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[Federal Register: May 6, 2010 (Volume 75, Number 87)]
[Proposed Rules]               
[Page 25037-25073]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my10-21]                         

[[Page 25037]]

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Part II

Environmental Protection Agency

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40 CFR Part 745

Lead; Clearance and Clearance Testing Requirements for the Renovation, 
Repair, and Painting Program; Proposed Rule

[[Page 25038]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2005-0049; FRL-8823-5]
RIN 2070-AJ57

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing several revisions to the 2008 Lead 
Renovation, Repair, and Painting Program (RRP) rule that established 
accreditation, training, certification, and recordkeeping requirements 
as well as work practice standards for persons performing renovations 
for compensation in most pre-1978 housing and child-occupied 
facilities. EPA is particularly concerned about dust-lead hazards 
generated by renovations because of the well-documented toxicity of 
lead, especially to younger children. This proposal includes additional 
requirements designed to ensure that lead-based paint hazards generated 
by renovation work are adequately cleaned after renovation work is 
finished and before the work areas are re-occupied. Specifically, EPA 
is proposing to require dust wipe testing after many renovations 
covered by the RRP rule. For a subset of jobs involving demolition or 
removal of plaster through destructive means or the disturbance of 
paint using machines designed to remove paint through high-speed 
operation, such as power sanders or abrasive blasters, this proposal 
would also require the renovation firm to demonstrate, through dust 
wipe testing, that dust-lead levels remaining in the work area are 
below regulatory levels.

DATES: Comments must be received on or before July 6, 2010.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2005-0049, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA 
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. 
Attention: Docket ID Number EPA-HQ-OPPT-2005-0049. The DCO is open from 
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the DCO is (202) 564-8930. Such deliveries are 
only accepted during the DCO's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2005-0049. EPA's policy is that all comments received will be included 
in the docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through regulations.gov or e-mail. The 
regulations.gov Web site is an ``anonymous access'' system, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through regulations.gov, your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index 
available at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available 
electronically at http://www.regulations.gov, or, if only available in 
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA 
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution 
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of 
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number of the EPA/DC Public Reading Room 
is (202) 566-1744, and the telephone number for the OPPT Docket is 
(202) 566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: TSCA-Hotline@epa.gov.
    For technical information contact: Cindy Wheeler, National Program 
Chemicals Division, Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (202) 566-0484; e-mail 
address: wheeler.cindy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you perform 
renovations of target housing or child-occupied facilities for 
compensation, dust sampling, or dust testing. You may also be affected 
by this action if you perform lead-based paint inspections, lead hazard 
screens, risk assessments or abatements in target housing or child-
occupied facilities or if you operate a training program for 
individuals who perform any of these activities. ``Target housing'' is 
defined in section 401 of TSCA as any housing constructed prior to 
1978, except housing for the elderly or persons with disabilities 
(unless any child under age 6 resides or is expected to reside in such 
housing) or any 0-bedroom dwelling. Under this rule, a child-occupied 
facility is a building, or a portion of a building, constructed prior 
to 1978, visited regularly by the same child, under 6 years of age, on 
at least 2 different days within any week (Sunday through Saturday 
period), provided that each day's visit lasts at least 3 hours and the 
combined weekly visits last at least 6 hours, and the combined annual 
visits last at least 60 hours. Potentially-affected entities may 
include, but are not limited to:
     Building construction (NAICS code 236), e.g., single 
family housing

[[Page 25039]]

construction, multi-family housing construction, residential 
remodelers.
     Specialty trade contractors (NAICS code 238), e.g., 
plumbing, heating, and air-conditioning contractors, painting and wall 
covering contractors, electrical contractors, finish carpentry 
contractors, drywall and insulation contractors, siding contractors, 
tile and terrazzo contractors, glass and glazing contractors.
     Real estate (NAICS code 531), e.g., lessors of residential 
buildings and dwellings, residential property managers.
     Child day care services (NAICS code 624410).
     Elementary and secondary schools (NAICS code 611110), 
e.g., elementary schools with kindergarten classrooms.
     Other technical and trade schools (NAICS code 611519), 
e.g., training providers.
     Engineering services (NAICS code 541330) and building 
inspection services (NAICS code 541350), e.g., dust sampling 
technicians.
     Lead abatement professionals (NAICS code 562910), e.g., 
firms and supervisors engaged in lead-based paint activities.
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the technical person listed under FOR FURTHER 
INFORMATION CONTACT.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and 
then identify electronically within the disk or CD-ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Introduction

A. What action is the agency taking?

    EPA is proposing several revisions to the 2008 Lead Renovation, 
Repair, and Painting Program (RRP) rule (Ref. 1) that established 
accreditation, training, certification, and recordkeeping requirements 
as well as work practice standards for persons performing renovations 
for compensation in most pre-1978 housing and child-occupied 
facilities. EPA is particularly concerned about dust-lead hazards 
generated by renovations because of the well-documented toxicity of 
lead, especially to younger children. This proposal includes additional 
requirements designed to ensure that lead-based paint hazards generated 
by renovation work are adequately cleaned after renovation work is 
finished and before the areas are re-occupied. Specifically, EPA is 
proposing to require dust wipe testing after many renovations covered 
by the RRP rule. For a subset of jobs involving demolition or removal 
of plaster through destructive means or the disturbance of paint using 
machines designed to remove paint through high-speed operation, such as 
power sanders or abrasive blasters, this proposal would also require 
the renovation firm to demonstrate, through dust wipe testing, that 
dust-lead levels remaining in the work area are below regulatory 
levels. EPA is not, however, reopening other aspects of the work 
practices required by the 2008 RRP rule.
    EPA is also proposing various minor amendments to the regulations 
concerning applications for training provider accreditation, amending 
accreditations, course completion certificates, record keeping, State 
and Tribal program requirements, and grandfathering (i.e., taking a 
refresher training in lieu of the initial training). In addition, the 
proposed amendments intend to clarify that certain requirements apply 
to the RRP rule as well as the Lead-Based Paint Activities (abatement) 
regulations, that the prohibitions and restrictions on work practices 
in the RRP rule apply to the disturbance of any painted surface, that 
certified renovators need only provide on-the-job training to other 
renovation workers in the work practices required by the rule, that a 
certified inspector or risk assessor can act as a dust sampling 
technician, which hands-on training topics are required for renovator 
and dust sampling technician courses, and requirements for States and 
Tribes that apply to become authorized to implement the RRP program. 
Again, EPA is not reopening for consideration any aspects of the 
existing regulations, except as provided in today's proposal.

B. What is the agency's authority for taking this action?

    These work practice requirements for dust wipe testing and 
clearance, training, certification and accreditation requirements, and 
State, Territorial and Tribal authorization provisions are being 
promulgated under the authority of sections 402(c)(3), 404, and 407 of 
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2682(c)(3), 2684, 
and 2687.

C. Background

    1. Health effects of lead exposure. This Unit describes some of the 
more significant health effects of lead exposure and the routes of 
exposure associated with lead in paint. Much more information is 
available in the preamble to the 2008 Lead Renovation, Repair, and 
Painting (RRP) Rule (Ref. 1) and the Air Quality Criteria for Lead 
document (Ref. 2).
    Lead has been known throughout the ages for its useful properties, 
having been commonly used in the production of paint, batteries, pipes, 
solder, pottery, and gasoline. Lead is also known for its ``broad array 
of deleterious effects on multiple organ systems via widely diverse 
mechanisms of action.'' (Ref. 2) This array of health effects includes 
heme biosynthesis and related

[[Page 25040]]

functions; neurological development and function; reproduction and 
physical development; kidney function; cardiovascular function; and 
immune function. There is also some evidence of lead carcinogenicity, 
primarily from animal studies, together with limited human evidence of 
suggestive associations.
    Of particular interest to EPA during the RRP rulemaking was the 
delineation of lowest observed effect levels for those lead-induced 
effects that are most clearly associated with blood lead levels of less 
than 10 micrograms per deciliter ([mu]g/dL) in children and adults 
(Ref. 2, at 8-60). As is evident from the Criteria Document, neurotoxic 
effects in children and cardiovascular effects in adults are among 
those best substantiated as occurring at blood-lead concentrations as 
low as 5 to 10 [mu]g/dL (or possibly lower), so these categories of 
effects would result in the greatest public health concern. Other newly 
demonstrated immune and renal system effects among general population 
groups are also emerging as low-level lead-exposure effects of 
potential public health concern (Ref. 2, at 8-60).
    Among the wide variety of health endpoints associated with lead 
exposures, there is general consensus that the developing nervous 
system in children is among the, if not the, most sensitive. While 
blood lead levels in U.S. children have decreased notably since the 
late 1970s, newer studies have investigated and reported associations 
of effects on the neurodevelopment of children with these more recent 
blood lead levels (Ref. 2, chapter 6). Functional manifestations of 
lead neurotoxicity during childhood include sensory, motor, cognitive, 
and behavioral impacts. Numerous epidemiological studies have reported 
neurocognitive, neurobehavioral, sensory, and motor function effects in 
children with blood lead levels below 10 [mu]g/dL (Ref. 2, sections 6.2 
and 8.4. [FN 7. Further, neurological effects in general include 
behavioral effects, such as delinquent behavior (Ref. 2, sections 6.2.6 
and 8.4.2.2), sensory effects, such as those related to hearing and 
vision (Ref. 2, sections 6.2.7 and 8.4.2.3), and deficits in neuromotor 
function (Ref. 2, p. 8-36).] As discussed in the Criteria Document, 
``extensive experimental laboratory animal evidence has been generated 
that (a) substantiates well the plausibility of the epidemiologic 
findings observed in human children and adults and (b) expands our 
understanding of likely mechanisms underlying the neurotoxic effects'' 
(Ref. 2, p. 8-25; section 5.3).
    Cognitive effects associated with lead exposures that have been 
observed in epidemiological studies have included decrements in 
intelligence test results, such as the widely used IQ score, and in 
academic achievement as assessed by various standardized tests as well 
as by class ranking and graduation rates (Ref. 2, section 6.2.16 and 
pp. 8-29 to 8-30). As noted in the Criteria Document with regard to the 
latter, ``Associations between lead exposure and academic achievement 
observed in the above-noted studies were significant even after 
adjusting for IQ, suggesting that lead-sensitive neuropsychological 
processing and learning factors not reflected by global intelligence 
indices might contribute to reduced performance on academic tasks'' 
(Ref. 2, pp. 8-29 to 8- 30).
    With regard to potential implications of lead effects on IQ, the 
Criteria Document recognizes the ``critical'' distinction between 
population and individual risk, identifying issues regarding declines 
in IQ for an individual and for the population. The Criteria Document 
further states that a ``point estimate indicating a modest mean change 
on a health index at the individual level can have substantial 
implications at the population level'' (Ref. 2, p. 8-77). [FN 8. As an 
example, the Criteria Document states, ``although an increase of a few 
mm Hg in blood pressure might not be of concern for an individual's 
well-being, the same increase in the population mean might be 
associated with substantial increases in the percentages of individuals 
with values that are sufficiently extreme that they exceed the criteria 
used to diagnose hypertension'' (Ref. 2, p. 8-77).] A downward shift in 
the mean IQ value is associated with both substantial decreases in 
percentages achieving very high scores and substantial increases in the 
percentage of individuals achieving very low scores (Ref. 2, p. 8-81). 
[FN 9. For example, for a population mean IQ of 100 (and standard 
deviation of 15), 2.3% of the population would score above 130, but a 
shift of the population to a mean of 95 results in only 0.99% of the 
population scoring above 130 (Ref. 2, pp. 8-81 to 8-82).] For an 
individual functioning in the low IQ range due to the influence of 
developmental risk factors other than lead, a lead-associated IQ 
decline of several points might be sufficient to drop that individual 
into the range associated with increased risk of educational, 
vocational, and social failure (Ref. 2, p. 8-77).
    Other cognitive effects observed in studies of children have 
included effects on attention, executive functions, language, memory, 
learning, and visuospatial processing (Ref. 2, sections 5.3.5, 6.2.5, 
and 8.4.2.1), with attention and executive function effects associated 
with lead exposures indexed by blood lead levels below 10 [mu]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 lead-induced effects is described in the 
proposal and the Criteria Document (e.g., Ref. 2, sections 5.3.5, 
6.2.11, and 8.5.2). The persistence or irreversibility of such effects 
can be the result of damage occurring without adequate repair offsets 
or of the persistence of lead in the body (Ref. 2, section 8.5.2). It 
is additionally important to note that there may be long-term 
consequences of such deficits over a lifetime. Poor academic skills and 
achievement can have ``enduring and important effects on objective 
parameters of success in real life,'' as well as increased risk of 
antisocial and delinquent behavior (Ref. 2, section 6.2.16).
    Multiple epidemiologic studies of lead and child development have 
demonstrated inverse associations between blood lead concentrations and 
children's IQ and other cognitive-related outcomes at successively 
lower lead exposure levels over the past 30 years (Ref. 2, section 
6.2.13). For example, the overall weight of the available evidence, 
described in the Criteria Document, provides clear substantiation of 
neurocognitive decrements being associated in children with mean blood 
lead levels in the range of 5 to 10 [mu]g/dL, and some analyses 
indicate lead effects on intellectual attainment of children for which 
population mean blood lead levels in the analysis ranged from 2 to 8 
[mu]g/dL (Ref. 2, sections 6.2, 8.4.2, and 8.4.2.6). Thus, while blood 
lead levels in U.S. children have decreased notably since the late 
1970s, newer studies have investigated and reported associations of 
effects on the neurodevelopment of children with blood lead levels 
similar to the more recent, lower blood lead levels (Ref. 2, chapter 
6).
    Paint that contains lead can pose a health threat through various 
routes of exposure. House dust is the most common exposure pathway 
through which children are exposed to lead-based paint hazards. Dust 
created during normal lead-based paint wear (especially around windows 
and doors)

[[Page 25041]]

can create an invisible film over surfaces in a house. Children, 
particularly younger children, are at risk for high exposures of lead-
based paint dust via hand-to-mouth exposure, and may also ingest lead-
based paint chips from flaking paint on walls, windows, and doors. Lead 
from exterior house paint can flake off or leach into the soil around 
the outside of a home, contaminating children's play areas. Cleaning 
and renovation activities may actually increase the threat of lead-
based 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 Study, described more fully in 
Unit III.C.1.c. of the preamble to the 2006 Proposal, provides ample 
evidence of a link between renovation activities and elevated blood 
lead levels in resident children (Ref. 3). This peer-reviewed study 
concluded that general residential renovation and remodeling is 
associated with an increased risk of elevated blood lead levels in 
children and that specific renovation and remodeling activities are 
also associated with an increase in the risk of elevated blood lead 
levels in children. In particular, removing paint (using open flame 
torches, using heat guns, using chemical paint removers, and wet 
scraping/sanding) and preparing surfaces by sanding or scraping 
significantly increased the risk of elevated blood lead levels.
    Three studies from New York support the findings of the Wisconsin 
Childhood Blood-Lead Study. In 1995, the New York State Department of 
Health assessed lead exposure among children resulting from home 
renovation and remodeling in 1993-1994. A review of the health 
department records of children with blood lead levels equal to or 
greater than 20 [mu]g/dL identified 320, or 6.9%, with elevated blood 
lead levels that were attributable to renovation and remodeling (Ref. 
4). An update to that study with data from environmental investigations 
conducted during 2006-2007 in New York State (excluding New York City) 
identified renovation, repair, and painting activities as the probable 
source of lead exposure in 14% of 972 children with blood lead levels 
equal to or exceeding 20 [mu]g/dL (Ref. 5). The authors concluded that 
children living in housing undergoing renovation, repair, and painting 
that was built before 1978, and particularly before 1950, when 
concentrations of lead in paint were higher, are at high risk for 
elevated blood lead levels. The final study was a case-control study 
that assessed the association between elevated blood lead levels in 
children younger than 5 years and renovation or repair activities in 
homes in New York City (Ref. 6). EPA notes that the authors show that 
when dust and debris was reported (by respondents via telephone 
interviews) to be ``everywhere'' following a renovation, the blood lead 
levels were significantly higher than children at homes that did not 
report remodeling work. On the other hand, when the respondent reported 
either ``no visible dust and debris'' or that ``dust and debris was 
limited to the work area,'' there was no statistically significant 
effect on blood lead levels relative to homes that did not report 
remodeling work. Although the study found only a weak and 
nonsignificant link between a report of any renovation activity and the 
likelihood that a resident child had an elevated blood-lead level, the 
link to the likelihood of an elevated blood-lead level was 
statistically significant for surface preparation by sanding and for 
renovation work that spreads dust and debris beyond the work area. The 
researchers noted the consistency of their results with EPA's Wisconsin 
Childhood Blood-Lead Study (Ref. 6, at 509).
    Children in minority populations and children whose families are 
poor have an increased risk of exposure to harmful lead levels (Ref. 7, 
at e376). Analysis of the National Health and Nutrition Examination 
Surveys (NHANES) data from 1988 through 2004 shows that the prevalence 
of blood lead levels equal to or exceeding 10 [mu]g/dL in children aged 
1 to 5 years has decreased from 8.6% in 1988-1991 to 1.4% in 1999-2004, 
which is an 84% decline (Ref. 7, at e377). However, the NHANES data 
from 1999-2004 indicates that non-Hispanic black children aged 1 to 5 
years had higher percentages of blood lead levels equal to or exceeding 
10 [mu]g/dL (3.4%) than white children in the same age group (1.2%) 
(Ref. 7). In addition, among children aged 1 to 5 years over the same 
period, the geometric mean blood lead level was significantly higher 
for non-Hispanic blacks (2.8 [mu]g/dL), compared with Mexican Americans 
(1.9 [mu]g/dL) and non-Hispanic whites (1.7 [mu]g/dL) (Ref. 7, at 
e377). For children aged 1 to 5 years from families with low income, 
the geometric mean blood lead level was 2.4 [mu]g/dL (Ref. 7, at e377). 
Further, the incidences of blood-lead levels greater than 10 [mu]g/dL 
and greater than or equal to 5 [mu]g/dL were higher for non-Hspanic 
blacks (14% and 3.4% respectively) than for Mexican Americans (4.7% and 
1.2%, respectively) and non-Hispanic whites (4.4% and 1.2%, 
respectively). (Ref. 7, at e377). The analysis ``indicates that 
residence in older housing, poverty, age, and being non-Hispanic black 
are still major risk factors for higher lead levels'' (Ref. 7, at 
e376).
    2. Prior EPA rulemakings under TSCA Sections 402(a) and 403. TSCA 
section 402(a) directs EPA to promulgate regulations covering lead-
based paint activities, such as abatement, to ensure persons performing 
these activities are properly trained, that training programs are 
accredited, and that contractors performing these activities are 
certified. These regulations must contain standards for performing 
lead-based paint activities, taking into account reliability, 
effectiveness, and safety. On August 29, 1996, EPA promulgated final 
regulations under TSCA section 402(a) that govern lead-based paint 
inspections, lead hazard screens, risk assessments, and abatements in 
target housing and child-occupied facilities (also referred to as the 
Lead-based Paint Activities Regulations) (Ref. 8). These regulations, 
codified at 40 CFR part 745, subpart L, contain an accreditation 
program for training providers and training and certification 
requirements for lead-based paint inspectors, risk assessors, project 
designers, abatement supervisors, and abatement workers. Work practice 
standards for lead-based paint activities are included. Pursuant to 
TSCA section 404, provision was made for interested States, 
Territories, and Indian Tribes to apply for and receive authorization 
to administer their own lead-based paint activities programs. The 
regulations applicable to State, Territorial, and Tribal programs are 
codified at 40 CFR part 745, subpart Q.
    The work practice standards for abatements in the Lead-based Paint 
Activities Regulations are essentially performance standards. They give 
a trained and certified abatement contractor some discretion in 
determining how best to ensure that an abatement is performed safely, 
so long as the contractor can demonstrate that the abatement has been 
properly completed and that no lead-based paint hazards remain. Certain 
high dust generating practices are prohibited and contractors are 
required to prepare occupant protection plans specifically describing 
the procedures to be followed on each job to protect occupants from 
exposures to lead-based paint hazards. In most cases, residents 
relocate until the abatement has been

[[Page 25042]]

completed. Although these additional procedures are not specified in 
the regulations, abatement supervisor and worker courses provide 
comprehensive training in the specialized techniques these individuals 
can use to contain work areas, remove, enclose, or encapsulate lead-
based paint and lead-based paint hazards, and clean up after the job is 
finished. The regulations are much more detailed in describing the 
procedures that must be followed to ensure that the abatement has been 
properly completed and that the work area is ready for re-occupancy. 
These procedures, typically referred to as ``clearance,'' must be 
performed by a certified inspector or risk assessor. First, a visual 
inspection must be performed to determine whether deteriorated painted 
surfaces or visible amounts of dust, debris, or residue are still 
present. If so, these conditions must be eliminated before the 
clearance procedures may continue. An exterior abatement project is 
considered complete after a successful visual inspection. Following a 
successful visual inspection after an interior abatement project, the 
inspector or risk assessor must collect dust wipe samples from floors, 
windowsills, and window troughs in the work area and have them analyzed 
by a laboratory accredited under the National Lead Laboratory 
Accreditation Program (NLLAP) for dust lead analysis. After the 
sampling results are received, the inspector or risk assessor must 
compare them with the established clearance standards for lead in dust. 
If all of the samples are below the clearance standards, the abatement 
is complete and the area may be re-occupied. If any samples are above 
the standards, the components represented by those samples must be re-
cleaned and the clearance process must be repeated until all samples 
are below the clearance standards. For example, if any interior window 
sills fail clearance, all of the unsampled window sills, as well as the 
failed window sills, must be recleaned and retested. If the abatement 
was conducted in multiple dwelling units, and units were selected for 
random testing, the window sills in the unsampled units would also have 
to be recleaned and retested.
    TSCA section 403 directs EPA to promulgate regulations that 
identify, for the purposes of Title X and Title IV of TSCA, dangerous 
levels of lead in paint, dust, and soil. These regulations were 
promulgated on January 5, 2001 and codified at 40 CFR part 745, subpart 
D (Ref. 9). These hazard standards define lead-based paint hazards in 
target housing and child-occupied facilities as paint-lead, dust-lead, 
and soil-lead hazards. A paint-lead hazard is defined as any damaged or 
deteriorated lead-based paint, any chewable lead-based painted surface 
with evidence of teeth marks, or any lead-based paint on a friction 
surface if lead dust levels underneath the friction surface exceed the 
dust-lead hazard standards. A dust-lead hazard is surface dust that 
contains a mass-per-area concentration of lead equal to or exceeding 40 
micrograms per square foot ([mu]g/ft\2\) on floors or 250 [mu]g/ft\2\ 
on interior windowsills based on wipe samples. A soil-lead hazard is 
bare soil that contains total lead equal to or exceeding 400 parts per 
million (ppm), equivalent to 400 micrograms per gram ([mu]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 amended the Lead-based Paint 
Activities Regulations to incorporate new dust-lead clearance standards 
for abatements. These standards are 40 [mu]g/ft\2\ on floors, 250 
[mu]g/ft\2\ on interior windowsills, and 400 [mu]g/ft\2\ on window 
troughs, based on wipe samples.
    On August 10, 2009, EPA received a petition requesting that EPA 
lower the regulatory dust-lead hazard standard and modify the 
regulatory definition of lead-based paint. After careful consideration, 
EPA decided to grant the request and accordingly intends to begin the 
appropriate proceedings. Although EPA granted the request, the Agency 
did not commit to either a specific rulemaking outcome or a certain 
date for promulgation of a final rule. EPA's primary reason for 
granting the request was based on recent epidemiological studies that 
indicate the current hazard standards are insufficiently protective. 
The request was granted under section 553(e) of the Administrative 
Procedures Act (APA). Additionally, because the Secretary of the 
Department of Housing and Urban Development (HUD) was given the 
statutory authority to establish a lower level of lead in paint for 
purposes of the definition of lead-based paint in target housing, EPA 
plans to work with HUD on this aspect of the request.
    3. The 2008 Renovation, Repair, and Painting Rule. TSCA section 
402(c) addresses renovation and remodeling. Specifically, TSCA section 
402(c)(2) directs EPA to study the extent to which persons engaged in 
various types of renovation and remodeling activities are exposed to 
lead during such activities or create a lead-based paint hazard 
regularly or occasionally. EPA conducted this study in four phases. 
Phase I, the Environmental Field Sampling Study (EFSS) (Ref. 10), 
evaluated the amount of leaded dust released by the following 
activities:
     Paint removal by abrasive sanding.
     Removal of large structures, including demolition of 
interior plaster walls.
     Window replacement.
     Carpet removal.
     HVAC repair or replacement, including duct work.
     Repairs resulting in isolated small surface disruptions, 
including drilling and sawing into wood and plaster.

