Document JvrrEv14M9DVEdmDVDVK9Ozyv

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 JUL 3 1 2013 Ms. Tayyaba Waqar Program Manager, Environmental Policy National Association of Home Builders 1201 15th Street NW Washington, DC 20005 OFFICE OF CHEMICAL SAFETY AND POLLUTION PREVENTION Dear Ms. Waqar: It was a pleasure to meet with you on June 6, 2013 to discuss the U.S. Environmental Protection Agency's Lead Renovation, Repair and Painting Program and, specifically, the status of the ongoing recognition of lead test kits. I wanted to follow up to clarify the agency's current position on this matter. The RRP Rule regulatory text at 40 CFR 745.88(a) states that test kits recognized as of June 23, 2008 are appropriate for use "until EPA publicizes its recognition of the first test kit that meets both the negative response and positive response criteria in paragraph (c) of [40 CFR 745.88]." Similar language in 40 CFR 745.88(h)(3) states "[t]he recognition of kits that meet only this [false negative] criteria will last until EPA publicizes its recognition of the first test kits that meets both of the criteria in paragraph (c) of [40 CFR 745.88]." This position is provided publicly on the EPA's "Recognition of Lead Test Kits" web page, available at http://www2.epa.gov/lead/epa-recognition-lead-test-kits. As stated in the preamble to the 2008 RRP rule, EPA determined that the EPA's Environmental Technology Verification Program (ETV) is a suitable vehicle for obtaining independent laboratory validation of test kit performance and that EPA intends to use ETV or an equivalent testing program to evaluate test kits. After a test kit has gone through the ETV or other EPA approved testing process, EPA will review the test report to determine whether the kit has been demonstrated to achieve the criteria set forth in the rule. EPA further stated that any recognition granted to test kits based only on the false negative criterion will expire when EPA publicizes its recognition of the first improved test kit that meets both the false negative and false positive criteria of 40 CFR 745.88(c). The EPA put forth significant effort and resources to foster the development of a test kit that would meet both the false negative and false positive criteria outlined in the RRP rule. On September 1, 2008, EPA's . ETV program began accepting applications for testing from test kit manufacturers. For more than two years the EPA supported test kit research and development efforts by several private companies by funding not only the manufacture of reference materials, but also the technical evaluation of test kits through the ETV program. In addition to the two test kits that were recognized by the EPA in 2008, the EPA recognized an additional test kit in 2010 as a result of these efforts. In addition, an existing test kit received EPA recognition for use on additional substrates in 2012. Despite the EPA's commitment of resources to this effort, to date no company's test kit has met both of the performance criteria outlined in the RRP rule. The EPA is unaware of any test kit currently available or under development that would meet the positive criterion. However, there are two EPA-recognized Internet Address {URL} * http://www.epa gov Recycled/Recyctable * Printed with Vegetable Oil Based Inks on 100% Postconsumer, Process Chlorine Free Recycled Paper Sierra Club v. EPA 18cv3472 NDCA Tier 7 ED 002061 00038364-00001 test kits commercially available nationwide that meet the false negative criterion and continue to be recognized by EPA. The performance verification data indicate that the false positive rate for these kits varies from 22,5% to 84% depending on the test kit used, the substrate tested (e.g., wood, metal, plaster or drywall), color of paint tested and operator experience. Performance verification reports for EPArecognized test kits are posted on EPA's website at http://www2.epa.gov/lead/epa-recognition-lead-testkits#verify. At this time, the EPA has no plans or resources to sponsor additional testing of kits as was done previously through the agency's ETV Program. However, any commercial entity that wishes to receive EPA recognition may have ETV Program, or equivalent, evaluation performed and bring their kit and evaluation results to the EPA for potential recognition. To date, one company has done this, which resulted in EPA recognition in 2012; hence, in the interest of fairness, the EPA would proceed this way in the future. Again, thank you for your interest in this matter. If you have additional questions or concerns, please contact Dr. Tala R. Henry, Director