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RESPONSE TO COMMENTS 3 Lead; Clearance and Clearance Testing Requirements for 4 the Renovation, Repair, and Painting Program 5 [RIN 2070–AJ57] 6 July 15, 2011 (Draft of 03/21/2011) 7

8 A number of commenters commented on asp ects of the existing Renovation, Repair, and 9 Painting (RRP) Rule. In certain cases, as a cour tesy, EPA has addressed the points made in those 10 comments. However, EPA’s proposal did not re-open for comment any issues underlying the 11 existing rule except where it did so explicitly, and EPA is not re-opening any of those issues here 12 except where EPA has explicitly done so by modifying an existing rule provision. 13

14 General Support for Clearance and Testing Provisions: 15

16 Several commenters argued that clearance is nece ssary in order to determine objectively that an 17 area is safe for re-occupancy. They believe that clearance dust testing by disinterested parties 18 remains the only objective method for determining th e amount of lead dust that is present on a 19 surface and for evaluating hazard potential. Some thought that it should be required in as wide a 20 range of situations as possible, given the proven reliability of th e method and its association with 21

blood lead levels. 22

23 As noted in response to comme nters on the original Renovati on, Repair, and Painting (RRP) 24 rule, EPA agrees that having dust wipe sample s collected by a qualified person and analyzed by 25 a qualified laboratory is a very e ffective way to determine the quant ity of lead in dust remaining 26 after a renovation activity. However, the Dust Study demonstrates that the RRP work practices 27 effectively minimize exposure to lead-based paint hazards created by renovations. 28

29 A number of commenters thought that clearance should be required because renovation firms are 30 not motivated to perform the re quired specialized cleaning and cleaning verification properly. 31 One commenter observed that, on performing inspec tions or risk assessments in target housing, 32 he found that 50% or more of the replacement windows he tested were positive for lead dust. 33 According to the commenter, there is no lead in the new windows, but dust from the old 34 windows has settled back on them from the replacement process. The commenter further 35

observed that some contractors he works with barely clean even when he is doing clearance 36 testing. This commenter believes that, if thes e contractors are left on their own to do cleaning 37 verification, proper cleaning will not be done and children will be at risk. Another commenter 38 stated that he has experienced a 10-15% failure rate of clearance after abatements, but some 39

contractors are much better and some are much wors e. This commenter observed that, if this is 40 the failure rate after cleaning performed by someone with 4 days of training and who knows that 41 there will be sampling afterward, he anticipates that the failure rate for RRP contractors is or will 42 be much worse. Yet another commenter argue d that clearance shoul d be required because 43 cleaning verification is subject to falsification in ways that cl earance testing is not. This 44 commenter contended that, because EPA does not re quire any physical evidence to be retained to 45 prove that cleaning verification was performed and achieved the required result, renovators can 46*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 2 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 simply write in their records that they perfor med cleaning verification and make up a number for 47 how many cloths were used. This commenter noted that with clearance du st testing, a chain of 48 custody form, lab analysis results and a report w ould be generated, thus providing evidence that 49 the testing was actually done. In contrast, one commenter believed, ba sed on student comments 50 in the RRP classes attended by company em ployees, that most renovators take their 51 responsibilities seriously and that the proposed du st wipe testing requirements will actually make 52 little improvement over the existing rule. 53

54

While isolated incidents are ce rtainly possible, EPA does not ge nerally believe that renovators, 55 either accidentally or on purpose, will fail to correctly perform the required RRP cleaning 56 protocol. EPA’s experience with the Dust Study shows that the fu ll suite of RRP work practices, 57 including containment and speci alized cleaning, is easy for renovation firms to learn and 58 implement. Furthermore, the Dust Study shows th at these work practices are reliable, safe, and 59 effective at minimizing occupant exposure to du st-lead hazards created by renovations. In 60 addition, cleaning verifica tion is easy for renovators to learn and easy for them to perform 61 correctly in a variety of situations. Finally, while some commenters ur ged the point that dust 62 wipe testing would encourage be tter cleanup, and provided anecdotal support for that view, EPA 63 has no record basis to judge the likelihood or frequency of this pot ential impact. This logic could 64 potentially lead to requiring dust wipe testing fo r all jobs – a significant change in the existing 65 rule that EPA is not prepared to ma ke without better supporting evidence. 66

67 The ability to falsify results is not specific to cleaning verification. It could also occur if dust68 wipe testing and clearance were re quired. Sample locations could be falsified, or there could be 69 collusion between the sampling professional and th e renovation or abatement contractor. EPA 70 does not think it is appropriate to generally assume that contr actors will falsely claim that 71 cleaning cloths used in cleaning verification “pas sed” even when they have not. Further, the 72 cleaning verification prot ocol is neither onerous nor time-co nsuming. On average in the Dust 73 Study, cleaning verification took 13 mi nutes. Thus, there is little reason for renovators to skip 74 the cleaning verification step, or to falsify results. 75

76 Another commenter noted that, even following ab atement procedures (i ncluding cleaning), the 77

commenter’s firm has still failed clearance tes ting after door/window removal projects. This 78

commenter did not believe that cleaning verification was the answ er to this problem, and thought 79 that clearance testing should be required. 80

81 EPA disagrees with this commenter. The Dust Study demonstrates that the RRP work practices, 82 of which cleaning verification is an effective component, effectively minimize exposure to lead83 based paint hazards created by renovations. In addition, cleaning veri fication is not simply 84 qualitative clearance. Unlike the sampling for dust clearance testing, th e cleaning verification 85 involves a cleaning component. The act of doing the cleaning verification has been shown to 86 lower, often significantly, the dus t lead levels. Moreover, in the Disposable Cleaning Cloth 87 Study, the disposable cleaning cloths actually were biased toward a false positive rather than a 88 false negative result. That is the cloths failed where they should have indicated that the dust had 89 been sufficiently cleaned-up. This adds an addi tional margin of safety when considering the 90

variables in the use of the disposable cleaning cloths. 91

92*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 3 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 One commenter believed that clearance testi ng would reduce liability for contractors and 93 landlords and leave more secure feeling about th e finished job. Anothe r argued that attempting 94 to limit clearance to high-risk situations would cause increas ed litigation because cleaning 95

verification doesn’t work. 96

97 EPA believes that the RRP regulation establis hes a “standard of care” for the renovation 98 industry. The RRP rule makes it more difficu lt to argue that cont ractors who follow the 99 requirements of the regulation are negligent with respect to those requirements. As a result, EPA 100 believes that the RRP regulation itself, even in the absence of a clearance testing requirement, 101 lessens the potential liability of renovation contractors. Of course, renovation firms and 102 landlords are always free to conduct dust wipe te sting to reassure themselves about dust lead 103

levels

. 104

105 EPA also disagrees with the commenter’s asserti on that cleaning verificat ion doesn’t work. The 106 Dust Study demonstrates that the RRP work pr actices, of which cleani ng verification is an 107 effective component, effectively minimize exposur e to lead-based paint hazards created by the 108 renovation, both during and af ter the renovation. 109

110 One commenter thought that it w ould be worth spending $400 to ensure that a home is safe. 111

112 While EPA agrees that the clearance process pr ovides valuable assura nce regarding potential 113 dust-lead hazards, EPA continues to believe that the full suite of RRP work practices, including 114 containment and specialized cleaning, is reliabl e, safe, and effective at minimizing occupant 115 exposure to dust-lead hazards created by renovations . Building owners and occupants are always 116 free to negotiate for dust wipe te sting and clearance, either from the renovation firm or a third 117

party. 118

119 Clearance testing will cause more hygienist firm s to get involved with renovations, which will 120 result in increased compliance with EPA a nd OSHA lead regulations in general. 121

122

EPA does not have sufficient information to de termine whether clearan ce testing would cause 123 more hygienist firms to get invo lved with renovations. That being said, EPA believes that 124 industrial hygiene profes sionals or certified lead-based paint evaluation fi rms could likely 125 provide valuable assistance on regulatory compliance and work er and occupant protection. 126 However, the suite of RRP work practices consis t of relatively simple, low-cost measures that 127 are nevertheless reliable, safe, and effective at minimizing occupant exposure to dust-lead 128 hazards created by renovations. 129

130 Some commenters agreed with EP A’s statement in the proposed rule that dust wipe testing 131 would provide valuable feedback to renovation firms on how well they are cleaning up after 132

renovations. Several stated their belief that th ere is no question that co ntractors improve their 133 cleaning performance when they are quantitativel y measured, and that the Evaluation of the 134

HUD Lead-Based Paint Hazard Control Grant Pr ogram demonstrates that firm success in 135 achieving clearance was associated with firm expe rience in achieving it. Ot hers argued that the 136 proposed requirements would protect children becau se clearance would be required for activities 137 that generate more leaded dust. These comm enters wondered how contractors would learn to 138*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 4 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 effectively control the higher lead dust levels th at may result from these activities in the absence 139 of dust wipe testing. 140

141 EPA agrees that quantitative dust-lead measur ements can provide valuable feedback to 142 contractors on how well they are cl eaning up after renovations, and that this feedback is likely to 143 improve performance. However, EPA also believ es that cleaning verifi cation provides feedback 144

to the renovator on the cleanliness of the surface. The Dust Study demonstrates that the RRP 145 work practices, of which cleaning verification is an important component, effectively minimize 146 exposure to lead-based paint hazards crea ted by a renovation, both during and after the 147 renovation. Moreover, the cleaning and feedback aspects of clean ing verification are important 148

to its contribution to the effectiveness of the wo rk practices. Therefore, EPA disagrees that dust 149 wipe testing is the only way to improve the cl eaning effectiveness of renovation firms. In 150 addition, while some commenters urged the point th at dust wipe testing would encourage better 151 cleanup, and provided some support for that vi ew, EPA has no record basis to judge the 152 likelihood or frequency of this pot ential impact. This logic coul d potentially lead to requiring 153 dust wipe testing for all jobs – a significant change in the existing rule that EPA is not prepared 154

to make without better supporting evidence. 155

156 One commenter argued that cleaning verificati on is subjective, speculative, convoluted, and 157 confusing. 158

159 EPA disagrees that the cleaning ve rification is too complicated or confusing. EPA field tested it 160 in the Dust Study and found that th e contractors were easily able to follow the protocol. Indeed, 161

EPA found that the contractors were able to conduct cleaning verifi cation on average in 13 162 minutes. In addition, renovators receive hands -on training in performi ng cleaning verification 163 during the training course re quired for certified renovators. 164

165 Several commenters stated that cleaning verificat ion doesn’t work or is based on bad science. 166 One maintained that it is not sufficiently protecti ve because it is a visual test. Another argued 167

that it doesn’t work because lead dust is invisi ble and not everyone has perfect vision anyway. 168

Several commenters contended that the Dust St udy shows that the RRP work practices do not 169 ensure that dust lead levels remaining after renov ations are below the dust-lead hazard standard. 170 These commenters observed that this problem will be more acute if EPA lowers the dust-lead 171

hazard standard. 172

173 EPA disagrees with these commenters. If the Dust Study experiments involving the practices 174 prohibited by the final RRP rule are removed, th e average post-cleaning-verification dust-lead 175 loading on the floors was below 40 μ g/ft2 for 9 of the 10 experiments performed in accordance 176

with the final RRP rule containment and cleanin g requirements. For the 10th experiment, the 177 average dust-lead loadings were 42.3, which is within the plus-or-minus 20% range permitted for 178

accredited laboratories under the National Lead Laboratory Accreditation Program (NLLAP). 179 Thus, the Dust Study demonstrates that the work practices, of which clea ning verification is an 180 effective component, effectively minimize exposur e to lead-based paint hazards created by the 181 renovation, both during and afte r the renovation. EPA believe s that because cleaning 182

verification includes both a cleaning aspect and a feedback as pect, it cannot be equated with a 183 simple visual test or visual inspection of a workspace. 184*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 5 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 185 With respect to the dust-lead hazard sta ndard, in October 2009, EPA granted a petition 186 requesting a re-evaluation of EP A’s dust-lead hazard standards a nd the regulatory definition of 187 lead-based paint. If that action results in lower dust-lead hazard standards, EPA also plans to re188 evaluate the RRP rule work practices. 189

190

Several commenters asserted that clearance te sting would be consistent with HUD requirements 191 for virtually all federa lly-assisted housing. 192

193 EPA disagrees that the RRP rule should re quire clearance simply because under HUD’s Lead 194 Safe Housing Rule clearance is required. As discussed in the preambl e to the final 2008 RRP 195 rule and the preamble to the final clearance ru le, EPA believes that dust clearance testing and 196 clearance are not necessary gi ven that EPA has determined that the RRP work practices 197 minimize exposure to lead-based paint hazards created by renovations. Specifically, the RRP 198 work practices are expected to minimize exposur e to lead-based paint hazards created by a 199 renovation by effectively cleaning dust hazards. 200

201 HUD’s Lead Safe Housing Rule applies to all targ et housing that is fede rally owned and target 202 housing receiving Federal assistance. HUD’s rule, among other things establishes procedures to 203 eliminate as far as practicable lead-based paint hazards in a residential property that receives 204

Federal rehabilitation assistan ce under a program administered by HUD, in residential property 205 assisted under the U.S. Housing Act of 1937 (42 U.S.C. 437 et seq. ), and in housing occupied by 206 families receiving tenant-based rental assistance . Such assistance includes tenant-based rental 207

assistance under the Section 8 certificate program, the Section 8 voucher program, the HOME 208 program, the Shelter Plus Care program, the H ousing Opportunities for Persons With AIDS 209 (HOPWA) program, and the Indian Housing Bl ock Grant program. HUD’s rule includes 210 requirements that range from abatement to interim controls, ongoing lead-based paint 211 maintenance, and paint stabilization. As the purpose of the Lead-safe Housing Rule is to 212 “eliminate as far as practicable lead-based paint hazards” its intent is different than the purpose 213

of EPA’s RRP rule which is to address lead -based paint hazards generated during renovation 214 activities. Thus, while HUD can require clearance and occupant relocation, which is appropriate 215 under its rule, EPA does not believe that these requirements are appropriate for the RRP rule 216 which has a more specific focus – to address lead-based paint dust generated from renovation 217

activities. 218

219 General Opposition: 220

221 Numerous commenters expressed opposition to the proposed dust wipe testing and clearance 222 requirements. Commenters thought that dust wipe testing and clearance would be expensive, 223 that it was a bad time, economically speaking, to increase the cost of renovations. Commenters 224

noted that the additional costs w ould be particularly bad for small businesses. Some commenters 225 cited a survey done for the Nati onal Association of Home Builder s and argued that the survey 226

demonstrates that most homeowners are unwillin g to absorb significant costs for dust wipe 227 testing and clearance. Many commenters argue d that a dust wipe testing and clearance 228 requirement would also cause significant and unr easonable delays in scheduling and completing 229 renovation projects, particularly in areas where lead testing servi ces are not readily available. 230*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 6 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 Some thought that letting clients back into the wo rk area before test re sults are received would 231 not be advisable, due to liabili ty concerns. One commenter noted that some renovation projects 232 will not be able to pass clearance the first time, causing further delays. 233