Phase II, the Worker Characterization and Blood Lead Study (Ref. 11), 
involved collecting data on blood lead and renovation and remodeling 
activities from workers. Phase III, the Wisconsin Childhood Blood Lead 
Study (Ref. 3), was a retrospective study focused on assessing the 
relationship between renovation and remodeling activities and 
children's blood-lead levels. Phase IV, the Worker Characterization and 
Blood-Lead Study of R&R Workers Who Specialize in Renovations of Old or 
Historic Homes (Ref. 12), was similar to Phase II, but focused on 
individuals who worked primarily in old historic buildings. More 
information on the results of these peer-reviewed studies can be found 
in Unit III.C.1. of the preamble to the 2006 Lead; Renovation, Repair, 
and Painting Program Proposed Rule (``2006 Proposal'') (Ref. 13).
    TSCA section 402(c)(3) further directs EPA to revise the Lead-based 
Paint Activities Regulations to apply to renovation or remodeling 
activities that create lead-based paint hazards. Accordingly, EPA 
issued the 2006 Proposal, proposing to conclude that any renovation 
activity that disturbs lead-based paint can create significant amounts 
of leaded dust, that most activities created lead-based paint hazards, 
and that some activities can be reasonably anticipated to create lead-
based paint hazards (Ref. 13). This proposed finding was largely based 
on the results of the studies conducted under TSCA section 402(c)(2).
    After the 2006 Proposal was issued, EPA conducted a field study 
(Characterization of Dust Lead Levels after Renovation, Repair, and 
Painting Activities) (the ``Dust Study'') to better characterize dust 
lead levels resulting from various renovation, repair, and painting 
activities (Ref. 14). This study, completed in January, 2007, was 
designed to compare environmental lead levels at appropriate stages 
after various types of renovation, repair, and painting preparation 
activities were performed on the interiors and exteriors of target 
housing units and child-

[[Page 25043]]

occupied facilities. The renovation activities were conducted by local 
professional renovation firms, using personnel who received lead safe 
work practices training. The activities conducted represented a range 
of activities that would have been permitted under the 2006 Proposal, 
including work practices that are restricted or prohibited under the 
final RRP rule. Of particular interest was the impact of using specific 
work practices that renovation firms would be required to use under the 
proposed rule, such as the use of plastic to contain the work area and 
a multi-step cleaning protocol, as opposed to more typical work 
practices.
    The final RRP rule was published in the Federal Register issue of 
April 22, 2008 (Ref. 1). The final RRP rule, codified in 40 CFR part 
745, subparts E, L, and Q, addresses lead-based paint hazards created 
by renovation, repair, and painting activities that disturb painted 
surfaces in target housing and child-occupied facilities. ``Target 
housing'' is defined in TSCA section 401 as any housing constructed 
before 1978, except housing for the elderly or persons with 
disabilities (unless any child under age 6 resides or is expected to 
reside in such housing) or any 0-bedroom dwelling. Under the final RRP 
rule, a child-occupied facility is a building, or a portion of a 
building, constructed prior to 1978, visited regularly by the same 
child, under 6 years of age, on at least two different days within any 
week (Sunday through Saturday period), provided that each day's visit 
lasts at least 3 hours and the combined weekly visits last at least 6 
hours, and the combined annual visits last at least 60 hours. Child-
occupied facilities may be located in public or commercial buildings or 
in target housing.
    In the final RRP rule, EPA issued its determination that 
renovation, repair, and painting activities that disturb lead-based 
paint create lead-based paint hazards. This finding was based on 
evidence from the TSCA section 402(c)(2) study and the Dust Study that 
all such activities in the presence of lead-based paint create lead-
based paint hazards. Having made this finding, TSCA section 402(c)(3) 
then directs EPA to revise the Lead-based Paint Activities regulations 
to apply to such renovations. In the final RRP rule, EPA did not 
interpret its statutory mandate to require application of the existing 
TSCA section 402(a) regulations to renovations without change. EPA 
stated its belief that Congress, by using the word ``revise,'' and 
creating a separate subsection of the statute for renovation, intended 
that EPA make revisions to those existing regulations to adapt them to 
a different set of actions and a very different regulated community. As 
discussed in the preamble to the final RRP rule, there are significant 
differences between renovations and abatements (Ref. 1). For example, 
performing abatement is a highly specialized skill that workers and 
supervisors must learn in accredited training courses. However, 
painters, plumbers and carpenters already know how to perform 
renovation work, so accredited renovator training courses are designed 
to teach renovators how to incorporate principles of lead safety into 
their typical work. Accordingly, the rule did not merely expand the 
scope of the current abatement requirements to cover renovation and 
remodeling activities. Instead, EPA considered the elements of the 
existing abatement regulations and revised them as necessary to craft a 
rule that is practical for renovation, remodeling and painting 
businesses and their customers, taking into account reliability, 
effectiveness, and safety as directed by TSCA section 402(a).
    The final RRP rule establishes requirements for training 
renovators, other renovation workers, and dust sampling technicians; 
for certifying renovators, dust sampling technicians, and renovation 
firms; for accrediting providers of renovation and dust sampling 
technician training; for renovation work practices; and for 
recordkeeping. Interested States, Territories, and Indian Tribes may 
apply for and receive authorization to administer and enforce all of 
the elements of these new renovation requirements.
    The final RRP rule created two new training disciplines in the 
field of lead-based paint: renovator and dust sampling technician. 
Persons who successfully complete renovator training from an accredited 
renovation training provider are certified renovators. Certified 
renovators are responsible for ensuring that renovations to which they 
are assigned are performed in compliance with the work practice 
requirements set out in 40 CFR 745.85. Persons who successfully 
complete dust sampling technician training from an accredited training 
provider are certified dust sampling technicians. Certified dust 
sampling technicians may be called upon to collect dust wipe samples 
after renovation activities have been completed. While the training 
disciplines, the work practice standards, and the recordkeeping 
requirements of the final RRP rule differ from those established in the 
lead-based paint activities regulations, EPA determined that the 
accreditation requirements imposed on persons providing 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 cover persons who provide or wish to provide renovation 
training for the purposes of the final RRP rule.
    As amended, 40 CFR 745.225 requires training providers who wish to 
provide lead-based paint activities or renovation training for the 
purposes of the EPA's lead-based paint programs to be accredited by 
EPA. The requirements for each course of study are described in detail 
at 40 CFR 745.225 as are the operational requirements for training 
programs and the process for obtaining accreditation.
    Under the final RRP rule, covered renovations in target housing and 
child-occupied facilities must be performed by certified renovation 
firms. A certified firm must ensure that persons who perform 
renovations on behalf of the firm are properly trained and that the 
work practice requirements are followed. Renovations must be performed 
or directed by certified renovators, who are also responsible for 
compliance with the RRP rule's requirements. The final RRP rule 
contains a number of work practice requirements that must be followed 
for every covered renovation. These requirements pertain to warning 
signs and work area containment, the restriction or prohibition of 
certain practices (e.g., high heat gun, torch, power sanding, power 
planing), waste handling, cleaning, and post-renovation cleaning 
verification. In contrast, the RRP rule did not apply the same 
performance standard of an 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 before work begins 
and the cleaning protocol that must be followed after the renovation 
has been completed.
    A final step in the process for interior renovations is cleaning 
verification. After the RRP rule's specific cleaning protocol has been 
followed, a visual inspection for visible dust and debris is performed. 
If no dust or debris is found, a certified renovator must wipe the 
interior windowsills and uncarpeted floors with wet disposable cleaning 
cloths and compare each to a cleaning verification card developed and 
distributed by EPA. If the cloth matches or is lighter than the image 
on the card, the surface represented by the cloth has passed the post-
renovation cleaning

[[Page 25044]]

verification. If the cloth is darker than the image on the card, 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 the image on the card, the 
surface must be allowed to dry for at least an hour. At that time, the 
surface is wiped with a dry electrostatic cleaning cloth, which 
completes the cleaning verification process for that surface. When all 
surfaces in the work area have completed cleaning verification, the 
renovation has been completed and the work area may be re-occupied.
    Shortly after the final RRP rule was promulgated, several petitions 
were filed challenging the rule. These petitions were consolidated in 
the Circuit Court of Appeals for the District of Columbia Circuit. On 
August 26, 2009, EPA signed an agreement with the environmental and 
children's health advocacy groups in settlement of their petitions. In 
this agreement EPA committed to propose several changes to the RRP 
rule, including the changes discussed in this notice.
    Throughout this notice, EPA will use several different terms to 
describe the proposed requirements. EPA will use the term ``dust wipe 
testing'' to mean collecting wipe samples of dust on floors and 
windowsills and in window troughs, analyzing the samples for lead 
content, and reporting the results of the analysis to the owners and 
occupants of the building being renovated. Although the term ``dust 
wipe sampling'' was used in the settlement agreement to describe these 
activities, EPA is using ``dust wipe testing'' in this notice to signal 
that sample analysis may be performed off-site in a traditional 
laboratory setting or on-site by a portable laboratory, so long as the 
entity performing the analysis is accredited or recognized by the 
National Lead Laboratory Accreditation Program (NLLAP). In this notice, 
EPA will use the term ``dust wipe sampling'' to refer to the specific 
activity of collecting the wipe samples, not to the analysis or 
reporting of results. EPA will use the term ``clearance'' to mean 
demonstrating, through dust wipe testing, that the floors, windowsills, 
and window troughs in the renovation work area are below the regulatory 
clearance standards that have been established for the abatement 
program and codified at 40 CFR 745.227(e)(8). This includes re-cleaning 
where necessary to achieve the clearance standards.

III. Provisions of This Proposal

A. Dust Wipe Testing and Clearance

    1. Background. One of the most significant issues arising out of 
the RRP rulemaking was the issue of how to determine whether a 
renovation had been properly completed. The 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 troughs in the work area, 
analysis by an NLLAP-accredited laboratory, and comparison of the 
results to the clearance standards. If the sample results are below the 
clearance standards, clearance has been achieved and the work area may 
be re-occupied. If the sample results are at or above the standards, 
the work area must be re-cleaned and the clearance process must begin 
again. For this reason, abatement projects often include coating floors 
with a sealant. According to the U.S. Department of Housing and Urban 
Development's ``Guidelines For the Evaluation and Control of Lead-Based 
Paint Hazards in Housing'' (HUD Guidelines), the purpose of sealing 
floors is not to trap leaded dust underneath the sealant, but to 
provide a surface that can be cleaned effectively by the resident (Ref. 
15). Although achieving clearance is not the main reason for sealing 
floors, the process typically results in a surface than can achieve 
clearance and be kept clean by the resident. This is a sensible 
approach for abatements, because the goal of abatement is to 
permanently eliminate lead-based paint and lead-based paint hazards. 
The clearance process ensures that no lead-based paint or lead-based 
paint hazards remain in the work area.
    However, EPA recognized that there are many differences between 
renovations and abatements. As discussed in the preamble to the final 
RRP rule, renovations are different from abatements in intent, 
implementation, type of workforce, funding, and goal (Ref. 1). One of 
the biggest challenges that faced EPA in revising the TSCA section 
402(a) Lead-based Paint Activities Regulations was how to effectively 
bridge the differences between abatement and renovation and remodeling 
while acknowledging that many of the activities employed in both (e.g., 
window replacement) are the same and generate the same amount of dust. 
Abatements are generally performed in three circumstances. First, 
abatements may be performed in the residences of children who have been 
found to have elevated blood lead levels. Second, abatements are 
performed in certain housing receiving financial assistance from HUD 
when required by HUD's Lead-Safe Housing Rule, codified at 24 CFR part 
35 (see Sec. Sec.  35.630 and 35.930(d)). Third, state and local laws 
and regulations may require abatements in certain situations associated 
with rental housing, or when abatement orders have been issued when 
resident young children, typically under age 6, have blood lead levels 
at or above specified values. Typically, when an abatement is 
performed, the housing is either unoccupied or the occupants are 
temporarily relocated to lead-safe housing until the abatement has been 
demonstrated to have been properly completed through dust clearance 
testing. Carpet in the housing is usually removed as part of the 
abatement because it is harder to clean. Uncarpeted floors that have 
not been replaced during the abatement may need to be refinished or 
sealed in order to achieve clearance. Abatements have only one 
purpose--to permanently eliminate lead-based paint or lead-based paint 
hazards.
    On the other hand, renovations are performed for myriad reasons 
that may have nothing to do with lead-based paint. Renovations involve 
activities designed to update, maintain, or modify all or part of a 
building. Renovations may be performed while the property is occupied 
or unoccupied. If the renovation is performed while the property is 
occupied, the occupants do not typically relocate pending the 
completion of the project.
    EPA also recognized that dust wipe testing and clearance as 
required after abatements can be expensive. The costs can be attributed 
to two major factors: the cost of trained personnel to collect the 
samples and the cost of the laboratory analysis. EPA preliminarily 
estimated the cost of three dust wipe samples to be $160 to collect and 
analyze (Ref. 13). If EPA had required dust wipe testing and clearance 
after every renovation project, it would have made up a significant 
portion of the cost of smaller projects. In addition, laboratory 
results may not be available for several days. If EPA had required 
traditional abatement-style clearance after renovations, the work area 
would not be able to be re-occupied while waiting for the laboratory 
results.
    In addition, EPA was also concerned that requiring clearance after 
every renovation job could, in some instances, result in the renovation 
firm being held responsible for abating all dust-lead hazards, 
including such hazards that

[[Page 25045]]

may have existed in the area before the renovation commenced. During 
the stakeholder input opportunities provided by EPA before issuing the 
2006 Proposal, contractors suggested that, if post-renovation dust wipe 
testing were required, the contractors would have to protect themselves 
by collecting pre-renovation dust wipe samples, to ensure that they 
would not be held liable for pre-existing hazards.
    To address these various concerns, EPA began looking for an 
alternative to dust wipe testing and clearance that would be quick, 
inexpensive, reliable, and easy to perform. EPA conducted a series of 
studies using commercially available disposable cleaning cloths to 
determine whether variations of a ``white glove'' test could serve as 
an effective alternative to clearance. Based on the favorable final 
report of these studies, entitled ``Electrostatic Cloth and Wet Cloth 
Field Study in Residential Housing'' (Disposable Cleaning Cloth Study) 
(Ref. 16), EPA's 2006 Proposal included a cleaning verification 
protocol using wet and dry disposable cleaning cloths.
    Unlike the earlier Disposable Cleaning Cloth Study, the Dust Study 
was not designed specifically to evaluate the cleaning verification in 
isolation from the rest of the work practices. However, the Dust Study 
did serve as a valuable field test of the cleaning verification 
protocol. The Dust Study involved actual renovations performed by local 
renovation contractors who received instruction in how to perform 
cleaning verification using wet and dry disposable cleaning cloths and 
then were left alone to determine whether the cleaning cloths matched 
or were lighter than the cleaning verification card developed by the 
EPA. In order to maximize the information collected about cleaning 
verification in the Dust Study, cleaning verification was conducted 
after each experiment, not just those experiments that were being 
conducted in accordance with the proposed rule requirements for 
containment and cleaning.
    EPA received numerous comments on this aspect of the RRP 
rulemaking. While some commenters supported the proposed work 
practices, including cleaning verification, many others thought that 
renovation work areas ought to be tested and cleared for re-occupancy 
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 unreliability of cleaning 
verification made it an unsuitable substitute for dust wipe testing and 
clearance. They pointed to the sentence in the conclusion section of 
EPA's Dust Study that states that the cleaning verification protocol 
was not always accurate in identifying the presence of levels above EPA 
standards for floors and sills. Some commenters also noted the Dust 
Study report's discussion of factors that affected the effectiveness of 
cleaning verification, such as floor condition, contractor performance, 
job type, and dust particle characteristics. One commenter observed 
that while all interior experiments resulted in final passed cleaning 
cloths for all floor zones and for all windowsills, nearly half of the 
experiments in the study ended with average work room floor lead levels 
above EPA's dust-lead hazard standard for floors of 40 [micro]g/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, stated that in the Dust Study 
cleaning verification did not provide sufficiently reliable results, 
leading to an inaccurate assessment of cleaning efficiency.
    EPA agreed with the commenters who argued that cleaning 
verification was not a suitable substitute for dust wipe testing and 
clearance. EPA noted in the preamble to the final RRP rule that even 
though the Disposable Cleaning Cloth Study showed that the cleaning 
verification cloths that reached ``white glove'' were approximately 91% 
to 97% likely to be below the regulatory hazard standard, EPA believes 
the greater variability seen in the Dust Study, particularly in the 
experiments where the complete suite of proposed work practices were 
not used, does not support the characterization of cleaning 
verification as a direct substitute for clearance testing. Cleaning 
verification, in itself, is not a substitute for quantitative dust wipe 
testing. However, EPA continues to believe that the Dust Study supports 
the validity of cleaning verification as an effective component of the 
RRP rule's work practices. The cleaning and feedback aspects of 
cleaning verification are important to its contribution to the 
effectiveness of the work practices (Ref. 1).
    In the Dust Study, for renovations not involving practices 
restricted or prohibited by the final RRP rule, cleaning verification 
in combination with the other required work practices were effective at 
reducing dust lead levels on surfaces to or below the dust-lead hazard 
standards, regardless of the condition of the floor. Of the 10 
experiments performed in compliance with the RRP rule's work practices, 
final average lead-based paint dust levels were at or below the 
regulatory hazard standard (taking into account the accepted level of 
uncertainty, i.e., within plus or minus 20%, which is the performance 
criteria for the National Lead Laboratory Accreditation Program). For 
the experiments not performed according to the RRP rule's work 
practices, the use of cleaning verification after cleaning reduced, 
often significantly, the amount of lead dust remaining. EPA determined 
that there is sufficient consistency in the Dust Study data to support 
the use of cleaning verification as an effective component of the RRP 
rule's work practices.
    Commenters also expressed concern about the subjectivity of the 
cleaning verification process. They noted that the effectiveness of 
cleaning verification relies upon the certified renovator's 
understanding and application of the protocol, ability to define the 
floor sampling area or areas, and use of the cleaning verification card 
to determine whether a surface has been adequately cleaned. Some 
commenters speculated that the certified renovator's accuracy in 
comparing the cleaning cloth to the verification card could depend on 
factors such as his or her visual acuity, the lighting in the room, or 
simply differences in judgment among certified renovators. The issue of 
a person (i.e., the certified renovator on the project) verifying 
cleaning of a project that he or she has worked on also raised concerns 
about actual or potential conflict of interest, which might, even 
unconsciously, affect the person's judgment. One thought that the lack 
of corrections for surface conditions, the experience of the person 
conducting the visual assessment, or pre-existing conditions might bias 
the results of testing.
    EPA agreed that the visual comparison of a cleaning cloth to a 
cleaning verification card has an element of subjectivity because the 
visual comparison of cloth to card requires some exercise of judgment 
on the part of the person doing the comparing. However, EPA did not 
agree that this necessarily makes the comparison suspect. The Dust 
Study represented a real-world test of the ability of renovators to 
learn how to do cleaning verification and to apply it in the field. 
Although one Dust Study participant expressed concern about 
subjectivity, cleaning verification was

[[Page 25046]]

successfully performed by the renovation contractors in all of the 
experiments performed in compliance with the work practices in the 
final RRP rule. In addition, cleaning verification was predictive of 
whether renovators had cleaned-up the lead-based paint hazards created 
during the renovation activity to the dust-lead standard, particularly 
when the proposed work practices were used. The cleaning verifications 
performed during the Dust Study were conducted by various persons in 
various lighting conditions and on various surface conditions.
    Other commenters did not support dust wipe testing and clearance. 
One reason cited by these commenters was the cost of dust wipe testing, 
especially if required to be performed by independent certified 
inspectors or risk assessors. Some also contended that dust clearance 
testing is time consuming and an obstacle to completing the renovation 
job. One commenter noted that a major component of the cost of 
performing clearance is due to the fact that the portion of the 
premises affected by the renovation would have to remain unoccupied. 
Another commenter noted that it is not uncommon for the abatement 
clearance process to be conducted up to three times on a home to make 
sure that lead levels are sufficiently low. Again, commenters expressed 
the concern that a requirement for dust wipe testing and clearance 
would have the effect of holding renovation firms responsible for pre-
existing dust-lead hazards.
    Based on the weight of the evidence in the rulemaking record, 
primarily from the Disposable Cleaning Cloth Study and the Dust Study, 
EPA determined that, once certain high dust generating practices were 
prohibited or restricted, the full suite of work practice requirements, 
including containment, cleaning, and cleaning verification, was 
effective at minimizing exposure to lead-based paint hazards created by 
renovation, repair, and painting activities. At the same time, EPA 
recognizes that cleaning verification is an imperfect check on whether 
the dust-lead hazard standard has been achieved. Among other things, as 
commenters pointed out, there is an element of subjectivity to cleaning 
verification, which is not present in dust wipe testing.
    In the final RRP rule, EPA gave significant weight to the cost, 
timing, and liability concerns expressed by commenters. In balancing 
the various considerations, EPA concluded that cleaning verification, 
as part of the full suite of work practices, was an appropriate check 
on the effectiveness of the work practices. EPA has continued to 
balance these considerations in today's proposal, but has preliminarily 
concluded that, for certain jobs, the additional benefits of dust wipe 
testing, and in some cases clearance, warrant imposing these additional 
requirements.
    2. Proposed requirements for dust wipe testing after certain 
renovations. This proposal contains dust wipe testing requirements for 
many renovations. In most of these situations, the renovation firm will 
only be required to provide the dust wipe testing results to the 
building owners and occupants. However, as discussed more fully in Unit 
III.A.3. of this preamble below, after two types of renovations, this 
proposal would also require renovation firms to achieve clearance.
    EPA has evaluated the value of the information that would be 
available to renovation firms and building owners and occupants through 
such testing. EPA expects two kinds of benefits to flow from proposed 
dust wipe testing requirements. The first are the direct benefits of 
the information to the owners and occupants, the pure value of the 
information on dust lead levels remaining in the renovation work area, 
including leaded dust that may have been generated during the 
renovation activity. For building owners and occupants, this 
information is likely to improve their understanding and awareness of 
dust-lead hazards. It will also greatly improve their ability to make 
further risk management decisions. This information is particularly 
critical where dust lead levels approach or exceed the regulatory 
hazard standards. One commenter on the 2008 RRP rule described the 
value of dust wipe testing results in this way: ``Because the white 
glove test does not provide a numeric result, a family is given limited 
information from which to make informed decisions and worse yet, may be 
given a false sense of security.'' (Ref. 17) The commenter then argued 
that, ``although the federal floor dust standard is set at 40 [mu]g/
ft\2\, there is sufficient evidence to suggest that floors well below 
this standard may endanger children. Property owners and residents 
should be provided quantitative information so they can choose what 
actions to take based on those levels.'' The commenter believed that in 
instances where floor dust wipe test results are just below the EPA 
regulatory standard, the owners or occupants may want to undertake 
additional cleaning. The value of this information has new significance 
in light of recent epidemiological studies that indicate the current 
lead-based hazard standards are insufficiently protective.
    In addition, in enacting the Residential Lead-based Paint Hazard 
Reduction Act of 1992, Congress recognized that there is a value in 
providing information to property owners and occupants. Section 1018 of 
the Act requires the disclosure of information on lead-based paint and 
lead-based paint hazards to purchasers and tenants of target housing. 
Even if no specific information on the housing to be sold or rented is 
available, the seller or landlord must provide a lead hazard 
information pamphlet to the purchaser or tenant. Similarly, TSCA 
section 406(b) requires renovators or their firms to provide a lead 
hazard information pamphlet to the owners and occupants of target 
housing before beginning a renovation in the housing. The information 
provided by dust wipe testing after renovations is a different and more 
targeted benefit, i.e., a more accurate check on whether the hazard 
standard has been met at completion of the job, but it is in line with 
the broader statutory emphasis on disclosure of information related to 
possible 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 changed 
behavior on the part of renovation firms. EPA believes that dust wipe 
testing results will also provide valuable feedback to renovation firms 
on how well they are cleaning up after renovations. In its Evaluation 
of the HUD Lead-Based Paint Hazard Control Grant Program (Ref. 18), HUD 
noted that the rate of passing initial clearance was associated with 
repetition of lead hazard control activities. As renovation firms 
become more familiar with the performance requirements for cleaning on 
projects covered by the RRP rule, their projects are more likely to 
require fewer cleaning cycles.
    It is also likely that having to provide to owners and occupants 
the specific dust lead levels contained in dust wipe testing results 
will increase renovation firm cleaning efficiency. Renovation firms 
will be incentivized to lower the dust lead levels remaining after 
renovation jobs, even if the levels are at or near the regulatory 
standards. In particular, firms that might otherwise be inclined to be 
less than thorough in the use of the disposable cleaning cloths in 
order to avoid darkening the cloths will be incentivized to perform 
cleaning

