: Failure to ensure that a risk assessment includes a 

visual inspection of the residential dwelling or child-occupied facility to locate the existence of 

deteriorated paint, assess the extent and causes of the deterioration, and other potential lead-based 

paint hazards, pursuant to 40 C.F.R. §745.227(d)(2)

Level 3a 

19-Target Housing and Child-occupied Facilities: Failure to ensure that a lead hazard screen 

includes the collection of background information regarding the physical characteristics of the 

residential dwelling or child-occupied facility and occupant use patterns that may cause lead-based 

paint exposure to one or more children age 6 years and under, pursuant to 40 C.F.R. §745.227(d)(3) 

Level 3a 

20-Target Housing and Child-occupied Facilities: Failure to test for the presence of lead on each 

surface determined to have a distinct painting history, pursuant to 40 C.F.R. §745.227(d)(4) 

Level 3a 

21-Residential Dwellings: Failure to collect and analyze for lead concentration dust samples (either 

composite or single-surface samples) from the interior window sill(s) and floor(s) in all living areas 

where one or more children, age 6 and under, are most likely to come into contact with dust, pursuant 

to 40 C.F.R. §745.227(d)(5) 

Level 3a 

22-Multi-family Dwellings and Child-occupied Facilities: Failure to collect and analyze interior 

window sill and floor dust samples (either composite or single-surface samples) for lead 

concentration from the prescribed locations, pursuant to 40 C.F.R. §745.227(d)(6) 

Level 3a 

23-Child-occupied Facilities: Failure to collect and analyze interior window sill and floor dust 

samples (either composite or single-surface samples) for lead concentration in each room, hallway or 

stairwell utilized by one or more children, age 6 and under, and in other common areas in the childoccupied facility pursuant to 40 C.F.R. §745.227(d)(7) 

Level 3a 

24-Target Housing and Child-occupied Facilities: Failure to collect and analyze soil samples for lead 

concentrations in the prescribed locations, pursuant to 40 C.F.R. §745.227(d)(8) 
Appendix A Violations and Circumstance Levels

A-6

Circumstance Level Rule Violation 

Level 3a 

25-Target Housing and Child-occupied Facilities: Failure to conduct all paint, dust, or soil sampling 

or testing using documented methodologies that incorporate adequate quality control procedures, 

pursuant to 40 C.F.R. §745.227(d)(9) 

Level 3a 

26-Target Housing and Child-occupied Facilities: Failure to analyze any collected paint chip, dust, 

or soil samples according to 40 C.F.R. §745.227(f) to determine if they contain detectable levels of 

lead that can be quantified numerically, pursuant to 40 C.F.R. §745.227(d)(10) 

Level 3a 

27-Target Housing and Child-occupied Facilities: Failure of risk assessor to prepare a risk 

assessment report that includes the required information, pursuant to 40 C.F.R. §745.227(d)(11) 

Level 1a 

 28-Target Housing and Child-occupied Facilities: Failure to ensure that an abatement is conducted 

only by a person certified by EPA, and, if conducted, is conducted according to the prescribed 

procedures, pursuant to 40 C.F.R. §745.227(e)(1) 

Level 3a 

29- Target Housing and Child-occupied Facilities: Failure of a supervisor to be onsite for each 

abatement project during all work site preparation, during the post-abatement cleanup of work areas, 

and to be onsite at other times during the abatement or available by telephone, pager or answering 

service and able to be present at the work site in no more than 2 hours, pursuant to 40 C.F.R. 

§745.227(e)(2) 

Level 3a 

30- Target Housing and Child-occupied Facilities: Failure of a supervisor and the certified firm 

employing that supervisor to ensure that all abatement activities are conducted according to the 

requirements of 40 C.F.R. §745.227(e) and all other Federal, State and local requirements, pursuant 

to 40 C.F.R. §745.227(e)(3) 

Level 3a 

31-Target Housing and Child-occupied Facilities: Failure of a renovation firm to notify EPA of 

lead-based paint abatement activities or to update notification as prescribed and by the designated 

deadline, pursuant to 40 C.F.R. §745.227(e)(4)(i-v)

Level 3a 

32-Target Housing and Child-occupied Facilities: Failure of a renovation firm to include the 

designated information in each notification, pursuant to 40 C.F.R. §745.227(e)(4)(vi) 

Level 2a 

33-Target Housing and Child-occupied Facilities: Failure by a certified firm to accomplish written 

or electronic notification via one of the prescribed methods, pursuant to 40 C.F.R. 