234 EPA agrees that dust wipe testi ng and clearance would increase th e costs of renovations, and that 235 such requirements could delay the sche duling and completion of projects. EPA has disagreed 236 with industry predictions of unint ended consequences arising from the existing RRP rule in part 237 because the Agency, in developing work practices that are reliable, effective, and safe, has 238 striven to keep the work practices simple and easy to understand, and has been mindful of the 239 compliance costs associated with the rule. While EPA believes industry’s predictions here are 240 overstated, the Agency does acknowledge that signifi cant increases in the co st and complexity of 241

the RRP rule could increase the possibility of uninte nded consequences aris ing from additional 242 requirements. EPA is reluctant to add additi onal requirements without strong record support. 243 Here, EPA is not promulgating the proposed dus t wipe testing or cl earance requirements 244 primarily because EPA has determined that th e available information does not support a dust 245 wipe testing or cl earance requirement. 246

247 Many commenters thought that dust wipe testing and cleara nce requirements were not 248 appropriate for renovations, because renovation cont ractors are not in the business of abating 249 lead hazards. Some argued that abatements ar e performed to eliminate lead-based paint and 250 lead-based paint hazards, while renovations are not designed to do so. Many thought that it 251 would inappropriate and unfair to make renovatio n contractors responsib le for cleaning up pre252 existing hazards, one commenter specifically re commended that EPA retain the intent of the 253 existing RRP rule, to make renovation contractors responsible for the dust they create while, for 254 the most part, absolving them of responsibility for pre-existin g dust-lead hazards. Several 255 commenters expressed concern th at they would be responsible for dust created by homeowner 256 activities occurring at the same time as the renovation. Some stated that establishing dust wipe 257 testing and clearance testing requirements is incons istent with the intent of Congress because, at 258 a fundamental level, it eliminates the distinct ion between abatement contractors on the one hand 259

and renovators on the other. At least one commen ter noted that, even if the requirement is only 260 for dust wipe testing and not clearance, the renovation firm will still be held responsible by the 261

homeowner for dust lead levels a bove the clearance standards. 262

263 EPA agrees that there are many differences betw een renovations and abatements. As discussed in 264 the preamble to the final RRP rule, renovations are different from abatements in intent, 265 implementation, type of workforce, funding, and goa l. One of the biggest challenges that faced 266 EPA in revising the TSCA section 402(a) Lead-b ased Paint Activities Regulations was how to 267 effectively bridge the differences between abatement and renovation and remodeling while 268 acknowledging that many of the activities employed in both ( e.g. , window replacement) are the 269 same and generate the same amount of dust. Abatements are generally performed in three 270 circumstances. First, abatements may be perfor med in the residences of children who have been 271

found to have elevated blood lead levels. Sec ond, abatements are performed in certain housing 272 receiving financial assistance from HUD when required by HUD’s Lead-Safe Housing Rule. 273 Third, state and local laws and regulations ma y require abatements in certain situations 274 associated with rental housing, or when abatem ent orders have been issued when resident young 275 children, typically under age 6, have blood lead leve ls at or above specified values. Typically, 276*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 7 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 when an abatement is performed, the housing is either unoccupied or the occupants are 277 temporarily relocated to lead-safe housing until the abatement has been demonstrated to have 278 been properly completed through dust clearance te sting. Abatements have only one purpose—to 279 permanently eliminate lead-based paint or l ead-based paint hazards. On the other hand, 280 renovations are performed for myriad reasons that may have nothing to do with lead-based paint. 281

Renovations involve activities desi gned to update, maintain, or modify all or part of a building. 282 Renovations may be performed while the property is occupied or unoccupied. If the renovation 283 is performed while the property is occupied, the occupants do not typically relocate pending the 284 completion of the project. 285

286

The difference between abatement and renovation is one of the reasons why EPA developed the 287 specific containment requirements and cleaning pr otocol, including cleani ng verification, for the 288 2008 RRP rule. In 2010, EPA proposed to require dust wipe testing and clearance for certain 289 renovations that EPA felt had the potential to resu lt in higher dust-lead levels than the clearance 290 standards, even if the renovation firm followed a ll of the RRP rule requirements. EPA is not 291 promulgating the proposed dust wipe testing or clearance requirements because, among other 292 things, EPA has determined that the available in formation does not support a dust wipe testing or 293 clearance requirement and that, on balance, imposing a dust wipe te sting or clearance 294 requirement is unwarranted. 295

296 Other commenters disagreed with the argument th at clearance is not appropriate for renovations 297 because they differ from abatements. One argu ed that this objection misses the point that, 298 because of the widespread presence of lead-b ased paint in the U.S. housing stock, both 299

renovation contractors and abatemen t contractors create hazardous levels of invisible lead dust 300 that can harm occupants and which cannot be cl eaned up separately from any pre-existing lead 301

dust. At least one commenter asserted that there is no real difference between renovation and 302 abatement because a new window, wall, or door ge nerates the same amount of dust whether it 303 was done with the purpose of abating lead-based paint or not. Finally one commenter believed 304

that the risk of residual lead dus t being left behind in a standa rd RRP-oriented project is MUCH 305 greater than in a lead abatement project. 306

307 While EPA agrees that renovations and abatements can share specific tasks, such as window or 308 door replacement, EPA does not agree that it is a ppropriate to hold renovation firms responsible 309 for cleaning up pre-existing lead-bas ed paint hazards as a matter of course. EPA believes that 310 abatements and renovations are equally capable of generating hazardous levels of leaded dust. 311 However, the purpose of abatement is to eliminate lead-based paint and lead-based paint hazards, 312 so it is sensible to require abatement contractor s to demonstrate that they have done so through 313 dust wipe testing and clearance. The Dust Study demonstrates that the RRP rule requirements, 314 including containment and specia lized cleaning, are effective at minimizing occupant exposure 315 to dust-lead hazards created by renovations. EP A is not promulgating the proposed dust wipe 316 testing or clearance requirements because, am ong other things, EPA has determined that the 317 available information does not support a dust wipe testing or clearance requirement and that, on 318 balance, imposing a dust wipe testing or clearance requirement is unwarranted. 319

320 One commenter argued that cleaning to achieve cleaning verification a ddresses pre- and post321 renovation lead dust in the same way that cleaning to achieve clearance would. 322*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 8 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 323 EPA disagrees with this commenter. While the requirements of the RRP rule will, in some 324 cases, have the ancillary benefit of removing some pre- existing dust-lead hazards, the specialized 325 cleaning protocol, includ ing cleaning verification, required by the RRP rule strikes the proper 326 balance of addressing the lead-based paint hazards created du ring the renovation but at the same 327 time not requiring renovation firms to remediate or eliminate hazards that are beyond the scope 328 of the work they were hired to do. 329

330

One commenter wondered whether it was the in tent of the RRP rule to turn renovation 331 contractors into lead dust hazard control spec ialists or to change how renovation contractors 332

conduct their current work so it can be done in a lead-safe manne r. The commenter asserted that, 333 if it is the former, the training and work procedures are woefully inadequate. 334

335 As stated in the preamble to the 2008 final RRP rule, EPA’s primary objective with the RRP rule 336 is to ensure that persons w ho already know how to perform renovations perform their typical 337

work in a lead-safe manner. 338

339 Several commenters contended that the proposed dust wipe testing and clearance requirements 340 place greater economic and legal liabilities on renovators, and some of these liabilities should 341 more appropriately be placed on target housi ng and child-occupied facility owners and 342 managers. One thought that EPA should require pr operty owners to have testing done. Another 343 was concerned about additional requirements that insurers might place on companies, such as 344 ensuring that the clearance standards are met by refinishing floors. Still another commenter 345 believed that the RRP cleaning protocol, while by no means perfect, at least establishes clear 346 standards for performance and clear limits on contractor obligations. 347

348 EPA understands the logic of placing a testing re quirement on property owners. However, EPA 349 interprets the statutory direc tive to regulate remodeling and re novation activities found in TSCA 350 section 402(c)(3) as applying to contractors and not a broader category of persons, such as 351

homeowners. EPA also understands the commente r’s concern that insurance companies might 352 require more of contractors than EPA does, should EPA promulgate dust wipe testing 353 requirements. EPA agrees with the comm enter who supported the existing RRP cleaning 354 protocol. EPA is not promulgating the proposed dust wipe testing or clearance requirements 355 because, among other things, EPA has determined that the available information does not 356 support a dust wipe testing or clearance requir ement and that, on balance, imposing a dust wipe 357 testing or clearance requirement is unwarranted. 358

359 Commenters argued that the added cost and burden of the proposed dust wipe testing and 360 clearance requirements would lead to a host of unintended consequences. These included 361 reduced availability of low-income rental hous ing, deferred maintenance contributing to the 362 decline in urban core areas, refusal of traine d or knowledgeable contra ctors to work on older 363 homes, thus resulting in more renovations done by unskilled and uncertified contractors, more 364 homeowners doing work themselves or hiring uns killed and uncertified contractors, thus 365 resulting in increased likelihood of occupant exposure to dust-lead hazards, fewer energy366 efficient home repairs and window replacements, bankruptcy for private property or management 367 owners who have invested in pre-1978 rental prop erty as part of their retirement portfolio and 368*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 9 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 revenue stream, bankruptcy of small companies and consolidation of re novation services in 369 larger contractors, lost jobs, reduced replacement of lead-based paint windows, which are more 370 dangerous remaining in place than the dust generated by the removal, reduced market for pre371 1978 housing, and further hindrance to r ecovery from natural disasters. 372

373 EPA agrees that dust wipe tes ting and clearance would increase the costs of renovations. EPA 374 has disagreed with industry pred ictions of unintended consequences arising from the existing 375 RRP rule in part because the Agency, in developi ng work practices that are reliable, effective, 376 and safe, has striven to keep the work practic es simple and easy to understand, and has been 377 mindful of the compliance costs associated with the rule. While EPA believes industry’s 378 predictions here are overstated, the Agency does acknowledge that significant increases in the 379 cost and complexity of the RRP rule could incr ease the possibility of unintended consequences 380 arising from additional requireme nts. EPA is reluctant to ad d additional requirements without 381 strong record support. Here, EPA is not promulgating th e proposed dust wipe testing or 382 clearance requirements because EPA has determin ed that the available information does not 383 support a dust wipe testing or clearance requir ement and that, on balance, imposing a dust wipe 384 testing or clearance requirement is unwarranted. 385

386 One commenter argued that this requirement will bankrupt cities like Detroit, who is disposing 387 of 10,000 homes this year with another 65,000 to tear down over the coming years. 388

389

EPA does not understand how this could be the case, because the RRP rule does not apply to 390 complete demolitions. Nevertheless, EPA is not promulgating the proposed dust wipe testing or 391 clearance requirements because, among other thi ngs, EPA has determined that the available 392 information does not support a dus t wipe testing or clearance re quirement and that, on balance, 393 imposing a dust wipe testing or cl earance requirement is unwarranted. 394

395 Many commenters argued that the proposed dust wi pe testing and cleara nce requirements were 396 unnecessary. Some based their argument on the premise that renovations do not create lead397 based paint hazards. Others specifically addressed the in formation presented in the 2010 398 proposal, and contended that th e Dust Study shows that the existing RRP work practices are 399 protective. Some thought that no new evidence had been presented showing that the added cost 400 of clearance sampling was worthwhile from a public health perspective. 401

402 EPA is not reconsidering or reopening the issu e of whether renovations create lead-based paint 403 hazards. With respect to this final rule, EPA does agree that the Dust Study shows that the 404 existing RRP rule work practices are safe, re liable, and effective at minimizing occupant 405 exposure to dust-lead hazards created by renova tions. EPA is not promulgating the proposed 406 dust wipe testing or clearance requirements because, among other things, EPA has determined 407

that the available information does not support a dust wipe testi ng or clearance requirement and 408 that, on balance, imposing a dust wipe testi ng or clearance require ment is unwarranted. 409

410 One commenter asserted that there was no lead pr oblem in his community, th at lead is an inner411 city, low-income problem. 412

413*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 10 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 EPA disagrees with this commenter. Lead-based paint can be found in all areas of the country, 414 in urban areas, suburbs, and rural communities, anywhere there is pre-1978 housing. Among the 415

numerous studies EPA conducted and reviewed during the course of the rulemaking on RRP 416

were several case studies that addressed lead poisoning in situations unlike those described by 417

the commenter. One detailed a case of childhood lead poisoning and documents the costs of 418 decontamination after uncontained power sanding was used to remove paint down to bare wood 419 from approximately 3,000 ft2 of exterior siding on a large, well-maintained 75-year-old house in 420 a middle-income neighborhood. After the uncontrolled removal of lead-based paint, interior dust 421 lead levels ranged from 390 to 27,600 μ g/ft2 (on floors and windowsills) and bare soil lead levels 422 ranged from 360 ppm in the yard to 3,900 ppm along the foundation to 130,000 ppm in the 423 child’s play area. The family ’s three children had blood lead levels ranging from 19 to 23 μ g/dL. 424

The hard costs of decontaminati on were over $195,000. (Jacobs (2003). The High Cost of 425 Improper Removal of Lead-Based Paint from Housing: A Case Report .) Another described a 426 series of four cases of childhood lead poisoning and two cases of adult lead toxicity in a 427 professional family exposed to lead dust and fume during renovation of a rural farmhouse. 428

Initial blood lead levels in th e children ranged from 56 to 87 μ g/dL and all four required 429 chelation therapy. (Marino (1990). A Case Report of Lead Paint Po isoning during Renovation of 430

a Victorian Farmhouse ) 431

432 Commenters argued that EPA’s proposed dust wi pe testing and clearance requirements were 433 insufficiently supported by the science. Some asse rted that the proposed rule was arbitrary and 434 capricious because EPA merely changed its mi nd on dust wipe testing without citing any new 435 data or circumstances to justify its new dir ection. Others contended that EPA’s proposed 436 requirements were unjustified because they were based solely on assumptions. Several thought 437 that EPA had ignored the results of the Dust Study in issuing its proposal. 438

439 EPA agrees that the Dust Study shows that th e existing RRP rule work practices are safe, 440 reliable, and effective at minimizing occupant exposure to dust-lead hazards created by 441 renovations. EPA is not promulgating the proposed dust wipe testing or clearance requirements 442 because, among other things, EPA has determined that the available information does not 443 support a dust wipe testing or clearance requir ement and that, on balance, imposing a dust wipe 444 testing or clearance requirement is unwarranted. 445

446 Several commenters argued that the proposed rule is arbitrary and capricious because the costs 447 outweigh the benefits, particularly in light of EPA’s conclusions regarding the effectiveness of 448 the existing cleaning verification requirements. 449

