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Page 1 of 42 [RIN 2070-AJ57] 03/21/2011 EO12866_Rin2070-AJ57_LRRP Clearance_ FRM_R2Cdocument_2011-04-08 1

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

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

14 General Support for Clearance and Testing Provisions: 15

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

blood lead levels. 22

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

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

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

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

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

54

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

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

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

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

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

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

variables in the use of the disposable cleaning cloths. 91

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

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

verification doesn’t work. 96

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

levels

. 104

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

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

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

party. 118

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

122

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

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

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

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

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

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

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

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

to make without better supporting evidence. 155

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

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

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

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

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

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

hazard standard. 172

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

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

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

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

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

190

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

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

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

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

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

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

activities. 218

219 General Opposition: 220

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

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

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

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

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

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

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

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

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

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

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

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

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

286

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

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

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

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

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

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

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

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

330

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

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

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

work in a lead-safe manner. 338

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

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

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

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

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

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

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

389

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

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

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

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

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

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

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

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

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

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

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

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

a Victorian Farmhouse ) 431

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

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

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

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

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

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

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

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

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

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

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

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

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

521

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

worse. 526

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

532

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

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

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

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

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

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

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

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

. 566

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

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

. 573

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

flake. 582

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

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

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

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

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

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

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

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

. 604

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

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

. 611

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

flake. 620

621

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

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

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

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

seq. 638

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

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

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

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

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

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

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

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

schools and on homeowner weatheri zation assistance programs. 664

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

675

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

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

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

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

small entities. 693

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

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

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

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

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

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

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

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

no additional clarification of these terms is necessary. 738

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

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

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

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

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

Lead Disclosure Rule. 760

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

764

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

will consider this issue. 837

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

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

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

857

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

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

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

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

874 Clearance in Lieu of Cleaning Verification 875

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

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

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

887 EPA does not agree that removing this provision is inconsistent with th e HUD regulations. The 888 Dust Study demonstrates that clean ing verification is an important final fine cleaning step that 889 also provides some feedback about the cleanline ss of the surface to the re novator. In fact, the 890 Dust Study showed that, in a si gnificant number of cases, the cleaning verification step was 891 necessary in order to re move the dust-lead hazards created by the renovation. It is likely that 892 completing the entire RRP cleaning protocol, including cleaning verification, increases the 893 probability that clearance, where required, will be achieved on the first attempt. Thus, requiring 894 the performance of the entire RRP rule cleani ng protocol, including cleaning verification, is 895 hardly inconsistent with the HUD regulations. In addition, EPA belie ves that the cleaning 896 verification process, in almost all cases, is mi nimally burdensome. EPA’s “Electrostatic Cloth 897 and Wet Cloth Field Study in Resi dential Housing” showed that cleaning verification should take 898 approximately 5 minutes per cloth for each pass, and each cloth may be used for up to 40 square 899 feet of uncarpeted floor, count ertop, or windowsill space. Th e material requirements for 900 cleaning verification are very inexpensive. EP A estimated, as part of the 2008 final RRP rule 901 analyses, that the material cost for each dis posable cloth is $0.46 a nd that handles are $13.60 902 apiece. Cleaning verification is an integral component of the entire suite of RRP work practices. 903

EPA believes that there is value in the cleani ng protocol of the RRP rule, including cleaning 904 verification, becoming the accepted standard pr actice for cleaning up after renovations. 905

906 One commenter thought that eliminating the op tion to do clearance in place of cleaning 907 verification may undermine incentiv es for clearance testing. 908

909 Because the costs associated with cleaning veri fication are minimal, EPA does not agree that 910 requiring contractors to perform cleaning verification even if they are also doing clearance 911 undermines incentives for performing clearance. 912

913 One commenter thought that clean ing verification and clearance are redundant, and that EPA 914 should pick one met hod and stick to it. 915

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

Page 21 of 42 [RIN 2070-AJ57] 03/21/2011 EPA disagrees with this commenter. Based on a careful considerati on of the Disposable 917 Cleaning Cloth Study and the Dust Study, EPA c oncluded in the 2008 final RRP rule that 918 cleaning verification should not be used as a substitute for dust wipe clearance testing. 919

920 Paint Chip Collection 921

922 A number of commenters supported EPA’s proposal to allow certified renovators to collect paint 923 chip samples and send them to a laboratory r ecognized under the National Lead Laboratory 924 Accreditation Program (NLLAP). These commente rs thought that this would provide valuable 925 flexibility in testing component s in the work area, although one observed that it should not be 926

seen as a viable substitute or alternative for improved test kits because the lead-based paint 927

determination must occur at th e pre-bid stage of the job, and paint chip sampling would add a 928 delay. This commenter also noted that paint ch ip sampling is not inexpensive and it damages 929

surfaces. 930

931 EPA agrees that allowing certified renovators to collect paint chip sa mples provides additional 932 important flexibility for renovation firms, but EPA recognizes that the option is not without 933 disadvantages. 934

935 At least one commenter pointed out that EPA would also have to modify the recordkeeping 936 requirements to include informati on specific to paint chip sample collection, such as component 937 and location tested, identity of the NLLAP entity an alyzing the samples, and the sample results. 938

939 EPA agrees with this commenter, so EPA is modifying 40 CFR 745.86(b)(1) to add a new 940 subsection (iii) that requires re cords pertaining to paint chip sample collection and analysis, 941 including a description of the components that were sampled, and the locations sampled, the 942

name and address of the NLLAP -recognized entity performing the analysis, and the results for 943 each sample. EPA is also modifying 40 CFR 74 5.86(b)(6) to include a certification by the 944 certified renovator that, if paint chip samples were collected, that the samples were collected 945 from the components in the locations specified, th at the samples were submitted for analysis to 946 the identified NLLAP-recogni zed entity, and that the sample resu lts were as specified. 947

948 Some commenters thought that it would take a lot of time to teach renovators how to collect 949 paint chip samples. Others t hought it would be difficult to fit th e additional training on sample 950 collection, chain-of-custody, and laboratory su bmission procedures in to the 8-hour renovator 951 class. In contrast, some comme nters believed that paint chip sampling is easy to learn, and 952 thought it would be a simple add-on to the instruction on test kits. In particular, one commenter 953 stated that, as a homeowner, he had been inst ructed by an NLLAP laboratory over the telephone 954 on how to properly collect a paint chip sample and forward it to th e laboratory for analysis. This 955 experience led him to believe that it would be feasible to include in the renovator course 956

instruction on how to collect a paint chip sample and forward it for analysis. 957

958

The selection of locations to test and the recor dkeeping requirements woul d be identical whether 959 test kits or paint chip sampling is used. B ecause renovator training courses are already required 960 to include training in how and where to use test kits, EPA agrees with those commenters who 961*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 22 of 42 [RIN 2070-AJ57] 03/21/2011 believed that it would take very little additional time to also provide renovators with training in 962 how to collect a chip sample and submit them for analysis. 963

964 Some commenters argued that only certified inspectors and risk assessors should be permitted to 965 collect paint chip samples. Several thought that certified inspectors and ri sk assessors are better 966 qualified to determine the presence or absence of lead-based paint. One noted that improperly967 taken samples are worse than no samples, becaus e without samples, lead -based paint must be 968 assumed. Another thought that this would further blur th e line between renovators and 969 inspectors and cause problems in enforcing the re gulations. Several noted that State regulations 970 may prohibit anyone other than certified inspectors or risk assessors from collecting paint chip 971 samples. On the other hand, one commenter thought that the renovator course should teach 972 random sampling, so renovators could use random sampling in multi-unit buildings. 973

974 EPA disagrees with these commenters. Allowing certified renovators to collect paint chip 975 samples does not turn them into inspectors or ri sk assessors. Certifie d renovators must still 976 collect paint chip samples from each and every painted or coated component that they will 977 disturb during the renovation. The renovator course does not teach sampling protocols or 978 random sampling techniques, because that would take significantly more time than is available in 979 an 8-hour class. EPA is not sure how allowing cer tified renovators to collect paint chip samples 980 will lead to enforcement problems. Finally, just as with the current provisions for test kit use, in 981 those states that do not permit pers ons other than certified inspectors or risk assessors to test for 982 lead-based paint, certified renovators will not be able to exercise this option. 983

