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EO12866-LRRP-Clearance-NPRM-FRN- 2010-01-19-FINAL_redlined_04-22.doc (Shows changes made during EO 12866 Review , changes requested by OMB highlighted)

ENVIRONMENTAL PR OTECTION AGENCY

40 CFR Part 745

[EPA–HQ–OPPT–2005–0049; FRL– 8823-5 XXXX

– X ]

RIN 2070–AJ57

Lead; Clearance and Clearance Testing Re quirements for the Renovation, Repair, and Painting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing several revisions to the 2008 Lead Renovation, Repair, and Painting Program (RRP) rule that es tablished accreditation, training, certification, and recordkeeping requirements as well as work practice standards for persons performing renovations for compensation in most pre-1978 housing and child-occupied facilities. EPA is particularly concer ned about dust-lead hazards generated by

renovations because of the well-documented toxicity of lead, especially to younger children. This proposal includes additional re quirements designed to ensure that leadbased paint hazards generated by renovati on work are adequately cleaned after

renovation work is finished and before the wo rk areas are re-occupi ed. Specifically, EPA is proposing to require dust wipe testing af ter many renovations covered by the RRP rule. For a subset of jobs involving demolition or removal of plaster through destructive means or the disturbance of paint using machines designed to remove paint through high-speed operation, such as power sanders or abrasive blasters, this pr oposal would also require the renovation firm to demonstrate, through dust wipe testing, that dust-lead levels remaining in the work area are below regulatory levels.

DATES: Comments must be recei ved on or before [ insert date 60 days after date of publication in the Federal Register ].

ADDRESSES: Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2005–0049, by one of the following methods:

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

• Mail : Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protect ion Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001.2

• Hand Delivery : OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number EPA–HQ–OPPT–2005

– 0049. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The te lephone number for the DCO is (202) 564–8930. Such deliveries are only accepted during the DCO’s normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions : Direct your comments to doc ket ID number EPA–HQ–OPPT– 2005–0049. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at http://www.regulations.gov

, including any personal information provide d, unless the comment includes information

claimed to be Confidential Business Info rmation (CBI) or other information whose disclosure is restricted by st atute. Do not submit informati on that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EP A will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the

docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your

comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. El ectronic files should a void the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket : All documents in the docket are list ed in the docket index available at http://www.regulations.gov . Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is re stricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket mate rials are available electronically at http://www.regulations.gov , or, if only available in hard copy, at the OPPT Docket. The

OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566–1744, and the telephone number for the OPPT Docket is (202) 566–0280. Docket visitors are required to show photographic id entification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are proce ssed through an X-ray machine and subject to search. Visitors will be provi ded an EPA/DC badge that must be visible at all times in the building a nd returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact : Colby Lintner, Regulatory C oordinator, Environmental Assistance Division (7408M),

Office of Pollution Prevention and Toxics , Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (202) 554– 1404; e-mail address: TSCA-Hotline@epa.gov

.3

For technical information contact : Cindy Wheeler, Nationa l Program Chemicals Division, Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (202) 566-0484; e-mail address: wheeler.cindy@epa.gov

.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may be potentially affected by th is action if you perf orm renovations of target housing or child-occupied facili ties for compensation, dust sampling, or dust testing. You may also be affected by th is action if you perform lead-based paint inspections, lead hazard screens, risk asse ssments or abatements in target housing or child-occupied facilities or if you operate a training program for individuals who perform any of these activities. “T arget housing” is defined in section 401 of TSCA as any housing constructed prior to 1978, except hous ing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Under this rule, a child-occupied facility is a building, or a portion of a building, construc ted prior to 1978, visited regu larly by the same child, under 6 years of age, on at least 2 different da ys within any week (Sunday through Saturday period), provided that each day's visit last s at least 3 hours and the combined weekly visits last at least 6 hours, and the combin ed annual visits last at least 60 hours. Potentially-affected entities may include, but are not limited to:

• Building construction (NAICS code 236), e.g. , single family housing construction, multi-family housing co nstruction, residential remodelers.

• Specialty trade contractors (NAICS code 238), e.g. , plumbing, heating, and airconditioning contractors, pain ting and wall covering contractor s, electrical contractors, finish carpentry contractors, drywall and insu lation contractors, sidi ng contractors, tile and terrazzo contractors, glass and glazing contractors.

• Real estate (NAICS code 531), e.g. , lessors of reside ntial buildings and dwellings, residential property managers.

• Child day care services (NAICS code 624410).

• Elementary and secondary schools (NAICS code 611110), e.g. , elementary schools with kindergarten classrooms.

• Other technical and trad e schools (NAICS code 611519), e.g. , training providers.

• Engineering services (NAICS code 541330) and building inspection services (NAICS code 541350), e.g. , dust sampling technicians.4

• Lead abatement professionals (NAICS code 562910), e.g. , firms and supervisors engaged in lead-based paint activities.

This listing is not intended to be exha ustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not

listed in this unit could also be affected. The North American I ndustrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain en tities. If you have a ny questions regarding the applicability of this action to a particul ar entity, consult the technical person listed

under FOR FURTHER INFORMATION CONTACT

.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the pa rt or all of the information that you claim

to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the

outside of the disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electro nically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the

comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments . When submitting comments, remember to:

i. Identify the document by docket ID nu mber and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (C FR) part or section

number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provid e any technical information and/or data that you used.

v. If you estimate potential costs or bu rdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustra te your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoidi ng the use of profanity or personal threats.5

viii. Make sure to submit your comments by the comment period deadline

identified.

II. Introduction

A. What Action is the Agency Taking?

EPA is proposing several revisions to the 2008 Lead Renovation, Repair, and Painting Program (RRP) rule (Ref. 1) that established accreditation, training, certification, and recordkeep ing requirements as well as work practice standards for persons performing renovations for compen sation in most pre-1978 housing and childoccupied facilities. EPA is particularly c oncerned about dust-lead hazards generated by

renovations because of the well-documented toxicity of lead, especially to younger children. This proposal includes additional re quirements designed to ensure that leadbased paint hazards generated by renovati on work are adequately cleaned after

renovation work is finished and before the areas are re-occupied. Specifically, EPA is proposing to require dust wipe testing afte r many renovations covered by the RRP rule. For a subset of jobs involving demolition or removal of plaster through destructive means or the disturbance of paint using machines designed to remove paint through high-speed operation, such as power sanders or abrasive blasters, this pr oposal would also require the renovation firm to demonstrate, through dust wipe testing, that dust-lead levels remaining in the work area are below regulatory levels . EPA is not, however, reopening other aspects of the work practices required by the 2008 RRP rule. Nor is EPA reopening for consideration any aspects of the existing regulations, ex cept as provided in today’s

propo sal.

EPA is also proposing various minor am endments to the regulations concerning applications for training provider accre ditation, amending accreditations, course completion certificates, record keeping, Stat e and Tribal program requirements, and grandfathering (i.e., taking a refr esher training in lieu of the in itial training). In addition, the proposed amendments intend to clarify th at certain requirements apply to the RRP

rule as well as the Lead-based Paint Ac tivities (abatement) re gulations, that the prohibitions and restrictions on work practices in the RRP rule apply to the disturbance of any painted surface, that certified renovato rs need only provide on-the-job training to other renovation workers in the work practices required by the rule, that a certified inspector or risk assessor can act as a dust sampling technician, which hands-on training topics are required for renovator and dust samp ling technician courses, and requirements for States and Tribes that apply to become authorized to implement the RRP program. Again, EPA is not reopening for consideration any aspects of the existing regulations, except as provided in today’s proposal.

B. What is the Agency's Aut hority for Taking this Action?

These work practice requirements for dust wipe testing and clearance, training,

certification and accreditati on requirements, and State, Territorial and Tribal authorization provisions are being pr omulgated under the authority of TSCA sections6

402(c)(3), 404, and 407 of the Toxic Substances Control Act (TSCA) , 15 U.S.C. 2682(c)(3), 2684, and 2687.

C. Background

1. Health effects of lead exposure . This Unit describes some of the more significant health effects of lead exposure and the routes of exposure associated with lead in paint. Much more information is av ailable in the preamble to the 2008 Lead Renovation, Repair, and Painting (RRP) Rule (R ef. 1) and the Air Quality Criteria for Lead document (Ref. 2).

Lead has been known throughout the ages fo r its useful properties, having been commonly used in the production of paint, batteries, pipes, so lder, pottery, and gasoline. Lead is also known for its “broad array of deleterious effects on multiple organ systems via widely diverse mechanisms of action.” (Ref . 2) This array of h ealth effects includes heme biosynthesis and related functions; neurological develo pment and function; reproduction and physical development; kidney function; cardiovascular function; and

immune function. There is also some eviden ce of lead carcinogenicity, primarily from animal studies, together with limited hu man evidence of suggestive associations.

Of particular interest to EPA during the RRP rulemaking was the delineation of

lowest observed effect levels for those l ead-induced effects that are most clearly

associated with blood lead levels of less than 10 micrograms per deciliter ( μ g/dL ) in children and adults (Ref

. 2, at 8-60). As is eviden t from the Criteria Document,

neurotoxic effects in children and cardiovascular effects in adults are among those best

substantiated as occurri ng at blood-lead concentra tions as low as 5 to 10 μ g/dL (or possibly lower), so these categories of effect s would result in the gr eatest public health concern. Other newly demonstrated immune and renal system effects among general population groups are also emerging as low- level lead-exposure effects of potential public health concern (Ref. 2, at 8-60).

The nervous system has long been recognized as a target of lead toxicity, with the developing nervous system affected at lower exposures than the mature system. While blood lead levels in U.S. children ages 1 to 5 years have decreased notably since the late 1970s, newer studies have investigated and reported associations of effects on the neurodevelopment of children at population mean concurrent blood lead levels ranging

down to as low as 2 to 8 μ g/dL (Ref. 2, at E

- 9). Functional manifestations of lead neurotoxicity during childhood incl ude sensory, motor, cognitive and behavioral impacts. Investigating a ssociations be tween lead exposure and behavior, mood, and social conduct of children has been an emerging area of re search (see Ref. 2 at 6.2.6). Early studies indicated linkages between lower

- level lead toxicity and behavioral problems ( e.g. , aggression, attentional problems, and hyperactivity) in children. Among the wide variety of health endpoint s associated with l ead exposures, there is general consensus that the developing nervous system in children is among the, if not the, most sensitive. While blood lead levels in U.S. children have decreased notably since the late 1970s, newer studies ha ve investigated and reported a ssociations of effects on the7

neurodevelopment of children wi th these more recent blood le ad levels (Ref. 2, chapter 6). Functional manifestations of lead ne urotoxicity during chil dhood include sensory, motor, cognitive, and behavioral impacts. Numerous epidemiological studies have reported neurocognitive, neurobeha vioral, sensory, and motor f unction effects in children

with blood lead levels below 10 μ g/dL (Ref. 2, sections 6.2 and 8.4. [FN 7. Further, neurological effects in general include behavi oral effects, such as delinquent behavior (Ref. 2, sections 6.2.6 and 8.4.2.2), sensory effects, such as those related to hearing and vision (Ref. 2, sections 6.2.7 and 8.4.2.3), and de ficits in neuromotor function (Ref. 2, p. 8–36).] As discussed in th e Criteria Document, “extens ive experimental laboratory animal evidence has been generated that (a) substantiates well the plausibility of the epidemiologic findings observed in human children and adults and (b) expands our understanding of likely mechanisms underlying the neurotoxic effects” (Ref. 2, p. 8–25; section 5.3).

Cognitive effects associated with lead exposures that have been observed in epidemiological studies have included decrements in intelligence test results, such as the widely used IQ score, and in academic achievement as assessed by various standardized tests as well as by class ranking and graduation rates (R ef. 2, section 6.2.16 and pp. 8–29 to 8–30). As noted in the Criteria Document with regard to the latter, “Associations between lead exposure and academic achieveme nt observed in the above-noted studies were significant even after adjusting for IQ, suggesting that lead-sensitive neuropsychological processing and learning factors not refl ected by global intelligence indices might contribute to reduced performance on academic tasks” (Ref. 2, pp. 8–29 to 8– 30).

With regard to potential imp lications of lead effects on IQ, the Criteria Document recognizes the “critical” distin ction between population and in dividual risk, identifying issues regarding declines in IQ for an individual and for the population. The

Criteria Document further states that a “point estimate indi cating a modest mean change

on a health index at the i ndividual level can have subs tantial implications at the population level” (Ref. 2, p. 8–77). [FN 8. As an example, the Criteria Document states, “although an increase of a few mm Hg in blood pressure might not be of concern for an individual’s well-being, the same increase in the population mean might be associated with substantial increases in the percentages of individuals with values that are sufficiently extreme that they exceed the criteri a used to diagnose hypertension” (Ref. 2, p. 8–77).] A downward shift in the mean IQ value is associ ated with both substantial decreases in percentages achie ving very high scores and s ubstantial increases in the percentage of individuals achieving very low scores (Ref. 2, p. 8–81). [FN 9. For example, for a population mean IQ of 100 (a nd standard deviation of 15), 2.3% of the population would score above 130, but a shift of the population to a mean of 95 results in only 0.99% of the population scoring above 130 (Ref. 2, pp. 8–81 to 8–82).] For an individual functioning in the low IQ range due to the influence of developmental risk factors other than lead, a lead-associated IQ decline of several points might be sufficient to drop that individual into the range associated with incr eased risk of educational, vocational, and social failure (Ref. 2, p. 8–77).8

Other cognitive effects observed in studi es of children have included effects on attention, executive functions, language, memory, learning, an d visuospatial processing (Ref. 2, sections 5.3.5, 6.2.5, and 8.4.2.1), with at tention and executive function effects associated with lead exposures in dexed by blood lead levels below 10 μ g/dL (Ref. 2, section 6.2.5 and pp. 8–30 to 8–31). The evidence for the role of lead in this suite of effects includes experimental animal findings (Ref. 2, section 8.4.2.1; p. 8–31), which provide strong biological plausibility of lead effects on learning ability, memory and attention (Ref. 2, section 5.3.5), as well as associated mechanistic findings.

The persistence of such l ead-induced effects is descri bed in the proposal and the Criteria Document (e.g., Ref. 2, sections 5.3.5, 6.2.11, and 8.5.2). The persistence or irreversibility of such effects can be the result of damage occurring without adequate repair offsets or of the persistence of l ead in the body (Ref. 2, s ection 8.5.2). It is additionally important to note th at there may be long-term consequences of such deficits

over a lifetime. Poor academic skills and ach ievement can have “enduring and important effects on objective parameters of success in real life,” as well as increased risk of antisocial and delinquent beha vior (Ref. 2, section 6.2.16).

Multiple epidemiologic studies of lead and child development have demonstrated

inverse associations between blood lead c oncentrations and children’s IQ and other cognitive-related outcomes at successively lower lead exposure levels over the past 30 years (Ref. 2, section 6.2.13). For example, th e overall weight of the available evidence,

described in the Criteria Document, provides clear subs tantiation of neurocognitive decrements being associated in children with mean blood lead levels in the range of 5 to

10 μ g/ dL, and some analyses indicate lead e ffects on intellectual attainment of children for which population mean blood lead levels in the analysis ranged from 2 to 8 μ g/dL (Ref. 2, sections 6.2, 8.4.2, and 8.4.2.6). Thus, wh ile blood lead levels in U.S. children have decreased notably since the late 1970s, newer studies ha ve investigated and reported

associations of effects on th e neurodevelopment of children with blood lead levels similar to the more recent, lower blood l ead levels (Ref. 2, chapter 6).

Paint that contains lead can pose a he alth threat through various routes of exposure. House dust is the most common e xposure pathway through which children are exposed to lead-based paint hazards. Dust created during normal lead-based paint wear (especially around windows and doors) can create an invisible film over surfaces in a house. Children, particularly younger childre n, are at risk for hi gh exposures of leadbased paint dust via hand-to-mouth exposure, an d may also ingest l ead-based paint chips from flaking paint on walls, windows, and doors. Lead from exterior house paint can

flake off or leach into the soil around the out side of a home, contaminating children's play areas. Cleaning and renova tion activities may actually in crease the thre at of leadbased paint exposure by dispersing lead dust particles in the air and over accessible household surfaces. In turn, depending on the levels of lead in the dust, both adults and

children can receive hazardous exposures by inhaling the dust or by ingesting lead-based paint dust during hand-to-mouth activities.

EPA’s Wisconsin Childhood Blood-Lead St udy, described more fully in Unit9

III.C.1.c. of the preamble to the 2006 Pr oposal, provides ample evidence of a link

between renovation activities and elevated bloo d lead levels in resident children (Ref. 3). This peer-reviewed study conc luded that general residentia l renovation and remodeling is

associated with an increased risk of elevat ed blood lead levels in children and that specific renovation and remodeli ng activities are also associated with an increase in the

risk of elevated blood lead le vels in children. In particul ar, removing paint (using open flame torches, using heat guns, using chemi cal paint removers, and wet scraping/sanding) and preparing surfaces by sanding or scraping si gnificantly increased the risk of elevated

blood lead levels.

Three studies from New York support the findings of the Wisconsin Childhood Blood-Lead Study. In 1995, the New York Stat e Department of Health assessed lead exposure among children resulting from ho me renovation and remodeling in 1993–1994. A review of the health department records of children with blood lead levels equal to or greater than 20 μ g/dL identified 320, or 6.9%, with elev ated blood lead levels that were attributable to renovation and remodeling (Ref . 4). An update to that study with data from environmental investigations c onducted during 2006-2007 in New York State (excluding New York City) iden tified renovation, repair, a nd painting activities as the probable source of lead exposur e in 14% of 972 children with blood lead levels equal to or exceeding 20 μ g/dL (Ref. 5). The authors concl uded that children living in housing undergoing renovation, repair, a nd painting that was built before 1978, and particularly before 1950, when concentrations of lead in paint were higher, are at high risk for

elevated blood lead levels. The final st udy was a case-control study that assessed the

association between elevated blood lead le vels in children younger than 5 years and renovation or repair activities in homes in Ne w York City (Ref. 6). EPA notes that the

authors show that when dust and debris was reported (by respondents via telephone interviews) to be “everywhere” following a renovation, the blood lead levels were significantly higher than children at homes that did not report remodeling work. On the other hand, when the respondent reported either “no visible dust and de bris” or that “dust and debris was limited to the work area,” there was no statistically significant effect on

blood lead levels relative to homes that did not report remodeling work. Although the study found only a weak and nonsignificant li nk between a report of any renovation activity and the likelihood that a resident child had an elevat ed blood-lead level, the link

to the likelihood of an elevated blood-lead level was statisti cally significant for surface preparation by sanding and for renovation work that spreads dust and debris beyond the

work area. The researchers noted the consis tency of their results with EPA’s Wisconsin Childhood Blood-Lead Study (Ref. 6, at 509).

Children in minority populations and children from low

- income whose families

are poor have an increased risk of ex posure to harmful lead levels (Ref. 7, at e376)

. Analysis of the National Health and Nutr ition Examination Surveys (NHANES) data from 1988 through 2004 shows that the prevalen ce of blood lead levels equal to or exceeding 10 μg/dL in children aged 1 to 5 years has decreased from 8.6% in 1988-1991 to 1.4% in 1999-2004, which is an 84% decline (Ref. 7 , at e377 ). However, the

NHANES data from 1999-2004 indi cates that non-Hispanic black children aged 1 to 5 years had higher percentages of blood lead le vels equal to or exceeding 10 μg/dL (3.4%)10

than white children in the same age group (1.2%) (Ref. 7). In addition, among children aged 1 to 5 years over the same period, the geometric mean blood lead level was significantly higher for non- Hispanic blacks (2.8 μg/dL), compared with Mexican Americans (1.9 μg/dL) and non-Hispanic whites (1. 8 7 μg/dL) (Ref. 7, at e377) . For children aged 1 to 5 years from families w ith low income, the geometric mean blood lead level was 2.4 μg/dL (Ref. 7, at e377)

. Further, the incidences of blood-lead levels greater than 10 ug/dL and greater than or equal to 5ug/dL were higher for non-H hi spanic blacks (14% and 3.4% respectively) than for Mexi can Americans (4.7% and 1.2%, respectively) and non-Hispanic whites (4.4% and 1.2%, respectively). (Ref. 7, at e377). The analysis

“ indicates that residence in older housing, poverty, age, and being non-Hispanic black are still major risk factor s for higher lead levels ” (Ref. 7 , at e376 ).

2. Prior EPA rulemakings under TSCA Sections 402(a) and 403 . TSCA section 402(a) directs EPA to promulgate regulations co vering lead-based paint activities, such as

abatement s , to ensure persons performing these activities are prope rly trained, that training programs are accredited, and that contractors performing these activities are certified. These regulations must contain standards for performing lead-based paint activities, taking into account reliability, effectiveness, and safety. On August 29, 1996, EPA promulgated final regulations under TS CA section 402(a) that govern lead-based paint inspections, lead hazard sc reens, risk assessments, and abatements in target housing and child-occupied facilities (also referred to as the Lead-based Paint Activities Regulations) (Ref. 8). These regulations, codi fied at 40 CFR part 745, subpart L, contain an accreditation program for training pr oviders and training and certification requirements for lead-based paint inspectors, risk assessors, project designers, abatement supervisors, and abatement workers. Work practice standards for lead-based paint

activities are included. Pursuant to TSCA section 404, provision was made for interested States, Territories, and Indian Tribes to appl y for and receive authorization to administer their own lead-based pa int activities programs. The regulations applicable to State, Territorial, and Tribal programs are c odified at 40 CFR part 745, subpart Q.

The work practice standards for abatements in the Lead-based Paint Activities Regulations are essentially pe rformance standards. They give a trained and certified

abatement contractor some discretion in de termining how best to ensure that an abatement is performed safely, so long as the contractor can demonstrate that the abatement has been properly completed and that no lead-based paint hazards remain. Certain high dust generating practices are prohibited and contract ors are required to prepare occupant protection pl ans specifically describing the procedures to be followed on each job to protect occupants from exposures to lead-based paint hazards. In most cases, residents relocate until the abatem ent has been completed. Although these additional procedures are not specified in the regulations , abatement supervisor and worker courses provide comprehensive trai ning in the specialized techniques these

individuals can use to contai n work areas, remove, enclose, or encapsulate lead-based paint and lead-based paint hazards, and clean up after the job is fini shed. The regulations are much more detailed in describing the proc edures that must be followed to ensure that the abatement has been properly completed and that the work area is ready for reoccupancy. These procedures, typically refe rred to as “clearance,” must be performed by11

a certified inspector or risk assessor. First, a visual inspection must be performed to determine whether deteriorated painted surf aces or visible amounts of dust, debris, or residue are still present. If so, these conditions must be e liminated before the clearance procedures may continue. An exterior abatem ent project is consider ed complete after a successful visual inspection. Following a succes sful visual inspection after an interior abatement project, the inspector or risk a ssessor must collect dust wipe samples from floors, windowsills, and window troughs in the work area and have them analyzed by a laboratory accredited under the National Lead Laborat ory Accreditation Program (NLLAP) for dust lead analysis. After the sampling resu lts are received, the inspector or risk assessor must compare them with the establ ished clearance standard s for lead in dust. If all of the samples are below the clearance standards, the abatement is complete and the area may be re-occupied. If any samples are above the standards, the components represented by those samples must be re-cl eaned and the clearance process must be repeated until all samples are below the clearance standards. For example, if any interior window sills fail clearance, all of the unsampled window sills, as well as the failed window sills, must be recleaned and retested. If the abatement was conducted in multiple dwelling units, and units were selected for random testing, the window sills in the unsampled units would also have to be recleaned and retested.

TSCA section 403 directs EPA to promul gate regulations th at identify, for the purposes of Title X and Title IV of TSCA, dang erous levels of lead in paint, dust, and soil. These regulations were promulgate d on January 5, 2001 and codified at 40 CFR part 745, subpart D (Ref. 9). These hazard stan dards define lead-bas ed paint hazards in target housing and child-occupied facilities as paint- lead, dust-lead, and soil-lead hazards. A paint-lead hazard is defined as any damage d or deteriorated lead-based paint, any chewable lead-based painted surface with ev idence of teeth marks, or any lead-based paint on a friction surface if lead dust leve ls underneath the fricti on surface exceed the

dust-lead hazard standards. A dust-lead haza rd is surface dust that contains a mass-perarea concentration of lead equal to or exceeding 40 micrograms per square foot ( μ g/ft 2 )

on floors or 250 μ g/ft 2 on interior windowsills based on wipe samples. A soil-lead hazard is bare soil that contains total lead equa l to or exceeding 400 parts per million (ppm), equivalent to 400 micrograms per gram ( μ g/g), in a play area or average of 1,200 ppm of bare soil in the rest of the yard based on soil samples.

The TSCA section 403 rulemaking also am ended the Lead-based Paint Activities Regulations to incorporate new dust-lead clearance standards for abatements. These

standards are 40 μ g/ft 2 on floors, 250 μ g/ft 2 on interior windowsills, and 400 μ g/ft 2 on window troughs, based on wipe samples.

