Did the final TSCA section 403 rule say who may make a hazard determination?

Answer:  No. Although the TSCA section 403 rule defines a hazard determination, it did not specify who may make hazard determinations. The TSCA section 403 rule amended the work practice standards in 40 CFR 745.227 by adding 745.227(h) - “Determinations,” which explains what constitutes lead-based paint, a paint-lead hazard, a dust-lead hazard, or a soil-lead hazard. The TSCA section 402 rule, which established the work practice standards in 745.227, already requires that a lead hazard screen or risk assessment be conducted by a certified risk assessor (745.227(c)(1) or 745.227(d)(1), respectively) and that post-abatement testing be conducted by a certified inspector or risk assessor (745.227(e)(8)(i)). Therefore, when hazard determinations are made as part of lead hazard screens and risk assessments or when post-abatement testing is conducted, these activities must be done by a certified individual following all of the appropriate work practice standards in 745.227. Likewise, when hazard determinations are made as part of activities under EPA’s Renovation, Repair and Painting (RRP) Rule, these activities must be done by a certified individual following the appropriate work practices in 745.85. Further, EPA-authorized state programs may have different requirements, including additional requirements for hazard determinations. Therefore, it is important for individuals to review the specific regulations for the states where they will be working. Although EPA does not specify who may make a hazard determination, EPA does specify what constitutes a hazard determination. As part of the final TSCA section 403 rule EPA added 745.227(h) “Determinations” which explains generally how to determine the presence of lead-based paint, paint-lead hazards, dust-lead hazards, and soil-lead hazards. These are the requirements for EPA’s Federal program. EPA-authorized state programs may address hazard determinations differently. When lead-based paint hazards are reported for any purposes, it will always be important to indicate the source of the data so that anyone to whom the information is being provided may consider the accuracy of the data when determining its significance.

Question Number: 23002-33454

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