984

One commenter wondered how alrea dy-trained renovators would lear n how to collect paint chip 985 samples. 986

987 EPA plans to revise the model re novator initial and refresher c ourses to include information on 988 paint chip sample collection. B ecause currently-trained renovator s have already had training in 989 how and where to use test kits, EPA believes that certified renovators do not need a significant 990 amount of training to be able to collect paint chip samples pr operly. EPA plans to develop a 991 guidance document covering paint chip sample collection procedures, including recordkeeping 992 and laboratory submission procedures, and post it on EPA’s website. The experience related by 993 one commenter, that of being instructed by an NLLAP laboratory over the telephone on how to 994 properly collect a paint chip sample and forward it to the laboratory for analysis, shows that 995 renovators are able to easily understand what is required. 996

997 One commenter wondered what would happen if a property owner wants the renovator to sample 998 a component that isn’t going to be affected by the renovator’s work. This commenter asked 999

whether the renovator would incl ude this information within his testing report. 1000

1001 Certified renovators are not lead-based paint in spectors or risk assessors . EPA regulations only 1002 permit certified renovators to sample compone nts that are intended to be disturbed by a 1003 renovation. Certified renovators are not permitted to perform whole or partial lead-based paint 1004 inspections. 1005

1006*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 23 of 42 [RIN 2070-AJ57] 03/21/2011 Several commenters thought that EPA should also allow dust sampling technicians to collect 1007 paint chip samples. These comm enters thought that there would be time available in the course, 1008 and similar activities, such as documentation, chain-of-custody, and laboratory submission 1009 procedures, are already being taught there. 1010

1011 EPA disagrees with these commenters. The dust sampling technician course teaches how to 1012 collect and process dust wipe samples, it does no t include information on testing for lead-based 1013 paint. Since renovators are already permitted to test for lead-based paint using approved test 1014 kits, it makes more sense for renovators to make us e of the paint chip samp ling option. 1015

1016

Vertical Containment 1017

1018 Several commenters supported the proposed changes to the vertical contai nment language in the 1019

RRP rule. One noted that contamination of neighboring properties is a common and serious 1020 problem. 1021

1022 EPA agrees with these commenters and furthe r agrees that contam ination of neighboring 1023 properties can be a problem if containment, includ ing vertical containment, is not used properly. 1024

1025 Some commenters thought that the proposed changes to the ve rtical containment language in the 1026

RRP rule were too inflex ible and unnecessary. 1027

1028 EPA disagrees with these commenters. The Dust Study shows that dust a nd debris from exterior 1029

renovations travels at least 10 feet from the activity. In the absen ce of some system of vertical 1030 containment, EPA knows of no way to ensure that adjacent properties are not contaminated when 1031 work disturbs lead-based paint within 10 feet of the property lin e. In addition, EPA disagrees 1032 that the vertical containment langua ge is too inflexible. To the c ontrary, the vertical containment 1033 requirement is intended to provide flexibility for certified renovators to design effective 1034 containment systems based on the renovation activity and the work site. Vertical containment 1035 systems can span a range from simple barriers to more extensive scaffolding, depending on the 1036 size of the job and other relevant factors. Complex vertical containment systems with extensive 1037 scaffolding are often not necessary to effectiv ely contain the dust gene rated by a renovation. 1038 One commenter thought that it should be sufficient to require the renovation firm to inform the 1039 neighbors to keep their windows and doors closed while the renovation is ongoing. 1040

1041 EPA does not agree that this would be effective or sufficiently address the identified concern. 1042 Specifically, while this might prevent leaded dust from drifting into the interiors of adjacent 1043 buildings, it does not address contamination of the neighboring porches, balconies and yards. 1044 This does not meet the standard already present in the RRP rule, that dust and debris not be 1045 permitted to leave the work area while the renova tion is ongoing. EPA is also concerned about 1046 the ability of renovation firms to affect the be havior of neighbors whose homes are not being 1047

renovated. 1048

1049 Several commenters expressed conc ern about the safety of worker s and vertical containment. 1050 One argued that OSHA has said that vertical cont ainment is not required in situations where 1051 worker safety would be compromised, such as in windy conditions. 1052*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 24 of 42 [RIN 2070-AJ57] 03/21/2011 1053 EPA agrees that erecting certain types of vertic al containment in some windy conditions may be 1054 unsafe for workers. In these situations, EP A knows of no alternative but to reschedule 1055 renovations for more clement days. The HUD Guid elines state that exterior renovation work 1056 should not be conducted when the wind speed is gr eater than 20 miles per hour. The Guidelines 1057 also state that work must cease and cleanup be completed before rain begins. EPA has not 1058 imposed these specific requirements, but renovati on firms should consider this guidance when 1059 deciding how to proceed. 1060

1061 One commenter stated that EPA should partne r with OSHA when developing strategies for 1062

vertical containment that are both safe and eff ective instead of working solely with HUD. The 1063

commenter further states that EPA should reconsider the reco mmendations made in its model 1064 training course for exterior containment and work with OSHA to devise safe and effective means 1065 to contain dust and protect workers. 1066

1067 EPA consulted with OSHA when it developed th e RRP model training courses which contain 1068 recommendations on setting up vertical containmen t. OSHA reviewed the course materials and 1069 provided comments and suggestions to EPA on va rious aspects of the course. Although the 1070 training materials contain recomm endations for setting up vertical containment, the final rule 1071 does not require specific methods for constructing verti cal containment. Rather, the rule sets 1072 requirements for when vertical containment must be used. At this time, the Agency does not 1073 intend to expand the recommendations for cons tructing vertical cont ainment in the model 1074 training courses but may do so in the future. 1075

1076

Other commenters were concerned about the additio nal costs that the revisions to the vertical 1077 containment provisions woul d impose on renovations. 1078

1079 EPA agrees that it is more expensive to conduct exterior renovations with vertical containment 1080 than without. In EPA’s economic analysis for the 2008 RRP rule, EPA addressed those 1081

situations where the renovation firm must take extra precautions to effectively contain dust and 1082 debris, including work areas in close proximity to other buildings, work areas that abut a 1083 property line, and windy conditions. The 2008 economic analysis specifically notes that it is 1084 sometimes necessary to erect a sy stem of vertical containment to prevent paint dust and debris 1085 from contaminating the ground or any object beyond the work area. To account for these 1086 situations, EPA estimated that approximately 2% of exterior jobs would use exterior 1087 containment, and the incremental cost of vert ical containment varies from $330 per wall to 1088 $1,640 per wall, depending on the size of the job. Thus, EPA has already accounted for the 1089 additional costs incurred for using vertical cont ainment systems on renovations performed within 1090 10 feet of the property line. 1091

1092 One commenter thought that EPA s hould target the vertical contai nment requirements to what he 1093 considered actual trouble areas, such as buildings w ithin the 20-foot “closed windows and doors” 1094 area that cannot be closed, or renovations involving hand scraping at a height greater than the 1095 distance to the property line. 1096

1097*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 25 of 42 [RIN 2070-AJ57] 03/21/2011 The existing RRP rule requires work areas to be c ontained such that no dust or debris leaves the 1098

work area. This means vertical containmen t when necessary, which could include those 1099 situations mentioned by the commenter. Howeve r, because the Dust Study shows that dust and 1100

debris from exterior renovations travels at least 10 feet from the activity, in the absence of some 1101 system of vertical containment, EPA knows of no way to ensure that adjacent properties are not 1102 contaminated when work disturbs lead-based paint within 10 feet of the pr operty line. Therefore, 1103 EPA will require vertical containment when exteri or renovations are conducted within 10 feet of 1104 the property line. 1105

1106 One commenter thought that this requirement would result in unequal treatment for urban 1107 properties, which are frequently located within 10 f eet of the property line. Vertical containment 1108 would far exceed the value of the improvement in most cases. 1109

1110 EPA agrees that urban properties are more likely to be located close to the property line than 1111 rural properties. However, because the Dust St udy shows that dust and debris from exterior 1112

renovations travels at least 10 feet from the activity. In the absen ce of some system of vertical 1113 containment, EPA knows of no way to ensure that adjacent properties are not contaminated when 1114 work disturbs lead-based paint within 10 feet of the property line. Therefore EPA will require 1115

vertical containment when exterior renovations are conducted within 10 feet of the prope rty line. 1116