450 While costs were considered in making the statut ory finding of reliable, e ffective, and safe, EPA 451 did not develop the work practices on a cost-benefit basis. EPA does not agree that doing so is 452 required under Title IV of the T oxic Substances Control Act (TSCA) . With respect to this final 453 rule, EPA agrees that the Dust Study shows that the existing RRP rule work practices are 454 reliable, effective, and safe at minimizing o ccupant exposure to dust- lead hazards created by 455 renovations. EPA is not promulgating the proposed dust wipe testing or clearance requirements 456 because, among other things, EPA has determined that the available information does not 457 support a dust wipe testing or clearance requir ement and that, on balance, imposing a dust wipe 458 testing or clearance requirement is unwarranted. 459*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 11 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 460 Many commenters believed that EP A should give consideration to the significant costs that will 461 be passed along to the homeowner as a result of the proposed dust wipe testing and clearance 462 requirements. Because the EPA’s Electrostatic Cloth and Wet Cloth Field Study in Residential 463 Housing indicated that the cleani ng verification cloths that reached the “white glove” test were 464 approximately 91% to 97% likely to be below the regulatory hazard standard, some commenters 465 contended that the proposal w ould improve cleaning efficiency by as little as 3% of the 466 regulatory hazard standard. 467

468 While EPA agrees that the pr oposed dust wipe testing and clearance requirements would 469

increase the cost of renovati on for homeowners, EPA does not agree that the findings of the 470 Electrostatic Cloth study are th e best measure for determini ng the potential improved cleaning 471 efficiency to be gained from dust wipe testing or clearance procedures. Nevertheless, EPA is not 472 promulgating the proposed dust wipe testing or clearance requirements because, among other 473 things, EPA has determined that the available in formation does not support a dust wipe testing or 474 clearance requirement and that, on balance, imposing a dust wipe te sting or clearance 475 requirement is unwarranted. 476

477 Several commenters thought that the RRP rule was already too complex, and that the proposed 478 dust wipe testing and clearance requirements wo uld add so much complexity that renovators 479

would not be able to unders tand what would be required. 480

481 EPA believes that, given the highly variable nature of the regulate d community, the work 482 practices required by the RRP rule should be si mple to understand and easy to use. EPA is 483 cognizant of the fact that the RRP rule applies to a range of in dividuals from day laborers to 484 property maintenance staff to master craftsme n performing a whole range of activities from 485 simple drywall repair to window replacement to complete kitchen and bath renovations to 486 building additions and everything in between. Work practices that are easy and practical to use 487 are more likely to be followed by all of the persons who perform renovations, and, therefore, 488 more likely to be reliable and effective in minimizing exposure to lead-based paint hazards 489 created by renovation activities. EPA believes that most certif ied renovators and certified 490 renovation firms understand the basic requirement s of the RRP rule-- training, certification, 491 containment, acceptable work practices, cleaning, and recordkeeping. Moreover, EPA agrees 492 that the proposed three-tier sy stem of no additional requiremen ts, additional dust wipe testing 493 requirements, and additional clearan ce requirements would add a leve l of complexity to the rule 494 that is undesirable. While EPA could potentially draw different lines in this final rule, or 495 promulgate a requirement that all jobs achieve clearance, EPA does not believe it has a strong 496 basis to do so. EPA is not promulgating th e proposed dust wipe testing or clearance 497 requirements because, among other things, EPA has determined that the available information 498 does not support a dust wipe tes ting or clearance requirement a nd that, on balance, imposing a 499 dust wipe testing or clearance requi rement is unwarranted. 500

501 Some commenters argued th at it was inappropriate to add more requirements to the existing RRP 502 rule because nobody was enforcing it as it was. Seve ral stated that more stringent requirements 503 without adequate enforcement cause economic di sadvantages for those who comply with the 504*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 12 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 requirements. They noted that enforcing the ex isting rules in the smalle r half of the renovation 505 industry already presents an extreme challenge. 506

507 EPA agrees that a credible enforcement program is necessary to the successful implementation 508 of the RRP rule. EPA also agrees that, because of the scope of the rule and the industry sector 509 that it regulates, it will be ch allenging to implement an effective enforcement program. As 510 discussed in Section J. of the Response-to-C omments document for the 2008 final RRP rule, 511 EPA’s plan was to undertake a program of comp liance assistance to th e regulated community, 512 followed by a compliance monitoring and enforcement program for those who do not comply. 513 The RRP rule became fully effective in April 2010. While EPA concentrated more on education 514 and compliance assistance during the first year that the rule was fully in effect, EPA has been 515 gearing up its compliance monitoring and enforcemen t program in recent months. In any event, 516 EPA is not promulgating the proposed dust wipe testing or clearance requirements because, 517 among other things, EPA has determined that th e available information does not support a dust 518 wipe testing or clearance requi rement and that, on balance, im posing a dust wipe testing or 519 clearance requirement is unwa rranted. 520

521

Some commenters were c oncerned about a potential lack of testing resour ces, including certified 522 individuals and recognized laboratories. Others expressed concern that there had already been 523 shortages of training resources for RRP impl ementation and argued that the proposal, which 524 would require significan t retraining to effectively implement, would only make the situation 525

worse. 526

527 While EPA disagrees that there have been widesp read shortages of certified renovator courses, 528 EPA does agree that the proposed rule raised implementation concer ns and EPA took these 529 concerns into account as part of its decision not to promulgate the proposed dust wipe testing or 530 clearance requirements. 531

532

One commenter believed that th ere would be no sensible way to bid for renovations with a 533 clearance requirement, because it would be impo ssible to achieve clearance in all cases and 534 every job involves new circumstances. 535

536 EPA agrees that a clearance requirement would add several new consider ations to the bidding 537 process. In any event, EPA is not promulga ting the proposed dust wipe testing or clearance 538 requirements because, among other things, EPA has determined that the available information 539 does not support a dust wipe tes ting or clearance requirement a nd that, on balance, imposing a 540 dust wipe testing or clearan ce requirement is unwarranted. 541

542 A variety of commenters s uggested that EPA had issued its pr oposal to require dust wipe testing 543 and clearance too soon after promulgation of th e RRP rule. Several c ontended that renovation 544 firms were still in the process of working thr ough how to achieve compliance with the rule on a 545 daily basis and that EPA should wait to a dd new requirements until firms were generally 546 comfortable with the requirements promulgated in 2008. Others argued that EPA should solve 547 the underlying training capacity and outreach sup port problems of the RRP rule before adding 548 new requirements. Some commenters also asse rted that EPA should not make a determination 549*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 13 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 that additional requirements are needed without first ca refully assessing the st atus and impact of 550 the existing RRP rule when fully implemented. 551

552 EPA agrees with the general principle expresse d by these commenters; th at it is too soon to 553 impose additional work practice requirements fo r renovations already covered by the RRP rule. 554 EPA also agrees that many renovation contract ors are still figuring out what the RRP rule 555 requires from them on renovation projects. EPA disagrees that there ar e widespread training 556 capacity or outreach problems with the existi ng RRP rule. As part of its Lead Renovation, 557 Repair and Painting program’s Lead-Safe Cer tified media campaign, EPA developed and made 558 available to the public outreach materials ai med at both contractors and consumers. The 559

materials include a Public Service Advertisi ng (PSA) advertisement aimed at contractors, 560 banners for web sites, sample articles for magazi nes, newsletters or other publications to help 561

inform contractors about the rule , post cards and buck slips to st uff into mailers, as well as an 562

informational brochure about the rule for buildin g managers. EPA also developed fact sheets 563 about the rules that hardware or paint supply st ores can hand out to their customers to inform 564 them of the rule’s requirements. All of this information is available to the public on EPA’s web 565 site at http://epa.gov/lead/ pubs/lscp-press-materials.htm

. 566

567 The Agency has also developed outreach material s for consumers in order to build demand for 568 lead-safe certified firms among the public. The consumer outreach materials include consumer 569 print advertisements, PSA radio advertisements in English and Spanish, and a fact sheet about 570 the rule that contractors can provi de to consumers to inform them about the advantages of hiring 571

lead-safe renovation firms. The consumer outreach materials are also downloadable from EPA’s 572 web site at http://epa.gov/l ead/pubs/lscp-consumers.htm

. 573

574 Finally, in an effort to raise awareness of the consequences of lead poisoning among parents and 575 pregnant women who live in homes built befo re 1978, the Coalition to End Childhood Lead 576 Poisoning, U.S. Environmental Protection Agency (EPA), and U.S. Department of Housing and 577 Urban Development (HUD) joined the Ad Counc il in April 2010 to launch a national multimedia 578 PSA campaign. As stated in the PSA campaign press release, the most common pathways for 579 lead poisoning are deteriorating l ead-based paint (on older window s, doors and trim, or walls) or 580 improperly-performed renovation, repa ir and painting activities that cause paint to chip, peel, or 581

flake. 582

583 Some commenters thought that EPA should emphasize educ ational campaigns rather than 584 additional regulatory approaches at this time. One thought that it was clear from the reaction to 585 the current RRP rule and the proposed changes to the rule that contra ctors and much of the 586 public remain unaware of the signi ficant danger presented by lead-b ased paint and leaded dust. 587

Another contended that there is a lack of understanding and buy-in from homeowners. This 588 commenter thought that, by neglecting the demand side of the equation, consumers are left 589

uninformed and will focus on the bottom line cost s. Several commenters suggested that EPA 590

revise the Renovate Right brochure to better inform property owners about the benefits of dust 591 wipe sampling and clearance. 592

593 EPA agrees that outreach and education on l ead poisoning in general, and the link between 594

renovations and increased blood lead levels in particular, continues to be important. As part of 595*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 14 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 its Lead Renovation, Repair and Painting progr am’s Lead-Safe Certified media campaign, EPA 596 developed and made available to the public outr each materials aimed at both contractors and 597

consumers. The materials include a Public Se rvice Advertising (PSA) advertisement aimed at 598 contractors, banners for web sites, sample ar ticles for magazines, newsletters or other 599 publications to help inform contractors about th e rule, post cards and buck slips to stuff into 600 mailers, as well as an informational brochure ab out the rule for building managers. EPA also 601 developed fact sheets about the rules that hardwa re or paint supply stores can hand out to their 602 customers to inform them of the rule’s requiremen ts. All of this informa tion is available to the 603 public on EPA’s web site at http://e pa.gov/lead/pubs/lscp-p ress-materials.htm

. 604

605 The Agency has also developed outreach material s for consumers in order to build demand for 606 lead-safe certified firms among the public. The consumer outreach materials include consumer 607 print advertisements, PSA radio advertisements in English and Spanish, and a fact sheet about 608 the rule that contractors can provi de to consumers to inform them about the advantages of hiring 609

lead-safe renovation firms. The consumer outreach materials are also downloadable from EPA’s 610 web site at http://epa.gov/l ead/pubs/lscp-consumers.htm

. 611

612 Finally, in an effort to raise awareness of the consequences of lead poisoning among parents and 613 pregnant women who live in homes built befo re 1978, the Coalition to End Childhood Lead 614 Poisoning, U.S. Environmental Protection Agency (EPA), and U.S. Department of Housing and 615 Urban Development (HUD) joined the Ad Counc il in April 2010 to launch a national multimedia 616 PSA campaign. As stated in the PSA campaign press release, the most common pathways for 617 lead poisoning are deteriorating l ead-based paint (on older window s, doors and trim, or walls) or 618 improperly-performed renovation, repa ir and painting activities that cause paint to chip, peel, or 619

flake. 620

621

EPA will continue to evaluate and consider ad ditional outreach and educational opportunities to 622 improve homeowner understanding of dust-lead hazards that may be left behind after 623

renovations. EPA will also consider the commente rs’ suggestions regarding future editions of 624 Renovate Right. EPA agrees with the general princi ple expressed by commenters that the 625 Agency should allow a period of time for the re gulated community and pub lic to understand the 626 existing RRP rule, rather than to prom ulgate the proposed new requirements. 627

628 One commenter argued that the proposed rule fa ils to meet the requirements of the Paperwork 629 Reduction Act because it imposes significant reco rdkeeping requirements on renovators, realtors, 630 and others who perform maintenance on pre-1978 housing. 631

632 The Paperwork Reduction Act does not prohibit r ecordkeeping requirements, but it does impose 633 a requirement for the Office of Management and Budget (OMB) to approve information 634 collection requests, including recordkeeping requirements. The information collection 635 requirements contained in the proposed rule were submitted for approval to the Office of 636 Management and Budget (OMB) under the Pape rwork Reduction Act (PRA), 44 U.S.C. 3501 et 637

seq. 638

639 In any event, EPA is not promulgating the proposed dust wipe testing or clearance requirements 640 because, among other things, EPA has determined that the available information does not 641*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 15 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 support a dust wipe testing or clearance requir ement and that, on balance, imposing a dust wipe 642 testing or clearance requirement is unwarrant ed. EPA is making minor adjustments to the 643 already-approved recordkeeping a nd reporting requirements for traini ng course providers in this 644 rule. Accordingly, EPA has prepared an Info rmation Collection Request (ICR) document to 645 amend an existing approved ICR. The ICR document, referred to as the Clearance and 646 Clearance Testing Requirements for the Renovati on, Repair, and Painting Pr ogram and identified 647

under EPA ICR No. 2381.02 and OMB Control Nu mber 2070–NEW, has been placed in the 648 docket for this rule (Ref. 16). The information collection requirements are not enforceable until 649 OMB approves them. 650

651 One commenter argues that both the proposed rule and existing RRP rule conflict with the 652 Federalism Executive Order because, contrary to EPA’s allegations, the rules do have an impact 653

on states. The commenter cites Tennessee’s deni ed request to suspend the RRP regulations to 654 address the May 2010 flooding event as an example. 655

656 EPA is not reopening or reconsider ing this issue with respect to the 2008 RRP rule. This final 657

rule does not conflict with the Federalism Executi ve Order because it does not impose substantial 658 compliance costs directly on states or local governments. 659

660 One commenter argued that the proposed requi rements conflict with the Unfunded Mandates 661 Reform Act because these changes will be financially burdensome not only to the private sector, 662 but also to state, local, and tribal governments. For example, this will have significant effects on 663

schools and on homeowner weatheri zation assistance programs. 664

665 EPA disagrees with this commenter. The Un funded Mandates Reform Act (UMRA) does not 666 prohibit rules that impose burdens, the Act requ ires EPA to do additional analyses before 667 promulgating such rules. Although not disposit ive, in deciding whether promulgating the 668 proposed dust wipe testing and clearance requir ements was warranted, EPA nonetheless did take 669 into consideration the costs of such requirement s. In sum, EPA determined that, among other 670 things, the available information does not support a dust wipe testing or clearance requirement 671 and that, on balance, imposing a dust wipe testing or clearance requirement is unwarranted. For 672 more information, including a summary of the wri tten statement EPA prepared in response to the 673 UMRA, please consult the preamble to the 2010 proposal. 674

675

676 Several commenters argued that the failure to convene a new Small Business Advocacy Review 677 (SBAR) panel violates the Re gulatory Flexibility Act. 678

679 EPA disagrees with these comments. Contrary to the assertions of these commenters, the 680 Agency has fully complied with the requirements of the RFA. 681

