# 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 Departmentii

## Table of Contents

1

Section 1: Introduction, Overview and Background

Introduction ....................................

................................................... .................................2

Overview ........................................

................................................... .............................2 Background ......................................

................................................... ...............................3

Section 2: Determining the Level of Enforcement Res ponse 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 For te 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 To xic Substances Control Act (TSCA) which gives Bois Forte the authority to address lead-base d paint (LBP) and LBP hazards in target housing, and other buildings and structures. The g oal of this consolidated Enforcement Response and Penalty Policy (ERPP) is to provide fa ir and equitable treatment of the regulated community, predictable enforcement responses, and c omparable penalty assessments for comparable violations, with flexibility to allow fo r individual facts and circumstances of a particular case. The Renovation, Repair, and Paint ing Rule (RRP Rule), 1 Pre-Renovation Education Rule (PRE Rule), 2 and Lead-Based Paint Activities, Certification, an d Training Rule (LBP Activities Rule) 3 were each promulgated under the authority of the B ois Forte Tribal

Government and are addressed in this ERPP.

This guidance applies only to violations of Bois F orte’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 an d 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 th is 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 regulato ry 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 r equirements of the PRE, RRP and LBP Activities Rules. The forth section, the appendice s, 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). Se ction 1021 of Title X amended the Toxic Substances Control Act to add Title IV, entit led “Lead Exposure Reduction.”

Pursuant to Section 406(b) of TSCA, EPA promulgate d regulations at 40 C.F.R. Part 745, Subpart E, residential property renovations, requir ing, 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 prio r to commencing the renovation.

Pursuant to Section 402(a) of TSCA, EPA promulgate d 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 l ead-based paint activities, work practice standards for performing such activities, and deleg ation of programs.

Pursuant to Section 402(c)(3) of TSCA, EPA promulg ated regulations amending at 40 C.F.R. Part 745, Subparts E and L, residential prop erty renovations, prescribing procedures and requirements for the accreditation of training prog rams, 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 (Su bpart 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 s pecific guidance in the assessment, inspection, pre-renovation notification and abateme nt of lead based paint activities on the Bois Forte Reservation. Penalties for non compliance ar e 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 renovatio ns, requiring, among other things, persons who perform for compensation a renovation of pre-19 78 housing (“target housing”) to provide a lead hazard information pamphlet to the owner and o ccupant 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, repa ir 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 a nd firms engaged in lead-based paint activities, work practice standards for performing such activit ies.

This ordinance is designed to be at least as prot ective as the federal law and provide for adequate enforcement of all provisions through a sc hedule of flexible remedies.

## Section 2: Assessing Civil Administrative Penaltie s

5

The failure or refusal to comply with any requirem ent of the Bois Forte Authorized Program for the PRE, RRP, or LBP Activities Rules s hall be an unlawful act under Bois Forte Resolution 141-2005 and penalties can be assessed t o 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 t he violation. Bois Forte can respond with a range of enforcement response with the following re sponses:

• Tribal Court Complaint

• Notices of Noncompliance

• Warning Letter(s)



## I. Tribal Court Complaints

A tribal court complaint is the appropriate respon se to violations of the PRE, RRP, and LBP Activities Rules or failure to comply with a No tice of Noncompliance. Violators may be subject to civil administrative action including th e assessment of civil penalties, with or without conditions. Civil penalties are to be assessed by B ois Forte by an order made on the record, after the violator is given a written notice and opportun ity 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 pe nalty that has been calculated pursuant to this policy. Alternatively, the compla int may specify the number of violations for which a penalty is sought, a brief explanation of t he severity of each violation alleged, and a recitation of the statutory penalty authority appli cable 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 enf orceable agreement and the assessment of a penalty or a decision rendered by the Tribal C ourt. 4 Before an administrative penalty order becomes final, the Natural Resources Commissioner m ust provide each Respondent with notice and an opportunity for a formal hearing, on the rec ord.



## II. Notices of Noncompliance

4 Bois Forte may, at its discretion, issue a press r elease or advisory to notify the public of the fili ng of an enforcement action, settlement, or adjudication con cerning a person’s violation of TSCA. A press rele ase 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 o f a press release or advisory as well as the nature of their contents are within the sole discretion of the Agen cy 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 Penaltie s

6

On a case-by-case basis, Bois Forte may determine t hat the issuance of a notice of noncompliance (NON), 5 rather than a tribal court complaint is the most a ppropriate 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 pro bability of re-occurrence 7 and low potential for harm; or

ii. When a violator is in substantial compliance with t he requirement as the specific facts and circumstances support.