1117 One commenter thought that the ve rtical containment revisions we re unjustifiable, given that 1118 owners of neighboring properties are free to perform renovations without containment. 1119

1120 Do-it-yourself renovations in and on owner-occupi ed property are not regulated under the RRP 1121 rule. While do-it-yourself renovations may also cr eate lead-based paint hazards, EPA interprets 1122 the statutory directive to re gulate remodeling and renovation ac tivities found in TSCA section 1123 402(c)(3) as applying to contractor s and not a broader category of persons, such as homeowners. 1124 While the RRP rule does not prohibit do-it-yourse lf renovations without containment, there are 1125 likely to be other legal authori ties that address cont amination of neighboring properties. 1126

1127

Prohibited or Restricted Practices 1128

1129

Two commenters noted that EPA uses the term “painted surfaces” throughout the RRP rule and 1130 it is unclear whether this refers just to paint or to other surface coat ings as well. These 1131

commenters noted that the definition of “lead -based paint” includes paint and other surface 1132 coatings but there is no definition of the term “painted surfaces.” These commenters observed 1133 that other surface coatings, such as varnish, can contain significant amounts of lead. The 1134 commenters suggested that EPA address this issue throughout the RRP rule. 1135

1136 EPA agrees with these commenters. In us ing the term “painted surfaces,” EPA meant 1137 component surfaces that contain a coating that coul d be lead-based paint. The term was designed 1138 to encompass situations where the surface is co vered with lead-based paint as defined by the 1139 regulation as well as situations where the lead content of the surface coating had not been 1140

determined. EPA never intended to exclude va rnishes or other surface coatings from the 1141 coverage of the RRP rule. In fact, the appl icability section of the RRP rule, 40 CFR 745.82, 1142 limits the exclusions for testing to those situations where the components to be disturbed by a 1143*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 26 of 42 [RIN 2070-AJ57] 03/21/2011 renovation have been demonstrated to be free of paint and other surface coatings that contain 1144 lead at levels equal to or exceeding the regul atory threshold. Theref ore, EPA will replace the 1145 term “lead-based paint” with “painted su rfaces” in 40 CFR 745.85(a)(3) and EPA will also 1146 adding a clarifying definition of “painted surface ” to 40 CFR 745.83. This definition states that 1147 painted surface means a component surface that contains paint or other surface coatings. 1148

1149 Two commenters thought that there should be a performance standard included in EPA’s 1150 proposed clarification on what is meant by hi gh-efficiency particulat e air (HEPA) exhaust 1151 control. They recommended a visual standard that warns the worker s that the shroud or 1152 containment system is not working properly. On e commenter suggested a requirement that the 1153 power-tool and shroud must neithe r generate nor release visibl e dust and must permit no air 1154 movement on the outside. The other thought that the definition for pow er tool shroud should 1155 include a requirement that the HEPA shroud/vacu um be capable of coll ecting the air generated 1156 by the tool. This commenter also asserted that a more sensitive dust measure would improve the 1157

definition further. 1158

1159 EPA generally agrees with these commenters and will add a requirement that power tools be 1160 operated so that no visible dust or release of ai r occurs outside of th e shroud or containment 1161 system. This requirement will also work to mitig ate the concern EPA had with the efficiency of 1162 shrouded tools and the possibili ty that such tools might overwhelm the containment and 1163 specialized cleaning protocols of the lead safe work practices. This requirement should also 1164 ensure that the shroud or containment system us ed is capable of collect ing the air generated by 1165

the tool. While a more sensitive dust meas ure might improve the performance of the dust 1166 collection system, EPA is concer ned that any such measure woul d impose significant burdens on 1167 renovation firms, such as requiring them to purch ase and learn to use particle counters. EPA 1168

believes that the no visible dust or air release stan dard is sufficiently protective and represents an 1169 appropriate balance between accuracy and cost. 1170

1171 Another commenter thought that the term “shr ouded” in the proposed re vision would make the 1172 RRP rule more stringent than the requirements applicable to abatement contractors. 1173

1174 After consulting the abatement chapter of the HUD Guidelines, EPA has determined that the 1175 proposed language could potentially be read to ex clude one of the two types of sanders described 1176 by HUD as appropriate for abatement work beca use they provide HEPA exhaust control. 1177 Accordingly, EPA will revise the regulatory langua ge to require either a shroud or a containment 1178 system for these power tools. 1179

1180

HEPA Vacuums 1181

1182 Some commenters argued that the proposed clarification regarding a minimum efficiency 1183 reporting value (MERV) of 17 was too stringent. One commenter noted that the performance of 1184 the filter and the performance of the vacuum containing the fi lter would be different. This 1185 commenter referenced standard industry practice for high-efficiency vacuums used in lead dust 1186 clean-up. This commenter cited Table E-1, en titled “Application Guidelines,” from the 1187 American National Standards Institute (ANS I) and the American Society of Heating, 1188 Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 52.2-2007, which suggests 1189*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 27 of 42 [RIN 2070-AJ57] 03/21/2011 that a MERV 11 filter is appropriate for removi ng “lead dust.” This commenter nevertheless 1190 thought that the required perfor mance ought to be higher than MERV 11. Several commenters 1191

cited research done on the efficien cy of HEPA vacuums to argue th at the HEPA vacuums used in 1192 EPA’s Dust Study would not have met the MERV standard of 17 proposed by EPA. However, 1193 these commenters did not provide sufficient in formation to support this assertion. Other 1194 commenters expressed a general concern that th e proposed clarifications to the HEPA vaccum 1195 requirements would result in cont ractors not being able to use the affordable consumer grade 1196 HEPA vacuums that they have just purchased in order to comply with the RRP rule. 1197

1198

EPA is concerned about estab lishing a requirement for HEPA vacuums that would result in 1199 renovation firms having to replace vacuums they r ecently purchased with every indication that 1200 the vacuums would comply with the RRP rule requirements. Therefore, EPA will not add a 1201

minimum MERV value to the HEPA vacuum defi nition at this time. The definition already 1202 includes a standard for HEPA vacuums, that th ey be capable of captu ring particles of 0.3 1203 microns with 99.97% efficiency. 1204

1205 Some commenters thought that EPA should have ma nufacturers test their vacuums to ensure 1206 compliance with the standards, and several thoug ht that EPA should require HEPA vacuums to 1207 be tested in the field with a particle counter periodically, and whenever the main filter is 1208 replaced. 1209

1210 EPA disagrees with these commenters. Section 402(c) of TSCA and the RRP rule are primarily 1211

intended to address the behavior of contra ctors, persons who perform renovations for 1212 compensation, not vacuum manufacturers. EPA continues to recommend that renovation firms 1213

have information from the manuf acturer that the particular mode l of vacuum that the renovation 1214 firm intends to use, or the vacuum’s HEPA filter, has been tested in accordance with an 1215 applicable test method, such as ASTM F1471- 09, “Standard Test Method for Air Cleaning 1216 Performance of a High-Efficiency Particulate Air-Filter System,” and has been determined to 1217

meet the HEPA standard. 1218

1219 With respect to field tests, EPA is concerne d that any such measure would impose significant 1220 burdens on renovation firms, such as requiring them to purchase and learn to use particle 1221 counters. EPA believes that the requirement th at renovation firms operate and maintain their 1222

HEPA vacuums in accordance with the manufacturer’s instructions, including filter change 1223 intervals, is sufficiently protec tive and represents an appropria te balance between accuracy and 1224

cost. 1225

1226 One commenter noted, that while EPA’s reco mmendations on manufacturer documentation are 1227 reasonable, it can occasionally be difficult to consult the owner’s manual before purchasing a 1228 vacuum to determine whether it would comply with the HEPA standard. EPA should provide a 1229 regularly-updated list of HEPA vacuums that meet the standard. 1230

1231 EPA understands the commenter’s concerns, and will consider providing such a list. 1232

1233*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 28 of 42 [RIN 2070-AJ57] 03/21/2011 One commenter thought that more information on vacuum mainte nance should be added to the 1234

renovator curriculum. The commente r noted that the State of Wisconsin has illustrated guide to 1235