682 The RFA states that agencies “ may consider a series of closely re lated rules as one rule for the 683 purposes of [an IRFA]” in order to avoid “ duplicative action.” 5 U.S.C. § 605(c) (emphasis 684 added). This rule is closely re lated to the 2008 RRP rule. Indeed, this rule addresses some of the 685 issues considered during the promulgation of the 2008 RRP rule. Accordingly, EPA was not 686 required to complete an IRFA or FRFA for this rule. Nonetheless, EPA exercised its discretion 687*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 16 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 to complete an Initial Regulatory Flexibility Analysis (IRFA) on this proposal. The robust 688 analysis contained in the IRFA considers the potential impacts of the proposed dust wipe testing 689 and clearance requirements on affected small enti ties. EPA has not completed a FRFA for this 690 final rule because EPA is not promulgating the du st wipe testing or clearance requirements. EPA 691 is certifying that the final rule does not have a significant impact on a substantial number of 692

small entities. 693

694 Moreover, EPA did convene and conduct a SBAR panel (RRP Panel) in connection with 695 the proposal to regulate renovation and remode ling activities in targ et housing. EPA relied upon 696

the RRP Panel to inform its decisions on th e 2008 RRP rule. The RRP Panel is equally 697 applicable to this closely related amendment to the RRP rule, pursuant to which EPA has 698 reconsidered some of the same work practice i ssues. The RRP Panel discussed all major aspects 699 of the proposal to regulate renov ation and remodeling activities, including issues related to 700 ensuring that proper cleanup occurs after renovation activitie s. As a part of the panel process, 701 EPA “collect[ed] advice and recommendations” from several Small Entity Representatives 702 (SERs) on the proposal to regula te renovation and remodeling activ ities. 5 U.S.C. § 609(b). In 703 response to the comments from the SERs, EPA issued a report. See Report of the Small Business 704 Advocacy Review Panel on The Lead-based Pain t; Certification and Training; Renovation and 705 Remodeling Requirements (March 3, 2000). Th e RRP Panel report expressly addressed dust 706 wipe testing and clearance. Thus, the primary is sues considered in this rulemaking are wholly 707 within the scope of the issues EP A considered as part of the 2 008 RRP rule and were within the 708 scope of the issues considered by the RRP Panel. EPA believes that reconvening the RRP Panel 709 would be procedurally duplicativ e and is unnecessary given that th e issues here were within the 710 scope of those considered by the RRP Panel. 711

712 Specific Comments on Proposed Dust Wi pe Testing and Clearance Provisions: 713

714 Many commenters opined on the inclusion or excl usion of specific renovation jobs in the 715 proposed dust wipe testing and clearance requirem ents. Some commenters thought that the jobs 716 for which dust wipe testing would have been requ ired under the proposal were as likely to create 717 high dust-lead levels as those fo r which clearance would have been required. Others argued that 718 specific renovation jobs did not crea te high levels of leaded dust, so they should not be included 719 in the list of jobs covered by the proposed rule . Still other commenters thought that dust wipe 720 testing or clearance should only be required in older housing, such as that built before 1950, or in 721 housing occupied by children under age 6 or pr egnant women. Some commenters thought that 722 dust wipe testing or clearance shou ld be required in othe r situations, such as after weatherization 723 projects or when an area has failed cl eaning verification twice. 724

725 Although EPa attempted in its proposal to dist inguish renovation activ ities that it thought 726 warranted the addition of a dust wipe testing requ irement from those that did not (and from those 727 that warranted imposition of a clearance requir ement), EPA acknowledges that its proposal 728 lacked a strong basis for drawi ng these lines. EPA is not promulgating the proposed dust wipe 729 testing or clearance requirements because, am ong other things, EPA has determined that the 730 available information does not support a dust wipe testing or clearance requirement and that, on 731 balance, imposing a dust wipe testing or cleara nce requirement is unwarranted. 732

733*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 17 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 Several commenters asked for additional clarifica tion on some of the terms used in the proposed 734 rule, including “destructive demolition,” window replacement,” and “poor condition.” 735

736 EPA is not promulgating the dust wipe testing or clearance requirements of the proposed rule, so 737

no additional clarification of these terms is necessary. 738

739 Several commenters thought that EPA should wait to require dust wipe testing or clearance until 740 alternative technologies that allow results to be obtained quickl y on-site are widely available. 741

742 EPA agrees that availability of alternative techno logies is likely to make dust wipe testing and 743 clearance more affordable and more practical in many instances. However, EPA is not 744 promulgating the proposed dust wipe test ing and clearance requirements. 745

746 A number of commenters addressed the sampling re quirements of the proposed rule, such as the 747 requirement to sample outside of the contai ned work area, whether random sampling in multi748 unit buildings should be permitted, and whether sa mpling should be required on carpeted floors. 749

750 EPA agrees that the proposed rule raised conc erns regarding the appropr iate testing protocol, 751 including whether sampling outside the area should be required or whether random sampling in 752 multi-unit buildings should be permitted. EPA took these concerns into account as part of its 753 decision not to promulgate the proposed dust wipe testing or clearance requirements. Because 754 EPA is not promulgating the proposed dust wipe te sting and clearance requirements, the issue of 755 sampling protocols is moot. 756

757 Some commenters argued that the information would be valuable to many property owners and 758 occupants, and subsequent owners and occupant s, who would receive th e information under the 759

Lead Disclosure Rule. 760

761 EPA does not believe that providing information for the purpose of the Lead Disclosure Rule is a 762 proper basis for a TSCA § 402(c)(3) work practice. 763

764

Some commenters were concerne d about the effect that the proposed dust wipe testing and 765 clearance requirements would ha ve on renovator training courses. They argued that these 766 changes would require additions to the existing RRP training c ourse, which they claimed is 767 already strained to cover necessary elements in one day. Others questioned how already-trained 768 renovators would be informed of these change s, and whether additi onal training would be 769 required. A related comment was that the propose d requirements were too complicated, that it 770 would be difficult for renovators to figure out what would be required on any given project. 771

772 EPA agrees that the proposed requirements would have required additional information in the 773 renovator course, and that EPA would have had to design a plan to get this information out to 774 already-trained renovators. However, EPA is not promulgating the proposed dust wipe testing or 775 clearance requirements because, among other thi ngs, EPA has determined that the available 776 information does not support a dus t wipe testing or clearance re quirement and that, on balance, 777 imposing a dust wipe testing or cl earance requirement is unwarranted. 778

779*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 18 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 Some commenters were concerne d about occupant protection. Some pointed out that 780

renovations differ from abatements in that abatem ent contractors typically maintain control over 781 abatement work areas and do not permit residents in until clearance has been confirmed, while 782 renovation firms typically do not have the author ity to keep residents out of areas being 783 renovated. Others suggested th at occupant protection measur es should be instituted when 784 sample results exceed the hazard standards. One commenter thought that, because building 785 occupants are not required to vacate the premis es until clearance is confirmed, their exposures do 786 not change. 787

788 EPA agrees that renovations and abatements are di fferent, and that occupa nts typically vacate the 789 premises when an abatement is being performed, but not during renovations. This does present 790 challenges for occupant protecti on. However, the RRP work pract ices do include provisions 791 designed to minimize exposure to occupants, incl uding the requirement that the work area be 792

isolated to contain dust and debr is. In sum, EPA has concluded that the existing work practices 793 are reliable, effective, and safe and EPA is not promulgating the proposed dust wipe testing or 794 clearance requirements because, among other thi ngs, EPA has determined that the available 795 information does not support a dus t wipe testing or clearance re quirement and that, on balance, 796 imposing a dust wipe testing or cl earance requirement is unwarranted. 797

798 Some commenters thought that clearance should be required in rental propert y, or in rental 799 property where work is being performed to reme dy existing code or othe r violations. Other 800 commenters thought that rental pr operty should not be held to a different standard than other 801 residential property. 802

803 EPA is not promulgating the proposed dust wipe testing or clearance requirements because, 804 among other things, EPA has determined that th e available information does not support a dust 805 wipe testing or clearance requi rement and that, on balance, im posing a dust wipe testing or 806 clearance requirement is unwarranted. 807

808 One commenter argued that foundation windows shoul d be exempt from the proposed dust wipe 809 clearance testing requirements en tirely, or regulated only when basement meets definition of 810 COF. The commenter’s reasoning was that founda tion windows are not part of the habitable 811 space of a home. 812

813 EPA is not promulgating the proposed dust wipe testing or clearance requirements because, 814 among other things, EPA has determined that th e available information does not support a dust 815 wipe testing or clearance requi rement and that, on balance, im posing a dust wipe testing or 816 clearance requirement is unwarranted. 817

818 Many commenters supported a require ment for dust wipe testing and clearance testing to be 819 performed by an independent third party. Thes e commenters thought that such a requirement 820 would provide more accurate results. Others ex pressed concerns that a third-party testing 821 requirement would increase costs and cause delays. 822

823 EPA is not promulgating the proposed dust wipe testing or clearance requirements because, 824 among other things, EPA has determined that th e available information does not support a dust 825*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 19 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 wipe testing or clearance requi rement and that, on balance, im posing a dust wipe testing or 826 clearance requirement is unwarranted. 827

828 Miscellaneous Comments on Proposed Dust Wipe Testing and Clearance Provisions: 829

830 One commenter recommended that EPA remove language on composite dust sampling from all 831 of EPA’s materials, because laboratories won’t accept them. 832

833 EPA recognizes that many laborator ies have concerns about com posite dust samples. EPa took 834 this concern into account as part of its decision not to promulgate the proposed dust wipe testing 835 or clearance requirements. If EPA revises the abatement clearance protocol in the future, EPA 836

will consider this issue. 837

838 Instead of a requirement for dust wipe testing or clearance, several commenters supported a 839 requirement for renovation firms to offer dust wipe testing and clea rance services. One 840 commenter thought that this should take the form of an additional, itemized charge, accompanied 841 by educational materials about testing. Another thought that it should be presented more as an 842 opportunity for homeowners to opt out of testing or clearance. One commenter believed that a 843 requirement of this type would make it easier for low-income homeowners who are unable to 844 afford testing services to continue to use certified contractors who will follow the RRP work 845 practices. 846

847 EPA is not promulgating the proposed dust wipe testing or clearance requirements, because, 848 among other things, EPA has determined that th e available information does not support a dust 849 wipe testing or clearance requi rement and that, on balance, im posing a dust wipe testing or 850 clearance requirement is unwa rranted. EPA notes that prope rty owners and occupants can 851 always choose to have dust wipe testing perf ormed after a renovation, rega rdless of whether EPA 852 regulations require such testing. 853

854 One commenter thought that, instea d of dust wipe testing or clear ance, the rule should just 855 require the homeowner to sign off on the cleaning verification procedure. 856

857

EPA addressed this issue in the 2008 RRP rule. EPA is not reconsidering or reopening this issue 858 as part of this rulemaking. 859

860 Several commenters suggested different requir ements for the renovation jobs for which dust 861 wipe testing or clearance woul d have been required. One commenter thought that EPA should 862 consider additional containment requirements in stead of testing or clearance for high dust 863 generating jobs. Another thought that the Dust Study supported a requirement for two cleaning 864 verification procedures using a wet cloth. A third commenter thought that EPA should develop 865 procedures for the removal and disposal of c ontaminated components so as not to require 866 clearance. The commenter suggested that one procedure might be covering painted components 867 with duct tape at the area wher e paint would be disturbed during removal. The taped joint could 868 be cut and the component removed with the ta pe holding the majority of the paint intact. 869

870*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 20 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 As stated elsewhere, with respect to this fina l rule, EPA has determined that the current RRP 871 work practices are effective at minimizing expos ure to lead-based pain t hazards created by a 872 wide range of renovation activities. 873

874 Clearance in Lieu of Cleaning Verification 875

876 A number of commenters argued that cleaning verification should not be required before 877 clearance, so the rule should c ontinue to allow renovation firms to skip the cleaning verification 878 step where clearance is required, either by anothe r law or by the contract between the property 879

owner and the renovation firm. Se veral argued that removal of th is provision would create more 880 inconsistency with the HUD regulations. Co mmenters noted that contractors performing 881

abatements or interim controls had been m eeting EPA and HUD clearance standards for more 882 than a decade without performing cleaning verifi cation. Some thought that the contractor should 883 have the option of using whatever cleaning me thods it chooses. In contrast, one commenter 884 supported the elimination of the provision allowing the cleaning veri fication step to be skipped, 885 because cleaning verification is an effectiv e way to clean up leaded dust. 886

887 EPA does not agree that removing this provision is inconsistent with th e HUD regulations. The 888 Dust Study demonstrates that clean ing verification is an important final fine cleaning step that 889

als o provides some feedback about the cleanliness of the surface to the renovator. In fact, the 890 Dust Study showed that, in a si gnificant number of cases, the cleaning verification step was 891 necessary in order to remove the dust

- lead hazards created by the ren ovation. It is likely that 892 completing the entire RRP cleaning protocol, including cleaning verification, increases the 893 probability that clearance, where required, will be achieved on the first attempt. Thus, requiring 894 the performance of the entire RRP ru le cleaning protocol, includi ng cleaning verification, is 895 hardly inconsistent with the HUD regulations. In addition, EPA believe s that the cleaning 896 verification process, in almost all cases, is mi nimally burdensome. EPA’s “Electrostatic Cloth 897

and Wet Clo th Field Study in Residentia l Housing” showed that clean ing verification should take 898 approximately 5 minutes per cloth for each pass, and each cloth may be used for up to 40 square 899 feet of uncarpeted floor, countertop, or windowsill space. The material re quirements for 900 cleaning verification are very inexpensive. EP A estimated, as part of the 2008 final RRP rule 901 analyses, that the material cost for each dis posable cloth is $0.46 a nd that handles are $13.60 902 apiece. Cleaning verification is an inte gral component of the entire suite of RRP work practices. 903

EPA believes that there is value in the cleani ng protocol of the RRP rule, including cleaning 904 verification, becoming the accepted st andard practice for cleaning up a fter renovations. 905

906 While EPA does not agree with all of these asser tions, EPA does agree that it is unnecessary to 907 require renovation firms who must achieve clear ance to follow the specific cleaning verification 908 protocol. Therefore, EPA is retaining the provis ion that allows the clea ning verification step to 909 be skipped if the renovation firm must also achieve clearance. 910

911 One commenter thought that eliminating the op tion to do clearance in place of cleaning 912 verification may undermine incentiv es for clearance testing. 913

914

Because the costs associated While EPA does not agree with this commenter, EPA is 915 nevertheless retaining the provision that allows the cleaning verification are minimal, EPA does 916*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 21 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 not ag ree that requir ing contractors step to perform cleaning verification even be skipped if they 917

are the renovation firm must also doing clearance undermines incentives for performing achieve 918

clearance. 919

920 One commenter thought that clean ing verification and clearance are redundant, and that EPA 921 should pick one met hod and stick to it. 922

923 EPA disagrees with this commenter. Based on a careful considerati on of the Disposable 924 Cleaning Cloth Study and the Dust Study, EPA c oncluded in the 2008 final RRP rule that 925 cleaning verification should not be used as a substitute for dust wipe clearance testing. 926

