Thursday, 

May 6, 2010 

Part II 

Environmental 

Protection Agency 

40 CFR Part 745 

Lead; Clearance and Clearance Testing 

Requirements for the Renovation, Repair, 

and Painting Program; Proposed Rule 


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25038 Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 745 

[EPA–HQ–OPPT–2005–0049; FRL–8823–5] 

RIN 2070–AJ57 

Lead; Clearance and Clearance Testing 

Requirements for the Renovation, 

Repair, and Painting Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing several 

revisions to the 2008 Lead Renovation, 

Repair, and Painting Program (RRP) rule 

that established accreditation, training, 

certification, and recordkeeping 

requirements as well as work practice 

standards for persons performing 

renovations for compensation in most 

pre-1978 housing and child-occupied 

facilities. EPA is particularly concerned 

about dust-lead hazards generated by 

renovations because of the welldocumented toxicity of lead, especially 

to younger children. This proposal 

includes additional requirements 

designed to ensure that lead-based paint 

hazards generated by renovation work 

are adequately cleaned after renovation 

work is finished and before the work 

areas are re-occupied. Specifically, EPA 

is proposing to require dust wipe testing 

after many renovations covered by the 

RRP rule. For a subset of jobs involving 

demolition or removal of plaster 

through destructive means or the 

disturbance of paint using machines 

designed to remove paint through highspeed operation, such as power sanders 

or abrasive blasters, this proposal would 

also require the renovation firm to 

demonstrate, through dust wipe testing, 

that dust-lead levels remaining in the 

work area are below regulatory levels. 

DATES: Comments must be received on 

or before July 6, 2010. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPPT–2005–0049, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Mail: Document Control Office 

(7407M), Office of Pollution Prevention 

and Toxics (OPPT), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460– 

0001. 

• Hand Delivery: OPPT Document 

Control Office (DCO), EPA East Bldg., 

Rm. 6428, 1201 Constitution Ave., NW., 

Washington, DC. Attention: Docket ID 

Number EPA–HQ–OPPT–2005–0049. 

The DCO is open from 8 a.m. to 4 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

DCO is (202) 564–8930. Such deliveries 

are only accepted during the DCO’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

docket ID number EPA–HQ–OPPT– 

2005–0049. EPA’s policy is that all 

comments received will be included in 

the docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through regulations.gov or email. The regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

regulations.gov, your e-mail address 

will be automatically captured and 

included as part of the comment that is 

placed in the docket and made available 

on the Internet. If you submit an 

electronic comment, EPA recommends 

that you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the docket index available 

at http://www.regulations.gov. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available electronically at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPPT 

Docket. The OPPT Docket is located in 

the EPA Docket Center (EPA/DC) at Rm. 

3334, EPA West Bldg., 1301 

Constitution Ave., NW., Washington, 

DC. The EPA/DC Public Reading Room 

hours of operation are 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number of 

the EPA/DC Public Reading Room is 

(202) 566–1744, and the telephone 

number for the OPPT Docket is (202) 

566–0280. Docket visitors are required 

to show photographic identification, 

pass through a metal detector, and sign 

the EPA visitor log. All visitor bags are 

processed through an X-ray machine 

and subject to search. Visitors will be 

provided an EPA/DC badge that must be 

visible at all times in the building and 

returned upon departure. 

FOR FURTHER INFORMATION CONTACT: For 

general information contact: Colby 

Lintner, Regulatory Coordinator, 

Environmental Assistance Division 

(7408M), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001; telephone 

number: (202) 554–1404; e-mail address: 

TSCA–Hotline@epa.gov. 

For technical information contact: 

Cindy Wheeler, National Program 

Chemicals Division, Office of Pollution 

Prevention and Toxics, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460– 

0001; telephone number: (202) 566– 

0484; e-mail address: 

wheeler.cindy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you perform renovations of 

target housing or child-occupied 

facilities for compensation, dust 

sampling, or dust testing. You may also 

be affected by this action if you perform 

lead-based paint inspections, lead 

hazard screens, risk assessments or 

abatements in target housing or childoccupied facilities or if you operate a 

training program for individuals who 

perform any of these activities. ‘‘Target 

housing’’ is defined in section 401 of 

TSCA as any housing constructed prior 

to 1978, except housing for the elderly 

or persons with disabilities (unless any 

child under age 6 resides or is expected 

to reside in such housing) or any 0- 

bedroom dwelling. Under this rule, a 

child-occupied facility is a building, or 

a portion of a building, constructed 

prior to 1978, visited regularly by the 

same child, under 6 years of age, on at 

least 2 different days within any week 

(Sunday through Saturday period), 

provided that each day’s visit lasts at 

least 3 hours and the combined weekly 

visits last at least 6 hours, and the 

combined annual visits last at least 60 

hours. Potentially-affected entities may 

include, but are not limited to: 

• Building construction (NAICS code 

236), e.g., single family housing 


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construction, multi-family housing 

construction, residential remodelers. 

• Specialty trade contractors (NAICS 

code 238), e.g., plumbing, heating, and 

air-conditioning contractors, painting 

and wall covering contractors, electrical 

contractors, finish carpentry contractors, 

drywall and insulation contractors, 

siding contractors, tile and terrazzo 

contractors, glass and glazing 

contractors. 

• Real estate (NAICS code 531), e.g., 

lessors of residential buildings and 

dwellings, residential property 

managers. 

• Child day care services (NAICS 

code 624410). 

• Elementary and secondary schools 

(NAICS code 611110), e.g., elementary 

schools with kindergarten classrooms. 

• Other technical and trade schools 

(NAICS code 611519), e.g., training 

providers. 

• Engineering services (NAICS code 

541330) and building inspection 

services (NAICS code 541350), e.g., dust 

sampling technicians. 

• Lead abatement professionals 

(NAICS code 562910), e.g., firms and 

supervisors engaged in lead-based paint 

activities. 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the technical person listed under FOR

FURTHER INFORMATION CONTACT. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

regulations.gov or e-mail. Clearly mark 

the part or all of the information that 

you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM that you mail to EPA, 

mark the outside of the disk or CD–ROM 

as CBI and then identify electronically 

within the disk or CD–ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

i. Identify the document by docket ID 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

ii. Follow directions. The Agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

iii. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

iv. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

v. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

vi. Provide specific examples to 

illustrate your concerns and suggest 

alternatives. 

vii. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

viii. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Introduction 

A. What action is the agency taking? 

EPA is proposing several revisions to 

the 2008 Lead Renovation, Repair, and 

Painting Program (RRP) rule (Ref. 1) that 

established accreditation, training, 

certification, and recordkeeping 

requirements as well as work practice 

standards for persons performing 

renovations for compensation in most 

pre-1978 housing and child-occupied 

facilities. EPA is particularly concerned 

about dust-lead hazards generated by 

renovations because of the welldocumented toxicity of lead, especially 

to younger children. This proposal 

includes additional requirements 

designed to ensure that lead-based paint 

hazards generated by renovation work 

are adequately cleaned after renovation 

work is finished and before the areas are 

re-occupied. Specifically, EPA is 

proposing to require dust wipe testing 

after many renovations covered by the 

RRP rule. For a subset of jobs involving 

demolition or removal of plaster 

through destructive means or the 

disturbance of paint using machines 

designed to remove paint through highspeed operation, such as power sanders 

or abrasive blasters, this proposal would 

also require the renovation firm to 

demonstrate, through dust wipe testing, 

that dust-lead levels remaining in the 

work area are below regulatory levels. 

EPA is not, however, reopening other 

aspects of the work practices required 

by the 2008 RRP rule. 

EPA is also proposing various minor 

amendments to the regulations 

concerning applications for training 

provider accreditation, amending 

accreditations, course completion 

certificates, record keeping, State and 

Tribal program requirements, and 

grandfathering (i.e., taking a refresher 

training in lieu of the initial training). In 

addition, the proposed amendments 

intend to clarify that certain 

requirements apply to the RRP rule as 

well as the Lead-Based Paint Activities 

(abatement) regulations, that the 

prohibitions and restrictions on work 

practices in the RRP rule apply to the 

disturbance of any painted surface, that 

certified renovators need only provide 

on-the-job training to other renovation 

workers in the work practices required 

by the rule, that a certified inspector or 

risk assessor can act as a dust sampling 

technician, which hands-on training 

topics are required for renovator and 

dust sampling technician courses, and 

requirements for States and Tribes that 

apply to become authorized to 

implement the RRP program. Again, 

EPA is not reopening for consideration 

any aspects of the existing regulations, 

except as provided in today’s proposal. 

B. What is the agency’s authority for 

taking this action? 

These work practice requirements for 

dust wipe testing and clearance, 

training, certification and accreditation 

requirements, and State, Territorial and 

Tribal authorization provisions are 

being promulgated under the authority 

of sections 402(c)(3), 404, and 407 of the 

Toxic Substances Control Act (TSCA), 

15 U.S.C. 2682(c)(3), 2684, and 2687. 

C. Background 

1. Health effects of lead exposure. 

This Unit describes some of the more 

significant health effects of lead 

exposure and the routes of exposure 

associated with lead in paint. Much 

more information is available in the 

preamble to the 2008 Lead Renovation, 

Repair, and Painting (RRP) Rule (Ref. 1) 

and the Air Quality Criteria for Lead 

document (Ref. 2). 

Lead has been known throughout the 

ages for its useful properties, having 

been commonly used in the production 

of paint, batteries, pipes, solder, pottery, 

and gasoline. Lead is also known for its 

‘‘broad array of deleterious effects on 

multiple organ systems via widely 

diverse mechanisms of action.’’ (Ref. 2) 

This array of health effects includes 

heme biosynthesis and related 


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functions; neurological development 

and function; reproduction and physical 

development; kidney function; 

cardiovascular function; and immune 

function. There is also some evidence of 

lead carcinogenicity, primarily from 

animal studies, together with limited 

human evidence of suggestive 

associations. 

Of particular interest to EPA during 

the RRP rulemaking was the delineation 

of lowest observed effect levels for those 

lead-induced effects that are most 

clearly associated with blood lead levels 

of less than 10 micrograms per deciliter 

(μg/dL) in children and adults (Ref. 2, at 

8–60). As is evident from the Criteria 

Document, neurotoxic effects in 

children and cardiovascular effects in 

adults are among those best 

substantiated as occurring at blood-lead 

concentrations as low as 5 to 10 μg/dL 

(or possibly lower), so these categories 

of effects would result in the greatest 

public health concern. Other newly 

demonstrated immune and renal system 

effects among general population groups 

are also emerging as low-level leadexposure effects of potential public 

health concern (Ref. 2, at 8–60). 

Among the wide variety of health 

endpoints associated with lead 

exposures, there is general consensus 

that the developing nervous system in 

children is among the, if not the, most 

sensitive. While blood lead levels in 

U.S. children have decreased notably 

since the late 1970s, newer studies have 

investigated and reported associations 

of effects on the neurodevelopment of 

children with these more recent blood 

lead levels (Ref. 2, chapter 6). 

Functional manifestations of lead 

neurotoxicity during childhood include 

sensory, motor, cognitive, and 

behavioral impacts. Numerous 

epidemiological studies have reported 

neurocognitive, neurobehavioral, 

sensory, and motor function effects in 

children with blood lead levels below 

10 μg/dL (Ref. 2, sections 6.2 and 8.4. 

[FN 7. Further, neurological effects in 

general include behavioral effects, such 

as delinquent behavior (Ref. 2, sections 

6.2.6 and 8.4.2.2), sensory effects, such 

as those related to hearing and vision 

(Ref. 2, sections 6.2.7 and 8.4.2.3), and 

deficits in neuromotor function (Ref. 2, 

p. 8–36).] As discussed in the Criteria 

Document, ‘‘extensive experimental 

laboratory animal evidence has been 

generated that (a) substantiates well the 

plausibility of the epidemiologic 

findings observed in human children 

and adults and (b) expands our 

understanding of likely mechanisms 

underlying the neurotoxic effects’’ (Ref. 

2, p. 8–25; section 5.3). 

Cognitive effects associated with lead 

exposures that have been observed in 

epidemiological studies have included 

decrements in intelligence test results, 

such as the widely used IQ score, and 

in academic achievement as assessed by 

various standardized tests as well as by 

class ranking and graduation rates (Ref. 

2, section 6.2.16 and pp. 8–29 to 8–30). 

As noted in the Criteria Document with 

regard to the latter, ‘‘Associations 

between lead exposure and academic 

achievement observed in the abovenoted studies were significant even after 

adjusting for IQ, suggesting that leadsensitive neuropsychological processing 

and learning factors not reflected by 

global intelligence indices might 

contribute to reduced performance on 

academic tasks’’ (Ref. 2, pp. 8–29 to 8– 

30). 

With regard to potential implications 

of lead effects on IQ, the Criteria 

Document recognizes the ‘‘critical’’ 

distinction between population and 

individual risk, identifying issues 

regarding declines in IQ for an 

individual and for the population. The 

Criteria Document further states that a 

‘‘point estimate indicating a modest 

mean change on a health index at the 

individual level can have substantial 

implications at the population level’’ 

(Ref. 2, p. 8–77). [FN 8. As an example, 

the Criteria Document states, ‘‘although 

an increase of a few mm Hg in blood 

pressure might not be of concern for an 

individual’s well-being, the same 

increase in the population mean might 

be associated with substantial increases 

in the percentages of individuals with 

values that are sufficiently extreme that 

they exceed the criteria used to diagnose 

hypertension’’ (Ref. 2, p. 8–77).] A 

downward shift in the mean IQ value is 

associated with both substantial 

decreases in percentages achieving very 

high scores and substantial increases in 

the percentage of individuals achieving 

very low scores (Ref. 2, p. 8–81). [FN 9. 

For example, for a population mean IQ 

of 100 (and standard deviation of 15), 

2.3% of the population would score 

above 130, but a shift of the population 

to a mean of 95 results in only 0.99% 

of the population scoring above 130 

(Ref. 2, pp. 8–81 to 8–82).] For an 

individual functioning in the low IQ 

range due to the influence of 

developmental risk factors other than 

lead, a lead-associated IQ decline of 

several points might be sufficient to 

drop that individual into the range 

associated with increased risk of 

educational, vocational, and social 

failure (Ref. 2, p. 8–77). 

Other cognitive effects observed in 

studies of children have included effects 

on attention, executive functions, 

language, memory, learning, and 

visuospatial processing (Ref. 2, sections 

5.3.5, 6.2.5, and 8.4.2.1), with attention 

and executive function effects 

associated with lead exposures indexed 

by blood lead levels below 10 μg/dL 

(Ref. 2, section 6.2.5 and pp. 8–30 to 8– 

31). The evidence for the role of lead in 

this suite of effects includes 

experimental animal findings (Ref. 2, 

section 8.4.2.1; p. 8–31), which provide 

strong biological plausibility of lead 

effects on learning ability, memory and 

attention (Ref. 2, section 5.3.5), as well 

as associated mechanistic findings. 

The persistence of such lead-induced 

effects is described in the proposal and 

the Criteria Document (e.g., Ref. 2, 

sections 5.3.5, 6.2.11, and 8.5.2). The 

persistence or irreversibility of such 

effects can be the result of damage 

occurring without adequate repair 

offsets or of the persistence of lead in 

the body (Ref. 2, section 8.5.2). It is 

additionally important to note that there 

may be long-term consequences of such 

deficits over a lifetime. Poor academic 

skills and achievement can have 

‘‘enduring and important effects on 

objective parameters of success in real 

life,’’ as well as increased risk of 

antisocial and delinquent behavior (Ref. 

2, section 6.2.16). 

Multiple epidemiologic studies of 

lead and child development have 

demonstrated inverse associations 

between blood lead concentrations and 

children’s IQ and other cognitive-related 

outcomes at successively lower lead 

exposure levels over the past 30 years 

(Ref. 2, section 6.2.13). For example, the 

overall weight of the available evidence, 

described in the Criteria Document, 

provides clear substantiation of 

neurocognitive decrements being 

associated in children with mean blood 

lead levels in the range of 5 to 10 μg/ 

dL, and some analyses indicate lead 

effects on intellectual attainment of 

children for which population mean 

blood lead levels in the analysis ranged 

from 2 to 8 μg/dL (Ref. 2, sections 6.2, 

8.4.2, and 8.4.2.6). Thus, while blood 

lead levels in U.S. children have 

decreased notably since the late 1970s, 

newer studies have investigated and 

reported associations of effects on the 

neurodevelopment of children with 

blood lead levels similar to the more 

recent, lower blood lead levels (Ref. 2, 

chapter 6). 

Paint that contains lead can pose a 

health threat through various routes of 

exposure. House dust is the most 

common exposure pathway through 

which children are exposed to leadbased paint hazards. Dust created 

during normal lead-based paint wear 

(especially around windows and doors) 


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can create an invisible film over 

surfaces in a house. Children, 

particularly younger children, are at risk 

for high exposures of lead-based paint 

dust via hand-to-mouth exposure, and 

may also ingest lead-based paint chips 

from flaking paint on walls, windows, 

and doors. Lead from exterior house 

paint can flake off or leach into the soil 

around the outside of a home, 

contaminating children’s play areas. 

Cleaning and renovation activities may 

actually increase the threat of leadbased paint exposure by dispersing lead 

dust particles in the air and over 

accessible household surfaces. In turn, 

depending on the levels of lead in the 

dust, both adults and children can 

receive hazardous exposures by inhaling 

the dust or by ingesting lead-based paint 

dust during hand-to-mouth activities. 

EPA’s Wisconsin Childhood BloodLead Study, described more fully in 

Unit III.C.1.c. of the preamble to the 

2006 Proposal, provides ample evidence 

of a link between renovation activities 

and elevated blood lead levels in 

resident children (Ref. 3). This peerreviewed study concluded that general 

residential renovation and remodeling is 

associated with an increased risk of 

elevated blood lead levels in children 

and that specific renovation and 

remodeling activities are also associated 

with an increase in the risk of elevated 

blood lead levels in children. In 

particular, removing paint (using open 

flame torches, using heat guns, using 

chemical paint removers, and wet 

scraping/sanding) and preparing 

surfaces by sanding or scraping 

significantly increased the risk of 

elevated blood lead levels. 

Three studies from New York support 

the findings of the Wisconsin Childhood 

Blood-Lead Study. In 1995, the New 

York State Department of Health 

assessed lead exposure among children 

resulting from home renovation and 

remodeling in 1993–1994. A review of 

the health department records of 

children with blood lead levels equal to 

or greater than 20 μg/dL identified 320, 

or 6.9%, with elevated blood lead levels 

that were attributable to renovation and 

remodeling (Ref. 4). An update to that 

study with data from environmental 

investigations conducted during 2006– 

2007 in New York State (excluding New 

York City) identified renovation, repair, 

and painting activities as the probable 

source of lead exposure in 14% of 972 

children with blood lead levels equal to 

or exceeding 20 μg/dL (Ref. 5). The 

authors concluded that children living 

in housing undergoing renovation, 

repair, and painting that was built 

before 1978, and particularly before 

1950, when concentrations of lead in 

paint were higher, are at high risk for 

elevated blood lead levels. The final 

study was a case-control study that 

assessed the association between 

elevated blood lead levels in children 

younger than 5 years and renovation or 

repair activities in homes in New York 

City (Ref. 6). EPA notes that the authors 

show that when dust and debris was 

reported (by respondents via telephone 

interviews) to be ‘‘everywhere’’ 

following a renovation, the blood lead 

levels were significantly higher than 

children at homes that did not report 

remodeling work. On the other hand, 

when the respondent reported either ‘‘no 

visible dust and debris’’ or that ‘‘dust 

and debris was limited to the work 

area,’’ there was no statistically 

significant effect on blood lead levels 

relative to homes that did not report 

remodeling work. Although the study 

found only a weak and nonsignificant 

link between a report of any renovation 

activity and the likelihood that a 

resident child had an elevated bloodlead level, the link to the likelihood of 

an elevated blood-lead level was 

statistically significant for surface 

preparation by sanding and for 

renovation work that spreads dust and 

debris beyond the work area. The 

researchers noted the consistency of 

their results with EPA’s Wisconsin 

Childhood Blood-Lead Study (Ref. 6, at 

509). 

Children in minority populations and 

children whose families are poor have 

an increased risk of exposure to harmful 

lead levels (Ref. 7, at e376). Analysis of 

the National Health and Nutrition 

Examination Surveys (NHANES) data 

from 1988 through 2004 shows that the 

prevalence of blood lead levels equal to 

or exceeding 10 μg/dL in children aged 

1 to 5 years has decreased from 8.6% in 

1988–1991 to 1.4% in 1999–2004, 

which is an 84% decline (Ref. 7, at 

e377). However, the NHANES data from 

1999–2004 indicates that non-Hispanic 

black children aged 1 to 5 years had 

higher percentages of blood lead levels 

equal to or exceeding 10 μg/dL (3.4%) 

than white children in the same age 

group (1.2%) (Ref. 7). In addition, 

among children aged 1 to 5 years over 

the same period, the geometric mean 

blood lead level was significantly higher 

for non-Hispanic blacks (2.8 μg/dL), 

compared with Mexican Americans (1.9 

μg/dL) and non-Hispanic whites (1.7 μg/ 

dL) (Ref. 7, at e377). For children aged 

1 to 5 years from families with low 

income, the geometric mean blood lead 

level was 2.4 μg/dL (Ref. 7, at e377). 

Further, the incidences of blood-lead 

levels greater than 10 μg/dL and greater 

than or equal to 5 μg/dL were higher for 

non-Hspanic blacks (14% and 3.4% 

respectively) than for Mexican 

Americans (4.7% and 1.2%, 

respectively) and non-Hispanic whites 

(4.4% and 1.2%, respectively). (Ref. 7, 

at e377). The analysis ‘‘indicates that 

residence in older housing, poverty, age, 

and being non-Hispanic black are still 

major risk factors for higher lead levels’’ 

(Ref. 7, at e376). 

2. Prior EPA rulemakings under TSCA 

Sections 402(a) and 403. TSCA section 

402(a) directs EPA to promulgate 

regulations covering lead-based paint 

activities, such as abatement, to ensure 

persons performing these activities are 

properly trained, that training programs 

are accredited, and that contractors 

performing these activities are certified. 

These regulations must contain 

standards for performing lead-based 

paint activities, taking into account 

reliability, effectiveness, and safety. On 

August 29, 1996, EPA promulgated final 

regulations under TSCA section 402(a) 

that govern lead-based paint 

inspections, lead hazard screens, risk 

assessments, and abatements in target 

housing and child-occupied facilities 

(also referred to as the Lead-based Paint 

Activities Regulations) (Ref. 8). These 

regulations, codified at 40 CFR part 745, 

subpart L, contain an accreditation 

program for training providers and 

training and certification requirements 

for lead-based paint inspectors, risk 

assessors, project designers, abatement 

supervisors, and abatement workers. 

Work practice standards for lead-based 

paint activities are included. Pursuant 

to TSCA section 404, provision was 

made for interested States, Territories, 

and Indian Tribes to apply for and 

receive authorization to administer their 

own lead-based paint activities 

programs. The regulations applicable to 

State, Territorial, and Tribal programs 

are codified at 40 CFR part 745, subpart 

Q. 

The work practice standards for 

abatements in the Lead-based Paint 

Activities Regulations are essentially 

performance standards. They give a 

trained and certified abatement 

contractor some discretion in 

determining how best to ensure that an 

abatement is performed safely, so long 

as the contractor can demonstrate that 

the abatement has been properly 

completed and that no lead-based paint 

hazards remain. Certain high dust 

generating practices are prohibited and 

contractors are required to prepare 

occupant protection plans specifically 

describing the procedures to be 

followed on each job to protect 

occupants from exposures to lead-based 

paint hazards. In most cases, residents 

relocate until the abatement has been 


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completed. Although these additional 

procedures are not specified in the 

regulations, abatement supervisor and 

worker courses provide comprehensive 

training in the specialized techniques 

these individuals can use to contain 

work areas, remove, enclose, or 

encapsulate lead-based paint and leadbased paint hazards, and clean up after 

the job is finished. The regulations are 

much more detailed in describing the 

procedures that must be followed to 

ensure that the abatement has been 

properly completed and that the work 

area is ready for re-occupancy. These 

procedures, typically referred to as 

‘‘clearance,’’ must be performed by a 

certified inspector or risk assessor. First, 

a visual inspection must be performed 

to determine whether deteriorated 

painted surfaces or visible amounts of 

dust, debris, or residue are still present. 

If so, these conditions must be 

eliminated before the clearance 

procedures may continue. An exterior 

abatement project is considered 

complete after a successful visual 

inspection. Following a successful 

visual inspection after an interior 

abatement project, the inspector or risk 

assessor must collect dust wipe samples 

from floors, windowsills, and window 

troughs in the work area and have them 

analyzed by a laboratory accredited 

under the National Lead Laboratory 

Accreditation Program (NLLAP) for dust 

lead analysis. After the sampling results 

are received, the inspector or risk 

assessor must compare them with the 

established clearance standards for lead 

in dust. If all of the samples are below 

the clearance standards, the abatement 

is complete and the area may be reoccupied. If any samples are above the 

standards, the components represented 

by those samples must be re-cleaned 

and the clearance process must be 

repeated until all samples are below the 

clearance standards. For example, if any 

interior window sills fail clearance, all 

of the unsampled window sills, as well 

as the failed window sills, must be 

recleaned and retested. If the abatement 

was conducted in multiple dwelling 

units, and units were selected for 

random testing, the window sills in the 

unsampled units would also have to be 

recleaned and retested. 

TSCA section 403 directs EPA to 

promulgate regulations that identify, for 

the purposes of Title X and Title IV of 

TSCA, dangerous levels of lead in paint, 

dust, and soil. These regulations were 

promulgated on January 5, 2001 and 

codified at 40 CFR part 745, subpart D 

(Ref. 9). These hazard standards define 

lead-based paint hazards in target 

housing and child-occupied facilities as 

paint-lead, dust-lead, and soil-lead 

hazards. A paint-lead hazard is defined 

as any damaged or deteriorated leadbased paint, any chewable lead-based 

painted surface with evidence of teeth 

marks, or any lead-based paint on a 

friction surface if lead dust levels 

underneath the friction surface exceed 

the dust-lead hazard standards. A dustlead hazard is surface dust that contains 

a mass-per-area concentration of lead 

equal to or exceeding 40 micrograms per 

square foot (μg/ft2) on floors or 250 μg/ 

ft2 on interior windowsills based on 

wipe samples. A soil-lead hazard is bare 

soil that contains total lead equal to or 

exceeding 400 parts per million (ppm), 

equivalent to 400 micrograms per gram 

(μg/g), in a play area or average of 1,200 

ppm of bare soil in the rest of the yard 

based on soil samples. 

The TSCA section 403 rulemaking 

also amended the Lead-based Paint 

Activities Regulations to incorporate 

new dust-lead clearance standards for 

abatements. These standards are 40 μg/ 

ft2 on floors, 250 μg/ft2 on interior 

windowsills, and 400 μg/ft2 on window 

troughs, based on wipe samples. 

On August 10, 2009, EPA received a 

petition requesting that EPA lower the 

regulatory dust-lead hazard standard 

and modify the regulatory definition of 

lead-based paint. After careful 

consideration, EPA decided to grant the 

request and accordingly intends to begin 

the appropriate proceedings. Although 

EPA granted the request, the Agency did 

not commit to either a specific 

rulemaking outcome or a certain date for 

promulgation of a final rule. EPA’s 

primary reason for granting the request 

was based on recent epidemiological 

studies that indicate the current hazard 

standards are insufficiently protective. 

The request was granted under section 

553(e) of the Administrative Procedures 

Act (APA). Additionally, because the 

Secretary of the Department of Housing 

and Urban Development (HUD) was 

given the statutory authority to establish 

a lower level of lead in paint for 

purposes of the definition of lead-based 

paint in target housing, EPA plans to 

work with HUD on this aspect of the 

request. 