HEPA vacuum maintenance th at would be a good model. 1236

1237 EPA believes that HEPA vacuum operation and main tenance is, in general, relatively simple and 1238 that the owner’s manual for the specific model, or other information provided by manufacturers, 1239 is the best source of information on maintenance for renovation firms. However, EPA will 1240 consider developing a guidance document on the subject. 1241

1242 One commenter thought that vacuum s that the manufacturer warns are not suitable for use with 1243

hazardous substances or asbestos or lead cleanup should be prohibited from use. 1244

1245 EPA agrees that, if a manufacturer recommends that a particular vacuum not be used for leaded 1246 dust cleanup, the vacuum should not be used for RRP purposes. EPA believes that the 1247 requirement that vacuums be operated and main tained in accordance with the manufacturer’s 1248

recommendations will ensure that such v acuums are not used for RRP purposes. 1249

1250 Several commenters thought that the use of HEPA vacuums is unnecessary and that they are too 1251 expensive. 1252

1253 EPA did not propose to eliminate the requirement that HEPA vacuums be used and is not 1254 reopening or reconsidering this issue. 1255

1256 e-Learning 1257

1258

Some commenters were c oncerned with verifying the identity of persons logging into e-learning 1259 courses. Several noted that, because it is impossi ble to verify with certainty the identity of 1260 persons completing online training, an in-person final course test is necessary to ensure that the 1261 trainee is adequately trained. 1262

1263 EPA generally agrees that it is important to be ab le to verify that the trainee who completes the 1264 e-learning portion of the course is also the tr ainee who completes the hands-on training and the 1265 course test. Accordingly, EPA is amendi ng 40 CFR 745.225(c)(6) to explicitly require e1266 learning training providers to as sign a unique identifier to each student in order to track the 1267 student’s progress through the course. EPA be lieves that this requirement, along with the 1268 existing requirement that the trainee participate in the hands-on training and take the final course 1269 test in person, will provide reasonable assuran ce that the same person has completed all of the 1270 portions of the course. In response to these co mmenters, EPA is modifying the regulations to 1271 specifically state that e-learni ng or other alternative delivery methods cannot be used for the 1272 hands-on training, the final course test, or the proficiency test, if one is given. 1273

1274 One commenter was concerned about the possibility that trainees could complete EPA’s model 1275 e-learning course for renovators in one hour. T hus, according to this commenter, trainees could 1276 complete the entire renovator course in 3 hours (including the 2 hours for hands-on training), 1277

which does not meet the 8-hour regulatory requ irement. 1278

1279*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 29 of 42 [RIN 2070-AJ57] 03/21/2011 EPA disagrees with this commenter. The current model course posted on the EPA website is not 1280 a functioning course and does not contain th e background learning management system (LMS) 1281 which tracks the student’s progr ess and requires satisfactory co mpletion of the knowledge checks 1282 and the final test. Therefore, the time it ta kes to page through the model course is not 1283 representative of the time it would take to successfully complete an accredited e-learning course. 1284 Assuming that 2 training hour s are spent on hands-on trai ning, 40 CFR 745.225(c)(6)(vi) 1285 requires a minimum of six 50 minute training hours or 5 hours of classroom time for renovators. 1286 This requirement applies equally to traditional cl assroom settings as well as to e-learning courses 1287

course offered for accreditation. While EPA realizes that renovator trainees will not all proceed 1288 through an e-learning course at the same pace, an e-learning course offered for accreditation 1289 must be generally designed so that an averag e trainee takes approximately 5 hours to proceed 1290 through the course, including al l of the knowledge checks and th e course test. 1291

1292 One commenter wondered about the duty of the tr aining provider in eval uating the progress of 1293 the student, and whether they should be evaluatin g the time spent on the course to complete the 1294 training. The commenter also questioned the mean ing of “track each student’s course log-in, 1295 launches, progress, and completion.” The comm enter wondered whether the intent of this 1296 requirement was to provide overall documentation or whether it was to track progress while the 1297 student is taking the course so that the instructor can inte rvene and make corrections. 1298

1299 The requirements to track a student’s progress are in place to ensure that the student reviews all 1300 required portions of the course, co mpletes the knowledge checks a nd passes the final exam. The 1301 course was designed to be completed on the stud ent’s schedule which will often be outside of 1302 normal business hours. The accredited training provider should maintain a database of 1303 frequently asked questions and/or respond w ithin 24 hours to student e-mail and phone call 1304 questions regarding the course. Th e training provider is required to track whether the student has 1305 completed the training including answering all the knowledge check questions and passing the 1306

electronic final exam. 1307

1308 One commenter thought that EPA’ s proposed requirement of an 80% minimum passing score on 1309

the course test for the online course was t oo restrictive. Another commenter disagreed, 1310 reasoning that it was appropriate to have a higher passing score requirement for the e-learning 1311 portion of a training course, be cause the student would have an opportunity to review the 1312 material and retake the test. However, this commenter also thought th at a 100% passing score 1313 would be too restrictive, becau se it would likely results in students being penalized for poorly1314 worded questions or alternate inte rpretations, regardless of the stat e of the student’s knowledge. 1315

1316 EPA agrees with the second commenter. The 80% minimum passing score is intended to 1317 demonstrate mastery of the subject and lower scor es do not achieve this goal. If students do not 1318 pass the test, they must review the material a nd try again. EPA understands that some students 1319 may require significantly more than 6 training hou rs to complete the e- learning component. 1320

1321 One commenter supported required knowledge check s for e-learning courses, but thought that 1322 EPA should use more flexible language, such as requiring the system to offer “periodic” 1323 knowledge checks or another tool to ensure th e student is actively engaged and retaining 1324

information. 1325*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 30 of 42 [RIN 2070-AJ57] 03/21/2011 1326 EPA agrees with this comment and will require periodic knowledge checks equivalent to the 1327 number and content of the knowledge checks contai ned in EPA’s model course. This would be 1328 16-24 knowledge checks over the entire course. 1329

1330 One commenter suggested that EPA consider sepa rately accrediting entities that provide online 1331 training and entities that provide hands-on training. The commenter argued that developing an 1332 online course is a capital-intensive project that requires a large num ber of trainees to recover the 1333 costs, so relatively few entities are likely to und ertake online course development. In contrast, 1334 the commenter stated that the delivery of hands -on training must be more local and mobile, it 1335 requires a smaller capital investment, and each entity may have relatively few trainees. 1336

1337 EPA recognizes that this may be the case, at least for now, while EPA is administering the RRP 1338 program in most States. However, this may ch ange as more States become authorized and 1339 impose requirements for training that may differ from the EPA requirements. In any event, EPA 1340 has developed a streamlined process to allow acc redited training providers to add an e-learning 1341 component to their accreditation by using an al ready developed and accredited online course. 1342 This allows accredited training providers to offe r online training without having to make a large 1343 capital outlay to develop a course. EPA conti nues to believe that th e training provider who 1344 issues the final course completi on certificate to a trainee, thus conferring certified renovator 1345 status on the trainee, must be responsible for en suring that the student has completed all of the 1346 required training. EPA does not offer partial accr editations, or accredita tion for a portion of a 1347

course. 1348

1349 A commenter thought that it woul d be burdensome to require th e hands-on training provider to 1350 maintain records of the specific times each studen t logged in to the online portion of the course, 1351 each student’s progress, and completion data. Th e commenter believed that, in the case where 1352 the online provider and the hands-on provider are separate entities, work ing under a contractual 1353 agreement to present an entire training course, it would be relatively easy for the online provider 1354 to maintain the records. In contrast, the commenter thought that it would be much more 1355 burdensome for EPA to require that the hands -on provider download or otherwise take 1356 possession of these records. 1357

1358 EPA disagrees with this commenter, because EPA believes that the amount of data associated 1359 with this particular requirement for each trainee is not substantia l. However, if a particular 1360 accredited training provider felt otherwise, the provi der could contract with the provider of the 1361 online training to store the records. Although the accredited training provider would remain 1362 ultimately responsible for being able to produce t hose records, as long as the training provider is 1363 able to produce them in response to a request from EPA, EPA would consider the training 1364 provider in compliance with the recordkeeping requirements. 1365

