[Federal Register Volume 71, Number 6 (Tuesday, January 10, 2006)]
[Proposed Rules]
[Pages 1588-1636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-71]
[[Page 1587]]
-----------------------------------------------------------------------
Part II
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 745
Lead; Renovation, Repair, and Painting Program; Proposed Rule
Federal Register / Vol. 71, No. 6 / Tuesday, January 10, 2006 /
Proposed Rules
[[Page 1588]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[EPA-HQ-OPPT-2005-0049; FRL-7755-5]
RIN 2070-AC83
Lead; Renovation, Repair, and Painting Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing new requirements to reduce exposure to lead
hazards created by renovation, repair, and painting activities that
disturb lead-based paint. This action supports the attainment of the
Federal government's goal of eliminating childhood lead poisoning by
2010. The proposal would establish requirements for training renovators
and dust sampling technicians; certifying renovators, dust sampling
technicians, and renovation firms; accrediting providers of renovation
and dust sampling technician training; and for renovation work
practices. These requirements would apply in ``target housing,''
defined in section 401 of the Toxic Substances Control Act (TSCA) 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.
Initially the rule would apply to all renovations for compensation
performed in target housing where a child with an increased blood lead
level resides, rental target housing built before 1960 and owner-
occupied target housing built before 1960, unless, with respect to
owner-occupied target housing, the person performing the renovation
obtains a statement signed by the owner-occupant that the renovation
will occur in the owner's residence and that no child under age 6
resides there. EPA is proposing to phase in the applicability of this
proposal to all rental target housing and owner-occupied target housing
built in the years 1960 through 1977 where a child under age 6 resides.
This proposal is issued under the authority of TSCA section 402(c)(3).
EPA is also proposing to allow interested States, Territories, and
Indian Tribes the opportunity to apply for and receive authorization to
administer and enforce all of the elements of the new renovation
provisions.
DATES: Comments must be received on or before April 10, 2006. Under the
Paperwork Reduction Act, comments on the information collection
provisions must be received by OMB on or before February 9, 2006.
ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OPPT-2005-0049, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov/.
Follow the on-line instructions for submitting comments.
Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001. In addition, please
mail a copy of your comments on the information collection provisions
to the Office of Information and Regulatory Affairs, Office of
Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St.,
NW., Washington, DC 20503.
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 Docket'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 public docket without change and may be made available in the
on-line docket 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 website 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 public 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
at http://www.regulations.gov/. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in the online docket at
http://www.regulations.gov/ or in hard copy at the OPPT Docket, EPA
Docket Center, EPA West, Rm. B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The EPA Docket
Center Reading Room telephone number is (202) 566-1744, and the
telephone number for the OPPT Docket, which is located in the EPA
Docket Center, is (202) 566-0280.
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: [email protected].
For technical information contact: Mike Wilson, National Program
Chemicals Division (7404T), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 566-0521; e-mail
address: [email protected].
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 for compensation or dust sampling. 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.
[[Page 1589]]
Potentially affected entities may include, but are not limited to:
Building construction (NAICS 236), e.g., single family
housing construction, multi-family housing construction, residential
remodelers.
Specialty trade contractors (NAICS 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 531), e.g., lessors of residential
buildings and dwellings, residential property managers.
Other technical and trade schools (NAICS 611519), e.g.,
training providers.
Engineering services (NAICS 541330) and building
inspection services (NAICS 541350), e.g., dust sampling technicians.
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. To determine
whether you or your business may be affected by this action, you should
carefully examine the applicability provisions in Sec. 745.82 of the
proposed rule. 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
EDOCKET, 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
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 rulemaking 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, obscene language, or personal threats.
viii. Make sure to submit your comments by the comment period
deadline.
II. Background
A. What Action is the Agency Taking?
EPA is proposing new requirements to reduce the exposure to lead
hazards created by renovation, repair, and painting activities that
disturb lead-based paint. This action supports the attainment of the
Federal government's goal of eliminating childhood lead poisoning by
2010. The proposal would establish requirements for training renovators
and dust sampling technicians; certifying renovators, dust sampling
technicians, and renovation firms; accrediting providers of renovation
and dust sampling technician training; and renovation work practices.
These requirements would apply in ``target housing,'' 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. Initially the rule would apply to all renovations for
compensation performed in target housing where a child with an
increased blood lead level resides; rental target housing built before
1960; and owner-occupied target housing built before 1960, unless the
person performing the renovation obtains a statement signed by the
owner-occupant that the renovation will occur in the owner's residence
and that no child under age 6 resides there. EPA is proposing to phase
in the applicability of this proposal to all rental target housing and
owner-occupied target housing built in the years 1960 through 1977
where a child under age 6 resides. This proposal is issued under the
authority of TSCA section 402(c)(3). EPA is also proposing to allow
interested States, Territories, and Indian Tribes the opportunity to
apply for, and receive authorization to, administer and enforce all of
the elements of the new renovation provisions.
EPA is planning to incorporate the training, certification, and
accreditation requirements in this proposal, along with the proposed
work practice standards for renovations, into 40 CFR part 745, subpart
E. Subpart E currently contains the Pre-Renovation Education Rule
requirements. As discussed in Unit IV.B., the requirements in this
proposal would apply to renovations currently regulated by the Pre-
Renovation Education Rule. As a result, 40 CFR part 745, subpart E
would be a logical place to codify these requirements. In order to do
so, EPA is proposing to remove some existing sections from this subpart
and replace them with new sections.
EPA is proposing to delete 40 CFR 745.84 because it is duplicative.
This section provides some details on submitting CBI and how EPA will
handle that information. However, comprehensive regulations governing
sensitive business information, including CBI under TSCA, are codified
in 40 CFR part 2. The regulations in 40 CFR part 2 set forth the
procedures for making a claim of confidentiality and describe the rules
governing EPA's release of information. Therefore, 40 CFR 745.84 is
superfluous. EPA is proposing to delete this section and redesignate
existing Sec. 745.85 as Sec. 745.84. EPA is also proposing to amend
newly designated Sec. 745.84 so as to place the responsibility for
carrying out the information distribution requirements on the firm
conducting the renovation rather than the certified renovator.
EPA is also proposing to delete 40 CFR 745.88. This section
provides sample pamphlet acknowledgment statements and sample attempted
delivery certification statements. These statements may, but are not
required to, be used by renovators for the purpose of complying with
the recordkeeping requirements of the Pre-Renovation Education Rule.
EPA is making available in the docket and on its Web page new sample
statements to assist renovation firms in complying with the Pre-
Renovation Education Rule as well
[[Page 1590]]
as the provisions of this proposal (Ref. 1). More information on the
recordkeeping requirements of this proposal can be found in Units
III.B. through III.D.
B. What is the Agency's Authority for Taking this Action?
These training, certification and accreditation requirements and
work practice standards are being proposed pursuant to the authority of
TSCA section 402(c)(3), 15 U.S.C. 2682(c)(3), as amended by Title X of
the Housing and Community Development Act of 1992, Public Law 102-550
(also known as the Residential Lead-Based Paint Hazard Reduction Act of
1992) (``the Act'' or ``Title X'') (Ref. 2). The Model State Program
and amendments to the regulations on the authorization of State and
Tribal programs with respect to renovators and dust sampling
technicians are being proposed pursuant to section 404 of TSCA, 15
U.S.C. 2684.
III. Introduction
A. Information on Lead, Health Effects, and History
Lead is a soft, bluish metallic element mined from rock and found
in its natural state all over the world. Lead is virtually
indestructible, is persistent, and has been known since antiquity for
its adaptability in making various useful items. In modern times, it
has been used to manufacture many different products, including paint,
batteries, pipes, solder, pottery, and gasoline. Through the 1940's,
paint manufacturers frequently used lead as a primary ingredient in
many oil-based interior and exterior house paints. Usage gradually
decreased through the 1950's and 1960's as titanium dioxide replaced
lead and as latex paints became more widely available.
According to the Centers for Disease Control, there is no known
safe blood lead level (Ref. 3). Health effects associated with exposure
to lead and lead compounds include, but are not limited to,
neurotoxicity, developmental delays, hypertension, impaired hearing
acuity, impaired hemoglobin synthesis, and male reproductive impairment
(Refs. 3 and 4). Lead bioaccumulates, and it is difficult to remove
from blood and bones. Lead exposure in young children is of particular
concern because children absorb lead more readily than adults (Refs. 3
and 4). Children have a higher risk of exposure because of their more
frequent hand-to-mouth behavior (Ref. 3). Low levels of lead in a
child's bloodstream can interfere with growth and cause cognitive
impairment, permanent hearing and visual impairment, and other damage
to the brain and nervous system (Refs. 3 and 4). The effects of long-
term lead exposure or poisoning in children are well-documented: Higher
school failure rates and reductions in lifetime earnings due to
permanent loss of intelligence and increased social pathologies (Ref.
3).
In large doses, lead can cause blindness, brain damage,
convulsions, and even death. Lead exposure before or during pregnancy
can affect fetal development and cause miscarriages, as lead can pass
from a pregnant woman's bloodstream to the developing child. There is
also some indication that lead exposure contributes to high blood
pressure and reproductive and memory problems in adults (Ref. 5).
According to EPA's Integrated Risk Information System (IRIS), by
comparison to most other environmental toxicants, the degree of
uncertainty about the health effects of lead is quite low and it
appears that some effects, particularly changes in the levels of
certain blood enzymes as well as changes in aspects of children's
neurobehavioral development, may occur at blood levels so low as to be
essentially without a threshold (Ref. 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 paint hazards. Dust created
during normal lead-based paint wear (especially around windows and
doors) can create an invisible film over surfaces in a house. Children,
particularly younger children, may also ingest lead-based paint chips
from flaking 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, both adults and children can receive hazardous
exposures by inhaling the dust or by ingesting paint-dust during hand-
to-mouth activities.
In the last 3 decades of the 20th century, various agencies of the
Federal government took independent actions to address lead exposure.
In 1978, the Consumer Product Safety Commission (CPSC) banned the use
of paint containing more than 0.06% lead by weight on toys, furniture,
and interior and exterior surfaces in housing and other buildings and
structures used by consumers (Ref. 7). Also in 1978, the Occupational
Safety and Health Administration (OSHA) issued regulations to protect
general industry workers from lead exposure (Ref. 8). OSHA issued
regulations in 1993 to protect construction workers, including
abatement workers, from lead exposure (Ref. 9). In 1973, EPA issued
regulations designed to gradually reduce the amount of lead in leaded
gasoline (Ref. 10). EPA lowered the maximum levels of lead permitted in
public water systems in 1991 (Ref. 11). The Centers for Disease Control
and Prevention (CDC) set and lowered blood lead ``levels of concern''
several times, as new studies showed the impact of lead levels on
children's health (Ref. 12). (The level of concern is the level where
medical and environmental case management activities should be
implemented.) The Department of Housing and Urban Development (HUD)
began to abate lead hazards in public housing that was being renovated
or in structures occupied by a child with elevated blood lead levels.
These efforts, and those of State and local agencies and the private
sector, reduced the incidence of lead poisoning.
In 1991, the Secretary of the Department of Health and Human
Services (HHS) characterized lead poisoning as the ``number one
environmental threat to the health of children in the United States''
(Ref. 13, p. A-3). Preventing Lead Poisoning in Young Children; A
Statement By the Centers For Disease Control and Prevention, identified
lead-based paint as the major source of high-dose lead poisoning in the
United States (Ref. 12, pp. 7-10). Although CPSC's ban on high lead
levels in residential paint was an important and necessary step in
reducing the number of lead-poisoned children, millions of houses still
contained old leaded paint.
B. The Federal Lead-based Paint Program.
1. Title X and the Federal goal. Primarily in response to this
persistent health threat, in 1992 Congress enacted Title X. Congress
found that low-level lead poisoning was widespread among American
children, affecting, at that time, as many as 3,000,000 children under
age 6; that the ingestion of household dust containing lead from
deteriorating or abraded lead-based paint was the most common cause of
lead poisoning in children; and that the health and development of
children living in as many as 3,800,000 American homes was endangered
by chipping or peeling lead paint, or excessive amounts of lead-
contaminated dust in their homes. Congress determined that the prior
Federal response to this crisis was
[[Page 1591]]
insufficient and established, in Title X, a national goal of
eliminating lead-based paint hazards in housing as expeditiously as
possible. Congress decided that the Federal government would take a
leadership role in building the infrastructure necessary to achieve
this goal.
The stated purposes of Title X are:
To develop a national strategy to build the infrastructure
necessary to eliminate lead-based paint hazards in all housing as
expeditiously as possible.
To reorient the national approach to the presence of lead-
based paint in housing to implement, on a priority basis, a broad
program to evaluate and reduce lead-based paint hazards in the Nation's
housing stock.
To encourage effective action to prevent childhood lead
poisoning by establishing a workable framework for lead-based paint
hazard evaluation and reduction and by ending the current confusion
over reasonable standards of care.
To ensure that the existence of lead-based paint hazards
is taken into account in the development of Government housing policies
and in the sale, rental, and renovation of homes and apartments.
To mobilize national resources expeditiously, through a
partnership among all levels of government and the private sector, to
develop the most promising, cost-effective methods for evaluating and
reducing lead-based paint hazards.
To reduce the threat of childhood lead poisoning in
housing owned, assisted, or transferred by the Federal Government.
To educate the public concerning the hazards and sources
of lead-based paint poisoning and steps to reduce and eliminate such
hazards.
(Ref. 2). To accomplish this ambitious goal, a number of agencies were
assigned specific responsibilities under Title X, including HUD, CDC,
OSHA, the National Institute for Occupational Safety and Health
(NIOSH), and EPA.
The elimination of lead-based paint hazards in the nation's housing
remains an important goal for the Federal government. In 1997,
President Clinton created the President's Task Force on Environmental
Health Risks and Safety Risks to Children in response to increased
awareness that children face disproportionate risks from environmental
health and safety hazards. Co-chaired by the Secretary of HHS and the
Administrator of the EPA, the Task Force consisted of representatives
from 16 Federal departments and agencies. The Task Force set a Federal
goal of eliminating childhood lead poisoning by the year 2010. This
proposed rule is an important component of the Federal strategy for
achieving this goal. In October 2001, President Bush extended the work
of the Task Force for an additional 18 months beyond its original
charter (Ref. 14). Reducing lead poisoning in children was the Task
Force's top priority.
Childhood lead exposure continues to be a major public health
problem among young children in the United States. Most children with
blood lead levels in excess of CDC's current level of concern have been
exposed to lead in non-intact paint, interior settled dust, and dust
and soil in and around deteriorating older housing (Ref. 15). The
nature and extent of the problems associated with residential lead-
based paint have been thoroughly investigated. Approximately 40% of all
U.S. housing units (about 38 million homes) have some lead-based paint.
Use of lead-safe work practices during renovation can advance the goal
of primary prevention of lead poisoning (Ref. 15).
2. EPA's lead-based paint program. Under Title X, EPA is directed
to take actions that can be divided into 4 key categories:
Establishing a training and certification program for
persons engaged in lead-based paint activities, accrediting training
providers, establishing work practice standards for the safe, reliable,
and effective identification and elimination of lead-based paint
hazards, and developing a program to address exposure to lead-based
paint hazards from renovation and remodeling activities.
Ensuring that, for most housing constructed before 1978,
lead-based paint information flows from sellers to purchasers, from
landlords to tenants, and from renovators to owners and occupants.
Establishing standards for identifying dangerous levels of
lead in paint, dust and soil.
Providing information on lead hazards to the public,
including steps that people can take to protect themselves and their
families from lead-based paint hazards.
Each of these categories is discussed in more detail in the following
sections.
a. Training and certification, accreditation, and work practice
standards. Title X added a new title to TSCA entitled ``Title IV Lead
Exposure Reduction.'' Most of EPA's responsibilities for addressing
lead-based paint hazards can be found in this title, with section 402
being one source of the rulemaking authority to carry out these
responsibilities. TSCA section 402(a) directs EPA to promulgate
regulations covering lead-based paint activities 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) governing lead-based paint inspections, lead hazard
screens, risk assessments, and abatements in target housing (Ref. 16).
TSCA section 401 defines ``target housing'' as any housing constructed
prior to 1978, except housing for the elderly or persons with
disabilities (unless any child who is less than 6 years of age resides
or is expected to reside in such housing for the elderly or persons
with disabilities) or any 0-bedroom dwelling. These regulations also
apply to ``child-occupied facilities,'' which are defined at 40 CFR
745.223 as buildings constructed before 1978, or portions of such
buildings, where children under age 6 are regularly present.
TSCA section 402 defines lead-based paint activities in target
housing as inspections, risk assessments and abatements. The 1996
regulations cover lead-based paint activities in target housing and
child-occupied facilities, along with limited screening activities
called lead hazard screens. The regulations also established an
accreditation program for training providers and a certification
program for individuals and firms performing these activities.
Training providers who wish to provide lead-based paint training
for the purposes of the Federal lead-based paint program must be
accredited by EPA. Implementing regulations at 40 CFR 745.225 describe
in detail the requirements for each course of study, how training
programs must be operated, and the process for obtaining accreditation.
Training programs must have a training manager with experience or
education in a construction or environmental field, and a principal
instructor with experience or education in a related field and
education or experience in teaching adults. Training programs must also
have adequate facilities and equipment for delivering the training. To
become accredited, an application for accreditation must be submitted
to EPA on behalf of the training program. The application must either
include the course materials and syllabus, or a statement that EPA
model
[[Page 1592]]
materials or materials approved by an authorized State or Tribe will be
used. The application must also include a description of the facilities
and equipment that will be used, a copy of the test blueprint for each
course, a description of the activities and procedures that will be
used during the hands-on skills portion of each course, a copy of the
quality control plan, and the correct amount of fees. If EPA finds that
the program meets the regulatory requirements, it will accredit the
training program for 4 years. To maintain accreditation, the training
program must submit an application and the correct amount of fees every
4 years.
Individuals and firms that perform inspections, lead hazard
screens, risk assessments, or abatements in target housing or child-
occupied facilities must be certified. Certification requirements and
the process for becoming certified are described in 40 CFR 745.226. A
firm that wishes to become certified must submit an application, along
with the correct amount of fees, attesting that it will use only
certified individuals to perform lead-based paint activities and that
it will follow the work practice standards in 40 CFR 745.227. An
individual who wishes to become certified must take an accredited
training course in at least one of the certified disciplines:
Inspector, risk assessor, project designer, abatement worker, and
abatement supervisor. The risk assessor, project designer, and
abatement supervisor disciplines have additional requirements for
education or experience in a construction or environmental field. The
inspector, risk assessor, and abatement supervisor disciplines also
require the applicant to pass a certification examination administered
by a third party.
The regulations at 40 CFR part 745, subpart L, also contain work
practice standards for performing inspections, lead hazard screens,
risk assessments and abatements in target housing and child-occupied
facilities. The regulations contain specific requirements for
conducting paint sampling during an inspection and specify information
that must be gathered and samples that must be taken as part of a lead
hazard screen or risk assessment. The requirements for abatements are
also set forth in the regulations. When conducting abatements, an
occupant protection plan must be prepared by a certified supervisor or
project designer; certain work practices such as open-flame burning,
machine sanding or abrasive blasting without high-efficiency exhaust
control, dry scraping, and heat guns at high settings are prohibited;
and a visual inspection and dust clearance sampling must be performed
after the abatement is finished to ensure that the area is ready for
re-occupancy. Any samples collected during any of these regulated lead-
based paint activities must be analyzed by a laboratory recognized by
EPA as being capable of analyzing paint chips, dust, and soil for lead.
Requirements for inspection, lead hazard screen, risk assessment or
abatement reports are also described in this section.
Recognizing the importance of States and Territories in achieving
the goal of eliminating lead-based paint hazards in housing, Congress
specifically directed EPA to establish a model State program and a
process for authorizing States to operate such programs in lieu of the
Federal program. Concurrently with the subpart L rulemaking in 1996,
EPA codified, at 40 CFR part 745, subpart Q, a model training and
certification program and a process for enabling States, Territories,
and Tribes to apply for authorization to administer their own lead-
based paint activity programs. Providing Indian Tribes with this
opportunity is consistent with EPA's Policy for the Administration of
Environmental Programs on Indian Reservations (Ref. 17). EPA also
provides grants under TSCA section 404 to States, Territories, and
Tribes to assist them in developing and administering these programs,
as well as programs implementing TSCA section 406(b), discussed in this
Unit.
On June 9, 1999, the subpart L regulations were amended to include
a fee schedule for training programs seeking EPA accreditation and for
individuals and firms seeking EPA certification (Ref. 18). These fees
were established as directed by TSCA section 402(a)(3), which requires
EPA to recover the cost of administering and enforcing the lead-based
paint activities requirements in unauthorized States. The most recent
amendment to the subpart L regulations occurred on April 8, 2004, when
notification requirements were added to help EPA monitor compliance
with the training and certification provisions and the abatement work
practice standards (Ref. 19).
As of December 2005, 44 programs comprised of 39 States, 3 Tribes,
Puerto Rico, and the District of Columbia were authorized to administer
lead-based paint activity programs. In the remaining jurisdictions,
where EPA is responsible for administering the subpart L regulations,
there were approximately 55 accredited training course providers, 1,300
certified firms, 500 certified inspectors, 1,400 certified risk
assessors, 60 certified project designers, 1,000 certified abatement
supervisors, and 2,800 certified abatement workers. EPA believes that,
in most areas of the country, there is an adequate supply of accredited
courses and certified firms and individuals available to meet the
demand for lead-based paint services. This is a significant part of the
national infrastructure necessary to achieve the goal of eliminating
lead-based paint hazards in housing.
In addition, Congress directed EPA, in TSCA section 405, to
establish protocols, criteria, and minimum performance standards for
analysis of lead in paint, dust, and soil. TSCA section 405 further
directed EPA, in consultation with HHS, to develop a program to certify
qualified laboratories. The National Lead Laboratory Accreditation
Program (NLLAP) provides the public with a list of laboratories that
have met EPA requirements and demonstrated the capability to accurately
analyze paint chip, dust, or soil samples for lead. All laboratories
recognized by NLLAP must pass on-site audits conducted by one of the
two accrediting organizations currently participating in NLLAP, the
American Industrial Hygiene Association (AIHA), and the American
Association for Laboratory Accreditation. Recognized laboratories must
also perform successfully on a continuing basis in the Environmental
Lead Proficiency Analytical Testing (ELPAT) Program established by
NIOSH, AIHA, and EPA.
b. Lead-based paint information for purchasers, renters, owners,
and occupants of target housing. Another of EPA's responsibilities
under Title X is to require that purchasers and tenants of target
housing and occupants of target housing undergoing renovation are
provided information on lead-based paint and lead-based paint hazards.
As directed by TSCA section 406(a), CPSC, HUD, and EPA, in consultation
with CDC, jointly developed a lead hazard information pamphlet entitled
``Protect Your Family From Lead in Your Home'' (``PYF'') (Ref. 20). The
availability of this pamphlet was announced on August 1, 1995 (Ref.
21). This pamphlet was designed to be distributed as part of the
disclosure requirements of section 1018 of Title X and TSCA section
406(b), to provide home purchasers, renters, owners, and occupants with
the information necessary to allow them to make informed choices when
selecting housing to buy or rent, or deciding on home renovation
projects. The pamphlet
[[Page 1593]]
contains information on the health effects of lead, how exposure can
occur, and steps that can be taken to reduce or eliminate the risk of
exposure during various activities in the home.
Pursuant to the authority provided in section 1018 of Title X, on
March 6, 1996, HUD and EPA jointly promulgated regulations requiring
persons who are selling or leasing target housing to provide the PYF
pamphlet and information on known lead-based paint and lead-based paint
hazards in the housing to purchasers and renters (Ref. 22). These joint
regulations, codified at 24 CFR part 35, subpart A, and 40 CFR part
745, subpart F, describe in detail the information that must be
provided before the contract or lease is signed and require that
sellers, landlords, and agents document compliance with the disclosure
requirements in the contract to sell or lease the property. Title X
does not provide for these requirements to be administered by States or
Tribes in lieu of the Federal regulations. Therefore, HUD and EPA are
responsible for administering and enforcing these disclosure
obligations.
TSCA section 406(b) directs EPA to promulgate regulations requiring
persons who perform home renovations for compensation to provide a lead
hazard information pamphlet to owners and occupants of target housing
being renovated. These regulations, promulgated on June 1, 1998, are
codified at 40 CFR part 745, subpart E (Ref. 23). The term
``renovation'' is defined, at 40 CFR 745.83, as the modification of any
existing structure, or portion of a structure, that results in the
disturbance of painted surfaces. Lead-based paint abatement projects
are specifically excluded, as are small projects that disturb 2 square
feet (ft2) or less of painted surfaces, emergency projects,
and renovations affecting components that have been found to be free of
lead-based paint, as that term is defined in the regulations, by a
certified inspector or risk assessor. Like the regulations regarding
disclosure during sales or leases, these regulations require the
renovation firm to document compliance with the requirement to provide
the owner and the occupant with the PYF pamphlet. One important
difference from the disclosure requirements in section 1018 of Title X
is that TSCA section 404 allows States to apply for, and receive
authorization to administer, the TSCA section 406(b) requirements. Two
States are currently authorized to operate this program.
c. Standards for lead in paint, dust, and soil. Another
responsibility assigned to EPA by Title X is the development of
standards for identifying dangerous levels of lead in paint, dust and
soil. These standards, promulgated pursuant to TSCA section 403 on
January 5, 2001 and codified at 40 CFR part 745, subpart D, provide
various Federal agencies, including HUD, and State, local and Tribal
governments with uniform benchmarks on which to base decisions on
remedial actions to safeguard children and the public from lead-based
paint hazards (Ref. 24). These standards also allow certified
inspectors and risk assessors to easily determine whether a particular
situation presents a lead-based paint hazard and whether to recommend
remedial actions such as lead-based paint abatement, cleaning of dust,
or removal of soil. The 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/ft2) on floors or 250
[mu]g/ft2 on interior window sills based on wipe samples. A
soil-lead hazard is bare soil that contains total lead equal to or
exceeding 400 parts per million ([mu]g/g) in a play area or average of
1,200 parts per million of bare soil in the rest of the yard based on
soil samples.
d. Public outreach and education. Among other things, TSCA section
405(d) directs EPA, along with the Agency for Toxic Substances and
Disease Registry (ATSDR) and HUD, to sponsor public education and
outreach activities to increase public awareness of the health effects
of lead, the potential for exposures, the importance of screening
children for elevated blood lead levels, and measures that can be taken
to reduce or eliminate lead-based paint hazards. Accordingly, EPA has
worked to provide the public with information and increase public
awareness of such matters. To date, these activities have included web
site management, development of public outreach strategies, development
of partnership agreements, distribution of materials, participation in
national conferences and exhibits, and developing hazard information
documents (and other media, such as videos), as necessary to implement
Title X. EPA has collaborated closely with other Federal agencies and
its State, Tribal, and local government partners in developing outreach
campaigns targeted for the Women, Infants and Children (WIC) program,
Little League Baseball, and Spanish-speaking populations. Recently, EPA
worked with the National Head Start Association to develop a lead
poisoning prevention campaign entitled ``Give Your Child a Chance of a
Lifetime.'' The campaign consisted of a number of lead awareness
documents, including a brochure for parents, fact sheets for Head Start
staff, and a curriculum for Head Start teachers. Lead awareness
outreach materials were provided to Head Start Centers in New York,
Chicago, Philadelphia, Houston, and Los Angeles. The material was also
distributed at the National Head Start Association Training
Conferences. EPA has also been involved in developing model tool kits
of various educational tools to provide to partners, such as slogans
and graphic materials for public buses, trains, and mass transit
stations.
EPA has used its authority under TSCA section 10 to award grants to
Tribes to support Tribal educational outreach and to conduct baseline
assessments of Tribal children's existing and potential exposure to
lead. In fiscal year 2005, EPA began a new targeted grant program aimed
at reducing the incidence of childhood lead poisoning in vulnerable
populations (Ref. 25). These grants are providing funding for proven or
innovative programs in areas with high rates of childhood lead
poisoning, and in areas where rates are unknown but other conditions
suggest high rates may exist.
TSCA section 405(e) further directs EPA to establish, in connection
with HUD, CDC, other Federal agencies, and State and local governments,
a clearinghouse for information on lead-based paint and a hotline for
the public to use for questions and requests for information on lead-
based paint. This clearinghouse, the National Lead Information Center,
handles approximately 50,000 calls per year, and disseminates up to
500,000 documents per year to the public.
3. Lead-based paint programs at other Federal agencies. In addition
to EPA, other Federal agencies have important roles in achieving the
goals of reducing or eliminating lead-based paint hazards in housing,
as well as the national goal of eliminating childhood lead poisoning by
2010. Other agencies specifically assigned tasks in Title X include
HUD, CDC, and OSHA.
The Federal agencies have long realized that they must work
together to develop and implement Federal strategies for addressing
lead-based
[[Page 1594]]
paint hazards in order to be efficient and effective. In 1989, HUD and
EPA formed an inter-agency task force to work through issues associated
with lead-based paint abatement. The Federal Interagency Lead Based
Paint Task Force has remained active throughout the years and continues
to meet on a quarterly basis. Participating agencies include the
Department of Defense, the Veterans Administration, the National
Institute of Standards and Technology (NIST), the U.S. Public Health
Service, the National Aeronautics and Space Administration (NASA), the
United States Department of Agriculture (USDA), the Government
Accountability Office (GAO), the National Institute for Environmental
Health Sciences (NIEHS), ATSDR, CDC, CPSC, NIOSH, OSHA, HUD, and EPA.
This Task Force serves as an important forum for coordinating the
strategic plans of the Federal agencies who have responsibilities under
Title X or who have responsibilities for maintaining and disposing of
property that may contain lead-based paint.
Title X assigned certain responsibilities to HUD. One of HUD's
functions is the administration of the Lead-Based Paint Hazard Control
Grant Program established by the Act. This program provides grants of
$1 million to $3 million to State and local governments for control of
lead-based paint hazards in privately-owned, low-income owner-occupied
and rental housing that is not receiving federal assistance. These
grants are also designed to stimulate the development of a trained and
certified hazard evaluation and control industry. Evaluation and hazard
control work funded by the program must be conducted by either
contractors who are certified by EPA or an EPA-approved State or Tribal
program, or by contractors trained in lead-safe work practices, in the
case of interim controls. Through these requirements, HUD hopes to
create infrastructure that will last beyond the life of the grant. In
awarding grants, HUD promotes the use of cost-effective approaches to
hazard control that can be replicated across the nation. Since 1993,
approximately $971 million has been awarded to over 200 local and State
jurisdictions across the country. The work approved to date will lead
to the control of lead-based paint hazards in more than 70,000 homes
where young children reside or are expected to reside. Other HUD lead
grant programs include the Lead Hazard Reduction Demonstration program,
the Lead Elimination Action Program (LEAP), the Lead Outreach program
and the Lead Technical Studies program.