On August 10, 2009, EPA received a peti tion requesting that EPA lower the regulatory dust-lead hazard standard and modi fy the regulatory defi nition of lead-based paint. After careful consid eration, EPA decided to grant the request and accordingly intends to begin the appropr iate proceedings. Although EP A granted the request, the Agency did not commit to either a specific rulemaking outcome or a certain date for promulgation of a final rule. EPA’s primar y reason for granting the request was based on recent epidemiological studies that indicate th e current hazard standards are insufficiently12

protective. The request was granted unde r section 553(e) of the Administrative Procedures Act (APA). Additi onally, because the Secretary of the Department of

H ousing and U rban D evelopment (HUD) was given the statutory authority to establish a lower level of lead in paint for purposes of the definition of lead-based paint in target housing, EPA plans to work with HUD on this aspect of the request.

3. The 2008 Renovation, Repair, and Painting Rule . TSCA section 402(c) addresses renovation and remodeling. Specifi cally, TSCA section 402(c)(2) directs EPA to study the extent to which persons e ngaged in various types of renovation and remodeling activities are exposed to lead duri ng such activities or create a lead-based paint hazard regularly or occasionally. EPA con ducted this study in four phases. Phase I, the Environmental Field Sampling Study (E FSS) (Ref. 10), evaluated the amount of leaded dust released by the following activities:

• Paint removal by abrasive sanding.

• Removal of large structures, includi ng demolition of interior plaster walls.

• Window replacement.

• Carpet removal.

• HVAC repair or replacement, including duct work.

• Repairs resulting in isolated small surface disruptions, including drilling and sawing into wood and plaster.

Phase II, the Worker Characterization and Blood Lead Study (Ref. 11), involved collecting data on blood lead and renovation and remodeling activities from workers. Phase III, the Wisconsin Ch ildhood Blood Lead Study (Ref. 3) , was a retrospective study focused on assessing the relationship between renovation and rem odeling activities and children’s blood-lead levels. Phase IV, th e Worker Characterization and Blood-Lead Study of R&R Workers Who Specialize in Reno vations of Old or Historic Homes (Ref. 12), was similar to Phase II, but focused on individuals who worked primarily in old historic buildings. More information on the re sults of these peer-reviewed studies can be found in Unit III.C.1. of the preamble to th e 2006 Lead; Renovation, Repair, and Painting Program Proposed Rule (“2006 Proposal”) (Ref. 13).

TSCA section 402(c)(3) further directs EPA to revise the Lead-based Paint Activities Regulations to apply to renovation or remodeling activitie s that create leadbased paint hazards. Accordingly, EPA issu ed the 2006 Proposal, proposing to conclude that any renovation activity th at disturbs lead-based paint can create significant amounts of leaded dust, that most activities create d lead-based paint ha zards, and that some activities can be reasonably anticipated to cr eate lead-based paint ha zards (Ref. 13). This proposed finding was largely based on the results of the studies conducted under TSCA section 402(c)(2).13

After the 2006 Proposal was i ssued, EPA conducted a field study (Characterization of Dust Lead Levels af ter Renovation, Repair, and Painting Activities) (the “Dust Study”) to better characterize dust lead levels resulting from various renovation, repair, and painting activities (Ref . 14). This study, completed in January, 2007, was designed to compare environmental le ad levels at appropriate stages after various types of renovation, repair, and painti ng preparation activitie s were performed on

the interiors and exteriors of target housing units and ch ild-occupied facilities. The renovation activities were conducted by local professional renovation firms, using personnel who received lead safe work pr actices training. Th e activities conducted represented a range of activities that w ould have been permitted under the 2006 Proposal, including work practices that are restricted or prohibited under the final RRP rule. Of particular interest was the im pact of using specific work practices that renovation firms would be required to use under th e proposed rule, such as the us e of plastic to contain the work area and a multi-step cleaning protocol, as opposed to more typical work practices.

The final RRP rule was published in th e Federal Register issue of April 22, 2008 (Ref. 1). The final RRP rule, codified in 40 CFR part 745, subparts E, L, and Q, addresses lead-based paint hazards created by renovation, repair, a nd painting activities that disturb painted surfaces in target hous ing and child-occupied facilities. “Target housing” is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disa bilities (unless any ch ild under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Under the final RRP rule, a child-occupied fac ility is a building, or a porti on of a building, constructed prior to 1978, visited regularly by the same child, under 6 year s of age, on at least two different days within any week (Sunday thr ough Saturday period), pr ovided that each day’s visit lasts at least 3 hour s and the combined weekly visi ts last at least 6 hours, and

the combined annual visits last at least 60 hours. Child-occupied facilities may be located in public or commercial buildings or in target housing.

In the final RRP rule, EPA issued its determination that renovation, repair, and painting activities that disturb lead-based pa int create lead-based paint hazards. This finding was based on evidence from the TSCA section 402(c)(2) study and the Dust Study that all such activ ities in the presence of lead-based paint create lead-based paint hazards. Having made this finding, TSCA sec tion 402(c)(3) then directs EPA to revise

the Lead-based Paint Activitie s regulations to apply to su ch renovations. In the final RRP rule, EPA did not interpret its statutor y mandate to require application of the existing TSCA section 402(a) regulations to re novations without change. EPA stated its belief that Congress, by using the word “revis e,” and creating a separate subsection of the statute for renovation, intended that EPA make revisions to those ex isting regulations to adapt them to a different set of actions and a very different regulated community. As discussed in the preamble to the final RRP ru le, there are significant differences between renovations and abatements (Ref. 1). For ex ample, performing abatement is a highly specialized skill that workers and supervisors must learn in accredited training courses. However, painters, plumbers and carpente rs already know how to perform renovation s work , so accredited renovator training courses are designed to teach renovators how to14

incorporate principles of lead safety into their typical work. Accordingly, the rule did not merely expand the scope of the current abat ement requirements to cover renovation and remodeling activities. Instead, EPA consider ed the elements of the existing abatement regulations and revised them as necessary to craft a rule that is practical for renovation, remodeling and painting businesses and their customers, taking into account reliability, effectiveness, and safety as di rected by TSCA section 402(a).

The final RRP rule establishes requir ements for training renovators, other renovation workers, and dust sampling tech nicians; for certifying renovators, dust sampling technicians, and renovation firms; for accrediting providers of renovation and dust sampling technician traini ng; for renovation work practic es; and for recordkeeping. Interested States, Territories, and Indian Tr ibes may apply for and receive authorization

to administer and enforce all of the elem ents of these new renovation requirements.

The final RRP rule created two new traini ng disciplines in the field of lead-based paint: renovator and dust sampling technici an. Persons who successfully complete renovator training from an accredited renovation training provider are certified

renovators. Certified renovato rs are responsible for ensuri ng that renovations to which they are assigned are performed in complian ce with the work pract ice requirements set out in 40 CFR 745.85. Persons who successfully complete dust sampling technician training from an accredited training provider are certified dust sampling technicians. Certified dust sampling technicians may be called upon to collect dust wipe samples after renovation activities have been completed. While the training disciplines, the work practice standards, and the recordkeeping requ irements of the final RRP rule differ from those established in the lead-based paint activities regulations, EPA determined that the accreditation requirements imposed on persons providing lead-based paint activities training would also be effective for persons providing renovation training. Therefore, the

final RRP rule amended 40 CFR 745.225 to c over persons who provide or wish to provide renovation training for the purposes of the final RRP rule.

As amended, 40 CFR 745.225 requires trai ning providers who wish to provide lead-based paint activities or renovation training for the purpo ses of the EPA's lead-based paint programs to be accredited by EPA. The requirements for each course of study are

described in detail at 40 CFR 745.225 as are the operationa l requirements for training programs and the process for obtaining accreditation.

Under the final RRP rule, covered re novations in target housing and childoccupied facilities must be performed by cer tified renovation firms. A certified firm must ensure that persons who perform renova tions on behalf of th e firm are properly trained and that the work practice requir ements are followed. Renovations must be performed or directed by certified renovato rs, who are also responsible for compliance with the RRP rule’s requirements. The fi nal RRP rule contains a number of work practice requirements that must be fo llowed for every covered renovation. These requirements pertain to warni ng signs and work area containment, the restriction or prohibition of certain practices ( e.g. , high heat gun, torch, power sanding, power planing), waste handling, cleaning, and post-re novation cleaning verification. In contrast,15

the RRP rule did not apply the same perf ormance standard of an abatement-style clearance requirement to demonstrate that lead-based paint hazards created by the renovation have been eliminated. Instead, the RRP rule sets forth the steps that must be

taken to isolate and contain the work area be fore work begins and the cleaning protocol

that must be followed after the renovation has been completed.

A final step in the process for interior renovations is cleani ng verification. After the RRP rule’s specific cleaning protocol has been followed, a visual inspection for

visible dust and debris is performed. If no dust or and debris is found, a certified renovator must wipe the interior windowsills and uncarpeted floors with wet disposable cleaning cloths and compare each to a cleaning verification card developed and distributed by EPA. If the cloth matches or is lighter than the image on the card, the surface represented by the cloth has passed th e post-renovation cleani ng verification. If the cloth is darker than the image on the ca rd, the surface represented by the cloth must be re-cleaned and then wiped with a new wet cloth, which is then compared to the cleaning verification card. If the cloth is still darker than th e image on the card, the surface must be allowed to dry for at least an hour. At that time, the surface is wiped with a dry electrostatic cleaning cloth, whic h completes the cleaning verification process

for that surface. When all surfaces in the work area have completed cleaning verification, the renovation has been completed a nd the work area may be re-occupied.

Shortly after the final RRP rule was pr omulgated, several petitions were filed challenging the rule. These petitions were c onsolidated in the Circuit Court of Appeals

for the District of Columbia Circuit. On August 26, 2009, EPA signed an agreement with the environmental and children's health advocacy groups in settlement of their petitions. In this agreement EPA committed to propose se veral changes to the RRP rule, including the changes discussed in this notice.

Throughout this notice, EPA will use seve ral different terms to describe the proposed requirements. EPA will use the term “dust wipe testing” to mean collecting wipe samples of dust on floors and windows ills and in window troughs, analyzing the samples for lead content, a nd reporting the result s of the analysis to the owners and occupants of the building being renovated. Although the term “dust wipe sampling” was used in the settlement agreement to describe these activities, EPA is using “dust wipe testing” in this notice to signal that samp le analysis may be performed off-site in a traditional laboratory setting or on-site by a por table laboratory, so long as the entity performing the analysis is accredited or recognized by the National Lead Laboratory Accreditation Program (NLLAP). In this notice, EPA will use the term “dust wipe sampling” to refer to the specific activity of collecting the wipe samples, not to the analysis or reporting of results. EP A will use the term “clearance” to mean demonstrating, through dust wipe testing, th at the floors, windowsills, and window troughs in the renovation work area are belo w the regulatory clearance standards that have been established for the abatement pr ogram and codified at 40 CFR 745.227(e)(8). This includes re-cleaning where necessary to achieve the clearance standards.

III. Provisions of this Proposal16

A. Dust Wipe Testing and Clearance

1. Background . One of the most significant issues arising out of the RRP rulemaking was the issue of how to determ ine whether a renovati on had been properly completed. The Lead-based Paint Activities Rule requires clearance to be achieved in an

abatement work area before the abatement is considered complete. As previously discussed, the abatement clearance process involves a visual inspection, dust wipe sampling of floors, windowsills, and window tr oughs in the work area, analysis by an NLLAP-accredited laboratory, and comparison of the results to the clearance standards. If the sample results are below the clearance standards, clearance has been achieved and the work area may be re-occupied. If the sample results are at or above the standards, the

work area must be re-cleaned and the clea rance process must begin again. For this reason, abatement projects often include coating floors with a sealant. According to the U.S. Department of Housing and Urban Deve lopment’s “Guidelines For the Evaluation

and Control of Lead-Based Paint Hazards in Housing” (HUD Guidelines), the purpose of sealing floors is not to trap leaded dust unde rneath the sealant, but to provide a surface that can be cleaned effectively by the reside nt (Ref. 15). Although achieving clearance is not the main reason for sealing floors, the pr ocess typically results in a surface than can achieve clearance and be kept clean by the re sident. This is a sensible approach for abatements, because the goal of abatement is to permanently eliminate lead-based paint and lead-based paint hazards. The clearance process ensures that no lead-based paint or lead-based paint hazards remain in the work area.

However, EPA recognized that there ar e many differences between renovations and abatements. As discussed in the pream ble to the final RRP rule, renovations are different from abatements in intent, impleme ntation, type of workforce, funding, and goal (Ref. 1). One of the biggest challenges th at faced EPA in revising the TSCA section 402(a) Lead-based Paint Activities Regulati ons was how to effectively bridge the

differences between abatement and renovati on and remodeling while acknowledging that many of the activities employed in both ( e.g. , window replacement) are the same and generate the same amount of dust. Abat ements are generally performed in three circumstances. First, abatements may be performed in the reside nces of children who

have been found to have elevated blood lead levels. Second, abatements are performed in

certain housing receiving financial assistance from HUD when required by HUD’s LeadSafe Housing Rule, codified at 24 CFR part 35 (see §§ 35.630 and 35.930(d)) . Third, state and local laws and regulations may re quire abatements in certain situations associated with rental housing , or when abatement orders have been issued when resident young children, typically under age 6, have blood lead levels at or above specified

values.

. Typically, when an abatement is perfor med, the housing is either unoccupied or the occupants are temporarily relocated to lead-safe housing until the abatement has been demonstrated to have been properly complete d through dust clearance testing. Carpet in the housing is usually removed as pa rt of the abatement because it is harder to

clean difficult to demonstrate that it is free of lead

- based paint hazards . Uncarpeted floors that have not been replaced during the abatemen t may need to be refinished or sealed in17

order to achieve clearance. Abatements have only one purpose—to permanently eliminate lead-based paint or and lead-based paint hazards.

On the other hand, renovations are performed for a myriad of reasons that may have nothing to do with lead-based paint. Renovations involve activities designed to update, maintain, or modify all or part of a building. Renovations may be performed while the property is occupied or unoccupie d. If the renovation is performed while the property is occupied, the occupants do not typically relocate pendi ng the completion of the project.

EPA also recognized that dust wipe testing and cl earance as required after abatements can be expensive. The costs can be attributed to two major factors: the cost of trained personnel to collect the samples and the cost of the laboratory analysis. EPA preliminarily estimated the cost of three dust wipe samples to be $160 to collect and analyze (Ref. 13). If EPA had required dus t wipe testing and clearance after every renovation project, it would have made up a significant portion of the cost of smaller projects. In addition, laborato ry results may not be availabl e for several days. If EPA had required traditional abatement-style clearan ce after renovations, the work area would not be able to be re-occupied while waiting for the laboratory results.

In addition, EPA was also concerned that requiring clearance after every renovation job could, in some instances, re sult in the renovati on firm being held responsible for abating all dust-lead hazar ds, including such hazards that may have

existed in the area before the renovation co mmenced. During the stakeholder input opportunities provided by EPA before issui ng the 2006 Proposal, contractors suggested that, if post-renovation dust wipe testing were required, the contractors would have to protect themselves by collecting pre-renovation du st wipe samples, to ensure that they

would not be held liable for pre-existing hazards.

To address these various concerns, EPA began looking for an alternative to dust wipe testing and clearance that would be quick, inexpensive, reliable, and easy to perform. EPA conducted a series of studies using commercially available disposable cleaning cloths to determine whether variations of a “white glove” test could serve as an

effective alternative to clearance. Based on th e favorable final report of these studies,

entitled “Electrostatic Cloth and Wet Cl oth Field Study in Residential Housing” (Disposable Cleaning Cloth Study) (Ref. 16) , EPA’s 2006 Proposal included a cleaning verification protocol using wet and dry disposable cleaning cloths.

Unlike the earlier Disposable Cleani ng Cloth Study, the Dust Study was not designed specifically to evaluate the cleaning ve rification in isolation from the rest of the work practices. However, the Dust Study did se rve as a valuable field test of the cleaning verification protocol. The Dust Study involved actual re novations performed by local

renovation contractors who receiv ed instruction in how to perform cleaning verification using wet and dry disposable cleaning cloths and then were left alone to determine whether the cleaning cloths matched or were lighter than the cleaning verification card developed by the EPA. In order to maximi ze the information collected about cleaning18

verification in the Dust Study, cleaning verification was conduc ted after each experiment, not just those experiments that were bei ng conducted in accordance with the proposed rule requirements for containment and cleaning.

EPA received numerous comments on this aspect of the RRP rulemaking. While some commenters supported th e proposed work practices, including cleaning verification, many others thought that renovation work areas ought to be tested and cleared for reoccupancy in the same way that abatement work areas are cleared through the clearance process, including dust wipe testing. Many commenters believed that renovation firms should be required to demonstrate that no dust- lead hazards had been left behind in the

work area. These commenters contended that the only reliable, safe, and effective way to do this was through dust wipe testing and clearance.

These commenters contended that the unr eliability of cleani ng verification made

it an unsuitable substitute fo r dust wipe testing and cleara nce. They pointed to the

sentence in the conclusion section of EPA’ s Dust Study that stat es that the cleaning verification protocol was not always accurate in identifying the presence of levels above

EPA standards for floors and sills. Some co mmenters also noted the Dust Study report’s

discussion of factors that affected the effectiv eness of cleaning verification, such as floor condition, contractor performance, job type, and dust particle characteristics. One

commenter observed that while all interior e xperiments resulted in final passed cleaning

cloths for all floor zones and for all windowsill s, nearly half of the experiments in the study ended with average work room floor lead levels above EPA’s dust-lead hazard standard for floors of 40 μg/ft 2 . The Clean Air Scientific Advisory Committee, who was asked to review the underlying analysis for the estimation of the effect of the RRP rule on children’s blood lead levels, st ated that in the Dust Study cleaning verification did not provide sufficiently reliable results, lead ing to an inaccurate assessment of cleaning efficiency.

EPA agreed with the commenters who ar gued that cleaning verification was not a suitable substitute for dust wipe testing and cl earance. EPA noted in the preamble to the final RRP rule that even though the Dispos able Cleaning Cloth Study showed that the cleaning verification cloths that reached “w hite glove” were approximately 91% to 97% likely to be below the regulatory hazard st andard, EPA believes the greater variability seen in the Dust Study, particularly in th e experiments where the complete suite of proposed work practices were not used, does not support the characte rization of cleaning

verification as a direct substitu te for clearance testing. Clea ning verification, in itself, is not a substitute for quantitative dust wipe tes ting. However, EPA continues to believe that the Dust Study supports the validity of cleaning verification as an effective component of the RRP rule’s work practices . The cleaning and f eedback aspects of cleaning verification are importa nt to its contribution to th e effectiveness of the work practices (Ref. 1).

In the Dust Study, for renovations not invol ving practices restri cted or prohibited by the final RRP rule, cleaning verification in combination w ith the other required work practices were effective at re ducing dust lead levels on surfac es to or below the dust-lead19

hazard standards, regardless of the condition of the floor. Of the 10 experiments performed in compliance with the RRP rule’s work practices, final average lead-based paint dust levels were at or below the regul atory hazard standard (taking into account the accepted level of uncertainty, i.e. , within plus or minus 20% , which is the performance criteria for the National Lead Laboratory A ccreditation Program). For the experiments not performed according to the RRP rule’s work practices, the use of cleaning verification after cleaning redu ced, often significantly, the am ount of lead dust remaining.

EPA determined that there is sufficient cons istency in the Dust St udy data to support the use of cleaning verification as an effective component of the RRP ru le’s work practices.

Commenters also expressed concern about the subjectivity of the cleaning verification process. They not ed that the effectiveness of cleaning verification relies upon the certified renovator’s und erstanding and application of the protocol, ability to define the floor sampling area or areas, a nd use of the cleaning verification card to determine whether a surface has been adequa tely cleaned. Some commenters speculated that the certified renovator's accuracy in comp aring the cleaning cloth to the verification card could depend on factors such as his or her visual acuity, the lighting in the room, or simply differences in judgment among certified renovators. The issue of a person ( i.e.

, the certified renovator on the project) verifying cleaning of a project that he or she has

worked on also raised concerns about actual or potential conflict of interest, which might, even unconsciously, affect the person’s judgment. One thought that the lack of corrections for surface conditions, the experi ence of the person conducting the visual assessment, or pre-existing conditions might bias the results of testing.

EPA agreed that the visual comparison of a cleaning cloth to a cleaning

verification card has an element of subjectivity because the vi sual comparison of cloth to card requires some exercise of judgment on the part of the person doing the comparing. However, EPA did not agree that this nece ssarily makes the comparison suspect. The Dust Study represented a real-wor ld test of the ability of re novators to learn how to do cleaning verification and to apply it in the field. Although one Dust Study participant expressed concern about subjectivity, cleani ng verification was successfully performed by the renovation contractors in all of the experiments perf ormed in compliance with the work practices in the final RRP rule. In a ddition, cleaning verifica tion was predictive of whether renovators had cleaned-up the lead -based paint hazards created during the renovation activity to the dust-lead standar d, particularly when the proposed work practices were used. The cleaning verifica tions performed during the Dust Study were conducted by various persons in various light ing conditions and on various surface

conditions.

Other commenters did not support dust wi pe testing and clearance. One reason cited by these commenters was the cost of dust wipe testing, especia lly if required to be performed by independent certif ied inspectors or risk assesso rs. Some also contended that dust clearance testing is time cons uming and an obstacle to completing the renovation job. One commenter noted that a ma jor component of the cost of performing clearance is due to the fact that the por tion of the premises affected by the renovation would have to remain unoccupied. Another commenter noted that it is not uncommon for20

the abatement clearance process to be conduc ted up to three times on a home to make sure that lead levels are sufficiently low. Again, commenters expre ssed the concern that a requirement for dust wipe testing and cl earance would have the effect of holding renovation firms responsible for pre-existing dust-lead hazards.

Based on the weight of the evidence in the rulemaking record, primarily from the Disposable Cleaning Cloth Study and the Dust Study, EPA determined that, once certain high dust generating practices were prohibited or restricted, th e full suite of work practice requirements, including containment, cleani ng, and cleaning verifica tion, was effective at minimizing exposure to lead-based paint hazards created by renovation, repair, and painting activities. At the same time, EPA recognizes that cleani ng verification is an imperfect check on whether the dust-lead ha zard standard has been achieved. Among other things, as commenters poi nted out, there is an element of subjectivity to cleaning verification, which is not presen t in dust wipe testing.

In the final RRP rule, EPA gave signi ficant weight to the cost, timing, and liability concerns expressed by commenters. In balancing the va rious considerations, EPA concluded that cleaning veri fication, as part of the full suite of work practices, was an appropriate check on the effectiveness of the work practices. EPA has continued to balance these considerations in today’s propos al, but has preliminarily concluded that, for certain jobs, the additional benefits of dust wipe testing, and in some cases clearance, warrant imposing these additional requirements.

2. Proposed requirements for dust wipe testing after certain renovations . This proposal contains dust wipe te sting requirements for many renova tions. In most of these situations, the renovation firm will only be required to provide the dust wipe testing results to the building owners and occupants. However, as discussed more fully in Unit III.A.3. of this preamble below, after two types of renovations , this proposal would also require renovation firms to achieve clearance.

EPA has evaluated the value of the in formation that would be available to renovation firms and building owners and occupa nts through such testing. EPA expects two kinds of benefits to flow from proposed dust wipe testing requirements. The first are

the direct benefits of the information to th e owners and occupants, the pure value of the information on dust lead levels remaining in the renovation work area, including leaded dust that may have been generated during th e renovation activity. For building owners and occupants, this information is likely to improve their understan ding and awareness of dust-lead hazards. It will also greatly im prove their ability to make further risk management decisions. This information is pa rticularly critical where dust lead levels approach or exceed the regulatory hazard standards. One commenter on the 2008 RRP rule described the value of dust wipe testi ng results in this way: “Because the white glove test does not provide a numeric result , a family is given limited information from which to make informed decisions and worse yet, may be given a false sense of security.” (Ref. 17) The commenter then argued that, “although the federal floor dust standard is

set at 40 μ g/ft 2 , there is sufficient evidence to suggest that floors well below this standard may endanger children. Prope rty owners and residents s hould be provided quantitative21

information so they can choose what actions to take based on those levels.” The

commenter believed that in instances where floor dust wipe test results are just below the EPA regulatory standard, the owners or o ccupants may want to undertake additional cleaning. The value of this informati on has new significance in light of recent epidemiological studies that indicate the current lead-based hazard standards are insufficiently protective.

In addition, in enacting the Residential Lead-based Paint Hazard Reduction Act of 1992, Congress recognized that there is a va lue in providing information to property owners and occupants. Section 1018 of the Act requires the disclosure of information on lead-based paint and lead-based paint hazards to purchasers and tenants of target housing. Even if no specific information on the housing to be sold or rented is available, the seller or landlord must provide a lead hazard inform ation pamphlet to the purchaser or tenant. Similarly, TSCA s S ection 406(b) requires renovators or their firms to provide a lead hazard information pamphlet to the owners and occupants of target housing before beginning a renovation in the housing. The in formation provided by dust wipe testing

after renovations is a different and more targeted benefit, i.e. , a more accurate check on

whether the hazard standard has been met at completion of the job, but it is in line with the broader statutory emphasis on disclosure of information related to possible lead-based paint hazards. This information is beneficial in the same way that disclosure of known lead-based paint and lead-based paint hazards is beneficial to purchasers and tenants

under Section 1018.

The other benefits that EPA expects to flow from a dust wipe testing requirement are the benefits that may result from change d behavior on the part of renovation firms. EPA believes that dust wipe testing results will also provide valuable feedback to renovation firms on how well they are cleaning up after renovations. In its Evaluation of

the HUD Lead-Based Paint Hazard Control Gr ant Program (Ref. 18), HUD noted that the rate of passing initial clearance was associat ed with repetition of lead hazard control activities. As renovation firms become more familiar with the performance requirements for cleaning on projects covered by the RRP rule, their projects are more likely to require fewer cleaning cycles.

