federal register

45777

Thursday

August 29, 1996

Part XI

Environmental

Protection Agency

40 CFR Part 745

Lead; Requirements for Lead-Based Paint

Activities in Target Housing and ChildOccupied Facilities; Final Rule
45778 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 745

[OPPTS–62128B; FRL–5389–9]

RIN 2070–AC64

Lead; Requirements for Lead-Based

Paint Activities in Target Housing and

Child-Occupied Facilities

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing a Federal

regulation under section 402 of the

Toxic Substance Control Act (TSCA) to

ensure that individuals conducting leadbased paint activities in target housing

and child-occupied facilities are

properly trained and certified, that

training programs providing instruction

in such activities are accredited and that

these activities are conducted according

to reliable, effective and safe work

practice standards. The Agency is also

finalizing a Federal regulation under

section 404 of TSCA that will allow

States and Indian Tribes to seek

authorization to administer and enforce

the regulations developed under section

402. The goal of this regulation is to

ensure the availability of a trained and

qualified workforce to identify and

address lead-based paint hazards, and to

protect the general public from exposure

to lead hazards.

DATES: This document is effective

August 29, 1996. Specific applicability

dates related to this final rule are as

follows:

States and Indian Tribes seeking EPA

authorization to administer and enforce

their own lead-based paint activities

programs may apply to the Agency

starting October 28, 1996. Following

EPA authorization, the requirements of

the State or Tribal program will become

effective as specified in such program.

For States and Indian Tribes that do

not apply to EPA for and receive

authorization, EPA will administer and

enforce the regulations for lead-based

paint activities contained in subpart L.

The requirements of Subpart L will

begin to apply in non-authorized States

and Indian Country no later than August

31, 1998, as specified below.

In States and Indian Country where

EPA will administer and enforce

subpart L, training programs that seek to

provide lead-based paint activities

training courses or refresher courses

pursuant to § 745.225 may first apply to

EPA for accreditation on or after August

31, 1998. Such training programs cannot

provide, offer, or claim to provide

training or refresher training for leadbased paint activities as defined in this

subpart, without acquiring accreditation

from EPA pursuant to § 745.225 on or

after March 1, 1999.

In EPA-administered States and

Indian Country, no individual or firm

can perform, offer, or claim to perform

lead-based paint activities as defined in

this subpart, without certification from

EPA to conduct such activities pursuant

to § 745.226 on or after August 30, 1999.

Such individuals or firms may first

apply to EPA for certification pursuant

to section 745.226 after March 1, 1999.

In EPA-administered States and Indian

Country, after August 30, 1999 all leadbased paint activities, as defined in this

subpart, must be performed pursuant to

the work practice standards contained

in § 745.227.

ADDRESSEES: Copies of this rule, the

public comments received on this rule,

EPA’s response to those comments and

other relevant documents that support

the rule are available for public

inspection at EPA’s headquarters office

on weekdays, except legal holidays,

between the hours of noon and 4 p.m.

at the following location: Environmental

Protection Agency, TSCA Public Docket

Office (7407), 401 M St., SW.,

Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Susan B. Hazen, Director,

Environmental Assistance Division

(7408), Office of Pollution Prevention

and Toxics, Environmental Protection

Agency, 401 M St., SW., Washington,

DC 20460, Telephone: 202–554–1404.

TDD: 202–554–0551, e-mail: TSCAHotline@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

A. Legal Authority

B. Summary

C. Background

II. Consultation with Stakeholders

III. Response to Comments on the Scope of

the Rule

A. Building Types

B. Definition of Lead-Based Paint

Abatement in Target Housing and ChildOccupied Facilities

IV. Relationship of Sections 402 and 404 to

Section 403 of TSCA

V. Response to Comments on the

Accreditation of Training Programs in Target

Housing and Child-Occupied Facilities

A. Framework for Training

B. Training Program Accreditation

Requirements

C. Accreditation Application Process

D. Reaccreditation of Training Programs

and Quality of Instruction

VI. Response to Comments on the Training

and Certification of Individuals

A. Training, Education and/or Experience

Requirements

B. Passage of the Certification Examination

VII. Framework for Work Practice Standards

for Conducting Lead-Based Paint Activities

in Target Housing and Child-Occupied

Facilities

A. Introduction

B. Scope and Applicability

C. Use of Guidance and Recordkeeping

Requirements

VIII. Response to Comments on Work

Practice Standards for Conducting LeadBased Paint Activities in Target Housing and

Child-Occupied Facilities

A. Conflict of Interest

B. Inspection

C. Risk Assessment Activities

D. Composite Sampling

E. Abatement

IX. State Programs

A. Introduction

B. Submission of an Application

C. State Certification

D. EPA Approval

E. Model State Program—Guidance to

States and Indian Tribes; EPA Approval

Criteria

F. Treatment of Tribes as a State

X. Regulatory Assessment Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act

E. Executive Order 12898—

Environmental Justice Considerations

XI. Submission to Congress and the General

Accounting Office

XII. Rulemaking Record

XIII. References

I. Introduction

A. Legal Authority

The training, certification and

accreditation requirements and work

practice standards contained in this rule

are being promulgated pursuant to

section 402 of TSCA, 15 U.S.C. 2682, as

amended on October 28, 1992. The

Model State Program and regulations on

the authorization of State and Tribal

lead programs are being promulgated

pursuant to section 404 of TSCA, 15

U.S.C. 2684.

B. Summary

Today’s final rule is intended to

ensure that individuals conducting leadbased paint inspections, risk

assessments and abatements in target

housing and child-occupied facilities

are properly trained and certified, and

that training programs providing

instruction in such activities are

accredited. Target housing is defined as

any housing constructed prior to 1978,

except housing for the elderly or

persons with disabilities, or any 0-

bedroom dwelling. A child-occupied

facility is defined as a building, or

portion of a building, constructed prior

to 1978, visited by the same child, 6

years of age or under, on at least 2

different days within any week,
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45779

provided that each days visit lasts at

least 3 hours, the combined weekly visit

lasts at least 6 hours, and the combined

annual visits last at least 60 hours.

Child-occupied facilities may include,

but are not limited to, day-care centers,

preschools and kindergarten classrooms.

In addition, the regulations contain a

Model State Program (MSP), which

States and Indian Tribes are encouraged

to reference and use as guidance to

develop their own Federally authorized

lead-based paint activities programs.

The MSP identifies five key elements—

training, accreditation, certification,

work practice standards and

enforcement—which EPA believes are

needed to promote and develop a

qualified and trained workforce able to

conduct lead-based paint activities

safely, effectively and reliably. The

regulations also contain procedures for

States and Indian Tribes to follow when

applying to EPA for authorization to

administer and enforce a State or Tribal

lead-based paint activities programs.

The MSP will allow States and Indian

tribes to manage and administer these

training, accreditation and certification

programs at the State or Tribal level.

The Agency believes that programs such

as this, which require among other

things the certification of individuals,

are best administered at the State or

Tribal level allowing for individual

State or Tribal-specific flexibility.

The purpose of these training,

accreditation, and certification

requirements and the work practice

standards in today’s final rule is to

ensure that lead-based paint abatement

professionals, including workers,

supervisors, inspectors, risk assessors,

and project designers, are well-trained

in conducting lead-based paint activities

in target housing and child occupied

facilities. The rule will also ensure,

through the certification of

professionals, that inspections for the

identification of lead-based paint, risk

assessments for the evaluation of leadbased paint hazards, and abatements for

the permanent elimination of lead-based

paint hazards are conducted safely,

effectively and reliably. In addition,

training providers will be accredited to

ensure that high quality training for

these professionals is available. The

Agency believes this certification and

accreditation program will allow

homeowners and others to hire a wellqualified work force that is adequately

trained in the proper procedures for

conducting lead-based paint activities.

The work practice standards in

today’s final rule are not intended to

regulate all activities that involve or

disturb lead-based paint, but only those

that are described as an inspection, risk

assessment or abatement by an

individual who offers these services.

This rule would not regulate a

renovation contractor that incidentally

disturbs lead-based paint or an

individual who samples paint on a

kitchen cabinet to determine if the paint

contains lead. Today’s final rule would

cover a contractor who offers to abate a

home of lead-based paint hazards, or an

inspector who offers to conduct a leadbased paint inspection in a residential

dwelling.

Regulated Entities. Potentially

regulated entities are those training

providers that would be accredited and

those professionals who would be

trained and certified to conduct leadbased paint abatements.

Category Examples of Regulated Entities

Lead abatement professionalsWorkers, supervisors,

inspectors, risk assessors and project

designers engaged

in lead-based paint

activities

Training providers Firms providing training services in

lead-based paint

activities

This table is not intended to be

exhaustive, but rather provides a guide

of the entities that are likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in this table could also be

regulated. To determine whether you or

your business is regulated by this

action, you should carefully examine

the provisions in part 745 of the

regulatory text. If you have any

questions regarding the applicability of

this action to a particular entity, consult

the person listed in the FOR FURTHER

INFORMATION CONTACT section.

C. Background

On October 28, 1992, the Residential

Lead-Based Paint Hazard Reduction Act

of 1992 (Title X) became law. As a

result, the Toxic Substances Control Act

(TSCA) was amended to include a new

title, Title IV, 15 U.S.C. 2681–2692.

TSCA Title IV directs EPA to

promulgate several regulations,

including the lead-based paint activities

training, certification, and accreditation

requirements, work practice standards

and the MSP included in today’s final

rule.

The requirements in today’s final rule

were first proposed on September 2,

1994 (59 FR 45872) (FRL–4633–9).

Several changes have been made to the

proposed rule because of comments

received by the Agency. Nonetheless,

the primary objective of the proposed

rule and today’s final rule remains the

same and is consistent with the goals

stated in Title X and the mandates

prescribed in TSCA Title IV.

The primary objective of today’s final

rule is to address the nation’s need for

a qualified and properly trained

workforce to assist in the prevention,

detection and elimination of hazards

associated with lead-based paint. By

promoting the establishment of this

workforce through today’s final rule, the

Agency will help to ensure that

individuals and firms conducting leadbased paint activities in target housing

and child-occupied facilities will do so

in a way that safeguards the

environment and protects the health of

building occupants, especially children

aged 6 years and under.

In addition to today’s final rule under

sections 402 and 404 of TSCA, EPA is

developing other rules as mandated by

other sections of TSCA Title IV. The

relationship of today’s final rule to these

other rules is discussed in more detail

in Unit IV. of this preamble.

II. Consultation with Stakeholders

Following the September 2, 1994

publication of the lead-based paint

activities proposal, the Agency met at

different times with representatives

from various State environmental and

public health agencies. At least three

meetings were held with State and

Tribal representatives under the

auspices of the Forum on State and

Tribal Toxics Action or FOSTTA.

FOSTTA is an organization that serves

as a forum for State and Tribal officials

to jointly participate in addressing

national toxics issues, including lead,

and to improve communication and

coordination among the States, Indian

Tribes and EPA. Under FOSTTA, a lead

project has been established to work

with the States and Tribes on leadrelated issues. Between 10 and 12 States

participate on the lead project with

EPA.

In addition to FOSTTA, the Agency

met on December 5 and 6, 1994, with 93

representatives from 49 State health and

environmental agencies and 12

representatives from 10 Indian Tribes.

Minutes from the FOSTTA meetings,

and the December 1994 meeting are in

the docket for today’s final rule (Ref. 1).

In addition to encouraging States and

Indian Tribes to submit written

comments on the September 2 proposal,
45780 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

the Agency also held meetings with the

States and Indian Tribes to discuss their

current and future roles as co-regulators

in the area of lead-based paint activities.

These meetings, in combination with

the written comments submitted by the

States, helped shape today’s final rule.

III. Response to Comments on the Scope

of the Rule

The comment period for the proposed

rule extended from September 2, 1994

to December 15, 1994. The Agency

received a total of 323 comments and

has reviewed them all. These comments,

along with a detailed summary (Ref. 2)

and the Response to Public Comment

Document (Ref. 3), a written response to

the issues raised by commenters, can be

found in the public docket for today’s

final rule.

Based on the public comments, the

Agency has made several changes to the

proposed rule. Two of these changes

affect the scope of the final rule by

modifying the definitions of the

buildings and structures covered.

Additionally, the Agency has amended

the definition of abatement. These

changes, and others, are summarized

below. For a more detailed discussion of

issues raised by commenters and

changes made to the final rule, readers

should refer to the Response to Public

Comment Document.

A. Building Types

One principal change in the final rule

is the Agency’s decision to delay

promulgation of training and

certification requirements and work

practice standards for individuals and

firms conducting lead-based paint

activities in public buildings (except

child-occupied facilities), commercial

buildings, superstructures and bridges.

This decision was primarily based on

the need to clarify the ‘‘deleading’’

definition contained in the September 2,

1994 proposal, and the Agency’s desire

to avoid conflict and overlap with the

training requirements contained in the

Occupational Safety and Health

Administration’s (OSHA) interim final

lead standard (29 CFR 1926.62).

Under the September 2, 1994

proposal, individuals and firms

conducting deleading activities in

public and commercial buildings,

superstructures and bridges would have

been subject to EPA training and

certification requirements and work

practice standards and, possibly, the

OSHA training requirements contained

in OSHA’s interim final lead standard.

Under the proposed rule, EPA’s

intention was to include OSHA’s

training requirements in EPA’s training

and certification program. However,

commenters noted uncertainty as to

whether EPA’s proposed definition of

‘‘deleading’’ would have included

precisely the same activities which

would trigger the training requirements

under OSHA’s interim final lead

standard.

Consequently, commenters believed

that EPA’s training and certification

program would have imposed OSHA

training when, in fact, OSHA may not

require it. Other commenters also

believed that OSHA’s training

requirements were adequate and that

EPA’s training and certification program

was unnecessary for individuals and

firms conducting ‘‘deleading’’ activities

in public and commercial buildings,

superstructures and bridges.

In its review of the comments

received on the deleading definition, the

Agency has determined that the

definition of the term needs to be

clarified. At this time, the Agency is

continuing to review the public

comments it received on its proposed

definition, and is examining available

data for the purposes of developing

options to establish training and

certification requirements and work

practice standards for individuals and

firms that conduct deleading activities

in public and commercial buildings,

superstructures and bridges. The

Agency is also considering options that

will eliminate the potential for overlap

between any training requirements EPA

may propose in the future and OSHA

training requirements for such

individuals and firms.

Another related change involves the

Agency’s decision to include

requirements for lead-based paint

activities conducted in public buildings

(except child-occupied facilities) in the

future action covering commercial

buildings, superstructures and bridges.

Accordingly, today’s final rule does not

cover public buildings constructed prior

to 1978 (except child-occupied

facilities).

The Agency is taking this action in

response to numerous comments that

urged the Agency to focus its efforts on

lead-based paint activities conducted in

housing and other facilities frequented

by children. In the September 2, 1994

proposed rule, individuals and firms

conducting lead-based paint activities in

public buildings would have been

required to adhere to the same

regulations as in target housing,

regardless of whether children

frequented the buildings. In the

September 2, 1994 proposal, the Agency

specifically requested comment on

whether all public buildings should be

subject to the same regulations and

grouped together in this way with target

housing.

A significant majority of commenters

expressed concern that application of

these requirements to all public

buildings, as defined in the September

2, 1994 proposal, would have resulted

in the expenditure of substantial

resources without a comparable

reduction in lead-based paint exposures

among children aged 6 years and under.

Under the September 2, 1994 proposal,

the Agency broadly defined public

buildings as ‘‘any building constructed

prior to 1978, except target housing,

which is generally open to the public or

occupied or visited by children,

including but not limited to stores,

museums, airport terminals, convention

centers, office buildings, restaurants,

hospitals, and government buildings, as

well as facilities such as schools and

day-care centers.’’

In response to those comments that

the Agency focus its requirements on

individuals and firms conducting leadbased paint activities in buildings

frequented by children, today’s final

rule establishes a sub-category of public

buildings named ‘‘child-occupied

facilities.’’

Today’s final rule defines a childoccupied facility as ‘‘a building, or

portion of a building, constructed prior

to 1978, visited regularly by the same

child, 6 years of age or under, on at least

2 different days within any week

(Sunday through Saturday period),

provided that each day’s visit lasts at

least 3 hours and the combined weekly

visit lasts at least 6 hours, and the

combined annual visits last at least 60

hours. Child-occupied facilities may

include, but are not limited to, day-care

centers, preschools and kindergarten

classrooms.’’

Under today’s final rule, individuals,

firms and training providers that either

offer training in the performance of

lead-based paint activities in childoccupied facilities, or that perform or

offer to perform such activities in childoccupied facilities are subject to the

same requirements as individuals, firms

and training providers involved in target

housing.

The Agency’s decision to define and

establish child-occupied facilities as a

sub-category of public buildings with

requirements equivalent to those for

target housing is based on one of the key

objectives of today’s final rule, which is

to prevent and reduce lead exposures

among young children.

The Agency believes that children

face potentially equivalent (if not

greater) risks from lead-based paint

hazards in schools and day-care centers

as they do at home. Indeed, some
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45781

children spend more time in a particular

classroom or day-care room in a given

day or week than they might spend in

a single room in their homes. If that

classroom contained a lead-based paint

hazard, the children in it could be at

risk.

The Agency believes section 402(b)

provides it with the flexibility necessary

to regulate lead-based paint activities in

child-occupied facilities in the same

manner it regulates those activities in

target housing. Although section

402(b)(2) uses terms such as

‘‘identification’’ and ‘‘deleading’’

instead of ‘‘inspection,’’ ‘‘risk

assessment’’ and ‘‘abatement,’’ EPA

believes that, given the similarity of the

population to be protected and the

nature of the risk they face, the section

402(b)(2) terms can be understood to

include the same types of lead-based

paint activities as specified in section

402(b)(1). ‘‘Identification’’ of lead-based

paint under section 402(b)(2) is

analogous to ‘‘inspection’’ under section

402(b)(1). ‘‘Deleading’’ under section

402(b)(2) is equivalent to ‘‘abatement’’

under section 402(b)(1). While there is

no direct analog in 402(b)(2) to ‘‘risk

assessment,’’ EPA believes such activity

is fairly (and necessarily, from a logical

perspective) included within the phrase

‘‘activities conducted by a person who

conducts or plans to conduct an

elimination of lead-based paint or leadbased paint hazards.’’ (See definitions of

‘‘deleading’’ in section 402(b)(2)).

Commenters also supported the

Agency’s decision to focus on those

buildings or portions of buildings where

children spend a significant amount of

time, or that children regularly or

frequently use, rather than all public

buildings. Commenters cited preschools

and kindergarten classrooms as

examples of the types of buildings that

needed to be included, like target

housing, in the regulatory program

contained in today’s final rule. By citing

such facilities as examples, commenters

appeared to indicate that the Agency

should focus on facilities that a 6-year

old child regularly attends, rather than

facilities that children may visit

intermittently or infrequently, such as

museums, hospitals, grocery stores or

airports.

In selecting the 3-hour, 2-day a week

time requirement for its definition of a

child-occupied facility, the Agency

considered national survey data

compiled by the U.S. Department of

Education (Ref. 4) and the U.S. Bureau

of the Census (Ref. 5). Data from the

Department of Education and the

Bureau of the Census indicate that

children attending preschool between

age 3 and age 6 or under will meet for

a minimum of 3 hours a day, 2 days a

week.

Based on this data, the Agency chose

to define ‘‘child-occupied’’ facilities as

facilities where a child would spend a

minimum of at least 3 hours a day, 2

days a week. Relying on the available

data, the Agency believes its definition

will cover the vast majority of

preschools, kindergartens and day-care

centers. Moreover, the decision to

exclude child-occupied facilities

constructed after 1978 is consistent with

the statutory definition of both target

housing and public buildings, which

exclude both housing and public

buildings constructed after 1978.

The Agency also sought to include

only facilities where there is regular or

recurring visitation, over time, by a

child, by including a combined annual

visitation minimum of 60 hours. The

rationale for this choice was that a likely

minimum recurring visitation schedule

for a child would be a 10-week day-care

session, 2 days per week, 3 hours per

day that would be equal to 60 hours.

Today’s final rule requires that

individuals and firms conducting leadbased paint activities in child-occupied

facilities meet the same training and

certification requirements as individuals

and firms working in target housing.

The Agency designed the training and

certification requirements for

individuals and firms working in target

housing primarily to ensure that

abatement professionals are instructed

on how to conduct lead-based paint

activities to identify, reduce or

eliminate lead-based paint hazards that

may present risks to children.

Consequently, the Agency believes these

requirements are also appropriate for

individuals working in child-occupied

facilities.

Commenters did not support the

development of a set of work practice

standards for child-occupied facilities

that would differ from the work practice

standards in target housing. Nor does

the Agency have any reason to conclude

that a different set of work practice

standards should be developed for

child-occupied facilities. Consequently,

the work practice standards for childoccupied facilities do not differ from

those work practice standards

established by this final rule for target

housing.

The proposed rule specifically

exempted from regulation individuals

who perform lead-based paint activities

within residences which they own,

unless the residence is occupied by a

person or persons other than the owner

or the owner’s immediate family while

the activities are being conducted. The

majority of public commenters

supported this exemption and it will

remain in the final rule. However, some

commenters expressed concern that

homeowners should not perform

abatements in their own home where

there is a child with an elevated blood

lead level. The Agency agrees with this

comment and has changed the final rule

accordingly.

B. Definition of Lead-Based Paint

Abatement in Target Housing and

Child-Occupied Facilities

The Agency received roughly 60

comments on its proposed definition of

lead-based paint abatement. In

developing the proposed rule, the

Agency relied on the definition of

abatement contained in section 401 of

TSCA. Section 401(1) of TSCA defines

abatement as:

. . .any set of measures designed to

permanently eliminate lead-based paint

hazards in accordance with standards

established by the Administrator under this

title. Such term includes:

(A) the removal of lead-based paint and

lead-contaminated dust, the permanent

containment or encapsulation of lead-based

paint, the replacement of lead-painted

surfaces or fixtures, and the removal or

covering of lead-contaminated soil; and

(B) all preparation, cleanup, disposal, and

post-abatement clearance testing activities

associated with such measures.

In its September 2, 1994 proposal, the

Agency defined ‘‘abatement’’ as follows:

Abatement means any set of measures

designed to permanently eliminate leadbased paint hazards in accordance with

standards established by the Administrator

under Title IV of TSCA. Such term includes:

(1) the removal of lead-based paint and

lead-contaminated dust, the permanent

containment or encapsulation of lead-based

paint, the replacement of lead-painted

surfaces or fixtures, and the removal or

covering of lead-contaminated soil; and

(2) all preparation, cleanup, disposal, and

post-abatement clearance testing activities

associated with such measures.

Abatement shall be presumed in the

following circumstances:

(A) projects for which there is a written

contract stating that an individual or firm

will be conducting activities in or to a

dwelling unit that will permanently

eliminate lead-based paint hazards;

(B) projects involving the permanent

elimination of lead-based paint or lead

contaminated soil and conducted by firms or

individuals certified in accordance with this

§ 745.226 or this regulation; or

(C) projects involving the permanent

elimination of lead-based paint or lead

contaminated soil and conducted by firms or

individuals who, through their company

name, promotional literature, or otherwise

advertise or hold themselves out to be lead

abatement professionals.

(3) Abatement does not include renovation

and remodeling, or landscaping activities
45782 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

whose primary intent is not to permanently

eliminate lead-based paint hazards, but is

instead to repair, restore or remodel a given

structure or dwelling, even though these

activities may incidently result in a reduction

in lead-based paint hazards.

In response to the proposal,

commenters expressed concern that the

phrase ‘‘. . .any set of measures. . .’’

implied that the Agency assumed that

abatement will always occur throughout

an entire residential dwelling, rather

than to some subset of components. The

Agency agrees with the commenters and

has clarified its belief that abatements

may be performed on components of

buildings, as well as the whole building,

by adding the following phrase: ‘‘any

measure or set of measures designed to

permanently eliminate lead-based

paint’’ to its definition of abatement in

today’s final rule.

In the proposed rule, by way of

clarification, the Agency provided three

circumstances (see (2)(A)(B) and (C)

above) in which abatement shall be

presumed. Commenters noted that, as

proposed, these illustrative

circumstances may have resulted in the

imposition of today’s requirements

upon individuals and firms conducting

renovation and remodeling or other

similar nonabatement activities.

For example, a renovation and

remodeling contractor may also be

certified as an abatement supervisor or

worker, and may choose to advertise

his/her lead-based paint abatement

services as one specialty his/her

business can provide. This should not

mean that all renovation or remodeling

projects this contractor works on should

be considered abatement for the

purposes of this rule. In response to

these comments, § 745.223(3)(ii) and

(3)(iii) of the abatement definition in

today’s final rule identifies activities

that are not considered abatements.

These include renovation and

remodeling activities covered by

§ 745.223(4) of the abatement defintion

which are not specifically designed to

permanently eliminate lead-based paint

hazards, but instead, are designed to

repair or remodel a residential dwelling,

and interim control activities.

Another issue raised by commenters

was that the Agency’s abatement

definition focused on the intent of the

building owner and the individual or

firm conducting an abatement. The

commenters suggested that the Agency’s

intent-based approach creates a

loophole for building owners and

contractors who will escape regulation

by calling abatement something else,

such as renovation and remodeling. A

third concern was that the definition

required abatement activities to result in

the permanent elimination of a leadbased paint hazard, as opposed to a

temporary reduction of a hazard.

Although these comments are not

without merit, EPA has decided to

maintain its proposed abatement

definition, with some minor

adjustments. EPA believes that the clear

intent of Congress was to focus the

scope of this initial regulation on

abatement activities, and to define

abatements as those projects where

there is a conscious effort on the part of

the building owner and contractor

(‘‘measures designed to’’) to

permanently eliminate lead-based paint

hazards.

In writing its definition of abatement,

Congress did not say any set of

measures ‘‘which permanently

eliminate’’ lead-based paint hazards.

Nor did it say any set of measures

‘‘which have the effect of permanently

eliminating’’ lead-based paint hazards.

Instead, Congress defined abatements as

any set of measures ‘‘designed to

permanently eliminate’’ lead-based

paint hazards. Webster’s defines the

term ‘‘design’’ as ‘‘to intend for a

definite purpose.’’ By including the

phrase ‘‘designed to’’ in its definition of

abatement, EPA believes that Congress

was specifically directing EPA to

regulate as abatements only those

activities which are undertaken with the

definite purpose or intent of

permanently eliminating lead-based

paint hazards.

The reason for this focus can be found

in the legislative history that

accompanies Title X. Prior to the

passage of Title X, and even today,

abatements were being conducted to

reduce or eliminate lead exposure to

children when in fact they were,

because of improper training or

technique, increasing exposures. This

situation, in part, prompted Congress to

direct the Agency to develop today’s

final rule regulating abatement

activities.

Other commenters suggested that the

Agency’s definition of abatement should

specifically include renovation and

remodeling, interim controls, operations

and maintenance, and any other activity

that may disturb lead-based paint and

create a potential hazard.

The definition of abatement in section

401(1) of TSCA includes a list of

specific activities (e.g., removal of leadbased paint, replacement of leadpainted surfaces or fixtures) which are

included within the definition’s scope.

This list is cited by some commenters as

indicating that abatement should

include activities, such as renovation,

that are not necessarily intended to

eliminate lead-based paint hazards.

However, in providing this list,

Congress did not intend that it be read

or applied in isolation from the

preceding intent-based definitional

language. The list provided in section

401(1)(A) and (B) merely identifies some

of the ‘‘measures’’ that may be taken by

a contractor to ‘‘permanently eliminate

lead-based paint hazards.’’ EPA believes

that, for any of the measures specified

in section 401(1)(A) and (B) to be

considered abatement, they must also be

conducted with the intent or ‘‘definite

purpose’’ of permanently eliminating

lead-based paint hazards.

Clearly, Congress recognized that

these other activities, such as renovation

or remodeling, may disturb lead-based

paint and may result in lead-based paint

hazards. In response to this concern,

Congress directed the Agency, under

section 402(c), to conduct a study to

determine the extent to which

renovation and remodeling activities

may create lead-based paint hazards.

Based on the results of this study,

section 402(c)(3) of TSCA directs EPA to

revise today’s regulations to address the

lead-based paint hazards associated

with renovation and remodeling. Thus,

rather than requiring regulations now

for all non-abatement activities, section

402 of TSCA directs EPA to defer such

regulation pending further study to

determine which, if any, renovation and

remodeling-type activities create a leadbased paint hazard.

IV. Relationship of Sections 402 and

404 to Section 403 of TSCA

Under section 403 of TSCA, EPA is

developing a rule that will identify

conditions of lead-based paint, and lead

levels and conditions in residential dust

and soil that would result in a hazard

to building occupants, especially

children age 6 and under. In

combination with the work practice

standards contained in § 745.227 of

today’s final rule, the Agency expects

that the levels and conditions identified

in the TSCA section 403 rule will

provide clear direction on how to

identify, prioritize and respond to

hazards from lead in and around target

housing.

Promulgation of the TSCA section 403

rule, however, has been delayed until

the Agency completes various

information gathering and assessment

activities. On January 3, 1996, the

United States District Court for the

Northern District of New York issued a

decree, consented to by EPA and the

Atlantic States Legal Foundation

(ASLF), that requires EPA to propose

the TSCA section 403 rule by November

30, 1996 and to issue a final rule by

September 30, 1997 (Ref. 8).
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45783

In the interim, the Agency has

published guidance to assist the public

in identifying lead-based paint hazards,

sources of lead exposure, and the need

for control actions in environments

where children may be present.

EPA originally issued this guidance in

a July 14, 1994 memorandum from Lynn

R. Goldman, Assistant Administrator for

Prevention, Pesticides and Toxic

Substances, to the Agency’s Regional

Division Directors, entitled ‘‘Guidance

on Residential Lead-Based Paint, LeadContaminated Dust, and LeadContaminated Soil’’ (the ‘‘section 403

Guidance’’). Subsequently, copies of the

section 403 Guidance have been

available from the Agency upon request.

To further disseminate the section 403

Guidance, the Agency published the full

text of that document in the Federal

Register on September 11, 1995 (60 FR

47248) (FRL–4969–6).

In the September 2, 1994 preamble,

the Agency provided a lengthy

discussion of the relationship between

the section 402/404 regulations and the

forthcoming section 403 regulation. The

Agency explained why it believed it was

appropriate to offer the section 402/404

rule for public comment, in the absence

of a section 403 regulation (See 59 FR

45875).

In response, the Agency received

several public comments. None of the

comments stated that the Agency should

not promulgate a final regulation for

lead-based paint activities in target

housing without a final section 403 rule.

Seven comments were received from

parties with an interest in public and

commercial buildings, superstructures

and bridges, urging the Agency to delay

promulgating a TSCA section 402/404

rule covering those types of structures

until the section 403 rule has been

promulgated. As discussed previously,

today’s final rule does not address these

building types, and thus these

comments are not applicable.

Lastly, one commenter stressed the

importance of publishing the TSCA

section 403 rule as quickly as possible,

but did not suggest that delaying action

on the TSCA section 402/404 rule was

necessary.

The Agency understands that without

a final section 403 rule identifying leadbased paint hazards, full

implementation of today’s final rule will

be difficult. The Agency has addressed

this problem in the ASLF consent

decree, by committing to promulgate a

final rule under section 403 by

September 30, 1997, well before subpart

L of this rule will become effective in

EPA administered States and Indian

Country.

V. Response to Comments on the

Accreditation of Training Programs in

Target Housing and Child-Occupied

Facilities

Section 745.225 includes various

requirements and the application

procedures that training programs must

follow to become accredited by EPA to

provide instruction in the lead-based

paint activities and work practice

standards described in this rule. These

procedures and requirements apply to

training programs that will offer both

basic and refresher training courses.

Training programs may offer courses

for one or more of the following five

work disciplines: (1) Inspector, (2) risk

assessor, (3) supervisor, (4) abatement

worker, and (5) project designer.

Minimum curricula requirements for

each of these courses can be found at

§ 745.225(d).

The Agency has already developed

and released model course curricula

materials for the inspector, risk assessor,

supervisor and abatement worker

disciplines. The Agency is currently

modifying and updating these materials,

and developing a new model course for

project designers, to reflect the course

curricula contained in § 745.225(d). EPA

will make these materials available prior

to August 31, 1998.

The Agency received a variety of

comments on the work disciplines,

training courses and accreditation

procedures in the proposed rule. Among

the key issues raised were: the number

of work disciplines; the length of the

courses; their traditional classroom

approach; the course curricula; the

course test and hands-on assessment;

instructor qualifications; and the

procedures for applying for

accreditation.

In response to these comments, the

Agency has adjusted the proposed rule

in several ways. EPA believes these the

adjustments will result in a more

flexible accreditation system for both

training program providers and for

individuals seeking training and

certification through that system.

A. Framework for Training

Generally, most commenters agreed in

principle with the tasks and

responsibilities identified by the Agency

under its five work disciplines:

inspector, risk assessor, supervisor,

worker, and project designer. On the

other hand, commenters were divided

on whether five separate work

disciplines and training courses were

needed to accomplish the tasks and

objectives associated with inspection,

risk assessment and abatement. In

general, commenters were concerned

with the potential for redundancy and

overlap among the proposed five

training courses.

Although the final rule retains five

distinct work disciplines, as originally

proposed, the Agency has made several

changes to make the courses more

modular in their design, eliminate

potential redundancies in the course

curricula, and reduce course length.

Because of these changes, the Agency

believes that the market will be better

able to manage and more efficiently

provide training to individuals

responsible for performing lead-based

paint inspection, risk assessment and

abatement activities.

The Agency has consulted with

OSHA to eliminate any redundancies

between the course curricula contained

in § 745.225(d)(3) and (5) for the

abatement supervisor and worker, and

the training program OSHA has

established under its interim final lead

standard (29 CFR 1926.62). Based on

discussions with OSHA and a review of

public comments, the Agency has

decided that the best way to eliminate

any redundancies or confusion

regarding OSHA training versus EPA

training is to remove OSHA’s training

program elements from the course

curricula contained in § 745.225(d)(3)

and (5).

As a result, training programs have

the option of offering courses in: (1)

OSHA training; (2) EPA training; or (3)

both OSHA and EPA training. Only

those programs that wish to offer EPA

training would need to apply for

accreditation under this rule.

A key difference between OSHA and

EPA training is that OSHA training is

primarily designed to reduce the

occupational exposure to lead for

construction workers. The OSHA

standard establishes maximum limits of

exposure to lead for all workers covered,

including an action level of 30 μg/m3

calculated as an 8–hour time-weighted

average (TWA). At or above this action

level, workers are subject to OSHA’s

training requirements, which primarily

involve instruction in respirator use,

engineering and work practice controls

for the containment of lead, and OSHA’s

medical surveillance program.

In contrast, the primary purpose of

EPA training for abatement workers,

supervisors and project designers is to

protect building occupants, particularly

children ages 6 years and younger, from

potential lead-based paint hazards and

exposures both during and after an

abatement.

The deletion of OSHA’s training

program elements has helped reduce the

length of the abatement worker course

from a proposed 32–hour course
45784 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

(including 10 hours of hands-on

instruction) to 16 hours (including 8

hours of hands-on instruction). The

Agency has also reduced the emphasis

on providing instruction in basic

construction techniques and focused

instead on the practical application of

abatement methods and practices. The

Agency believes providing adequate

instruction on both construction and

abatement techniques, even in a 32–

hour course, would have been very

difficult, if not impossible.

Furthermore, the final rule has

retained 8 of the 10 hours of hands-on

instruction, as proposed. Commenters

were extremely supportive of the handson requirements of the rule, and the

Agency believes that hands-on training

helps trainees to retain the knowledge

they acquire. Incorporating, as it does, 8

hours of hands-on training, the Agency

believes that the 16–hour requirement

in the final rule will enable workers to

conduct safe, reliable and effective

abatements.

Another change designed to reduce

course length and eliminate overlap in

the rule is the decision to establish one

32–hour course requirement that both

supervisors and project designers will

take, and to establish an additional 8–

hour course supplement that project

designers are required to take.

Under the proposed rule, supervisors

and project designers would have been

required to take one 40–hour course,

and project designers would have been

required to take an additional 16–hour

course supplement. Most of the

comments on the proposal suggested

that the Agency could combine some of

the course topics from the two classes.

As in the proposed rule, the Agency’s

premise for developing one course for

both supervisors and project designers

is the similarity in the job

responsibilities of these two work

disciplines. Areas where the supervisor

and project designer share similar

learning needs are listed in the course

curriculum at § 745.225(d)(3). Some of

the course topics (e.g., risk assessment/

inspection report interpretation) reflect

the Agency’s decision to insert topics

from the proposed project designer

course into that of the final joint

supervisor/project designer course.

For example, the ability to interpret

inspection and risk assessment reports

is a skill that both supervisors and

project designers must have, since they

are both responsible for either the

oversight of abatement activities or are

responsible for designing abatement

plans based on the results of inspections

and risk assessments.

The course supplement for project

designers is intended to provide specific

instruction in designing lead-based

paint abatement activities in target

housing and child-occupied facilities.

Clearly, this 8–hour course cannot train

an individual in all aspects of project

design. However, the course will

compliment the education and skills

that project designers must have (e.g., a

degree in engineering or 4 years

experience in building construction and

design) by providing lead-specific

design instruction.

The Agency also received several

comments regarding the training for

inspectors and risk assessors. Many

commenters requested clarification

about whether an individual must take

both the inspector and risk assessor

course as a part of the process to become

certified as a risk assessor. The simple

answer is yes; however, the inspector

and risk assessor courses do not

necessarily have to be taken back-toback. Training providers have the

option of offering the inspector course

separate from the risk assessor course,

although the provider may choose to

offer the two courses as one unit. More

detail regarding the certification process

for inspectors and risk assessors is

provided in Unit VI. of this preamble.

An additional change to the rule is the

allowance for alternative training

methods, including supplemental athome study programs. The Agency

specifically requested comment on the

use of at-home study materials and

other alternative training methods in its

September 2, 1994 proposal. Most of the

comments received on this issue

supported the use of alternative training

methods in lieu of classroom

instruction, with certain restrictions.

Commenters opposed to the use of

alternative training methods generally

expressed reservations regarding the

quality of such methods and the need

for the teacher/student interaction

afforded in the classroom.