3. The 2008 Renovation, Repair, and 

Painting Rule. TSCA section 402(c) 

addresses renovation and remodeling. 

Specifically, TSCA section 402(c)(2) 

directs EPA to study the extent to which 

persons engaged in various types of 

renovation and remodeling activities are 

exposed to lead during such activities or 

create a lead-based paint hazard 

regularly or occasionally. EPA 

conducted this study in four phases. 

Phase I, the Environmental Field 

Sampling Study (EFSS) (Ref. 10), 

evaluated the amount of leaded dust 

released by the following activities: 

• Paint removal by abrasive sanding. 

• Removal of large structures, 

including demolition of interior plaster 

walls. 

• Window replacement. 

• Carpet removal. 

• HVAC repair or replacement, 

including duct work. 

• Repairs resulting in isolated small 

surface disruptions, including drilling 

and sawing into wood and plaster. 

Phase II, the Worker Characterization 

and Blood Lead Study (Ref. 11), 

involved collecting data on blood lead 

and renovation and remodeling 

activities from workers. Phase III, the 

Wisconsin Childhood Blood Lead Study 

(Ref. 3), was a retrospective study 

focused on assessing the relationship 

between renovation and remodeling 

activities and children’s blood-lead 

levels. Phase IV, the Worker 

Characterization and Blood-Lead Study 

of R&R Workers Who Specialize in 

Renovations of Old or Historic Homes 

(Ref. 12), was similar to Phase II, but 

focused on individuals who worked 

primarily in old historic buildings. More 

information on the results of these peerreviewed studies can be found in Unit 

III.C.1. of the preamble to the 2006 Lead; 

Renovation, Repair, and Painting 

Program Proposed Rule (‘‘2006 

Proposal’’) (Ref. 13). 

TSCA section 402(c)(3) further directs 

EPA to revise the Lead-based Paint 

Activities Regulations to apply to 

renovation or remodeling activities that 

create lead-based paint hazards. 

Accordingly, EPA issued the 2006 

Proposal, proposing to conclude that 

any renovation activity that disturbs 

lead-based paint can create significant 

amounts of leaded dust, that most 

activities created lead-based paint 

hazards, and that some activities can be 

reasonably anticipated to create leadbased paint hazards (Ref. 13). This 

proposed finding was largely based on 

the results of the studies conducted 

under TSCA section 402(c)(2). 

After the 2006 Proposal was issued, 

EPA conducted a field study 

(Characterization of Dust Lead Levels 

after Renovation, Repair, and Painting 

Activities) (the ‘‘Dust Study’’) to better 

characterize dust lead levels resulting 

from various renovation, repair, and 

painting activities (Ref. 14). This study, 

completed in January, 2007, was 

designed to compare environmental 

lead levels at appropriate stages after 

various types of renovation, repair, and 

painting preparation activities were 

performed on the interiors and exteriors 

of target housing units and childVerDate Mar<15>2010 17:41 May 05, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP2.SGM 06MYP2

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occupied facilities. The renovation 

activities were conducted by local 

professional renovation firms, using 

personnel who received lead safe work 

practices training. The activities 

conducted represented a range of 

activities that would have been 

permitted under the 2006 Proposal, 

including work practices that are 

restricted or prohibited under the final 

RRP rule. Of particular interest was the 

impact of using specific work practices 

that renovation firms would be required 

to use under the proposed rule, such as 

the use of plastic to contain the work 

area and a multi-step cleaning protocol, 

as opposed to more typical work 

practices. 

The final RRP rule was published in 

the Federal Register issue of April 22, 

2008 (Ref. 1). The final RRP rule, 

codified in 40 CFR part 745, subparts E, 

L, and Q, addresses lead-based paint 

hazards created by renovation, repair, 

and painting activities that disturb 

painted surfaces in target housing and 

child-occupied facilities. ‘‘Target 

housing’’ is defined in TSCA section 401 

as any housing constructed before 1978, 

except housing for the elderly or 

persons with disabilities (unless any 

child under age 6 resides or is expected 

to reside in such housing) or any 0- 

bedroom dwelling. Under the final RRP 

rule, a child-occupied facility is a 

building, or a portion of a building, 

constructed prior to 1978, visited 

regularly by the same child, under 6 

years of age, on at least two different 

days within any week (Sunday through 

Saturday period), provided that each 

day’s visit lasts at least 3 hours and the 

combined weekly visits last at least 6 

hours, and the combined annual visits 

last at least 60 hours. Child-occupied 

facilities may be located in public or 

commercial buildings or in target 

housing. 

In the final RRP rule, EPA issued its 

determination that renovation, repair, 

and painting activities that disturb leadbased paint create lead-based paint 

hazards. This finding was based on 

evidence from the TSCA section 

402(c)(2) study and the Dust Study that 

all such activities in the presence of 

lead-based paint create lead-based paint 

hazards. Having made this finding, 

TSCA section 402(c)(3) then directs EPA 

to revise the Lead-based Paint Activities 

regulations to apply to such 

renovations. In the final RRP rule, EPA 

did not interpret its statutory mandate 

to require application of the existing 

TSCA section 402(a) regulations to 

renovations without change. EPA stated 

its belief that Congress, by using the 

word ‘‘revise,’’ and creating a separate 

subsection of the statute for renovation, 

intended that EPA make revisions to 

those existing regulations to adapt them 

to a different set of actions and a very 

different regulated community. As 

discussed in the preamble to the final 

RRP rule, there are significant 

differences between renovations and 

abatements (Ref. 1). For example, 

performing abatement is a highly 

specialized skill that workers and 

supervisors must learn in accredited 

training courses. However, painters, 

plumbers and carpenters already know 

how to perform renovation work, so 

accredited renovator training courses 

are designed to teach renovators how to 

incorporate principles of lead safety into 

their typical work. Accordingly, the rule 

did not merely expand the scope of the 

current abatement requirements to cover 

renovation and remodeling activities. 

Instead, EPA considered the elements of 

the existing abatement regulations and 

revised them as necessary to craft a rule 

that is practical for renovation, 

remodeling and painting businesses and 

their customers, taking into account 

reliability, effectiveness, and safety as 

directed by TSCA section 402(a). 

The final RRP rule establishes 

requirements for training renovators, 

other renovation workers, and dust 

sampling technicians; for certifying 

renovators, dust sampling technicians, 

and renovation firms; for accrediting 

providers of renovation and dust 

sampling technician training; for 

renovation work practices; and for 

recordkeeping. Interested States, 

Territories, and Indian Tribes may apply 

for and receive authorization to 

administer and enforce all of the 

elements of these new renovation 

requirements. 

The final RRP rule created two new 

training disciplines in the field of leadbased paint: renovator and dust 

sampling technician. Persons who 

successfully complete renovator training 

from an accredited renovation training 

provider are certified renovators. 

Certified renovators are responsible for 

ensuring that renovations to which they 

are assigned are performed in 

compliance with the work practice 

requirements set out in 40 CFR 745.85. 

Persons who successfully complete dust 

sampling technician training from an 

accredited training provider are certified 

dust sampling technicians. Certified 

dust sampling technicians may be called 

upon to collect dust wipe samples after 

renovation activities have been 

completed. While the training 

disciplines, the work practice standards, 

and the recordkeeping requirements of 

the final RRP rule differ from those 

established in the lead-based paint 

activities regulations, EPA determined 

that the accreditation requirements 

imposed on persons providing leadbased paint activities training would 

also be effective for persons providing 

renovation training. Therefore, the final 

RRP rule amended 40 CFR 745.225 to 

cover persons who provide or wish to 

provide renovation training for the 

purposes of the final RRP rule. 

As amended, 40 CFR 745.225 requires 

training providers who wish to provide 

lead-based paint activities or renovation 

training for the purposes of the EPA’s 

lead-based paint programs to be 

accredited by EPA. The requirements for 

each course of study are described in 

detail at 40 CFR 745.225 as are the 

operational requirements for training 

programs and the process for obtaining 

accreditation. 

Under the final RRP rule, covered 

renovations in target housing and childoccupied facilities must be performed 

by certified renovation firms. A certified 

firm must ensure that persons who 

perform renovations on behalf of the 

firm are properly trained and that the 

work practice requirements are 

followed. Renovations must be 

performed or directed by certified 

renovators, who are also responsible for 

compliance with the RRP rule’s 

requirements. The final RRP rule 

contains a number of work practice 

requirements that must be followed for 

every covered renovation. These 

requirements pertain to warning signs 

and work area containment, the 

restriction or prohibition of certain 

practices (e.g., high heat gun, torch, 

power sanding, power planing), waste 

handling, cleaning, and post-renovation 

cleaning verification. In contrast, the 

RRP rule did not apply the same 

performance standard of an abatementstyle clearance requirement to 

demonstrate that lead-based paint 

hazards created by the renovation have 

been eliminated. Instead, the RRP rule 

sets forth the steps that must be taken 

to isolate and contain the work area 

before work begins and the cleaning 

protocol that must be followed after the 

renovation has been completed. 

A final step in the process for interior 

renovations is cleaning verification. 

After the RRP rule’s specific cleaning 

protocol has been followed, a visual 

inspection for visible dust and debris is 

performed. If no dust or debris is found, 

a certified renovator must wipe the 

interior windowsills and uncarpeted 

floors with wet disposable cleaning 

cloths and compare each to a cleaning 

verification card developed and 

distributed by EPA. If the cloth matches 

or is lighter than the image on the card, 

the surface represented by the cloth has 

passed the post-renovation cleaning 


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verification. If the cloth is darker than 

the image on the card, the surface 

represented by the cloth must be recleaned and then wiped with a new wet 

cloth, which is then compared to the 

cleaning verification card. If the cloth is 

still darker than the image on the card, 

the surface must be allowed to dry for 

at least an hour. At that time, the surface 

is wiped with a dry electrostatic 

cleaning cloth, which completes the 

cleaning verification process for that 

surface. When all surfaces in the work 

area have completed cleaning 

verification, the renovation has been 

completed and the work area may be reoccupied. 

Shortly after the final RRP rule was 

promulgated, several petitions were 

filed challenging the rule. These 

petitions were consolidated in the 

Circuit Court of Appeals for the District 

of Columbia Circuit. On August 26, 

2009, EPA signed an agreement with the 

environmental and children’s health 

advocacy groups in settlement of their 

petitions. In this agreement EPA 

committed to propose several changes to 

the RRP rule, including the changes 

discussed in this notice. 

Throughout this notice, EPA will use 

several different terms to describe the 

proposed requirements. EPA will use 

the term ‘‘dust wipe testing’’ to mean 

collecting wipe samples of dust on 

floors and windowsills and in window 

troughs, analyzing the samples for lead 

content, and reporting the results of the 

analysis to the owners and occupants of 

the building being renovated. Although 

the term ‘‘dust wipe sampling’’ was used 

in the settlement agreement to describe 

these activities, EPA is using ‘‘dust wipe 

testing’’ in this notice to signal that 

sample analysis may be performed offsite in a traditional laboratory setting or 

on-site by a portable laboratory, so long 

as the entity performing the analysis is 

accredited or recognized by the National 

Lead Laboratory Accreditation Program 

(NLLAP). In this notice, EPA will use 

the term ‘‘dust wipe sampling’’ to refer 

to the specific activity of collecting the 

wipe samples, not to the analysis or 

reporting of results. EPA will use the 

term ‘‘clearance’’ to mean demonstrating, 

through dust wipe testing, that the 

floors, windowsills, and window 

troughs in the renovation work area are 

below the regulatory clearance 

standards that have been established for 

the abatement program and codified at 

40 CFR 745.227(e)(8). This includes recleaning where necessary to achieve the 

clearance standards. 

III. Provisions of This Proposal 

A. Dust Wipe Testing and Clearance 

1. Background. One of the most 

significant issues arising out of the RRP 

rulemaking was the issue of how to 

determine whether a renovation had 

been properly completed. The Leadbased Paint Activities Rule requires 

clearance to be achieved in an 

abatement work area before the 

abatement is considered complete. As 

previously discussed, the abatement 

clearance process involves a visual 

inspection, dust wipe sampling of 

floors, windowsills, and window 

troughs in the work area, analysis by an 

NLLAP-accredited laboratory, and 

comparison of the results to the 

clearance standards. If the sample 

results are below the clearance 

standards, clearance has been achieved 

and the work area may be re-occupied. 

If the sample results are at or above the 

standards, the work area must be recleaned and the clearance process must 

begin again. For this reason, abatement 

projects often include coating floors 

with a sealant. According to the U.S. 

Department of Housing and Urban 

Development’s ‘‘Guidelines For the 

Evaluation and Control of Lead-Based 

Paint Hazards in Housing’’ (HUD 

Guidelines), the purpose of sealing 

floors is not to trap leaded dust 

underneath the sealant, but to provide a 

surface that can be cleaned effectively 

by the resident (Ref. 15). Although 

achieving clearance is not the main 

reason for sealing floors, the process 

typically results in a surface than can 

achieve clearance and be kept clean by 

the resident. This is a sensible approach 

for abatements, because the goal of 

abatement is to permanently eliminate 

lead-based paint and lead-based paint 

hazards. The clearance process ensures 

that no lead-based paint or lead-based 

paint hazards remain in the work area. 

However, EPA recognized that there 

are many differences between 

renovations and abatements. As 

discussed in the preamble to the final 

RRP rule, renovations are different from 

abatements in intent, implementation, 

type of workforce, funding, and goal 

(Ref. 1). One of the biggest challenges 

that faced EPA in revising the TSCA 

section 402(a) Lead-based Paint 

Activities Regulations was how to 

effectively bridge the differences 

between abatement and renovation and 

remodeling while acknowledging that 

many of the activities employed in both 

(e.g., window replacement) are the same 

and generate the same amount of dust. 

Abatements are generally performed in 

three circumstances. First, abatements 

may be performed in the residences of 

children who have been found to have 

elevated blood lead levels. Second, 

abatements are performed in certain 

housing receiving financial assistance 

from HUD when required by HUD’s 

Lead-Safe Housing Rule, codified at 24 

CFR part 35 (see §§ 35.630 and 

35.930(d)). Third, state and local laws 

and regulations may require abatements 

in certain situations associated with 

rental housing, or when abatement 

orders have been issued when resident 

young children, typically under age 6, 

have blood lead levels at or above 

specified values. Typically, when an 

abatement is performed, the housing is 

either unoccupied or the occupants are 

temporarily relocated to lead-safe 

housing until the abatement has been 

demonstrated to have been properly 

completed through dust clearance 

testing. Carpet in the housing is usually 

removed as part of the abatement 

because it is harder to clean. Uncarpeted 

floors that have not been replaced 

during the abatement may need to be 

refinished or sealed in order to achieve 

clearance. Abatements have only one 

purpose—to permanently eliminate 

lead-based paint or lead-based paint 

hazards. 

On the other hand, renovations are 

performed for myriad reasons that may 

have nothing to do with lead-based 

paint. Renovations involve activities 

designed to update, maintain, or modify 

all or part of a building. Renovations 

may be performed while the property is 

occupied or unoccupied. If the 

renovation is performed while the 

property is occupied, the occupants do 

not typically relocate pending the 

completion of the project. 

EPA also recognized that dust wipe 

testing and clearance as required after 

abatements can be expensive. The costs 

can be attributed to two major factors: 

the cost of trained personnel to collect 

the samples and the cost of the 

laboratory analysis. EPA preliminarily 

estimated the cost of three dust wipe 

samples to be $160 to collect and 

analyze (Ref. 13). If EPA had required 

dust wipe testing and clearance after 

every renovation project, it would have 

made up a significant portion of the cost 

of smaller projects. In addition, 

laboratory results may not be available 

for several days. If EPA had required 

traditional abatement-style clearance 

after renovations, the work area would 

not be able to be re-occupied while 

waiting for the laboratory results. 

In addition, EPA was also concerned 

that requiring clearance after every 

renovation job could, in some instances, 

result in the renovation firm being held 

responsible for abating all dust-lead 

hazards, including such hazards that 


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may have existed in the area before the 

renovation commenced. During the 

stakeholder input opportunities 

provided by EPA before issuing the 

2006 Proposal, contractors suggested 

that, if post-renovation dust wipe testing 

were required, the contractors would 

have to protect themselves by collecting 

pre-renovation dust wipe samples, to 

ensure that they would not be held 

liable for pre-existing hazards. 

To address these various concerns, 

EPA began looking for an alternative to 

dust wipe testing and clearance that 

would be quick, inexpensive, reliable, 

and easy to perform. EPA conducted a 

series of studies using commercially 

available disposable cleaning cloths to 

determine whether variations of a 

‘‘white glove’’ test could serve as an 

effective alternative to clearance. Based 

on the favorable final report of these 

studies, entitled ‘‘Electrostatic Cloth and 

Wet Cloth Field Study in Residential 

Housing’’ (Disposable Cleaning Cloth 

Study) (Ref. 16), EPA’s 2006 Proposal 

included a cleaning verification 

protocol using wet and dry disposable 

cleaning cloths. 

Unlike the earlier Disposable Cleaning 

Cloth Study, the Dust Study was not 

designed specifically to evaluate the 

cleaning verification in isolation from 

the rest of the work practices. However, 

the Dust Study did serve as a valuable 

field test of the cleaning verification 

protocol. The Dust Study involved 

actual renovations performed by local 

renovation contractors who received 

instruction in how to perform cleaning 

verification using wet and dry 

disposable cleaning cloths and then 

were left alone to determine whether the 

cleaning cloths matched or were lighter 

than the cleaning verification card 

developed by the EPA. In order to 

maximize the information collected 

about cleaning verification in the Dust 

Study, cleaning verification was 

conducted after each experiment, not 

just those experiments that were being 

conducted in accordance with the 

proposed rule requirements for 

containment and cleaning. 

EPA received numerous comments on 

this aspect of the RRP rulemaking. 

While some commenters supported the 

proposed work practices, including 

cleaning verification, many others 

thought that renovation work areas 

ought to be tested and cleared for reoccupancy in the same way that 

abatement work areas are cleared 

through the clearance process, including 

dust wipe testing. Many commenters 

believed that renovation firms should be 

required to demonstrate that no dustlead hazards had been left behind in the 

work area. These commenters 

contended that the only reliable, safe, 

and effective way to do this was through 

dust wipe testing and clearance. 

These commenters contended that the 

unreliability of cleaning verification 

made it an unsuitable substitute for dust 

wipe testing and clearance. They 

pointed to the sentence in the 

conclusion section of EPA’s Dust Study 

that states that the cleaning verification 

protocol was not always accurate in 

identifying the presence of levels above 

EPA standards for floors and sills. Some 

commenters also noted the Dust Study 

report’s discussion of factors that 

affected the effectiveness of cleaning 

verification, such as floor condition, 

contractor performance, job type, and 

dust particle characteristics. One 

commenter observed that while all 

interior experiments resulted in final 

passed cleaning cloths for all floor zones 

and for all windowsills, nearly half of 

the experiments in the study ended with 

average work room floor lead levels 

above EPA’s dust-lead hazard standard 

for floors of 40 μg/ft2. The Clean Air 

Scientific Advisory Committee, who 

was asked to review the underlying 

analysis for the estimation of the effect 

of the RRP rule on children’s blood lead 

levels, stated that in the Dust Study 

cleaning verification did not provide 

sufficiently reliable results, leading to 

an inaccurate assessment of cleaning 

efficiency. 

EPA agreed with the commenters who 

argued that cleaning verification was 

not a suitable substitute for dust wipe 

testing and clearance. EPA noted in the 

preamble to the final RRP rule that even 

though the Disposable Cleaning Cloth 

Study showed that the cleaning 

verification cloths that reached ‘‘white 

glove’’ were approximately 91% to 97% 

likely to be below the regulatory hazard 

standard, EPA believes the greater 

variability seen in the Dust Study, 

particularly in the experiments where 

the complete suite of proposed work 

practices were not used, does not 

support the characterization of cleaning 

verification as a direct substitute for 

clearance testing. Cleaning verification, 

in itself, is not a substitute for 

quantitative dust wipe testing. However, 

EPA continues to believe that the Dust 

Study supports the validity of cleaning 

verification as an effective component of 

the RRP rule’s work practices. The 

cleaning and feedback aspects of 

cleaning verification are important to its 

contribution to the effectiveness of the 

work practices (Ref. 1). 

In the Dust Study, for renovations not 

involving practices restricted or 

prohibited by the final RRP rule, 

cleaning verification in combination 

with the other required work practices 

were effective at reducing dust lead 

levels on surfaces to or below the dustlead hazard standards, regardless of the 

condition of the floor. Of the 10 

experiments performed in compliance 

with the RRP rule’s work practices, final 

average lead-based paint dust levels 

were at or below the regulatory hazard 

standard (taking into account the 

accepted level of uncertainty, i.e., 

within plus or minus 20%, which is the 

performance criteria for the National 

Lead Laboratory Accreditation 

Program). For the experiments not 

performed according to the RRP rule’s 

work practices, the use of cleaning 

verification after cleaning reduced, often 

significantly, the amount of lead dust 

remaining. EPA determined that there is 

sufficient consistency in the Dust Study 

data to support the use of cleaning 

verification as an effective component of 

the RRP rule’s work practices. 

Commenters also expressed concern 

about the subjectivity of the cleaning 

verification process. They noted that the 

effectiveness of cleaning verification 

relies upon the certified renovator’s 

understanding and application of the 

protocol, ability to define the floor 

sampling area or areas, and use of the 

cleaning verification card to determine 

whether a surface has been adequately 

cleaned. Some commenters speculated 

that the certified renovator’s accuracy in 

comparing the cleaning cloth to the 

verification card could depend on 

factors such as his or her visual acuity, 

the lighting in the room, or simply 

differences in judgment among certified 

renovators. The issue of a person (i.e., 

the certified renovator on the project) 

verifying cleaning of a project that he or 

she has worked on also raised concerns 

about actual or potential conflict of 

interest, which might, even 

unconsciously, affect the person’s 

judgment. One thought that the lack of 

corrections for surface conditions, the 

experience of the person conducting the 

visual assessment, or pre-existing 

conditions might bias the results of 

testing. 

EPA agreed that the visual 

comparison of a cleaning cloth to a 

cleaning verification card has an 

element of subjectivity because the 

visual comparison of cloth to card 

requires some exercise of judgment on 

the part of the person doing the 

comparing. However, EPA did not agree 

that this necessarily makes the 

comparison suspect. The Dust Study 

represented a real-world test of the 

ability of renovators to learn how to do 

cleaning verification and to apply it in 

the field. Although one Dust Study 

participant expressed concern about 

subjectivity, cleaning verification was 


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25046 Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 

successfully performed by the 

renovation contractors in all of the 

experiments performed in compliance 

with the work practices in the final RRP 

rule. In addition, cleaning verification 

was predictive of whether renovators 

had cleaned-up the lead-based paint 

hazards created during the renovation 

activity to the dust-lead standard, 

particularly when the proposed work 

practices were used. The cleaning 

verifications performed during the Dust 

Study were conducted by various 

persons in various lighting conditions 

and on various surface conditions. 

Other commenters did not support 

dust wipe testing and clearance. One 

reason cited by these commenters was 

the cost of dust wipe testing, especially 

if required to be performed by 

independent certified inspectors or risk 

assessors. Some also contended that 

dust clearance testing is time consuming 

and an obstacle to completing the 

renovation job. One commenter noted 

that a major component of the cost of 

performing clearance is due to the fact 

that the portion of the premises affected 

by the renovation would have to remain 

unoccupied. Another commenter noted 

that it is not uncommon for the 

abatement clearance process to be 

conducted up to three times on a home 

to make sure that lead levels are 

sufficiently low. Again, commenters 

expressed the concern that a 

requirement for dust wipe testing and 

clearance would have the effect of 

holding renovation firms responsible for 

pre-existing dust-lead hazards. 

Based on the weight of the evidence 

in the rulemaking record, primarily 

from the Disposable Cleaning Cloth 

Study and the Dust Study, EPA 

determined that, once certain high dust 

generating practices were prohibited or 

restricted, the full suite of work practice 

requirements, including containment, 

cleaning, and cleaning verification, was 

effective at minimizing exposure to 

lead-based paint hazards created by 

renovation, repair, and painting 

activities. At the same time, EPA 

recognizes that cleaning verification is 

an imperfect check on whether the dustlead hazard standard has been achieved. 

Among other things, as commenters 

pointed out, there is an element of 

subjectivity to cleaning verification, 

which is not present in dust wipe 

testing. 

In the final RRP rule, EPA gave 

significant weight to the cost, timing, 

and liability concerns expressed by 

commenters. In balancing the various 

considerations, EPA concluded that 

cleaning verification, as part of the full 

suite of work practices, was an 

appropriate check on the effectiveness 

of the work practices. EPA has 

continued to balance these 

considerations in today’s proposal, but 

has preliminarily concluded that, for 

certain jobs, the additional benefits of 

dust wipe testing, and in some cases 

clearance, warrant imposing these 

additional requirements. 

2. Proposed requirements for dust 

wipe testing after certain renovations. 

This proposal contains dust wipe testing 

requirements for many renovations. In 

most of these situations, the renovation 

firm will only be required to provide the 

dust wipe testing results to the building 

owners and occupants. However, as 

discussed more fully in Unit III.A.3. of 

this preamble below, after two types of 

renovations, this proposal would also 

require renovation firms to achieve 

clearance. 

EPA has evaluated the value of the 

information that would be available to 

renovation firms and building owners 

and occupants through such testing. 

EPA expects two kinds of benefits to 

flow from proposed dust wipe testing 

requirements. The first are the direct 

benefits of the information to the 

owners and occupants, the pure value of 

the information on dust lead levels 

remaining in the renovation work area, 

including leaded dust that may have 

been generated during the renovation 

activity. For building owners and 

occupants, this information is likely to 

improve their understanding and 

awareness of dust-lead hazards. It will 

also greatly improve their ability to 

make further risk management 

decisions. This information is 

particularly critical where dust lead 

levels approach or exceed the regulatory 

hazard standards. One commenter on 

the 2008 RRP rule described the value 

of dust wipe testing results in this way: 

‘‘Because the white glove test does not 

provide a numeric result, a family is 

given limited information from which to 

make informed decisions and worse yet, 

may be given a false sense of security.’’ 

(Ref. 17) The commenter then argued 

that, ‘‘although the federal floor dust 

standard is set at 40 μg/ft2, there is 

sufficient evidence to suggest that floors 

well below this standard may endanger 

children. Property owners and residents 

should be provided quantitative 

information so they can choose what 

actions to take based on those levels.’’ 

The commenter believed that in 

instances where floor dust wipe test 

results are just below the EPA regulatory 

standard, the owners or occupants may 

want to undertake additional cleaning. 

The value of this information has new 

significance in light of recent 

epidemiological studies that indicate 

the current lead-based hazard standards 

are insufficiently protective. 

In addition, in enacting the 

Residential Lead-based Paint Hazard 

Reduction Act of 1992, Congress 

recognized that there is a value in 

providing information to property 

owners and occupants. Section 1018 of 

the Act requires the disclosure of 

information on lead-based paint and 

lead-based paint hazards to purchasers 

and tenants of target housing. Even if no 

specific information on the housing to 

be sold or rented is available, the seller 

or landlord must provide a lead hazard 

information pamphlet to the purchaser 

or tenant. Similarly, TSCA section 

406(b) requires renovators or their firms 

to provide a lead hazard information 

pamphlet to the owners and occupants 

of target housing before beginning a 

renovation in the housing. The 

information provided by dust wipe 

testing after renovations is a different 

and more targeted benefit, i.e., a more 

accurate check on whether the hazard 

standard has been met at completion of 

the job, but it is in line with the broader 

statutory emphasis on disclosure of 

information related to possible leadbased paint hazards. This information is 

beneficial in the same way that 

disclosure of known lead-based paint 

and lead-based paint hazards is 

beneficial to purchasers and tenants 

under Section 1018. 