It is also likely that having to provide to owners and occupants the specific dust

lead levels contained in dus t wipe testing results will in crease renovation firm cleaning efficiency. Renovation firms w ill be incentivized to lower the dust lead levels remaining after renovation jobs, even if the levels are at or near th e regulatory standards. In particular, firms that might otherwise be incl ined to be less than thorough in the use of the disposable cleaning cloths in order to av oid darkening the cloths will be incentivized to perform cleaning verification thoroughly. Because proper cleanup plays such a vital

role in the minimization of dust-lead hazards created by renovations, providing information on dust lead levels remaining after renovations to building owners and occupants will serve as an incentive fo r firms to perform post-renovation cleaning efficiently, thoroughly, and correc tly so that the benefits of the RRP rule may be fully

realized.22

EPA is therefore proposing to require th at dust wipe testing be performed after many renovation jobs. EPA has determined th at dust wipe testing results will provide a valuable check on the performance of cleani ng verification and the other work practices for most of the paint-disturbing renovations covered by the Dust Study (Ref. 14). In reviewing the data from the Dust Study, EPA believes that, of the jobs performed in the Dust Study, the additional safeguard of dust wi pe testing is warranted where the floor dust-lead levels changed markedly from pre-work to post-cleaning to post-cleaning verifications. The only jobs where this di d not occur were the renovations involving cutouts, which also created si gnificantly less dust than most other renovations.

Accordingly, today’s proposal would require dust wipe testing on uncarpeted floors, windowsills, and window troughs in the work area after the following types of

interior renovations:

• Use of a heat gun at temperat ures below 1100 degr ees Fahrenheit.

• Removal or replacement of window or door frames.

• Scraping 60 ft 2 or more of painted surfaces.

• Removing more than 40 ft 2 of trim, molding, cabinets, or other fixtures.

These jobs represent all of the expe riments conducted in the Dust Study other than those involving cut-outs or practices prohibited or restricted by the final RRP rule. The experiments labeled “kitchen gut” in the Dust Study mostly involved the removal of

kitchen cabinets and kitchen fixtures. The sc raping experiments involved the scraping of approximately 60 ft 2 or more of lead-based paint, so EPA is proposing to limit the dust wipe testing requirement to renovations during wh ich at least that much painted surface is scraped. EPA requests comment, information, or data on whether the threshold for dust wipe testing after renovat ions involving scraping should be lowered to 6 ft 2 , which is the minor maintenance threshold, or to some othe r number. Likewise, the trim and molding removal experiments all involved th e removal of more than 40 ft 2 of trim or molding, so EPA is proposing to limit the dust wipe tes ting requirement to renovations during which at least that much trim or molding is rem oved. EPA also requests comment, information,

or data on whether the threshold for dust wi pe testing after trim, molding, cabinet, or

fixture removal should be lowered. EPA acknow ledges that the benefits identified above of dust wipe testing would apply for these sma ller jobs, as well as th e larger jobs covered by today’s proposal. At the same time, in orde r to ensure a program that is practical for renovation activities, EPA has tried in this proposal to maintain some proportionality between the complexity and cost of the pr oposed requirements on one hand, and the size and cost of the renovation job on the other.

EPA wishes to clarify that the size thre sholds for scraping painted surfaces and removing trim, molding, cabinets, or other fi xtures would be calculated on a per-job

basis. This is in contrast to the minor repair and maintenance exception, which is calculated on a per-room basis for interior projects.23

EPA is also requesting comment on whet her dust wipe testing should be required

in situations where a surface fails th e cleaning verification process twice, i.e. , when the second wet disposable cleaning cloth is darker than the cleaning verification card. In that case, the surface must be allowed to dry fo r at least an hour, af ter which the certified renovator must wipe the surface with a dry el ectrostatic cleaning cloth. In the Dust Study, only four surfaces failed cl eaning verification twice, re presenting two of the sixty experiments. In one experiment involving cu t-outs, a vinyl floor in poor condition failed cleaning verification twice. The average dust- lead level on the floor after the second wet disposable cleaning cloth was 61.5 μg/ft 2 , and after the dry elec trostatic cleaning cloth, the level was 57.2 μg/ft 2 . However, this floor was in su ch poor condition that after two pre-cleanings, the cleanings done before any experiments were conducted, the floor dust lead levels were still 95 μg/ft 2 . Thus, the floor was cleaner than when it started, even though it failed cleaning verification twice. In the other experiment, a kitchen gut performed on a tile floor in fair condition, three floor sections fa iled the second cleaning

verification. After the second we t disposable cleaning cloth, th e average dust lead levels

on two of the three failed sect ions were less than 10 μg/ft 2 , while the other was significantly higher at 150 μg/ft 2 . Nevertheless, after the dr y electrostatic cleaning cloth wipe, the dust lead levels for a ll floor sections averaged 41.4 μg/ft 2 , which is within the accepted level of uncertainty, i.e. , within plus or minus 20%, for the National Lead Laboratory Accreditation Program (NLLAP).

The dust wipe testing would have to be performed in a manner similar to the abatement clearance sampling requirements at 40 CFR 745.227(e)(8). After the cleaning required by 40 CFR 745.85(a)(5) has been perfor med, a certified inspecto r, certified risk assessor, or certified dust sa mpling technician would be re quired to perform a visual inspection to ensure that the work area is free of visible dust, debris or residue. EPA is proposing to require this second visual inspection, in addition to the one performed by the certified renovator before cleaning veri fication, because, in many cases, the person performing the dust wipe testing will not be the same person who performed the cleaning verification. In addition, there may be a delay between the completion of cleaning verification and the beginning of dust wipe te sting. EPA believes that the requirement for a visual inspection immedi ately prior to dust wipe te sting will give the certified inspector, risk assessor, or dust sampling tec hnician a means to address any concerns they may have as to the cleanliness of the work area. The locations for dust wipe samples would be dependent on the number of rooms, hallways, or stairwells within the work area. If there is more than 1 room, hallw ay, or stairwell within the work area, the following samples would ha ve to be collected:

• 1 windowsill sample, 1 window trough sample, and 1 floor sample within each room, hallway, or stairwell (no more than 4 rooms, hallways, or stairwells need be sampled).

• 1 floor sample adjacent to the work area, but not in an area that has been

cleaned.24

If the work area is a single room, hallway, or stairwell, or a smaller area, the following samples would have to be collected:

• 1 windowsill sample, 1 window trough sample, and 1 floor sample.

• 1 floor sample adjacent to the work area, but not in an area that has been

cleaned.

If there are no uncarpeted floors in the work ar ea, then no floor samples would need to be

collected. The same would be true for wi ndows and windowsill or trough samples. Dust wipe samples would be collected in accord ance with the protocol in “Residential Sampling for Lead: Protocols for Dust and Soil Sampling” (Ref. 1 9 8 ).

HUD’s Lead Safe Housing Rule, at 24 CFR 35.1340(g), requires the sample adjacent to the work area to be collected within 5 feet of the work ar ea in an area that is connected to the work area. This specifi cally precludes samples from being collected from rooms separated from the work area by a solid wall. EPA requests comment on whether these provisions should be inco rporated into this rulemaking.

EPA also requests comment on whether this prot ocol is sufficient to determine dust lead levels remaining on floors, windowsills, and window troughs. This protocol has

been used for more than a decade in cleara nce examinations after lead abatements and

HUD interim lead hazard control work. Howeve r, one test per surface may not always be enough to accurately characterize the dust lead levels over the entire surface. While the physical variability of dust loadings and lead concentrations across a room has not been thoroughly investigated, seve ral studies including EPA’s EFSS Environmental Field Sampling Study have found high variability in side- by-side samples collected before and after various activities (Ref . 10). EPA requests comment on whether more tests should be required, and, if so, what protocol should be followed in determining the number and location of additional tests. For example, one option would be to follow the ASTM International “Standard Practice for Clearance Examinations Following Lead Hazard Reduction Activities in Dwellings, and Other Ch ild-Occupied Facilities.” This document says that for rooms that exceed 500 ft 2 , the floor should be divide d into two or more equal parts of 500 ft 2 or less and a sample collected in each part (Ref. 20 1 9 ).

EPA requests comment on whether the provision for random clearance sampling in multi-unit buildings in the Lead-based Paint Activities regulations at 40 CFR 745.227(e)(9) should be incorporated into th is regulation. This would permit random testing of individual housing units after re novations affecting multiple individual housing units in a multi-family dwelling with similarl y constructed and main tained residences. Consistent with 40 CFR 745.227(e)(9), to take advantage of this provision, the certified

renovators and other trained persons who renovate or clean the individual housing units would not know in advance which units would be selected for random testing. In addition, the dust wipe testing would have to be performed by a certified inspector or

certified risk assessor and the number of resi dential units selected for dust wipe testing would have to be sufficient to provide a 95 percent level of conf idence such that, if25

clearance were required, no more than 5 percen t or 50 of the residential units (whichever is smaller) in the randomly-sampled populatio n would exceed the applicable clearance

levels. This is the standard for random cl earance sampling after abatement projects and this particular requirement would be is designed to allow certifie d inspectors and certified risk assessors to use the training they have already received on random clearance sampling after abatement projects to decide wh ich units to test after a renovation in a multi-family dwelling.

Although random dust wipe testing has the potential to reduce costs for a large multi-unit renovation project, it may not be appropriate for this rule, given that an important purpose for the proposed dust wipe testing requirements is the provision of information to building owners and occupants. However, random sampling is already accepted by EPA and HUD for disclosure of in formation on lead-based paint inspections,

risk assessments and abatement clearances unde r the Disclosure Rule (Ref. 21), and for

notification after activities ot her than abatement under HUD’s Lead Safe Housing Rule at 24 CFR 35.125(b) and 35.1340(b)(2)(i). EP A also requests comment on whether a random sampling provision should be incorpor ated, but limited to s ituations where the HUD rule applies or to situations wh ere the housing is co mpletely vacant, e.g., an entire apartment building is va cant and being renovated. In addition, the current requirements for dust sampling technician courses do not include random sampling, so dust sampling

technicians would not be able to select the units and locations for random dust wipe testing. EPA requests comment on whethe r EPA should modify the dust sampling technician course requirements to include random testing in multi

- family buildings so that dust sampling technici ans would be able to do this along with certified inspectors and

certified risk assessors. EP A also requests comment on whet her this could be done and

still allow the course to be taught within a single 8

- hour day.

In addition, the current requirements fo r dust sampling technician courses do not include random sampling, so dust sampling tech nicians would not be able to select the units and locations for random dust wipe te sting. Dust sampling technicians could perform the actual sampling or testing, so long as the locations for testing were selected by a certified inspector or risk assessor. EPA request s comment on whether EPA should modify the dust sampling technician course requirements to include random testing in multi-family buildings so that dust sampling t echnicians would be able to select units randomly as do certified inspectors and certi fied risk assessors. EPA also requests

comment on whether this could be done and st ill allow the course to be taught within a single 8-hour day.

Dust wipe testing results would have to be provided by an entity accredited or recognized under the NLLAP. EPA establis hed the NLLAP in accordance with TSCA section 405(b) to assure the public that analytical labor atories recognized by the EPA have demonstrated that they are capable of accurately analyzing for lead in paint chip, dust, and soil samples. In January 2008, the Agency announced in the Federal Register changes to NLLAP that expand the opportunity to participate in the NLLAP to all lead testing service providers (Ref. 22)

. (73 FR 3967 January 23, 2008 ) These providers

include:26

• Fixed-site operations that perform analyt ical lead testing at a permanent location under controlled environmental conditions;

• Mobile facilities, or transportable, self-contained operations that can perform analytical lead testing under controlled envir onmental conditions; and

• Field sampling and measurement organi zations (FSMOs), or operations that perform on-site sampling and lead testing using portable testing technologies.

Portable testing technologies that might be employed by FSMOs, once accredited or recognized, include devices such as an x-ray fluorescence (XRF) analyzer machine , an anodic stripping voltam m etry (ASV) analyzer machine , or any other portable technology that has been shown to accurately and verifiab ly measure lead content in dust, paint chip, or soil. EPA believes these NLLAP changes remove barriers and provide a process so that all types of lead testing service provide rs may participate in the NLLAP. This can

make the NLLAP more efficient and cost-eff ective while maintaining the high standard of quality, science and technology for those who purchase analytical services related to

lead hazard identification and control. Th e ability for portable dus t testing technologies to become accredited under NLLAP is particul arly relevant to this rulemaking, because EPA believes that this will make dust wipe te sting less expensive and time-consuming.

EPA requests comment on additional t echnologies that may be available for sampling or testing for lead in dust. EPA is seeking information on what technologies are available, along with information on the res earch or evaluations that may have been conducted on these technologies. EPA is also in terested in research or other information on technologies that show promise for commercial development.

Persons performing visual inspections, co llecting dust wipe samp les, or analyzing dust wipe samples would not be required to be third parties independent of the firm performing the renovation. This is consiste nt with the final RRP rule and EPA’s abatement regulations. EPA has historically not required independe nt third parties to perform testing for two reasons. The first is the cost savings and convenience of being able to hire just one firm to perform all ne cessary lead-based paint activities. The second is the potential regional scarcity of firms to perform the work. As discussed in the preamble to the final RRP rule, these considerati ons are also likely to be applicable to the renovation sector (Ref. 1, at 21711). EPA does recommend, however, that the renovation firm comply with the HUD’s prohibition ag ainst the same person performing both the renovation activity and the clearance proce ss. (See 24 CFR 35.1340(f)). EPA requests comment on whether EPA should impose the sa me prohibition or a similar prohibition with perhaps an exception for single person firms.

Under this proposal, dust wipe testin g would be performed after cleaning verification, not instead of it. Cleaning veri fication is useful because it combines fine cleaning properties with feed-b ack to the certified renovator on the effectiveness of the post-renovation cleaning process. As discussed in the preamble to the final RRP rule, the27

Dust Study demonstrated that cleaning verifi cation is quite often needed to minimize exposure to dust-lead hazards created during renovations (Ref. 1, at 21744). In 4 of the 10 experiments performed in accordance with the final RRP rule requirements for containment, cleaning, and cleaning verifi cation, the average pos t-cleaning floor dust

lead levels were above the clearance sta ndards. In those experiments, cleaning verification was needed to reduce average dus t lead levels below the standards. In addition, dust wipe testing only tests part of the surface, and, as discussed above, leaded dust may not be distributed uniformly over the entire surface. In contrast, cleaning verification provides feedback on cleaning effectiveness over the entire surface so variability in distribution presents fewer chal lenges. EPA remains concerned that if dust wipe testing were allowed instead of cl eaning verification, without an accompanying requirement that the renovation firm re-clean until clearance is achieved, the RRP rule would actually be less protective because the su rfaces in the work area could be left less clean than if cleaning verification were perf ormed. Accordingly, dust wipe testing would be performed after cleaning verification ha s been performed in accordance with the existing protocol. After the dust wipe samp les have been collected, the renovation would be considered complete, the warning signs c ould be removed, and the work area could be re-occupied. Re-occupancy would not have to wait until the results of the testing were

available.

However, because re-occupancy can o ccur immediately after the dust wipe samples are collected, it is important to ensure that the results of th e dust wipe testing be communicated to owners and occupants as soon as practicable. Accordingly, this proposal requires the certified inspector, certified risk assessor, or ce rtified dust sampling technician to prepare a dust wipe testing report and provide it to the renovation firm within 3 days of the date that the results are obtained. If the dust wi pe testing results are to be determined by a fixed-site laboratory, the samples would have to be sent to the laboratory within 1 business day of the date that they are collected. The dust wipe testing report would include the name and signature of each certified person collecting the samples or performing the testing, the name and address of each certified firm employing the person(s) conducting the sampling or tes ting, the start and completion dates of the renovation, a brief written desc ription of the renovation, th e results of the visual inspection, a detailed written description of th e specific sampling or testing locations or a detailed drawing that clearly identifies the lo cation of each sample or test, the name of the NLLAP-recognized entity analyzing the results, the results of each sample or test, and the clearance standard that is applicable to each sample or test. EP A does not expect long, involved narrative descriptions in these reports. The results of the visual inspection could be as simple as “no dust, debris, or residue was visible in the work area,” while the brief written description of the renovation could be as simple as “replaced all of the windows in the upstairs bedrooms.” However, T t he report should be orga nized and presented in such a way that the recipients of the re port will be able to easily understand the information presented. The report must be a single document, with clearly-identifiable attachments, such as analytical reports from NLLAP laboratories, wh ere appropriate. If a significant number of tests ar e involved, the certified indivi dual preparing the report should incorporate an executive summary presenting the ove rall results, with particular

attention given to those results that exceeded the a pplicable clearance standards.28

The renovation firm would be required to provide this report to the owner of renovated target housing or child-occupied faci lities within 3 days of the date that the renovation firm receives the report. The renova tion firm would also have to provide the report within 3 days of receipt to the occupa nts of individual housing units that have been renovated, if the housing units are not owner-occ upied. Similarly, the report would have to be provided within 3 days to the proprietor of renovate d child-occupied facilities if they are not operated by the building owner. If the renovation firm has chosen to notify each individual housing unit affected by a re novation in a common area of target housing, or each parent or guardian of a child under age 6 using a renovated child-occupied facility, the renovation firm would also have to provide these persons with the dust wipe testing report within 3 days of the date th at the renovation firm receives the report. In

cases where the renovation firm has chosen to post signs to notify tenants affected by common area renovations, or parents and guardia ns of children under age 6 using a childoccupied facility, the renovati on firm would have to provide the dust wipe testing report upon request. EPA requests comment on whether the renovation firm should be required to provide the dust wi pe testing report to the building owner and occupants with the final invoice or within 3 days of the date that the report is received, whichever is

earlier.

3. Clearance . For two types of renovations th at can create large amounts of difficult-to-clean dust, EPA remains concerned about the possibility th at dust lead levels remaining, even after cleaning verificati on, may substantially exceed the clearance

standards. These are renovations that disturb paint using ma chines designed to remove paint through high speed operation, such as power sanders or abrasive blasting, when equipped with high-efficiency particulate air ( HEPA ) exhaust controls and the demolition, or removal, through destructive mean s, of plaster and la th walls, ceilings or other building components. If renovation fi rms choose to utilize these methods, EPA is also proposing to require that renovation firm s demonstrate, through dust wipe testing, that they have met the clearance standards before the renovation will be considered completed.

EPA’s Dust Study demonstrated that m achines that remove paint through highspeed operation, in the absence of high

- efficiency particulate air ( HEPA ) exhaust control,

create enormous amounts of leaded dust that is particularly difficu lt to clean up. In the Dust Study, the geometric mean post-work fl oor dust lead levels after experiments involving power planing were 201,902 μg/ft 2 . That was the only type of power tool experiment done indoors during the Dust St udy. However, two additional high speed tool experiments were done on exteriors, pow er sanding and needle gun. In these cases, using the Dust Study results from the surface of the plastic containment required by the rule, the geometric mean post-work floor dust lead levels that could be expected from work done using these types of tools without HEPA exha ust control are 591,491 μg/ft 2
for power sanding, and 195,372 μg/ft 2 for the needle gun.

In the Dust Study, the work practices requi red by the final RRP rule, containment, specialized cleaning, an d cleaning verification, were, in most cases, unable to reduce the29

dust lead levels remaining on the work area floors after power plan ing to anything close to the clearance standard of 40 μg/ft 2 . Accordingly, EPA banned the use of machines that remove lead-based paint through high speed operation without HEPA exhaust control.

EPA did not perform any experiments in the Dust Study with power tools equipped with HEPA exhaust control. Ho wever, EPA has subsequently reviewed 14 published studies that examined the effec tiveness of HEPA exha ust control on power tools (Ref. 2 3 0 ). These 14 studies reported reductions in airborne dus t levels ranging from 70 to 99 percent. However, most stud ies (9) reported reductions in airborne dust

levels between 90 and 95 percent. Applying a 90 to

- 95 percent reducti on to the postwork dust lead levels generated by the power tools in the Dust Study results in dust-lead levels of 20,190 μg/ft 2 to 10,095 μg/ft 2 for door planing, 59,149 μg/ft 2 to 29,575 μg/ft 2
for power sanding, and 19,537 μg/ft 2 to 9,769 μg/ft 2 for needle gun use. It is likely that the work practices required by the final RRP ru le will be unable to reduce these levels to anything approximating the cl earance level of 40 μg/ft 2 at the end of the job because of the quantity of the dust generated and the partic ular characteristics of this dust that make it hard to clean up.

In addition, in order to achieve 90

- to 95 percent effectiveness, the HEPA exhaust control must be maintained properly and used correctly. Any lapse in either maintenance or use could result in much higher dust le ad levels remaining after a renovation. For example, when sanding a mantle, if the renova tion worker moves half of the sander off the edge of the mantle, the HEPA exhaus t control will not be operating at maximum collection efficiency. The same problem w ould occur any time that the entire sander is not in contact with the surface, such as when sanding a curved surface.

With respect to the demolition of plas ter, EPA did not perform any experiments involving that kind of renovation activity in the Dust Study. However, demolition of several different plaster walls was studied in the EFSS. The EFSS measured worker exposures by personal air monitoring, and es timated occupant exposures by dust wipe sampling. Dust wipe sampling in the E FSS was done from stainless steel dustfall collectors placed at various lo cations adjacent to and at varying distances from the activity. The estimated lead loading over a 6 ft 2 area resulting from the demolition of a plaster wall was 19,500 μg, the highest loading fo r any of the typical activities studied. However, according to the EFSS, no colle ctors were placed adjacent to demolition activities “due to the large amount of debris.” (Ref. 10, at 9-10) EPA was able to determine the functional relationship between settled dust and distance for the demolition activity, but the relations hip “does not take into account th e amount of lead that settles at a location directly adjacent to the activity. Si nce the settled dust samples associated with

the demolition were all located at a distance fr om the activity space, the estimated 6-foot by 1-foot gradient lead loading in the de molition activity is interpreted as being the amount of lead found in the 6-foot by 1-foot re gion that was airborne in dust and smaller particles, rather than th e total amount of lead dist urbed.” (Ref. 10, at 9-10)

In the EFSS, EPA also reviewed data on plaster wall demolition available from OSHA (Ref. 10). The study monitored the de molition of interior plaster walls and30

ceilings in a home using hamme rs and claw-bars. This st udy involved only personal air monitoring, not settled dust sampling. The geometric mean worker exposure for the demolition activities studied by the EFSS was 107 μg/m 3 , while the geometric mean worker exposure for the OSHA study was 166 μg/m 3 . Because of the length of time involved in demolishing a plaster wall, both of these activities are likely to substantially exceed the OSHA permissible exposure limit of 50 μg/m 3 as an 8-hour time-weighted

average.

These studies demonstrate that plaster wall demolition creates large amounts of

lead-contaminated dust. EPA also believes that this dust is particularly difficult to clean up, because of the qualities of plaster and the way in whic h such demolition is typically done through destructive means such as sledge hammers. The dust created by this activity is likely to consist of very fi ne particles. EPA is concerne d that, like the dust produced by machines that remove pain t through high speed operation, th e large quantit ies of dust created by plaster wall demolition will overwhe lm the containment, specialized cleaning, and cleaning verification proce sses and result in renovation wo rk areas being re-occupied with lead-based paint ha zards created by the renova tion still in place.

Given these concerns, EPA is proposing to require renovation firms to follow a clearance process similar to that performed after abatemen t projects after renovations involving the disturbance of pa int using machines designed to remove paint through high speed operation or the demolition, or removal, through destructive means, of more than 6

ft 2 of plaster and lath building com ponent. After the cleaning required by 40 CFR 745.85(a)(5) and the cleaning verification required by 40 CFR 745.85(b)(1), dust wipe testing would have to be performed in exact ly the same way that it would be required

after the renovations discussed in Unit III.A.2. of this preamble. If any of the test results equal or exceed the regulatory clearance standards in 40 CFR 745.85(b)(4), the renovation firm would be required to re-clean the surfaces represented by those tests in accordance with 40 CFR 745.85(a)(5)(ii). Those su rfaces would have to be re-tested, and the results compared to the clearance standards.

With respect to plaster removal, the clearance requirement would apply only to walls, ceilings constructed of plaster and lat h, not gypsum drywall finished with plaster. The experiments performed and reviewed in th e EFSS involved plaster and lath walls, not drywall. In this country, interior walls were commonly c onstructed of plaster and lath until the 1950’s, when drywall began to repl ace the lath and plaster construction method. Again, this clearance requirement would onl y apply to plaster removal done through destructive means, such as sledgehammers.