HUD was also given regulatory authority over some aspects of lead-
based paint hazard control. As noted previously, on March 6, 1996, HUD
and EPA jointly promulgated regulations requiring the disclosure of
lead-based paint information during sale or lease transactions
involving target housing. The HUD disclosure regulations are codified
at 24 CFR part 35, subpart A. Subparts B through R of 24 CFR part 35
are known as the ``Lead Safe Housing Rule,'' initially promulgated on
September 15, 1999, and updated in June 2004 (Ref. 26). This rule was
designed to protect young children from lead-based paint hazards in
target housing that is being sold by the Federal government or receives
financial assistance from the government. The requirements generally
depend upon the level of assistance being provided, and may include
such things as inspections, risk assessments, abatement, paint
stabilization, or interim controls, which are temporary measures to
reduce potential exposure to lead-based paint hazards. The emphasis is
on reducing lead-based paint hazards, so, after paint is disturbed, a
visual assessment for surface dust, debris, and residue and dust
clearance testing is required to ensure that no dust lead hazards were
created or left in the work area or, for rehabilitation projects of
moderate or substantial scope, in the entire housing unit. More
information on the Lead Safe Housing Rule is available on the HUD
website at http://www.hud.gov/offices/lead/leadsaferule/index.cfm or by
calling (202) 755-1785, extension 104.
Section 1017 of Title X required HUD to issue ``guidelines for the
conduct of federally supported work involving risk assessments,
inspections, interim controls, and abatement of lead-based paint
hazards.'' In response to this directive, HUD completed the Guidelines
for the Evaluation and Control of Lead-Based Paint Hazards in Housing
(Guidelines), in June 1995 (Ref. 27). The Guidelines provide detailed,
comprehensive, technical information on how to identify lead-based
paint hazards in housing and how to control such hazards safely and
efficiently.
Other core activities of HUD's lead-based paint program include
providing technical assistance to housing authorities, nonprofit
housing providers, local and State agencies, other Federal agencies,
housing developers, inspectors, real estate professionals, contractors
and financiers, and public health authorities; evaluating the hazard
reduction methods used in the grant program to measure their
effectiveness, cost and safety; and maintaining a community outreach
program in coordination with the other Federal agencies involved in
lead-based paint hazard reduction.
CDC also provides significant funding for the prevention of
childhood lead poisoning. CDC provides funding to support State, city
and county programs in the areas of primary prevention, case management
and screening, surveillance, strategic partnerships, and program
evaluation. Since 2002, CDC has recommended that a blood lead level of
10 micrograms per deciliter ([mu]g/dL) be used as a threshold for
individual intervention (Ref. 28). Additional CDC recommendations
address the type and intensity of individual intervention strategies
that should be undertaken, depending upon the child's blood lead level.
These strategies range from nutritional and educational interventions,
along with more frequent testing, for a child with a blood lead level
of 10-14 [mu]g/dL, to medical and environmental interventions for
children with blood lead levels above 45 [mu]g/dL (Ref. 28). CDC has
established a national surveillance system for children with elevated
blood lead levels. In addition, CDC works with HUD and EPA to
coordinate outreach and education campaigns.
OSHA is another agency with regulatory authority under Title X. As
directed by the Act, OSHA promulgated an interim final standard on May
4, 1993, which regulates lead exposures in the construction industry
(Ref. 9). This standard, codified at 29 CFR 1926.62, limits worker
exposures to 50 micrograms of lead per cubic meter of air averaged over
an 8-hour workday. Employers must use a combination of engineering
controls and work practices to reduce employee exposure as much as
possible, using appropriate respiratory protection where necessary to
achieve the exposure limit. Employees must receive training on the
health effects of lead and how to limit exposure through proper work
practices and personal protective equipment. Exposure monitoring and
medical monitoring, including blood lead testing, are also required.
This standard remains in effect and OSHA retains the authority to
protect workers from occupational exposure to lead.
Many Federal agencies have been working to reduce or eliminate
lead-based paint hazards in housing and to end childhood lead
poisoning. EPA, HUD, and other Federal agencies have been working for
many years on the problem of lead-based paint hazards that can be
created during renovation
[[Page 1595]]
and remodeling activities in housing. This rulemaking is an important
component of the Federal strategy for eliminating childhood lead
poisoning.
C. EPA Activities Related to This Rulemaking.
TSCA section 402(c) addresses renovation and remodeling. For the
stated purpose of reducing the risk of exposure to lead in connection
with renovation and remodeling activities, section 402(c)(1) requires
EPA to promulgate and disseminate guidelines for the conduct of such
activities which may create a risk of exposure to dangerous levels of
lead. In response to this statutory directive, EPA developed the
guidance document entitled Reducing Lead Hazards when Remodeling Your
Home in consultation with industry and trade groups (Ref. 29). This
document has been widely disseminated to renovation and remodeling
stakeholders through the National Lead Information Center, EPA Regions,
and EPA's State and Tribal partners and is available at www.epa.gov/lead/rrpamph.pdf.
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. The terms ``renovation''
and ``remodeling'' are not defined by the statute. For assistance in
selecting the activities to be studied, and in otherwise defining the
scope of this study, EPA consulted with persons from national
committees, major trade industries, Federal and State governmental
agencies, academia, and medical institutions who were involved in lead
research and policy making. After receiving individual input from these
consultations and a meeting in April 1993, with a number of the
contacted individuals, EPA identified the following 11 categories of
renovation and remodeling activities with the potential for resulting
in exposure to lead:
Paint removal.
Surface preparation.
Removal of large structures (demolition).
Window replacement.
Enclosure of exterior painted surfaces (i.e., siding).
Carpet or other floor covering removal.
Wallpaper removal.
HVAC (central heating system) repair or replacement
including duct work.
Repairs or additions resulting in isolated small surface
disruptions.
Exterior soil disruption.
Major renovation projects involving multiple target
activities.
1. Renovation and remodeling study. The study itself was conducted
in 4 phases; each phase was peer reviewed and the results of the peer
reviews are discussed in the study reports (Refs. 30, 31, 32, and 37).
The approach and conclusions for each phase are summarized in this
Unit.
a. Phase I. The approach taken for Phase I, Environmental Field
Sampling Study (Ref. 30), involved a series of case studies and
included data collection efforts for the following target 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.
Exterior siding, wallpaper removal, and exterior soil disruption were
excluded because the study design team and the individuals consulted in
the information-gathering phase generally considered these target
activities to be of secondary importance. The last category, repairs
resulting in isolated small surface disruptions, was represented by
drilling holes and sawing into wood and plaster covered with lead-based
paint.
After the completion of each activity, dust samples were collected
within one foot of where the activity occurred and approximately 5 to 6
feet away from the location of the activity. Samples were collected in
a manner that excluded any contribution of pre-existing leaded dust at
the sample location (Ref. 30). With the exception of carpet removal and
drilling into plaster, the results from the samples taken within one
foot of the activity indicated that these activities produce lead
loadings on the floor that exceed the TSCA section 403 hazard standards
of 40 [mu]g/ft2 for lead in dust. EPA has already determined
that loadings exceeding this level can cause adverse health effects. In
the case of paint removal, the estimated average lead loading in a 6
foot by one foot area extending away from the activity was 42,900
[mu]g/ft2, or greater than 1,000 times the TSCA section 403
dust-lead hazard standard. For paint removal, window replacement, HVAC
work, demolition of interior plaster walls, and sawing into wood, the
samples taken 6 feet away from the activity also indicated lead
loadings at levels well in excess of the TSCA section 403 standard.
This phase of the study also examined the effectiveness of two
popular cleaning methods, broom sweeping and shop-vacuuming, for
removing settled lead-dust. Although these data indicate that standard
broom sweeping or shop-vacuuming can remove a high percentage of the
dust (up to 99%), lead loadings nevertheless remained consistently
above the TSCA section 403 standard. In addition, the data show that
standard cleanup techniques sometimes disperse lead dust throughout the
work area, thereby increasing lead levels in areas more distant from
the work area. Accordingly, EPA has concluded that standard broom
sweeping or shop-vacuuming are not reliable or effective methods for
removing lead-based paint hazards created by typical renovation and
remodeling activities.
Worker air-monitoring samples, indicating the degree of worker
inhalation exposure, were also collected during this phase of the
study. These data suggest that some renovation and remodeling
activities could result in worker exposure that exceeds OSHA's
permissible exposure limit (PEL) for lead of 50 [mu]g/m3.
OSHA's PEL is based on an 8-hour time-weighted average (TWA), which is
an average exposure over one 8-hour shift. This study measured only
average exposures over the duration of a particular activity, which
would be equivalent to an 8-hour TWA for a worker only if it is assumed
that the monitored activity is performed for 8 hours in a day. However,
the worker exposure data generated in this study indicate that some
exposures are likely to be so high that conducting the activity for
only a short time would result in an 8-hour TWA that exceeds the OSHA
PEL. For example, worker exposures monitored during power sanding and
sawing into wood were so high that it is estimated that 45 minutes of
performing these activities would result in an exposure that exceeded
the PEL.
b. Phase II. Phase II of the study, Worker Characterization and
Blood-Lead Study, continued to address worker exposure (Ref. 31). This
phase involved collecting data on blood samples and questionnaires from
585 renovation and remodeling workers from Philadelphia and St. Louis.
The questionnaire focused on demographic and background information
such as work history, work habits, and hobbies. Questionnaire data also
indicated that few renovation and remodeling professionals were using
respirators or high energy particulate air (HEPA) vacuums. Blood
samples were collected from 581 of the 585 workers. Of these
[[Page 1596]]
samples, 9.1% were above 10 [mu]g/dL, 1.2% were above 25 [mu]g/dL, and
one worker had a blood-lead concentration greater than 40 [mu]g/dL. The
geometric mean blood-lead concentration for all workers was 4.5 [mu]g/
dL. A statistical model was developed and fit to the data that included
effects for variables potentially related to lead exposure, such as the
age of a worker's home; type of work usually performed by the worker;
and the amount of renovation and remodeling activity conducted recently
and over the worker's career. There were significant differences among
the worker groups. Drywall workers and painters had the highest
predicted blood-lead concentrations, and floor layers had the lowest.
In addition, there was a statistically significant correlation between
the number of days worked in pre-1950 buildings in the past month and
increases in blood-lead concentrations for general renovation and
remodeling work, paint removal, and cleanup, although the estimated
increase was very small, less than 1 [mu]g/dL for all activities (Ref.
38).
c. Phase III. Phase III of the study, Wisconsin Childhood Blood-
Lead Study, was a retrospective study focused on assessing the
relationship between renovation and remodeling activities and
children's blood-lead levels (Ref. 32). This study demonstrated that
general residential renovation and remodeling is associated with an
increased risk of elevated blood lead levels (EBLs) in children and
that specific renovation and remodeling activities are also associated
with an increase in the risk of EBLs 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
EBLs. Overall, these results agree with those from earlier phases of
the renovation and remodeling study--renovation and remodeling
activities that disturb lead-based paint increase the risk of exposure
to occupants. Additionally, children living in a residence while
renovation and remodeling was conducted were 30% more likely to have
EBLs than children who did not live in a residence during the time
renovation and remodeling was conducted.
During the Small Business Advocacy Review Panel process discussed
in greater detail in Unit VIII.C.6., questions were raised in
connection with this phase of the study (Ref. 33). Specifically, it was
noted that the effect shown in this phase of the study was somewhat
ambiguous in that several confounding factors may have contributed to
the blood lead levels. In addition, this phase yielded several
surprising results, including evidence of an increased risk of elevated
blood lead levels in homes that were built after 1978, the date lead-
based paint was banned, although the report did offer several
explanations for this result. While the study identified a correlation
between renovation and remodeling activities and elevated blood lead
levels in children, the Panel report states that there was no
statistically significant increased risk of elevated blood lead levels
(possibly because of the small sample size) when the study focuses
solely on work performed by apartment building owners, apartment
building staff or professional contractors. The Panel recommended that
EPA undertake additional analysis of the data from this phase of the
study to determine if a child was more likely to have an elevated blood
lead level if the renovation and remodeling was performed by a relative
or friend than if performed by a professional contractor or building
management staff (those subject to the rule). The results of EPA's
additional analysis, which focused on the relationship between who
performs renovation and remodeling activities and the odds of an
elevated blood lead level occurring in a resident child, have been
placed in the docket (Ref. 34). In homes where renovation and
remodeling activities had been performed, the analysis indicated the
following ordering of the five possible responses to the question of
who performed the renovation and remodeling, in order of highest to
lowest risk of increased odds of an elevated blood lead level:
Relative or friend not in household.
Paid professional.
Owner or building superintendent.
Head of household or spouse.
Other person in household.
As discussed in the report from Phase III of the study, some possible
confounders were investigated, including the surface preparation
methods, and the size of the renovation jobs undertaken, but no obvious
solution was discovered.
However, several studies corroborate the findings of the Phase III
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. 35). In addition, a case-control study
assessed the association between elevated blood lead levels in children
younger than 5 and renovation or repair activities in homes in New York
City. A statistically significant correlation between renovation and
repair work that involved preparing an interior surface for painting,
and work that spreads dust and debris throughout the home, increased
the risk of elevated blood lead levels for children in the study
population. Researchers noted that the consistency of their results
with EPA's Phase III study lends credibility to the conclusion that
home renovation or repair work involving interior paint preparation
constributes to a nontrivial proportion of elevated blood lead levels
in children (Ref. 36, at 509).
d. Phase IV. Phase IV of the study, Worker Characterization and
Blood-Lead Study of R&R Workers Who Specialize in Renovations of Old or
Historic Homes, was an extension of Phase II (Ref. 37). Where Phase II
examined lead exposure among a general population of renovation and
remodeling professionals, Phase IV focused on individuals who worked
primarily in old historic buildings. Phase IV explored lead exposure in
161 professional renovation and remodeling workers and 82 homeowners
who worked extensively in old houses. Each study participant provided a
blood sample for analysis and completed a detailed questionnaire
identical to the one used in Phase II.
The results of Phase IV demonstrate that individuals who regularly
work in potentially high lead exposure settings, i.e., old houses, do
have a higher probability of an elevated blood-lead level than the
general population of renovation and remodeling professionals measured
in Phase II. Among these high-risk workers, 3 out of 161 had blood-lead
concentrations above 40 [mu]g/dL. Out of 82 homeowners who performed
renovation and remodeling activities while residing in their own
historic or pre-1940 home, 4 had blood-lead concentrations above 25
[mu]g/dL. The geometric mean blood-lead level for professionals was
significantly greater than for homeowners. Preparation for painting
and/or sanding of painted surfaces were the activities most
consistently associated with elevated blood-lead levels among study
participants.
After evaluating the findings from all 4 phases of the study, EPA
concluded that the long-term exposure faced by the occupants should be
the most important consideration in determining the need for worker
training and certification. EPA is particularly concerned with the
[[Page 1597]]
results from Phase I and Phase III. The Phase I results indicate that,
where lead-based paint is present, activities that are routinely
performed as part of renovation and remodeling activities can create
significant amounts of leaded dust, which, if not effectively contained
and cleaned up, could pose hazards to the occupants. Phase III
corroborated this finding by identifying a statistically significant
link between activities that are routinely performed as part of
renovation and remodeling projects and an increased risk of an elevated
blood lead level in children.
Finally, TSCA section 402(c)(3) directs EPA to revise the
regulations under TSCA section 402(a) to apply the regulations to
renovation or remodeling activities that create lead-based paint
hazards. In determining which contractors are engaged in such
activities, EPA must use the results of its renovation and remodeling
study and consult with representatives of labor organizations, lead-
based paint activities contractors, persons engaged in remodeling and
renovation, and experts in lead health effects. If EPA determines that
a particular category of contractors engaged in renovation or
remodeling need not be certified, EPA must publish an explanation of
the basis for that determination.
2. Public consultation. EPA began the consultation process required
by TSCA section 402(c)(3) with two public meetings. Participants
included representatives from renovation, remodeling and painting
contractors, national contractor associations, apartment management
companies, realtors, labor organizations, training providers, lead
poisoning prevention advocacy groups, other Federal agencies and
States. The meetings were held on December 7, 1998 and on March 8,
1999. EPA presented the results of its renovation and remodeling study
at the first meeting. The remainder of that meeting and all of the
second meeting involved discussion of various aspects of the existing
abatement regulations and how they might fit into a renovation and
remodeling rule. Topics discussed included applicability, accreditation
of training providers, certification of individuals, and work practice
standards (setup, occupant protection, clean-up, clearance, and
restricted practices). Transcripts of these meetings have been placed
in the public docket for this action (Refs. 39 and 40).
In addition, on November 23, 1999, EPA's Small Business Advocacy
Chairperson convened a Small Business Advocacy Review Panel under
section 609(b) of the Regulatory Flexibility Act (RFA) as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA). In addition to the chairperson, the Panel consisted of the
Director of EPA's Office of Pollution Prevention and Toxics, the
Administrator of the Office of Information and Regulatory Affairs
within the Office of Management and Budget (OMB), and the Chief Counsel
for Advocacy of the Small Business Administration (SBA).
Before beginning pre-panel discussions with OMB and SBA, EPA held
three conference calls with potential Small Entity Representatives
(SERs) to obtain feedback on the options and alternatives for a
renovation and remodeling regulation. The Review Panel held an outreach
meeting with Small Entity Representatives (SERs) on December 3, 1999.
Eleven SERs, representing small painting, decorating, finishing,
remodeling and renovation contractors, as well as multi-family housing
owners and training providers, and four trade association
representatives participated in the meeting. The Panel solicited
comments from the SERs on the options presented by EPA, as well as
EPA's cost estimates for these options. Several SERs submitted written
comments to EPA following this meeting. More information on the Review
Panel Process, including the recommendations of the panel, can be found
in Unit VIII.C. The Panel's report, along with background information
provided to panel members and SERs, has been placed in the public
docket for this action (Ref. 33).
EPA also held a 2-day meeting with its State partners to discuss
lead-based paint program issues. Most of the time on the agenda for
this meeting, held in September 2000, was devoted to discussing how the
existing abatement regulations might be modified to apply to renovation
and remodeling projects. A summary of this meeting has been placed in
the public docket for this action (Ref. 41).
In May 2003, EPA hosted a series of conference calls to discuss
additional issues related to renovation and remodeling. Two calls were
held with State and local government agency representatives as well as
a State legislator. Two separate calls included representatives from
renovation and remodeling contractors and contractor associations,
realtors and realtor associations, and apartment owner and manager
associations. These calls focused on the relationship between lead-
based paint hazard evaluation and control activities and renovations.
Summaries of these calls have been placed in the public docket for this
action (Refs. 42, 43, 44, and 45).
EPA has co-sponsored several national lead conferences, at which
the Agency met with representatives of State and Tribal governments to
discuss renovation issues, among other issues. Examples include:
June 2000, EPA 4th National Lead Conference - Washington,
DC.
December 2000, National Lead Grantee Conference (HUD/CDC/
EPA) - Atlanta, GA.
May 2001, EPA 5th National Lead Conference - New Orleans,
LA.
June 2003, EPA 6th National Lead Conference - San Antonio,
TX.
June 2004, National Lead and Healthy Homes Grantee
Conference (HUD/CDC/EPA) - Orlando, FL.
IV. Proposed Requirements for Renovation Activities
A. TSCA Section 402(c)(3) Determination
As discussed in Unit III.B., TSCA section 402(a) directs EPA to
promulgate regulations to ensure that persons who perform lead-based
paint activities are properly trained through accredited training
programs and that contractors performing these activities are
certified. The regulations must also contain work practice standards
for lead-based paint activities, taking into account reliability,
effectiveness, and safety. Regulations governing lead-based paint
activities in target housing and child-occupied facilities were
promulgated in 1996 and codified at 40 CFR part 745, subpart L. TSCA
section 402(c)(3) directs EPA to revise these regulations to apply to
renovation or remodeling activities that create lead-based paint
hazards.
As discussed previously, the renovation and remodeling study
conducted under TSCA section 402(c) found that the following renovation
and remodeling activities, when conducted where lead-based paint is
present, generated lead loadings on floors that exceeded the TSCA
section 403 dust-lead hazard standard:
Paint removal by abrasive sanding.
Window replacement.
HVAC duct work.
Demolition of interior plaster walls.
Drilling into wood.
Sawing into wood.
Sawing into plaster.
Because these activities cause lead dust to be deposited on floors in
excess of the dust-lead hazard standard for floors, EPA proposes to
conclude that these activities create lead-based paint hazards. In
addition, based on the results of the Phase I study, EPA
[[Page 1598]]
proposes to conclude that drilling into plaster, where lead-based paint
is present, can reasonably be anticipated to create lead-based paint
hazards. Moreover, EPA believes that certain cleanup methods are not
effective or reliable in reducing the lead levels below the hazard
standard.
These proposed conclusions are supported by the results of other
phases of the renovation and remodeling study. Phase III, Wisconsin
Childhood Blood-lead Study, found that children who live in homes where
renovation and remodeling activities were performed within the past
year are 30% more likely to have a blood lead-level that equals or
exceeds 10 [mu]g/dL, the level of concern established by CDC, than
children living in homes where no such activity has taken place
recently.
Phases II and IV of the study, which evaluated worker exposures
from renovation and remodeling activities, provide additional
documentation of the significant and direct relationship between blood-
lead levels and the conduct of certain renovation and remodeling
activities. Phase II found a statistically significant association
between increased blood lead levels and the number of days spent
performing general renovation and remodeling activities, paint removal,
and cleanup in pre-1950 buildings in the past month. Phase IV of the
study found that persons performing renovation and remodeling
activities in old historic buildings are more likely to have elevated
blood-lead levels than persons in the general population of renovation
and remodeling workers.
Based on the results of Phases I through IV of the renovation and
remodeling study, EPA proposes to conclude that any renovation activity
that disturbs lead-based paint can create significant amounts of leaded
dust. EPA reaches this proposed conclusion because the study examined
renovation activities on a variety of components using a variety of
tools and methods, and discovered that each activity that disturbed
lead-based paint caused lead dust in amounts that created or could
reasonably be anticipated to create lead-based paint hazards. EPA
believes that the activities studied are representative of the paint-
disturbing activities that typically occur during renovations. EPA
requests comment on its proposed conclusions drawn from the Phase I
through IV studies, as well as on the studies themselves. EPA also
invites commenters to submit or identify peer-reviewed studies and
data, of which EPA may not be aware, that assess the results of
exposure to renovation, repair and painting activities in housing or
other facilities that may contain lead-based paint.
EPA is therefore proposing to revise existing regulations to extend
training, certification, and work practice requirements to certain
renovation and remodeling projects in target housing. It is not EPA's
intention to merely expand the scope of the current abatement
requirements to cover renovation and remodeling activities. Rather, EPA
has carefully considered the elements of the existing abatement
regulations and revised them as necessary to craft a proposal that is
practical for renovation and remodeling businesses and their customers,
while taking into account reliability, effectiveness, and safety as
directed by TSCA section 402(a).
In addition, EPA is considering whether some or all of these
proposed provisions should be incorporated into the abatement
regulations. In particular, the Agency is requesting comment about
allowing the use of the workplace practices in this proposal in lieu of
the prohibition of certain workplace practices in the abatement
regulations. Also, the Agency is requesting comment about allowing
cleaning verification in lieu of clearance testing in the abatement
regulations. If the Agency were to change the abatement regulations, it
could incorporate the regulatory language in this proposal (i.e., allow
abatement firms the option of following the workplace practice
standards in the proposed 40 CFR 745.85(a) in lieu of the workplace
practice standards in the abatement rule, and allow abatement firms the
option of following the cleaning verification procedure in the proposed
40 CFR 745.85(b) in lieu of the clearance testing requirements) in the
abatement rule. Comments are invited on whether changes should be
proposed to the abatement regulations and, if so, the nature of these
changes.
EPA also requests comment on potential unintended consequences of
this proposal. For example, the costs of this proposed rule, which
renovation firms are likely to pass on to consumers in whole or in
part, may cause some homeowners to perform some renovation projects
themselves rather than hire a professional. More information on the
costs and benefits of this proposal can be found in Unit VIII.A. EPA
has made a concerted effort to keep the costs as low as possible, while
still providing adequate protection against lead-based paint hazards
created by renovation activities. Homeowners who choose to perform
their own renovation projects are not likely to have taken formal
training in lead-safe work practices, so they may not be familiar with
the methods they should use to prevent lead exposures for themselves
and their children. However, in the absence of this proposed
regulation, EPA believes that most contractors and building management
staff will not receive formal training in lead-safe work practices
either. In addition, building owners may choose to defer maintenance as
a result of the increased renovation costs attributable to this
proposal. EPA requests comment on the likelihood that there will be
more do-it-yourself renovation projects or deferred maintenance, and
information or data on what that might mean in terms of health impacts,
as well as other potential consequences of this proposal.
B. Scope of Proposed Regulation
1. Housing units that would be covered. EPA is proposing to amend
the existing regulations at 40 CFR part 745, subpart E, that implement
TSCA section 406(b) to add training and certification requirements, as
well as work practice standards, for certain renovations performed for
compensation in target housing. The proposed amendments would apply to
renovations performed within housing units as well as renovations
performed in common areas in multi-unit housing. The TSCA section
406(b) regulations, also referred to as the Pre-Renovation Education
Rule, currently require persons performing renovations for compensation
in all target housing to provide owners and occupants with a lead
hazard information pamphlet that discusses lead-based paint and lead-
based paint hazards. In delineating the scope of today's proposal, EPA
is using many of the definitions and exemptions used in the Pre-
Renovation Education Rule. For example, the term ``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. EPA is not proposing to modify this definition
in any way.
EPA is proposing to make the requirements contained in this
proposal effective in two major stages. In the first stage, the
proposed requirements would apply to renovation projects performed for
compensation in:
All target housing where the firm performing the
renovation obtains information indicating that a child under age 6
resides there, if the child has a blood-lead level greater than or
equal to 10 [mu]g/dL or a State or local government level of concern,
if lower, or the firm does not provide the owners and occupants with
the opportunity to
[[Page 1599]]
inform the firm that a child under age 6 with such a blood-lead level
resides there;
All owner-occupied target housing built before 1960,
unless the firm performing the renovation obtains a statement signed by
the owner that the renovation will occur in the owner's residence and
no child under age 6 resides there; and
All rental target housing built before 1960.
The second stage would extend the proposed requirements to:
All owner-occupied target housing, unless the firm
performing the renovation obtains a statement signed by the owner that
the renovation will occur in the owner's residence and no child under
age 6 resides there; and
All rental target housing.
The second stage would take effect 1 year after the first stage takes
effect.
For each stage, the requirements of the rule would only apply to
those renovations that meet the proposed definition of renovation
discussed in Unit IV.B.3. and do not qualify for the exceptions
discussed in Unit IV.B.4.
The purpose of this regulation is to prevent the creation of new
lead-based paint hazards from renovation activities in housing where
children under age 6 reside. To achieve the goal of eliminating
childhood lead poisoning by 2010, it is important to focus society's
resources on the activities that have the greatest impact on the
population at greatest risk.
According to the National Survey of Lead and Allergens in Housing,
24% of the housing constructed between 1960 and 1978 contains lead-
based paint (Ref. 46). In contrast, 69% of the housing constructed
between 1940 and 1959, and 87% of the housing constructed before 1940
contains lead-based paint. The results of this survey indicate that
there is a much greater likelihood of disturbing lead-based paint
during a renovation that occurs in a home built before 1960 than in a
home built after that date. EPA seeks comment on these facts and how
these facts should affect the regulatory requirements under TSCA
section 402(c)(3), which requires EPA to apply regulations issued under
section 402(a) to renovations in target housing that create lead-based
paint hazards.
Although most homes built between 1960 and 1978 do not contain
lead-based paint, EPA remains concerned about the risks presented to
those children under age 6 who reside in one of the homes that does.
Therefore, EPA is proposing to phase in coverage of those homes after 1
year. As discussed in more detail in this Unit, EPA believes that
during this phase in period it will be possible to develop test kits
that are able to identify more accurately those homes that do not
contain lead-based paint at regulated levels.
As discussed in Unit IV.B.4.a., EPA is proposing to exempt
renovations that affect only components that have been determined to be
free of paint or other surface coatings that contain lead equal to or
in excess of 1.0 mg/cm2 or 0.5% by weight. In addition to a
determination by a certified inspector or risk assessor, EPA is also
proposing to allow the use of EPA-recognized test kits to determine
whether the components to be affected are free of regulated lead-based
paint. Accurate test kits represent a relatively simple and inexpensive
way to identify where lead-based paint is present and assist homeowners
and renovation firms in determining where lead-safe work practices
should be followed.
Research on the use of these kits for testing lead in paint has
been published by NIST (Ref. 47). The research to date shows that, in
general, there are test kits currently available which, when used by a
trained professional, can reliably determine that regulated lead-based
paint is not present by virtue of a negative result, but which cannot
reliably determine that regulated lead-based paint is present. These
kits typically are sensitive to lead at levels below the Federal
standards that define lead-based paint, and therefore are prone to a
large number of false positive results (i.e., a positive result when
regulated lead-based paint is, in fact, not present). The NIST research
found that false positive rates range from 42% to 78%.
These false positive rates mean that the currently-available test
kits are not an effective means of identifying the 76% of homes built
between 1960 and 1978 that do not contain regulated lead-based paint.
EPA believes that the sensitivity of test kits could be adjusted for
paint testing so that the results from the kits reliably correspond to
one of the two Federal standards for lead-based paint, 1.0 mg/
cm2 and 0.5% by weight. EPA also believes that this can be
accomplished in the near future and is planning to conduct research to
further the development of test kits that accurately identify both the
presence and absence of lead in paint at levels that exceed the Federal
standards. EPA's goals for this research are to develop a kit that can
reliably be used by a person with minimal training, is inexpensive
(under $2 per test), provides results within an hour, and is
demonstrated to have a false positive rate of no more than 10% and a
false negative rate at 1.0 mg/cm2 or 0.5% by weight of less
than 5%. This research effort is consistent with one of the stated
purposes of Title X, ``to mobilize national resources expeditiously,
through a partnership among all levels of government and the private
sector, to develop the most promising, cost-effective methods for
evaluating and reducing lead-based paint hazards.''
EPA is confident that improved test kits meeting EPA's research
goals can be available within the next 3 years. Based on the proposed
effective dates for the initial stage of this rule, discussed in
greater detail in Unit VI., the improved test kits should be available
within 1 year after the initial stage of the rule becomes effective in
all jurisdictions. EPA is therefore proposing to extend the
requirements of this proposal to rental housing built between 1960 and
1978, as well as owner-occupied homes built between 1960 and 1978 where
a child under age 6 resides, 1 year after the requirements become
effective for such homes built before 1960. This staged approach will
initially address the renovations that present the greatest risks to
children under age 6, i.e., the renovations that are most likely to
disturb lead-based paint, while allowing additional time for the
development of improved test kits before phasing in the applicability
of the rule to newer rental target housing and newer owner-occupied
target housing where children under age 6 reside.