Based on a review of these comments,

the final rule permits the use of

alternative training techniques (e.g.,

video training, computer-based training)

as a supplement to the hands-on skills

assessment or as a substitute for the

lecture portion of the training course

requirements outlined in § 745.225(d).

The Agency agrees with commenters

who note that alternative training

programs, such as at-home study, can

result in the effective transfer of

information, if certain restrictions are

implemented to ensure the quality of

these programs.

To ensure the quality of such

alternative programs, the final rule

requires training providers who opt to

use alternative techniques to submit all

materials as specified under

§ 745.225(b)(1) as a part of their

application for accreditation. These

materials include copies of the course

agenda, and student and instructor

manuals.

The accreditation of alternative

training programs will be based on

EPA’s review of the training materials

submitted under § 745.225(b)(1),

including the course agenda and

manuals. In its review, the Agency will

consider on a case-by-case basis the

provisions made by a training program

to ensure the quality of its course

materials. Based on that review, the

Agency may accredit programs offering

alternative training and instructional

methods.

In addition, § 745.225(c)(6) of the final

rule also requires all training programs,

including those using alternative

training methods, to meet the minimum

hourly requirements for hands-on

activities in their training courses.

Under § 745.225(c)(7), all training

programs are also required to administer

a course test and conduct a hands-on

skills assessment or a proficiency test as

discussed below.

One specific example of alternative

training/testing techniques that the rule

mentions is the use of a proficiency test

in lieu of a hands-on assessment and

course test. A course that offers a

proficiency test would consist primarily

of an evaluation of the effectiveness and

reliability of a student’s ability to

conduct a particular lead-based paint

activity. The proficiency test must also

cover all of the topics and skills

addressed in a particular course. For

instance, a proficiency-based course in

inspection could involve a mix of

lecture material with students

conducting a mock inspection in a

residential dwelling with known leadbased paint concentrations. The student

would be evaluated on the accuracy of

the results of their inspection.

One other issue raised by commenters

was the lack of detail on specific

activities for the ‘‘hands-on’’ component

of a course. The Agency has not

however, modified the final rule to

specify activities that training programs

must use for the hands-on component of

their courses. The Agency still believes

that qualified training programs should

be able, without additional regulation,

to develop specific hands-on activities

based on their knowledge of lead-based

paint activities and the industry.

Furthermore, the Agency notes that, as

the technologies for conducting leadbased paint activities develop, the focus

of the elements of hands-on training

will change. The course topics required

to have a hands-on component are
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45785

marked with an asterisk in § 745.225(d)

of the regulatory text.

B. Training Program Accreditation

Requirements

1. General comments. The Agency

received a significant number of

comments on the qualifications

proposed for instructors. Additionally,

commenters requested clarification on

whether the Agency requires training

providers to offer courses for

individuals who do not speak English,

or who have low reading

comprehension. Other commenters

asked the Agency to clarify or change

specific aspects of the proposed

accreditation process.

For example, several commenters

requested clarification on the number of

instructors that a training program must

employ to become accredited. Some

commenters thought that under the

September 2, 1994 proposal, a training

program would be required to employ a

minimum of three individuals to obtain

accreditation: a training manager, a

principal instructor and a work practice

instructor. Other commenters

interpreted the proposed rule to mean

that at a minimum only one

individual—the training manager—was

required to staff a training program.

On this same topic, some commenters

criticized the proposal for setting up an

‘‘exclusive’’ training system. They

believed that the proposed experience,

education and other qualifications for

the training manager, and principal and

work practice instructors were

excessive. These commenters stated that

the proposed qualifications were

unnecessary, and that they would

prevent competent and talented

instructors from offering training in

lead-based paint activities. Under the

final rule, one person may be employed

as both the training manager and the

principal instructor, if the individual

possesses the qualifications listed at

§ 745.225(c)(1) and (2).

Furthermore, the Agency observes

that the final rule no longer includes

work experience or educational

prerequisites for work practice

instructors, but instead allows training

programs to employ guest work practice

instructors, who may provide either

lecture or hands-on instruction in a

course.

Some commenters urged the Agency

to stipulate specific qualifications for

guest instructors, or to limit the amount

of time a guest instructor may be

employed by a training program. The

final rule does not, however, set such

limits. The Agency believes that it

would be too difficult to regulate the

qualifications of the many kinds of

inter-disciplinary guest instructors that

a training program might want to

employ, given that their backgrounds

and credentials will vary significantly.

For example, physicians, certified

abatement supervisors, lawyers, housing

officials and other professionals could

possibly be employed as guest

instructors. Given the diversity in

education, training and experience

among these professionals, the Agency

does not believe that establishing

specific qualifications is either possible

or useful and the final rule leaves that

determination to the training manager.

In terms of setting a limit on the

amount of time that a guest instructor

may be used, the Agency has placed the

responsibility for ensuring the quality of

a training course on the training

manager. The Agency believes that the

decision for determining how much

time a guest instructor should be used

is a decision best made by the training

manager, in consultation with the

principal instructor.

Additionally, the Agency notes that

the training manager ultimately is

responsible for ensuring the quality of

instruction, and that it is in the best

interest of a training manager to account

for the capabilities and experience of

the principal instructors.

Lastly, the Agency notes that today’s

final rule does not require training

providers to offer courses for

individuals who do not speak English or

who have a low reading comprehension.

The Agency believes that training

providers should be given the flexibility

to offer special courses for such

individuals, depending on demand.

However, the Agency does recommend

that training providers make special

provisions to accommodate the needs of

individuals who cannot speak English,

or who have a low reading

comprehension.

2. Prerequisites—training manager. In

addition to these changes, today’s final

rule more clearly describes the

prerequisites for the training manager.

For example, under the proposed rule

the qualifications required for a training

manager were flexible and intended to

accommodate a broad range of work

experience and educational

backgrounds. Specifically, the proposal

would have required that training

managers, at a minimum, possess either

some training or education in teaching

adults. In addition, the proposal would

have required that training managers

possess experience or education in one

of three additional areas, specifically:

(1) A bachelor’s or graduate degree in

building construction technology,

engineering, industrial hygiene, safety,

or public health, or (2) 4 years of

experience managing an occupational

health and safety program, or (3) an

additional 2 years of experience

teaching adults.

The final rule has been revised,

however, to require training managers to

meet any one of the four prerequisites

now listed at § 745.225(c)(1). As

discussed later in this section of the

preamble, the prerequisites contained in

the final rule are different from those

proposed and include the addition of a

fourth alternative prerequisite under

§ 745.225(c)(1)(iv).

Additionally, the final rule no longer

contains the requirement that all

training managers possess either

training or education in teaching adults.

The Agency’s decision to eliminate the

training or educational requirement in

adult education was based on its review

of several comments. These comments

suggested that, although training or

experience in adult education may be

valuable, it should not be required of all

training managers, given that the

primary function of the training

manager is to administer and manage a

training program—not necessarily to

instruct adults. The Agency agrees with

these comments, but notes that the final

rule maintains the 2 years of experience

in adult education as one of the four

prerequisites that can now be used to

qualify an individual as a training

manager.

The decision to retain the 2 years of

experience in adult education as one of

the four available prerequisites for

qualifying training managers is based on

several factors. The most important

factor is the Agency’s desire to

accommodate the broad range of work

experience and educational

backgrounds that training managers and

instructors may bring to their work. This

approach, which most commenters

widely supported, has been retained

and further extended under

§ 745.225(c)(1) of the final rule.

For instance, in addition to

recognizing bachelor or graduate level

degrees in building construction,

engineering, industrial hygiene, safety

or public health, the final rule also

would permit individuals who possess

a degree in business administration or

education to assume the responsibilities

of a training program manager.

Although these experiences may

differ from one another, the Agency

believes that an individual can

effectively utilize them to ensure the

development of a quality training

program. Furthermore, the Agency’s role

in the accreditation process also will

contribute to the development and

establishment of quality lead-based

paint activities training programs.
45786 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

3. Prerequisites—principal

instructors. The final rule also provides

a great deal of flexibility in recognizing

the work experience and educational

backgrounds of principal instructors.

For example, instead of specifically

listing the type of training, experience

or education in teaching adults that a

principal instructor must possess—as

had been proposed—the final rule now

requires only that a principal instructor

possess demonstrated experience in

teaching adults. This change is based on

numerous comments that objected to the

specificity in the proposed rule,

particularly the requirement that

principal instructors do one of the

following: (1) Complete a 40-hour trainthe-trainer course, or (2) obtain a degree

in adult education, or (3) possess at least

2 years of experience in teaching

workers/adults.

Most of the comments on this

requirement stated that a 40–hour trainthe-trainer course was too long and/or

that the educational degree or 2–year

work experience requirement was

excessive. Other commenters requested

clarification on what constituted 2 years

of work experience, and noted that a

40–hour train-the-trainer course was not

available for the purposes of qualifying

principal instructors.

Based on its review of this proposed

requirement and in response to these

comments, the Agency revised the final

rule to require that principal instructors

possess demonstrated experience,

education or training in teaching

workers/adults, as well as a minimum of

16 hours in lead-specific training.

Commenters on the proposal also stated

that requiring principal instructors to

have 2 years experience in the

construction industry would limit the

number of qualified instructors. In

response, the Agency now requires that

principal instructors possess

demonstrated experience, education or

training in lead or asbestos abatement,

painting, carpentry, renovation,

remodeling, occupational safety and

health or industrial hygiene.

Although the term ‘‘demonstrated’’ is

very broad, the Agency believes that the

final rule should accommodate the wide

range of experiences that principal

instructors may have acquired in

teaching adults. This requirement will

allow an instructor to demonstrate,

through a variety of materials—official

academic transcripts, resumes, letters of

reference, certificates from training

courses—that they possess the skills or

experience necessary to provide

effective instruction. This approach is

preferable to attempting to develop an

exhaustive list of work experiences or

academic degrees, that will invariably

omit an unthought-of, but relevant, job

title.

C. Accreditation Application Process

The Agency received a variety of

comments on the process of applying for

accreditation. Some commenters

indicated that the Agency should have

required more documentation as a part

of the application process, while other

commenters felt that fewer documents

and less information were needed to

complete an application package.

The information and materials to be

submitted by training programs as a part

of the application process are specified

at § 745.225(b)(1) in today’s final rule.

With some minor exceptions, as

described below, EPA has retained most

of the information and documentation

requested from the proposed rule.

For example, the Agency will no

longer require that training programs

submit examples of course completion

certificates, since it is unlikely that

receipt of such copies will help prevent

fraud or misrepresentation of such

certificates.

As a matter of clarification, a few

commenters thought that the proposed

rule would have required that training

programs submit to EPA the

documentation listed at § 745.225(c)(4),

as proof of the qualifications of its

instructors. Under the final rule, the

Agency has now clarified that it does

not require these documents as part of

the application process for

accreditation. Rather, they are to be

retained at the training site and must be

made available to the Agency in the

event of an inspection, audit or an

enforcement action.

Comments also were received asking

the Agency to specify the facilities and

type of equipment needed to deliver

quality training, and clarification on

whether training programs should

submit separate descriptions of facilities

and equipment when conducting off-site

training.

In its review of these requests, the

Agency believes that some commenters

felt EPA should assist the training

community in establishing a floor for

the type of equipment investments that

a training facility should make. EPA

disagrees that it should play a direct

role as a part of the regulatory process

in these matters. The Agency also

believes it is not necessary to specify the

facilities, type of equipment and other

related details that training programs

should employ as a part of their routine

operations.

Rather, the Agency believes that

training providers should review the

course curriculum requirements

contained in § 745.225(d) of the final

rule, and, if possible, obtain copies of or

information on the model course

curricula developed by the Agency. This

type of information should assist in

determining the type of equipment and

other materials that will be needed to

provide instruction in lead-based paint

activities.

Other commenters asked the Agency

to specify the content of a course test

blueprint and the activities that should

be included as a part of the hands-on

assessment. The test blueprint should

outline the training objectives of the

course. Presumably, these objectives

will be the basis for developing course

test questions, and providers should

indicate that. The Agency does not

believe it needs to further clarify, for

qualified training providers, what

activities constitute hands-on training.

Training providers should be able to

develop suitable hands-on exercises to

meet the accreditation requirements

given the direction provided in the rule.

Several comments were received on

the Agency’s requirement that, in order

to provide refresher training courses in

one or more disciplines, a training

program must either simultaneously

apply for accreditation to teach the

corresponding full length course(s) or

already be accredited to teach the

corresponding course. Among the

comments received on this requirement,

a small majority favored it.

Despite this support, the Agency has

eliminated this requirement for several

reasons. One is that the Agency

recognizes that under the grandfathering

provisions contained in § 745.226(d)

there is likely to be a high level of

demand for refresher training, once

§ 745.225 becomes effective. Therefore,

the Agency believes that maximizing the

opportunities for providers to offer

refresher training courses will be

necessary to assist the training

community in meeting the demand for

these courses. Under § 745.225(e),

training programs will be required to

link the instruction and testing provided

in a refresher training course with the

course topics contained in § 745.225(d),

as appropriate. This will help ensure

consistency between EPA’s full-length

and refresher training curricula.

Furthermore, the policy of permitting

training programs to offer refresher-only

training—without a precondition of

offering full-length courses—is

consistent with other Agency directives

and policies issued under the Asbestos

Hazard Emergency Response Act of

1986.
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45787

D. Re-accreditation of Training

Programs and Quality of Instruction

Section 745.225(f) contains

requirements to ensure the continued

availability of quality training by

requiring training providers to apply for

re-accreditation every 4 years. The

reaccreditation process is very similar to

the initial application process.

Commenters were generally

supportive of the requirements for reaccrediting training providers, although

a few commenters suggested that

training providers should be reaccredited more frequently than every 3

years. They reasoned that reaccreditation is necessary more than

once every 3 years because of rapid

technological changes in the lead-based

paint activities field and the need to

ensure that training courses provide

instruction in the most current

technology.

The Agency disagrees with this

comment. Under the accreditation

program established by today’s final

rule, EPA will maintain a list of

accredited training programs. When a

technological advance or other

significant information develops that

EPA believes would benefit the leadbased paint activities training

community, EPA will provide this

information to the accredited training

providers. The Agency believes that

keeping training providers informed of

recent advances in technology allows

training providers to be re-accredited

every 4 years.

Some commenters expressed concern

that the rule would not ensure that a

training program would continue to

offer the same quality of instruction in

the years after initial accreditation.

Further, these commenters were

concerned that the proposed reaccreditation requirements did not fully

address this issue. In response, the

Agency has changed the final rule to

require that training providers include a

description of changes to training

facilities or equipment since their last

application was approved. This

description should only include

changes that would adversely affect the

ability of students to learn. An example

of such a change would be the loss of

facilities to be used for hands-on

instruction.

In order to further improve the quality

of instruction, the Agency is exploring

the possibility of providing pass/fail

data from the third-party certification

exam to training providers for their

students. This information can be used

by the provider to adjust their

curriculum or instruction over time to

maintain an acceptable (as determined

by the provider) pass rate.

VI. Response to Comments on the

Training and Certification of

Individuals

Today’s final rule recognizes five

work disciplines: inspector, risk

assessor, supervisor, abatement worker,

and project designer. Training

requirements and certification

procedures for individuals working

within these disciplines are established

under § 745.226 of this rule. These

include specific training, education

and/or experience requirements and, for

the inspector, risk assessor and

supervisor disciplines, passage of a

certification examination.

In response to comments, the Agency

has simplified the titles for some of the

work disciplines: the ‘‘inspector

technician’’ is now called the

‘‘inspector’’; the ‘‘inspector/risk

assessor’’ is simply the ‘‘risk assessor’’;

and the ‘‘project designer/planner’’ is

now the ‘‘project designer.’’

Under today’s final rule, certified

individuals may only perform leadbased paint activities in the following

work disciplines:

Certified inspectors may perform

inspection and abatement clearance

activities as described in § 745.227(b)

and (e)(8) and (e)(9);

Certified risk assessors may perform

inspection, abatement clearance, leadhazard screen or risk assessment

activities, as described in § 745.227(b),

(c), (d), and (e)(8) and (e)(9); and

Certified supervisors, abatement

workers and project designers may

perform abatement activities as

described in § 745.227(e).

The final rule also does not limit or

define the circumstances under which a

project designer must be used. In the

proposal, the Agency would have

required the use of a project designer on

all abatement projects of 10 residential

dwellings or more. The Agency is

concerned that such a requirement

would be too inflexible and would not

account for the varying complexity of

abatement projects. The Agency did not

find compelling support among

commenters for this provision, and it

has been eliminated. The Agency will

provide training and certification for

individuals who seek to offer abatement

project design services, but it is the

building owner who must decide if a

project designer is needed on a

particular project.

Another change to the final rule is the

extension of the recertification interval

from the 3 years proposed to 5 years, for

individuals who have passed a

proficiency test as part of their training.

(See the discussion of proficiency

training in Unit V. of this preamble).

The rationale for this change is that

such an individual will have

demonstrated a high level of proficiency

in the field in which they are certified,

and thus it is presumed that they would

require less frequent re-training.

Comments on the training and

certification requirements for

individuals working in the lead-based

paint activities field focused on two key

areas: the applicability of specific

education and experience prerequisites

as a part of the certification process; and

the use of an examination in the

certification process.

A. Training, Education and/or

Experience Requirements

In general, commenters agreed with

the proposed rule’s five designated work

disciplines and the lead-based paint

activities associated with each, with

some minor exceptions. A key issue

raised by commenters, however, was the

Agency’s establishment of specific

education and/or experience

requirements.

Although the Agency neither

proposed nor requested comment

specifically on the possibility of

exempting any industry or group of

professionals from either part or all of

its proposed training and certification

requirements, several requests were

received for such exemptions.

Commenters submitted requests for

some type of exemption for the

following professions, among others:

certified industrial hygienists,

professional engineers, licensed

architects, toxicologists, code

enforcement officials, safety

professionals, nurses, social workers

and environmental professionals, and

‘‘experienced’’ State and local health

officials.

Among the comments in support of

exemptions, proposals ranged from

blanket exemptions to, more commonly,

various forms of partial exemptions. At

least one commenter provided an

alternative training course deemed more

suitable to its members than the course

proposed by EPA. This commenter also

requested that the Agency recognize

various levels of competency among the

members of its organization, and

suggested a tiered approach for

exempting individuals from particular

training requirements to address those

levels of competency.

Although most of the commenters

were seeking an exemption from the

training and certification requirements

for the risk assessor discipline, other

similar requests were sought for the
45788 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

supervisor, project designer and

inspector disciplines.

Commenters representing various

trade organizations based their reasons

for seeking a training exemption on the

level of education and/or experience

their professional members already

possess. In some instances, commenters

also referenced an existing certification

process that their members must

undergo and implied that this

certification process equaled or

exceeded the certification process

proposed by the Agency for lead-based

paint professionals.

In general, the Agency agrees that the

basic work experience and/or

educational requirements of many

nationally recognized certification

programs either meet or exceed the

experience and/or educational

prerequisites contained in today’s final

rule under § 745.226(b) and (c). Several

of these certification programs are

covered by § 745.226(b)(1)(iii)(B)(3) of

the rule, including programs sponsored

by the American Board of Industrial

Hygiene, the National Society of

Professional Engineers and the Board of

Certified Safety Professionals.

Additionally, members of other

organizations who possess the

minimum work experience and/or

educational requirements contained in

§ 745.226(b) or (c) also may qualify to

become certified under today’s final

rule.

However, the Agency disagrees that

work experience and/or educational

prerequisites alone ought to be

sufficient for the purposes of certifying

individuals to conduct lead-based paint

activities. Further, the Agency does not

believe that the certification programs

identified by commenters adequately

address and specifically provide

training in the identification, evaluation

and abatement of lead-based paint and

its associated hazards. Notably, none of

the commenters provided the Agency

with evidence of a currently available

training course and/or module that

expressly addresses lead-based paint

activities as part of their professional

certification process. Furthermore,

commenters did not present evidence

that their certification programs

included hands-on instruction in the

conduct of lead-based paint activities,

which is a critical element of the

training courses in today’s final rule.

Therefore, although the certification

requirements contained in § 745.226(b)

and (c) recognize a broad range of work

experiences and educational

backgrounds as the first step in

qualifying to become an inspector, risk

assessor, supervisor, project designer or

abatement worker, the final rule does

not provide for any training exemptions.

A primary reason is that the lead-based

paint activities field is a new field, and

that a majority of the individuals

entering it—despite their expertise in

similar fields—may not possess either

direct experience, or an education that

has focused on the identification and

elimination of lead-based paint hazards.

Consequently, the Agency believes that,

in most cases, individuals entering the

lead-based paint activities field will

need specialized training. The Agency is

willing to work with professional

organizations and other groups that

want to develop training courses for

their members that meet EPA’s

accreditation requirements.

However, the Agency is aware that

there are individuals and groups who

have been working in the lead-based

paint activities field prior to the

promulgation of today’s final rule.

These individuals need to reference

§ 745.226(d) of the final rule which

contains the Agency’s criteria for

recognizing the work experience,

education and training, or on-the-job

training that individuals may have

received prior to the effective date of

§ 745.225.

If an individual determines that he or

she meets the requirements contained in

§ 745.226(d), the individual may apply

for certification under the reduced set of

requirements and within the limitations

contained in that section. Under these

requirements, qualified individuals are

required to successfully complete a

refresher training course specific to the

certification they are seeking, and if

required under § 745.226(b), to pass a

certification examination.

In addition to the broad issue of

exemptions, comments also were

received on various educational and

experience requirements specific to the

inspector, risk assessor and supervisor

disciplines. Under the proposed rule,

the Agency had opted not to impose

educational and experience

requirements for either the abatement

worker or project designer. This was

due primarily to language in Title X,

section 1004(3)(B)’s definition of

‘‘certified contractor’’ as it pertains to

these two disciplines.

However, based on overwhelming

support among commenters, today’s

final rule adds educational and

experience requirements for the project

designers, though not for workers. These

requirements are contained in

§ 745.226(c)(1)(ii)(B), and include either:

(1) A bachelor’s degree in engineering,

architecture, or a related profession and

1 year of experience in building

construction and design or a related

field; or (2) 4 years of experience in

building construction and design or a

related field.

The basis for this requirement is

EPA’s belief, as reflected by a majority

of commenters, that a project designer

should have significant work

experience, or a professional degree and

some experience, in building design, or

a related field, such as architecture or

civil engineering.

Although the support was not nearly

as broad or consistent, commenters also

asked for modifications to the education

and experience requirements for the

inspector and risk assessor disciplines.

Specifically, some commenters

suggested that the Agency require that

an inspector possess at least a high

school diploma or equivalent to obtain

certification. The Agency declined to

include this requirement as a part of the

certification process for inspectors, in

part, based on its desire to provide

individuals with an entry level position

into the lead-based paint activities field.

In response to comments that a high

school degree or equivalent is needed to

ensure a minimum level of competency

among inspectors, the Agency believes

that its training requirements and the

certification examination will ensure an

acceptable level of competency.

In the case of education and/or

experience requirements for risk

assessors, the proposed rule has been

modified at § 745.226(b)(1)(iii)(B) to

clarify the various mixes of education

and experience that are acceptable for

certification as a risk assessor. As

discussed in the proposed rule, the

educational and experience

requirements for risk assessors are

extremely important, given the pivotal

role of a risk assessor in evaluating and

presenting options to reduce lead-based

paint hazards. The certified risk assessor

must be qualified to make a competent,

and rational assessment of the location

and severity of any lead-based paint

hazards. Based on that role, the Agency

has developed work experience and/or

educational prerequisites, which in

combination with the training contained

in § 745.225(d)(1) and (2) and the work

practice standards contained in

§ 745.227(b), (c), (d) and (e), will enable

the risk assessor to identify risks

associated with lead-based paint

hazards and to develop options to

eliminate those hazards.

These credentials are very similar to

those contained in the proposed rule

with the exception that certified

industrial hygienists, professional

engineers, registered architects and

other professionals listed under

§ 745.226(b)(1)(iii)(B)(3) are not required

to possess 1 year of experience before

becoming trained as risk assessors. The
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45789

decision to eliminate the 1 year of

experience was based on the Agency’s

review of comments and the fact that

many professional certification

programs already incorporate various

work experience prerequisites, which in

some cases are comparable to the

prerequisites listed in the proposed rule.

For example, to register as a

professional engineer, an individual is

required to possess a 4–year degree, and

4 years of progressive experience on

engineering projects. The program for

certified safety professionals also

includes a 4–year degree and the 4–year

work experience requirement.

Furthermore, the Agency notes that

the academic training of these

professionals also may cover subjects

relating to building design,

construction, environmental

remediation and other areas relevant to

lead-based activities.

The Agency also notes that it does not

necessarily view the alternative work

experience and/or educational

prerequisites listed under

§ 745.226(b)(1)(iii)(B) for risk assessors;

§ 745.226(b)(1)(iii)(C) for supervisors;

and § 745.226(c)(1)(ii)(B) for project

designers as necessarily equivalent.

Rather, as was the case in establishing

experience and/or educational

prerequisites for training program

managers and principal instructors, the

Agency’s intention is to recognize a

broad range of relevant qualifications

that individuals entering the lead-based

paint activities field are likely to

possess.

For example, the experience and

education of a certified industrial

hygienist who has worked in the

chemical industry may be very different

from that of a professional engineer who

has worked in building construction.

However, the Agency believes that both

these individuals can be trained as risk

assessors.

B. Passage of the Certification

Examination

In addition to training requirements

and educational and experience

requirements, individuals seeking to

become certified as inspectors, risk

assessors and supervisors are required

to pass a certification examination, in

addition to a course examination. The

purpose of the certification examination

is twofold.

One reason for the examination is to

ensure that each individual certified

under today’s regulations will possess a

minimum, acceptable level of

knowledge and understanding of the

tasks and responsibilities associated

with the relevant work discipline. Other

major functions of the certification

examination are to provide a universal

tool to measure an individual’s

knowledge, and to encourage States or

Tribes to enter reciprocal certification

arrangements with other States or

Tribes.

Comments on the utility of a

certification examination were generally

supportive. Commenters understood the

function of the examination and agreed

to it in principle. Nonetheless,

commenters, particularly State

commenters, stressed that EPA

incorporate security and quality control

measures to ensure the integrity of the

examination. Additionally, States

indicated that they did not necessarily

want to adopt EPA’s certification

examination, but might want to develop

their own examination or use the EPA

examination and add a State specific

component.

In response, outside the regulatory

framework of this rule, the Agency has

been working closely with the States to

develop a certification examination. In

general, the goal of the certification

examination process is to give each

State the flexibility it desires to fashion

its certification program, while at the

same time ensure a consistent national

level of competence in the lead-based

paint activities workforce. As currently

designed, the exam will include

provisions to maintain the security of

the item bank of questions.

VII. Framework for Work Practice

Standards for Conducting Lead-Based

Paint Activities in Target Housing and

Child-Occupied Facilities

A. Introduction

Section 745.227 establishes standards

for conducting three lead-based paint

activities: inspection, risk assessment

and abatement. In addition, § 745.227

provides requirements for conducting

three related tasks that may be

performed as either single tasks or as a

part of an inspection, risk assessment or

abatement. These three tasks are: a lead

hazard screen, laboratory analysis, and

composite dust sampling. Section

745.227 also establishes certain

recordkeeping requirements. This

section of the rule also establishes the

dates by which compliance with these

standards and procedures is required.

The standards and procedures for

conducting the lead-based paint

activities contained in § 745.227 are

being issued under authority of TSCA

section 402(a), which directs EPA to

issue such standards, taking into

account reliability, effectiveness and

safety.

B. Scope and Applicability

Under today’s final rule, the standards

for lead-based paint activities contained

in § 745.227 apply only in target

housing and child-occupied facilities.

Standards for lead-based paint activities

conducted in steel structures and public

and commercial buildings, which had

been proposed on September 2, 1994,

will be addressed after further Agency

review. A discussion of the Agency’s

decision to address steel structures and

public and commercial buildings

outside this rulemaking is presented in

Unit II.A. of this preamble.

Another important feature of the

standards contained in § 745.227 is that

they do not mandate circumstances

under which any particular lead-based

paint activity must be performed.

Instead the decision to, for example

conduct an inspection, is left to the

building owner.

Additionally, the Agency is preparing

a rule under TSCA section 403 that will

identify conditions of lead-based paint

and lead levels and conditions in

residential soil and dust that would

result in a hazard to building occupants.

Although the TSCA section 403 rule has

not yet been proposed, Agency guidance

on this subject was issued July 14, 1994,

and is discussed in detail in Unit IV. of

this preamble. The section 403

Guidance also includes

recommendations on actions that can be

taken in response to conditions of leadbased paint and lead levels and

conditions in residential soil and dust.

Until the final section 403 rule is

promulgated, the Agency recommends

that individuals and firms refer to the

section 403 Guidance for assistance in

identifying the presence of a lead-based

paint hazard and deciding whether to

conduct lead-based paint activities.

The primary purpose of the standards

in today’s final rule is to provide

certified individuals and firms with a

set of minimum requirements to be

followed when conducting inspection,

risk assessment or abatement activities.

These requirements are primarily

procedural in nature: for inspection, risk

assessment and abatement activities, the

standards specify the steps that EPA

believes must be taken to conduct those

activities safely, effectively and reliably.

For abatement activities, the standards

also place restrictions on certain

techniques used to eliminate lead-based

paint.

C. Use of Guidance and Recordkeeping

Requirements

Today’s final rule does not prescribe

detailed work practices that should be

followed for each unique situation in
45790 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

which lead-based paint activities may

be conducted. For that level of detail,

individuals should consult Federal and

State guidance that provides specific

instruction on how to conduct

inspection, risk assessment and

abatement activities. These guidance

documents include: the U.S.

Department of Housing and Urban

Development’s Guidelines for the

Control of Lead-Based Paint Hazards in

Housing (HUD Guidelines) (Ref. 6), the

section 403 Guidance, EPA’s Residential

Sampling for Lead: Protocols for Dust

and Soil Sampling (Ref. 7), and any

additional guidance issued by States or

Indian Tribes that have been authorized

by EPA under § 745.324 of this rule.

While not regulatory requirements,

these documents are recommended by

the Agency because they provide

reliable and effective information on

this subject. Additionally, training

courses that have been accredited by

EPA or an EPA-authorized State or Tribe

will provide detailed instruction on

inspection, risk assessment and

abatement standards and

methodologies.

To complement the existing guidance

documents, the Agency is currently

preparing a technical guidance

document as a companion to this rule.

The Agency will distribute this

guidance document to accredited

training providers, the lead-based paint

activities contracting community, and

State and local governments, prior to the

date that compliance with § 745.225 of

this rule is required.

In its decision to recommend

guidance as an adjunct to the

requirements at § 745.227, the Agency

carefully considered several factors,

including enforcement issues and

comments received from the public on

this approach.

With regard to enforcement, many of

the work practice standards contained

in § 745.227 of today’s final rule, such

as sampling methodologies and visual

inspection techniques, refer to guidance.

As a result, the Agency recognizes that

there are questions about the extent to

which it will be able to take an

enforcement action against individuals

who choose not to use the various

guidance recommended by EPA.

Nonetheless, the Agency has many

reasons for deciding to reference and

develop guidance as a supplement to

this rule, rather than to promulgate rigid

work practice standards.

The September 2, 1994 proposal

specifically requested comments on the

use of guidance as a supplement to the

rule’s basic regulatory requirements. In

general, the majority of commenters

support the use of guidance as a

supplement to the regulatory

requirements contained in § 745.227. In

some cases, commenters directly

expressed their support, whereas in

other cases, commenters expressed

neither support nor opposition. Overall,

the Agency believes that commenters

accepted its proposed approach of

referring to guidance.

The Agency believes there are several

reasons to recommend guidance rather

than to establish detailed national work

practice standards for the purposes of

providing instruction on how to

conduct specific lead-based paint

activities.

First, as discussed in the September

1994 proposed rule, the Agency drew

from a large body of existing

information and research, and the input

from a broad range of individuals and

groups, to develop its proposed

regulatory standards for lead-based

paint activities. Based on that

information and input, the standards

proposed in September included strict

reporting requirements and

documentation of the quality control

measures and methodologies employed

when conducting inspection, risk

assessment and abatement activities.

These reporting and documentation

requirements remain a critical

component of the standards established

by today’s final rule. In combination

with the rule’s basic work practice

standards, training, certification and

accreditation requirements, the

reporting/documentation activities will

help to ensure the effectiveness of the

standards and facilitate the use of

guidance.

A second reason for relying on nonregulatory guidance instead of rulebased standards is the number of

differences that can be found in the

structure, design and occupant use

patterns of the residential dwellings and

child-occupied facilities covered by this

rule. For example, under the standards

for conducting a risk assessment at

§ 745.227(d)(4), a risk assessor is

required to collect dust samples in

rooms where children aged 6 years and

under are most likely to come into

contact with dust. The rule does not

prescribe precisely which rooms or how

many samples to collect, because the

risk assessor needs to consider sitespecific variables to determine which

rooms should be sampled and the

number of samples that should be taken

from each room. These variables

include: the size and number of rooms

in the building; interior design elements

in a building and differences in

designated play areas for a child; the

location of windows and doors; the

condition of door frames, window

troughs and stools; and occupant use

patterns.

As a specific example, in a small

residential dwelling, a child may not

have a separate playroom, but may play

in selected areas of one room or more,

such as a corner in a living room or

dining room, or may have a bedroom

that doubles as a playroom. On the other

hand, in a large residential dwelling, a

child may have a separate playroom and

bedroom, and certain areas in a living

room or family room for play activity.

Furthermore, a child’s pattern of use in

a residential dwelling can vary

considerably, and that pattern may only

be possible to determine through an

interview with a guardian.

Based on these and other variables

that may be encountered when

conducting a risk assessment,

inspection or abatement, the Agency

believes that to try to anticipate and

attempt to list all circumstances that

may be encountered would make the

regulation overly prescriptive and rigid.

However, by establishing minimum

requirements and basic procedures for

conducting inspection, risk assessment

and abatement activities, the Agency is

setting a safe, reliable and effective

baseline of steps for certified

individuals and firms to follow to make

sound decisions based on site-specific

conditions.

A third reason for the Agency’s

decision to avoid being overly

prescriptive is the state of technology

within the lead-based paint activities

field. Although there has been progress

in the development of new technologies

to support specific lead-based paint

identification techniques and abatement

methods, the Agency recognizes that the

field is advancing and that the

technologies and methods that will help

define it are still evolving.

Consequently, the standards

contained in today’s final rule do not

specify that certain technologies or

methods be utilized for sampling and

analysis. Additionally, the rule does not

prescribe any specific methods or

technologies for conducting an

abatement, although it does restrict

certain work practices known to pose

risks to building occupants, workers and

the environment.

As had been proposed, today’s final

rule relies on the use of documented

methodologies that incorporate

adequate quality control measures.

These methodologies and measures are

available in existing Federal and State

guidance documents, and will be taught

at accredited training programs.

Although not overly detailed or

prescriptive, EPA believes that the work

practice standards contained in today’s
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45791

final rule under § 745.227 provide a

baseline, which in combination with the

training, certification and accreditation

requirements contained in §§ 745.225

and 745.226, will ensure that lead-based

paint activities are conducted reliably,

safely and effectively.

VIII. Response to Comments on Work

Practice Standards for Conducting

Lead-Based Paint Activities in Target

Housing and Child-Occupied Facilities

A. Conflict of Interest

In its September 2, 1994 proposal,

EPA requested comment on whether to

preclude individuals or firms

conducting abatement activities from

performing inspection and risk

assessment activities, and from

performing clearance procedures

following an abatement. Although many

public commenters supported a

requirement that inspection, risk

assessment and clearance procedures be

conducted by individuals and firms

independent of the individuals and

firms conducting abatements, today’s

final rule does not include such a

requirement.

The Agency agrees with other

commenters—those who did not

support a conflict-of-interest

requirement—that the potential

convenience and cost savings of hiring

one firm, as opposed to two or three

firms, should not be denied to property

owners. The Agency also notes that

there may be instances in which, due to

a regional scarcity of lead-based paint

professionals, it may be cost prohibitive

or logistically difficult for a building

owner to hire two different companies.

Nonetheless, the Agency believes that

parties involved in lead-based paint

activities should avoid situations of

potential conflict of interest. Through

various public education and outreach

programs, sponsored by both public and

private organizations including EPA, the

Agency believes that over time, the

public’s awareness and understanding

of the options available for identifying

and managing lead-based paint hazards

will improve. With this knowledge,

property owners and building occupants

will be able to determine the value of

hiring more than one firm to assist in

evaluating, controlling or eliminating

lead-based paint hazards.

Furthermore, to assist building

owners and other individuals or firms

that may contract for the services of a

lead-based paint contractor, EPA

recommends that inspectors, risk

assessors and other lead-based paint

activities contractors disclose any

potential conflicting financial interest in

the reports that they prepare pursuant to

§ 745.227(h).

B. Inspection

The objective of an inspection is to

determine, and then report on, the

existence of lead-based paint through a

surface-by-surface investigation of a

residential dwelling or child-occupied

facility. As such, an inspection involves

identifying the presence of lead in paint.

An inspection does not include taking

dust or soil samples. An inspection

must be conducted by either a certified

inspector or a certified risk assessor, and

must include the provision of a report

explaining the results of the

investigation.

The inspection standards contained in

§ 745.227(b) reflect the Agency’s

decision not to provide detailed

regulatory requirements on how to

perform specific lead-based paint

identification tasks, such as taking a

paint chip sample or using an X-ray

fluorescence (XRF) device. In the final

rule, the Agency also has removed

specific requirements to use the HUD

Guidelines when collecting paint chip

samples or when using an XRF device

to test for the presence of lead-based

paint.

Instead, the Agency requires that a

lead-based paint inspection be

conducted using documented

methodologies and adequate quality

control measures. These documented

methodologies are defined as methods

or protocols used to sample for the

presence of lead in paint, dust, and soil.