[[Page 25047]]

verification thoroughly. Because proper cleanup plays such a vital role 
in the minimization of dust-lead hazards created by renovations, 
providing information on dust lead levels remaining after renovations 
to building owners and occupants will serve as an incentive for firms 
to perform post-renovation cleaning efficiently, thoroughly, and 
correctly so that the benefits of the RRP rule may be fully realized.
    EPA is therefore proposing to require that dust wipe testing be 
performed after many renovation jobs. EPA has determined that dust wipe 
testing results will provide a valuable check on the performance of 
cleaning verification and the other work practices for most of the 
paint-disturbing renovations covered by the Dust Study (Ref. 14). In 
reviewing the data from the Dust Study, EPA believes that, of the jobs 
performed in the Dust Study, the additional safeguard of dust wipe 
testing is warranted where the floor dust-lead levels changed markedly 
from pre-work to post-cleaning to post-cleaning verifications. The only 
jobs where this did not occur were the renovations involving cut-outs, 
which also created significantly less dust than most other renovations.
    Accordingly, today's proposal would require dust wipe testing on 
uncarpeted floors, windowsills, and window troughs in the work area 
after the following types of interior renovations:
     Use of a heat gun at temperatures below 1100 degrees 
Fahrenheit.
     Removal or replacement of window or door frames.
     Scraping 60 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 experiments 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 scraping 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 which 
at least that much painted surface is scraped. EPA requests comment, 
information, or data on whether the threshold for dust wipe testing 
after renovations involving scraping should be lowered to 6 ft\2\, 
which is the minor maintenance threshold, or to some other number. 
Likewise, the trim and molding removal experiments all involved the 
removal of more than 40 ft\2\ of trim or molding, so EPA is proposing 
to limit the dust wipe testing requirement to renovations during which 
at least that much trim or molding is removed. EPA also requests 
comment, information, or data on whether the threshold for dust wipe 
testing after trim, molding, cabinet, or fixture removal should be 
lowered. EPA acknowledges that the benefits identified above of dust 
wipe testing would apply for these smaller jobs, as well as the larger 
jobs covered by today's proposal. At the same time, in order to ensure 
a program that is practical for renovation activities, EPA has tried in 
this proposal to maintain some proportionality between the complexity 
and cost of the proposed requirements on one hand, and the size and 
cost of the renovation job on the other.
    EPA wishes to clarify that the size thresholds for scraping painted 
surfaces and removing trim, molding, cabinets, or other fixtures would 
be calculated on a per-job basis. This is in contrast to the minor 
repair and maintenance exception, which is calculated on a per-room 
basis for interior projects.
    EPA is also requesting comment on whether dust wipe testing should 
be required in situations where a surface fails the cleaning 
verification process twice, i.e., when the second wet disposable 
cleaning cloth is darker than the cleaning verification card. In that 
case, the surface must be allowed to dry for at least an hour, after 
which the certified renovator must wipe the surface with a dry 
electrostatic cleaning cloth. In the Dust Study, only four surfaces 
failed cleaning verification twice, representing two of the sixty 
experiments. In one experiment involving cut-outs, a vinyl floor in 
poor condition failed cleaning verification twice. The average dust-
lead level on the floor after the second wet disposable cleaning cloth 
was 61.5 [micro]g/ft\2\, and after the dry electrostatic cleaning 
cloth, the level was 57.2 [micro]g/ft\2\. However, this floor was in 
such poor condition that after two pre-cleanings, the cleanings done 
before any experiments were conducted, the floor dust lead levels were 
still 95 [micro]g/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 failed the second cleaning 
verification. After the second wet disposable cleaning cloth, the 
average dust lead levels on two of the three failed sections were less 
than 10 [micro]g/ft\2\, while the other was significantly higher at 150 
[micro]g/ft\2\. Nevertheless, after the dry electrostatic cleaning 
cloth wipe, the dust lead levels for all floor sections averaged 41.4 
[micro]g/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 performed, a certified inspector, certified risk assessor, or 
certified dust sampling technician would be required to perform a 
visual inspection to ensure that the work area is free of visible dust, 
debris or residue. EPA is proposing to require this second visual 
inspection, in addition to the one performed by the certified renovator 
before cleaning verification, because, in many cases, the person 
performing the dust wipe testing will not be the same person who 
performed the cleaning verification. In addition, there may be a delay 
between the completion of cleaning verification and the beginning of 
dust wipe testing. EPA believes that the requirement for a visual 
inspection immediately prior to dust wipe testing will give the 
certified inspector, risk assessor, or dust sampling technician a means 
to address any concerns they may have as to the cleanliness of the work 
area. The locations for dust wipe samples would be dependent on the 
number of rooms, hallways, or stairwells within the work area. If there 
is more than 1 room, hallway, or stairwell within the work area, the 
following samples would have to be collected:
     1 windowsill sample, 1 window trough sample, and 1 floor 
sample within each room, hallway, or stairwell (no more than 4 rooms, 
hallways, or stairwells need be sampled).
     1 floor sample adjacent to the work area, but not in an 
area that has been cleaned.

If the work area is a single room, hallway, or stairwell, or a smaller 
area, the following samples would have to be collected:
     1 windowsill sample, 1 window trough sample, and 1 floor 
sample.
     1 floor sample adjacent to the work area, but not in an 
area that has been cleaned.

If there are no uncarpeted floors in the work area, then no floor 
samples would need to be collected. The same would be true for windows 
and windowsill or trough samples. Dust wipe samples would be collected 
in accordance with the protocol in ``Residential Sampling for Lead: 
Protocols for Dust and Soil Sampling'' (Ref. 19).
    HUD's Lead Safe Housing Rule, at 24 CFR 35.1340(g), requires the 
sample

[[Page 25048]]

adjacent to the work area to be collected within 5 feet of the work 
area in an area that is connected to the work area. This specifically 
precludes samples from being collected from rooms separated from the 
work area by a solid wall. EPA requests comment on whether these 
provisions should be incorporated into this rulemaking.
    EPA also requests comment on whether this protocol is sufficient to 
determine dust lead levels remaining on floors, windowsills, and window 
troughs. This protocol has been used for more than a decade in 
clearance examinations after lead abatements and HUD interim lead 
hazard control work. However, one test per surface may not always be 
enough to accurately characterize the dust lead levels over the entire 
surface. While the physical variability of dust loadings and lead 
concentrations across a room has not been thoroughly investigated, 
several studies including EPA's EFSS have found high variability in 
side-by-side samples collected before and after various activities 
(Ref. 10). EPA requests comment on whether more tests should be 
required, and, if so, what protocol should be followed in determining 
the number and location of additional tests. For example, one option 
would be to follow the ASTM International ``Standard Practice for 
Clearance Examinations Following Lead Hazard Reduction Activities in 
Dwellings, and Other Child-Occupied Facilities.'' This document says 
that for rooms that exceed 500 ft \2\, the floor should be divided into 
two or more equal parts of 500 ft \2\ or less and a sample collected in 
each part (Ref. 20).
    EPA requests comment on whether the provision for random clearance 
sampling in multi-unit buildings in the Lead-based Paint Activities 
regulations at 40 CFR 745.227(e)(9) should be incorporated into this 
regulation. This would permit random testing of individual housing 
units after renovations affecting multiple individual housing units in 
a multi-family dwelling with similarly constructed and maintained 
residences. Consistent with 40 CFR 745.227(e)(9), to take advantage of 
this provision, the certified renovators and other trained persons who 
renovate or clean the individual housing units would not know in 
advance which units would be selected for random testing. In addition, 
the dust wipe testing would have to be performed by a certified 
inspector or certified risk assessor and the number of residential 
units selected for dust wipe testing would have to be sufficient to 
provide a 95 percent level of confidence such that, if clearance were 
required, no more than 5 percent or 50 of the residential units 
(whichever is smaller) in the randomly-sampled population would exceed 
the applicable clearance levels. This is the standard for random 
clearance sampling after abatement projects and this particular 
requirement would be designed to allow certified inspectors and 
certified risk assessors to use the training they have already received 
on random clearance sampling after abatement projects to decide which 
units to test after a renovation in a multi-family dwelling.
    Although random dust wipe testing has the potential to reduce costs 
for a large multi-unit renovation project, it may not be appropriate 
for this rule, given that an important purpose for the proposed dust 
wipe testing requirements is the provision of information to building 
owners and occupants. However, random sampling is already accepted by 
EPA and HUD for disclosure of information on lead-based paint 
inspections, risk assessments and abatement clearances under the 
Disclosure Rule (Ref. 21), and for notification after activities other 
than abatement under HUD's Lead Safe Housing Rule at 24 CFR 35.125(b) 
and 35.1340(b)(2)(i). EPA also requests comment on whether a random 
sampling provision should be incorporated, but limited to situations 
where the HUD rule applies or to situations where the housing is 
completely vacant, e.g., an entire apartment building is vacant and 
being renovated.
    In addition, the current requirements for dust sampling technician 
courses do not include random sampling, so dust sampling technicians 
would not be able to select the units and locations for random dust 
wipe testing. Dust sampling technicians could perform the actual 
sampling or testing, so long as the locations for testing were selected 
by a certified inspector or risk assessor. EPA requests comment on 
whether EPA should modify the dust sampling technician course 
requirements to include random testing in multi-family buildings so 
that dust sampling technicians would be able to select units randomly 
as do certified inspectors and certified risk assessors. EPA also 
requests comment on whether this could be done and still allow the 
course to be taught within a single 8-hour day.
    Dust wipe testing results would have to be provided by an entity 
accredited or recognized under the NLLAP. EPA established the NLLAP in 
accordance with TSCA section 405(b) to assure the public that 
analytical laboratories recognized by the EPA have demonstrated that 
they are capable of accurately analyzing for lead in paint chip, dust, 
and soil samples. In January 2008, the Agency announced in the Federal 
Register changes to NLLAP that expand the opportunity to participate in 
the NLLAP to all lead testing service providers (Ref. 22). These 
providers include:
     Fixed-site operations that perform analytical lead testing 
at a permanent location under controlled environmental conditions;
     Mobile facilities, or transportable, self-contained 
operations that can perform analytical lead testing under controlled 
environmental conditions; and
     Field sampling and measurement organizations (FSMOs), or 
operations that perform on-site sampling and lead testing using 
portable testing technologies.

Portable testing technologies that might be employed by FSMOs, once 
accredited or recognized, include devices such as an x-ray fluorescence 
(XRF) analyzer, an anodic stripping voltammetry (ASV) analyzer, or any 
other portable technology that has been shown to accurately and 
verifiably measure lead content in dust, paint chip, or soil. EPA 
believes these NLLAP changes remove barriers and provide a process so 
that all types of lead testing service providers may participate in the 
NLLAP. This can make the NLLAP more efficient and cost-effective while 
maintaining the high standard of quality, science and technology for 
those who purchase analytical services related to lead hazard 
identification and control. The ability for portable dust testing 
technologies to become accredited under NLLAP is particularly relevant 
to this rulemaking, because EPA believes that this will make dust wipe 
testing less expensive and time-consuming.
    EPA requests comment on additional technologies that may be 
available for sampling or testing for lead in dust. EPA is seeking 
information on what technologies are available, along with information 
on the research or evaluations that may have been conducted on these 
technologies. EPA is also interested in research or other information 
on technologies that show promise for commercial development.
    Persons performing visual inspections, collecting dust wipe 
samples, or analyzing dust wipe samples would not be required to be 
third parties independent of the firm performing the renovation. This 
is consistent with the final RRP rule and EPA's abatement regulations. 
EPA has historically not required independent

[[Page 25049]]

third parties to perform testing for two reasons. The first is the cost 
savings and convenience of being able to hire just one firm to perform 
all necessary 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 considerations are also likely to 
be applicable to the renovation sector (Ref. 1, at 21711). EPA does 
recommend, however, that the renovation firm comply with the HUD's 
prohibition against the same person performing both the renovation 
activity and the clearance process. (See 24 CFR 35.1340(f)). EPA 
requests comment on whether EPA should impose the same prohibition or a 
similar prohibition with perhaps an exception for single person firms.
    Under this proposal, dust wipe testing would be performed after 
cleaning verification, not instead of it. Cleaning verification is 
useful because it combines fine cleaning properties with feedback to 
the certified renovator on the effectiveness of the post-renovation 
cleaning process. As discussed in the preamble to the final RRP rule, 
the Dust Study demonstrated that cleaning verification is quite often 
needed to minimize exposure to dust-lead hazards created during 
renovations (Ref. 1, at 21744). In 4 of the 10 experiments performed in 
accordance with the final RRP rule requirements for containment, 
cleaning, and cleaning verification, the average post-cleaning floor 
dust lead levels were above the clearance standards. In those 
experiments, cleaning verification was needed to reduce average dust 
lead levels below the standards. In addition, dust wipe testing only 
tests part of the surface, and, as discussed above, leaded dust may not 
be distributed uniformly over the entire surface. In contrast, cleaning 
verification provides feedback on cleaning effectiveness over the 
entire surface so variability in distribution presents fewer 
challenges. EPA remains concerned that if dust wipe testing were 
allowed instead of cleaning verification, without an accompanying 
requirement that the renovation firm re-clean until clearance is 
achieved, the RRP rule would actually be less protective because the 
surfaces in the work area could be left less clean than if cleaning 
verification were performed. Accordingly, dust wipe testing would be 
performed after cleaning verification has been performed in accordance 
with the existing protocol. After the dust wipe samples have been 
collected, the renovation would be considered complete, the warning 
signs could be removed, and the work area could be re-occupied. Re-
occupancy would not have to wait until the results of the testing were 
available.
    However, because re-occupancy can occur immediately after the dust 
wipe samples are collected, it is important to ensure that the results 
of the dust wipe testing be communicated to owners and occupants as 
soon as practicable. Accordingly, this proposal requires the certified 
inspector, certified risk assessor, or certified dust sampling 
technician to prepare a dust wipe testing report and provide it to the 
renovation firm within 3 days of the date that the results are 
obtained. If the dust wipe testing results are to be determined by a 
fixed-site laboratory, the samples would have to be sent to the 
laboratory within 1 business day of the date that they are collected. 
The dust wipe testing report would include the name and signature of 
each certified person collecting the samples or performing the testing, 
the name and address of each certified firm employing the person(s) 
conducting the sampling or testing, the start and completion dates of 
the renovation, a brief written description of the renovation, the 
results of the visual inspection, a detailed written description of the 
specific sampling or testing locations or a detailed drawing that 
clearly identifies the location of each sample or test, the name of the 
NLLAP-recognized entity analyzing the results, the results of each 
sample or test, and the clearance standard that is applicable to each 
sample or test. EPA does not expect long, involved narrative 
descriptions in these reports. The results of the visual inspection 
could be as simple as ``no dust, debris, or residue was visible in the 
work area,'' while the brief written description of the renovation 
could be as simple as ``replaced all of the windows in the upstairs 
bedrooms.'' The report should be organized and presented in such a way 
that the recipients of the report will be able to easily understand the 
information presented. The report must be a single document, with 
clearly-identifiable attachments, such as analytical reports from NLLAP 
laboratories, where appropriate. If a significant number of tests are 
involved, the certified individual preparing the report should 
incorporate an executive summary presenting the overall results, with 
particular attention given to those results that exceeded the 
applicable clearance standards.
    The renovation firm would be required to provide this report to the 
owner of renovated target housing or child-occupied facilities within 3 
days of the date that the renovation firm receives the report. The 
renovation firm would also have to provide the report within 3 days of 
receipt to the occupants of individual housing units that have been 
renovated, if the housing units are not owner-occupied. Similarly, the 
report would have to be provided within 3 days to the proprietor of 
renovated child-occupied facilities if they are not operated by the 
building owner. If the renovation firm has chosen to notify each 
individual housing unit affected by a renovation in a common area of 
target housing, or each parent or guardian of a child under age 6 using 
a renovated child-occupied facility, the renovation firm would also 
have to provide these persons with the dust wipe testing report within 
3 days of the date that the renovation firm receives the report. In 
cases where the renovation firm has chosen to post signs to notify 
tenants affected by common area renovations, or parents and guardians 
of children under age 6 using a child-occupied facility, the renovation 
firm would have to provide the dust wipe testing report upon request. 
EPA requests comment on whether the renovation firm should be required 
to provide the dust wipe testing report to the building owner and 
occupants with the final invoice or within 3 days of the date that the 
report is received, whichever is earlier.
    3. Clearance. For two types of renovations that can create large 
amounts of difficult-to-clean dust, EPA remains concerned about the 
possibility that dust lead levels remaining, even after cleaning 
verification, may substantially exceed the clearance standards. These 
are renovations that disturb paint using machines designed to remove 
paint through high speed operation, such as power sanders or abrasive 
blasting, when equipped with high-efficiency particulate air (HEPA) 
exhaust controls and the demolition, or removal, through destructive 
means, of plaster and lath walls, ceilings or other building 
components. If renovation firms choose to utilize these methods, EPA is 
also proposing to require that renovation firms demonstrate, through 
dust wipe testing, that they have met the clearance standards before 
the renovation will be considered completed.
    EPA's Dust Study demonstrated that machines that remove paint 
through high-speed operation, in the absence of HEPA exhaust control, 
create enormous amounts of leaded dust that is particularly difficult 
to clean up. In the Dust Study, the geometric mean post-work floor dust 
lead levels after experiments involving power planing

[[Page 25050]]

were 201,902 [mu]g/ft\2\. That was the only type of power tool 
experiment done indoors during the Dust Study. However, two additional 
high speed tool experiments were done on exteriors, power sanding and 
needle gun. In these cases, using the Dust Study results from the 
surface of the plastic containment required by the rule, the geometric 
mean post-work floor dust lead levels that could be expected from work 
done using these types of tools without HEPA exhaust control are 
591,491 [mu]g/ft\2\ for power sanding, and 195,372 [mu]g/ft\2\ for the 
needle gun.
    In the Dust Study, the work practices required by the final RRP 
rule, containment, specialized cleaning, and cleaning verification, 
were, in most cases, unable to reduce the dust lead levels remaining on 
the work area floors after power planing to anything close to the 
clearance standard of 40 [mu]g/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. However, EPA has subsequently 
reviewed 14 published studies that examined the effectiveness of HEPA 
exhaust control on power tools (Ref. 23). These 14 studies reported 
reductions in airborne dust levels ranging from 70 to 99 percent. 
However, most studies (9) reported reductions in airborne dust levels 
between 90 and 95 percent. Applying a 90 to 95 percent reduction to the 
post-work dust lead levels generated by the power tools in the Dust 
Study results in dust-lead levels of 20,190 [mu]g/ft\2\ to 10,095 
[mu]g/ft\2\ for door planing, 59,149 [mu]g/ft\2\ to 29,575 [mu]g/ft\2\ 
for power sanding, and 19,537 [mu]g/ft\2\ to 9,769 [mu]g/ft\2\ for 
needle gun use. It is likely that the work practices required by the 
final RRP rule will be unable to reduce these levels to anything 
approximating the clearance level of 40 [mu]g/ft\2\ at the end of the 
job because of the quantity of the dust generated and the particular 
characteristics of this dust that make it hard to clean up.
    In addition, in order to achieve 90 to 95 percent effectiveness, 
the HEPA exhaust control must be maintained properly and used 
correctly. Any lapse in either maintenance or use could result in much 
higher dust lead levels remaining after a renovation. For example, when 
sanding a mantle, if the renovation worker moves half of the sander off 
the edge of the mantle, the HEPA exhaust control will not be operating 
at maximum collection efficiency. The same problem would occur any time 
that the entire sander is not in contact with the surface, such as when 
sanding a curved surface.
    With respect to the demolition of plaster, EPA did not perform any 
experiments involving that kind of renovation activity in the Dust 
Study. However, demolition of several different plaster walls was 
studied in the EFSS. The EFSS measured worker exposures by personal air 
monitoring, and estimated occupant exposures by dust wipe sampling. 
Dust wipe sampling in the EFSS was done from stainless steel dustfall 
collectors placed at various locations adjacent to and at varying 
distances from the activity. The estimated lead loading over a 6 ft\2\ 
area resulting from the demolition of a plaster wall was 19,500 [mu]g, 
the highest loading for any of the typical activities studied. However, 
according to the EFSS, no collectors were placed adjacent to demolition 
activities ``due to the large amount of debris.'' (Ref. 10, at 9-10) 
EPA was able to determine the functional relationship between settled 
dust and distance for the demolition activity, but the relationship 
``does not take into account the amount of lead that settles at a 
location directly adjacent to the activity. Since the settled dust 
samples associated with the demolition were all located at a distance 
from the activity space, the estimated 6-foot by 1-foot gradient lead 
loading in the demolition activity is interpreted as being the amount 
of lead found in the 6-foot by 1-foot region that was airborne in dust 
and smaller particles, rather than the total amount of lead 
disturbed.'' (Ref. 10, at 9-10)
    In the EFSS, EPA also reviewed data on plaster wall demolition 
available from OSHA (Ref. 10). The study monitored the demolition of 
interior plaster walls and ceilings in a home using hammers and claw-
bars. This study involved only personal air monitoring, not settled 
dust sampling. The geometric mean worker exposure for the demolition 
activities studied by the EFSS was 107 [mu]g/m\3\, while the geometric 
mean worker exposure for the OSHA study was 166 [mu]g/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 [mu]g/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 which such demolition is typically done through 
destructive means such as sledgehammers. The dust created by this 
activity is likely to consist of very fine particles. EPA is concerned 
that, like the dust produced by machines that remove paint through high 
speed operation, the large quantities of dust created by plaster wall 
demolition will overwhelm the containment, specialized cleaning, and 
cleaning verification processes and result in renovation work areas 
being re-occupied with lead-based paint hazards created by the 
renovation still in place.
    Given these concerns, EPA is proposing to require renovation firms 
to follow a clearance process similar to that performed after abatement 
projects after renovations involving the disturbance of paint using 
machines designed to remove paint through high speed operation or the 
demolition, or removal, through destructive means, of more than 6 ft\2\ 
of plaster and lath building component. After the cleaning required by 
40 CFR 745.85(a)(5) and the cleaning verification required by 40 CFR 
745.85(b)(1), dust wipe testing would have to be performed in exactly 
the same way that it would be required after the renovations discussed 
in Unit III.A.2. of this preamble. If any of the test results equal or 
exceed the regulatory clearance standards in 40 CFR 745.85(b)(4), the 
renovation firm would be required to re-clean the surfaces represented 
by those tests in accordance with 40 CFR 745.85(a)(5)(ii). Those 
surfaces would have to be 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 lath, not 
gypsum drywall finished with plaster. The experiments performed and 
reviewed in the EFSS involved plaster and lath walls, not drywall. In 
this country, interior walls were commonly constructed of plaster and 
lath until the 1950's, when drywall began to replace the lath and 
plaster construction method. Again, this clearance requirement would 
only apply to plaster removal done through destructive means, such as 
sledgehammers.
    This proposal would not allow renovation firms to skip the cleaning 
verification step when they are required to perform clearance. The Dust 
Study demonstrates that cleaning verification is an important part of 
the cleaning process. Of the 10 experiments completed in the Dust Study 
in accordance with the final RRP rule requirements, 4 required the 
additional cleaning provided by cleaning verification to reach an 
average floor dust lead level below 40 [mu]g/ft\2\ (Ref. 14).