The other benefits that EPA expects to 

flow from a dust wipe testing 

requirement are the benefits that may 

result from changed behavior on the 

part of renovation firms. EPA believes 

that dust wipe testing results will also 

provide valuable feedback to renovation 

firms on how well they are cleaning up 

after renovations. In its Evaluation of 

the HUD Lead-Based Paint Hazard 

Control Grant Program (Ref. 18), HUD 

noted that the rate of passing initial 

clearance was associated with repetition 

of lead hazard control activities. As 

renovation firms become more familiar 

with the performance requirements for 

cleaning on projects covered by the RRP 

rule, their projects are more likely to 

require fewer cleaning cycles. 

It is also likely that having to provide 

to owners and occupants the specific 

dust lead levels contained in dust wipe 

testing results will increase renovation 

firm cleaning efficiency. Renovation 

firms will be incentivized to lower the 

dust lead levels remaining after 

renovation jobs, even if the levels are at 

or near the regulatory standards. In 

particular, firms that might otherwise be 

inclined to be less than thorough in the 

use of the disposable cleaning cloths in 

order to avoid darkening the cloths will 

be incentivized to perform cleaning 


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verification thoroughly. Because proper 

cleanup plays such a vital role in the 

minimization of dust-lead hazards 

created by renovations, providing 

information on dust lead levels 

remaining after renovations to building 

owners and occupants will serve as an 

incentive for firms to perform postrenovation cleaning efficiently, 

thoroughly, and correctly so that the 

benefits of the RRP rule may be fully 

realized. 

EPA is therefore proposing to require 

that dust wipe testing be performed after 

many renovation jobs. EPA has 

determined that dust wipe testing 

results will provide a valuable check on 

the performance of cleaning verification 

and the other work practices for most of 

the paint-disturbing renovations 

covered by the Dust Study (Ref. 14). In 

reviewing the data from the Dust Study, 

EPA believes that, of the jobs performed 

in the Dust Study, the additional 

safeguard of dust wipe testing is 

warranted where the floor dust-lead 

levels changed markedly from pre-work 

to post-cleaning to post-cleaning 

verifications. The only jobs where this 

did not occur were the renovations 

involving cut-outs, which also created 

significantly less dust than most other 

renovations. 

Accordingly, today’s proposal would 

require dust wipe testing on uncarpeted 

floors, windowsills, and window 

troughs in the work area after the 

following types of interior renovations: 

• Use of a heat gun at temperatures 

below 1100 degrees Fahrenheit. 

• Removal or replacement of window 

or door frames. 

• Scraping 60 ft2 or more of painted 

surfaces. 

• Removing more than 40 ft2 of trim, 

molding, cabinets, or other fixtures. 

These jobs represent all of the 

experiments conducted in the Dust 

Study other than those involving cutouts or practices prohibited or restricted 

by the final RRP rule. The experiments 

labeled ‘‘kitchen gut’’ in the Dust Study 

mostly involved the removal of kitchen 

cabinets and kitchen fixtures. The 

scraping experiments involved the 

scraping of approximately 60 ft2 or more 

of lead-based paint, so EPA is proposing 

to limit the dust wipe testing 

requirement to renovations during 

which at least that much painted surface 

is scraped. EPA requests comment, 

information, or data on whether the 

threshold for dust wipe testing after 

renovations involving scraping should 

be lowered to 6 ft2, which is the minor 

maintenance threshold, or to some other 

number. Likewise, the trim and molding 

removal experiments all involved the 

removal of more than 40 ft2 of trim or 

molding, so EPA is proposing to limit 

the dust wipe testing requirement to 

renovations during which at least that 

much trim or molding is removed. EPA 

also requests comment, information, or 

data on whether the threshold for dust 

wipe testing after trim, molding, 

cabinet, or fixture removal should be 

lowered. EPA acknowledges that the 

benefits identified above of dust wipe 

testing would apply for these smaller 

jobs, as well as the larger jobs covered 

by today’s proposal. At the same time, 

in order to ensure a program that is 

practical for renovation activities, EPA 

has tried in this proposal to maintain 

some proportionality between the 

complexity and cost of the proposed 

requirements on one hand, and the size 

and cost of the renovation job on the 

other. 

EPA wishes to clarify that the size 

thresholds for scraping painted surfaces 

and removing trim, molding, cabinets, 

or other fixtures would be calculated on 

a per-job basis. This is in contrast to the 

minor repair and maintenance 

exception, which is calculated on a perroom basis for interior projects. 

EPA is also requesting comment on 

whether dust wipe testing should be 

required in situations where a surface 

fails the cleaning verification process 

twice, i.e., when the second wet 

disposable cleaning cloth is darker than 

the cleaning verification card. In that 

case, the surface must be allowed to dry 

for at least an hour, after which the 

certified renovator must wipe the 

surface with a dry electrostatic cleaning 

cloth. In the Dust Study, only four 

surfaces failed cleaning verification 

twice, representing two of the sixty 

experiments. In one experiment 

involving cut-outs, a vinyl floor in poor 

condition failed cleaning verification 

twice. The average dust-lead level on 

the floor after the second wet disposable 

cleaning cloth was 61.5 μg/ft2, and after 

the dry electrostatic cleaning cloth, the 

level was 57.2 μg/ft2. However, this 

floor was in such poor condition that 

after two pre-cleanings, the cleanings 

done before any experiments were 

conducted, the floor dust lead levels 

were still 95 μg/ft2. Thus, the floor was 

cleaner than when it started, even 

though it failed cleaning verification 

twice. In the other experiment, a kitchen 

gut performed on a tile floor in fair 

condition, three floor sections failed the 

second cleaning verification. After the 

second wet disposable cleaning cloth, 

the average dust lead levels on two of 

the three failed sections were less than 

10 μg/ft2, while the other was 

significantly higher at 150 μg/ft2. 

Nevertheless, after the dry electrostatic 

cleaning cloth wipe, the dust lead levels 

for all floor sections averaged 41.4 μg/ 

ft2, which is within the accepted level 

of uncertainty, i.e., within plus or minus 

20%, for the National Lead Laboratory 

Accreditation Program (NLLAP). 

The dust wipe testing would have to 

be performed in a manner similar to the 

abatement clearance sampling 

requirements at 40 CFR 745.227(e)(8). 

After the cleaning required by 40 CFR 

745.85(a)(5) has been performed, a 

certified inspector, certified risk 

assessor, or certified dust sampling 

technician would be required to perform 

a visual inspection to ensure that the 

work area is free of visible dust, debris 

or residue. EPA is proposing to require 

this second visual inspection, in 

addition to the one performed by the 

certified renovator before cleaning 

verification, because, in many cases, the 

person performing the dust wipe testing 

will not be the same person who 

performed the cleaning verification. In 

addition, there may be a delay between 

the completion of cleaning verification 

and the beginning of dust wipe testing. 

EPA believes that the requirement for a 

visual inspection immediately prior to 

dust wipe testing will give the certified 

inspector, risk assessor, or dust 

sampling technician a means to address 

any concerns they may have as to the 

cleanliness of the work area. The 

locations for dust wipe samples would 

be dependent on the number of rooms, 

hallways, or stairwells within the work 

area. If there is more than 1 room, 

hallway, or stairwell within the work 

area, the following samples would have 

to be collected: 

• 1 windowsill sample, 1 window 

trough sample, and 1 floor sample 

within each room, hallway, or stairwell 

(no more than 4 rooms, hallways, or 

stairwells need be sampled). 

• 1 floor sample adjacent to the work 

area, but not in an area that has been 

cleaned. 

If the work area is a single room, 

hallway, or stairwell, or a smaller area, 

the following samples would have to be 

collected: 

• 1 windowsill sample, 1 window 

trough sample, and 1 floor sample. 

• 1 floor sample adjacent to the work 

area, but not in an area that has been 

cleaned. 

If there are no uncarpeted floors in the 

work area, then no floor samples would 

need to be collected. The same would be 

true for windows and windowsill or 

trough samples. Dust wipe samples 

would be collected in accordance with 

the protocol in ‘‘Residential Sampling 

for Lead: Protocols for Dust and Soil 

Sampling’’ (Ref. 19). 

HUD’s Lead Safe Housing Rule, at 24 

CFR 35.1340(g), requires the sample 


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25048 Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 

adjacent to the work area to be collected 

within 5 feet of the work area in an area 

that is connected to the work area. This 

specifically precludes samples from 

being collected from rooms separated 

from the work area by a solid wall. EPA 

requests comment on whether these 

provisions should be incorporated into 

this rulemaking. 

EPA also requests comment on 

whether this protocol is sufficient to 

determine dust lead levels remaining on 

floors, windowsills, and window 

troughs. This protocol has been used for 

more than a decade in clearance 

examinations after lead abatements and 

HUD interim lead hazard control work. 

However, one test per surface may not 

always be enough to accurately 

characterize the dust lead levels over 

the entire surface. While the physical 

variability of dust loadings and lead 

concentrations across a room has not 

been thoroughly investigated, several 

studies including EPA’s EFSS have 

found high variability in side-by-side 

samples collected before and after 

various activities (Ref. 10). EPA requests 

comment on whether more tests should 

be required, and, if so, what protocol 

should be followed in determining the 

number and location of additional tests. 

For example, one option would be to 

follow the ASTM International 

‘‘Standard Practice for Clearance 

Examinations Following Lead Hazard 

Reduction Activities in Dwellings, and 

Other Child-Occupied Facilities.’’ This 

document says that for rooms that 

exceed 500 ft 2, the floor should be 

divided into two or more equal parts of 

500 ft 2 or less and a sample collected 

in each part (Ref. 20). 

EPA requests comment on whether 

the provision for random clearance 

sampling in multi-unit buildings in the 

Lead-based Paint Activities regulations 

at 40 CFR 745.227(e)(9) should be 

incorporated into this regulation. This 

would permit random testing of 

individual housing units after 

renovations affecting multiple 

individual housing units in a multifamily dwelling with similarly 

constructed and maintained residences. 

Consistent with 40 CFR 745.227(e)(9), to 

take advantage of this provision, the 

certified renovators and other trained 

persons who renovate or clean the 

individual housing units would not 

know in advance which units would be 

selected for random testing. In addition, 

the dust wipe testing would have to be 

performed by a certified inspector or 

certified risk assessor and the number of 

residential units selected for dust wipe 

testing would have to be sufficient to 

provide a 95 percent level of confidence 

such that, if clearance were required, no 

more than 5 percent or 50 of the 

residential units (whichever is smaller) 

in the randomly-sampled population 

would exceed the applicable clearance 

levels. This is the standard for random 

clearance sampling after abatement 

projects and this particular requirement 

would be designed to allow certified 

inspectors and certified risk assessors to 

use the training they have already 

received on random clearance sampling 

after abatement projects to decide which 

units to test after a renovation in a 

multi-family dwelling. 

Although random dust wipe testing 

has the potential to reduce costs for a 

large multi-unit renovation project, it 

may not be appropriate for this rule, 

given that an important purpose for the 

proposed dust wipe testing 

requirements is the provision of 

information to building owners and 

occupants. However, random sampling 

is already accepted by EPA and HUD for 

disclosure of information on lead-based 

paint inspections, risk assessments and 

abatement clearances under the 

Disclosure Rule (Ref. 21), and for 

notification after activities other than 

abatement under HUD’s Lead Safe 

Housing Rule at 24 CFR 35.125(b) and 

35.1340(b)(2)(i). EPA also requests 

comment on whether a random 

sampling provision should be 

incorporated, but limited to situations 

where the HUD rule applies or to 

situations where the housing is 

completely vacant, e.g., an entire 

apartment building is vacant and being 

renovated. 

In addition, the current requirements 

for dust sampling technician courses do 

not include random sampling, so dust 

sampling technicians would not be able 

to select the units and locations for 

random dust wipe testing. Dust 

sampling technicians could perform the 

actual sampling or testing, so long as the 

locations for testing were selected by a 

certified inspector or risk assessor. EPA 

requests comment on whether EPA 

should modify the dust sampling 

technician course requirements to 

include random testing in multi-family 

buildings so that dust sampling 

technicians would be able to select units 

randomly as do certified inspectors and 

certified risk assessors. EPA also 

requests comment on whether this 

could be done and still allow the course 

to be taught within a single 8-hour day. 

Dust wipe testing results would have 

to be provided by an entity accredited 

or recognized under the NLLAP. EPA 

established the NLLAP in accordance 

with TSCA section 405(b) to assure the 

public that analytical laboratories 

recognized by the EPA have 

demonstrated that they are capable of 

accurately analyzing for lead in paint 

chip, dust, and soil samples. In January 

2008, the Agency announced in the 

Federal Register changes to NLLAP that 

expand the opportunity to participate in 

the NLLAP to all lead testing service 

providers (Ref. 22). These providers 

include: 

• Fixed-site operations that perform 

analytical lead testing at a permanent 

location under controlled 

environmental conditions; 

• Mobile facilities, or transportable, 

self-contained operations that can 

perform analytical lead testing under 

controlled environmental conditions; 

and 

• Field sampling and measurement 

organizations (FSMOs), or operations 

that perform on-site sampling and lead 

testing using portable testing 

technologies. 

Portable testing technologies that might 

be employed by FSMOs, once 

accredited or recognized, include 

devices such as an x-ray fluorescence 

(XRF) analyzer, an anodic stripping 

voltammetry (ASV) analyzer, or any 

other portable technology that has been 

shown to accurately and verifiably 

measure lead content in dust, paint 

chip, or soil. EPA believes these NLLAP 

changes remove barriers and provide a 

process so that all types of lead testing 

service providers may participate in the 

NLLAP. This can make the NLLAP more 

efficient and cost-effective while 

maintaining the high standard of 

quality, science and technology for 

those who purchase analytical services 

related to lead hazard identification and 

control. The ability for portable dust 

testing technologies to become 

accredited under NLLAP is particularly 

relevant to this rulemaking, because 

EPA believes that this will make dust 

wipe testing less expensive and timeconsuming. 

EPA requests comment on additional 

technologies that may be available for 

sampling or testing for lead in dust. EPA 

is seeking information on what 

technologies are available, along with 

information on the research or 

evaluations that may have been 

conducted on these technologies. EPA is 

also interested in research or other 

information on technologies that show 

promise for commercial development. 

Persons performing visual 

inspections, collecting dust wipe 

samples, or analyzing dust wipe 

samples would not be required to be 

third parties independent of the firm 

performing the renovation. This is 

consistent with the final RRP rule and 

EPA’s abatement regulations. EPA has 

historically not required independent 


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Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 25049 

third parties to perform testing for two 

reasons. The first is the cost savings and 

convenience of being able to hire just 

one firm to perform all necessary leadbased paint activities. The second is the 

potential regional scarcity of firms to 

perform the work. As discussed in the 

preamble to the final RRP rule, these 

considerations are also likely to be 

applicable to the renovation sector (Ref. 

1, at 21711). EPA does recommend, 

however, that the renovation firm 

comply with the HUD’s prohibition 

against the same person performing both 

the renovation activity and the 

clearance process. (See 24 CFR 

35.1340(f)). EPA requests comment on 

whether EPA should impose the same 

prohibition or a similar prohibition with 

perhaps an exception for single person 

firms. 

Under this proposal, dust wipe testing 

would be performed after cleaning 

verification, not instead of it. Cleaning 

verification is useful because it 

combines fine cleaning properties with 

feedback to the certified renovator on 

the effectiveness of the post-renovation 

cleaning process. As discussed in the 

preamble to the final RRP rule, the Dust 

Study demonstrated that cleaning 

verification is quite often needed to 

minimize exposure to dust-lead hazards 

created during renovations (Ref. 1, at 

21744). In 4 of the 10 experiments 

performed in accordance with the final 

RRP rule requirements for containment, 

cleaning, and cleaning verification, the 

average post-cleaning floor dust lead 

levels were above the clearance 

standards. In those experiments, 

cleaning verification was needed to 

reduce average dust lead levels below 

the standards. In addition, dust wipe 

testing only tests part of the surface, 

and, as discussed above, leaded dust 

may not be distributed uniformly over 

the entire surface. In contrast, cleaning 

verification provides feedback on 

cleaning effectiveness over the entire 

surface so variability in distribution 

presents fewer challenges. EPA remains 

concerned that if dust wipe testing were 

allowed instead of cleaning verification, 

without an accompanying requirement 

that the renovation firm re-clean until 

clearance is achieved, the RRP rule 

would actually be less protective 

because the surfaces in the work area 

could be left less clean than if cleaning 

verification were performed. 

Accordingly, dust wipe testing would be 

performed after cleaning verification has 

been performed in accordance with the 

existing protocol. After the dust wipe 

samples have been collected, the 

renovation would be considered 

complete, the warning signs could be 

removed, and the work area could be reoccupied. Re-occupancy would not have 

to wait until the results of the testing 

were available. 

However, because re-occupancy can 

occur immediately after the dust wipe 

samples are collected, it is important to 

ensure that the results of the dust wipe 

testing be communicated to owners and 

occupants as soon as practicable. 

Accordingly, this proposal requires the 

certified inspector, certified risk 

assessor, or certified dust sampling 

technician to prepare a dust wipe 

testing report and provide it to the 

renovation firm within 3 days of the 

date that the results are obtained. If the 

dust wipe testing results are to be 

determined by a fixed-site laboratory, 

the samples would have to be sent to the 

laboratory within 1 business day of the 

date that they are collected. The dust 

wipe testing report would include the 

name and signature of each certified 

person collecting the samples or 

performing the testing, the name and 

address of each certified firm employing 

the person(s) conducting the sampling 

or testing, the start and completion 

dates of the renovation, a brief written 

description of the renovation, the results 

of the visual inspection, a detailed 

written description of the specific 

sampling or testing locations or a 

detailed drawing that clearly identifies 

the location of each sample or test, the 

name of the NLLAP-recognized entity 

analyzing the results, the results of each 

sample or test, and the clearance 

standard that is applicable to each 

sample or test. EPA does not expect 

long, involved narrative descriptions in 

these reports. The results of the visual 

inspection could be as simple as ‘‘no 

dust, debris, or residue was visible in 

the work area,’’ while the brief written 

description of the renovation could be 

as simple as ‘‘replaced all of the 

windows in the upstairs bedrooms.’’ The 

report should be organized and 

presented in such a way that the 

recipients of the report will be able to 

easily understand the information 

presented. The report must be a single 

document, with clearly-identifiable 

attachments, such as analytical reports 

from NLLAP laboratories, where 

appropriate. If a significant number of 

tests are involved, the certified 

individual preparing the report should 

incorporate an executive summary 

presenting the overall results, with 

particular attention given to those 

results that exceeded the applicable 

clearance standards. 

The renovation firm would be 

required to provide this report to the 

owner of renovated target housing or 

child-occupied facilities within 3 days 

of the date that the renovation firm 

receives the report. The renovation firm 

would also have to provide the report 

within 3 days of receipt to the 

occupants of individual housing units 

that have been renovated, if the housing 

units are not owner-occupied. Similarly, 

the report would have to be provided 

within 3 days to the proprietor of 

renovated child-occupied facilities if 

they are not operated by the building 

owner. If the renovation firm has chosen 

to notify each individual housing unit 

affected by a renovation in a common 

area of target housing, or each parent or 

guardian of a child under age 6 using a 

renovated child-occupied facility, the 

renovation firm would also have to 

provide these persons with the dust 

wipe testing report within 3 days of the 

date that the renovation firm receives 

the report. In cases where the 

renovation firm has chosen to post signs 

to notify tenants affected by common 

area renovations, or parents and 

guardians of children under age 6 using 

a child-occupied facility, the renovation 

firm would have to provide the dust 

wipe testing report upon request. EPA 

requests comment on whether the 

renovation firm should be required to 

provide the dust wipe testing report to 

the building owner and occupants with 

the final invoice or within 3 days of the 

date that the report is received, 

whichever is earlier. 

3. Clearance. For two types of 

renovations that can create large 

amounts of difficult-to-clean dust, EPA 

remains concerned about the possibility 

that dust lead levels remaining, even 

after cleaning verification, may 

substantially exceed the clearance 

standards. These are renovations that 

disturb paint using machines designed 

to remove paint through high speed 

operation, such as power sanders or 

abrasive blasting, when equipped with 

high-efficiency particulate air (HEPA) 

exhaust controls and the demolition, or 

removal, through destructive means, of 

plaster and lath walls, ceilings or other 

building components. If renovation 

firms choose to utilize these methods, 

EPA is also proposing to require that 

renovation firms demonstrate, through 

dust wipe testing, that they have met the 

clearance standards before the 

renovation will be considered 

completed. 

EPA’s Dust Study demonstrated that 

machines that remove paint through 

high-speed operation, in the absence of 

HEPA exhaust control, create enormous 

amounts of leaded dust that is 

particularly difficult to clean up. In the 

Dust Study, the geometric mean postwork floor dust lead levels after 

experiments involving power planing 


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25050 Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 

were 201,902 μg/ft2. That was the only 

type of power tool experiment done 

indoors during the Dust Study. 

However, two additional high speed 

tool experiments were done on 

exteriors, power sanding and needle 

gun. In these cases, using the Dust 

Study results from the surface of the 

plastic containment required by the 

rule, the geometric mean post-work 

floor dust lead levels that could be 

expected from work done using these 

types of tools without HEPA exhaust 

control are 591,491 μg/ft2 for power 

sanding, and 195,372 μg/ft2 for the 

needle gun. 

In the Dust Study, the work practices 

required by the final RRP rule, 

containment, specialized cleaning, and 

cleaning verification, were, in most 

cases, unable to reduce the dust lead 

levels remaining on the work area floors 

after power planing to anything close to 

the clearance standard of 40 μg/ft2. 

Accordingly, EPA banned the use of 

machines that remove lead-based paint 

through high speed operation without 

HEPA exhaust control. 

EPA did not perform any experiments 

in the Dust Study with power tools 

equipped with HEPA exhaust control. 

However, EPA has subsequently 

reviewed 14 published studies that 

examined the effectiveness of HEPA 

exhaust control on power tools (Ref. 23). 

These 14 studies reported reductions in 

airborne dust levels ranging from 70 to 

99 percent. However, most studies (9) 

reported reductions in airborne dust 

levels between 90 and 95 percent. 

Applying a 90 to 95 percent reduction 

to the post-work dust lead levels 

generated by the power tools in the Dust 

Study results in dust-lead levels of 

20,190 μg/ft2 to 10,095 μg/ft2 for door 

planing, 59,149 μg/ft2 to 29,575 μg/ft2

for power sanding, and 19,537 μg/ft2 to 

9,769 μg/ft2 for needle gun use. It is 

likely that the work practices required 

by the final RRP rule will be unable to 

reduce these levels to anything 

approximating the clearance level of 40 

μg/ft2 at the end of the job because of 

the quantity of the dust generated and 

the particular characteristics of this dust 

that make it hard to clean up. 

In addition, in order to achieve 90 to 

95 percent effectiveness, the HEPA 

exhaust control must be maintained 

properly and used correctly. Any lapse 

in either maintenance or use could 

result in much higher dust lead levels 

remaining after a renovation. For 

example, when sanding a mantle, if the 

renovation worker moves half of the 

sander off the edge of the mantle, the 

HEPA exhaust control will not be 

operating at maximum collection 

efficiency. The same problem would 

occur any time that the entire sander is 

not in contact with the surface, such as 

when sanding a curved surface. 

With respect to the demolition of 

plaster, EPA did not perform any 

experiments involving that kind of 

renovation activity in the Dust Study. 

However, demolition of several different 

plaster walls was studied in the EFSS. 

The EFSS measured worker exposures 

by personal air monitoring, and 

estimated occupant exposures by dust 

wipe sampling. Dust wipe sampling in 

the EFSS was done from stainless steel 

dustfall collectors placed at various 

locations adjacent to and at varying 

distances from the activity. The 

estimated lead loading over a 6 ft2 area 

resulting from the demolition of a 

plaster wall was 19,500 μg, the highest 

loading for any of the typical activities 

studied. However, according to the 

EFSS, no collectors were placed 

adjacent to demolition activities ‘‘due to 

the large amount of debris.’’ (Ref. 10, at 

9–10) EPA was able to determine the 

functional relationship between settled 

dust and distance for the demolition 

activity, but the relationship ‘‘does not 

take into account the amount of lead 

that settles at a location directly 

adjacent to the activity. Since the settled 

dust samples associated with the 

demolition were all located at a distance 

from the activity space, the estimated 6- 

foot by 1-foot gradient lead loading in 

the demolition activity is interpreted as 

being the amount of lead found in the 

6-foot by 1-foot region that was airborne 

in dust and smaller particles, rather 

than the total amount of lead disturbed.’’ 

(Ref. 10, at 9–10) 

In the EFSS, EPA also reviewed data 

on plaster wall demolition available 

from OSHA (Ref. 10). The study 

monitored the demolition of interior 

plaster walls and ceilings in a home 

using hammers and claw-bars. This 

study involved only personal air 

monitoring, not settled dust sampling. 

The geometric mean worker exposure 

for the demolition activities studied by 

the EFSS was 107 μg/m3, while the 

geometric mean worker exposure for the 

OSHA study was 166 μg/m3. Because of 

the length of time involved in 

demolishing a plaster wall, both of these 

activities are likely to substantially 

exceed the OSHA permissible exposure 

limit of 50 μg/m3 as an 8-hour timeweighted average. 

These studies demonstrate that plaster 

wall demolition creates large amounts of 

lead-contaminated dust. EPA also 

believes that this dust is particularly 

difficult to clean up, because of the 

qualities of plaster and the way in 

which such demolition is typically done 

through destructive means such as 

sledgehammers. The dust created by 

this activity is likely to consist of very 

fine particles. EPA is concerned that, 

like the dust produced by machines that 

remove paint through high speed 

operation, the large quantities of dust 

created by plaster wall demolition will 

overwhelm the containment, specialized 

cleaning, and cleaning verification 

processes and result in renovation work 

areas being re-occupied with lead-based 

paint hazards created by the renovation 

still in place. 

Given these concerns, EPA is 

proposing to require renovation firms to 

follow a clearance process similar to 

that performed after abatement projects 

after renovations involving the 

disturbance of paint using machines 

designed to remove paint through high 

speed operation or the demolition, or 

removal, through destructive means, of 

more than 6 ft2 of plaster and lath 

building component. After the cleaning 

required by 40 CFR 745.85(a)(5) and the 

cleaning verification required by 40 CFR 

745.85(b)(1), dust wipe testing would 

have to be performed in exactly the 

same way that it would be required after 

the renovations discussed in Unit 

III.A.2. of this preamble. If any of the 

test results equal or exceed the 

regulatory clearance standards in 40 

CFR 745.85(b)(4), the renovation firm 

would be required to re-clean the 

surfaces represented by those tests in 

accordance with 40 CFR 745.85(a)(5)(ii). 

Those surfaces would have to be retested, and the results compared to the 

clearance standards. 

With respect to plaster removal, the 

clearance requirement would apply only 

to walls, ceilings constructed of plaster 

and lath, not gypsum drywall finished 

with plaster. The experiments 

performed and reviewed in the EFSS 

involved plaster and lath walls, not 

drywall. In this country, interior walls 

were commonly constructed of plaster 

and lath until the 1950’s, when drywall 

began to replace the lath and plaster 

construction method. Again, this 

clearance requirement would only apply 

to plaster removal done through 

destructive means, such as 

sledgehammers. 

This proposal would not allow 

renovation firms to skip the cleaning 

verification step when they are required 

to perform clearance. The Dust Study 

demonstrates that cleaning verification 

is an important part of the cleaning 

process. Of the 10 experiments 

completed in the Dust Study in 

accordance with the final RRP rule 

requirements, 4 required the additional 

cleaning provided by cleaning 

verification to reach an average floor 

dust lead level below 40 μg/ft2 (Ref. 14). 