Documented methodologies that are

appropriate for the purposes of this

section may be found in: (1) The HUD

Guidelines; the EPA Guidance on

Residential Lead-Based Paint, LeadContaminated Dust, and LeadContaminated Soil (60 FR 47248); the

EPA’s Residential Sampling for Lead:

Protocols for Dust and Soil Sampling

and other EPA sampling guidance; and

(2) Regulations, guidance, methods or

protocols issued by States and Indian

Tribes that have been authorized under

§ 745.324. Additionally these

methodologies will be included in

EPA’s technical guidance on lead-based

paint activities.

Although commenters generally

supported this approach, at least three

responses suggested that the Agency

provide detailed regulations for leadbased paint testing. However, one of

these commenters indicated that

guidance may be an acceptable

approach for establishing testing

protocols. These commenters were

concerned about the enforcement issues

associated with the rule’s dependence

on documented methodologies, which

to date have only been issued by HUD,

EPA and various State agencies,

primarily as guidance.

However, other commenters did not

object to the Agency’s use of

documented methodologies, provided

that records are kept as part of the

inspection, and that such methodologies

are acknowledged as documented

methodologies by EPA through future

guidance or regulations. As discussed,

the Agency is currently preparing a

technical guidance document for

conducting lead-based paint activities.

Additionally, it is possible that the

Agency may amend the regulation with

more detailed standards in the future, if

there is a need to do so.

One reason commenters suggested

that the Agency not require certain

inspection techniques is that such

requirements often have the effect of

discouraging the development of

emerging or new technologies. For

example, the Agency currently does not

recommend that chemical test kits be

used for lead-based paint testing (Ref.

8). However, EPA recognizes that at

some point in the future, test kit

technology is likely to be improved so

that the kits can provide reliable test

results. At that time, the Agency will be

able to recommend chemical test kits for

testing for the presence of lead in paint.

Two other key issues raised by

commenters were: (1) Potential

limitations of the proposed procedures

for conducting an inspection, assuming

that an inspection involves the

investigation for lead-based paint

throughout an entire residential

dwelling or child-occupied facility,

rather than a ‘‘partial inspection’’ of just

one or more rooms in a residential

dwelling or child-occupied facility; and

(2) the standard contained in

§ 745.227(b)(2), which requires the

testing of all components of a residential

dwelling or child-occupied facility with

a ‘‘distinct painting history,’’ yet allows

inspectors not to test those components

determined by the inspector or risk

assessor as having been replaced after

1978.

1. Partial inspections. The Agency

recognizes that there may be a demand

for lead-based paint identification

services that do not involve a surfaceby-surface investigation for the presence

of lead-based paint throughout an entire

residential dwelling or child-occupied

facility. For example, a homeowner may

only be interested in determining if lead

is present in the paint in a child’s

bedroom, not necessarily the entire

residential dwelling. In this instance, it

is unlikely that the homeowner will

want to pay for an inspection, as

defined under today’s regulations.
45792 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

Although not required, the Agency

recommends that a certified inspector or

risk assessor be used in cases, such as

these, where an individual or firm

believes it is only necessary to conduct

a ‘‘partial inspection’’ of a property.

More specifically, in response to

commenters on this issue, the Agency

believes that the definition of an

inspection, which under § 745.227(b)

requires that testing for lead-based paint

take place throughout an entire

residential dwelling or child-occupied

facility, is appropriate for several

reasons.

One reason is that the statutory

definition of an inspection in section

401(7) of TSCA calls for a ‘‘surface-bysurface investigation to determine the

presence of lead-based paint and the

provision of a report explaining the

results of the investigation.’’ As

discussed in the September 2, 1994

proposal, the Agency believes that an

inspection is intended to provide a

comprehensive inventory of all leadbased paint in a residential dwelling or

child-occupied facility. As such, the

Agency acknowledges, that the value of

a lead-based paint inspection may

appeal only to those individuals

interested in getting a complete report

on painted components in a residential

dwelling or child-occupied facility.

Although it is difficult to predict, the

Agency believes that such a report may

be of value to property owners or

managers of large multi-family

dwellings and child-occupied facilities

and home buyers.

Furthermore, the Agency notes that its

inspection requirements are consistent

with general trends in the housing

market, particularly in federally-owned

housing or housing receiving federal

assistance. That is, inspections are being

conducted to ensure that building

owners are informed of the presence of

lead-based paint throughout a

residential dwelling or child-occupied

facility, not just one or two rooms.

Lastly, the Agency believes that by

establishing requirements only for

‘‘whole house’’ inspections it will help

ensure that the information needed to

determine whether lead-based paint is

present in a residential dwelling or

child-occupied facility is accurately

presented. Again, the Agency recognizes

that an inspection, as defined under

today’s final rule, may not provide a

value to all persons. Nonetheless, the

Agency believes that by requiring that

an inspection be conducted throughout

a residential dwelling or child-occupied

facility it will ensure that a person

contracting for the inspection will

obtain accurate and reliable information

regarding the presence of lead-based

paint throughout a residential dwelling

and child-occupied facility.

2. Distinct painting history. On the

issue of inspecting and sampling all

components sharing a distinct painting

history, except those components

replaced after 1978, there are several

points that commenters raised. First,

some commenters suggested that the

proposed requirement to take one

sample per component in every room

and one sample per exterior component

with a distinct painting history was

overly burdensome in that it required

taking an excessive number of samples.

The assumption of these commenters

was that an inspection requires that

each and every painted component

throughout a residential dwelling had to

be individually tested. The Agency

would like to clarify that an inspection

does not necessarily require that a large

number of paint samples be taken.

To clarify this point, the Agency

directs commenters to carefully review

the definitions of ‘‘component’’ and

‘‘distinct painting history’’ as contained

in § 745.223 of today’s final rule.

According to these definitions, in a

room with four walls painted at the

same time with the same paint, only one

paint sample would need to be taken to

characterize the lead content of the

paint on the walls. This is because,

although each wall can be considered a

separate ‘‘component,’’ the walls share

the same distinct painting history. On

the other hand, if there were window

frames in the room that had been

painted with a different paint than the

walls (for example a semi-gloss instead

of a flat), two samples would need to be

taken, one from the walls and one from

the windows. As this example

demonstrates, the Agency does not

believe that an inspection will involve

excessive sampling.

In contrast, other commenters

disagreed with these requirements for

an inspection, suggesting that they

would result in insufficient numbers of

samples. Based on the definition of

‘‘distinct painting history,’’ these

commenters interpreted the proposal to

mean that if all rooms in a residential

dwelling had been painted recently with

the same paint and in the same color

(for example, a white latex paint), it

would be possible for an inspector to

take only one paint sample from the

home.

In response, the Agency notes that in

this case it would be clear to an

inspector that trim, doors, and windows

are usually painted with a different

paint type. Determining the distinct

paint history of such components

involves not just an examination of the

visible top coat, but the unique layers of

paint beneath the surface. A visible

examination of these paint layers is

easily accomplished by making a

discrete incision into the painted

surface.

C. Risk Assessment Activities

TSCA section 401(16) provides that

the objective of a risk assessment is to

determine, and then report, the

existence, nature, severity, and location

of lead-based paint hazards in

residential dwellings through an on-site

investigation. The definition also

identifies specific activities that will be

employed when conducting a risk

assessment, including: (1) The gathering

of information regarding the age and

history of the housing and occupancy by

children aged 6 years and under, (2)

visual inspection, (3) limited wipe

sampling or other environmental

sampling techniques, (4) other activity

as may be appropriate, and (5) the

provision of a report explaining the

results of the investigation. This

definition of risk assessment serves as

the basis for the standards and

procedures associated with a risk

assessment contained in § 745.227(d).

The risk assessment procedures in

today’s final rule, as in the proposal,

require the risk assessor to make a

recommendation of lead hazard control

strategies to address all lead-based paint

hazards identified as a result of the risk

assessment. This activity was not

enumerated in the statutory definition,

but was added pursuant to TSCA

section 401(16), which stated that a risk

assessment may include ‘‘other

activities’’ as may be appropriate.

The Agency’s reason for adding this

requirement was to ensure that the

individual or firm hiring or contracting

for the services of a risk assessor was

provided with some reliable guidance

on how to respond to the results of a

risk assessment.

1. Lead hazard screen. Pursuant to

TSCA section 401(16), a risk assessment

may include ‘‘other activities’’ as may

be appropriate. Based on this language,

today’s final rule also includes the ‘‘lead

hazard screen,’’ as a risk assessment

activity. The requirements for the screen

are contained in § 745.227(c). The

reason for including a lead hazard

screen in the proposal and today’s final

rule is to, where appropriate, avoid the

costs of conducting a comprehensive

risk assessment, particularly in wellmaintained housing and child-occupied

facilities constructed after 1960, or in

housing and child-occupied facilities

considered unlikely to have significant

lead paint, dust or soil hazards.

The Agency received two comments

on the addition of a lead hazard screen
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45793

as a risk assessment activity; one

commenter noted that the Agency

needed to list more explicitly standards

for conducting a lead hazard screen.

The commenters also agreed that the

lead hazard screen should focus on

determining the absence of a lead-based

paint hazard, rather than the presence of

such a hazard and the risks it may pose

to building occupants. In response,

today’s final rule includes specific

procedures and standards for

conducting a lead hazard screen in

§ 745.227(c). Furthermore, because the

lead hazard screen employs highly

sensitive evaluation criteria and limited

sampling, the Agency believes that these

standards will provide the risk assessor

with a basis for determining the absence

of lead-based paint hazards.

If any one of the dust samples

collected during a lead hazard screen

contains a lead level greater than onehalf of the applicable clearance level for

the tested component, or if any sampled

paint is found to be lead-based paint,

that is an indication, but not a

requirement, that the residential

dwelling should undergo a full risk

assessment. As discussed subsequently

in this preamble, clearance levels for

specific components can be found in the

HUD Guidelines and in EPA’s section

403 Guidance, as well as in several State

guidance documents.

Clearance levels are used as the basis

for determining whether a lead-based

paint abatement has been successfully

completed and that a residential

dwelling or child-occupied facility may

be re-occupied (if building occupants

were relocated during an abatement).

Currently, under the section 403

Guidance, clearance levels for dust also

serve as the levels for determining the

presence of lead-contaminated dust,

which may pose a lead-based paint

hazard. A standard for the lead hazard

screen of one-half of the applicable

clearance levels is extremely stringent.

As such, the Agency believes that a dust

sample containing less than that level is

a reliable indicator that there are no

lead-based paint hazards. The work

practice standards and evaluation

criteria for a lead hazard screen

contained in § 745.227(c) are modeled

after the HUD Guidelines

recommendations for conducting a lead

hazard screen.

As discussed previously in the

preamble, the Agency recommends that

the lead hazard screen be used primarily

in well-maintained homes constructed

after 1960. According to HUD, it is

estimated that approximately 37 million

privately owned homes and 428,000

public housing units, or roughly 90

percent of the nation’s housing stock

built prior to 1960, contain lead-based

paint. Generally, if maintenance has

been deferred on these homes, there is

a high probability for the presence of

some deteriorated lead-based paint and/

or lead-contaminated dust.

Consequently, the value and any cost

savings that may be achieved by

conducting a lead hazard screen in

poorly maintained, pre-1960 homes,

rather than a full risk assessment, may

not be realized. For instance, in a pre1960 home with several components

that have deteriorated paint, in practice,

just as many deteriorated paint surfaces

will be tested for a lead hazard screen

as for a risk assessment. However, when

conducting the lead hazard screen, a

risk assessor is not required to attempt

to determine whether those surfaces

pose a lead-based paint hazard.

In fact, homeowners and building

owners may decide that a lead hazard

screen would merely add time and cost

to the evaluation process in properties

that would more likely benefit from a

risk assessment. These benefits include

a comprehensive report, not only on the

existence of lead-based paint hazards,

but also on the nature, severity, and

location of those hazards. Furthermore,

the risk assessment also would provide

options on how to reduce or eliminate

the lead-based paint hazards.

Other standards and activities

required as a part of the lead hazard

screen in § 745.227(c) include: (1) The

collection of background information

regarding the physical characteristics of

the residential dwelling or childoccupied facility and occupant use

patterns that may cause lead-based paint

exposure to one or more children age 6

years and under, (2) a visual inspection,

(3) the sampling of components with

deteriorated paint with a distinct

painting history in poor condition, (4)

the collection of a minimum of two

composite dust samples (one for floors

and one for windows), and (5) the

preparation of a report on the results of

the screen. Specifically, § 745.227(c)

requires that in a residential dwelling

two composite samples be taken—one

from the floors and one from the

windows in rooms where one or more

children, age 6 and under, are most

likely to come into contact with dust.

Additionally, in multi-family dwellings

and child-occupied facilities, composite

dust samples are to be taken from any

common areas where one or more

children age 6 years and under are

likely to come into contact with dust.

2. Risk assessment. In addition to the

requirements of a lead hazard screen,

the standards for a risk assessment

contained in § 745.227(d)(3) also

involve the collection and review of

background information regarding the

physical characteristics of a building,

and the occupant use patterns that may

pose a lead-based paint hazard to

children aged 6 years and under. More

than two dust samples and soil samples

also may be required under

§ 745.227(d)(4), (5), (6) and (7),

respectively. Lastly, the risk assessment

report must include options for

reducing and/or eliminating lead-based

paint hazards.

The requirements contained in

§ 745.227(d) of today’s final rule differ

from those proposed in September 1994

in that they reflect the Agency’s

decision to reduce the detail and

specificity of the rule. However, based

on the documentation and

recordkeeping requirements for a risk

assessment, and the rule’s training,

certification and accreditation

requirements, the Agency believes that

the standards contained in today’s final

rule will promote reliable, safe and

effective risk assessments.

For example, the proposed rule

specified several items of information to

be collected as background information

during a risk assessment, including the

age of the building and any additions

being evaluated, copies of any previous

inspection reports, and a schematic site

plan of the building. In its review of the

comments on the proposed rule, the

Agency noted that many of these

requirements would be met during the

preparation of a risk assessment report.

For instance, among the items to be

presented in a risk assessment report, as

contained in § 745.227(d)(10) are: the

date of construction of the building,

data collected as a result of any previous

inspection or other analyses available to

the risk assessor, and the specific

locations of any identified lead-based

paint hazards or potential hazards.

In eliminating specific instructions

regarding the background information to

be collected, the Agency believes that

the standards for conducting a risk

assessment have been simplified

without diminishing the reliability,

safety, and effectiveness of those

standards. This is because today’s final

rule has eliminated the duplicative

reporting requirements included in the

September 2, 1994 proposal by requiring

that the information only be contained

in the risk assessment report.

In addition to these changes, the

Agency has slightly modified

§ 745.227(d)(10)(xviii), which requires a

risk assessor to provide options for

eliminating and/or reducing lead-based

paint hazards in the risk assessment

report. Under the proposed rule, the risk

assessor would have been required to

provide not only options, but to
45794 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

recommend one option over another

and to include a rationale or

justification for his or her selected

option. The final rule no longer requires

the risk assessor to recommend one

option over another, provided the

recommended options are all presented

in the risk assessment report.

These changes were largely based on

comments urging the Agency to allow

the individual or firm contracting for

the risk assessment to select from the

options presented in the report.

Although the Agency does not

necessarily believe that the proposed

requirements would have forced a

building owner to select the option

recommended by a risk assessor, the

Agency is willing to provide building

owners with more flexibility in

reviewing risk assessment reports and

selecting among remediation options.

In response to comments on the

latitude a risk assessor is given in

determining dust sampling locations

and the extent of paint deterioration, the

Agency believes, as discussed in Unit

VI.A. of this preamble, that because the

risk assessor will be a trained specialist

equipped with the requisite professional

judgement needed to evaluate leadbased paint hazards, added specificity is

unnecessary in the rule. The Agency

also stresses that due to major

differences in the structure, design and

condition, and occupant use patterns of

various buildings, it is best not to

identify specific room locations, e.g.,

kitchen, playroom, bedroom, for the

purposes of sampling dust. Instead, the

regulations in § 745.227(d)(4), (d)(5),

and (d)(6) require that dust samples be

collected in rooms and areas where

young children are most likely to come

into contact with dust.

Similarly, the final rule clarifies that

only deteriorated paint with a distinct

paint history found to be in poor

condition shall be sampled for the

presence of lead. ‘‘Paint in poor

condition’’ is defined in today’s final

rule as more than 10 square feet of

deteriorated paint on exterior

components with large surface areas; or

more than 2 square feet of deteriorated

paint on interior components with large

surface areas (e.g., walls, ceilings, floors,

doors); or interior or exterior

components with small surface areas

(window sills, baseboards, soffits, trim)

on which more than 10 percent of the

total surface area of the component is

deteriorated. This determination is to be

made by the risk assessor based on a

documented methodology such as the

HUD Guidelines.

As discussed earlier in Unit VII.C. of

this preamble, such locations include

the playrooms and bedrooms of

children, kitchens, and living rooms, as

well as common areas associated with a

residential dwelling or child-occupied

facility.

The Agency also reiterates that

detailed instruction on where and how

to sample dust is included in the HUD

Guidelines, existing EPA guidance and

various State regulations and guidance

documents, and that these instructions

will be taught in accredited training

programs and included in future Agency

guidance.

Lastly, the Agency has clarified the

standards for collecting soil samples

contained in § 745.227(d)(7) such that

samples need only to be taken from

exterior play areas and dripline/

foundation areas where bare soil is

present. This requirement is in keeping

with the statutory definition of leadcontaminated soil, which basically is

the same definition used in today’s final

rule. As defined in § 745.223, leadcontaminated soil means bare soil on

residential real property and on the

property of a child-occupied facility that

contains lead at or in excess of levels

determined to be hazardous as

identified by the EPA Administrator

pursuant to TSCA section 403.

Guidance on how to collect bare soil

samples is provided in EPA’s

Residential Sampling for Lead:

Protocols for Dust and Soil Sampling

document and the HUD Guidelines.

D. Composite Sampling

Under today’s final rule, composite

dust and soil sampling is expressly

permitted for the purposes of

conducting a lead hazard screen, risk

assessment, or clearance following an

abatement.

This change from the September 2,

1994 proposal is based on comments the

Agency received in support of

composite sampling for dust and soil, as

well as limited evidence supporting the

use of composite dust and soil sampling

to determine the presence of lead in

dust and soil. The Agency also believes

that composite sampling is useful

because it provides a means for

‘‘averaging’’ the potential for exposure

to lead-based paint hazards in a

residential dwelling or child-occupied

facility. Furthermore, the Agency is

permitting use of the technique due to

laboratory cost savings generated by

sampling analysis.

However, it is important that the

individual who is receiving the results

of a composite understand their

limitations and can correctly interpret

the results of a composite sample. A

brief discussion of this subject can be

found in this section, and a thorough

discussion of this issue is contained in

the HUD guidelines, and will be

presented in the risk assessor and

supervisor course.

Specific instruction on the taking of

composite dust and soil samples is

provided in the HUD Guidelines. The

technique essentially involves

combining several subsamples from the

same types of components into one

sample for analysis. A composite dust

sample is different from a single-surface

sample because it combines at least two

dust samples from more than one

sampling area into one sample.

Pursuant to § 745.227(g) of today’s

final rule, composite dust samples must

consist of at least two subsamples. At

this time the Agency recommends that

a composite sample consist of no more

than four subsamples, unless the

laboratory contracted to analyze the

composite sample agrees to accept a

sample consisting of more than four

subsamples. This recommendation is

based on current limitations in the

laboratory analysis of composite

samples consisting of more than four

subsamples (i.e., using available

technology, composite samples that

combine more than four subsamples are

difficult to properly analyze). However,

because some EPA-recognized

laboratories are acquiring the ability to

analyze composite samples consisting of

more than four subsamples, the final

rule does not explicitly restrict a

composite sample from containing more

than four subsamples.

Pursuant to § 745.227(g) of today’s

final rule, composite dust samples shall

not consist of subsamples from more

than one type of component. For

example, subsamples from four

uncarpeted floors from four rooms may

be combined into one composite

sample. However, in these same four

rooms, the rule prohibits two

subsamples from windows in two of the

rooms from being composited with two

subsamples from floors in the other two

rooms.

This restriction is due to the varying

levels of lead that may be present on

different components, and the potential

hazard that a component may present.

For example, dust samples from floors

generally tend to indicate a lower level

of contamination, while the frequency

of contamination is generally higher in

windows. Consequently, the

interpretation of the results from a

composite sample consisting of

subsamples from different components

would not adequately characterize the

location of the hazard.

One of the primary benefits derived

from composite sampling is lower

sampling costs due to fewer laboratory

analyses. Lead levels generally vary
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45795

significantly from one component to

another, and a single surface sample

from one component alone (i.e. from

one area of a floor in a room to another

of the same floor) may not represent the

potential for exposure. Composite

sampling provides a means to determine

potential exposures to lead-based paint

hazards by obtaining a wide crosssection of possible exposure pathways.

However, composite sampling may

yield laboratory results that are not as

informative as single-surface sampling.

For example, dust samples from the

floors of three rooms might be

composited where only one of the floors

contains lead-contaminated dust higher

than the clearance level contained in the

section 403 Guidance for uncarpeted

floors of 100 μg/ft2. This might cause

the composited sample to fail clearance.

On the other hand, if three singlesurface floor dust samples were taken

for clearance testing, the laboratory

analyses would have precisely indicated

which one of the three rooms exceeded

the clearance level, and the inspector or

risk assessor would know exactly which

room needed to be recleaned and

retested.

Because of these limitations, it is

imperative that a risk assessor,

inspector, or supervisor understands

and correctly interprets composite

samples.

E. Abatement

As discussed in Unit III.B. of this

preamble, the issue that received the

most comment associated with

abatement was the proposed definition

of abatement. The Agency’s response to

those comments is discussed in that

unit of the preamble.

In addition to these comments, other

comments on a number of the work

practice standards, procedures and

restrictions proposed for various

abatement activities were received.

These comments principally addressed

the following issues: (1) ‘‘Prohibited’’ or

restricted abatement work practices; (2)

encapsulation; (3) the development of a

pre-abatement plan; (4) clearance

requirements following both interior

and exterior abatements; (5) soil

abatement; and (6) management of waste

from lead abatement activities.

The Agency’s response to these

comments and changes that have been

made to the corresponding standards for

abatement are discussed below.

1. ‘‘Prohibited practices.’’ In the

preamble of the proposed rule, the

Agency indicated that it was

considering banning certain abatement

work practices in target housing, due to

the potential risk of lead contamination

posed to workers and/or the

environment. The practices singled out

by the Agency included:

i. Open-flame burning of painted

surfaces.

ii. Dry scraping or sanding of painted

surfaces.

iii. The use of heat guns on painted

surfaces for abatement without proper

protection.

Additionally, the Agency specifically

requested comments and/or data related

to exposure to lead-contaminated dust

and fumes from these and other

abatement work practices.

In response, an overwhelming

majority of commenters on this issue

urged the Agency to expressly ban the

use of open-flame burning or torching

on painted surfaces in target housing

and child-occupied facilities, and to

specifically restrict—not necessarily to

ban—the other practices listed above, to

reduce the risks they pose. Furthermore,

commenters also requested that the

Agency set restrictions on the use of

machine sanding or grinding, abrasive

blasting or sandblasting, and

hydroblasting and high-pressure

washing techniques in target housing

and child-occupied facilities.

Commenters also provided a number of

references to studies to document their

recommendations to the Agency.

The restrictions proposed by

commenters generally were consistent

with the HUD Guidelines, and have

been the subject of several studies

which support the restrictions in today’s

final rule. A review of these studies has

been prepared by EPA titled A Review

of Studies Addressing Lead Abatement

Effectiveness (Ref. 9).

An important point related to

restricting the abatement practices

contained in § 745.227(e)(6) is that the

public comments supporting such

restrictions were expressly directed at

target housing and other buildings, such

as child-occupied facilities, where

young children routinely and frequently

spend time. In response, the Agency

stresses that the restrictions on

abatement practices contained in

today’s final rule apply only to target

housing and child-occupied facilities.

In contrast, other commenters were

opposed to prohibiting or restricting

similar ‘‘deleading’’ activities, in public

and commercial buildings,

superstructures and bridges.

In public and commercial buildings,

superstructures and bridges, most

commenters were generally satisfied

with existing OSHA regulations for the

purposes of protecting the health and

safety of workers. Concerns were,

however, voiced over the lack of costeffective work practice alternatives to

open-flame burning, machine sanding or

grinding, and abrasive blasting for

removing lead-based paint from public

and commercial buildings,

superstructures and bridges. In response

to these comments, the Agency will

further review options for addressing

lead-based paint activities conducted in

public and commercial buildings, and

superstructures and bridges.

On the other hand, commenters who

favored restricting certain work

practices in target housing and childoccupied facilities indicated that

although OSHA regulations may protect

workers, they are not designed to

protect building occupants, especially

children aged 6 years and under, from

lead-based paint hazards that may be

generated during an abatement. As

discussed previously, these commenters

also indicated that by restricting certain

work practices, rather than banning

them altogether, lead-contaminated dust

and fumes could be effectively

controlled. Furthermore, these

commenters suggested that in some

instances safer work practice

alternatives are available.

Based on these comments and a

review of studies referenced above,

today’s final rule in § 745.227(e)(6)

imposes certain restrictions on selected

work practices when conducted during

an abatement in target housing and

child-occupied facilities. Today’s final

rule also bans the use of open flame

burning and torching when conducting

abatements in target housing and childoccupied facilities.

These restrictions include the

operation of a heat gun at a temperature

above 1100 degrees Fahrenheit, due to

the release of lead dust and fumes and

the potential hazards posed to building

occupants, particularly children aged 6

years and under. This restriction is

supported by two studies that found

significant problems with lead-based

paint when volatilized by heat guns and

propane torches operating above this

temperature. These problems included

large increases in the blood lead levels

of children in homes where heat guns

and torches were used at temperatures

in excess of 1100 degrees Fahrenheit

during abatement (Refs. 11 and 12).

The rule also restricts the use of

machine sanding or grinding, abrasive

blasting and sandblasting as abatement

work practices, unless they are

conducted using a High-Efficiency

Particulate Air (HEPA) exhaust control

which removes particles of 0.3 microns

or larger from air at 99.97 percent or

greater efficiency. Although studies

indicate that the effectiveness of HEPA

attachments has been limited in

containing dust releases in the past,

commenters indicate that recent
45796 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

technology has improved performance.

Consequently, if HEPA attachments

meet or exceed the performance

standard above, the Agency believes

they can serve as a tool for ensuring that

abatement activities involving the use of

machine sanding or grinding, abrasive

blasting and sandblasting are conducted

safely, reliably and effectively.

Dry scraping and sanding are

permitted under today’s final rule only

around electrical outlets, or when

treating defective paint spots totaling no

more than 2 square feet in any one

interior room, or totaling no more than

20 square feet on exterior surfaces.

These restrictions are based on high

levels of dust generated by dry scraping

and sanding, and the availability of

techniques, such as wet spraying or the

use of a heat gun below 1100 degrees

Fahrenheit, to control dust generation.

Additionally the restrictions placed on

dry scraping provide allowances for

convenience and safety when abating

relatively small defective paint spots

and areas around electrical outlets.

In regard to the establishment of

restrictions for hydroblasting and highpressure washing, the Agency does not

have enough data to demonstrate that

these practices may pose a lead-based

paint hazard in target housing or childoccupied facilities. Nor is there

sufficient data to support specific

restrictions on how to effectively control

or limit these practices to reduce any

hazards they might pose. Consequently,

the rule does not establish restrictions

for hydroblasting and high-pressure

washing. However, the Agency

recommends that controls be used to

contain any debris or wastewater that

may be generated when hydroblasting

and high-pressure washing are

employed as abatement techniques.

2. Encapsulation. As discussed in the

September 2, 1994 proposed rule, the

definition of abatement includes the

phrase ‘‘permanent containment or

encapsulation.’’ This phrase is part of

the statutory definition of abatement

under Title IV section 401, and it has

been retained as part of the abatement

definition in § 745.223 of today’s final

rule.

In the preamble of the proposed rule,

however, the Agency also pointed out

that all encapsulant will degrade over

time, so therefore, no encapsulant is

truly permanent. Consequently, the

Agency requested comment on whether

to include a periodic monitoring

requirement when an encapsulant is

used to abate lead-based paint.

The majority of commenters generally

supported some kind of monitoring

requirement, but were divided as to

whether EPA should regulate such a

requirement given that encapsulation

technologies are still evolving. Although

some commenters encouraged the

Agency to include specific monitoring

requirements (e.g., once every 6 months,

1 year, 3 years, etc.), others suggested

that the Agency develop standards for

encapsulant products and/or require

that manufacturers provide guarantees

regarding the durability and longevity of

an encapsulant product. Other

commenters requested that the Agency

specify who is responsible for

monitoring an encapsulant—either the

building owner or a third party.

In response to these and other related

issues raised by commenters, today’s

final rule does not specify a particular

monitoring requirement, nor does it

establish any other specific standards

for the use of encapsulants. This

decision is based primarily on the

development of existing encapsulant

technologies and ongoing voluntary

efforts within the encapsulant industry

to develop performance-based standards

for encapsulants.

Three American Society of Testing

and Materials (ASTM) standards, E 1795

(‘‘Standard Specification for NonReinforced Liquid Coating

Encapsulation Products for Leaded

Paint in Buildings’’), E 1797 (‘‘Standard

Specification for Reinforced Liquid

Coating Encapsulation Products for

Leaded Paint in Buildings’’), and E 1796

(‘‘Standard Guide for Selection and Use

of Liquid Coating Encapsulation

Products for Leaded Paint in

Buildings’’) were approved in March

1996. The three standards were

developed by a voluntary consensusbuilding process that included

representatives from EPA, other Federal

agencies, and a wide range of interests

across the lead abatement industry. The

standards cover what is considered by

ASTM to be the minimum set of

material performance requirements for

these products, as well as guidance on

how to select, apply, evaluate, and

maintain the products under normal use

conditions. The standards acknowledge

that users (e.g., risk assessors, abatement

supervisors) should evaluate their

individual situation to assess whether

additional requirements are needed to

adequately protect the surface.

EPA endorses these standards and

recommends their use, but has chosen

not to require them as part of the work

practice standards in this rule. EPA is

confident that most States and local

jurisdictions will evaluate these

standards for their appropriateness for

the conditions under which they will be

expected to perform and specify

additional performance requirements as

needed. The standards will also be

discussed in training course materials

for risk assessors and abatement workers

and supervisors.

3. Pre-abatement plan. In the

proposed rule, the standards for

conducting an abatement would have

required the development of a ‘‘preabatement plan’’ for all abatement

projects. Under the proposed rule the

pre-abatement plan would have

included the following: (1) Information

regarding measures taken to protect

workers; (2) measures taken to comply

with existing Federal, State and local

environmental regulations; and (3) an

occupant protection plan. In its review

of the comments on the pre-abatement

plan, and of the occupant protection

plan itself, the Agency has decided that

the primary purpose of the occupant

protection plan is to help ensure that

building occupants are protected from

potential lead-based paint exposures

during an abatement.

This determination is based on

comments that suggested the Agency

minimize any overlap with existing

Federal regulations. For example, if an

abatement project resulted in the

generation of a hazardous waste,

commenters noted that the contractor

and/or building owner may already be

subject to certain reporting requirements

under the Resource Conservation and

Recovery Act (RCRA). These

commenters argued that it would be

duplicative and burdensome to resubmit

its RCRA reports to EPA under a TSCA

law. A similar rationale applies to the

proposed provision of information

regarding measures taken to protect

workers. This proposed requirement

would be duplicative of OSHA

provisions to protect workers.

The Agency agrees with commenters

on this point, and has removed parts 1

and 2 of the pre-abatement plan from

today’s rulemaking. Consequently, the

only remaining part of the preabatement plan is the ‘‘occupant

protection plan,’’ which in today’s final

rule replaces the proposed preabatement plan.

4. Clearance procedures. Comments

received on the clearance procedures

contained in the proposed rule

indicated a need to clarify the dust

sampling requirements associated with

clearance. Commenters were confused

regarding the number of dust samples

that needed to be collected and the

locations within a residential dwelling

or child-occupied facility that needed to

be sampled as a part of the clearance

procedures contained in the September

2, 1994 proposal.

Several commenters also suggested

that the proposed rule required too

many samples, which they believed
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45797

would add to the costs of an abatement

without necessarily providing better

information regarding the efficacy of an

abatement. They urged the Agency to

reduce the number of samples to be

taken for the purposes of clearance

following an abatement; some

commenters suggested that composite

sampling be employed to reduce the

required number of clearance samples.

And virtually all commenters agreed

that the proposed 24-hour waiting

period was too long to wait to conduct

clearance sampling following an

abatement.

In response to these comments, the

clearance procedures contained in

today’s final rule have been presented

more clearly and concisely. For

example, commenters indicated that in

the proposed rule it was not clear

whether additional dust clearance

samples were required following an

abatement project that used

containment, as opposed to an

abatement that did not use containment.

In today’s final rule,

§ 745.227(e)(8)(v)(A) clearly indicates

the number of dust samples that are to

be taken following an abatement that

employs containment. These include

one sample from the floor, and one from

the window (if available) in the rooms

within the containment area.

Additionally, the rule requires that one

sample will be taken from the floor

outside the containment area.

On the other hand,

§ 745.227(e)(8)(v)(B) clarifies that, if

containment was not employed as a part

of the abatement, two dust samples will

be taken from rooms in the residential

dwelling or child-occupied facility

where the abatement was conducted.

The final rule also limits the number

of rooms that are required to be sampled

as part of clearance to four. Clearance

inspectors are free to sample more than

four rooms, but todays rule establishes

a minimum of four rooms that must be

sampled. The rooms shall be selected

according to documented

methodologies. The current HUD

guidelines, one such documented

methodology, recommend that the

rooms be selected based on where most

of the dust-generating work was done.

The rationale for this change is that

given similar abatement techniques, and

more importantly, similar postabatement cleanup, if the four selected

rooms pass clearance, then the other

rooms will also likely pass.

Based on comments, the final rule,

under § 745.227(e)(8)(iii), now requires

a minimum 1-hour waiting period

following the completion of postabatement clean-up activities prior to

the collection of dust samples for the

purposes of clearance. The 1-hour

waiting period is consistent with the

HUD Guidelines and other State

regulations and guidance on the

appropriate amount of time needed

prior to conducting clearance following

an abatement. Supporting rationale in

the HUD Guidelines have shown that 1-

hour is sufficient time for airborne lead

particles to fall on to horizontal surfaces

and be collected (Ref. 12).

In regard to a reduction in the number

of samples that will be taken as a part

of clearance following an abatement, the

final rule permits the use of composite

sampling. Composite sampling should

assist in reducing the number of

samples that need to be taken as a part

of clearance. As discussed in this Unit

of the preamble in paragraph D, the

Agency believes that composite

sampling can be a reliable, safe and

effective alternative to single surface

sampling.

Sampling requirements also have

been reduced when clearance is

conducted following an exterior

abatement. Again, several comments

were received on clearance

requirements following an exterior

abatement suggesting that the proposed

rule required too many samples. For

example, the proposed rule would have

required soil samples to be taken prior

to an exterior abatement project, so that

any lead levels found in the preabatement samples could be compared

with post-abatement soil samples to

determine if there was any

contamination resulting from the

exterior abatement.

The Agency agrees with commenters

on this point, and has removed the

requirement to take pre-abatement soil

samples and the requirement to take soil

samples following an exterior

abatement. Rather, the final rule

requires a visual inspection to

determine the presence of any paint

chips along the dripline or next to the

foundation below any exterior surface

abated. If paint chips are present, they

must be removed and properly

disposed. The Agency is allowing the

individual or firm conducting the

exterior abatement to determine the

need to conduct any soil sampling,

based on liability concerns the

individual or firm may have based on

potential claims that the actions of the

abatement workers/supervisors caused

soil contamination.

In general, the Agency believes that

today’s final rule more clearly

articulates the number of samples that

must be taken as a part of clearance

testing following either an interior or

exterior abatement. Through composite

sampling, the rule also permits a

reduction in the number of analyses to

be done. In addition, § 745.227(f) of

today’s final rule requires that all

samples must be sent to EPA-recognized

laboratories, which will help ensure the

reliability of sampling results.

Notably, under § 745.223 the final

rule provides a definition for clearance

levels and includes references to the

section 403 Guidance, the HUD

Guidelines and other guidance for

specific numeric values. As discussed in

the September 2, 1994 proposed rule, it

is possible that numeric values for

clearance will be a part of the final

section 403 rulemaking, depending on

the comments received on this matter

under the section 403 proposal. Until

numeric values are established for

clearance through the regulatory

process, certified individuals and firms,

training providers and other persons

should reference the guidance

documents listed in the definition of

clearance levels (contained in § 745.223)

for numeric limits for clearance.

5. Soil abatement. Commenters

requested clarification on various

procedures proposed for soil abatement.

Included among the items raised by

commenters were: clarification as to

whether the proposed soil abatement

procedures applied only to target

housing and child-occupied facilities, or

to public and commercial buildings,

superstructures and bridges, as well;

requests that the Agency stipulate a lead

level in soil to be used to determine

when soil abatement must occur; and

clarification as to whether both bare and

covered soil should be abated.

In response, it should be clear under

today’s final rule that the procedures

put forward for soil abatement under

§ 745.227(e)(7) apply only to target

housing and child-occupied facilities.

Regulations for the management of leadcontaminated soil at industrial sites

currently are provided under RCRA and

Superfund.

On the need for a specific lead level

to determine when soil abatement is

needed, the Agency refers commenters

to its section 403 Guidance document.

In the section 403 Guidance, Agency

recommendations are provided for

response activities to lead-contaminated

soil based on a range of lead levels.

These response actions also take into

account whether the contaminated area

under consideration is used by children.

For example, in the section 403

Guidance, interim control activities are

recommended as a means to reduce

possible lead exposures if lead levels in

bare soil range between 400 and 5,000

parts per million (ppm) and if the area

of concern is expected to be used by

children. Such areas could include
45798 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

residential backyards, and day-care and

school yards. Appropriate interim

control activities could include planting

ground cover or shrubbery to reduce

exposure to bare soil, moving play

equipment away from contaminated

bare soil, or restricting access through

posting, fencing or other actions.

As discussed in the section 403

Guidance, however, the decision on

whether interim controls or an

abatement action is appropriate depends

on several variables. For example,

although the section 403 Guidance does

not recommend soil abatement until

lead levels in soil exceed 5,000 ppm, it

is possible that a risk assessor may

recommend abatement at a lower level.