927 Paint Chip Collection 928

929 A number of commenters supported EPA’s proposal to allow certified renovators to collect paint 930 chip samples and send them to a laboratory r ecognized under the National Lead Laboratory 931 Accreditation Program (NLLAP). These commente rs thought that this would provide valuable 932 flexibility in testing component s in the work area, although one observed that it should not be 933

seen as a viable substitute or alternative for improved test kits because the lead-based paint 934

determination must occur at th e pre-bid stage of the job, and paint chip sampling would add a 935 delay. This commenter also noted that paint ch ip sampling is not inexpensive and it damages 936

surfaces. 937

938 EPA agrees that allowing certified renovators to collect paint chip sa mples provides additional 939 important flexibility for renovation firms, but EPA recognizes that the option is not without 940 disadvantages. 941

942 At least one commenter pointed out that EPA would also have to modify the recordkeeping 943 requirements to include informati on specific to paint chip sample collection, such as component 944 and location tested, identity of the NLLAP entity an alyzing the samples, and the sample results. 945

946 EPA agrees with this commenter, so EPA is modifying 40 CFR 745.86(b)(1) to add a new 947 subsection (iii) that requires re cords pertaining to paint chip sample collection and analysis, 948 including a description of the components that were sampled, and the locations sampled, the 949

name and address of the NLLAP -recognized entity performing the analysis, and the results for 950 each sample. EPA is also modifying 40 CFR 74 5.86(b)(6) to include a certification by the 951 certified renovator that, if paint chip samples were collected, that the samples were collected 952 from the components in the locations specified, th at the samples were submitted for analysis to 953 the identified NLLAP-recogni zed entity, and that the sample resu lts were as specified. 954

955 Some commenters thought that it would take a lot of time to teach renovators how to collect 956 paint chip samples. Others t hought it would be difficult to fit th e additional training on sample 957 collection, chain-of-custody, and laboratory su bmission procedures in to the 8-hour renovator 958 class. In contrast, some comme nters believed that paint chip sampling is easy to learn, and 959 thought it would be a simple add-on to the instruction on test kits. In particular, one commenter 960 stated that, as a homeowner, he had been inst ructed by an NLLAP laboratory over the telephone 961 on how to properly collect a paint chip sample and forward it to th e laboratory for analysis. This 962*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 22 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 experience led him to believe that it would be feasible to include in the renovator course 963

instruction on how to collect a paint chip sample and forward it for analysis. 964

965

The selection of locations to test and the recor dkeeping requirements woul d be identical whether 966 test kits or paint chip sampling is used. B ecause renovator training courses are already required 967 to include training in how and where to use test kits, EPA agrees with those commenters who 968 believed that it would take very little additional time to also provide renovators with training in 969 how to collect a chip sample and submit them for analysis. 970

971 Some commenters argued that only certified inspectors and risk assessors should be permitted to 972 collect paint chip samples. Several thought that certified inspectors and ri sk assessors are better 973 qualified to determine the presence or absence of lead-based paint. One noted that improperly974 taken samples are worse than no samples, becaus e without samples, lead -based paint must be 975 assumed. Another thought that this would further blur th e line between renovators and 976 inspectors and cause problems in enforcing the re gulations. Several noted that State regulations 977 may prohibit anyone other than certified inspectors or risk assessors from collecting paint chip 978 samples. On the other hand, one commenter thought that the renovator course should teach 979 random sampling, so renovators could use random sampling in multi-unit buildings. 980

981 EPA disagrees with these commenters. Allowing certified renovators to collect paint chip 982 samples does not turn them into inspectors or ri sk assessors. Certifie d renovators must still 983 collect paint chip samples from each and every painted or coated component that they will 984 disturb during the renovation. The renovator course does not teach sampling protocols or 985 random sampling techniques, because that would take significantly more time than is available in 986 an 8-hour class. EPA is not sure how allowing cer tified renovators to collect paint chip samples 987 will lead to enforcement problems. Finally, just as with the current provisions for test kit use, in 988 those states that do not permit pers ons other than certified inspectors or risk assessors to test for 989 lead-based paint, certified renovators will not be able to exercise this option. 990

991

One commenter wondered how alrea dy-trained renovators would lear n how to collect paint chip 992 samples. 993

994 EPA plans to revise the model re novator initial and refresher c ourses to include information on 995 paint chip sample collection. B ecause currently-trained renovator s have already had training in 996 how and where to use test kits, EPA believes that certified renovators do not need a significant 997 amount of training to be able to collect paint chip samples pr operly. EPA plans to develop a 998 guidance document covering paint chip sample collection procedures, including recordkeeping 999 and laboratory submission procedures, and post it on EPA’s website. The experience related by 1000 one commenter, that of being instructed by an NLLAP laboratory over the telephone on how to 1001 properly collect a paint chip sample and forward it to the laboratory for analysis, shows that 1002 renovators are able to easily understand what is required. 1003

1004 One commenter wondered what would happen if a property owner wants the renovator to sample 1005 a component that isn’t going to be affected by the renovator’s work. This commenter asked 1006

whether the renovator would incl ude this information within his testing report. 1007

1008*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 23 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 Certified renovators are not lead-based paint in spectors or risk assessors . EPA regulations only 1009 permit certified renovators to sample compone nts that are intended to be disturbed by a 1010 renovation. Certified renovators are not permitted to perform whole or partial lead-based paint 1011 inspections. 1012

1013 Several commenters thought that EPA should also allow dust sampling technicians to collect 1014 paint chip samples. These comm enters thought that there would be time available in the course, 1015 and similar activities, such as documentation, chain-of-custody, and laboratory submission 1016 procedures, are already being taught there. 1017

1018 EPA disagrees with these commenters. The dust sampling technician course teaches how to 1019 collect and process dust wipe samples, it does no t include information on testing for lead-based 1020 paint. Since renovators are already permitted to test for lead-based paint using approved test 1021 kits, it makes more sense for renovators to make us e of the paint chip samp ling option. 1022

1023

Vertical Containment 1024

1025 Several commenters supported the proposed changes to the vertical contai nment language in the 1026

RRP rule. One noted that contamination of neighboring properties is a common and serious 1027 problem. 1028

1029 EPA agrees with these commenters and furthe r agrees that contam ination of neighboring 1030 properties can be a problem if containment, includ ing vertical containment, is not used properly. 1031

1032 Some commenters thought that the proposed changes to the ve rtical containment language in the 1033

RRP rule were too inflex ible and unnecessary. 1034

1035 EPA disagrees with these commenters. The Dust Study shows that dust a nd debris from exterior 1036

renovations travels at least 10 feet fr om the activity. In the absence of some a system of vertical 1037

containment or equivalent extra precauti ons in containing the work area , EPA knows of no way 1038 to ensure that adjacent properties are not contam inated when work disturbs lead-based paint 1039 within 10 feet of the property line. In addition, EPA disagrees that the vertical containment 1040 language is too inflexible . To the contrary, the The vertical containment requirement is intended 1041 to provide flexibility for certified renovators to design effective containment systems based on 1042 the renovation activity and the work site. Vertic al containment systems can span a range from 1043 simple barriers to more extensive scaffolding, de pending on the size of the job and other relevant 1044 factors. Complex vertical containment syst ems with extensive scaffolding are often not 1045 necessary to effectively contain the dust generated by a renovation. However, to ensure that 1046

renovation firms understand that the re quirement refers to a wide va riety of effective work area 1047 containment systems, EPA is including the phras e “or equivalent extra precautions in containing 1048 the work area” in this requirement. 1049

1050 One commenter thought that it should be sufficient to require the renovation firm to inform the 1051 neighbors to keep their windows and doors closed while the renovation is ongoing. 1052

1053*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 24 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 EPA does not agree that this would be effective or sufficiently address the identified concern. 1054 Specifically, while this might prevent leaded dust from drifting into the interiors of adjacent 1055 buildings, it does not address contamination of the neighboring porches, balconies and yards. 1056 This does not meet the standard already present in the RRP rule, that dust and debris not be 1057 permitted to leave the work area while the renova tion is ongoing. EPA is also concerned about 1058 the ability of renovation firms to affect the be havior of neighbors whose homes are not being 1059

renovated. 1060

1061 Several commenters expressed conc ern about the safety of worker s and vertical containment. 1062 One argued that OSHA has said that vertical cont ainment is not required in situations where 1063 worker safety would be compromised, such as in windy conditions. 1064

1065 EPA agrees that erecting certain types of vertic al containment in some windy conditions may be 1066 unsafe for workers. In these situations, EP A knows of no alternative but to reschedule 1067 renovations for more clement days. The HUD Guid elines state that exterior renovation work 1068 should not be conducted when the wind speed is gr eater than 20 miles per hour. The Guidelines 1069 also state that work must cease and cleanup be completed before rain begins. EPA has not 1070 imposed these specific requirements, but renovati on firms should consider this guidance when 1071 deciding how to proceed. 1072

1073 One commenter stated that EPA should partne r with OSHA when developing strategies for 1074

vertical containment that are both safe and eff ective instead of working solely with HUD. The 1075

commenter further states that EPA should reconsider the reco mmendations made in its model 1076 training course for exterior containment and work with OSHA to devise safe and effective means 1077 to contain dust and protect workers. 1078

1079 EPA consulted with OSHA when it developed th e RRP model training courses which contain 1080 recommendations on setting up vertical containmen t. OSHA reviewed the course materials and 1081 provided comments and suggestions to EPA on va rious aspects of the course. Although the 1082 training materials contain recomm endations for setting up vertical containment, the final rule 1083 does not require specific methods for constructing verti cal containment. Rather, the rule sets 1084 requirements for when vertical containment or equivalent extra precautions in containing the 1085

work area must be used. At this time, the Agency does not intend to expand the 1086 recommendations for constructing vertical containment in the m odel training courses but may do 1087

so in the future. EPA intends to work collaboratively with DOE and HUD and other agencies 1088 and stakeholders as appropriate to develop furt her guidance on equivalent extra precautions in 1089 containing the work area. 1090

1091

Other commenters were concerned about the additio nal costs that the revisions to the vertical 1092 containment provisions woul d impose on renovations. 1093

1094 EPA agrees that it is more expensive to conduct exterior renovations with vertical containment 1095 than without. In EPA’s economic analysis for the 2008 RRP rule, EPA addressed those 1096

situations where the renovation firm must take extra precautions to effectively contain dust and 1097 debris, including work areas in close proximity to other buildings, work areas that abut a 1098 property line, and windy conditions. The 2008 economic analysis specifically notes that it is 1099*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 25 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 sometimes necessary to erect a sy stem of vertical containment to prevent paint dust and debris 1100 from contaminating the ground or any object beyond the work area. To account for these 1101 situations, EPA estimated that approximately 2% of exterior jobs would use exterior 1102 containment, and the incremental cost of vert ical containment varies from $330 per wall to 1103 $1,640 per wall, depending on the size of the job. Thus, EPA has already accounted for the 1104

additional costs incurred for usi ng vertical containment systems or equivalent extra precautions 1105 in containing the work area on renovations performed within 10 feet of the property line. 1106

1107 One commenter thought that EPA s hould target the vertical contai nment requirements to what he 1108 considered actual trouble areas, such as buildings w ithin the 20-foot “closed windows and doors” 1109 area that cannot be closed, or renovations involving hand scraping at a height greater than the 1110 distance to the property line. 1111

1112 The existing RRP rule requires work areas to be c ontained such that no dust or debris leaves the 1113

work area. This means vertical containment or equivalent extra prec autions in containing the 1114

work area when necessary, which could include those situations mentioned by the commenter. 1115 However, because the Dust Study shows that dust a nd debris from exterior renovations travels at 1116 least 10 feet from the activity, in the absen ce of some system of vertical containment or 1117 equivalent extra precautions in containing the work area , EPA knows of no way to ensure that 1118 adjacent properties are not contaminated when work disturbs lead-based paint within 10 feet of 1119 the property line. Therefore, EPA will require vertical containment or equivalent extra 1120 precautions in containing the work area when exterior renovations ar e conducted within 10 feet 1121 of the property line. 1122

1123 One commenter thought that this requirement would result in unequal treatment for urban 1124 properties, which are frequently located within 10 f eet of the property line. Vertical containment 1125 would far exceed the value of the improvement in most cases. 1126

1127 EPA agrees that urban properties are more likely to be located close to the property line than 1128 rural properties. However, because the Dust St udy shows that dust and debris from exterior 1129

renovations travels at least 10 feet from the activity. In the absen ce of some system of vertical 1130

containment or equivalent extra precauti ons in containing the work area , EPA knows of no way 1131 to ensure that adjacent properties are not contam inated when work disturbs lead-based paint 1132 within 10 feet of the property line. Ther efore EPA will require vertical containment or 1133 equivalent extra precautions in containing the work area when exterior renovations are conducted 1134 within 10 feet of the property line. 1135

1136 One commenter thought that the ve rtical containment revisions we re unjustifiable, given that 1137 owners of neighboring properties are free to perform renovations without containment. 1138

1139 Do-it-yourself renovations in and on owner-occupi ed property are not regulated under the RRP 1140 rule. While do-it-yourself renovations may also cr eate lead-based paint hazards, EPA interprets 1141 the statutory directive to re gulate remodeling and renovation ac tivities found in TSCA section 1142 402(c)(3) as applying to contractor s and not a broader cate gory of persons, su ch as homeowners. 1143 While the RRP rule does not prohibit do-it-yourse lf renovations without containment, there are 1144 likely to be other legal authori ties that address cont amination of neighboring properties. 1145*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 26 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 1146

Prohibited or Restricted Practices 1147

1148

Two commenters noted that EPA uses the term “painted surfaces” throughout the RRP rule and 1149 it is unclear whether this refers just to paint or to other surface coat ings as well. These 1150

commenters noted that the definition of “lead -based paint” includes paint and other surface 1151 coatings but there is no definition of the term “painted surfaces.” These commenters observed 1152 that other surface coatings, such as varnish, can contain significant amounts of lead. The 1153 commenters suggested that EPA address this issue throughout the RRP rule. 1154

1155 EPA agrees with these commenters. In us ing the term “painted surfaces,” EPA meant 1156 component surfaces that contain a coating that coul d be lead-based paint. The term was designed 1157 to encompass situations where the surface is co vered with lead-based paint as defined by the 1158 regulation as well as situations where the lead content of the surface coating had not been 1159

determined. EPA never intended to exclude va rnishes or other surface coatings from the 1160 coverage of the RRP rule. In fact, the appl icability section of the RRP rule, 40 CFR 745.82, 1161 limits the exclusions for testing to those situations where the components to be disturbed by a 1162

renovation have been demonstrated to be free of paint and other surface coatings that contain 1163 lead at levels equal to or exceeding the regul atory threshold. Theref ore, EPA will replace the 1164 term “lead-based paint” with “painted su rfaces” in 40 CFR 745.85(a)(3) and EPA will also 1165 adding a clarifying definition of “painted surface ” to 40 CFR 745.83. This definition states that 1166 painted surface means a component surface that contains paint or other surface coatings. 1167