It is EPA's expectation that the improved test kits will be
available before the effective date of the requirements that apply to
rental housing built between 1960 and 1978, as well as owner-occupied
homes built between 1960 and 1978 where a child under age 6 resides. If
it appears that these improved test kits will not be available by that
effective date, EPA will consider delaying the effective date for the
requirements that apply to rental housing built between 1960 and 1978,
as well as owner-occupied homes built between 1960 and 1978 where a
child under age 6 resides. EPA requests comment on whether EPA should
wait to finalize the proposed second stage of this regulation until the
new kits are commercially available nationwide. Waiting would ensure
that the improved test kits are available before renovation firms must
comply with the training, certification, and work practice requirements
of this proposal for renovations in housing that is more likely than
not to be free of regulated lead-based paint. The proposed rule, by
allowing the use of test kits in pre-1960 housing to determine the
absence of lead-based paint, provides an incentive
[[Page 1600]]
for improved test kits. In addition, an established deadline for
coverage of homes built between 1960 and 1978 provides an even greater
incentive for the private sector to pursue improved test kits.
Although EPA is proposing to extend the effective date for housing
built between 1960 and 1978 for an additional year, EPA remains
concerned about children under age 6 residing in these homes if the
children have increased blood lead levels. In many cases where a blood
level in excess of the applicable level of concern has been identified,
intervention by State and local public health officials should ensure
that further exposure to lead is minimized. However, to prevent the
possibility that an unregulated renovation activity will contribute to
continuing exposures to lead for children with increased blood lead
levels, EPA is proposing to include in the first stage of this proposal
all target housing built before 1978 where a child under age 6 with a
blood lead level that equals or exceeds the CDC level of concern, or a
lower State or local government level of concern, resides. (As is
discussed in Unit IV.B.4., renovations that only affected components
that had been determined to be lead-based paint free would be exempt
from the requirements of this proposal.)
The existing Pre-Renovation Education Rule requires renovators to
inform owners and occupants of target housing of the potential risks
from renovation projects by providing them with the PYF pamphlet.
Persons performing renovations covered by the existing regulations must
already either obtain a signed acknowledgment from the owner indicating
that the pamphlet has been received, or a certificate of mailing
indicating that the pamphlet was mailed at least 7 days before the
renovation. EPA has developed a sample acknowledgment form that
renovators could use not only to record the owner's receipt of the lead
hazard information pamphlet, but to obtain additional information on
the housing to be renovated and its residents (Ref. 1). This would
enable renovation firms to satisfy their current obligations under the
Pre-Renovation Education Rule and assist them in complying the
requirements of this proposal. EPA seeks comment on this sample from, a
copy of which is available in the docket for this proposed rule and on
the Agency's Web page.
a. Target housing constructed between 1960 and 1978 where a child
under age 6 with an increased blood lead level resides. As discussed in
this Unit of the preamble, EPA is proposing that this rule take effect
in two major stages. EPA is proposing that the first stage include
renovations performed for compensation in target housing constructed
between 1960 and 1978 where a child under age 6 with a blood lead level
that equals or exceeds the CDC level of concern (10 [mu]g/dL), or a
lower State or local government level of concern, resides. For the
purposes of this proposal, children reside in the primary residences of
their custodial parents, foster parents, and legal guardians. In
addition, this proposal considers housing where a child lives and
sleeps most of the time as the child's residence, even if this housing
is not the residence of the child's legal custodians. This means that a
child may have more than one residence, but it will ensure that the
primary residences of all children under age 6 are covered by either
stage one or stage two of this proposal, if they reside in target
housing.
EPA recognizes that the renovation firm is not likely to have
access to information on the blood lead levels of resident children.
Therefore, EPA is proposing to require only that the renovation firm
offer the owners and occupants of target housing built between 1960 and
1978 the opportunity to inform the firm that a child under age 6 with a
blood lead level that equals or exceeds 10 [mu]g/dL, or any lower State
or local government level of concern, resides in the housing to be
renovated. This opportunity could be as simple as a statement on the
form used to acknowledge receipt of the information pamphlet, or, if
the pamphlet is mailed, a note included in the mailing asking the
recipient to inform the renovation firm if a child under age 6 with a
blood lead level that equals or exceeds 10 [mu]g/dL, or any lower State
or local government level of concern, is in residence. Tenant
notifications required for renovations in common areas could include a
similar note. EPA's sample acknowledgment form incorporates a statement
to this effect (Ref. 1).
EPA will not require the renovation firm to presume that a child
under age 6 with a blood lead level that equals or exceeds 10 [mu]g/dL,
or any lower State or local government level of concern, resides in
housing to be renovated, if the renovation firm does not receive any
information from the owner or occupant. EPA requests comment on how a
renovation firm could obtain this information if it is unable to obtain
a signed statement from the owner.
b. Owner-occupied target housing where a child under age 6 resides.
EPA is also proposing to include, in the first stage of this
rulemaking, renovation projects performed for compensation in all
owner-occupied target housing built before 1960, unless the firm
performing the renovation obtains a statement signed by the owner that
the renovation will occur in the owner's residence and that the housing
is not the primary residence of a child under age 6. The primary
residences of children under age 6 living in target housing constructed
between 1960 and 1978 would be covered in the second stage of this
proposed regulation.
The sample acknowledgment form developed by EPA will assist
renovation firms in obtaining a written statement from owner-occupants
as to whether a child under age 6 resides in the housing to be
renovated (Ref. 1). In many cases, EPA anticipates that the presence of
this statement on the form will prompt a discussion between the
homeowner and the renovation firm on the information in the lead hazard
information pamphlet as well as the lead-safe work practices that would
be required by this proposal. A homeowner without children under age 6
in residence who subsequently chooses not to have the renovation firm
follow lead-safe work practices will be making an informed decision in
these circumstances.
If the renovator is unable to obtain an acknowledgment form from
the owner-occupant, and instead meets the requirements of the Pre-
Renovation Education Rule by a certificate of mailing indicating that
the pamphlet was mailed at least 7 days before the renovation, the
renovator would have to assume that a child under age 6 resided in the
housing to be renovated and would have to perform the renovation in
accordance with the applicable work practice standards of this
proposal.
Subsequent purchasers of the housing will also be able to make
informed decisions as a result of the regulations promulgated under
section 1018 of Title X and codified at 24 CFR part 35, subpart A, and
40 CFR part 745, subpart F. These regulations, briefly summarized in
Unit III.B.2.b., would not ordinarily require a seller, in the absence
of specific knowledge of lead-based paint or lead-based paint hazards,
to disclose information about renovation projects to a purchaser.
However, the informational pamphlet that the seller must provide
includes information about potential lead-based paint hazards on
residential property and recommends that purchasers obtain a lead-based
paint inspection or risk assessment on property they are interested in
buying. A risk assessment would identify any dust-lead hazards on the
property, whether created by a
[[Page 1601]]
renovation performed without lead-safe work practices or some other
activity.
c. Rental target housing. Also in the first stage of this
rulemaking, the proposed requirements would apply to all rental target
housing built before 1960, regardless of whether a child under age 6
resides there. The second stage would extend the requirements to all
rental target housing.
The proposal would apply to target housing that is currently being
rented, as well as target housing being offered for rent and target
housing that the owner intends to offer for rent. Renovations to
prepare target housing for the rental market would have to be performed
in accordance with this proposal. Unlike in owner-occupied housing,
occupants who are tenants have far less control over renovation
projects in their housing than occupants who are owners. EPA believes
that, in most cases, the owner of housing, or the owner's agent, enters
into contracts for renovation services, not the tenant. The owner has
control over who performs the project and how it is conducted. In
addition, renovations in rental housing often occur between tenants,
when the housing is vacant and it is not known whether the next tenants
will include a child under age 6. Therefore, requiring proper training
and work practices in rental housing is necessary to protect the tenant
occupants. Finally, applying the requirements of this proposal only to
rental housing where children under age 6 reside could foster
discrimination in the rental market against families with children
under age 6. Although it is not the preferred option, EPA requests
comment on whether this proposal should apply only to rental target
housing where children under age 6 reside.
This proposal avoids placing responsibility on the renovation firm
for determining whether a child under age 6 resides in a particular
housing unit; the renovation firm would be responsible, however, for
determining whether the housing unit is rental target housing. EPA
considered holding the renovation firm responsible for making both
determinations. However, it may be very difficult in many situations
for the renovation firm to find objective proof that a child under age
6 does or does not reside in a particular housing unit. Because this
proposal does not cover, for example, the residences of relatives that
provide occasional care for a child, the mere presence of toys or other
signs indicating the presence of a child under age 6 would not be a
sufficient basis for deciding that the requirements of this proposal
apply.
In contrast, EPA does not believe that determining whether housing
is rental target housing presents the same level of difficulty for
renovators. Contractors are already responsible, under the TSCA section
402(a) regulations at 40 CFR part 745, subpart L, as well as under the
Pre-Renovation Education Rule, for determining whether a unit of
housing is target housing. This involves determining whether the
housing was built before 1978 and whether it is housing for the elderly
or housing for persons with disabilities. EPA believes that, in many
cases, it is obvious to the renovation firm that housing is target
housing, and it will be relatively easy to determine that the housing
is rental housing. Multi-unit buildings or multi-building complexes are
likely to be rental housing, unless the name of the property includes
the words ``condominium'' or ``co-operative.'' In any event, the
renovation firm remains ultimately responsible for making this
determination. It should be noted that, during the first stage of this
proposed rule, the renovation firm would be responsible for determining
whether the housing was built before 1960.
EPA requests comment on whether renovation firms should be able to
assume that no child under age 6 resides in owner-occupied housing. The
identification of the residences of children under age 6 could be
addressed in the same way that EPA is proposing to address children
with increased blood lead levels during the first phase of the rule's
applicability, discussed in Unit IV.B.1.a. If the renovation firm
determined that the renovation activities would occur in owner-
occupied housing, the firm could offer the owner-occupant the
opportunity to inform the firm that a child under age 6 resides in the
housing. If the owner-occupant did not provide the firm with any
information on children in residence, the firm could assume that no
child under age 6 resided in the housing, and the provisions of this
proposal would not apply. EPA does not prefer this approach because
children under age 6 could be put at risk unintentionally through mis-
directed mail, or a misunderstanding on the part of the owner-occupant
as to the information sought by the renovation firm.
d. Owner-occupied multi-unit housing. With respect to condominiums
and cooperatives, EPA requests comment on whether to require that all
renovations conducted in the common areas, such as hallways or
stairways, of multi-unit buildings, as well as renovations conducted on
the exteriors of such buildings, be conducted in accordance with the
proposed training, certification and work practice requirements,
regardless of whether the individual units are owner-occupied.
Currently, the proposal would allow all the owners of such multi-unit
owner-occupied buildings to certify that no children under age 6 reside
in the individual units, in which case renovators would not be required
to comply with the proposed work practice standards in common areas.
However, it is likely to be very difficult, if not impossible, to
secure the signatures of all of the owners of the individual units,
attesting to the fact that no child under age 6 resides in any of the
units of the building. If all of the owners do not so attest,
renovations in common areas would have to be conducted in accordance
with this proposal. The signatures of the building managers would not
be sufficient, because there may be children in residence that are
unknown to the building managers.
e. Owner-occupied target housing where a pregnant woman resides.
EPA also requests comment on the appropriateness of applying the
provisions of this rule to owner-occupied target housing where an
expectant mother resides, in addition to owner-occupied housing where a
child under age 6 resides. If this option were included in the rule,
and no children under age 6 resided in the housing to be renovated, the
renovation firm would not be required to use the work practices in this
proposal unless the renovation firm collected a statement from the
owner-occupant indicating that a woman residing in the housing was
pregnant or thought she might be pregnant. Fetuses exposed to lead in
the womb may be born prematurely and have lower birth weights. In
addition, the transplacental transfer of lead in humans is well
documented, and infants are generally born with a lead body burden
reflecting that of the mother (Ref. 4). Therefore, covering the
residences of pregnant women under this regulation would provide
additional protection for vulnerable populations. However, owner-
occupants, including expectant mothers, will be receiving a lead hazard
information pamphlet under the Pre-Renovation Education Rule that will
enable them to make educated choices about renovation activities in
their residences.
2. Other options considered. EPA considered a range of other
alternatives to defining the universe of housing that would be covered
by this regulation. The primary alternative EPA considered was a
single-staged regulation that would cover all renovations in rental
[[Page 1602]]
target housing and owner-occupied target housing where a child under
age 6 resides. This option is not preferred at this time. As discussed
in this section, EPA is proposing to phase in coverage of housing built
between 1960 and 1978 to allow time to develop an accurate, but simple
and inexpensive, means for determining whether the affected components
in a particular housing unit built within this time frame are free of
regulated lead-based paint (the determination whether a component is
lead-based paint free is discussed more fully in Unit IV.B.4.a.). EPA
solicits comment on this option.
EPA also considered a single-staged regulation that would cover all
renovations in rental target housing built before 1960 and owner-
occupied target housing built before 1960 where a child under age 6
resides. This option is not preferred at this time because 24% of the
target housing built between 1960 and 1978 contains lead-based paint. A
regulation that excludes those homes would not cover the residents of
those homes, particularly the children residing in those homes, from
potential lead-based paint hazards created by renovation activities. It
should be noted that the Phase I study, which demonstrated lead dust
loadings from renovation activities in target housing, did not
differentiate housing by age. The measured lead loadings in that study
represent an average. In the National Survey of Lead and Allergens in
Housing (Ref. 46), a paint lead loading exceeding 10 mg/cm2
was detected in 3% of the homes constructed between 1960 and 1978,
compared to 14% of the homes constructed between 1940 and 1959, and 55%
of the homes constructed before 1940. Further analysis of the data
found that, although there were fewer homes built between 1960 and 1978
that contained lead-based paint, the average lead concentration of
paint on windows and on exterior walls, doors, and trim was higher in
housing built between 1960 and 1978 than in housing built between 1950
and 1960 (Ref. 48). EPA's preferred option takes into account the fact
that most target housing built between 1960 and 1978 does not contain
lead-based paint by phasing in coverage of those homes after improved
test kits are expected to be available. EPA requests comment on the
option of limiting this proposal to housing built before 1960, and on
other options tied to the age of the housing and the likelihood that
the housing contains lead-based paint.
EPA also considered proposing a rule limited to the provision of
information and certification, training, and accreditation
requirements. The rationale for such a limited rule would be that
individuals, if provided information on the health effects of lead
exposure and renovation work practices that minimize leaded dust
creation and release, would be able to choose whether or not to request
that a firm performing a renovation use lead-safe work practices.
Individuals wishing to employ a renovation firm that would use lead-
safe work practices would be assured by the certification, training,
and accreditation provisions that a firm certified by EPA would employ
persons trained in the use of lead-safe work practices. This is not the
preferred option because EPA believes that a voluntary program of lead-
safe work practice compliance would not provide sufficient protection
from lead-based paint hazards created by renovation activities.
Nevertheless, the Agency invites comment on this option.
Finally, EPA considered covering all renovations in target housing
without providing an exclusion for target housing where children under
age 6 do not reside. A child under age 6 may spend a significant amount
of time in housing that is not his or her primary residence, for
example, in the home of a babysitter. In addition, a child that moved
into housing shortly after a renovation performed without lead-safe
work practices took place would be exposed to lead dust from the
renovation. This is not the preferred option at this time because the
proposed option provides a more focused targeting of resources on the
population most at risk. EPA specifically requests comment on applying
the requirements of this proposal without the exclusion for target
housing where children under age 6 do not reside.
3. Activities that would be covered. This proposal, like the Pre-
Renovation Education Rule, would only apply to persons who perform
renovations for compensation. This includes owners of rental property
and their employees, as well as paid employees of home improvement
companies, residential property management companies, State and local
government agencies, and non-profits. With regard to the renovation
activities that would be covered by this regulation, EPA is proposing
to cover the same universe of activities that is already regulated
under the Pre-Renovation Education Rule--essentially, activities that
modify an existing structure and that result in the disturbance of
painted surfaces. All types of repair, remodeling, modernization, and
weatherization projects would be covered, including projects performed
as part of another Federal, State, or local program, if the projects
meet the definition of ``renovation'' codified in 40 CFR 745.83. The
regulated community has had years of experience in applying this
definition, as well as the applicability provisions in 40 CFR 745.82.
EPA considered and requested public comment on various approaches
to defining the term ``renovation'' for the Pre-Renovation Education
Rule, including options modeled on a definition in the TSCA asbestos
regulations, the construction tasks identified by OSHA in its Lead in
Construction Standard, and by the use of Standard Industrial Codes (SIC
codes) as a means of defining the subject universe (Ref. 49). The
majority of the public comments EPA received in response to its
proposal involved the definition of this term. In response to the
public comments, EPA crafted a definition that borrows from other
sources but focuses on the activities of greatest concern to EPA,
activities that disturb lead-based paint (Ref. 23). This definition
also covers virtually all of the activities in the renovation and
remodeling study that created lead-based paint hazards. Conversely, EPA
does not believe that this definition is overbroad, i.e., it does not
capture a significant number of renovation activities that are not
capable of creating lead-based paint hazards. All of the activities
monitored in EPA's renovation and remodeling study which involved the
disturbance of lead-based paint created or could reasonably be
anticipated to create lead-based paint hazards. The study evaluated
common renovation activities likely to disturb lead-based paint,
including demolition of structures containing lead-based paint, removal
of fixtures containing lead-based paint (window replacement), sawing
and drilling into materials containing lead-based paint, and sanding
lead-based paint. Because all of these activities are capable of
creating lead-based paint hazards, a definition of ``renovation'' that
is primarily based on the disturbance of lead-based paint is well-
tailored to regulate the activities of concern.
As noted previously, the Phase I study excluded exterior siding
installation, wallpaper removal, and exterior soil disruption because
the study design team and the individuals consulted in the information-
gathering phase generally considered these target activities to be of
secondary importance. EPA has no quantitative information on the lead
dust loadings generated during such activities in target housing.
However, to the extent that these activities disturb paint, these
activities would be covered by this proposal.
[[Page 1603]]
Conversely, the Phase I study did include HVAC duct work, but it is
possible that, in some cases, this work would not involve the
disturbance of paint, and would, therefore, not be covered by this
proposal. EPA requests comment on whether exterior siding projects,
wallpaper removal, and exterior soil disruption or other activities
should be excluded from this proposal or whether HVAC duct work should
be specifically included. EPA is particularly interested in any data
regarding the lead loadings generated by these activities that would
support their exclusion or inclusion, and other activities that should
be considered in the same manner.
The panel convened by EPA pursuant to the Regulatory Flexibility
Act recommended that the Agency consider exempting certain specialty
contractors (e.g., plumbing, electrical) from the rule. More
information on this panel and its recommendations can be found in Unit
VIII.C.6.e. EPA is not proposing to exempt such work per se, but
requests comment on whether any category of specialty contractor should
be excluded from this proposal, along with data that would support the
exclusion of a particular category of contractor.
In some circumstances, a renovation, as that term is defined in
this proposal, may constitute only a portion of a larger residential
renovation and remodeling project. The certification, training, and
work practice elements of this proposal would only be applicable during
the portion of a project that involves the disturbance of painted
surfaces. For example, adding a room to an existing home may require
the demolition of an existing wall to provide access to the room. In
this case, the only portion of the project that involves disturbing
painted surfaces may be the demolition of the existing wall. A
certified firm and a certified individual would be needed to establish
the required work area, demolish the wall, perform the required clean-
up, and verify that the area has been properly cleaned. If the
remainder of the project, the construction of the new room, does not
involve the disturbance of existing painted surfaces, then the
requirements of this proposal would not apply to that portion of the
project. Painters who disturb a large area of painted surface with
surface preparation activities, such as sanding, would be performing a
regulated renovation under this proposal. Merely painting prepared
surfaces does not generally disturb existing paint, so a painter who
prepares surfaces by sanding and then paints the prepared surfaces
would be able to choose whether to perform required cleaning and
cleaning verification activities before or after the prepared surface
is painted.
4. Exceptions--a. Components free of regulated lead-based paint.
EPA is proposing to continue to exempt renovations that only affect
painted components that have been determined, by a certified inspector
or risk assessor, to be free of paint or other surface coatings that
contain lead equal to or in excess of 1.0 mg/cm2 or 0.5% by
weight. This determination may be made as part of a lead-based paint
inspection of an entire housing unit or building, or on a component-by-
component basis.
EPA is also proposing to exempt renovations that only affect
painted components that have been demonstrated to be free of regulated
lead-based paint through the use of an EPA-recognized test kit by a
certified renovator. EPA intends to recognize those test kits that have
a very low probability of false negative responses, because an
incorrect negative result may lead to the creation of lead-based paint
hazards through uncontrolled renovation activities. More specifically,
for paint containing lead at or above the regulated level, 1.0 mg/
cm2 or 0.5% by weight, EPA intends to recognize kits that
have a demonstrated probability (with 95% confidence) of a negative
response less than or equal to 5% of the time. In addition, as soon as
the improved test kits discussed in Unit IV.B.1. are generally
available, EPA intends to recognize only those test kits that have a
demonstrated probability of a false positive response of no more than
10% to lead in paint at levels below the regulated level. EPA believes
that limiting recognition to kits that result in a relatively-low rate
of false positives would benefit the consumer by reducing the number of
times that the training and work practice requirements of this
regulation are followed in the absence of regulated lead-based paint.
These performance parameters would have to be validated by a laboratory
independent of the kit manufacturer, using ASTM International's E1828,
Standard Practice for Evaluating the Performance Characteristics of
Qualitative Chemical Spot Test Kits for Lead in Paint (Ref. 50) or an
equivalent validation method. The instructions for use of any
particular kit would have to conform to the results of the validation,
and the certified renovator must follow the manufacturer's instructions
when using the kit. EPA requests comment on whether these standards are
reasonably achievable and sufficiently protective. EPA is also
soliciting suggestions on how to conduct the kit recognition process.
As required by the Pre-Renovation Education Rule, if the renovation
firm relies on a determination by a certified inspector or risk
assessor that affected components are free of paint or other surface
coatings that contain lead equal to or in excess of 1.0 mg/
cm2 or 0.5% by weight, the renovation firm must obtain a
copy of the written determination before the renovation begins and keep
it for no less than 3 years from the date the renovation is completed.
If a test kit is used, the renovation firm must keep records
documenting the use of the kit, including the name of the kit, who used
the kit, and the results, for no less than 3 years from the completion
date of the renovation.
To assist renovation firms in determining whether a particular
project is eligible for this exception, EPA is proposing to
incorporate, in 40 CFR 745.83, the definition of the term ``component
or building component'' from 40 CFR 745.223.
b. Minor maintenance. This regulation would also retain the Pre-
Renovation Education Rule exception in 40 CFR 745.82(a)(1) for minor
maintenance activities that disturb 2 ft2 or less of painted
surface per component. As discussed in the preamble to the final Pre-
Renovation Education Rule, this exception was primarily designed as a
means for distinguishing between renovation activities and routine
maintenance activities (Ref. 23, p. 29911). Because this exception for
small surface area disturbances has acted as a surrogate for routine
maintenance activities in the Pre-Renovation Education Rule, EPA is
proposing to apply this exception to the requirements of this
regulation.
The stakeholders participating in the various meetings EPA has held
on renovation issues have had varying opinions of this exception. In
general, property owners and managers favored this exception because it
would remove routine, minor maintenance activities from the scope of
the rule. Renovation firms thought it would have little impact on the
jobs that they typically do. Advocacy organizations did not favor this
exception because small projects can also create lead-based paint
hazards. EPA requests additional comment on the appropriateness of this
exception as a surrogate for routine building maintenance activities,
and suggestions for alternate or additional surrogates.
Although EPA believes that increasing the size of the exception
from 2 ft2 to 5 or 10 ft2 would reduce the number
of renovations covered by this proposed rule, EPA does not have enough
[[Page 1604]]
information to estimate the number of renovations that would be
affected by such a change. EPA is concerned that increasing the size of
the exception, particularly for interior projects, would reduce the
protections against lead-based paint hazards offered by this proposal.
In addition, increasing the exception size would make this proposal
inconsistent with the Pre-Renovation Education Rule and likely cause
confusion among the regulated community, because renovation firms have
been implementing the 2 ft2 exception for a number of years.
Finally, HUD's Lead Safe Housing Rule, at 20 CFR 35.1350(d),
includes ``de minimis'' levels of 2 ft2 per room for
interior projects and 20 ft2 on exterior surfaces. If less
than this amount of painted surface is disturbed, HUD's lead-safe work
practice requirements do not apply. EPA's lead-based paint abatement
regulations also use these as small project exceptions, at 40 CFR
745.65(d). EPA requests comment on incorporating these size limitations
into this proposal and is particularly interested in any data regarding
the number of renovations that would be affected by a change in the
mirror maintenance exception and any data that would support a change
in this exception.
c. Emergency projects. EPA is proposing to retain the emergency
project exception of the existing Pre-Renovation Education Rule. Under
that exception, renovators are not required to provide a lead hazard
information pamphlet to owners and occupants of target housing that is
undergoing emergency renovation operations. In general, stakeholders
participating in EPA's renovation meetings favored an exception for
emergency projects. This proposal would retain that exception, but
would require that the emergency renovation operations be performed in
compliance with the work practice standards to the extent practicable.
EPA is proposing to modify the language of the exception to clarify
that interim control projects performed on an expedited basis in
response to an elevated blood lead level finding in a resident child
qualify for the emergency project exemption from the Pre-Renovation
Education Rule requirements. The term ``interim controls,'' defined in
40 CFR 745.83 of the proposal, means measures designed to temporarily
reduce exposure to lead-based paint hazards. Some interim control
projects, such as the repair of damaged areas of paint, are renovations
as defined in 40 CFR 745.83, and are subject to the Pre-Renovation
Education Rule and would also be covered by this proposed regulation.
Others, such as specialized cleaning, may not involve the disturbance
of paint, and would therefore not be covered by either regulation.
EPA is concerned that local public health organizations may be
delayed in responding to a lead-poisoned child if the owner of the
building where the child resides is not available to acknowledge
receipt of the PYF pamphlet before an interim control project begins.
The Pre- Renovation Education Rule allows persons performing
renovations to mail a copy of the pamphlet to the owner, but the
mailing must occur at least 7 days before the project begins. Exempting
these types of projects from the Pre-Renovation Education Rule would
enable public health organizations to begin responding to an elevated
blood-lead level immediately, without significantly affecting the flow
of information to the population at risk. Organizations that intervene
in these cases typically provide a great deal of lead-based paint
hazard information to the family of the lead-poisoned child. EPA is
proposing to limit this provision of the emergency project exception to
interim control projects that are performed as a direct response to a
lead-poisoned child. EPA requests comment on whether a time limit
should be placed on projects qualifying for this exception, whether
only projects performed within a certain amount of time after a lead-
poisoned child has been identified should be exempt, and, if so, what
period of time would be adequate for these purposes.
EPA also understands that there may be emergency situations where
compliance with the training, certification, and work practice
requirements of this proposal is not practicable. In general, the
proposed phase-in period for the regulatory requirements proposed in
Sec. 745.81 should be more than sufficient to allow enough persons to
be trained and certified to provide an adequate supply of certified
entities available for emergency renovation operations. An important
reason for creating the emergency exception to the Pre-Renovation
Education Rule was to allow property managers to respond quickly to
problems such as a broken water pipe in an apartment even if the
occupant is away from the premises. EPA anticipates that most property
management companies who do their own maintenance will find it
advantageous to have a trained and certified renovator on staff to
perform renovations, so there should be no reason why these entities
would not be able to comply with the training and certification
requirements on all renovations. Likewise, EPA knows of no reason why
firms performing emergency renovation operations would not be able to
follow the clean-up procedures specified in this proposal after
emergency repairs have been made. In fact, in the vast majority of
cases, persons performing emergency renovation projects should be able
to comply with all of the work practice requirements of this proposal.
However, because there may be situations where it is not feasible to
post warning signs or contain the work area before responding to the
emergency, EPA is proposing to add a statement to the section
describing this exemption to make it clear that the work practice
requirements, the recordkeeping requirements, and the training and
certification requirements in proposed Sec. Sec. 745.85, 745.86,
745.89, and 745.90 apply to the extent practicable.
C. Training, Certification, and Accreditation
Under the regulations at 40 CFR part 745, subpart L, both
individuals and firms that perform lead-based paint inspections, lead
hazard screens, risk assessments, and abatements must be certified by
EPA. EPA is proposing a similar, but not identical, regulatory scheme
for individuals and firms that perform renovations.
EPA is proposing to require that all renovations regulated by this
rule be performed by a firm certified to perform renovations and
directed by a certified renovator. Although not required by the
proposed rule, if dust sampling were performed, it would also have to
be performed by a certified dust sampling technician, inspector, or
risk assessor on behalf of a certified firm. In order to become a
certified renovator, a person would have to either possess
certification as a lead-based paint abatement supervisor or worker, or
take an accredited renovator course. In order to perform dust sampling,
a person would have to possess certification as a lead-based paint
inspector or risk assessor, or take an accredited dust sampling
technician course. Certification based on a dust sampling technician
course would qualify the individual to conduct dust sampling as part of
a renovation, but not as part of a lead-based paint activity under 40
CFR part 745, subpart L. EPA renovator or dust sampling technician
certification would allow the certified individual to perform
renovations or dust sampling in any State or Indian Tribal area that
does not have a renovation program authorized under 40 CFR part 745,
[[Page 1605]]
subpart Q. Each of these requirements is discussed in greater detail in
the following sections.
1. Firms--a. Firm responsibilities. Proposed Sec. 745.89(d)
describes the responsibilities of firms performing renovations or dust
sampling. These firms must ensure that all persons performing
renovation activities on behalf of the firm are either certified
renovators or have been trained and are directed by a certified
renovator in accordance with proposed Sec. 745.90. Firms must also
ensure that all persons performing dust sampling on behalf of the firm
are certified as either risk assessors, inspectors, or dust sampling
technicians. The firm is responsible for assigning a certified
renovator to each renovation performed by the firm and ensuring that
the certified renovator discharges all of the responsibilities
identified in proposed Sec. 745.90. The firm is also responsible for
ensuring that all renovations performed by the firm are performed in
accordance with the work practice standards in proposed Sec. 745.85.
Finally, EPA is proposing to amend Sec. 745.86 to require a firm to
retain and make available to EPA all records necessary to demonstrate
compliance with the provisions of this proposal. These records would
have to include copies of training certificates for certified
renovators and dust sampling technicians used on projects, along with
signed and dated descriptions of how worker training activities, sign
posting, work area containment, waste handling, cleaning, and post-
renovation cleaning verification or clearance were conducted in
compliance with this subpart. These descriptions must include a
certification by the record preparer that the descriptions are complete
and accurate. To assist firms in complying with these recordkeeping
requirements, EPA has developed a simple form that firms could use to
ensure that they are maintaining all of the necessary records (Ref.
51). Use of this form would not be mandatory, firms could keep the
required records in any manner that they choose. EPA requests comment
on the utility and practicality of the sample recordkeeping form, which
EPA would make available on its internet site and from the National
Lead Information Center. EPA also requests comment on the recordkeeping
requirements in general, as well as information on the business records
typically kept by renovation firms that could be used to demonstrate
compliance with the training, certification, and work practice
requirements of this proposal.