For instance, in a situation in which the

blood lead levels of children that use an

area under consideration for abatement

are high and the risk assessor has

determined that the soil may be the

primary source of exposure, the risk

assessor would consider presenting

options that include soil abatement.

As discussed throughout this

preamble, the Agency does not believe

it is able, at this time, to effectively

identify, list and regulate all the

variables that may influence decisions

on how to respond to lead-based paint

hazards. Furthermore, today’s final rule

does not provide a specific lead level in

soil for use as an abatement trigger.

Rather, the Agency refers decision

makers in this arena to the section 403

Guidance, which also shall be taught in

accredited training courses.

In terms of conducting soil abatement,

comments were received that requested

clarification of the definition of

permanent covering. In the proposed

rule, the permanent covering of

contaminated soil was listed as a soil

abatement option. In today’s final rule,

soil abatements must be conducted in

one of two ways: If soil is removed, the

lead-contaminated soil shall be replaced

with soil that is not lead-contaminated;

or if soil is not removed, the leadcontaminated soil shall be permanently

covered. In response to commenters, the

final rule also defines permanently

covered soil as soil which has been

separated from human contact by the

placement of a barrier consisting of

solid, relatively impermeable materials,

such as pavement or concrete. Grass,

mulch, and other landscaping materials

are not considered permanent covering.

Commenters also requested

clarification as to whether any amount

of newly added soil could represent a

permanent covering. In response, the

Agency has concluded that at this time,

there is insufficient information to

determine the amount or type of soil

covering that would protect human

health from the risk of exposure to lead

contaminated soil. However, but the

Agency believes that some depth of soil

of a given type may provide adequate

protection. The Agency is seeking

information on this subject and will

address this in the section 403

regulation as part of the discussion on

lead-contaminated soil.

6. Management of waste from lead

abatement activity. Lead-based paint

abatement generates different types of

solid waste, including paint chips,

architectural components, and

contaminated clothing, which may be

subject to hazardous waste treatment,

storage, and disposal regulations under

RCRA Subtitle C (40 CFR part 261).

RCRA establishes a comprehensive

Federal program for the management of

solid and hazardous wastes.

The training requirements in today’s

final rule for workers, supervisors and

project planners include training in the

proper management of wastes generated

during abatement activity. These

requirements will encourage

compliance with RCRA during the

conduct of such activities.

Management of architectural

component debris waste was a

particular concern of some commenters

on the proposed rule. Comments

indicated that RCRA Subtitle C waste

sampling and testing requirements are

impractical for debris, and that the costs

associated with managing debris as

hazardous waste are impeding progress

in reducing lead-based paint hazards.

The Agency wishes to minimize

potential regulatory impediments to

conducting and financing lead-based

paint abatements. Thus, EPA intends to

issue a separate rulemaking specifically

addressing the disposal of architectural

debris waste from lead-based paint

abatements. Until the Agency

promulgates such a rule, the

requirements of RCRA continue to apply

to lead abatement waste.

One important RCRA issue is the

identification of the party deemed the

generator of a waste, particularly in the

context of contractual relationships

such as those for lead-based paint

activities. RCRA defines a generator in

40 CFR 260.10 as ‘‘any person, by site,

whose act or process produces

hazardous waste identified or listed in

[40 CFR part 261] or whose act first

causes a hazardous waste to become

subject to regulation.’’ In the proposal

(59 FR 45890), EPA stated that

contractors for lead-based paint

activities (as opposed to building

owners) are the generators of abatement

waste and are therefore the parties

responsible for RCRA compliance. EPA

received a number of comments

requesting a clarification and

reconsideration of this issue.

EPA wishes to clarify that the

property owner and the abatement

contractor are co-generators of waste

from lead-based paint activities, as both

parties contribute to its generation.

Under co-generator status, one party

might manage the disposal of the waste

(for example, the building owner might

request that a contractor handle this

task), but both parties remain legally

responsible for proper disposal of the

waste and for RCRA compliance. The

Agency discussed cogenerator status in

more detail in an FR notice issued on

October 30, 1980 (45 FR 72026).

IX. State Programs

A. Introduction

This unit contains two parts: (1) A

discussion of procedures for States and

eligible Indian Tribes, including eligible

Alaskan Native Villages, to obtain

authorization from EPA to administer

and enforce (a) a lead-based paint

activities program and/or (b) a prerenovation notification program; and (2)

a description of a model program that

will serve as a blueprint for these State

and Tribal programs.

Section 404(a) of TSCA provides that

any State that seeks to administer and

enforce the standards, regulations, or

other requirements established under

sections 402 (lead-based paint activities)

or 406 (pre-renovation notification) may

submit an application to the

Administrator for approval of such a

program. As discussed, today’s final

rule contains the regulations established

pursuant to section 402(a). The Agency

has not, at this time, promulgated final

regulations under section 406. States

may begin to apply for program

authorization of a pre-renovation once

the final section 406 regulation is

promulgated.

Section 404(b) states that the

Administrator may approve such an

application only after finding that the

State Program is at least as protective of

human health and the environment as

the Federal program established

according to the mandates of TSCA

section 402 or 406 and that it provides

adequate enforcement. The procedures

for submitting an application are found

in § 745.324 of this regulation and are

discussed in more detail below. The

Agency is developing an Application

Guidance Document that it will

distribute, to give additional guidance

on how to develop and submit an

application for program authorization.

Section 404(d) directs the Agency to

promulgate a model State program,

which any State that seeks approval to
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45799

administer and enforce may adopt. In

response to this mandate, the Agency

has promulgated, at §§ 745.325, 745.326,

and 745.327 minimum requirements

and enforcement provisions that a State

or Tribal program must have to receive

authorization from the Agency to

administer a lead-based paint activities

program (§ 745.325) and/or a prerenovation notification program

(§ 745.326). These requirements are

discussed in more detail in Unit IX.E. of

this preamble.

No political subdivisions (e.g., cities,

towns, counties, etc.) other than States,

as defined by TSCA section 3, and

Indian Tribes (see discussion in Unit

IX.F. of this preamble), are eligible for

authorization under this program.

B. Submission of an Application

Before developing an application for

authorization, a State or Indian Tribe

must publicly distribute a notice of

intent to seek such authorization and

provide an opportunity for a public

hearing. The State or Indian Tribe is free

to conduct this hearing and provide an

opportunity for comment in any manner

it chooses. Upon completion of the final

application that reflects this public

participation, the State or Indian Tribe

shall submit the application to the

appropriate EPA Regional Office.

As described at § 745.324(a), an

application for program authorization

must include the following elements: a

transmittal letter from the Governor or

Tribal Chairperson (or equivalent

official); a summary of the State or

Tribal program; a description and

analysis of the program; an Attorney

General’s or Tribal equivalent’s

statement attesting to the adequacy of

the State’s or Indian Tribe’s program

authority; and copies of all applicable

State or Tribal statutes, regulations,

standards and other materials that

provide the State or Indian Tribe with

the authority to administer and enforce

a lead-based paint program.

1. Program description. A program

application must contain information,

specified in § 745.324(b), that describes

the program. The program description is

the portion of the application that the

State or Indian Tribe will use to

characterize the elements of their

program. The Agency will use this

information to make an approval or

disapproval decision on a State or

Indian Tribe’s application. The program

description contains five distinct

sections. In the first (§ 745.324(b)(1)),

the State or Indian Tribe must list the

name of the State or Tribal agency that

will administer and enforce the

program, and if there will be more than

one agency administering or enforcing

the program, describe the relationship

between or among these agencies.

Second, the State or Indian Tribe

must, in the application, demonstrate

that the program meets the requirements

of § 745.325 or 745.326 or both. These

elements represent the minimum

authorities that a State or Tribal

program must have to be considered for

program authorization. These elements

are discussed in greater detail in Unit

IX.E.1. and IX.E.2. of this preamble.

Third, the application must provide

an analysis of the entire State or Tribal

program that describes any dissimilarity

from the Federal program in subpart L

‘‘Requirements for Lead-Based Paint

Activities,’’ or regulations developed

pursuant to TSCA section 406. The

analysis should address each element of

a State or Tribal program: for a leadbased paint activities training and

certification program, those elements

found at § 745.325(a) (i.e., accreditation

of training programs, certification of

individuals, and work practice

standards for the conduct of lead-based

paint activities); and for a prerenovation notification program, those

elements found at § 745.326(a) (i.e.,

distribution of lead hazard information

and a lead hazard information

pamphlet).

The analysis must then explain why,

considering these differences, the State

or Tribal program is at least as

protective as the respective Federal

program. The Agency is inclined to give

deference to a State or Indian Tribes

determination that its program is

sufficiently protective and appropriate

for their State or Indian Tribe. The

Agency will use this analysis, along

with its own comparison, to evaluate

the protectiveness of the State or Tribal

program. This issue is discussed in

more detail in Unit IX.E. of this

preamble discussion.

Fourth, the State’s or Indian Tribe’s

application must demonstrate that the

program meets the requirements of

§ 745.327. These elements represent the

enforcement elements that a program

must have to receive authorization. This

section of the application is discussed

in more detail in Unit IX.E.3. of this

preamble.

In addition to the above, the program

description for an Indian Tribe must

also include a map, legal description, or

other information that will identify the

geographical extent of the territory over

which the Indian Tribe exercises its

jurisdiction. The Indian Tribe shall also

include a demonstration that it is: (1)

Recognized by the Secretary of the

Interior; (2) has an existing government

exercising substantial governmental

duties and powers; (3) has adequate

civil regulatory jurisdiction over the

subject matter and entities regulated;

and (4) is reasonably expected to be

capable of administering the Federal

program for which it is seeking

authorization.

If the Administrator has previously

determined that an Indian Tribe has met

these prerequisites for another EPA

program authorization, then the Indian

Tribe need provide only that additional

information unique to its lead-based

paint program. The rationale for

requiring the tribe to provide this

information is discussed in detail in

Unit IX.F. of this preamble.

2. Attorney General’s statement. The

State or Indian Tribe must provide an

assurance that the State or Indian Tribe

has the legal authority necessary to

administer and enforce the program.

The State or Tribal Attorney General (or

equivalent Tribal official) must sign this

statement. (See discussion in Unit IX.F.

of this preamble for specific Tribal

program requirements).

3. Public availability of application.

Section 404(b) of TSCA requires the

Agency to provide notice and an

opportunity for public hearing on a

State or Tribal application for

authorization. Accordingly, the Agency

will publish in the Federal Register, a

notice announcing the receipt of a

State’s or Tribe’s application, a

summary of the State or Tribal program,

the location of copies of the application

available for public review, and the

dates and times that the application will

be available for public review.

Individuals may at that time submit a

request to the Agency for a public

hearing on the State or Tribal

application. It should be noted that this

opportunity for public hearing is

separate and distinct from the public

comment, discussed in part B. of this

unit of the preamble, that the State or

Indian Tribe must seek before preparing

an application for program approval

(§ 745.324(a)(2)).

C. State Certification

Pursuant to section 404(a), at the time

of submitting an application for program

authorization, a State may also certify to

the Administrator that the State program

meets the requirements of TSCA section

404(b)(1) and 404(b)(2).

If this certification is contained in a

State application, the program is

deemed authorized, until the

Administrator disapproves the

program’s application or withdraws the

program’s authorization. This

certification must be contained in a

letter from the Governor or the Attorney

General, to the Administrator, and must

reference the program analysis
45800 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

contained in the program description

portion of the application as the basis

for concluding that the State program is

at least as protective as the Federal

program and provides for adequate

enforcement.

This provision is not available to

Indian Tribes because Indian Tribes

must first demonstrate to the Agency

that they meet the criteria at

§ 745.324(b)(4) for Treatment as a State

(‘‘TAS’’). Although Indian Tribes may

be able to demonstrate that they have

been approved for ‘‘Treatment as a

State’’ for any other environmental

program (satisfying two of the four TAS

criteria), the Agency must make a

separate determination that an Indian

Tribe has adequate jurisdictional

authority and administrative and

programmatic capability regarding its

lead program before it can determine

that the Tribe should be treated as a

State. These criteria are discussed in

greater detail in Unit IX.F. of this

preamble.

As stated at § 745.324(d)(3), if the

application does not contain such

certification, the State’s program will be

considered authorized only after the

Administrator approves the State

application.

EPA encourages both States and

Indian Tribes to submit their

authorization applications as soon as

possible after October 28, 1996. Because

the Agency anticipates needing the full

180 days to properly review and act on

an application, States and Indian Tribes

are strongly encouraged to submit a

completed application before March 2,

1998.

D. EPA Approval

Within 180 days following receipt of

a complete State or Tribal application,

the Administrator will approve or

disapprove the application. The

Administrator will approve a program

only if, after notice and opportunity for

public hearing, the Administrator finds

that:

(1) The program is at least as

protective of human health and the

environment as the Federal program

contained in subpart L or in regulations

developed pursuant to TSCA section

406; and

(2) The program provides adequate

enforcement of the appropriate State or

Tribal regulations.

The Agency will notify the State or

Indian Tribe in writing of the

Administrator’s decision. As described

in § 745.324(c), upon authorization of a

State or Tribal program, it will be

unlawful under TSCA section 15 and

section 409, for any person to violate,

fail or refuse to comply with any

requirements of such a program.

The Agency believes that section 404

and the decision criteria above give it

reasonably broad latitude in approving

or disapproving State and Tribal

programs. EPA interprets the section

404(b) standard ‘‘. . . at least as

protective as . . .’’ to mean that a

program need not be identical to, or

administered in a manner identical to,

the Federal program for that program to

be authorized. Indeed, the Agency

expects to receive applications for State

and Tribal programs that will differ in

some respects from the Federal program

established in this rulemaking. This is

unavoidable (and even desirable) given

the differences that undoubtedly exist

between lead-based paint problems and

approaches to dealing with them at the

State and Tribal level. The Agency will

make every attempt to accommodate

these differences while following the

statutory requirement of ensuring that

every State or Tribal program is at least

as protective as the Federal program.

1. Establishment of the Federal

program. If a State or Indian Tribe does

not have a program authorized under

this rule and in effect by the August 31,

1998, the Administrator will, by such

date, establish the Federal program

under subpart L, or regulations

developed pursuant to TSCA section

406, as appropriate in that State or

Indian Country.

2. Withdrawal of authorization. As

required by section 404(c) of TSCA, if a

State or Indian Tribe is not

administering and enforcing its

authorized program according to the

standards, regulations, and other

requirements of TSCA Title IV,

including section 404(b)(1) and (b)(2),

the Agency will so notify the State or

Indian Tribe. If corrective action is not

completed within a reasonable time, not

to exceed 180 days, the Administrator

shall withdraw authorization of such

program and establish a Federal

program pursuant to TSCA Title IV in

that State or Tribal land. Procedures for

withdrawal of authorization can be

found in § 745.324(i).

E. Model State Program—Guidance to

States and Indian Tribes; EPA Approval

Criteria

TSCA section 404(d) directs the

Agency to promulgate a MSP that may

be adopted by any State or Indian Tribe

that seeks to administer and enforce a

lead-based paint activities program. As

interpreted by EPA, this model is

intended to serve two purposes. First,

the model is intended to give States and

Tribes guidance as to the contents of a

program that they could develop to

receive program authorization from

EPA. Second, the model is also intended

to provide overall guidance to States

that have not, until this point,

developed legislation or regulations for

a training and certification or a prerenovation notification program.

In the proposed rule, the Agency

offered the entire Federal program as a

model. The Agency stated that, because

section 404(a) requires that an

authorized State or Tribal program be at

least as protective as the Federal

program, a State or Tribal program

seeking authorization should resemble,

in significant respects, the Federal

program. Therefore, the entire Federal

program for lead-based paint activities

was offered as a model for States and

Indian Tribes to use in developing their

own programs.

Many commenters, however, stated

that the proposal did not articulate in

sufficient detail the specific elements a

program must have to be authorized by

EPA. Some commenters also believed

that, as written, the proposal implied

that a State or Tribal program must be

identical to the Federal program. The

Agency did not intend to give this

impression, and in developing a

separate model program has attempted

to clarify what is expected of a State or

Tribal program applying for

authorization.

Other commenters stated that the

Agency should develop a model

program that would dictate all

requirements that must be in a State or

Tribal program. These commenters

expressed the belief that, because the

Agency is required to evaluate the

protectiveness of a State or Tribal

program compared to the Federal

program, the Agency should specify all

elements of a State or Tribal program or

require that a State or Tribe adopt the

entire Federal program. Commenters

believed this approach would alleviate

any uncertainty regarding the

interpretation of the statutory phrase ‘‘.

. . at least as protective as . . .’’ The

Agency has rejected this approach

because it would not allow the

flexibility that EPA believes is necessary

for the effective administration of this

program at the State or Tribal level.

In response to comments the Agency

has modified the final rule in two

significant ways. First, the Agency has

developed a set of minimum

programmatic elements (§§ 745.325 and

745.326 and discussed in sections 1 and

2 of this Unit of the Preamble) that a

State or Tribal program must have to

receive authorization from the Agency.

This section was developed in response

to commenters who requested specific

direction from the Agency on the
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45801

elements that must be contained in a

State or Tribal program seeking

authorization. The requirements at

§§ 745.325 and 745.326 represent the

elements EPA believes a State or Tribal

program must have to successfully

administer a lead-based paint training

and certification or a pre-renovation

notification program. These elements

are discussed in more detail later in this

Unit of the preamble.

Second, as required by Title X, a State

or Tribal program must also be found,

by the Agency, to be at least as

protective as the Federal program. In

today’s final rule a State or Indian Tribe

is required to develop and submit an

analysis of their entire program that

describes the program in comparison to

the Federal program. This analysis

should highlight the differences

between the two programs and should

provide an explanation why the State or

Indian Tribe believes that these

differences do not make their program

any less protective than the Federal

program. The analysis can focus on each

of the program elements (e.g.,

procedures for the accreditation of

training providers) and explain why the

program element, as a whole, is at least

as protective (or not) as the equivalent

element in the Federal program.

Alternatively, the analysis can focus

on the State or Tribal program as a

whole, explaining why the entire State

or Tribal program is at least as

protective as the Federal program. This

approach allows a State or Tribe to

design a program that may fall short of

the Federal program in one element, but

would exceed it for another element.

Either approach allows a State or

Indian Tribe to diverge as necessary and

appropriate from the specific elements

of the Federal program. The critical

factor is that, on balance, a State or

Tribal program element will be as

protective as the corresponding Federal

element. For example, a State training

program may require fewer initial

training hours for a particular discipline

than the Federal program, but it would

surpass the Federal program in

requiring annual refresher training for

certification. The State could argue that,

on balance, this system is as protective

as the Federal program. In this example,

the specific State requirements diverge

from the Federal program, but the State

has concluded that it achieves the same

result—properly trained lead-based

paint professionals.

In reviewing State or Tribal

applications, the Agency will employ

this method of analysis as it examines

the entire State or Tribal program and

compares it with the entire Federal

program. The State’s or Tribe’s own

analysis will facilitate EPA review of a

State or Tribal program, but more

importantly it will allow each State and

Indian Tribe to fully describe and

explain to EPA their program and the

success they believe it will have in

meeting the goals of Title X.

The Agency anticipates that each

State or Indian Tribe will develop a

program that will best serve the needs

of both consumers and lead-based paint

professionals in that State or Indian

Tribe. The Federal program should

serve as a model for States or Indian

Tribes as they develop or refine their

own programs.

1. Program elements: lead-based paint

activities requirements. At § 745.325,

the Agency has promulgated specific

program elements representing the

minimum programmatic requirements

that a State or Tribal program must

contain to receive authorization from

the Agency to administer and enforce

this program.

Section 745.325(a) requires that a

State or Indian Tribe seeking

authorization must have the regulatory

authority to require the training and

certification of individuals engaged in

lead-based paint activities. The State or

Tribal regulations must also establish

work practice standards for the conduct

of these activities.

As discussed previously in Unit IV. of

this preamble, the Agency has not, at

this time, promulgated a regulation

pursuant to section 403 of TSCA. When

final, that rule will identify hazardous

conditions of lead-based paint and

levels of lead and conditions in soil and

dust that would result in a hazard to

building occupants. Accordingly, the

Agency has not established specific

lead-based paint hazard values or

standards (or post-abatement clearance

levels) that a State or Indian Tribe must

have in order to receive program

authorization. However, a State or

Indian Tribe is required to develop and

implement its own post-abatement

clearance requirements.

The Agency believes the lack of

section 403 standards will not adversely

affect its ability to evaluate the

protectiveness of State or Tribal

programs. Hazard levels are only one

component of an overall lead-based

paint activities program, and the

presence of a State or Tribal hazard

level for lead in dust or soil will not, by

itself, guarantee the effective detection

and remediation of lead-based paint

hazards. Other factors such as quality of

training and competency of the

workforce are of equal or greater

importance to the overall success of a

State or Tribal program.

Thus, the Agency believes that it can

adequately evaluate the protectiveness

of State or Tribal programs without

Federal standards identifying hazardous

levels of lead in paint, soil and dust.

The remainder of § 745.325 describes

requirements that a State or Tribal

certification and accreditation program

must also contain. Incorporation of

these elements into a State or Tribal

program will be a significant factor in

the Agency’s evaluation of the

protectiveness of a State or Tribal

program.

The Agency has included, in the next

two sections of this preamble, a

discussion of the goals and objectives

that the Agency considered when

developing its requirements for the

Federal program. The Agency believes

that each State and Indian Tribe should

also consider these goals and objectives

as it develops or refines its own program

in response to this regulation. While not

regulatory requirements, they should

provide States and Indian Tribes an

insight into the factors that the Agency

will consider when it evaluates their

programs.

a. Accreditation of training programs.

Pursuant to § 745.325(b), the State or

Tribal program must contain either

regulations or procedures for the

accreditation of training programs, or

procedures or regulations, for the

acceptance of training offered by an

accredited training provider in a State or

Tribe authorized by EPA.

If the State or Tribe chooses to

develop an accreditation program, the

regulations or procedures must contain

the following: (1) Training curriculum

requirements, (2) training hour

requirements, (3) hands-on training

requirements, (4) trainee competency

and proficiency requirements, and (5)

requirements for training program

quality control. The State or Tribal

regulations must also establish

procedures for the re-accreditation of

training programs, and procedures for

the oversight and control of training

program activities.

A State or Tribal program for training

program accreditation should achieve

three objectives: (1) Establish common

elements in which certified contractors

must be trained, (2) provide training

that enhances the knowledge and

expertise of contractors, and (3) allow

the State or Indian Tribe to suspend,

revoke or modify the accreditation of

training providers who offer

substandard training or who violate the

requirements of the State or Tribal

accreditation program.

Alternatively, the State or Tribe can,

for the purposes of certification, accept

training offered by an accredited
45802 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

training provider in a State or Tribe

authorized by EPA. This approach may

appeal to a smaller State or Tribe that

would like to have a certification

program that would oversee the conduct

of lead-based paint activities, but,

because of low demand, are unwilling to

establish an accreditation program for

training providers. Under this approach,

the State’s or Tribe’s certification

program would accept training offered

at an accredited training provider in any

State or Tribe authorized by EPA.

b. Certification of individuals. Section

745.325(c) describes the requirements

for the certification of individuals that

a State or Tribal program must have to

be considered at least as protective as

the Federal program. The State or Tribal

program must require that certified

contractors are properly trained and are

conducting lead-based paint activities in

a way that meets the work practice

standards established by the State or

Indian Tribe. The State or Tribal

regulations or procedures must also

establish procedures for the recertification and the possible

suspension, revocation or modification

of certificates. In general, the State’s or

Indian Tribe’s certification program

should be designed so that a State or

Indian Tribe can oversee the conduct of

contractors engaged in lead-based paint

activities to ensure that they are

conducting their activities according to

all applicable regulations.

The State or Tribal program must also

establish requirements for the

administration of a third-party

certification exam. The exam should

serve as a confirmation of the

individual’s retention and

understanding of the information taught

in an accredited training course. (The

exam may also provide insight into the

relative quality of accredited training

providers.) Such an exam should be

administered to applicants after

completion of an accredited training

program. The exam should be tailored to

a particular work discipline and must

not be offered by an accredited training

provider. The Agency is currently

developing an item bank of test

questions that EPA will make available

to States and Indian Tribes to use, if

they choose, as their third-party exam.

c. Work practice standards for leadbased paint activities. The State or

Tribal agency must establish work

practice standards for performing leadbased paint activities, taking into

account reliability, effectiveness, and

safety. In § 745.325(d), the Agency has

established minimum requirements for

three lead-based paint activities:

inspection, risk assessment, and

abatement. In a future rulemaking, the

Agency will address the need for work

practice standards for the remaining

lead-based paint activities, e.g.,

deleading, identification of lead-based

paint and demolition in public

buildings, commercial buildings,

bridges and superstructures.

All of the work practice standards or

regulations that a State or Indian Tribe

develops for the conduct of lead-based

paint activities must require that these

activities, if conducted, be conducted by

certified individuals. The work practice

standards and regulations that a State or

Indian Tribe adopts for the conduct of

inspections must ensure that an

inspection accurately identifies and

reports the presence or absence of leadbased paint within the interior or on the

exterior of a residential dwelling. A

State’s or Indian Tribe’s work practice

standards or regulations for the conduct

of risk assessments must ensure that a

risk assessment accurately identifies

and reports on the existence, nature,

severity and location of lead-based paint

hazards, as defined by the State or

Indian Tribe, within a residential

dwelling or on the dwelling’s property.

A State’s or Indian Tribe’s work

practice standards or regulations for the

conduct of abatement must ensure that

abatements are conducted in a way that

permanently eliminates lead-based

paint hazards, and does not increase the

hazards of lead-based paint to building

occupants. The State or Tribal work

practice standards or regulations must

also include requirements for postabatement clearance sampling.

Additionally, the State or Indian Tribe

must adopt or develop a lead-in-dust

post-abatement clearance standard.

As described at § 745.325(a)(6), a State

or Indian Tribe must develop the

appropriate infrastructure to administer

and enforce such a program

successfully. A State or Indian Tribe

must establish a State or Tribal agency

or agencies (or designate an existing

agency or agencies) to implement,

administer, and enforce the program.

Given the scope of the program, it is

likely that more than one State or Tribal

agency will be involved in the

implementation and enforcement of this

program. States and Indian Tribes are

required to identify one agency or

organization within a State or Indian

Tribe (the primary agency) that will

serve to coordinate the activities of

these agencies. States and Indian Tribes

are also encouraged to, whenever

possible, utilize existing certification

and accreditation programs and

procedures.

2. Program elements—pre-renovation

notification. At § 745.326, the Agency

has promulgated specific program

elements that specify minimum

procedures and elements that a State or

Tribal program must contain to receive

authorization from the Agency to

administer and enforce this program.

Section 406(a) directs the Agency to

develop and publish a lead hazard

information pamphlet. Section 406(b)

directs the Agency to develop a

regulation to ensure that individuals

engaged in performing renovation

activities for compensation in target

housing provide a lead hazard

information pamphlet to the owner and

occupant of such housing prior to

commencing the renovation activity.

These Federal regulations will be

promulgated as final at 40 CFR part 745.

Section 745.326 requires that a State

or Indian Tribe seeking authorization

must, at a minimum, promulgate

regulations that will achieve the

objectives of the statutory mandate. The

State or Tribal program must contain

regulations or procedures that require

the following: (1) Procedures and

requirements for distribution of a lead

hazard information pamphlet before the

renovations (for compensation in target

housing) commence; (2) an approved

lead hazard information pamphlet

meeting the requirements of TSCA

section 406 as approved by EPA; and (3)

provisions for the adequate enforcement

of compliance with the above program.

Section 745.326(b) describes the

requirements for distribution of the lead

information that a State or Indian Tribe

must have to be considered at least as

protective as the Federal program. EPA

believes State or Tribal programs should

contain clear standards for identifying

home improvement activities that

trigger the pamphlet distribution

requirements. It should also contain

acceptable procedures for distributing

the lead hazard information to the

owners and the occupants of such

housing before the actual renovation

activity begins.

At § 745.326(c), the Agency has

established minimum requirements for

the distribution of lead hazard

information. The State or Indian Tribe

may either: (1) Distribute the lead

hazard information pamphlet developed

by EPA (under section 406(a) of TSCA)

titled, ‘‘Protect Your Family From Lead

in Your Home,’’ or (2) distribute an

alternative pamphlet or package of lead

hazard information that has been

submitted by the State or Tribe and

approved by EPA for use in that State

or Tribe. Any pamphlet or package of

information submitted for approval

must contain the content and design

elements as Congressionally mandated

by TSCA section 406(a).
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45803

In addition to the content

requirements laid out in section 406(a),

EPA believes that some additional

discussion of Federal priority

information may help States who seek

to develop alternate pamphlets. In order

to educate the public about lead-based

paint hazards in the home, the pamphlet

should provide citizens with clear and

understandable information regarding

the health risks associated with

exposure to lead hazards, especially the

risks to children less than 6 years of age,

pregnant women, and women of

childbearing age. In light of the

exposure prevention goals of the overall

Federal lead hazard reduction program,

EPA believes that State pamphlets

should also include a thorough

discussion regarding measures that can

be taken to reduce or avoid exposure to

lead hazards from paint, dust, and soil

in residential areas.

Since renovations may disturb lead

and create hazards, it is essential that

renovators and occupants of these

homes be encouraged to take special

precautions to reduce or avoid exposure

during renovations. By providing a

reference section including Federal,

State, and local sources of assistance,

citizens will be able to find certified

contractors and information about

inspections, risk assessments, interim

controls, and abatement procedures

available in their areas.

Nevertheless, the Agency recognizes

the need for flexibility in the amount of

detail to be included in a State’s or

Indian Tribe’s information pamphlet,

due to specific needs of each State or

Indian Tribe. In covering all of the

elements, States or Indian Tribes may

determine the breadth of coverage of

each element as they deem necessary.

For example, the Agency recognizes that

it may be infeasible to list all Federal,

State, and local agencies in a reference

section. Rather, States and Indian Tribes

should focus on providing the main

sources of access to that information. In

general, more emphasis should be

placed on the risks and exposure

prevention recommendations.

Furthermore, the Agency recommends

that: (1) The information be written at

no higher than a ninth-grade reading

level; and (2) appropriate layout and

type size be used to maximize

readability and ensure that the

information can be utilized by as wide

an audience as possible.

3. Program elements—enforcement

provisions. As previously discussed, the

Agency is required to determine if a

State or Tribal program will provide for

the adequate enforcement of its

regulations. Many commenters

expressed concern that the proposed

rule did not provide clear guidance as

to how the Agency would interpret this

phrase. Further, the Agency realizes that

it has not provided a benchmark or

model for States and Indian Tribes to

follow as they develop the compliance

and enforcement portions of their leadbased paint programs. As discussed

previously, the proposed and final

Federal regulations developed pursuant

to sections 402(a) and 406 will serve as

an example that States and Indian

Tribes can use as they develop their

own programs. These regulations also

help in defining the scope of the terms

‘‘. . . at least as protective as. . . .’’

Because there is not a comparable

Federal enforcement program to

emulate, and in response to the

concerns of the commenters seeking

more guidance on this issue, the Agency

has developed, at § 745.327(b), (c) and

(d), requirements that a State or Tribal

lead-based paint compliance and

enforcement program must meet in

order to receive authorization. The

Agency believes that a State or Indian

Tribe that develops an enforcement

program based on these requirements

would provide adequate enforcement as

that term is used in TSCA section

404(b)(2).

These requirements were developed

based on the Agency’s experience

evaluating and approving other State

and Tribal compliance and enforcement

programs, as well as the Agency’s

experience in enforcing its own

regulations. Further, the Agency’s own

compliance and enforcement program

for these lead-based paint regulations

will contain the elements described at

§ 745.327.

Section 745.327(b) describes the

required standards, regulations and

authorities that a State or Tribal

program must have. Section 745.327(c)

describes specific performance elements

that a State or Tribal program must

have. Section 745.327(d) describes the

required summary of progress and

performance that a State or Indian Tribe

must agree to submit.

Because these elements are required

of a State or Indian Tribe and will

require some time to fully implement

and develop, the Agency is providing

for a phase-in of a State or Tribal leadbased compliance and enforcement

program.

This phase-in is achieved by allowing

States or Indian Tribes to seek either

interim or final approval of the

enforcement and compliance portion of

their lead-based paint program. Either

type of approval is sufficient for a State

or Tribal program to receive

authorization, provided the other

portions of its program are judged at

least as protective as the Federal

program. A State or Indian Tribe that

receives interim approval for its leadbased paint compliance and

enforcement program must seek and

receive final approval within 3 years of

the date of receiving EPA’s interim

approval. One hundred and eighty days

prior to that date, a State or Indian Tribe

must apply to EPA for final approval of

the compliance and enforcement

program portion of a State or Tribal

lead-based paint program. Final

approval will be given to any State or

Indian Tribe which has in place all of

the elements of § 745.327(b), (c), and (d).

If final approval is not received within

3 years, the Agency will initiate the

process to withdraw the State’s or

Indian Tribe’s authorization.

Interim approval of the compliance

and enforcement program portion of the

State or Tribal lead-based paint program

can be granted by EPA once only, and

will expire no later than 3 years from

the date of EPA’s interim approval. In

order to be considered adequate for

purposes of obtaining interim approval

for the compliance and enforcement

program portion of a State or Tribal

lead-based paint program, a State or

Indian Tribe must include the following

elements in its application for program

authorization. The State or Indian Tribe

must certify it has the legal authority

and ability to immediately implement

the elements at § 745.327(b). This

certification shall include a statement

that the State or Indian Tribe, during the

interim approval period, will carry out

a level of compliance monitoring and

enforcement necessary to ensure that

the State or Indian Tribe addresses any

significant risks posed by

noncompliance with lead-based paint

requirements.

The State or Indian Tribe must also

present a plan with time frames

identified for implementing in the field

all of the elements described at

§ 745.327(c) within 3 years from the

date of interim approval. A statement of

resources must be included in the State

or Tribal plan, which identifies the

resources the State or Indian Tribe

intends to devote to the administration

of its lead-based paint compliance and

enforcement program.

Finally, the State or Indian Tribe must

agree to submit to EPA the Summary on

Progress and Performance of lead-based

paint compliance and enforcement

activities as described at § 745.327(d)

and discussed below. This report must

be submitted by the primary agency for

each State or Indian Tribe that has an

authorized program to EPA beginning

12 months after the date of program

authorization. Each authorized program
45804 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

shall submit the report to the EPA

Regional Administrator for the Region

in which the State or Indian Tribe is

located. The report shall be submitted at

least once every 12 months for the first

3 years after program approval. As long

as these reports indicate that the

authorized program is successful, the

reporting interval will automatically be

extended to every 2 years. If the

subsequent reports demonstrate

problems with implementation, EPA

will require a return to annual reporting

in order to assist the State or Indian

Tribe in resolving the problems. These

programs will return to biannual

reporting after demonstration of

successful program implementation.

Final approval of the compliance and

enforcement program portion of a State

or Tribal lead-based paint program can

be granted by EPA either as part of a

State’s or Indian Tribe’s initial

application (described at § 745.324(a))

or, for States or Indian Tribes which

previously received interim approval as

discussed above (described at

§ 745.327(a)(1)), through a separate

application.

In order for the compliance and

enforcement program to be considered

adequate for final approval as a result of

the State’s or Indian Tribe’s initial

application, the State or Indian Tribe

must certify it has the legal authority

and ability to immediately implement

both the elements at § 745.327(b) and

745.327(c).

The State or Indian Tribe must also

submit a statement of resources which

identifies the resources the State or

Indian Tribe intends to devote to the

administration of its lead-based paint

compliance and enforcement program.

Finally, the State or Indian Tribe must

agree to submit to EPA the Summary on

Progress and Performance of lead-based

paint compliance and enforcement

activities as described at § 745.327(d).

States or Indian Tribes with interim

approval must submit to the Agency 180

days before their interim approval

expires, a separate application

addressing only the compliance and

enforcement program portion of their

program. The State or Indian Tribe must

in this application certify that it has the

legal authority and ability to

immediately implement the elements at

§ 745.327(b) and (c).

The application must include a

statement of resources which identifies

the resources a State or Indian Tribe

intends to devote to the administration

of its lead-based paint compliance and

enforcement program. The State or

Indian Tribe must also agree to submit

to EPA the Summary on Progress and

Performance of lead-based paint

compliance and enforcement activities

as described at § 745.327(d). To the

extent not previously submitted through

the initial application described at

§ 745.324(a), States or Indian Tribes

must submit copies of all applicable

State or Tribal statutes, regulations,

standards and other material that

provide the State or Indian Tribe with

authority to administer and enforce the

lead-based paint compliance and

enforcement program, and copies of the

polices, certifications, plans, reports,

and any other documents that

demonstrate that the program meets the

requirements established at § 745.327.

The remainder of this preamble

section describes in more detail the

elements at § 745.327(b), (c) and(d).

Section 745.327(b) ‘‘Adequate

Standards, Regulations, and Authority’’

requires that a State or Tribal program

must have the elements discussed

below.

1. Lead-based paint activities and

requirements. Lead-based paint

programs must demonstrate

establishment of lead-based paint

requirements for those acts described

under TSCA sections 402(a) and/or 406

and regulations developed pursuant to

those regulations.

2. Authority to enter. Officials must be

able to enter, through consent, warrant,

or other authority, premises or facilities

where violations may occur for

purposes of conducting inspections.

3. Flexible remedies. Lead-based paint

programs must provide for a diverse and

flexible array of enforcement remedies,

which must be reflected in an

enforcement response policy. The leadbased paint program should be able to

select from among the available

alternatives, an enforcement remedy

that is particularly suited to the gravity

of the violation, taking into account

potential or actual risk, including:

(1) Warning letters, or notices of

noncompliance, or notices of violation,

or the equivalent;

(2) Administrative or civil actions

(e.g., accreditation or certification

suspension, revocation or modification,

and/or administrative or civil penalty

assessment); and

(3) Authority to apply criminal

sanctions or other criminal authority

using existing State or Tribal laws, as

applicable.

The Agency understands that Indian

Tribes may have certain restrictions on

their ability to levy criminal sanctions.