This proposal would not allow renovation firms to skip the cleaning verification step when they are required to perform cl earance. The Dust Study demonstrates that cleaning verification is an important part of the cleaning process. Of the 10 experiments completed in the Dust Study in accordance with the final RRP rule requirements, 4 required the additional cleaning provided by cleaning verification to reach an average floor dust lead level below 40 μg/ft 2 (Ref. 14). The additional cleaning resulting from cleaning verification was particularly drama tic in the window replacement experiments,31

where the dust lead levels on the floor were cut nearly in half by cleaning verification. EPA is specifically requesting comment on cleaning verification requirements for surfaces that fail clearance due to high dust wipe test results. While the Dust Study shows that cleaning verification is a very effective cleaning method, EPA recognizes that there is a cost associated with multiple cleaning verification passes over a surface, particularly if the surface fails the wet di sposable cleaning clot h phase and must be allowed to dry for an hour before using a dr y electrostatic disposable cleaning cloth. Although not specifically studied, the Du st Study suggests th at it would be highly unlikely for a surface that had been cleaned and had gone through the cleaning verification process to fail another round of cleaning verificati on. Sixty interior experiments were performed in the Dust Study; only 3 work room floors failed all rounds of cleaning verification. Tw o of those were performed using only baseline work practices, no containment or specialized cleaning, on a vinyl floor in poor condition that EPA’s contractor had difficulty pre-cleaning to below 40 μg/ft 2 before beginning the study. The third was on a tile floor in fair condition, with plastic containment but no specialized cleaning. In addition, of the 4 experiments in the Dust Study performed in

accordance with the final RRP rule that need ed cleaning verification to reduce average floor dust lead levels below 40 μg/ft 2 , failed cleaning verificati on cloths were only seen

in 1. The reductions in dust lead levels seen in the window replacement experiments occurred after only 1 pass with a wet disposable cleaning cloth. In light of these results, this proposal would require surfaces failing clear ance due to high dust wipe test results to be recleaned in accordance with the RRP rule, HEPA vacuuming followed by wet wiping or mopping, followed by one round of cleani ng verification using a wet disposable cleaning cloth. This cloth would not have to be compared to the cleaning verification card, the renovation firm could conduct a dditional dust wipe testing for clearance purposes on the surface as soon as it has dried.

EPA is also proposing to eliminate the existing provision thatallows renovation firms to perform clearance in lieu of cleaning verification when another Federal, State, or local law or regulation, or the contract between the re novation firm and the property owner, requires the renovation firm to use qua lified entities to perform dust wipe testing and requires the renovation firm to achieve cl earance. Because cleaning verification has been shown to be such an important part of the post-renovation cleaning process, and because that provision would be inconsistent with this proposal, EPA believes that it should be eliminated. Rather, this proposal would require cleani ng verification to be performed in the same way it would have to be performed after jobs involving demolition or removal of plaster through destructive means or the disturbance of paint using machines designed to remove pain t through high-speed operation.

The renovation would not be considered complete, and the warning signs would have to remain in place, until the renovati on firm can demonstrate through a dust wipe testing report that it has met the clearance st andards. The certified inspector, certified risk assessor, or certified dust sampling tec hnician performing the sampling or testing would be required to prepare a clearance repo rt. The clearance repo rt would include the start and completion dates of th e renovation; a brief written de scription of the renovation;

the name and address of each certified firm employing each certifie d inspector, certified32

risk assessor, or certified dust sampling tec hnician performing the clearance procedures; the name and signature of each certified inspec tor, certified risk asse ssor, or certified dust sampling technician performing the clearance pr ocedures and the dates that the clearance procedures were performed; the results of the visual inspection; a detailed written description of the specific sampling or testing locations or a detailed drawing that clearly identifies the location of each sample or test; the results for each dust wipe sample or test; whether or not clearance was achieved; a nd the name of each recognized entity that conducted the analyses. As with the dust testing report, EPA does not expect long, involved narrative descriptions in these reports. The results of the visual inspection could be as simple as “no dust, debris, or residue was visible in the work area,” while the brief written description of the renovation could be as simple as “replaced all of the windows in the upstairs bedrooms.” However, the re port should be organized and presented in such a way that the recipients of the re port will be able to easily understand the information presented. The report must be a single document, with clearly-identifiable attachments, such as analytical reports from NLLAP laboratories, wh ere appropriate. If a significant number of tests ar e involved, the certified indivi dual preparing the report should incorporate an executive summary presenting the ove rall results, with particular

attention to those results that exceeded the applicable clearance standards.

The certified inspector, certified ri sk assessor, or certified dust sampling technician would be required to provide a copy of this report to the renovation firm within 3 days of the date that the dust wipe testing results are obtained. If the dust wipe testing results are to be determined by a fixe d-site laboratory, the samples would have to be sent to the laboratory with in 1 business day of the date that they are collected. The renovation firm would be required to provide th is report to the owne r of renovated target housing or child-occupied facilities within 3 da ys of the date that the renovation firm receives the report. The renovation firm would also have to provide the report within 3 days of receipt to the occupants of indivi dual housing units that have been renovated, if the housing units are not owner-occupied. Si milarly, the report would have to be provided within 3 days to the proprietor of re novated child-occupied f acilities if they are not operated by the building owner. If the renovation firm has chosen to notify each individual housing unit affect ed by a renovation in a common area of target housing, or each parent or guardian of a child under ag e 6 using a renovated ch ild-occupied facility, the renovation firm would also have to provi de these persons with the dust wipe testing report within 3 days of the date that the re novation firm receives the results. In cases where the renovation firm has chosen to post signs to notify tenants affected by common area renovations, or parents and guardians of children under age 6 us ing a child-occupied facility, the renovation firm would have to provide the dust wipe testing report when requested.

In most cases, renovation firms will be able to avoid using the work practices that would require clearance afterwards. Sanding or scrapi ng could be done by hand instead of by power tool. Many plaster removal jobs can be performed by using non-destructive means such as saws and pry-bars to remove sec tions of plaster and lath wall. At the same time, EPA also understands that renovation firms may encounter floors, windowsills, and window troughs that are in such poor condition that clearance may not be possible. As33

discussed previously, the HUD Guidelines recommend using a sealant on floors if necessary to achieve clearance (Ref. 15). The Guidelines suggest that, if any surface fails two clearance tests, the “property owner should consider additi onal hazard control measures and/or further sealing of the surface.” (Ref. 15, at 15-10) EPA’s own experience with the Dust Study confirms th at surface condition may be a problem, at

least in some instances. Afte r several encounters with work room floors that could not be cleaned to the clearance standards in prepar ation for a new experiment, the Dust Study contractors began using a sealant before tes ting floors in preparation for beginning work (Ref. 2 4 1 ). When this occurred with windowsills, the contractors used dust collection trays instead of the sill su rface for sampling.

Various studies have shown that dust lead levels on surfaces are directly

correlated with the condition of the surface. Th at is, a surface, such as a floor, in poor condition tends to have higher dus t lead levels than a floor in fair to good condition. An

evaluation of the HUD Lead-Based Paint Haza rd Control Grant Program found that the “effect of the condition of the wiped surface at clearance was significant in all analyses.

The surfaces in better condition at clearance had lower clearance dust lead loadings and lower failure rates.” (Ref. 2 18 2 , at 7-20) EPA’s Dust Study also found that floors in poor condition had higher dust lead levels across the post-work, post-cleaning, and postcleaning verification sampling stages than fl oors in better conditi on, although this could have been due to higher-intensity work (Ref. 14, at 6-14). EPA requests comment on

whether this correlation should a ffect clearance or dust wipe testing requirements, and if, so, in what way. EPA is interested in sugge stions on how to address the fact that some

floors will be more difficult to clean than others.

In particular, EPA has wrestled with th e issue of how to reconcile a clearance requirement when floors are in such poor condition that achieving clearance would require the renovation firm to expand the scope of the original job to include additional

remedial action such as refinish ing the floor. In part, this s ituation raises the concern that renovation firms might be required to remediat e lead hazards that existed prior to the

renovation. To address the situation where ach ieving lead levels be low the lead hazard standards would require expanding the scope of the renovation job, EPA is proposing an exception to the requirement to achieve clea rance. Specifically, EPA proposes to allow renovation firms to stop after the second failed cl earance test, regardless of the result, if the renovation firm did not agree to refinish th e surface that is failing clearance as part of

the renovation contract. For ex ample, if a renovation firm is hired to remove plaster and lath wall sections that partially separate a living and dining room, and repaint the walls (including the windows) in both rooms, then the renovation firm would be required to

ensure that the windowsills in the work area achieve clearance, no matter how many

times the sills must be re-cleaned and re-tes ted. However, if the renovation firm was not hired to refinish the floor, the renovation firm would only have to re-clean and re-test the

floor once if it failed clearance the first time , no matter what the second dust wipe testing result is. EPA believes that such a provisi on is necessary, given that renovation firms may encounter floors, windowsills, and window troughs that are in such poor condition that clearance may not be possible34

EPA is also requesting comment on whet her renovation firms ought to be allowed to perform pre-renovation dust wipe testing on su rfaces in the work area that are in poor condition to help demonstrate that they are not leaving behind dust-lead hazards that they created. In this option, the renovation firm would only have to demonstrate that, for surfaces in poor condition in the work area, the dust-lead levels on these surfaces (which could be windowsills and/or floors) after the renovation are no higher than 150 μg/ft 2

This would ensure that renovation firms ar e not unduly held accountable for pre-existing lead-based paint hazards. EPA believes that 150 μg/ft 2 is an appropriate upper limit, given that EPA’s contractor was able to clean all of the floors encountered in the buildings used for the Dust Study to this level or below (Ref. 14). EPA requests comment on whether there is an appropriate alternate upper limit that should be considered and the available data to suppor t this alternat e limit. Any pre-renovation testing option would also incl ude a requirement to provide both the pre-renovation dust wipe testing report as well as the post-renovation report to the building owners and

occupants. As part of its consideration, EPA re quests comment on how “poor condition” should be defined for this approach.

EPA believes that window troughs are part icularly likely to harbor pre-existing

dust lead levels at or above the clearance standa rds. They are also particularly likely to be difficult to clean. Therefore, EPA is requesting comment on whether EPA should

allow renovation firms to close windows in the work area that are not being worked on and cover them with taped-down plastic or other impermeable material to avoid the requirement to ensure that the window troughs achieve clearance standards. EPA would still require renovation firms to test both the sills and tr oughs of closed and covered windows, and report the results to the buildi ng owners and occupants, but firms would only need to ensure that the sills achieve the clearance standards.

EPA is also requesting comment on whethe r clearance should be required in other situations. In particular, EPA is interest ed in comment on whethe r clearance should be required after any of the ac tivities for which EPA is pr oposing a dust wipe testing requirement. EPA is also interested in co mment on whether clearan ce should be required in rental properties after renovations for which EPA is proposing a dust wipe testing requirement, especially if the renovation firm has been informed that the renovation is being performed to remedy a violation of federal, state, or local laws or regulations or to comply with a federal, state, or local govern ment order, such as an order to correct building code violations , or an abatement order in res ponse to an elevated blood lead

level . In this case, EPA is also interested in comment on whether EPA should require renovation firms to affirmatively ask whether the work is being performed to remedy a violation or comply with an order, and whether renovation firms should provide this information to owners and occupants af ter the renovation. Finally, EPA requests comment on whether dust wipe testing or cl earance should be required in any other situations not discussed specifically in this proposal, including situ ations where a surface has failed cleaning verification twice.

4. Additional requests for comment on dust wipe testing or clearance.35

EPA is also seeking comment on whether there ar e other regulato ry options for dust wipe testing or clearance that maximize the potential benefits by targeting those activities that are most likely to exceed the clearance stan dards. For example, should

different size thresholds be used for some or all of the renovations affected by this proposal? As discussed, the proposed thresholds for dust wipe testing are taken from the Dust Study. Does the data from the Dust Study, or data from another source, support larger thresholds for some or all of these jobs? Another possible regulatory option would be to require clearance for renovations involvi ng the demolition of plaster or the use of high

- speed machines designed to remove paint, or a larger set of renovation types, and not require d ust wipe testing in the absence of a clearance requirement. EPA requests comment on these options and suggestions for other regulatory options that may be less burdensome but still justifiable based on the available data. Although EPA is concerned about potential confusion with the definition of minor maintenance and repair, does the data from the Dust Study support applying these pr oposed thresholds on a per-room basis?

Another potential option would be to apply dust wipe testing or clearance requirements only in homes where pregnant wo men or children under age 6 reside or in any building that meets the definition of ch ild-occupied facility. EPA requests comment on this option, which does targ et particularly vulnerable populations but provides no protections for older children, adults and family pets.

EPA also requests comment on whether dus t wipe testing should only be required

when a surface fails the first round of cleani ng verification, and, if dust wipe testing is done, whether the second round of cleaning verifi cation should then be performed. In the Dust Study, if a surface failed the first r ound of cleaning verification, no dust wipe samples were collected before the surf ace was cleaned and cleaning verification performed again (Ref. 14). This occurred in 17 of the 60 interior experiments performed.

Three of those surfaces also failed the second round of cleaning verifi cation. In each of those 3 cases, at least one surface was also demonstrated to be above the regulatory clearance standards by dust wipe testing. Since no dust wipe samples were collected

after the first round of cleani ng verification, it is not possibl e to determine, for certain,

what additional reductions in dust lead levels we re attributable to the second round of cleaning verification. However, some insigh t is provided by the reductions in dust lead levels made by the first round of cleaning veri fication. In many of the experiments that passed the first round of cleaning verification, the cleaning verification step resulted in significant dust lead reductions between th e samples taken post-cleaning and the samples taken post-cleaning verification. Thus, the Dust Study demonstrates that the cleaning verification protocol in the 2008 RRP rule is an integral pa rt of the cleaning regimen. Because the second round of cleaning verifica tion likely contributes significantly to the

total reduction in dust le ad levels attributable to clean ing verification, EPA continues to

believe that the second round of cleaning verification is a nece ssary step in the process, regardless of whether dust wipe samples are collected or not.

Another possible regulatory option would be to require cleara nce for renovations involving the demolition of plaster or the use of high-speed machines designed to remove paint, or a larger set of renovation types, or smaller re novation size thresholds, and not require dust wipe testing in the absence of a clearance requirement. EPA requests36

comment on these options and suggestions for other regulatory options that may be less burdensome but still justifiable based on the available data.

B. Test Kits for Lead in Paint

EPA has worked with test kit vendors to develop kits that can more accurately identify the presence of regulated lead-b ased paint. Through its Environmental Technology Verification (ETV) progr am, EPA is currently review ing five test kits that have been submitted by vendors. More information on this process can be found at http://www.epa.gov/lead/pubs/testkit.htm#recognize

.

EPA is also proposing to give certifie d renovators another option for determining whether lead-based paint is present on com ponents to be affected by a renovation. This proposal would permit certified renovators to collect paint chip samples from components to be affected by a renovation instea d of using test kits to test the paint on the components. When utilizing this option, the certified renovator would be required to send the samples to a recognized NLLAP labor atory. Because renova tor training courses are already required to include training in how and where to use test kits, EPA believes that it would take very little additional time to also provide renovators with training in how to collect a chip sample such that all paint layers are present with a minimal amount of substrate included in the sample, and how to submit these samples to an NLLAP laboratory for analysis. Such an opti on would not make a certified renovator the equivalent of a certified lead-b ased paint inspector. Certif ied renovators would still have to test each affected component, they w ould not be permitted to exclude components based on similar painting histories or pe rform random paint sampling in multi-unit buildings. EPA is proposing to allow certifie d renovators to collect paint chip samples instead of using test kits in order to provi de maximum flexibility for certified renovators

and renovation firms.

C. Training Provider Accreditation

Training providers who wish to provid e renovator, dust sampling technician, or lead-based paint activities training for Federa l certification purposes must apply for and

receive accreditation from EP A. To become accredited, a provider must employ a training program manager as well as principa l instructor(s) who m eet certain education, training and work experience requirements. The training provider must indicate on its application for accreditation that the training program manager and principal instructor(s) meet these requirements; however, currently, no documentation ( e.g. , resumes) regarding the qualifications of these individuals must be submitted to EPA. The Agency believes it is important to review this information when determining whether to approve a training provider application. When EP A reviews applications for a ccreditation, it is common for the Agency to request this documentation from training providers in order to verify that the training program manager and principal inst ructor(s) have the proper qualifications. Requesting this information takes time and can delay the review of an application. Therefore, the Agency is proposing to require that traini ng providers submit documentation regarding the qualifications of the education, training and work37

experience of training managers and principal instructors wi th their applications for

accreditation.

EPA is also proposing to clarify the ro le of principal instructors in teaching courses. The current regulation, at 40 CFR 745. 227(c)(3), states that principal instructors are responsible for the organization of their courses and oversight of the teaching of all course material. The regulations also define “principal instructor” as “the individual who has the primary responsibility for organi zing and teaching a particular course.” Nonetheless, the rule also allows training program managers to designate experts in a particular field (e.g., doctors or lawyers) as gue st instructors, on an as needed basis, to teach discrete portions of the course. EPA interprets these provisions to require a principal instructor to be present and pr imarily responsible for teaching the course, although guest instructors may be used to teach some portion(s) of the course. Principal instructors are also responsible for the quali ty of the instruction delivered by the guest

instructors. To ensure that the regulation is clear on this point, EPA is proposing to amend 40 CFR 745.227(c)(3) to state that principa l instructor(s) are primarily responsible for teaching the course materials and must be present to provide instruction (or oversight of portions of the course taught by guest instru ctors) for the course for which he has been designated the principal instructor.

The final RRP rule included requirement s for amending the certification of a

renovation firm. Firms must submit an amendm ent within 90 days of the date that a change occurs to information in its most recent application fo r certification or recertification. Examples of amendments incl ude a change in the firm’s name without transfer of ownership, or a change of addre ss or other contact information. To amend its certification, a firm must submit an applic ation, noting on the form that it was submitted as an amendment. The firm must complete the sections of the a pplication pertaining to the new information, and sign and date the form. EPA has interpreted the training provider accreditation regulati ons to require accredited tr aining providers to submit amended applications whenever there is a change to the information provided in the training provider’s most recent application fo r accreditation or re-accreditation, including information regarding the training manager and any principal in structor(s) teaching courses offered by the training provider. However, the existi ng regulations do not specify a time limit for submitting an amendment. Therefore, the Agency is proposing to require training providers to submit amendments within 90 days of the date a change occurs to information in each provider’s most recent application. If the training provider does not amend its most recent accreditation application within the 90-day time period, it must stop providing training until the accredita tion application is amended. The Agency is also proposing to approve or disapprove amendments for a new training manager, any new or additional principal instructor ( s ) , or any new permanent training location within 30 days of the date EPA receives the amendment. This 30-day time period will give EPA sufficient time to check the qualifications of the training manager(s) or principal instructor(s) before the training manager be gins managing or the principal instructor begins teaching a course. This 30-day time period would also give EPA sufficient time to verify the suitability of a new permanent tr aining location by visi ting the location. The training provider would not be permitted to provide training under the new training38

manager or offer courses taught by any new prin cipal instructor(s) or at the new training location until EPA either approves the amendm ent or 30 days has pa ssed. Finally, this proposal would also clarify that no fee will be charged for accreditation application or

certification amendments.

To become accredited, a training provider must submit a copy of its training

course materials with it s application for accreditation for review by the Agency. If a training provider chooses to use the mode l course developed by EPA or a course approved by an authorized State or Indian Tr ibe, then it is not currently required to submit the course materials with its applica tion. Instead the trai ning provider indicates on its application that it will use the EPA m odel course or a course approved by an

authorized State or Indian Tribe. Author ized States and Indian Tribes can have renovation or abatement programs that are significantly different from the EPAadministered program which would be reflecte d in their approved course materials. In these instances, a training course approved by the State or Indian Tribe may not be sufficient for the purposes of training some one on the requirements of the federal program. Therefore, the Agency is proposing to require training pr oviders who apply to

EPA for accreditation and wish to use a course approved by an authorized State or Indian

Tribe to submit the course materials for EP A review. This will give the Agency the opportunity to identify and addr ess any significant differences between the requirements of EPA and the authorized program that may appear in the course so the Agency can ensure that EPA-accredited training providers are using appropriate course materials. Training providers wishing to use the EPA model courses would not be required to submit those materials with their applications.

As a matter of clarification, web-based training and other ty pes of alternative training delivery are permitted. In fact, EPA has developed a model on-line renovator

course that could be used to deliver the classroom portion of the renovator course. While such alternative training delivery options ca nnot be used to deliver required hands-on training, EPA encourages training providers to make use of such options where appropriate to increase acce ss to training and make it more affordable. Web-based training courses are considered separate course s and a separate application fee is required

for each. This is because EPA must review not only the content of the course, but the mechanics of the delivery of the course.

EPA’s model electronic tr aining courses contain certai n basic administration and delivery requirements. These include assign ing a unique identifier to each student, to allow the training provider to track student course progre ss and completion. In addition, there are knowledge checks for each chapter, which must be completed before the student can go on to the next chapter, and a final te st for the electronic learning portion which consists of at least 20 questions. Finally, st udents must be able to save or print an uneditable copy of a record certificate showing completion of the electronic learning portion of the course. Under this proposal, these requirements would be explicitly incorporated into 40 CFR 745.225 to ensure th at all training providers wishing to use electronic learning for the clas sroom portions of lead-based paint courses are aware of these requirements and plan their course development accordingly. EPA requests comment on the specifics of these requirement s, such as whether a course test of 2039

questions is sufficient and wh ether a student should be re quired to score at least 80 percent on the course te st in order to pass the classroom portion of the renovator course

. EPA also requests comment on whether a fina l test for the electr onic portion of the course is necessary, given th at trainees must pass a hands -on skills assessment and the

course test in order to re ceive a course completion certificate. EPA also requests comment on whether other requirements shoul d likewise be incorporated into the regulations.

EPA is requesting comment on whether tr aining providers s hould be allowed to provide a combined Abatement Worker/Re novator refresher course or a combined Abatement Supervisor/Renovator refresher co urse or both. After the RRP rule was promulgated, EPA received input from the regul ated community and ot hers that indicates that many abatement contractors are likely to also become certified renovation firms. If this is the case, it would be advantageous for such firms to be able to send their employees to combined refreshers so that the employees would more readily be able to keep up their dual certifications. EPA request comment on the likelihood that this will be the case, and, if combined refreshers are desi rable, whether the diffe rent certification time periods for individual abatement certificat ion (3 years) and individual renovator certification (5 years) should be harmonized and, if so, how

.

Finally, EPA is proposing to require trai ning providers to maintain renovator and dust sampling technician training records for a period of 5 years. Under the existing regulations, training providers must keep traini ng records for 3 years and 6 months. This length of time was chosen because of the length of individual certification periods for lead-based paint activities, which can be as long as 3 years and 6 months including interim certification. However, the renovato r and dust sampling tech nician certification periods are 5 years, with no inte rim certification. Therefore, in order to ensure that the training records from the prev ious training course are ava ilable for certified renovators and dust sampling technicians taking refr esher courses, the recordkeeping period applicable to these disciplines would be increased to 5 years.

D. State, Territorial, and Tribal Program Authorization

Interested States, Territories, and Indi an Tribes may apply for, and receive authorization to, administer and enforce all of the elements of the RRP program. The regulations for the State and Tribal program requirements are found in 40 CFR Section 745.326. Under this proposed rule EPA is clarif ying several parts of this section. First, the Agency is amending the regulations to ma ke it clear that State and Tribal programs do not need to include requirements for the accred itation of dust sampling technicians if they are going to require dust sampling to be pe rformed by a certified inspector or risk assessor. Second, the Agency is proposing to amend the regulations to reflect that both

individuals and firms must re ceive certification. Finally, EPA is proposing to require State and Tribal renovation programs to incl ude procedures and requirements for on-thejob training of renovation wo rkers that do not receive accredited training.40

Strong enforcement of the lead-based pa int regulations by au thorized State and Tribal programs is critical to ensuring the sa fety of the occupants of target housing and child occupied facilities unde rgoing lead abatement, renovatio n, repair or painting. The State and Tribal program author ization requirements at 40 CFR § 745.327 include provisions for approval of compliance and enfo rcement programs. Specifically, State and Tribal programs must have adequate complian ce monitoring and enforcement authorities. Section 745.327(b)(3)(ii) require s “[a]dministrative or civ il actions including penalty authority...” but the rule does not estab lish a minimum penalty level or other requirements for enforcement authorities comp arable to EPA authorities under TSCA. To remedy this, EPA is proposing that in order to be authorized for any of the lead certification programs , State or Tribal programs demonstr ate that: (1) the State or Tribe be able to sue to obtain penalt ies, (2) civil and criminal pena lties are assessable for each instance of violation, (3 ) if violations are co ntinuous, the penaltie s are assessable up to the maximum amount for each day of violation, a nd (4) the burden of proof and degree of knowledge or intent of the respondent is no gr eater than it is for EPA under TSCA. EPA is also requesting comment on whether a mini mum penalty level for civil and criminal fines ought to be established, and, if so, wh at the minimum level for each should be. States and Tribes may be authorized to administer a number of EPA programs ; , some of these programs have minimum penalty requi rements for State and Tribal programs and some do not. For example, under the Clean Air Act implementing regulations at 40 CFR 70.11(a)(3) and the Resource Conservation and Recovery Act implementing regulations at 40 CFR 271.16(a)(3), State pr ograms must have the aut hority to assess civil and criminal fines of at least $10,000 per day per violation. Other progr ams have established lower minimum penalty requirements. Th e implementing regulations for the Safe Drinking Water Act require State programs to ha ve the authority to im pose a penalty of at least $1,000 per day per violati on on public water systems serving a population of more than 10,000 individuals. Some EPA programs have set no minimum penalty authority requirements for States and Tribes; thes e programs include the Asbestos Hazard Emergency Response Act program and the St ate pesticide applicator certification program under the Federal Insecticide, F ungicide, and Rodenticide Act. EPA is proposing that in order to become authorize d, State and Tribal lead-based paint programs must have minimum civil and criminal pe nalty authorities of at least $10,000 per violation per day. EPA requests comment on whether proposing minimum levels for the maximum civil penalty and criminal fine rec overable under a State or Tribal program is necessary to ensure that en forcement is adequate and, if so, whether $10,000 should be the minimum level. EPA also requests comment on whether such a minimum requirement would appropriatel y promote consistency across au thorized State and Tribal programs. In addition, EPA is requesting comment on whether these minimum levels should also be adjusted periodically to account for inflation, as required for Federal penalties under Federal Civil Penalties Inflation Adjustme nt Act of 1990, 28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 1996, 31 U.S.C. 3701 note. One way of doing this would be to require State and Tribal programs to have minimum civil penalty authority of 40 percent % of the Federal maximum penalty authority under TSCA section 16, as adjusted for inflation, at the time the State or Tribe is authorized. However, this approach would result in di fferent requirements fo r States and Tribes depending upon when they apply for aut horization. Another way of accomplishing41

inflation adjustments would be to require State and Tribal authorized programs to have their own established mechanism for adjusti ng penalties to account for inflation. By requiring all authorized programs to make adju stments for inflation, this approach might be more likely to promote enforcement consistency across programs. Also in the interests of promoting national enforcemen t consistency, EPA requests comment on what

criteria States or Tribes s hould consider, such as the si ze of a respondent’s business, ability to remain in business, enforcemen t history, or risk posed by the respondent’s actions, in establishing or mitigating penalties.