1168 Two commenters thought that there should be a performance standard included in EPA’s 1169 proposed clarification on what is meant by hi gh-efficiency particulat e air (HEPA) exhaust 1170 control. They recommended a visual standard that warns the worker s that the shroud or 1171 containment system is not working properly. On e commenter suggested a requirement that the 1172 power-tool and shroud must neithe r generate nor release visibl e dust and must permit no air 1173 movement on the outside. The other thought that the definition for pow er tool shroud should 1174 include a requirement that the HEPA shroud/vacu um be capable of coll ecting the air generated 1175 by the tool. This commenter also asserted that a more sensitive dust measure would improve the 1176

definition further. 1177

1178 EPA generally agrees with these commenters and will add a requirement that power tools be 1179 operated so that no visible dust or release of ai r occurs outside of th e shroud or containment 1180 system. This requirement will also work to mitig ate the concern EPA had with the efficiency of 1181 shrouded tools and the possibili ty that such tools might overwhelm the containment and 1182 specialized cleaning protocols of the lead safe work practices. This requirement should also 1183 ensure that the shroud or containment system us ed is capable of collect ing the air generated by 1184

the tool. While a more sensitive dust meas ure might improve the performance of the dust 1185 collection system, EPA is concer ned that any such measure w ould impose significant burdens on 1186 renovation firms, such as requiring them to purch ase and learn to use particle counters. EPA 1187

believes that the no visible dust or air release stan dard is sufficiently protective and represents an 1188 appropriate balance between accuracy and cost. 1189

1190*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 27 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 Another commenter thought that the term “shr ouded” in the proposed re vision would make the 1191 RRP rule more stringent than the requirements applicable to abatement contractors. 1192

1193 After consulting the abatement chapter of the HUD Guidelines, EPA has determined that the 1194 proposed language could potentially be read to ex clude one of the two types of sanders described 1195 by HUD as appropriate for abatement work beca use they provide HEPA exhaust control. 1196 Accordingly, EPA will revise the regulatory langua ge to require either a shroud or a containment 1197 system for these power tools. 1198

1199

HEPA Vacuums 1200

1201 Some commenters argued that the proposed clarification regarding a minimum efficiency 1202 reporting value (MERV) of 17 was too stringent. One commenter noted that the performance of 1203 the filter and the performance of the vacuum containing the fi lter would be different. This 1204 commenter referenced standard industry practice for high-efficiency vacuums used in lead dust 1205 clean-up. This commenter cited Table E-1, en titled “Application Guidelines,” from the 1206 American National Standards Institute (ANS I) and the American Society of Heating, 1207 Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 52.2-2007, which suggests 1208 that a MERV 11 filter is appropriate for removi ng “lead dust.” This commenter nevertheless 1209 thought that the required perfor mance ought to be higher than MERV 11. Several commenters 1210

cited research done on the efficien cy of HEPA vacuums to argue th at the HEPA vacuums used in 1211 EPA’s Dust Study would not have met the MERV standard of 17 proposed by EPA. However, 1212 these commenters did not provide sufficient in formation to support this assertion. Other 1213 commenters expressed a general concern that th e proposed clarifications to the HEPA vaccum 1214 requirements would result in cont ractors not being able to use the affordable consumer grade 1215 HEPA vacuums that they have just purchased in order to comply with the RRP rule. 1216

1217

EPA is concerned about estab lishing a requirement for HEPA vacuums that would result in 1218 renovation firms having to replace vacuums they r ecently purchased with every indication that 1219 the vacuums would comply with the RRP rule requirements. Therefore, EPA will not add a 1220

minimum MERV value to the HEPA vacuum defi nition at this time. The definition already 1221 includes a standard for HEPA vacuums, that th ey be capable of captu ring particles of 0.3 1222 microns with 99.97% efficiency. 1223

1224 Some commenters thought that EPA should have ma nufacturers test their vacuums to ensure 1225 compliance with the standards, and several thoug ht that EPA should require HEPA vacuums to 1226 be tested in the field with a particle counter periodically, and whenever the main filter is 1227 replaced. 1228

1229 EPA disagrees with these commenters. Section 402(c) of TSCA and the RRP rule are primarily 1230

intended to address the behavior of contra ctors, persons who perform renovations for 1231 compensation, not vacuum manufacturers. EPA continues to recommend that renovation firms 1232

have information from the manuf acturer that the particular mode l of vacuum that the renovation 1233 firm intends to use, or the vacuum’s HEPA filter, has been tested in accordance with an 1234 applicable test method, such as ASTM F1471- 09, “Standard Test Method for Air Cleaning 1235*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 28 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 Performance of a High-Efficiency Particulate Air-Filter System,” and has been determined to 1236

meet the HEPA standard. 1237

1238 With respect to field tests, EPA is concerned that any such measure would impose significant 1239 burdens on renovation firms, such as requiring them to purchase and learn to use particle 1240 counters. EPA believes that the requirement th at renovation firms operate and maintain their 1241

HEPA vacuums in accordance with the manufacturer’s instructions, including filter change 1242 intervals, is sufficiently protec tive and represents an appropria te balance between accuracy and 1243

cost. 1244

1245 One commenter noted, that while EPA’s reco mmendations on manufacturer documentation are 1246 reasonable, it can occasionally be difficult to consult the owner’s manual before purchasing a 1247 vacuum to determine whether it would comply with the HEPA standard. EPA should provide a 1248 regularly-updated list of HEPA vacuums that meet the standard. 1249

1250 EPA understands the commenter’s concerns, and will consider providing such a list. 1251

1252 One commenter thought that more information on vacuum mainte nance should be added to the 1253

renovator curriculum. The commente r noted that the State of Wisconsin has illustrated guide to 1254

HEPA vacuum maintenance th at would be a good model. 1255

1256 EPA believes that HEPA vacuum operation and main tenance is, in general, relatively simple and 1257 that the owner’s manual for the specific model, or other information provided by manufacturers, 1258 is the best source of information on maintenance for renovation firms. However, EPA will 1259 consider developing a guidance document on the subject. 1260

1261 One commenter thought that vacuum s that the manufacturer warns are not suitable for use with 1262

hazardous substances or asbestos or lead cleanup should be prohibited from use. 1263

1264 EPA agrees that, if a manufacturer recommends that a particular vacuum not be used for leaded 1265 dust cleanup, the vacuum should not be used for RRP purposes. EPA believes that the 1266 requirement that vacuums be operated and main tained in accordance with the manufacturer’s 1267

recommendations will ensure that such v acuums are not used for RRP purposes. 1268

1269 Several commenters thought that the use of HEPA vacuums is unnecessary and that they are too 1270 expensive. 1271

1272 EPA did not propose to eliminate the requirement that HEPA vacuums be used and is not 1273 reopening or reconsidering this issue. 1274

1275 e-Learning 1276

1277

Some commenters were c oncerned with verifying the identity of persons logging into e-learning 1278 courses. Several noted that, because it is impossi ble to verify with certainty the identity of 1279 persons completing online training, an in-person final course test is necessary to ensure that the 1280 trainee is adequately trained. 1281*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 29 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 1282 EPA generally agrees that it is important to be ab le to verify that the trainee who completes the 1283 e-learning portion of the course is also the tr ainee who completes the hands-on training and the 1284 course test. Accordingly, EPA is amendi ng 40 CFR 745.225(c)(6) to explicitly require e1285 learning training providers to as sign a unique identifier to each student in order to track the 1286 student’s progress through the course. EPA be lieves that this requirement, along with the 1287 existing requirement that the trainee participate in the hands-on training and take the final course 1288 test in person, will provide reasonable assuran ce that the same person has completed all of the 1289 portions of the course. In response to these co mmenters, EPA is modifying the regulations to 1290 specifically state that e-learni ng or other alternative delivery methods cannot be used for the 1291 hands-on training, the final course test, or the proficiency test, if one is given. 1292

1293 One commenter was concerned about the possibility that trainees could complete EPA’s model 1294 e-learning course for renovators in one hour. T hus, according to this commenter, trainees could 1295 complete the entire renovator course in 3 hours (including the 2 hours for hands-on training), 1296

which does not meet the 8-hour regulatory requ irement. 1297

1298 EPA disagrees with this commenter. The current model course posted on the EPA website is not 1299 a functioning course and does not contain th e background learning management system (LMS) 1300 which tracks the student’s progr ess and requires satisfactory co mpletion of the knowledge checks 1301 and the final test. Therefore, the time it ta kes to page through the model course is not 1302 representative of the time it would take to successfully complete an accredited e-learning course. 1303 Assuming that 2 training hour s are spent on hands-on trai ning, 40 CFR 745.225(c)(6)(vi) 1304 requires a minimum of six 50 minute training hours or 5 hours of classroom time for renovators. 1305 This requirement applies equally to traditional cl assroom settings as well as to e-learning courses 1306

course offered for accreditation. While EPA realizes that renovator trainees will not all proceed 1307 through an e-learning course at the same pace, an e-learning course offered for accreditation 1308 must be generally designed so that an averag e trainee takes approximately 5 hours to proceed 1309 through the course, including al l of the knowledge checks and th e course test. 1310

1311 One commenter wondered about the duty of the tr aining provider in eval uating the progress of 1312 the student, and whether they should be evaluatin g the time spent on the course to complete the 1313 training. The commenter also questioned the mean ing of “track each student’s course log-in, 1314 launches, progress, and completion.” The comm enter wondered whether the intent of this 1315 requirement was to provide overall documentation or whether it was to track progress while the 1316 student is taking the course so that the instructor can inte rvene and make corrections. 1317

1318 The requirements to track a student’s progress are in place to ensure that the student reviews all 1319 required portions of the course, co mpletes the knowledge checks a nd passes the final exam. The 1320 course was designed to be completed on the stud ent’s schedule which will often be outside of 1321 normal business hours. The accredited training provider should maintain a database of 1322 frequently asked questions and/or respond w ithin 24 hours to student e-mail and phone call 1323 questions regarding the course. Th e training provider is required to track whether the student has 1324 completed the training including answering all the knowledge check questions and passing the 1325

electronic final exam. 1326

1327*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 30 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 One commenter thought that EPA’ s proposed requirement of an 80% minimum passing score on 1328

the course test for the online course was t oo restrictive. Another commenter disagreed, 1329 reasoning that it was appropriate to have a higher passing score requirement for the e-learning 1330 portion of a training course, be cause the student would have an opportunity to review the 1331 material and retake the test. However, this commenter also thought th at a 100% passing score 1332 would be too restrictive, becau se it would likely results in students being penalized for poorly1333 worded questions or alternate inte rpretations, regardless of the stat e of the student’s knowledge. 1334

1335 EPA agrees with the second commenter. The 80% minimum passing score is intended to 1336 demonstrate mastery of the subject and lower scor es do not achieve this goal. If students do not 1337 pass the test, they must review the material a nd try again. EPA understands that some students 1338 may require significantly more than 6 training hou rs to complete the e- learning component. 1339

1340 One commenter supported required knowledge check s for e-learning courses, but thought that 1341 EPA should use more flexible language, such as requiring the system to offer “periodic” 1342 knowledge checks or another tool to ensure th e student is actively engaged and retaining 1343

information. 1344

1345 EPA agrees with this comment and will require periodic knowledge checks equivalent to the 1346 number and content of the knowledge checks contai ned in EPA’s model course. This would be 1347 16-24 knowledge checks over the entire course. 1348

1349 One commenter suggested that EPA consider sepa rately accrediting entities that provide online 1350 training and entities that provide hands-on training. The commenter argued that developing an 1351 online course is a capital-intensive project that requires a large num ber of trainees to recover the 1352 costs, so relatively few entities are likely to und ertake online course development. In contrast, 1353 the commenter stated that the delivery of hands -on training must be more local and mobile, it 1354 requires a smaller capital investment, and each entity may have relatively few trainees. 1355

1356 EPA recognizes that this may be the case, at least for now, while EPA is administering the RRP 1357 program in most States. However, this may ch ange as more States become authorized and 1358 impose requirements for training that may differ from the EPA requirements. In any event, EPA 1359 has developed a streamlined process to allow acc redited training providers to add an e-learning 1360 component to their accreditation by using an al ready developed and accredited online course. 1361 This allows accredited training providers to offe r online training without having to make a large 1362 capital outlay to develop a course. EPA conti nues to believe that th e training provider who 1363 issues the final course completi on certificate to a trainee, thus conferring certified renovator 1364 status on the trainee, must be responsible for en suring that the student has completed all of the 1365 required training. EPA does not offer partial accr editations, or accredita tion for a portion of a 1366

course. 1367

1368 A commenter thought that it woul d be burdensome to require th e hands-on training provider to 1369 maintain records of the specific times each studen t logged in to the online portion of the course, 1370 each student’s progress, and completion data. Th e commenter believed that, in the case where 1371 the online provider and the hands-on provider are separate entities, work ing under a contractual 1372 agreement to present an entire training course, it would be relatively easy for the online provider 1373*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 31 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 to maintain the records. In contrast, the commenter thought that it would be much more 1374 burdensome for EPA to require that the hands -on provider download or otherwise take 1375 possession of these records. 1376

1377 EPA disagrees with this commenter, because EPA believes that the amount of data associated 1378 with this particular requirement for each trainee is not substantia l. However, if a particular 1379 accredited training provider felt otherwise, the provi der could contract with the provider of the 1380 online training to store the records. Although the accredited training provider would remain 1381 ultimately responsible for being able to produce t hose records, as long as the training provider is 1382 able to produce them in response to a request from EPA, EPA would consider the training 1383 provider in compliance with the recordkeeping requirements. 1384

1385 One commenter thought that the re quirement that a student be ab le to generate an uneditable 1386 copy of an e-learning course completion certific ate was too stringent. The commenter pointed 1387 out that almost anyone reasonably familiar with co mputers could alter a secure PDF, image, or 1388 word processing file thro ugh the print function. 1389

1390 EPA agrees that this is a valid concern. EPA will add language to 40 CFR 745.225(c)(6)(viii)(E) 1391 to clarify that EPA merely meant that the certif icate must not be susceptible to immediate and 1392 easy editing by students. A secure PDF file w ould comply with these requirements. Allowing 1393 students to generate and print the course comp letion certificate provides them with reasonable 1394 certainty that they have completed the e-lear ning portion of the course before attempting the 1395 hands-on portion. EPA recommends that accred ited training providers verify through other 1396 means, such as the e-learning progress records, that each student who completes the hands-on 1397 training has also completed the online portion of th e course before training providers issue the 1398 final course completi on certificate. 1399

1400 Trainee Photographs 1401

1402 One commenter stated that trainee photogra phs on the course completion certificate for 1403 renovators and dust sampling technici ans should be in color. 1404

1405 Although EPA recommends that photographs be in color, this is not a requirement. The rule 1406 requires that photos be recognizable. As long as they meet this requirement, EPA does not see 1407 the need for a requirement that the photographs be in color. 1408

1409 One commenter stated that that the proposed requirements are adequate, and no further 1410 clarifications of the photograph requirements are needed. 1411