This limitation will not necessarily have

a negative impact on an Indian Tribe’s

ability to receive program authorization.

The Indian Tribe should, however,

explain in its application the nature and

extent of any limitation on its ability to

levy criminal sanctions.

Federal law bars Indian Tribes from

trying criminally or punishing nonIndians in the absence of express

authority in a treaty or statute to the

contrary. Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191(1978). In addition,

the Indian Civil Rights Act prohibits any

Indian court or Tribunal from imposing

for any one offense a criminal penalty

greater than $5,000 on Indians within its

jurisdiction (25 U.S.C. section 1302(7)).

The Agency realizes that requiring

Indian Tribes to demonstrate the same

criminal authority as States would

affectively prohibit any Indian Tribe

from obtaining program authorization.

The Agency, in part F of this unit of the

preamble, provides that Indian Tribes

are not required to exercise

comprehensive criminal enforcement

jurisdiction as a condition for leadbased paint activities program

authorization. Under this rule, Indian

Tribes are required to provide for the

timely and appropriate referral of

criminal enforcement matters to the

EPA Regional Administrator when

Tribal enforcement authority does not

exist or is not sufficient (e.g., those

concerning non-Indians or violations

meriting penalties over $5,000). This

section also requires that such

procedures be established in a formal

Memorandum of Agreement with the

Regional Administrator. This approach

is the same that the Agency has taken

in the context of Tribal programs under

the Safe Drinking Water Act and the

Clean Water Act.

It should be noted that, as in

authorized States, EPA has the authority

to take enforcement action if an

authorized Indian Tribe did not (or

could not) take such action or did not

enforce adequately (e.g., did not or

could not impose a sufficient penalty).

EPA emphasizes that this referral

mechanism is available only in those

cases where the limitations on Tribal

enforcement arises under Federal law.

The Memorandum of Agreement will

be executed by the Indian Tribe’s

counterpart to the State Director (e.g.,

the Director of Tribal Environmental

Office, Program or Agency). The

Memorandum of Agreement must

include a provision for the timely and

appropriate referral to the Regional

Administrator for those criminal

enforcement matters where that Indian

Tribe does not have the authority (e.g.,

those addressing criminal violations by

non-Indian or violations meriting

penalties over $5,000). The Agreement

must also identify any enforcement

agreements that may exist between the

Indian Tribe and any State.
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45805

Section 745.327(c) ‘‘Performance

Elements’’ for a lead-based paint

compliance and enforcement program

requires that a State or Tribal program

include the following elements:

a. Training. Lead-based paint

compliance and enforcement programs

must, at a minimum, implement a

process for training inspection

personnel and ensuring that they have

well-trained enforcement inspectors.

Inspectors must successfully

demonstrate knowledge of the

requirements of the particular discipline

(e.g., abatement supervisor, and/or

abatement worker, and/or lead-based

paint inspector, and/or risk assessor,

and/or project planner) for which they

have compliance monitoring or

enforcement responsibilities. For

example, for State compliance/

enforcement inspectors, completion of

the applicable accredited training

course would successfully demonstrate

knowledge of these requirements.

Instruction should take the form of both

hands-on or on-the-job training and the

use of prepared training materials.

b. Compliance assistance. Lead-based

paint compliance and enforcement

programs must provide compliance

assistance to the public and the

regulated community to facilitate

awareness and understanding of and

compliance with the State or Indian

Tribes lead-based paint program(s).

c. Sampling techniques. Lead-based

paint compliance and enforcement

programs must have in place the

technological capability to ensure

compliance with the lead-based paint

program requirements.

d. Tracking tips and complaints. The

lead-based paint compliance and

enforcement program must demonstrate

the ability to process and react to tips

and complaints or other information

indicating a violation. EPA expects that

the ability to process and react to tips

and complaints would, as appropriate,

include:

(1) A method for funneling

complaints to a central organizational

unit for review;

(2) A logging system to record the

receipt of the complaint and to track the

stages of the follow-up investigation;

(3) A mechanism for referring the

complaint to the appropriate

investigative personnel;

(4) A system for allowing a

determination of the status of the case

and ensuring correction of any

violations; and

(5) A procedure for notifying citizens

of the ultimate disposition of their

complaints.

e. Targeting inspections. Lead-based

paint compliance and enforcement

programs must demonstrate the ability

to target inspections to ensure

compliance with the lead-based paint

program requirements.

f. Follow-up to inspection reports.

Lead-based paint compliance and

enforcement programs must

demonstrate the ability to reasonably,

and in a timely manner, process and

follow-up on inspection reports and

other information generated through

enforcement-related activities associated

with a lead-based paint program. The

State or Indian Tribe must be in a

position to ensure correction of

violations, and, as appropriate,

effectively develop and issue

enforcement remedies/responses in

follow-up to the identification of

violations.

g. Compliance monitoring and

enforcement. A lead-based paint

compliance and enforcement program

must demonstrate that it is in a position

to implement a compliance and

enforcement program. Such a

compliance monitoring and

enforcement program must ensure

correction of violations, and encompass

either planned and/or responsive lead

hazard reduction inspections and

development/issuance of State or Tribal

enforcement responses which are

appropriate to the violations.

Section 745.327(d) ‘‘Summary on

Progress and Performance’’ requires the

State or Indian Tribe to submit a report

which summarizes the results of

implementing the State’s or Indian

Tribe’s lead-based paint compliance and

enforcement program, including a

summary of the scope of the regulated

community within the State or Indian

Tribe (which would include the number

of individuals and firms certified in

lead-based activities and the number of

training programs accredited), the

inspections conducted, enforcement

actions taken, compliance assistance

provided, and the level of resources

committed by the State or Indian Tribe

to these activities and any other leadbased paint administrative and

compliance/enforcement activities.

The report should describe any

significant changes in the enforcement

of the State or Tribal lead hazard

reduction program implemented during

the last reporting period. The report

should also summarize the results of the

State’s or Indian Tribe’s implementation

activities and what the State or Indian

Tribe discovered, in general, with regard

to lead-based paint compliance and

enforcement in the State or Indian Tribe

as a result of these activities during the

period covered by the report. The report

should also describe how any measures

of success were achieved, and directly

assess the impact of compliance/

enforcement activities on reducing

threats to public health.

4. Reciprocity. EPA strongly

encourages each State or Indian Tribe to

establish reciprocal arrangements with

other States and/or Indian Tribes with

authorized programs. Such

arrangements might address cooperation

in certification determinations, the

review and accreditation of training

programs, candidate testing and

examination administration, curriculum

development, policy formulation,

compliance monitoring, or the exchange

of information and data. The benefits to

be derived from these arrangements

include a potential cost-saving from the

reduction of duplicative activity and

attainment of a more professional

workforce as States and Tribes can

refine and improve the effectiveness of

their programs based upon the

experience and methods of other States

and Tribes.

Several elements of the EPA

accreditation and certification programs

in § 745.225 through 745.226 are

intended to facilitate reciprocity. One of

the most critical elements is the

certification examination. The

examination will serve to ensure that

each individual certified under this

program has a minimum level of

knowledge in his or her particular

discipline. At the same time, the

certification examination development

procedures (previously outlined in this

preamble), will allow a State or Indian

Tribe the flexibility to either adopt a

‘‘standardized’’ examination, or develop

its own examination according to

‘‘standardized’’ guidelines. A second

element is the inclusion of a refresher

training course in the Federal program.

Successful completion of a State or

Tribal accredited refresher course may

serve as an ideal requirement for

individuals seeking a reciprocal

certification in another State or Tribe.

F. Treatment of Tribes as a State

Today, EPA is also providing

Federally recognized Indian Tribes the

opportunity to apply for and receive

lead-based paint program authorization

similar to that available to States.

Providing Indian Tribes with this

opportunity is consistent with EPA’s

Policy for the Administration of

Environmental Programs on Indian

Reservations. This policy, formally

adopted in 1984 and reaffirmed on

March 14, 1994 by the Administrator, ‘‘.

. . views Tribal Governments as the

appropriate non-Federal parties for

making decisions and carrying out

program responsibilities affecting Indian

reservations, their environments, and
45806 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

the health and welfare of the reservation

populace.’’

A major goal of EPA’s Indian Policy

is to eliminate all statutory and

regulatory barriers to Tribal

administration of Federal environmental

programs. Today’s final rule represents

another step in the Agency’s continuing

commitment toward achieving this goal.

However, EPA recognizes, that some

eligible Indian Tribes may choose not to

apply for program authorization.

Despite the choice made, the Agency

remains committed to providing

technical assistance and training when

possible to Tribal entities as they work

to resolve their lead-based paint

management concerns.

EPA believes that adequate authority

exists under TSCA to allow Indian

Tribes to seek lead-based paint program

authorization. EPA’s interpretation of

TSCA is governed by the principles of

Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S.

837 (1984). Where Congress has not

explicitly stated its intent in adopting a

statutory provision, the Agency charged

with implementing that statute may

adopt any interpretation which, in the

Agency’s expert judgment, is reasonable

in light of the goals and purposes of the

statute as a whole. Id. 844. Interpreting

TSCA to allow Indian Tribes to apply

for program authorization satisfies the

Chevron test.

TSCA does not explicitly define a role

for Indian Tribes under Sections 402 or

404 and reflects an undeniable

ambiguity in Congressional intent.

Indian Tribes are not subject to State

law except in very limited

circumstances. See, California v.

Cabazon Band of Mission Indians, 480

U.S. 202 (1987). Indian Tribes are

sovereign governments. See Worcester v.

Georgia, 31 U.S. (10 Pet.) 515 (1832);

and United States v. Mazurie, 419 U.S.

544, 557–58 (1975). There is no

indication in the legislative history that

Congress intended to abrogate any

sovereign Tribal authority by denying

Indian Tribes the opportunity to apply

for authorization to run lead-based paint

programs on Tribal lands or subjecting

Indian Tribes to State law for TSCA

purposes. Moreover, it is a wellestablished principle of statutory

construction that Federal statutes which

are ambiguous as to whether they

abridge Tribal powers of selfgovernment must generally be construed

in favor of retaining Tribal rights. F.

Cohen, Handbook of Federal Indian

Law, 224 (1982); See, e.g., Ramah

Navajo School Board v. Bureau of

Revenue, 458 U.S. 832, 846 (1982).

Failure to authorize Tribal lead-based

paint programs would deny Indian

Tribes the option currently available to

States to administer their programs in

lieu of the Federal program. With this

rule, however, regulated lead-based

paint activities in Indian country could

be under the jurisdiction of the closest

sovereign with program and

enforcement authority, the Indian Tribe,

rather than the Federal government.

Extending the ability to receive program

authorization to Indian Tribes is

consistent with the general principles of

Federal Indian law and the Agency’s

Indian Policy, which states that

environmental programs (e.g., TSCA

Section 402/404) in Indian country will

be implemented to the maximum extent

possible by Tribal governments. Thus,

EPA believes that allowing Indian

Tribes to apply for program

authorization reflects the sovereign

authority of Indian Tribes under Federal

law.

In the case of other environmental

statutes (e.g., the Clean Water Act), EPA

has worked to revise them to define

explicitly the role for Indian Tribes

under these programs. Yet, EPA also has

stepped in on at least two occasions to

allow Indian Tribes to seek program

approval despite the lack of an explicit

Congressional mandate. Most recently,

EPA recognized Indian Tribes as the

appropriate authority under the

Emergency Planning and Community

Right-to-Know Act (EPCRA), despite

silence on the Tribal role under EPCRA

(55 FR 30632; July 26, 1990). EPA

reasoned that since EPCRA has no

Federal role to back-up State planning

activities, failure to recognize Indian

Tribes as the authority under EPCRA

would leave gaps in emergency

planning on Indian lands. (54 FR 13000;

March 29, 1989).

EPA filled a similar statutory gap

much earlier as well, even before

development of its formal Indian Policy.

In 1974, EPA promulgated regulations

which authorized Indian Tribes to

redesignate the level of air quality

applicable to Indian Lands under the

Prevention of Significant Deterioration

(PSD) program of the Clean Air Act in

the same manner that States could

redesignate for other lands. See Nance

v. EPA (upholding regulations). EPA

promulgated this regulation despite the

fact that the Clean Air Act at that time

made no reference whatsoever to Indian

Tribes or their status under the Act.

One court already has recognized the

reasonableness of EPA’s actions in

filling such regulatory gaps on Indian

lands. In Nance, the U.S. Court of

Appeals for the Ninth Circuit affirmed

EPA’s PSD redesignation regulations

described in the previous paragraph.

The Court found that EPA could

reasonably interpret the Clean Air Act to

allow for Tribal redesignation, rather

than allowing the States to exercise that

authority or exempting Indian lands

from the redesignation process. 745 F.2d

713. The Court noted that EPA’s rule

was reasonable in light of the general

existence of Tribal sovereignty over

activities on Indian Lands. Id. 714.

Today’s final rule is analogous to the

rule upheld in Nance. EPA is proposing

to fill a gap in jurisdiction on Indian

lands. As with the redesignation

program, approving Tribal lead-based

paint activities programs ensures that

the Federal government is not the entity

exercising authority that Congress

intended to be exercised at a more local

level. Furthermore, the case law

supporting EPA’s interpretation is even

stronger today than at the time of the

Nance decision. First, the Supreme

Court has reaffirmed EPA’s authority to

develop reasonable controlling

interpretations of environmental

statutes. Chevron, supra. Second, the

Supreme Court has emphasized since

Nance that Indian Tribes may regulate

activities on Indian Lands, including

those of non-Indians, where the conduct

directly threatens the health and safety

of the Indian Tribe or its members.

Montana v. United States, 450 U.S. 544,

565 (1981).

In the case of lead-based paint, EPA

believes that improperly conducted

activities could directly threaten human

health (including that of Tribal

members) and the environment

(including Indian lands). Indian Tribes

are likely to be able to assert regulatory

authority over activities conducted on

Indian lands to protect these interests.

Thus, as in Nance, EPA believes that

allowing Indian Tribes to apply for

program authorization reflects the

sovereign authority of Indian Tribes

under Federal law.

To have its lead-based paint program

authorized by EPA under today’s final

rule, an Indian Tribe would have to

have adequate authority over the

regulated activities. The jurisdiction of

Indian Tribes clearly extends ‘‘over both

their members and their territory.’’

United States v. Mazurie, 419 U.S. 544,

557 (1975). However, Indian

reservations may include lands owned

in fee by nonmembers. ‘‘Fee lands’’ are

privately owned by non-members and

title to the lands can be transferred

without restriction. The extent of Tribal

authority to regulate activities by nonTribal members on fee lands depends on

whether those activities threaten or have

a direct effect on the political integrity,

the economic security, or the health or

welfare of the Indian Tribe. Montana v.

U.S., 450 U.S. 544. 565–66 (1981).
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45807

The Supreme Court in several post—

Montana cases has explored several

criteria to assure that the impacts upon

Indian Tribes of the activities of nonIndians on fee land, under the Montana

test, are more than de minimis. To date,

however, the Court has not agreed in a

case on point on any one reformulation

of the test. In response to this

uncertainty, the Agency will apply, as

an operating rule, a formulation of the

Montana standard that will expect a

showing that the potential impacts of

regulated activities of non-members on

the Indian Tribe are serious and

substantial. See 56 FR 64876, 64878;

December, 12, 1991.

EPA will, thus, require that an Indian

Tribe seeking lead-based paint program

authorization over activities of nonmembers on fee lands demonstrate

jurisdiction, i.e., make a showing that

the potential impacts on Indian Tribes

from lead-based paint activities of nonmembers on fee lands are serious and

substantial. The choice of an Agency

operating rule containing this standard

is taken solely as a matter of prudence

in light of judicial uncertainty and does

not reflect an Agency endorsement of

that standard per se. See 56 FR 64878.

Whether an Indian Tribe has

jurisdiction over activities by nonmembers on fee lands, will be

determined case-by-case, based on

factual findings. The determination as to

whether the required effect is present in

a particular case depends on the

circumstances and will likely vary from

Indian Tribe to Indian Tribe. The

Agency believes, however, that the

activities regulated under the various

environmental statutes, including

TSCA, generally have the potential for

direct impacts on human health and

welfare that are serious and substantial.

See 56 FR 64878.

The process that the Agency will use

for Indian Tribes to demonstrate their

authority over non-members on fee

lands includes a submission of a

statement pursuant to § 745.324(c)

explaining the legal basis for the Indian

Tribes’ regulatory authority. However,

EPA will also rely on its generalized

findings regarding the relationship of

lead-based paint activities and related

hazards to Tribal health and welfare.

Thus, the Tribal submission will need to

make a showing of facts that there are

or may be activities regulated under

TSCA Title IV by non-members on fee

lands within the territory for which the

Indian Tribe is seeking authorization,

and that the Indian Tribe or Tribal

members could be subject to exposure to

lead-based paint hazards from such

activities through, e.g., dust, soil, air,

and/or direct contact. The Indian Tribe

must explicitly assert and demonstrate

jurisdiction, i.e., it should make a

showing that lead-based paint activities

conducted by non-members on fee lands

could have direct impacts on the health

and welfare of the Indian Tribe and its

members that are serious and

substantial. Appropriate governmental

entities (e.g., an adjacent Indian Tribe or

State) will have an opportunity to

comment on the Indian Tribe’s

jurisdictional assertions during the

public comment period prior to EPA’s

action on the Indian Tribe’s application.

The Agency recognizes that

jurisdictional disputes between Indian

Tribes and States can be complex and

difficult and that it will, in some

circumstances, be forced to address

such disputes by attempting to work

with the parties in a mediative fashion.

However, EPA’s ultimate responsibility

is protection of human health and the

environment. In view of the mobility of

environmental problems, and the

interdependence of various

jurisdictions, it is imperative that all

affected sovereigns work cooperatively

for environmental protection.

Under the Clean Water Act (CWA),

the Safe Drinking Water Act (SDWA),

the Comprehensive Environmental

Response, Compensation and Liability

Act (CERCLA) and the Clean Air Act

(CAA), Congress has specified certain

criteria by which EPA is to determine

whether an Indian Tribe may be treated

in the same manner as a State. These

criteria generally require that the Indian

Tribe (1) Be recognized by the Secretary

of the Interior; (2) have an existing

government exercising substantial

governmental duties and powers; (3)

have adequate civil regulatory

jurisdiction over the subject matter and

entities to be regulated; and (4) be

reasonably expected to be capable of

administering the Federal

environmental program for which it is

seeking approval.

As discussed below, EPA is requiring

Indian Tribes seeking program

authorization and grants under TSCA

section 404 to demonstrate in the

Program Description that they meet the

four criteria listed above. The process

EPA is proposing for Indian Tribes to

make this showing, however, generally

is not an onerous one. The Agency has

simplified its process for determining

Tribal eligibility to administer

environmental programs under several

other environmental statutes. See 59 FR

64339 (December 14, 1994) (‘‘Treatment

as a State (TAS) Simplification Rule’’).

The proposed process for determining

eligibility for TSCA Section 404

programs parallels the simplification

rule. Generally, the fact that an Indian

Tribe has met the recognition or

governmental function requirement

under another environmental statute

allowing for Tribal assumption of

environmental programs (e.g., the Clean

Water Act, Safe Drinking Water Act,

Clean Air Act) will establish that it

meets those particular requirements for

purposes of TSCA Section 404

authorization. To facilitate review of

Tribal applications, EPA requests that

the Indian Tribe demonstrate that it has

been approved for ‘‘TAS’’ (under the old

‘‘TAS’’ process) or been deemed eligible

to receive authorization (under the

simplified process) for any other

program.

If an Indian Tribe has not received

‘‘TAS’’ approval or been deemed

eligible to receive authorization, the

Indian Tribe must demonstrate,

pursuant to § 745.324(b)(5)(ii), that it

meets the recognition and governmental

function criteria described above. A

discussion on how to make these

showings can be found at 59 FR 64339

(December 14, 1994).

EPA believes, on the other hand, that

the Agency must make a separate

determination that an Indian Tribe has

adequate jurisdictional authority and

administrative and programmatic

capability before it approves each Tribal

lead-based paint program.

In particular, if the Indian Tribe is

asserting jurisdiction over lead-based

paint activities conducted by nonmembers on fee lands, it must explicitly

show, in its submission, that the

activities of non-members on fee lands

regarding lead-based paint could have

serious and substantial effects on the

health and welfare of the Indian Tribe.

Copies of all documents, such as

treaties, constitutions, bylaws, charters,

executive orders, codes, ordinances,

and/or resolutions which support the

Indian Tribe’s assertions of jurisdiction

must also be included. EPA will review

this documentation and any comments

given during the public comment

period, and then will make a

determination whether there has been

an adequate demonstration of Tribal

jurisdiction over Tribal, and if asserted,

non-member activities on fee lands

within the boundaries of the

reservations.

Finally, capability is a determination

that will be made on a case-by-case

basis. Ordinarily, the information

provided in the application for program

approval submitted by an Indian Tribe

or State, will be sufficient. Nevertheless,

EPA may request, in individual cases,

that the Indian Tribe provide a narrative

statement or other documents showing

that the Indian Tribe is capable of
45808 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

administering the program for which it

is seeking approval. See 59 FR 64341.

Consistent with the simplification

rule, no prequalification process will be

required for Indian Tribes to obtain

program approval for the lead-based

paint program. EPA will evaluate

whether Indian Tribes have met the four

eligibility criteria listed above during

the program approval process.

Today’s final rule also authorizes

grants to eligible tribes as well as States

under TSCA section 404(g). Under the

statutory scheme, section 404(g) grants

are specifically designed to aid in

developing and implementing

authorized TSCA lead-based paint

activities programs. Given the Agency’s

interpretation that TSCA section 404 is

properly read to allow EPA to authorize

qualifying Tribes to administer a leadbased paint program in lieu of the

Federal program, it follows that these

Tribes should also be eligible to receive

grant funding under TSCA section

404(g) to ‘‘develop and carry out

authorized programs . . . .’’ The

Agency’s interpretation is consistent

with well established statutory

construction that ambiguous statutes

should be construed in favor of Tribes.

See, e.g., Ramah Navajo School Board v.

Bureau of Revenue, 458 U.S. 832, 846

(1982); see also, F. Cohen, Handbook of

Federal Indian Law, 224–225 (1982).

X. Regulatory Assessment

Requirements

A. Executive Order 12866

Pursuant to Executive Order 12866

(58 FR 51735, October 4, 1993), it has

been determined that this is a

‘‘significant regulatory action’’ because

this regulation may raise novel legal or

policy issues arising out of the initial

implementation of the new legal

mandates. As such, this action was

submitted to the Office of Management

and Budget (OMB) for review. Any

comments or changes made during that

review have been documented in the

public record.

In addition, as specified by the

Executive Order, the Agency has

prepared a regulatory impact analysis

(RIA) of the economic impacts

associated with this regulation. The

complete RIA document, titled TSCA

Title IV Sections 402(a) and 404: Target

Housing and Child-Occupied Facilities

Final Rule Regulatory Impact Analysis,

has been included in the public record

for this regulation and is available for

inspection in the TSCA public docket

office. The central issue in the analysis

is to identify, quantify and value the

private and social benefits and costs of

requiring that all lead-based paint

abatement activities be performed by

certified personnel trained by an

accredited program, and that all leadbased paint activities meet certain

minimum work practice standards. In

attempting to conduct such an analysis,

EPA encountered several difficulties

related to the availability of data

associated with the activity-specific

costs and the benefits attributable to

having trained and accredited personnel

conduct the activities in accordance

with specific standards. Using available

information, the resulting analysis was

issued with the proposed rule and any

comments received were considered in

the development of the final rule, as

well as in the development of the

corresponding final RIA. The following

is a brief summary of the final RIA:

1. Costs of regulatory action. Cost

estimates for performing lead-based

paint activities pursuant to today’s final

rule are based on the number of

inspections, lead hazard screens, risk

assessments, and abatement activities

and the unit costs associated with

performing such activities. The firstyear costs are estimated to be $31

million. Since the benefits and costs of

this regulation occur at different times

during the 50-year analysis period, EPA

estimated their present value by

discounting them. The selection of a

discount rate has a direct bearing on the

analysis, because cost and benefit

estimates are sensitive to variations in

the discount rate. As such, learned

opinions vary on which discount rate

should be used in certain

circumstances. In this analysis, EPA

uses a 3% discount rate for the core

analysis and a 7% discount rate in the

sensitivity analysis. Using a 3%

discount rate, the present value of the

costs over the 50-year time period total

$1.114 billion. At a 7% discount rate,

total costs fall to $530 million.

Total costs of compliance with work

practice standards are estimated at $637

million and account for 57% of the

discounted costs. The work practice

standard costs are the main source of

costs, due primarily to the cost of

following these standards when

conducting risk assessments and

abatements in target housing and childoccupied facilities.

Certain assumptions that are a result

of data limitations affect the estimates of

the incremental costs of the rule. The

analysis assumes current practices and

training rates make up the baseline to be

compared to the changes that will result

from the rule provisions. This analysis

accounts for the fact that lead-based

paint activities are presently occurring,

but does not account for the potential

increase in such activities over time as

a result of EPA regulations

implementing other portions of Title X,

resulting in greater costs. However,

under these circumstances the attendant

benefits would also be greater. Also,

current training rate estimates assume

that on average, lead-based paint

activities do not provide full-time

employment. If lead-based paint

activities do constitute full-time

employment, then fewer people will

require training.

2. Benefits of regulatory action. The

objective of the benefit analysis is to

identify the benefits attributable to the

regulation, which in this case are the

incremental benefits associated with

sections 402(a) and 404 or the value of

any incremental risk reduction brought

about by performing these activities

using trained labor that complies with

the work practice standards, which are

also contained in the rule. These

benefits consist of the value to

consumers of being able to purchase

lead-based paint activities services of

more reliable quality. As a result of the

reduced uncertainty about the quality of

such services, more inspections, lead

hazard screens, risk assessments, and

abatements will be performed. In

addition, the average quality of the

services that are performed will rise as

the low-quality lead-based paint

activities are curtailed or eliminated by

the accreditation, training, certification

and work-practice standard

requirements. The quantification and

valuation of these benefits—the ability

to purchase a service of more reliable

quality and the improvement in

quality—would require information

about the distribution of quality of leadbased paint activities that building

owners may purchase if this rule were

promulgated, and in its absence. Due to

data limitations, it was not possible to

estimate the benefits of the rule. Total

benefits of abatement, however, were

estimated. The number of quantifiable

and monetizable benefit categories in

the analysis of abatement benefits is

limited because dose-response functions

necessary to assess the potential impacts

of lead-based paint hazard reductions

on human health and the environment

are not available, and knowledge of

national blood-lead levels pre- and postimplementation of sections 402(a) and

404 is also unavailable.

The second-year total measurable

benefits of abatement are estimated at

$625 million. Total measurable benefits

of abatement, discounted over a 50-year

period at 3% percent are estimated at

$16.1 billion, and discounted at 7%

over the same time period are estimated

at $1.55 billion. These benefits accrue

from reductions of negative impacts on
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45809

children’s intelligence, with an

estimated present value of total

measured benefits of abatement equal to

$16.1 billion ($13.1 billion in target

housing and $3 billion in childoccupied facilities).

In addition to the measured benefits

of abatement in the base analysis, which

focuses on protection of children age 6

years or younger, other qualitative

benefit categories exist. These categories

include:

(1) Neonatal mortality;

(2) Adult resident health effects such

as hypertension, coronary heart disease

and stroke;

(3) Infant/child neurological effects;

(4) Occupational health effects such

as hypertension, coronary heart disease,

and stroke; and

(5) Environmental risk reductions.

With the exception of (1) and (2), it is

not possible to value these benefits due

to data limitations. The contributions of

these two benefit categories are

estimated and included in the

sensitivity analysis below. Were the

values of these additional benefit

categories included in the primary

analysis, the measured benefits of the

rule could be as much as $54 billion

when discounted at 3% over 50 years.

3. Benefit-cost comparison. The

purpose of this Regulatory Impact

Analysis (RIA) was to analyze the

benefits, costs, and economic impacts of

the final rule implementing sections

402(a)/404. As discussed in the RIA,

there are benefits to society associated

with the reduction of lead-based paint

hazards in general and there are also

benefits associated with the

establishment of certification programs

for ensuring that only trained

individuals perform the lead-based

paint activities. Although there is

insufficient data to allow for a

quantification of those benefits, EPA

believes that the analysis it conducted

with regard to the benefits from

reducing lead-based paint hazards

indicates that sections 402(a)/404

provide a vehicle that will aid in the

realization of those benefits and that the

costs of this rule are reasonable in light

of the potential magnitude of those

benefits, quantified or not.

It is important to point out that while

the total costs of the rule are

comprehensively quantified, benefits of

abatement are only partially quantified.

If benefits to adult residents of target

housing, lead-based paint abatement

workers, individuals who live, work, or

travel near abatement activities, and the

environment were included, the benefits

of the rule would be increased

substantially. Estimates for possible

benefits to two groups of potential

beneficiaries (workers and adult

residents of target housing) are provided

in the sensitivity analysis discussion

below.

4. Sensitivity analysis. Six sets of

sensitivity analyses examine the effects

on key categories of the benefits of

abatements and cost categories. Two

sets affected the costs: alternative work

practice standard costs (resulting from

alternative estimates of likely soil

abatement practices) and alternative

training costs (resulting from alternative

assumptions of likely workload). In

addition, varying assumptions of

changes in blood-lead levels attributable

to the rule provide estimated potential

benefits for neonatal mortality, adult

residents of abated units and workers.

Finally, an alternative discount rate of

7%, which affects both the estimated

costs and benefits of the rule, is applied.

Use of an alternate discount rate and

inclusion of adult resident benefits had

the greatest impact on benefits and

costs. Simply discounting the stream of

costs by 7% decreases the present value

of the 50-year incremental cost estimate

by 52%. Correspondingly, the use of the

7% discount rate decreases the present

value of the 50-year benefit stream by

90%. Incorporation of adult resident

benefits increases total benefits by $17.9

billion per 0.1 μg/dL change in blood

lead when discounted at 3% over 50

years, without impacting the costs.

5. Response to comments on the RIA.

The Agency received comments on the

RIA from 16 parties. The comments are

in five major categories: types of

structures covered by the rule,

estimation of benefits, estimation of

costs, analytic assumptions, and factors

left out of the analysis. In several cases,

the rule and/or the analysis were

revised to respond to these comments.

In other cases, the Agency determined

that the rule and analysis were

appropriate. The comments and

responses are summarized here.

Comments on the types of structures

covered address the impacts of the rule

on public and commercial buildings and

steel structures. The Agency plans to

develop separate regulations affecting

public and commercial buildings and

steel structures, and comments will be

addressed at that time.

Several commenters stated that EPA

had overestimated the benefits of the

rule. While it is not possible to isolate

the incremental benefits resulting from

the rule, estimating the total value of

certain categories of benefits due to

properly performed abatements

provides a useful benchmark against

which to compare the incremental costs

of the rule. This is especially true since

poorly performed activities can result in

further exposures and thus negative

benefits. The RIA benefit estimates rely

on IQ-related benefits to children age 6

years and younger; neonatal and adult

hypertension benefits which are also

assumed to result from the proposed

rule are presented in the sensitivity

analysis. The benefit estimates include

the benefits derived from the reductions

in lead-contaminated dust that occur

with a lead-based paint abatement.

On the cost side of the analysis, some

commenters argued that the costs were

overestimated, while others that costs

were underestimated. In response to

comments that costs were

overestimated, the Agency notes that the

estimates were conservative. In response

to the comments, the costs were

underestimated; the Agency notes that

the estimated costs are incremental not

total. The per unit costs are estimated by

comparing current industry practices to

those required under the rule,

identifying the additional actions the

rule would impose, and calculating the

costs of these actions. The current

analysis accounts for the fact that some

households will choose to skip the

inspection step and start the process

with a lead hazard screen or risk

assessment. Changes were also made in

the regulations governing soil

abatements and the analysis of these

costs. The Agency has reviewed the

analysis and determined that costs are

not underestimated.

A few of the comments challenged

various analytic assumptions or

approaches. Some argued that EPA’s

Integrated Exposure Uptake Biokinetic

(IEUBK) Model should not be used in

estimating the benefits. The Agency

believes the use of this model to be

appropriate; the Agency currently uses

it for risk assessments at sites covered

under the Superfund program and the

Resource Conservation and Recovery

Act. Other comments challenged the

discount rate used in the analysis and

the handling of productivity growth.

The analysis is performed in real, as

opposed to nominal, terms and thus it

is not necessary to adjust for inflation.

The 3% discount rate is consistent with

other environmental regulations; the

effects of using a higher rate are

presented in the sensitivity analysis.

Several comments asserted that the

analysis had not accounted for

important factors. This is not the case.

The final RIA includes the effect of

OSHA rules, which was one factor

noted by commenters. The impact of the

rule on the demand for lead-based paint

activities is modeled using data from

Massachusetts, where similar

regulations have been in effect for a few

years. Attempts to uncover other
45810 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

sources of data have been unsuccessful.

In addition, the analysis now uses a

single definition of lead-based paint

hazards (paint with lead content of 1

mg/cm2 and in deteriorated condition or

good condition on friction surfaces).

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), the Agency

considered whether today’s regulatory

action will have a significant economic

impact on a substantial number of small

entities. Based on the Agency’s analysis,

EPA determined that this action is likely

to have a modest adverse economic

impact on a substantial number of small

entities. EPA conducted a regulatory

flexibility analysis for the rule, the

results of which are summarized in

today’s preamble and discussed in

detail in supporting documents in the

rulemaking record. In light of that

analysis and public comments received,

the Agency took numerous steps to

minimize any adverse impact associated

with the final rule, with particular

emphasis on reducing any potential

adverse impact on small entities. For

example, in the final rule, the Agency

reduced the recordkeeping requirements

associated with the work practice

standards, and reduced the length of the

abatement worker course.

Previous sections of the preamble to

this final rule include discussions

summarizing the need for and objective

of this rule, responses to the significant

comments received on the proposed

rule, and a summary of the analysis of

small entity impacts. In addition, a

Response to Public Comment Document

presents EPA’s detailed response to all

the significant comments received on

the proposal (including the initial

regulatory flexibility analysis prepared

for the proposed rule); and a Regulatory

Impact Analysis (RIA) includes a

complete description of the small

entities potentially impacted, the

projected requirements that small

entities might be subject to, a summary

of the changes made to the proposed

rule which minimize the burden in the

final rule, and an analysis of the

projected impacts on small entities.

These documents are available in the

public docket supporting this

rulemaking.

The following is a brief summary of

EPA’s analysis of the potential

economic impacts on small entities.

Basically, section 402(a) does not

require or mandate the abatement of

lead-based paint, nor require that any

particular enterprise participate in the

abatement of lead-based paint. However,

section 402(a) does require that if an

abatement is voluntarily conducted,

certain training requirements and work

practices must be followed. The costs of

required training, certification, and

work practice standards may create

competitive differences that could result

in unfair burdening of small firms. This

analysis estimates both the absolute and

the relative burden on small and large

businesses.

The section 402(a) compliance costs

consist of two components that may

impact small businesses: (1)

Accreditation and training costs for

workers and supervisors, as well as

certification costs for firms, and (2)

incremental costs of work practice

standards for abatement procedures.

These two components coincide with

the two decision points faced by firms

interested in performing lead-based

paint abatement work (including soil

abatement). In order to participate in

this industry, a firm must be certified

and its employees must be trained and

certified. Firms incur these expenses in

anticipation of work, based on its

assessment of the future demand for

such services, its competition, and the

price it will be able to charge. If the

market demand does not meet these

expectations, the firm may not recoup

these costs, thus decreasing its profits.

The costs resulting from work practice

standards are of a different nature.

Firms that perform lead-based paint

activities often perform similar work in

settings that do not involve lead and are

not affected by this rule. Occurring at

the second decision point, work practice

standards costs will be incurred by a

firm only if it chooses to undertake a

given lead-based paint job. In each

situation, the firm can assess the impact

of the work practice standards on its

sales and profit levels. If the impact is

adverse (i.e., results in profit levels

below those available for other work),

the firm has the option to decline the

work. Most firms that perform leadbased paint activities are also active in

the non-lead-based paint markets. In

this voluntary setting, the work practice

standards will not have an adverse

impact on the profits of businesses

because these firms can focus, instead,

on the non-lead-based paint business.

Therefore, no estimates of work practice

standards burden were made. Likewise,

owners of property will incur the work

practice standards costs only if they

determine that an abatement is to their

benefit.

To determine the impact of the

training and certification requirements

on large and small businesses, the ratios

of compliance costs to annual sales were

calculated. By using first-year training

costs, the largest impacts were estimated

(a worst-case scenario). Impacts on firms

in subsequent years would be

significantly smaller because the

demand for training in later years would

decrease from the first year ‘‘start up’’

levels. Incremental certification and

training costs per establishment were

calculated by multiplying the average

number of workers per establishment by

the per person certification and training

costs. Training costs vary by discipline

and certification fees of $60 per

individual and $350 per firm were

estimated. While it is likely that firms

will be able to pass some or all of the

training and certification costs on to

their customers in the form of higher

prices, this analysis investigates the

worst case in which the firm must

absorb all the costs.

Assuming that none of the training

and certification costs are shifted

forward in the form of higher prices, the

ratios of compliance costs to annual

sales for small establishments range

between 0.6 and 3.2%. For large firms,

the ratios tend to be slightly lower,

ranging from 0.6 and 1%. In the case of

both large and small establishments, the

largest cost ratio occurs for Standard

Industrial Code 8743, testing

laboratories.

As discussed above, firms are likely to

pass these costs on to their customers in

the form of higher prices because the

regulations apply to all firms involved

in lead-based paint activities. Therefore,

the ratios tend to overestimate the

impacts. Since training and licensing

costs are a small percent of annual sales,

and these percentages are only slightly

higher for small businesses than for

large ones, the impact of this regulation

on small businesses will be small, as is

the differential between impacts on

large and small businesses.

While this shifting of costs will

alleviate the burden on abatement firms,

the incremental costs of the regulations

may affect building owners. Consistent

with the arguments presented above,

under this rule abatement is a voluntary

action. As such, property owners are

unlikely to undertake an abatement

unless they are able to pass the cost on

to tenants or otherwise recoup the costs

in terms of higher property values.