1366 One commenter thought that the re quirement that a student be ab le to generate an uneditable 1367 copy of an e-learning course completion certific ate was too stringent. The commenter pointed 1368 out that almost anyone reasonably familiar with co mputers could alter a secure PDF, image, or 1369 word processing file thro ugh the print function. 1370

1371*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 31 of 42 [RIN 2070-AJ57] 03/21/2011 EPA agrees that this is a valid concern. EPA will add language to 40 CFR 745.225(c)(6)(viii)(E) 1372 to clarify that EPA merely meant that the certif icate must not be susceptible to immediate and 1373 easy editing by students. A secure PDF file w ould comply with these requirements. Allowing 1374 students to generate and print the course comp letion certificate provides them with reasonable 1375 certainty that they have completed the e-lear ning portion of the course before attempting the 1376 hands-on portion. EPA recommends that accred ited training providers verify through other 1377 means, such as the e-learning progress records, that each student who completes the hands-on 1378 training has also completed the online portion of th e course before training providers issue the 1379 final course completi on certificate. 1380

1381 Trainee Photographs 1382

1383 One commenter stated that trainee photogra phs on the course completion certificate for 1384 renovators and dust sampling technici ans should be in color. 1385

1386 Although EPA recommends that photographs be in color, this is not a requirement. The rule 1387 requires that photos be recognizable. As long as they meet this requirement, EPA does not see 1388 the need for a requirement that the photographs be in color. 1389

1390 One commenter stated that that the proposed requirements are adequate, and no further 1391 clarifications of the photograph requirements are needed. 1392

1393 The Agency agrees with this comment and has finalized the requirement as proposed without 1394 adding any additional requirements. 1395

1396 One commenter stated that EPA should require p hotographs on course completion certificates for 1397 courses other than renovator or dust sampli ng technician in order to prevent fraud. 1398

1399 The Agency does not require pictures on the course completion certificates for the risk assessor, 1400 inspector, supervisor, and worker courses be cause EPA issues a badge to each certified 1401

individual that contains the individual’s picture. EPA belie ves that the photo on the badge 1402 adequately addresses the issu e raised by the commenter. 1403

1404

One commenter states that the recommendation th at trainee photographs be 600 pixels high by 1405 600 pixels wide is extremely burdensome to tr aining providers. The commenter claims that 1406 training providers must spend hours cropping photographs to meet this recommended size. The 1407 commenter believes that the Agency should be le ss prescriptive with its photo recommendations. 1408

1409 EPA appreciates the information and will c onsider how it can change the recommended 1410 photograph dimensions to make it less time c onsuming to submit photographs in post-training 1411

notifications. 1412

1413

Hands-on 1414

1415*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 32 of 42 [RIN 2070-AJ57] 03/21/2011 A commenter wondered why report preparation would be a required hands-on topic for dust 1416 sampling technicians when it has never been a hands -on topic for the other disciplines that must 1417

prepare reports. 1418

1419

While it is true that hands-on trai ning in report preparation is not required for most lead training 1420 disciplines, it is required for the inspector discipli ne. Thus, certified insp ectors and certified risk 1421 assessors, who must successfully co mplete both the inspector course and the risk assessor course, 1422 receive hands-on training in re port preparation. EPA believes th at report preparation for dust 1423 sampling technicians is likewise important enough to warrant hands-on training in how to do it 1424 properly. 1425

1426 Two commenters thought that re quiring hands-on training for re novator refresher courses would 1427 limit the availability of refresher training and increase costs unnecessarily. Both commenters 1428 thought that enough information c ould probably be conveyed in a distance learning or e-learning 1429 setting to warrant dispensing with the hands-on requirement for renovator courses. One 1430 commenter pointed out that EPA’s current m odel refresher training course for renovators 1431 contains two required hands-on skill sets—tes t kit usage and cleaning verification. This 1432 commenter felt that this was appropr iate, given that previously-train ed individuals ar e still taking 1433 advantage of the “grandfathering” provision that allows them to successfully complete an 1434

accredited renovator refresher course to become cer tified renovators. Those individuals would 1435 not have had previous training in those two skills, so hands- on training would be necessary. 1436 However, once the grandfathering provision is no longer available, as di scussed later in this 1437 section of the preamble, all certif ied renovators would have had hands -on training in these skills. 1438

1439 EPA agrees with the second commenter that, fo r now, renovator refresher courses must include 1440 hands-on training in test kit use and in cleaning verification. Th erefore, EPA is finalizing the 1441 proposed amendment to 40 CFR 745.225(e)(2) that sp ecifically states that hands-on training is 1442 required for all refresher courses except project designer. EPA pl ans to re-evaluate the renovator 1443

refresher course after th e grandfathering provision sunsets, but before the currently-certified 1444 renovators are due for refresher training. At that time, EPA will consider whether hands-on 1445 training is still necessary and appropriate fo r renovator refresher training. 1446

1447 State Programs 1448

1449 Several commenters thought that it would be unrealis tic to expect states to make changes within 1450 a year of EPA’s promulgation of regulatory ame ndments. These commenters thought that states 1451 should be given two years, which is consistent with the current rules. 1452

1453 EPA inadvertently included the wrong provisions in the proposed regulatory text for revising 1454 authorized State and Tribal pr ograms to conform to revisions to the RRP rule. The existing 1455 provisions at 40 CFR 745.326( f) give authorized State and Tribal programs two years from the 1456 effective date of any EPA revisi ons to the RRP rule to demonstr ate that the State or Tribal 1457 program meets the requirements of the revised RRP rule. This two year period is also afforded 1458 to States and Tribes that submit applications fo r authorization before th e effective date of any 1459 EPA revisions. EPA did not intend to make any ch anges to this provision and States and Tribes 1460*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 33 of 42 [RIN 2070-AJ57] 03/21/2011 will still have two years to make changes to their programs necessitated by revisions to the 1461 federal RRP program. 1462

1463 One commenter pointed out that EPA’s propos ed regulatory text at 40 CFR 745.326(e)(1) did 1464 not accomplish EPA’s stated objective of clarifying that both individuals and firms must receive 1465

certification. 1466

1467 EPA agrees with this commenter, and has revise d the regulatory text throughout this section 1468 accordingly to ensure that EPA’s requirements are clear. EPA requires both renovators and 1469

renovation firms to be certified. A renovator be comes certified by successfully completing an 1470 accredited renovator training class. A renova tion firm becomes certified by submitting an 1471 application to EPA, attesting that it and its employees will follow the work practice standards at 1472 40 CFR § 745.85 for conducting renova tions, and paying a certificati on fee. EPA believes that, 1473 in order for a State or Tribal program to be at least as protective as EPA’s program, the State or 1474 Tribal program must, at a minimum, require formal certification for renovation firms. States and 1475 Tribes may, but are not required to, formally certi fy renovators. The certified renovation firm is 1476 responsible not only for the behavi or of its certified renovators but also for the other workers that 1477 have been trained by the certified renovators. Th us, the renovation firm is ultimately responsible 1478 for the proper performance of the renovation. Re quiring formal certification for renovation firms 1479 facilitates compliance monitoring and enforcemen t for EPA as well as for State and Tribal 1480 programs. A program that only required formal certification for indivi dual renovators and not 1481 firms would not be as protective. 1482

1483 One commenter suggested that EPA consider re quiring states to rec ognize the dust sampling 1484 technician discipline because it would make services more affordable nationwide. 1485

1486 While nationwide dust sampling technician recogn ition might make services more affordable, 1487 EPA does not have the authority to prohibit Stat es and Tribes from having a more stringent 1488 program than the EPA’s, e.g. , requiring more training for pers ons collecting dust wipe samples 1489 than EPA requires. 1490

1491 Several state commenters argued that their legisl atures had already created the authority to 1492 establish an RRP program, but the maximum pe nalty amount was less than $10,000 per violation 1493 per day. These States did not believe that they would be able to increase the maximum penalty 1494 authority, because it was comparable to other pr ograms administered by the State, or that it 1495 would take several years to get an increase through the legislature, during which time EPA 1496 would have to administer the program in their jurisdictions. One commen ter argued that States 1497

should be able to set fines based on the needs of the States not the implied need of the EPA. 1498