[[Page 25051]]

The additional cleaning resulting from cleaning verification was 
particularly dramatic in the window replacement experiments, where the 
dust lead levels on the floor were cut nearly in half by cleaning 
verification. EPA is specifically requesting comment on cleaning 
verification requirements for surfaces that fail clearance due to high 
dust wipe test results. While the Dust Study shows that cleaning 
verification is a very effective cleaning method, EPA recognizes that 
there is a cost associated with multiple cleaning verification passes 
over a surface, particularly if the surface fails the wet disposable 
cleaning cloth phase and must be allowed to dry for an hour before 
using a dry electrostatic disposable cleaning cloth. Although not 
specifically studied, the Dust Study suggests that it would be unlikely 
for a surface that had been cleaned and had gone through the cleaning 
verification process to fail another round of cleaning verification. 
Sixty interior experiments were performed in the Dust Study; only 3 
work room floors failed all rounds of cleaning verification. Two of 
those were performed using only baseline work practices, no containment 
or specialized cleaning, on a vinyl floor in poor condition that EPA's 
contractor had difficulty pre-cleaning to below 40 [mu]g/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 needed cleaning verification to reduce average 
floor dust lead levels below 40 [mu]g/ft\2\, failed cleaning 
verification cloths were only seen in 1. The reductions in dust lead 
levels seen in the window replacement experiments occurred after only 1 
pass with a wet disposable cleaning cloth. In light of these results, 
this proposal would require surfaces failing clearance due to high dust 
wipe test results to be recleaned in accordance with the RRP rule, HEPA 
vacuuming followed by wet wiping or mopping, followed by one round of 
cleaning verification using a wet disposable cleaning cloth. This cloth 
would not have to be compared to the cleaning verification card, the 
renovation firm could conduct additional dust wipe testing for 
clearance purposes on the surface as soon as it has dried.
    EPA is also proposing to eliminate the existing provision that 
allows renovation firms to perform clearance in lieu of cleaning 
verification when another Federal, State, or local law or regulation, 
or the contract between the renovation firm and the property owner, 
requires the renovation firm to use qualified entities to perform dust 
wipe testing and requires the renovation firm to achieve clearance. 
Because cleaning verification has been shown to be such an important 
part of the post-renovation cleaning process, and because that 
provision would be inconsistent with this proposal, EPA believes that 
it should be eliminated. Rather, this proposal would require cleaning 
verification to be performed in the same way it would have to be 
performed after jobs involving demolition or removal of plaster through 
destructive means or the disturbance of paint using machines designed 
to remove paint through high-speed operation.
    The renovation would not be considered complete, and the warning 
signs would have to remain in place, until the renovation firm can 
demonstrate through a dust wipe testing report that it has met the 
clearance standards. The certified inspector, certified risk assessor, 
or certified dust sampling technician performing the sampling or 
testing would be required to prepare a clearance report. The clearance 
report would include the start and completion dates of the renovation; 
a brief written description of the renovation; the name and address of 
each certified firm employing each certified inspector, certified risk 
assessor, or certified dust sampling technician performing the 
clearance procedures; the name and signature of each certified 
inspector, certified risk assessor, or certified dust sampling 
technician performing the clearance procedures and the dates that the 
clearance procedures were performed; the results of the visual 
inspection; a detailed written description of the specific sampling or 
testing locations or a detailed drawing that clearly identifies the 
location of each sample or test; the results for each dust wipe sample 
or test; whether or not clearance was achieved; and the name of each 
recognized entity that conducted the analyses. As with the dust testing 
report, EPA does not expect long, involved narrative descriptions in 
these reports. The results of the visual inspection could be as simple 
as ``no dust, debris, or residue was visible in the work area,'' while 
the brief written description of the renovation could be as simple as 
``replaced all of the windows in the upstairs bedrooms.'' However, the 
report should be organized and presented in such a way that the 
recipients of the report will be able to easily understand the 
information presented. The report must be a single document, with 
clearly-identifiable attachments, such as analytical reports from NLLAP 
laboratories, where appropriate. If a significant number of tests are 
involved, the certified individual preparing the report should 
incorporate an executive summary presenting the overall results, with 
particular attention to those results that exceeded the applicable 
clearance standards.
    The certified inspector, certified risk assessor, or certified dust 
sampling technician would be required to provide a copy of this report 
to the renovation firm within 3 days of the date that the dust wipe 
testing results are obtained. If the dust wipe testing results are to 
be determined by a fixed-site laboratory, the samples would have to be 
sent to the laboratory within 1 business day of the date that they are 
collected. The renovation firm would be required to provide this report 
to the owner of renovated target housing or child-occupied facilities 
within 3 days of the date that the renovation firm receives the report. 
The renovation firm would also have to provide the report within 3 days 
of receipt to the occupants of individual housing units that have been 
renovated, if the housing units are not owner-occupied. Similarly, the 
report would have to be provided within 3 days to the proprietor of 
renovated child-occupied facilities if they are not operated by the 
building owner. If the renovation firm has chosen to notify each 
individual housing unit affected by a renovation in a common area of 
target housing, or each parent or guardian of a child under age 6 using 
a renovated child-occupied facility, the renovation firm would also 
have to provide these persons with the dust wipe testing report within 
3 days of the date that the renovation firm receives the results. In 
cases where the renovation firm has chosen to post signs to notify 
tenants affected by common area renovations, or parents and guardians 
of children under age 6 using a child-occupied facility, the renovation 
firm would have to provide the dust wipe testing report when requested.
    In most cases, renovation firms will be able to avoid using the 
work practices that would require clearance afterwards. Sanding or 
scraping could be done by hand instead of by power tool. Many plaster 
removal jobs can be performed by using non-destructive means such as 
saws and pry-bars to remove sections of plaster and lath wall. At the 
same time, EPA also understands that renovation firms may encounter 
floors, windowsills, and window troughs that are in such poor condition 
that clearance may not be possible. As

[[Page 25052]]

discussed previously, the HUD Guidelines recommend using a sealant on 
floors if necessary to achieve clearance (Ref. 15). The Guidelines 
suggest that, if any surface fails two clearance tests, the ``property 
owner should consider additional hazard control measures and/or further 
sealing of the surface'' (Ref. 15, at 15-10). EPA's own experience with 
the Dust Study confirms that surface condition may be a problem, at 
least in some instances. After several encounters with work room floors 
that could not be cleaned to the clearance standards in preparation for 
a new experiment, the Dust Study contractors began using a sealant 
before testing floors in preparation for beginning work (Ref. 24). When 
this occurred with windowsills, the contractors used dust collection 
trays instead of the sill surface for sampling.
    Various studies have shown that dust lead levels on surfaces are 
directly correlated with the condition of the surface. That is, a 
surface, such as a floor, in poor condition tends to have higher dust 
lead levels than a floor in fair to good condition. An evaluation of 
the HUD Lead-Based Paint Hazard Control Grant Program found that the 
``effect of the condition of the wiped surface at clearance was 
significant in all analyses. The surfaces in better condition at 
clearance had lower clearance dust lead loadings and lower failure 
rates'' (Ref. 18, at 7-20). EPA's Dust Study also found that floors in 
poor condition had higher dust lead levels across the post-work, post-
cleaning, and post-cleaning verification sampling stages than floors in 
better condition, although this could have been due to higher-intensity 
work (Ref. 14, at 6-14). EPA requests comment on whether this 
correlation should affect clearance or dust wipe testing requirements, 
and if, so, in what way. EPA is interested in suggestions on how to 
address the fact that some floors will be more difficult to clean than 
others.
    In particular, EPA has wrestled with the issue of how to reconcile 
a clearance requirement when floors are in such poor condition that 
achieving clearance would require the renovation firm to expand the 
scope of the original job to include additional remedial action such as 
refinishing the floor. In part, this situation raises the concern that 
renovation firms might be required to remediate lead hazards that 
existed prior to the renovation. To address the situation where 
achieving lead levels below the lead hazard standards would require 
expanding the scope of the renovation job, EPA is proposing an 
exception to the requirement to achieve clearance. Specifically, EPA 
proposes to allow renovation firms to stop after the second failed 
clearance test, regardless of the result, if the renovation firm did 
not agree to refinish the surface that is failing clearance as part of 
the renovation contract. For example, if a renovation firm is hired to 
remove plaster and lath wall sections that partially separate a living 
and dining room, and repaint the walls (including the windows) in both 
rooms, then the renovation firm would be required to ensure that the 
windowsills in the work area achieve clearance, no matter how many 
times the sills must be re-cleaned and re-tested. However, if the 
renovation firm was not hired to refinish the floor, the renovation 
firm would only have to re-clean and re-test the floor once if it 
failed clearance the first time, no matter what the second dust wipe 
testing result is. EPA believes that such a provision is necessary, 
given that renovation firms may encounter floors, windowsills, and 
window troughs that are in such poor condition that clearance may not 
be possible.
    EPA is also requesting comment on whether renovation firms ought to 
be allowed to perform pre-renovation dust wipe testing on surfaces in 
the work area that are in poor condition to help demonstrate that they 
are not leaving behind dust-lead hazards that they created. In this 
option, the renovation firm would only have to demonstrate that, for 
surfaces in poor condition in the work area, the dust-lead levels on 
these surfaces (which could be windowsills and/or floors) after the 
renovation are no higher than 150 [mu]g/ft\2\. This would ensure that 
renovation firms are not unduly held accountable for pre-existing lead-
based paint hazards. EPA believes that 150 [mu]g/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 support this alternate limit. Any pre-renovation 
testing option would also include a requirement to provide both the 
pre-renovation dust wipe testing report as well as the post-renovation 
report to the building owners and occupants. As part of its 
consideration, EPA requests comment on how ``poor condition'' should be 
defined for this approach.
    EPA believes that window troughs are particularly likely to harbor 
pre-existing dust lead levels at or above the clearance standards. They 
are also particularly likely to be difficult to clean. Therefore, EPA 
is requesting comment on whether EPA should allow renovation firms to 
close windows in the work area that are not being worked on and cover 
them with taped-down plastic or other impermeable material to avoid the 
requirement to ensure that the window troughs achieve clearance 
standards. EPA would still require renovation firms to test both the 
sills and troughs of closed and covered windows, and report the results 
to the building owners and occupants, but firms would only need to 
ensure that the sills achieve the clearance standards.
    EPA is also requesting comment on whether clearance should be 
required in other situations. In particular, EPA is interested in 
comment on whether clearance should be required after any of the 
activities for which EPA is proposing a dust wipe testing requirement. 
EPA is also interested in comment on whether clearance should be 
required in rental properties after renovations for which EPA is 
proposing a dust wipe testing requirement, especially if the renovation 
firm has been informed that the renovation is being performed to remedy 
a violation of federal, state, or local laws or regulations or to 
comply with a federal, state, or local government order, such as an 
order to correct building code violations, or an abatement order in 
response to an elevated blood lead level. In this case, EPA is also 
interested in comment on whether EPA should require renovation firms to 
affirmatively ask whether the work is being performed to remedy a 
violation or comply with an order, and whether renovation firms should 
provide this information to owners and occupants after the renovation. 
Finally, EPA requests comment on whether dust wipe testing or clearance 
should be required in any other situations not discussed specifically 
in this proposal, including situations where a surface has failed 
cleaning verification twice.
    4. Additional requests for comment on dust wipe testing or 
clearance.
    EPA is seeking comment on whether there are other regulatory 
options for dust wipe testing or clearance that maximize the potential 
benefits by targeting those activities that are most likely to exceed 
the clearance standards. For example, should different size thresholds 
be used for some or all of the renovations affected by this proposal? 
As discussed, the proposed thresholds for dust wipe testing are taken 
from the Dust Study. Does the data from the Dust Study, or data from 
another source, support larger thresholds for some or all of these 
jobs? Although EPA is concerned about potential confusion

[[Page 25053]]

with the definition of minor maintenance and repair, does the data from 
the Dust Study support applying these proposed thresholds on a per-room 
basis?
    Another potential option would be to apply dust wipe testing or 
clearance requirements only in homes where pregnant women or children 
under age 6 reside or in any building that meets the definition of 
child-occupied facility. EPA requests comment on this option, which 
does target particularly vulnerable populations but provides no 
protections for older children, adults and family pets.
    EPA also requests comment on whether dust wipe testing should only 
be required when a surface fails the first round of cleaning 
verification, and, if dust wipe testing is done, whether the second 
round of cleaning verification should then be performed. In the Dust 
Study, if a surface failed the first round of cleaning verification, no 
dust wipe samples were collected before the surface was cleaned and 
cleaning verification performed again (Ref. 14). This occurred in 17 of 
the 60 interior experiments performed. Three of those surfaces also 
failed the second round of cleaning verification. In each of those 3 
cases, at least one surface was also demonstrated to be above the 
regulatory clearance standards by dust wipe testing. Since no dust wipe 
samples were collected after the first round of cleaning verification, 
it is not possible to determine, for certain, what additional 
reductions in dust lead levels were attributable to the second round of 
cleaning verification. However, some insight is provided by the 
reductions in dust lead levels made by the first round of cleaning 
verification. In many of the experiments that passed the first round of 
cleaning verification, the cleaning verification step resulted in 
significant dust lead reductions between the samples taken post-
cleaning and the samples taken post-cleaning verification. Thus, the 
Dust Study demonstrates that the cleaning verification protocol in the 
2008 RRP rule is an integral part of the cleaning regimen. Because the 
second round of cleaning verification likely contributes significantly 
to the total reduction in dust lead levels attributable to cleaning 
verification, EPA continues to believe that the second round of 
cleaning verification is a necessary step in the process, regardless of 
whether dust wipe samples are collected or not.
    Another possible regulatory option would be to require clearance 
for renovations involving the demolition of plaster or the use of high-
speed machines designed to remove paint, or a larger set of renovation 
types, or smaller renovation size thresholds, and not require dust wipe 
testing in the absence of a clearance requirement. EPA requests comment 
on these options and suggestions for other regulatory options that may 
be less burdensome but still justifiable based on the available data.

B. Test Kits for Lead in Paint

    EPA has worked with test kit vendors to develop kits that can more 
accurately identify the presence of regulated lead-based paint. Through 
its Environmental Technology Verification (ETV) program, EPA is 
currently reviewing five test kits that have been submitted by vendors. 
More information on this process can be found at http://www.epa.gov/lead/pubs/testkit.htm#recognize.
    EPA is also proposing to give certified renovators another option 
for determining whether lead-based paint is present on components to be 
affected by a renovation. This proposal would permit certified 
renovators to collect paint chip samples from components to be affected 
by a renovation instead of using test kits to test the paint on the 
components. When utilizing this option, the certified renovator would 
be required to send the samples to a recognized NLLAP laboratory. 
Because renovator training courses are already required to include 
training in how and where to use test kits, EPA believes that it would 
take very little additional time to also provide renovators with 
training in how to collect a chip sample such that all paint layers are 
present with a minimal amount of substrate included in the sample, and 
how to submit these samples to an NLLAP laboratory for analysis. Such 
an option would not make a certified renovator the equivalent of a 
certified lead-based paint inspector. Certified renovators would still 
have to test each affected component, they would not be permitted to 
exclude components based on similar painting histories or perform 
random paint sampling in multi-unit buildings. EPA is proposing to 
allow certified renovators to collect paint chip samples instead of 
using test kits in order to provide maximum flexibility for certified 
renovators and renovation firms.

C. Training Provider Accreditation

    Training providers who wish to provide renovator, dust sampling 
technician, or lead-based paint activities training for Federal 
certification purposes must apply for and receive accreditation from 
EPA. To become accredited, a provider must employ a training program 
manager as well as principal instructor(s) who meet certain education, 
training and work experience requirements. The training provider must 
indicate on its application for accreditation that the training program 
manager and principal instructor(s) meet these requirements; however, 
currently, no documentation (e.g., resumes) regarding the 
qualifications of these individuals must be submitted to EPA. The 
Agency believes it is important to review this information when 
determining whether to approve a training provider application. When 
EPA reviews applications for accreditation, it is common for the Agency 
to request this documentation from training providers in order to 
verify that the training program manager and principal instructor(s) 
have the proper qualifications. Requesting this information takes time 
and can delay the review of an application. Therefore, the Agency is 
proposing to require that training providers submit documentation 
regarding the qualifications of the education, training and work 
experience of training managers and principal instructors with their 
applications for accreditation.
    EPA is also proposing to clarify the role of principal instructors 
in teaching courses. The current regulation, at 40 CFR 745.227(c)(3), 
states that principal instructors are responsible for the organization 
of their courses and oversight of the teaching of all course material. 
The regulations also define ``principal instructor'' as ``the 
individual who has the primary responsibility for organizing and 
teaching a particular course.'' Nonetheless, the rule also allows 
training program managers to designate experts in a particular field 
(e.g., doctors or lawyers) as guest instructors, on an as needed basis, 
to teach discrete portions of the course. EPA interprets these 
provisions to require a principal instructor to be present and 
primarily responsible for teaching the course, although guest 
instructors may be used to teach some portion(s) of the course. 
Principal instructors are also responsible for the quality of the 
instruction delivered by the guest instructors. To ensure that the 
regulation is clear on this point, EPA is proposing to amend 40 CFR 
745.227(c)(3) to state that principal instructor(s) are primarily 
responsible for teaching the course materials and must be present to 
provide instruction (or oversight of portions of the course taught by 
guest instructors) for the course for which he has been designated the 
principal instructor.
    The final RRP rule included requirements for amending the 
certification of a renovation firm. Firms must submit an amendment 
within 90

[[Page 25054]]

days of the date that a change occurs to information in its most recent 
application for certification or re-certification. Examples of 
amendments include a change in the firm's name without transfer of 
ownership, or a change of address or other contact information. To 
amend its certification, a firm must submit an application, noting on 
the form that it was submitted as an amendment. The firm must complete 
the sections of the application pertaining to the new information, and 
sign and date the form. EPA has interpreted the training provider 
accreditation regulations to require accredited training providers to 
submit amended applications whenever there is a change to the 
information provided in the training provider's most recent application 
for accreditation or re-accreditation, including information regarding 
the training manager and any principal instructor(s) teaching courses 
offered by the training provider. However, the existing regulations do 
not specify a time limit for submitting an amendment. Therefore, the 
Agency is proposing to require training providers to submit amendments 
within 90 days of the date a change occurs to information in each 
provider's most recent application. If the training provider does not 
amend its most recent accreditation application within the 90-day time 
period, it must stop providing training until the accreditation 
application is amended. The Agency is also proposing to approve or 
disapprove amendments for a new training manager, any new or additional 
principal instructors, or any new permanent training location within 30 
days of the date EPA receives the amendment. This 30-day time period 
will give EPA sufficient time to check the qualifications of the 
training manager(s) or principal instructor(s) before the training 
manager begins managing or the principal instructor begins teaching a 
course. This 30-day time period would also give EPA sufficient time to 
verify the suitability of a new permanent training location by visiting 
the location. The training provider would not be permitted to provide 
training under the new training manager or offer courses taught by any 
new principal instructor(s) or at the new training location until EPA 
either approves the amendment or 30 days has passed. Finally, this 
proposal would also clarify that no fee will be charged for 
accreditation application or certification amendments.
    To become accredited, a training provider must submit a copy of its 
training course materials with its application for accreditation for 
review by the Agency. If a training provider chooses to use the model 
course developed by EPA or a course approved by an authorized State or 
Indian Tribe, then it is not currently required to submit the course 
materials with its application. Instead the training provider indicates 
on its application that it will use the EPA model course or a course 
approved by an authorized State or Indian Tribe. Authorized States and 
Indian Tribes can have renovation or abatement programs that are 
significantly different from the EPA-administered program which would 
be reflected in their approved course materials. In these instances, a 
training course approved by the State or Indian Tribe may not be 
sufficient for the purposes of training someone on the requirements of 
the federal program. Therefore, the Agency is proposing to require 
training providers who apply to EPA for accreditation and wish to use a 
course approved by an authorized State or Indian Tribe to submit the 
course materials for EPA review. This will give the Agency the 
opportunity to identify and address any significant differences between 
the requirements of EPA and the authorized program that may appear in 
the course so the Agency can ensure that EPA-accredited training 
providers are using appropriate course materials. Training providers 
wishing to use the EPA model courses would not be required to submit 
those materials with their applications.
    As a matter of clarification, Web-based training and other types of 
alternative training delivery are permitted. In fact, EPA has developed 
a model on-line renovator course that could be used to deliver the 
classroom portion of the renovator course. While such alternative 
training delivery options cannot be used to deliver required hands-on 
training, EPA encourages training providers to make use of such options 
where appropriate to increase access to training and make it more 
affordable. Web-based training courses are considered separate courses 
and a separate application fee is required for each. This is because 
EPA must review not only the content of the course, but the mechanics 
of the delivery of the course.
    EPA's model electronic training courses contain certain basic 
administration and delivery requirements. These include assigning a 
unique identifier to each student, to allow the training provider to 
track student course progress and completion. In addition, there are 
knowledge checks for each chapter, which must be completed before the 
student can go on to the next chapter, and a final test for the 
electronic learning portion which consists of at least 20 questions. 
Finally, students must be able to save or print an uneditable copy of a 
record showing completion of the electronic learning portion of the 
course. Under this proposal, these requirements would be explicitly 
incorporated into 40 CFR 745.225 to ensure that all training providers 
wishing to use electronic learning for the classroom portions of lead-
based paint courses are aware of these requirements and plan their 
course development accordingly. EPA requests comment on the specifics 
of these requirements, such as whether a course test of 20 questions is 
sufficient and whether a student should be required to score at least 
80 percent on the course test in order to pass the classroom portion of 
the renovator course. EPA also requests comment on whether a final test 
for the electronic portion of the course is necessary, given that 
trainees must pass a hands-on skills assessment and the course test in 
order to receive a course completion certificate. EPA also requests 
comment on whether other requirements should likewise be incorporated 
into the regulations.
    EPA is requesting comment on whether training providers should be 
allowed to provide a combined Abatement Worker/Renovator refresher 
course or a combined Abatement Supervisor/Renovator refresher course or 
both. After the RRP rule was promulgated, EPA received input from the 
regulated community and others that indicates that many abatement 
contractors are likely to also become certified renovation firms. If 
this is the case, it would be advantageous for such firms to be able to 
send their employees to combined refreshers so that the employees would 
more readily be able to keep up their dual certifications. EPA requests 
comment on the likelihood that this will be the case, and, if combined 
refreshers are desirable, whether the different certification time 
periods for individual abatement certification (3 years) and individual 
renovator certification (5 years) should be harmonized and, if so, how.
    Finally, EPA is proposing to require training providers to maintain 
renovator and dust sampling technician training records for a period of 
5 years. Under the existing regulations, training providers must keep 
training records for 3 years and 6 months. This length of time was 
chosen because of the length of individual certification periods for 
lead-based paint activities, which can be as long as 3 years and 6 
months including interim certification.

[[Page 25055]]

However, the renovator and dust sampling technician certification 
periods are 5 years, with no interim certification. Therefore, in order 
to ensure that the training records from the previous training course 
are available for certified renovators and dust sampling technicians 
taking refresher courses, the recordkeeping period applicable to these 
disciplines would be increased to 5 years.

D. State, Territorial, and Tribal Program Authorization

    Interested States, Territories, and Indian Tribes may apply for, 
and receive authorization to, administer and enforce all of the 
elements of the RRP program. The regulations for the State and Tribal 
program requirements are found in 40 CFR 745.326. Under this proposed 
rule EPA is clarifying several parts of this section. First, the Agency 
is amending the regulations to make it clear that State and Tribal 
programs do not need to include requirements for the accreditation of 
dust sampling technicians if they are going to require dust sampling to 
be performed by a certified inspector or risk assessor. Second, the 
Agency is proposing to amend the regulations to reflect that both 
individuals and firms must receive certification. Finally, EPA is 
proposing to require State and Tribal renovation programs to include 
procedures and requirements for on-the-job training of renovation 
workers that do not receive accredited training.
    Strong enforcement of the lead-based paint regulations by 
authorized State and Tribal programs is critical to ensuring the safety 
of the occupants of target housing and child occupied facilities 
undergoing lead abatement, renovation, repair or painting. The State 
and Tribal program authorization requirements at 40 CFR 745.327 include 
provisions for approval of compliance and enforcement programs. 
Specifically, State and Tribal programs must have adequate compliance 
monitoring and enforcement authorities. Section 745.327(b)(3)(ii) 
requires ``[a]dministrative or civil actions including penalty 
authority * * *;'' but the rule does not establish a minimum penalty 
level or other requirements for enforcement authorities comparable to 
EPA authorities under TSCA. To remedy this, EPA is proposing that in 
order to be authorized for any of the lead certification programs, 
State or Tribal programs demonstrate that: (1) The State or Tribe be 
able to sue to obtain penalties, (2) civil and criminal penalties are 
assessable for each instance of violation, (3) if violations are 
continuous, the penalties are assessable up to the maximum amount for 
each day of violation, and (4) the burden of proof and degree of 
knowledge or intent of the respondent is no greater than it is for EPA 
under TSCA. EPA is also requesting comment on whether a minimum penalty 
level for civil and criminal fines ought to be established, and, if so, 
what the minimum level for each should be. States and Tribes may be 
authorized to administer a number of EPA programs; some of these 
programs have minimum penalty requirements for State and Tribal 
programs and some do not. For example, under the Clean Air Act 
implementing regulations at 40 CFR 70.11(a)(3) and the Resource 
Conservation and Recovery Act implementing regulations at 40 CFR 
271.16(a)(3), State programs must have the authority to assess civil 
and criminal fines of at least $10,000 per day per violation. Other 
programs have established lower minimum penalty requirements. The 
implementing regulations for the Safe Drinking Water Act require State 
programs to have the authority to impose a penalty of at least $1,000 
per day per violation on public water systems serving a population of 
more than 10,000 individuals. Some EPA programs have set no minimum 
penalty authority requirements for States and Tribes; these programs 
include the Asbestos Hazard Emergency Response Act program and the 
State pesticide applicator certification program under the Federal 
Insecticide, Fungicide, and Rodenticide Act. EPA is proposing that in 
order to become authorized, State and Tribal lead-based paint programs 
must have minimum civil and criminal penalty authorities of at least 
$10,000 per violation per day. EPA requests comment on whether 
proposing minimum levels for the maximum civil penalty and criminal 
fine recoverable under a State or Tribal program is necessary to ensure 
that enforcement is adequate and, if so, whether $10,000 should be the 
minimum level. EPA also requests comment on whether such a minimum 
requirement would appropriately promote consistency across authorized 
State and Tribal programs. In addition, EPA is requesting comment on 
whether these minimum levels should also be adjusted periodically to 
account for inflation, as required for Federal penalties under Federal 
Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, 
as amended by the Debt Collection Improvement Act of 1996, 31 U.S.C. 
3701 note. One way of doing this would be to require State and Tribal 
programs to have minimum civil penalty authority of 40% of the Federal 
maximum penalty authority under TSCA section 16, as adjusted for 
inflation, at the time the State or Tribe is authorized. However, this 
approach would result in different requirements for States and Tribes 
depending upon when they apply for authorization. Another way of 
accomplishing inflation adjustments would be to require State and 
Tribal authorized programs to have their own established mechanism for 
adjusting penalties to account for inflation. By requiring all 
authorized programs to make adjustments for inflation, this approach 
might be more likely to promote enforcement consistency across 
programs. Also in the interests of promoting national enforcement 
consistency, EPA requests comment on what criteria States or Tribes 
should consider, such as the size of a respondent's business, ability 
to remain in business, enforcement history, or risk posed by the 
respondent's actions, in establishing or mitigating penalties.