Where abatements are mandated under

a State law or local ordinance, however,

the costs of this rule may have an

adverse impact on landlords. While

abandonment could possibly be the

result, existing information indicates

that this is unlikely. Therefore, analyses

of potential impacts on property owners

or tenants were not performed.

The comparison of impacts on small

and large training providers was not

performed for two reasons. First, except

for the Regional Lead Training Centers
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45811

(RLTCs), most training providers are

small, so there would be no differential

effect based on size of the firm. In

addition, it is likely that training

providers will pass the additional costs

on to their trainees. This impact is

analyzed above under the assumption

that firms undertaking lead-based paint

activities will bear these costs. Since the

changes will be required by Federal

regulations, they will apply to all

training providers. Second, there will be

heightened concern about lead-based

paint hazards and thus a greater

willingness to pay for trained personnel

who will presumably provide higher

quality services. In fact, these

regulations are likely to create a market

for training services and thus may be

beneficial to small businesses.

C. Paperwork Reduction Act

The information collection

requirements in this rule have been

submitted for approval to the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq. An Information Collection

Request (ICR) document has been

prepared by EPA (EPA ICR No. 1715.02)

and a copy may be obtained from Sandy

Farmer, OPPE Regulatory Information

Division; U.S. Environmental Protection

Agency (2136); 401 M St., SW.;

Washington, DC 20460; by calling (202)

260–2740; or by e-mail from

‘‘farmer.sandy@epamail.epa.gov.’’ The

information requirements are not

effective until OMB approves them.

Under today’s final rule, four entities

may be affected by new information

collection and reporting requirements.

These entities are: (1) States and Indian

Tribes; (2) training program providers;

(3) individuals engaged in lead-based

paint activities; and (4) firms engaged in

lead-based paint activities.

Importantly, States and Indian Tribes

have the option of choosing to seek

authorization to administer lead-based

paint activities programs under TSCA

section 404; thus the information

collection and recordkeeping

requirements are voluntary activities for

these entities. In those States and Indian

Tribes that do not seek program

authorization, however, it is assumed

that EPA will administer a lead-based

paint activities program.

Likewise, individuals and firms that

engage in lead-based paint activities, as

well as training providers delivering

training in such activities also have the

option of providing these services.

Thus, for those individuals and firms

that choose to provide instruction or to

contract their services for the purposes

of conducting lead-based paint

activities, the information collection

and recordkeeping requirements also are

voluntary.

Nonetheless, it must be noted that the

information collection and

recordkeeping requirements contained

in the rule become mandatory once an

entity chooses to administer a program;

provide instruction; or contract its

services in the lead-based paint

activities field. The Agency notes that

the rule’s information collection and

recordkeeping requirements have been

designed so as to assist the Agency in

meeting the core objectives of section

402(a) and section 404 of TSCA Title IV.

These objectives are to ensure the

integrity of an accreditation program for

training providers; enable individuals

and firms to become certified; and

substantiate that programs administered

by States and Indian Tribes are as

protective as EPA’s federal program.

The Agency believes that the

information collection and

recordkeeping requirements generated

by the rule are balanced in that they will

permit the Agency to achieve the

statutory objectives of TSCA Title IV

without imposing an undue burden on

those entities that choose to become

involved in the lead-based paint

activities field. The projected burden for

these entities is summarized below.

For the purposes of this discussion,

the term ‘‘burden’’ refers to the total

time, effort, or financial resources

expended by persons to generate,

maintain, retain, or disclose or provide

information to or for a Federal agency.

This includes the time needed to review

instructions; develop, acquire, install,

and utilize technology and systems for

the purposes of collecting, validating,

and verifying information, processing

and maintaining information, and

disclosing and providing information;

adjust the existing ways to comply with

any previously applicable instructions

and requirements; train personnel to be

able to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

The average burden per training

provider for the first effective year of the

rule is estimated to be 28.3 hours with

a cost per training provider of $681.40,

and lesser burden in subsequent years.

The estimated burden for the first

effective year of the rule for the total

number of training providers is 5,667

hours at a cost of $136,279.

The estimated, average burden per

firm or contractor (individuals may be

employed as firms or contractors)

engaging in lead-based paint activities is

115.7 hours with a cost of $2,473, with

lesser burden in subsequent years. For

the total number of firms performing

lead-based paint activities the burden is

estimated to be 326,724 hours at a cost

of $6,985,059.

The estimated, average burden per

individual seeking certification to

engage in lead-based paint activities

depends on the length of the required

training, plus 1 additional hour. For the

total of individuals, the first effective

year burden is 407,448 hours at a cost

of $16,092,230 with lesser burden in

subsequent years.

The first effective year burden per

State or Indian Tribe depends on

whether the entity must put legislation

into place before implementing a

regulatory program. For States or Indian

Tribes that assume legislative and

regulatory development the burden is

1,715 hours; for those States or Indian

Tribes that need only to acquire

program authorization the burden is 138

hours. The total burden for States and

Indian Tribes in the first effective year

is 48,713 hours at a cost of $959,534,

with lesser burden in subsequent years.

For EPA the estimated burden in the

first effective year of the rule is 5,940

hours at a cost of $197,285.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR part 9 and 48 CFR chapter 15.

Send comments on the burden

estimates and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques to the Director,

OPPE Regulatory Information Division;

U.S. Environmental Protection Agency

(2136); 401 M St., SW.; Washington, DC

20460; and to the Office of Information

and Regulatory Affairs, Office of

Management and Budget, 725 17th St.,

NW., Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’

Include the ICR number in any

correspondence.

D. Unfunded Mandates Reform Act

Pursuant to Title II of the Unfunded

Mandates Reform Act of 1995 (Pub. L.

104–4), EPA has determined that this

regulatory action does not contain any

‘‘Federal mandates,’’ as described in the

Act, for the States, local, or Tribal

governments or the private sector

because the rule implements mandates

specifically and explicitly set forth by

the Congress in TSCA section 402(a)

and section 404 without the exercise of

any political discretion by EPA.

In any event, EPA has determined that

this action does not result in the

expenditure of $100 million or more by
45812 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

any State, local or tribal governments, or

by anyone in the private sector. The

costs associated with this action are

described as required by Executive

Order 12866 in section A of this Unit in

the preamble.

As specified by Executive Order

12875 (58 FR 58093, October 28, 1993),

titled Enhancing the Intergovernmental

Partnership, the Agency has sought

input from State, local and tribal

government representatives throughout

the development of this rule. EPA

anticipates that these governments will

play a critical role in the

implementation of a national lead-based

paint activities training and certification

program. Consequently, the Agency felt

that their input and participation were

needed to ensure the success of the

program.

Specifically, before it began the

development of today’s final rule, EPA

informally met with a broad range of

interested parties, including State, local

and tribal governments to solicit

information on the subject of lead-based

paint activities training, accreditation,

certification and standards.

Communication and input from the

States also was actively sought as the

Agency developed a proposed rule, and

after the proposed rule was published

for public comment on September 2,

1994.

During the public comment period, at

least three meetings were held with

State representatives under the auspices

of the ‘‘Forum on State and Tribal

Toxics Action’’ or ‘‘FOSTTA.’’ FOSTTA

is an organization that serves as a forum

for State and Tribal officials to jointly

participate in addressing national toxics

issues, including lead. Under FOSTTA,

a ‘‘lead project’’ has been formed to

work with the States and tribes on leadrelated issues. In addition to meetings

with FOSTTA representatives, the

Agency met on December 5 and 6, 1994,

with 93 State representatives from 49

State health and environmental

agencies. Twelve representatives from

10 tribes also participated in the

December meeting. Furthermore, the

Agency received written comments from

83 State and local agencies representing

49 States.

The input received from State, Tribal

and local agencies has been very useful

in the final development of today’s final

rule. The Agency believes that this

input has helped produce an efficient

rule that will support the development

of a workforce qualified to reduce and

eliminate lead-based paint and its

associated hazards. By working with the

States, Tribes and local agencies, EPA

also has initiated preliminary

discussions intended to facilitate

cooperation and program reciprocity.

E. Executive Order 12898—

Environmental Justice Considerations

Pursuant to Executive Order 12898

(59 FR 7629, February 16, 1994), the

Agency has considered environmental

justice related issues with regard to the

potential impacts of this action on the

environmental and health conditions in

low-income and minority communities.

This examination shows that existing

lead-based paint hazards are a risk to all

segments of the population living in

pre-1978 housing. However, literature

indicates that some segments of our

society are at relatively greater risk than

others.

Although the baseline risks from leadbased paint fall disproportionately on

poorer sub-populations, it may be more

likely that abatements will take place in

residential dwellings occupied by midto upper-level income households.

Abatements will be voluntary, and

wealthier households are more likely to

have the financial resources to abate an

existing problem in their home, or to

avoid lead-based paint hazards by not

moving into a residential dwelling with

lead-based paint. Even though a

national strategy of eliminating leadbased paint hazards targets a problem

affecting a greater share of poor

households and minorities, the impact

of income on the ability to undertake

voluntary abatements may result in a

more inequitable distribution of the

risks in the future.

In response to this situation, several

Federal agencies have established grant

programs that will provide financial

support to reduce the prevalence of lead

poisoning among disadvantaged

children. The EPA also has several

information initiatives designed to

educate the public, with a particular

emphasis on this socio-economic group,

of the dangers of lead.

XI. Submission to Congress and the

General Accounting Office

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2) of the

Administrative Procedure Act. Pursuant

to 5 U.S.C. 801 (a)(1)(A), EPA submitted

this action to the U.S. Senate, the U.S.

House of Representatives and the

Comptroller General of the General

Accounting Office prior to its

publication in today’s Federal Register.

XII. Rulemaking Record

EPA has established a record for this

rulemaking (docket control number

OPPTS–62128B). A public version of

the record, without any information

claimed as confidential business

information, is available in the TSCA

Public Docket Office, from 12 noon to 4

p.m., Monday through Friday, except

legal holidays. The TSCA Public Docket

Office is located at EPA headquarters, in

Rm. G102, 401 M St., SW., Washington,

DC. 20460.

The rulemaking record contains

information considered by EPA in

developing this final rule. The record

includes: (1) All Federal Register

notices, (2) relevant support documents,

(3) reports, (4) memoranda and letters,

and (5) hearing transcripts responses to

comments, and other documents related

to this rulemaking.

Unit XIII. of this preamble contains

the list of documents which the Agency

relied upon while developing today’s

regulation and can be found in the

docket. Other documents, not listed

there, such as those submitted with

written comments from interested

parties, are contained in the TSCA

Docket office as well. A draft of today’s

final rule submitted by the

Administrator to the OMB for an

interagency review process prior to

publication of the rule is also contained

in the public docket.

XIII. References

(1) Minutes from the December 5 and

6, 1994 National Lead Conference; and

minutes from Forum on State and Tribal

Toxics Action (FOSTTA) meetings from

1994 and 1995.

(2) Lead; Requirements for LeadBased Paint Activities; Proposed Rule;

Summary of Public Comments; prepared

by the Office of Pollution Prevention

and Toxics, (January 31, 1995).

(3) Lead; Requirements for LeadBased Paint Activities; Proposed Rule;

Response to Public Comment

Document; prepared by the Office of

Pollution Prevention and Toxics,

(August 1, 1996).

(4) Mathematica Policy Research, Inc.

1990. Profile of Child care Settings; and

U.S. Department of Education, National

Center for Education Statistics. 1993.

Fast Response Survey, Kindergarten

Teacher Survey on Student Readiness.

(5) U. S. Census Bureau, School

Enrollment Supplement. 1994. Current

Population Survey. (October 1994).

(6) U.S. Department of Housing and

Urban Development (HUD), Office of

Lead-Based Paint Abatement and

Poisoning Prevention. 1995. Guidelines

for the Evaluation and Control of LeadBased Paint Hazards in Housing. (June

1995).

(7) USEPA. 1995. Residential

Sampling for Lead: Protocols for Dust

and Soil Sampling. (EPA 747–R–95–

001, March 1995).
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45813

(8) USEPA. 1995. A Field Test of

Lead-Based Paint Testing Technologies:

Summary Report. (EPA 747–R–95–002a,

May 1995). (9) USEPA. 1995. A Review of Studies

Addressing Lead Abatement

Effectiveness. (EPA 747–R–95–006, June

1995).

(10) Amitai, Y. Brown, M.J., Graef,

J.W., and Cosgrove, E. 1991.

‘‘Residential Deleading: Effects on the

Blood Lead Levels of Lead-Poisoned

Children.’’ Pediatrics. 88(5):893–897.

(11) Farfel, M.R. and Chisolm, J.J. Jr.

1990. ‘‘Health and Environmental

Outcomes of Traditional and Modified

Practices for Abatement of Residential

Lead-Based Paint.’’ American Journal of

Public Health. 80(10):1240–1245.

(12) HUD, Office of Lead-Based Paint

Abatement and Poisoning Prevention.

1995. HUD Guidelines Appendix 11–1

‘‘One-Hour Waiting Period Rationale for

Clearance Sampling.’’ (June 1995).

List of Subjects in 40 CFR Part 745

Environmental protection, Hazardous

substances, Lead, Recordkeeping and

reporting requirements.

Dated: August 21, 1996.

Carol M. Browner,

Administrator.

Therefore, 40 CFR part 745 is

amended as follows:

PART 745—[AMENDED]

1. The authority citation for part 745

is revised to read as follows:

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

2692.

2. By adding new subparts L and Q

and reserving subparts G–K and M–P to

read as follows:

Subparts G–K [Reserved]

Subpart L—Lead-Based Paint

Activities

Sec.

745.220 Scope and applicability.

745.223 Definitions.

745.225 Accreditation of training

programs: target housing and child-occupied

facilities.

745.226 Certification of individuals and

firms engaged in lead-based paint activities:

target housing and child-occupied facilities.

745.227 Work practice standards for

conducting lead-based paint activities: target

housing and child-occupied facilities.

745.228 Accreditation of training

programs: public and commercial buildings,

bridges and superstructures [Reserved].

745.229 Certification of individuals and

firms engaged in lead-based paint activities:

public and commercial buildings, bridges

and superstructures [Reserved].

745.230 Work practice standards for

conducting lead-based paint activities: public

and commercial buildings, bridges and

superstructures [Reserved].

745.233 Lead-based paint activities

requirements.

745.235 Enforcement.

745.237 Inspections.

745.239 Effective dates.

Subparts M–P [Reserved]

Subpart Q—State and Indian Tribal

Programs

Sec.

745.320 Scope and purpose.

745.323 Definitions.

745.324 Authorization of State and

Indian Tribal programs.

745.325 Lead-based paint activities: State

and Indian Tribal program requirements.

745.326 Pre-renovation notification: State

and Indian Tribal program requirements.

745.327 State or Indian Tribal lead-based

paint compliance and enforcement programs.

745.328 Authorization of Indian Tribal

programs.

745.330 Grants.

745.339 Effective dates.

Subparts G–K [Reserved]

Subpart L—Lead-Based Paint

Activities

§ 745.220 Scope and applicability.

(a) This subpart contains procedures

and requirements for the accreditation

of lead-based paint activities training

programs, procedures and requirements

for the certification of individuals and

firms engaged in lead-based paint

activities, and work practice standards

for performing such activities. This

subpart also requires that, except as

discussed below, all lead-based paint

activities, as defined in this subpart, be

performed by certified individuals and

firms.

(b) This subpart applies to all

individuals and firms who are engaged

in lead-based paint activities as defined

in § 745.223, except persons who

perform these activities within

residential dwellings that they own,

unless the residential dwelling is

occupied by a person or persons other

than the owner or the owner’s

immediate family while these activities

are being performed, or a child residing

in the building has been identified as

having an elevated blood lead level.

This subpart applies only in those States

or Indian Country that do not have an

authorized State or Tribal program

pursuant to § 745.324 of subpart Q. (c) Each department, agency, and

instrumentality of the executive,

legislative, and judicial branches of the

Federal Government having jurisdiction

over any property or facility, or engaged

in any activity resulting, or which may

result, in a lead-based paint hazard, and

each officer, agent, or employee thereof

shall be subject to, and comply with, all

Federal, State, interstate, and local

requirements, both substantive and

procedural, including the requirements

of this subpart regarding lead-based

paint, lead-based paint activities, and

lead-based paint hazards.

(d) While this subpart establishes

specific requirements for performing

lead-based paint activities should they

be undertaken, nothing in this subpart

requires that the owner or occupant

undertake any particular lead-based

paint activity.

§ 745.223 Definitions.

The definitions in subpart A apply to

this subpart. In addition, the following

definitions apply.

Abatement means any measure or set

of measures designed to permanently

eliminate lead-based paint hazards.

Abatement includes, but is not limited

to:

(1) The removal of lead-based paint

and lead-contaminated dust, the

permanent enclosure or encapsulation

of lead-based paint, the replacement of

lead-painted surfaces or fixtures, and

the removal or covering of leadcontaminated soil; and

(2) All preparation, cleanup, disposal,

and post-abatement clearance testing

activities associated with such

measures.

(3) Specifically, abatement includes,

but is not limited to:

(i) Projects for which there is a written

contract or other documentation, which

provides that an individual or firm will

be conducting activities in or to a

residential dwelling or child-occupied

facility that:

(A) Shall result in the permanent

elimination of lead-based paint hazards;

or

(B) Are designed to permanently

eliminate lead-based paint hazards and

are described in paragraphs (1) and (2)

of this definition.

(ii) Projects resulting in the

permanent elimination of lead-based

paint hazards, conducted by firms or

individuals certified in accordance with

§ 745.226, unless such projects are

covered by paragraph (4) of this

definition;

(iii) Projects resulting in the

permanent elimination of lead-based

paint hazards, conducted by firms or

individuals who, through their company

name or promotional literature,

represent, advertise, or hold themselves

out to be in the business of performing

lead-based paint activities as identified

and defined by this section, unless such

projects are covered by paragraph (4) of

this definition; or

(iv) Projects resulting in the

permanent elimination of lead-based

paint hazards, that are conducted in
45814 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

response to State or local abatement

orders.

(4) Abatement does not include

renovation, remodeling, landscaping or

other activities, when such activities are

not designed to permanently eliminate

lead-based paint hazards, but, instead,

are designed to repair, restore, or

remodel a given structure or dwelling,

even though these activities may

incidentally result in a reduction or

elimination of lead-based paint hazards.

Furthermore, abatement does not

include interim controls, operations and

maintenance activities, or other

measures and activities designed to

temporarily, but not permanently,

reduce lead-based paint hazards.

Accredited training program means a

training program that has been

accredited by EPA pursuant to § 745.225

to provide training for individuals

engaged in lead-based paint activities.

Adequate quality control means a

plan or design which ensures the

authenticity, integrity, and accuracy of

samples, including dust, soil, and paint

chip or paint film samples. Adequate

quality control also includes provisions

for representative sampling.

Certified firm means a company,

partnership, corporation, sole

proprietorship, association, or other

business entity that performs lead-based

paint activities to which EPA has issued

a certificate of approval pursuant to

§ 745.226(f).

Certified inspector means an

individual who has been trained by an

accredited training program, as defined

by this section, and certified by EPA

pursuant to § 745.226 to conduct

inspections. A certified inspector also

samples for the presence of lead in dust

and soil for the purposes of abatement

clearance testing.

Certified abatement worker means an

individual who has been trained by an

accredited training program, as defined

by this section, and certified by EPA

pursuant to § 745.226 to perform

abatements.

Certified project designer means an

individual who has been trained by an

accredited training program, as defined

by this section, and certified by EPA

pursuant to § 745.226 to prepare

abatement project designs, occupant

protection plans, and abatement reports.

Certified risk assessor means an

individual who has been trained by an

accredited training program, as defined

by this section, and certified by EPA

pursuant to § 745.226 to conduct risk

assessments. A risk assessor also

samples for the presence of lead in dust

and soil for the purposes of abatement

clearance testing.

Certified supervisor means an

individual who has been trained by an

accredited training program, as defined

by this section, and certified by EPA

pursuant to § 745.226 to supervise and

conduct abatements, and to prepare

occupant protection plans and

abatement reports.

Child-occupied facility means a

building, or portion of a building,

constructed prior to 1978, visited

regularly by the same child, 6 years of

age or under, on at least two different

days within any week (Sunday through

Saturday period), provided that each

day’s visit lasts at least 3 hours and the

combined weekly visit lasts at least 6

hours, and the combined annual visits

last at least 60 hours. Child-occupied

facilities may include, but are not

limited to, day-care centers, preschools

and kindergarten classrooms.

Clearance levels are values that

indicate the maximum amount of lead

permitted in dust on a surface following

completion of an abatement activity.

Common area means a portion of a

building that is generally accessible to

all occupants. Such an area may

include, but is not limited to, hallways,

stairways, laundry and recreational

rooms, playgrounds, community

centers, garages, and boundary fences.

Component or building component

means specific design or structural

elements or fixtures of a building,

residential dwelling, or child-occupied

facility that are distinguished from each

other by form, function, and location.

These include, but are not limited to,

interior components such as: ceilings,

crown molding, walls, chair rails, doors,

door trim, floors, fireplaces, radiators

and other heating units, shelves, shelf

supports, stair treads, stair risers, stair

stringers, newel posts, railing caps,

balustrades, windows and trim

(including sashes, window heads,

jambs, sills or stools and troughs), built

in cabinets, columns, beams, bathroom

vanities, counter tops, and air

conditioners; and exterior components

such as: painted roofing, chimneys,

flashing, gutters and downspouts,

ceilings, soffits, fascias, rake boards,

cornerboards, bulkheads, doors and

door trim, fences, floors, joists, lattice

work, railings and railing caps, siding,

handrails, stair risers and treads, stair

stringers, columns, balustrades, window

sills or stools and troughs, casings,

sashes and wells, and air conditioners.

Containment means a process to

protect workers and the environment by

controlling exposures to the leadcontaminated dust and debris created

during an abatement.

Course agenda means an outline of

the key topics to be covered during a

training course, including the time

allotted to teach each topic.

Course test means an evaluation of the

overall effectiveness of the training

which shall test the trainees’ knowledge

and retention of the topics covered

during the course.

Course test blue print means written

documentation identifying the

proportion of course test questions

devoted to each major topic in the

course curriculum.

Deteriorated paint means paint that is

cracking, flaking, chipping, peeling, or

otherwise separating from the substrate

of a building component.

Discipline means one of the specific

types or categories of lead-based paint

activities identified in this subpart for

which individuals may receive training

from accredited programs and become

certified by EPA. For example,

‘‘abatement worker’’ is a discipline.

Distinct painting history means the

application history, as indicated by its

visual appearance or a record of

application, over time, of paint or other

surface coatings to a component or

room.

Documented methodologies are

methods or protocols used to sample for

the presence of lead in paint, dust, and

soil.

Elevated blood lead level (EBL) means

an excessive absorption of lead that is

a confirmed concentration of lead in

whole blood of 20 μg/dl (micrograms of

lead per deciliter of whole blood) for a

single venous test or of 15–19 μg/dl in

two consecutive tests taken 3 to 4

months apart.

Encapsulant means a substance that

forms a barrier between lead-based paint

and the environment using a liquidapplied coating (with or without

reinforcement materials) or an

adhesively bonded covering material.

Encapsulation means the application

of an encapsulant.

Enclosure means the use of rigid,

durable construction materials that are

mechanically fastened to the substrate

in order to act as a barrier between leadbased paint and the environment.

Guest instructor means an individual

designated by the training program

manager or principal instructor to

provide instruction specific to the

lecture, hands-on activities, or work

practice components of a course.

Hands-on skills assessment means an

evaluation which tests the trainees’

ability to satisfactorily perform the work

practices and procedures identified in

§ 745.225(d), as well as any other skill

taught in a training course.

Hazardous waste means any waste as

defined in 40 CFR 261.3.
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45815

Inspection means a surface-by-surface

investigation to determine the presence

of lead-based paint and the provision of

a report explaining the results of the

investigation.

Interim certification means the status

of an individual who has successfully

completed the appropriate training

course in a discipline from an

accredited training program, as defined

by this section, but has not yet received

formal certification in that discipline

from EPA pursuant to § 745.226. Interim

certifications expire 6 months after the

completion of the training course, and is

equivalent to a certificate for the 6-

month period.

Interim controls means a set of

measures designed to temporarily

reduce human exposure or likely

exposure to lead-based paint hazards,

including specialized cleaning, repairs,

maintenance, painting, temporary

containment, ongoing monitoring of

lead-based paint hazards or potential

hazards, and the establishment and

operation of management and resident

education programs.

Lead-based paint means paint or

other surface coatings that contain lead

equal to or in excess of 1.0 milligrams

per square centimeter or more than 0.5

percent by weight.

Lead-based paint activities means, in

the case of target housing and childoccupied facilities, inspection, risk

assessment, and abatement, as defined

in this subpart.

Lead-based paint hazard means any

condition that causes exposure to lead

from lead-contaminated dust, leadcontaminated soil, or lead-contaminated

paint that is deteriorated or present in

accessible surfaces, friction surfaces, or

impact surfaces that would result in

adverse human health effects as

identified by the Administrator

pursuant to TSCA section 403.

Lead-contaminated dust means

surface dust in residential dwellings, or

child-occupied facilities that contains

an area or mass concentration of lead at

or in excess of levels identified by the

Administrator pursuant to TSCA section

403.

Lead-contaminated soil means bare

soil on residential real property and on

the property of a child-occupied facility

that contains lead at or in excess of

levels identified by the Administrator

pursuant to TSCA section 403.

Lead-hazard screen is a limited risk

assessment activity that involves limited

paint and dust sampling as described in

§ 745.227(c).

Living area means any area of a

residential dwelling used by one or

more children age 6 and under,

including, but not limited to, living

rooms, kitchen areas, dens, play rooms,

and children’s bedrooms.

Multi-family dwelling means a

structure that contains more than one

separate residential dwelling unit,

which is used or occupied, or intended

to be used or occupied, in whole or in

part, as the home or residence of one or

more persons.

Paint in poor condition means more

than 10 square feet of deteriorated paint

on exterior components with large

surface areas; or more than 2 square feet

of deteriorated paint on interior

components with large surface areas

(e.g., walls, ceilings, floors, doors); or

more than 10 percent of the total surface

area of the component is deteriorated on

interior or exterior components with

small surface areas (window sills,

baseboards, soffits, trim).

Permanently covered soil means soil

which has been separated from human

contact by the placement of a barrier

consisting of solid, relatively

impermeable materials, such as

pavement or concrete. Grass, mulch,

and other landscaping materials are not

considered permanent covering.

Person means any natural or judicial

person including any individual,

corporation, partnership, or association;

any Indian Tribe, State, or political

subdivision thereof; any interstate body;

and any department, agency, or

instrumentality of the Federal

government.

Principal instructor means the

individual who has the primary

responsibility for organizing and

teaching a particular course.

Recognized laboratory means an

environmental laboratory recognized by

EPA pursuant to TSCA section 405(b) as

being capable of performing an analysis

for lead compounds in paint, soil, and

dust.

Reduction means measures designed

to reduce or eliminate human exposure

to lead-based paint hazards through

methods including interim controls and

abatement.

Residential dwelling means (1) a

detached single family dwelling unit,

including attached structures such as

porches and stoops; or (2) a single

family dwelling unit in a structure that

contains more than one separate

residential dwelling unit, which is used

or occupied, or intended to be used or

occupied, in whole or in part, as the

home or residence of one or more

persons.

Risk assessment means (1) an on-site

investigation to determine the existence,

nature, severity, and location of leadbased paint hazards, and (2) the

provision of a report by the individual

or the firm conducting the risk

assessment, explaining the results of the

investigation and options for reducing

lead-based paint hazards.

Target housing means any housing

constructed prior to 1978, except

housing for the elderly or persons with

disabilities (unless any one or more

children age 6 years or under resides or

is expected to reside in such housing for

the elderly or persons with disabilities)

or any 0-bedroom dwelling.

Training curriculum means an

established set of course topics for

instruction in an accredited training

program for a particular discipline

designed to provide specialized

knowledge and skills.

Training hour means at least 50

minutes of actual learning, including,

but not limited to, time devoted to

lecture, learning activities, small group

activities, demonstrations, evaluations,

and/or hands-on experience.

Training manager means the

individual responsible for administering

a training program and monitoring the

performance of principal instructors and

guest instructors.

Visual inspection for clearance testing

means the visual examination of a

residential dwelling or a child-occupied

facility following an abatement to

determine whether or not the abatement

has been successfully completed.

Visual inspection for risk assessment

means the visual examination of a

residential dwelling or a child-occupied

facility to determine the existence of

deteriorated lead-based paint or other

potential sources of lead-based paint

hazards.

§ 745.225 Accreditation of training

programs: target housing and childoccupied facilities.

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

seek accreditation to offer lead-based

paint activities courses in any of the

following disciplines: inspector, risk

assessor, supervisor, project designer,

and abatement worker. A training

program may also seek accreditation to

offer refresher courses for each of the

above listed disciplines.

(2) Training programs may first apply

to EPA for accreditation of their leadbased paint activities courses or

refresher courses pursuant to this

section on or after August 31, 1998.

(3) A training program shall not

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

courses without applying for and

receiving accreditation from EPA as

required under paragraph (b) of this

section on or after March 1, 1999.

(b) Application process. The

following are procedures a training

program shall follow to receive EPA
45816 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

accreditation to offer lead-based paint

activities courses:

(1) A training program seeking

accreditation shall submit a written

application to EPA containing the

following information:

(i) The training program’s name,

address, and telephone number.

(ii) A list of courses for which it is

applying for accreditation.

(iii) A statement signed by the

training program manager certifying that

the training program meets the

requirements established in paragraph

(c) of this section. If a training program

uses EPA-recommended model training

materials, or training materials

approved by a State or Indian Tribe that

has been authorized by EPA under

subpart Q of this part, the training

program manager shall include a

statement certifying that, as well.

(iv) If a training program does not use

EPA-recommended model training

materials or training materials approved

by an authorized State or Indian Tribe,

its application for accreditation shall

also include:

(A) A copy of the student and

instructor manuals, or other materials to

be used for each course.

(B) A copy of the course agenda for

each course.

(v) All training programs shall include

in their application for accreditation the

following:

(A) A description of the facilities and

equipment to be used for lecture and

hands-on training.

(B) A copy of the course test blueprint

for each course.

(C) A description of the activities and

procedures that will be used for

conducting the assessment of hands-on

skills for each course.

(D) A copy of the quality control plan

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

section.

(2) If a training program meets the

requirements in paragraph (c) of this

section, then EPA shall approve the

application for accreditation no more

than 180 days after receiving a complete

application from the training program.

In the case of approval, a certificate of

accreditation shall be sent to the

applicant. In the case of disapproval, a

letter describing the reasons for

disapproval shall be sent to the

applicant. Prior to disapproval, EPA

may, at its discretion, work with the

applicant to address inadequacies in the

application for accreditation. EPA may

also request additional materials

retained by the training program under

paragraph (i) of this section. If a training

program’s application is disapproved,

the program may reapply for

accreditation at any time.

(3) A training program may apply for

accreditation to offer courses or

refresher courses in as many disciplines

as it chooses. A training program may

seek accreditation for additional courses

at any time as long as the program can

demonstrate that it meets the

requirements of this section.

(c) Requirements for the accreditation

of training programs. For a training

program to obtain accreditation from

EPA to offer lead-based paint activities

courses, the program shall meet the

following requirements:

(1) The training program shall employ

a training manager who has:

(i) At least 2 years of experience,

education, or training in teaching

workers or adults; or

(ii) A bachelor’s or graduate degree in

building construction technology,

engineering, industrial hygiene, safety,

public health, education, business

administration or program management

or a related field; or

(iii) Two years of experience in

managing a training program

specializing in environmental hazards;

and

(iv) Demonstrated experience,

education, or training in the

construction industry including: lead or

asbestos abatement, painting, carpentry,

renovation, remodeling, occupational

safety and health, or industrial hygiene.

(2) The training manager shall

designate a qualified principal

instructor for each course who has:

(i) Demonstrated experience,

education, or training in teaching

workers or adults; and

(ii) Successfully completed at least 16

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

lead-specific training; and

(iii) Demonstrated experience,

education, or training in lead or asbestos

abatement, painting, carpentry,

renovation, remodeling, occupational

safety and health, or industrial hygiene.

(3) The principal instructor shall be

responsible for the organization of the

course and oversight of the teaching of

all course material. The training

manager may designate guest instructors

as needed to provide instruction

specific to the lecture, hands-on

activities, or work practice components

of a course.

(4) The following documents shall be

recognized by EPA as evidence that

training managers and principal

instructors have the education, work

experience, training requirements or

demonstrated experience, specifically

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

this section. This documentation need

not be submitted with the accreditation

application, but, if not submitted, shall

be retained by the training program as

required by the recordkeeping

requirements contained in paragraph (i)

of this section. Those documents

include the following:

(i) Official academic transcripts or

diploma as evidence of meeting the

education requirements.

(ii) Resumes, letters of reference, or

documentation of work experience, as

evidence of meeting the work

experience requirements.

(iii) Certificates from train-the-trainer

courses and lead-specific training

courses, as evidence of meeting the

training requirements.

(5) The training program shall ensure

the availability of, and provide adequate

facilities for, the delivery of the lecture,

course test, hands-on training, and

assessment activities. This includes

providing training equipment that

reflects current work practices and

maintaining or updating the equipment

and facilities as needed.

(6) To become accredited in the

following disciplines, the training

program shall provide training courses

that meet the following training hour

requirements:

(i) The inspector course shall last a

minimum of 24 training hours, with a

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

curriculum requirements for the

inspector course are contained in

paragraph (d)(1) of this section.

(ii) The risk assessor course shall last

a minimum of 16 training hours, with a

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

curriculum requirements for the risk

assessor course are contained in

paragraph (d)(2) of this section.

(iii) The supervisor course shall last a

minimum of 32 training hours, with a

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

requirements for the supervisor course

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

section.

(iv) The project designer course shall

last a minimum of 8 training hours. The

minimum curriculum requirements for

the project designer course are

contained in paragraph (d)(4) of this

section.

(v) The abatement worker course shall

last a minimum of 16 training hours,

with a minimum of 8 hours devoted to

hands-on training activities. The

minimum curriculum requirements for

the abatement worker course are

contained in paragraph (d)(5) of this

section.

(7) For each course offered, the

training program shall conduct either a

course test at the completion of the

course, and if applicable, a hands-on
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45817

skills assessment, or in the alternative,

a proficiency test for that discipline.

Each individual must successfully

complete the hands-on skills assessment

and receive a passing score on the

course test to pass any course, or

successfully complete a proficiency test.

(i) The training manager is

responsible for maintaining the validity

and integrity of the hands-on skills

assessment or profiency test to ensure

that it accurately evaluates the trainees’

performance of the work practices and

procedures associated with the course

topics contained in paragraph (d) of this

section.

(ii) The training manager is

responsible for maintaining the validity

and integrity of the course test to ensure

that it accurately evaluates the trainees’

knowledge and retention of the course

topics.

(iii) The course test shall be

developed in accordance with the test

blueprint submitted with the training

accreditation application.

(8) The training program shall issue

unique course completion certificates to

each individual who passes the training

course. The course completion

certificate shall include:

(i) The name, a unique identification

number, and address of the individual.

(ii) The name of the particular course

that the individual completed.

(iii) Dates of course completion/test

passage.

(iv) Expiration date of interim

certification, which shall be 6 months

from the date of course completion.

(v) The name, address, and telephone

number of the training program.

(9) The training manager shall

develop and implement a quality

control plan. The plan shall be used to

maintain and improve the quality of the

training program over time. This plan

shall contain at least the following

elements:

(i) Procedures for periodic revision of

training materials and the course test to

reflect innovations in the field.

(ii) Procedures for the training

manager’s annual review of principal

instructor competency.

(10) The training program shall offer

courses which teach the work practice

standards for conducting lead-based

paint activities contained in § 745.227,

and other standards developed by EPA

pursuant to Title IV of TSCA. These

standards shall be taught in the

appropriate courses to provide trainees

with the knowledge needed to perform

the lead-based paint activities they are

responsible for conducting.

(11) The training manager shall be

responsible for ensuring that the

training program complies at all times

with all of the requirements in this

section.

(12) The training manager shall allow

EPA to audit the training program to

verify the contents of the application for

accreditation as described in paragraph

(b) of this section.

(d) Minimum training curriculum

requirements. To become accredited to

offer lead-based paint courses

instruction in the specific disciplines

listed below, training programs must

ensure that their courses of study

include, at a minimum, the following

course topics. Requirements ending in

an asterisk (*) indicate areas that require

hands-on activities as an integral

component of the course.

(1) Inspector. (i) Role and

responsibilities of an inspector.

(ii) Background information on lead

and its adverse health effects.

(iii) Background information on

Federal, State, and local regulations and

guidance that pertains to lead-based

paint and lead-based paint activities.

(iv) Lead-based paint inspection

methods, including selection of rooms

and components for sampling or

testing.*

(v) Paint, dust, and soil sampling

methodologies.*

(vi) Clearance standards and testing,

including random sampling.*

(vii) Preparation of the final

inspection report.*

(viii) Recordkeeping.

(2) Risk assessor. (i) Role and

responsibilities of a risk assessor.

(ii) Collection of background

information to perform a risk

assessment.

(iii) Sources of environmental lead

contamination such as paint, surface

dust and soil, water, air, packaging, and

food.

(iv) Visual inspection for the purposes

of identifying potential sources of leadbased paint hazards.*

(v) Lead hazard screen protocol.

(vi) Sampling for other sources of lead

exposure.*

(vii) Interpretation of lead-based paint

and other lead sampling results,

including all applicable State or Federal

guidance or regulations pertaining to

lead-based paint hazards.*

(viii) Development of hazard control

options, the role of interim controls, and

operations and maintenance activities to

reduce lead-based paint hazards.

(ix) Preparation of a final risk

assessment report.

(3) Supervisor. (i) Role and

responsibilities of a supervisor.

(ii) Background information on lead

and its adverse health effects.

(iii) Background information on

Federal, State, and local regulations and

guidance that pertain to lead-based

paint abatement.

(iv) Liability and insurance issues

relating to lead-based paint abatement.