E. Other Proposed Amendments to the Final RRP Rule

1. Containment. EPA is proposing to be more specific about the vertical containment requirements for exterior projec ts. Under this proposal, the rule would specifically state that vertical containment is required for exterior renovation projects that are covered by the rule and that affect painted surfaces within 10 feet of the property line. In such cases, vertical containment is nece ssary to ensure that adjacent buildings or properties are not contaminated by leaded dus t or debris generated by the renovation.

The rule would also note that vertical containment may be required in other situations, such as windy conditions, to prevent contamin ation of other buildings, other areas of the property, or adjacent buildings or properties. Finally, to clarify what is meant by the term “containment,” this proposal would add a de finition of the term that is based on the definition of “Worksite preparation level” from the HUD Guidelines. The definition

includes additional information on what constitutes vertical containment.

2. Prohibited or restricted practices

. EPA is proposing to clarify that the prohibitions and restrictions on work pr actices in 40 CFR 745 .85(a)(3), e.g., the prohibition on open flame burning or torching, apply to all painted surfaces, not just surfaces where the presence of lead-based pa int has been confirmed. The term “leadbased paint” was incorrectly and inadvertently used in this subsection, making it

inconsistent with the rest of the RRP rule, which applies in the presence of known leadbased paint as well as paint that has not been tested for lead content. This proposal would replace the term “lead-based paint” with “pai nted surfaces” in this subsection. Of course, if the painted surface has been tested and found to be free of lead-based paint, the prohibitions and restrictions on work practices in the fina l RRP rule do not apply. In addition, EPA wishes to clarify that the restriction on the us e of machines that remove paint through high speed operation applies wh ere painted surfaces are being disturbed by

such machines. The restriction is not limite d to situations where all of the paint is removed by such machines. Finally, EPA has received several requests for clarification on what is meant by HEPA exhaust control. In order to better express what is required when machines designed to remove paint th rough high speed operation are used, EPA is using terminology from the Occupational Safe ty and Health Administration’s Technical Manual (Ref. 2 5 3 ). The use of shrouded tools to rem ove lead-based paint is discussed in Chapter 3 of Section V, entitled “Control ling Lead Exposures in the Construction Industry: Engineering and Work Practice Controls.” Therefore, this proposal would amend 40 CFR 745.85(a)(3)(ii) to read, “The us e of machines designed to remove paint through high speed operation such as sa nding, grinding, power planing, needle gun,42

abrasive blasting, or sandblas ting, is prohibited on painted surfaces unless such machines are used shrouded and equipped with a HEPA vacuum attachment to collect dust and debris at the point of generation.”

3. HEPA vacuums . EPA is proposing to clarify that vacuums qualifying as HEPA vacuums for the purposes of this rule must be operated and main tained in accordance

with the manufacturer’s instruct ions in order to continue to qualify as HEPA vacuums. This includes following the manufacturer’s f ilter change interval recommendations. EPA would also like to clarify that the standard for HEPA filters, that they be capable of capturing particles of 0.3 microns with 99.97% efficiency, means that the filters must have a Minimum Efficiency Reporting Value (MERV) of 17 or greater (Ref. 2 6 4 ). EPA

recommends that renovation firms have information from verify with the manufacturer that the particular model of vacuum that the renovation fi rm intends to use, or the vacuum’s HEPA filter, has been tested in accordance with an applicable test method s , such as ASTM F1471-09, “Standard Test Me thod for Air Cleaning Performance of a High-Efficiency Particulate Air- Filter System,” and has been determined to meet this standard (Ref. 2 7 5 ).

4. On-the-job training . EPA is proposing to clarif y that the RRP rule requires

certified renovators to train other renovation workers in only the work practices required by the RRP rule that the workers will be usi ng in performing their assigned tasks. EPA did not intend to require trai ning in any other subjects, such as how to paint or how to connect pipes. Therefore, EPA is propos ing to amend 40 CFR 745.90(b)(2) and (b)(4) to refer specifically to the work pract ice requirements in 40 CFR 745.85(a).

5. Grandfathering . Under the final RRP rule, individuals who successfully completed an accredited abatement worker or supervisor course, and individuals who successfully completed the HUD, EPA, or the joint EPA/HUD model renovation training courses may take an accredited refresher renov ation training course in lieu of the initial renovation training to become a certified renova tor. In addition, individuals who have successfully completed an accredited lead-based paint inspector or risk assessor course, but are not currently certified in the discip line, may take an accredited refresher dust sampling technician course in lieu of the initial training to be come a certified dust sampling technician. EPA inadvertently did not address a time limit in the RRP rule for taking the initial course in lieu of the refr esher. Many of the commenters who addressed the issue of grandfathering contended that there should be restri ctions based on how much time elapsed since the training was take n. Further, under th e lead-based paint activities regulations at 40 CFR 745.226, EPA allowed a similar grandfathering provision but only for a limited time. In today’s notice, EPA is proposing to set a limit on when an individual can take advantage of the grandf athering provision under the RRP rule. Under today’s proposal, renovators and dust sampli ng technicians who ta ke the appropriate prerequisite course before July 31, 2011, may take an accredited refresher training course in lieu of the initial training. This time frame is consistent with some of the time limitations suggested in comments on the RRP rule (Ref. 1 at 21724).43

6. Hands-on requirements Refresher courses

. 40 CFR Section 745.225 includes requirements and procedures that training pr ograms must follow to become accredited in order to provide instruction in lead-based paint courses. Minimum requirements for training curricula are found in th is section, which list course t opics that must be included in the different training courses with an i ndication of the topics that require hands-on instruction. However, EPA inadvertently omitte d indicating which course topics required hands-on training for the renovator and dust samp ling technician discip lines. Under this proposed rule, EPA identifies in 40 CFR 745.227(d) which topics in the renovator and dust sampling technician courses require ha nds-on training. For further clarification, EPA is proposing to add a sentence to 40 CFR 745.227(e)(2) the regulations stating that

refresher courses for all disciplines except project de signer must include a hands-on

component.

7. Dust sampling technicians . Individuals who successfully complete an accredited lead-based paint inspector or risk assessor course, but are not currently certified in the discipline, may take an accredited refresher dust sampling technician course in lieu of the initial training before April 22, 2011 to become a certified dust sampling technician. Inspectors and risk assessors who are certified by EPA or an authorized state program are qualified to perf orm dust sampling as part of lead hazard screens, risk assessments, or abatements. Therefore, it would be unnecessary for a certified inspector or risk assessor to seek ce rtification as a dust sampling technician. The regulations promulgated in the RRP rule explai ned who is eligible to take the refresher dust sampling technician course in lieu of th e initial training. However, the regulations did not explicitly say that a certified insp ector or risk assessor could perform dust sampling. In order to clarif y the intent of the regulation, EPA is proposing to amend 40 CFR 745.90(a)(3) to specifically st ate that a certified inspector or risk assessor may act as a dust sampling technician.

8. Trainee photographs . Accredited training progra ms are required to issue a course completion certificate for each person who passes a training c ourse. A variety of information is required to be on the certifi cate including the name of the course, the name and address of the student, and contact info rmation for the training program. Course certificates for renovators or dust sampling t echnicians must include a photograph of the student. Since publishing the RRP rule

, the Agency has been asked if there is a minimum size for the photograph. Currently, there are no t size requirements or other specifications for the photograph on a course completion certifi cate. Nonetheless, EPA believes that it would be beneficial to have such requiremen ts to ensure that th e person in the photograph is recognizable. Thus, EPA is proposing to require that the photographs on course completion certificates be an accurate and reco gnizable image of the trainee and at least one square inch in size. EPA is requesting comments on whether the image quality requirements should be more specific, e.g. , more quantitative.

9. Training requirements . As stated previously, 40 CFR Section 745.225 includes requirements and procedures that training pr ograms must follow to become accredited in order to provide instruction in renovator, dus t sampling technician, and lead-based paint

activities courses. The final RRP rule amended Section 745.225 to cover persons who44

provide or wish to provid e renovator or dust sampling technician training for the purposes of the final RRP rule. There are some instances where the regulations do not specifically mention the renovator or dust sa mpling technician courses even though the regulations apply to those courses. For example, 40 CFR Section 745.225(c)(14) explains the requirements which a training provider must follow when submitting

notification to EPA after the completion of a training. However, the conforming changes, i.e., to replace “lead-based paint activities courses” with “ren ovator, dust sampling technician, and lead-based pain t activities courses,” were not made to every subparagraph even though all the requirements of that section apply to those courses. Consequently, EPA is proposing to clarify that the requirements in 40 CFR Section 745.225 apply to renovator and dust sampling technician courses in addition to lead-based paint activities courses. These changes do not alter the requirements but merely clarify them.

IV. References

1. U.S. Environmental Protection Agen cy (EPA). Lead; Renovation, Repair, and Painting Program; Final Rule. Federal Register (73 FR 21692, April 22, 2008) (FRL– 8355–7).

2. EPA. Air Quality Criteria for Lead (October 2006).

3. EPA. Lead Exposure Associated W ith Renovation and Remodeling Activities: Phase III, Wisconsin Childhood Blood-L ead Study (EPA 747-R-99-002, March 1999).

4. U.S. Department of Health and Huma n Services (HHS), U.S. Public Health Service (PHS), Centers for Disease Cont rol and Prevention (CDC). Children with

Elevated Blood Lead Levels Attributed to Home Renovation and Remodeling Activities-- New York, 1993-1994. Morbidity and Mortal ity Weekly Report (45(51); 1120-1123, January 3, 1997).

5. HHS, PHS, CDC. Children with Elevat ed Blood Lead Levels Related to Home Renovation, Repair, and Painting Activities – New York St ate, 2006-2007. Morbidity and Mortality Weekly Report (58( 03); 55-58, January 30, 2009).

6. Reissman, Dori B., Thomas D. Matte , Karen L. Gurnite, Rachel B. Kaufmann, and Jessica Leighton. ‘‘Is Home Renovation or Repair a Ri sk Factor for Exposure to Lead Among Children Residing in New York City?’’ Journal of Urban Health: Bulletin of the New York Academy of Medici ne. Vol. 79, No. 4, 502-511, December 2005.

7. Jones, Robert L., David M. Ho ma, Pamela A. Meyer, Debra J. Brody, Kathleen L. Caldwell, James L. Pirkle, a nd Mary Jean Brown. “Trends in Blood Lead Levels and Blood Lead Testing Among U.S. Children Aged 1 to 5 Years, 1988-2004.”

Pediatrics: Official Journal of the Ameri can Academy of Pediatrics. Vol. 123, No. 3, pp.

e376- e 385, March 2009.45

8. EPA. Lead; Requirements for Lead-based Paint Activities; Final Rule. Federal Register (61 FR 45778), August 29, 1996).

9. EPA. Lead; Identification of Da ngerous Levels of Lead; Final Rule. Federal Register (66 FR 1206, January 5, 2001).

10. EPA. Lead Exposure Associat ed With Renovation and Remodeling Activities: Phase I, Environmental Field Sampling Study (EPA 747-R-96-007, May 1997).

11. EPA. Lead Exposure Associat ed With Renovation and Remodeling Activities: Phase II, Worker Characte rization and Blood-Lead Study (EPA 747-R-96- 006, May 1997).

12. EPA. Exposure Associated With Renovation and Remodeling Activities: Phase IV, Worker Characterization a nd Blood-Lead Study of R&R Workers Who Specialize in Renovation of Old or Histor ic Homes (EPA 747-R-99-001, March 1999).

13. EPA. Lead; Renovation, Repair, a nd Painting Program; Proposed Rule. Federal Register (71 FR 1588, January 10, 2006) (FRL-8355-7).

14. EPA. Characterization of Dust L ead Levels After Renovation, Repair, And Painting Activities. (November 13, 2007).

15. U.S. Department of Housing and Urban Development (HUD). Guidelines for

the Evaluation and Control of Lead-Based Paint Hazards in Housing (June 1995).

16. EPA. Electrostatic Cloth and Wet Cloth Field Study in Residential Housing (September 2005).

17. Rx Solutions International/BTS Laboratories Inc. Comment on EPA’s Proposed Renovation, Remodeling, and Pa inting Program. EPA-HQ-OPPT-2005-0049- 0483. May 22, 2006.

18. HUD. Evaluation of the HUD Lead-Bas ed Paint Hazard Control Grant Program: Final Report. May 1, 2004. http://www.hud.gov/offices/lead/library/misc/NatEval.pdf

.

1 9 8 . EPA. Residential Sampling for Lead: Protocols for Dust and Soil Sampling, March 1995 (EPA 747-R-95-001).

20 1 9 . ASTM International. Standard Practice for Clearance ExaminationsFollowing Lead Hazard Reduction Activities in Single-Family Dwellings and ChildOccupied Facilities (E 2271-05a).

2 0

. EPA. Reviewed Studies Pertaining to HEPA Shroud Effectiveness. 2009.46

21. EPA and HUD. Lead; Requirements for Disclosure of Information Concerning Lead-Based Paint in Housing; Final Rule. Federal Register (61 FR 9064, March 6, 1996).

22. EPA. National Lead Laboratory A ccreditation Program (NLLAP); Notice of Availability of Revisions to the NLLAP; Notice of Availability (73 FR 3967 January 23, 2008).

21. EPA. Reviewed Studies Pertaini ng to HEPA Shroud Effectiveness. 2009.

2 4 1 . Battelle Memorial Institute. Encapsu lation Treatment of Dust Study Floors. January 2010.

2 2

. HUD. Evaluation of the HUD Lead

- Based Paint Hazard Control Grant Program: Final Report . May 1, 2004.

2 5 3 . U.S. Department of Labor, Occupati onal Safety and Health Administration (OSHA). Technical Manual TED 01-00-015 [T ED 1-0.15A]. Revised June 24, 2008.

2 6 4 . American Society of Heating, Refr igerating and Air-Conditioning Engineers (ASHRAE). Standard 52.2-2007--Method of Te sting General Ventilation Air-Cleaning Devices for Removal Efficiency by Partic le Size (ANSI/ASHRAE Approved) 2007.

2 7 5 . ASTM International. Standard Test Method for Air Cleaning Performance of a High-Efficiency Particul ate Air-Filter System (F1471-09).

2 8 6 . EPA. Office of Pollution Preventi on and Toxics (OPPT). Economic Analysis of the Proposed Dust Testing a nd Clearance Amendments to the TSCA Lead Renovation, Repair, and Painting Program fo r Target Housing and Child-Occupied Facilities. April 2010.

2 9 7 . EPA. Proposed Clearance Rule I CR Addendum for the rulemaking entitled Lead; Clearance and Clearance Testing Re quirements for the Renovation, Repair, and Painting Program; Proposed Rule. April 2010.

30 2 8 . EPA. Initial Regulatory Flexibility Analysis for the Clearance and Clearance Testing Requirements for the L ead Renovation, Repair, and Painting Program; Proposed Rule. April 2010.

31 2 9 . EPA. Report of the Small Busine ss Advocacy Review Panel on the Leadbased Paint Certification and Training; Renovation and Remodeling Requirements. March 3, 2000.

3 2 0 . EPA. Unfunded Mandates Reform Act Statement; Lead; Clearance and Clearance Testing Requirements for th e Renovation, Repair, and Painting Program; Proposed Rule. April 2010.47

3 3 1 . ASTM International. Standard Pr actice for Collection of Settled Dust Samples Using Wipe Sampling Methods for S ubsequent Lead Determination (E1728-03).

3 4 2 . ASTM International. Standard Sp ecification for Wipe Sampling Materials for Lead in Surface Dust (E1792-03).

3 5 3 . ASTM International. Standard Pr actice for Record Keeping and Record Preservation for Lead Hazard Activities (E2239-04).

V. Statutory and Executive Order Reviews

EPA has prepared an analysis of the poten tial costs and benefits associated with this rulemaking. This analysis is containe d in the “Economic Analysis of the Proposed Dust Testing and Clearance Amendments to the TSCA Lead Renovation, Repair, and Painting Program for Target Housing a nd Child-Occupied Facilities” (Economic Analysis, Ref. 26), which is available in the docket for this action and is briefly summarized here, and in more detail later in this Unit.

Category Description

Benefits Benefits are not monetized or quantif ied, although there may be benefits through: (1) Information on lead-dust levels remaining in the renovation work area, including lead-dust that may have been generated during the renovation activity. (2) Changed behavior on the part of renovation firms, owners, and occupants which may prevent advers e health effects attributable to lead exposure from re novations in pre-1978 buildings.

EPA has estimated the size of the po pulation affected by this rule, but

does not have sufficient information to estimate the value of information to consumers about lead-dust risks, and or the decrease in exposure to

lead-dust from renovations in ta rget housing and child-occupied

facilities.

Costs $272 million annualized (3% discount rate) $293 million annualized (7% discount rate)

A. Executive Order 12866

Under section 3(f)(1) of Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this action is an “economically significant regulatory action” because EPA estimates th at it will have an annual effect on the economy of $100 million or more. Accordingly, this action was submitted to the Office of Management and Budget (OMB) for re view under Executive Order 12866 and any48

changes made based on OMB recommendations have been documented in the public docket for this rulemaking as required by sect ion 6(a)(3)(E) of the Executive Order.

The following is a summary of the Economic Analysis (Ref. 28), which is

available in the docket for this action. In addition, EPA has prepar ed an analysis of the potential costs and benefits associated with th is rulemaking. This analysis is contained in

the “ Economic Analysis of the Proposed Dust Testing and Clearance Amendments to the TSCA Lead Renovation, Repair, and Painti ng Program for Target Housing and Child

Occupied Facilities ” (Economic Analysis, Ref. 2 6 ), which is available in the docket for

this action and is br iefly summarized here.

1. Options evaluated. The Economic Analysis analyzes several options. In addition to the proposed rule option, the Econom ic Analysis includes options with lower and higher thresholds (in terms of the am ount of lead-based paint disturbed) for renovations which require dust wi pe testing or clearance. In the proposed rule, the renovation events for which clearance is required (use of high speed machines to remove paint, and the demolition or destructive removal of plaster) have a threshold of 6 ft 2 of lead-based paint disturbed. The thresholds in the proposed rule for the renovation events that require the use of dust wipe testing w ithout necessarily achi eving clearance vary

from 6 to 60 ft 2 , depending on the type of renovation (u se of a heat gun; scraping painted surfaces; removing trim, molding, cabinets, or ot her fixtures; etc.). In the low threshold option, the thresholds are 6 ft 2 for all of the affected renovations. In the high threshold option, the thresholds for the events where clearance is required are 60 ft 2 , while the

thresholds for the renovations events that require the use of dust wipe testing without necessarily achieving clearance vary from 60 to 120 ft 2 , depending on the type of renovation. The Economic Analysis also incl udes three options that use the same threshold sizes as the proposed rule but apply different requirements to them. There is an option that requires dust wipe testing for all of the renovation events covered by the proposed rule without requiring clearance for any of them, as well as an option that requires clearance for all of these events. Fina lly, there is an option that applies to the same dust wipe testing and clearance events a nd thresholds as the pr oposed rule but that requires renovation firms to have the dust wipe sampling performed by an independent third party.

2. Number of facilities and renovations. There are approximately 18.7 million renovation events per year covered by EPA’ s renovation, repair, and painting program in the 78 million target housing units and child-occupied facilities. The number of renovations affected by this proposed rule depends on the option selected. The low threshold option affects an estimated 1.8 m illion dust wipe testing only events and 69,000 clearance events per year. The proposed rule is estimated to affect 1.5 million dust wipe testing only events and 69,000 cl earance events a year. The high threshold option affects an estimated 1.2 million dust wipe testing onl y events and 58,000 clearance events per year. The remaining three options (only dust wipe testing is required for all renovations covered by the proposed rule, clearance is required for all renova tions covered by the proposed rule, and third-party dust wipe sampli ng is required for a ll renovations covered by the proposed rule) all a ffect an estimated 1.6 mill ion events per year.49

3. Benefits. The benefits of the rule result from the prevention of adverse health

effects attributable to lead exposure from renovations in pre-1978 buildings. These health effects include impaired cognitive function in childr en and several illnesses in children and adults, such as increased adverse cardiovascular outcomes (including increased blood pressure, increased inciden ce of hypertension, cardi ovascular morbidity and mortality) and decreased kidney function.

The proposed rule will generate benefits by providing greater assurance that dustlead hazards created by renovations are ade quately cleaned up, primarily by requiring renovation firms to provide building owners a nd occupants with information on dust lead levels remaining in the work area after many renovation projects, but also by requiring renovation firms to demonstrate that they have achieved regulatory clearance levels after some of the dustiest renovations. These changes will protect individuals residing in target housing or attending a child-occupied facility where these renovation events are performed. It will also protect individuals who move into target housing after such a renovation is performed, or who visit a friend, relative, or caregiver’s house where such a renovation is performed.

EPA has estimated the number of indivi duals residing in target housing units or attending COFs where renovation events are pe rformed. The proposed rule will benefit 809,000 children under the age of 6 and 7,547,000 i ndividuals age 6 a nd older (including 96,000 pregnant women) per year by minimizing their exposure to lead dust generated by renovations. The low threshold option would protect 882,000 children under the age of 6 and 8,193,000 individuals age 6 and older, in cluding 105,000 pregnant women. The high threshold option protects 706,000 children and 6,590,000 individuals age 6 and older, including 83,000 pregnant women. The remain ing three alternative options (dust wipe testing only, clearance only, and third party dust wipe tes ting) would affect the same number of individuals as the proposed ru le, although the amount of protection provided to some of those individuals may differ from the proposed rule.

4. Costs. Firms performing the renovation even ts covered by the proposed rule will incur costs associated with having a third party perform dust wipe sampling and testing (or with having a firm staff member tr ained as a dust sampling technician so that they can take their own dust wipe samples and send them to a lab). For jobs subject to the clearance requirements in the proposed rule, firms may in cur re-cleaning costs if dust wipe testing after clean-up yields results that exceed the clearance standards. Firms will also incur small costs to provide the dust wipe testing results to ow ners and occupants of the target housing units and child-occupied facilitie s where the renovations are performed.

EPA’s updated estimate is that the averag e cost for a renovation firm to hire a third-party lead evaluation firm to take four dust samples, send them to a lab for analysis, and provide a short report is slightly over $260. Howeve r, many renovation firms may

find it more cost effective to have a staff me mber trained and certified as a dust sampling technician rather than hiring a th ird party to take the samples.50

Renovation firms would incur the same dust wipe testing costs for renovations where achieving clearance is required. If dust levels exceed the clear ance standards after cleaning verification, the renovation firm will incur additional costs for re-cleaning the work area up to two times. These re-cleani ng costs vary from job to job, depending on the size of the space that must be cleaned.

Annualized costs for the rule options ar e calculated using both a 3% and a 7%

discount rate. Total annualized costs for the proposed rule are $272 million per year using a 3% discount rate and $293 million per y ear using a 7% discount rate. Under the low threshold option, costs are $312 million per year with a 3% discount rate and $336 million per year with a 7% rate. Under the high threshold option, costs are $224 million per year with a 3% discount rate and $242 milli on per year with a 7% discount rate. The option that only requires dust wipe testing costs $268 million per year with a 3% discount rate and $288 million per year with a 7% discount rate. The option requiring clearance for all renovations covered by the proposed rule costs $367 million with a 3% discount
rate and $394 million with a 7% discount rate . The option requiring the use of a third party for dust wipe sampling costs $431 million per year with a 3% discount rate and $459 million per year with a 7% discount rate.

B. Paperwork Reduction Act

The information collection requirements contained in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq . EPA has prepared an Information Collection Request (ICR) document to ame nd an existing approved ICR. The ICR document, referred to as the Proposed Clear ance Rule ICR Adde ndum and identified

under EPA ICR No. 2381.01 1715.12 and OMB Control Number 2070- NEW 0155 , has been placed in the docket for this proposed rule (Ref. 2 9 7 ). The information collection requirements are not enforceable until OMB approves them.

Burden under the PRA means the total time, effort, or financial resources expended by persons to generate, maintain, reta in, disclose, or provide information to or for a Federal agency. This includes the tim e needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, pro cessing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instruc tions and requirements; train pe rsonnel to be able to respond to a collection of information; search data s ources; complete and re view the collection of information; and transmit or othe rwise disclose the information.