E. Other Proposed Amendments to the Final RRP Rule

    1. Containment. EPA is proposing to be more specific about the 
vertical containment requirements for exterior projects. Under this 
proposal, the rule would specifically state that vertical containment 
is required for exterior renovation projects that are covered by the 
rule and that affect painted surfaces within 10 feet of the property 
line. In such cases, vertical containment is necessary to ensure that 
adjacent buildings or properties are not contaminated by leaded dust or 
debris generated by the renovation. The rule would also note that 
vertical containment may be required in other situations, such as windy 
conditions, to prevent contamination of other buildings, other areas of 
the property, or adjacent buildings or properties. Finally, to clarify 
what is meant by the term ``containment,'' this proposal would add a 
definition of the term that is based on the definition of ``Worksite 
preparation level'' from the HUD Guidelines. The definition includes 
additional information on what constitutes vertical containment.
    2. Prohibited or restricted practices. EPA is proposing to clarify 
that the prohibitions and restrictions on work practices in 40 CFR 
745.85(a)(3), e.g., the prohibition on open flame burning or torching, 
apply to all painted surfaces, not just surfaces where the presence of 
lead-based paint has been confirmed. The term ``lead-based paint'' was 
incorrectly and inadvertently used in this subsection, making it 
inconsistent with the rest of the RRP

[[Page 25056]]

rule, which applies in the presence of known lead-based paint as well 
as paint that has not been tested for lead content. This proposal would 
replace the term ``lead-based paint'' with ``painted surfaces'' in this 
subsection. Of course, if the painted surface has been tested and found 
to be free of lead-based paint, the prohibitions and restrictions on 
work practices in the final RRP rule do not apply. In addition, EPA 
wishes to clarify that the restriction on the use of machines that 
remove paint through high speed operation applies where painted 
surfaces are being disturbed by such machines. The restriction is not 
limited to situations where all of the paint is removed by such 
machines. Finally, EPA has received several requests for clarification 
on what is meant by HEPA exhaust control. In order to better express 
what is required when machines designed to remove paint through high 
speed operation are used, EPA is using terminology from the 
Occupational Safety and Health Administration's Technical Manual (Ref. 
25). The use of shrouded tools to remove lead-based paint is discussed 
in Chapter 3 of Section V, entitled ``Controlling Lead Exposures in the 
Construction Industry: Engineering and Work Practice Controls.'' 
Therefore, this proposal would amend 40 CFR 745.85(a)(3)(ii) to read, 
``The use of machines designed to remove paint through high speed 
operation such as sanding, grinding, power planing, needle gun, 
abrasive blasting, or sandblasting, is prohibited on painted surfaces 
unless such machines are used shrouded and equipped with a HEPA vacuum 
attachment to collect dust and debris at the point of generation.''
    3. HEPA vacuums. EPA is proposing to clarify that vacuums 
qualifying as HEPA vacuums for the purposes of this rule must be 
operated and maintained in accordance with the manufacturer's 
instructions in order to continue to qualify as HEPA vacuums. This 
includes following the manufacturer's filter change interval 
recommendations. EPA would also like to clarify that the standard for 
HEPA filters, that they be capable of capturing particles of 0.3 
microns with 99.97% efficiency, means that the filters must have a 
Minimum Efficiency Reporting Value (MERV) of 17 or greater (Ref. 26). 
EPA recommends that renovation firms have information from the 
manufacturer that the particular model of vacuum that the renovation 
firm intends to use, or the vacuum's HEPA filter, has been tested in 
accordance with an applicable test method, such as ASTM F1471-09, 
``Standard Test Method for Air Cleaning Performance of a High-
Efficiency Particulate Air-Filter System,'' and has been determined to 
meet this standard (Ref. 27).
    4. On-the-job training. EPA is proposing to clarify that the RRP 
rule requires certified renovators to train other renovation workers in 
only the work practices required by the RRP rule that the workers will 
be using in performing their assigned tasks. EPA did not intend to 
require training in any other subjects, such as how to paint or how to 
connect pipes. Therefore, EPA is proposing to amend 40 CFR 745.90(b)(2) 
and (b)(4) to refer specifically to the work practice requirements in 
40 CFR 745.85(a).
    5. Grandfathering. Under the final RRP rule, individuals who 
successfully completed an accredited abatement worker or supervisor 
course, and individuals who successfully completed the HUD, EPA, or the 
joint EPA/HUD model renovation training courses may take an accredited 
refresher renovation training course in lieu of the initial renovation 
training to become a certified renovator. In addition, individuals who 
have successfully completed an accredited lead-based paint inspector or 
risk assessor course, but are not currently certified in the 
discipline, may take an accredited refresher dust sampling technician 
course in lieu of the initial training to become a certified dust 
sampling technician. EPA inadvertently did not address a time limit in 
the RRP rule for taking the initial course in lieu of the refresher. 
Many of the commenters who addressed the issue of grandfathering 
contended that there should be restrictions based on how much time 
elapsed since the training was taken. Further, under the lead-based 
paint activities regulations at 40 CFR 745.226, EPA allowed a similar 
grandfathering provision but only for a limited time. In today's 
notice, EPA is proposing to set a limit on when an individual can take 
advantage of the grandfathering provision under the RRP rule. Under 
today's proposal, renovators and dust sampling technicians who take the 
appropriate prerequisite course before July 31, 2011, may take an 
accredited refresher training course in lieu of the initial training. 
This time frame is consistent with some of the time limitations 
suggested in comments on the RRP rule (Ref. 1 at 21724).
    6. Hands-on requirements. 40 CFR 745.225 includes requirements and 
procedures that training programs must follow to become accredited in 
order to provide instruction in lead-based paint courses. Minimum 
requirements for training curricula are found in this section, which 
list course topics that must be included in the different training 
courses with an indication of the topics that require hands-on 
instruction. However, EPA inadvertently omitted indicating which course 
topics required hands-on training for the renovator and dust sampling 
technician disciplines. Under this proposed rule, EPA identifies in 40 
CFR 745.227(d) which topics in the renovator and dust sampling 
technician courses require hands-on training. For further 
clarification, EPA is proposing to add a sentence to 40 CFR 
745.227(e)(2) stating that refresher courses for all disciplines except 
project designer must include a hands-on component.
    7. Dust sampling technicians. Individuals who successfully complete 
an accredited lead-based paint inspector or risk assessor course, but 
are not currently certified in the discipline, may take an accredited 
refresher dust sampling technician course in lieu of the initial 
training before April 22, 2011 to become a certified dust sampling 
technician. Inspectors and risk assessors who are certified by EPA or 
an authorized state program are qualified to perform dust sampling as 
part of lead hazard screens, risk assessments, or abatements. 
Therefore, it would be unnecessary for a certified inspector or risk 
assessor to seek certification as a dust sampling technician. The 
regulations promulgated in the RRP rule explained who is eligible to 
take the refresher dust sampling technician course in lieu of the 
initial training. However, the regulations did not explicitly say that 
a certified inspector or risk assessor could perform dust sampling. In 
order to clarify the intent of the regulation, EPA is proposing to 
amend 40 CFR 745.90(a)(3) to specifically state that a certified 
inspector or risk assessor may act as a dust sampling technician.
    8. Trainee photographs. Accredited training programs are required 
to issue a course completion certificate for each person who passes a 
training course. A variety of information is required to be on the 
certificate including the name of the course, the name and address of 
the student, and contact information for the training program. Course 
certificates for renovators or dust sampling technicians must include a 
photograph of the student. Since publishing the RRP rule, the Agency 
has been asked if there is a minimum size for the photograph. 
Currently, there are no size requirements or other specifications for 
the photograph on a course completion certificate. Nonetheless, EPA 
believes that it would be beneficial to have such requirements to 
ensure that the person in the photograph is recognizable. Thus,

[[Page 25057]]

EPA is proposing to require that the photographs on course completion 
certificates be an accurate and recognizable image of the trainee and 
at least one square inch in size. EPA is requesting comments on whether 
the image quality requirements should be more specific, e.g., more 
quantitative.
    9. Training requirements. As stated previously, 40 CFR 745.225 
includes requirements and procedures that training programs must follow 
to become accredited in order to provide instruction in renovator, dust 
sampling technician, and lead-based paint activities courses. The final 
RRP rule amended Section 745.225 to cover persons who provide or wish 
to provide renovator or dust sampling technician training for the 
purposes of the final RRP rule. There are some instances where the 
regulations do not specifically mention the renovator or dust sampling 
technician courses even though the regulations apply to those courses. 
For example, 40 CFR 745.225(c)(14) explains the requirements which a 
training provider must follow when submitting notification to EPA after 
the completion of a training. However, the conforming changes, i.e., to 
replace ``lead-based paint activities courses'' with ``renovator, dust 
sampling technician, and lead-based paint activities courses,'' were 
not made to every subparagraph even though all the requirements of that 
section apply to those courses. Consequently, EPA is proposing to 
clarify that the requirements in 40 CFR 745.225 apply to renovator and 
dust sampling technician courses in addition to lead-based paint 
activities courses. These changes do not alter the requirements but 
merely clarify them.

IV. References

    As indicated under ADDRESSES, a docket has been established for 
this rulemaking under docket ID number EPA-HQ-OPPT-2005-0049. The 
following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the 
technical contact listed under FOR FURTHER INFORMATION CONTACT.

1. U.S. Environmental Protection Agency (EPA). Lead; Renovation, 
Repair, and Painting Program; Final Rule. Federal Register (73 FR 
21692, April 22, 2008) (FRL-8355-7).
2. EPA. Air Quality Criteria for Lead (October 2006).
3. EPA. Lead Exposure Associated With Renovation and Remodeling 
Activities: Phase III, Wisconsin Childhood Blood-Lead Study (EPA 
747-R-99-002, March 1999).
4. U.S. Department of Health and Human Services (HHS), U.S. Public 
Health Service (PHS), Centers for Disease Control and Prevention 
(CDC). Children with Elevated Blood Lead Levels Attributed to Home 
Renovation and Remodeling Activities--New York, 1993-1994. Morbidity 
and Mortality Weekly Report (45(51); 1120-1123, January 3, 1997).
5. HHS, PHS, CDC. Children with Elevated Blood Lead Levels Related 
to Home Renovation, Repair, and Painting Activities--New York State, 
2006-2007. Morbidity and Mortality Weekly Report (58(03); 55-58, 
January 30, 2009).
6. Reissman, Dori B., Thomas D. Matte, Karen L. Gurnite, Rachel B. 
Kaufmann, and Jessica Leighton. ``Is Home Renovation or Repair a 
Risk Factor for Exposure to Lead Among Children Residing in New York 
City?'' Journal of Urban Health: Bulletin of the New York Academy of 
Medicine. Vol. 79, No. 4, 502-511, December 2005.
7. Jones, Robert L., David M. Homa, Pamela A. Meyer, Debra J. Brody, 
Kathleen L. Caldwell, James L. Pirkle, and Mary Jean Brown. ``Trends 
in Blood Lead Levels and Blood Lead Testing Among U.S. Children Aged 
1 to 5 Years, 1988-2004.'' Pediatrics: Official Journal of the 
American Academy of Pediatrics. Vol. 123, No. 3, pp. e376-e385, 
March 2009.
8. EPA. Lead; Requirements for Lead-based Paint Activities; Final 
Rule. Federal Register (61 FR 45778), August 29, 1996).
9. EPA. Lead; Identification of Dangerous Levels of Lead; Final 
Rule. Federal Register (66 FR 1206, January 5, 2001).
10. EPA. Lead Exposure Associated With Renovation and Remodeling 
Activities: Phase I, Environmental Field Sampling Study (EPA 747-R-
96-007, May 1997).
11. EPA. Lead Exposure Associated With Renovation and Remodeling 
Activities: Phase II, Worker Characterization and Blood-Lead Study 
(EPA 747-R-96-006, May 1997).
12. EPA. Exposure Associated With Renovation and Remodeling 
Activities: Phase IV, Worker Characterization and Blood-Lead Study 
of R&R Workers Who Specialize in Renovation of Old or Historic Homes 
(EPA 747-R-99-001, March 1999).
13. EPA. Lead; Renovation, Repair, and Painting Program; Proposed 
Rule. Federal Register (71 FR 1588, January 10, 2006) (FRL-8355-7).
14. EPA. Characterization of Dust Lead Levels After Renovation, 
Repair, And Painting Activities. (November 13, 2007).
15. U.S. Department of Housing and Urban Development (HUD). 
Guidelines for the Evaluation and Control of Lead-Based Paint 
Hazards in Housing (June 1995).
16. EPA. Electrostatic Cloth and Wet Cloth Field Study in 
Residential Housing (September 2005).
17. Rx Solutions International/BTS Laboratories Inc. Comment on 
EPA's Proposed Renovation, Remodeling, and Painting Program. EPA-HQ-
OPPT-2005-0049-0483. May 22, 2006.
18. HUD. Evaluation of the HUD Lead-Based Paint Hazard Control Grant 
Program: Final Report. May 1, 2004. http://www.hud.gov/offices/lead/library/misc/NatEval.pdf.
19. EPA. Residential Sampling for Lead: Protocols for Dust and Soil 
Sampling, March 1995 (EPA 747-R-95-001).
20. ASTM International. Standard Practice for Clearance Examinations 
Following Lead Hazard Reduction Activities in Single-Family 
Dwellings and Child-Occupied Facilities (E 2271-05a).
21. EPA and HUD. Lead; Requirements for Disclosure of Information 
Concerning Lead-Based Paint in Housing; Final Rule. Federal Register 
(61 FR 9064, March 6, 1996).
22. EPA. National Lead Laboratory Accreditation Program (NLLAP); 
Notice of Availability of Revisions to the NLLAP; Notice of 
Availability (73 FR 3967 January 23, 2008).
23. EPA. Reviewed Studies Pertaining to HEPA Shroud Effectiveness. 
2009.
24. Battelle Memorial Institute. Encapsulation Treatment of Dust 
Study Floors. January 2010.
25. U.S. Department of Labor, Occupational Safety and Health 
Administration (OSHA). Technical Manual TED 01-00-015 [TED 1-0.15A]. 
Revised June 24, 2008.
26. American Society of Heating, Refrigerating and Air-Conditioning 
Engineers (ASHRAE). Standard 52.2-2007--Method of Testing General 
Ventilation Air-Cleaning Devices for Removal Efficiency by Particle 
Size (ANSI/ASHRAE Approved) 2007.
27. ASTM International. Standard Test Method for Air Cleaning 
Performance of a High-Efficiency Particulate Air-Filter System 
(F1471-09).
28. EPA. Office of Pollution Prevention and Toxics (OPPT). Economic 
Analysis of the Proposed Dust Testing and Clearance Amendments to 
the TSCA Lead Renovation, Repair, and Painting Program for Target 
Housing and Child-Occupied Facilities. April 2010.
29. EPA. Proposed Clearance Rule ICR Addendum for the rulemaking 
entitled Lead; Clearance and Clearance Testing Requirements for the 
Renovation, Repair, and Painting Program; Proposed Rule. April 2010.
30. EPA. Initial Regulatory Flexibility Analysis for the Clearance 
and Clearance Testing Requirements for the Lead Renovation, Repair, 
and Painting Program; Proposed Rule. April 2010.
31. EPA. Report of the Small Business Advocacy Review Panel on the 
Lead-based Paint Certification and Training; Renovation and 
Remodeling Requirements. March 3, 2000.
32. EPA. Unfunded Mandates Reform Act Statement; Lead; Clearance and 
Clearance Testing Requirements for the Renovation, Repair, and 
Painting Program; Proposed Rule. April 2010.

[[Page 25058]]

33. ASTM International. Standard Practice for Collection of Settled 
Dust Samples Using Wipe Sampling Methods for Subsequent Lead 
Determination (E1728-03).
34. ASTM International. Standard Specification for Wipe Sampling 
Materials for Lead in Surface Dust (E1792-03).
35. ASTM International. Standard Practice for Record Keeping and 
Record Preservation for Lead Hazard Activities (E2239-04).

V. Statutory and Executive Order Reviews

    EPA has prepared an analysis of the potential costs and benefits 
associated with this rulemaking. This analysis is contained in the 
``Economic Analysis of the Proposed Dust Testing and Clearance 
Amendments to the TSCA Lead Renovation, Repair, and Painting Program 
for Target Housing and 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
                                 quantified, although there may be
                                 benefits through:
                                (1) Information on lead-dust levels
                                 remaining in the renovation work area,
                                 including lead-dust that may have been
                                 generated during the renovation
                                 activity.
                                (2) Changed behavior on the part of
                                 renovation firms, owners, and occupants
                                 which may prevent adverse health
                                 effects attributable to lead exposure
                                 from renovations in pre-1978 buildings.
                                EPA has estimated the size of the
                                 population affected by this rule, but
                                 does not have sufficient information to
                                 estimate the value of information to
                                 consumers about lead-dust risks, or the
                                 decrease in exposure to lead-dust from
                                 renovations in target housing and child-
                                 occupied facilities.
Costs.........................  $272 million annualized (3% discount
                                 rate).
                                $293 million annualized (7% discount
                                 rate).
------------------------------------------------------------------------

A. Executive Order 12866

    Under section 3(f)(1) of Executive Order 12866, entitled 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993), this 
action is an ``economically significant regulatory action'' because EPA 
estimates that it will have an annual effect on the economy of $100 
million or more. Accordingly, this action was submitted to the Office 
of Management and Budget (OMB) for review under Executive Order 12866 
and any changes made based on OMB recommendations have been documented 
in the public docket for this rulemaking as required by section 
6(a)(3)(E) of the Executive Order.
    The following is a summary of the Economic Analysis (Ref. 28), 
which is available in the docket for this action.
    1. Options evaluated. The Economic Analysis analyzes several 
options. In addition to the proposed rule option, the Economic Analysis 
includes options with lower and higher thresholds (in terms of the 
amount of lead-based paint disturbed) for renovations which require 
dust wipe testing or clearance. In the proposed rule, the renovation 
events for which clearance is required (use of high speed machines to 
remove paint, and the demolition or destructive removal of plaster) 
have a threshold of 6 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 without necessarily achieving clearance 
vary from 6 to 60 ft\2\, depending on the type of renovation (use of a 
heat gun; scraping painted surfaces; removing trim, molding, cabinets, 
or other fixtures; etc.). In the low threshold option, the thresholds 
are 6 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 includes three options that use the same 
threshold sizes as the proposed rule but apply different requirements 
to them. There is an option that requires dust wipe testing for all of 
the renovation events covered by the proposed rule without requiring 
clearance for any of them, as well as an option that requires clearance 
for all of these events. Finally, there is an option that applies to 
the same dust wipe testing and clearance events and thresholds as the 
proposed rule but that requires renovation firms to have the dust wipe 
sampling performed by an independent third party.
    2. Number of facilities and renovations. There are approximately 
18.7 million renovation events per year covered by EPA's renovation, 
repair, and painting program in the 78 million target housing units and 
child-occupied facilities. The number of renovations affected by this 
proposed rule depends on the option selected. The low threshold option 
affects an estimated 1.8 million dust wipe testing only events and 
69,000 clearance events per year. The proposed rule is estimated to 
affect 1.5 million dust wipe testing only events and 69,000 clearance 
events a year. The high threshold option affects an estimated 1.2 
million dust wipe testing only events and 58,000 clearance events per 
year. The remaining three options (only dust wipe testing is required 
for all renovations covered by the proposed rule, clearance is required 
for all renovations covered by the proposed rule, and third-party dust 
wipe sampling is required for all renovations covered by the proposed 
rule) all affect an estimated 1.6 million events per year.
    3. Benefits. The benefits of the rule result from the prevention of 
adverse health effects attributable to lead exposure from renovations 
in pre-1978 buildings. These health effects include impaired cognitive 
function in children and several illnesses in children and adults, such 
as increased adverse cardiovascular outcomes (including increased blood 
pressure, increased incidence of hypertension, cardiovascular morbidity 
and mortality) and decreased kidney function.
    The proposed rule will generate benefits by providing greater 
assurance that dust-lead hazards created by renovations are adequately 
cleaned up, primarily by requiring renovation firms to provide building 
owners and occupants with information on dust lead levels remaining in 
the work area after many renovation projects, but also by requiring 
renovation firms to demonstrate that they have achieved regulatory 
clearance levels after some of the dustiest renovations. These changes 
will protect individuals residing in target housing or attending a 
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.

[[Page 25059]]

    EPA has estimated the number of individuals residing in target 
housing units or attending COFs where renovation events are performed. 
The proposed rule will benefit 809,000 children under the age of 6 and 
7,547,000 individuals age 6 and older (including 96,000 pregnant women) 
per year by minimizing their exposure to lead dust generated by 
renovations. The low threshold option would protect 882,000 children 
under the age of 6 and 8,193,000 individuals age 6 and older, including 
105,000 pregnant women. The high threshold option protects 706,000 
children and 6,590,000 individuals age 6 and older, including 83,000 
pregnant women. The remaining three alternative options (dust wipe 
testing only, clearance only, and third party dust wipe testing) would 
affect the same number of individuals as the proposed rule, although 
the amount of protection provided to some of those individuals may 
differ from the proposed rule.
    4. Costs. Firms performing the renovation events covered by the 
proposed rule will incur costs associated with having a third party 
perform dust wipe sampling and testing (or with having a firm staff 
member trained as a dust sampling technician so that they can take 
their own dust wipe samples and send them to a lab). For jobs subject 
to the clearance requirements in the proposed rule, firms may incur re-
cleaning costs if dust wipe testing after clean-up yields results that 
exceed the clearance standards. Firms will also incur small costs to 
provide the dust wipe testing results to owners and occupants of the 
target housing units and child-occupied facilities where the 
renovations are performed.
    EPA's updated estimate is that the average cost for a renovation 
firm to hire a third-party lead evaluation firm to take four dust 
samples, send them to a lab for analysis, and provide a short report is 
slightly over $260. However, many renovation firms may find it more 
cost effective to have a staff member trained and certified as a dust 
sampling technician rather than hiring a third party to take the 
samples.
    Renovation firms would incur the same dust wipe testing costs for 
renovations where achieving clearance is required. If dust levels 
exceed the clearance standards after cleaning verification, the 
renovation firm will incur additional costs for re-cleaning the work 
area up to two times. These re-cleaning costs vary from job to job, 
depending on the size of the space that must be cleaned.
    Annualized costs for the rule options are calculated using both a 
3% and a 7% discount rate. Total annualized costs for the proposed rule 
are $272 million per year using a 3% discount rate and $293 million per 
year using a 7% discount rate. Under the low threshold option, costs 
are $312 million per year with a 3% discount rate and $336 million per 
year with a 7% rate. Under the high threshold option, costs are $224 
million per year with a 3% discount rate and $242 million per year with 
a 7% discount rate. The option that only requires dust wipe testing 
costs $268 million per year with a 3% discount rate and $288 million 
per year with a 7% discount rate. The option requiring clearance for 
all renovations covered by the proposed rule costs $367 million with a 
3% discount rate and $394 million with a 7% discount rate. The option 
requiring the use of a third party for dust wipe sampling costs $431 
million per year with a 3% discount rate and $459 million per year with 
a 7% discount rate.