§745.227(e)(4)(vii) 

Level 4a 

34-Target Housing and Child-occupied Facilities: Failure of a renovation firm to begin lead-based

paint abatement activities on the date and at the location specified in either the original or updated

notification, pursuant to 40 C.F.R. §745.227(e)(4)(viii) 

Level 2a 

35-Target Housing and Child-occupied Facilities: Failure of a renovation firm or individual to 

notify EPA before engaging in lead-based paint abatement activities defined in 40 C.F.R. §745.223, 

pursuant to 40 C.F.R. §745.227(e)(4)(ix) 

Level 3a 

36-Target Housing and Child-occupied Facilities: Failure of a renovation firm or individual to 

develop a written occupant protection plan for all abatement projects and in accordance with the 

prescribed procedures, pursuant to 40 C.F.R. §745.227(e)(5) 

Level 2a 

37-Target Housing and Child-occupied Facilities: Failure to prohibit the use of open-flame burning 

or torching of lead-based paint during abatement activities pursuant to 40 C.F.R. §745.227(e)(6)(i) 

Level 2a 

38-Target Housing and Child-occupied Facilities: Failure to prohibit the use of machines that 

remove lead-based paint through sanding, grinding, abrasive blasting, or sandblasting, unless such 

machines are used with HEPA exhaust control which removes particles of 0.3 microns or larger 

from the air at 99.97 percent or greater efficiency, pursuant to 40 C.F.R. §745.227(e)(6)(ii) 

Level 2a 

39-Target Housing and Child-occupied Facilities: Failure to prohibit the dry scraping of lead-based

paint unless it is used in conjunction with heat guns or around electrical outlets or when treating 

defective paint spots totaling no more than 6 square feet in any one room, hallway, or stairwell or 

totaling no more than 20 square feet on exterior surfaces, pursuant to 40 C.F.R. §745.227(e)(6)(iii) 

Level 2a 

40-Target Housing and Child-occupied Facilities: Failure to restrict the operating of a heat gun on

lead-based paint at temperatures below 1100 degrees Fahrenheit, pursuant to 40 C.F.R. 

§745.227(e)(6)(iv) 

Level 3a 

41-Target Housing and Child-occupied Facilities: Failure to conduct soil abatement, when 

necessary, according to the prescribed methods, pursuant to 40 C.F.R. §745.227(e)(7) 
Appendix A Violations and Circumstance Levels

A-7

Circumstance Level Rule Violation 

Level 3a 

42-Target Housing and Child-occupied Facilities: Failure to have a certified inspector or risk 

assessor perform the post-abatement clearance procedures, pursuant to 40 C.F.R. §745.227(e)(8) 

Level 3a 

43-Target Housing and Child-occupied Facilities: Failure by an inspector or risk assessor to perform 

a visual inspection after abatement to determine if deteriorated painted surfaces and/or visible 

amounts of dust, debris or residue are still present and to remove any hazards that still remain, 

pursuant to 40 C.F.R. §745.227(e)(8)(i) 

Level 4a 

44-Target Housing and Child-occupied Facilities: Failure to wait until the required visual inspection 

and any necessary post-abatement cleanups are completed before performing clearance sampling for 

lead in dust, pursuant to 40 C.F.R. §745.227(e)(8)(ii) 

Level 1a 

45-Target Housing and Child-occupied Facilities: Failure to take dust samples for clearance 

purposes using documented methodologies that incorporate adequate quality control procedures, 

pursuant to 40 C.F.R. §745.227(e)(8)(iii) 

Level 4a 

46-Target Housing and Child-occupied Facilities: Failure to wait a minimum of 1 hour after 

completion of final post-abatement cleanup activities to collect dust samples for clearance purposes, 

pursuant to 40 C.F.R. §745.227(e)(8)(iv) 

Level 4a 

47-Target Housing and Child-occupied Facilities: Failure to collect the required dust samples from 

the prescribed surfaces in the designated rooms after conducting an abatement with containment 

between abated and unabated areas, pursuant to 40 C.F.R. §745.227(e)(8)(v)(A) 

Level 4a 

48-Target Housing and Child-occupied Facilities: Failure to collect the required dust samples from 

the prescribed surfaces in the designated rooms after conducting an abatement with no containment, 

pursuant to 40 C.F.R. §745.227(e)(8)(v)(B) 

Level 4a 

49-Target Housing and Child-occupied Facilities: Failure to conduct a visual inspection and clean 

horizontal, outdoor surfaces of visible dust and debris, perform visual inspection for paint chips on 

the dripline and remove and properly dispose of any paint chips found following an exterior paint 

abatement, pursuant to 40 C.F.R. §745.227(e)(8)(v)(C) 

Level 4a 

50-Target Housing and Child-occupied Facilities: Failure to select the rooms, hallways or stairwells 

for sampling according to documented methodologies, pursuant to 40 C.F.R. §745.227(e)(8)(vi) 

Level 3a 

51-Target Housing and Child-occupied Facilities: Failure by an inspector or risk assessor to compare 

the residual lead level from dust samples with clearance levels to determine if level exceeds the 

applicable clearance level, pursuant to 40 C.F.R. §745.227(e)(8)(vii) 

Level 2a 

52-Target Housing and Child-occupied Facilities: Failure by an inspector or risk assessor to reclean 

and retest the surface of components that were determined to have failed clearance testing after 

abatement, pursuant to 40 C.F.R. §745.227(e)(8)(vii) 

Level 3a 

53-Target Housing and Child-occupied Facilities: Failure to use the standard clearance levels for 

lead in dust of 40 μg/ft2 for floors, 250 μg/ft2 for interior window sills, and 400 μg/ft2 for window 

troughs to determine if a level in a sample exceeds the applicable clearance level, pursuant to 40 

C.F.R. §745.227(e)(8)(viii) 

Level 4a 

54-Target Housing and Child-occupied Facilities: Failure to perform random sampling in a multifamily dwelling with similarly constructed and maintained residential dwellings according to the 

prescribed methods, pursuant to 40 C.F.R. §745.227(e)(9) 

Level 4a 

55-Target Housing and Child-occupied Facilities: Failure by a supervisor or project designer to 

prepare an abatement report that includes the required information, pursuant to 40 C.F.R. 