of the National Program Chemicals Division within my office, at (202) 564-2959. Acting Assistant Administrator Sierra Club v. EPA 18cv3472 NDCA Tier 7 ED_002061_00038364-00002 Environmental Protection Agency 745.89 a vio latio n of TSCA sections 15 and 409 {15 U.8.C, 2814 and 2880). (c) F ailure or refusal to permit entry or inspection as required, by 40 CFE 745.87 and TSCA section 11 <15 U.S.C. 2610) is a v iolation of sectio n s 15 and 409 (15 U.S.C. 2614 and 2889). (d) V iolators m ay be sub ject to civil and crim inal sanctions pursuant to TSOA section 16 (15 U.S.C. 2615) for each violation . (e) Lead-based paint 1 assum ed to be present a t renovations covered by this subpart. EPA may conduct inspections and issue subpoenas pursuant to the provisions of TSCA section II (15 U.S.C. 2610) to ensure com pliance w ith this subpart, [63 FB. 23919, J u n e 1, 1898, a s am en d ed a t 73 FB. 21.763, Apr. 22, 2008] 745,88 B ecognised te s t kits, (a) Effective Ju n e 23, 2008, EPA rec ognises the test k its that have been de termined by N ational In stitu te of Standards and Technology research to m e et the negative response criteria de scribed in paragraph (e)(1) of th is sec tion. This .recognition will last until EPA publicizes its recognition of the first test kit that m eets both the nega tive response and positive response cri teria in paragraph (c) of th is section, (b) No o th e r te s t k its will he .recog nized until they are tested through. EPA's E nvironm ental Technology Verification Program or other equiva lent EPA approved te stin g program . (1) Effective S eptem ber 1, 2008, to in i tia te the testing process, a test k it manufacturer m ust subm it a sufficient num ber of kits, along w ith the instruc tions for using the kits, to EPA, The test kit m anufacturer should first visit the following website for inform ation on where to apply: http://tmme.epa.gov/ etv/koviio apply JUml, (2) A fter th e k it h as been te ste d through the Environm ental Tech nology V erification Program or other equivalent approved EPA testing pro gram, EPA will review the report to de term ine whether the required criteria have been met. (3) Before S eptem ber 1, 2010, te s t k its m ust m eet only the negative response c rite ria in paragraph, (c)(1) of th is sec tion. The recognition of kits that meet only th is criteria will last until EPA publicizes its recognition of the first te st k its th a t m eets both of the cri te ria in paragraph (c) of this section, (4) A fter S eptem ber 1, 20.10, te st k its m ust m eet both of the criteria in para graph (o) of th is section. (6) If th e report d em o n strates th a t the k it m eets the required criteria, EPA will issue a notice of recognition to the k it m anufacturer, provide them with the report, and post the inform a tio n on E PA 's website. (6) If th e .report d em o n strates th a t the k it does not m eet the required cri teria, EPA will notify the k it m anufac tu re r and provide them w ith the re port. (o> Response criteria--(1) Negative re sponse criteria. For p ain t containing lead a t or above the reg u la ted level, 1.0 mg/om* or 0,5% by weight, a dem o n strated p ro b ab ility (with 95% con fidence) of a negative response less th a n or equal to 5% of th e tim e, (2) Positive response criteria. F or p ain t containing lead below the regulated level, 1,0 mg/om8 or 0.5% by w eight, a demonstrated p ro b ab ility (w ith 95% confidence) of a positive response less than or equal to 10% of th e tim e, [73 FBI 21783, A pr. 22, 2008] S745.89 F irm certification. (a) Initial certification. (1) F irm s th a t perform renovations for compensation must apply to EPA for certification to perform renovations or dust sampling. To apply, a firm m ust submit to EPA a com pleted "Application for Firms," signed by an authorised agent of the firm, and pay a t least the correct am ount of fees. If a firm pays more than the correct, am ount of fees, EPA will reim burse the firm for the excess am ount. (2) A fter EPA receives a firm 's appli cation, EPA will tak e one of the fol lowing actio n s w ithin 90 days of the date the application is received: (i) EPA w ill approve a firm 's applica tion if EPA determ ines th at it is com plete and th a t the environm ental com pliance histo ry of the firm, its prin cipals, or its key employees does not show an unwillingness or inability to m aintain compliance with environ m ental sta tu te s or .regulations. An ap p lic atio n is com plete 1f it contains all of the inform ation requested on the 699 Sierra Club v. EPA 18cv3472 NDCA Tier 7 ED 002061 00038364-00003