B. Paperwork Reduction Act

    The information collection requirements contained in this proposed 
rule have been submitted for approval to the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
EPA has prepared an Information Collection Request (ICR) document to 
amend an existing approved ICR. The ICR document, referred to as the 
Proposed Clearance Rule ICR Addendum and identified under EPA ICR No. 
2381.01 and OMB Control Number 2070-NEW, has been placed in the docket 
for this proposed rule (Ref. 29). The information collection 
requirements are not enforceable until OMB approves them.
    Burden under the PRA means the total time, effort, or financial 
resources expended by persons to generate, maintain, retain, disclose, 
or provide information to or for a Federal agency. This includes the 
time needed to review instructions; develop, acquire, install, and 
utilize technology and systems for the purposes of collecting, 
validating, and verifying information, processing and maintaining 
information, and disclosing and providing information; adjust the 
existing ways to comply with any previously applicable instructions and 
requirements; train personnel to be able to respond to a collection of 
information; search data sources; complete and review the collection of 
information; and transmit or otherwise disclose the information.
    The information collection activities contained in this proposed 
rule are designed to assist the Agency in meeting the core objectives 
of TSCA section 402. EPA has carefully tailored the recordkeeping 
requirements so they will permit the Agency to achieve statutory 
objectives without imposing an undue burden on those firms that choose 
to be involved in renovation, repair, and painting activities.
    This proposed rule requires renovation firms to provide owners and 
occupants with a report including the results of the dust wipe testing. 
Although firms have the option of choosing to engage in the covered 
activities, once a firm chooses to do so, the information collection 
activities become mandatory for that firm. The rule may result in an 
increase in the number of individuals becoming trained as dust sampling 
technicians, resulting in additional paperwork requirements for 
training providers.
    The ICR document provides a detailed presentation of the estimated 
paperwork burden and costs resulting from this proposed rule. The 
burden to firms engaged in renovation, repair, and painting activities 
and to training providers are summarized in this unit.
    The requirement for renovation firms to provide a dust wipe testing 
report for the renovations covered by the rule will impact about 
224,000 firms. The additional burden for these firms arising from the 
proposed rule is estimated to average nearly 13 hours per firm 
annually, resulting in a total burden of approximately 2,867,000 hours 
per year for these firms.
    Many certified renovators may become trained and certified as dust 
sampling technicians so that they can take their own dust wipe samples 
and send them to a lab for analysis. This will increase the paperwork 
burden for training providers, since they must submit records to EPA 
(or an authorizing State, Tribe, or Territory) pertaining to each 
student attending a training course to become a dust sampling 
technician. Around 170 training providers are estimated to incur an 
average burden of about 82 hours, resulting in an increase of 
approximately 14,000 hours per year in training provider burden as a 
result of the proposed rule.
    Total respondent burden for renovation firms and training providers 
is estimated to average approximately 2.9 million hours per year during 
the 3 year period covered by the ICR.
    The proposed rule may also result in additional government costs to 
administer the program (to process the additional training provider 
notifications and to administer and enforce the program). States, 
Tribes, and Territories are allowed, but are under no obligation, to 
apply for and receive authorization to administer these requirements. 
EPA will directly

[[Page 25060]]

administer programs for States, Tribes, and Territories that do not 
become authorized. Because the number of States, Tribes, and 
Territories that will become authorized is not known, administrative 
costs are estimated assuming that EPA will administer the program 
everywhere. To the extent that other government entities become 
authorized, EPA's administrative costs will be lower.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations codified in chapter 40 of the CFR, after appearing in the 
preamble of the final rule, are listed in 40 CFR part 9, are displayed 
either by publication in the Federal Register or by other appropriate 
means, such as on the related collection instrument or form, if 
applicable. When the ICR is approved by OMB, the Agency will publish a 
technical amendment to 40 CFR part 9 in the Federal Register to display 
the OMB control number for the approved information collection 
requirements contained in the final rule.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a docket for this 
proposed rule, which includes this ICR, under docket ID number EPA-HQ-
OPPT-2005-0049. Submit any comments related to the ICR to EPA and OMB. 
See ADDRESSES for where to submit comments to EPA. Send comments to OMB 
at the Office of Information and Regulatory Affairs, Office of 
Management and Budget, 725 17th St., NW., Washington, DC 20503, 
Attention: Desk Office for EPA. Since OMB is required to make a 
decision concerning the ICR between 30 and 60 days after May 6, 2010, a 
comment to OMB is best assured of having its full effect if OMB 
receives it by June 7, 2010. The final rule will respond to any OMB or 
public comments on the information collection requirements contained in 
this proposed rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined in accordance with section 601 
of the RFA as:
    (1) A small business as defined by the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201.
    (2) A small governmental jurisdiction that is a government of a 
city, county, town, school district, or special district with a 
population of less than 50,000.
    (3) A small organization that is any not-for-profit enterprise 
which is independently owned and operated and is not dominant in its 
field.
    As required by section 603 of the RFA, EPA has prepared an initial 
regulatory flexibility analysis (IRFA) for this proposed rule. The IRFA 
is available for review in the docket and is summarized in this unit 
(Ref. 30).
    1. Reasons why action by the Agency is being considered. The Agency 
believes it is in the best interest of the public to require dust wipe 
testing for many types of renovations (and to require renovation firms 
to achieve clearance for certain types of renovations). EPA expects two 
kinds of benefits to flow from the proposed dust wipe testing 
requirements. The first are the direct benefits of the information to 
the owners and occupants, the pure value of the information on dust 
lead levels remaining in the renovation work area. For building owners 
and occupants, this information is likely to improve their 
understanding and awareness of dust-lead hazards. It will also greatly 
improve their ability to make further risk management decisions, 
especially in light of mounting evidence suggesting that the current 
dust-lead hazard standards are too high. This information is 
particularly critical where dust lead levels approach or exceed the 
regulatory hazard standards. The other benefits that EPA expects to 
flow from a dust wipe testing requirement are the benefits that may 
result from changed behavior on the part of renovation firms. EPA 
believes that dust wipe testing results will also provide valuable 
feedback to renovation firms on how well they are cleaning up after 
renovations. It is likely that the specific dust lead levels contained 
in dust wipe testing results will increase renovation firm cleaning 
efficiency. Renovation firms will be incentivized to lower the dust 
lead levels remaining after renovation jobs, even if the levels are at 
or near the regulatory standards. For two types of renovations that can 
create large amounts of difficult-to-clean dust, EPA remains concerned 
about the possibility that dust lead levels remaining, even after 
cleaning verification, may substantially exceed the clearance 
standards. If renovation firms choose to utilize these methods, the 
firms would be required to demonstrate, through dust wipe testing, that 
they have met the clearance standards before the renovation will be 
considered completed.
    2. Legal basis and objectives for this proposed rule. These work 
practice requirements for dust wipe testing and clearance, training, 
certification and accreditation requirements, and State, Territorial 
and Tribal authorization provisions are being promulgated under the 
authority of TSCA sections 402(c)(3), 404, and 407, 15 U.S.C. 
2682(c)(3), 2684, and 2687. A central objective of this proposed rule 
is to provide greater assurance that dust-lead hazards created by 
renovations are adequately cleaned up, primarily by requiring 
renovation firms to provide building owners and occupants with 
information on dust lead levels remaining in the work area after many 
renovation projects, but also by requiring renovation firms to 
demonstrate that they have achieved regulatory clearance levels after 
some of the dustiest renovations.
    3. Potentially affected small entities. Small entities include 
small businesses, small organizations, and small governmental 
jurisdictions. The small entities that are potentially directly 
regulated by this proposed rule include: Small businesses (such as 
renovation contractors and property owners and managers); small 
nonprofits (certain childcare centers and private schools); and small 
governments (school districts which operate pre-schools, kindergartens 
and certain child care centers).
    In determining the number of small businesses affected by the 
proposed rule, the Agency applied U.S. Economic Census data to the 
SBA's definition of small business. However, applying the U.S. Economic 
Census data requires either under- or overestimating the number of 
small businesses affected by the proposed rule. For example, for many 
construction establishments, the SBA defines small businesses as having 
revenues of less than $14 million. With respect to those 
establishments, the U.S. Economic Census data groups all establishments 
with revenues of $10 million or more into one revenue bracket. On the 
one hand, using data for the entire industry would overestimate the 
number of small businesses affected by the proposed rule and would 
defeat the purpose of estimating impacts on small business. It would 
also

[[Page 25061]]

underestimate the proposed rule's impact on small businesses because 
the impacts would be calculated using the revenues of large businesses 
in addition to small businesses. On the other hand, applying the 
closest, albeit lower, revenue bracket would underestimate the number 
of small businesses affected by the proposed rule while at the same 
time overestimating the impacts. Similar issues arose in estimating the 
fraction of property owners and managers that are small businesses. EPA 
has concluded that a substantial number of small businesses will be 
affected by the rule. Consequently, EPA has chosen to be more 
conservative in estimating the cost impacts of the rule by using the 
closest, albeit lower, revenue bracket for which U.S. Economic Census 
data is available. For other sectors (nonprofits operating childcare 
centers or private schools), EPA assumed that all affected firms are 
small, which may overestimate the number of small entities affected by 
the proposed rule.
    The vast majority of entities in the industries affected by this 
proposed rule are small. Using EPA's estimates, these revisions to the 
renovation, repair, and painting program will affect over 203,000 small 
entities per year.
    4. Potential economic impacts on small entities. EPA evaluated two 
factors in its analysis of the proposed rule's requirements on small 
entities, the number of firms that would experience the impact, and the 
size of the impact. Average annual compliance costs as a percentage of 
average annual revenues were used to assess the potential average 
impacts of the rule on small businesses and small governments. This 
ratio is a good measure of entities' ability to afford the costs 
attributable to a regulatory requirement, because comparing compliance 
costs to revenues provides a reasonable indication of the magnitude of 
the regulatory burden relative to a commonly available measure of 
economic activity. Where regulatory costs represent a small fraction of 
a typical entity's revenues, the financial impacts of the regulation on 
such entities may be considered as not significant. For non-profit 
organizations, impacts were measured by comparing rule costs to annual 
expenditures. When expenditure data were not available, however, 
revenue information was used as a proxy for expenditures. It is 
appropriate to calculate the impact ratios using annualized costs, 
because these costs are more representative of the continuing costs 
entities face to comply with the proposed rule.
    The cost of the proposed rule to a typical small business averages 
approximately $1,200 per year. This represents 0.4% to 1.1% of revenues 
depending on the industry sector. Overall, an estimated 203,000 small 
renovation contractors would be affected by the proposed rule, with 
average impacts of 0.5% of revenues. Approximately 100 small 
governments per year would incur a cost of about $800, resulting in an 
average impact of less than 0.01%. And around 200 small non-profits per 
year would incur a cost of about $600, resulting in an impact of 
approximately 0.1%.
    Some of the small renovation contractors subject to the rule have 
employees while others are 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 entities with employees, so their impacts (measured as 
costs divided by revenues) can be higher. Impact estimates for non-
employers should be interpreted with caution, as some 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 approximately $700 apiece. This 
represents 0.7% to 2.6% of reported revenues, depending on the industry 
sector.
    5. Relevant Federal rules. The requirements in this proposed rule 
will fit within an existing framework of other Federal regulations that 
address lead-based paint. Notably, the Pre-Renovation Education Rule, 
40 CFR 745.85, requires renovation firms to distribute a lead hazard 
information pamphlet to owners and occupants before conducting a 
renovation in target housing and child-occupied facilities. This 
proposed rule's requirement that renovation firms provide owners and 
occupants with dust wipe testing and clearance reports complements the 
existing pre-renovation education requirements. Another such Federal 
regulation is HUD's Lead Safe Housing Rule, 24 CFR part 35, subparts B-
R, which requires firms conducting interim controls of lead-based paint 
hazards (a category which includes RRP work) to provide owners and 
occupants with dust wipe testing and clearance reports.
    6. Skills needed for compliance. Under the lead renovation, repair, 
and painting program requirements, renovators and dust sampling 
technicians working in target housing and child-occupied facilities 
have to take courses to learn the proper techniques for accomplishing 
the tasks (including dust sampling, preparing a report with the 
results, and performing specialized cleaning) they will perform during 
renovations. These courses are intended to provide them with the 
information they would need to comply with the rule based on the skills 
they already have. Other renovation workers that have not been formally 
trained and certified must receive training on the work practices they 
will be using in performing their assigned tasks from a certified 
renovator, and a certified renovator must regularly direct work being 
performed by other renovation workers to ensure that the work practices 
are being followed, including maintaining the integrity of the 
containment barriers and ensuring that dust or debris does not spread 
beyond the work area.
    7. Small Business Advocacy Review Panel. EPA has been concerned 
with potential small entity impacts since the earliest stages of 
planning for the RRP program under section 402(c)(3) of TSCA. EPA 
conducted outreach to small entities and, pursuant to section 609 of 
the RFA, convened a Small Business Advocacy Review Panel (the Panel) in 
1999 to obtain advice and recommendations of representatives of the 
regulated small entities. EPA identified eight key elements of a 
potential renovation and remodeling regulation for the Panel's 
consideration. These elements were: applicability and scope, firm 
certification, individual training and certification, accreditation of 
training courses, work practice standards, prohibited practices, 
exterior clearance, and interior clearance.
    Details on the Panel and its recommendations are provided in the 
Panel Report (Ref. 31). Information on how EPA implemented the Panel's 
recommendations in the development of the RRP program is available in 
Unit VIII.C. of the preamble to the 2006 proposed rule (Ref. 13) and in 
Unit V.C. of the preamble to the 2008 final rule (Ref. 1). EPA believes 
that the conclusions it made in 2008 regarding these recommendations 
are applicable to this proposal. Indeed, EPA has considered input from 
the 1999 Panel process in this rule precisely because it is so closely 
related that EPA considers it an extension of the 2008 RRP rulemaking. 
(See 5 U.S.C. 605(c))
    8. Alternatives considered. EPA considered alternatives to this 
proposed rule that could affect the economic impacts of the proposed 
rule on small entities. These alternatives would have applied to both 
small and large entities,

[[Page 25062]]

but given the number of small entities in the affected industries, 
these alternatives would primarily affect small entities. For the 
reasons described in this unit, EPA believes these alternatives are not 
consistent with the objectives of the rule.
    i. Higher thresholds. EPA considered an option under which the size 
thresholds for determining whether renovation jobs would need to 
perform dust wipe testing or achieve clearance would be higher than 
those in the proposed rule. By reducing the number of renovations where 
dust wipe testing or clearance are required, this option would reduce 
the costs of the rule and thus the estimated small entity impacts. 
However, higher thresholds would result in more jobs where occupants do 
not have information on the dust lead levels they are exposed to, or 
where they are exposed to dust lead levels above the hazard standard. 
EPA believes that the proposed rule provides the best balance between 
the benefits of the rule (the value of information from dust wipe 
testing and the benefits of reduced exposure to lead dust from 
achieving clearance) compared to the costs (and resulting small 
business impacts) of dust wipe testing, re-cleaning, and the other 
requirements of the proposed rule. Therefore, EPA believes that an 
option with higher thresholds is not consistent with the stated 
objectives of the proposed rule.
    ii. Dust testing only. EPA considered an option that would require 
dust wipe testing but not clearance for any of these renovation events. 
EPA remains concerned that renovations that disturb paint using 
machines designed to remove lead-based paint through high speed 
operation (such as power sanders or abrasive blasting) can create large 
amounts of difficult-to-clean dust, creating the possibility that dust 
lead levels may substantially exceed the clearance standards even after 
cleaning verification. The same is true for the demolition or removal 
through destructive means of plaster and lath walls, ceilings or other 
building components with lead-based paint. Therefore, EPA believes that 
this option is not consistent with the stated objectives of the 
proposed rule.
    As required by section 212 of Small Business Regulatory Enforcement 
Fairness Act (SBREFA), Public Law 104-121, EPA issued a Small Entity 
Compliance Guide (the Guide) in December 2008 to help small entities 
comply with the RRP rule. The Guide is available at: http://www.epa.gov/lead/pubs/sbcomplianceguide.pdf or from the National Lead 
Information Center by calling 1(800) 424-LEAD [5323]. EPA will revise 
the Guide, as necessary, to reflect this rulemaking activity.
    EPA invites comments on all aspects of the proposal and its impact 
on small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and tribal governments and the private sector. This rule 
contains a Federal mandate that may result in expenditures of $100 
million or more by the private sector in any 1 year, but it will not 
result in such expenditures by State, local, and Tribal governments in 
the aggregate. Accordingly, EPA has prepared under section 202 of the 
UMRA a written statement (Ref. 32) which is summarized below. 
Consistent with section 205 of the UMRA, EPA has identified and 
considered a reasonable number of regulatory alternatives, also 
summarized below.
    1. Authorizing legislation. This proposed rule is issued under the 
authority of TSCA sections 402(c)(3), 404, and 407 (15 U.S.C. 
2682(c)(3), 2684, and 2687).
    2. Cost-benefit analysis. EPA has prepared an analysis of the costs 
and benefits associated with this proposed rule, a copy of which is 
available in the docket for this proposed rule (Ref. 28). The Economic 
Analysis presents the costs of this proposed rule as well as various 
regulatory options and is summarized in Unit V.A. EPA has estimated the 
total annualized costs of this proposed rule are $272 million per year 
using a 3% discount rate and $293 million per year using a 7% discount 
rate.
    The benefits of the proposed rule result from the prevention of 
adverse health effects attributable to lead exposure from renovations 
in pre-1978 buildings. These health effects include impaired cognitive 
function in children and several illnesses in children and adults, such 
as increased adverse cardiovascular outcomes (including increased blood 
pressure, increased incidence of hypertension, cardiovascular morbidity 
and mortality) and decreased kidney function.
    3. State, local, and Tribal government input. EPA has sought input 
from State, local and Tribal government representatives throughout the 
development of the renovation, repair, and painting program. EPA's 
experience in administering the existing lead-based paint activities 
program under TSCA section 402(a) suggests that these governments will 
play a critical role in the successful implementation of a national 
program to reduce exposures to lead-based paint hazards associated with 
renovation, repair, and painting activities. Consequently, as discussed 
in Unit III.C.2. of the preamble to the 2006 proposed rule (Ref. 13), 
the Agency has met with State, local, and Tribal government officials 
on numerous occasions to discuss renovation issues.
    4. Least burdensome option. EPA has considered a wide variety of 
options for addressing the risks presented by renovation activities 
where lead-based paint is present. As part of the development of the 
renovation, repair, and painting program, EPA considered different 
options for the scope of the proposed rule, various combinations of 
training and certification requirements for individuals who perform 
renovations, various combinations of work practice requirements, and 
various methods for ensuring that no lead-based paint hazards are left 
behind by persons performing renovations. The Economic Analysis for 
this proposed rule analyzed several additional options for the scope of 
the work practices required, in terms of the size threshold and whether 
dust wipe testing or clearance is required. As described in Unit V.C., 
EPA has preliminarily concluded that the options for reducing the scope 
would result in an unacceptable number of jobs where occupants do not 
have information on the dust lead levels they are exposed to, or where 
they are exposed to dust lead levels above the hazard standard.
    Currently, EPA believes that the preferred option is the least 
burdensome option available that achieves a central objective of this 
proposed rule, which is to provide greater assurance that dust-lead 
hazards created by renovations are adequately cleaned up, primarily by 
requiring renovation firms to provide building owners and occupants 
with information on dust lead levels remaining in the work area after 
many renovation projects, but also by requiring renovation firms to 
demonstrate that they have achieved regulatory clearance levels after 
some of the dustiest renovations.
    This rule is not subject to the requirements of section 203 of UMRA 
because it contains no regulatory requirements that might significantly 
or uniquely affect small governments. Based on the definition of 
``small government jurisdiction'' in RFA section 601, 5 U.S.C. 601, no 
State governments can be considered small. Small Territorial or Tribal 
governments may apply for authorization to administer and enforce this 
program, which would

[[Page 25063]]

entail costs, but these small jurisdictions are under no obligation to 
do so. Small governments operate schools that are child-occupied 
facilities. If these governments perform renovations in these 
facilities, they may incur additional costs to perform dust wipe 
testing or achieve clearance, and to provide residents, parents or 
guardians with copies of the report documenting the dust wipe testing 
results. EPA generally measures a significant impact under UMRA as 
being expenditures, in the aggregate, of more than 1% of small 
government revenues in any 1 year. As explained in Unit V.C.4., the 
proposed rule is expected to result in small government impacts well 
under 1% of revenues. So EPA has determined that the rule does not 
significantly affect small governments. Nor does the rule uniquely 
affect small governments, as the proposed rule is not targeted at small 
governments, does not primarily affect small governments, and does not 
impose a different burden on small governments than on other entities 
that operate child-occupied facilities.

E. Executive Order 13132

    Pursuant to Executive Order 13132, entitled ``Federalism'' (64 FR 
43255, August 10, 1999), EPA has determined that this proposed rule 
does not have ``federalism implications,'' because it will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Thus, Executive Order 13132 does 
not apply to this proposed rule. States are able to apply for, and 
receive authorization to administer the lead renovation, repair, and 
painting program requirements, but are under no obligation to do so. In 
the absence of a State authorization, EPA will administer the 
requirements. Nevertheless, in the spirit of the objectives of this 
Executive Order, and consistent with EPA policy to promote 
communications between the Agency and State and local governments, EPA 
consulted with representatives of State and local governments in 
developing the renovation, repair, and painting program. These 
consultations were described in the preamble to the 2006 Proposal (Ref. 
13).

F. Executive Order 13175

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). EPA has 
determined that this proposed rule does not have Tribal implications 
because it will not have substantial direct effects on Tribal 
governments, on the relationship between the Federal government and the 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in the 
Order. Tribes are able to apply for and receive authorization to 
administer the lead renovation, repair, and painting program on Tribal 
lands, but Tribes are under no obligation to do so. In the absence of a 
Tribal authorization, EPA will administer these requirements. While 
Tribes may operate public housing or child-occupied facilities covered 
by the rule such as kindergartens, pre-kindergartens, and daycare 
facilities, EPA has determined that this rule would not have 
substantial direct effects on the Tribal governments that operate these 
facilities.
    Thus, Executive Order 13175 does not apply to this proposed rule. 
Although Executive Order 13175 does not apply, EPA consulted with 
Tribal officials and others by discussing potential renovation 
regulatory options for the renovation, repair, and painting program at 
several national lead program meetings hosted by EPA and other 
interested Federal agencies. EPA specifically solicits additional 
comment on this proposed action from tribal officials.

G. Executive Order 13045

    This action is subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is an ``economically 
significant regulatory action'' as defined by Executive Order 12866, 
and because the environmental health or safety risk addressed by this 
action may have a disproportionate effect on children.
    A central purpose of this proposed rule is to provide greater 
assurance that dust-lead hazards created by renovations are adequately 
cleaned up, primarily by requiring renovation firms to provide building 
owners and occupants with information on dust lead levels remaining in 
the work area after many renovation projects, but also by requiring 
renovation firms to demonstrate that they have achieved regulatory 
clearance levels after some of the dustiest renovations. In the absence 
of this regulation, owners and occupants would not have information on 
the dust lead levels remaining following these renovation events, and 
dust lead levels may substantially exceed the clearance standards for 
certain renovations that can create large amounts of difficult-to-clean 
dust.
    The proposed rule will protect children who reside in housing units 
or attend child-occupied facilities where such renovations occur; who 
visit a friend, relative, or caregiver's house where such renovations 
are performed; or who move into such housing when their family 
purchases it after such a renovation has been performed.

H. Executive Order 13211

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, entitled ``Actions concerning 
Regulations that Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001) because it is not likely to have any 
adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note), 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking involves technical standards. EPA proposes 
to use the government-unique technical standards described in Unit III 
of this preamble. EPA has identified several potentially-applicable 
voluntary consensus standards developed by ASTM International (formerly 
the American Society for Testing and Materials) that address dust wipe 
sampling, recordkeeping, and clearance procedures. These standards are: 
``Standard Practice for Collection of Settled Dust Samples Using Wipe 
Sampling Methods for Subsequent Lead Determination,'' ``Standard 
Specification for Wipe Sampling Materials for Lead in Surface Dust,'' 
``Standard Practice for Record Keeping and Record Preservation for Lead 
Hazard Activities,'' and ``Standard Practice for Clearance Examinations 
Following Lead Hazard Reduction Activities in Single-Family Dwellings 
and Child-Occupied Facilities'' (Refs. 33, 34, 35, 20). Each of

[[Page 25064]]

these ASTM documents represents state-of-the-art knowledge regarding 
the performance of these particular aspects of lead-based paint hazard 
evaluation and control practices and EPA recommends the use of these 
documents where appropriate. EPA believes that the proposed amendments 
to the RRP rule as well as EPA's model training courses for lead-based 
paint inspectors, risk assessors, and dust sampling technicians are 
consistent with these ASTM standards. However, because each of these 
documents is extremely detailed and encompasses many circumstances 
beyond the scope of this rulemaking, EPA determined that it would be 
impractical to incorporate these voluntary consensus standards into the 
rule.
    In addition, EPA has identified a potentially-applicable voluntary 
consensus standard developed by ASTM International for evaluating the 
performance of HEPA filtration systems, the ``Standard Test Method for 
Air Cleaning Performance of a High-Efficiency Particulate Air-Filter 
System'' (Ref. 27). EPA does recommend that renovation firms in the 
market for a HEPA vacuum verify that the filter has been tested in 
accordance with the ASTM standard or an equivalent test method. 
However, EPA has determined that it would be impractical to incorporate 
this test method into the rule.
    EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.
Executive Order 12898
    Executive Order 12898, entitled ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629, February 16, 1994) establishes federal 
executive policy on environmental justice. Its main provision directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. EPA has assessed the potential impact of this 
proposed rule on minority and low-income populations. The results of 
this assessment are presented in the Economic Analysis, which is 
available in the docket for this proposed rule (Ref. 28).

List of Subjects in 40 CFR Part 745

    Environmental protection, Child-occupied facility, Housing 
renovation, Lead, Lead-based paint, Renovation, Reporting and 
recordkeeping requirements.

    Dated: April 22, 2010.
Lisa P. Jackson,
Administrator.

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

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

    Authority:  15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
    2. In Sec.  745.82, add a new paragraph (a)(3) to read as follows.

Sec.  745.82  Applicability.

    (a) * * *
    (3) Renovations in target housing or child-occupied facilities in 
which a certified renovator has collected a paint chip sample from each 
painted component affected by the renovation and a laboratory 
recognized by EPA pursuant to section 405(b) of TSCA as being capable 
of performing analyses for lead compounds in paint chip samples has 
determined that the samples are free of paint or other surface coatings 
that contain lead equal to or in excess of 1.0 mg/cm\2\ or 0.5% by 
weight. If the components make up an integrated whole, such as the 
individual stair treads and risers of a single staircase, the renovator 
is required to test only one of the individual components, unless the 
individual components appear to have been repainted or refinished 
separately.
* * * * *
    3. In Sec.  745.83, add the definition ``Containment'' in 
alphabetical order to read as follows:

Sec.  745.83  Definitions.