1412 The Agency agrees with this comment and has finalized the requirement as proposed without 1413 adding any additional requirements. 1414

1415 One commenter stated that EPA should require p hotographs on course completion certificates for 1416 courses other than renovator or dust sampli ng technician in order to prevent fraud. 1417

1418*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 32 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 The Agency does not require pictures on the course completion certificates for the risk assessor, 1419 inspector, supervisor, and worker courses be cause EPA issues a badge to each certified 1420

individual that contains the individual’s picture. EPA belie ves that the photo on the badge 1421 adequately addresses the issu e raised by the commenter. 1422

1423

One commenter states that the recommendation th at trainee photographs be 600 pixels high by 1424 600 pixels wide is extremely burdensome to tr aining providers. The commenter claims that 1425 training providers must spend hours cropping photographs to meet this recommended size. The 1426 commenter believes that the Agency should be le ss prescriptive with its photo recommendations. 1427

1428 EPA appreciates the information and will c onsider how it can change the recommended 1429 photograph dimensions to make it less time c onsuming to submit photographs in post-training 1430

notifications. 1431

1432

Hands-on 1433

1434 A commenter wondered why report preparation would be a required hands-on topic for dust 1435 sampling technicians when it has never been a hands -on topic for the other disciplines that must 1436

prepare reports. 1437

1438

While it is true that hands-on trai ning in report preparation is not required for most lead training 1439 disciplines, it is required for the inspector discipli ne. Thus, certified insp ectors and certified risk 1440 assessors, who must successfully co mplete both the inspector course and the risk assessor course, 1441 receive hands-on training in re port preparation. EPA believes th at report preparation for dust 1442 sampling technicians is likewise important enough to warrant hands-on training in how to do it 1443 properly. 1444

1445 Two commenters thought that re quiring hands-on training for re novator refresher courses would 1446 limit the availability of refresher training and increase costs unnecessarily. Both commenters 1447 thought that enough information c ould probably be conveyed in a distance learning or e-learning 1448 setting to warrant dispensing with the hands-on requirement for renovator courses. One 1449 commenter pointed out that EPA’s current m odel refresher training course for renovators 1450 contains two required hands-on skill sets—tes t kit usage and cleaning verification. This 1451 commenter felt that this was appropr iate, given that previously-train ed individuals ar e still taking 1452 advantage of the “grandfathering” provision that allows them to successfully complete an 1453

accredited renovator refresher course to become cer tified renovators. Those individuals would 1454 not have had previous training in those two skills, so hands- on training would be necessary. 1455 However, once the grandfathering provision is no longer available, as di scussed later in this 1456 section of the preamble, all certif ied renovators would have had hands -on training in these skills. 1457

1458 EPA agrees with the second commenter that, fo r now, renovator refresher courses must include 1459 hands-on training in test kit use and in cleaning verification. Th erefore, EPA is finalizing the 1460 proposed amendment to 40 CFR 745.225(e)(2) that sp ecifically states that hands-on training is 1461 required for all refresher courses except project designer. EPA pl ans to re-evaluate the renovator 1462

refresher course after th e grandfathering provision sunsets, but before the currently-certified 1463*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 33 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 renovators are due for refresher training. At that time, EPA will consider whether hands-on 1464 training is still necessary and appropriate fo r renovator refresher training. 1465

1466 State Programs 1467

1468 Several commenters thought that it would be unrealis tic to expect states to make changes within 1469 a year of EPA’s promulgation of regulatory ame ndments. These commenters thought that states 1470 should be given two years, which is consistent with the current rules. 1471

1472 EPA inadvertently included the wrong provisions in the proposed regulatory text for revising 1473 authorized State and Tribal pr ograms to conform to revisions to the RRP rule. The existing 1474 provisions at 40 CFR 745.326( f) give authorized State and Tribal programs two years from the 1475 effective date of any EPA revisi ons to the RRP rule to demonstr ate that the State or Tribal 1476 program meets the requirements of the revised RRP rule. This two year period is also afforded 1477 to States and Tribes that submit applications fo r authorization before th e effective date of any 1478 EPA revisions. EPA did not intend to make any ch anges to this provision and States and Tribes 1479 will still have two years to make changes to their programs necessitated by revisions to the 1480 federal RRP program. 1481

1482 One commenter pointed out that EPA’s propos ed regulatory text at 40 CFR 745.326(e)(1) did 1483 not accomplish EPA’s stated objective of clarifying that both individuals and firms must receive 1484

certification. 1485

1486 EPA agrees with this commenter, and has revise d the regulatory text throughout this section 1487 accordingly to ensure that EPA’s requirements are clear. EPA requires both renovators and 1488

renovation firms to be certified. A renovator be comes certified by successfully completing an 1489 accredited renovator training class. A renova tion firm becomes certified by submitting an 1490 application to EPA, attesting that it and its employees will follow the work practice standards at 1491 40 CFR § 745.85 for conducting renova tions, and paying a certificati on fee. EPA believes that, 1492 in order for a State or Tribal program to be at least as protective as EPA’s program, the State or 1493 Tribal program must, at a minimum, require formal certification for renovation firms. States and 1494 Tribes may, but are not required to, formally certi fy renovators. The certified renovation firm is 1495 responsible not only for the behavi or of its certified renovators but also for the other workers that 1496 have been trained by the certified renovators. Th us, the renovation firm is ultimately responsible 1497 for the proper performance of the renovation. Re quiring formal certification for renovation firms 1498 facilitates compliance monitoring and enforcemen t for EPA as well as for State and Tribal 1499 programs. A program that only required formal certification for indivi dual renovators and not 1500 firms would not be as protective. 1501

1502 One commenter suggested that EPA consider re quiring states to rec ognize the dust sampling 1503 technician discipline because it would make services more affordable nationwide. 1504

1505 While nationwide dust sampling technician recogn ition might make services more affordable, 1506 EPA does not have the authority to prohibit Stat es and Tribes from having a more stringent 1507 program than the EPA’s, e.g. , requiring more training for pers ons collecting dust wipe samples 1508 than EPA requires. 1509*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 34 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 1510 Several state commenters argued that their legisl atures had already created the authority to 1511 establish an RRP program, but the maximum pe nalty amount was less than $10,000 per violation 1512 per day. These States did not believe that they would be able to increase the maximum penalty 1513 authority, because it was comparable to other pr ograms administered by the State, or that it 1514 would take several years to get an increase through the legislature, during which time EPA 1515 would have to administer the program in their jurisdictions. One commen ter argued that States 1516

should be able to set fines based on the needs of the States not the implied need of the EPA. 1517

1518 EPA believes that strong enforcement of the lead-b ased paint regulations by authorized State and 1519 Tribal programs is critical to ensuring the safe ty of the occupants of target housing and child 1520 occupied facilities undergoing lead abatement, renovation, repair or painting. Therefore, EPA 1521

believes that it must establish a threshold for aut horized State and Tribal enforcement programs. 1522 However, EPA also agrees that most of the enfo rcement actions in authorized lead-based paint 1523 programs would be against very small entities. It is likely that the regulated community in the 1524 lead-based paint programs consists of smaller entities than the other programs for which EPA has 1525 established minimum penalty aut horities, such as the Resource Conservation and Recovery Act 1526 (RCRA). Therefore, EPA is es tablishing a minimum penalty au thority for State and Tribal 1527 programs of $5,000. EPA agrees that it will be re sponsible for administering the program in 1528 those jurisdictions that do not meet these minimum enforcement program requirements. 1529

1530 At least two already-authorized State programs poi nted out that they had been authorized with 1531 maximum penalty authorities of less than $10,000. One of these States also noted that it had 1532 been effectively enforcing the Lead-based Pa int Activities Program and the Pre-Renovation 1533 Education Program for years now with a maximu m penalty authority of $5,000 per violation, and 1534

the State did not believe that an increase in its maximum penalty authority would improve the 1535 effectiveness of its programs in any way. 1536

1537 As discussed above, authorized State and Tribal programs will have two years from the effective 1538 date of this rule to revise their programs to conform to the minimum enforcement program 1539 requirements. EPA agrees that a lower maximum penalty authority is appropriate for authorized 1540 State and Tribal lead-based paint programs and is establishing the th reshold maximum penalty 1541 authority at $5,000 per viol ation per day. 1542

1543

Some commenters also noted th at most enforcement actions in an RRP program would be 1544 against very small companies or individuals, and penalties of less than $10,000 per violation per 1545 day would still be very effective deterrents for such entities. 1546

1547 EPA agrees that most of the enforcement actions in authorized lead-based paint programs would 1548 be against very small entities. Although small entities also vi olate RCRA, it is likely that the 1549 regulated community in the lead-based paint progra ms consists of smaller entities than the other 1550 programs for which EPA has established minimu m penalty authorities. Therefore, EPA is 1551 establishing a minimum penalty authority for State and Tribal programs of $5,000. 1552

1553 Two environmental advocacy groups supported EP A’s proposed minimum penalty authority of 1554 $10,000, arguing that substantial penalties are nece ssary to get the attention of the regulated 1555*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 35 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 community and meaningful enforcement is critical to the rule’s success at protecting individuals 1556 from exposures to dangerous levels of lead. 1557

1558 EPA agrees with these commenters on the importance of an effective enforcement program. 1559 Strong enforcement of the lead-b ased paint regulations by authorized State and Tribal programs 1560 is critical to ensuring the safety of the occupants of target housi ng and child occupied facilities 1561 undergoing lead abatement, renovatio n, repair or painting. However, EPA also agrees with those 1562 States that argued that most of the enforcement actions in authorized l ead-based paint programs 1563 would be against very small entities. Although sm all entities also violate RCRA, it is likely that 1564 the regulated community in the lead-based paint programs consists of smaller entities than the 1565 other programs for which EPA has established mini mum penalty authorities. Therefore, EPA is 1566 establishing a minimum penalty authority for State and Tribal programs of $5,000. 1567

1568 State commenters did not favor adding a mech anism for adjusting these minimum penalty 1569

authorities for inflation. One environmental ad vocacy group supported the idea, but thought that 1570

it should not be a barrier to State a nd Tribal program authorization. 1571

1572 EPA agrees with these commenters and no m echanism for adjusting these minimums for 1573

inflation is included in this final rule. 1574

1575 Commenters suggested a number of factors that should be consider ed by States and Tribes when 1576 imposing penalties for violations of their aut horized programs. Several favored enforcement 1577 history and risk, but not to the extent of treating first-time offe nders too lightly. A handful of 1578 commenters argued that size of busin ess, and ability to stay in bus iness should not be considered, 1579 because small companies can cause as much harm as large companies. 1580

1581 EPA believes that States and Tribes may legitim ately consider any of the factors that EPA 1582 typically considers, such as nature, circumstances, and extent of the violation, the culpability of 1583 the violator, history of prior violations, ability to pay or continue in business, voluntary 1584 disclosure, and attitude of the violator. However, EPA will not require States and Tribes to 1585 consider any of these factors. 1586

1587 Recordkeeping 1588

1589 Two commenters thought that the training provider recordk eeping requirements for all 1590 disciplines should be increased to 5 years. Th ese commenters thought it would be less confusing 1591 for training providers if there wa s one period applicable to all. One commenter pointed out that 1592 EPA had extended the certification period for renova tors trained before April 22, 2010 to July 1, 1593 2015, so the training records for those trainees ought to be kept for as long as their certification 1594 lasts. This commenter suggested that EPA require training records to be kept for 5 years or until 1595 the expiration of certification resulting fr om the training, whichever is longer. 1596

1597 While EPA agrees that it may be easier for traini ng providers to keep records for the same length 1598 of time regardless of the discipline, EPA does not believe that it is necessary make this a 1599 requirement. Training providers who prefer to have one sing le recordkeeping process can 1600 always choose to maintain their records for 5 years across the board. Therefore, EPA is 1601*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 36 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 promulgating the increased recor dkeeping requirement for provide rs of accredite d renovator and 1602 dust sampling technician training as proposed. EPA also agrees with the commenter who 1603 suggested that there be a longe r recordkeeping requirement for renovator training courses offered 1604 before April 22, 2010. Accordingly, EPA is also promulgating a requirement that records for 1605 renovator training courses completed before April 22, 2010 must be kept until July 1, 2015. 1606

1607 One commenter pointed out that EPA would also have to modify the recordkeeping requirements 1608 to accommodate the option of renovators collecti ng paint chip samples and include information 1609 specific to paint chip sample co llection, such as component and lo cation tested, identity of the 1610 NLLAP entity analyzing the samples, and the sample results. 1611

1612 EPA agrees with this commenter. Accordingl y, EPA is modifying 40 CFR 745.86(b)(1) to add a 1613 new subsection (iii) that requires records pertaining to paint chip sample collection and analysis, 1614 including a description of the components that were sampled, and the locations sampled, the 1615

name and address of the NLLAP -recognized entity performing the analysis, and the results for 1616 each sample. EPA is also modifying 40 CFR 74 5.86(b)(6) to include a certification by the 1617 certified renovator that, if paint chip samples were collected, that the samples were collected 1618 from the components in the locations specified, th at the samples were submitted for analysis to 1619 the identified NLLAP-recogni zed entity, and that the sample resu lts were as specified. 1620

1621

Accreditation 1622

1623 Two commenters supported the idea of combin ed renovator-worker and renovator-supervisor 1624 refresher courses and thought they would provide increased flexib ility for industry. One thought 1625 that the certification time periods should be harm onized to 3 years for all disciplines because the 1626 commenter believed that 5 years was too long to go without a refresher. The other commenter 1627 did not think that harmonization was necessary, because the abatement worker or supervisor 1628 would just take the combined refresher every thr ee years to meet the shor ter certification periods 1629

in the Lead-based Paint Activities Rule. 1630

1631 EPA agrees with these commenters that combined refresher courses may be beneficial. While 1632 the current regulations permit training provide rs to offer refresher courses sequentially, e.g. , a 4- 1633

hour renovator course on the afte rnoon of one day, followed by an 8-hour worker course the next 1634 day, taking the courses sequentially would result in some duplic ation of training topics for 1635 persons certified as both renovato rs and abatement workers. On the other hand, EPA is not 1636 certain that appropriate refreshe r topics for both disciplines coul d be covered in a single 8-hour 1637 day. EPA plans to evaluate the content of its su pervisor, worker, and renovator refresher courses 1638 to determine what an appropriate combined cour se length might be. Depending on the results of 1639 this evaluation, EPA will consider amending th ese regulations to establish course length 1640 requirements for combined refres her courses. 1641

1642

One commenter stated that EPA should streamline its process for accrediting training providers. 1643 The commenter claimed that the 180 days that EPA is allowed for processing applications for 1644 training provider accreditations is too long and that it should be shortened to 45 days if the 1645 application uses the EPA model course or 90 days if it develops its own course. The commenter 1646*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 37 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 further claimed that EPA merely ensures the tr aining provider applicants meet a checklist of 1647 requirements which should not take 180 days to review. 1648