1499 EPA believes that strong enforcement of the lead-b ased paint regulations by authorized State and 1500 Tribal programs is critical to ensuring the safe ty of the occupants of target housing and child 1501 occupied facilities undergoing lead abatement, renovation, repair or painting. Therefore, EPA 1502

believes that it must establish a threshold for aut horized State and Tribal enforcement programs. 1503 However, EPA also agrees that most of the enfo rcement actions in authorized lead-based paint 1504 programs would be against very small entities. It is likely that the regulated community in the 1505 lead-based paint programs consists of smaller entities than the other programs for which EPA has 1506*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 34 of 42 [RIN 2070-AJ57] 03/21/2011 established minimum penalty aut horities, such as the Resource Conservation and Recovery Act 1507 (RCRA). Therefore, EPA is es tablishing a minimum penalty au thority for State and Tribal 1508 programs of $5,000. EPA agrees that it will be re sponsible for administering the program in 1509 those jurisdictions that do not meet these minimum enforcement program requirements. 1510

1511 At least two already-authorized State programs poi nted out that they had been authorized with 1512 maximum penalty authorities of less than $10,000. One of these States also noted that it had 1513 been effectively enforcing the Lead-based Pa int Activities Program and the Pre-Renovation 1514 Education Program for years now with a maximu m penalty authority of $5,000 per violation, and 1515

the State did not believe that an increase in its maximum penalty authority would improve the 1516 effectiveness of its programs in any way. 1517

1518 As discussed above, authorized State and Tribal programs will have two years from the effective 1519 date of this rule to revise their programs to conform to the minimum enforcement program 1520 requirements. EPA agrees that a lower maximum penalty authority is appropriate for authorized 1521 State and Tribal lead-based paint programs and is establishing the th reshold maximum penalty 1522 authority at $5,000 per viol ation per day. 1523

1524

Some commenters also noted th at most enforcement actions in an RRP program would be 1525 against very small companies or individuals, and penalties of less than $10,000 per violation per 1526 day would still be very effective deterrents for such entities. 1527

1528 EPA agrees that most of the enforcement actions in authorized lead-based paint programs would 1529 be against very small entities. Although small entities also vi olate RCRA, it is likely that the 1530 regulated community in the lead-based paint progra ms consists of smaller entities than the other 1531 programs for which EPA has established minimu m penalty authorities. Therefore, EPA is 1532 establishing a minimum penalty authority for State and Tribal programs of $5,000. 1533

1534 Two environmental advocacy groups supported EP A’s proposed minimum penalty authority of 1535 $10,000, arguing that substantial penalties are nece ssary to get the attention of the regulated 1536 community and meaningful enforcement is critical to the rule’s success at protecting individuals 1537 from exposures to dangerous levels of lead. 1538

1539 EPA agrees with these commenters on the importance of an effective enforcement program. 1540 Strong enforcement of the lead-b ased paint regulations by authorized State and Tribal programs 1541 is critical to ensuring the safety of the occupants of target housi ng and child occupied facilities 1542 undergoing lead abatement, renovatio n, repair or painting. However, EPA also agrees with those 1543 States that argued that most of the enforcement actions in authorized l ead-based paint programs 1544 would be against very small entities. Although sm all entities also violate RCRA, it is likely that 1545 the regulated community in the lead-based paint programs consists of smaller entities than the 1546 other programs for which EPA has established mini mum penalty authorities. Therefore, EPA is 1547 establishing a minimum penalty authority for State and Tribal programs of $5,000. 1548

1549 State commenters did not favor adding a mech anism for adjusting these minimum penalty 1550

authorities for inflation. One environmental ad vocacy group supported the idea, but thought that 1551

it should not be a barrier to State a nd Tribal program authorization. 1552*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 35 of 42 [RIN 2070-AJ57] 03/21/2011 1553 EPA agrees with these commenters and no m echanism for adjusting these minimums for 1554

inflation is included in this final rule. 1555

1556 Commenters suggested a number of factors that should be consider ed by States and Tribes when 1557 imposing penalties for violations of their aut horized programs. Several favored enforcement 1558 history and risk, but not to the extent of treating first-time offe nders too lightly. A handful of 1559 commenters argued that size of busin ess, and ability to stay in bus iness should not be considered, 1560 because small companies can cause as much harm as large companies. 1561

1562 EPA believes that States and Tribes may legitim ately consider any of the factors that EPA 1563 typically considers, such as nature, circumstances, and extent of the violation, the culpability of 1564 the violator, history of prior violations, ability to pay or continue in business, voluntary 1565 disclosure, and attitude of the violator. However, EPA will not require States and Tribes to 1566 consider any of these factors. 1567

1568 Recordkeeping 1569

1570 Two commenters thought that the training provider recordk eeping requirements for all 1571 disciplines should be increased to 5 years. Th ese commenters thought it would be less confusing 1572 for training providers if there wa s one period applicable to all. One commenter pointed out that 1573 EPA had extended the certification period for renova tors trained before April 22, 2010 to July 1, 1574 2015, so the training records for those trainees ought to be kept for as long as their certification 1575 lasts. This commenter suggested that EPA require training records to be kept for 5 years or until 1576 the expiration of certification resulting fr om the training, whichever is longer. 1577

1578 While EPA agrees that it may be easier for traini ng providers to keep records for the same length 1579 of time regardless of the discipline, EPA does not believe that it is necessary make this a 1580 requirement. Training providers who prefer to have one sing le recordkeeping process can 1581 always choose to maintain their records for 5 years across the board. Therefore, EPA is 1582 promulgating the increased recor dkeeping requirement for provide rs of accredite d renovator and 1583 dust sampling technician training as proposed. EPA also agrees with the commenter who 1584 suggested that there be a longe r recordkeeping requirement for renovator training courses offered 1585 before April 22, 2010. Accordingly, EPA is also promulgating a requirement that records for 1586 renovator training courses completed before April 22, 2010 must be kept until July 1, 2015. 1587

1588 One commenter pointed out that EPA would also have to modify the recordkeeping requirements 1589 to accommodate the option of renovators collecti ng paint chip samples and include information 1590 specific to paint chip sample co llection, such as component and lo cation tested, identity of the 1591 NLLAP entity analyzing the samples, and the sample results. 1592

1593 EPA agrees with this commenter. Accordingl y, EPA is modifying 40 CFR 745.86(b)(1) to add a 1594 new subsection (iii) that requires records pertaining to paint chip sample collection and analysis, 1595 including a description of the components that were sampled, and the locations sampled, the 1596

name and address of the NLLAP -recognized entity performing the analysis, and the results for 1597 each sample. EPA is also modifying 40 CFR 74 5.86(b)(6) to include a certification by the 1598*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 36 of 42 [RIN 2070-AJ57] 03/21/2011 certified renovator that, if paint chip samples were collected, that the samples were collected 1599 from the components in the locations specified, th at the samples were submitted for analysis to 1600 the identified NLLAP-recogni zed entity, and that the sample resu lts were as specified. 1601

1602

Accreditation 1603

1604 Two commenters supported the idea of combin ed renovator-worker and renovator-supervisor 1605 refresher courses and thought they would provide increased flexib ility for industry. One thought 1606 that the certification time periods should be harm onized to 3 years for all disciplines because the 1607 commenter believed that 5 years was too long to go without a refresher. The other commenter 1608 did not think that harmonization was necessary, because the abatement worker or supervisor 1609 would just take the combined refresher every thr ee years to meet the shor ter certification periods 1610

in the Lead-based Paint Activities Rule. 1611

1612 EPA agrees with these commenters that combined refresher courses may be beneficial. While 1613 the current regulations permit training provide rs to offer refresher courses sequentially, e.g. , a 4- 1614

hour renovator course on the afte rnoon of one day, followed by an 8-hour worker course the next 1615 day, taking the courses sequentially would result in some duplic ation of training topics for 1616 persons certified as both renovato rs and abatement workers. On the other hand, EPA is not 1617 certain that appropriate refreshe r topics for both disciplines coul d be covered in a single 8-hour 1618 day. EPA plans to evaluate the content of its su pervisor, worker, and renovator refresher courses 1619 to determine what an appropriate combined cour se length might be. Depending on the results of 1620 this evaluation, EPA will consider amending th ese regulations to establish course length 1621 requirements for combined refres her courses. 1622