* * * * *
    Containment means a set of measures designed to protect residents 
and the environment from leaded dust, paint chips, or other forms of 
lead contamination created by renovations through the erection of 
barriers and warning signs and the establishment of access control, 
modifications to heating, ventilation, and air conditioning systems, 
and other strategies. Vertical containment, required for some exterior 
renovations, is a vertical barrier consisting of plastic sheeting over 
scaffolding or a wood or metal frame, or an equivalent system.
* * * * *
    4. Section 745.85 is amended as follows:
    a. Revise paragraph (a)(2)(ii)(D);
    b. Revise paragraph (a)(3);
    c. Remove paragraph (c);
    d. Redesignate paragraphs (b) and (d) as paragraphs (c) and (e) 
respectively;
    e. Add new paragraphs (b) and (d);
    f. Revise newly-redesignated paragraph (e);
    The revisions and additions read as follows:

Sec.  745.85  Work practice standards.

    (a) * * *
    (2) * * *
    (ii) * * *
    (D) If the renovation will affect surfaces within 10 feet of the 
property line, the renovation firm must erect vertical containment to 
ensure that dust and debris from the renovation does not contaminate 
adjacent buildings or migrate to adjacent properties. Vertical 
containment may also be necessary in other situations, such as in windy 
conditions, in order to prevent contamination of other buildings, other 
areas of the property, or adjacent buildings or properties.
    (3) Prohibited and restricted practices. The work practices listed 
below are prohibited or restricted during a renovation as follows:
    (i) Open-flame burning or torching of painted surfaces is 
prohibited.
    (ii) The use of machines designed to remove paint through high 
speed operation such as sanding, grinding, power planing, needle gun, 
abrasive blasting, or sandblasting, is prohibited on painted surfaces 
unless such machines are shrouded and equipped with a HEPA vacuum 
attachment to collect dust and debris at the point of generation.
    (iii) Operating a heat gun on painted surfaces is permitted only at 
temperatures below 1,100 degrees Fahrenheit.
* * * * *
    (b) Clearance--(1) Mandatory clearance. Clearance is required after 
renovations involving the demolition, or removal through destructive 
means, of more than 6 ft\2\ of plaster and lath building component, or 
the disturbance

[[Page 25065]]

of paint using machines designed to remove paint through high-speed 
operation, such as sanding, grinding, power planning, needle gun, 
abrasive blasting or sandblasting. When clearance is required, the 
following clearance procedures must be performed:
    (i) A certified inspector, certified risk assessor, or certified 
dust sampling technician must perform a visual inspection to determine 
whether dust, debris or residue is still present in the renovation work 
area. If dust, debris or residue is present, these conditions must be 
removed by re-cleaning and another visual inspection must be performed.
    (ii) A certified inspector, certified risk assessor, or certified 
dust sampling technician must collect dust wipe samples in accordance 
with EPA's ``Residential Sampling for Lead: Protocols for Dust and Soil 
Sampling, EPA-747-R-95-001'' or an equivalent protocol that 
incorporates adequate quality control procedures. Samples must be 
collected in the following locations:
    (A) If there is more than one room, hallway, or stairwell within 
the work area, the following samples must be collected:
    (1) One windowsill sample, one window trough sample, and one floor 
sample within each room, hallway, or stairwell in the work area. If 
there are more than four rooms, hallways, or stairwells within the work 
area, only four rooms, hallways, or stairwells must be sampled.
    (2) One floor sample adjacent to the work area, but not in an area 
that has been cleaned.
    (B) If the work area is a single room, hallway, stairwell, or 
smaller area, the following samples must be collected:
    (1) One windowsill sample, one window trough sample, and one floor 
sample.
    (2) One floor sample adjacent to the work area, but not in an area 
that has been cleaned.
    (C) No window sill or trough samples must be collected if there are 
no windows in the work area.
    (iii) Dust wipe samples must be analyzed by a laboratory or other 
entity recognized by EPA pursuant to section 405(b) of the Toxic 
Substances Control Act as being capable of performing analyses for lead 
compounds in dust samples. If a fixed-site laboratory is to be used, 
the dust wipe samples must be mailed or otherwise transmitted to the 
laboratory within 1 business day of the date that they are collected.
    (iv) A certified inspector, certified risk assessor, or certified 
dust sampling technician must compare the residual lead level reported 
by the EPA-recognized laboratory for each dust sample or test with the 
applicable clearance level. If the residual lead level in a particular 
dust sample or test equals or exceeds the applicable clearance level, 
the components represented by the failed sample or test shall be re-
cleaned and re-tested. The applicable clearance levels are:
    (A) 40 [mu]g/ft\2\ for floors.
    (B) 250 [mu]g/ft\2\ for interior window sills.
    (C) 400 [mu]g/ft\2\ for window troughs.
    (v) For surfaces in poor condition that the renovation firm did not 
specifically agree to refinish in the renovation contract, the 
renovation firm may stop re-cleaning and re-testing after the second 
failed dust wipe test on that surface.
    (vi) The certified inspector, certified risk assessor, or certified 
dust sampling technician performing the clearance procedures must 
prepare a clearance report and provide it to the renovation firm within 
3 days of the date that the final dust wipe testing results are 
obtained. The report must be a single document, with attachments, and 
must include the following information:
    (A) Start and completion dates of the renovation.
    (B) A brief written description of the renovation.
    (C) The name and address of the certified firm employing the 
certified inspector, certified risk assessor, or certified dust 
sampling technician performing the clearance procedures.
    (D) The name and signature of each certified inspector, certified 
risk assessor, or certified dust sampling technician performing 
clearance procedures and the date(s) that clearance procedures were 
performed.
    (E) The results of the visual inspection.
    (F) A detailed written description of the specific sampling or 
testing locations or a detailed drawing that clearly identifies the 
location of each sample or test.
    (G) The results for each dust wipe sample or test, whether or not 
clearance was achieved, and the name of each recognized laboratory or 
other entity that conducted the analyses.
    (2) Optional clearance. Renovation firms that choose to comply with 
all of the requirements of this paragraph (745.85(b)) need not comply 
with the requirements of paragraph (d) of this section.
* * * * *
    (d) Dust wipe testing. (1) Dust wipe testing must be performed 
after all renovations involving:
    (i) Use of a heat gun at temperatures below 1,100 degrees 
Fahrenheit.
    (ii) Removal or replacement of window or door frames.
    (iii) Scraping 60 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 (c) of this section, a certified inspector, certified 
risk assessor, or certified dust sampling technician must collect dust 
wipe samples in accordance with EPA's ``Residential Sampling for Lead: 
Protocols for Dust and Soil Sampling, EPA-747-R-95-001'' or an 
equivalent protocol that incorporates adequate quality control 
procedures. Samples must be collected in the following locations:
    (i) If there is more than one room, hallway, or stairwell within 
the work area, the following samples must be collected:
    (A) One windowsill sample, one window trough sample, and one floor 
sample within each room, hallway, or stairwell in the work area. If 
there are more than four rooms, hallways, or stairwells within the work 
area, only four rooms, hallways, or stairwells must be sampled.
    (B) One floor sample adjacent to the work area, but not in an area 
that has been cleaned.
    (ii) If the work area is a single room, hallway, stairwell, or 
smaller area, the following samples must be collected:
    (A) One windowsill sample, one window trough sample, and one floor 
sample.
    (B) One floor sample adjacent to the work area, but not in an area 
that has been cleaned.
    (iii) No window sill or trough samples must be collected if there 
are no windows in the work area.
    (3) Dust wipe samples must be analyzed by a laboratory or other 
entity recognized by EPA pursuant to section 405(b) of the Toxic 
Substances Control Act as being capable of performing analyses for lead 
compounds in dust samples. If a fixed-site laboratory is to be used, 
the dust wipe samples must be mailed or otherwise transmitted to the 
laboratory within 1 business day of the date that they are collected.
    (4) The certified inspector, certified risk assessor, or certified 
dust sampling technician performing the dust wipe testing must prepare 
a dust wipe testing report and provide it to the renovation firm within 
3 days of the date that the dust wipe testing results are obtained. The 
report must be a single document,

[[Page 25066]]

with attachments, and must include the following information:
    (i) Start and completion dates of the renovation.
    (ii) A brief written description of the renovation.
    (iii) The name and address of the certified firm employing the 
certified inspector, certified risk assessor, or certified dust 
sampling technician performing the dust wipe testing.
    (iv) The name and signature of each certified inspector, certified 
risk assessor, or certified dust sampling technician performing 
sampling or testing and the date(s) that samples were collected or 
testing performed.
    (v) The results of the visual inspection.
    (vi) A detailed written description of the specific sampling or 
testing locations or a detailed drawing that clearly identifies the 
location of each sample or test.
    (vii) The results for each dust wipe test, a statement of whether 
or not all samples analyzed were below the applicable clearance 
standards, and the name of each recognized laboratory or other entity 
that conducted the analyses.
    (viii) The clearance standard from paragraph (b)(1)(iv) of this 
section that is applicable to each dust wipe test and, if one or more 
final dust wipe tests equals or exceeds the applicable clearance 
standards, a statement that any dust lead levels that equal or exceed 
the clearance standards will demonstrate that a lead-based paint hazard 
is present after the work is completed..
    (e) Activities conducted after 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 regulated by this subpart if they are conducted after post-
renovation clearance, dust wipe testing, or cleaning verification has 
been performed.
    5. In Sec.  745.86, revise paragraph (d) to read as follows:

Sec.  745.86  Recordkeeping and reporting requirements.

* * * * *
    (d) If clearance or dust wipe testing is performed in accordance 
with Sec.  745.85, the renovation firm must provide, within 3 days of 
the date the renovation firm receives the report, a copy of the 
clearance or dust wipe testing report to:
    (1) The owner of the building; and, if different,
    (2) An adult occupant of the residential dwelling, if the 
renovation took place within a residential dwelling, or an adult 
representative of the child-occupied facility, if the renovation took 
place within a child-occupied facility.
    6. Section 745.90 is amended as follows:
    a. By revising paragraphs (a)(2) and (a)(3).
    b. By revising paragraphs (b)(2), (b)(4), and (b)(8).

Sec.  745.90  Renovator certification and dust sampling technician 
certification.

    (a) * * *
    (2) Individuals who have successfully completed an accredited 
abatement worker or supervisor course, or individuals who successfully 
completed an EPA, HUD, or EPA/HUD model renovation training course may 
take an accredited refresher renovator training course before April 22, 
2011 in lieu of the initial renovator training course to become a 
certified renovator.
    (3) Individuals who have successfully completed an accredited lead-
based paint inspector or risk assessor course may take an accredited 
refresher dust sampling technician course before April 22, 2011 in lieu 
of the initial training to become a certified dust sampling technician. 
Individuals who are currently certified as lead-based paint inspectors 
or risk assessors may act as dust sampling technicians without further 
training.
* * * * *
    (b) * * *
    (2) Must provide training to workers on the work practices required 
by Sec.  745.85(a) that they will be using in performing their assigned 
tasks.
* * * * *
    (4) Must regularly direct work being performed by other individuals 
to ensure that the work practices required by Sec.  745.85(a) are being 
followed, including maintaining the integrity of the containment 
barriers and ensuring that dust or debris does not spread beyond the 
work area.
* * * * *
    (8) Must prepare the records required by Sec.  745.86(b)(1) and 
(6).
* * * * *
    7. In Sec.  745.92, add paragraph (b)(3) to read as follows:

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

* * * * *
    (b) * * *
    (3) Accreditation or certification amendments. No fee will be 
charged for accreditation or certification amendments.
* * * * *
    8. Revise Sec.  745.225 to read as follows:

Sec.  745.225  Accreditation of training programs: target housing and 
child-occupied facilities.

    (a) Scope. (1) A training program may seek accreditation to offer 
courses in any of the following disciplines: Inspector, risk assessor, 
supervisor, project designer, abatement worker, renovator, and dust 
sampling technician. A training program may also seek accreditation to 
offer refresher courses for each of the above listed disciplines.
    (2) Training programs may first apply to EPA for accreditation of 
their lead-based paint activities courses or refresher courses pursuant 
to this section on or after August 31, 1998. Training programs may 
first apply to EPA for accreditation of their renovator or dust 
sampling technician courses or refresher courses pursuant to this 
section on or after April 22, 2009.
    (3) A training program must not provide, offer, or claim to provide 
EPA-accredited lead-based paint activities courses without applying for 
and receiving accreditation from EPA as required under paragraph (b) of 
this section on or after March 1, 1999. A training program must not 
provide, offer, or claim to provide EPA-accredited renovator or dust 
sampling technician courses without applying for and receiving 
accreditation from EPA as required under paragraph (b) of this section 
on or after June 23, 2008.
    (b) Application process. The following are procedures a training 
program must follow to receive EPA accreditation to offer lead-based 
paint activities courses, renovator courses, or dust sampling 
technician courses:
    (1) A training program seeking accreditation shall submit a written 
application to EPA containing the following information:
    (i) The training program's name, address, and telephone number.
    (ii) A list of courses for which it is applying for accreditation. 
For the purposes of this section, courses taught in different languages 
and electronic learning courses are considered different courses, and 
each must independently meet the accreditation requirements.
    (iii) The name and documentation of the qualifications of the 
training program manager.
    (iv) The name(s) and documentation of qualifications of any 
principal instructor(s).
    (v) A statement signed by the training program manager certifying 
that the training program meets the requirements established in 
paragraph (c) of this section. If a training program uses EPA-
recommended model training

[[Page 25067]]

materials, or training materials approved by a State or Indian Tribe 
that has been authorized by EPA under subpart Q of this part, the 
training program manager shall include a statement certifying that, as 
well.
    (vi) If a training program does not use EPA-recommended model 
training materials, its application for accreditation shall also 
include:
    (A) A copy of the student and instructor manuals, or other 
materials to be used for each course.
    (B) A copy of the course agenda for each course.
    (C) When applying for accreditation of a course in a language other 
than English, a signed statement from a qualified, independent 
translator that they had compared the course to the English language 
version and found the translation to be accurate.
    (vii) All training programs shall include in their application for 
accreditation the following:
    (A) A description of the facilities and equipment to be used for 
lecture and hands-on training.
    (B) A copy of the course test blueprint for each course.
    (C) A description of the activities and procedures that will be 
used for conducting the assessment of hands-on skills for each course.
    (D) A copy of the quality control plan as described in paragraph 
(c)(9) of this section.
    (2) If a training program meets the requirements in paragraph (c) 
of this section, then EPA shall approve the application for 
accreditation no more than 180 days after receiving a complete 
application from the training program. In the case of approval, a 
certificate of accreditation shall be sent to the applicant. In the 
case of disapproval, a letter describing the reasons for disapproval 
shall be sent to the applicant. Prior to disapproval, EPA may, at its 
discretion, work with the applicant to address inadequacies in the 
application for accreditation. EPA may also request additional 
materials retained by the training program under paragraph (i) of this 
section. If a training program's application is disapproved, the 
program may reapply for accreditation at any time.
    (3) A training program may apply for accreditation to offer courses 
or refresher courses in as many disciplines as it chooses. A training 
program may seek accreditation for additional courses at any time as 
long as the program can demonstrate that it meets the requirements of 
this section.
    (4) A training program applying for accreditation must submit the 
appropriate fees in accordance with Sec.  745.238.
    (c) Requirements for the accreditation of training programs. For a 
training program to obtain accreditation from EPA to offer lead-based 
paint activities courses, renovator courses, or dust sampling 
technician courses, the program must meet the following requirements:
    (1) The training program shall employ a training manager who has:
    (i) At least 2 years of experience, education, or training in 
teaching workers or adults; or
    (ii) A bachelor's or graduate degree in building construction 
technology, engineering, industrial hygiene, safety, public health, 
education, business administration or program management or a related 
field; or
    (iii) Two years of experience in managing a training program 
specializing in environmental hazards; and
    (iv) Demonstrated experience, education, or training in the 
construction industry including: Lead or asbestos abatement, painting, 
carpentry, renovation, remodeling, occupational safety and health, or 
industrial hygiene.
    (2) The training manager shall designate a qualified principal 
instructor for each course who has:
    (i) Demonstrated experience, education, or training in teaching 
workers or adults; and
    (ii) Successfully completed at least 16 hours of any EPA-accredited 
or EPA-authorized State or Tribal-accredited lead-specific training; 
and
    (iii) Demonstrated experience, education, or training in lead or 
asbestos abatement, painting, carpentry, renovation, remodeling, 
occupational safety and health, or industrial hygiene.
    (3) The principal instructor shall be responsible for the 
organization of the course, course delivery, and oversight of the 
teaching of all course material. The training manager may designate 
guest instructors as needed for a portion of the course to provide 
instruction specific to the lecture, hands-on activities, or work 
practice components of a course. However, the principal instructor is 
primarily responsible for teaching the course materials and must be 
present to provide instruction (or oversight of portions of the course 
taught by guest instructors) for the course for which he has been 
designated the principal instructor.
    (4) The following documents shall be recognized by EPA as evidence 
that training managers and principal instructors have the education, 
work experience, training requirements or demonstrated experience, 
specifically listed in paragraphs (c)(1) and (c)(2) of this section. 
This documentation must be submitted with the accreditation application 
and retained by the training program as required by the recordkeeping 
requirements contained in paragraph (i) of this section. Those 
documents include the following:
    (i) Official academic transcripts or diploma as evidence of meeting 
the education requirements.
    (ii) Re[acute]sume[acute]s, letters of reference, or documentation 
of work experience, as evidence of meeting the work experience 
requirements.
    (iii) Certificates from train-the-trainer courses and lead-specific 
training courses, as evidence of meeting the training requirements.
    (5) The training program shall ensure the availability of, and 
provide adequate facilities for, the delivery of the lecture, course 
test, hands-on training, and assessment activities. This includes 
providing training equipment that reflects current work practices and 
maintaining or updating the equipment and facilities as needed.
    (6) To become accredited in the following disciplines, the training 
program shall provide training courses that meet the following training 
requirements:
    (i) The inspector course shall last a minimum of 24 training hours, 
with a minimum of 8 hours devoted to hands-on training activities. The 
minimum curriculum requirements for the inspector course are contained 
in paragraph (d)(1) of this section.
    (ii) The risk assessor course shall last a minimum of 16 training 
hours, with a minimum of 4 hours devoted to hands-on training 
activities. The minimum curriculum requirements for the risk assessor 
course are contained in paragraph (d)(2) of this section.
    (iii) The supervisor course shall last a minimum of 32 training 
hours, with a minimum of 8 hours devoted to hands-on activities. The 
minimum curriculum requirements for the supervisor course are contained 
in paragraph (d)(3) of this section.
    (iv) The project designer course shall last a minimum of 8 training 
hours. The minimum curriculum requirements for the project designer 
course are contained in paragraph (d)(4) of this section.
    (v) The abatement worker course shall last a minimum of 16 training 
hours, with a minimum of 8 hours devoted to hands-on training 
activities. The minimum curriculum requirements for the abatement 
worker course are contained in paragraph (d)(5) of this section.

[[Page 25068]]

    (vi) The renovator course must last a minimum of 8 training hours, 
with a minimum of 2 hours devoted to hands-on training activities. The 
minimum curriculum requirements for the renovator course are contained 
in paragraph (d)(6) of this section.
    (vii) The dust sampling technician course must last a minimum of 8 
training hours, with a minimum of 2 hours devoted to hands-on training 
activities. The minimum curriculum requirements for the dust sampling 
technician course are contained in paragraph (d)(7) of this section.
    (viii) Electronic learning and other alternative course delivery 
methods are permitted for the classroom portion of renovator, dust 
sampling technician, or lead-based paint activities courses but not the 
hands-on portion of these courses. Electronic learning courses must 
comply with the following requirements:
    (A) A unique identifier must be assigned to each student for them 
to use to launch and re-launch the course.
    (B) The training provider must track each student's course log-ins, 
launches, progress, and completion, and maintain these records in 
accordance with paragraph (i) of this section.
    (C) The course must include knowledge checks for each module, which 
must be successfully completed before the student can go on to the next 
module.
    (D) There must be a test of at least 20 questions at the end of the 
electronic learning portion of the course, of which 80% must be 
answered correctly by the student for successful completion of the 
electronic learning portion of the course.
    (E) Each student must be able to save or print an uneditable copy 
of an electronic learning course completion certificate.
    (7) For each course offered, the training program shall conduct 
either a course test at the completion of the course, and if 
applicable, a hands-on skills assessment, or in the alternative, a 
proficiency test for that discipline. Each individual must successfully 
complete the hands-on skills assessment and receive a passing score on 
the course test to pass any course, or successfully complete a 
proficiency test.
    (i) The training manager is responsible for maintaining the 
validity and integrity of the hands-on skills assessment or proficiency 
test to ensure that it accurately evaluates the trainees' performance 
of the work practices and procedures associated with the course topics 
contained in paragraph (d) of this section.
    (ii) The training manager is responsible for maintaining the 
validity and integrity of the course test to ensure that it accurately 
evaluates the trainees' knowledge and retention of the course topics.
    (iii) The course test shall be developed in accordance with the 
test blueprint submitted with the training accreditation application.
    (8) The training program shall issue unique course completion 
certificates to each individual who passes the training course. The 
course completion certificate shall include:
    (i) The name, a unique identification number, and address of the 
individual.
    (ii) The name of the particular course that the individual 
completed.
    (iii) Dates of course completion/test passage.
    (iv) For initial inspector, risk assessor, project designer, 
supervisor, or abatement worker course completion certificates, the 
expiration date of interim certification, which is 6 months from the 
date of course completion.
    (v) The name, address, and telephone number of the training 
program.
    (vi) The language in which the course was taught.
    (vii) For renovator and dust sampling technician course completion 
certificates, a photograph of the individual. The photograph must be an 
accurate and recognizable image of the individual. As reproduced on the 
certificate, the photograph must not be smaller than 1 square inch.
    (9) The training manager shall develop and implement a quality 
control plan. The plan shall be used to maintain and improve the 
quality of the training program over time. This plan shall contain at 
least the following elements:
    (i) Procedures for periodic revision of training materials and the 
course test to reflect innovations in the field.
    (ii) Procedures for the training manager's annual review of 
principal instructor competency.
    (10) Courses offered by the training program must teach the work 
practice standards contained in Sec.  745.85 or Sec.  745.227, as 
applicable, in such a manner that trainees are provided with the 
knowledge needed to perform the renovations or lead-based paint 
activities they will be responsible for conducting.
    (11) The training manager shall be responsible for ensuring that 
the training program complies at all times with all of the requirements 
in this section.
    (12) The training manager shall allow EPA to audit the training 
program to verify the contents of the application for accreditation as 
described in paragraph (b) of this section.
    (13) The training manager must provide notification of renovator, 
dust sampling technician, or lead-based paint activities courses 
offered.
    (i) The training manager must provide EPA with notification of all 
renovator, dust sampling technician, or lead-based paint activities 
courses offered. The original notification must be received by EPA at 
least 7 business days prior to the start date of any renovator, dust 
sampling technician, or lead-based paint activities course.
    (ii) The training manager must provide EPA updated notification 
when renovator, dust sampling technician, or lead-based paint 
activities courses will begin on a date other than the start date 
specified in the original notification, as follows:
    (A) For renovator, dust sampling technician, or lead-based paint 
activities courses beginning prior to the start date provided to EPA, 
an updated notification must be received by EPA at least 7 business 
days before the new start date.
    (B) For renovator, dust sampling technician, or lead-based paint 
activities courses beginning after the start date provided to EPA, an 
updated notification must be received by EPA at least 2 business days 
before the start date provided to EPA.
    (iii) The training manager must update EPA of any change in 
location of renovator, dust sampling technician, or lead-based paint 
activities courses at least 7 business days prior to the start date 
provided to EPA.
    (iv) The training manager must update EPA regarding any course 
cancellations, or any other change to the original notification. 
Updated notifications must be received by EPA at least 2 business days 
prior to the start date provided to EPA.
    (v) Each notification, including updates, must include the 
following:
    (A) Notification type (original, update, cancellation).
    (B) Training program name, EPA accreditation number, address, and 
telephone number.
    (C) Course discipline, type (initial/refresher), and the language 
in which instruction will be given.
    (D) Date(s) and time(s) of training.
    (E) Training location(s) telephone number, and address.
    (F) Principal instructor's name.
    (G) Training manager's name and signature.
    (vi) Notification must be accomplished using any of the following 
methods: Written notification, or electronically using the Agency's

[[Page 25069]]