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The additional cleaning resulting from 

cleaning verification was particularly 

dramatic in the window replacement 

experiments, where the dust lead levels 

on the floor were cut nearly in half by 

cleaning verification. EPA is specifically 

requesting comment on cleaning 

verification requirements for surfaces 

that fail clearance due to high dust wipe 

test results. While the Dust Study shows 

that cleaning verification is a very 

effective cleaning method, EPA 

recognizes that there is a cost associated 

with multiple cleaning verification 

passes over a surface, particularly if the 

surface fails the wet disposable cleaning 

cloth phase and must be allowed to dry 

for an hour before using a dry 

electrostatic disposable cleaning cloth. 

Although not specifically studied, the 

Dust Study suggests that it would be 

unlikely for a surface that had been 

cleaned and had gone through the 

cleaning verification process to fail 

another round of cleaning verification. 

Sixty interior experiments were 

performed in the Dust Study; only 3 

work room floors failed all rounds of 

cleaning verification. Two of those were 

performed using only baseline work 

practices, no containment or specialized 

cleaning, on a vinyl floor in poor 

condition that EPA’s contractor had 

difficulty pre-cleaning to below 40 μg/ 

ft2 before beginning the study. The third 

was on a tile floor in fair condition, with 

plastic containment but no specialized 

cleaning. In addition, of the 4 

experiments in the Dust Study 

performed in accordance with the final 

RRP rule that needed cleaning 

verification to reduce average floor dust 

lead levels below 40 μg/ft2, failed 

cleaning verification cloths were only 

seen in 1. The reductions in dust lead 

levels seen in the window replacement 

experiments occurred after only 1 pass 

with a wet disposable cleaning cloth. In 

light of these results, this proposal 

would require surfaces failing clearance 

due to high dust wipe test results to be 

recleaned in accordance with the RRP 

rule, HEPA vacuuming followed by wet 

wiping or mopping, followed by one 

round of cleaning verification using a 

wet disposable cleaning cloth. This 

cloth would not have to be compared to 

the cleaning verification card, the 

renovation firm could conduct 

additional dust wipe testing for 

clearance purposes on the surface as 

soon as it has dried. 

EPA is also proposing to eliminate the 

existing provision that allows 

renovation firms to perform clearance in 

lieu of cleaning verification when 

another Federal, State, or local law or 

regulation, or the contract between the 

renovation firm and the property owner, 

requires the renovation firm to use 

qualified entities to perform dust wipe 

testing and requires the renovation firm 

to achieve clearance. Because cleaning 

verification has been shown to be such 

an important part of the post-renovation 

cleaning process, and because that 

provision would be inconsistent with 

this proposal, EPA believes that it 

should be eliminated. Rather, this 

proposal would require cleaning 

verification to be performed in the same 

way it would have to be performed after 

jobs involving demolition or removal of 

plaster through destructive means or the 

disturbance of paint using machines 

designed to remove paint through highspeed operation. 

The renovation would not be 

considered complete, and the warning 

signs would have to remain in place, 

until the renovation firm can 

demonstrate through a dust wipe testing 

report that it has met the clearance 

standards. The certified inspector, 

certified risk assessor, or certified dust 

sampling technician performing the 

sampling or testing would be required to 

prepare a clearance report. The 

clearance report would include the start 

and completion dates of the renovation; 

a brief written description of the 

renovation; the name and address of 

each certified firm employing each 

certified inspector, certified risk 

assessor, or certified dust sampling 

technician performing the clearance 

procedures; the name and signature of 

each certified inspector, certified risk 

assessor, or certified dust sampling 

technician performing the clearance 

procedures and the dates that the 

clearance procedures were performed; 

the results of the visual inspection; a 

detailed written description of the 

specific sampling or testing locations or 

a detailed drawing that clearly identifies 

the location of each sample or test; the 

results for each dust wipe sample or 

test; whether or not clearance was 

achieved; and the name of each 

recognized entity that conducted the 

analyses. As with the dust testing 

report, EPA does not expect long, 

involved narrative descriptions in these 

reports. The results of the visual 

inspection could be as simple as ‘‘no 

dust, debris, or residue was visible in 

the work area,’’ while the brief written 

description of the renovation could be 

as simple as ‘‘replaced all of the 

windows in the upstairs bedrooms.’’ 

However, the report should be 

organized and presented in such a way 

that the recipients of the report will be 

able to easily understand the 

information presented. The report must 

be a single document, with clearlyidentifiable attachments, such as 

analytical reports from NLLAP 

laboratories, where appropriate. If a 

significant number of tests are involved, 

the certified individual preparing the 

report should incorporate an executive 

summary presenting the overall results, 

with particular attention to those results 

that exceeded the applicable clearance 

standards. 

The certified inspector, certified risk 

assessor, or certified dust sampling 

technician would be required to provide 

a copy of this report to the renovation 

firm within 3 days of the date that the 

dust wipe testing results are obtained. If 

the dust wipe testing results are to be 

determined by a fixed-site laboratory, 

the samples would have to be sent to the 

laboratory within 1 business day of the 

date that they are collected. The 

renovation firm would be required to 

provide this report to the owner of 

renovated target housing or childoccupied facilities within 3 days of the 

date that the renovation firm receives 

the report. The renovation firm would 

also have to provide the report within 

3 days of receipt to the occupants of 

individual housing units that have been 

renovated, if the housing units are not 

owner-occupied. Similarly, the report 

would have to be provided within 3 

days to the proprietor of renovated 

child-occupied facilities if they are not 

operated by the building owner. If the 

renovation firm has chosen to notify 

each individual housing unit affected by 

a renovation in a common area of target 

housing, or each parent or guardian of 

a child under age 6 using a renovated 

child-occupied facility, the renovation 

firm would also have to provide these 

persons with the dust wipe testing 

report within 3 days of the date that the 

renovation firm receives the results. In 

cases where the renovation firm has 

chosen to post signs to notify tenants 

affected by common area renovations, or 

parents and guardians of children under 

age 6 using a child-occupied facility, the 

renovation firm would have to provide 

the dust wipe testing report when 

requested. 

In most cases, renovation firms will 

be able to avoid using the work 

practices that would require clearance 

afterwards. Sanding or scraping could 

be done by hand instead of by power 

tool. Many plaster removal jobs can be 

performed by using non-destructive 

means such as saws and pry-bars to 

remove sections of plaster and lath wall. 

At the same time, EPA also understands 

that renovation firms may encounter 

floors, windowsills, and window 

troughs that are in such poor condition 

that clearance may not be possible. As 


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discussed previously, the HUD 

Guidelines recommend using a sealant 

on floors if necessary to achieve 

clearance (Ref. 15). The Guidelines 

suggest that, if any surface fails two 

clearance tests, the ‘‘property owner 

should consider additional hazard 

control measures and/or further sealing 

of the surface’’ (Ref. 15, at 15–10). EPA’s 

own experience with the Dust Study 

confirms that surface condition may be 

a problem, at least in some instances. 

After several encounters with work 

room floors that could not be cleaned to 

the clearance standards in preparation 

for a new experiment, the Dust Study 

contractors began using a sealant before 

testing floors in preparation for 

beginning work (Ref. 24). When this 

occurred with windowsills, the 

contractors used dust collection trays 

instead of the sill surface for sampling. 

Various studies have shown that dust 

lead levels on surfaces are directly 

correlated with the condition of the 

surface. That is, a surface, such as a 

floor, in poor condition tends to have 

higher dust lead levels than a floor in 

fair to good condition. An evaluation of 

the HUD Lead-Based Paint Hazard 

Control Grant Program found that the 

‘‘effect of the condition of the wiped 

surface at clearance was significant in 

all analyses. The surfaces in better 

condition at clearance had lower 

clearance dust lead loadings and lower 

failure rates’’ (Ref. 18, at 7–20). EPA’s 

Dust Study also found that floors in 

poor condition had higher dust lead 

levels across the post-work, postcleaning, and post-cleaning verification 

sampling stages than floors in better 

condition, although this could have 

been due to higher-intensity work (Ref. 

14, at 6–14). EPA requests comment on 

whether this correlation should affect 

clearance or dust wipe testing 

requirements, and if, so, in what way. 

EPA is interested in suggestions on how 

to address the fact that some floors will 

be more difficult to clean than others. 

In particular, EPA has wrestled with 

the issue of how to reconcile a clearance 

requirement when floors are in such 

poor condition that achieving clearance 

would require the renovation firm to 

expand the scope of the original job to 

include additional remedial action such 

as refinishing the floor. In part, this 

situation raises the concern that 

renovation firms might be required to 

remediate lead hazards that existed 

prior to the renovation. To address the 

situation where achieving lead levels 

below the lead hazard standards would 

require expanding the scope of the 

renovation job, EPA is proposing an 

exception to the requirement to achieve 

clearance. Specifically, EPA proposes to 

allow renovation firms to stop after the 

second failed clearance test, regardless 

of the result, if the renovation firm did 

not agree to refinish the surface that is 

failing clearance as part of the 

renovation contract. For example, if a 

renovation firm is hired to remove 

plaster and lath wall sections that 

partially separate a living and dining 

room, and repaint the walls (including 

the windows) in both rooms, then the 

renovation firm would be required to 

ensure that the windowsills in the work 

area achieve clearance, no matter how 

many times the sills must be re-cleaned 

and re-tested. However, if the 

renovation firm was not hired to 

refinish the floor, the renovation firm 

would only have to re-clean and re-test 

the floor once if it failed clearance the 

first time, no matter what the second 

dust wipe testing result is. EPA believes 

that such a provision is necessary, given 

that renovation firms may encounter 

floors, windowsills, and window 

troughs that are in such poor condition 

that clearance may not be possible. 

EPA is also requesting comment on 

whether renovation firms ought to be 

allowed to perform pre-renovation dust 

wipe testing on surfaces in the work 

area that are in poor condition to help 

demonstrate that they are not leaving 

behind dust-lead hazards that they 

created. In this option, the renovation 

firm would only have to demonstrate 

that, for surfaces in poor condition in 

the work area, the dust-lead levels on 

these surfaces (which could be 

windowsills and/or floors) after the 

renovation are no higher than 150 μg/ft2. 

This would ensure that renovation firms 

are not unduly held accountable for preexisting lead-based paint hazards. EPA 

believes that 150 μg/ft2 is an appropriate 

upper limit, given that EPA’s contractor 

was able to clean all of the floors 

encountered in the buildings used for 

the Dust Study to this level or below 

(Ref. 14). EPA requests comment on 

whether there is an appropriate 

alternate upper limit that should be 

considered and the available data to 

support this alternate limit. Any prerenovation testing option would also 

include a requirement to provide both 

the pre-renovation dust wipe testing 

report as well as the post-renovation 

report to the building owners and 

occupants. As part of its consideration, 

EPA requests comment on how ‘‘poor 

condition’’ should be defined for this 

approach. 

EPA believes that window troughs are 

particularly likely to harbor pre-existing 

dust lead levels at or above the 

clearance standards. They are also 

particularly likely to be difficult to 

clean. Therefore, EPA is requesting 

comment on whether EPA should allow 

renovation firms to close windows in 

the work area that are not being worked 

on and cover them with taped-down 

plastic or other impermeable material to 

avoid the requirement to ensure that the 

window troughs achieve clearance 

standards. EPA would still require 

renovation firms to test both the sills 

and troughs of closed and covered 

windows, and report the results to the 

building owners and occupants, but 

firms would only need to ensure that 

the sills achieve the clearance 

standards. 

EPA is also requesting comment on 

whether clearance should be required in 

other situations. In particular, EPA is 

interested in comment on whether 

clearance should be required after any 

of the activities for which EPA is 

proposing a dust wipe testing 

requirement. EPA is also interested in 

comment on whether clearance should 

be required in rental properties after 

renovations for which EPA is proposing 

a dust wipe testing requirement, 

especially if the renovation firm has 

been informed that the renovation is 

being performed to remedy a violation 

of federal, state, or local laws or 

regulations or to comply with a federal, 

state, or local government order, such as 

an order to correct building code 

violations, or an abatement order in 

response to an elevated blood lead level. 

In this case, EPA is also interested in 

comment on whether EPA should 

require renovation firms to affirmatively 

ask whether the work is being 

performed to remedy a violation or 

comply with an order, and whether 

renovation firms should provide this 

information to owners and occupants 

after the renovation. Finally, EPA 

requests comment on whether dust wipe 

testing or clearance should be required 

in any other situations not discussed 

specifically in this proposal, including 

situations where a surface has failed 

cleaning verification twice. 

4. Additional requests for comment 

on dust wipe testing or clearance. 

EPA is seeking comment on whether 

there are other regulatory options for 

dust wipe testing or clearance that 

maximize the potential benefits by 

targeting those activities that are most 

likely to exceed the clearance standards. 

For example, should different size 

thresholds be used for some or all of the 

renovations affected by this proposal? 

As discussed, the proposed thresholds 

for dust wipe testing are taken from the 

Dust Study. Does the data from the Dust 

Study, or data from another source, 

support larger thresholds for some or all 

of these jobs? Although EPA is 

concerned about potential confusion 


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Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 25053 

with the definition of minor 

maintenance and repair, does the data 

from the Dust Study support applying 

these proposed thresholds on a perroom basis? 

Another potential option would be to 

apply dust wipe testing or clearance 

requirements only in homes where 

pregnant women or children under age 

6 reside or in any building that meets 

the definition of child-occupied facility. 

EPA requests comment on this option, 

which does target particularly 

vulnerable populations but provides no 

protections for older children, adults 

and family pets. 

EPA also requests comment on 

whether dust wipe testing should only 

be required when a surface fails the first 

round of cleaning verification, and, if 

dust wipe testing is done, whether the 

second round of cleaning verification 

should then be performed. In the Dust 

Study, if a surface failed the first round 

of cleaning verification, no dust wipe 

samples were collected before the 

surface was cleaned and cleaning 

verification performed again (Ref. 14). 

This occurred in 17 of the 60 interior 

experiments performed. Three of those 

surfaces also failed the second round of 

cleaning verification. In each of those 3 

cases, at least one surface was also 

demonstrated to be above the regulatory 

clearance standards by dust wipe 

testing. Since no dust wipe samples 

were collected after the first round of 

cleaning verification, it is not possible 

to determine, for certain, what 

additional reductions in dust lead levels 

were attributable to the second round of 

cleaning verification. However, some 

insight is provided by the reductions in 

dust lead levels made by the first round 

of cleaning verification. In many of the 

experiments that passed the first round 

of cleaning verification, the cleaning 

verification step resulted in significant 

dust lead reductions between the 

samples taken post-cleaning and the 

samples taken post-cleaning 

verification. Thus, the Dust Study 

demonstrates that the cleaning 

verification protocol in the 2008 RRP 

rule is an integral part of the cleaning 

regimen. Because the second round of 

cleaning verification likely contributes 

significantly to the total reduction in 

dust lead levels attributable to cleaning 

verification, EPA continues to believe 

that the second round of cleaning 

verification is a necessary step in the 

process, regardless of whether dust wipe 

samples are collected or not. 

Another possible regulatory option 

would be to require clearance for 

renovations involving the demolition of 

plaster or the use of high-speed 

machines designed to remove paint, or 

a larger set of renovation types, or 

smaller renovation size thresholds, and 

not require dust wipe testing in the 

absence of a clearance requirement. EPA 

requests comment on these options and 

suggestions for other regulatory options 

that may be less burdensome but still 

justifiable based on the available data. 

B. Test Kits for Lead in Paint 

EPA has worked with test kit vendors 

to develop kits that can more accurately 

identify the presence of regulated leadbased paint. Through its Environmental 

Technology Verification (ETV) program, 

EPA is currently reviewing five test kits 

that have been submitted by vendors. 

More information on this process can be 

found at http://www.epa.gov/lead/pubs/ 

testkit.htm#recognize. 

EPA is also proposing to give certified 

renovators another option for 

determining whether lead-based paint is 

present on components to be affected by 

a renovation. This proposal would 

permit certified renovators to collect 

paint chip samples from components to 

be affected by a renovation instead of 

using test kits to test the paint on the 

components. When utilizing this option, 

the certified renovator would be 

required to send the samples to a 

recognized NLLAP laboratory. Because 

renovator training courses are already 

required to include training in how and 

where to use test kits, EPA believes that 

it would take very little additional time 

to also provide renovators with training 

in how to collect a chip sample such 

that all paint layers are present with a 

minimal amount of substrate included 

in the sample, and how to submit these 

samples to an NLLAP laboratory for 

analysis. Such an option would not 

make a certified renovator the 

equivalent of a certified lead-based 

paint inspector. Certified renovators 

would still have to test each affected 

component, they would not be 

permitted to exclude components based 

on similar painting histories or perform 

random paint sampling in multi-unit 

buildings. EPA is proposing to allow 

certified renovators to collect paint chip 

samples instead of using test kits in 

order to provide maximum flexibility 

for certified renovators and renovation 

firms. 

C. Training Provider Accreditation 

Training providers who wish to 

provide renovator, dust sampling 

technician, or lead-based paint activities 

training for Federal certification 

purposes must apply for and receive 

accreditation from EPA. To become 

accredited, a provider must employ a 

training program manager as well as 

principal instructor(s) who meet certain 

education, training and work experience 

requirements. The training provider 

must indicate on its application for 

accreditation that the training program 

manager and principal instructor(s) 

meet these requirements; however, 

currently, no documentation (e.g., 

resumes) regarding the qualifications of 

these individuals must be submitted to 

EPA. The Agency believes it is 

important to review this information 

when determining whether to approve a 

training provider application. When 

EPA reviews applications for 

accreditation, it is common for the 

Agency to request this documentation 

from training providers in order to 

verify that the training program manager 

and principal instructor(s) have the 

proper qualifications. Requesting this 

information takes time and can delay 

the review of an application. Therefore, 

the Agency is proposing to require that 

training providers submit 

documentation regarding the 

qualifications of the education, training 

and work experience of training 

managers and principal instructors with 

their applications for accreditation. 

EPA is also proposing to clarify the 

role of principal instructors in teaching 

courses. The current regulation, at 40 

CFR 745.227(c)(3), states that principal 

instructors are responsible for the 

organization of their courses and 

oversight of the teaching of all course 

material. The regulations also define 

‘‘principal instructor’’ as ‘‘the individual 

who has the primary responsibility for 

organizing and teaching a particular 

course.’’ Nonetheless, the rule also 

allows training program managers to 

designate experts in a particular field 

(e.g., doctors or lawyers) as guest 

instructors, on an as needed basis, to 

teach discrete portions of the course. 

EPA interprets these provisions to 

require a principal instructor to be 

present and primarily responsible for 

teaching the course, although guest 

instructors may be used to teach some 

portion(s) of the course. Principal 

instructors are also responsible for the 

quality of the instruction delivered by 

the guest instructors. To ensure that the 

regulation is clear on this point, EPA is 

proposing to amend 40 CFR 

745.227(c)(3) to state that principal 

instructor(s) are primarily responsible 

for teaching the course materials and 

must be present to provide instruction 

(or oversight of portions of the course 

taught by guest instructors) for the 

course for which he has been designated 

the principal instructor. 

The final RRP rule included 

requirements for amending the 

certification of a renovation firm. Firms 

must submit an amendment within 90 


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25054 Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 

days of the date that a change occurs to 

information in its most recent 

application for certification or recertification. Examples of amendments 

include a change in the firm’s name 

without transfer of ownership, or a 

change of address or other contact 

information. To amend its certification, 

a firm must submit an application, 

noting on the form that it was submitted 

as an amendment. The firm must 

complete the sections of the application 

pertaining to the new information, and 

sign and date the form. EPA has 

interpreted the training provider 

accreditation regulations to require 

accredited training providers to submit 

amended applications whenever there is 

a change to the information provided in 

the training provider’s most recent 

application for accreditation or reaccreditation, including information 

regarding the training manager and any 

principal instructor(s) teaching courses 

offered by the training provider. 

However, the existing regulations do not 

specify a time limit for submitting an 

amendment. Therefore, the Agency is 

proposing to require training providers 

to submit amendments within 90 days 

of the date a change occurs to 

information in each provider’s most 

recent application. If the training 

provider does not amend its most recent 

accreditation application within the 90- 

day time period, it must stop providing 

training until the accreditation 

application is amended. The Agency is 

also proposing to approve or disapprove 

amendments for a new training 

manager, any new or additional 

principal instructors, or any new 

permanent training location within 30 

days of the date EPA receives the 

amendment. This 30-day time period 

will give EPA sufficient time to check 

the qualifications of the training 

manager(s) or principal instructor(s) 

before the training manager begins 

managing or the principal instructor 

begins teaching a course. This 30-day 

time period would also give EPA 

sufficient time to verify the suitability of 

a new permanent training location by 

visiting the location. The training 

provider would not be permitted to 

provide training under the new training 

manager or offer courses taught by any 

new principal instructor(s) or at the new 

training location until EPA either 

approves the amendment or 30 days has 

passed. Finally, this proposal would 

also clarify that no fee will be charged 

for accreditation application or 

certification amendments. 

To become accredited, a training 

provider must submit a copy of its 

training course materials with its 

application for accreditation for review 

by the Agency. If a training provider 

chooses to use the model course 

developed by EPA or a course approved 

by an authorized State or Indian Tribe, 

then it is not currently required to 

submit the course materials with its 

application. Instead the training 

provider indicates on its application 

that it will use the EPA model course or 

a course approved by an authorized 

State or Indian Tribe. Authorized States 

and Indian Tribes can have renovation 

or abatement programs that are 

significantly different from the EPAadministered program which would be 

reflected in their approved course 

materials. In these instances, a training 

course approved by the State or Indian 

Tribe may not be sufficient for the 

purposes of training someone on the 

requirements of the federal program. 

Therefore, the Agency is proposing to 

require training providers who apply to 

EPA for accreditation and wish to use a 

course approved by an authorized State 

or Indian Tribe to submit the course 

materials for EPA review. This will give 

the Agency the opportunity to identify 

and address any significant differences 

between the requirements of EPA and 

the authorized program that may appear 

in the course so the Agency can ensure 

that EPA-accredited training providers 

are using appropriate course materials. 

Training providers wishing to use the 

EPA model courses would not be 

required to submit those materials with 

their applications. 

As a matter of clarification, Webbased training and other types of 

alternative training delivery are 

permitted. In fact, EPA has developed a 

model on-line renovator course that 

could be used to deliver the classroom 

portion of the renovator course. While 

such alternative training delivery 

options cannot be used to deliver 

required hands-on training, EPA 

encourages training providers to make 

use of such options where appropriate 

to increase access to training and make 

it more affordable. Web-based training 

courses are considered separate courses 

and a separate application fee is 

required for each. This is because EPA 

must review not only the content of the 

course, but the mechanics of the 

delivery of the course. 

EPA’s model electronic training 

courses contain certain basic 

administration and delivery 

requirements. These include assigning a 

unique identifier to each student, to 

allow the training provider to track 

student course progress and completion. 

In addition, there are knowledge checks 

for each chapter, which must be 

completed before the student can go on 

to the next chapter, and a final test for 

the electronic learning portion which 

consists of at least 20 questions. Finally, 

students must be able to save or print 

an uneditable copy of a record showing 

completion of the electronic learning 

portion of the course. Under this 

proposal, these requirements would be 

explicitly incorporated into 40 CFR 

745.225 to ensure that all training 

providers wishing to use electronic 

learning for the classroom portions of 

lead-based paint courses are aware of 

these requirements and plan their 

course development accordingly. EPA 

requests comment on the specifics of 

these requirements, such as whether a 

course test of 20 questions is sufficient 

and whether a student should be 

required to score at least 80 percent on 

the course test in order to pass the 

classroom portion of the renovator 

course. EPA also requests comment on 

whether a final test for the electronic 

portion of the course is necessary, given 

that trainees must pass a hands-on skills 

assessment and the course test in order 

to receive a course completion 

certificate. EPA also requests comment 

on whether other requirements should 

likewise be incorporated into the 

regulations. 

EPA is requesting comment on 

whether training providers should be 

allowed to provide a combined 

Abatement Worker/Renovator refresher 

course or a combined Abatement 

Supervisor/Renovator refresher course 

or both. After the RRP rule was 

promulgated, EPA received input from 

the regulated community and others 

that indicates that many abatement 

contractors are likely to also become 

certified renovation firms. If this is the 

case, it would be advantageous for such 

firms to be able to send their employees 

to combined refreshers so that the 

employees would more readily be able 

to keep up their dual certifications. EPA 

requests comment on the likelihood that 

this will be the case, and, if combined 

refreshers are desirable, whether the 

different certification time periods for 

individual abatement certification (3 

years) and individual renovator 

certification (5 years) should be 

harmonized and, if so, how. 

Finally, EPA is proposing to require 

training providers to maintain renovator 

and dust sampling technician training 

records for a period of 5 years. Under 

the existing regulations, training 

providers must keep training records for 

3 years and 6 months. This length of 

time was chosen because of the length 

of individual certification periods for 

lead-based paint activities, which can be 

as long as 3 years and 6 months 

including interim certification. 


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However, the renovator and dust 

sampling technician certification 

periods are 5 years, with no interim 

certification. Therefore, in order to 

ensure that the training records from the 

previous training course are available 

for certified renovators and dust 

sampling technicians taking refresher 

courses, the recordkeeping period 

applicable to these disciplines would be 

increased to 5 years. 

D. State, Territorial, and Tribal Program 

Authorization 

Interested States, Territories, and 

Indian Tribes may apply for, and receive 

authorization to, administer and enforce 

all of the elements of the RRP program. 

The regulations for the State and Tribal 

program requirements are found in 40 

CFR 745.326. Under this proposed rule 

EPA is clarifying several parts of this 

section. First, the Agency is amending 

the regulations to make it clear that 

State and Tribal programs do not need 

to include requirements for the 

accreditation of dust sampling 

technicians if they are going to require 

dust sampling to be performed by a 

certified inspector or risk assessor. 

Second, the Agency is proposing to 

amend the regulations to reflect that 

both individuals and firms must receive 

certification. Finally, EPA is proposing 

to require State and Tribal renovation 

programs to include procedures and 

requirements for on-the-job training of 

renovation workers that do not receive 

accredited training. 

Strong enforcement of the lead-based 

paint regulations by authorized State 

and Tribal programs is critical to 

ensuring the safety of the occupants of 

target housing and child occupied 

facilities undergoing lead abatement, 

renovation, repair or painting. The State 

and Tribal program authorization 

requirements at 40 CFR 745.327 include 

provisions for approval of compliance 

and enforcement programs. Specifically, 

State and Tribal programs must have 

adequate compliance monitoring and 

enforcement authorities. Section 

745.327(b)(3)(ii) requires 

‘‘[a]dministrative or civil actions 

including penalty authority * * *;’’ but 

the rule does not establish a minimum 

penalty level or other requirements for 

enforcement authorities comparable to 

EPA authorities under TSCA. To 

remedy this, EPA is proposing that in 

order to be authorized for any of the 

lead certification programs, State or 

Tribal programs demonstrate that: (1) 

The State or Tribe be able to sue to 

obtain penalties, (2) civil and criminal 

penalties are assessable for each 

instance of violation, (3) if violations are 

continuous, the penalties are assessable 

up to the maximum amount for each 

day of violation, and (4) the burden of 

proof and degree of knowledge or intent 

of the respondent is no greater than it 

is for EPA under TSCA. EPA is also 

requesting comment on whether a 

minimum penalty level for civil and 

criminal fines ought to be established, 

and, if so, what the minimum level for 

each should be. States and Tribes may 

be authorized to administer a number of 

EPA programs; some of these programs 

have minimum penalty requirements for 

State and Tribal programs and some do 

not. For example, under the Clean Air 

Act implementing regulations at 40 CFR 

70.11(a)(3) and the Resource 

Conservation and Recovery Act 

implementing regulations at 40 CFR 

271.16(a)(3), State programs must have 

the authority to assess civil and criminal 

fines of at least $10,000 per day per 

violation. Other programs have 

established lower minimum penalty 

requirements. The implementing 

regulations for the Safe Drinking Water 

Act require State programs to have the 

authority to impose a penalty of at least 

$1,000 per day per violation on public 

water systems serving a population of 

more than 10,000 individuals. Some 

EPA programs have set no minimum 

penalty authority requirements for 

States and Tribes; these programs 

include the Asbestos Hazard Emergency 

Response Act program and the State 

pesticide applicator certification 

program under the Federal Insecticide, 

Fungicide, and Rodenticide Act. EPA is 

proposing that in order to become 

authorized, State and Tribal lead-based 

paint programs must have minimum 

civil and criminal penalty authorities of 

at least $10,000 per violation per day. 