A NON should, when necessary:

i. Require corrective action by a specified date to re turn the violator to full compliance and resolve the violation(s);

ii. Specify the type and nature of the corrective actio n 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 furth er action is not necessary to resolve the violation(s) and prevent recurrence; an d

iv. Be placed in the violator’s inspection, case develo pment 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 the re is no opportunity to respond to the notice on th e record.

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

7 For example, if the same violation occurred on sev eral occasions (e.g., a renovation firm failed to c omply with the PRE Rule at 3 separate renovations including 3 unit s 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 Penaltie s

7

Bois Forte will enter into a Memorandum of Understa nding (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, circ umstances, extent, and gravity of the violation or violations and, with re spect 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 t he Toxic Substances Control Act; PCB Penalty Policy” 9 which describes in greater detail the “civil penal ty system” under TSCA. The purpose of this system is to ensure that civil pena lties are assessed in a fair, uniform and consistent manner; that the penalties are appropria te for the violation committed; that economic incentives for violating TSCA are eliminated and th e 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 penalt y factors that TSCA requires the Administrator to consider in assessing a civil pena lty. 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 d escribed in the 1980 “Guidelines” for applying the TSCA statutory penalty factors to viol ations in civil administrative enforcement

cases. 10

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

1. Determine the number of independently assessable vi olations.

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

9 See, Appendix C, TSCA Enforcement Policy and Guida nce 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 t he proper civil penalty should be if a decision is made that a civil penalty is the proper enforcement remedy. Th e Guidelines do not discuss whether the assessment of a civil penalty is the correct enforcement response to a sp ecific violation.

10 EPA will not apply civil administrative penalty po licies in civil judicial context, but rather will a pply statutory

factors.

## Section 2: Assessing Civil Administrative Penaltie s

8

2. Determine the economic benefit. 11 One component of the total penalty is the estimat ed 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 calculati ng economic benefit are discussed in Item III “Economic Benefit of Noncompliance” and It em V “Ability to Pay/Continue in Business,” of this Section. 12

3. Determine the gravity-based penalty. The other com ponent of the total penalty is the gravity-based penalty. Under the TSCA Civil Penalt y Guidelines, gravity-based penalties are determined in two stages:

a. The first stage is the determination of a gravity-b ased penalty (GBP) (gravity refers to the overall seriousness of the v iolation). To determine the gravity-based penalty, the followi ng 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 vio lation.

These factors are incorporated into the penalty mat rices 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 ma trices in Appendix B have been increased pursuant to the Debt Collection Improveme nt Act of 1996, which requires federal agencies to periodically adjust the statutory maxim um penalties to account for inflation. EPA has thus increased, and Bois Forte adopts in this E RPP, the maximum penalty amounts for TSCA violations to $5,000.00. Additional penalty inflat ion increases occur periodically and are incorporated by reference into this ERPP.

b. The second stage involves adjusting the gravity-bas ed penalty upward or downward. Adjustments to the penalty amount are ma de by considering several factors including the following:

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

ii. The violator’s history of prior violations;

iii. The violator’s degree of culpability; and

11 Determining economic benefit is not specifically r equired 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 docum ent for any requirement for consultation or concurr ence.

## Section 2: Assessing Civil Administrative Penaltie s

9 iv. Such other matters as justice may require.

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



## II. Independently Assessable Violations

A separate civil penalty, up to the statutory maxi mum, can be assessed for each independent violation of TSCA. A violation is cons idered 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 proo f is different from any other violation.

Each requirement of the PRE, RRP, and LBP Activitie s Rules is a separate and distinct requirement and a failure to comply with any requir ement is a violation of the PRE, RRP, or

LBP Activities Rules. To determine whether a viola tion of the PRE, RRP, or LBP Activities Rules has occurred, the applicable requirements mus t be reviewed to determine which regulatory provisions have been violated.

Examples of the pre-renovation education requiremen ts:

• Deliver pamphlet to the owner and adult occupant be fore 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 a cknowledgement 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 Rul es.