1649 EPA disagrees with this comment. While the Agency is has 180 days to approve or deny 1650 applications for accreditation, it stri ves to complete this process as quickly as possible. The time 1651 it takes to accredit an appli cant depends on various factors in cluding Agency resources, the 1652 number of applications EPA is reviewing at any given time, and how quickly the applicant 1653 responds to Agency questions about the applicat ion. In addition, EPA does more than simply 1654 review a checklist of requirements. Agency sta ff conduct site visits of training facilities and 1655 view demonstrations of the trainings. They also review various parts of an application including 1656 the quality control plan, descri ptions of activities and proced ures for conducting the hands-on 1657 skills assessment, lists of equipment that will be used for the lecture and hands-on portions of a 1658 course, and course test blueprints, among other thi ngs. If any of these pi eces of the application 1659 are deficient, the Agency will work with the app licant to address the deficiencies. Based on the 1660

amount of work that is involved in accrediti ng a training provider a nd the variability among 1661 applicants, EPA does not intend to s horten the 180 time limit at this time. 1662

1663

One commenter stated that EPA should be mo re consistent among its regional offices in 1664 accrediting training providers. The commenter point ed out that the student to instructor ratios 1665 and the format of training demonstrations ca n vary among the different regional offices. 1666

1667 The Agency understands that trai ning provider reviews can be s lightly different among the ten 1668 regional offices. To address this, the Agency has developed policies for accrediting training 1669 providers that the regional offices follow. In addition, EPA holds regular meetings among staff 1670 from the ten regional offices and headquarters to share information on th e accreditatio n process. 1671

1672 Grandfathering 1673

1674 One commenter argued that the grandfatheri ng provision should only apply to certified 1675 abatement workers or supervisors, not workers or supervisors who have only taken the course 1676 but are not currently certified. This commenter asserts that cer tified individuals will receive 1677 updated information by taken the required refreshe r course every three years. The commenter 1678 believes that those who do not receive the update d information because their certification has 1679 lapsed should have to take the 8-hour initial reno vator course. 1680

1681

Even if individuals do not take the refresher abatement work or supervisor courses, these 1682 individuals have still received significant training in the required RRP work practices such as 1683 establishing containment and cleaning the area af ter the job is finished. Thus, the Agency 1684

believes that someone who has not taken the refr esher abatement worker or supervisor course 1685 should still qualify for th e refresher training. 1686

1687

One commenter states that EPA should continue grandfathering individu als who completed and 1688 EPA-accredited abatement worker or supervisor c ourse until it can offer a combined course in 1689

abatement and renovations. 1690

1691*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 38 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 The Agency disagrees with this comment. A comb ined refresher course would allow individuals 1692 to more readily be able to keep up their dua l certifications. EPA does not believe that the 1693 availability of a combined abatem ent worker or supervisor refreshe r course is relevant to whether 1694 someone should be eligible for th e refresher renovator course. 1695

1696 One commenter pointed out that th e grandfathering date in the pr eamble to the proposed rule did 1697 not match the date in the proposed regulations an d that the two date should be consistent. 1698

1699 The Agency agrees that the dates should have be en consistent and will change the grandfathering 1700 date in the regulations to the eff ective date of the final rule. 1701

1702 Other Proposed Amendments and Related Comments 1703

1704 One commenter thought that, before starting the course, the traini ng provider should be required 1705 to supply a paper copy of the speci fic training manual to each student. 1706

1707 The commenter did not supply a reason for imposing such a requi rement and EPA believes that 1708 training providers generally do th is as a matter of course. 1709

1710 One commenter thought EPA shoul d update the abatement courses because the commenter 1711 believes that they are very out of date. 1712

1713 While EPA does not necessarily agree that the ab atement courses are very out of date, in the 1714 future EPA will nonetheless consider whether the abatement course should be updated. 1715

1716 One commenter thought that EPA should require the OSHA regulat ions to be taught in the 1717 course. A certified firm was fined by OSHA for not knowing whether the HEPA respirators 1718 being worn were appropriate. 1719

1720

EPA does not believe that this is an appropriate requirement for EPA to impose, and OSHA 1721 already requires employees to be trained in its standards. 1722

1723 One commenter noted 40 CFR 745.89(c) conflicts with the proposed ch ange to 745.92(b)(3) 1724 regarding fees for certif ication amendments. 1725

1726 EPA agrees with this commenter and will modify 40 CFR 745.89(c) to make it clear that no fee 1727 is required for a firm certification amendment. 1728

1729 One commenter stated that EPA should require cert ified inspectors and risk assessors to received 1730 training specific to the RRP rule. Such items would include dust sampling, clearance testing, 1731 paint testing, documentation, reporting and recordkeeping. 1732

1733 The Agency disagrees that inspectors and risk as sessors need additional tr aining specific to the 1734 RRP rule in the areas of dust sampling, clearan ce testing, paint testing, documentation, reporting 1735 and recordkeeping. Inspectors a nd risk assessors currently r eceive training in dust sampling, 1736 clearance testing, and paint testi ng. These skills can be used when doing the clearance testing 1737*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 39 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 that is optional under the RRP rule. Furthermore, the RRP ru le does not change the requirements 1738 for work performed by inspectors and risk asse ssors. Consequently, EPA does not intend on 1739 changing the requirements for inspectors and risk assessor training courses. 1740

1741 One commenter stated that EPA should keep the RRP rule consistent with other lead laws being 1742 implemented throughout the country. The commen ter pointed out that th e many different laws 1743

with different standards create confusion resulting in less complia nce, which will lead to more 1744 unsafe conditions. The commenter specifically reque sted that EPA use a de minimis standard of 1745 2 square feet or 10% when determining what work qualifies as minor repair and maintenance. 1746

1747 While EPA agrees that consistency with othe r programs is an important consideration in 1748 promulgating regulations, consistency is not al ways the best approach. For example, as 1749 discussed previously in this document, HUD’s Lead-safe Housing Rule and EPA’s RRP rule 1750 have very different purposes. As such, consiste ncy in all provisions is not necessarily desirable 1751 or appropriate. 1752

1753 With respect to the minor maintenance standa rd EPA adopted for renovations in the 2008 RRP 1754 rule, EPA is not reopening or reconsidering this issue. 1755

1756

Renovator course trainers should have to have at least the abatement wo rker class and attend a 1757 renovator course. Persons taking the dust sampli ng tech course and attending the renovator 1758 course are not qualified to teach the renovator course. 1759

1760 In the final Opt-Out Rule, EPA reduced the prere quisite lead-based paint training requirement for 1761 principal instructors from 16 hour s to 8 hours for several reasons , including available training 1762 capacity and subject matter relevance. EPA is not reopening or reconsidering this issue. 1763

1764 Several commenters supported lowering the dust- lead hazard standards and modifying the 1765 definition of lead-based paint. One specifically noted that it is confusing for trainees to 1766 distinguish between EPA/HUD hazard levels an d the OSHA threshold of “any detectable 1767 concentration of lead in paint.” 1768

1769 While not part of this rulemaking, in Octobe r 2009, EPA granted a pe tition requesting a re1770

evaluation of EPA’s dust-lead hazard standards and th e regulatory definition of lead-based paint. 1771

1772

Miscellaneous Comments 1773

1774 Some contractors argued that EP A does not have the authority to promulgate work practice 1775 standards for RRP activities. According to th ese commenters, in enacting Section 402(c) of 1776 TSCA, Congress was very careful to distinguish between lead-b ased paint activities and RRP 1777 activities, and the subsection doe s not explicitly authorize EPA to promulgate regulations 1778 affecting the work practice standards for RRP activities, e.g. , requiring clearance testing. The 1779 commenters mention TSCA Section 402(c)(1), whic h authorizes EPA to “promulgate guidelines 1780 for the conduct of such renovation and remodeling activities which may creat e a risk of exposure 1781 to dangerous levels of lead.” The commenters fu rther note that Section 402(c)(3) requires EPA 1782 to revise the regulations develope d for abatement and other lead-bas ed paint activities to apply to 1783*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 40 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 renovation and remodeling activities. However, the commenters argue that Congress intended 1784 that EPA would apply appropriate certification requirements deve loped in connection with lead1785 based paint activities to RRP cont ractors but that work practice standards – including clearance 1786 testing requirements – would remain th e subject of guidelines, not regulations. 1787

1788 EPa is not reopening or reconsidering this issu e. Nonetheless, EPA disagrees with these 1789 commenters. EPA’s interpretation of TSCA Sec tion 402(c)(3) is that Congress intended EPA to 1790

revise the entire set of lead-based paint activities regul ations to apply to renovation and 1791 remodeling activities that create lead-based pain t hazards. Indeed, one possible interpretation is 1792 that Congress directed EPA to simply revise th e lead based paint regulations by expanding them 1793 to apply to renovation and remodeli ng activities. Nonetheless, EP A has interpreted the directive 1794 to “revise” the lead-base paint activities regu lations as allowing EPA to make common sense 1795 changes to the lead-based paint activities regu lations to address a the differences between 1796

renovators and abatement contractors. In a ddition, EPA disagrees with the commenters’ 1797 interpretation that 403(c)(1) somehow precludes EPA from regulating renovation activities and 1798 establishing lead safe work prac tices. Indeed, EPA believes that the commenters’ interpretation 1799 of section 402(c) makes little sense. Under section 402(a), C ongress first directed EPA to 1800 promulgate, within 18 months, re gulations concerning lead-based paint activities, i.e., activities 1801 designed to remove known lead-b ased paint hazards. At the same time, under section 402(c), 1802 Congress expressed a concern a bout renovation activities generall y and directed EPA to first 1803 issue guidelines (also within 18 months) for reno vation activities that “may” create a risk of 1804 exposure to dangerous levels of lead. In the co ntext of section 402(c), th ese guidelines are best 1805 understood as an interim step b ecause Congress then gave EPA mo re time (a total of 30 months) 1806 to study renovation activities to determine, among other things, the extent to which renovation 1807 activities create a lead-based paint hazard. As a final step, Congress directed EPA to regulate 1808 renovation activities that EPA (after the studying th e issue) has determined create lead-based 1809 paint hazards. No reasonable reading of 402(c) suggests that Congress me rely intended EPA to 1810 issue guidelines and thereafter to study the exte nt to which renovation ac tivities create lead1811 based paint hazards but then to revise the TSCA § 402(a) regulations to address activities that 1812 create lead-based paint hazards without rega rd to work practice standards governing those 1813

activities. 1814

1815 Several commenters argued that EPA has not es tablished that the activ ities regulated under the 1816 RRP rule create lead-based paint hazards. 1817

1818

EPA addressed this issue in the underlying RRP rule and is not re opening or reconsidering this 1819

issue. 1820

1821 Several commenters argue that EPA cannot re gulate renovation, repair, and painting activities 1822 because the studies performed to determine whet her such activities create lead-based paint 1823

hazards are flawed and do not establish a di rect connection between renovation, repair, and 1824 painting activities and increased chil dhood or worker blood lead levels. 1825

1826 EPA has already addressed this argument in th e preamble to the 2008 final RRP rule and is not 1827 reopening or reconsider ing the issue here. 1828

1829*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 41 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 One commenter suggested that EPA focus its re gulatory efforts on heavy metals in fish. 1830

1831 EPA agrees that there are many potential sources of lead that may contribute to the problem of 1832 childhood lead poisoning. However, this regulat ion is being issued pursuant to TSCA § 1833 402(c)(3), and therefore only applies to renovation and remo deling activities. EPA notes, 1834 however that this regulation is only one piece of the Federal, State, and local efforts to reduce 1835 exposures to lead and elim inate childhood lead poisoning. 1836

1837

One commenter asked EPA to limit the amount that states can charge contractors for 1838

certification. 1839

1840 EPA does not have the authority to re gulate state certification fees. 1841

1842 One commenter suggested that EPA allow build ing supply retailers to sell the Cleaning 1843

Verification Cards. 1844

1845 While EPA will take this commenter’s suggestion under consideration, EPA produces and 1846 distributes the cleaning verifica tion cards through accredited trai ning providers and the National 1847

Lead Information Center because EPA believes th at exercising sufficient quality control during 1848 card production is critical to the success of the RRP cleaning protocol after renovations. 1849

1850 One commenter requested that EPA clarify its interpretation of the test kit provisions, i.e. , that 1851 EPA could approve kits before September 1, 2010 and allow their use until an improved kit is 1852 recognized. 1853

1854 The currently recognized test kits did not auto matically lose their r ecognition on September 1, 1855 2010. As discussed in the 2008 RRP rule, prio r to September 1, 2010, manufacturers seeking 1856 recognition of their test kit must meet only false negative respons e criterion, and that recognition 1857 of kits meeting this criterion w ill last until EPA publicizes its r ecognition of a kit that passes both 1858 the false negative and the false positive criteria. 1859

1860 One commenter argued that the model renovator training course spends too much time on the 1861 specifics of the rule and not enough on health effects, which w ould motivate workers to follow 1862 the lead-safe work practices. 1863

1864 EPA appreciates this commenter’s concern. EPA continues to monitor and evaluate the content 1865 of the course. Given the skills and tasks required by the rule that must be covered in the course, 1866 EPA believes that the appropriate weight is being given to th e health effects of lead. 1867

1868 One commenter thought trai ning requirements should include more hands-on time, for example, 1869 the commenter noted that the Washington weat herization program requires 6 hours of hands-on 1870 training. 1871

1872 EPA disagrees with this commenter. While hand s-on training is beneficial, EPA believes that 1873 the hands-on skills required to be presented in the renova tor course can adequately be covered in 1874

two hours. 1875*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 42 of 42 [RIN 2070-AJ57] 03/21 07/15 /2011 1876 One commenter contended that regulat ory policy shouldn’t address pets. 1877

1878 Under the Toxic Substances Control Act, EPA is charged with protecting human health and the 1879 environment. Unfortunately, the effects of lead-b ased paint hazards are not limited to children or 1880 even just humans. Lead poisoning from renovations has been documented in both cats and dogs. 1881 This is often the first indicator that families have of human exposure as well. Moreover, in our 1882 society pets can be highly valued. Thus, in asse ssing the impacts of the rule, EPA has chosen not 1883 to ignore the concern over lead poisoni ng in pets from re novation activities. 1884

1885 Several commenters thought EPA should require homeowners to use contractors who follow 1886

RRP rules. 1887

1888 As discussed, EPA interprets the statutory di rective to regulate remodeling and renovation 1889

activities found in TSCA section 402(c)(3) as applying to contractors and not a broader category 1890 of persons, such as homeowners. Thus, the RRP rule does not include provisions directly 1891 applicable to homeowners, with the exception of ho meowners who renovate rental property. 1892

1893 Replacement components for which documentation is av ailable should be exempt from the rule. 1894

1895 The RRP rule provides a mechanism for this, by a llowing certified inspectors and risk assessors 1896 to make determinations based on property r ecords. See 40 CFR 745.227(b)(2). EPA believes 1897

that it would be difficult to esta blish criteria for documentation of replacement components that 1898 could be applied by certified renovators. Renovato rs do not have training in identifying painting 1899 histories and making other judgm ents of what to test. 1900