The information collection activities cont ained in this proposed rule are designed to assist the Agency in meeting the core objectives of TSCA section 402. EPA has carefully tailored the recordkeeping require ments so they will permit the Agency to achieve statutory objectives without impos ing an undue burden on those firms that

choose to be involved in renovati on, repair, and painting activities.51

This proposed rule requires renovation firms to provide owners and occupants with a report includ ing the results of the dust wipe testing. Although firms have the option of choosing to engage in the covered activ ities, once a firm chooses to do so, the information collection activities become mandatory for that firm. The rule may result in

an increase in the number of individuals b ecoming trained as dust sampling technicians, resulting in additional paperwork requirements for training providers.

The ICR document provides a detailed pr esentation of the estimated paperwork burden and costs resulting from this proposed rule. The burden to firms engaged in renovation, repair, and painting activities and to training providers ar e summarized in this

unit.

The requirement for renovation firms to pr ovide a dust wipe te sting report for the renovations covered by the rule will impact about 224,000 firms. The additional burden for these firms arising from the proposed rule is estimated to average nearly slightly mo re than 13 hours per firm annually, resulting in a total burden of approximately 2,86 7 1 ,000 hours per year for these firms.

Many certified renovators may become tr ained and certified as dust sampling technicians so that they can take their own dust wipe samples and send them to a lab for analysis. This will increase the paperwork bur den for training providers, since they must submit records to EPA (or an authorizing Stat e, Tribe, or Territory ) pertaining to each student attending a training course to become a dust sampling technician. Around 170 training providers are estimated to incur an av erage burden of about 82 hours, resulting in an increase of approximately 14,000 hours per year in training provider burden as a result of the proposed rule.

Total respondent burden for renovation fi rms and training providers is estimated to average approximately 2.9 million hours per year during the 3 year period covered by

the ICR.

The proposed rule may also result in a dditional government costs to administer the program (to process the a dditional training provider notifi cations and to administer and enforce the program). States, Tribes, and Territories are allowed, but are under no obligation, to apply for and receive authorizat ion to administer these requirements. EPA will directly administer programs for States, Tribes, and Territories that do not become authorized. Because the number of States, Tribes, and Territories that will become authorized is not known, administrative costs are estimated assuming that EPA will administer the program everywhere. To the extent that other govern ment entities become authorized, EPA’s administrati ve costs will be lower.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA’s regulations co dified in chapter 40 of the CFR, after appearing in the preamble of the final rule , are listed in 40 CFR part 9, are displayed52

either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. When the ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number fo r the approved information collection requirements contained in the final rule.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any sugge sted methods for minimizing respondent burden, EPA has established a docket for this proposed rule, which includes this ICR, under docket ID number EPA-HQ-OPPT-2005-0049. Submit any comments related to

the ICR to EPA and OMB. See ADDRESSES for where to submit comments to EPA.

Send comments to OMB at the Office of Info rmation and Regulatory Affairs, Office of Management and Budget, 725 17th St, N.W ., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after [ insert date of publication in the Federal Register ], a comment to OMB is best assured of having its full effect if OMB receives it by [ Insert date 30 days after publication in the Federal Register ]. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposed

rule.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq

. , generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Ad ministrative Procedure Act or any other statute unless the agency certi fies that the rule will not have a significant economic impact on a substantial number of small entitie s. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined in accordance with section 601 of the RFA as:

(1) A small business as defined by th e Small Business Administration’s (SBA) regulations at 13 CFR 121.201.

(2) A small governmental jurisdiction that is a government of a city, county, town, school district, or spec ial district with a popul ation of less than 50,000.

(3) A small organization that is any not-for-profit enterprise which is independently owned and operated a nd is not dominant in its field.

As required by section 603 of the RFA, EPA has prepared an initial regulatory flexibility analysis (IRFA) for this proposed rule . The IRFA is availa ble for review in the docket and is summarized in this unit (Ref. 2 8 30 ).53

1 . Reasons why action by the Agency is being considered. The Agency believes it is in the best interest of the public to require dust wipe tes ting for many types of renovations (and to require renovation firms to achieve clearance for certain types of renovations). EPA expects two kinds of bene fits to flow from the proposed dust wipe testing requirements. The first are the direct benefits of the info rmation to the owners and occupants, the pure value of the inform ation on dust lead levels remaining in the renovation work area. For building owners and occupants, this information is likely to improve their understanding and awareness of du st-lead hazards. It will also greatly improve their ability to make further risk management decisions, especially in light of mounting evidence suggesting that the current dust-lead hazard standards are too high. This information is particular ly critical where dust lead le vels approach or exceed the regulatory hazard standards. The other benefi ts that EPA expects to flow from a dust wipe testing requirement are th e benefits that may result from changed behavior on the part of renovation firms. EPA believes that dust wipe testing result s will also provide

valuable feedback to renovation firms on how well they are cleaning up after renovations. It is likely that the specific dust lead levels contained in dust wipe testing results will increase renovation firm cleaning efficienc y. Renovation firms will be incentivized to lower the dust lead levels remaining after renovat ion jobs, even if the levels are at or near the regulatory standards. Fo r two types of renovations that can create large amounts of difficult-to-clean dust, EPA remains concerned about the possibility th at dust lead levels remaining, even after cleaning verificati on, may substantially exceed the clearance

standards. If renovation firms choose to utilize these methods, the firms would be required to demonstrate, through dust wipe te sting, that they have met the clearance

standards before the renovation will be considered completed.

2. Legal basis and objectives for this proposed rule. These work practice requirements for dust wipe testing and cleara nce, training, certifi cation and accreditation requirements, and State, Territorial and Tribal authorization provisions are being promulgated under the authority of TSCA sections 402(c)(3), 404, and 407, 15 U.S.C. 2682(c)(3), 2684, and 2687. A central objective of this proposed rule is to provide greater assurance that dust-lead hazards cr eated by renovations are adequately cleaned up, primarily by requiring renovation firms to provide building owners and occupants

with information on dust lead levels remaining in the wo rk area after many renovation projects, but also by requiring renovation firm s to demonstrate that they have achieved regulatory clearance levels after so me of the dustiest renovations.

3. Potentially affected small entities. Small entities include small businesses, small organizations, and small governmental ju risdictions. The small entities that are potentially directly regulated by this proposed rule includ e: small businesses (such as renovation contractors and prope rty owners and managers); small nonprofits (certain childcare centers and private schools); a nd small governments (school districts which operate pre-schools, kindergartens a nd certain child care centers).

In determining the number of small busin esses affected by the proposed rule, the Agency applied U.S. Economic Census data to the SBA’s definition of small business. However, applying the U.S. Economic Census data requires either under

- or54

overestimating the number of small busine sses affected by the proposed rule. For example, for many construction establishments, the SBA defines small businesses as having revenues of less than $14 million. With respect to those establishments, the U.S. Economic Census data groups all establishments with revenues of $10 million or more into one revenue bracket. On the one hand, using data for the en tire industry would

overestimate the number of small businesses affected by the proposed rule and would defeat the purpose of estimating impacts on sm all business. It would also underestimate the proposed rule’s impact on small businesse s because the impacts would be calculated using the revenues of large businesses in add ition to small businesses. On the other hand, applying the closest, albeit lower, revenue bracket would underest imate the number of small businesses affected by the proposed rule while at the same time overestimating the impacts. Similar issues arose in estimating the fraction of property owners and managers

that are small businesses. EPA has conc luded that a substantial number of small businesses will be affected by the rule. Consequently, EPA has chosen to be more conservative in estimating the cost impacts of the rule by using the closest, albeit lower,

revenue bracket for which U.S. Economic Census data is available. For other sectors (nonprofits operating childcare cen ters or private schools), EPA assumed that all affected firms are small, which may overestimate th e number of small entit ies affected by the proposed rule.

The vast majority of enti ties in the industries affected by this proposed rule are small. Using EPA’s estimates, these revi sions to the renovation, repair, and painting program will affect over 203,000 small entities per year.

4. Potential economic impacts on small entities. EPA evaluated two factors in its analysis of the proposed rule’s requirements on small entities, the number of firms that would experience the impact, and the size of the impact. Average annual compliance costs as a percentage of average annual revenues were used to assess the potential average impacts of the rule on small businesse s and small governments. This ratio is a good measure of entities’ abi lity to afford the costs attributable to a regulatory requirement, because comparing compliance co sts to revenues provides a reasonable indication of the magnitude of the regulato ry burden relative to a commonly available measure of economic activity. Where regulat ory costs represent a small fraction of a typical entity’s revenues, the financial imp acts of the regulation on such entities may be considered as not significant. For non-pr ofit organizations, impacts were measured by comparing rule costs to annual expenditures. When expenditure data were not available, however, revenue information was used as a proxy for expenditures. It is appropriate to calculate the impact ratios using annualiz ed costs, because these costs are more representative of the continuing costs entities face to comply with the proposed rule.

The cost of the proposed rule to a typi cal small business averages approximately $1,200 per year. This represents 0.4% to 1.1% of revenues depending on the industry sector. Overall, an estimated 203,000 small renovation contractors would be affected by the proposed rule, with average impacts of 0.5% of revenues. Approximately 100 small governments per year would incur a cost of a bout $800, resulting in an average impact of55

less than 0.01%. And around 200 small non-profits per year would incur a cost of about $600, resulting in an impact of approximately 0.1%.

Some of the small renovation contractors su bject to the rule have employees while others are non-employers. The non-employers typically perform fewer jobs than firms with employees, and thus have lower work practice compliance costs. However, they also have lower average revenues than en tities with employees, so their impacts (measured as costs divided by revenues) can be higher. Impact estimates for nonemployers should be interpreted with caution, as some non-employers may have significant issues related to understatement of income, which would tend to exaggerate the average impact ratio for this class of small entities. There are 151,000 non-employer

renovation contractors estimated to be affected by the proposed rule. The average cost to these contractors is estimated to be approxi mately $700 apiece. This represents 0.7% to 2.6% of reported revenues, dependi ng on the industry sector.

5. Relevant Federal rules. The requirements in this pr oposed rule will fit within an existing framework of other Federal regul ations that address lead-based paint. Notably, the Pre-Renovation Education Ru le, 40 CFR 745.85, requires renovation firms

to distribute a lead hazard information pamphlet to owners and occupants before conducting a renovation in target housing and child-occupied facilities. This proposed rule’s requirement that renovation firms provi de owners and occupants with dust wipe testing and clearance reports complement s the existing pre-renovation education requirements. Another such Federal regulation is HUD’s Lead Safe Housing Rule, 24 CFR part 35, subparts B – R, which requires fi rms conducting interim controls of leadbased paint hazards (a category which incl udes RRP work) to provide owners and occupants with dust wipe testing and clearance reports.

6. Skills needed for compliance. Under the lead renovati on, repair, and painting program requirements, renovators and dust sampling technicians working in target housing and child-occupied faciliti es have to take courses to learn the proper techniques for accomplishing the tasks (including dust samp ling, preparing a report with the results, and performing specialized cleaning) they will perform during renovations. These courses are intended to provide them with th e information they would need to comply with the rule based on the skills they alrea dy have. Other renovation workers that have not been formally trained and certified must receive training on the work practices they will be using in performing their assigned ta sks from a certified renova tor, and a certified renovator must regularly direct work bei ng performed by other renovation workers to ensure that the work practices are being follo wed, including maintaining the integrity of the containment barriers and ensuring that dust or debris does not spread beyond the work

area.

7. Small Business Advocacy Review Panel. EPA has been concerned with potential small entity impacts since the earlie st stages of planning for the RRP program under section 402(c)(3) of TSCA. EPA conducted outre ach to small entities and, pursuant to section 609 of the RFA, convene d a Small Business Advocacy Review Panel (the Panel) in 1999 to obtain advice and r ecommendations of representatives of the56

regulated small entities. EPA identified ei ght key elements of a potential renovation and remodeling regulation for the Panel’s consider ation. These elements were: applicability and scope, firm certification, individual training and certification, accreditation of training courses, work practice standards, pr ohibited practices, exte rior clearance, and

interior clearance.

Details on the Panel and its recommenda tions are provided in the Panel Report (Ref. 2 9 31 ). Information on how EPA implemente d the Panel’s recommendations in the development of the RRP program is available in Unit VIII.C. of the preamble to the 2006 proposed rule (Ref. 13) and in Unit V.C. of the preamble to the 2008 final rule (Ref. 1).

EPA believes that the conclusions it made in 2008 regarding these recommendations are applicable to this proposal. Indeed, EPA has considered input from the 1999 Panel process in this rule precisely because it is so closely related that EPA considers it an extension of the 2008 RRP rulemaking. (See 5 U.S.C. § 605(c))

8. Alternatives considered . EPA considered alternatives to this proposed rule that could affect the economic impacts of the proposed rule on small entities. These alternatives would have applied to both sma ll and large entities, but given the number of small entities in the affected industries, thes e alternatives would pr imarily affect small

entities. For the reasons described in this unit, EPA believes these alternatives are not consistent with the objectives of the rule.

i. Higher thresholds . EPA considered an option under which the size thresholds for determining whether renovation jobs woul d need to perform dust wipe testing or

achieve clearance would be hi gher than those in the proposed rule. By reducing the number of renovations where dust wipe testi ng or clearance are re quired, this option

would reduce the costs of the rule and thus th e estimated small entity impacts. However, higher thresholds would result in more jobs where occupants do not have information on the dust lead levels they are exposed to, or where they are exposed to dust lead levels

above the hazard standard. EPA believes that the proposed rule provides the best balance

between the benefits of the ru le (the value of information from dust wipe testing and the benefits of reduced exposure to lead dust from achieving clearance) compared to the costs (and resulting small business impacts) of dust wipe testing, re-cleaning, and the other requirements of the proposed rule. Th erefore, EPA believes that an option with higher thresholds is not consistent with th e stated objectives of the proposed rule.

ii. Dust T t esting O o nly . EPA considered an option th at would require dust wipe testing but not clearance for any of these re novation events. EPA remains concerned that renovations that disturb paint using machin es designed to remove lead-based paint through high speed operation (such as power sa nders or abrasive blasting) can create large amounts of difficult-to-cl ean dust, creating the possibility that dust lead levels may substantially exceed the clearan ce standards even after cleaning verification. The same is true for the demolition or removal through dest ructive means of plaster and lath walls, ceilings or other building components with l ead-based paint. Therefore, EPA believes that this option is not consis tent with the stated object ives of the proposed rule.57

As required by section 212 of Small Business Regulatory Enforcement Fairness Act (SBREFA), P ublic

. L aw

. 104-121, EPA issued a Small Entity Compliance Guide (the Guide) in December 2008 to help small entities comply with the RRP rule. The Guide is

available at: http://www.epa.gov/lead/pubs/sbcomplianceguide.pdf or from the National Lead Information Center by calling 1(800) 424-LEAD [5323]. EPA will revise the Guide, as necessary, to refl ect this rulemaking activity.

EPA invites comments on all aspects of the proposal and its impact on small

entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Re form Act of 1995 (UMRA), 2 U.S.C. 1531- 1538, requires Federal agencies, unless otherwis e prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governme nts and the private sector.

This rule contains a Federal mandate that may result in expenditures of $100 million or more by the private sector in any 1 year, but it will not result in such expenditures by State, local, and Tribal governments in the aggregate. Accordingly, EPA has prepared

under section 202 of the UMRA a written statement (Ref. 32) which is summarized

below. Consistent with section 205 of the UMRA, EPA has identified and considered a reasonable number of regulatory altern atives, also summarized below.

1. Authorizing legislation. This proposed rule is i ssued under the authority of TSCA sections 402(c)(3), 404, and 4 07 (15 U.S.C. 2682(c)(3), 2684, and 2687).

2. Cost-benefit analysis. EPA has prepared an analysis of the costs and benefits associated with this proposed rule, a copy of which is available in the docket for this proposed rule (Ref. 2 8 6 ). The Economic Analysis presents the costs of this proposed rule as well as various regulatory options and is summarized in Unit V.A. EPA has estimated the total annualized costs of this propos ed rule are $272 million per year using a 3% discount rate and $293 million per y ear using a 7% discount rate.

The benefits of the proposed rule resu lt from the prevention of adverse health

effects attributable to lead exposure from renovations in pre-1978 buildings. These health effects include impaired cognitive function in childr en and several illnesses in children and adults, such as increased adverse cardiovascular outcomes (including increased blood pressure, increased inciden ce of hypertension, cardi ovascular morbidity and mortality) and decreased kidney function.

3. State, local, and Tribal government input. EPA has sought input from State, local and Tribal government representati ves throughout the development of the renovation, repair, and painting pr ogram. EPA’s experience in administering the existing lead-based paint activities program under TSCA section 402(a) suggests that these governments will play a critical role in th e successful implementation of a national program to reduce exposures to lead-based paint hazards associated with renovation, repair, and painting activities. Consequen tly, as discussed in Unit III.C.2. of the58

preamble to the 2006 proposed rule (Ref. 13), the Agency has met w ith State, local, and Tribal government officials on numerous occasions to discuss renovation issues.

4. Least burdensome option. EPA has considered a wide variety of options for addressing the risks presented by renovation activ ities where lead-based paint is present. As part of the development of the ren ovation, repair, and painting program, EPA considered different options for the scope of the proposed rule, vari ous combinations of training and certification requi rements for individuals who perform renovations, various combinations of work practice requirements , and various methods for ensuring that no lead-based paint hazards are left behi nd by persons performing renovations. The Economic Analysis for this proposed rule analyzed several additional options for the scope of the work practices re quired, in terms of the size th reshold and whether dust wipe testing or clearance is requi red. As described in Unit V.C., EPA has preliminarily concluded that the options for reducing the sc ope would result in an unacceptable number of jobs where occupants do not have informa tion on the dust lead leve ls they are exposed to, or where they are exposed to dust l ead levels above the hazard standard.

Currently, EPA believes that the preferre d option is the leas t burdensome option available that achieves a central objective of this proposed rule, which is to provide greater assurance that dust-lead hazards cr eated by renovations are adequately cleaned up, primarily by requiring renovation firms to provide building owners and occupants

with information on dust lead levels remaining in the wo rk area after many renovation projects, but also by requiring renovation firm s to demonstrate that they have achieved regulatory clearance levels after so me of the dustiest renovations.

This rule is not subject to the requirements of section 203 of UMRA because it contains no regulatory require ments that might significantly or uniquely affect small governments. Based on the definition of “sma ll government jurisdiction” in RFA section 601, 5 U.S.C. 601, no State governments can be c onsidered small. Small Territorial or Tribal governments may apply fo r authorization to administer and enforce this program, which would entail costs, but these small ju risdictions are under no obligation to do so. Small governments operate schools that are child-occupied facilities. If these governments perform renovations in these facilities, they ma y incur additional costs to perform dust wipe testing or achieve clearance, and to pr ovide residents, parents or guardians with copies of the report documenting the dust wipe testing results. EPA generally measures a significant impact under UMRA as being expenditures, in the aggregate, of more than 1% of small governme nt revenues in any 1 y ear. As explained in Unit V.C.4., the proposed rule is expected to result in small government impacts well

under 1% of revenues. So EPA has determined that the rule does not significantly affect small governments. Nor does the rule uni quely affect small governments, as the proposed rule is not targeted at small gove rnments, does not primarily affect small governments, and does not impose a different burden on small governments than on other entities that operate child-occupied facilities.

E. Executive Order 1313259

Pursuant to Executive Order 13132, enti tled “Federalism” (64 FR 43255, August 10, 1999), EPA has determined that this proposed rule does not have “federalism implications,” because it will not have subs tantial direct effects on the States, on the relationship between the nati onal government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this proposed rule. States are able to apply for, and r eceive authorization to administer the lead renovation, repair, and painting program requi rements, but are under no obligation to do

so. In the absence of a State authoriza tion, EPA will administer the requirements. Nevertheless, in the spirit of the objectives of this Executive Order, and consistent with EPA policy to promote communications be tween the Agency and State and local governments, EPA consulted with representa tives of State and local governments in developing the renovation, repair, and painti ng program. These consultations were described in the preamble to the 2006 Proposal (Ref. 13).

F. Executive Order 13175

This action does not have tribal implicati ons, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). EPA has determined that this proposed rule does not have Tribal implications because it will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsib ilities between the Federal government and Indian tribes, as specified in the Order. Tribes are able to apply for and receive

authorization to administer the lead renovation, repair, a nd painting program on Tribal lands, but Tribes are under no obligation to do so. In the absence of a Tribal authorization, EPA will administer these requirements. While Tribes may operate public housing or child-occupied fac ilities covered by the rule su ch as kindergartens, prekindergartens, and daycare facili ties, EPA has determined that this rule would not have

substantial direct effects on the Tribal governments that operate these facilities.

Thus, Executive Order 13175 does not appl y to this proposed rule. Although Executive Order 13175 does not apply, EPA consu lted with Tribal officials and others by discussing potential renovation regulatory options for the re novation, repair, and painting program at several national lead program m eetings hosted by EPA and other interested Federal agencies. EPA specifically solicits additional comment on this proposed action

from tribal officials.

G. Executive Order 13045

This action is subject to Executive Or der 13045, entitled “Protection of Children

from Environmental Health Risks and Sa fety Risks” (62 FR 19885, April 23, 1997), because it is an “economically significant regulatory action” as defined by Executive Order 12866, and because the environmental health or safety risk addressed by this action may have a disproportionate effect on children.60

A central purpose of this proposed rule is to provide greate r assurance that dustlead hazards created by renovations are ade quately cleaned up, primarily by requiring renovation firms to provide building owners a nd occupants with information on dust lead levels remaining in the work area after many renovation projects, but also by requiring renovation firms to demonstrate that they have achieved regulatory clearance levels after

some of the dustiest renovations. In the abse nce of this regulation, owners and occupants

would not have information on the dust lead levels remaining following these renovation events, and dust lead levels may substantiall y exceed the clearance standards for certain renovations that can create large am ounts of difficult-to-clean dust.

The proposed rule will protect children who reside in housing units or attend child-occupied facilities wher e such renovations occur; who visit a friend, relative, or caregiver’s house where such renovations are performed; or who move into such housing when their family purchases it after such a renovation has been performed.

H. Executive Order 13211

This proposed rule is not a “significant energy action” as defined in Executive Order 13211, entitled “Actions concerning Regul ations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, Ma y 22, 2001) because it is not likely to have any adverse effect on the s upply, distribution, or use of energy.

I. National Technology Transfe r and Advancement Act of 1995

Section 12(d) of the Na tional Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulat ory activities unless to do so would be inconsistent with applicable law or otherwis e impractical. Voluntary consensus standards are technical standards (e.g., materials specifi cations, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards

bodies. The NTTAA directs EP A to provide Congress, th rough OMB, explanations when the Agency decides not to use avai lable and applicable voluntary consensus

standards.

This proposed rulemaking involves technical standards. EPA proposes to use the government-unique technical sta ndards described in Unit III of this preamble. EPA has identified several potentially-applicable voluntary consensus standards developed by ASTM International (formerly the American Society for Testing a nd Materials) that address dust wipe sampling, recordkeeping, a nd clearance procedures. These standards

are: “Standard Practice for Collection of Settled Dust Samples Using Wipe Sampling Methods for Subsequent Lead Determina tion,” “Standard Specification for Wipe Sampling Materials for Lead in Surface Dust ,” “Standard Practice for Record Keeping

and Record Preservation for Lead Hazard Activities,” and “Standard Practice for Clearance Examinations Following Lead H azard Reduction Activities in Single-Family Dwellings and Child-Occupied Facilities” (Refs. 3 3 1 , 3 4 2 , 3 5 3

, 20 1 9 ). Each of these ASTM documents represents state-of-the-a rt knowledge regarding the performance of61

these particular aspects of lead-based pain t hazard evaluation and control practices and EPA recommends the use of these documents where appropriate. EPA believes that the proposed amendments to the RRP rule as well as EPA’s model training courses for leadbased paint inspectors, risk assessors, and dus t sampling technicians are consistent with these ASTM standards. However, because each of these documents is extremely detailed and encompasses many circumstances beyond the scope of this rulemaking, EPA determined that it would be impractical to incorporate these voluntary consensus

standards into the rule.

In addition, EPA has identified a pote ntially-applicable vol untary consensus standard developed by ASTM International for evaluating the performance of HEPA filtration systems, the “Standard Test Me thod for Air Cleaning Performance of a HighEfficiency Particulate Air- Filter System” (Ref. 2 7 5 ). EPA does recommend that

renovation firms in the market for a HEPA vacuum verify that the filter has been tested in

accordance with the ASTM standard or an e quivalent test method. However, EPA has determined that it would be impractical to in corporate this test method into the rule.

EPA welcomes comments on this asp ect of the proposed rulemaking and, specifically, invites the public to identif y potentially-applicable voluntary consensus standards and to explain why such standa rds should be used in this regulation.

Executive Order 12898

Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-In come Populations” (59 FR 7629, February 16, 1994) establishes federal executive policy on en vironmental justice. Its main provision directs Federal agencies, to the greatest exte nt practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and a dverse human health or environmental effects of their programs, policies, and activ ities on minority populations an d low-income populations in

the United States.

EPA has determined that Agency has determined that this proposed rule will not have disproportionately high and adverse hum an health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations wit hout having any disproportionately high and

adverse human health or environmental eff ects on any population, including any minority or low-income population. EPA has assessed the potential impact of this proposed rule on minority and low-income populations. The re sults of this assessm ent are presented in the Economic Analysis, which is available in the docket for this proposed rule (Ref. 2 8 6 ).