(v) Risk assessment and inspection

report interpretation.*

(vi) Development and implementation

of an occupant protection plan and

abatement report.

(vii) Lead-based paint hazard

recognition and control.*

(viii) Lead-based paint abatement and

lead-based paint hazard reduction

methods, including restricted

practices.*

(ix) Interior dust abatement/cleanup

or lead-based paint hazard control and

reduction methods.*

(x) Soil and exterior dust abatement or

lead-based paint hazard control and

reduction methods.*

(xi) Clearance standards and testing.

(xii) Cleanup and waste disposal.

(xiii) Recordkeeping.

(4) Project designer. (i) Role and

responsibilities of a project designer.

(ii) Development and implementation

of an occupant protection plan for large

scale abatement projects.

(iii) Lead-based paint abatement and

lead-based paint hazard reduction

methods, including restricted practices

for large-scale abatement projects.

(iv) Interior dust abatement/cleanup

or lead hazard control and reduction

methods for large-scale abatement

projects.

(v) Clearance standards and testing for

large scale abatement projects.

(vi) Integration of lead-based paint

abatement methods with modernization

and rehabilitation projects for large

scale abatement projects.

(5) Abatement worker. (i) Role and

responsibilities of an abatement worker.

(ii) Background information on lead

and its adverse health effects.

(iii) Background information on

Federal, State and local regulations and

guidance that pertain to lead-based

paint abatement.

(iv) Lead-based paint hazard

recognition and control.*

(v) Lead-based paint abatement and

lead-based paint hazard reduction

methods, including restricted

practices.*

(vi) Interior dust abatement methods/

cleanup or lead-based paint hazard

reduction.*

(vii) Soil and exterior dust abatement

methods or lead-based paint hazard

reduction.*

(e) Requirements for the accreditation

of refresher training programs. A

training program may seek accreditation

to offer refresher training courses in any

of the following disciplines: inspector,

risk assessor, supervisor, project
45818 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

designer, and abatement worker. To

obtain EPA accreditation to offer

refresher training, a training program

must meet the following minimum

requirements:

(1) Each refresher course shall review

the curriculum topics of the full-length

courses listed under paragraph (d) of

this section, as appropriate. In addition,

to become accredited to offer refresher

training courses, training programs shall

ensure that their courses of study

include, at a minimum, the following:

(i) An overview of current safety

practices relating to lead-based paint

activities in general, as well as specific

information pertaining to the

appropriate discipline.

(ii) Current laws and regulations

relating to lead-based paint activities in

general, as well as specific information

pertaining to the appropriate discipline.

(iii) Current technologies relating to

lead-based paint activities in general, as

well as specific information pertaining

to the appropriate discipline.

(2) Each refresher course, except for

the project designer course, shall last a

minimum of 8 training hours. The

project designer refresher course shall

last a minimum of 4 training hours.

(3) For each course offered, the

training program shall conduct a handson assessment (if applicable), and at the

completion of the course, a course test.

(4) A training program may apply for

accreditation of a refresher course

concurrently with its application for

accreditation of the corresponding

training course as described in

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

shall use the approval procedure

described in paragraph (b) of this

section. In addition, the minimum

requirements contained in paragraphs

(c) (except for the requirements in

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

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

(5) A training program seeking

accreditation to offer refresher training

courses only shall submit a written

application to EPA containing the

following information:

(i) The refresher training program’s

name, address, and telephone number.

(ii) A list of courses for which it is

applying for accreditation.

(iii) A statement signed by the

training program manager certifying that

the refresher training program meets the

minimum requirements established in

paragraph (c) of this section, except for

the requirements in paragraph (c)(6) of

this section. If a training program uses

EPA-developed model training

materials, or training materials

approved by a State or Indian Tribe that

has been authorized by EPA under

§ 745.324 to develop its refresher

training course materials, the training

manager shall include a statement

certifying that, as well.

(iv) If the refresher training course

materials are not based on EPAdeveloped model training materials or

training materials approved by an

authorized State or Indian Tribe, the

training program’s application for

accreditation shall include:

(A) A copy of the student and

instructor manuals to be used for each

course.

(B) A copy of the course agenda for

each course.

(v) All refresher training programs

shall include in their application for

accreditation the following:

(A) A description of the facilities and

equipment to be used for lecture and

hands-on training.

(B) A copy of the course test blueprint

for each course.

(C) A description of the activities and

procedures that will be used for

conducting the assessment of hands-on

skills for each course (if applicable).

(D) A copy of the quality control plan

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

section.

(vi) The requirements in paragraphs

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

(c)(12) of this section apply to refresher

training providers.

(vii) If a refresher training program

meets the requirements listed in this

paragraph, then EPA shall approve the

application for accreditation no more

than 180 days after receiving a complete

application from the refresher training

program. In the case of approval, a

certificate of accreditation shall be sent

to the applicant. In the case of

disapproval, a letter describing the

reasons for disapproval shall be sent to

the applicant. Prior to disapproval, EPA

may, at its discretion, work with the

applicant to address inadequacies in the

application for accreditation. EPA may

also request additional materials

retained by the refresher training

program under paragraph (i) of this

section. If a refresher training program’s

application is disapproved, the program

may reapply for accreditation at any

time.

(f) Re-accreditation of training

programs. (1) Unless re-accredited, a

training program’s accreditation

(including refresher training

accreditation) shall expire 4 years after

the date of issuance. If a training

program meets the requirements of this

section, the training program shall be reaccredited.

(2) A training program seeking reaccreditation shall submit an

application to EPA no later than 180

days before its accreditation expires. If

a training program does not submit its

application for re-accreditation by that

date, EPA cannot guarantee that the

program will be re-accredited before the

end of the accreditation period.

(3) The training program’s application

for re-accreditation shall contain:

(i) The training program’s name,

address, and telephone number.

(ii) A list of courses for which it is

applying for re-accreditation.

(iii) A description of any changes to

the training facility, equipment or

course materials since its last

application was approved that adversely

affects the students ability to learn.

(iv) A statement signed by the

program manager stating:

(A) That the training program

complies at all times with all

requirements in paragraphs (c) and (e) of

this section, as applicable; and

(B) The recordkeeping and reporting

requirements of paragraph (i) of this

section shall be followed.

(4) Upon request, the training program

shall allow EPA to audit the training

program to verify the contents of the

application for re-accreditation as

described in paragraph (f)(3) of this

section.

(g) Suspension, revocation, and

modification of accredited training

programs. (1) EPA may, after notice and

an opportunity for hearing, suspend,

revoke, or modify training program

accreditation (including refresher

training accreditation) if a training

program, training manager, or other

person with supervisory authority over

the training program has:

(i) Misrepresented the contents of a

training course to EPA and/or the

student population.

(ii) Failed to submit required

information or notifications in a timely

manner.

(iii) Failed to maintain required

records.

(iv) Falsified accreditation records,

instructor qualifications, or other

accreditation-related information or

documentation.

(v) Failed to comply with the training

standards and requirements in this

section.

(vi) Failed to comply with Federal,

State, or local lead-based paint statutes

or regulations.

(vii) Made false or misleading

statements to EPA in its application for

accreditation or re-accreditation which

EPA relied upon in approving the

application.

(2) In addition to an administrative or

judicial finding of violation, execution

of a consent agreement in settlement of

an enforcement action constitutes, for

purposes of this section, evidence of a
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45819

failure to comply with relevant statutes

or regulations.

(h) Procedures for suspension,

revocation or modification of training

program accreditation. (1) Prior to

taking action to suspend, revoke, or

modify the accreditation of a training

program, EPA shall notify the affected

entity in writing of the following:

(i) The legal and factual basis for the

suspension, revocation, or modification.

(ii) The anticipated commencement

date and duration of the suspension,

revocation, or modification.

(iii) Actions, if any, which the

affected entity may take to avoid

suspension, revocation, or modification,

or to receive accreditation in the future.

(iv) The opportunity and method for

requesting a hearing prior to final EPA

action to suspend, revoke or modify

accreditation.

(v) Any additional information, as

appropriate, which EPA may provide.

(2) If a hearing is requested by the

accredited training program, EPA shall:

(i) Provide the affected entity an

opportunity to offer written statements

in response to EPA’s assertions of the

legal and factual basis for its proposed

action, and any other explanations,

comments, and arguments it deems

relevant to the proposed action.

(ii) Provide the affected entity such

other procedural opportunities as EPA

may deem appropriate to ensure a fair

and impartial hearing.

(iii) Appoint an official of EPA as

Presiding Officer to conduct the hearing.

No person shall serve as Presiding

Officer if he or she has had any prior

connection with the specific matter.

(3) The Presiding Officer appointed

pursuant to paragraph (h)(2) of this

section shall:

(i) Conduct a fair, orderly, and

impartial hearing within 90 days of the

request for a hearing.

(ii) Consider all relevant evidence,

explanation, comment, and argument

submitted.

(iii) Notify the affected entity in

writing within 90 days of completion of

the hearing of his or her decision and

order. Such an order is a final agency

action which may be subject to judicial

review.

(4) If EPA determines that the public

health, interest, or welfare warrants

immediate action to suspend the

accreditation of any training program

prior to the opportunity for a hearing, it

shall:

(i) Notify the affected entity of its

intent to immediately suspend training

program accreditation for the reasons

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

If a suspension, revocation, or

modification notice has not previously

been issued pursuant to paragraph (g)(1)

of this section, it shall be issued at the

same time the emergency suspension

notice is issued.

(ii) Notify the affected entity in

writing of the grounds for the immediate

suspension and why it is necessary to

suspend the entity’s accreditation before

an opportunity for a suspension,

revocation or modification hearing.

(iii) Notify the affected entity of the

anticipated commencement date and

duration of the immediate suspension.

(iv) Notify the affected entity of its

right to request a hearing on the

immediate suspension within 15 days of

the suspension taking place and the

procedures for the conduct of such a

hearing.

(5) Any notice, decision, or order

issued by EPA under this section, any

transcripts or other verbatim record of

oral testimony, and any documents filed

by an accredited training program in a

hearing under this section shall be

available to the public, except as

otherwise provided by section 14 of

TSCA or by part 2 of this title. Any such

hearing at which oral testimony is

presented shall be open to the public,

except that the Presiding Officer may

exclude the public to the extent

necessary to allow presentation of

information which may be entitled to

confidential treatment under section 14

of TSCA or part 2 of this title.

(6) The public shall be notified of the

suspension, revocation, modification or

reinstatement of a training program’s

accreditation through appropriate

mechanisms.

(7) EPA shall maintain a list of parties

whose accreditation has been

suspended, revoked, modified or

reinstated.

(i) Training program recordkeeping

requirements. (1) Accredited training

programs shall maintain, and make

available to EPA, upon request, the

following records:

(i) All documents specified in

paragraph (c)(4) of this section that

demonstrate the qualifications listed in

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

section of the training manager and

principal instructors.

(ii) Current curriculum/course

materials and documents reflecting any

changes made to these materials.

(iii) The course test blueprint.

(iv) Information regarding how the

hands-on assessment is conducted

including, but not limited to:

(A) Who conducts the assessment.

(B) How the skills are graded.

(C) What facilities are used.

(D) The pass/fail rate.

(v) The quality control plan as

described in paragraph (c)(9) of this

section.

(vi) Results of the students’ hands-on

skills assessments and course tests, and

a record of each student’s course

completion certificate.

(vii) Any other material not listed

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

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

submitted to EPA as part of the

program’s application for accreditation.

(2) The training program shall retain

these records at the address specified on

the training program accreditation

application (or as modified in

accordance with paragraph (i)(3) of this

section for a minimum of 3 years and 6

months.

(3) The training program shall notify

EPA in writing within 30 days of

changing the address specified on its

training program accreditation

application or transferring the records

from that address.

§ 745.226 Certification of individuals and

firms engaged in lead-based paint

activities: target housing and childoccupied facilities.

(a) Certification of individuals. (1)

Individuals seeking certification by EPA

to engage in lead-based paint activities

must either:

(i) Submit to EPA an application

demonstrating that they meet the

requirements established in paragraphs

(b) or (c) of this section for the particular

discipline for which certification is

sought; or

(ii) Submit to EPA an application with

a copy of a valid lead-based paint

activities certification (or equivalent)

from a State or Tribal program that has

been authorized by EPA pursuant to

subpart Q of this part.

(2) Individuals may first apply to EPA

for certification to engage in lead-based

paint activities pursuant to this section

on or after March 1, 1999.

(3) Following the submission of an

application demonstrating that all the

requirements of this section have been

meet, EPA shall certify an applicant as

an inspector, risk assessor, supervisor,

project designer, or abatement worker,

as appropriate.

(4) Upon receiving EPA certification,

individuals conducting lead-based paint

activities shall comply with the work

practice standards for performing the

appropriate lead-based paint activities

as established in § 745.227.

(5) It shall be a violation of TSCA for

an individual to conduct any of the

lead-based paint activities described in

§ 745.227 after August 30, 1999, if that

individual has not been certified by EPA

pursuant to this section to do so.

(b) Inspector, risk assessor or

supervisor. (1) To become certified by

EPA as an inspector, risk assessor, or
45820 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

supervisor, pursuant to paragraph

(a)(1)(i) of this section, an individual

must:

(i) Successfully complete an

accredited course in the appropriate

discipline and receive a course

completion certificate from an

accredited training program.

(ii) Pass the certification exam in the

appropriate discipline offered by EPA;

and,

(iii) Meet or exceed the following

experience and/or education

requirements:

(A) Inspectors. (1) No additional

experience and/or education

requirements.

(2) [Reserved]

(B) Risk assessors. (1) Successful

completion of an accredited training

course for inspectors; and

(2) Bachelor’s degree and 1 year of

experience in a related field (e.g., lead,

asbestos, environmental remediation

work, or construction), or an Associates

degree and 2 years experience in a

related field (e.g., lead, asbestos,

environmental remediation work, or

construction); or

(3) Certification as an industrial

hygienist, professional engineer,

registered architect and/or certification

in a related engineering/health/

environmental field (e.g., safety

professional, environmental scientist);

or

(4) A high school diploma (or

equivalent), and at least 3 years of

experience in a related field (e.g., lead,

asbestos, environmental remediation

work or construction).

(C) Supervisor: (1) One year of

experience as a certified lead-based

paint abatement worker; or

(2) At least 2 years of experience in

a related field (e.g., lead, asbestos, or

environmental remediation work) or in

the building trades.

(2) The following documents shall be

recognized by EPA as evidence of

meeting the requirements listed in

(b)(2)(iii) of this paragraph:

(i) Official academic transcripts or

diploma, as evidence of meeting the

education requirements.

(ii) Resumes, letters of reference, or

documentation of work experience, as

evidence of meeting the work

experience requirements.

(iii) Course completion certificates

from lead-specific or other related

training courses, issued by accredited

training programs, as evidence of

meeting the training requirements.

(3) In order to take the certification

examination for a particular discipline

an individual must:

(i) Successfully complete an

accredited course in the appropriate

discipline and receive a course

completion certificate from an

accredited training program.

(ii) Meet or exceed the education and/

or experience requirements in paragraph

(b)(1)(iii) of this section.

(4) The course completion certificate

shall serve as interim certification for an

individual until the next available

opportunity to take the certification

exam. Such interim certification shall

expire 6 months after issuance.

(5) After passing the appropriate

certification exam and submitting an

application demonstrating that he/she

meets the appropriate training,

education, and/or experience

prerequisites described in paragraph

(b)(1) of this section, an individual shall

be issued a certificate by EPA. To

maintain certification, an individual

must be re-certified as described in

paragraph (e) of this section.

(6) An individual may take the

certification exam no more than three

times within 6 months of receiving a

course completion certificate.

(7) If an individual does not pass the

certification exam and receive a

certificate within 6 months of receiving

his/her course completion certificate,

the individual must retake the

appropriate course from an accredited

training program before reapplying for

certification from EPA.

(c) Abatement worker and project

designer. (1) To become certified by

EPA as an abatement worker or project

designer, pursuant to paragraph (a)(1)(i)

of this section, an individual must:

(i) Successfully complete an

accredited course in the appropriate

discipline and receive a course

completion certificate from an

accredited training program.

(ii) Meet or exceed the following

additional experience and/or education

requirements:

(A) Abatement workers. (1) No

additional experience and/or education

requirements.

(2) [Reserved]

(B) Project designers. (1) Successful

completion of an accredited training

course for supervisors.

(2) Bachelor’s degree in engineering,

architecture, or a related profession, and

1 year of experience in building

construction and design or a related

field; or

(3) Four years of experience in

building construction and design or a

related field.

(2) The following documents shall be

recognized by EPA as evidence of

meeting the requirements listed in this

paragraph:

(i) Official academic transcripts or

diploma, as evidence of meeting the

education requirements.

(ii) Resumes, letters of reference, or

documentation of work experience, as

evidence of meeting the work

experience requirements.

(iii) Course completion certificates

from lead-specific or other related

training courses, issued by accredited

training programs, as evidence of

meeting the training requirements.

(3) The course completion certificate

shall serve as an interim certification

until certification from EPA is received,

but shall be valid for no more than 6

months from the date of completion.

(4) After successfully completing the

appropriate training courses and

meeting any other qualifications

described in paragraph (c)(1) of this

section, an individual shall be issued a

certificate from EPA. To maintain

certification, an individual must be recertified as described in paragraph (e) of

this section.

(d) Certification based on prior

training. (1) Any individual who

received training in a lead-based paint

activity between October 1, 1990, and

March 1, 1999 shall be eligible for

certification by EPA under the

alternative procedures contained in this

paragraph. Individuals who have

received lead-based paint activities

training at an EPA-authorized State or

Tribal accredited training program shall

also be eligible for certification by EPA

under the following alternative

procedures:

(i) Applicants for certification as an

inspector, risk assessor, or supervisor

shall:

(A) Demonstrate that the applicant

has successfully completed training or

on-the-job training in the conduct of a

lead-based paint activity.

(B) Demonstrate that the applicant

meets or exceeds the education and/or

experience requirements in paragraph

(b)(1)(iii) of this section.

(C) Successfully complete an

accredited refresher training course for

the appropriate discipline.

(D) Pass a certification exam

administered by EPA for the appropriate

discipline.

(ii) Applicants for certification as an

abatement worker or project designer

shall:

(A) Demonstrate that the applicant

has successfully completed training or

on-the-job training in the conduct of a

lead-based paint activity.

(B) Demonstrate that the applicant

meets the education and/or experience

requirements in paragraphs (c)(1) of this

section; and
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45821

(C) Successfully complete an

accredited refresher training course for

the appropriate discipline.

(2) Individuals shall have until

August 30, 1999 to apply to EPA for

certification under the above

procedures. After that date, all

individuals wishing to obtain

certification must do so through the

procedures described in paragraph (a),

and paragraph (b) or (c) of this section,

according to the discipline for which

certification is sought.

(e) Re-certification. (1) To maintain

certification in a particular discipline, a

certified individual shall apply to and

be re-certified by EPA in that discipline

by EPA either:

(i) Every 3 years if the individual

completed a training course with a

course test and hands-on assessment; or

(ii) every 5 years if the individual

completed a training course with a

proficiency test.

(2) An individual shall be re-certified

if the individual successfully completes

the appropriate accredited refresher

training course and submits a valid copy

of the appropriate refresher course

completion certificate.

(f) Certification of firms. (1) All firms

which perform or offer to perform any

of the lead-based paint activities

described in § 745.227 after August 30,

1999 shall be certified by EPA.

(2) A firm seeking certification shall

submit to EPA a letter attesting that the

firm shall only employ appropriately

certified employees to conduct leadbased paint activities, and that the firm

and its employees shall follow the work

practice standards in § 745.227 for

conducting lead-based paint activities.

(3) From the date of receiving the

firm’s letter requesting certification,

EPA shall have 90 days to approve or

disapprove the firm’s request for

certification. Within that time, EPA

shall respond with either a certificate of

approval or a letter describing the

reasons for a disapproval.

(4) The firm shall maintain all records

pursuant to the requirements in

§ 745.227.

(5) Firms may first apply to EPA for

certification to engage in lead-based

paint activities pursuant to this section

on or after March 1, 1999.

(g) Suspension, revocation, and

modification of certifications of

individuals engaged in lead-based paint

activities. (1) EPA may, after notice and

opportunity for hearing, suspend,

revoke, or modify an individual’s

certification if an individual has:

(i) Obtained training documentation

through fraudulent means.

(ii) Gained admission to and

completed an accredited training

program through misrepresentation of

admission requirements.

(iii) Obtained certification through

misrepresentation of certification

requirements or related documents

dealing with education, training,

professional registration, or experience.

(iv) Performed work requiring

certification at a job site without having

proof of certification.

(v) Permitted the duplication or use of

the individual’s own certificate by

another.

(vi) Performed work for which

certification is required, but for which

appropriate certification has not been

received.

(vii) Failed to comply with the

appropriate work practice standards for

lead-based paint activities at § 745.227.

(viii) Failed to comply with Federal,

State, or local lead-based paint statutes

or regulations.

(2) In addition to an administrative or

judicial finding of violation, for

purposes of this section only, execution

of a consent agreement in settlement of

an enforcement action constitutes

evidence of a failure to comply with

relevant statutes or regulations.

(h) Suspension, revocation, and

modification of certifications of firms

engaged in lead-based paint activities.

(1) EPA may, after notice and

opportunity for hearing, suspend,

revoke, or modify a firm’s certification

if a firm has:

(i) Performed work requiring

certification at a job site with

individuals who are not certified.

(ii) Failed to comply with the work

practice standards established in

§ 745.227.

(iii) Misrepresented facts in its letter

of application for certification to EPA.

(iv) Failed to maintain required

records.

(v) Failed to comply with Federal,

State, or local lead-based paint statutes

or regulations.

(2) In addition to an administrative or

judicial finding of violation, for

purposes of this section only, execution

of a consent agreement in settlement of

an enforcement action constitutes

evidence of a failure to comply with

relevant statutes or regulations.

(i) Procedures for suspension,

revocation, or modification of the

certification of individuals or firms.

(1) If EPA decides to suspend, revoke,

or modify the certification of any

individual or firm, it shall notify the

affected entity in writing of the

following:

(i) The legal and factual basis for the

suspension, revocation, or modification.

(ii) The commencement date and

duration of the suspension, revocation,

or modification.

(iii) Actions, if any, which the

affected entity may take to avoid

suspension, revocation, or modification

or to receive certification in the future.

(iv) The opportunity and method for

requesting a hearing prior to final EPA

action to suspend, revoke, or modify

certification.

(v) Any additional information, as

appropriate, which EPA may provide.

(2) If a hearing is requested by the

certified individual or firm, EPA shall:

(i) Provide the affected entity an

opportunity to offer written statements

in response to EPA’s assertion of the

legal and factual basis and any other

explanations, comments, and arguments

it deems relevant to the proposed

action.

(ii) Provide the affected entity such

other procedural opportunities as EPA

may deem appropriate to ensure a fair

and impartial hearing.

(iii) Appoint an official of EPA as

Presiding Officer to conduct the hearing.

No person shall serve as Presiding

Officer if he or she has had any prior

connection with the specific matter.

(3) The Presiding Officer shall:

(i) Conduct a fair, orderly, and

impartial hearing within 90 days of the

request for a hearing;

(ii) Consider all relevant evidence,

explanation, comment, and argument

submitted; and

(iii) Notify the affected entity in

writing within 90 days of completion of

the hearing of his or her decision and

order. Such an order is a final EPA

action subject to judicial review.

(4) If EPA determines that the public

health, interest, or welfare warrants

immediate action to suspend the

certification of any individual or firm

prior to the opportunity for a hearing, it

shall:

(i) Notify the affected entity of its

intent to immediately suspend

certification for the reasons listed in

paragraph (h)(1) of this section. If a

suspension, revocation, or modification

notice has not previously been issued, it

shall be issued at the same time the

immediate suspension notice is issued.

(ii) Notify the affected entity in

writing of the grounds upon which the

immediate suspension is based and why

it is necessary to suspend the entity’s

accreditation before an opportunity for

a hearing to suspend, revoke, or modify

the individual’s or firm’s certification.

(iii) Notify the affected entity of the

commencement date and duration of the

immediate suspension.

(iv) Notify the affected entity of its

right to request a hearing on the

immediate suspension within 15 days of

the suspension taking place and the
45822 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

procedures for the conduct of such a

hearing.

(5) Any notice, decision, or order

issued by EPA under this section,

transcript or other verbatim record of

oral testimony, and any documents filed

by a certified individual or firm in a

hearing under this section shall be

available to the public, except as

otherwise provided by section 14 of

TSCA or by part 2 of this title. Any such

hearing at which oral testimony is

presented shall be open to the public,

except that the Presiding Officer may

exclude the public to the extent

necessary to allow presentation of

information which may be entitled to

confidential treatment under section 14

of TSCA or part 2 of this title.

§ 745.227 Work practice standards for

conducting lead-based paint activities:

target housing and child-occupied facilities.

(a) Effective date, applicability, and

terms. (1) Beginning on March 1, 1999,

all lead-based paint activities shall be

performed pursuant to the work practice

standards contained in this section.

(2) When performing any lead-based

paint activity described by the certified

individual as an inspection, lead-hazard

screen, risk assessment or abatement, a

certified individual must perform that

activity in compliance with the

appropriate requirements below.

(3) Documented methodologies that

are appropriate for this section are

found in the following: The U.S.

Department of Housing and Urban

Development (HUD) Guidelines for the

Evaluation and Control of Lead-Based

Paint Hazards in Housing; the EPA

Guidance on Residential Lead-Based

Paint, Lead-Contaminated Dust, and

Lead-Contaminated Soil; the EPA

Residential Sampling for Lead:

Protocols for Dust and Soil Sampling

(EPA report number 7474–R–95–001);

Regulations, guidance, methods or

protocols issued by States and Indian

Tribes that have been authorized by

EPA; and other equivalent methods and

quidelines.

(4) Clearance levels are appropriate

for the purposes of this section may be

found in the EPA Guidance on

Residential Lead-Based Paint, LeadContaminated Dust, and Lead

Contaminiated Soil or other equivalent

guidelines.

(b) Inspection. (1) An inspection shall

be conducted only by a person certified

by EPA as an inspector or risk assessor

and, if conducted, must be conducted

according to the procedures in this

paragraph.

(2) When conducting an inspection,

the following locations shall be selected

according to documented methodologies

and tested for the presence of lead-based

paint:

(i) In a residential dwelling and childoccupied facility, each component with

a distinct painting history and each

exterior component with a distinct

painting history shall be tested for leadbased paint, except those components

that the inspector or risk assessor

determines to have been replaced after

1978, or to not contain lead-based paint;

and

(ii) In a multi-family dwelling or

child-occupied facility, each component

with a distinct painting history in every

common area, except those components

that the inspector or risk assessor

determines to have been replaced after

1978, or to not contain lead-based paint.

(3) Paint shall be sampled in the

following manner: (i) The analysis of

paint to determine the presence of lead

shall be conducted using documented

methodologies which incorporate

adequate quality control procedures;

and/or

(ii) All collected paint chip samples

shall be analyzed according to

paragraph (f) of this section to

determine if they contain detectable

levels of lead that can be quantified

numerically.

(4) The certified inspector or risk

assessor shall prepare an inspection

report which shall include the following

information:

(i) Date of each inspection.

(ii) Address of building.

(iii) Date of construction.

(iv) Apartment numbers (if

applicable).

(v) Name, address, and telephone

number of the owner or owners of each

residential dwelling or child-occupied

facility.

(vi) Name, signature, and certification

number of each certified inspector and/

or risk assessor conducting testing.

(vii) Name, address, and telephone

number of the certified firm employing

each inspector and/or risk assessor, if

applicable.

(viii) Each testing method and device

and/or sampling procedure employed

for paint analysis, including quality

control data and, if used, the serial

number of any x-ray fluorescence (XRF)

device.

(ix) Specific locations of each painted

component tested for the presence of

lead-based paint.

(x) The results of the inspection

expressed in terms appropriate to the

sampling method used.

(c) Lead hazard screen. (1) A lead

hazard screen shall be conducted only

by a person certified by EPA as a risk

assessor.

(2) If conducted, a lead hazard screen

shall be conducted as follows:

(i) Background information regarding

the physical characteristics of the

residential dwelling or child-occupied

facility and occupant use patterns that

may cause lead-based paint exposure to

one or more children age 6 years and

under shall be collected.

(ii) A visual inspection of the

residential dwelling or child-occupied

facility shall be conducted to:

(A) Determine if any deteriorated

paint is present, and

(B) Locate at least two dust sampling

locations.

(iii) If deteriorated paint is present,

each surface with deteriorated paint,

which is determined, using documented

methodologies, to be in poor condition

and to have a distinct painting history,

shall be tested for the presence of lead.

(iv) In residential dwellings, two

composite dust samples shall be

collected, one from the floors and the

other from the windows, in rooms,

hallways or stairwells where one or

more children, age 6 and under, are

most likely to come in contact with

dust.

(v) In multi-family dwellings and

child-occupied facilities, in addition to

the floor and window samples required

in paragraph (c)(1)(iii) of this section,

the risk assessor shall also collect

composite dust samples from common

areas where one or more children, age

6 and under, are most likely to come

into contact with dust.

(3) Dust samples shall be collected

and analyzed in the following manner:

(i) All dust samples shall be taken

using documented methodologies that

incorporate adequate quality control

procedures.

(ii) All collected dust samples shall be

analyzed according to paragraph (f) of

this section to determine if they contain

detectable levels of lead that can be

quantified numerically.

(4) Paint shall be sampled in the

following manner: (i) The analysis of

paint to determine the presence of lead

shall be conducted using documented

methodologies which incorporate

adequate quality control procedures;

and/or

(ii) All collected paint chip samples

shall be analyzed according to

paragraph (f) of this section to

determine if they contain detectable

levels of lead that can be quantified

numerically.

(5) The risk assessor shall prepare a

lead hazard screen report, which shall

include the following information:

(i) The information required in a risk

assessment report as specified in

paragraph (d) of this section, including
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45823

paragraphs (d)(11)(i) through

(d)(11)(xiv), and excluding paragraphs

(d)(11)(xv) through (d)(11)(xviii) of this

section. Additionally, any background

information collected pursuant to

paragraph (c)(2)(i) of this section shall

be included in the risk assessment

report; and

(ii) Recommendations, if warranted,

for a follow-up risk assessment, and as

appropriate, any further actions.

(d) Risk assessment. (1) A risk

assessment shall be conducted only by

a person certified by EPA as a risk

assessor and, if conducted, must be

conducted according to the procedures

in this paragraph.

(2) A visual inspection for risk

assessment of the residential dwelling

or child-occupied facility shall be

undertaken to locate the existence of

deteriorated paint, assess the extent and

causes of the deterioration, and other

potential lead-based paint hazards.

(3) Background information regarding

the physical characteristics of the

residential dwelling or child-occupied

facility and occupant use patterns that

may cause lead-based paint exposure to

one or more children age 6 years and

under shall be collected.

(4) Each surface with deteriorated

paint, which is determined, using

documented methodologies, to be in

poor condition and to have a distinct

painting history, shall be tested for the

presence of lead. Each other surface

determined, using documented

methodologies, to be a potential leadbased paint hazard and having a distinct

painting history, shall also be tested for

the presence of lead.

(5) In residential dwellings, dust

samples (either composite or singlesurface samples) from the window and

floor shall be collected in all living areas

where one or more children, age 6 and

under, are most likely to come into

contact with dust.

(6) For multi-family dwellings and

child-occupied facilities, the samples

required in paragraph (d)(4) of this

section shall be taken. In addition,

window and floor dust samples (either

composite or single-surface samples)

shall be collected in the following

locations:

(i) Common areas adjacent to the

sampled residential dwelling or childoccupied facility; and

(ii) Other common areas in the

building where the risk assessor

determines that one or more children,

age 6 and under, are likely to come into

contact with dust.

(7) For child-occupied facilities,

window and floor dust samples (either

composite or single-surface samples)

shall be collected in each room, hallway

or stairwell utilized by one or more

children, age 6 and under, and in other

common areas in the child-occupied

facility where the risk assessor

determines one or more children, age 6

and under, are likely to come into

contact with dust.

(8) Soil samples shall be collected and

analyzed for lead concentrations in the

following locations:

(i) Exterior play areas where bare soil

is present; and

(ii) Dripline/foundation areas where

bare soil is present.

(9) Any paint, dust, or soil sampling

or testing shall be conducted using

documented methodologies that

incorporate adequate quality control

procedures.

(10) Any collected paint chip, dust, or

soil samples shall be analyzed according

to paragraph (f) of this section to

determine if they contain detectable

levels of lead that can be quantified

numerically.

(11) The certified risk assessor shall

prepare a risk assessment report which

shall include the following information:

(i) Date of assessment.

(ii) Address of each building.

(iii) Date of construction of buildings.

(iv) Apartment number (if applicable).

(v) Name, address, and telephone

number of each owner of each building.

(vi) Name, signature, and certification

of the certified risk assessor conducting

the assessment.

(vii) Name, address, and telephone

number of the certified firm employing

each certified risk assessor if applicable.

(viii) Name, address, and telephone

number of each recognized laboratory

conducting analysis of collected

samples.

(ix) Results of the visual inspection.

(x) Testing method and sampling

procedure for paint analysis employed.

(xi) Specific locations of each painted

component tested for the presence of

lead.

(xii) All data collected from on-site

testing, including quality control data

and, if used, the serial number of any

XRF device.

(xiii) All results of laboratory analysis

on collected paint, soil, and dust

samples.

(xiv) Any other sampling results.

(xv) Any background information

collected pursuant to paragraph (d)(3) of

this section.

(xvi) To the extent that they are used

as part of the lead-based paint hazard

determination, the results of any

previous inspections or analyses for the

presence of lead-based paint, or other

assessments of lead-based paint-related

hazards.

(xvii) A description of the location,

type, and severity of identified leadbased paint hazards and any other

potential lead hazards.

(xviii) A description of interim

controls and/or abatement options for

each identified lead-based paint hazard

and a suggested prioritization for

addressing each hazard. If the use of an

encapsulant or enclosure is

recommended, the report shall

recommend a maintenance and

monitoring schedule for the encapsulant

or enclosure.

(e) Abatement. (1) An abatement shall

be conducted only by an individual

certified by EPA, and if conducted, shall

be conducted according to the

procedures in this paragraph.

(2) A certified supervisor is required

for each abatement project and shall be

onsite during all work site preparation

and during the post-abatement cleanup

of work areas. At all other times when

abatement activities are being

conducted, the certified supervisor shall

be onsite or available by telephone,

pager or answering service, and able to

be present at the work site in no more

than 2 hours.

(3) The certified supervisor and the

certified firm employing that supervisor

shall ensure that all abatement activities

are conducted according to the

requirements of this section and all

other Federal, State and local

requirements.

(4) Notification of the commencement

of lead-based paint abatement activities

in a residential dwelling or childoccupied facility or as a result of a

Federal, State, or local order shall be

given to EPA prior to the

commencement of abatement activities.

The procedure for this notification will

be developed by EPA prior to August

31, 1998.

(5) A written occupant protection

plan shall be developed for all

abatement projects and shall be

prepared according to the following

procedures:

(i) The occupant protection plan shall

be unique to each residential dwelling

or child-occupied facility and be

developed prior to the abatement. The

occupant protection plan shall describe

the measures and management

procedures that will be taken during the

abatement to protect the building

occupants from exposure to any leadbased paint hazards.

(ii) A certified supervisor or project

designer shall prepare the occupant

protection plan.

(6) The work practices listed below

shall be restricted during an abatement

as follows:

(i) Open-flame burning or torching of

lead-based paint is prohibited;
45824 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

(ii) Machine sanding or grinding or

abrasive blasting or sandblasting of leadbased paint is prohibited unless used

with High Efficiency Particulate Air

(HEPA) exhaust control which removes

particles of 0.3 microns or larger from

the air at 99.97 percent or greater

efficiency;

(iii) Dry scraping of lead-based paint

is permitted only in conjunction with

heat guns or around electrical outlets or

when treating defective paint spots

totaling no more than 2 square feet in

any one room, hallway or stairwell or

totaling no more than 20 square feet on

exterior surfaces; and

(iv) Operating a heat gun on leadbased paint is permitted only at

temperatures below 1100 degrees

Fahrenheit.

(7) If conducted, soil abatement shall

be conducted in one of the following

ways:

(i) If soil is removed, the leadcontaminated soil shall be replaced with

soil that is not lead-contaminated; or

(ii) If soil is not removed, the leadcontaminated soil shall be permanently

covered, as defined in § 745.223.

(8) The following post-abatement

clearance procedures shall be performed

only by a certified inspector or risk

assessor:

(i) Following an abatement, a visual

inspection shall be performed to

determine if deteriorated painted

surfaces and/or visible amounts of dust,

debris or residue are still present. If

deteriorated painted surfaces or visible

amounts of dust, debris or residue are

present, these conditions must be

eliminated prior to the continuation of

the clearance procedures.

(ii) Following the visual inspection

and any post-abatement cleanup

required by paragraph (e)(8)(i) of this

section, clearance sampling for leadcontaminated dust shall be conducted.

Clearance sampling may be conducted

by employing single-surface sampling or

composite sampling techniques.

(iii) Dust samples for clearance

purposes shall be taken using

documented methodologies that

incorporate adequate quality control

procedures.

(iv) Dust samples for clearance

purposes shall be taken a minimum of

1 hour after completion of final postabatement cleanup activities.

(v) The following post-abatement

clearance activities shall be conducted

as appropriate based upon the extent or

manner of abatement activities

conducted in or to the residential

dwelling or child-occupied facility:

(A) After conducting an abatement

with containment between abated and

unabated areas, one dust sample shall

be taken from one window (if available)

and one dust sample shall be taken from

the floor of no less than four rooms,

hallways or stairwells within the

containment area. In addition, one dust

sample shall be taken from the floor

outside the containment area. If there

are less than four rooms, hallways or

stairwells within the containment area,

then all rooms, hallways or stairwells

shall be sampled.

(B) After conducting an abatement

with no containment, two dust samples

shall be taken from no less than four

rooms, hallways or stairwells in the

residential dwelling or child-occupied

facility. One dust sample shall be taken

from one window (if available) and one

dust sample shall be taken from the

floor of each room, hallway or stairwell

selected. If there are less than four

rooms, hallways or stairwells within the

residential dwelling or child-occupied

facility then all rooms, hallways or

stairwells shall be sampled.