EPA requests comment on whether 

proposing minimum levels for the 

maximum civil penalty and criminal 

fine recoverable under a State or Tribal 

program is necessary to ensure that 

enforcement is adequate and, if so, 

whether $10,000 should be the 

minimum level. EPA also requests 

comment on whether such a minimum 

requirement would appropriately 

promote consistency across authorized 

State and Tribal programs. In addition, 

EPA is requesting comment on whether 

these minimum levels should also be 

adjusted periodically to account for 

inflation, as required for Federal 

penalties under Federal Civil Penalties 

Inflation Adjustment Act of 1990, 28 

U.S.C. 2461 note, as amended by the 

Debt Collection Improvement Act of 

1996, 31 U.S.C. 3701 note. One way of 

doing this would be to require State and 

Tribal programs to have minimum civil 

penalty authority of 40% of the Federal 

maximum penalty authority under 

TSCA section 16, as adjusted for 

inflation, at the time the State or Tribe 

is authorized. However, this approach 

would result in different requirements 

for States and Tribes depending upon 

when they apply for authorization. 

Another way of accomplishing inflation 

adjustments would be to require State 

and Tribal authorized programs to have 

their own established mechanism for 

adjusting penalties to account for 

inflation. By requiring all authorized 

programs to make adjustments for 

inflation, this approach might be more 

likely to promote enforcement 

consistency across programs. Also in the 

interests of promoting national 

enforcement consistency, EPA requests 

comment on what criteria States or 

Tribes should consider, such as the size 

of a respondent’s business, ability to 

remain in business, enforcement 

history, or risk posed by the 

respondent’s actions, in establishing or 

mitigating penalties. 

E. Other Proposed Amendments to the 

Final RRP Rule 

1. Containment. EPA is proposing to 

be more specific about the vertical 

containment requirements for exterior 

projects. Under this proposal, the rule 

would specifically state that vertical 

containment is required for exterior 

renovation projects that are covered by 

the rule and that affect painted surfaces 

within 10 feet of the property line. In 

such cases, vertical containment is 

necessary to ensure that adjacent 

buildings or properties are not 

contaminated by leaded dust or debris 

generated by the renovation. The rule 

would also note that vertical 

containment may be required in other 

situations, such as windy conditions, to 

prevent contamination of other 

buildings, other areas of the property, or 

adjacent buildings or properties. 

Finally, to clarify what is meant by the 

term ‘‘containment,’’ this proposal 

would add a definition of the term that 

is based on the definition of ‘‘Worksite 

preparation level’’ from the HUD 

Guidelines. The definition includes 

additional information on what 

constitutes vertical containment. 

2. Prohibited or restricted practices. 

EPA is proposing to clarify that the 

prohibitions and restrictions on work 

practices in 40 CFR 745.85(a)(3), e.g., 

the prohibition on open flame burning 

or torching, apply to all painted 

surfaces, not just surfaces where the 

presence of lead-based paint has been 

confirmed. The term ‘‘lead-based paint’’ 

was incorrectly and inadvertently used 

in this subsection, making it 

inconsistent with the rest of the RRP 


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25056 Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 

rule, which applies in the presence of 

known lead-based paint as well as paint 

that has not been tested for lead content. 

This proposal would replace the term 

‘‘lead-based paint’’ with ‘‘painted 

surfaces’’ in this subsection. Of course, 

if the painted surface has been tested 

and found to be free of lead-based paint, 

the prohibitions and restrictions on 

work practices in the final RRP rule do 

not apply. In addition, EPA wishes to 

clarify that the restriction on the use of 

machines that remove paint through 

high speed operation applies where 

painted surfaces are being disturbed by 

such machines. The restriction is not 

limited to situations where all of the 

paint is removed by such machines. 

Finally, EPA has received several 

requests for clarification on what is 

meant by HEPA exhaust control. In 

order to better express what is required 

when machines designed to remove 

paint through high speed operation are 

used, EPA is using terminology from the 

Occupational Safety and Health 

Administration’s Technical Manual 

(Ref. 25). The use of shrouded tools to 

remove lead-based paint is discussed in 

Chapter 3 of Section V, entitled 

‘‘Controlling Lead Exposures in the 

Construction Industry: Engineering and 

Work Practice Controls.’’ Therefore, this 

proposal would amend 40 CFR 

745.85(a)(3)(ii) to read, ‘‘The use of 

machines designed to remove paint 

through high speed operation such as 

sanding, grinding, power planing, 

needle gun, abrasive blasting, or 

sandblasting, is prohibited on painted 

surfaces unless such machines are used 

shrouded and equipped with a HEPA 

vacuum attachment to collect dust and 

debris at the point of generation.’’ 

3. HEPA vacuums. EPA is proposing 

to clarify that vacuums qualifying as 

HEPA vacuums for the purposes of this 

rule must be operated and maintained 

in accordance with the manufacturer’s 

instructions in order to continue to 

qualify as HEPA vacuums. This 

includes following the manufacturer’s 

filter change interval recommendations. 

EPA would also like to clarify that the 

standard for HEPA filters, that they be 

capable of capturing particles of 0.3 

microns with 99.97% efficiency, means 

that the filters must have a Minimum 

Efficiency Reporting Value (MERV) of 

17 or greater (Ref. 26). EPA recommends 

that renovation firms have information 

from the manufacturer that the 

particular model of vacuum that the 

renovation firm intends to use, or the 

vacuum’s HEPA filter, has been tested 

in accordance with an applicable test 

method, such as ASTM F1471–09, 

‘‘Standard Test Method for Air Cleaning 

Performance of a High-Efficiency 

Particulate Air-Filter System,’’ and has 

been determined to meet this standard 

(Ref. 27). 

4. On-the-job training. EPA is 

proposing to clarify that the RRP rule 

requires certified renovators to train 

other renovation workers in only the 

work practices required by the RRP rule 

that the workers will be using in 

performing their assigned tasks. EPA 

did not intend to require training in any 

other subjects, such as how to paint or 

how to connect pipes. Therefore, EPA is 

proposing to amend 40 CFR 745.90(b)(2) 

and (b)(4) to refer specifically to the 

work practice requirements in 40 CFR 

745.85(a). 

5. Grandfathering. Under the final 

RRP rule, individuals who successfully 

completed an accredited abatement 

worker or supervisor course, and 

individuals who successfully completed 

the HUD, EPA, or the joint EPA/HUD 

model renovation training courses may 

take an accredited refresher renovation 

training course in lieu of the initial 

renovation training to become a certified 

renovator. In addition, individuals who 

have successfully completed an 

accredited lead-based paint inspector or 

risk assessor course, but are not 

currently certified in the discipline, may 

take an accredited refresher dust 

sampling technician course in lieu of 

the initial training to become a certified 

dust sampling technician. EPA 

inadvertently did not address a time 

limit in the RRP rule for taking the 

initial course in lieu of the refresher. 

Many of the commenters who addressed 

the issue of grandfathering contended 

that there should be restrictions based 

on how much time elapsed since the 

training was taken. Further, under the 

lead-based paint activities regulations at 

40 CFR 745.226, EPA allowed a similar 

grandfathering provision but only for a 

limited time. In today’s notice, EPA is 

proposing to set a limit on when an 

individual can take advantage of the 

grandfathering provision under the RRP 

rule. Under today’s proposal, renovators 

and dust sampling technicians who take 

the appropriate prerequisite course 

before July 31, 2011, may take an 

accredited refresher training course in 

lieu of the initial training. This time 

frame is consistent with some of the 

time limitations suggested in comments 

on the RRP rule (Ref. 1 at 21724). 

6. Hands-on requirements. 40 CFR 

745.225 includes requirements and 

procedures that training programs must 

follow to become accredited in order to 

provide instruction in lead-based paint 

courses. Minimum requirements for 

training curricula are found in this 

section, which list course topics that 

must be included in the different 

training courses with an indication of 

the topics that require hands-on 

instruction. However, EPA 

inadvertently omitted indicating which 

course topics required hands-on training 

for the renovator and dust sampling 

technician disciplines. Under this 

proposed rule, EPA identifies in 40 CFR 

745.227(d) which topics in the 

renovator and dust sampling technician 

courses require hands-on training. For 

further clarification, EPA is proposing to 

add a sentence to 40 CFR 745.227(e)(2) 

stating that refresher courses for all 

disciplines except project designer must 

include a hands-on component. 

7. Dust sampling technicians. 

Individuals who successfully complete 

an accredited lead-based paint inspector 

or risk assessor course, but are not 

currently certified in the discipline, may 

take an accredited refresher dust 

sampling technician course in lieu of 

the initial training before April 22, 2011 

to become a certified dust sampling 

technician. Inspectors and risk assessors 

who are certified by EPA or an 

authorized state program are qualified to 

perform dust sampling as part of lead 

hazard screens, risk assessments, or 

abatements. Therefore, it would be 

unnecessary for a certified inspector or 

risk assessor to seek certification as a 

dust sampling technician. The 

regulations promulgated in the RRP rule 

explained who is eligible to take the 

refresher dust sampling technician 

course in lieu of the initial training. 

However, the regulations did not 

explicitly say that a certified inspector 

or risk assessor could perform dust 

sampling. In order to clarify the intent 

of the regulation, EPA is proposing to 

amend 40 CFR 745.90(a)(3) to 

specifically state that a certified 

inspector or risk assessor may act as a 

dust sampling technician. 

8. Trainee photographs. Accredited 

training programs are required to issue 

a course completion certificate for each 

person who passes a training course. A 

variety of information is required to be 

on the certificate including the name of 

the course, the name and address of the 

student, and contact information for the 

training program. Course certificates for 

renovators or dust sampling technicians 

must include a photograph of the 

student. Since publishing the RRP rule, 

the Agency has been asked if there is a 

minimum size for the photograph. 

Currently, there are no size 

requirements or other specifications for 

the photograph on a course completion 

certificate. Nonetheless, EPA believes 

that it would be beneficial to have such 

requirements to ensure that the person 

in the photograph is recognizable. Thus, 


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EPA is proposing to require that the 

photographs on course completion 

certificates be an accurate and 

recognizable image of the trainee and at 

least one square inch in size. EPA is 

requesting comments on whether the 

image quality requirements should be 

more specific, e.g., more quantitative. 

9. Training requirements. As stated 

previously, 40 CFR 745.225 includes 

requirements and procedures that 

training programs must follow to 

become accredited in order to provide 

instruction in renovator, dust sampling 

technician, and lead-based paint 

activities courses. The final RRP rule 

amended Section 745.225 to cover 

persons who provide or wish to provide 

renovator or dust sampling technician 

training for the purposes of the final 

RRP rule. There are some instances 

where the regulations do not 

specifically mention the renovator or 

dust sampling technician courses even 

though the regulations apply to those 

courses. For example, 40 CFR 

745.225(c)(14) explains the 

requirements which a training provider 

must follow when submitting 

notification to EPA after the completion 

of a training. However, the conforming 

changes, i.e., to replace ‘‘lead-based 

paint activities courses’’ with 

‘‘renovator, dust sampling technician, 

and lead-based paint activities courses,’’ 

were not made to every subparagraph 

even though all the requirements of that 

section apply to those courses. 

Consequently, EPA is proposing to 

clarify that the requirements in 40 CFR 

745.225 apply to renovator and dust 

sampling technician courses in addition 

to lead-based paint activities courses. 

These changes do not alter the 

requirements but merely clarify them. 

IV. References 

As indicated under ADDRESSES, a 

docket has been established for this 

rulemaking under docket ID number 

EPA–HQ–OPPT–2005–0049. The 

following is a listing of the documents 

that are specifically referenced in this 

document. The docket includes these 

documents and other information 

considered by EPA, including 

documents that are referenced within 

the documents that are included in the 

docket, even if the referenced document 

is not physically located in the docket. 

For assistance in locating these other 

documents, please consult the technical 

contact listed under FOR FURTHER

INFORMATION CONTACT. 

1. U.S. Environmental Protection Agency 

(EPA). Lead; Renovation, Repair, and 

Painting Program; Final Rule. Federal 

Register (73 FR 21692, April 22, 2008) 

(FRL–8355–7). 

2. EPA. Air Quality Criteria for Lead (October 

2006). 

3. EPA. Lead Exposure Associated With 

Renovation and Remodeling Activities: 

Phase III, Wisconsin Childhood BloodLead Study (EPA 747–R–99–002, March 

1999). 

4. U.S. Department of Health and Human 

Services (HHS), U.S. Public Health 

Service (PHS), Centers for Disease 

Control and Prevention (CDC). Children 

with Elevated Blood Lead Levels 

Attributed to Home Renovation and 

Remodeling Activities—New York, 

1993–1994. Morbidity and Mortality 

Weekly Report (45(51); 1120–1123, 

January 3, 1997). 

5. HHS, PHS, CDC. Children with Elevated 

Blood Lead Levels Related to Home 

Renovation, Repair, and Painting 

Activities—New York State, 2006–2007. 

Morbidity and Mortality Weekly Report 

(58(03); 55–58, January 30, 2009). 

6. Reissman, Dori B., Thomas D. Matte, Karen 

L. Gurnite, Rachel B. Kaufmann, and 

Jessica Leighton. ‘‘Is Home Renovation or 

Repair a Risk Factor for Exposure to Lead 

Among Children Residing in New York 

City?’’ Journal of Urban Health: Bulletin 

of the New York Academy of Medicine. 

Vol. 79, No. 4, 502–511, December 2005. 

7. Jones, Robert L., David M. Homa, Pamela 

A. Meyer, Debra J. Brody, Kathleen L. 

Caldwell, James L. Pirkle, and Mary Jean 

Brown. ‘‘Trends in Blood Lead Levels 

and Blood Lead Testing Among U.S. 

Children Aged 1 to 5 Years, 1988–2004.’’ 

Pediatrics: Official Journal of the 

American Academy of Pediatrics. Vol. 

123, No. 3, pp. e376–e385, March 2009. 

8. EPA. Lead; Requirements for Lead-based 

Paint Activities; Final Rule. Federal 

Register (61 FR 45778), August 29, 

1996). 

9. EPA. Lead; Identification of Dangerous 

Levels of Lead; Final Rule. Federal 

Register (66 FR 1206, January 5, 2001). 

10. EPA. Lead Exposure Associated With 

Renovation and Remodeling Activities: 

Phase I, Environmental Field Sampling 

Study (EPA 747–R–96–007, May 1997). 

11. EPA. Lead Exposure Associated With 

Renovation and Remodeling Activities: 

Phase II, Worker Characterization and 

Blood-Lead Study (EPA 747–R–96–006, 

May 1997). 

12. EPA. Exposure Associated With 

Renovation and Remodeling Activities: 

Phase IV, Worker Characterization and 

Blood-Lead Study of R&R Workers Who 

Specialize in Renovation of Old or 

Historic Homes (EPA 747–R–99–001, 

March 1999). 

13. EPA. Lead; Renovation, Repair, and 

Painting Program; Proposed Rule. 

Federal Register (71 FR 1588, January 

10, 2006) (FRL–8355–7). 

14. EPA. Characterization of Dust Lead 

Levels After Renovation, Repair, And 

Painting Activities. (November 13, 2007). 

15. U.S. Department of Housing and Urban 

Development (HUD). Guidelines for the 

Evaluation and Control of Lead-Based 

Paint Hazards in Housing (June 1995). 

16. EPA. Electrostatic Cloth and Wet Cloth 

Field Study in Residential Housing 

(September 2005). 

17. Rx Solutions International/BTS 

Laboratories Inc. Comment on EPA’s 

Proposed Renovation, Remodeling, and 

Painting Program. EPA–HQ–OPPT– 

2005–0049–0483. May 22, 2006. 

18. HUD. Evaluation of the HUD Lead-Based 

Paint Hazard Control Grant Program: 

Final Report. May 1, 2004. http:// 

www.hud.gov/offices/lead/library/misc/ 

NatEval.pdf. 

19. EPA. Residential Sampling for Lead: 

Protocols for Dust and Soil Sampling, 

March 1995 (EPA 747–R–95–001). 

20. ASTM International. Standard Practice 

for Clearance Examinations Following 

Lead Hazard Reduction Activities in 

Single-Family Dwellings and ChildOccupied Facilities (E 2271–05a). 

21. EPA and HUD. Lead; Requirements for 

Disclosure of Information Concerning 

Lead-Based Paint in Housing; Final Rule. 

Federal Register (61 FR 9064, March 6, 

1996). 

22. EPA. National Lead Laboratory 

Accreditation Program (NLLAP); Notice 

of Availability of Revisions to the 

NLLAP; Notice of Availability (73 FR 

3967 January 23, 2008). 

23. EPA. Reviewed Studies Pertaining to 

HEPA Shroud Effectiveness. 2009. 

24. Battelle Memorial Institute. 

Encapsulation Treatment of Dust Study 

Floors. January 2010. 

25. U.S. Department of Labor, Occupational 

Safety and Health Administration 

(OSHA). Technical Manual TED 01–00– 

015 [TED 1–0.15A]. Revised June 24, 

2008. 

26. American Society of Heating, 

Refrigerating and Air-Conditioning 

Engineers (ASHRAE). Standard 52.2– 

2007—Method of Testing General 

Ventilation Air-Cleaning Devices for 

Removal Efficiency by Particle Size 

(ANSI/ASHRAE Approved) 2007. 

27. ASTM International. Standard Test 

Method for Air Cleaning Performance of 

a High-Efficiency Particulate Air-Filter 

System (F1471–09). 

28. EPA. Office of Pollution Prevention and 

Toxics (OPPT). Economic Analysis of the 

Proposed Dust Testing and Clearance 

Amendments to the TSCA Lead 

Renovation, Repair, and Painting 

Program for Target Housing and ChildOccupied Facilities. April 2010. 

29. EPA. Proposed Clearance Rule ICR 

Addendum for the rulemaking entitled 

Lead; Clearance and Clearance Testing 

Requirements for the Renovation, Repair, 

and Painting Program; Proposed Rule. 

April 2010. 

30. EPA. Initial Regulatory Flexibility 

Analysis for the Clearance and Clearance 

Testing Requirements for the Lead 

Renovation, Repair, and Painting 

Program; Proposed Rule. April 2010. 

31. EPA. Report of the Small Business 

Advocacy Review Panel on the Leadbased Paint Certification and Training; 

Renovation and Remodeling 

Requirements. March 3, 2000. 

32. EPA. Unfunded Mandates Reform Act 

Statement; Lead; Clearance and 

Clearance Testing Requirements for the 

Renovation, Repair, and Painting 

Program; Proposed Rule. April 2010. 


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33. ASTM International. Standard Practice 

for Collection of Settled Dust Samples 

Using Wipe Sampling Methods for 

Subsequent Lead Determination (E1728– 

03). 

34. ASTM International. Standard 

Specification for Wipe Sampling 

Materials for Lead in Surface Dust 

(E1792–03). 

35. ASTM International. Standard Practice 

for Record Keeping and Record 

Preservation for Lead Hazard Activities 

(E2239–04). 

V. Statutory and Executive Order 

Reviews 

EPA has prepared an analysis of the 

potential costs and benefits associated 

with this rulemaking. This analysis is 

contained in the ‘‘Economic Analysis of 

the Proposed Dust Testing and 

Clearance Amendments to the TSCA 

Lead Renovation, Repair, and Painting 

Program for Target Housing and ChildOccupied Facilities’’ (Economic 

Analysis, Ref. 26), which is available in 

the docket for this action and is briefly 

summarized here, and in more detail 

later in this Unit. 

Category Description 

Benefits .............. Benefits are not monetized or quantified, although there may be benefits through: 

(1) Information on lead-dust levels remaining in the renovation work area, including lead-dust that may have been generated 

during the renovation activity. 

(2) Changed behavior on the part of renovation firms, owners, and occupants which may prevent adverse health effects attributable to lead exposure from renovations in pre-1978 buildings. 

EPA has estimated the size of the population affected by this rule, but does not have sufficient information to estimate the 

value of information to consumers about lead-dust risks, or the decrease in exposure to lead-dust from renovations in target housing and child-occupied facilities. 

Costs ................. $272 million annualized (3% discount rate). 

$293 million annualized (7% discount rate). 

A. Executive Order 12866 

Under section 3(f)(1) of Executive 

Order 12866, entitled ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

October 4, 1993), this action is an 

‘‘economically significant regulatory 

action’’ because EPA estimates that it 

will have an annual effect on the 

economy of $100 million or more. 

Accordingly, this action was submitted 

to the Office of Management and Budget 

(OMB) for review under Executive 

Order 12866 and any changes made 

based on OMB recommendations have 

been documented in the public docket 

for this rulemaking as required by 

section 6(a)(3)(E) of the Executive Order. 

The following is a summary of the 

Economic Analysis (Ref. 28), which is 

available in the docket for this action. 

1. Options evaluated. The Economic 

Analysis analyzes several options. In 

addition to the proposed rule option, 

the Economic Analysis includes options 

with lower and higher thresholds (in 

terms of the amount of lead-based paint 

disturbed) for renovations which require 

dust wipe testing or clearance. In the 

proposed rule, the renovation events for 

which clearance is required (use of high 

speed machines to remove paint, and 

the demolition or destructive removal of 

plaster) have a threshold of 6 ft2 of leadbased paint disturbed. The thresholds in 

the proposed rule for the renovation 

events that require the use of dust wipe 

testing without necessarily achieving 

clearance vary from 6 to 60 ft2, 

depending on the type of renovation 

(use of a heat gun; scraping painted 

surfaces; removing trim, molding, 

cabinets, or other fixtures; etc.). In the 

low threshold option, the thresholds are 

6 ft2 for all of the affected renovations. 

In the high threshold option, the 

thresholds for the events where 

clearance is required are 60 ft2, while 

the thresholds for the renovations 

events that require the use of dust wipe 

testing without necessarily achieving 

clearance vary from 60 to 120 ft2, 

depending on the type of renovation. 

The Economic Analysis also includes 

three options that use the same 

threshold sizes as the proposed rule but 

apply different requirements to them. 

There is an option that requires dust 

wipe testing for all of the renovation 

events covered by the proposed rule 

without requiring clearance for any of 

them, as well as an option that requires 

clearance for all of these events. Finally, 

there is an option that applies to the 

same dust wipe testing and clearance 

events and thresholds as the proposed 

rule but that requires renovation firms 

to have the dust wipe sampling 

performed by an independent third 

party. 

2. Number of facilities and 

renovations. There are approximately 

18.7 million renovation events per year 

covered by EPA’s renovation, repair, 

and painting program in the 78 million 

target housing units and child-occupied 

facilities. The number of renovations 

affected by this proposed rule depends 

on the option selected. The low 

threshold option affects an estimated 1.8 

million dust wipe testing only events 

and 69,000 clearance events per year. 

The proposed rule is estimated to affect 

1.5 million dust wipe testing only 

events and 69,000 clearance events a 

year. The high threshold option affects 

an estimated 1.2 million dust wipe 

testing only events and 58,000 clearance 

events per year. The remaining three 

options (only dust wipe testing is 

required for all renovations covered by 

the proposed rule, clearance is required 

for all renovations covered by the 

proposed rule, and third-party dust 

wipe sampling is required for all 

renovations covered by the proposed 

rule) all affect an estimated 1.6 million 

events per year. 

3. Benefits. The benefits of the rule 

result from the prevention of adverse 

health effects attributable to lead 

exposure from renovations in pre-1978 

buildings. These health effects include 

impaired cognitive function in children 

and several illnesses in children and 

adults, such as increased adverse 

cardiovascular outcomes (including 

increased blood pressure, increased 

incidence of hypertension, 

cardiovascular morbidity and mortality) 

and decreased kidney function. 

The proposed rule will generate 

benefits by providing greater assurance 

that dust-lead hazards created by 

renovations are adequately cleaned up, 

primarily by requiring renovation firms 

to provide building owners and 

occupants with information on dust 

lead levels remaining in the work area 

after many renovation projects, but also 

by requiring renovation firms to 

demonstrate that they have achieved 

regulatory clearance levels after some of 

the dustiest renovations. These changes 

will protect individuals residing in 

target housing or attending a childoccupied facility where these 

renovation events are performed. It will 

also protect individuals who move into 

target housing after such a renovation is 

performed, or who visit a friend, 

relative, or caregiver’s house where such 

a renovation is performed. 


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EPA has estimated the number of 

individuals residing in target housing 

units or attending COFs where 

renovation events are performed. The 

proposed rule will benefit 809,000 

children under the age of 6 and 

7,547,000 individuals age 6 and older 

(including 96,000 pregnant women) per 

year by minimizing their exposure to 

lead dust generated by renovations. The 

low threshold option would protect 

882,000 children under the age of 6 and 

8,193,000 individuals age 6 and older, 

including 105,000 pregnant women. The 

high threshold option protects 706,000 

children and 6,590,000 individuals age 

6 and older, including 83,000 pregnant 

women. The remaining three alternative 

options (dust wipe testing only, 

clearance only, and third party dust 

wipe testing) would affect the same 

number of individuals as the proposed 

rule, although the amount of protection 

provided to some of those individuals 

may differ from the proposed rule. 

4. Costs. Firms performing the 

renovation events covered by the 

proposed rule will incur costs 

associated with having a third party 

perform dust wipe sampling and testing 

(or with having a firm staff member 

trained as a dust sampling technician so 

that they can take their own dust wipe 

samples and send them to a lab). For 

jobs subject to the clearance 

requirements in the proposed rule, firms 

may incur re-cleaning costs if dust wipe 

testing after clean-up yields results that 

exceed the clearance standards. Firms 

will also incur small costs to provide 

the dust wipe testing results to owners 

and occupants of the target housing 

units and child-occupied facilities 

where the renovations are performed. 

EPA’s updated estimate is that the 

average cost for a renovation firm to hire 

a third-party lead evaluation firm to take 

four dust samples, send them to a lab for 

analysis, and provide a short report is 

slightly over $260. However, many 

renovation firms may find it more cost 

effective to have a staff member trained 

and certified as a dust sampling 

technician rather than hiring a third 

party to take the samples. 

Renovation firms would incur the 

same dust wipe testing costs for 

renovations where achieving clearance 

is required. If dust levels exceed the 

clearance standards after cleaning 

verification, the renovation firm will 

incur additional costs for re-cleaning the 

work area up to two times. These recleaning costs vary from job to job, 

depending on the size of the space that 

must be cleaned. 

Annualized costs for the rule options 

are calculated using both a 3% and a 

7% discount rate. Total annualized 

costs for the proposed rule are $272 

million per year using a 3% discount 

rate and $293 million per year using a 

7% discount rate. Under the low 

threshold option, costs are $312 million 

per year with a 3% discount rate and 

$336 million per year with a 7% rate. 

Under the high threshold option, costs 

are $224 million per year with a 3% 

discount rate and $242 million per year 

with a 7% discount rate. The option that 

only requires dust wipe testing costs 

$268 million per year with a 3% 

discount rate and $288 million per year 

with a 7% discount rate. The option 

requiring clearance for all renovations 

covered by the proposed rule costs $367 

million with a 3% discount rate and 

$394 million with a 7% discount rate. 

The option requiring the use of a third 

party for dust wipe sampling costs $431 

million per year with a 3% discount rate 

and $459 million per year with a 7% 

discount rate. 

B. Paperwork Reduction Act 

The information collection 

requirements contained in this proposed 

rule have been submitted for approval to 

the Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., EPA has 

prepared an Information Collection 

Request (ICR) document to amend an 

existing approved ICR. The ICR 

document, referred to as the Proposed 

Clearance Rule ICR Addendum and 

identified under EPA ICR No. 2381.01 

and OMB Control Number 2070–NEW, 

has been placed in the docket for this 

proposed rule (Ref. 29). The information 

collection requirements are not 

enforceable until OMB approves them. 