List of Subjects in 40 CFR Part 74562

Environmental protection, Child-occupi ed facility, Housing renovation, Lead, Lead-based paint, Renovation, Reporti ng and recordkeeping requirements.

Dated: ________

________________

Administrator

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

1. The authority citation for part 745 would continue to read as follows:

Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d

.

2. Section 745.82 would be amended by adding a new paragraph 745.82(a)(3).

§ 745.82 Applicability

.

(a) * * *

(3) Renovations in target hous ing or child-occupied facili ties in which a certified renovator has collected a paint chip sample from each painted component affected by the renovation and a laboratory recognized by EPA pursuant to section 405(b) of TSCA as being capable of performing analyses for lead compounds in paint chip samples has determined that the samples are free of paint or other surface coatings that contain lead equal to or in excess of 1.0 mg/cm 2 or 0.5% by weight. If the components make up an integrated whole, such as the individual stai r treads and risers of a single staircase, the renovator is required to test only one of the individual comp onents, unless the individual components appear to have been re painted or refinished separately.

* * * * *

3. Section 745.83 would be amended by adding alphabetically a new definition as

follows:

§ 745.8 3 2 Definitions

.

* * * * * * * *

Containment means a set of measures designe d to protect residents and the environment from leaded dust, paint chips, or other forms of lead contamination created by renovations through the erection of barriers and warning signs and the establishment of access control, modifications to heating, ventilation, and air conditioning systems, and other strategies. Vertical containment, re quired for some exterior renovations, is a

vertical barrier consis ting of plastic sheeting over scaffo lding or a wood or metal frame, or an equivalent system.63

* * * * * * * *

4. Section 745.85 would be amended as follows:

a. Paragraph (a)(2)(ii)(D) would be revised.

b. Paragraph (a)(3) would be revised.

c. Paragraph 745.85(b) would be redesignated as 745.85(c) , paragraph 745.85(c) would be deleted, and paragraph 745.85(d) would be redesignated as 745.85(e) (c) would

be removed

.

d. Paragraphs (b) and (d) would be rede signated as paragraphs (c) and (e) respectively A new paragraph 745.85(b) would be added

.

e. New paragraphs (b) and (d) would be added Newly

- redesignated paragraph 745.85(c)(1)(i) would be revised

.

f. Newly-redesignated paragra ph (e) would be revised. A new paragraph 745.85(d) would be added.

g

. Newly

- redesignated paragraph 745.85( e) would be revised.

§ 745.85 Work practice standards.

(a) * * *

(2) * * *

(ii) * * *

(D) If the renovation will a ffect surfaces within 10 f eet of the property line, the

renovation firm must erect vertical containmen t to ensure that dust and debris from the renovation does not contaminate adjacent buildin gs or migrate to adjacent properties. Vertical containment may also be necessary in other situations, such as in windy conditions, in order to prevent contaminati on of other buildings, other areas of the property, or adjacent buildings or properties.

(3) Prohibited and restricted practices . The work practices listed below are prohibited or restricted during a renovation as follows:

(i) Open-flame burning or torching of painted surfaces is prohibited.

(ii) The use of machines designed to remove paint through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting, is prohibited on painted surfaces unless such machines are shrouded and equipped with a

HEPA vacuum attachment to collect dust a nd debris at the point of generation.64

(iii) Operating a heat gun on painted su rfaces is permitted only at temperatures

below 1

, 100 degrees Fahrenheit.

(4) * * * * *

(b) Clearance . (1) Mandatory clearance . Clearance is require d after renovations involving the demolition, or removal through destructive means, of more than 6 ft 2 of plaster and lath building compone nt, or the disturbance of pa int using machines designed to remove paint through high-speed operation, such as sanding, grinding, power planning, needle gun, abrasive blasting or sandblasting. When clearanc e is required, the following clearance procedures must be performed:

(i) A certified inspector, certified risk assessor, or certified dust sampling technician must perform a visual inspection to determine whether dust, debris or residue is still present in the renovation work area. If dust, debris or residue is present, these

conditions must be removed by re-cleaning and another vi sual inspection must be performed.

(ii) A certified inspector, certified risk assessor, or certified dust sampling technician must collect dust wipe sample s in accordance with EPA’s “Residential Sampling for Lead: Protocols for Dust a nd Soil Sampling, EPA-747-R-95-001” or an equivalent protocol that inco rporates adequate quality cont rol procedures. Samples must be collected in the following locations:

(A) If there is more than one 1 room, hallway, or stairwe ll within the work area, the following samples must be collected:

( 1 ) One windowsill sample, one window trough sample, and one floor sample within each room, hallway, or stairwell in th e work area. If there are more than four rooms, hallways, or stairwells within the work area, only four rooms, hallways, or stairwells must be sampled.

( 2 ) One floor sample adjacent to the work area, but not in an area that has been

cleaned.

(B) If the work area is a single room , hallway, stairwell, or smaller area, the following samples must be collected:

( 1 ) One windowsill sample, one window trough sample, and one floor sample.

( 2 ) One floor sample adjacent to the work area, but not in an area that has been

cleaned.

(C) No window sill or trough samples must be collected if there are no windows

in the work area.65

(iii) Dust wipe samples must be an alyzed by a laboratory or other entity recognized by EPA pursuant to section 405(b) of the Toxic Substances Control Act as being capable of performing analyses for lead compounds in dust samples. If a fixed-site laboratory is to be used, the dust wipe sample s must be mailed or otherwise transmitted to the laboratory within 1 business day of the date that they are collected.

(iv) A certified inspector, certified risk assessor, or certified dust sampling technician must compare the residual lead level reported by the EPA-recognized laboratory for each dust sample or test with the applicable clearance level. If the residual lead level in a particular dus t sample or test equals or exceeds the applicable clearance level, the components represente d by the failed sample or test shall be re-cleaned and retested. The applicable clearance levels are:

(A) 40 μg/ft 2 for floors.

(B) 250 μg/ft 2 for interior window sills.

(C) 400 μg/ft 2 for window troughs.

(v) For surfaces in poor cond ition that the renovation fi rm did not specifically agree to refinish in the re novation contract, the renovation fi rm may stop re-cleaning and re-testing after the second failed dus t wipe test on that surface.

(vi) The certified inspector, certified risk assessor, or certified dust sampling technician performing the clearance proce dures must prepare a clearance report and provide it to the renovation firm within 3 days of the date that the final dust wipe testing results are obtained. The report must be a single document, with attachments, and must include the following information:

(A) Start and completion dates of the renovation.

(B) A brief written descri ption of the renovation.

(C) The name and address of the certified firm employing the certified inspector, certified risk assessor, or certified dust sampling technician performing the clearance procedures.

(D) The name and signature of each certified inspector, certified risk assessor, or certified dust sampling technician performing clearance procedures and the date(s) that clearance procedures were performed.

(E) The results of the visual inspection.

(F) A detailed written description of the specific sampling or testing locations or a detailed drawing that clearly identifies the location of each sample or test.66

(G) The results for each dust wipe sample or test, whether or not clearance was achieved, and the name of each recognized labor atory or other entity that conducted the analyses.

(2) Optional clearance. Renovation firms that choose to comply with all of the requirements of this paragraph (745.85(b)) ne ed not comply with the requirements of paragraph s 745.85 (d) of this section

.

(c) * * * * *

(d) Dust wipe testing . (1) Dust wipe testing must be performed after all renovations involving:

(i) Use of a heat gun at temperatures below 1

, 100 degrees Fahrenheit.

(ii) Removal or replacement of window or door frames.

(iii) Scraping 60 ft 2 or more of painted surfaces.

(iv) Removing more than 40 ft 2 of trim, molding, cabinets, or other fixtures.

(2) After cleaning verification has been performed in accordance with paragraph

40 CFR 745.85 (c) of this section , a certified inspector , certified risk asse ssor, or certified dust sampling technician must collect dust wipe samples in accordance with EPA’s “Residential Sampling for Lead: Protocol s for Dust and Soil Sampling, EPA-747-R-95- 001” or an equivalent protocol that incorporates adequate quality control procedures. Samples must be collected in the following locations:

(i) If there is more than one 1 room, hallway, or stairwell within the work area, the following samples must be collected:

(A) One windowsill sample, one window trough sample, and one floor sample within each room, hallway, or stairwell in th e work area. If there are more than four rooms, hallways, or stairwells within the work area, only four rooms, hallways, or stairwells must be sampled.

(B) One floor sample adjacent to the work area, but not in an area that has been

cleaned.

(ii) If the work area is a single room, hallway, stairwell, or smaller area, the following samples must be collected:

(A) One windowsill sample, one window trough sample, and one floor sample.

(B) One floor sample adjacent to the work area, but not in an area that has been

cleaned.67

(iii) No window sill or trough samples mu st be collected if there are no windows

in the work area.

(3) Dust wipe samples must be analy zed by a laboratory or other entity recognized by EPA pursuant to section 405(b) of the Toxic Substances Control Act as being capable of performing analyses for lead compounds in dust samples. If a fixed-site laboratory is to be used, the dust wipe sample s must be mailed or otherwise transmitted to the laboratory within 1 business day of the date that they are collected.

(4) The certified inspector, certified risk assessor, or certified dust sampling technician performing the dust wipe testing mu st prepare a dust wi pe testing report and provide it to the renovation firm within 3 days of the date that the dust wipe testing results are obtained. The report must be a single document, with attachments, and must include the following information:

(i) Start and completion dates of the renovation.

(ii) A brief written desc ription of the renovation.

(iii) The name and address of the certif ied firm employing the certified inspector, certified risk assessor, or certified dust sampling technician performing the dust wipe testing.

(iv) The name and signature of each certifi ed inspector, certified risk assessor, or certified dust sampling technician performing sampling or testing and the date(s) that samples were collected or testing performed.

(v) The results of the visual inspection.

(vi) A detailed written description of the specific sampling or testing locations or a detailed drawing that clearly identifies the location of each sample or test.

(vii) The results for each dust wipe test , a statement of whether or not all samples analyzed were below the applicable clearance standards, and the name of each recognized laboratory or other entity th at conducted the analyses.

(viii) The clearance standard from paragraph Sec. 745. 85 (b)(1)(iv) of this section that is applicable to each dust wipe test and, if one or more final dust wipe tests equals or exceeds the applicable clearance standards, a statement that any dust lead levels that equal or exceed the clearance standards will de monstrate that a lead-based paint hazard is present after the work is completed.

.

(e) Activities conducted after post-renovation clearance, dust wipe testing, or cleaning verification . Activities that do not disturb paint, such as applying paint to walls that have already been prepared, are not re gulated by this subpart if they are conducted68

after post-renovation clearance, dust wipe te sting, or cleaning ve rification has been performed.

5 3 . Section 745.86 would be amended by revising paragraph 745.86 (d) to read as

follows:

§ 745.86 Recordkeeping and reporting requirements.

* * * * *

(d) If clearance or dust wipe tes ting is performed in accordance with Sec. 745.85, the renovation firm must provide, within 3 da ys of the date the renovation firm receives the report, a copy of the clearan ce or dust wipe testing report to:

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

( 2 ii ) An adult occupant of the residentia l dwelling, if the renovation took place

within a residential dw elling, or an adult representative of the child-occupi ed facility, if the renovation took place within a child-occupied facility.

6 4 . Section 745.90 would be amended as follows:

a. By revising paragraphs (a)(2) and (a)(3).

b. By revising paragraphs (b)(2)

, and (b)(4) , and (b)(8)

.

c . By revising paragraph (b)(8).

§ 745.90 Renovator certification and dust sa mpling technician certification.

(a) * * *

(2) Individuals who have successfully completed an accredited abatement worker or supervisor course, or individuals who successfully completed an EPA, HUD, or

EPA/HUD model renovation trai ning course may take an accredited refresher renovator training course before April 22, 2011 in lieu of the initial renovato r training course to

become a certified renovator.

(3) Individuals who have successfully completed an accredited lead-based paint inspector or risk assessor course may ta ke an accredited refresher dust sampling technician course before April 22, 2011 in lieu of the initial training to become a certified dust sampling technician. Individuals who ar e currently certified as lead-based paint inspectors or risk assessors may act as dus t sampling technicians w ithout further training.

* * * * *

(b) * * *69

(2) Must provide training to worker s on the work practices required by § 745.85(a) that they will be using in performing their assigned tasks.

* * * * *

(4) Must regularly direct work being perf ormed by other individuals to ensure that the work practices required by § 745.85(a) ar e being followed, includ ing maintaining the integrity of the containment barriers and en suring that dust or debris does not spread beyond the work area.

* * * * *

(8) Must prepare the records required by § Sec. 745.86(b)(1) and (6).

* * * * *

7 5 . Section 745.92 would be amended by a dding paragraph (b)(3) to read as

follows:

§ 745.92 Fees for the accreditation of renovation and dust sampling technician training and the certification of renovation firms

.

* * * * *

(b) * * *

(3) Accreditation or certification amendments

. No fee will be charged for

accreditation or certification amendments.

* * * * *

8 6 . Section 745.225 would be amend ed by revis ed ing it to read as follows:

§ 745.225 Accreditation of training programs: target housing and child-occupied

facilities.

(a) Scope . (1) A training program may seek acc reditation to offer courses in any of the following disciplines: Inspector, ri sk assessor, supervisor, project designer, abatement worker, renovator, and dust sampli ng technician. A training program may also

seek accreditation to offer refresher course s for each of the above listed disciplines.

(2) Training programs may first apply to EPA for accreditation of their lead-based paint activities courses or refresher courses pursuant to this secti on on or after August 31, 1998. Training programs may first apply to EP A for accreditation of their renovator or dust sampling technician courses or refresher courses pursuant to this section on or after April 22, 2009.70

(3) A training program must not prov ide, offer, or claim to provide EPAaccredited lead-based paint activities cour ses without applying for and receiving accreditation from EPA as required under paragra ph (b) of this section on or after March 1, 1999. A training program must not provide, o ffer, or claim to provide EPA-accredited renovator or dust sampling technician courses without applying for and receiving accreditation from EPA as required under paragra ph (b) of this section on or after June 23, 2008.

(b) Application process . The following are procedures a training program must

follow to receive EPA accreditation to offer l ead-based paint activities courses, renovator courses, or dust sampling technician courses:

(1) A training program seeking accreditation shall submit a written application to EPA containing the following information:

(i) The training program's name , address, and telephone number.

(ii) A list of courses for which it is a pplying for accreditation. For the purposes of this section, courses taught in different languages and elec tronic learning courses are considered different courses, and each must independently m eet the accreditation requirements.

(iii) The name and documentation of th e qualifications of the training program

manager.

(iv) The name(s) and documentation of qualifications of any principal instructor(s).

(v) A statement signed by the traini ng program manager certifying that the training program meets the requirements establ ished in paragraph (c) of this section. If a training program uses EPA- r ecommended model training materi als, or training materials approved by a State or Indian Tribe that ha s been authorized by EP A under subpart Q of this part, the training program manager shall in clude a statement certifying that, as well.

(vi) If a training program does not use EPA-recommended model training materials, its application for accreditation shall also include:

(A) A copy of the student and instructor ma nuals, or other materials to be used for

each course.

(B) A copy of the course agenda for each course.

(C) When applying for accreditation of a c ourse in a language other than English, a signed statement from a qualified, independent translator that they had compared the course to the English language version and found the translation to be accurate.71

(vii) All training programs shall include in their application for accreditation the following:

(A) A description of the f acilities and equipment to be used for lecture and handson training.

(B) A copy of the course test blueprint for each course.

(C) A description of the ac tivities and procedures that will be used for conducting

the assessment of hands-on skills for each course.

(D) A copy of the quality control plan as described in paragraph (c)(9) of this

section.

(2) If a training program meets the require ments in paragraph (c) of this section, then EPA shall approve the application fo r accreditation no more than 180 days after receiving a complete application from the tr aining program. In the case of approval, a

certificate of accreditation shall be sent to th e applicant. In the case of disapproval, a letter describing the reasons for disapproval shall be sent to the applicant. Prior to disapproval, EPA may, at its discretion, work w ith the applicant to address inadequacies in the application for accreditation. EPA may also request additiona l materials retained by the training program under paragraph (i) of this section. If a training program's application is disapproved, the program ma y reapply for accreditation at any time.

(3) A training program may apply for acc reditation to offer courses or refresher courses in as many disciplines as it chooses. A training pr ogram may seek accreditation for additional courses at any time as long as the program can demonstrate that it meets the requirements of this section.

(4) A training program applying for accreditation must submit the appropriate

fees in accordance with § Sec. 745.238.

(c) Requirements for the accred itation of training programs . For a training program to obtain accreditation from EPA to offer lead-based paint activities courses, renovator courses, or dust sampling technici an courses, the progr am must meet the following requirements:

(1) The training program shall em ploy a training manager who has:

(i) At least 2 years of ex perience, education, or trai ning in teaching workers or adults; or

(ii) A bachelor's or graduate de gree in building co nstruction technology, engineering, industrial hygiene, safety, pub lic health, education, business administration or program management or a related field; or72

(iii) Two years of experience in mana ging a training program specializing in environmental hazards; and

(iv) Demonstrated experience, educati on, or training in the construction industry including: lead or asbestos abatement, painting, carpentry, renovation, remodeling, occupational safety and hea lth, or industrial hygiene.

(2) The training manager shall designate a qualified principal instructor for each

course who has:

(i) Demonstrated experience, education, or training in teaching workers or adults;

and

(ii) Successfully completed at least 16 hours of any EPA-accredited or EPAauthorized State or Tribal-accred ited lead-specific training; and

(iii) Demonstrated experience, educat ion, or training in lead or asbestos abatement, painting, carpentry, renovation, remo deling, occupational safety and health, or industrial hygiene.

(3) The principal instructor shall be responsible for the organization of the course, course delivery, and oversight of the teach ing of all course material. The training manager may designate guest inst ructors as needed for a porti on of the course to provide instruction specific to the le cture, hands-on activities, or work practice components of a course. However, the principa l instructor is primarily res ponsible for teaching the course materials and must be present to provide in struction (or oversight of portions of the course taught by guest instructors) for the co urse for which he has been designated the principal instructor.

(4) The following documents shall be recognized by EPA as evidence that training managers and principal instructors ha ve the education, work experience, training requirements or demonstrated experience, spec ifically listed in paragraphs (c)(1) and (c)(2) of this section. This documentation must be submitted with the accreditation application and retained by the training program as required by the recordkeeping requirements contained in paragraph (i) of this section. Those documents include the following:

(i) Official academic transcripts or di ploma as evidence of meeting the education requirements.

(ii) Resumes, letters of reference, or documentation of work experience, as evidence of meeting the work experience requirements.

(iii) Certificates from train-the-trainer courses and lead-speci fic training courses, as evidence of meeting th e training requirements.73

(5) The training program shall ensure the availability of, and provide adequate facilities for, the delivery of the lecture, course test, hands-on training, and assessment activities. This includes provi ding training equipment that reflects current work practices and maintaining or updating the equipm ent and facilities as needed.

(6) To become accredited in the followi ng disciplines, the training program shall provide training courses that meet the following training requirements:

(i) The inspector course shall last a minimum of 24 training hours, with a

minimum of 8 hours devoted to hands-on trai ning activities. The minimum curriculum requirements for the inspector course are contai ned in paragraph (d)(1) of this section.

(ii) The risk assessor course shall last a minimum of 16 training hours, with a

minimum of 4 hours devoted to hands-on trai ning activities. The minimum curriculum requirements for the risk assesso r course are contained in para graph (d)(2) of this section.

(iii) The supervisor course shall last a minimum of 32 training hours, with a

minimum of 8 hours devoted to hands- on activities. The minimum curriculum requirements for the supervisor course are cont ained in paragraph (d)(3) of this section.

(iv) The project designer course shall last a minimum of 8 training hours. The minimum curriculum requirements for the pr oject designer course are contained in paragraph (d)(4) of this section.

(v) The abatement worker course shall la st a minimum of 16 training hours, with

a minimum of 8 hours devoted to hands-on tr aining activities. Th e minimum curriculum requirements for the abatement worker course are contained in para graph (d)(5) of this

section.

(vi) The renovator course must last a minimum of 8 training hours, with a

minimum of 2 hours devoted to hands-on trai ning activities. The minimum curriculum requirements for the renovator course are contai ned in paragraph (d)(6) of this section.

(vii) The dust sampling technician cour se must last a minimum of 8 training hours, with a minimum of 2 hours devoted to hands-on training activ ities. The minimum curriculum requirements for the dust sampli ng technician course are contained in paragraph (d)(7) of this section.

(viii) Electronic learning and other alternative cour se delivery methods are permitted for the classroom portion of renovator, dust sampling technician, or lead-based paint activities courses but not the hands-on por tion of these courses. Electronic learning courses must comply with the following requirements:

(A) A unique identifier must be assigned to each student for them to use to launch

and re-launch the course.74

(B) The training provider must track each student’s course log-ins, launches, progress, and completion, and maintain these r ecords in accordance wi th paragraph (i) of

this section.

(C) The course must include knowledge checks for each module, which must be successfully completed before the stude nt can go on to the next module.

(D) There must be a test of at least 20 questions at the end of the electronic learning portion of the course, of which 80% must be answered correctly by the student for successful completion of the elec tronic learning portion of the course.

(E) Each student must be able to save or print an uneditable copy of an electronic learning course completion certificate.

(7) For each course offered, the training program shall conduct ei ther a course test at the completion of the course, and if appli cable, a hands-on skills assessment, or in the alternative, a proficiency test for that di scipline. Each individual must successfully complete the hands-on skills assessment and receive a passing score on the course test to pass any course, or successfully complete a proficiency test.

(i) The training manager is responsible for maintaining the validity and integrity of the hands-on skills assessment or proficiency test to ensure that it accurately evaluates the trainees' performance of the work practices and procedures associated with the course topics contained in paragr aph (d) of this section.

(ii) The training manager is responsible for maintaining the validity and integrity

of the course test to ensure that it ac curately evaluates the trainees' knowledge and retention of the course topics.

(iii) The course test shall be developed in accordance with the test blueprint submitted with the training accreditation application.

(8) The training program shall issue unique course completion certificates to each individual who passes the training course. The course completion certificate shall

include:

(i) The name, a unique identification nu mber, and address of the individual.

(ii) The name of the particular c ourse that the individual completed.

(iii) Dates of course completion/test passage.

(iv) For initial inspector, risk assessor, project designer, supervisor, or abatement worker course completion certificates, the ex piration date of interim certification, which is 6 months from the date of course completion.75

(v) The name, address, and telephon e number of the training program.

(vi) The language in which the course was taught.

(vii) For renovator and dust sampling tec hnician course completion certificates, a photograph of the individual. The photogra ph must be an accurate and recognizable image of the individual. As reproduced on the certificate, the photograph must not be smaller than 1 square inch.

(9) The training manager shall develop and implement a quality control plan. The plan shall be used to maintain and improve the quality of the training program over time. This plan shall contain at least the following elements:

(i) Procedures for periodic revision of training materials and the course test to

reflect innovations in the field.

(ii) Procedures for the training manager' s annual review of principal instructor

competency.

(10) Courses offered by the training program must teach the work practice

standards contained in § Sec. 745.85 or § Sec. 745.227, as applicable, in such a manner that trainees are provided w ith the knowledge needed to perform the renovations or leadbased paint activities they will be responsible for conducting.

(11) The training manager shall be re sponsible for ensuring that the training program complies at all times with all of the requirements in this section.

(12) The training manager shall allow EPA to audit the training program to verify the contents of the application for accreditat ion as described in paragraph (b) of this

section.

(13) The training manager must provide notification of re novator, dust sampling technician, or lead-based pain t activities courses offered.

(i) The training manager mu st provide EPA with notific ation of all renovator, dust sampling technician, or lead-based paint activities courses offered. The original notification must be received by EPA at least 7 business days pr ior to the start date of any renovator, dust sampling technician, or lead-based paint ac tivities course.

(ii) The training manager must provide EPA updated notification when renovator, dust sampling technician, or lead-based paint activities courses will begin on a date other than the start date specified in th e original notification, as follows:

(A) For renovator, dust sampling technicia n, or lead-based paint activities courses beginning prior to the start date provided to EPA, an updated notification must be received by EPA at least 7 business days before the new start date.76

(B) For renovator, dust sampling technicia n, or lead-based paint activities courses beginning after the start date provided to EP A, an updated notification must be received by EPA at least 2 business days before the start date provided to EPA.

(iii) The training manager must update EPA of any change in location of renovator, dust sampling technician, or lead -based paint activities courses at least 7 business days prior to the start date provided to EPA.

(iv) The training manager must update EP A regarding any course cancellations, or any other change to the origin al notification. Updated notific ations must be received by EPA at least 2 business days prior to the start date provided to EPA.

(v) Each notification, including update s, must include the following:

(A) Notification type (ori ginal, update, cancellation).

(B) Training program name, EPA accred itation number, address, and telephone

number.

(C) Course disciplin e, type (initial/ refresher), and the language in which instruction will be given.

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

(E) Training location(s) te lephone number, and address.

(F) Principal instructor's name.

(G) Training manager's name and signature.

(vi) Notification must be accomplishe d using any of the following methods: Written notification, or electronically using th e Agency's Central Data Exchange (CDX). Written notification of lead-based paint activities course schedules can be accomplished by using either the sample form titled “Lead-Based Paint Training Notification” or a similar form containing the information require d in paragraph (c)(13)(v ) of this section.