When multiple contractors are involved in a renovation, any
contractor who disturbs, or whose employees disturb, paint in excess of
the minor projects exception would be responsible for compliance with
all of the requirements of the Pre-Renovation Education Rule and this
proposal. In this situation, renovation firms may find it advantageous
to decide among themselves which firm will be responsible for providing
pre-renovation education to the owners and occupants, which firm will
establish containment, and which firm will perform the post-renovation
cleaning and cleaning verification. For example, a general contractor
may be hired to conduct a multi-faceted project involving the large-
scale disturbance of paint, which the general contractor then divides
up among several subcontractors. In this situation, having the general
contractor discharge the obligations of the Pre-Renovation Education
Rule is likely to be the most efficient approach, since this only needs
to be done once. The general contractor can then provide the
subcontractors with copies of the signed acknowledgment form or proof
of mailing. With regard to containment, the general contractor may
decide that it is most cost-effective to establish one large work area
for the entire project. In this case, from the time that containment is
established until post-renovation cleaning verification occurs, all
general contractor and subcontractor personnel performing renovation
tasks within the work area would have to be certified renovators or
trained and directed by certified renovators in accordance with this
proposal. In addition, these personnel would be responsible for
ensuring the integrity of the containment barriers. The cleaning and
post-renovation cleaning verification could be performed by any
properly qualified individuals, without regard to whether they are
employees of the general contractor or a subcontractor. However, all
contractors involved in the disturbance of lead-based paint, or who
perform work within the work area established for the containment of
lead dust and debris, would be responsible for compliance with this
proposal, regardless of any agreements the contractors may have made
among themselves.
EPA considered requiring renovation firms to provide notification
to EPA before commencing a renovation activity, in the same way that
abatement firms are currently required by 40 CFR 745.227(e)(4) to
notify EPA before commencing an abatement. This is not the preferred
option at this time because EPA believes that it would be unduly
burdensome for renovation firms, given the large number of renovations
that EPA estimates would be subject to this proposed regulation
annually. In addition, the processing of notifications would require a
significant resource commitment on EPA's part. However, notification
could improve EPA's ability to monitor compliance with work practice
requirements while renovations are ongoing. EPA requests comment on
whether notifications should be required for all renovation projects,
or whether they should be required for a subset of regulated
renovations, such as large-scale projects, projects in rental
properties, or projects in housing built before 1940. Suggestions for
how these categories could be identified are also requested. In
addition, EPA requests comment on whether a notification requirement
should be phased in over time, to allow the regulated community and EPA
to evaluate the effectiveness and the feasibility of such a
requirement.
b. Initial certification. Firms that perform renovations covered by
this proposal would have to be certified by EPA. EPA is proposing to
add a definition of ``firm'' to 40 CFR 745.83 to make it clear that
this term includes persons in business for themselves, i.e., sole
proprietorships, as well as Federal, State, Tribal, and local
governmental agencies, and nonprofit organizations. Firms covered by
this proposal include firms that typically perform renovations, such as
building contractors or home improvement contractors, as well as
property management companies or owners of multi-family housing
performing property maintenance activities that include renovations
within the scope of this proposal.
EPA is proposing to use a process for certifying firms to perform
renovations that is similar to the process currently used to certify
firms to perform lead-based paint activities, such as inspections or
abatements, that are regulated by 40 CFR part 745, subpart L. This
proposal provides information about the certification and re-
certification process, establishes procedures for amending and
transferring certifications, and identifies clear deadlines.
Under proposed Sec. 745.89(a), a firm wishing to become certified
to perform renovations would submit a complete ``Application for
Firms,'' signed by an authorized agent of the firm, along with the
correct certification fee. EPA intends to establish firm certification
fees in a separate rulemaking.
Proposed Sec. 745.89(a) also sets out EPA's possible responses to
a firm certification application and gives the reasons why EPA would
choose a
[[Page 1606]]
particular response. Under this proposal, EPA would approve a firm's
initial application within 90 days of receipt if it is complete,
including the proper amount of fees, and if EPA determines that the
environmental compliance history of the firm, its principals, or its
key employees does not show an unwillingness or inability to comply
with applicable environmental statutes or regulations. If the
application is approved, EPA proposes to follow the current practice
under 40 CFR part 745, subpart L, of establishing the firm's
certification expiration date at 3 years from the date of EPA's
approval. EPA certification would allow the firm to perform renovations
covered by this section in any State or Indian Tribal area that does
not have a renovation program authorized under 40 CFR part 745, subpart
Q. If the application was incomplete, EPA would notify the firm within
90 days of receipt that its application was incomplete, and ask the
firm to supplement its application within 30 days. If the firm did not
supplement its application within that period of time, or if EPA's
check into the compliance history of the firm revealed an unwillingness
or inability to comply with environmental statutes or regulations, EPA
would not approve the application and would provide the applicant with
the reasons for not approving the application. EPA would not refund the
application fees. A firm could reapply for certification at any time by
filing a new, complete application that included the correct amount of
fees.
c. Re-certification. Under proposed Sec. 745.89(b), a certified
firm would maintain its certification by submitting a complete and
timely ``Application for Firms,'' noting that it is an application for
re-certification, and paying the required re-certification fee. With
regard to the timeliness of the application for re-certification, EPA
is proposing that if a complete application, including the proper fee,
is postmarked 90 days or more before the date the firm's current
certification expires, the application would be considered timely and
sufficient, and the firm's existing certification would remain in
effect until its expiration date or until EPA had made a final decision
to approve the re-certification application, or not, whichever occurred
later. If the firm submitted a complete re-certification application
fewer than 90 days before the date the firm's current certification
expired, EPA might be able to process the application and re-certify
the applicant before the expiration date, but this would not be
guaranteed. If EPA did not approve the re-certification application
before the existing application expired, the firm's certification would
expire and the firm would not be able to conduct renovations until EPA
approved its re- certification application. In any case, the firm's new
certification expiration date would be 3 years from the date the
existing certification expired.
If the firm submitted an incomplete application for re-
certification, and EPA had not received all of the required information
and fees before the date the firm's current certification expired, or
if the firm did not submit its application until after its
certification expired, EPA would not approve the firm's re-
certification application. The firm could not cure any deficiencies in
its application package by postmarking missing information or fees by
its certification expiration date. All required information and fees
would have to be in EPA's possession as of the expiration date for EPA
to approve the application. If EPA did not approve the application, the
Agency would provide the applicant with the reasons for not approving
the re-certification application. Any fees submitted by the applicant
would not be refunded, but the firm could submit a new application for
certification, along with the correct amount of fees, at any time.
As with initial applications, this proposal includes a description
of the actions EPA may take in response to an application for re-
certification and the reasons why EPA would take a particular action.
This section is identical to the proposed process for initial
applications, except that EPA will not require an incomplete
application to be supplemented within 30 days of the date EPA requests
additional information or fees. In the re-certification context, as
described in the preceding paragraph, the firm must make its
application complete by the date that its current certification
expires. There is no compelling reason to establish another deadline
for making an incomplete application complete.
d. Amendments. Proposed Sec. 745.89(c) would require that a firm
amend its certification within 45 days whenever a change occurred to
information included in the firm's most recent application. If the firm
failed to amend its certification within 45 days of the date the change
occurred, the firm would not be authorized to perform renovations until
its certification was amended. 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 would be required to submit an application, noting on the form
that it was submitted as an amendment. The firm would be required to
complete the sections of the application pertaining to the new
information, and sign and date the form. The amendment would have to
include the correct amount of fees. Amending a certification would not
affect the validity of the existing certification or extend the
certification expiration date. EPA would issue the firm a new
certificate if necessary to reflect information included in the
amendment. Firm certifications are not transferable--if the firm is
sold, the new owner must submit a new initial application for
certification in accordance with Sec. 745.89(a).
e. Suspension, revocation, or modification of certification. EPA is
also proposing, in Sec. 745.91, procedures for suspending, revoking,
or modifying a firm's certification. These procedures are identical to
the current procedures in place for suspending, revoking, or modifying
the certification of a firm that is certified to perform lead-based
paint activities.
2. Individuals--a. Renovators and workers. EPA is proposing to
establish a new individual certification discipline for renovators. All
renovation activities covered by this proposal would have to be
performed by certified renovators, or by persons who have received on-
the-job training in lead-safe work practices from certified renovators.
The certified renovator assigned to a renovation would be responsible
for ensuring that the renovation is performed in compliance with the
work practice requirements of this proposal.
Under the proposal, a certified renovator must:
Perform the post-renovation cleaning verification
described in proposed Sec. 745.85(b).
Perform or direct uncertified workers who perform all of
the work practices described in proposed Sec. 745.85(a).
Provide training to uncertified workers on the lead-safe
work practices they will be using in performing their assigned tasks,
how to isolate the work area and maintain the integrity of the
containment barriers, and how to avoid spreading lead contamination
beyond the work area.
Be physically present at the work site when the signs
required by proposed Sec. 745.85(a)(1) are posted, while the work area
containment required by proposed Sec. 745.85(a)(2) is being
established, and while the work area cleaning required by proposed
Sec. 745.85(a)(4) is performed.
[[Page 1607]]
Regularly direct the work being performed by uncertified
persons to ensure that lead-safe work practices are being followed, the
integrity of the containment barriers is maintained, and dust or debris
is not spread beyond the work area.
Be available, either on-site or by telephone, at all times
that renovations are being conducted.
Have with them at the work site copies of their initial
course completion certificate and their most recent refresher course
completion certificate.
In order to use the term ``renovator'' to cover the new proposed
certified discipline, EPA is proposing to revise the definition of the
term in 40 CFR 745.83 to describe what a renovator is and how a
renovator becomes certified. EPA is also proposing to modify the
existing Pre-Renovation Education Rule requirements to replace the word
``renovator'' with a reference to the firm performing the renovation
wherever the term appears. This is not intended to change the
requirements of the Pre-Renovation Education Rule in any significant
way. The effect of this change is to make it clear that any person
associated with the firm performing the renovation, not necessarily the
certified renovator, may handle the firm's pre-renovation education
responsibilities.
This proposal would not require everyone involved in performing a
regulated renovation project to be a certified renovator. To allow
maximum flexibility for firms undertaking these projects, EPA is
proposing to allow these firms to use uncertified workers to perform
renovation activities as long as they receive on-the-job training in
lead-safe work practices from a certified renovator. This training must
include instruction in the specific lead-safe work practices that these
workers will be responsible for performing. To ensure that renovations
are performed safely, this proposal would require a certified renovator
to be at the work site during critical phases of the renovation
activity to perform or direct uncertified workers who perform tasks
directly related to protecting homeowners and occupants from the
hazards of lead dust. These tasks include posting warning signs,
containing the work area, and cleaning the work site. The proposed
post-renovation cleaning verification requirements would have to be
performed by a certified renovator, they could not be delegated to an
uncertified worker.
In addition, while the renovation project is ongoing, a certified
renovator would have to be present at the work site on a regular basis
in order to ensure that the uncertified workers are observing lead-safe
work practices and maintaining the integrity of the systems employed to
contain lead dust. When a certified renovator is not physically present
at the work site, the uncertified workers must be able to contact the
renovator immediately by telephone or other mechanism. Because these
workers would be allowed to work without formal training in protecting
children and other building occupants (OSHA requires these workers,
like all construction workers, to receive training in protecting
themselves and other workers from job hazards including lead), EPA
believes that the kind of limited supervision envisioned by OSHA's
competent person requirements or the EPA regulations pertaining to
lead-based paint abatement supervisors is not sufficient in this
situation. A walk around the job site once every shift is not enough to
ensure that the uncertified workers are following lead-safe work
practices at all times.
EPA realizes that there may be other ways to achieve the goal of
maximizing flexibility for renovation firms while ensuring that all
persons involved in performing renovations have sufficient training and
oversight to perform their tasks in a safe manner. An option EPA
considered was a requirement that a certified renovator be physically
present at the work site at all times while regulated renovation
activities are ongoing. EPA believes that this approach would provide
less flexibility for renovation firms, but requests comment on whether
that is actually the case, and whether this approach would
significantly improve the quality of the work performed by uncertified
workers.
Another way to provide flexibility for firms would be to prohibit
certified renovators from being assigned to more than one job at a
time, while not specifying when a certified renovator must be present
during renovations, except that only a certified renovator would be
permitted to perform the post-renovation cleaning verification step.
EPA requests comment on whether this approach would provide flexibility
and decrease costs for renovation firms without also decreasing the
amount of protection provided by these proposed regulations. Regardless
of the approach used, EPA anticipates that most renovation contractors
and property management companies will find that they achieve maximum
efficiency and flexibility by qualifying all of their permanent
employees who perform renovations as certified renovators.
EPA considered an individual certification scheme similar to that
established for lead-based paint abatement activities, with a certified
supervisor and certified workers. EPA does not prefer this option
primarily because of the differences between renovation projects and
abatement projects. All abatement projects have the same purpose--to
permanently eliminate lead-based paint hazards. Renovation projects
that involve the disturbance of paint are performed for many different
reasons, using many different techniques. As a result, the training
required by EPA for renovators is necessarily limited to the common
elements of interest to EPA, which are the methods that a renovator can
use to limit the creation of lead dust, prevent it from spreading to
other parts of the dwelling, and properly clean it up afterwards. The
containment and clean-up methods that would be required by this
regulation are easy to understand and simple to use. A certified
renovator who has received accredited training in these subjects should
be able to communicate the principles of lead-safe renovation to others
with very little difficulty. In addition, during the SBREFA panel
process, discussed in greater detail in Unit VIII.C., the regulated
community expressed concern over training requirements, given the level
of employee turnover in the industry. Requiring certified renovators,
but allowing firms to use uncertified workers where necessary, is an
attempt to address this concern while still ensuring that everyone who
performs regulated renovations understands how to follow lead-safe work
practices.
b. Dust sampling technicians. In 1999, in order to make accurate
dust testing for lead more available and affordable, Congress provided
EPA with funding for the development of a 1-day dust sampling
technician course. Congress also encouraged the Agency to promote the
recognition of this discipline. EPA completed the development of the
course, entitled ``Lead Sampling Technician Training Course,'' in July
of 2000. This course provides instruction on how to conduct a visual
assessment for deteriorated paint, collect samples for lead dust, and
interpret sample results.
As discussed in Unit IV.E., some renovators or homeowners may
choose to perform dust clearance testing at the completion of
renovation activities instead of the post-renovation cleaning process
that EPA is proposing. Dust clearance testing after abatements must be
performed by a certified inspector or risk assessor in accordance with
the procedures set forth in 40 CFR 745.227(e)(8). If dust clearance
testing is to be performed after a renovation, it would also have to be
performed as
[[Page 1608]]
directed in Sec. 745.227(e)(8), but EPA is also proposing to allow
certified dust sampling technicians to perform the testing. This
proposal includes training and certification requirements for the dust
sampling technician discipline to help ensure the quality of initial
training, provide for periodic refresher training to keep dust sampling
technicians up to date regarding current regulatory and technical
protocols, and assist the public in the identification of qualified
individuals. Dust sampling technicians would not be subject to any
additional education or experience requirements beyond completion of an
accredited dust sampling technician course, nor would they be required
to pass a third-party certification examination. As with the other
certified disciplines, dust sampling technicians would be required to
obtain re-certification every 3 years.
EPA has determined that accredited dust sampling technicians would
be qualified to perform the work described in this Unit for renovations
because the training curriculum provides clearance sampling instruction
that is equivalent to that presented in inspector and risk assessor
courses, in terms of time and quality.
A certified dust sampling technician is responsible for collecting
dust samples, sending them to an EPA-recognized laboratory, and
comparing the results to the clearance levels in accordance with 40 CFR
745.227(e)(8). The certified dust sampling technician must also have
with them at the work site copies of their initial course completion
certificate and their most recent refresher course completion
certificate.
c. Initial certification. Proposed Sec. 745.90 addresses renovator
and dust sampling technician certification. To become a certified
renovator, a person would have to successfully complete a renovator
course that has been accredited by EPA or by a State, Territorial, or
Tribal program authorized by EPA under 40 CFR part 745, subpart Q. The
renovator course accreditation requirements are based on the joint EPA-
HUD model curriculum entitled Lead Safety for Remodeling, Repair, &
Painting. More information on the development of this curriculum and
the accreditation of renovator and dust sampling technician courses can
be found in Unit IV.D. The renovator course primarily covers how to
isolate and contain renovation projects so that leaded dust does not
escape, how to minimize the creation of leaded dust, and how to
properly clean up after a renovation project so that lead-based paint
hazards are not left behind. EPA is not proposing to require additional
education or work experience of persons wishing to become certified
renovators.
To become a certified dust sampling technician, a person would have
to successfully complete a dust sampling technician training course
that has been accredited either by EPA or by a State, Territorial, or
Tribal program authorized by EPA under 40 CFR part 745, subpart Q. The
dust sampling technician course primarily covers dust sampling
methodologies and clearance standards and testing. EPA is not proposing
to require additional education or work experience of persons wishing
to become certified dust sampling technicians.
EPA renovator certification would allow the certified individual to
perform renovations covered by this section in any State or Indian
Tribal area that does not have a renovation program authorized under 40
CFR part 745, subpart Q. EPA dust sampling technician certification
would allow the certified individual to perform dust sampling covered
by this section in any State or Indian Tribal area that does not have a
renovation program authorized under 40 CFR part 745, subpart Q.
Because EPA is not proposing any additional education or work
experience requirements, or a third-party examination similar to that
taken by inspector, risk assessor, or supervisor candidates, EPA
believes that there is little value in requiring candidates to apply to
EPA to receive their renovator or dust sampling technician
certification. Currently, the only certified discipline without
prerequisites in education or experience, or a third-party examination,
is the abatement worker. When candidates for worker certification apply
to EPA, EPA verifies that the copy of the training course certificate
submitted with the application is from an accredited training provider.
Without requiring renovators or dust sampling technicians to apply to
EPA for certification, under this proposal EPA would still receive
course completion information from course providers. With this
information, under the proposal EPA would be able to check to see if a
particular course completion certificate holder appeared on a course
completion list submitted by the training course provider identified on
the certificate. When EPA inspects a renovation job for compliance with
these proposed regulations, EPA will have the ability to verify, to the
same extent, the validity of a course completion certificate held by a
renovator or dust sampling technician at that job. Therefore, EPA is
proposing that a course completion certificate from an accredited
training provider serve as a renovator's or dust sampling technician's
certification. To facilitate compliance monitoring, EPA would require a
certified renovator or dust sampling technician to have a copy of the
course completion certificate at the job site.
EPA also considered alternatives such as requiring renovator and
dust sampling technician candidates to apply to EPA for certification,
following the same procedures established for worker certification in
40 CFR 745.226. EPA also considered requiring a third-party examination
for persons wishing to become certified renovator or dust sampling
technicians. A third-party examination would be an additional check on
the adequacy of the training courses being offered, as well as an
independent assessment of how well a particular candidate retained the
information presented. On the other hand, a third-party examination
would significantly increase the burden of administration and the
expense of complying with these proposed regulations. EPA requests
comment on these options, as well as EPA's assessment of the costs and
burdens of these options.
d. Re-certification. EPA is proposing to require that renovators
and dust sampling technicians who wish to remain certified take
refresher training every 3 years. This is consistent with the existing
re-certification interval for firms and for certified individuals under
40 CFR 745.226. In addition, EPA is proposing to require that the
refresher training course be half the length of the initial course.
This is also consistent with current practice for certified individuals
performing lead-based paint activities. If an individual does not take
a refresher course within 3 years of the date he or she completed the
initial course or the previous refresher course, that individual's
certification will expire on that date and that individual may no
longer serve as a certified renovator or dust sampling technician on a
renovation project regulated by this proposal. There would be no grace
period. To become certified again, the individual would have to take
another initial training course.
EPA also considered an alternative of requiring certified
renovators to re-take the initial renovator course every 3 years. The
primary advantage to such an approach is that, eventually, renovator
course attendees would be a combination of experienced renovators and
persons new to the field. This would allow the experienced persons to
share helpful tips and lessons learned
[[Page 1609]]
with others and could have a positive impact on the overall quality of
the training delivered. On the other hand, longer training requirements
mean increased costs for the regulated community. In addition, with the
preferred option, certified renovators would always be permitted to
substitute an initial renovator course for a refresher course to allow
maximum flexibility, particularly if for some reason the person was
unable to attend a refresher course. EPA requests comment on this
option on whether 3 years is an appropriate interval for refresher
training, and whether refresher training should be required at all.
e. Individuals certified to perform lead-based paint activities.
EPA is also proposing to allow individuals who are or who become
certified lead-based paint abatement supervisors or workers to act as
certified renovators. These persons would have to possess a current and
valid certification from EPA or an EPA-authorized State, Territorial,
or Tribal lead-based paint program. EPA has determined that the
training taken by candidates for supervisor or worker certification
meets or exceeds the proposed training requirements for renovators with
respect to many of the requirements of this proposal. Both disciplines
must receive training in lead-based paint hazard recognition and
control, as well as dust abatement and clean-up. However, the proposed
post-renovation cleaning verification process, discussed in Unit IV.E.,
and the use of test kits for paint testing is not currently being
taught in abatement supervisor or worker courses. EPA plans to develop
guidance documents on these processes, and amend the model curriculum
to cover them. EPA requests comment on whether an effective guidance
document would be sufficient to familiarize abatement supervisors and
workers with performing post-renovation cleaning verification and using
paint test kits, or whether another approach, such as requiring
certified supervisors or workers to take a renovator refresher course,
would allow the regulated community to make use of the workforce
already trained in lead-based paint hazard control, while ensuring that
this workforce understands how to perform the post-renovation cleaning
verification requirements and use test kits to test for lead-based
paint.
Persons who are or who become certified lead-based paint inspectors
or risk assessors based on a certification issued either by EPA under
40 CFR 745.226 or by an authorized State or Tribal program would be
deemed under the proposal to be certified dust sampling technicians.
Certified inspectors and risk assessors are qualified to perform dust
sampling as part of lead hazard screens, risk assessments, or
abatements. This rule would also allow them to perform dust sampling
after renovation activities.
f. Persons who have previously taken a course in Lead Safe Work
Practices or a Dust Sampling Technician course. For the purposes of
HUD's Lead Safe Housing Rule, many individuals have already taken HUD-
approved training in lead-safe work practices. In addition, many
individuals have taken a dust sampling technician course based on the
model developed by EPA. EPA is specifically requesting comment on
whether a streamlined certification process would be appropriate for
these individuals. For example, in promulgating the lead-based paint
activities certification requirements at 40 CFR 745.226, EPA allowed
persons who had previously taken worker training to become certified by
EPA as abatement workers without taking an accredited initial lead-
based paint worker course. Individuals could become certified as
workers by demonstrating that they had completed training (including
on-the-job training) in the conduct of lead-based paint activities and
completing an accredited worker refresher course. This option was only
available for a limited time. A similar process could be used for
individuals who have already taken lead-safe work practices training
and who wish to become certified renovators, or individuals who have
taken a dust sampling technician course and who wish to become
certified dust sampling technicians.
g. Suspension, revocation, or modification of certification. EPA is
also proposing, in Sec. 745.89, procedures for suspending, revoking,
or modifying an individual's certification. These procedures are
identical to the current procedures in place for suspending, revoking,
or modifying the certification of an individual who is certified to
perform lead-based paint activities. However, EPA has added a sentence
to this provision to make it clear that renovator certification could
be suspended, revoked, or modified if the renovator does not ensure
that projects to which he or she is assigned are conducted in
accordance with the work practice requirements in this proposal.
3. Training providers. EPA is proposing to amend the general
accreditation requirements of 40 CFR 745.225 to apply to training
programs that offer renovator or dust sampling technician courses for
certification purposes. The regulations describe training program
qualifications, quality control measures, recordkeeping and reporting
requirements, as well as suspension, revocation, and modification
procedures. Proposed amendments to Sec. 745.225 would add specific
requirements for the renovator and dust sampling technician
disciplines. This proposal introduces minimum training curriculum,
training hour, and hands-on requirements for courses leading to
certification as a renovator or a dust sampling technician.
The minimum curriculum requirements for an initial renovator course
are described in proposed Sec. 745.225(d)(6). The topics would include
the roles and responsibilities of a renovator; background information
on lead and its health effects; background on applicable Federal,
State, and local regulations and guidance; use of acceptable test kits
to test paint to determine whether it is lead-based paint; methods to
minimize the creation of lead-based paint hazards during renovations;
containment and clean-up methods; ways to verify that a renovation
project has been properly completed, including clean-up verification
and clearance testing; and waste handling and disposal. Hands-on
activities relating to renovation methods, containment and clean-up,
clean-up verification, and waste handling would be required in all
courses. Proposed Sec. 745.225(c)(6)(vi) would establish the minimum
length for an initial renovator course at 8 training hours, with 2
hours being devoted to hands-on activities. A training hour means at
least 50 minutes of actual learning, including, but not limited to,
time devoted to lecture, learning activities, small group activities,
demonstrations, evaluations, and hands-on experience.
The minimum curriculum requirements for an initial dust sampling
technician course are described in proposed Sec. 745.225(d)(7). The
topics would include the roles and responsibilities of a dust sampling
technician; background information on lead and its adverse health
effects; background information on Federal, State, and local
regulations and guidance that pertains to lead-based paint and
renovation activities; dust sampling methodologies; clearance standards
and testing; and report preparation and recordkeeping requirements.
Proposed Sec. 745.225(c)(6)(vii) would establish the minimum length
for an initial dust sampling technician course at 8 training hours,
with 2 hours being devoted to hands-on activities.
Accreditation would also be required for refresher training courses
for
[[Page 1610]]
renovators and dust sampling technicians. Refresher courses would
consist of, at a minimum, 4 hours of training. Topics covered would
have to include a review of the topics covered in the initial renovator
or dust sampling technician course, along with general lead-based paint
safety practices and technologies.
EPA requests comment on whether all of the topics that should be
covered in the renovator and dust sampling technician courses are
included, and whether hands-on activities should be required. EPA also
requests comment on whether the specified training hour requirements
for the initial and refresher courses are sufficient or excessive. In
addition, EPA requests comment on whether minimum training hour
requirements should be specified for these courses. EPA is concerned
that such requirements may limit training provider flexibility without
offering a substantial contribution to the quality of training.
Renovator and dust sampling technician courses, both initial and
refresher, could be taught in any language, but accreditation would be
required for each specific language the provider wished to present the
course in. All course materials and instruction for the course would
have to be in the language of the course. EPA is proposing to modify
Sec. 745.225(b)(1)(ii) to clarify that all lead-based paint courses
taught in different languages are considered different courses, and
accreditation must be obtained for each. To facilitate accreditation of
courses in languages other than English, EPA is proposing to require
that the training provider include in its application both the English
version as well as the non-English version of all training materials,
as well as a signed statement from a qualified, independent translator
that the translator has compared the non-English language version of
the course materials to the English language version and the
translation is accurate. This requirement would apply to any course for
which accreditation is sought, including lead-based paint activities
courses. Finally, to assist EPA in monitoring compliance with these
requirements, EPA is proposing to require that course completion
certificates include the language in which the course was taught.
EPA is also proposing to modify the requirements for course
completion certificates to make it clear that the interim certification
expiration date applies only to initial lead-based paint activities
courses. The concept of interim certification is not applicable to
refresher courses, nor would it be applicable to the proposed
certification requirements for renovators or dust sampling technicians.
Consistent with the existing accreditation requirements for lead-
based paint activities training programs, alternative training
techniques (e.g., video training, computer-based training) may be used
as a supplement to the hands-on skills assessment or as a substitute
for the lecture portion of the training course requirements. All
training programs, including those using alternative training methods,
would be required to meet minimum hourly requirements for hands-on
activities in their training courses. In addition, all training
programs would have to administer a course test and conduct a hands-on
skills assessment.
As currently required for training providers who wish to offer
lead-based paint activities courses, training providers who would like
to provide courses leading to renovator or dust sampling technician
certification, or refresher training courses in those disciplines,
would have to apply to EPA for accreditation and pay an accreditation
fee. The application would have to include a description of the
facilities to be used for training, a description of the methods to be
used to present hands-on activities, the blueprint for the course test,
and the quality control plan. In addition, the proposal provides that
if the training provider will not be using EPA-recommended model course
materials, or course materials approved by an EPA-authorized State or
Tribal program, the application must include copies of all course
materials, including the agenda or syllabus.
D. Renovation Activities
EPA is proposing to require that all renovations subject to this
rule be conducted in accordance with a defined set of work practice
standards. TSCA section 402(a)(1) directs EPA to promulgate regulations
that, among other things, contain standards for performing lead-based
paint activities, taking into account reliability, effectiveness, and
safety. In revising those regulations to apply to renovation
activities, EPA is proposing more specific work practice standards for
firms performing renovations than are currently required for certified
firms conducting lead-based paint abatement activities regulated by 40
CFR part 745, subpart L. These more specific standards are necessary,
because unlike abatement firms, under this proposal renovation firms
would not be required to conduct clearance testing at the conclusion of
renovation activities. Clearance testing serves as a performance
standard under the abatement regulations, allowing firms flexibility
when establishing and cleaning a work area. Without such a performance
indicator for renovation it is necessary to more specifically describe
work practices and conditions at a work site in order to protect the
occupants and ensure that new lead-based paint hazards are not
introduced to the home. The proposed renovation work practices are
consistent with the joint EPA-HUD curriculum, Lead Safety for
Remodeling, Repair, & Painting (Ref. 52). EPA requests comment on the
work practice, cleaning, and cleaning verification requirements
discussed in greater detail in this Unit.
1. Background. As was discussed in Unit III.B.3., HUD developed its
Guidelines for the Evaluation and Control of Lead-Based Paint Hazards
in Housing in response to a directive in Title X. The Guidelines
provide detailed, comprehensive technical information on how to
identify lead-based paint hazards in housing and how to control such
hazards safely and efficiently. The Guidelines were the result of The
HUD Lead-Based Paint Abatement Demonstration (FHA) that evaluated
various lead-based paint hazard control methodologies both for
effectiveness in reducing the lead hazard and for amount of lead dust
generated (Ref. 53), as well as a number of other research projects.
The Guidelines were developed in close consultation with EPA, CDC,
OSHA, several other Federal agencies, and numerous experts and
practitioners.
While the primary purpose of the Guidelines is to provide guidance
to people involved in identifying and controlling lead-based paint
hazards in Federally assisted housing, they have also proven to be
useful in housing that has no connection with the Federal government.
The Guidelines have been accepted as the de facto standard for
evaluation and reduction of lead hazards. EPA's training and
certification program under TSCA sections 402 and 404 recognizes the
Guidelines and their recommendations. The Guidelines complement such
regulatory programs because they provide more complete work practice
recommendations and explain why certain measures are recommended.
EPA relied on the Guidelines in developing draft technical
specifications for renovation, repair, and painting activities (Ref.
54). While the Guidelines are focused on work practices associated with
hazard reduction (permanent or temporary elimination of existing lead
hazards), they also provide detailed
[[Page 1611]]
information relevant to renovation (i.e., containment, and cleaning).
In addition, the Guidelines have a useful section devoted to routine
building maintenance. While the activities considered in this section
are often small-scale, and do not encompass the wide range of potential
renovation work projects, they were extremely helpful in formulating
work practice standards that are intended to be scalable based upon the
activity being performed.