Burden under the PRA means the 

total time, effort, or financial resources 

expended by persons to generate, 

maintain, retain, disclose, or provide 

information to or for a Federal agency. 

This includes the time needed to review 

instructions; develop, acquire, install, 

and utilize technology and systems for 

the purposes of collecting, validating, 

and verifying information, processing 

and maintaining information, and 

disclosing and providing information; 

adjust the existing ways to comply with 

any previously applicable instructions 

and requirements; train personnel to be 

able to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

The information collection activities 

contained in this proposed rule are 

designed to assist the Agency in meeting 

the core objectives of TSCA section 402. 

EPA has carefully tailored the 

recordkeeping requirements so they will 

permit the Agency to achieve statutory 

objectives without imposing an undue 

burden on those firms that choose to be 

involved in renovation, repair, and 

painting activities. 

This proposed rule requires 

renovation firms to provide owners and 

occupants with a report including the 

results of the dust wipe testing. 

Although firms have the option of 

choosing to engage in the covered 

activities, once a firm chooses to do so, 

the information collection activities 

become mandatory for that firm. The 

rule may result in an increase in the 

number of individuals becoming trained 

as dust sampling technicians, resulting 

in additional paperwork requirements 

for training providers. 

The ICR document provides a detailed 

presentation of the estimated paperwork 

burden and costs resulting from this 

proposed rule. The burden to firms 

engaged in renovation, repair, and 

painting activities and to training 

providers are summarized in this unit. 

The requirement for renovation firms 

to provide a dust wipe testing report for 

the renovations covered by the rule will 

impact about 224,000 firms. The 

additional burden for these firms arising 

from the proposed rule is estimated to 

average nearly 13 hours per firm 

annually, resulting in a total burden of 

approximately 2,867,000 hours per year 

for these firms. 

Many certified renovators may 

become trained and certified as dust 

sampling technicians so that they can 

take their own dust wipe samples and 

send them to a lab for analysis. This will 

increase the paperwork burden for 

training providers, since they must 

submit records to EPA (or an 

authorizing State, Tribe, or Territory) 

pertaining to each student attending a 

training course to become a dust 

sampling technician. Around 170 

training providers are estimated to incur 

an average burden of about 82 hours, 

resulting in an increase of 

approximately 14,000 hours per year in 

training provider burden as a result of 

the proposed rule. 

Total respondent burden for 

renovation firms and training providers 

is estimated to average approximately 

2.9 million hours per year during the 3 

year period covered by the ICR. 

The proposed rule may also result in 

additional government costs to 

administer the program (to process the 

additional training provider 

notifications and to administer and 

enforce the program). States, Tribes, and 

Territories are allowed, but are under no 

obligation, to apply for and receive 

authorization to administer these 

requirements. EPA will directly 


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administer programs for States, Tribes, 

and Territories that do not become 

authorized. Because the number of 

States, Tribes, and Territories that will 

become authorized is not known, 

administrative costs are estimated 

assuming that EPA will administer the 

program everywhere. To the extent that 

other government entities become 

authorized, EPA’s administrative costs 

will be lower. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations codified 

in chapter 40 of the CFR, after appearing 

in the preamble of the final rule, are 

listed in 40 CFR part 9, are displayed 

either by publication in the Federal 

Register or by other appropriate means, 

such as on the related collection 

instrument or form, if applicable. When 

the ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in the final rule. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a docket for this proposed rule, which 

includes this ICR, under docket ID 

number EPA–HQ–OPPT–2005–0049. 

Submit any comments related to the ICR 

to EPA and OMB. See ADDRESSES for 

where to submit comments to EPA. 

Send comments to OMB at the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 725 

17th St., NW., Washington, DC 20503, 

Attention: Desk Office for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after May 6, 2010, a comment to 

OMB is best assured of having its full 

effect if OMB receives it by June 7, 2010. 

The final rule will respond to any OMB 

or public comments on the information 

collection requirements contained in 

this proposed rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. 601 et seq., generally requires 

an agency to prepare a regulatory 

flexibility analysis of any rule subject to 

notice and comment rulemaking 

requirements under the Administrative 

Procedure Act or any other statute 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Small entities include small 

businesses, small organizations, and 

small governmental jurisdictions. 

For purposes of assessing the impacts 

of this proposed rule on small entities, 

small entity is defined in accordance 

with section 601 of the RFA as: 

(1) A small business as defined by the 

Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201. 

(2) A small governmental jurisdiction 

that is a government of a city, county, 

town, school district, or special district 

with a population of less than 50,000. 

(3) A small organization that is any 

not-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

As required by section 603 of the 

RFA, EPA has prepared an initial 

regulatory flexibility analysis (IRFA) for 

this proposed rule. The IRFA is 

available for review in the docket and is 

summarized in this unit (Ref. 30). 

1. Reasons why action by the Agency 

is being considered. The Agency 

believes it is in the best interest of the 

public to require dust wipe testing for 

many types of renovations (and to 

require renovation firms to achieve 

clearance for certain types of 

renovations). EPA expects two kinds of 

benefits to flow from the proposed dust 

wipe testing requirements. The first are 

the direct benefits of the information to 

the owners and occupants, the pure 

value of the information on dust lead 

levels remaining in the renovation work 

area. For building owners and 

occupants, this information is likely to 

improve their understanding and 

awareness of dust-lead hazards. It will 

also greatly improve their ability to 

make further risk management 

decisions, especially in light of 

mounting evidence suggesting that the 

current dust-lead hazard standards are 

too high. This information is 

particularly critical where dust lead 

levels approach or exceed the regulatory 

hazard standards. The other benefits 

that EPA expects to flow from a dust 

wipe testing requirement are the 

benefits that may result from changed 

behavior on the part of renovation firms. 

EPA believes that dust wipe testing 

results will also provide valuable 

feedback to renovation firms on how 

well they are cleaning up after 

renovations. It is likely that the specific 

dust lead levels contained in dust wipe 

testing results will increase renovation 

firm cleaning efficiency. Renovation 

firms will be incentivized to lower the 

dust lead levels remaining after 

renovation jobs, even if the levels are at 

or near the regulatory standards. For 

two types of renovations that can create 

large amounts of difficult-to-clean dust, 

EPA remains concerned about the 

possibility that dust lead levels 

remaining, even after cleaning 

verification, may substantially exceed 

the clearance standards. If renovation 

firms choose to utilize these methods, 

the firms would be required to 

demonstrate, through dust wipe testing, 

that they have met the clearance 

standards before the renovation will be 

considered completed. 

2. Legal basis and objectives for this 

proposed rule. These work practice 

requirements for dust wipe testing and 

clearance, training, certification and 

accreditation requirements, and State, 

Territorial and Tribal authorization 

provisions are being promulgated under 

the authority of TSCA sections 

402(c)(3), 404, and 407, 15 U.S.C. 

2682(c)(3), 2684, and 2687. A central 

objective of this proposed rule is to 

provide greater assurance that dust-lead 

hazards created by renovations are 

adequately cleaned up, primarily by 

requiring renovation firms to provide 

building owners and occupants with 

information on dust lead levels 

remaining in the work area after many 

renovation projects, but also by 

requiring renovation firms to 

demonstrate that they have achieved 

regulatory clearance levels after some of 

the dustiest renovations. 

3. Potentially affected small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. The small 

entities that are potentially directly 

regulated by this proposed rule include: 

Small businesses (such as renovation 

contractors and property owners and 

managers); small nonprofits (certain 

childcare centers and private schools); 

and small governments (school districts 

which operate pre-schools, 

kindergartens and certain child care 

centers). 

In determining the number of small 

businesses affected by the proposed 

rule, the Agency applied U.S. Economic 

Census data to the SBA’s definition of 

small business. However, applying the 

U.S. Economic Census data requires 

either under- or overestimating the 

number of small businesses affected by 

the proposed rule. For example, for 

many construction establishments, the 

SBA defines small businesses as having 

revenues of less than $14 million. With 

respect to those establishments, the U.S. 

Economic Census data groups all 

establishments with revenues of $10 

million or more into one revenue 

bracket. On the one hand, using data for 

the entire industry would overestimate 

the number of small businesses affected 

by the proposed rule and would defeat 

the purpose of estimating impacts on 

small business. It would also 


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underestimate the proposed rule’s 

impact on small businesses because the 

impacts would be calculated using the 

revenues of large businesses in addition 

to small businesses. On the other hand, 

applying the closest, albeit lower, 

revenue bracket would underestimate 

the number of small businesses affected 

by the proposed rule while at the same 

time overestimating the impacts. Similar 

issues arose in estimating the fraction of 

property owners and managers that are 

small businesses. EPA has concluded 

that a substantial number of small 

businesses will be affected by the rule. 

Consequently, EPA has chosen to be 

more conservative in estimating the cost 

impacts of the rule by using the closest, 

albeit lower, revenue bracket for which 

U.S. Economic Census data is available. 

For other sectors (nonprofits operating 

childcare centers or private schools), 

EPA assumed that all affected firms are 

small, which may overestimate the 

number of small entities affected by the 

proposed rule. 

The vast majority of entities in the 

industries affected by this proposed rule 

are small. Using EPA’s estimates, these 

revisions to the renovation, repair, and 

painting program will affect over 

203,000 small entities per year. 

4. Potential economic impacts on 

small entities. EPA evaluated two 

factors in its analysis of the proposed 

rule’s requirements on small entities, 

the number of firms that would 

experience the impact, and the size of 

the impact. Average annual compliance 

costs as a percentage of average annual 

revenues were used to assess the 

potential average impacts of the rule on 

small businesses and small 

governments. This ratio is a good 

measure of entities’ ability to afford the 

costs attributable to a regulatory 

requirement, because comparing 

compliance costs to revenues provides a 

reasonable indication of the magnitude 

of the regulatory burden relative to a 

commonly available measure of 

economic activity. Where regulatory 

costs represent a small fraction of a 

typical entity’s revenues, the financial 

impacts of the regulation on such 

entities may be considered as not 

significant. For non-profit organizations, 

impacts were measured by comparing 

rule costs to annual expenditures. When 

expenditure data were not available, 

however, revenue information was used 

as a proxy for expenditures. It is 

appropriate to calculate the impact 

ratios using annualized costs, because 

these costs are more representative of 

the continuing costs entities face to 

comply with the proposed rule. 

The cost of the proposed rule to a 

typical small business averages 

approximately $1,200 per year. This 

represents 0.4% to 1.1% of revenues 

depending on the industry sector. 

Overall, an estimated 203,000 small 

renovation contractors would be 

affected by the proposed rule, with 

average impacts of 0.5% of revenues. 

Approximately 100 small governments 

per year would incur a cost of about 

$800, resulting in an average impact of 

less than 0.01%. And around 200 small 

non-profits per year would incur a cost 

of about $600, resulting in an impact of 

approximately 0.1%. 

Some of the small renovation 

contractors subject to the rule have 

employees while others are nonemployers. The non-employers typically 

perform fewer jobs than firms with 

employees, and thus have lower work 

practice compliance costs. However, 

they also have lower average revenues 

than entities with employees, so their 

impacts (measured as costs divided by 

revenues) can be higher. Impact 

estimates for non-employers should be 

interpreted with caution, as some nonemployers may have significant issues 

related to understatement of income, 

which would tend to exaggerate the 

average impact ratio for this class of 

small entities. There are 151,000 nonemployer renovation contractors 

estimated to be affected by the proposed 

rule. The average cost to these 

contractors is estimated to be 

approximately $700 apiece. This 

represents 0.7% to 2.6% of reported 

revenues, depending on the industry 

sector. 

5. Relevant Federal rules. The 

requirements in this proposed rule will 

fit within an existing framework of other 

Federal regulations that address leadbased paint. Notably, the PreRenovation Education Rule, 40 CFR 

745.85, requires renovation firms to 

distribute a lead hazard information 

pamphlet to owners and occupants 

before conducting a renovation in target 

housing and child-occupied facilities. 

This proposed rule’s requirement that 

renovation firms provide owners and 

occupants with dust wipe testing and 

clearance reports complements the 

existing pre-renovation education 

requirements. Another such Federal 

regulation is HUD’s Lead Safe Housing 

Rule, 24 CFR part 35, subparts B–R, 

which requires firms conducting interim 

controls of lead-based paint hazards (a 

category which includes RRP work) to 

provide owners and occupants with 

dust wipe testing and clearance reports. 

6. Skills needed for compliance. 

Under the lead renovation, repair, and 

painting program requirements, 

renovators and dust sampling 

technicians working in target housing 

and child-occupied facilities have to 

take courses to learn the proper 

techniques for accomplishing the tasks 

(including dust sampling, preparing a 

report with the results, and performing 

specialized cleaning) they will perform 

during renovations. These courses are 

intended to provide them with the 

information they would need to comply 

with the rule based on the skills they 

already have. Other renovation workers 

that have not been formally trained and 

certified must receive training on the 

work practices they will be using in 

performing their assigned tasks from a 

certified renovator, and a certified 

renovator must regularly direct work 

being performed by other renovation 

workers to ensure that the work 

practices are being followed, including 

maintaining the integrity of the 

containment barriers and ensuring that 

dust or debris does not spread beyond 

the work area. 

7. Small Business Advocacy Review 

Panel. EPA has been concerned with 

potential small entity impacts since the 

earliest stages of planning for the RRP 

program under section 402(c)(3) of 

TSCA. EPA conducted outreach to small 

entities and, pursuant to section 609 of 

the RFA, convened a Small Business 

Advocacy Review Panel (the Panel) in 

1999 to obtain advice and 

recommendations of representatives of 

the regulated small entities. EPA 

identified eight key elements of a 

potential renovation and remodeling 

regulation for the Panel’s consideration. 

These elements were: applicability and 

scope, firm certification, individual 

training and certification, accreditation 

of training courses, work practice 

standards, prohibited practices, exterior 

clearance, and interior clearance. 

Details on the Panel and its 

recommendations are provided in the 

Panel Report (Ref. 31). Information on 

how EPA implemented the Panel’s 

recommendations in the development of 

the RRP program is available in Unit 

VIII.C. of the preamble to the 2006 

proposed rule (Ref. 13) and in Unit V.C. 

of the preamble to the 2008 final rule 

(Ref. 1). EPA believes that the 

conclusions it made in 2008 regarding 

these recommendations are applicable 

to this proposal. Indeed, EPA has 

considered input from the 1999 Panel 

process in this rule precisely because it 

is so closely related that EPA considers 

it an extension of the 2008 RRP 

rulemaking. (See 5 U.S.C. 605(c)) 

8. Alternatives considered. EPA 

considered alternatives to this proposed 

rule that could affect the economic 

impacts of the proposed rule on small 

entities. These alternatives would have 

applied to both small and large entities, 


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but given the number of small entities 

in the affected industries, these 

alternatives would primarily affect 

small entities. For the reasons described 

in this unit, EPA believes these 

alternatives are not consistent with the 

objectives of the rule. 

i. Higher thresholds. EPA considered 

an option under which the size 

thresholds for determining whether 

renovation jobs would need to perform 

dust wipe testing or achieve clearance 

would be higher than those in the 

proposed rule. By reducing the number 

of renovations where dust wipe testing 

or clearance are required, this option 

would reduce the costs of the rule and 

thus the estimated small entity impacts. 

However, higher thresholds would 

result in more jobs where occupants do 

not have information on the dust lead 

levels they are exposed to, or where 

they are exposed to dust lead levels 

above the hazard standard. EPA believes 

that the proposed rule provides the best 

balance between the benefits of the rule 

(the value of information from dust 

wipe testing and the benefits of reduced 

exposure to lead dust from achieving 

clearance) compared to the costs (and 

resulting small business impacts) of 

dust wipe testing, re-cleaning, and the 

other requirements of the proposed rule. 

Therefore, EPA believes that an option 

with higher thresholds is not consistent 

with the stated objectives of the 

proposed rule. 

ii. Dust testing only. EPA considered 

an option that would require dust wipe 

testing but not clearance for any of these 

renovation events. EPA remains 

concerned that renovations that disturb 

paint using machines designed to 

remove lead-based paint through high 

speed operation (such as power sanders 

or abrasive blasting) can create large 

amounts of difficult-to-clean dust, 

creating the possibility that dust lead 

levels may substantially exceed the 

clearance standards even after cleaning 

verification. The same is true for the 

demolition or removal through 

destructive means of plaster and lath 

walls, ceilings or other building 

components with lead-based paint. 

Therefore, EPA believes that this option 

is not consistent with the stated 

objectives of the proposed rule. 

As required by section 212 of Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA), Public Law 

104–121, EPA issued a Small Entity 

Compliance Guide (the Guide) in 

December 2008 to help small entities 

comply with the RRP rule. The Guide is 

available at: http://www.epa.gov/lead/ 

pubs/sbcomplianceguide.pdf or from 

the National Lead Information Center by 

calling 1(800) 424–LEAD [5323]. EPA 

will revise the Guide, as necessary, to 

reflect this rulemaking activity. 

EPA invites comments on all aspects 

of the proposal and its impact on small 

entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on State, local, and tribal 

governments and the private sector. 

This rule contains a Federal mandate 

that may result in expenditures of $100 

million or more by the private sector in 

any 1 year, but it will not result in such 

expenditures by State, local, and Tribal 

governments in the aggregate. 

Accordingly, EPA has prepared under 

section 202 of the UMRA a written 

statement (Ref. 32) which is 

summarized below. Consistent with 

section 205 of the UMRA, EPA has 

identified and considered a reasonable 

number of regulatory alternatives, also 

summarized below. 

1. Authorizing legislation. This 

proposed rule is issued under the 

authority of TSCA sections 402(c)(3), 

404, and 407 (15 U.S.C. 2682(c)(3), 

2684, and 2687). 

2. Cost-benefit analysis. EPA has 

prepared an analysis of the costs and 

benefits associated with this proposed 

rule, a copy of which is available in the 

docket for this proposed rule (Ref. 28). 

The Economic Analysis presents the 

costs of this proposed rule as well as 

various regulatory options and is 

summarized in Unit V.A. EPA has 

estimated the total annualized costs of 

this proposed rule are $272 million per 

year using a 3% discount rate and $293 

million per year using a 7% discount 

rate. 

The benefits of the proposed rule 

result from the prevention of adverse 

health effects attributable to lead 

exposure from renovations in pre-1978 

buildings. These health effects include 

impaired cognitive function in children 

and several illnesses in children and 

adults, such as increased adverse 

cardiovascular outcomes (including 

increased blood pressure, increased 

incidence of hypertension, 

cardiovascular morbidity and mortality) 

and decreased kidney function. 

3. State, local, and Tribal government 

input. EPA has sought input from State, 

local and Tribal government 

representatives throughout the 

development of the renovation, repair, 

and painting program. EPA’s experience 

in administering the existing lead-based 

paint activities program under TSCA 

section 402(a) suggests that these 

governments will play a critical role in 

the successful implementation of a 

national program to reduce exposures to 

lead-based paint hazards associated 

with renovation, repair, and painting 

activities. Consequently, as discussed in 

Unit III.C.2. of the preamble to the 2006 

proposed rule (Ref. 13), the Agency has 

met with State, local, and Tribal 

government officials on numerous 

occasions to discuss renovation issues. 

4. Least burdensome option. EPA has 

considered a wide variety of options for 

addressing the risks presented by 

renovation activities where lead-based 

paint is present. As part of the 

development of the renovation, repair, 

and painting program, EPA considered 

different options for the scope of the 

proposed rule, various combinations of 

training and certification requirements 

for individuals who perform 

renovations, various combinations of 

work practice requirements, and various 

methods for ensuring that no lead-based 

paint hazards are left behind by persons 

performing renovations. The Economic 

Analysis for this proposed rule analyzed 

several additional options for the scope 

of the work practices required, in terms 

of the size threshold and whether dust 

wipe testing or clearance is required. As 

described in Unit V.C., EPA has 

preliminarily concluded that the 

options for reducing the scope would 

result in an unacceptable number of jobs 

where occupants do not have 

information on the dust lead levels they 

are exposed to, or where they are 

exposed to dust lead levels above the 

hazard standard. 

Currently, EPA believes that the 

preferred option is the least burdensome 

option available that achieves a central 

objective of this proposed rule, which is 

to provide greater assurance that dustlead hazards created by renovations are 

adequately cleaned up, primarily by 

requiring renovation firms to provide 

building owners and occupants with 

information on dust lead levels 

remaining in the work area after many 

renovation projects, but also by 

requiring renovation firms to 

demonstrate that they have achieved 

regulatory clearance levels after some of 

the dustiest renovations. 

This rule is not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Based on the definition of ‘‘small 

government jurisdiction’’ in RFA section 

601, 5 U.S.C. 601, no State governments 

can be considered small. Small 

Territorial or Tribal governments may 

apply for authorization to administer 

and enforce this program, which would 


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entail costs, but these small 

jurisdictions are under no obligation to 

do so. Small governments operate 

schools that are child-occupied 

facilities. If these governments perform 

renovations in these facilities, they may 

incur additional costs to perform dust 

wipe testing or achieve clearance, and to 

provide residents, parents or guardians 

with copies of the report documenting 

the dust wipe testing results. EPA 

generally measures a significant impact 

under UMRA as being expenditures, in 

the aggregate, of more than 1% of small 

government revenues in any 1 year. As 

explained in Unit V.C.4., the proposed 

rule is expected to result in small 

government impacts well under 1% of 

revenues. So EPA has determined that 

the rule does not significantly affect 

small governments. Nor does the rule 

uniquely affect small governments, as 

the proposed rule is not targeted at 

small governments, does not primarily 

affect small governments, and does not 

impose a different burden on small 

governments than on other entities that 

operate child-occupied facilities. 

E. Executive Order 13132 

Pursuant to Executive Order 13132, 

entitled ‘‘Federalism’’ (64 FR 43255, 

August 10, 1999), EPA has determined 

that this proposed rule does not have 

‘‘federalism implications,’’ because it 

will not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, as 

specified in Executive Order 13132. 

Thus, Executive Order 13132 does not 

apply to this proposed rule. States are 

able to apply for, and receive 

authorization to administer the lead 

renovation, repair, and painting 

program requirements, but are under no 

obligation to do so. In the absence of a 

State authorization, EPA will administer 

the requirements. Nevertheless, in the 

spirit of the objectives of this Executive 

Order, and consistent with EPA policy 

to promote communications between 

the Agency and State and local 

governments, EPA consulted with 

representatives of State and local 

governments in developing the 

renovation, repair, and painting 

program. These consultations were 

described in the preamble to the 2006 

Proposal (Ref. 13). 

F. Executive Order 13175 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). EPA has determined that this 

proposed rule does not have Tribal 

implications because it will not have 

substantial direct effects on Tribal 

governments, on the relationship 

between the Federal government and 

the Indian tribes, or on the distribution 

of power and responsibilities between 

the Federal government and Indian 

tribes, as specified in the Order. Tribes 

are able to apply for and receive 

authorization to administer the lead 

renovation, repair, and painting 

program on Tribal lands, but Tribes are 

under no obligation to do so. In the 

absence of a Tribal authorization, EPA 

will administer these requirements. 

While Tribes may operate public 

housing or child-occupied facilities 

covered by the rule such as 

kindergartens, pre-kindergartens, and 

daycare facilities, EPA has determined 

that this rule would not have substantial 

direct effects on the Tribal governments 

that operate these facilities. 

Thus, Executive Order 13175 does not 

apply to this proposed rule. Although 

Executive Order 13175 does not apply, 

EPA consulted with Tribal officials and 

others by discussing potential 

renovation regulatory options for the 

renovation, repair, and painting 

program at several national lead 

program meetings hosted by EPA and 

other interested Federal agencies. EPA 

specifically solicits additional comment 

on this proposed action from tribal 

officials. 

G. Executive Order 13045 

This action is subject to Executive 

Order 13045, entitled ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is an 

‘‘economically significant regulatory 

action’’ as defined by Executive Order 

12866, and because the environmental 

health or safety risk addressed by this 

action may have a disproportionate 

effect on children. 

A central purpose of this proposed 

rule is to provide greater assurance that 

dust-lead hazards created by 

renovations are adequately cleaned up, 

primarily by requiring renovation firms 

to provide building owners and 

occupants with information on dust 

lead levels remaining in the work area 

after many renovation projects, but also 

by requiring renovation firms to 

demonstrate that they have achieved 

regulatory clearance levels after some of 

the dustiest renovations. In the absence 

of this regulation, owners and occupants 

would not have information on the dust 

lead levels remaining following these 

renovation events, and dust lead levels 

may substantially exceed the clearance 

standards for certain renovations that 

can create large amounts of difficult-toclean dust. 

The proposed rule will protect 

children who reside in housing units or 

attend child-occupied facilities where 

such renovations occur; who visit a 

friend, relative, or caregiver’s house 

where such renovations are performed; 

or who move into such housing when 

their family purchases it after such a 

renovation has been performed. 

H. Executive Order 13211 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, entitled 

‘‘Actions concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

any adverse effect on the supply, 

distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act of 1995 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note), directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking involves 

technical standards. EPA proposes to 

use the government-unique technical 

standards described in Unit III of this 

preamble. EPA has identified several 

potentially-applicable voluntary 

consensus standards developed by 

ASTM International (formerly the 

American Society for Testing and 

Materials) that address dust wipe 

sampling, recordkeeping, and clearance 

procedures. These standards are: 

‘‘Standard Practice for Collection of 

Settled Dust Samples Using Wipe 

Sampling Methods for Subsequent Lead 

Determination,’’ ‘‘Standard Specification 

for Wipe Sampling Materials for Lead in 

Surface Dust,’’ ‘‘Standard Practice for 

Record Keeping and Record 

Preservation for Lead Hazard 

Activities,’’ and ‘‘Standard Practice for 

Clearance Examinations Following Lead 

Hazard Reduction Activities in SingleFamily Dwellings and Child-Occupied 

Facilities’’ (Refs. 33, 34, 35, 20). Each of 


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these ASTM documents represents 

state-of-the-art knowledge regarding the 

performance of these particular aspects 

of lead-based paint hazard evaluation 

and control practices and EPA 

recommends the use of these documents 

where appropriate. EPA believes that 

the proposed amendments to the RRP 

rule as well as EPA’s model training 

courses for lead-based paint inspectors, 

risk assessors, and dust sampling 

technicians are consistent with these 

ASTM standards. However, because 

each of these documents is extremely 

detailed and encompasses many 

circumstances beyond the scope of this 

rulemaking, EPA determined that it 

would be impractical to incorporate 

these voluntary consensus standards 

into the rule. 

In addition, EPA has identified a 

potentially-applicable voluntary 

consensus standard developed by 

ASTM International for evaluating the 

performance of HEPA filtration systems, 

the ‘‘Standard Test Method for Air 

Cleaning Performance of a HighEfficiency Particulate Air-Filter System’’ 

(Ref. 27). EPA does recommend that 

renovation firms in the market for a 

HEPA vacuum verify that the filter has 

been tested in accordance with the 

ASTM standard or an equivalent test 

method. However, EPA has determined 

that it would be impractical to 

incorporate this test method into the 

rule. 

EPA welcomes comments on this 

aspect of the proposed rulemaking and, 

specifically, invites the public to 

identify potentially-applicable 

voluntary consensus standards and to 

explain why such standards should be 

used in this regulation. 

Executive Order 12898 

Executive Order 12898, entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994) establishes federal executive 

policy on environmental justice. Its 

main provision directs Federal agencies, 

to the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

EPA has assessed the potential impact 

of this proposed rule on minority and 

low-income populations. The results of 

this assessment are presented in the 

Economic Analysis, which is available 

in the docket for this proposed rule (Ref. 

28). 

List of Subjects in 40 CFR Part 745 

Environmental protection, Childoccupied facility, Housing renovation, 

Lead, Lead-based paint, Renovation, 

Reporting and recordkeeping 

requirements. 