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

After identifying each applicable regulatory requir ement, 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 Penaltie s

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1. A renovator contracts with a homeowner for renovati on activities within the homeowner’s one owner-occupied unit. Even if sever al renovation activities were conducted at that location, the activity is conside red one renovation for purposes of determining whether violations of the PRE Rule occu rred, since only one person

needs to be notified – the homeowner.

2. A renovator contracted with an owner of a multi-uni t 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 ch ildren under the age of 6 at a childoccupied facility undergoing renovation and the ren ovator fails to notify the parents/guardians of all 3 children, the total numb er of violations for failure to provide the pamphlet is 3.

Similar calculations can be performed for applicabl e requirements for other parts of the PRE, RRP, and LBP Activities Rules to determine whi ch regulatory provisions have been violated. A detailed list of some, but not all, po tential 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 c ontractor, training firm, or any other entity that has violated the PRE, RRP, or LBP Activ ities Rule(s) and Section 409 of TSCA should not profit from their actions.

The Bois Forte’s Policy on Civil Penalties, mandate s the recapture of any significant economic benefit (EBN) that accrues to a violator f rom noncompliance with the law. Economic benefit can result from a violator delaying or avoi ding compliance costs or when a violator otherwise realizes illegal profits through its nonc ompliance. A fundamental premise of the 1984 Policy is that economic incentives for noncomplianc e 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 th e 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 “sign ificant” economic benefit to the violator. “Significant” is defined as an economic benefit tha t totals more than $50 per room renovated per

## Section 2: Assessing Civil Administrative Penaltie s

11

renovation project 13 for all applicable violations alleged in the compl aint. In the interest of simplifying and expediting an enforcement action, e nforcement professionals may use the “rules of thumb” (discussed in Section 3. IV. b., below) t o 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 o n Civil Penalties explicitly sets out three general areas where settling for less than the econ omic 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 particula r case as a whole, that Bois Forte will be able to recover the economic benefit in litigati on; 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 defe rred by the violator’s failure to comply with the requirements. The violator eventually wil l spend the money to achieve compliance. Delayed costs are either capital costs (i.e., equip ment), if any, or one-time non-depreciable costs (e.g., certification fees for renovation firms, tuition fe es 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 im plementing engineering controls for dust or using banned practices for LBP removal. Those cost s were never and will never be incurred.

b. Calculation of Economic Benefit from Delayed and Av oided Costs

Since 1984, it has been Agency policy to use eithe r the BEN computer model or “rules of thumb” to calculate the economic benefit of noncomp liance. The “rules of thumb” are straight-

13 Alternatively, cost information can be derived fro m the Economic Analysis for the TSCA Lead Renovation, Rep air 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, f or a discussion of ability to pay/continue in busin ess.

## Section 2: Assessing Civil Administrative Penaltie s

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 Appr oaches to Penalty Assessments," issued on February 16, 1984, at pages 7-9. Enforcement profe ssionals may use the “rules of thumb” whenever the economic benefit penalty is not substa ntial (generally under $50 per room renovated per renovation project) and use of an exp ert financial witness may not be warranted. If the “rules of thumb” yield an amount over $50 pe r room renovated per renovation project, the case developer should use the BEN model and/or an e xpert 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 ann ual costs, the “rule of thumb” is the annual expenses avoided until the date compliance is achie ved less any tax savings. These rules of thumb do not apply to avoided one-time or avoided c apital costs. Enforcement professionals

should calculate the economic benefit of avoided on e-time and avoided capital costs, if any, by using the BEN model.

The primary purpose of the BEN model is to calcula te economic savings for settlement purposes. The model can perform a calculation of e conomic 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 Litigati on 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 h ow to: use BEN, understand the data needed, and understand the model’s outputs.

The economic benefit component should be calculate d 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 T SCA and thereby gained an economic benefit.