EPA's draft technical specifications were developed in September
1998 with the assistance of the National Center for Lead Safe Housing
(now known as the National Center for Healthy Homes) in consultation
with a group of technical experts. The specifications described the
precautions needed to ensure that lead-contaminated dust and debris are
minimized, controlled and properly cleaned up. The technical
specifications themselves were developed to be applicable both to
contractors and to homeowners who perform these activities without the
aid of a contractor. However, the specifications document itself was
not intended for use by the general public or contractors; it was
developed to provide background information and serve as a reference
for EPA to prepare technical materials, including a training
curriculum.
Following completion of the draft technical specifications, EPA
began development of a model renovation training curriculum. In
September 2000, EPA completed development of the curriculum Minimizing
Lead-Based Paint Hazards During Renovation, Remodeling, and Painting
(Ref. 55). The model curriculum was developed with the assistance of a
review panel of representatives from state regulatory programs, lead
advocacy groups, renovation contractors, EPA, HUD, and NIOSH. The
course was developed to provide strategies to reduce or eliminate the
introduction of hazards that occur when lead-based paint is disturbed.
The curriculum was revised, in consultation with HUD, and renamed Lead
Safety for Remodeling, Repair, & Painting in July 2003 (Ref. 52). The
revised curriculum is one of several courses approved for training
purposes under HUD's Lead Safe Housing Rule. The course represented a
major Agency effort to protect public health from lead-based paint
hazards associated with renovation and repainting activities, and was
intended to be a model training curriculum for future regulations. Upon
completion of the course, EPA made the model curriculum publicly
available and encouraged renovation contractors to voluntarily obtain
training.
This proposal presents basic work practice standards derived from
the model training course, draft technical manual, and the Guidelines,
among other sources. These practices provide standards as to how the
work must be done in order to protect occupants from lead hazards.
While the standards provide basic requirements for occupant protection,
site preparation, and clean-up, the course provides more complete
guidance on how activities should be carried out and why certain
measures are recommended.
EPA requests comment on whether there may be situations where some
or all of these proposed lead safe work practices are not necessary.
For example, where housing is not occupied during the renovation
process, some or all of the lead safe work practice requirements may
not be necessary. In those cases, cleanup and cleaning verification may
be sufficient. The Agency requests comment on the requirements that
should apply in unoccupied housing, and also on whether there should be
differential requirements for other situations.
2. Proposed work practice standards--a. Occupant protection. Under
proposed Sec. 745.85(a)(1), work areas must be clearly defined with
signs warning occupants and other persons not involved in renovation
activities to remain outside of the work area. These signs must be
posted before beginning the renovation and must remain in place until
the renovation has been completed and the work area has been verified
to have been adequately cleaned. If warning signs have been posted in
accordance with HUD's Lead Safe Housing Rule (24 CFR 35.1345(b)(2)) or
OSHA's Lead in Construction Standard (29 CFR 1926.62(m)), additional
signs are not required by this proposal.
b. Containing the work area. Under proposed Sec. 745.85(a)(2), a
firm must contain the work area so that no visible dust or debris
leaves the work area while the renovation is being performed.
Containment refers to methods of preventing leaded dust from
contaminating objects in the work area and from migrating beyond the
work area. It includes everything from the simple use of disposable
plastic drop cloths to the sealing of openings with plastic sheeting.
When planning a renovation project, special consideration should be
given to determining the type of work site preparation necessary to
prevent dust and debris from leaving the work area.
Renovation projects generate varying amounts of leaded dust, paint
chips, and other lead-contaminated materials depending on the type of
work, area affected, and work methods used. Repairing a small area of
damaged drywall is likely to generate less lead-contaminated dust and
debris than sanding a large area in preparation for painting. Because
of this variability, the size of the area that must be isolated and the
containment methods used will vary from project to project. Large
renovation projects could involve one or more rooms and potentially
encompass an entire home or building, while small projects may require
only a minimal amount of containment. The necessary work area
preparations will depend on the size of the surface(s) being disturbed,
the method used in disturbing the surface, and the building layout. The
certified renovator assigned to a renovation would weigh all of these
factors in determining the appropriate work area size and preparation
level for that particular situation. For example, repairing a small
area of damaged drywall would probably require a smaller work area and
minimal preparation while demolition work would probably require a
larger work area and extensive preparation in order to prevent the
migration of dust and debris from the work area. The certified
renovator is responsible for weighing all of these factors and
designing a system of containment that ensures that no dust and debris
leaves the work area. EPA is proposing to define the term ``work area''
as the area that the certified renovator establishes to contain all of
the dust and debris generated by a renovation, based on the certified
renovator's evaluation of the extent and nature of the activity and the
specific work practices that will be used.
i. Interior renovations. At a minimum, interior work area
preparations must include removing or covering all objects in the work
area, closing and covering all forced air HVAC ducts in the work area,
closing all windows in the work area, closing and sealing all doors in
the work area, and covering the floor surface, including installed
carpet, with taped-down plastic sheeting in the work area. Doors within
the work area that must be used while the job is being performed must
be covered with plastic sheeting or other impermeable material in a
manner that allows workers to pass through, while confining dust and
debris to the work area. In addition, all personnel, tools, and other
items, including the exterior of containers of waste, must be free of
dust and debris when leaving the work area. Alternatively, the paths
used to reach the exterior of the home must be covered with plastic
sheeting or other impermeable material to prevent the
[[Page 1612]]
spread of lead contaminated dust and debris outside the work area.
ii. Exterior renovations. For exterior projects, work area
preparations must include, at a minimum, covering the ground with
plastic sheeting or other disposable impermeable material extending out
from the edge of the structure a sufficient distance to collect falling
paint debris, closing all doors and windows within 20 feet of the
outside of the work area on the same floor as the renovation, and
closing all doors and windows on the floors below that area. For
example, if the renovation involves sanding a 5-foot by 5-foot area of
paint on the third floor of a building, and that side of the building
is only 40 feet long, all doors and windows on that side of the third
floor must be closed, as well as all of the doors and windows on that
side of the second and first floors. In situations where other
buildings are in close proximity to the work area, or where the work
area abuts a property line, the firm performing the renovation may have
to take extra precautions in containing the work area to ensure that
dust and debris from the renovation does not contaminate other
buildings or migrate to adjacent property. In addition, doors within
the work area that must be used while the job is being performed must
be covered with plastic sheeting or other impermeable material in a
manner that allows workers to pass through while confining dust and
debris to the work area.
iii. Prohibited practices. Under the current regulations for lead-
based paint abatement activities, certain practices are prohibited in
40 CFR 745.227(e)(6). These practices are open flame burning or
torching of lead-based paint; machine sanding, grinding, abrasive
blasting, or sandblasting of lead-based paint except when done with
HEPA exhaust control; dry scraping of lead based-paint except around
electrical outlets or for any area no more than 2 ft2 in any
one room, hallway, or stairwell, or for any area no more than 20
ft2 on exterior surfaces; and operating a heat gun at 1100
degrees Fahrenheit or higher.
Unlike with abatement, EPA is proposing to allow the use of these
practices during renovation activities. The Agency understands that,
because these practices are commonly used during renovation work,
prohibiting such practices could make certain jobs, such as preparing a
surface for new painting, extremely difficult, if not impossible. For
example, contractors indicated there may be no practical way to restore
old and historic millwork other than open flame burning, and that
prohibiting dry scraping and sanding would cause many problems because
wet sanding tends to raise the grain of wood surfaces preventing a
smooth finish which consumers demand. The Agency believes that proper
training, in combination with appropriate containment and cleanup
requirements, is safe, effective, and reliable in preventing the
introduction of new lead-based paint hazards. EPA is seeking comment
regarding the prohibition of these practices, and specifically whether
different prohibitions should apply to interior and exterior
renovations.
Although EPA is proposing to allow the use of these practices,
other Federal, State, and local requirements may govern these practices
and renovations in general. Persons performing renovations should check
to see whether other regulations, including the OSHA regulations at 29
CFR 1926.62, apply to their projects.
c. Waste from renovations. Renovation projects can generate a
considerable amount of waste material. Lead-contaminated building
components and work area debris must be handled carefully to prevent
the release of lead-contaminated dust and debris. EPA is concerned that
allowing the storage of lead-contaminated waste where it may be
accessible to residents and others could cause a lead-based paint
hazard. Therefore, under proposed Sec. 745.85(a)(3) a firm would be
required, at the conclusion of each work day, to store any collected
lead-based paint waste from renovation activities under containment, in
an enclosure, or behind a barrier that prevents release of dust and
debris and prevents access to the waste.
In addition, transporting lead-based paint waste in uncovered
vehicles is a possible source of releases in the form of paint chips or
dust. The proposal would require renovation firms transporting lead-
based paint waste from a work site to contain the waste to prevent
identifiable releases, e.g., inside a plastic garbage bag.
In a policy issued on July 31, 2000, EPA's Office of Solid Waste
(OSW) clarified that both homeowners and contractors can be eligible
for the hazardous waste exclusion under 40 CFR 261.4(b)(1) for lead-
based paint wastes generated from renovation and remodeling activities
in households, including single and multiple residences. This
conclusion was based on the fact that both the definition of
``household waste'' in 40 CFR 261.4(b)(1) and the Agency's criteria for
determining the scope of the exclusion focus on the type of waste
generated and the place of generation rather than the identity of the
waste generator. Therefore, under this clarification, lead-based paint
waste may be disposed of in municipal solid waste landfill units, as
long as those wastes are generated during abatement or renovation and
remodeling activities in households (Ref. 56).
On June 18, 2003, EPA amended its regulations to provide an
additional option for disposal of this waste (Ref. 57). Having
clarified that lead-based paint waste generated through abatements and
renovation and remodeling activities in residential settings could be
disposed of in municipal solid waste landfill units, EPA also wanted to
offer the option of disposing of this waste in construction and
demolition (C&D) landfills. Accordingly, EPA amended 40 CFR 258.2 to
add definitions for ``construction and demolition (C&D) landfill'' and
``residential lead-based paint waste'' and to amend the definition of
``municipal solid waste landfill (MSWLF) unit.'' The primary purpose of
these amendments was to allow a C&D landfill to accept residential
lead-based paint waste without becoming a municipal solid waste
landfill unit and having to comply with RCRA requirements for such
units.
When disposing of waste from renovation activities, the certified
renovator should follow all applicable Federal, State, and local
requirements.
d. Cleaning the work area. Under proposed Sec. 745.85(a)(4), a
firm would be required to clean the work area to remove visible dust,
debris or residue, as well as dust particles too small to be seen by
the naked eye. All renovation activities that disturb painted surfaces
can produce dangerous quantities of leaded dust. Because very small
particles of leaded dust are easily absorbed by the body when ingested
or inhaled, a small amount can create a health hazard for young
children. Unless this dust is properly removed, renovation and
remodeling activities are likely to introduce new lead-based paint
hazards. Therefore, careful cleaning is required. Improper cleaning can
increase the cost of a project considerably because additional cleaning
may be necessary during post-renovation cleaning verification. Although
it may not be possible to remove all leaded dust generated by the
renovation, it is possible to reduce it below levels that EPA has
determined to be hazardous.
The proposal specifies that, upon completion of renovation
activities, all paint chips and debris must be picked up. Protective
sheeting must be misted and folded dirty side inward, using care to
trap any remaining dust. Sheeting
[[Page 1613]]
used to isolate contaminated rooms from non-contaminated rooms must
remain in place until after the cleaning and removal of other sheeting;
this sheeting must then be misted and removed last. Removed sheeting
must be either folded and taped shut to seal or sealed in heavy-duty
bags and disposed of as waste.
After the sheeting has been removed from the work area, the entire
area must be cleaned. The walls, starting from the ceiling and working
down to the floor, would have to be vacuumed with a vacuum equipped
with a HEPA filter or wiped with a damp cloth. The proposal would
require that all remaining surfaces and objects in the work area,
including floors, furniture and fixtures, be thoroughly vacuumed with a
vacuum equipped with a HEPA filter. When cleaning carpets, the HEPA-
equipped vacuum must be equipped with a beater bar to aid in dislodging
and collecting deep dust and lead from carpets. The beater bar must be
used on all passes on the carpet face during dry vacuuming. Where
feasible, floor surfaces underneath a rug or carpeting must also be
thoroughly vacuumed with a HEPA-equipped vacuum. This cleaning step is
intended to remove as much dust and remaining debris as possible.
EPA requests comment on whether the rule should allow the use of
vacuums other than vacuums equipped with HEPA filters. HEPA filters
were first developed by the U.S. Atomic Energy Commission during World
War II to capture microscopic radioactive particles that existing
filters could not remove. HEPA filters have the ability to capture
particles of 0.3 microns with 99.97% efficiency. Particles both larger
and smaller than 0.3 microns are easier to catch. Thus, HEPA filters
capture these particles with 100% efficiency. Available information
indicates that lead particles generated by renovation activities range
in size from over 20 microns to 0.3 microns or less (Ref. 58). It has
been suggested that vacuums not equipped with HEPA filters fail to
capture smaller lead particles, and that these vacuums are more likely
to recirculate these particles to the air instead. EPA is concerned
that the unintended release of lead particles into the air during
cleaning activities may not only cause unintended dust lead hazards in
the work area, but that it could impact other areas of the dwelling
unit. EPA requests comment on whether there are other vacuums that have
the same efficiency at capturing the smaller lead particles as HEPA-
equipped vacuums, along with any data that would support this
performance equivalency and whether this performance specification is
appropriate for leaded dust cleanup. EPA also requests comment on
whether the rule should allow other types of vacuums in addition to
HEPA-equipped vacuums, given that the OSHA Lead in Construction
standard, at 29 CFR 1926.62(h)(4), requires that vacuums be equipped
with HEPA filters where vacuums are used.
After vacuuming, all surfaces and objects in the work area, except
for walls and carpeted or upholstered surfaces, must be wiped with a
damp cloth. Uncarpeted floors must be thoroughly mopped using a 2-
bucket mopping method that keeps the wash water separate from the rinse
water, or using a wet mopping system with disposable absorbent cleaning
pads and a built-in mechanism for distributing or spraying cleaning
solution from a reservoir onto a floor.
These special cleaning methods and procedures are typically not
standard operating procedure for general home improvement contractors.
Therefore, this proposal seeks to train renovators and establish work
practice standards that renovators must follow to ensure no lead-based
paint hazards are introduced as a result of a renovation.
When cleaning following an exterior renovation, under the proposal
all paint chips and debris must be picked up. Protective sheeting used
for containment must be misted with water. All sheeting must be folded
carefully from the corners or ends to the middle to trap any remaining
dust. The sheeting must be disposed of as waste.
EPA invites comment on all aspects of its proposed work practice
standards. EPA is especially interested in studies showing the
effectiveness of each component of its proposed work practices, as well
as the effectiveness of these components in combination. As noted in
the Draft Economic Analysis for this proposed rule, discussed in
greater detail in Unit VIII.A., the Agency assumes that the specified
combination of warning signs, containment barriers, cleaning measures,
and the post-renovation cleaning verification process discussed in the
next section, taken together, will result in lead dust levels at or
below the dust-lead hazard standards established at 40 CFR 745.65(b).
The available data, however, does not support a quantitative assessment
of the independent efficiency of each of these measures.
E. Cleaning Verification
1. Background. The goal of this proposed rule is to ensure that
lead-based paint hazards are not created and left behind after
residential renovations. To achieve this goal, EPA has outlined
training requirements to provide renovators with information and
techniques on how to minimize the lead dust they produce during
renovation activities and the appropriate methods for cleaning the work
area after a renovation has been completed. The Agency has also
proposed a series of work practice standards that must be followed
during renovations. In addition, to achieve the goal of ensuring that
residential renovations do not increase exposure to lead-based paint
hazards, EPA has determined that additional cleaning verification
procedures are necessary.
However, requiring dust clearance sampling after each renovation
project, as is done for abatements, would be problematic for several
reasons. Dust clearance sampling, which is required after abatements,
may be very 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 estimates the cost of three dust
samples to be approximately $160 to collect and analyze. If EPA were to
require dust clearance sampling after every renovation project, it
would make up a significant portion of the cost of smaller projects.
More information on the costs of dust clearance sampling can be found
in Unit VIII.A. and in EPA's draft economic analysis of the impacts of
this proposal (Ref. 59). In addition, dust clearance sampling takes a
great deal of time. Laboratory results may not be available for several
days, during which time the work area cannot be re-occupied.
On the other hand, a visual inspection, while less expensive and
less time-consuming than dust clearance sampling, does not provide
sufficient assurance that the renovation activities have not increased
the potential for exposure to lead-based paint hazards. Recent studies
indicate that visual inspection alone is not a reliable and effective
method for identifying the presence of a lead-based paint hazard after
cleaning (Ref. 60).
In addition, one of the significant difficulties associated with
requiring clearance after renovation projects is the difference in
focus and scope between abatement projects and renovations. The purpose
of an abatement project is to permanently eliminate lead-based paint
and lead-based paint hazards. It is therefore perfectly appropriate to
require an assurance that the abatement firm has, in fact, eliminated
these hazards. However, renovations may be performed for many reasons,
most of which have nothing to do with
[[Page 1614]]
eliminating lead-based paint hazards. Moreover, if clearance using dust
wipes were required after every renovation job, it could have the
effect of holding the renovation firm responsible for abating all dust-
lead hazards, including such hazards that may have existed in the area
before the renovation commenced. During the public meetings in 1998 and
1999, as well as during the SBREFA panel process, discussed in Unit
VIII.C., contractors pointed out that, if post-renovation clearance
sampling were required, the contractors would have to protect
themselves by collecting pre-renovation dust samples, to ensure that
they would not be held liable for pre-existing hazards. EPA understands
this concern and has attempted to address it by finding an alternative
to dust clearance sampling. The goal of this proposal is to ensure any
potential lead-based paint hazards created during the actual renovation
project are cleaned up by the renovation firm. EPA requests comment on
all of the available methods for achieving this goal, including visual
inspections, dust clearance testing, and the proposed post-renovation
cleaning verification process described below. EPA also requests
comment on whether any cleanup verification is necessary, given the
proposed cleaning requirements described above.
2. Disposable Cleaning Cloth/White Glove Study. EPA began looking
for an alternative to dust clearance sampling 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 dust clearance sampling. White disposable
cleaning cloths were used to wipe windowsills and wipe floors, then
examined to determine whether dust was visible on the cloth. This
determination was made by visually comparing the cloth to a
photographic standard that EPA developed to correlate to a level of
contamination that is below the dust lead hazard standard in 40 CFR
745.65(b). Cloths that matched the standard were considered to have
achieved ``white glove.''
Initial studies focused on dry, or electrostatic, disposable
cleaning cloths (dry cloths). These cloths were used to wipe a
windowsill or a section of floor until a cloth had achieved ``white
glove.'' Then, dust samples were collected to determine whether the
windowsill or floor had also achieved clearance. These studies were
conducted both in vacant buildings, where the amount of leaded dust on
the surfaces was uncontrolled and no pre-cleaning was done, and in a
controlled laboratory setting. The results of these studies indicate
that dry cloths are most effective in predicting clearance through the
``white glove'' test when the initial lead levels are between 40 [mu]g/
ft2 and 200 [mu]g/ft2.
EPA then began looking at wet disposable cleaning cloths (wet
cloths) as a means to improve the effectiveness of dry cloths. In a
controlled setting, the effectiveness of various combinations of dry
cloths and wet cloths were tested, using a leaded dust loading of 1,600
[mu]g/ft2. The first protocol tested used only dry cloths--
after ``white glove'' was achieved, the surface was wiped with two more
dry cloths. This protocol led to a false negative error rate of 30%,
meaning that in 30% of the cases, ``white glove'' was achieved, but
dust sampling indicated that the surface lead levels exceeded 40 [mu]g/
ft2. This procedure was performed again, and followed by one
wiping with a wet cloth. With this protocol, all 12 of the tests
performed resulted in levels below the clearance standard, or a false
negative error rate of 0%. Finally, the original dry cloth protocol was
used, until ``white glove'' was achieved, and then followed by one
mopping with a wet cloth. This simplified protocol achieved a false
negative error rate of 10%.
The promising results of this controlled study led to a field test
of three potential protocols: Dry cloths to ``white glove,'' dry cloths
to ``white glove'' followed by one wet cloth, and wet cloths to ``white
glove.'' This field test was performed in vacant housing units. Lead
levels were determined before testing began, but no cleaning was
performed. The results of this field test were as follows: On floors,
91.5% of the surfaces that achieved ``white glove'' using only dry
cloths also achieved clearance, while 97.3% of the floors that achieved
``white glove'' using only wet cloths also achieved clearance. In
addition, 10 of the 11 floors where ``white glove'' was not achieved
using dry cloths, and 20 of the 21 floors where ``white glove'' was not
achieved using wet cloths, achieved clearance anyway. Unexpectedly, the
protocol using dry cloths to ``white glove'' followed by one wet cloth
was the least successful protocol--the false negative error rate for
this protocol was nearly 20%. Windowsills were also tested during this
part of the study, but only the all-dry-cloth protocol and the all-wet-
cloth protocol were used. For the dry cloth protocol, 96.4% of the
sills that achieved ``white glove'' also achieved clearance, and the
one sill that did not achieve ``white glove'' still passed clearance.
For the wet cloth protocol, all of the sills that achieved ``white
glove'' also achieved clearance, as did the four sills that did not
reach ``white glove.''
The floors in the housing units tested in this portion of the study
were in vacant buildings that had high levels of accumulated lead that
was often encrusted on the surface as part of a hard, gummy layer. In
the case where false negative results were seen, it was primarily due
to the moisture from the wet cloth loosening lead after the ``white
glove'' was achieved with the wet cloth.
The final report for these studies and the earlier studies,
entitled Electrostatic Cloth and Wet Cloth Field Study in Residential
Housing, underwent an external peer review process. The final report,
including the Quality Assurance Project Plan, the photographic
comparison standards, the comments from the peer reviewers, and EPA's
response to the comments from the peer reviewers, has been placed into
this docket (Ref. 61). EPA also requests comments on the conclusions
drawn from this study, as well as on the study itself. EPA is
particularly interested in information or data on the Agency's
conclusions that this approach is practical and provides reliable
information on removal of lead hazards and that renovators will be able
to use a reference card to properly assess when ``white glove'' is
achieved.
3. Steps for cleaning verification. Based on these study results,
EPA is not proposing to require dust clearance sampling after any
renovations. Instead, for interior renovations, EPA is proposing to
require an additional post-cleaning verification step following the
visual inspection. This step involves wiping the interior windowsills
and floors with a wet disposable cleaning cloth and, if necessary, a
dry disposable cleaning cloth, and comparing it to a cleaning
verification card that EPA will develop and distribute. A prototype of
this card has been placed in the docket (Ref. 62). The purpose of this
step is to verify that horizontal surfaces where dust will settle have
been adequately cleaned. The specific post-renovation cleaning
verification requirements are proposed as follows.
a. Visual inspection. A certified renovator must perform a visual
inspection to determine whether visible dust, debris, or residue is
still present in the work area. If such dust, debris, or residue is
present, these conditions must be eliminated. If the renovation
involved is an interior renovation, these conditions must be eliminated
by re-cleaning the work area as directed in proposed Sec.
745.85(a)(4). After an
[[Page 1615]]
exterior work area passes the visual inspection, the project has been
properly completed and the warning signs may be removed. After an
interior work area passes the visual inspection, the cleaning of each
windowsill and uncarpeted floor within the work area must be verified
as discussed in this Unit.
b. Interior windowsills. For interior renovations, after the work
area has been cleaned and has passed the visual inspection, a certified
renovator must wipe each interior windowsill (also known as a stool) in
the work area with a wet disposable cleaning cloth. All wet cloths used
in the post-renovation cleaning verification process must be at least
damp to the touch, and must remain so during the process. After wiping
each windowsill with a wet cloth, the certified renovator must compare
the cloth to the cleaning verification card. If the cloth matches the
card, that windowsill has passed the post-renovation cleaning
verification. If the cloth does not match the card, that windowsill
must be re-cleaned in accordance with proposed Sec. 745.85(a)(4)(ii).
After the windowsill has been re-cleaned, the certified renovator must
wipe that windowsill with a new wet cloth, or the same one folded so
that an unused surface is exposed, and compare it to the cleaning
verification card. If the cloth matches the card, that windowsill has
passed. If not, the windowsill must be re-cleaned again and left to
dry.
To perform this verification on a windowsill, the certified
renovator must wait for one hour after the surface has been re-cleaned
or until the surface has dried, whichever is longer. Then, the
certified renovator must wipe the windowsill with a dry disposable
cleaning cloth and compare it to the cleaning verification card. This
process must be repeated until a dry cloth, or a folded section of a
dry cloth, that has wiped the windowsill matches the cleaning
verification card. At that point, that windowsill has passed the post-
renovation cleaning verification process. Each windowsill in the work
area must pass the post-renovation cleaning verification process.
EPA considered requiring that certified renovators repeat the
process of cleaning and then wiping with a wet disposable cleaning
cloth until each windowsill and each section of uncarpeted floor within
the work area achieved post-renovation cleaning verification with a wet
cloth. The disposable cleaning cloth studies suggest that it is
possible that some floors may never achieve verification with a wet
cloth. Verification on floors that are in poor condition or floors with
built-up layers of grime may be particularly difficult. In the second
field study of disposable cleaning cloths, there were 21 floors that
did not achieve ``white glove,'' even after 15 separate wipings with a
fresh wet cloth. However, 20 of these floors passed clearance through
dust sampling.
Therefore, for each windowsill and for those sections of the floor
that did not achieve post-renovation cleaning verification using the
wet cloths, EPA is proposing to require that after the second re-
cleaning, the surface be allowed to dry, and then a dry disposable
cleaning cloth verification process be performed. The dry cloth may be
less likely to dissolve additional layers of built-up grime, which may
have contributed to the phenomenon of floors passing clearance, but not
achieving ``white glove'' with the wet cloths. In addition, lead dust
trapped in built-up layers of grime is not likely to be the result of a
current renovation activity.
c. Floors. After the windowsills in the work area have passed the
post-renovation cleaning verification, a certified renovator must wipe
the floor surfaces in the work area with a wet disposable cleaning
cloth. Wiping of floors must be done with an application device
consisting of a long handle and a head to which the wet cloth is
attached. This will help the certified renovator apply fairly constant
pressure over the floor surface. Again, the wet cloth must remain at
least damp to the touch throughout this process. During the field
studies, the cloths tended to dry out as they were used over large
areas, or on more porous floor surfaces. As the cloths dry out, they
pick up less dust. To ensure that the cloths remained damp during the
field studies, the persons performing the wiping were directed to use
each wet cloth on no more than 40 ft2 of floor area (Ref.
63). EPA is proposing to require the same for the purposes of post-
renovation cleaning verification, but requests comment on whether this
is an appropriate size cut-off. If the floor surface in the work area
exceeds 40 ft2, the certified renovator would divide the
floor surface into sections, each section being less than 40
ft2, and perform the post-renovation cleaning verification
on each section separately.
If the wet cloth used to wipe a particular section of floor matches
the cleaning verification card, that section has passed the post-
renovation cleaning verification. If, however, on the first wiping of a
section of the floor surface, the wet cloth does not match the cleaning
verification card, the surface of that section of the floor must be re-
cleaned in accordance with proposed Sec. 745.85(a)(4)(ii). After re-
cleaning, the renovator must wipe that section of the floor again using
a new wet cloth. If the wet cloth matches the cleaning verification
card, that section of the floor has passed. If the wet cloth does not
match the verification card, that section of the floor must be re-
cleaned as directed in proposed Sec. 745.85(a)(4)(ii) and left to dry.
For those sections of the floor that did not achieve post-
renovation cleaning verification using the wet cloths, the certified
renovator must wait for 1 hour after the floor has been re-cleaned or
until the floor has dried, whichever is longer. Then, the certified
renovator must wipe those sections of the floor with a dry disposable
cleaning cloth and compare it to the cleaning verification card. This
wiping must also be performed using an application device with a long
handle and a head to which the dry cloth is attached. This process must
be repeated until a dry cloth that has wiped all of the sections of the
floor that have not yet passed verification matches the cleaning
verification card. At that point, the entire floor has passed the post-
renovation cleaning verification process and the warning signs may be
removed.
EPA believes that adherence to this post-renovation cleaning
verification protocol, in combination with the proposed training,
containment, and cleaning requirements is a safe, reliable and
effective system of ensuring that renovation activities do not result
in an increased risk of exposure to lead-based paint hazards. In the
great majority of cases, windowsills and floors that achieve post-
renovation cleaning verification will also pass dust clearance
sampling. EPA specifically requests comment on the elements of the
proposed protocol, especially with regard to their efficacy and
utility. EPA also requests comments on whether the reliability of the
cleaning verification would be improved if it were performed by an
individual who had not previously participated in the renovation
activity, for example, another certified renovator in the renovation
firm.
d. Carpets. As a final step in the renovation process, EPA is
proposing that after containment is removed, the work area be
thoroughly cleaned. For floors, the proposal would require vacuuming
with a HEPA-equipped vacuum. When cleaning carpets, the vacuum would
have to be equipped with a beater bar to aid in dislodging and
collecting leaded dust. EPA believes that use of the HEPA-equipped
vacuum
[[Page 1616]]
equipped with a beater bar to dislodge dust and debris is the most
effective cleaning practice for carpets, and that an effective cleaning
verification method for carpets is not available. EPA is not proposing
that the ``white glove'' cleaning verification protocol be used on
carpets after they have been cleaned using a HEPA-equipped vacuum
equipped with a beater bar. EPA did not verify use of the ``white
glove'' protocol on carpets. In addition, there are questions about the
validity of dust clearance sampling on carpeted floors, even though
such sampling is required by EPA after abatements and by HUD after
interim controls. In its final rule for hazard and clearance standards
for the Title X program (Ref. 24), the Agency included standards for
carpeted floors, even though the proposed floor standards would have
applied only to bare floors (Ref. 64). The Agency initially was
concerned that there was a lack of data on the relative performance of
sampling methods for carpets, given that various studies had used
different sampling techniques (e.g., the Baltimore Repair and
Maintenance Study's ``BRM'' vacuum (Ref. 65), the Comprehensive
Abatement Performance Pilot Study's ``Blue Nozzle'' vacuum (Ref. 66),
and standard dust wipes). Additionally, the Agency did not have
adequate data on the effectiveness of carpet cleaning techniques that
would be needed to establish a dust clearance level for carpeted
floors. Consequently, there were problems establishing a dust lead
level on a wipe that would independently indicate that the carpet had
been sufficiently cleaned. This problem was exacerbated by the wide
variety of carpet types and conditions that would likely be encountered
in residential units.
The Agency changed its position in the final lead hazard standards
rule as a result of commenters' concerns that many housing units
contained carpeting and that, without a standard, such units could not
be assessed for the presence of lead hazards from floor dust. Based
upon data available to the Agency at that time (Ref. 67), EPA estimated
that approximately 54 million housing units built prior to 1978
contained some wall-to-wall carpeting and, of these, 47 million had
such carpeting in living rooms and 46 million in bedrooms (i.e., rooms
in which children reside and play frequently). Agreeing with these
concerns, the Agency determined that the floor standards (using dust
wipes) should apply to both bare and carpeted floors in order that all
floors would be addressed in lead hazard screens, risk assessments, and
abatements.