Dated: April 22, 2010. 

Lisa P. Jackson, 

Administrator. 

Therefore, it is proposed that 40 CFR 

chapter I be amended as follows: 

1. The authority citation for part 745 

would continue to read as follows: 

Authority: 15 U.S.C. 2605, 2607, 2681– 

2692 and 42 U.S.C. 4852d. 

2. In § 745.82, add a new paragraph 

(a)(3) to read as follows. 

§ 745.82 Applicability. 

(a) * * * 

(3) Renovations in target housing or 

child-occupied facilities in which a 

certified renovator has collected a paint 

chip sample from each painted 

component affected by the renovation 

and a laboratory recognized by EPA 

pursuant to section 405(b) of TSCA as 

being capable of performing analyses for 

lead compounds in paint chip samples 

has determined that the samples are free 

of paint or other surface coatings that 

contain lead equal to or in excess of 1.0 

mg/cm2 or 0.5% by weight. If the 

components make up an integrated 

whole, such as the individual stair 

treads and risers of a single staircase, 

the renovator is required to test only one 

of the individual components, unless 

the individual components appear to 

have been repainted or refinished 

separately. 

* * * * * 

3. In § 745.83, add the definition 

‘‘Containment’’ in alphabetical order to 

read as follows: 

§ 745.83 Definitions. 

* * * * * 

Containment means a set of measures 

designed to protect residents and the 

environment from leaded dust, paint 

chips, or other forms of lead 

contamination created by renovations 

through the erection of barriers and 

warning signs and the establishment of 

access control, modifications to heating, 

ventilation, and air conditioning 

systems, and other strategies. Vertical 

containment, required for some exterior 

renovations, is a vertical barrier 

consisting of plastic sheeting over 

scaffolding or a wood or metal frame, or 

an equivalent system. 

* * * * * 

4. Section 745.85 is amended as 

follows: 

a. Revise paragraph (a)(2)(ii)(D); 

b. Revise paragraph (a)(3); 

c. Remove paragraph (c); 

d. Redesignate paragraphs (b) and (d) 

as paragraphs (c) and (e) respectively; 

e. Add new paragraphs (b) and (d); 

f. Revise newly-redesignated 

paragraph (e); 

The revisions and additions read as 

follows: 

§ 745.85 Work practice standards. 

(a) * * * 

(2) * * * 

(ii) * * * 

(D) If the renovation will affect 

surfaces within 10 feet of the property 

line, the renovation firm must erect 

vertical containment to ensure that dust 

and debris from the renovation does not 

contaminate adjacent buildings or 

migrate to adjacent properties. Vertical 

containment may also be necessary in 

other situations, such as in windy 

conditions, in order to prevent 

contamination of other buildings, other 

areas of the property, or adjacent 

buildings or properties. 

(3) Prohibited and restricted practices. 

The work practices listed below are 

prohibited or restricted during a 

renovation as follows: 

(i) Open-flame burning or torching of 

painted surfaces is prohibited. 

(ii) The use of machines designed to 

remove paint through high speed 

operation such as sanding, grinding, 

power planing, needle gun, abrasive 

blasting, or sandblasting, is prohibited 

on painted surfaces unless such 

machines are shrouded and equipped 

with a HEPA vacuum attachment to 

collect dust and debris at the point of 

generation. 

(iii) Operating a heat gun on painted 

surfaces is permitted only at 

temperatures below 1,100 degrees 

Fahrenheit. 

* * * * * 

(b) Clearance—(1) Mandatory 

clearance. Clearance is required after 

renovations involving the demolition, or 

removal through destructive means, of 

more than 6 ft2 of plaster and lath 

building component, or the disturbance 


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of paint using machines designed to 

remove paint through high-speed 

operation, such as sanding, grinding, 

power planning, needle gun, abrasive 

blasting or sandblasting. When 

clearance is required, the following 

clearance procedures must be 

performed: 

(i) A certified inspector, certified risk 

assessor, or certified dust sampling 

technician must perform a visual 

inspection to determine whether dust, 

debris or residue is still present in the 

renovation work area. If dust, debris or 

residue is present, these conditions 

must be removed by re-cleaning and 

another visual inspection must be 

performed. 

(ii) A certified inspector, certified risk 

assessor, or certified dust sampling 

technician must collect dust wipe 

samples in accordance with EPA’s 

‘‘Residential Sampling for Lead: 

Protocols for Dust and Soil Sampling, 

EPA–747–R–95–001’’ or an equivalent 

protocol that incorporates adequate 

quality control procedures. Samples 

must be collected in the following 

locations: 

(A) If there is more than one room, 

hallway, or stairwell within the work 

area, the following samples must be 

collected: 

(1) One windowsill sample, one 

window trough sample, and one floor 

sample within each room, hallway, or 

stairwell in the work area. If there are 

more than four rooms, hallways, or 

stairwells within the work area, only 

four rooms, hallways, or stairwells must 

be sampled. 

(2) One floor sample adjacent to the 

work area, but not in an area that has 

been cleaned. 

(B) If the work area is a single room, 

hallway, stairwell, or smaller area, the 

following samples must be collected: 

(1) One windowsill sample, one 

window trough sample, and one floor 

sample. 

(2) One floor sample adjacent to the 

work area, but not in an area that has 

been cleaned. 

(C) No window sill or trough samples 

must be collected if there are no 

windows in the work area. 

(iii) Dust wipe samples must be 

analyzed by a laboratory or other entity 

recognized by EPA pursuant to section 

405(b) of the Toxic Substances Control 

Act as being capable of performing 

analyses for lead compounds in dust 

samples. If a fixed-site laboratory is to 

be used, the dust wipe samples must be 

mailed or otherwise transmitted to the 

laboratory within 1 business day of the 

date that they are collected. 

(iv) A certified inspector, certified risk 

assessor, or certified dust sampling 

technician must compare the residual 

lead level reported by the EPArecognized laboratory for each dust 

sample or test with the applicable 

clearance level. If the residual lead level 

in a particular dust sample or test equals 

or exceeds the applicable clearance 

level, the components represented by 

the failed sample or test shall be recleaned and re-tested. The applicable 

clearance levels are: 

(A) 40 μg/ft2 for floors. 

(B) 250 μg/ft2 for interior window 

sills. 

(C) 400 μg/ft2 for window troughs. 

(v) For surfaces in poor condition that 

the renovation firm did not specifically 

agree to refinish in the renovation 

contract, the renovation firm may stop 

re-cleaning and re-testing after the 

second failed dust wipe test on that 

surface. 

(vi) The certified inspector, certified 

risk assessor, or certified dust sampling 

technician performing the clearance 

procedures must prepare a clearance 

report and provide it to the renovation 

firm within 3 days of the date that the 

final dust wipe testing results are 

obtained. The report must be a single 

document, with attachments, and must 

include the following information: 

(A) Start and completion dates of the 

renovation. 

(B) A brief written description of the 

renovation. 

(C) The name and address of the 

certified firm employing the certified 

inspector, certified risk assessor, or 

certified dust sampling technician 

performing the clearance procedures. 

(D) The name and signature of each 

certified inspector, certified risk 

assessor, or certified dust sampling 

technician performing clearance 

procedures and the date(s) that 

clearance procedures were performed. 

(E) The results of the visual 

inspection. 

(F) A detailed written description of 

the specific sampling or testing 

locations or a detailed drawing that 

clearly identifies the location of each 

sample or test. 

(G) The results for each dust wipe 

sample or test, whether or not clearance 

was achieved, and the name of each 

recognized laboratory or other entity 

that conducted the analyses. 

(2) Optional clearance. Renovation 

firms that choose to comply with all of 

the requirements of this paragraph 

(745.85(b)) need not comply with the 

requirements of paragraph (d) of this 

section. 

* * * * * 

(d) Dust wipe testing. (1) Dust wipe 

testing must be performed after all 

renovations involving: 

(i) Use of a heat gun at temperatures 

below 1,100 degrees Fahrenheit. 

(ii) Removal or replacement of 

window or door frames. 

(iii) Scraping 60 ft2 or more of painted 

surfaces. 

(iv) Removing more than 40 ft2 of 

trim, molding, cabinets, or other 

fixtures. 

(2) After cleaning verification has 

been performed in accordance with 

paragraph (c) of this section, a certified 

inspector, certified risk assessor, or 

certified dust sampling technician must 

collect dust wipe samples in accordance 

with EPA’s ‘‘Residential Sampling for 

Lead: Protocols for Dust and Soil 

Sampling, EPA–747–R–95–001’’ or an 

equivalent protocol that incorporates 

adequate quality control procedures. 

Samples must be collected in the 

following locations: 

(i) If there is more than one room, 

hallway, or stairwell within the work 

area, the following samples must be 

collected: 

(A) One windowsill sample, one 

window trough sample, and one floor 

sample within each room, hallway, or 

stairwell in the work area. If there are 

more than four rooms, hallways, or 

stairwells within the work area, only 

four rooms, hallways, or stairwells must 

be sampled. 

(B) One floor sample adjacent to the 

work area, but not in an area that has 

been cleaned. 

(ii) If the work area is a single room, 

hallway, stairwell, or smaller area, the 

following samples must be collected: 

(A) One windowsill sample, one 

window trough sample, and one floor 

sample. 

(B) One floor sample adjacent to the 

work area, but not in an area that has 

been cleaned. 

(iii) No window sill or trough samples 

must be collected if there are no 

windows in the work area. 

(3) Dust wipe samples must be 

analyzed by a laboratory or other entity 

recognized by EPA pursuant to section 

405(b) of the Toxic Substances Control 

Act as being capable of performing 

analyses for lead compounds in dust 

samples. If a fixed-site laboratory is to 

be used, the dust wipe samples must be 

mailed or otherwise transmitted to the 

laboratory within 1 business day of the 

date that they are collected. 

(4) The certified inspector, certified 

risk assessor, or certified dust sampling 

technician performing the dust wipe 

testing must prepare a dust wipe testing 

report and provide it to the renovation 

firm within 3 days of the date that the 

dust wipe testing results are obtained. 

The report must be a single document, 


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25066 Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 

with attachments, and must include the 

following information: 

(i) Start and completion dates of the 

renovation. 

(ii) A brief written description of the 

renovation. 

(iii) The name and address of the 

certified firm employing the certified 

inspector, certified risk assessor, or 

certified dust sampling technician 

performing the dust wipe testing. 

(iv) The name and signature of each 

certified inspector, certified risk 

assessor, or certified dust sampling 

technician performing sampling or 

testing and the date(s) that samples were 

collected or testing performed. 

(v) The results of the visual 

inspection. 

(vi) A detailed written description of 

the specific sampling or testing 

locations or a detailed drawing that 

clearly identifies the location of each 

sample or test. 

(vii) The results for each dust wipe 

test, a statement of whether or not all 

samples analyzed were below the 

applicable clearance standards, and the 

name of each recognized laboratory or 

other entity that conducted the analyses. 

(viii) The clearance standard from 

paragraph (b)(1)(iv) of this section that 

is applicable to each dust wipe test and, 

if one or more final dust wipe tests 

equals or exceeds the applicable 

clearance standards, a statement that 

any dust lead levels that equal or exceed 

the clearance standards will 

demonstrate that a lead-based paint 

hazard is present after the work is 

completed.. 

(e) Activities conducted after postrenovation clearance, dust wipe testing, 

or cleaning verification. Activities that 

do not disturb paint, such as applying 

paint to walls that have already been 

prepared, are not regulated by this 

subpart if they are conducted after postrenovation clearance, dust wipe testing, 

or cleaning verification has been 

performed. 

5. In § 745.86, revise paragraph (d) to 

read as follows: 

§ 745.86 Recordkeeping and reporting 

requirements. 

* * * * * 

(d) If clearance or dust wipe testing is 

performed in accordance with § 745.85, 

the renovation firm must provide, 

within 3 days of the date the renovation 

firm receives the report, a copy of the 

clearance or dust wipe testing report to: 

(1) The owner of the building; and, if 

different, 

(2) An adult occupant of the 

residential dwelling, if the renovation 

took place within a residential dwelling, 

or an adult representative of the childoccupied facility, if the renovation took 

place within a child-occupied facility. 

6. Section 745.90 is amended as 

follows: 

a. By revising paragraphs (a)(2) and 

(a)(3). 

b. By revising paragraphs (b)(2), (b)(4), 

and (b)(8). 

§ 745.90 Renovator certification and dust 

sampling technician certification. 

(a) * * * 

(2) Individuals who have successfully 

completed an accredited abatement 

worker or supervisor course, or 

individuals who successfully completed 

an EPA, HUD, or EPA/HUD model 

renovation training course may take an 

accredited refresher renovator training 

course before April 22, 2011 in lieu of 

the initial renovator training course to 

become a certified renovator. 

(3) Individuals who have successfully 

completed an accredited lead-based 

paint inspector or risk assessor course 

may take an accredited refresher dust 

sampling technician course before April 

22, 2011 in lieu of the initial training to 

become a certified dust sampling 

technician. Individuals who are 

currently certified as lead-based paint 

inspectors or risk assessors may act as 

dust sampling technicians without 

further training. 

* * * * * 

(b) * * * 

(2) Must provide training to workers 

on the work practices required by 

§ 745.85(a) that they will be using in 

performing their assigned tasks. 

* * * * * 

(4) Must regularly direct work being 

performed by other individuals to 

ensure that the work practices required 

by § 745.85(a) are being followed, 

including maintaining the integrity of 

the containment barriers and ensuring 

that dust or debris does not spread 

beyond the work area. 

* * * * * 

(8) Must prepare the records required 

by § 745.86(b)(1) and (6). 

* * * * * 

7. In § 745.92, add paragraph (b)(3) to 

read as follows: 

§ 745.92 Fees for the accreditation of 

renovation and dust sampling technician 

training and the certification of renovation 

firms. 

* * * * * 

(b) * * * 

(3) Accreditation or certification 

amendments. No fee will be charged for 

accreditation or certification 

amendments. 

* * * * * 

8. Revise § 745.225 to read as follows: 

§ 745.225 Accreditation of training 

programs: target housing and childoccupied facilities. 

(a) Scope. (1) A training program may 

seek accreditation to offer courses in 

any of the following disciplines: 

Inspector, risk assessor, supervisor, 

project designer, abatement worker, 

renovator, and dust sampling 

technician. A training program may also 

seek accreditation to offer refresher 

courses for each of the above listed 

disciplines. 

(2) Training programs may first apply 

to EPA for accreditation of their leadbased paint activities courses or 

refresher courses pursuant to this 

section on or after August 31, 1998. 

Training programs may first apply to 

EPA for accreditation of their renovator 

or dust sampling technician courses or 

refresher courses pursuant to this 

section on or after April 22, 2009. 

(3) A training program must not 

provide, offer, or claim to provide EPAaccredited lead-based paint activities 

courses without applying for and 

receiving accreditation from EPA as 

required under paragraph (b) of this 

section on or after March 1, 1999. A 

training program must not provide, 

offer, or claim to provide EPAaccredited renovator or dust sampling 

technician courses without applying for 

and receiving accreditation from EPA as 

required under paragraph (b) of this 

section on or after June 23, 2008. 

(b) Application process. The 

following are procedures a training 

program must follow to receive EPA 

accreditation to offer lead-based paint 

activities courses, renovator courses, or 

dust sampling technician courses: 

(1) A training program seeking 

accreditation shall submit a written 

application to EPA containing the 

following information: 

(i) The training program’s name, 

address, and telephone number. 

(ii) A list of courses for which it is 

applying for accreditation. For the 

purposes of this section, courses taught 

in different languages and electronic 

learning courses are considered 

different courses, and each must 

independently meet the accreditation 

requirements. 

(iii) The name and documentation of 

the qualifications of the training 

program manager. 

(iv) The name(s) and documentation 

of qualifications of any principal 

instructor(s). 

(v) A statement signed by the training 

program manager certifying that the 

training program meets the 

requirements established in paragraph 

(c) of this section. If a training program 

uses EPA-recommended model training 


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materials, or training materials 

approved by a State or Indian Tribe that 

has been authorized by EPA under 

subpart Q of this part, the training 

program manager shall include a 

statement certifying that, as well. 

(vi) If a training program does not use 

EPA-recommended model training 

materials, its application for 

accreditation shall also include: 

(A) A copy of the student and 

instructor manuals, or other materials to 

be used for each course. 

(B) A copy of the course agenda for 

each course. 

(C) When applying for accreditation of 

a course in a language other than 

English, a signed statement from a 

qualified, independent translator that 

they had compared the course to the 

English language version and found the 

translation to be accurate. 

(vii) All training programs shall 

include in their application for 

accreditation the following: 

(A) A description of the facilities and 

equipment to be used for lecture and 

hands-on training. 

(B) A copy of the course test blueprint 

for each course. 

(C) A description of the activities and 

procedures that will be used for 

conducting the assessment of hands-on 

skills for each course. 

(D) A copy of the quality control plan 

as described in paragraph (c)(9) of this 

section. 

(2) If a training program meets the 

requirements in paragraph (c) of this 

section, then EPA shall approve the 

application for accreditation no more 

than 180 days after receiving a complete 

application from the training program. 

In the case of approval, a certificate of 

accreditation shall be sent to the 

applicant. In the case of disapproval, a 

letter describing the reasons for 

disapproval shall be sent to the 

applicant. Prior to disapproval, EPA 

may, at its discretion, work with the 

applicant to address inadequacies in the 

application for accreditation. EPA may 

also request additional materials 

retained by the training program under 

paragraph (i) of this section. If a training 

program’s application is disapproved, 

the program may reapply for 

accreditation at any time. 

(3) A training program may apply for 

accreditation to offer courses or 

refresher courses in as many disciplines 

as it chooses. A training program may 

seek accreditation for additional courses 

at any time as long as the program can 

demonstrate that it meets the 

requirements of this section. 

(4) A training program applying for 

accreditation must submit the 

appropriate fees in accordance with 

§ 745.238. 

(c) Requirements for the accreditation 

of training programs. For a training 

program to obtain accreditation from 

EPA to offer lead-based paint activities 

courses, renovator courses, or dust 

sampling technician courses, the 

program must meet the following 

requirements: 

(1) The training program shall employ 

a training manager who has: 

(i) At least 2 years of experience, 

education, or training in teaching 

workers or adults; or 

(ii) A bachelor’s or graduate degree in 

building construction technology, 

engineering, industrial hygiene, safety, 

public health, education, business 

administration or program management 

or a related field; or 

(iii) Two years of experience in 

managing a training program 

specializing in environmental hazards; 

and 

(iv) Demonstrated experience, 

education, or training in the 

construction industry including: Lead or 

asbestos abatement, painting, carpentry, 

renovation, remodeling, occupational 

safety and health, or industrial hygiene. 

(2) The training manager shall 

designate a qualified principal 

instructor for each course who has: 

(i) Demonstrated experience, 

education, or training in teaching 

workers or adults; and 

(ii) Successfully completed at least 16 

hours of any EPA-accredited or EPAauthorized State or Tribal-accredited 

lead-specific training; and 

(iii) Demonstrated experience, 

education, or training in lead or asbestos 

abatement, painting, carpentry, 

renovation, remodeling, occupational 

safety and health, or industrial hygiene. 

(3) The principal instructor shall be 

responsible for the organization of the 

course, course delivery, and oversight of 

the teaching of all course material. The 

training manager may designate guest 

instructors as needed for a portion of the 

course to provide instruction specific to 

the lecture, hands-on activities, or work 

practice components of a course. 

However, the principal instructor is 

primarily responsible for teaching the 

course materials and must be present to 

provide instruction (or oversight of 

portions of the course taught by guest 

instructors) for the course for which he 

has been designated the principal 

instructor. 

(4) The following documents shall be 

recognized by EPA as evidence that 

training managers and principal 

instructors have the education, work 

experience, training requirements or 

demonstrated experience, specifically 

listed in paragraphs (c)(1) and (c)(2) of 

this section. This documentation must 

be submitted with the accreditation 

application and retained by the training 

program as required by the 

recordkeeping requirements contained 

in paragraph (i) of this section. Those 

documents include the following: 

(i) Official academic transcripts or 

diploma as evidence of meeting the 

education requirements. 

(ii) Re ́sume ́s, letters of reference, or 

documentation of work experience, as 

evidence of meeting the work 

experience requirements. 

(iii) Certificates from train-the-trainer 

courses and lead-specific training 

courses, as evidence of meeting the 

training requirements. 

(5) The training program shall ensure 

the availability of, and provide adequate 

facilities for, the delivery of the lecture, 

course test, hands-on training, and 

assessment activities. This includes 

providing training equipment that 

reflects current work practices and 

maintaining or updating the equipment 

and facilities as needed. 

(6) To become accredited in the 

following disciplines, the training 

program shall provide training courses 

that meet the following training 

requirements: 

(i) The inspector course shall last a 

minimum of 24 training hours, with a 

minimum of 8 hours devoted to handson training activities. The minimum 

curriculum requirements for the 

inspector course are contained in 

paragraph (d)(1) of this section. 

(ii) The risk assessor course shall last 

a minimum of 16 training hours, with a 

minimum of 4 hours devoted to handson training activities. The minimum 

curriculum requirements for the risk 

assessor course are contained in 

paragraph (d)(2) of this section. 

(iii) The supervisor course shall last a 

minimum of 32 training hours, with a 

minimum of 8 hours devoted to handson activities. The minimum curriculum 

requirements for the supervisor course 

are contained in paragraph (d)(3) of this 

section. 

(iv) The project designer course shall 

last a minimum of 8 training hours. The 

minimum curriculum requirements for 

the project designer course are 

contained in paragraph (d)(4) of this 

section. 

(v) The abatement worker course shall 

last a minimum of 16 training hours, 

with a minimum of 8 hours devoted to 

hands-on training activities. The 

minimum curriculum requirements for 

the abatement worker course are 

contained in paragraph (d)(5) of this 

section. 


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(vi) The renovator course must last a 

minimum of 8 training hours, with a 

minimum of 2 hours devoted to handson training activities. The minimum 

curriculum requirements for the 

renovator course are contained in 

paragraph (d)(6) of this section. 

(vii) The dust sampling technician 

course must last a minimum of 8 

training hours, with a minimum of 2 

hours devoted to hands-on training 

activities. The minimum curriculum 

requirements for the dust sampling 

technician course are contained in 

paragraph (d)(7) of this section. 

(viii) Electronic learning and other 

alternative course delivery methods are 

permitted for the classroom portion of 

renovator, dust sampling technician, or 

lead-based paint activities courses but 

not the hands-on portion of these 

courses. Electronic learning courses 

must comply with the following 

requirements: 

(A) A unique identifier must be 

assigned to each student for them to use 

to launch and re-launch the course. 

(B) The training provider must track 

each student’s course log-ins, launches, 

progress, and completion, and maintain 

these records in accordance with 

paragraph (i) of this section. 

(C) The course must include 

knowledge checks for each module, 

which must be successfully completed 

before the student can go on to the next 

module. 

(D) There must be a test of at least 20 

questions at the end of the electronic 

learning portion of the course, of which 

80% must be answered correctly by the 

student for successful completion of the 

electronic learning portion of the 

course. 

(E) Each student must be able to save 

or print an uneditable copy of an 

electronic learning course completion 

certificate. 

(7) For each course offered, the 

training program shall conduct either a 

course test at the completion of the 

course, and if applicable, a hands-on 

skills assessment, or in the alternative, 

a proficiency test for that discipline. 

Each individual must successfully 

complete the hands-on skills assessment 

and receive a passing score on the 

course test to pass any course, or 

successfully complete a proficiency test. 

(i) The training manager is 

responsible for maintaining the validity 

and integrity of the hands-on skills 

assessment or proficiency test to ensure 

that it accurately evaluates the trainees’ 

performance of the work practices and 

procedures associated with the course 

topics contained in paragraph (d) of this 

section. 

(ii) The training manager is 

responsible for maintaining the validity 

and integrity of the course test to ensure 

that it accurately evaluates the trainees’ 

knowledge and retention of the course 

topics. 

(iii) The course test shall be 

developed in accordance with the test 

blueprint submitted with the training 

accreditation application. 

(8) The training program shall issue 

unique course completion certificates to 

each individual who passes the training 

course. The course completion 

certificate shall include: 

(i) The name, a unique identification 

number, and address of the individual. 

(ii) The name of the particular course 

that the individual completed. 

(iii) Dates of course completion/test 

passage. 

(iv) For initial inspector, risk assessor, 

project designer, supervisor, or 

abatement worker course completion 

certificates, the expiration date of 

interim certification, which is 6 months 

from the date of course completion. 

(v) The name, address, and telephone 

number of the training program. 

(vi) The language in which the course 

was taught. 

(vii) For renovator and dust sampling 

technician course completion 

certificates, a photograph of the 

individual. The photograph must be an 

accurate and recognizable image of the 

individual. As reproduced on the 

certificate, the photograph must not be 

smaller than 1 square inch. 

(9) The training manager shall 

develop and implement a quality 

control plan. The plan shall be used to 

maintain and improve the quality of the 

training program over time. This plan 

shall contain at least the following 

elements: 

(i) Procedures for periodic revision of 

training materials and the course test to 

reflect innovations in the field. 

(ii) Procedures for the training 

manager’s annual review of principal 

instructor competency. 

(10) Courses offered by the training 

program must teach the work practice 

standards contained in § 745.85 or 

§ 745.227, as applicable, in such a 

manner that trainees are provided with 

the knowledge needed to perform the 

renovations or lead-based paint 

activities they will be responsible for 

conducting. 

(11) The training manager shall be 

responsible for ensuring that the 

training program complies at all times 

with all of the requirements in this 

section. 

(12) The training manager shall allow 

EPA to audit the training program to 

verify the contents of the application for 

accreditation as described in paragraph 

(b) of this section. 

(13) The training manager must 

provide notification of renovator, dust 

sampling technician, or lead-based paint 

activities courses offered. 

(i) The training manager must provide 

EPA with notification of all renovator, 

dust sampling technician, or lead-based 

paint activities courses offered. The 

original notification must be received by 

EPA at least 7 business days prior to the 

start date of any renovator, dust 

sampling technician, or lead-based paint 

activities course. 

(ii) The training manager must 

provide EPA updated notification when 

renovator, dust sampling technician, or 

lead-based paint activities courses will 

begin on a date other than the start date 

specified in the original notification, as 

follows: 

(A) For renovator, dust sampling 

technician, or lead-based paint activities 

courses beginning prior to the start date 

provided to EPA, an updated 

notification must be received by EPA at 

least 7 business days before the new 

start date. 

(B) For renovator, dust sampling 

technician, or lead-based paint activities 

courses beginning after the start date 

provided to EPA, an updated 

notification must be received by EPA at 

least 2 business days before the start 

date provided to EPA. 

(iii) The training manager must 

update EPA of any change in location of 

renovator, dust sampling technician, or 

lead-based paint activities courses at 

least 7 business days prior to the start 

date provided to EPA. 

(iv) The training manager must update 

EPA regarding any course cancellations, 

or any other change to the original 

notification. Updated notifications must 

be received by EPA at least 2 business 

days prior to the start date provided to 

EPA. 

(v) Each notification, including 

updates, must include the following: 

(A) Notification type (original, update, 

cancellation). 

(B) Training program name, EPA 

accreditation number, address, and 

telephone number. 

(C) Course discipline, type (initial/ 

refresher), and the language in which 

instruction will be given. 

(D) Date(s) and time(s) of training. 

(E) Training location(s) telephone 

number, and address. 

(F) Principal instructor’s name. 

(G) Training manager’s name and 

signature. 

(vi) Notification must be 

accomplished using any of the following 

methods: Written notification, or 

electronically using the Agency’s 


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Central Data Exchange (CDX). Written 

notification of lead-based paint 

activities course schedules can be 

accomplished by using either the 

sample form titled ‘‘Lead-Based Paint 

Training Notification’’ or a similar form 

containing the information required in 

paragraph (c)(13)(v) of this section. All 

written notifications must be delivered 

by U.S. Postal Service, fax, commercial 

delivery service, or hand delivery 

(persons submitting notification by U.S. 