Such evidence should be considered in the assessmen t 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 f or 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 th e 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 B ois Forte conducted compliance monitoring for only one year should be based on a consideratio n of the economic benefit gained for the entire period of the renovation, but the total pena lty is limited to the statutory maximum for the specific violations alleged and proven. In most cases, the violator will have the funds ga ined through non-compliance available for its continued use or competitive advantage unti l it pays the penalty. Therefore, for cases in

## Section 2: Assessing Civil Administrative Penaltie s

13

which economic benefit is calculated by using BEN o r by a financial expert, the economic benefit should be calculated through the anticipate d date a consent agreement would be entered. If the matter goes to hearing, this calculation sho uld be based on a penalty payment date corresponding with the relevant hearing date. It s hould be noted that the respondent will

continue to accrue additional economic benefits aft er 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 e conomic 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, im paired hearing, reduced attention span, hyperactivity and behavior problems. In severe cas es 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 e xposures and controlling exposures to lead is the focus of the PRE, RRP, and LBP Activates Rul es. The nature and circumstance of a

violation of these rules and the extent to which th e violation poses a potential for harm are incorporated into the matrices that specify the app ropriate gravity-based penalty for that specific

or similar violations.



## Nature

The TSCA Civil Penalty Guidelines define the natur e of a violation as the essential character of the violation, and incorporates the co ncept 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 requirem ents are best characterized as “chemical control” in nature because they are aimed at limiti ng exposure and risk presented by lead-based paint by controlling how lead-based paint is handle d by renovators and abatement contractors. In contrast, the requirements of the PRE Rule are b est 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 f acilities, and parents and/or guardians of children under the age of 6 in child-occupied facil ities, 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 activit y. 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 Append ix B.

## Section 2: Assessing Civil Administrative Penaltie s

14



## Circumstance

The term “circumstance” represents the probability of harm resulting from a particular type of violation. The PRE, RRP, and LBP Activitie s Rules constitute a comprehensive leadbased paint regulatory program. The PRE Rule requi rements provide a warning of dangers from lead associated with pending renovations or abateme nts. The RRP Rule and LBP Activities Rule requirements provide for engineering controls to li mit exposures to lead during renovation and abatements and the cleanup procedures to reduce exp osures to lead following renovations and abatements. Post-cleanup sampling provides for ver ification of the effectiveness of the engineering controls and cleanup procedures by test ing for residual exposures, if any, to lead.

Therefore, the greater the deviation from the regul ations, the greater the likelihood that people will be uninformed about the hazards associa ted with lead-based paint and any renovations, that exposures will be inadequately co ntrolled during renovations, or that residual hazards and exposures will persist after the renova tion/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 s ix 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 Rul es. These requirements are associated with lack of knowledge of lead-based paint and lead-base d paint hazards, increased exposure to lead or lead hazards, and verification of lead or lead h azard reduction after the actual renovation/abatement work is completed. For exampl e:

1. For a PRE Rule violation, the harm is associated wi th the failure to provide information on LBP hazards prior to renovations (a “hazard asse ssment” 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 notif ication process, the factors associated with the risk to their health from the planned reno vation, 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 durin g 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 probabilit y of impacting human health and the

environment.

## Section 2: Assessing Civil Administrative Penaltie s

15

Levels 3 and 4: Violations having a medium probabil ity 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 “e xtent” categories: Major

, Significant, and

Minor . In the context of the PRE, RRP, and LBP Activiti es 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 childhoo d lead poisoning). For example, the potential for harm due to the failure of the renovator to pro vide the Renovate Right pamphlet could be considered “Major” if risk factors are high for exp osure. In the example of an RRP violation of the technical workplace standards, the harm is asso ciated with the failure to control exposures to lead during a renovation. Therefore, the primary c onsideration for determining the extent of harm to be considered is whether the specific viola tion could have a serious or significant or minor impact on human health, with the greatest con cern 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 co mponent 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 i dentify individuals at worksites who must perform key renovation activities under the RRP Rul e. This allows inspectors to efficiently identify those individuals excluded from regulated renovation activities that require certified

renovators and to document that each renovation fir m 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 healt h or the environment.

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

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

Under these categories, the appropriate extent cat egory for failure or refusal to comply with the provisions of the Rules is based upon 3 de terminable facts:

• The age of any children who occupy target housing;

• Whether a pregnant woman occupies target housing; a nd

## Section 2: Assessing Civil Administrative Penaltie s

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 th e time the violation occurred or at the time the renovation occurred. However, any individual can b e adversely affected by exposure to lead. Children under the age of 6 are most likely to be a dversely affected by the presence of leadbased paint and/or lead-based paint hazards based o n 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 pena lty, 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 y oungest 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 th an eighteen were residing in the target housing at the time of the violation, then a Minor extent f actor 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 vio lation occurred, then a Major extent should

be used.