Central Data Exchange (CDX). Written notification of lead-based paint 
activities course schedules can be accomplished by using either the 
sample form titled ``Lead-Based Paint Training Notification'' or a 
similar form containing the information required in paragraph 
(c)(13)(v) of this section. All written notifications must be delivered 
by U.S. Postal Service, fax, commercial delivery service, or hand 
delivery (persons submitting notification by U.S. Postal Service are 
reminded that they should allow 3 additional business days for delivery 
in order to ensure that EPA receives the notification by the required 
date). Instructions and sample forms can be obtained from the NLIC at 
1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/lead.
    (vii) Renovator, dust sampling technician, or lead-based paint 
activities courses must not begin on a date, or at a location other 
than that specified in the original notification unless an updated 
notification identifying a new start date or location is submitted, in 
which case the course must begin on the new start date and/or location 
specified in the updated notification.
    (viii) No training program shall provide renovator, dust sampling 
technician, or lead-based paint activities courses without first 
notifying EPA of such activities in accordance with the requirements of 
this paragraph.
    (14) The training manager must provide notification following 
completion of renovator, dust sampling technician, or lead-based paint 
activities courses.
    (i) The training manager must provide EPA notification after the 
completion of any lead-based paint activities course. This notice must 
be received by EPA no later than 10 business days following course 
completion.
    (ii) The notification must include the following:
    (A) Training program name, EPA accreditation number, address, and 
telephone number.
    (B) Course discipline and type (initial/refresher).
    (C) Date(s) of training.
    (D) The following information for each student who took the course:
    (1) Name.
    (2) Address.
    (3) Date of birth.
    (4) Course completion certificate number.
    (5) Course test score.
    (6) For renovator or dust sampling technician courses, a digital 
photograph of the student.
    (E) Training manager's name and signature.
    (iii) Notification must be accomplished using any of the following 
methods: Written notification, or electronically using the Agency's 
Central Data Exchange (CDX). Written notification following renovator, 
dust sampling technician, or lead-based paint activities training 
courses can be accomplished by using either the sample form titled 
``Lead-Based Paint Training Course Follow-up'' or a similar form 
containing the information required in paragraph (c)(14)(ii) of this 
section. All written notifications must be delivered by U.S. Postal 
Service, fax, commercial delivery service, or hand delivery (persons 
submitting notification by U.S. Postal Service are reminded that they 
should allow 3 additional business days for delivery in order to ensure 
that EPA receives the notification by the required date). Instructions 
and sample forms can be obtained from the NLIC at 1-800-424-LEAD(5323), 
or on the Internet at http://www.epa.gov/lead.
    (d) Minimum training curriculum requirements. To become accredited 
to offer lead-based paint courses in the specific disciplines listed 
below, training programs must ensure that their courses of study 
include, at a minimum, the following course topics.
    (1) Inspector. Instruction in the topics described in paragraphs 
(d)(1)(iv), (v), (vi), and (vii) of this section must be included in 
the hands-on portion of the course.
    (i) Role and responsibilities of an inspector.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local 
regulations and guidance that pertains to lead-based paint and lead- 
based paint activities.
    (iv) Lead-based paint inspection methods, including selection of 
rooms and components for sampling or testing.
    (v) Paint, dust, and soil sampling methodologies.
    (vi) Clearance standards and testing, including random sampling.
    (vii) Preparation of the final inspection report.
    (viii) Recordkeeping.
    (2) Risk assessor. Instruction in the topics described in 
paragraphs (d)(2)(iv), (vi), and (vii) of this section must be included 
in the hands-on portion of the course.
    (i) Role and responsibilities of a risk assessor.
    (ii) Collection of background information to perform a risk 
assessment.
    (iii) Sources of environmental lead contamination such as paint, 
surface dust and soil, water, air, packaging, and food.
    (iv) Visual inspection for the purposes of identifying potential 
sources of lead-based paint hazards.
    (v) Lead hazard screen protocol.
    (vi) Sampling for other sources of lead exposure.
    (vii) Interpretation of lead-based paint and other lead sampling 
results, including all applicable State or Federal guidance or 
regulations pertaining to lead-based paint hazards.
    (viii) Development of hazard control options, the role of interim 
controls, and operations and maintenance activities to reduce lead-
based paint hazards.
    (ix) Preparation of a final risk assessment report.
    (3) Supervisor. Instruction in the topics described in paragraphs 
(d)(3)(v), (vii), (viii), (ix), and (x) of this section must be 
included in the hands-on portion of the course.
    (i) Role and responsibilities of a supervisor.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local 
regulations and guidance that pertain to lead-based paint abatement.
    (iv) Liability and insurance issues relating to lead-based paint 
abatement.
    (v) Risk assessment and inspection report interpretation.
    (vi) Development and implementation of an occupant protection plan 
and abatement report.
    (vii) Lead-based paint hazard recognition and control.
    (viii) Lead-based paint abatement and lead-based paint hazard 
reduction methods, including restricted practices.
    (ix) Interior dust abatement/cleanup or lead-based paint hazard 
control and reduction methods.
    (x) Soil and exterior dust abatement or lead-based paint hazard 
control and reduction methods.
    (xi) Clearance standards and testing.
    (xii) Cleanup and waste disposal.
    (xiii) Recordkeeping.
    (4) Project designer. (i) Role and responsibilities of a project 
designer.
    (ii) Development and implementation of an occupant protection plan 
for large-scale abatement projects.
    (iii) Lead-based paint abatement and lead-based paint hazard 
reduction methods, including restricted practices for large-scale 
abatement projects.
    (iv) Interior dust abatement/cleanup or lead hazard control and 
reduction methods for large-scale abatement projects.
    (v) Clearance standards and testing for large scale abatement 
projects.
    (vi) Integration of lead-based paint abatement methods with 
modernization and rehabilitation projects for large scale abatement 
projects.

[[Page 25070]]

    (5) Abatement worker. Instruction in the topics described in 
paragraphs (d)(5)(iv), (v), (vi), and (vii) of this section must be 
included in the hands-on portion of the course.
    (i) Role and responsibilities of an abatement worker.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State and local 
regulations and guidance that pertain to lead-based paint abatement.
    (iv) Lead-based paint hazard recognition and control.
    (v) Lead-based paint abatement and lead-based paint hazard 
reduction methods, including restricted practices.
    (vi) Interior dust abatement methods/cleanup or lead-based paint 
hazard reduction.
    (vii) Soil and exterior dust abatement methods or lead-based paint 
hazard reduction.
    (6) Renovator. Instruction in the topics described in paragraphs 
(d)(6)(iv), (v), (vi), (vii), and (viii) of this section must be 
included in the hands-on portion of the course.
    (i) Role and responsibility of a renovator.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on EPA, HUD, OSHA, and other Federal, 
State, and local regulations and guidance that pertains to lead-based 
paint and renovation activities.
    (iv) Procedures for using acceptable test kits to determine whether 
paint is lead-based paint.
    (v) Procedures for collecting a paint chip sample and sending it to 
a laboratory recognized by EPA under section 405(b) of TSCA.
    (vi) Renovation methods to minimize the creation of dust and lead-
based paint hazards.
    (vii) Interior and exterior containment and cleanup methods.
    (viii) Methods to ensure that the renovation has been properly 
completed, including cleaning verification and clearance testing.
    (ix) Waste handling and disposal.
    (x) Providing on-the-job training to other workers.
    (xi) Record preparation.
    (7) Dust sampling technician. Instruction in the topics described 
in paragraphs (d)(6)(iv) and (vi) of this section must be included in 
the 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, State, and local 
regulations and guidance that pertains to lead-based paint and 
renovation activities.
    (iv) Dust sampling methodologies.
    (v) Clearance standards and testing.
    (vi) Report preparation.
    (e) Requirements for the accreditation of refresher training 
programs. A training program may seek accreditation to offer refresher 
training courses in any of the following disciplines: Inspector, risk 
assessor, supervisor, project designer, abatement worker, renovator, 
and dust sampling technician. To obtain EPA accreditation to offer 
refresher training, a training program must meet the following minimum 
requirements:
    (1) Each refresher course shall review the curriculum topics of the 
full-length courses listed under paragraph (d) of this section, as 
appropriate. In addition, to become accredited to offer refresher 
training courses, training programs shall ensure that their courses of 
study include, at a minimum, the following:
    (i) An overview of current safety practices relating to lead-based 
paint in general, as well as specific information pertaining to the 
appropriate discipline.
    (ii) Current laws and regulations relating to lead-based paint in 
general, as well as specific information pertaining to the appropriate 
discipline.
    (iii) Current technologies relating to lead-based paint in general, 
as well as specific information pertaining to the appropriate 
discipline.
    (2) Refresher courses for inspector, risk assessor, supervisor, and 
abatement worker must last a minimum of 8 training hours. Refresher 
courses for project designer, renovator, and dust sampling technician 
must last a minimum of 4 training hours. Refresher courses for all 
disciplines except project designer must include a hands-on component.
    (3) For each course offered, the training program shall conduct a 
hands-on assessment (for all courses except project designer), and at 
the completion of the course, a course test.
    (4) A training program may apply for accreditation of a refresher 
course concurrently with its application for accreditation of the 
corresponding training course as described in paragraph (b) of this 
section. If so, EPA shall use the approval procedure described in 
paragraph (b) of this section. In addition, the minimum requirements 
contained in paragraphs (c) (except for the requirements in paragraph 
(c)(6)), and (e)(1), (e)(2) and (e)(3) of this section shall also 
apply.
    (5) A training program seeking accreditation to offer refresher 
training courses only shall submit a written application to EPA 
containing the following information:
    (i) The refresher training program's name, address, and telephone 
number.
    (ii) A list of courses for which it is applying for accreditation.
    (iii) The name and documentation of the qualifications of the 
training program manager.
    (iv) The name(s) and documentation of the qualifications of the 
principal instructor(s).
    (v) A statement signed by the training program manager certifying 
that the refresher training program meets the minimum requirements 
established in paragraph (c) of this section, except for the 
requirements in paragraph (c)(6) of this section. If a training program 
uses EPA-developed model training materials, or training materials 
approved by a State or Indian Tribe that has been authorized by EPA 
under 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, the training program's 
application for accreditation shall include:
    (A) A copy of the student and instructor manuals to be used for 
each course.
    (B) A copy of the course agenda for each course.
    (vii) All refresher training programs shall include in their 
application for accreditation the following:
    (A) A description of the facilities and equipment to be used for 
lecture and hands-on training.
    (B) A copy of the course test blueprint for each course.
    (C) A description of the activities and procedures that will be 
used for conducting the assessment of hands-on skills for each course 
(if applicable).
    (D) A copy of the quality control plan as described in paragraph 
(c)(9) of this section.
    (viii) The requirements in paragraphs (c)(1) through (c)(5), and 
(c)(7) through (c)(14) of this section apply to refresher training 
providers.
    (ix) If a refresher training program meets the requirements listed 
in this paragraph, then EPA shall approve the application for 
accreditation no more than 180 days after receiving a complete 
application from the refresher training program. In the case of 
approval, a certificate of accreditation shall be sent to the 
applicant. In the case of disapproval, a letter describing the reasons 
for disapproval shall be sent to the applicant. Prior to disapproval, 
EPA may, at its discretion, work with the applicant to address 
inadequacies in the application for accreditation. EPA may

[[Page 25071]]

also request additional materials retained by the refresher training 
program under paragraph (i) of this section. If a refresher training 
program's application is disapproved, the program may reapply for 
accreditation at any time.
    (f) Re-accreditation of training programs. (1) Unless re-
accredited, a training program's accreditation, including refresher 
training accreditation, shall expire 4 years after the date of 
issuance. If a training program meets the requirements of this section, 
the training program shall be re-accredited.
    (2) A training program seeking re-accreditation shall submit an 
application to EPA no later than 180 days before its accreditation 
expires. If a training program does not submit its application for re-
accreditation by that date, EPA cannot guarantee that the program will 
be re-accredited before the end of the accreditation period.
    (3) The training program's application for re-accreditation shall 
contain:
    (i) The training program's name, address, and telephone number.
    (ii) A list of courses for which it is applying for re- 
accreditation.
    (iii) The name and qualifications of the training program manager.
    (iv) The name(s) and qualifications of the principal instructor(s).
    (v) A description of any changes to the training facility, 
equipment or course materials since its last application was approved 
that adversely affects the students' ability to learn.
    (vi) A statement signed by the program manager stating:
    (A) That the training program complies at all times with all 
requirements in paragraphs (c) and (e) of this section, as applicable; 
and
    (B) The recordkeeping and reporting requirements of paragraph (i) 
of this section shall be followed.
    (vii) A payment of appropriate fees in accordance with Sec.  
745.238.
    (4) Upon request, the training program shall allow EPA to audit the 
training program to verify the contents of the application for re- 
accreditation as described in paragraph (f)(3) of this section.
    (g) Suspension, revocation, and modification of accredited training 
programs. (1) EPA may, after notice and an opportunity for hearing, 
suspend, revoke, or modify training program accreditation, including 
refresher training accreditation, if a training program, training 
manager, or other person with supervisory authority over the training 
program has:
    (i) Misrepresented the contents of a training course to EPA and/or 
the student population.
    (ii) Failed to submit required information or notifications in a 
timely manner.
    (iii) Failed to maintain required records.
    (iv) Falsified accreditation records, instructor qualifications, or 
other accreditation-related information or documentation.
    (v) Failed to comply with the training standards and requirements 
in this section.
    (vi) Failed to comply with Federal, State, or local lead-based 
paint statutes or regulations.
    (vii) Made false or misleading statements to EPA in its application 
for accreditation or re-accreditation which EPA relied upon in 
approving the application.
    (2) In addition to an administrative or judicial finding of 
violation, execution of a consent agreement in settlement of an 
enforcement action constitutes, for purposes of this section, evidence 
of a failure to comply with relevant statutes or regulations.
    (h) Procedures for suspension, revocation or modification of 
training program accreditation. (1) Prior to taking action to suspend, 
revoke, or modify the accreditation of a training program, EPA shall 
notify the affected entity in writing of the following:
    (i) The legal and factual basis for the suspension, revocation, or 
modification.
    (ii) The anticipated commencement date and duration of the 
suspension, revocation, or modification.
    (iii) Actions, if any, which the affected entity may take to avoid 
suspension, revocation, or modification, or to receive accreditation in 
the future.
    (iv) The opportunity and method for requesting a hearing prior to 
final EPA action to suspend, revoke or modify accreditation.
    (v) Any additional information, as appropriate, which EPA may 
provide.
    (2) If a hearing is requested by the accredited training program, 
EPA shall:
    (i) Provide the affected entity an opportunity to offer written 
statements in response to EPA's assertions of the legal and factual 
basis for its proposed action, and any other explanations, comments, 
and arguments it deems relevant to the proposed action.
    (ii) Provide the affected entity such other procedural 
opportunities as EPA may deem appropriate to ensure a fair and 
impartial hearing.
    (iii) Appoint an official of EPA as Presiding Officer to conduct 
the hearing. No person shall serve as Presiding Officer if he or she 
has had any prior connection with the specific matter.
    (3) The Presiding Officer appointed pursuant to paragraph (h)(2) of 
this section shall:
    (i) Conduct a fair, orderly, and impartial hearing within 90 days 
of the request for a hearing.
    (ii) Consider all relevant evidence, explanation, comment, and 
argument submitted.
    (iii) Notify the affected entity in writing within 90 days of 
completion of the hearing of his or her decision and order. Such an 
order is a final agency action which may be subject to judicial review.
    (4) If EPA determines that the public health, interest, or welfare 
warrants immediate action to suspend the accreditation of any training 
program prior to the opportunity for a hearing, it shall:
    (i) Notify the affected entity of its intent to immediately suspend 
training program accreditation for the reasons listed in paragraph 
(g)(1) of this section. If a suspension, revocation, or modification 
notice has not previously been issued pursuant to paragraph (g)(1) of 
this section, it shall be issued at the same time the emergency 
suspension notice is issued.
    (ii) Notify the affected entity in writing of the grounds for the 
immediate suspension and why it is necessary to suspend the entity's 
accreditation before an opportunity for a suspension, revocation or 
modification hearing.
    (iii) Notify the affected entity of the anticipated commencement 
date and duration of the immediate suspension.
    (iv) Notify the affected entity of its right to request a hearing 
on the immediate suspension within 15 days of the suspension taking 
place and the procedures for the conduct of such a hearing.
    (5) Any notice, decision, or order issued by EPA under this 
section, any transcripts or other verbatim record of oral testimony, 
and any documents filed by an accredited training program in a hearing 
under this section shall be available to the public, except as 
otherwise provided by section 14 of TSCA or by 40 CFR part 2. Any such 
hearing at which oral testimony is presented shall be open to the 
public, except that the Presiding Officer may exclude the public to the 
extent necessary to allow presentation of information which may be 
entitled to confidential treatment under section 14 of TSCA or 40 CFR 
part 2.
    (6) The public shall be notified of the suspension, revocation, 
modification or reinstatement of a training program's accreditation 
through appropriate mechanisms.

[[Page 25072]]

    (7) EPA shall maintain a list of parties whose accreditation has 
been suspended, revoked, modified or reinstated.
    (i) Training program recordkeeping requirements. (1) Accredited 
training programs shall maintain, and make available to EPA, upon 
request, the following records:
    (i) All documents specified in paragraph (c)(4) of this section 
that demonstrate the qualifications listed in paragraphs (c)(1) and 
(c)(2) of this section of the training manager and principal 
instructors.
    (ii) Current curriculum/course materials and documents reflecting 
any changes made to these materials.
    (iii) The course test blueprint.
    (iv) Information regarding how the hands-on assessment is conducted 
including, but not limited to:
    (A) Who conducts the assessment.
    (B) How the skills are graded.
    (C) What facilities are used.
    (D) The pass/fail rate.
    (v) The quality control plan as described in paragraph (c)(9) of 
this section.
    (vi) Results of the students' hands-on skills assessments and 
course tests, and a record of each student's course completion 
certificate.
    (vii) Any other material not listed above in paragraphs (i)(1)(i) 
through (i)(1)(vi) of this section that was submitted to EPA as part of 
the program's application for accreditation.
    (viii) For renovator refresher and dust sampling technician 
refresher courses, a copy of each trainee's prior course completion 
certificate showing that each trainee was eligible to take the 
refresher course.
    (ix) For course modules delivered in an electronic format, a record 
of each student's log-ins, launches, progress, and completion, and a 
copy of the electronic learning completion certificate for each 
student.
    (2) The training program must retain records pertaining to lead-
based paint activities courses at the address specified on the training 
program accreditation application (or as modified in accordance with 
paragraph (i)(3) of this section) for a minimum of 3 years and 6 
months. Records pertaining to renovator or dust sampling technician 
courses must be retained at the address specified on the training 
program accreditation application (or as modified in accordance with 
paragraph (i)(3) of this section) for a minimum of 5 years.
    (3) The training program shall notify EPA in writing within 30 days 
of changing the address specified on its training program accreditation 
application or transferring the records from that address.
    (j) Amendment of accreditation. (1) A training program must amend 
its accreditation within 90 days of the date a change occurs to 
information included in the program's most recent application. If the 
training program fails to amend its accreditation within 90 days of the 
date the change occurs, the program may not provide renovator, dust 
sampling technician, or lead-based paint activities training until its 
accreditation is amended.
    (2) To amend an accreditation, a training program must submit a 
completed ``Accreditation Application for Training Providers,'' signed 
by an authorized agent of the training provider, noting on the form 
that it is submitted as an amendment and indicating the information 
that has changed.
    (3) If the amendment includes a new training program manager, any 
new or additional principal instructor(s), or any new permanent 
training location(s), the training provider is not permitted to provide 
training under the new training manager or offer courses taught by any 
new principal instructor(s) or at the new training location(s) until 
EPA either approves the amendment or 30 days have elapsed, whichever 
occurs earlier.
    9. In Sec.  745.238, add paragraph (c)(5) to read as follows:

Sec.  745.238  Fees for accreditation and certification of lead-based 
paint activities.

* * * * *
    (c) * * *
    (5) No fee will be charged for accreditation amendments.
* * * * *
    10. In Sec.  745.326, revise paragraphs (a)(2)(i), (a)(2)(ii), (d), 
(e)(1), and (e)(3), and add paragraph (f) to read as follows:

Sec.  745.326  Renovation: State and Tribal program requirements.

    (a) * * *
    (2) * * *
    (i) Procedures and requirements for the accreditation of renovation 
and dust sampling technician training programs. (Note: a State and 
Tribal program is not required to include procedures and requirements 
for the dust sampling technician training discipline if the State or 
Tribal program requires dust sampling to be performed by a certified 
lead-based paint inspector or risk assessor.)
    (ii) Procedures and requirements for accredited initial and 
refresher training for renovators and dust sampling technicians and on-
the-job training for other individuals who perform renovations.
* * * * *
    (d) Certification of individuals and/or renovation firms. To be 
considered at least as protective as the Federal program, the State or 
Tribal program must:
    (1) Establish procedures and requirements that ensure that 
individuals who perform or direct renovations are properly trained. 
These procedures and requirements must include:
    (i) A requirement that renovations be performed and directed by at 
least one individual who has been trained by an accredited training 
program.
    (ii) Procedures and requirements for accredited refresher training 
for these individuals.
    (iii) Procedures and requirements for certified renovators to 
provide on-the-job training for those individuals who perform 
renovations but do not receive accredited training.
    (2) Establish procedures and requirements for the formal 
certification and re-certification of either individuals or renovation 
firms.
    (3) Establish procedures for the suspension, revocation, or 
modification of certifications.
    (e) * * *
    (1) Renovations must be conducted only by certified individuals 
and/or certified renovation firms.
* * * * *
    (3) Certified individuals and/or renovation firms must retain 
appropriate records.
    (f) Revisions to renovation program requirements. If EPA revises 
the renovation program requirements contained in subparts E and L of 
this part:
    (1) A State or Tribe with a renovation program approved before the 
effective date of the revisions must demonstrate that it meets the 
requirements of this section no later than the first report that it 
submits pursuant to Sec.  745.324(h) no later than one year after the 
effective date of the revisions.
    (2) A State or Tribe with an application for approval of a 
renovation program submitted but not approved before the effective date 
of the revisions must demonstrate that it meets the requirements of 
this section either by amending its application or in the first report 
that it submits pursuant to Sec.  745.324(h) no later than one year 
after the effective date of the revisions.
    (3) A State or Indian Tribe submitting its application for approval 
of a renovation program on or after the effective date of the revisions 
must

[[Page 25073]]

demonstrate in its application that it meets the requirements of this 
section.
    11. In Sec.  745.327, revise paragraphs (b)(1), (b)(2), (b)(3), and 
(c)(2) to read as follows:

Sec.  745.327  State or Indian Tribal lead-based paint compliance and 
enforcement programs.

* * * * *
    (b) * * *
    (1) Lead-based paint activities or renovation requirements. State 
or Tribal lead-based paint compliance and enforcement programs will be 
considered adequate if the State or Indian Tribe demonstrates, in its 
application at 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, premises or 
facilities where lead-based paint violations may occur for purposes of 
conducting inspections.
    (i) State or Tribal officials must be able to enter premises or 
facilities where those engaged in training for lead-based paint 
activities or renovations conduct business.
    (ii) For the purposes of enforcing a renovation program, State or 
Tribal officials must be able to enter a firm's place of business or 
work site.
    (iii) State or Tribal officials must have authority to take samples 
and review records as part of the lead-based paint inspection process.
    (3) Flexible remedies. A State or Tribal lead-based paint 
compliance and enforcement program must provide for a diverse and 
flexible array of enforcement statutory and regulatory authorities and 
remedies. At a minimum, these authorities and remedies, which must also 
be reflected in an enforcement response policy, must include the 
following:
    (i) The authority to issue warning letters, Notices of 
Noncompliance, Notices of Violation, or the equivalent;
    (ii) The authority to assess administrative or civil fines, 
including a maximum penalty authority for any violation in an amount no 
less than $10,000 per violation per day;
    (iii) The authority to assess the maximum penalties or fines for 
each instance of violation and, if the violation is continuous, the 
authority to assess penalties or fines up to the maximum amount for 
each day of violation, with all penalties assessed or collected being 
appropriate for the violation after consideration of the size or 
viability of the business, enforcement history, risks to human health 
or the environment posed by the violation, and other similar factors;
    (iv) The authority to commence an administrative proceeding or to 
sue in courts of competent jurisdiction to recover penalties;
    (v) The authority to suspend, revoke, or modify the accreditation 
of any training provider or the certification of any individual or 
firm;
    (vi) The authority to commence an administrative proceeding or to 
sue in courts of competent jurisdiction to enjoin any threatened or 
continuing violation of any program requirement, without the necessity 
of a prior suspension or revocation of a trainer's accreditation or a 
firm's or individual's certification;
    (vii) The authority to apply criminal sanctions, including 
recovering fines; and
    (viii) The authority to enforce its authorized program using a 
burden of proof standard, including the degree of knowledge or intent 
of the respondent that is no greater than it is for EPA under TSCA.
* * * * *
    (c) * * *
    (2) Compliance assistance. A State or Tribal lead-based paint 
compliance and enforcement program must provide compliance assistance 
to the public and the regulated community to facilitate awareness and 
understanding of and compliance with State or Tribal requirements 
governing the conduct of lead-based paint activities or renovations. 
The type and nature of this assistance can be defined by the State or 
Indian Tribe to achieve this goal.
* * * * *
[FR Doc. 2010-10102 Filed 5-5-10; 8:45 am]
BILLING CODE 6560-50-P
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