Postal Service are reminded that they 

should allow 3 additional business days 

for delivery in order to ensure that EPA 

receives the notification by the required 

date). Instructions and sample forms can 

be obtained from the NLIC at 1–800– 

424–LEAD(5323), or on the Internet at 

http://www.epa.gov/lead. 

(vii) Renovator, dust sampling 

technician, or lead-based paint activities 

courses must not begin on a date, or at 

a location other than that specified in 

the original notification unless an 

updated notification identifying a new 

start date or location is submitted, in 

which case the course must begin on the 

new start date and/or location specified 

in the updated notification. 

(viii) No training program shall 

provide renovator, dust sampling 

technician, or lead-based paint activities 

courses without first notifying EPA of 

such activities in accordance with the 

requirements of this paragraph. 

(14) The training manager must 

provide notification following 

completion of renovator, dust sampling 

technician, or lead-based paint activities 

courses. 

(i) The training manager must provide 

EPA notification after the completion of 

any lead-based paint activities course. 

This notice must be received by EPA no 

later than 10 business days following 

course completion. 

(ii) The notification must include the 

following: 

(A) Training program name, EPA 

accreditation number, address, and 

telephone number. 

(B) Course discipline and type 

(initial/refresher). 

(C) Date(s) of training. 

(D) The following information for 

each student who took the course: 

(1) Name. 

(2) Address. 

(3) Date of birth. 

(4) Course completion certificate 

number. 

(5) Course test score. 

(6) For renovator or dust sampling 

technician courses, a digital photograph 

of the student. 

(E) Training manager’s name and 

signature. 

(iii) Notification must be 

accomplished using any of the following 

methods: Written notification, or 

electronically using the Agency’s 

Central Data Exchange (CDX). Written 

notification following renovator, dust 

sampling technician, or lead-based paint 

activities training courses can be 

accomplished by using either the 

sample form titled ‘‘Lead-Based Paint 

Training Course Follow-up’’ or a similar 

form containing the information 

required in paragraph (c)(14)(ii) of this 

section. All written notifications must 

be delivered by U.S. Postal Service, fax, 

commercial delivery service, or hand 

delivery (persons submitting 

notification by U.S. Postal Service are 

reminded that they should allow 3 

additional business days for delivery in 

order to ensure that EPA receives the 

notification by the required date). 

Instructions and sample forms can be 

obtained from the NLIC at 1–800–424– 

LEAD(5323), or on the Internet at http:// 

www.epa.gov/lead. 

(d) Minimum training curriculum 

requirements. To become accredited to 

offer lead-based paint courses in the 

specific disciplines listed below, 

training programs must ensure that their 

courses of study include, at a minimum, 

the following course topics. 

(1) Inspector. Instruction in the topics 

described in paragraphs (d)(1)(iv), (v), 

(vi), and (vii) of this section must be 

included in the hands-on portion of the 

course. 

(i) Role and responsibilities of an 

inspector. 

(ii) Background information on lead 

and its adverse health effects. 

(iii) Background information on 

Federal, State, and local regulations and 

guidance that pertains to lead-based 

paint and lead- based paint activities. 

(iv) Lead-based paint inspection 

methods, including selection of rooms 

and components for sampling or testing. 

(v) Paint, dust, and soil sampling 

methodologies. 

(vi) Clearance standards and testing, 

including random sampling. 

(vii) Preparation of the final 

inspection report. 

(viii) Recordkeeping. 

(2) Risk assessor. Instruction in the 

topics described in paragraphs (d)(2)(iv), 

(vi), and (vii) of this section must be 

included in the hands-on portion of the 

course. 

(i) Role and responsibilities of a risk 

assessor. 

(ii) Collection of background 

information to perform a risk 

assessment. 

(iii) Sources of environmental lead 

contamination such as paint, surface 

dust and soil, water, air, packaging, and 

food. 

(iv) Visual inspection for the purposes 

of identifying potential sources of leadbased paint hazards. 

(v) Lead hazard screen protocol. 

(vi) Sampling for other sources of lead 

exposure. 

(vii) Interpretation of lead-based paint 

and other lead sampling results, 

including all applicable State or Federal 

guidance or regulations pertaining to 

lead-based paint hazards. 

(viii) Development of hazard control 

options, the role of interim controls, and 

operations and maintenance activities to 

reduce lead-based paint hazards. 

(ix) Preparation of a final risk 

assessment report. 

(3) Supervisor. Instruction in the 

topics described in paragraphs (d)(3)(v), 

(vii), (viii), (ix), and (x) of this section 

must be included in the hands-on 

portion of the course. 

(i) Role and responsibilities of a 

supervisor. 

(ii) Background information on lead 

and its adverse health effects. 

(iii) Background information on 

Federal, State, and local regulations and 

guidance that pertain to lead-based 

paint abatement. 

(iv) Liability and insurance issues 

relating to lead-based paint abatement. 

(v) Risk assessment and inspection 

report interpretation. 

(vi) Development and implementation 

of an occupant protection plan and 

abatement report. 

(vii) Lead-based paint hazard 

recognition and control. 

(viii) Lead-based paint abatement and 

lead-based paint hazard reduction 

methods, including restricted practices. 

(ix) Interior dust abatement/cleanup 

or lead-based paint hazard control and 

reduction methods. 

(x) Soil and exterior dust abatement or 

lead-based paint hazard control and 

reduction methods. 

(xi) Clearance standards and testing. 

(xii) Cleanup and waste disposal. 

(xiii) Recordkeeping. 

(4) Project designer. (i) Role and 

responsibilities of a project designer. 

(ii) Development and implementation 

of an occupant protection plan for largescale abatement projects. 

(iii) Lead-based paint abatement and 

lead-based paint hazard reduction 

methods, including restricted practices 

for large-scale abatement projects. 

(iv) Interior dust abatement/cleanup 

or lead hazard control and reduction 

methods for large-scale abatement 

projects. 

(v) Clearance standards and testing for 

large scale abatement projects. 

(vi) Integration of lead-based paint 

abatement methods with modernization 

and rehabilitation projects for large 

scale abatement projects. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
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(5) Abatement worker. Instruction in 

the topics described in paragraphs 

(d)(5)(iv), (v), (vi), and (vii) of this 

section must be included in the handson portion of the course. 

(i) Role and responsibilities of an 

abatement worker. 

(ii) Background information on lead 

and its adverse health effects. 

(iii) Background information on 

Federal, State and local regulations and 

guidance that pertain to lead-based 

paint abatement. 

(iv) Lead-based paint hazard 

recognition and control. 

(v) Lead-based paint abatement and 

lead-based paint hazard reduction 

methods, including restricted practices. 

(vi) Interior dust abatement methods/ 

cleanup or lead-based paint hazard 

reduction. 

(vii) Soil and exterior dust abatement 

methods or lead-based paint hazard 

reduction. 

(6) Renovator. Instruction in the 

topics described in paragraphs (d)(6)(iv), 

(v), (vi), (vii), and (viii) of this section 

must be included in the hands-on 

portion of the course. 

(i) Role and responsibility of a 

renovator. 

(ii) Background information on lead 

and its adverse health effects. 

(iii) Background information on EPA, 

HUD, OSHA, and other Federal, State, 

and local regulations and guidance that 

pertains to lead-based paint and 

renovation activities. 

(iv) Procedures for using acceptable 

test kits to determine whether paint is 

lead-based paint. 

(v) Procedures for collecting a paint 

chip sample and sending it to a 

laboratory recognized by EPA under 

section 405(b) of TSCA. 

(vi) Renovation methods to minimize 

the creation of dust and lead-based 

paint hazards. 

(vii) Interior and exterior containment 

and cleanup methods. 

(viii) Methods to ensure that the 

renovation has been properly 

completed, including cleaning 

verification and clearance testing. 

(ix) Waste handling and disposal. 

(x) Providing on-the-job training to 

other workers. 

(xi) Record preparation. 

(7) Dust sampling technician. 

Instruction in the topics described in 

paragraphs (d)(6)(iv) and (vi) of this 

section must be included in the handson portion of the course. 

(i) Role and responsibility of a dust 

sampling technician. 

(ii) Background information on lead 

and its adverse health effects. 

(iii) Background information on 

Federal, State, and local regulations and 

guidance that pertains to lead-based 

paint and renovation activities. 

(iv) Dust sampling methodologies. 

(v) Clearance standards and testing. 

(vi) Report preparation. 

(e) Requirements for the accreditation 

of refresher training programs. A 

training program may seek accreditation 

to offer refresher training courses in any 

of the following disciplines: Inspector, 

risk assessor, supervisor, project 

designer, abatement worker, renovator, 

and dust sampling technician. To obtain 

EPA accreditation to offer refresher 

training, a training program must meet 

the following minimum requirements: 

(1) Each refresher course shall review 

the curriculum topics of the full-length 

courses listed under paragraph (d) of 

this section, as appropriate. In addition, 

to become accredited to offer refresher 

training courses, training programs shall 

ensure that their courses of study 

include, at a minimum, the following: 

(i) An overview of current safety 

practices relating to lead-based paint in 

general, as well as specific information 

pertaining to the appropriate discipline. 

(ii) Current laws and regulations 

relating to lead-based paint in general, 

as well as specific information 

pertaining to the appropriate discipline. 

(iii) Current technologies relating to 

lead-based paint in general, as well as 

specific information pertaining to the 

appropriate discipline. 

(2) Refresher courses for inspector, 

risk assessor, supervisor, and abatement 

worker must last a minimum of 8 

training hours. Refresher courses for 

project designer, renovator, and dust 

sampling technician must last a 

minimum of 4 training hours. Refresher 

courses for all disciplines except project 

designer must include a hands-on 

component. 

(3) For each course offered, the 

training program shall conduct a handson assessment (for all courses except 

project designer), and at the completion 

of the course, a course test. 

(4) A training program may apply for 

accreditation of a refresher course 

concurrently with its application for 

accreditation of the corresponding 

training course as described in 

paragraph (b) of this section. If so, EPA 

shall use the approval procedure 

described in paragraph (b) of this 

section. In addition, the minimum 

requirements contained in paragraphs 

(c) (except for the requirements in 

paragraph (c)(6)), and (e)(1), (e)(2) and 

(e)(3) of this section shall also apply. 

(5) A training program seeking 

accreditation to offer refresher training 

courses only shall submit a written 

application to EPA containing the 

following information: 

(i) The refresher training program’s 

name, address, and telephone number. 

(ii) A list of courses for which it is 

applying for accreditation. 

(iii) The name and documentation of 

the qualifications of the training 

program manager. 

(iv) The name(s) and documentation 

of the qualifications of the principal 

instructor(s). 

(v) A statement signed by the training 

program manager certifying that the 

refresher training program meets the 

minimum requirements established in 

paragraph (c) of this section, except for 

the requirements in paragraph (c)(6) of 

this section. If a training program uses 

EPA-developed model training 

materials, or training materials 

approved by a State or Indian Tribe that 

has been authorized by EPA under 

§ 745.324 to develop its refresher 

training course materials, the training 

manager shall include a statement 

certifying that, as well. 

(vi) If the refresher training course 

materials are not based on EPAdeveloped model training materials, the 

training program’s application for 

accreditation shall include: 

(A) A copy of the student and 

instructor manuals to be used for each 

course. 

(B) A copy of the course agenda for 

each course. 

(vii) All refresher training programs 

shall include in their application for 

accreditation the following: 

(A) A description of the facilities and 

equipment to be used for lecture and 

hands-on training. 

(B) A copy of the course test blueprint 

for each course. 

(C) A description of the activities and 

procedures that will be used for 

conducting the assessment of hands-on 

skills for each course (if applicable). 

(D) A copy of the quality control plan 

as described in paragraph (c)(9) of this 

section. 

(viii) The requirements in paragraphs 

(c)(1) through (c)(5), and (c)(7) through 

(c)(14) of this section apply to refresher 

training providers. 

(ix) If a refresher training program 

meets the requirements listed in this 

paragraph, then EPA shall approve the 

application for accreditation no more 

than 180 days after receiving a complete 

application from the refresher training 

program. In the case of approval, a 

certificate of accreditation shall be sent 

to the applicant. In the case of 

disapproval, a letter describing the 

reasons for disapproval shall be sent to 

the applicant. Prior to disapproval, EPA 

may, at its discretion, work with the 

applicant to address inadequacies in the 

application for accreditation. EPA may 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 25071 

also request additional materials 

retained by the refresher training 

program under paragraph (i) of this 

section. If a refresher training program’s 

application is disapproved, the program 

may reapply for accreditation at any 

time. 

(f) Re-accreditation of training 

programs. (1) Unless re-accredited, a 

training program’s accreditation, 

including refresher training 

accreditation, shall expire 4 years after 

the date of issuance. If a training 

program meets the requirements of this 

section, the training program shall be reaccredited. 

(2) A training program seeking reaccreditation shall submit an 

application to EPA no later than 180 

days before its accreditation expires. If 

a training program does not submit its 

application for re-accreditation by that 

date, EPA cannot guarantee that the 

program will be re-accredited before the 

end of the accreditation period. 

(3) The training program’s application 

for re-accreditation shall contain: 

(i) The training program’s name, 

address, and telephone number. 

(ii) A list of courses for which it is 

applying for re- accreditation. 

(iii) The name and qualifications of 

the training program manager. 

(iv) The name(s) and qualifications of 

the principal instructor(s). 

(v) A description of any changes to 

the training facility, equipment or 

course materials since its last 

application was approved that adversely 

affects the students’ ability to learn. 

(vi) A statement signed by the 

program manager stating: 

(A) That the training program 

complies at all times with all 

requirements in paragraphs (c) and (e) of 

this section, as applicable; and 

(B) The recordkeeping and reporting 

requirements of paragraph (i) of this 

section shall be followed. 

(vii) A payment of appropriate fees in 

accordance with § 745.238. 

(4) Upon request, the training program 

shall allow EPA to audit the training 

program to verify the contents of the 

application for re- accreditation as 

described in paragraph (f)(3) of this 

section. 

(g) Suspension, revocation, and 

modification of accredited training 

programs. (1) EPA may, after notice and 

an opportunity for hearing, suspend, 

revoke, or modify training program 

accreditation, including refresher 

training accreditation, if a training 

program, training manager, or other 

person with supervisory authority over 

the training program has: 

(i) Misrepresented the contents of a 

training course to EPA and/or the 

student population. 

(ii) Failed to submit required 

information or notifications in a timely 

manner. 

(iii) Failed to maintain required 

records. 

(iv) Falsified accreditation records, 

instructor qualifications, or other 

accreditation-related information or 

documentation. 

(v) Failed to comply with the training 

standards and requirements in this 

section. 

(vi) Failed to comply with Federal, 

State, or local lead-based paint statutes 

or regulations. 

(vii) Made false or misleading 

statements to EPA in its application for 

accreditation or re-accreditation which 

EPA relied upon in approving the 

application. 

(2) In addition to an administrative or 

judicial finding of violation, execution 

of a consent agreement in settlement of 

an enforcement action constitutes, for 

purposes of this section, evidence of a 

failure to comply with relevant statutes 

or regulations. 

(h) Procedures for suspension, 

revocation or modification of training 

program accreditation. (1) Prior to 

taking action to suspend, revoke, or 

modify the accreditation of a training 

program, EPA shall notify the affected 

entity in writing of the following: 

(i) The legal and factual basis for the 

suspension, revocation, or modification. 

(ii) The anticipated commencement 

date and duration of the suspension, 

revocation, or modification. 

(iii) Actions, if any, which the 

affected entity may take to avoid 

suspension, revocation, or modification, 

or to receive accreditation in the future. 

(iv) The opportunity and method for 

requesting a hearing prior to final EPA 

action to suspend, revoke or modify 

accreditation. 

(v) Any additional information, as 

appropriate, which EPA may provide. 

(2) If a hearing is requested by the 

accredited training program, EPA shall: 

(i) Provide the affected entity an 

opportunity to offer written statements 

in response to EPA’s assertions of the 

legal and factual basis for its proposed 

action, and any other explanations, 

comments, and arguments it deems 

relevant to the proposed action. 

(ii) Provide the affected entity such 

other procedural opportunities as EPA 

may deem appropriate to ensure a fair 

and impartial hearing. 

(iii) Appoint an official of EPA as 

Presiding Officer to conduct the hearing. 

No person shall serve as Presiding 

Officer if he or she has had any prior 

connection with the specific matter. 

(3) The Presiding Officer appointed 

pursuant to paragraph (h)(2) of this 

section shall: 

(i) Conduct a fair, orderly, and 

impartial hearing within 90 days of the 

request for a hearing. 

(ii) Consider all relevant evidence, 

explanation, comment, and argument 

submitted. 

(iii) Notify the affected entity in 

writing within 90 days of completion of 

the hearing of his or her decision and 

order. Such an order is a final agency 

action which may be subject to judicial 

review. 

(4) If EPA determines that the public 

health, interest, or welfare warrants 

immediate action to suspend the 

accreditation of any training program 

prior to the opportunity for a hearing, it 

shall: 

(i) Notify the affected entity of its 

intent to immediately suspend training 

program accreditation for the reasons 

listed in paragraph (g)(1) of this section. 

If a suspension, revocation, or 

modification notice has not previously 

been issued pursuant to paragraph (g)(1) 

of this section, it shall be issued at the 

same time the emergency suspension 

notice is issued. 

(ii) Notify the affected entity in 

writing of the grounds for the immediate 

suspension and why it is necessary to 

suspend the entity’s accreditation before 

an opportunity for a suspension, 

revocation or modification hearing. 

(iii) Notify the affected entity of the 

anticipated commencement date and 

duration of the immediate suspension. 

(iv) Notify the affected entity of its 

right to request a hearing on the 

immediate suspension within 15 days of 

the suspension taking place and the 

procedures for the conduct of such a 

hearing. 

(5) Any notice, decision, or order 

issued by EPA under this section, any 

transcripts or other verbatim record of 

oral testimony, and any documents filed 

by an accredited training program in a 

hearing under this section shall be 

available to the public, except as 

otherwise provided by section 14 of 

TSCA or by 40 CFR part 2. Any such 

hearing at which oral testimony is 

presented shall be open to the public, 

except that the Presiding Officer may 

exclude the public to the extent 

necessary to allow presentation of 

information which may be entitled to 

confidential treatment under section 14 

of TSCA or 40 CFR part 2. 

(6) The public shall be notified of the 

suspension, revocation, modification or 

reinstatement of a training program’s 

accreditation through appropriate 

mechanisms. 


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25072 Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 

(7) EPA shall maintain a list of parties 

whose accreditation has been 

suspended, revoked, modified or 

reinstated. 

(i) Training program recordkeeping 

requirements. (1) Accredited training 

programs shall maintain, and make 

available to EPA, upon request, the 

following records: 

(i) All documents specified in 

paragraph (c)(4) of this section that 

demonstrate the qualifications listed in 

paragraphs (c)(1) and (c)(2) of this 

section of the training manager and 

principal instructors. 

(ii) Current curriculum/course 

materials and documents reflecting any 

changes made to these materials. 

(iii) The course test blueprint. 

(iv) Information regarding how the 

hands-on assessment is conducted 

including, but not limited to: 

(A) Who conducts the assessment. 

(B) How the skills are graded. 

(C) What facilities are used. 

(D) The pass/fail rate. 

(v) The quality control plan as 

described in paragraph (c)(9) of this 

section. 

(vi) Results of the students’ hands-on 

skills assessments and course tests, and 

a record of each student’s course 

completion certificate. 

(vii) Any other material not listed 

above in paragraphs (i)(1)(i) through 

(i)(1)(vi) of this section that was 

submitted to EPA as part of the 

program’s application for accreditation. 

(viii) For renovator refresher and dust 

sampling technician refresher courses, a 

copy of each trainee’s prior course 

completion certificate showing that each 

trainee was eligible to take the refresher 

course. 

(ix) For course modules delivered in 

an electronic format, a record of each 

student’s log-ins, launches, progress, 

and completion, and a copy of the 

electronic learning completion 

certificate for each student. 

(2) The training program must retain 

records pertaining to lead-based paint 

activities courses at the address 

specified on the training program 

accreditation application (or as 

modified in accordance with paragraph 

(i)(3) of this section) for a minimum of 

3 years and 6 months. Records 

pertaining to renovator or dust sampling 

technician courses must be retained at 

the address specified on the training 

program accreditation application (or as 

modified in accordance with paragraph 

(i)(3) of this section) for a minimum of 

5 years. 

(3) The training program shall notify 

EPA in writing within 30 days of 

changing the address specified on its 

training program accreditation 

application or transferring the records 

from that address. 

(j) Amendment of accreditation. (1) A 

training program must amend its 

accreditation within 90 days of the date 

a change occurs to information included 

in the program’s most recent 

application. If the training program fails 

to amend its accreditation within 90 

days of the date the change occurs, the 

program may not provide renovator, 

dust sampling technician, or lead-based 

paint activities training until its 

accreditation is amended. 

(2) To amend an accreditation, a 

training program must submit a 

completed ‘‘Accreditation Application 

for Training Providers,’’ signed by an 

authorized agent of the training 

provider, noting on the form that it is 

submitted as an amendment and 

indicating the information that has 

changed. 

(3) If the amendment includes a new 

training program manager, any new or 

additional principal instructor(s), or any 

new permanent training location(s), the 

training provider is not permitted to 

provide training under the new training 

manager or offer courses taught by any 

new principal instructor(s) or at the new 

training location(s) until EPA either 

approves the amendment or 30 days 

have elapsed, whichever occurs earlier. 

9. In § 745.238, add paragraph (c)(5) to 

read as follows: 

§ 745.238 Fees for accreditation and 

certification of lead-based paint activities. 

* * * * * 

(c) * * * 

(5) No fee will be charged for 

accreditation amendments. 

* * * * * 

10. In § 745.326, revise paragraphs 

(a)(2)(i), (a)(2)(ii), (d), (e)(1), and (e)(3), 

and add paragraph (f) to read as follows: 

§ 745.326 Renovation: State and Tribal 

program requirements. 

(a) * * * 

(2) * * * 

(i) Procedures and requirements for 

the accreditation of renovation and dust 

sampling technician training programs. 

(Note: a State and Tribal program is not 

required to include procedures and 

requirements for the dust sampling 

technician training discipline if the 

State or Tribal program requires dust 

sampling to be performed by a certified 

lead-based paint inspector or risk 

assessor.) 

(ii) Procedures and requirements for 

accredited initial and refresher training 

for renovators and dust sampling 

technicians and on-the-job training for 

other individuals who perform 

renovations. 

* * * * * 

(d) Certification of individuals and/or 

renovation firms. To be considered at 

least as protective as the Federal 

program, the State or Tribal program 

must: 

(1) Establish procedures and 

requirements that ensure that 

individuals who perform or direct 

renovations are properly trained. These 

procedures and requirements must 

include: 

(i) A requirement that renovations be 

performed and directed by at least one 

individual who has been trained by an 

accredited training program. 

(ii) Procedures and requirements for 

accredited refresher training for these 

individuals. 

(iii) Procedures and requirements for 

certified renovators to provide on-thejob training for those individuals who 

perform renovations but do not receive 

accredited training. 

(2) Establish procedures and 

requirements for the formal certification 

and re-certification of either individuals 

or renovation firms. 

(3) Establish procedures for the 

suspension, revocation, or modification 

of certifications. 

(e) * * * 

(1) Renovations must be conducted 

only by certified individuals and/or 

certified renovation firms. 

* * * * * 

(3) Certified individuals and/or 

renovation firms must retain 

appropriate records. 

(f) Revisions to renovation program 

requirements. If EPA revises the 

renovation program requirements 

contained in subparts E and L of this 

part: 

(1) A State or Tribe with a renovation 

program approved before the effective 

date of the revisions must demonstrate 

that it meets the requirements of this 

section no later than the first report that 

it submits pursuant to § 745.324(h) no 

later than one year after the effective 

date of the revisions. 

(2) A State or Tribe with an 

application for approval of a renovation 

program submitted but not approved 

before the effective date of the revisions 

must demonstrate that it meets the 

requirements of this section either by 

amending its application or in the first 

report that it submits pursuant to 

§ 745.324(h) no later than one year after 

the effective date of the revisions. 

(3) A State or Indian Tribe submitting 

its application for approval of a 

renovation program on or after the 

effective date of the revisions must 


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Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed Rules 25073 

demonstrate in its application that it 

meets the requirements of this section. 

11. In § 745.327, revise paragraphs 

(b)(1), (b)(2), (b)(3), and (c)(2) to read as 

follows: 

§ 745.327 State or Indian Tribal lead-based 

paint compliance and enforcement 

programs. 

* * * * * 

(b) * * * 

(1) Lead-based paint activities or 

renovation requirements. State or Tribal 

lead-based paint compliance and 

enforcement programs will be 

considered adequate if the State or 

Indian Tribe demonstrates, in its 

application at § 745.324(b)(2), that it has 

established a lead-based paint program 

that contains all of the elements 

specified in § 745.325 or § 745.326, or 

both, as applicable. 

(2) Authority to enter. State or Tribal 

officials must be able to enter, through 

consent, warrant, or other authority, 

premises or facilities where lead-based 

paint violations may occur for purposes 

of conducting inspections. 

(i) State or Tribal officials must be 

able to enter premises or facilities where 

those engaged in training for lead-based 

paint activities or renovations conduct 

business. 

(ii) For the purposes of enforcing a 

renovation program, State or Tribal 

officials must be able to enter a firm’s 

place of business or work site. 

(iii) State or Tribal officials must have 

authority to take samples and review 

records as part of the lead-based paint 

inspection process. 

(3) Flexible remedies. A State or 

Tribal lead-based paint compliance and 

enforcement program must provide for a 

diverse and flexible array of 

enforcement statutory and regulatory 

authorities and remedies. At a 

minimum, these authorities and 

remedies, which must also be reflected 

in an enforcement response policy, must 

include the following: 

(i) The authority to issue warning 

letters, Notices of Noncompliance, 

Notices of Violation, or the equivalent; 

(ii) The authority to assess 

administrative or civil fines, including a 

maximum penalty authority for any 

violation in an amount no less than 

$10,000 per violation per day; 

(iii) The authority to assess the 

maximum penalties or fines for each 

instance of violation and, if the 

violation is continuous, the authority to 

assess penalties or fines up to the 

maximum amount for each day of 

violation, with all penalties assessed or 

collected being appropriate for the 

violation after consideration of the size 

or viability of the business, enforcement 

history, risks to human health or the 

environment posed by the violation, and 

other similar factors; 

(iv) The authority to commence an 

administrative proceeding or to sue in 

courts of competent jurisdiction to 

recover penalties; 

(v) The authority to suspend, revoke, 

or modify the accreditation of any 

training provider or the certification of 

any individual or firm; 

(vi) The authority to commence an 

administrative proceeding or to sue in 

courts of competent jurisdiction to 

enjoin any threatened or continuing 

violation of any program requirement, 

without the necessity of a prior 

suspension or revocation of a trainer’s 

accreditation or a firm’s or individual’s 

certification; 

(vii) The authority to apply criminal 

sanctions, including recovering fines; 

and 

(viii) The authority to enforce its 

authorized program using a burden of 

proof standard, including the degree of 

knowledge or intent of the respondent 

that is no greater than it is for EPA 

under TSCA. 

* * * * * 

(c) * * * 

(2) Compliance assistance. A State or 

Tribal lead-based paint compliance and 

enforcement program must provide 

compliance assistance to the public and 

the regulated community to facilitate 

awareness and understanding of and 

compliance with State or Tribal 

requirements governing the conduct of 

lead-based paint activities or 

renovations. The type and nature of this 

assistance can be defined by the State or 

Indian Tribe to achieve this goal. 

* * * * * 

[FR Doc. 2010–10102 Filed 5–5–10; 8:45 am] 

BILLING CODE 6560–50–P 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2