1623

One commenter stated that EPA should streamline its process for accrediting training providers. 1624 The commenter claimed that the 180 days that EPA is allowed for processing applications for 1625 training provider accreditations is too long and that it should be shortened to 45 days if the 1626 application uses the EPA model course or 90 days if it develops its own course. The commenter 1627 further claimed that EPA merely ensures the tr aining provider applicants meet a checklist of 1628 requirements which should not take 180 days to review. 1629

1630 EPA disagrees with this comment. While the Agency is has 180 days to approve or deny 1631 applications for accreditation, it stri ves to complete this process as quickly as possible. The time 1632 it takes to accredit an appli cant depends on various factors in cluding Agency resources, the 1633 number of applications EPA is reviewing at any given time, and how quickly the applicant 1634 responds to Agency questions about the applicat ion. In addition, EPA does more than simply 1635 review a checklist of requirements. Agency sta ff conduct site visits of training facilities and 1636 view demonstrations of the trainings. They also review various parts of an application including 1637 the quality control plan, descri ptions of activities and proced ures for conducting the hands-on 1638 skills assessment, lists of equipment that will be used for the lecture and hands-on portions of a 1639 course, and course test blueprints, among other thi ngs. If any of these pi eces of the application 1640 are deficient, the Agency will work with the app licant to address the deficiencies. Based on the 1641

amount of work that is involved in accrediti ng a training provider a nd the variability among 1642 applicants, EPA does not intend to s horten the 180 time limit at this time. 1643

1644*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 37 of 42 [RIN 2070-AJ57] 03/21/2011 One commenter stated that EPA should be mo re consistent among its regional offices in 1645 accrediting training providers. The commenter point ed out that the student to instructor ratios 1646 and the format of training demonstrations ca n vary among the different regional offices. 1647

1648 The Agency understands that trai ning provider reviews can be s lightly different among the ten 1649 regional offices. To address this, the Agency has developed policies for accrediting training 1650 providers that the regional offices follow. In addition, EPA holds regular meetings among staff 1651 from the ten regional offices and headquarters to share information on th e accreditatio n process. 1652

1653 Grandfathering 1654

1655 One commenter argued that the grandfatheri ng provision should only apply to certified 1656 abatement workers or supervisors, not workers or supervisors who have only taken the course 1657 but are not currently certified. This commenter asserts that cer tified individuals will receive 1658 updated information by taken the required refreshe r course every three years. The commenter 1659 believes that those who do not receive the update d information because their certification has 1660 lapsed should have to take the 8-hour initial reno vator course. 1661

1662

Even if individuals do not take the refresher abatement work or supervisor courses, these 1663 individuals have still received significant training in the required RRP work practices such as 1664 establishing containment and cleaning the area af ter the job is finished. Thus, the Agency 1665

believes that someone who has not taken the refr esher abatement worker or supervisor course 1666 should still qualify for th e refresher training. 1667

1668

One commenter states that EPA should continue grandfathering individu als who completed and 1669 EPA-accredited abatement worker or supervisor c ourse until it can offer a combined course in 1670

abatement and renovations. 1671

1672 The Agency disagrees with this comment. A comb ined refresher course would allow individuals 1673 to more readily be able to keep up their dua l certifications. EPA does not believe that the 1674 availability of a combined abatem ent worker or supervisor refreshe r course is relevant to whether 1675 someone should be eligible for th e refresher renovator course. 1676

1677 One commenter pointed out that th e grandfathering date in the pr eamble to the proposed rule did 1678 not match the date in the proposed regulations an d that the two date should be consistent. 1679

1680 The Agency agrees that the dates should have be en consistent and will change the grandfathering 1681 date in the regulations to the eff ective date of the final rule. 1682

1683 Other Proposed Amendments and Related Comments 1684

1685 One commenter thought that, before starting the course, the traini ng provider should be required 1686 to supply a paper copy of the speci fic training manual to each student. 1687

1688 The commenter did not supply a reason for imposing such a requi rement and EPA believes that 1689 training providers generally do th is as a matter of course. 1690*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 38 of 42 [RIN 2070-AJ57] 03/21/2011 1691 One commenter thought EPA shoul d update the abatement courses because the commenter 1692 believes that they are very out of date. 1693

1694 While EPA does not necessarily agree that the ab atement courses are very out of date, in the 1695 future EPA will nonetheless consider whether the abatement course should be updated. 1696

1697 One commenter thought that EPA should require the OSHA regulat ions to be taught in the 1698 course. A certified firm was fined by OSHA for not knowing whether the HEPA respirators 1699 being worn were appropriate. 1700

1701

EPA does not believe that this is an appropriate requirement for EPA to impose, and OSHA 1702 already requires employees to be trained in its standards. 1703

1704 One commenter noted 40 CFR 745.89(c) conflicts with the proposed ch ange to 745.92(b)(3) 1705 regarding fees for certif ication amendments. 1706

1707 EPA agrees with this commenter and will modify 40 CFR 745.89(c) to make it clear that no fee 1708 is required for a firm certification amendment. 1709

1710 One commenter stated that EPA should require cert ified inspectors and risk assessors to received 1711 training specific to the RRP rule. Such items would include dust sampling, clearance testing, 1712 paint testing, documentation, reporting and recordkeeping. 1713

1714 The Agency disagrees that inspectors and risk as sessors need additional training specific to the 1715 RRP rule in the areas of dust sampling, clearan ce testing, paint testing, documentation, reporting 1716 and recordkeeping. Inspectors and risk assesso rs currently receive training in dust sampling, 1717 clearance testing, and paint testi ng. These skills can be used when doing the clearance testing 1718 that is optional under the RRP rule. Furthermore, the RRP ru le does not change the requirements 1719 for work performed by inspectors and risk asse ssors. Consequently, EPA does not intend on 1720 changing the requirements for inspectors and risk assessor training courses. 1721

1722 One commenter stated that EPA should keep the RRP rule consistent with other lead laws being 1723 implemented throughout the country. The commen ter pointed out that th e many different laws 1724

with different standards create confusion resulting in less complia nce, which will lead to more 1725 unsafe conditions. The commenter specifically reque sted that EPA use a de minimis standard of 1726 2 square feet or 10% when determining what work qualifies as minor repair and maintenance. 1727

1728 While EPA agrees that consistency with othe r programs is an important consideration in 1729 promulgating regulations, consistency is not al ways the best approach. For example, as 1730 discussed previously in this document, HUD’s Lead-safe Housing Rule and EPA’s RRP rule 1731 have very different purposes. As such, consiste ncy in all provisions is not necessarily desirable 1732 or appropriate. 1733

1734 With respect to the minor maintenance standa rd EPA adopted for renovations in the 2008 RRP 1735 rule, EPA is not reopening or reconsidering this issue. 1736*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 39 of 42 [RIN 2070-AJ57] 03/21/2011 1737

Renovator course trainers should have to have at least the abatement wo rker class and attend a 1738 renovator course. Persons taking the dust sampli ng tech course and attending the renovator 1739 course are not qualified to teach the renovator course. 1740

1741 In the final Opt-Out Rule, EPA reduced the prere quisite lead-based paint training requirement for 1742 principal instructors from 16 hour s to 8 hours for several reasons , including available training 1743 capacity and subject matter relevance. EPA is not reopening or reconsidering this issue. 1744

1745 Several commenters supported lowering the dust- lead hazard standards and modifying the 1746 definition of lead-based paint. One specifically noted that it is confusing for trainees to 1747 distinguish between EPA/HUD hazard levels an d the OSHA threshold of “any detectable 1748 concentration of lead in paint.” 1749

1750 While not part of this rulemaking, in Octobe r 2009, EPA granted a pe tition requesting a re1751

evaluation of EPA’s dust-lead hazard standards and th e regulatory definition of lead-based paint. 1752