In making this determination, EPA did not specifically consider the
question of whether both the hazard and the clearance floor standards
should apply to carpeted floors. Because the hazard and clearance
standards were numerically equal, even though they served different
purposes and uses, EPA chose to apply both standards to carpeted and
uncarpeted floors.
The decision to apply the clearance standard to carpeted floors
ultimately had little consequence, given the context in which clearance
standards are used--namely, to ensure that sufficient cleanup has been
performed after an abatement. Typically, in abatement situations,
carpets that are in poor condition or are known to be highly
contaminated are removed and disposed of. Where carpets are not
replaced, they are cleaned according to specified criteria (Ref. 27).
In general, carpets are acknowledged to be potential traps of leaded
dust and great care is taken to replace or thoroughly clean them in
order to ensure that, once the abatement is concluded, the housing unit
is cleanable so that the benefits of the abatement will continue as
long as routine cleaning is performed. Consequently, EPA believes that
it is this special attention to carpets that ensures that they are
sufficiently clean, rather than reliance upon only a post-abatement
wipe clearance sample.
e. Optional use of clearance testing. Some renovators or homeowners
may choose to perform clearance at the completion of renovation
activities instead of the post-renovation cleaning verification
described in proposed Sec. 745.85(b). If so, dust sampling for
clearance would have to be performed by a certified inspector, risk
assessor, or dust sampling technician, who would be responsible for
collecting dust samples, sending them to an EPA-recognized laboratory,
and comparing the results to the clearance levels in accordance with 40
CFR 745.227(e)(8). EPA recommends that the renovation work area be re-
cleaned if the home fails the clearance test. It is a good idea to
specify in the renovation contract who is responsible for this re-
cleaning if the home fails the clearance test. EPA welcomes comment on
this part of the proposal.
F. State Renovation Model Program and Authorization Process
Recognizing the importance of EPA's State partners in achieving the
goal of eliminating lead-based paint hazards in housing, Congress
specifically directed EPA to establish model State programs and a
process for authorizing States to operate lead-safe programs in lieu of
the Federal program. As it did in the regulations at 40 CFR part 745,
subpart L, for lead-based paint activities, the Agency is also seeking
to provide Federally recognized Indian Tribes the opportunity to apply
for and receive program authorization similar to that available to
States. Providing Indian Tribes with this opportunity is consistent
with EPA's Policy for the Administration of Environmental Programs on
Indian Reservations (Ref. 17).
Accordingly, EPA is proposing to allow interested States,
Territories, and Indian Tribes the opportunity to apply for, and
receive authorization to, administer and enforce all of the elements of
the new subpart E, as amended. States, Territories and Tribes may
choose to administer and enforce just the existing requirements of
subpart E, the pre-renovation education elements, or all of the
requirements of the proposed subpart E, as amended. Under this
proposal, EPA would not authorize a State, Territorial, or Tribal
program that sought only the authority to administer and enforce the
training, certification, accreditation, and work practice requirements
of this proposal, and not the pre-renovation education provisions of
subpart E. Because this proposal allows and encourages renovation firms
to use the existing pamphlet acknowledgment process to obtain
information about occupant age and rental status, in order to determine
whether the property would be covered by these regulations, and because
the pre-renovation education provisions are an integral part of
ensuring that consumers have the information they need to make informed
decisions about renovation practices in their homes, EPA believes that
authorizing States, Territories, and Tribes to administer all of the
regulations applicable to renovations is the best approach. However,
some States have already been authorized to administer and enforce the
existing pre-renovation education provisions in 40 CFR part 745,
subpart E. EPA believes that those States should be able to continue
administering their pre-renovation education programs without being
required to add the training, certification, accreditation, and work
practice elements of this proposal. Therefore, EPA is proposing to
allow all States, Territories and Tribes to apply for authorization to
administer and enforce only the pre-renovation education requirements
of 40 CFR part 745, subpart E. Because there are no authorized
jurisdictions in the opposite position, no existing State, Territorial,
or Tribal program will have to choose
[[Page 1617]]
between adding more program responsibilities or relinquishing its
authorization.
For the purpose of authorizing State, Territorial, and Tribal
programs, EPA is proposing to use the existing procedures codified in
40 CFR part 745, subpart Q, with the amendments of this proposal
setting forth the specific elements that would be required of a program
seeking authorization to administer and enforce the training,
certification, accreditation, and work practice requirements of this
proposal. In accordance with the current process for authorization,
States, Territories and Tribes may not choose only to administer, but
not enforce, the provisions of subpart E, nor may they selectively
choose to administer and enforce only the accreditation or
certification provisions, but not the work practice standards, for
renovations.
States, Territories, and Tribes seeking authority to administer and
enforce the provisions of this proposal must obtain public input, then
submit an application to EPA. Existing 40 CFR 745.324 describes the
process for applying for authorization. Applications must contain a
number of items, including a description of the State, Territorial, or
Tribal program, copies of all applicable statutes, regulations, and
standards, and a certification by the State Attorney General, Tribal
Counsel, or an equivalent official, that the applicable legislation and
regulations provide adequate legal authority to administer and enforce
the program. The program description must demonstrate that the State,
Territorial, or Tribal program is at least as protective as the Federal
program. In this case, the Federal program consists of the requirements
for training, certification, and accreditation and the work practice
standards in this proposal.
To be eligible for authorization to administer and enforce the
training, certification, accreditation, and work practice requirements
of this proposal, EPA is proposing to require that State, Territorial,
and Tribal renovation programs contain certain minimum elements. These
minimum elements would be very similar to the minimum elements
currently codified in 40 CFR 745.326(a) for lead-based paint
activities. In order to be authorized, State, Territorial, or Tribal
programs would have to have procedures and requirements for the
accreditation of training programs, which could be as simple as
procedures for accepting training provided by an EPA-accredited
provider, or a provider accredited by another authorized State,
Territorial, or Tribal program. Procedures and requirements for the
certification of renovators would also be necessary. At a minimum,
these must include a requirement that certified renovators have taken
accredited training, and procedures and requirements for re-
certification. State, Territorial, and Tribal programs applying for
authorization would also be required to establish work practice
standards for renovations that ensure that renovations are conducted
only by certified renovation firms and the renovations are conducted
using lead-safe work practices at least as protective as those of the
Federal program. As is the current practice with lead-based paint
activities, EPA will not require State, Territorial, or Tribal programs
to certify both firms and individuals that perform renovations. States,
Territories and Tribes may choose to certify either firms or
individuals, so long as the individuals that perform the duties of
renovators are required to take accredited training.
EPA encourages States, Territories, and Tribes that may be
considering establishing their own renovation programs to keep
reciprocity in mind as they move forward. The benefits to be derived
from reciprocity arrangements with the Federal program and other
authorized jurisdictions include a potential cost-saving from reducing
duplicative activity and the development of a professional renovation
workforce more quickly, thus providing maximum flexibility to State,
Territorial, or Tribal residents. In addition, the Agency encourages
States, Territories and Tribes to consider the use of existing
certification and accreditation procedures as they develop their
programs. These existing programs need not be limited to lead-based
paint. For example a State may choose to add lead-safe renovation
requirements to their existing contractor licensing programs.
V. New Renovation-Specific Pamphlet
The existing regulations at 40 CFR part 745, subpart E, require
each person who performs for compensation a renovation of target
housing to provide a lead hazard information pamphlet to owners and
occupants of such housing prior to commencing the renovation. The term
``pamphlet'' is defined at 40 CFR 745.83 to mean, in part, the EPA
pamphlet developed under TSCA section 406(a) for use in complying with
this and other regulations under TSCA Title IV and Title X. Until
recently, the only pamphlet developed under TSCA section 406(a) was
Protect Your Family from Lead in Your Home (Ref. 20). EPA has now
developed another pamphlet more specific to lead dust hazards created
during renovation activities to be distributed to occupants before
these activities commence. EPA intends to announce in a future Federal
Register notice the availability of this new pamphlet, entitled Protect
Your Family from Lead During Renovation, Repair & Painting (the ``RRP''
pamphlet) for notice and comment.
The RRP pamphlet is very similar to the original PYF pamphlet in
that both pamphlets contain information on lead human health effects,
human exposure pathways, lead testing, and the location of additional
information resources (Ref. 68). However, after careful analysis of
available research data related to lead-based paint and renovation
activities, EPA has decided to place more emphasis on potential hazards
caused by disturbing lead-based paint during renovation activities.
This new emphasis offers the public additional information regarding
lead-safe work practices which can greatly reduce the creation and
release of leaded dust. Because the RRP pamphlet was developed
specifically to inform the public about the potential lead hazards that
can be caused by renovation activities, EPA is proposing to require the
RRP pamphlet to be handed out prior to renovation activities instead of
the PYF pamphlet. This pamphlet contains information on lead-based
paint hazards specific to renovation activities, as well as information
on how to select a renovation firm.
As an alternative to the RRP pamphlet, an authorized State or
Tribal program could distribute an alternate pamphlet that had been
reviewed and approved by EPA in accordance with 40 CFR 745.326. The
alternate pamphlet would have to contain renovation-specific
information similar to that in the RRP pamphlet, would have to meet the
content requirements prescribed by TSCA section 406(a), and would have
to be in a format that was readable to the diverse audience of housing
owners and occupants in that State or Tribe.
EPA therefore proposes to amend the definition of ``pamphlet'' in
40 CFR 745.83 to refer specifically to the RRP pamphlet. The effect of
this amendment would be to require that renovators who are required
under 40 CFR part 745, subpart E, to distribute an information
pamphlet, distribute the RRP pamphlet rather than the PYF pamphlet.
In addition, to maintain consistency among the Federal, State, and
Tribal pre-renovation notification program requirements, EPA proposes
to amend 40 CFR 745.326 to require authorized State or Tribal programs
to use the RRP pamphlet or create and distribute an
[[Page 1618]]
alternate pamphlet. Alternate pamphlets would be required to contain
renovation-specific information similar to that in Protect Your Family
from Lead During Renovation, Repair & Painting, meet the content
requirements prescribed by section 406(a) of TSCA, and be in a format
that is readable to the diverse audience of housing owners and
occupants in that State or Tribe.
VI. Effective Dates
A. Requirements for Renovation Activities
Interested States, Territories and Indian Tribes could begin
applying for authorization of renovation programs from EPA as soon as
the final rule is promulgated. Also, after the final rule is
promulgated, providers of courses that cover lead-safe work practices
for renovations could continue to offer these courses, but they would
not be permitted to advertise these courses for EPA certification
purposes until they receive accreditation from EPA.
EPA would begin accepting training provider accreditation
applications for renovator and dust sampling technician initial and
refresher courses 1 year after promulgation of a final rule. The reason
for the delay is to provide interested States, Territories and Indian
Tribes 1 year to develop, or begin developing, renovation-specific work
practice standards and accreditation, training, and certification
programs. EPA believes the nation's experience in implementing the
lead-based paint activities program regulations at 40 CFR part 745,
subpart L should help everyone involved, including States, Territories,
Tribes, the regulated community, and EPA, move more quickly towards
implementing renovation programs. Thus, EPA is not proposing to make
training programs for the federal program wait 2 years before they can
receive accreditation, as EPA did for the subpart L regulations. On the
other hand, EPA is concerned about the duplication of effort that could
occur, and the additional costs that could be incurred by the regulated
community, if EPA begins accrediting training providers and certifying
firms in jurisdictions that are also working towards implementing their
own programs. Training providers, firms, and individuals working in
such jurisdictions could end up having to become accredited or
certified by both EPA and the State, Territory or Tribe within a fairly
short period of time. EPA requests comment on the feasibility of
developing State, Territorial, or Tribal programs and getting them
authorized within a year after EPA promulgates a final rule. EPA also
requests comment on ways to avoid multiple accreditations and
certifications in jurisdictions that are unable to receive
authorization for their programs within the first year after EPA
promulgates a final rule. In addition, EPA requests comment on whether
any implementation delay is necessary, given that EPA accreditation and
certification would be valid in any State or Indian Tribal area that
does not have a renovation program authorized under 40 CFR part 745,
subpart Q.
Firm certification applications would be accepted by EPA starting 6
months after EPA begins accepting training provider accreditation
applications, or 18 months after the promulgation date of the final
rule. The work practice standards would become effective 2 years after
the promulgation date of the final rule, at which time all covered
renovations would have to be performed in accordance with those
standards by certified renovators and trained workers.
As discussed in Unit IV.B., EPA is proposing to initially apply the
training, certification, accreditation, and work practice requirements
of this proposal to pre-1960 rental target housing, pre-1960 owner-
occupied target housing where a child under age 6 resides, and any
target housing where a child under age 6 with a blood lead level that
equals or exceeds 10 [mu]g/dL, or any lower State or local government
level of concern, resides. Those requirements would apply 1 year later
to rental target housing built between 1960 and 1978, and owner-
occupied target housing built between 1960 and 1978 where a child under
age 6 resides. Allowing for the time given to interested States,
Territories and Tribes to develop programs, the first phase of this
regulation would be fully effective 2 years after the date of
promulgation of a final rule. The second phase of this regulation would
take effect 3 years after a final rule is promulgated.
B. Renovation-specific Pamphlet
EPA is also proposing to phase in the requirement to use the new
RRP pamphlet discussed in Unit V. For the purpose of complying with the
Federal Pre-Renovation Education Rule, in the first 6 months after this
regulation is promulgated, persons performing renovations could
distribute either the PYF or the new RRP pamphlet. After 6 months, only
the RRP pamphlet could be used to comply with the Pre-Renovation
Education Rule in jurisdictions where the Federal program is in effect.
However, EPA recognizes that approved State, Territorial, and
Tribal Pre-Renovation Education programs, or jurisdictions developing
programs, may need time to amend their programs and either adopt the
RRP pamphlet or develop and obtain approval for an alternate pamphlet.
EPA has worked with the existing State programs to develop an
acceptable time frame for meeting the new requirements. In doing so,
EPA identified three potential non-Federal program categories: (1)
Programs authorized prior to the effective date of the final rule, (2)
potential new programs with an application submitted but not approved
prior to the effective date of the final rule, and (3) potential new
programs that might apply after the effective date of the final rule.
The time frame for compliance for each category is set forth in
proposed 40 CFR 745.326(b)(3).
In sum, such programs authorized prior to the effective date of the
final rule would demonstrate compliance in the first Sec. 745.324(h)
report submitted at least 2 years after the effective date of the final
rule. Potential new programs with an application submitted but not
approved prior to the effective date of the final rule would
demonstrate compliance in the first Sec. 745.324(h) report submitted
at least 2 years after the effective date of the final rule or by
amending their application to comply with this amendment. Potential new
programs that might apply after the effective date of the final rule
would be required to demonstrate compliance with the amendment at the
time of their application to EPA for program approval.
VII. References
The following is a list of the documents that are specifically
referenced in this proposed rule and placed in the public docket that
was established under Docket ID number EPA-HQ-OPPT-2005-0049. For
information on accessing the docket, refer to the ADDRESSES unit at the
beginning of this document.
1. U.S. Environmental Protection Agency (USEPA). Sample
acknowledgment form. (2005).
2. Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title
X) (Public Law 102-550).
3. U.S. Department of Health and Human Services (HHS), Public
Health Service (PHS), Centers for Disease Control and Prevention (CDC).
Preventing Lead Poisoning in Young Children; A Statement by the Centers
for Disease Control and Prevention (August 2005).
4. HHS, PHS, Agency for Toxic Substances and Disease Registry
(ATSDR). Toxicological Profile for Lead (July 1999).
[[Page 1619]]
5. USEPA, Office of Research and Development (ORD). Air Quality
Criteria for Lead, First External Review Draft (EPA/600/R-05/144aA,
December 2005)
6. USEPA. Integrated Risk Information System; Lead and compounds
(inorganic) (CASRN 7439-92-1) (July 8, 2004).
7. U.S. Consumer Product Safety Commission. Federal Register (42 FR
44199, September 1, 1977, as amended at 43 FR 8515, March 2, 1978).
8. U.S. Department of Labor (USDOL), Occupational Safety and Health
Administration (OSHA). Final Standard for Occupational Exposure to
Lead. Federal Register (43 FR 52952, November 14, 1978).
9. USDOL, OSHA. Lead Exposure in Construction; Interim Final
Rule.Federal Register (58 FR 26590, May 4, 1993).
10. USEPA. Control of Lead Additives in Gasoline; Final Rule.
Federal Register (38 FR 33734, December 6, 1973).
11. USEPA. Maximum Contaminant Level Goals and National Primary
Drinking Water Regulations for Lead and Copper; Final Rule. Federal
Register (56 FR 26460, June 7, 1991).
12. U.S. Department of Health and Human Services (HHS), Public
Health Service (PHS), Centers for Disease Control and Prevention (CDC).
Preventing Lead Poisoning in Young Children; A Statement by the Centers
for Disease Control and Prevention (October 1991).
13. Alliance to End Childhood Lead Poisoning. Preventing Childhood
Lead Poisoning: The First Comprehensive National Conference; Final
Report. (October 6, 7, 8, 1991).
14. President's Task Force on Environmental Health Risks and Safety
Risks to Children. Eliminating Childhood Lead Poisoning: A Federal
Strategy Targeting Lead Paint Hazards (February 2000).
15. HHS, PHS, CDC. Preventing Lead Exposure in Young Children: A
Housing Based Approach to Primary Prevention of Lead Poisoning:
Recommendations from the Advisory Committee on Childhood Lead Poisoning
Prevention (October 2004).
16. USEPA. Lead; Requirements for Lead-Based Paint Activities in
Target Housing and Child-Occupied Facilities: Final Rule. Federal
Register (61 FR 45778, August 29, 1996).
17. USEPA. EPA Policy for the Administration of Environmental
Programs on Indian Reservations (November 8, 1984).
18. USEPA. Lead; Fees for Accreditation of Training Programs and
Certification of Lead-based Paint Activities Contractors; Final Rule.
Federal Register (64 FR 31092, June 9, 1999).
19. USEPA. Lead; Notification Requirements for Lead-Based Paint
Abatement Activities and Training; Final Rule. Federal Register (69 FR
18489, April 8, 2004).
20. USEPA, Consumer Product Safety Commission, U.S. Department of
Housing and Urban Development (HUD). Protect Your Family From Lead in
Your Home (EPA 747-K-99-001, June 2003).
21. USEPA. Lead Hazard Information Pamphlet; Notice of
Availability. Federal Register (60 FR 39167, August 1, 1995).
22. HUD, USEPA. Lead; Requirements for Disclosure of Known Lead-
Based Paint and/or Lead-Based Paint Hazards in Housing; Final Rule.
Federal Register (61 FR 9064, March 6, 1996).
23. USEPA. Lead; Requirements for Hazard Education Before
Renovation of Target Housing; Final Rule. Federal Register (63 FR
29908, June 1, 1998).
24. USEPA. Lead; Identification of Dangerous Levels of Lead; Final
Rule. Federal Register (66 FR 1206, January 5, 2001).
25. USEPA. Targeted Grants to Reduce Childhood Lead Poisoning;
Notice of Funds Availability. Federal Register (69 FR 69913, December
1, 2004).
26. HUD. Requirements for Notification, Evaluation, and Reduction
of Lead-based Paint Hazards in Housing Receiving Federal Assistance and
Federally Owned Residential Property Being Sold (Lead Safe Housing
Rule); Final Rule, Conforming Amendments and Corrections. Federal
Register (69 FR 34262, June 21, 2004).
27. HUD. Guidelines for the Evaluation and Control of Lead-Based
Paint Hazards in Housing (June 1995).
28. HHS, PHS, CDC. Managing Elevated Blood Lead Levels Among Young
Children (March 2002).
29. USEPA. Reducing Lead Hazards When Remodeling Your Home (EPA747-
K-97-001, September 1997).
30. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase I, Environmental Field Sampling Study (EPA 747-R-96-
007, May 1997).
31. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase II, Worker Characterization and Blood-Lead Study (EPA
747-R-96-006, May 1997).
32. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase III, Wisconsin Childhood Blood-Lead Study (EPA 747-R-
99-002, March 1999).
33. USEPA. Report of the Small Business Advocacy Review Panel on
the Lead-based Paint Certification and Training; Renovation and
Remodeling Requirements (March 3, 2000).
34. McMillan Associates. Response to SBREFA Panel Recommendations
for Further Analysis of Existing Phase III Data (August 6, 2001).
35. HHS, PHS, CDC. Children with Elevated Blood Lead Levels
Attributed to Home Renovation and Remolding Activities--New York, 1993-
1994. Morbidity and Mortality Weekly Report (45(51); 1120-1123, January
3, 1997).
36. 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).
37. USEPA. Lead 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).
38. USEPA. Lead Exposure Associated with Renovation and Remodeling
Activities; Final Summary Report (EPA 747-S-00-001, January 2000).
39. USEPA. TSCA Section 402(c) Lead Exposure Reduction Stakeholder
Meeting for the Proposed Renovation and Remodeling Rule (December 7,
1998).
40. USEPA. Round Table Discussion of TSCA Section 402(c) Lead
Exposure Reduction Proposed Renovation and Remodeling Rule (March 8,
1999).
41. USEPA. Lead Programs Meeting, Meeting Summary (September 25-26,
2000).
42. USEPA. Summary of Discussion with State, Local, and Tribal
Government Representatives (May 1, 2003).
43. USEPA. Summary of Discussion with State, Local, and Tribal
Government Representatives (May 15, 2003).
44. USEPA. Summary of Discussion with Industry Stakeholders (May 9,
2003).
45. USEPA. Summary of Discussion with Industry Stakeholders (May
29, 2003).
46. HUD. National Survey of Lead and Allergens in Housing, Volume
I: Analysis of Lead Hazards, Final Report, Revision 7.1. (October 31,
2002).
[[Page 1620]]
47. NIST. Spot Test Kits for Detecting Lead in Household Paint, a
Laboratory Evaluation (NISTIR 6398, May 2000).
48. USEPA. Estimates of Concentration of Lead in Paint by Age of
Housing (October 2005).
49. USEPA. Lead; Requirements for Hazard Education Before
Renovation of Target Housing; Proposed Rule. Federal Register (59 FR
11108, March 9, 1994).
50. ASTM International. Standard Practice for Evaluating the
Performance Characteristics of Qualitative Chemical Spot Test Kits for
Lead in Paint (E 1828-01).
51. USEPA. Draft Recordkeeping Checklist for Firms (December 2005).
52. USEPA, HUD. Lead Safety for Remodeling, Repair, and Painting
(EPA 747-B-03-001/2, July 2003).
53. HUD, Office of Policy Development and Research. The HUD Lead-
Based Paint Abatement Demonstration (FHA) (August 1991).
54. USEPA, Office of Pollution Prevention and Toxics (OPPT). Lead
Dust Minimization Work Practices for Renovation, Remodeling and
Repainting; Draft Technical Manual (September 29, 1998).
55. USEPA. Minimizing Lead-Based Paint Hazards During Renovation,
Remodeling, and Painting (September 2000).
56. USEPA, Office of Solid Waste (OSW). Memorandum from Elizabeth
A. Cotsworth, Director, ``Regulatory Status of Waste Generated by
Contractors and Residents from Lead-Based Paint Activities Conducted in
Households'' (July 31, 2000).
57. USEPA, OSW. Criteria for Classification of Solid Waste Disposal
Facilities and Practices and Criteria for Municipal Solid Waste
Landfills: Disposal of Residential Lead-based Paint Waste; Final Rule.
Federal Register (68 FR 36487, June 18, 2003).
58. Choe, K., Trunov, M., Grinshpun, S.A., Willeke, K., Harney, J.,
Trakumas, S., Mainelis, G., Bornschein, R., Clark, S. and Friedman, W.
Particle settling after Lead-Based Paint Abatement Work and Clearance
Waiting Period, American Industrial Hygiene Association Journal,
61(6):798-807 (2001).
59. USEPA, OPPT. Draft Economic Analysis for the Renovation,
Repair, and Painting Program Proposed Rule (December 2005).
60. National Center for Healthy Housing. An Evaluation of the
Efficacy of the Lead Hazard Reduction Treatments Prescribed in Maryland
Environmental Article 6-8 (April 30, 2002).
61. USEPA. Electrostatic Cloth and Wet Cloth Field Study in
Residential Housing (September 2005).
62. USEPA. Draft Cleaning Verification Card (2005)
63. USEPA, OPPT. Quality Assurance Project Plan (QAPP) for the
Field Study; Appendix A - Standard Operating Procedure (SOP) for Using
the Dry Electrostatic Cloth and Mop to Collect Lead Dust (July 12,
2004).
64. USEPA. Lead; Identification of Dangerous Levels of Lead;
Proposed Rule. Federal Register (63 FR 30302, June 3, 1998).
65. USEPA. Lead-Based Paint Abatement and Repair and Maintenance
Study in Baltimore: Pre-Intervention Findings. (EPA 747-R-95-012,
August 1996).
66. USEPA. Comprehensive Abatement Performance Pilot Study, Volume
1: Results of Lead Data Analyses (EPA 747-R-93-007, February 1995).
67. U.S. Census Bureau. Current Housing Reports, Series H150/97,
American Housing Survey for the United States (1997).
68. USEPA. Protect Your Family from Lead During Renovation, Repair,
& Painting (2005).
69. USEPA. Proposed ICR amendment for rulemaking entitled ``Lead;
Renovation, Repair, and Painting Program; Proposed Rule'' (December
2005).
70. USEPA. Risk Analysis to Support Standards for Lead in Paint,
Dust, and Soil (EPA 747-R-97-006, June 1998).
71. USEPA. Risk Analysis to Support Standards for Lead in Paint,
Dust, and Soil: Supplemental Report (EPA 747-R-00-004, December 2000).
72. ASTM International. Standard Practice for Clearance
Examinations Following Lead Hazard Reduction Activities in Single-
Family Dwellings and Child-Occupied Facilities (E 2271-05).
73. ASTM International. Standard Guide for Evaluation, Management,
and Control of Lead Hazards in Facilities (E 2052-99).
VIII. Statutory and Executive Order Reviews
A. Regulatory Review
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), it has been determined that this
proposed rule is a ``significant regulatory action'' under section
3(f)(1) of the Executive Order 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.
As required by the Executive Order, EPA also submitted a draft
analysis of the potential costs and benefits associated with this
proposed rulemaking. This analysis is contained in a document entitled
Draft Economic Analysis for the Renovation, Repair, and Painting
Program Proposed Rule (Draft Economic Analysis) (Ref. 59). The Agency
is conducting additional analyses with other assumptions for baseline
activities than those that were used in the Agency's Draft Economic
Analysis to estimate the potential costs and benefits of the proposed
rule. Information about these new analyses is available in the docket,
and, once completed, the revised Economic Analysis will also be
available in the docket. The additional analyses are expected to change
the estimated potential costs and benefits of the proposed rule. A copy
of this Economic Analysis is available in the docket for this action,
and is briefly summarized here.
1. Options evaluated. EPA evaluated a number of options in the
development of the proposed rule. All options address target housing,
which is defined in section 401 of TSCA as housing constructed before
1978, except housing for the elderly and persons with disabilities,
unless any child under age 6 resides or is expected to reside in such
housing, or any 0-bedroom dwelling. Option A applies to renovation,
repair, and painting projects performed for compensation in all rental
target housing and owner-occupied target housing built before 1978
where a child under age 6 resides. Option B has 2 phases. The first
phase applies to rental target housing built before 1960, and owner-
occupied target housing units built before 1960 where a child under age
6 resides, plus all housing units built before 1978 where a child with
a blood lead level that equals or exceeds applicable levels of concern
resides. The second phase, which takes effect a year after the first
phase, applies to all the housing units covered by Option A. Option C
also has 2 phases. The first phase applies to all rental housing built
before 1950, and owner-occupied housing units built before 1950 where a
child under age 6 resides, plus all housing units built before 1978
where a child with a blood lead level that equals or exceeds applicable
levels of concern
[[Page 1621]]
resides. The second phase, which takes effect a year after the first
phase, applies to all the housing units covered by Option A. Option D
covers the same housing units at the same times as Option B, but
differs from Options A, B, and C in that they allow a certified
renovator flexibility in selecting appropriate work practices for each
individual job, while Option D does not provide such flexibility. The
proposed rule is Option B.
2. Number of events and individuals. As shown in the Draft Economic
Analysis, the number of renovation, repair, and painting events covered
by the rule varies across regulatory options in Phase 1 as a result of
the different time periods addressed by the options. The number of
events covered in Phase 2 is the same for all options because the
housing units regulated are the same, i.e., pre-1978 units. Because not
all housing units built before 1978 have lead-based paint, not all
events need to use lead-safe work practices. The number of events with
lead-safe work practices in Phase 2 is smaller than in Phase 1 for all
but Option C, despite the increase in housing units covered by Phase 2
under Options B, C, and D. The number of events requiring lead-safe
work practices is smaller because the accuracy of lead paint test kits
(in terms of detecting the presence or absence of regulated lead-based
paint) is expected to have improved by Phase 2. Under the proposed
rule, in Phase 1 there would be 4.8 million events in housing where
lead-safe work practices are used due to the rule. Slightly more than
4.9 million individuals reside in these housing units, including
729,000 children under age 6. In Phase 2, the proposed rule would cover
4.4 million such events in units housing nearly 5.8 million
individuals, including 855,000 children under age 6.
3. Benefits. The Draft Economic Analysis describes the estimated
benefits of the proposed rulemaking in qualitative and quantitative
terms. Benefits result from the prevention of adverse health effects
attributable to lead exposure. These health effects include several
illnesses as well as impaired cognitive function in adults and
children.
There are not sufficient data at this time to quantify some of the
potential benefits of reducing exposure to lead. EPA's Draft Economic
Analysis estimates the benefits of avoiding selected health effects in
children and adults.
The Agency considered the potential benefits to both children and
adults because studies indicate that they are both adversely affected
by exposures to lead in dust from renovation and remodeling activities.
As stated in Unit III.B., one of the purposes of Title X is the
elimination of lead-based paint hazards in target housing. EPA
considered the potential benefits to children separately from adults,
because a focus of Title X is the reduction in the threat of childhood
lead poisoning. The Agency specifically seeks comment on its
consideration of potential benefits to both adults and children, as
well as comments and information about the potential uncertainties
associated with the adult health effects considered and the magnitude
of those uncertainties.
4. Costs. The Draft Economic Analysis estimates the potential costs
of complying with this proposed rule including training costs,
certification costs, and work practice costs. As indicated previously,
the Agency is conducting additional analysis that could change the
estimated potential costs of the proposed rule. This new analysis will
be added to the docket as soon as it is complete. In the Draft Economic
Analysis, training costs will be incurred for renovators, who will
perform or direct the performance of key tasks during renovations, and
workers, who may perform renovation tasks under the direction of
renovators. Persons who are not currently certified as lead-based paint
abatement supervisors or workers and who wish to become certified
renovators would be required to take an accredited 8-hour renovator
course. Currently certified abatement supervisors and workers would
merely need to familiarize themselves with this proposal's work
practice and cleaning verification requirements. Training for
renovation workers under this proposal would consist of informal, on-
the-job training by a renovator. Renovators not otherwise certified
would be required to take a 4-hour refresher course every 3 years to
maintain their certification. Firms performing renovations will have to
be certified by EPA or an EPA-authorized State, Tribal, or Territorial
program. Certified firms would have to be re-certified every 3 years.