Child-occupied facilities: Child-occupied facilities are, by definition, reg ularly visited by the same child(ren) under the age of 6. Bois Fo rte will generally consider failures by renovation/abatement firms to notify parents or gua rdians of children under 6 as Major in extent. Where a respondent demonstrates to Bois Forte’s sat isfaction that no children under 6 visited the facility during the renovation ( i.e., from the beginning of the renovation through the f inal cleaning verification), such as during an elementar y 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 busine ss; and

## Section 2: Assessing Civil Administrative Penaltie s

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, whil e downward adjustments 16 generally should not be made until after the proposed penalty has be en 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 th e 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 viola tor’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 p enalty, which may be adjusted upward or downward by up to 25% for this factor. In assessin g 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 regulatio ns) of the violator in dealing with compliance issues; and

• Extent to which the violator knew, or should have k nown, of the legal requirement that was violated. (For example, was the violator previ ously 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 offi ce?)



## 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 gravit y-based penalty matrices are designed to apply

to “first offenders.” Where a violator has demonst rated a similar history of “such violations” the Act requires the penalty to be adjusted upward by a s much as 25% under the Guidelines for Assessment of Civil Penalties under Section 16 of T SCA . The need for such an upward adjustment is usually justified because the violato r has not been sufficiently motivated to comply

15 See, 15 U.S.C. § 2615(a)(2)(B). Under unusual cir cumstances 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 docum ent for any requirement for consultation or concurr ence.

## Section 2: Assessing Civil Administrative Penaltie s

18

with the PRE, RRP, or LBP Activities Rules by the p enalty assessed for the previous violation(s).

For the purpose of this policy, Bois Forte interp rets “prior such violations” to mean any prior violation(s) of the PRE, RRP, or LBP Activiti es 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 judgm ent (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 vio lation occurred. Receipt of payment made to the U.S. Treasury can be used as ev idence constituting a prior violation, regardless of whether a respondent admit s 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 forma lly found and no opportunity to contest the notice is provided. In order to consti tute a prior violation, a prior

violation must have resulted in a final order. Vio lations litigated in Federal courts under the Act’s imminent hazard (§ 7), specific enf orcement 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 neces sarily 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 re view all underlying and supporting financial documents that elucidate relationships be tween entities to verify their accuracy. If the violator fails to provide the necessary info rmation, 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 possessi on.

• In the case of wholly-owned subsidiaries, the paren t 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 Penaltie s

19



## Ability to Pay/Continue in Business

Section 16(a)(2)(B) of TSCA requires that the viol ator’s ability to pay the proposed civil penalty be considered as a statutory factor in dete rmining the amount of the penalty. Absent proof to the contrary, Bois Forte can establish a r espondent’s ability to pay with circumstantial evidence relating to a company’s size and annual re venue. Once this is done, the burden is on the respondent to demonstrate an inability to pay a ll or a portion of the calculated civil penalty. 17

To determine the appropriateness of the proposed p enalty in relation to a person’s ability to pay, the case team should review publicly-availa ble information, such as Dun and Bradstreet reports, a company’s filings with the Securities an d 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 i s not publicly-available, relevant facts obtained concerning the number of renovation contra cts signed by a violator and the total revenues generated from such renovation contracts m ay offer insight regarding the violator’s ability to pay the penalty.

The Tribal Government will notify the respondent o f its right under the statute to have Bois Forte consider its ability to continue in busi ness in determining the amount of the penalty. Any respondent may raise the issue of ability to pa y/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 app ropriate documentation, such as tax returns and financial statements. The respondent should pr ovide records that conform to generally accepted accounting principles and procedures at it s 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 ru ling in In re: New Waterbury , LTD, 5 E.A.D. 529 (EAB 1994), in administrative enforcement actions for vi olations 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 appr opriateness of the penalty in light of all of the s tatutory factors. Accordingly, enforcement professionals should be pr epared to demonstrate that they considered the resp ondent’s ability to continue in business as well as the othe r statutory penalty factors and that their recommen ded penalty is supported by their analysis of those factors. Bois Forte may obtain information regarding a responde nt’s ability to continue in business from the respondent, independe nt commercial financial reports, or other credible sources.