1753

Miscellaneous Comments 1754

1755 Some contractors argued that EP A does not have the authority to promulgate work practice 1756 standards for RRP activities. According to th ese commenters, in enacting Section 402(c) of 1757 TSCA, Congress was very careful to distinguish between lead-b ased paint activities and RRP 1758 activities, and the subsection doe s not explicitly authorize EPA to promulgate regulations 1759 affecting the work practice standards for RRP activities, e.g. , requiring clearance testing. The 1760 commenters mention TSCA Section 402(c)(1), whic h authorizes EPA to “promulgate guidelines 1761 for the conduct of such renovation and remodeling activities which may creat e a risk of exposure 1762 to dangerous levels of lead.” The commenters fu rther note that Section 402(c)(3) requires EPA 1763 to revise the regulations develope d for abatement and other lead-bas ed paint activities to apply to 1764 renovation and remodeling activities. However, the commenters argue that Congress intended 1765 that EPA would apply appropriate certification requirements deve loped in connection with lead1766 based paint activities to RRP cont ractors but that work practice standards – including clearance 1767 testing requirements – would remain th e subject of guidelines, not regulations. 1768

1769 EPa is not reopening or reconsidering this issu e. Nonetheless, EPA disagrees with these 1770 commenters. EPA’s interpretation of TSCA Sec tion 402(c)(3) is that Congress intended EPA to 1771

revise the entire set of lead-based paint activities regul ations to apply to renovation and 1772 remodeling activities that create lead-based pain t hazards. Indeed, one possible interpretation is 1773 that Congress directed EPA to simply revise th e lead based paint regulations by expanding them 1774 to apply to renovation and remodeli ng activities. Nonetheless, EP A has interpreted the directive 1775 to “revise” the lead-base paint activities regu lations as allowing EPA to make common sense 1776 changes to the lead-based paint activities regu lations to address a the differences between 1777

renovators and abatement contractors. In a ddition, EPA disagrees with the commenters’ 1778 interpretation that 403(c)(1) somehow precludes EPA from regulating renovation activities and 1779 establishing lead safe work prac tices. Indeed, EPA believes that the commenters’ interpretation 1780 of section 402(c) makes little sense. Under section 402(a), C ongress first directed EPA to 1781 promulgate, within 18 months, re gulations concerning lead-based paint activities, i.e., activities 1782*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 40 of 42 [RIN 2070-AJ57] 03/21/2011 designed to remove known lead-b ased paint hazards. At the same time, under section 402(c), 1783 Congress expressed a concern a bout renovation activities generall y and directed EPA to first 1784 issue guidelines (also within 18 months) for reno vation activities that “may” create a risk of 1785 exposure to dangerous levels of lead. In the co ntext of section 402(c), th ese guidelines are best 1786 understood as an interim step b ecause Congress then gave EPA mo re time (a total of 30 months) 1787 to study renovation activities to determine, among other things, the extent to which renovation 1788 activities create a lead-based paint hazard. As a final step, Congress directed EPA to regulate 1789 renovation activities that EPA (after the studying th e issue) has determined create lead-based 1790 paint hazards. No reasonable reading of 402(c) suggests that Congress me rely intended EPA to 1791 issue guidelines and thereafter to study the exte nt to which renovation ac tivities create lead1792 based paint hazards but then to revise the TSCA § 402(a) regulations to address activities that 1793 create lead-based paint hazards without rega rd to work practice standards governing those 1794

activities. 1795

1796 Several commenters argued that EPA has not es tablished that the activ ities regulated under the 1797 RRP rule create lead-based paint hazards. 1798

1799

EPA addressed this issue in the underlying RRP rule and is not re opening or reconsidering this 1800

issue. 1801

1802 Several commenters argue that EPA cannot re gulate renovation, repair, and painting activities 1803 because the studies performed to determine whet her such activities create lead-based paint 1804

hazards are flawed and do not establish a di rect connection between renovation, repair, and 1805 painting activities and increased chil dhood or worker blood lead levels. 1806

1807 EPA has already addressed this argument in th e preamble to the 2008 final RRP rule and is not 1808 reopening or reconsider ing the issue here. 1809

1810 One commenter suggested that EPA focus its re gulatory efforts on heavy metals in fish. 1811

1812 EPA agrees that there are many potential sources of lead that may contribute to the problem of 1813 childhood lead poisoning. However, this regulat ion is being issued pursuant to TSCA § 1814 402(c)(3), and therefore only applies to renovation and remo deling activities. EPA notes, 1815 however that this regulation is only one piece of the Federal, State, and local efforts to reduce 1816 exposures to lead and elim inate childhood lead poisoning. 1817

1818

One commenter asked EPA to limit the amount that states can charge contractors for 1819

certification. 1820

1821 EPA does not have the authority to re gulate state certification fees. 1822

1823 One commenter suggested that EPA allow build ing supply retailers to sell the Cleaning 1824

Verification Cards. 1825

1826 While EPA will take this commenter’s suggestion under consideration, EPA produces and 1827 distributes the cleaning verifica tion cards through accredited trai ning providers and the National 1828*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 41 of 42 [RIN 2070-AJ57] 03/21/2011 Lead Information Center because EPA believes th at exercising sufficient quality control during 1829 card production is critical to the success of the RRP cleaning protocol after renovations. 1830

1831 One commenter requested that EPA clarify its interpretation of the test kit provisions, i.e. , that 1832 EPA could approve kits before September 1, 2010 and allow their use until an improved kit is 1833 recognized. 1834

1835 The currently recognized test kits did not auto matically lose their r ecognition on September 1, 1836 2010. As discussed in the 2008 RRP rule, prio r to September 1, 2010, manufacturers seeking 1837 recognition of their test kit must meet only false negative respons e criterion, and that recognition 1838 of kits meeting this criterion w ill last until EPA publicizes its r ecognition of a kit that passes both 1839 the false negative and the false positive criteria. 1840

1841 One commenter argued that the model renovator training course spends too much time on the 1842 specifics of the rule and not enough on health effects, which w ould motivate workers to follow 1843 the lead-safe work practices. 1844

1845 EPA appreciates this commenter’s concern. EPA continues to monitor and evaluate the content 1846 of the course. Given the skills and tasks required by the rule that must be covered in the course, 1847 EPA believes that the appropriate weight is being given to th e health effects of lead. 1848

1849 One commenter thought trai ning requirements should include more hands-on time, for example, 1850 the commenter noted that the Washington weat herization program requires 6 hours of hands-on 1851 training. 1852

1853 EPA disagrees with this commenter. While hand s-on training is beneficial, EPA believes that 1854 the hands-on skills required to be presented in the renova tor course can adequately be covered in 1855

two hours. 1856

1857 One commenter contended that regulat ory policy shouldn’t address pets. 1858

1859 Under the Toxic Substances Control Act, EPA is charged with protecting human health and the 1860 environment. Unfortunately, the effects of lead-b ased paint hazards are not limited to children or 1861 even just humans. Lead poisoning from renovations has been documented in both cats and dogs. 1862 This is often the first indicator that families have of human exposure as well. Moreover, in our 1863 society pets can be highly valued. Thus, in asse ssing the impacts of the rule, EPA has chosen not 1864 to ignore the concern over lead poisoni ng in pets from re novation activities. 1865

1866 Several commenters thought EPA should require homeowners to use contractors who follow 1867

RRP rules. 1868

1869 As discussed, EPA interprets the statutory di rective to regulate remodeling and renovation 1870

activities found in TSCA section 402(c)(3) as applying to contractors and not a broader category 1871 of persons, such as homeowners. Thus, the RRP rule does not include provisions directly 1872 applicable to homeowners, with the exception of ho meowners who renovate rental property. 1873

1874*** EO12866 Review Draft – Deliberative Document – Do NOT Cite, Quote or Release During the Review ***

Page 42 of 42 [RIN 2070-AJ57] 03/21/2011 Replacement components for which documentation is av ailable should be exempt from the rule. 1875

1876 The RRP rule provides a mechanism for this, by a llowing certified inspectors and risk assessors 1877 to make determinations based on property r ecords. See 40 CFR 745.227(b)(2). EPA believes 1878

that it would be difficult to esta blish criteria for documentation of replacement components that 1879 could be applied by certified renovators. Renovato rs do not have training in identifying painting 1880 histories and making other judgm ents of what to test. 1881