The work practice requirements of this proposal cover 3 general
categories of activities: Containing the work area, cleaning up the
work area after the project has been completed, and verifying that the
clean-up was adequate. Costs associated with these work practice
requirements are primarily related to the cost of materials, such as
the plastic used to cover the floors, and the cost of the labor needed
to establish containment before the project, clean the work area
afterwards, and perform the post-renovation cleaning verification step.
To further improve the analysis for the final rule, the Agency is
also specifically interested in comments and supporting information on
the following questions related to assumptions used in the Agency's
analysis:
To what extent do renovators/contractors already conduct
any of the individual activities described in the proposed rule, and
under what renovation, repair or painting circumstances are any of
these activities routinely or rarely conducted? Do any contractors
already perform all of the lead safe work practices described in this
proposal?
To what extent is the whole house or rooms adjacent to the
work area contaminated by typical renovation, repair or painting
activities? Under what circumstances do renovators/contractors clean
the whole house or adjacent rooms during or after renovation, repair or
painting activities?
Under what circumstances do homeowners or rental
management firms clean the work area or adjacent rooms during or after
renovation, repair or painting activities?
To what extent do renovators/contractors or homeowners
already use vacuums equipped with HEPA filters to clean-up debris
created during renovation, repair or painting activities?
Under what circumstances do renovators/contractors use
plastic sheets or other methods to isolate and collect dust and debris,
during or after renovation, repair or painting activities?
If dust or debris is generated in preparing the surfaces,
to what extent do renovators/contractors or building owners clean-up
the dust or debris before painting?
To what extent should the analysis reflect any exposures
to owners or occupants (both inhalation and ingestion) during the
renovation, repair or painting event? (The Draft Economic Analysis only
looks at ingestion exposures after the renovation, repair or painting
event is completed and the contractor has left).
How many days does a typical renovation, repair or
painting event last? How many days during the renovation, repair or
painting event is dust created? How often and how thoroughly is
cleaning performed during or after the renovation, repair or painting
event?
To what extent should the analysis of adult exposures
consider average dust loading on surfaces as compared to the typically
higher dust loadings resulting from renovation, repair or painting
events?
[[Page 1622]]
How do cleaning efficiencies of different cleaning methods
(sweeping, regular vacuum, HEPA vacuum) vary with the dust loading
level? There is information suggesting that cleaning is more effective
(as a percentage of dust removed) at higher dust loading levels. Thus,
when there are multiple rounds of cleaning, each one picks up a lower
percentage of dust than the one before it. Would the cleaning
efficiency be the same for dust with different lead concentrations? The
Draft Economic Analysis assumes that cleaning effectiveness is
constant, and does not vary with dust loading levels.
How do lead dust loading levels vary by the age of the
home and by home component type (e.g., indoor trim versus outdoor
trim)?
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 (PRA), 44 U.S.C. 3501 et
seq. An Information Collection Request (ICR) document prepared by EPA,
an amendment to an existing ICR that is approved under OMB control
number 2070-0155 and referred to as the ICR Addendum (EPA ICR No.
1715.07) has been placed in the public docket for this proposed rule
(Ref. 69).
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. The display of OMB control numbers in certain EPA
regulations is consolidated in 40 CFR part 9.
The new information collection activities contained in this
proposed rule are designed to assist the Agency in meeting the core
objectives of TSCA section 402, including ensuring the integrity of
accreditation programs for training providers; providing for the
certification of contractors; and determining whether work practice
standards are being followed. EPA has carefully tailored the proposed
reporting and recordkeeping requirements so they will permit the Agency
to achieve statutory objectives without imposing an undue burden on
those entities that choose to be involved in residential renovations.
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.
Under this proposal, the new information collection requirements
may affect training providers and firms that perform renovation,
repair, or painting for compensation in regulated housing. Although
these entities have the option of choosing to engage in the covered
activities, once an entity chooses to do so, the information collection
activities contained in this rule become mandatory for those entities.
The ICR document provides a detailed presentation of the estimated
burden and costs for 3 years of the program. The aggregate burden
varies by year due to changes in the number of firms that will seek
certification each year. The burden and cost to training providers and
renovation firms is summarized here.
There are 100 to 167 training providers that are estimated to incur
burden to become accredited, and to notify EPA (or an authorized State,
Tribe, or Territory) before and after training courses. The average
burden related to accreditation is estimated to be 15 hours during the
year a training provider is first accredited, 7 hours in years that it
is re-accredited (re-accreditation is required every 3 years), and 1
hour during other years. For notifications, the average burden per
training provider is estimated at 35 to 95 hours per year, depending on
the number of training courses provided. Total training provider burden
is estimated to be 6,300 to 12,900 hours per year.
The estimated number of firms certified to engage in residential
renovation, repair, or painting activities under the rule varies from
115,000 to 218,000, depending on the phase of the rule. The number of
firms that receive initial certification ranges from 72,000 per year to
141,000 per year, depending on the year. The average certification
burden is estimated to be 3.5 hours per firm in the year a firm is
initially certified, and 0.5 hours in years that it is re-certified
(which occurs every 3 years). Firms must also keep records of the work
they perform in regulated housing; this recordkeeping is estimated to
take an average of 5 hours per year. Total burden for renovation,
repair, and painting firms is estimated to be 981,000 to 1,530,000
hours per year, depending on the year.
Total respondent burden during the period covered by the ICR is
estimated to average 1,260,000 hours per year.
There are also government costs to administer the program. States,
Tribes, and Territories are allowed, but are under no obligation, to
apply for and receive authorization to administer these proposed
requirements. EPA will directly administer programs for States, Tribes,
and Territories that do not become authorized. Because the number of
States, Tribes, and Territories that will become authorized is not
known, administrative costs are estimated assuming that EPA will
administer the program everywhere. To the extent that other government
entities become authorized, EPA's administrative costs will be lower.
Direct your comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including the use of automated
collection techniques, to EPA using the public docket that has been
established for this proposed rule (Docket ID No. EPA-HQ-OPPT-2005-
0049). In addition, send a copy of your comments about the ICR to OMB
at: Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW., Washington, DC 20503, Attention: Desk
Office for EPA ICR No. 1715.07. Since OMB is required to complete its
review of the ICR between 30 and 60 days after January 10, 2006, please
submit your ICR comments for OMB consideration to OMB by February 9,
2006.
The Agency will consider and address comments received on the
information collection requirements contained in this proposal when it
develops the final rule.
C. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C.
601 et seq., and the Agency's long-standing policy of always
considering whether there may be a potential for adverse impacts on
small entities, the Agency has evaluated the potential small entity
impacts of this proposed rule. The Agency's analysis of potentially
adverse
[[Page 1623]]
economic impacts is included in the Draft Economic Analysis for this
proposed rule (Ref. 59). As discussed in Unit VIII.A., the revised
Economic Analysis, to be available in the docket, will provide
additional information about the expected costs and benefits, and
supplement the information now provided in the initial regulatory
flexibility analysis and considered for the final regulatory
flexibility analysis. The following is a brief overview of EPA's
initial regulatory flexibility analysis.
Small entities include small businesses, small organizations, and
small governmental jurisdictions. For purposes of assessing the impacts
of today's proposed rule on small entities, small entity is defined in
accordance with 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; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
1. Legal basis and objectives for the proposed rule. As discussed
in Unit III.C., TSCA section 402(c)(2) directs EPA to study the extent
to which persons engaged in renovation, repair, and painting activities
are exposed to lead or create a lead-based paint hazard regularly or
occasionally. After concluding this study, TSCA section 402(c)(3)
further directs EPA to revise its lead-based paint activities
regulations under TSCA section 402(a) to apply to renovation or
remodeling activities that create lead-based paint hazards. Because
EPA's study found that activities commonly performed during renovation
and remodeling create lead-based paint hazards, EPA is proposing to
revise the TSCA section 402(a) regulatory scheme to apply to
individuals and firms engaged in renovation and remodeling activities.
The primary objective of this proposal is to prevent the creation of
new lead-based paint hazards from renovation, repair, and painting
activities in housing where children under age 6 reside.
2. Potentially affected small entities. The small entities that are
potentially directly regulated by this proposed rule include small
businesses, such as renovation, repair, and painting contractors,
property owners and managers, small non-profits that own target
housing, and small governments that may own certain target housing. The
vast majority of businesses in the industries affected by this rule are
small. Approximately 200,000 small contractors and real estate
establishments per year will be affected per year under the proposed
rule. Information was not available to estimate the number of small
governments and small non-profits, but there are expected to be few, if
any, small governments that incur costs due to the rule.
3. Potential economic impacts on small entities. EPA used annual
compliance costs as a percentage of annual company revenues to assess
the potential impacts of the rule on small businesses. EPA believes
this is a good measure of a firm's 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 a
company's business volume. Where regulatory costs represent a small
fraction of a typical firm's revenues (for example, less than 1%, and
not greater than 3%), EPA believes that the financial impacts of the
regulation on such firms may be considered as not significant. EPA
believes it is appropriate to calculate this measure based on
annualized costs, because these costs are more representative of the
continuing costs firms face to comply with the proposed rule.
Using studies from the economics literature, the Draft Economic
Analysis (Ref. 59) for this proposed rule estimates that nearly 90% of
the estimated cost will be passed on to consumers in the form of higher
prices. The resulting cost impact ranges from about 0.5% to 1.6% of
revenues, depending on the industry. The costs represent less than 1%
of revenues for small firms when considered together. Because of the
lack of information on small non-profits and governments that might be
affected by the rule, it was not possible to calculate the typical cost
per entity or the impact ratios for them. However, the cost per event
for non-profits and governments is expected to be similar to that
incurred by businesses.
4. Relevant Federal rules. The proposed requirements in this
rulemaking will fit within an existing framework of other Federal
regulations that address lead-based paint.
The Pre-Renovation Education Rule, discussed in Unit III.B.2.b.,
requires renovators to distribute a lead hazard information pamphlet to
owners and occupants before conducting a renovation in target housing.
This proposal has been carefully crafted to harmonize with the existing
pre-renovation education requirements.
As discussed in Unit IV.D.2.c., disposal of waste from renovation
projects that would be regulated by this proposal is covered by the
Resource Conservation and Recovery Act (RCRA) regulations for solid
waste. This proposal does not contain specific requirements for the
disposal of waste from renovations.
As described in Unit III.B.3., HUD has extensive regulations that
address the conduct of interim controls, as well as other lead-based
paint activities, in Federally assisted housing. Some of HUD's interim
controls would be regulated under this proposal as renovations,
depending upon whether the particular interim control measure disturbs
more than the threshold amount of paint. In most cases, the HUD
regulations are comparable to, or more stringent than this proposal. In
general, persons performing HUD-regulated interim controls must have
taken a course in lead-safe work practices, which is also a requirement
of this proposal. However, this proposal would not require dust
clearance testing, a process required by HUD after interim control
activities that disturb more than a minimal amount of lead-based paint.
Finally, OSHA's Lead Exposure in Construction standard covers
potential worker exposures to lead during many construction activities,
including renovation, repair, and painting activities. Although this
standard, described in Unit III.B.3., may cover many of the same
projects as this proposal, the requirements themselves do not overlap.
The OSHA rule addresses the protection of the worker, this EPA proposal
addresses the protection of the building occupants, particularly
children under age 6.
5. Skills needed for compliance. This proposal would establish
requirements for training renovators and dust sampling technicians;
certifying renovators, dust sampling technicians, and renovation firms;
accrediting providers of renovation and dust sampling technician
training; and for renovation work practices. Renovators and dust
sampling technicians would have to take a course to learn the proper
techniques for accomplishing the tasks 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. Firms would be required to apply for certification
to perform renovations; this process does not require any special
skills other than the ability to complete the application. They would
also need
[[Page 1624]]
to document the work they have performed during renovations. This does
not require any special skills. Training providers must be
knowledgeable about delivering technical training. Training providers
would be required to apply for accreditation to offer renovator and
dust sampling technician courses. They would also be required to
provide prior notification of such courses and provide information on
the students trained after each such course. Completing the
accreditation application and providing the required notification
information does not require any special skills.
6. Small Business Advocacy Review Panel. EPA conducted outreach to
small entities and convened a Small Business Advocacy Review Panel to
obtain advice and recommendations of representatives of the small
entities that potentially would be subject to the rule's requirements.
The Panel was convened by EPA's Small Business Advocacy Chairperson on
November 23, 1999. In addition to the chairperson, the Panel consisted
of the Director of the Office of Pollution Prevention and Toxics, the
Administrator of the Office of Information and Regulatory Affairs
within the Office of Management and Budget, and the Chief Counsel for
Advocacy of the Small Business Administration.
After considering the existing lead-based paint activities
regulations, and taking into account preliminary stakeholder feedback,
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.
Interior clearance.
EPA also developed several options for each of these key elements.
At the onset of pre-panel discussions with SBA and OMB, EPA held three
conference calls with potentially impacted Small Entity Representatives
(SERs) to obtain feedback on these options and other alternatives for a
renovation and remodeling regulation. The Panel held an outreach
meeting with Small Entity Representatives (SERs) on December 3, 1999.
Eleven SERs, representing a broad range of small entities from diverse
geographic locations, and four association representatives participated
in the meeting. The Panel solicited comments from the SERs on the
options presented by EPA, as well as EPA's cost estimates for these
options. Several SERs submitted written comments to EPA following this
meeting. The Panel evaluated the assembled materials and small-entity
comments, and prepared a report for the Agency's consideration. A copy
of the Panel report is included in the docket for this proposed rule
(Ref. 33).
As a result of its deliberations, the Panel made a number of
recommendations. The options presented by EPA, the Panel's
recommendations, and EPA's responses to the recommendations, are
summarized here.
a. Applicability and scope. EPA presented four options: All pre-
1978 housing, all pre-1978 rental housing, all pre-1960 housing, and
all pre-1960 rental housing. The Panel recommended that EPA request
public comment in the proposal on the option of limiting the housing
stock affected by the rule to that constructed prior to 1960, as well
as the option of covering all pre-1978 housing and other options that
may help to reduce costs while achieving the protection of public
health. In the discussion of the scope and applicability in Unit IV.B.,
EPA identified the pre-1960 option, as well as the option of covering
all pre-1978 housing, and asked for public comment on these and other
options that would limit the costs of the rule to the regulated
community while providing protection to children from lead-based paint
hazards created by renovation projects.
EPA also presented 2 potential exemptions, a de minimis exemption
for projects that disturb 2 square feet or less of painted surfaces,
and an exemption for emergency projects. The Panel recommended that EPA
include both of these exemptions in its proposal. EPA is proposing to
extend the existing exemption for small projects available under the
Pre-Renovation Education Rule to the training, certification, and work
practice requirements of this proposal. However, rather than just
exempting emergency renovations from the requirements of this proposal,
EPA is adding a statement to the description of the exemption to
indicate that the training, certification, and work practice standards
apply to the extent practicable. As discussed in Unit IV.B., emergency
renovations can generally be conducted in accordance with most of these
proposed requirements, but some flexibility is necessary.
b. Firm certification. EPA presented three options: Certification
for all renovation firms, certification only for firms that perform
large-scale surface preparation activities or demolitions, and no firm
certification. The Panel believed that firm certification would help
consumers identify qualified renovation firms, so the Panel recommended
that firm certification be included in any proposal. The Panel also
recommended that EPA attempt to balance the goals and objectives of the
statute, with the burden associated with such regulatory requirements,
in order to avoid placing compliant firms at an undue competitive
disadvantage. EPA is proposing to require that firms who perform
renovations, as that term would be defined, be certified. EPA believes
that the proposed firm certification process is as minimally burdensome
for firms as possible, while achieving the objectives of the mandate.
c. Individual training and certification. EPA presented four
options to the Panel. The first option was to require training and
certification for all individuals who perform covered renovations. The
second option was to require training and certification only for the
supervisor. The third option was to require training for all
individuals who perform covered renovations, but no certification. The
final option was to require neither training nor certification for
individuals. The Panel realized that worker training increases the
likelihood that proper lead-safe work practices will be used, but
recognized that the rate of worker turnover in the industry would lead
to high training and certification costs for firms. As a less-
burdensome alternative, the Panel recommended that EPA propose formal
training for supervisors, or some other clearly-defined responsible
person, and informal training for all others. This recommendation has
been adopted by EPA in the proposed rule.
d. Accreditation of training courses. EPA presented two options on
this topic to the Panel: Accreditation required, or accreditation not
required. Although concerned about burdens for training providers, the
Panel understood that accreditation provides a mechanism for ensuring
quality control of training programs, establishing a minimum level of
essential training, and facilitating reciprocity between States. The
Panel recommended that EPA propose to require accreditation of
training, which is what EPA is doing in this proposal.
e. Work practice standards. EPA presented three 3 general options
to the Panel for work practice standards: prescriptive containment and
clean-up requirements, performance-based containment and clean-up
requirements, or no work practice requirements. The Panel recognized
that prescriptive approaches to work practice standards
[[Page 1625]]
may clearly identify ways to minimize lead-based paint hazards, but
felt that prescriptive practices may not be practical or effective in
all situations. Because a performance-based approach could provide
firms with the flexibility to manage risks in the most cost-effective
manner, the Panel recommended that EPA include performance-based
standards in the proposal. In response to this recommendation, EPA is
proposing an approach that includes required elements, such as warning
signs, containment barriers, and specialized cleaning, but allows
flexibility for the certified renovator to tailor these requirements to
the specific job at hand.
f. Prohibited practices. The current abatement regulations in 40
CFR part 745, subpart L prohibit the following work practices during
abatement projects: Open-flame burning or torching, machine sanding or
grinding, abrasive blasting or sandblasting, dry scraping of large
areas, and operating a heat gun in excess of 1100 degrees Fahrenheit.
EPA presented four options to the Panel on this topic: Prohibit these
practices during renovations, allow dry scraping and exterior flame-
burning or torching, allow dry scraping, and interior and exterior
flame-burning or torching, or allow all of these practices. The Panel
recognized industry concerns over the feasibility of prohibiting these
practices, especially when no cost-effective alternatives exist. The
Panel was also concerned about the potential risks associated with
these practices, but noted that reasonable training, performance,
containment, and clean-up requirements may adequately address these
risks. In Unit IV.D., EPA has followed the Panel's recommendation and
requested public comment on the cost, benefit, and feasibility of
prohibiting certain work practices, but EPA is not proposing to
prohibit any work practices. EPA has determined that the training,
containment, and clean-up requirements of this proposal are sufficient
to address any risks associated with the work practices prohibited by
the abatement regulations.
g. Exterior clearance. EPA presented three options to the Panel for
determining when an exterior renovation project area had been properly
cleaned-up and the area made ready for re-occupancy. This determination
is typically called ``clearance.'' EPA's three options were visual
inspection only, soil sampling, or no clearance process at all.
Consistent with other Federal lead-based paint regulations, including
the abatement regulations at 40 CFR part 745, subpart L, the Panel
recommended that EPA propose to require a visual inspection for
clearance after exterior renovations. This is the option EPA has
proposed in this rulemaking.
h. Interior clearance. Interior clearance was a particularly
difficult issue for the Panel. Interior clearance after lead-based
paint abatement projects involves an independent third-party collecting
dust wipe samples, sending them to an EPA-recognized laboratory for
analysis, and comparing the results to the standards established in 40
CFR 745.227(e)(8). This is expensive and time-consuming. EPA presented
4 options to the Panel for interior clearance: dust testing after all
projects, dust testing only after large-scale surface preparation,
demolition, or any of the practices prohibited by the abatement
regulations, visual clearance only, and no clearance at all. After
reviewing the studies available at the time, the Panel could not
conclude that a thorough professional clean-up or a visual inspection
would be an adequate substitute for dust wipe testing. The SBA
introduced a new option to the Panel, consisting of a specific cleanup
methodology followed by a visual clearance requirement, as an
alternative to dust clearance testing. The Panel recommended that EPA
include this new option in the proposal and take comment on the merits
of all the interior clearance options in the proposal. The Panel also
recommended that EPA take comment on options for clearance that are
less costly and less burdensome and yet still demonstrate the absence
of lead hazards. As discussed in Unit IV.E., EPA followed the Panel
report with research into alternatives to laboratory dust clearance and
is proposing an option based on this research. EPA is also requesting
comment on other methods of ensuring that leaded dust and debris
created during renovations have been cleaned up properly.
The Panel also recommended that the EPA do additional analysis of
the existing data from Phase III of the renovation and remodeling study
conducted under TSCA section 402(c)(2), discussed in Unit III.C.1.c.
This phase of the study consisted of telephone interviews about
renovation and remodeling activities with the parents or guardians of
Wisconsin children for whom blood-lead data was available. The results
of this additional analysis, which focused on the relationship between
who performs renovation and remodeling activities and the odds of an
elevated blood-lead level occurring in a resident child, are discussed
in Unit III.C.1.c. and have been placed in the docket (Ref. 34).
Finally, the Panel recommended that EPA continue to refine the
impact analysis of the proposal, utilizing comments from affected
industry and other parties related to costs and other issues. As
always, EPA continues to refine its impact analysis, and is again
requesting comment on EPA's updated assessment of the costs and
benefits of this proposed rule.
EPA invites comments on all aspects of the proposal and its impacts
on small entities.
D. Unfunded Mandates Reform Act (UMRA)
Under Title II of the Unfunded Mandates Reform Act (UMRA) (Public
Law 104-4), EPA has determined that this proposed 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 a written statement under section 202 of
the UMRA which has been placed in the public docket for this proposed
rule and is summarized here.
1. Authorizing legislation. This proposal is issued under the
authority of TSCA sections 402(c)(3) and 404.
2. Cost-benefit analysis. EPA has prepared an analysis of the costs
and benefits associated with this proposed action (Ref. 59), a copy of
which is available in the public docket for this rulemaking. The Draft
Economic Analysis presents the costs of the proposal as well as various
regulatory options and is summarized in Unit VIII.A.
3. State, local, and Tribal government input. EPA has sought input
from State, local and Tribal government representatives throughout the
development of this proposal. 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., the
Agency has met with State, local, and Tribal government officials on
numerous occasions to discuss renovation issues.
4. Least burdensome option. As discussed in the Draft Economic
Analysis prepared for this regulation, as well as in the information
presented on the Panel review process in Unit VIII.C.6., EPA considered
a wide variety of options for addressing the risks presented by
renovation activities in
[[Page 1626]]
residences where lead-based paint is present. Options considered
include covering only homes built before 1960, various combinations of
training and certification requirements for individuals who perform
renovations in covered housing, various combinations of work practice
requirements, and various methods for ensuring that no lead-based paint
hazards are left behind by persons performing renovations. EPA has
determined that the proposed option is the least burdensome option
available that achieves the objective of this proposed rule, which is
to prevent the creation of new lead-based paint hazards from
renovation, repair, and painting activities in housing where children
under age 6 reside.
This proposed rule does not contain a significant Federal
intergovernmental mandate as described by section 203 of UMRA. EPA has
also determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. Based on the
definition of ``small government jurisdiction'' in RFA section 601, no
State governments can be considered small. Small Territorial or Tribal
governments could apply for authorization to administer and enforce
this program, which would entail costs, but these small jurisdictions
are under no obligation to do so.
E. Federalism
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.
As discussed in Unit IV.F., States would be able to apply for, and
receive authorization to administer these proposed requirements, but
would be under no obligation to do so. In the absence of a State
authorization, EPA will administer these requirements. In addition,
although the provisions of this proposal would apply to renovations in
target housing owned by State and local governments, many of these
housing authorities receive federal subsidies for public housing.
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 has consulted with
representatives of State and local governments in developing this rule.
EPA hosted three renovation-specific meetings or conference calls with
State and local government officials. Summaries of these meetings have
been placed in the public docket for this action (Refs. 41, 42, and
43).
EPA specifically solicits additional comment on this proposed rule
from State and local officials.
F. Tribal Implications
As required by Executive Order 13175, entitled Consultation and
Coordination with Indian Tribal Governments (59 FR 22951, November 6,
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. As discussed in Unit IV.F., Tribes would be
able to apply for, and receive authorization to administer these
proposed requirements on Tribal lands, but Tribes would be under no
obligation to do so. In the absence of a Tribal authorization, EPA will
administer these requirements. Thus, Executive Order 13175 does not
apply to this rule. Although Executive Order 13175 does not apply to
this rule, EPA consulted with Tribal officials and others by discussing
potential renovation regulatory options at several national lead
program meetings hosted by EPA and other interested Federal agencies.
EPA specifically solicits additional comment on this proposed rule
from Tribal officials.
G. Children's Health Protection.
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997) applies to this proposed rule because it has been designated an
``economically significant regulatory action'' as defined by Executive
Order 12866, and the environmental health or safety risk addressed by
this action have a disproportionate effect on children. Accordingly,
EPA has evaluated the environmental health or safety effects of
renovation, repair, and painting projects on children. Various aspects
of this evaluation are discussed in Units III.C., IV.A., VIII.A., and
VIII.C. Copies of the renovation and remodeling studies (Refs. 30, 31,
32, 37, and 38), the Draft Economic Analysis for this proposal (Ref.
59), the proposed and final TSCA section 403 hazard standards (Refs. 24
and 64), and the risk assessments supporting the hazard standards
(Refs. 70 and 71) have been placed in the public docket for this
action.
One purpose of this proposed regulation is to prevent the creation
of new lead-based paint hazards from renovation activities in housing
where children under age 6 reside. EPA's analysis indicates that
renovation, repair, and painting projects in housing that is likely to
contain lead-based paint will affect over 1.1 million children under
age 6 annually. In the absence of this regulation, lead-safe work
practices are not likely to be employed to perform the renovation
projects. These children are projected to receive considerable benefits
due to this regulation.
H. Energy Effects
This 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. Technology Standards
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
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.
EPA is proposing to adopt a number of work practice requirements
that could be considered technical standards for performing renovation
projects in residences that contain lead-based paint. EPA has
identified 2 voluntary consensus documents that address aspects of the
proper performance of renovation projects where lead-based paint is
present. ASTM International (formerly the American Society for Testing
and Materials) has developed 2 potentially-applicable documents:
``Standard Practice for Clearance Examinations Following Lead Hazard
Reduction Activities in Single-Family
[[Page 1627]]
Dwellings and Child-Occupied Facilities'' (Ref. 72), and ``Standard
Guide for Evaluation, Management, and Control of Lead Hazards in
Facilities'' (Ref. 73). With respect to the first document, EPA is not
proposing to require traditional clearance examinations, including dust
sampling, following renovation projects. However, as discussed in Unit
IV.E., EPA is proposing to require that a visual inspection for dust,
debris, and residue be conducted after cleaning and before post-
renovation cleaning verification is performed. The first ASTM document
does contain information on conducting a visual inspection before
collecting dust clearance samples. The second ASTM document is a
comprehensive guide to identifying and controlling lead-based paint
hazards. Some of the information in this document is relevant to the
work practices that EPA is proposing to require. Each of 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. However, because each of these documents
is extremely detailed and encompasses many circumstances beyond the
scope of this rulemaking, EPA does not believe that it is practical to
incorporate these voluntary consensus standards into this proposal.
In addition, EPA is proposing to recognize test kits that may be
used by certified renovators to determine whether components to be
affected by a renovation contain lead-based paint. EPA will recognize
those kits that meet certain performance standards for limited false
positives and negatives. EPA also intends recognize only those kits
that have been properly validated by a laboratory independent of the
kit manufacturer. Although EPA is not establishing a particular method
that must be used for validating kits, for chemical spot test kits, EPA
plans to look to the ASTM document entitled Standard Practice for
Evaluating the Performance Characteristics of Qualitative Chemical Spot
Test Kits for Lead in Paint (Ref. 50) to determine whether a particular
kit's validation is adequate.
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.
J. Environmental Justice
Under Executive Order 12898, entitled Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994), the Agency has assessed
the potential impact of this proposal on minority and low-income
populations. The results of this assessment are presented in the Draft
Economic Analysis for this proposal, which is available in the public
docket for this rulemaking (Ref. 59). The rule will not have
disproportionately high and adverse human health or environmental
effects on minority populations and low-income populations.
List of Subjects in 40 CFR Part 745
Environmental protection, Housing renovation, Lead, Lead-based
paint, Reporting and recordkeeping requirements.
Dated: December 29, 2005.
Stephen L. Johnson,
Administrator.
Therefore, it is proposed that 40 CFR chapter I be amended as
follows:
PART 745--[AMENDED]
1. The authority citation for part 745 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
2. Section 745.80 is revised to read as follows:
Sec. 745.80 Purpose.
This subpart contains regulations developed under sections 402 and
406 of the Toxic Substances Control Act (15 U.S.C. 2682 and 2686) and
applies to all renovations of target housing performed for
compensation. The purpose of this subpart is to ensure the following:
(a) Owners and occupants of target housing receive information on
lead-based paint hazards before these renovations begin; and
(b) Persons performing renovations regulated in accordance with
Sec. 745.82 are properly trained; renovators, dust sampling
technicians, and firms performing these renovations are certified; and
lead-safe work practices are followed during these renovations.
3. Section 745.81 is revised to read as follows:
Sec. 745.81 Effective dates.
(a) Training, certification and accreditation requirements and work
practice standards. The training, certification and accreditation
requirements and work practice standards in this subpart are applicable
as of [insert date 1 year after date of publication of the final rule
in the Federal Register] in any State or Indian Tribal area that does
not have a renovation program that is authorized under subpart Q of
this part. The training, certification and accreditation requirements
and work practice standards in this subpart will become effective as
follows:
(1) Training programs. Effective [insert date 60 days after date of
publication of the final rule in the Federal Register], no training
program may provide, offer, or claim to provide training or refresher
training for EPA certification as a renovator or a dust sampling
technician without accreditation from EPA under Sec. 745.225. Training
programs may apply for accreditation under Sec. 745.225 beginning
[insert date 1 year after date of publication of the final rule in the
Federal Register].
(2) Firms. Firms may apply for certification under Sec. 745.89
beginning [insert date 18 months after date of publication of the final
rule in the Federal Register].
(i) No firm may perform, offer, or claim to perform renovations, as
defined in this subpart, without certification from EPA under Sec.
745.89 on or after [insert date 2 years after date of publication of
the final rule in the Federal Register]:
(A) In any target housing where the firm obtains information
indicating that a child under age 6 with a blood lead level greater
than or equal to 10 [mu]g/dL or the applicable State or local
government level of concern, if lower, resides there, or in any target
housing where the firm has not provided the owners and occupants with
the opportunity to inform the firm that a child under age 6 with such a
blood lead level resides there; or
(B) In target housing constructed before 1960, unless, in the case
of owner-occupied target housing, the firm has obtained a statement
signed by the owner that the renovation will occur in the owner's
residence and no child under age 6 resides there.
(ii) No firm may perform, offer, or claim to perform renovations,
as defined in this subpart, without certification from EPA under Sec.