§745.227(e)(10) 

Level 3a 

56-Target Housing and Child-occupied Facilities: Failure to ensure that all paint chip, dust, or soil 

samples obtained are collected by a certified risk assessor or paint inspector and analyzed by an EPArecognized laboratory, pursuant to 40 C.F.R. §745.227(f) 

Level 5a 

57-Target Housing and Child-occupied Facilities: Failure to limit composite dust sampling to only 

those situations specified, pursuant to 40 C.F.R. §745.227(g) 

Level 3a 

58-Target Housing and Child-occupied Facilities: Failure to make a determination on the presence of 

lead-based paint, pursuant to 40 C.F.R. §745.227(h)

Level 1a 

59-Target Housing and Child-occupied Facilities: Failure of a firm that performs, offers or claims to 

perform renovations or dust sampling for compensation to obtain initial certification from EPA, 

under to 40 C.F.R. §745.226 pursuant to 40 CFR § 745.233 
Appendix A Violations and Circumstance Levels

A-8

Circumstance Level Rule Violation 

Lead-Based Paint Risk Assessments 

Level 2a 

1-Failure of a person performing a risk assessment to be certified by EPA as a risk assessor, pursuant

to 40 C.F.R. §745.227(d)(1) 

Level 2a 

2-Failure to conduct visual inspection for risk assessment or child-occupied facility to locate 

existence of deteriorated paint, assess extent and causes of deterioration, and other potential leadbased paint hazards, pursuant to 40 C.F.R. §745.227(d)(2) 
Appendix B Gravity-Based Penalty Matrices

B-1
Appendix B Gravity-Based Penalty Matrices

B-2

Extent 

MAJOR SIGNIFICANT MINOR 

Target Housing: one or more occupants under 

age 6 and/or pregnant woman

one or more occupants 

between ages of 6 and 17

no occupants under age 

18 

Child-Occupied Facilities:

one or more occupants under 

age 6 (by definition, a childoccupied facility is regularly 

visited by one or more 

children under 6)

renovation activities were 

completed during a period 

when children did not 

access the facility (e.g., as 

summer vacation) and 

there is no continuity of 

enrollment (i.e., the same 

children are not returning 

after the break).31

HIGH

Level 1a $ Max = 5,000 $ 0.68 of max =3400 $ 0.2 of max =1000

Level 1b $ 

Level 2a $ 0.8 of max = 4,000 $ 2720 $ 800

Level 2b $ 

MEDIUM

Level 3a $ 0.6 of max = 3,000 $ 2040 $ 600

Level 3b $ 

Level 4a $ 0.4 of max = 2,000 $ 1360 $ 400

Level 4b $ 

LOW

Level 5a $ 0.2 of max = 1000 $ 680 $ 200

Level 5b $ 

Level 6a $ 0.08 of max = 400 $ 270 $ 80

Level 6b $ 

 

31 In a situation where there is “no continuity of enrollment,” there are no children’s parents to whom information 

can be provided; therefore, information must only be provided to the owner and operator of the child-occupied 

facility. 
Appendix C Internet References for Policy Documents

C-1

The EPA website for information on the TSCA 406(b) Pre-Renovation Education Rule is: 

http://www.epa.gov/lead/pubs/leadrenf.htm

The EPA website also maintains copies of applicable policies and other useful information: 

EPA Home Page: http://www.epa.gov

Compliance and Enforcement Home Page: http://www.epa.gov/compliance/

TSCA Enforcement Policy and Guidance Documents: 

http://cfpub.epa.gov/compliance/resources/policies/civil/tsca/

Treatment of Lead-based Paint Abatement Work as a Supplemental Environmental Project in 

Administrative Settlements (Jan 2004): 

http://www.epa.gov/compliance/resources/policies/civil/seps/leadbasedabatement-sep012204.pdf

Audit Policy: http://www.epa.gov/compliance/incentives/auditing/auditpolicy.html

Small Business Policy: 

http://www.epa.gov/compliance/incentives/smallbusiness/index.html

Redelegation of Authority: 

 http://www.epa.gov/compliance/resources/policies/civil/rcra/hqregenfcases-mem.pdf 

HUD Technical Guidelines for the Evaluation and Control of Lead Based Paint Hazards in 

Housing: http://www.hud.gov/offices/lead/lbp/hudguidelines/index.cfm

Documenting Penalty Calculations and Justifications of EPA Enforcement Actions, (Aug 1990): 

 http://www.epa.gov/compliance/resources/policies/civil/rcra/caljus-strock-mem.pdf

Reference documents to determine Bois Forte penalty policies 
D-1