All written notifications must be delivere d by U.S. Postal Service, fax, commercial delivery service, or hand delivery (persons submitting notification by U.S. Postal Service are reminded that they should allow 3 additi onal business days for delivery in order to

ensure that EPA receives the notification by the required date ). Instructions and sample

forms can be obtained from the NLIC at 1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/lead

.

(vii) Renovator, dust sampli ng technician, or lead-based paint activities courses must not begin on a date, or at a location other than that specified in the original notification unless an updated notification identifying a new start date or location is77

submitted, in which case the course must be gin on the new start date and/or location specified in the updated notification.

(viii) No training program shall provid e renovator, dust sampling technician, or lead-based paint activities c ourses without first notifying EPA of such activities in accordance with the requiremen ts of this paragraph.

(14) The training manager must provi de notification following completion of renovator, dust sampling technician, or lead-based paint activities courses.

(i) The training manager must provide EPA notification after the completion of any lead-based paint activities course. This notice must be received by EPA no later than 10 business days following course completion.

(ii) The notification must include the following:

(A) Training program name, EPA accred itation number, address, and telephone

number.

(B) Course discip line and type (initi al/refresher).

(C) Date(s) of training.

(D) The following information for each student who took the course:

( 1 ) Name.

( 2 ) Address.

( 3 ) Date of birth.

( 4 ) Course completion certificate number.

( 5 ) Course test score.

( 6 ) For renovator or dust sampling technici an courses, a digital photograph of the

student.

(E) Training manager's name and signature.

(iii) Notification must be accomplishe d using any of the following methods: Written notification, or electronically using th e Agency's Central Data Exchange (CDX). Written notification following renovator, dust sampling technician, or lead-based paint activities training courses can be accomplished by using either the sample form titled “Lead-Based Paint Training Course Follow- up” or a similar form containing the information required in paragraph (c)(14)(ii) of this section. All wri tten notifications must78

be delivered by U.S. Postal Service, fax, co mmercial delivery service, or hand delivery (persons submitting notification by U.S. Post al Service are reminded that they should allow 3 additional business days for delivery in order to ensure that EPA receives the notification by the requir ed date). Instructions and sample forms can be obtained from the NLIC at 1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/lead

.

(d) Minimum training curriculum requirements. To become accredited to offer lead-based paint courses in the specific disciplines listed below, training programs must ensure that their courses of study include, at a minimum, the following course topics. Requirements ending in an asterisk (*) indicate areas that require hands

- on activities as an integral compone nt of the course.

(1) Inspector. (i) Role and responsibili ties of an inspector. Instruction in the topics described in subparagraphs (i v), (v), (vi), and (vii) must be included in the hands-on portion of the course.

(i) Role and responsibil ities of an inspector.

(ii) Background information on lead and its adverse health effects.

(iii) Background information on Federal, St ate, and local regulations and guidance that pertains to lead-based paint and lead- based paint activities.

(iv) Lead-based paint inspection met hods, including selection of rooms and components for sampling or testing. *

(v) Paint, dust, and soil sampling methodologies. *

(vi) Clearance standards and te sting, including random sampling. *

(vii) Preparation of the final inspection report. *

(viii) Recordkeeping.

(2) Risk assessor. Instruction in the topics descri bed in subparagraphs (iv), (vi), and (vii) must be included in the hands-on portion of the course. (i) Role and responsibilities of a risk assessor.

(i) Role and responsibil ities of a risk assessor.

(ii) Collection of background informati on to perform a risk assessment.

(iii) Sources of environmental lead cont amination such as paint, surface dust and soil, water, air, packaging, and food.79

(iv) Visual inspection for the purposes of identifying potential sources of leadbased paint hazards. *

(v) Lead hazard screen protocol.

(vi) Sampling for other sources of lead exposure. *

(vii) Interpretation of lead-based paint and other lead sampling results, including all applicable State or Federal guidance or regulations pertaining to lead-based paint

hazards. *

(viii) Development of hazard control op tions, the role of interim controls, and operations and maintenance activities to reduce lead-b ased paint hazards.

(ix) Preparation of a fina l risk assessment report.

(3) Supervisor. (i) Role and responsibilities of a supervisor. Instruction in the topics described in subparagraphs (v), (vii), (viii), (ix), and (x) mu st be included in the hands-on portion of the course.

(i) Role and responsibil ities of a supervisor.

(ii) Background information on lead and its adverse health effects.

(iii) Background information on Federal, St ate, and local regulations and guidance that pertain to lead-based paint abatement.

(iv) Liability and insurance issues rela ting to lead-based paint abatement.

(v) Risk assessment and inspection report interpretation. *

(vi) Development and implementation of an occupant protection plan and abatement report

(vii) Lead-based paint hazard recognition and control. *

(viii) Lead-based paint abatement and lead-based pa int hazard reduction methods, including restricted practices. *

(ix) Interior dust abatement/cleanup or lead-based paint hazard control and

reduction methods. *

(x) Soil and exterior dust abatement or lead-based paint hazard control and

reduction methods. *

(xi) Clearance standards and testing.80

(xii) Cleanup and waste disposal.

(xiii) Recordkeeping.

(4) Project designer. (i) Role and responsibilities of a project designer.

(ii) Development and implementation of an occupant protection plan for large scale abatement projects.

(iii) Lead-based paint abatement and lead-based paint hazard reduction methods, including restricted practices for large-scale abatement projects.

(iv) Interior dust abatement/cleanup or lead hazard control and reduction methods for large-scale abatement projects.

(v) Clearance standards and testing for large scale abatement projects.

(vi) Integration of lead -based paint abatement met hods with modernization and rehabilitation projects for larg e scale abatement projects.

(5) Abatement worker. (i) Role and responsibilities of an abatement worker. Instruction in the topics described in subpara graphs (iv), (v), (vi) , and (vii) must be included in the hands-on portion of the course.

(i) Role and responsibilitie s of an abatement worker.

(ii) Background information on lead and its adverse health effects.

(iii) Background information on Federal, State and local regulations and guidance that pertain to lead-based paint abatement.

(iv) Lead-based paint ha zard recognition and control. *

(v) Lead-based paint abat ement and lead-based paint hazard reduction methods, including restricted practices. *

(vi) Interior dust abatement methods /cleanup or lead-based paint hazard

reduction. *

(vii) Soil and exterior dust abatemen t methods or lead-based paint hazard

reduction. *

(6) Renovator. (i) Role and responsibility of a renov ator. Instruction in the topics described in subparagraphs (iv), (v), (vi), (vii), and (viii) mu st be included in the handson portion of the course.81

(i) Role and respons ibility of a renovator.

(ii) Background information on lead and its adverse health effects.

(iii) Background information on EPA, HUD, OSHA, and other Federal, State, and local regulations and guidance that pertains to lead-based pain t and renovation activities.

(iv) Procedures for using acceptable test kits to determine whether paint is leadbased paint. *

(v) Procedures for collec ting a paint chip sample and sending it to a laboratory recognized by EPA under se ction 405(b) of TSCA. *

(vi) Renovation methods to minimize the creation of dust and lead- based paint

hazards. *

(vii) Interior and exterior containment and cleanup methods. *

(viii) Methods to ensure that the renovation has been properly completed, including cleaning verifica tion, and clearance testing. *

(ix) Waste handling and disposal. *

(x) Providing on-the-job trai ning to other workers.

(xi) Record preparation.

(7) Dust sampling technician. (i) Role and responsibility of a dust sampling

technician. Instruction in the topics described in subparagraphs (iv) and (vi) must be included in the hands-on portion of the course.

(i) Role and responsibility of a dust sampling technician.

(ii) Background information on lead and its adverse health effects.

(iii) Background information on Federal, St ate, and local regulations and guidance that pertains to lead-based pa int and renovation activities.

(iv) Dust sampling methodologies. *

(v) Clearance standa rds and testing.

(vi) Report preparation. *82

(e) Requirements for the accreditati on of refresher training programs. A training program may seek accreditation to offer refresher training co urses in any of the following disciplines: Inspector, risk assessor, superv isor, project designer, abatement worker, renovator, and dust sampling technician. To obtain EPA accreditation to offer refresher training, a training program must meet th e following minimum requirements:

(1) Each refresher course shall review the curriculum topics of the full-length courses listed under paragraph (d) of this section, as appropria te. In addition, to become accredited to offer refresher training courses, training programs shall ensure that their courses of study include, at a minimum, the following:

(i) An overview of current safety practices relating to lead-based paint in general, as well as specific information pertaini ng to the appropriate discipline.

(ii) Current laws and regulations relating to lead-based paint in general, as well as specific information pertaining to the appropriate discipline.

(iii) Current technologies relating to lead -based paint in general, as well as specific information pertaining to the appropriate discipline.

(2) Refresher courses for inspector, ri sk assessor, supervisor, and abatement worker must last a minimum of 8 training hou rs. Refresher courses for project designer, renovator, and dust sampling technician must last a minimum of 4 training hours. Refresher courses for all disciplines except project designer must include a hands-on

component.

(3) For each course offered, the tr aining program shall conduct a hands-on assessment (for all courses except project design er), and at the completion of the course,

a course test.

(4) A training program may apply fo r accreditation of a refresher course concurrently with its applic ation for accreditati on of the corresponding training course as described in paragraph (b) of this section. If so, EPA shall use the approval procedure described in paragraph (b) of this sect ion. In addition, the minimum requirements contained in paragraphs (c) (except for the requirements in paragraph (c)(6)), and (e)(1), (e)(2) and (e)(3) of this s ection shall also apply.

(5) A training program seeking accredita tion to offer refresher training courses only shall submit a written application to EP A containing the followi ng information:

(i) The refresher training program's na me, address, and telephone number.

(ii) A list of courses for whic h it is applying for accreditation.

(iii) The name and documentation of th e qualifications of the training program

manager.83

(iv) The name(s) and documentation of the qualifications of the principal instructor(s).

(v) A statement signed by the traini ng program manager certifying that the refresher training program meet s the minimum requirements established in paragraph (c) of this section, except for the requirements in paragraph (c)(6) of this section. If a training program uses EPA-developed model training ma terials, or training materials approved by

a State or Indian Tribe that ha s been authorized by EPA under § Sec. 745.324 to develop its refresher training course materials, the training manager shall include a statement certifying that, as well.

(vi) If the refresher training course materials are not based on EPA-developed model training materials, th e training program's applic ation for accreditation shall

include:

(A) A copy of the student and instructor manuals to be used for each course.

(B) A copy of the course agenda for each course.

(vii) All refresher training programs shall include in their application for accreditation the following:

(A) A description of the f acilities and equipment to be used for lecture and handson training.

(B) A copy of the course test blueprint for each course.

(C) A description of the ac tivities and procedures that will be used for conducting

the assessment of hands-on skills fo r each course (if applicable).

(D) A copy of the quality control plan as described in paragraph (c)(9) of this

section.

(viii) The requirements in paragraphs (c)(1) through (c)(5 ), and (c)(7) through (c)(14) of this section apply to refresher training providers.

(ix) If a refresher training program meets the requirements listed in this paragraph, then EPA shall approve the appl ication for accreditation no more than 180 days after receiving a complete application from the refresher training program. In the case of approval, a certificate of accreditation shall be sent to the applicant. In the case of disapproval, a letter describing the reasons for disapproval shall be sent to the applicant. Prior to disapproval, EPA may, at its discre tion, work with the applicant to address inadequacies in the application for accreditation. EPA may also request additional materials retained by the refresher training prog ram under paragraph (i) of this section. If84

a refresher training program's application is disapproved, the program may reapply for accreditation at any time.

(f) Re-accreditation of training programs . (1) Unless re-accredited, a training program's accreditation

, ( including refresher training accreditation )

, shall expire 4 years after the date of issuance. If a training progr am meets the requirement s of this section, the training program shall be re-accredited.

(2) A training program seeking re-accre ditation shall submit an application to EPA no later than 180 days before its accredit ation expires. If a tr aining program does not submit its application for re -accreditation by that date, EPA cannot guarantee that the program will be re-accredited before the end of the accreditation period.

(3) The training program's application for re-accreditation shall contain:

(i) The training program's name, address, and telephone number.

(ii) A list of courses for which it is applying for re- accreditation.

(iii) The name and qualifications of the training program manager.

(iv) The name(s) and qualifications of the principal instructor(s).

(v) A description of any changes to th e training facility, equipment or course materials since its last application was a pproved that adversely affects the students’ ability to learn.

(vi) A statement signed by the program manager stating:

(A) That the training program complies at all times with all requirements in paragraphs (c) and (e) of this section, as applicable; and

(B) The recordkeeping and re porting requirements of para graph (i) of this section

shall be followed.

(vii) A payment of appropria te fees in accordance with § Sec. 745.238.

(4) Upon request, the training program shall allow EPA to audit the training program to verify the contents of the app lication for re- accreditation as described in paragraph (f)(3) of this section.

(g) Suspension, revocation, and modification of accredited training programs . (1) EPA may, after notice and an opportunity for hearing, suspend, revoke, or modify training program accreditation

, ( including refresher training accreditation

, ) if a training program, training manager, or other person with supervisory authority over the training program has:85

(i) Misrepresented the cont ents of a training course to EPA and/or the student population.

(ii) Failed to submit required information or notifications in a timely manner.

(iii) Failed to maintain required records.

(iv) Falsified accreditati on records, instructor qualifications, or other

accreditation-related information or documentation.

(v) Failed to comply with the training st andards and requirements in this section.

(vi) Failed to comply with Federal, Stat e, or local lead-based paint statutes or regulations.

(vii) Made false or misleading statem ents to EPA in its application for

accreditation or re-acc reditation which EPA relied upon in approving the application.

(2) In addition to an administrative or judicial finding of violation, execution of a consent agreement in settlement of an enforcement action constitutes, for purposes of this section, evidence of a failure to comply w ith relevant statutes or regulations.

(h) Procedures for suspension, revocation or modification of training program

accreditation . (1) Prior to taking action to suspen d, revoke, or modify the accreditation of a training program, EPA shall no tify the affected entity in writing of the following:

(i) The legal and factual basis for the suspension, revocation, or modification.

(ii) The anticipated commencement date and duration of the suspension, revocation, or modification.

(iii) Actions, if any, which the affected entity may take to avoid suspension, revocation, or modification, or to receive accredita tion in the future.

(iv) The opportunity and method for re questing a hearing prior to final EPA action to suspend, revoke or modify accreditation.

(v) Any additional information, as a ppropriate, which EPA may provide.

(2) If a hearing is requested by the ac credited training program, EPA shall:

(i) Provide the affected entity an oppor tunity to offer written statements in response to EPA's assertions of the legal a nd factual basis for its proposed action, and any other explanations, comments, and arguments it deems relevant to the proposed action.86

(ii) Provide the affected entity such other procedural oppor tunities as EPA may deem appropriate to ensure a fair and impartial hearing.

(iii) Appoint an official of EPA as Pr esiding Officer to c onduct the hearing. No person shall serve as Presiding Officer if he or she has had any prior connection with the specific matter.

(3) The Presiding Officer appointed pursu ant to paragraph (h)(2 ) of this section

shall:

(i) Conduct a fair, orderly, a nd impartial hearing within 90 days of the request for a hearing.

(ii) Consider all relevant eviden ce, explanation, comment, and argument

submitted.

(iii) Notify the affected entity in writing within 90 days of completion of the hearing of his or her decision and order. Such an order is a final agency action which may be subject to judicial review.

(4) If EPA determines that the public health, interest, or welfare warrants immediate action to suspend the accreditation of any trai ning program prior to the opportunity for a hearing, it shall:

(i) Notify the affected entity of its inte nt to immediately suspend training program accreditation for the reasons listed in paragra ph (g)(1) of this section. If a suspension, revocation, or modification notice has not prev iously been issued pursuant to paragraph (g)(1) of this section, it shall be issued at the same time the emergency suspension notice

is issued.

(ii) Notify the affected entity in wr iting of the grounds for the immediate suspension and why it is necessary to susp end the entity's accreditation before an opportunity for a suspension, revocat ion or modification hearing.

(iii) Notify the affected entity of the anticipated commencement date and duration of the immediate suspension.

(iv) Notify the affected entity of its right to request a hearing on the immediate suspension within 15 days of the suspensi on taking place and the procedures for the conduct of such a hearing.

(5) Any notice, decision, or order issued by EPA under this section, any transcripts or other verbatim record of oral testimony, and any documents filed by an accredited training program in a hearing under this section shall be available to the public, except as otherwise provid ed by section 14 of TSCA or by 40 CFR part 2 of this

title . Any such hearing at which oral testimony is presented shall be open to the public,87

except that the Presiding Officer may exclude the public to the extent necessary to allow presentation of information which may be en titled to confidential treatment under section

14 of TSCA or 40 CFR part 2 of this title

.

(6) The public shall be notified of the suspension, revocati on, modification or reinstatement of a training program's accr editation through appropriate mechanisms.

(7) EPA shall maintain a list of part ies whose accreditation has been suspended, revoked, modified or reinstated.

(i) Training program recordkeeping requirements . (1) Accredited training programs shall maintain, and make available to EPA, upon request, the following

records:

(i) All documents specified in paragraph (c )(4) of this section that demonstrate the qualifications listed in paragraphs (c)(1) and (c)(2) of this section of the training manager and principal instructors.

(ii) Current curriculum/course materi als and documents reflecting any changes

made to these materials.

(iii) The course test blueprint.

(iv) Information regarding how the hands-on assessment is conducted including,

but not limited to:

(A) Who conducts the assessment.

(B) How the skills are graded.

(C) What facilities are used.

(D) The pass/fail rate.

(v) The quality control plan as described in paragraph (c)(9) of this section.

(vi) Results of the students' hands-on sk ills assessments and course tests, and a record of each student's course completion certificate.

(vii) Any other material not listed above in paragraphs (i)(1)(i) through (i)(1)(vi) of this section that was submitted to EPA as part of the program's application for

accreditation.

(viii) For renovator refresher and dust sampling technician refresher courses, a copy of each trainee’s prior course completi on certificate showing that each trainee was eligible to take the refresher course.88

(ix) For course modules delivered in an electronic format, a record of each student’s log-ins, launches, progress, a nd completion, and a copy of the electronic learning completion certific ate for each student.

(2) The training program must retain records pertaining to lead-based paint activities courses at the address specif ied on the training program accreditation application (or as modified in accordance with paragraph (i)(3) of this section) for a minimum of 3 years and 6 months. Records pertaining to renovato r or dust sampling

technician courses must be retained at th e address specified on the training program accreditation application (or as modified in accordance with paragr aph (i)(3) of this section) for a minimum of 5 years.

(3) The training program shall notify EPA in writing within 30 days of changing the address specified on its training program accreditation application or transferring the

records from that address.

(j) Amendment of accreditation . (1) A training program must amend its accreditation within 90 days of the date a chan ge occurs to information included in the program’s most recent applicati on. If the training program fails to amend its accreditation within 90 days of the date the change o ccurs, the program may not provide renovator, dust sampling technician, or lead-based paint activities training until its accreditation is

amended.

(2) To amend an accreditation, a training program must submit a completed “Accreditation Application for Training Provide rs,” signed by an aut horized agent of the training provider, noting on the form that it is submitted as an amendment and indicating the information that has changed.

(3) If the amendment includes a new training program manager, any new or additional principal instructor (s), or any new permanent tr aining location(s), the training provider is not permitted to provide traini ng under the new training manager or offer courses taught by any new principal instructor (s) or at the new training location(s) until EPA either approves the amendment or 30 days ha ve elapsed, whichever occurs earlier.

7 9 . Section 745.238 would be amended by a dding paragraph (c)(5 ) to read as

follows:

§ 745.238 Fees for accreditation and certificatio n of lead-based paint activities.

* * * * *

(c) * * *

(5) No fee will be charged for accreditation amendments.

* * * * *89

10 8 . Section 745.326 would be amended by revising paragraphs (a)(2) (i), (a)(2)(ii) , (d), (e)(1), and (e) (3), and adding paragraph (f) to read as follows:

§ 745.326 Renovation: State and Tribal program requirements.

(a) * * *

(2) * * *

(i) Procedures and requirements for the accreditation of renovation and dust sampling technician training progr ams. (Note: a State and Tr ibal program is not required to include procedures and requirements fo r the dust sampling technician training discipline if the State or Tribal program requires dust sampling to be performed by a certified lead-based paint inspector or risk assessor.)

(ii) Procedures and requirements for accredited initial and refresher training for renovators and dust sampling technicians and on-the-job training for other individuals who perform renovations.

* * * * *

(d) Certification of individual s and/or renovation firms. To be considered at least as protective as the Federal program , the State or Tribal program must:

(1) Establish procedures and requireme nts that ensure that individuals who perform or direct renovations are properly trained. These proce dures and requirements

must include:

(i) A requirement that renovations be performed and directed by at least one

individual who has been trained by an accredited training program.

(ii) Procedures and requirements fo r accredited refresher training for these

individuals.

(iii) Procedures and requirements for cer tified renovators to provide on-the-job training for those individuals who perform renovations but do not receive accredited training.

(2) Establish procedures and requireme nts for the formal certification and recertification of either indi viduals or renovation firms.

(3) Establish procedures for the su spension, revocation, or modification of

certifications.

(e) * * *90

(1) Renovations must be conducted only by certified individuals and/or certified

renovation firms.

* * * * * (2) * * *

(3) Certified individuals a nd/or renovation firms must re tain appropriate records.

(f) Revisions to renovation program requirements. If EPA revises the renovation program requirements contained in subparts E and L of this part :

(1) A State or Tribe with a renovation pr ogram approved before the effective date

of the revisions must demonstrate that it m eets the requirements of this section no later than the first report that it submits pursuant to §745.324(h) no later than one year after the

effective date of the revisions.

(2) A State or Tribe with an applicat ion for approval of a renovation program submitted but not approved before the effective date of the revisions must demonstrate that it meets the requirements of this secti on either by amending its application or in the first report that it s ubmits pursuant to §745.324(h) of this part no later than one year after

the effective date of the revisions.

(3) A State or Indian Tribe submitting its application for approval of a renovation program on or after the effectiv e date of the revisions must demonstrate in its application that it meets the requirements of this section.

11 9 . Section 745.327 would be amended by revising paragraphs (b) (1), the introductory text of paragraph (b)( 2), (b)(2)(i), and (b)(2)(iii), (b)(3), and (c) (2) to read as

follows:

§ 745.327 State or Indian Tribal lead-based paint compliance and enforcement

programs.

* * * * *

(b) * * *

(1) Lead-based paint activities or renovation requirements. State or Tribal leadbased paint compliance and enforcement progr ams will be considered adequate if the

State or Indian Tribe demonstr ates, in its application at § Sec. 745.324(b)(2), that it has established a lead-based paint program that contains all of the elements specified in § Sec.

745.325 or § Sec. 745.326, or both, as applicable.

(2) Authority to enter. State or Tribal officials must be able to enter, through consent, warrant, or other authority, prem ises or facilities where lead-based paint violations may occur for purpos es of conducting inspections.91

(i) State or Tribal officials must be able to enter premises or facilities where those engaged in training for lead-based paint activities or renovati ons conduct business.

(ii) For the purposes of enforcing a renovation program, State or

Tribal officials must be able to enter a firm’s place of business or work site. *

* *

(iii) State or Tribal officials must ha ve authority to take samples and review records as part of the lead-b ased paint inspection process.

(3) Flexible remedies . A State or Tribal lead-based paint compliance and enforcement program must provide for a di verse and flexible array of enforcement statutory and regulatory author ities and remedies. At a minimum, these authorities and remedies, which must also be reflected in an enforcement response policy, must include the following:

(i) T t he authority to issue warning letters, Notices of Noncompliance, Notices of Violation, or the equivalent;

(ii) T t he authority to assess administrative or civil fines, including a maximum penalty authority for any violation in an amount no less than $10,000 per violation per day;

(iii) T t he authority to assess the maximum pena lties or fines for each instance of violation and, if the viol ation is continuous, the authority to assess penalties or fines up to the maximum amount for each day of violation, with all penalties as sessed or collected being appropriate for the violation after consideration of the size or viability of the business, enforcement history, risks to huma n health or the environment posed by the violation, and other similar factors;

(iv) T t he authority to commence an administra tive proceeding or to sue in courts of competent jurisdiction to recover penalties;

(v) T t he authority to suspend, revoke, or m odify the accreditati on of any training provider or the certification of any individual or firm;

(vi) T t he authority to commence an administra tive proceeding or to sue in courts of competent jurisdiction to enjoin any threat ened or continuing vi olation of any program requirement, without the necessity of a prio r suspension or revocation of a trainer’s

accreditation or a firm’s or individual’s certification;

(vii) T t he authority to apply criminal sanc tions, including recovering fines; and (viii) The authority to enforce its au thorized program using a burden of proof standard, including the degree of knowledge or intent of the respondent that is no greater

than it is for EPA under TSCA.92

(c) * * *

(2) Compliance assistance. A State or Tribal lead-based paint compliance and enforcement program must provide compliance assistance to the public and the regulated community to facilitate awareness and unders tanding of and compliance with State or Tribal requirements governing the conduct of lead-based pa int activities or renovations. The type and nature of this assistance can be defined by the State or Indian Tribe to achieve this goal.

* * * * *

[FR Doc. 1 0 9 –????? Filed ??–??– 1 0 9 ; 8:45 am]

BILLING CODE 6560–50–S