## Section 2: Assessing Civil Administrative Penaltie s

20

• Statement of operations;

• Information on business and corporate structure;

• Retained earnings statements;

• Loan applications, financing agreements, security a greements;

• Annual and quarterly reports to shareholders and th e 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 b ased on the firm’s excess cash flow. ABEL looks at the money coming into the entity and the m oney 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 indivi dual is unable to pay the full penalty. These

include:

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

• Reduction in business expenses such as advertising, entertainment, or compensation of corporate officers;

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

• Related entities (e.g., the violator is a wholly ow ned subsidiary of Fortune 500 company).

A respondent may argue that it cannot afford to pa y the proposed penalty even though the penalty as adjusted does not exceed Bois Forte’s as sessment 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 th e calculated ability to pay.

18

## Section 2: Assessing Civil Administrative Penaltie s

21

Finally, Bois Forte will generally not collect a c ivil penalty that exceeds a violator’s ability to pay as evidenced by a detailed tax, acco unting, and financial analysis. 19 However, it is important that the regulated community not choose n oncompliance as a way of aiding financially troubled businesses. Therefore, Bois Forte reserve s 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 egregious 20 or the violator refuses to pay the penalty.

Size of Violator: Bois Forte estimated 21 that about 300 firms supply renovation services in and around the Bois Forte reservation area including 15 0 small residential remodeling firms that employ less than 4 people. An additional 1,000 peo ple are self-employed contractors covered under the RRP Rule, including 500 remodelers. Ther e 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 th e level of knowledge and awareness of the LBP rules shared by larger renovators with more emp loyees and more extensive involvement in the renovation industry. Therefore, this factor sh ould be considered when considering economic benefit from noncompliance, ability to pay/continue in business 22 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 bas is. 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. abov e, may be made prior to issuing a complaint or at any time thereafter.

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

19 See, TSCA Penalty Guidelines, 45 Fed. Reg. 59775, September 1, 1980. Each financial analysis of a re spondent’s ability to pay should assume an ability to pay at l east a small penalty to acknowledge and reinforce t he respondent’s obligations to comply with the regulatory requireme nts cited as violations in the tribal court complai nt.

20 An example of an egregious situation would be wher e a firm or individual renovator failed to follow a ny 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 woma n 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 respond ent’s obligation to comply.

## Section 2: Assessing Civil Administrative Penaltie s

22

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

information about the violations or initiates an in spection 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 th e 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 reducti on of the gravity-based penalty if all the criteria established in the audit policy are me t. 23 Reference must be made to that document to determine whether a regulated entity qu alifies for this penalty mitigation.

Small Business Policy : A business with fewer than 100 employees may be e ligible for a reduction of a gravity-based penalty under the EP A’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 e ntity qualifies for this penalty mitigation.

Voluntary Disclosures : If a firm or individual self-disclosures a violat ion of the PRE, RRP, or LBP Activities Rules but does not qualify f or consideration under either the Audit Policy or the Small Business Policy, the prop osed civil penalty amount may still be reduced for such voluntary disclosure. To encou rage voluntary disclosures of violations, EPA may make a reduction of up to 10% o f the gravity-based penalty. An additional reduction up to 10% (for a total reducti on 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 r esulting 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 crea ting an incentive for cooperative behavior during the compliance evaluati on and enforcement process, this adjustment factor further reinforces the concept that responde nts face a significant risk of higher penalties in litigation than in settlement. The attitude adjust ment 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 Penaltie s

23

• Bois Forte may reduce the adjusted proposed penalty up to 10% based on a respondent’s cooperation throughout the entire comp liance 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 vio lated 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 tea m believes justify a further reduction of the penalty. 26 For example, a case may have particular litigatio n 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 stre ngth 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 pena lty 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 Boi s Forte civil penalty matrices and gravity adjustment is inequitable; (2) how all other method s 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 re quirements.



## VI. Adjusting Proposed Penalties in Settlement

Certain circumstances may justify adjustment of th e 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 discussio ns.

1) Factual Changes

Bois Forte will recalculate the proposed penalty i f the respondent can demonstrate that

facts material to the initial calculation are diffe rent. For example:

26 See, Appendix C, TSCA Enforcement Policy and Guida nce Documents, Memorandum, Documenting Penalty Calculations and Justifications of EPA Enforcement Actions , James Strock, August 9, 1990.