(C) Following an exterior paint

abatement, a visible inspection shall be

conducted. All horizontal surfaces in

the outdoor living area closest to the

abated surface shall be found to be

cleaned of visible dust and debris. In

addition, a visual inspection shall be

conducted to determine the presence of

paint chips on the dripline or next to

the foundation below any exterior

surface abated. If paint chips are

present, they must be removed from the

site and properly disposed of, according

to all applicable Federal, State and local

requirements.

(vi) The rooms, hallways or stairwells

selected for sampling shall be selected

according to documented

methodologies.

(vii) The certified inspector or risk

assessor shall compare the residual lead

level (as determined by the laboratory

analysis) from each dust sample with

applicable clearance levels for lead in

dust on floors and windows. If the

residual lead levels in a dust sample

exceed the clearance levels, all the

components represented by the failed

sample shall be recleaned and retested

until clearance levels are met.

(9) In a multi-family dwelling with

similarly constructed and maintained

residential dwellings, random sampling

for the purposes of clearance may be

conducted provided:

(i) The certified individuals who abate

or clean the residential dwellings do not

know which residential dwelling will be

selected for the random sample.

(ii) A sufficient number of residential

dwellings are selected for dust sampling

to provide a 95 percent level of

confidence that no more than 5 percent

or 50 of the residential dwellings

(whichever is smaller) in the randomly

sampled population exceed the

appropriate clearance levels.

(iii) The randomly selected residential

dwellings shall be sampled and

evaluated for clearance according to the

procedures found in paragraph (e)(8) of

this section.

(10) An abatement report shall be

prepared by a certified supervisor or

project designer. The abatement report

shall include the following information:

(i) Start and completion dates of

abatement.

(ii) The name and address of each

certified firm conducting the abatement

and the name of each supervisor

assigned to the abatement project.

(iii) The occupant protection plan

prepared pursuant to paragraph (e)(5) of

this section.

(iv) The name, address, and signature

of each certified risk assessor or

inspector conducting clearance

sampling and the date of clearance

testing.

(v) The results of clearance testing

and all soil analyses (if applicable) and

the name of each recognized laboratory

that conducted the analyses.

(vi) A detailed written description of

the abatement, including abatement

methods used, locations of rooms and/

or components where abatement

occurred, reason for selecting particular

abatement methods for each component,

and any suggested monitoring of

encapsulants or enclosures.

(f) Collection and laboratory analysis

of samples. Any paint chip, dust, or soil

samples collected pursuant to the work

practice standards contained in this

section shall be:

(1) Collected by persons certified by

EPA as an inspector or risk assessor; and

(2) Analyzed by a laboratory

recognized by EPA pursuant to section

405(b) of TSCA as being capable of

performing analyses for lead

compounds in paint chip, dust, and soil

samples.

(g) Composite dust sampling.

Composite dust sampling may only be

conducted in the situations specified in

paragraphs (c) through (e) of this

section. If such sampling is conducted,

the following conditions shall apply:

(1) Composite dust samples shall

consist of at least two subsamples;

(2) Every component that is being

tested shall be included in the sampling;

and

(3) Composite dust samples shall not

consist of subsamples from more than

one type of component.

(h) Recordkeeping. All reports or

plans required in this section shall be

maintained by the certified firm or

individual who prepared the report for
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45825

no fewer than 3 years. The certified firm

or individual also shall provide copies

of these reports to the building owner

who contracted for its services.

§ 745.228 Accreditation of training

programs: public and commercial

buildings, bridges and superstructures

[Reserved].

§ 745.229 Certification of individuals and

firms engaged in lead-based paint

activities: public and commercial buildings,

bridges and superstructures [Reserved].

§ 745.230 Work practice standards for

conducting lead-based paint activities:

public and commercial buildings, bridges

and superstructures [Reserved].

§ 745.233 Lead-based paint activities

requirements.

Lead-based paint activities, as defined

in this part, shall only be conducted

according to the procedures and work

practice standards contained in

§ 745.227 of this subpart. No individual

or firm may offer to perform or perform

any lead-based paint activity as defined

in this part, unless certified to perform

that activity according to the procedures

in § 745.226.

§ 745.235 Enforcement.

(a) Failure or refusal to comply with

any requirement of §§ 745.225, 745.226,

745.227, or 745.233 is a prohibited act

under sections 15 and 409 of TSCA (15

U.S.C. 2614, 2689).

(b) Failure or refusal to establish,

maintain, provide, copy, or permit

access to records or reports as required

by §§ 745.225, 745.226, or 745.227 is a

prohibited act under sections 15 and

409 of TSCA (15 U.S.C. 2614, 2689).

(c) Failure or refusal to permit entry

or inspection as required by § 745.237

and section 11 of TSCA (15 U.S.C. 2610)

is a prohibited act under sections 15 and

409 of TSCA (15 U.S.C. 2614, 2689).

(d) In addition to the above, any

individual or firm that performs any of

the following acts shall be deemed to

have committed a prohibited act under

sections 15 and 409 of TSCA (15 U.S.C.

2614, 2689). These include the

following:

(i) Obtaining certification through

fraudulent representation;

(ii) Failing to obtain certification from

EPA and performing work requiring

certification at a job site; or

(iii) Fraudulently obtaining

certification and engaging in any leadbased paint activities requiring

certification.

(e) Violators are subject to civil and

criminal sanctions pursuant to section

16 of TSCA (15 U.S.C. 2615) for each

violation.

§ 745.237 Inspections.

EPA may conduct reasonable

inspections pursuant to the provisions

of section 11 of TSCA (15 U.S.C. 2610)

to ensure compliance with this subpart.

§ 745.239 Effective dates.

This subpart L shall apply in any

State or Indian Country that does not

have an authorized program under

subpart Q, effective August 31, 1998. In

such States or Indian Country:

(a) Training programs shall not

provide, offer or claim to provide

training or refresher training for

certification without accreditation from

EPA pursuant to § 745.225 on or after

March 1, 1999.

(b) No individual or firm shall

perform, offer, or claim to perform leadbased paint activities, as defined in this

subpart, without certification from EPA

to conduct such activities pursuant to

§ 745.226 on or after August 30, 1999.

(c) All lead-based paint activities shall

be performed pursuant to the work

practice standards contained in

§ 745.227 on or after August 30, 1999.

Subparts M-P [Reserved]

Subpart Q—State and Indian Tribal

Programs

§ 745.320 Scope and purpose.

(a) This subpart establishes the

requirements that State or Tribal

programs must meet for authorization

by the Administrator to administer and

enforce the standards, regulations, or

other requirements established under

TSCA section 402 and/or section 406

and establishes the procedures EPA will

follow in approving, revising, and

withdrawing approval of State or Tribal

programs.

(b) For State or Tribal lead-based

paint training and certification

programs, a State or Indian Tribe may

seek authorization to administer and

enforce §§ 745.225, 745.226, and

745.227. The provisions of §§ 745.220,

745.223, 745.233, 745.235, 745.237, and

745.239 shall be applicable for the

purposes of such program authorization.

(c) For State or Tribal pre-renovation

notification programs, a State or Indian

Tribe may seek authorization to

administer and enforce regulations

developed pursuant to TSCA section

406.

(d) A State or Indian Tribe applying

for program authorization may seek

either interim approval or final approval

of the compliance and enforcement

portion of the State or Tribal lead-based

paint program pursuant to the

procedures at § 745.327(a).

(e) State or Tribal submissions for

program authorization shall comply

with the procedures set out in this

subpart.

(f) Any State or Tribal program

approved by the Administrator under

this subpart shall at all times comply

with the requirements of this subpart.

(g) In many cases States will lack

authority to regulate activities in Indian

Country. This lack of authority does not

impair a State’s ability to obtain full

program authorization in accordance

with this subpart. EPA will administer

the program in Indian Country if neither

the State nor Indian Tribe has been

granted program authorization by EPA.

§ 745.323 Definitions.

The definitions in subpart A apply to

this subpart. In addition, the definitions

in § 745.223 and the following

definitions apply:

Indian Country means (1) all land

within the limits of any American

Indian reservation under the

jurisdiction of the U.S. government,

notwithstanding the issuance of any

patent, and including rights-of-way

running throughout the reservation; (2)

all dependent Indian communities

within the borders of the United States

whether within the original or

subsequently acquired territory thereof,

and whether within or outside the limits

of a State; and (3) all Indian allotments,

the Indian titles which have not been

extinguished, including rights-of-way

running through the same.

Indian Tribe means any Indian Tribe,

band, nation, or community recognized

by the Secretary of the Interior and

exercising substantial governmental

duties and powers.

§ 745.324 Authorization of State or Tribal

programs.

(a) Application content and

procedures. (1) Any State or Indian

Tribe that seeks authorization from EPA

to administer and enforce any

provisions of subpart L of this part

under section 402(a) of TSCA or the

provisions of regulations developed

under section 406 of TSCA shall submit

an application to the Administrator in

accordance with the procedures of this

paragraph (a).

(2) Before developing an application

for authorization, a State or Indian Tribe

shall disseminate a public notice of

intent to seek such authorization and

provide an opportunity for a public

hearing.

(3) A State or Tribal application shall

include:

(i) A transmittal letter from the State

Governor or Tribal Chairperson (or

equivalent official) requesting program

approval.

(ii) A summary of the State or Tribal

program. This summary will be used to
45826 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

provide notice to residents of the State

or Tribe.

(iii) A description of the State or

Tribal program in accordance with

paragraph (b) of this section.

(iv) An Attorney General’s or Tribal

Counsel’s (or equivalent) statement in

accordance with paragraph (c) of this

section.

(v) Copies of all applicable State or

Tribal statutes, regulations, standards,

and other materials that provide the

State or Indian Tribe with the authority

to administer and enforce a lead-based

paint program.

(4) After submitting an application,

the Agency will publish a Federal

Register notice that contains an

announcement of the receipt of the State

or Tribal application, the summary of

the program as provided by the State or

Tribe, and a request for public

comments to be mailed to the

appropriate EPA Regional Office. This

comment period shall last for no less

than 45 days. EPA will consider these

comments during its review of the State

or Tribal application.

(5) Within 60 days of submission of a

State or Tribal application, EPA will, if

requested, conduct a public hearing in

each State or Indian Country seeking

program authorization and will consider

all comments submitted at that hearing

during the review of the State or Tribal

application.

(b) Program description. A State or

Indian Tribe seeking to administer and

enforce a program under this subpart

must submit a description of the

program. The description of the State or

Tribal program must include:

(1)(i) The name of the State or Tribal

agency that is or will be responsible for

administering and enforcing the

program, the name of the official in that

agency designated as the point of

contact with EPA, and addresses and

phone numbers where this official can

be contacted.

(ii) Where more than one agency is or

will be responsible for administering

and enforcing the program, the State or

Indian Tribe must designate a primary

agency to oversee and coordinate

administration and enforcement of the

program and serve as the primary

contact with EPA.

(iii) In the event that more than one

agency is or will be responsible for

administering and enforcing the

program, the application must also

include a description of the functions to

be performed by each agency. The

desciption shall explain and how the

program will be coordinated by the

primary agency to ensure consistency

and effective administration of the leadbased paint training accreditation and

certification program within the State or

Indian Tribe.

(2) To demonstrate that the State or

Tribal program is at least as protective

as the Federal program, fulfilling the

criteria in paragraph (e)(2)(i) of this

section, the State or Tribal application

must include:

(i) A description of the program that

demonstrates that the program contains

all of the elements specified in

§ 745.325, § 745.326, or both; and

(ii) An analysis of the State or Tribal

program that compares the program to

the Federal program in subpart L of this

part, regulations developed pursuant to

TSCA section 406, or both. This analysis

shall demonstrate how the program is,

in the State’s or Indian Tribe’s

assessment, at least as protective as the

elements in the Federal program at

subpart L of this part, regulations

developed pursuant to TSCA section

406, or both. EPA will use this analysis

to evaluate the protectiveness of the

State or Tribal program in making its

determination pursuant to paragraph

(e)(2)(i) of this section.

(3) To demonstrate that the State or

Tribal program provides adequate

enforcement, fulfilling the criteria in

paragraph (e)(2)(ii) of this section, the

State or Tribal application must include

a description of the State or Tribal leadbased paint compliance and

enforcement program that demonstrates

that the program contains all of the

elements specified at § 745.327. This

description shall include copies of all

policies, certifications, plans, reports,

and other materials that demonstrate

that the State or Tribal program contains

all of the elements specified at

§ 745.327.

(4)(i) The program description for an

Indian Tribe shall also include a map,

legal description, or other information

sufficient to identify the geographical

extent of the territory over which the

Indian Tribe exercises jurisdiction.

(ii) The program description for an

Indian Tribe shall also include a

demonstration that the Indian Tribe:

(A) Is recognized by the Secretary of

the Interior.

(B) has an existing government

exercising substantial governmental

duties and powers.

(C) has adequate civil regulatory

jurisdiction (as shown in the Tribal legal

certification in paragraph (c)(2) of this

section) over the subject matter and

entities regulated.

(D) is reasonably expected to be

capable of administering the Federal

program for which it is seeking

authorization.

(iii) If the Administrator has

previously determined that an Indian

Tribe has met the prerequisites in

paragraphs (b)(4)(ii)(A) and (B) of this

section for another EPA program, the

Indian Tribe need provide only that

information unique to the lead-based

paint program required by paragraphs

(b)(4)(ii)(C) and (D) of this section.

(c) Attorney General’s statement. (1) A

State or Indian Tribe must submit a

written statement signed by the

Attorney General or Tribal Counsel (or

equivalent) certifying that the laws and

regulations of the State or Indian Tribe

provide adequate legal authority to

administer and enforce the State or

Tribal program. This statement shall

include citations to the specific statutes

and regulations providing that legal

authority.

(2) The Tribal legal certification (the

equivalent to the Attorney General’s

statement) may also be submitted and

signed by an independent attorney

retained by the Indian Tribe for

representation in matters before EPA or

the courts pertaining to the Indian

Tribe’s program. The certification shall

include an assertion that the attorney

has the authority to represent the Indian

Tribe with respect to the Indian Tribe’s

authorization application.

(3) If a State application seeks

approval of its program to operate in

Indian Country, the required legal

certification shall include an analysis of

the applicant’s authority to implement

its provisions in Indian Country. The

applicant shall include a map

delineating the area over which it seeks

to operate the program.

(d) Program certification. (1) At the

time of submitting an application, a

State may also certify to the

Administrator that the State program

meets the requirements contained in

paragraphs (e)(2)(i) and (e)(2)(ii) of this

section.

(2) If this certification is contained in

a State’s application, the program shall

be deemed to be authorized by EPA

until such time as the Administrator

disapproves the program application or

withdraws the program authorization. A

program shall not be deemed authorized

pursuant to this subpart to the extent

that jurisdiction is asserted over Indian

Country, including non-member fee

lands within an Indian reservation.

(3) If the application does not contain

such certification, the State program

will be authorized only after the

Administrator authorizes the program in

accordance with paragraph (e) of this

section.

(4) This certification shall take the

form of a letter from the Governor or the

Attorney General to the Administrator.

The certification shall reference the

program analysis in paragraph (b)(3) of
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45827

this section as the basis for concluding

that the State program is at least as

protective as the Federal program, and

provides adequate enforcement.

(e) EPA approval. (1) EPA will fully

review and consider all portions of a

State or Tribal application.

(2) Within 180 days of receipt of a

complete State or Tribal application, the

Administrator shall either authorize the

program or disapprove the application.

The Administrator shall authorize the

program, after notice and the

opportunity for public comment and a

public hearing, only if the

Administrator finds that:

(i)(A) In the case of an application to

authorize the State or Indian Tribe to

administer and enforce the provisions of

subpart L of this part, the State or Tribal

program is at least as protective of

human health and the environment as

the corresponding Federal program

under subpart L of this part; and/or

(B) In the case of an application to

authorize the State or Indian Tribe to

administer and enforce the regulations

developed pursuant to TSCA section

406, the State or Tribal program is at

least as protective of human health and

the environment as the Federal

regulations developed pursuant to

TSCA section 406.

(ii) The State or Tribal program

provides adequate enforcement.

(3) EPA shall notify in writing the

State or Indian Tribe of the

Administrator’s decision to authorize

the State or Tribal program or

disapprove the State’s or Indian Tribe’s

application.

(4) If the State or Indian Tribe applies

for authorization of State or Tribal

programs under both subpart L and

regulations developed pursuant to

TSCA section 406, EPA may, as

appropriate, authorize one program and

disapprove the other.

(f) EPA administration and

enforcement. (1) If a State or Indian

Tribe does not have an authorized

program to administer and enforce

subpart L of this part in effect by August

31, 1998, the Administrator shall, by

such date, establish and enforce the

provisions of subpart L of this part as

the Federal program for that State or

Indian Country.

(2) If a State or Indian Tribe does not

have an authorized program to

administer and enforce regulations

developed pursuant to TSCA section

406 in effect by August 31, 1998, the

Administrator shall, by such date,

establish and enforce the provisions of

regulations developed pursuant to

TSCA section 406 as the Federal

program for that State or Indian

Country.

(3) Upon authorization of a State or

Tribal program, pursuant to paragraph

(d) or (e) of this section, it shall be an

unlawful act under sections 15 and 409

of TSCA for any person to fail or refuse

to comply with any requirements of

such program.

(g) Oversight. EPA shall periodically

evaluate the adequacy of a State’s or

Indian Tribe’s implementation and

enforcement of its authorized programs.

(h) Reports. Beginning 12 months

after the date of program authorization,

the primary agency for each State or

Indian Tribe that has an authorized

program shall submit a written report to

the EPA Regional Administrator for the

Region in which the State or Indian

Tribe is located. This report shall be

submitted at least once every 12 months

for the first 3 years after program

authorization. If these reports

demonstrate successful program

implementation, the Agency will

automatically extend the reporting

interval to every 2 years. If the

subsequent reports demonstrate

problems with implementation, EPA

will require a return to annual reporting

until the reports demonstrate successful

program implementation, at which time

the Agency will extend the reporting

interval to every 2 years.

The report shall include the following

information:

(1) Any significant changes in the

content or administration of the State or

Tribal program implemented since the

previous reporting period; and

(2) All information regarding the leadbased paint enforcement and

compliance activities listed at

§ 745.327(d) ‘‘Summary on Progress and

Performance.’’

(i) Withdrawal of authorization. (1) If

EPA concludes that a State or Indian

Tribe is not administering and enforcing

an authorized program in compliance

with the standards, regulations, and

other requirements of sections 401

through 412 of TSCA and this subpart,

the Administrator shall notify the

primary agency for the State or Indian

Tribe in writing and indicate EPA’s

intent to withdraw authorization of the

program.

(2) The Notice of Intent to Withdraw

shall:

(i) Identify the program aspects that

EPA believes are inadequate and

provide a factual basis for such findings.

(ii) Include copies of relevant

documents.

(iii) Provide an opportunity for the

State or Indian Tribe to respond either

in writing or at a meeting with

appropriate EPA officials.

(3) EPA may request that an informal

conference be held between

representatives of the State or Indian

Tribe and EPA officials.

(4) Prior to issuance of a withdrawal,

a State or Indian Tribe may request that

EPA hold a public hearing. At this

hearing, EPA, the State or Indian Tribe,

and the public may present facts bearing

on whether the State’s or Indian Tribe’s

authorization should be withdrawn.

(5) If EPA finds that deficiencies

warranting withdrawal did not exist or

were corrected by the State or Indian

Tribe, EPA may rescind its Notice of

Intent to Withdraw authorization.

(6) Where EPA finds that deficiencies

in the State or Tribal program exist that

warrant withdrawal, an agreement to

correct the deficiencies shall be jointly

prepared by the State or Indian Tribe

and EPA. The agreement shall describe

the deficiencies found in the program,

specify the steps the State or Indian

Tribe has taken or will take to remedy

the deficiencies, and establish a

schedule, no longer than 180 days, for

each remedial action to be initiated.

(7) If the State or Indian Tribe does

not respond within 60 days of issuance

of the Notice of Intent to Withdraw or

an agreement is not reached within 180

days after EPA determines that a State

or Indian Tribe is not in compliance

with the Federal program, the Agency

shall issue an order withdrawing the

State’s or Indian Tribe’s authorization.

(8) By the date of such order, the

Administrator shall establish and

enforce the provisions of subpart L of

this part or regulations developed

pursuant to TSCA section 406, or both,

as the Federal program for that State or

Indian Country.

§ 745.325 Lead-based paint activities:

State and Tribal program requirements.

(a) Program elements. To receive

authorization from EPA, a State or

Tribal program must contain at least the

following program elements for leadbased paint activities:

(1) Procedures and requirements for

the accreditation of lead-based paint

activities training programs.

(2) Procedures and requirements for

the certification of individuals engaged

in lead-based paint activities.

(3) Work practice standards for the

conduct of lead-based paint activities.

(4) Requirements that all lead-based

paint activities be conducted by

appropriately certified contractors.

(5) Development of the appropriate

infrastructure or government capacity to

effectively carry out a State or Tribal

program.

(b) Accreditation of training

programs. The State or Indian Tribe

must have either:
45828 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

(1) Procedures and requirements for

the accreditation of training programs

that establish:

(i) Requirements for the accreditation

of training programs, including but not

limited to:

(A) Training curriculum

requirements.

(B) Training hour requirements.

(C) Hands-on training requirements.

(D) Trainee competency and

proficiency requirements.

(E) Requirements for training program

quality control.

(ii) Procedures for the re-accreditation

of training programs.

(iii) Procedures for the oversight of

training programs.

(iv) Procedures for the suspension,

revocation, or modification of training

program accreditations; or

(2) Procedures or regulations, for the

purposes of certification, for the

acceptance of training offered by an

accredited training provider in a State or

Tribe authorized by EPA.

(c) Certification of individuals. The

State or Indian Tribe must have

requirements for the certification of

individuals that:

(1) Ensure that certified individuals:

(i) Are trained by an accredited

training program; and

(ii) Possess appropriate education or

experience qualifications for

certification.

(2) Establish procedures for recertification.

(3) Require the conduct of lead-based

paint activities in accordance with work

practice standards established by the

State or Indian Tribe.

(4) Establish procedures for the

suspension, revocation, or modification

of certifications.

(5) Establish requirements and

procedures for the administration of a

third-party certification exam.

(d) Work practice standards for the

conduct of lead-based paint activities.

The State or Indian Tribe must have

requirements or standards that ensure

that lead-based paint activities are

conducted reliably, effectively, and

safely. At a minimum the State’s or

Indian Tribe’s work practice standards

for conducting inspections, risk

assessments, and abatements must

contain the requirements specified in

paragraphs (d)(1), (d)(2), and (d)(3) of

this section.

(1) The work practice standards for

the inspection for the presence of leadbased paint must require that:

(i) Inspections are conducted only by

individuals certified by the appropriate

State or Tribal authority to conduct

inspections.

(ii) Inspections are conducted in a

way that identifies the presence of leadbased paint on painted surfaces within

the interior or on the exterior of a

residential dwelling or child-occupied

facility.

(iii) Inspections are conducted in a

way that uses documented

methodologies that incorporate

adequate quality control procedures.

(iv) A report is developed that clearly

documents the results of the inspection.

(v) Records are retained by the

certified inspector or the firm.

(2) The work practice standards for

risk assessment must require that:

(i) Risk assessments are conducted

only by individuals certified by the

appropriate State or Tribal authority to

conduct risk assessments.

(ii) Risk assessments are conducted in

a way that identifies and reports the

presence of lead-based paint hazards.

(iii) Risk assessments consist of, at

least:

(A) An assessment, including a visual

inspection, of the physical

characteristics of the residential

dwelling or child-occupied facility; and

(B) Environmental sampling for lead

in paint, dust, and soil.

(iv) The risk assessor develops a

report that clearly presents the results of

the assessment and recommendations

for the control or elimination of all

identified hazards.

(v) The certified risk assessor or the

firm retains the appropriate records.

(3) The work practice standards for

abatement must require that:

(i) Abatements are conducted only by

individuals certified by the appropriate

State or Tribal authority to conduct or

supervise abatements.

(ii) Abatements permanently

eliminate lead-based paint hazards and

are conducted in a way that does not

increase the hazards of lead-based paint

to the occupants of the dwelling or

child-occupied facility.

(iii) Abatements include postabatement lead in dust clearance

sampling and conformance with

clearance levels established or adopted

by the State or Indian Tribe.

(iv) The abatement contractor

develops a report that describes areas of

the residential dwelling or childoccupied facility abated and the

techniques employed.

(v) The certified abatement contractor

or the firm retains appropriate records.

§ 745.326 Pre-renovation notification:

State and Tribal program requirements.

(a) Program elements. To receive

authorization from EPA, a State or

Tribal program must contain the

following program elements for

renovation disclosure:

(1) Procedures and requirements for

the distribution of lead hazard

information to owners and occupants of

target housing before renovations for

compensation; and

(2) An approved lead hazard

information pamphlet meeting the

requirements of section 406 of TSCA, as

determined by EPA. EPA will provide

States or Tribes with guidance on what

is necessary for a State or Tribal

pamphlet approval application.

(b) Program to distribute lead

information. To be considered at least as

protective as the Federal requirements

for pre-renovation distribution of

information, the State or Indian Tribe

must have procedures and requirements

that establish:

(1) Clear standards for identifying

home improvement activities that

trigger the pamphlet distribution

requirements; and

(2) Procedures for distributing the

lead hazard information to owners and

occupants of the housing prior to

renovation activities.

(c) Distribution of acceptable lead

hazard information. To be considered at

least as protective as the Federal

requirements for the distribution of a

lead hazard information pamphlet, the

State or Indian Tribe must either:

(1) Distribute the lead hazard

information pamphlet developed by

EPA under section 406(a) of TSCA,

titled Protect Your Family from Lead in

Your Home; or

(2) Distribute an alternate pamphlet or

package of lead hazard information that

has been submitted by the State or

Tribe, reviewed by EPA, and approved

by EPA for use in that State or Tribe.

Such information must meet the content

requirements prescribed by section

406(a) of TSCA, and be in a format that

is readable to the diverse audience of

housing owners and occupants in that

State or Tribe.

§ 745.327 State or Indian Tribal lead-based

paint compliance and enforcement

programs.

(a) Approval of compliance and

enforcement programs. A State or

Indian Tribe seeking authorization of a

lead-based paint program can apply for

and receive either interim or final

approval of the compliance and

enforcement program portion of its leadbased paint program. Indian Tribes are

not required to exercise criminal

enforcement jurisdiction as a condition

for program authorization.

(1) Interim approval. Interim approval

of the compliance and enforcement

program portion of the State or Tribal

lead-based paint program may be

granted by EPA only once, and subject

to a specific expiration date.
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations 45829

(i) To be considered adequate for

purposes of obtaining interim approval

for the compliance and enforcement

program portion of a State or Tribal

lead-based paint program, a State or

Indian Tribe must, in its application

described at § 745.324(a):

(A) Demonstrate it has the legal

authority and ability to immediately

implement the elements in paragraph

(b) of this section. This demonstration

shall include a statement that the State

or Indian Tribe, during the interim

approval period, shall carry out a level

of compliance monitoring and

enforcement necessary to ensure that

the State or Indian Tribe addresses any

significant risks posed by

noncompliance with lead-based paint

activity requirements.

(B) Present a plan with time frames

identified for implementing in the field

each element in paragraph (c) of this

section. All elements of paragraph (c) of

this section must be fully implemented

no later than 3 years from the date of

EPA’s interim approval of the

compliance and enforcement program

portion of a State or Tribal lead-based

paint program. A statement of resources

must be included in the State or Tribal

plan which identifies what resources

the State or Indian Tribe intends to

devote to the administration of its leadbased paint compliance and

enforcement program.

(C) Agree to submit to EPA the

Summary on Progress and Performance

of lead-based paint compliance and

enforcement activities as described at

paragraph (d) of this section.

(ii) Any interim approval granted by

EPA for the compliance and

enforcement program portion of a State

or Tribal lead-based paint program will

expire no later than 3 years from the

date of EPA’s interim approval. One

hundred and eighty days prior to this

expiration date, a State or Indian Tribe

shall apply to EPA for final approval of

the compliance and enforcement

program portion of a State or Tribal

lead-based paint program. Final

approval shall be given to any State or

Indian Tribe which has in place all of

the elements of paragraphs (b), (c), and

(d) of this section. If a State or Indian

Tribe does not receive final approval for

the compliance and enforcement

program portion of a State or Tribal

lead-based paint program by the date 3

years after the date of EPA’s interim

approval, the Administrator shall, by

such date, initiate the process to

withdraw the State or Indian Tribe’s

authorization pursuant to § 745.324(i).

(2) Final approval. Final approval of

the compliance and enforcement

program portion of a State or Tribal

lead-based paint program can be granted

by EPA either through the application

process described at § 745.324(a), or, for

States or Indian Tribes which

previously received interim approval as

described in paragraph (a)(1) of this

section, through a separate application

addressing only the compliance and

enforcement program portion of a State

or Tribal lead-based paint program.

(i) For the compliance and

enforcement program to be considered

adequate for final approval through the

application described at § 745.324(a), a

State or Indian Tribe must, in its

application:

(A) Demonstrate it has the legal

authority and ability to immediately

implement the elements in paragraphs

(b) and (c) of this section.

(B) Submit a statement of resources

which identifies what resources the

State or Indian Tribe intends to devote

to the administration of its lead-based

paint compliance and enforcement

program.

(C) Agree to submit to EPA the

Summary on Progress and Performance

of lead-based paint compliance and

enforcement activities as described at

paragraph (d) of this section.

(ii) For States or Indian Tribes which

previously received interim approval as

described in paragraph (a)(1) of this

section, in order for the State or Tribal

compliance and enforcement program to

be considered adequate for final

approval through a separate application

addressing only the compliance and

enforcement program portion of a State

or Tribal lead-based paint program, a

State or Indian Tribe must, in its

application:

(A) Demonstrate that it has the legal

authority and ability to immediately

implement the elements in paragraphs

(b) and (c) of this section.

(B) Submit a statement which

identifies the resources the State or

Indian Tribe intends to devote to the

administration of its lead-based paint

compliance and enforcement program.

(C) Agree to submit to EPA the

Summary on Progress and Performance

of lead-based paint compliance and

enforcement activities as described at

paragraph (d) of this section.

(D) To the extent not previously

submitted through the application

described at § 745.324(a), submit copies

of all applicable State or Tribal statutes,

regulations, standards, and other

material that provide the State or Indian

Tribe with authority to administer and

enforce the lead-based paint compliance

and enforcement program, and copies of

the policies, certifications, plans,

reports, and any other documents that

demonstrate that the program meets the

requirements established in paragraphs

(b) and (c) of this section.

(b) Standards, regulations, and

authority. The standards, regulations,

and authority described in paragraphs

(b)(1) through (b)(4) of this section are

part of the required elements for the

compliance and enforcement portion of

a State or Tribal lead-based paint

program.

(1) Lead-based paint activities and

requirements. State or Tribal lead-based

paint compliance and enforcement

programs will be considered adequate if

the State or Indian Tribe demonstrates,

in its application at § 745.324(a), that it

has established a lead-based paint

program containing the following

requirements:

(i) Accreditation of training programs

as described at § 745.325(b).

(ii) Certification of individuals

engaged in lead-based paint activities as

described at § 745.325(c).

(iii) Standards for the conduct of leadbased paint activities as described at

§ 745.325(d); and, as appropriate,

(iv) Requirements that regulate the

conduct of pre-renovation notification

activities as described at § 745.326.

(2) Authority to enter. State or Tribal

officials must be able to enter, through

consent, warrant, or other authority,

premises or facilities where lead-based

paint activities violations may occur for

purposes of conducting inspections.

(i) State or Tribal officials must be

able to enter premises or facilities where

those engaged in training for lead-based

paint activities conduct business.

(ii) For the purposes of enforcing a

pre-renovation notification program,

State or Tribal officials must be able to

enter a renovator’s place of business.

(iii) State or Tribal officials must have

authority to take samples and review

records as part of the lead-based paint

activities inspection process.

(3) Flexible remedies. A State or

Tribal lead-based paint compliance and

enforcement program must provide for a

diverse and flexible array of

enforcement remedies. At a minimum,

the remedies that must be reflected in

an enforcement response policy must

include the following:

(i) Warning letters, Notices of

Noncompliance, Notices of Violation, or

the equivalent;

(ii) Administrative or civil actions,

including penalty authority (e.g.,

accreditation or certification

suspension, revocation, or

modification); and

(iii) Authority to apply criminal

sanctions or other criminal authority

using existing State or Tribal laws, as

applicable.
45830 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

(4) Adequate resources. An

application must include a statement

that identifies the resources that will be

devoted by the State or Indian Tribe to

the administration of the State or Tribal

lead-based paint compliance and

enforcement program. This statement

must address fiscal and personnel

resources that will be devoted to the

program.

(c) Performance elements. The

performance elements described in

paragraphs (c)(1) through (c)(7) of this

section are part of the required elements

for the compliance and enforcement

program portion of a State or Tribal

lead-based paint program.

(1) Training. A State or Tribal leadbased paint compliance and

enforcement program must implement a

process for training enforcement and

inspection personnel and ensure that

enforcement personnel and inspectors

are well trained. Enforcement personnel

must understand case development

procedures and the maintenance of

proper case files. Inspectors must

successfully demonstrate knowledge of

the requirements of the particular

discipline (e.g., abatement supervisor,

and/or abatement worker, and/or leadbased paint inspector, and/or risk

assessor, and/or project designer) for

which they have compliance monitoring

and enforcement responsibilities.

Inspectors must also be trained in

violation discovery, methods of

obtaining consent, evidence gathering,

preservation of evidence and chain-ofcustody, and sampling procedures. A

State or Tribal lead-based paint

compliance and enforcement program

must also implement a process for the

continuing education of enforcement

and inspection personnel.

(2) Compliance assistance. A State or

Tribal lead-based paint compliance and

enforcement program must provide

compliance assistance to the public and

the regulated community to facilitate

awareness and understanding of and

compliance with State or Tribal

requirements governing the conduct of

lead-based paint activities. The type and

nature of this assistance can be defined

by the State or Indian Tribe to achieve

this goal.

(3) Sampling techniques. A State or

Tribal lead-based paint compliance and

enforcement program must have the

technological capability to ensure

compliance with the lead-based paint

program requirements. A State or Tribal

application for approval of a lead-based

paint program must show that the State

or Indian Tribe is technologically

capable of conducting a lead-based

paint compliance and enforcement

program. The State or Tribal program

must have access to the facilities and

equipment necessary to perform

sampling and laboratory analysis as

needed. This laboratory facility must be

a recognized laboratory as defined at

§ 745.223, or the State or Tribal program

must implement a quality assurance

program that ensures appropriate

quality of laboratory personnel and

protects the integrity of analytical data.

(4) Tracking tips and complaints. A

State or Tribal lead-based paint

compliance and enforcement program

must demonstrate the ability to process

and react to tips and complaints or other

information indicating a violation.

(5) Targeting inspections. A State or

Tribal lead-based paint compliance and

enforcement program must demonstrate

the ability to target inspections to

ensure compliance with the lead-based

paint program requirements. Such

targeting must include a method for

obtaining and using notifications of

commencement of abatement activities.

(6) Follow up to inspection reports. A

State or Tribal lead-based paint

compliance and enforcement program

must demonstrate the ability to

reasonably, and in a timely manner,

process and follow-up on inspection

reports and other information generated

through enforcement-related activities

associated with a lead-based paint

program. The State or Tribal program

must be in a position to ensure

correction of violations and, as

appropriate, effectively develop and

issue enforcement remedies/responses

to follow up on the identification of

violations.

(7) Compliance monitoring and

enforcement. A State or Tribal leadbased paint compliance and

enforcement program must demonstrate,

in its application for approval, that it is

in a position to implement a compliance

monitoring and enforcement program.

Such a compliance monitoring and

enforcement program must ensure

correction of violations, and encompass

either planned and/or responsive leadbased paint compliance inspections and

development/issuance of State or Tribal

enforcement responses which are

appropriate to the violations.

(d) Summary on Progress and

Performance. The Summary on Progress

and Performance described below is

part of the required elements for the

compliance and enforcement program

portion of a State or Tribal lead-based

paint program. A State or Tribal leadbased paint compliance and

enforcement program must submit to

the appropriate EPA Regional

Administrator a report which

summarizes the results of implementing

the State or Tribal lead-based paint

compliance and enforcement program,

including a summary of the scope of the

regulated community within the State or

Indian Tribe (which would include the

number of individuals and firms

certified in lead-based paint activities

and the number of training programs

accredited), the inspections conducted,

enforcement actions taken, compliance

assistance provided, and the level of

resources committed by the State or

Indian Tribe to these activities. The

report shall be submitted according to

the requirements at § 745.324(h).

(e) Memorandum of Agreement. An

Indian Tribe that obtains program

approval must establish a Memorandum

of Agreement with the Regional

Administrator. The Memorandum of

Agreement shall be executed by the

Indian Tribe’s counterpart to the State

Director (e.g., the Director of Tribal

Environmental Office, Program or

Agency). The Memorandum of

Agreement must include provisions for

the timely and appropriate referral to

the Regional Administrator for those

criminal enforcement matters where

that Indian Tribe does not have the

authority (e.g., those addressing

criminal violations by non-Indians or

violations meriting penalties over

$5,000). The Agreement must also

identify any enforcement agreements

that may exist between the Indian Tribe

and any State.

§ 745.330 Grants.

The Administrator, or a designated

equivalent, may make grants to States

and Indian Tribes, that meet the

requirements of § 745.324(e)(2)(i) and

(e)(2)(ii), under section 404(g) of TSCA

to develop and carry out programs

authorized pursuant to this subpart.

Grants made under this section are

subject to the requirements of 40 CFR

part 31.

§ 745.339 Effective dates.

States and Indian Tribes may seek

authorization to administer and enforce

subpart L pursuant to this subpart

effective October 28, 1996.

[FR Doc. 96–21954 Filed 8–28–96; 8:45 am]

BILLING CODE 6560–50–F