27 See, Footnote 6. Please consult the current docum ent for any requirement for consultation or concurr ence.

## Section 2: Assessing Civil Administrative Penaltie s

24

• The owner of a property undergoing renovation/abate ment provides appropriate

documentation 28 that the portion of the property undergoing renova tion/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 demonstra ted to them to be LBP free.

In every case, the burden is on the respondent to r aise those new factors which may justify the recalculation, consistent with the new facts.

2) Remittance of Penalty

The statute authorizes the Tribe to compromise, m odify or remit, with or without condition, any civil penalty which may be imposed u nder this section. 29 The terms of the remittance and suspension or revocation must be inc orporated into a Compliance Agreement and

Final Order.

28 “Appropriate documentation” or “demonstration” suc h as reports of lead inspections conducted in accor dance

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 Lev els

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 th e 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 uni t (if not the owner)

with the EPA-approved lead hazard information pamph let 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 pamph let available upon request prior to the start of the renovation, or to post informational signs purs uant 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-app roved 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 th e childoccupied facility with the pamphlet, if the owner i s 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 com pletion 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 fre quenting the child-occupied facility, and accompanied by a posted copy of the pamphlet or inf ormation 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 th e work area and warning

occupants and other persons not involved in renovat ion 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 verific ation 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 lea d (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 A n 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 §1 5 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 Lev els

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 rec ords, or to make available such

records, pursuant to 40 C.F.R. §745.87(b), which st ates 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, pursu ant to 40 C.F.R. §745.225, § 745.226, and/or §745.227

Acknowledgment and Certification Statement Requirem ents

Level 4b 1-Renovation in Dwelling Unit : Failure to obtain, from the owner, a written ack nowledgment 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 wr itten

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 ack nowledgment that the owner has received the pamphlet, or that inform ation signs have been posted, pursuant to 40 C.F.R. § 745.84(b)(1)(i) or failure to obtain a ce rtificate 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 d escribing the steps

performed to notify all occupants of the intended r enovation 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 oc cupants if the scope,

locations or expected starting and ending dates of the planned renovation activities change after the initial notification, before the renovator initiate s 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 buildin g, a written

acknowledgment that the owner has received the pamp hlet, or failure to obtain a certificate of mailing at least 7 days prior to the renovation, pu rsuant 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 o f the childoccupied facility, if the operator of the child-occ upied facility is not the owner of the building, a written acknowledgment that the operator has receiv ed 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 de scribing

the steps performed to notify all parents and guard ians 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 own er 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 o r 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 th e same language as the text of the contract or agreem ent 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 demonstr ate compliance with the

residential property renovation for a period of 3 y ears 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 mak e available to EPA upon

request, records for a period of 3 years and 6 mont hs, pursuant to 40 C.F.R. § 745.225 (i)

## Appendix A Violations and Circumstance Lev els

A -3

Circumstance Level Rule Violation

Level 6a 3-Target Housing and Child-occupied Facilities: Failure or refusal to establish, maintain, provid e,

copy, or permit access to records or reports as req uired by §§745.225, 745.226, or 745.227, pursuant to 40 C.F.R. § 745.235 (b)

Renovation Firm and Individual Renovator Certificat ion Requirements

Level 3a 31 1-All Renovations: Failure of a firm that performs, offers or claims to perform renovations or dust

sampling for compensation to obtain initial certifi cation 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 renovatio ns 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 cer tification 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 renov ations 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 responsib ilities 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 responsibilit ies 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 “mi nor” for “offering to perform” renovations. For larger firm s, such as those acting as general contractors, the “Extent” category is usually “major” because the potential i mpact is greater in the number and size of renovati ons.

## Appendix A Violations and Circumstance Lev els

A -4

Circumstance Level Rule Violation

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

Level 1a 1-Target Housing and Child-occupied Facilities: Failure to perform all lead-based paint activitie s

pursuant to the work practice standards, appropriat e 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 activit y

described by the certified individual as an inspect ion, lead-hazard screen, risk assessment or abatement, is performed by a certified individual i n 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 o r risk assessor and, if conducted, must be conducted according to the prescribed procedures, p ursuant 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 interio r

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 interi or

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 analysi s 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 Lev els

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. §745.2 27(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 prepa re

an inspection report that includes the required inf ormation, 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 ri sk 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 prese nce 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 sample s 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 sampl es 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 haza rd

screen report that includes the required informatio n, 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 ri sk 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 ch ild-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 hist ory, pursuant to 40 C.F.R. §745.227(d)(4)

Level 3a 21-Residential Dwellings: Failure to collect and analyze for lead concentra tion dust samples (either

composite or single-surface samples) from the inter ior window sill(s) and floor(s) in all living area s where one or more children, age 6 and under, are mo st likely to come into c ontact with dust, pursuant to 40 C.F.R. §745.227(d)(5)

Level 3a 22-Multi-family Dwellings and Child-occupied Facili ties: Failure to collect and analyze interior

window sill and floor dust samples (either composit e or single-surface samples) for lead concentration from the prescribed locations, pursua nt to 40 C.F.R. §745.227(d)(6)

Level 3a 23-Child-occupied Facilities: Failure to collect and analyze interior window si ll 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 a nd 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 le ad

concentrations in the prescribed locations, pursuan t to 40 C.F.R. §745.227(d)(8)

## Appendix A Violations and Circumstance Lev els

A

- 6

Circumstance Level Rule Violation

Level 3a 25-Target Housing and Child-occupied Facilities : Failure to conduct all paint, dust, or soil samp ling

or testing using documented methodologies that inco rporate 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 t o 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 inform ation, 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 conducte d, 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 abatemen t 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 abatem ent 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, pursua nt 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 writt en

or electronic notification via one of the prescribe d 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 l ocation 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 abat ement 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. §745.2 27(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 ac tivities 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 gu ns or around electrical outlets or when treating defective paint spots totaling no more than 6 squar e feet in any one room, hallway, or stairwell or totaling no more than 20 square feet on exterior su rfaces, 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, pur suant to 40 C.F.R. §745.227(e)(7)

## Appendix A Violations and Circumstance Lev els

A

- 7

Circumstance Level Rule Violation

Level 3a 42-Target Housing and Child-occupied Facilities: F ailure to have a certified inspector or risk

assessor perform the post-abatement clearance proce dures, 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 perf orm a visual inspection after abatement to determine if deteriorated painted surfaces and/or visible amounts of dust, debris or residue are still presen t 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 inspec tion

and any necessary post-abatement cleanups are compl eted 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 incorp orate 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 activiti es 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 fro m

the prescribed surfaces in the designated rooms aft er 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 fro m

the prescribed surfaces in the designated rooms aft er 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 de bris, 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 stairwel ls

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 compa re

the residual lead level from dust samples with clea rance 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 recle an

and retest the surface of components that were dete rmined 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 fo r 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 main tained 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 requi red 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 s oil

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 o f

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 compensati on to obtain initial certification from EPA, under to 40 C.F.R. §745.226 pursuant to 40 CFR § 74 5.233

## Appendix A Violations and Circumstance Lev els

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 ass essment 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 M atrices

B -1

## Appendix B Gravity-Based Penalty M atrices

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 underage 6 (by definition, a childoccupied facility is regularly visited by one or more children under 6) renovation activi ties 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 en rollment,” there are no children’s parents to whom information can be provided; therefore, information must only b e provided to the owner and operator of the child-o ccupied facility.

## Appendix C Internet References for Policy D ocuments

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 S upplemental Environmental Project in Administrative Settlements (Jan 2004): http://www.epa.gov/compliance/resources/policies/ci vil/seps/leadbasedabatement-sep012204.pdf

Audit Policy: http://www.epa.gov/compliance/incentives/auditing/a uditpolicy.html

Small Business Policy: http://www.epa.gov/compliance/incentives/smallbusin ess/index.html

Redelegation of Authority: http://www.epa.gov/compliance/resources/policies/ci vil/rcra/hqregenfcases-mem.pdf

HUD Technical Guidelines for the Evaluation and Con trol of Lead Based Paint Hazards in Housing: http://www.hud.gov/offices/lead/lbp/hudguidelines/i ndex.cfm

Documenting Penalty Calculations and Justifications of EPA Enforcement Actions, (Aug 1990): http://www.epa.gov/compliance/resources/policies/ci vil/rcra/caljus-strock-mem.pdf

Reference documents to determine Bois Forte penalty policiesD -1