745.89 on or after [insert date 3 years after date of publication of
the final rule in the Federal Register] in any target housing, unless,
in the case of owner-occupied target housing, the firm has obtained a
statement signed by the owner that the renovation will occur in the
owner's residence and no child under age 6 resides there.
[[Page 1628]]
(3) Individuals. (i) All renovations, as defined in this subpart,
must be directed by renovators certified in accordance with Sec.
745.90(a) and performed by certified renovators or individuals trained
in accordance with Sec. 745.90(b)(2) on or after [insert date 2 years
after date of publication of the final rule in the Federal Register]:
(A) In any target housing where the firm performing the renovation
obtains information indicating that a child under age 6 with a blood
lead level greater than or equal to 10 [mu]g/dL or the applicable State
or local government level of concern, if lower, resides there, or in
any target housing where the firm has not provided the owners and
occupants with the opportunity to inform the firm that a child under
age 6 with such a blood lead level resides there; or
(B) In target housing constructed before 1960, unless, in the case
of owner-occupied target housing, the firm performing the renovation
has obtained a statement signed by the owner that the renovation will
occur in the owner's residence and no child under age 6 resides there.
(ii) All renovations, as defined in this subpart, must be directed
by renovators certified in accordance with Sec. 745.90(a) and
performed by certified renovators or individuals trained in accordance
with Sec. 745.90(b)(2) on or after [insert date 3 years after date of
publication of the final rule in the Federal Register] in any target
housing, unless, in the case of owner-occupied target housing, the firm
performing the renovation has obtained a statement signed by the owner
that the renovation will occur in the owner's residence and no child
under age 6 resides there.
(4) Work practices. (i) All renovations, as defined in Sec.
745.83, must be performed in accordance with the work practice
standards in Sec. 745.85 and the associated recordkeeping requirements
in Sec. 745.86(b)(6) and (b)(7) on or after [insert date 2 years after
date of publication of the final rule in the Federal Register]:
(A) In any target housing where the firm performing the renovation
obtains information indicating that a child under age 6 with a blood
lead level greater than or equal to 10 [mu]g/dL or the applicable State
or local government level of concern, if lower, resides there, or in
any target housing where the firm has not provided the owners and
occupants with the opportunity to inform the firm that a child under
age 6 with such a blood lead level resides there; or
(B) In target housing constructed before 1960, unless, in the case
of owner-occupied target housing, the firm performing the renovation
has obtained a statement signed by the owner that the renovation will
occur in the owner's residence and no child under age 6 resides there.
(ii) All renovations, as defined in this subpart, must be performed
in accordance with the work practice standards in Sec. 745.85 and the
associated recordkeeping requirements in Sec. 745.86(b)(6) and (b)(7)
on or after [insert date 3 years after date of publication of the final
rule in the Federal Register] in any target housing, unless, in the
case of owner-occupied target housing, the firm performing the
renovation has obtained a statement signed by the owner that the
renovation will occur in the owner's residence and no child under age 6
resides there.
(5) The suspension and revocation provisions in Sec. 745.91 are
effective [insert date 2 years after date of publication of the final
rule in the Federal Register].
(b) Renovation-specific pamphlet. Before [insert date 8 months
after date of publication of the final rule in the Federal Register],
renovators or firms performing renovations in States and Indian Tribal
areas without an authorized program may provide owners and occupants
with either of the following EPA pamphlets: Protect Your Family From
Lead in Your Home or Protect Your Family from Lead During Renovation,
Repair & Painting. After that date, Protect Your Family from Lead
During Renovation, Repair & Painting must be used exclusively.
(c) Pre-Renovation Education Rule. With the exception of the
requirement to use the pamphlet titled Protect Your Family from Lead
During Renovation, Repair & Painting, the provisions of the Pre-
Renovation Education Rule in this subpart have been in effect since
June 1999.
4. Section 745.82 is revised to read as follows:
Sec. 745.82 Applicability.
(a) This subpart applies to all renovations of target housing
performed for compensation, except for the following:
(1) Minor repair and maintenance activities (including minor
electrical work and plumbing) that disrupt 2 square feet or less of
painted surface per component.
(2) Renovations in target housing in which a written determination
has been made by an inspector (certified pursuant to either Federal
regulations at Sec. 745.226 or a State or Tribal certification program
authorized pursuant to Sec. 745.324) that the components affected by
the renovation are free of paint or other surface coatings that contain
lead equal to or in excess of 1.0 milligrams/per square centimeter (mg/
cm2) or 0.5% by weight, where the firm performing the
renovation has obtained a copy of the determination.
(3) Renovations in target housing in which a certified renovator,
using an acceptable test kit and following the kit manufacturer's
instructions, has determined that the components affected by the
renovation are free of paint or other surface coatings that contain
lead equal to or in excess of 1.0 mg/cm2 or 0.5% by weight.
(b) The information distribution requirements in Sec. 745.84 do
not apply to emergency renovation operations, which are renovation
activities that were not planned but result from a sudden, unexpected
event (such as non-routine failures of equipment) that, if not
immediately attended to, presents a safety or public health hazard, or
threatens equipment and/or property with significant damage. Interim
controls performed in response to an elevated blood lead level in a
resident child are also emergency renovation operations. The work
practice, training, and certification requirements in Sec. Sec.
745.85, 745.89, 745.90 and the recordkeeping requirements in Sec.
745.86(b)(6) and (b)(7) apply to emergency renovation operations to the
extent practicable.
(c) The work practice standards for renovation activities in Sec.
745.85 apply to all renovations covered by this subpart, except for
renovations in target housing for which the firm performing the
renovation has obtained a statement signed by the owner that the
renovation will occur in the owner's residence and no child under age 6
resides there. For the purposes of this section, a child resides in the
primary residence of his or her custodial parents, legal guardians, and
foster parents. A child also resides in the primary residence of an
informal caretaker if the child lives and sleeps most of the time at
the caretaker's residence.
5. Section 745.83 is amended as follows:
a. Remove the definition of ``Emergency renovation operations.''
b. Revise the definition of ``Pamphlet'' and the definition of
``Renovator.''
c. Add 11 definitions in alphabetic order.
Sec. 745.83 Definitions.
* * * * *
Acceptable test kit means a commercially available kit recognized
by EPA pursuant to section 405 of TSCA as being capable of allowing a
user to
[[Page 1629]]
accurately determine the presence of lead at levels equal to or in
excess of 1.0 milligrams per square centimeter, or more than 0.5% lead
by weight, in a paint chip, paint powder, or painted surface.
* * * * *
Cleaning verification card means a card developed and distributed,
or otherwise approved, by EPA for the purpose of determining, through
comparison of disposable cleaning cloths with the card, whether post-
renovation cleaning has been properly completed.
Component or building component means specific design or structural
elements or fixtures of a building or residential dwelling that are
distinguished from each other by form, function, and location. These
include, but are not limited to, interior components such as: Ceilings,
crown molding, walls, chair rails, doors, door trim, floors,
fireplaces, radiators and other heating units, shelves, shelf supports,
stair treads, stair risers, stair stringers, newel posts, railing caps,
balustrades, windows and trim (including sashes, window heads, jambs,
sills or stools and troughs), built in cabinets, columns, beams,
bathroom vanities, counter tops, and air conditioners; and exterior
components such as: Painted roofing, chimneys, flashing, gutters and
downspouts, ceilings, soffits, fascias, rake boards, cornerboards,
bulkheads, doors and door trim, fences, floors, joists, lattice work,
railings and railing caps, siding, handrails, stair risers and treads,
stair stringers, columns, balustrades, window sills or stools and
troughs, casings, sashes and wells, and air conditioners.
Dry disposable cleaning cloth means a commercially available dry,
electrostatically charged, white disposable cloth designed to be used
for cleaning hard surfaces such as uncarpeted floors or counter tops.
* * * * *
Firm means a company, partnership, corporation, sole proprietorship
or individual doing business, association, or other business entity; a
Federal, State, Tribal, or local government agency; or a nonprofit
organization.
HEPA-equipped vacuum means a vacuum equipped with a high efficiency
particulate air filter.
Interim controls means a set of measures designed to temporarily
reduce human exposure or likely exposure to lead-based paint hazards,
including specialized cleaning, repairs, maintenance, painting,
temporary containment, ongoing monitoring of lead-based paint hazards
or potential hazards, and the establishment and operation of management
and resident education programs.
* * * * *
Pamphlet means the EPA pamphlet titled Protect Your Family from
Lead During Renovation, Repair & Painting developed under section
406(a) of TSCA for use in complying with section 406(b) of TSCA, or any
State or Tribal pamphlet approved by EPA pursuant to 40 CFR 745.326
that is developed for the same purpose. This includes reproductions of
the pamphlet when copied in full and without revision or deletion of
material from the pamphlet (except for the addition or revision of
State or local sources of information). Before [insert date 8 months
after date of publication of the final rule in the Federal Register],
the term ``pamphlet'' also means any pamphlet developed by EPA under
section 406(a) of TSCA or any State or Tribal pamphlet approved by EPA
pursuant to Sec. 745.326.
* * * * *
Renovator means a person who either performs or directs uncertified
workers who perform renovations. A certified renovator is a renovator
who has successfully completed a renovator course accredited by EPA or
an EPA-authorized State or Tribal program.
Training hour means at least 50 minutes of actual learning,
including, but not limited to, time devoted to lecture, learning
activities, small group activities, demonstrations, evaluations, and
hands-on experience.
Wet disposable cleaning cloth means a commercially available, pre-
moistened white disposable cloth designed to be used for cleaning hard
surfaces such as uncarpeted floors or counter tops.
Wet mopping system means a device with the following
characteristics: A long handle, a mop head designed to be used with
disposable absorbent cleaning pads, a reservoir for cleaning solution,
and a built-in mechanism for distributing or spraying the cleaning
solution onto a floor.
Work area means the area that the certified renovator establishes
to contain all of the dust and debris generated by a renovation, based
on the certified renovator's evaluation of the extent and nature of the
activity and the specific work practices that will be used.
Sec. 745.84 [Removed]
6. Section 745.84 is removed.
Sec. 745.85 [Redesignated]
7. Section 745.85 is redesignated as Sec. 745.84.
8. Newly designated Sec. 745.84 is amended as follows:
a. Revise the introductory text of paragraph (a) and revise
paragraph (a)(2)(i).
b. Revise the introductory text of paragraph (b) and revise
paragraphs (b)(2) and (b)(4).
c. Revise the introductory text of paragraph (c).
Sec. 745.84 Information distribution requirements.
(a) Renovations in dwelling units. No more than 60 days before
beginning renovation activities in any residential dwelling unit of
target housing, the firm performing the renovation must:
(1) * * *
(2) * * *
(i) Obtain, from the adult occupant, a written acknowledgment that
the occupant has received the pamphlet; or certify in writing that a
pamphlet has been delivered to the dwelling and that the firm
performing the renovation has been unsuccessful in obtaining a written
acknowledgment from an adult occupant. Such certification must include
the address of the unit undergoing renovation, the date and method of
delivery of the pamphlet, names of the persons delivering the pamphlet,
reason for lack of acknowledgment (e.g., occupant refuses to sign, no
adult occupant available), the signature of a representative of the
firm performing the renovation, and the date of signature.
* * * * *
(b) Renovations in common areas. No more than 60 days before
beginning renovation activities in common areas of multi-unit target
housing, the firm performing the renovation must:
(1) * * *
(2) Notify in writing, or ensure written notification of, each
affected unit and make the pamphlet available upon request prior to the
start of renovation. Such notification shall be accomplished by
distributing written notice to each affected unit. The notice shall
describe the general nature and locations of the planned renovation
activities; the expected starting and ending dates; and a statement of
how the occupant can obtain the pamphlet, at no charge, from the firm
performing the renovation.
(3) * * *
(4) If the scope, locations, or expected starting and ending dates
of the planned renovation activities change after the initial
notification, the firm performing the renovation must provide further
written notification to the owners and occupants providing revised
information on the ongoing or planned activities. This subsequent
notification must be provided before the firm performing the renovation
initiates work
[[Page 1630]]
beyond that which was described in the original notice.
(c) Written acknowledgment. The written acknowledgments required by
paragraphs (a)(1)(i), (a)(2)(i), and (b)(1)(i) of this section must:
* * * * *
9. Section 745.85 is added to subpart E to read as follows:
Sec. 745.85 Work practice standards.
(a) Standards for renovation activities. Renovations must be
performed by certified firms using certified renovators as directed in
Sec. 745.89.
(1) Occupant protection. Firms must post signs clearly defining the
work area and warning occupants and other persons not involved in
renovation activities to remain outside of the work area. These signs
must be posted before beginning the renovation and must remain in place
and readable until the renovation and the post-renovation cleaning
verification have been completed. If warning signs have been posted in
accordance with 24 CFR 35.1345(b)(2) or 29 CFR 1926.62(m), additional
signs are not required by this section.
(2) Containing the work area. Before beginning the renovation, the
firm must isolate the work area so that no visible dust or debris
leaves the work area while the renovation is being performed.
(i) Interior renovations. The firm must:
(A) Remove all objects from the work area, including furniture,
rugs, and window coverings, or cover them with plastic sheeting or
other impermeable material with all seams and edges taped or otherwise
sealed.
(B) Close and cover all ducts opening in the work area with taped-
down plastic sheeting or other impermeable material.
(C) Close windows and doors in the work area. Doors must be covered
with plastic sheeting or other impermeable material. Doors used as an
entrance to the work area must be covered with plastic sheeting or
other impermeable material in a manner that allows workers to pass
through while confining dust and debris to the work area.
(D) Cover the floor surface of the work area with plastic sheeting
or other impermeable material with all seams taped and all edges
secured at the perimeter of the work area
(E) Ensure that all personnel, tools, and other items including
waste are free of dust and debris when leaving the work area.
Alternatively, the paths used to reach the exterior of the home must be
covered with plastic sheeting or other impermeable material to prevent
the spread of lead contaminated dust and debris outside the work area.
(ii) Exterior renovations. The firm must:
(A) Close all doors and windows within 20 feet of the renovation.
On multi-story buildings, close all doors and windows within 20 feet of
the renovation on the same floor as the renovation, and close all doors
and windows on all floors below that are the same horizontal distance
from the renovation.
(B) Ensure that doors within the work area that must be used while
the job is being performed are covered with plastic sheeting or other
impermeable material in a manner that allows workers to pass through
while confining dust and debris to the work area.
(C) Cover the ground with plastic sheeting or other disposable
impermeable material extending out from the edge of the structure a
sufficient distance to collect falling paint debris.
(3) Waste from renovations. (i) Waste from renovation activities
must be contained to prevent releases of dust and debris before the
waste is removed from the work area for storage or disposal. If a chute
is used to remove waste from the work area, it must be covered.
(ii) At the conclusion of each work day and at the conclusion of
the renovation, waste that has been collected from renovation
activities must be stored under containment, in an enclosure, or behind
a barrier that prevents release of dust and debris out of the work area
and prevents access to dust and debris.
(iii) When the firm transports waste from renovation activities,
the firm must contain the waste to prevent identifiable releases of
dust and debris.
(4) Cleaning the work area. After the renovation has been
completed, the firm must clean the work area until no visible dust,
debris or residue remains.
(i) Interior and exterior renovations. The firm must:
(A) Pick up all paint chips and debris.
(B) Remove the protective sheeting. Mist the sheeting before
folding it, fold the dirty side inward, and either tape shut to seal or
seal in heavy-duty bags. Sheeting used to isolate contaminated rooms
from non-contaminated rooms must remain in place until after the
cleaning and removal of other sheeting. Dispose of the sheeting as
waste.
(ii) Additional cleaning for interior renovations. The firm must
clean all objects and surfaces in and around the work area in the
following manner, cleaning from higher to lower:
(A) Walls. Clean walls starting at the ceiling and working down to
the floor by either vacuuming with a HEPA-equipped vacuum or wiping
with a damp cloth.
(B) Remaining surfaces. Thoroughly vacuum all remaining surfaces
and objects in the work area, including furniture and fixtures, with a
HEPA-equipped vacuum. The HEPA-equipped vacuum must be equipped with a
beater bar when vacuuming carpets and rugs. Where feasible, floor
surfaces underneath a rug or carpeting must also be thoroughly vacuumed
with a HEPA-equipped vacuum.
(C) Wipe all remaining surfaces and objects in the work area,
except for carpeted or upholstered surfaces, with a damp cloth. Mop
uncarpeted floors thoroughly, using a 2-bucket mopping method that
keeps the wash water separate from the rinse water, or using a wet
mopping system.
(b) Standards for post-renovation cleaning verification. (1)
Interiors. (i) A certified renovator must perform a visual inspection
to determine whether visible amounts of dust, debris or residue are
still present. If visible amounts of dust, debris or residue are
present, these conditions must be eliminated by re-cleaning and another
visual inspection must be performed.
(ii) After a successful visual inspection, a certified renovator
must:
(A) Verify that each windowsill in the work area has been
adequately cleaned, using the following procedure.
(1) Wipe the windowsill with a wet disposable cleaning cloth that
is damp to the touch. If the cloth matches the cleaning verification
card, the windowsill has been adequately cleaned.
(2) If the cloth does not match the cleaning verification card, re-
clean the windowsill as directed in paragraphs (a)(4)(ii)(B) and (C) of
this section, then either use a new cloth or fold the used cloth in
such a way that an unused surface is exposed, and wipe the windowsill
again. If the cloth matches the cleaning verification card, that
windowsill has been adequately cleaned.
(3) If the cloth does not match the cleaning verification card,
clean that windowsill again as directed in paragraphs (a)(4)(ii)(B) and
(C) of this section and wait for one hour or until the windowsill has
dried completely, whichever is longer.
(4) After waiting for the windowsill to dry, wipe the windowsill
with dry disposable cleaning cloths until a cloth, or section of cloth,
used to wipe the windowsill matches the cleaning verification card.
[[Page 1631]]
(B) Wipe uncarpeted floors within the work area with a wet
disposable cleaning cloth, using an application device with a long
handle and a head to which the cloth is attached. The cloth must remain
damp at all times while it is being used to wipe the floor for post-
renovation cleaning verification. If the floor surface within the work
area is greater than 40 square feet, the floor within the work area
must be divided into roughly equal sections that are each less than 40
square feet. Wipe each such section separately with a new wet
disposable cleaning cloth. If the cloth used to wipe each section of
the floor within the work area matches the cleaning verification card,
the floor has been adequately cleaned.
(1) If the cloth used to wipe a particular floor section does not
match the cleaning verification card, re-clean that section of the
floor as directed in paragraphs (a)(4)(ii)(B) and (a)(4)(ii)(C) of this
section, then use a new wet disposable cleaning cloth to wipe that
section again. If the cloth matches the cleaning verification card,
that section of the floor has been adequately cleaned.
(2) If the cloth used to wipe a particular floor section does not
match the cleaning verification card after the floor has been re-
cleaned, clean that section of the floor again as directed in
paragraphs (a)(4)(ii)(B) and (a)(4)(ii)(C) of this section and wait for
1 hour or until the entire floor within the work area has dried
completely, whichever is longer.
(3) After waiting for the entire floor within the work area to dry,
wipe those sections of the floor that have not yet achieved post-
renovation cleaning verification with dry disposable cleaning cloths
until a cloth that has wiped those sections of the floor matches the
cleaning verification card. This wiping must also be performed using an
application device with a long handle and a head to which the cloths
are attached.
(iii) Dust clearance sampling may be performed instead of, or in
addition to, the procedures identified in paragraph (b)(1)(ii) of this
section. If dust clearance sampling is performed, it must be performed
in accordance with Sec. 745.227(e)(8) through (e)(9), except that a
dust sampling technician certified in accordance with this subpart may
collect and report the results of the required samples.
(iv) When the work area passes the post-renovation cleaning
verification or dust clearance sampling, remove the warning signs.
(2) Exteriors. A certified renovator must perform a visual
inspection to determine whether visible amounts of dust, debris or
residue are still present. If visible amounts of dust, debris or
residue are present, these conditions must be eliminated and another
visual inspection must be performed. When the area passes the visual
inspection, remove the warning signs.
(c) Activities conducted after post-renovation 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 cleaning
verification has been performed.
10. Section 745.86 is amended by revising paragraph (a) and adding
new paragraphs (b)(6) and (b)(7) to read as follows:
Sec. 745.86 Recordkeeping requirements.
(a) Firms performing renovations or conducting dust sampling must
retain and, if requested, make available to EPA all records necessary
to demonstrate compliance with this subpart for a period of 3 years
following completion of the renovation or dust sampling activities.
This 3-year retention requirement does not supersede longer obligations
required by other provisions for retaining the same documentation,
including any applicable State or Tribal laws or regulations.
(b) * * *
(6) Any signed and dated statements received from owner-occupants
that no children under age 6 reside in housing being renovated which
document that the requirements of Sec. 745.85 do not apply. These
statements must include a declaration that the renovation will occur in
the owner's residence, a declaration that no children under age 6
reside there, the address of the unit undergoing renovation, the
owner's name, the signature of the owner, and the date of signature.
These statements must be written in the same language as the text of
the renovation contract, if any. This requirement includes any
statements received from owners or occupants that a child under age 6
with a blood lead level that equals or exceeds 10 [mu]g/dL, or an
applicable State or local government level of concern, if lower,
resides there.
(7) Documentation of compliance with the requirements of Sec.
745.85, including documentation that a certified renovator was assigned
to the project, the certified renovator provided on-the-job training
for uncertified workers used on the project, the certified renovator
performed or directed uncertified workers who performed all of the
tasks described in Sec. 745.85(a), and the certified renovator
performed the post-renovation cleaning verification described in Sec.
745.85(b). This documentation must include a copy of the certified
renovator's or dust sampling technician's training certificate, and
signed and dated descriptions of how activities performed by the
certified renovator or dust sampling technician, including worker
training activities, sign posting, work area containment, waste
handling, cleaning, and post-renovation cleaning verification or
clearance were conducted in compliance with this subpart. The
descriptions of these activities must include a certification by the
record preparer that the descriptions are complete and accurate.
11. Section 745.87 is amended by revising paragraph (e) to read as
follows:
Sec. 745.87 Enforcement and inspections.
* * * * *
(e) Lead-based paint is assumed to be present at renovations
covered by this subpart. EPA may conduct inspections and issue
subpoenas pursuant to the provisions of TSCA section 11 (15 U.S.C.
2610) to ensure compliance with this subpart.
Sec. 745.88 [Removed]
12. Section 745.88 is removed.
13. Section 745.89 is added to subpart E to read as follows:
Sec. 745.89 Firm certification.
(a) Initial certification. (1) Firms that perform renovations for
compensation must apply to EPA for certification to perform renovations
or dust sampling. To apply, a firm must submit to EPA a completed
``Application for Firms,'' signed by an authorized agent of the firm,
and pay at least the correct amount of fees. If a firm pays more than
the correct amount of fees, EPA will reimburse the firm for the excess
amount.
(2) After EPA receives a firm's application, EPA will take one of
the following actions within 90 days of the date the application is
received:
(i) EPA will approve a firm's application if EPA determines that it
is complete and that the environmental compliance history of the firm,
its principals, or its key employees does not show an unwillingness or
inability to maintain compliance with environmental statutes or
regulations. An application is complete if it contains all of the
information requested on the form and includes at least the correct
amount of fees. When EPA approves a firm's application, EPA will issue
the firm a certificate with an expiration date not more than 3 years
from the date the application is approved. EPA
[[Page 1632]]
certification allows the firm to perform renovations covered by this
section in any State or Indian Tribal area that does not have a
renovation program that is authorized under subpart Q of this part.
(ii) EPA will request a firm to supplement its application if EPA
determines that the application is incomplete. If EPA requests a firm
to supplement its application, the firm must submit the requested
information or pay the additional fees within 30 days of the date of
the request.
(iii) EPA will not approve a firm's application if the firm does
not supplement its application in accordance with paragraph (a)(2)(ii)
of this section or if EPA determines that the environmental compliance
history of the firm, its principals, or its key employees demonstrates
an unwillingness or inability to maintain compliance with environmental
statutes or regulations. EPA will send the firm a letter giving the
reason for not approving the application. EPA will not refund the
application fees. A firm may reapply for certification at any time by
filing a new, complete application that includes the correct amount of
fees.
(b) Re-certification. To maintain its certification, a firm must be
re-certified by EPA every 3 years.
(1) Timely and complete application. To be re-certified, a firm
must submit a complete application for re-certification. A complete
application for re-certification includes a completed ``Application for
Firms'' which contains all of the information requested by the form and
is signed by an authorized agent of the firm, noting on the form that
it is submitted as a re-certification. A complete application must also
include at least the correct amount of fees. If a firm pays more than
the correct amount of fees, EPA will reimburse the firm for the excess
amount.
(i) An application for re-certification is timely if it is
postmarked 90 days or more before the date the firm's current
certification expires. If the firm's application is complete and
timely, the firm's current certification will remain in effect until
its expiration date or until EPA has made a final decision to approve
or disapprove the re-certification application, whichever is later.
(ii) If the firm submits a complete re-certification application
less than 90 days before its current certification expires, and EPA
does not approve the application before the expiration date, the firm's
current certification will expire and the firm will not be able to
conduct renovations until EPA approves its re-certification
application.
(iii) If the firm fails to obtain recertification before the firm's
current certification expires, the firm must not perform renovations or
dust sampling until it is certified anew pursuant to paragraph (a) of
this section.
(2) EPA action on an application. After EPA receives a firm's
application for re-certification, EPA will review the application and
take one of the following actions within 90 days of receipt:
(i) EPA will approve a firm's application if EPA determines that it
is timely and complete and that the environmental compliance history of
the firm, its principals, or its key employees does not show an
unwillingness or inability to maintain compliance with environmental
statutes or regulations. When EPA approves a firm's application for re-
certification, EPA will issue the firm a new certificate with an
expiration date 3 years from the date that the firm's current
certification expires. EPA certification allows the firm to perform
renovations or dust sampling covered by this section in any State or
Indian Tribal area that does not have a renovation program that is
authorized under subpart Q of this part.
(ii) EPA will request a firm to supplement its application if EPA
determines that the application is incomplete.
(iii) EPA will not approve a firm's application if it is not
received or is not complete as of the date that the firm's current
certification expires, or if EPA determines that the environmental
compliance history of the firm, its principals, or its key employees
demonstrates an unwillingness or inability to maintain compliance with
environmental statutes or regulations. EPA will send the firm a letter
giving the reason for not approving the application. EPA will not
refund the application fees. A firm may reapply for certification at
any time by filing a new application and paying the correct amount of
fees.
(c) Amendment of certification. A firm must amend its certification
within 45 days of the date a change occurs to information included in
the firm's most recent application. If the firm fails to amend its
certification within 45 days of the date the change occurs, the firm
may not perform renovations or dust sampling until its certification is
amended.
(1) To amend a certification, a firm must submit a completed
``Application for Firms,'' signed by an authorized agent of the firm,
noting on the form that it is submitted as an amendment and indicating
the information that has changed. The firm must also pay at least the
correct amount of fees.
(2) If additional information is needed to process the amendment,
or the firm did not pay the correct amount of fees, EPA will request
the firm to submit the necessary information or fees. The firm's
certification is not amended until the firm complies with the request.
(3) Amending a certification does not affect the certification
expiration date.
(d) Firm responsibilities. Firms performing renovations or dust
sampling must ensure that:
(1)(i) All persons performing renovation activities on behalf of
the firm are either certified renovators or have been trained by a
certified renovator in accordance with Sec. 745.90.
(ii) All persons performing dust sampling on behalf of the firm are
certified as either risk assessors, inspectors, or dust sampling
technicians.
(2) A certified renovator is assigned to each renovation performed
by the firm and discharges all of the certified renovator
responsibilities identified in Sec. 745.90; and
(3) All renovations performed by the firm are performed in
accordance with the work practice standards in Sec. 745.85.
14. Section 745.90 is added to subpart E to read as follows:
Sec. 745.90 Renovator and dust sampling technician certification.
(a) Renovator and dust sampling technician certification. (1) To
become a certified renovator or dust sampling technician, a person must
successfully complete the appropriate course accredited by EPA under
Sec. 745.225 or by a State or Tribal program that is authorized under
subpart Q of this part. The course completion certificate serves as
proof of certification. EPA renovator certification allows the
certified individual to perform renovations covered by this section in
any State or Indian Tribal area that does not have a renovation program
that is authorized under subpart Q of this part. EPA dust sampling
technician certification allows the certified individual to perform
dust sampling covered by this section in any State or Indian Tribal
area that does not have a renovation program that is authorized under
subpart Q of this part.
(2) To maintain renovator or dust sampling technician
certification, a person must complete a renovator or dust sampling
technician refresher course accredited by EPA under Sec. 745.225 or by
a State or Tribal program that is authorized under subpart Q of this
part within 3 years of the date the person completed the initial course
described in paragraph (a)(1) of this
[[Page 1633]]
section. If the person does not complete a refresher course within this
time, the person must re-take the initial course to become certified
again.
(3) Persons who have a valid lead-based paint abatement supervisor
or worker certification issued by EPA under Sec. 745.226 or by a State
or Tribal program authorized under subpart Q of this part are also
deemed to be certified renovators.
(4) Persons who have a valid lead-based paint inspector or risk
assessor certification issued by EPA under Sec. 745.226 or by a State
or Tribal program authorized under subpart Q of this part are also
deemed to be certified dust sampling technicians.
(b) Renovator responsibilities. Certified renovators are
responsible for ensuring compliance with Sec. 745.85 at all
renovations to which they are assigned. A certified renovator:
(1) Must perform all of the tasks described in Sec. 745.85(b) and
must either perform or direct uncertified workers who perform all of
the tasks described in Sec. 745.85(a).
(2) Must provide training to uncertified workers on the lead-safe
work practices they will be using in performing their assigned tasks,
how to isolate the work area and maintain the integrity of the
containment barriers, and how to avoid spreading dust or debris beyond
the work area.
(3) Must be physically present at the work site when the signs
required by Sec. 745.85(a)(1) are posted, while the work area
containment required by Sec. 745.85(a)(2) is being established, and
while the work area cleaning required by Sec. 745.85(a)(4) is
performed.
(4) Must direct work being performed by uncertified persons to
ensure that lead-safe work practices are being followed, the integrity
of the containment barriers is maintained, and dust or debris is not
spread beyond the work area.
(5) Must be available, either on-site or by telephone, at all times
that renovations are being conducted.
(6) When requested by the entity contracting for renovation
services, must use an acceptable test kit to determine whether
components to be affected by the renovation contain lead-based paint.
(7) Must have with them at the work site copies of their initial
course completion certificate and their most recent refresher course
completion certificate.
(c) Dust sampling technician responsibilities. A certified dust
sampling technician:
(1) Must collect dust samples in accordance with Sec.
745.227(e)(8), must send the collected samples to a laboratory
recognized by EPA under TSCA section 405(b), and must compare the
results to the clearance levels in accordance with Sec. 745.227(e)(8).
(2) Must have with them at the work site copies of their initial
course completion certificate and their most recent refresher course
completion certificate.
15. Section 745.91 is added to subpart E to read as follows:
Sec. 745.91 Suspending, revoking, or modifying an individual's or
firm's certification.
(a)(1) Grounds for suspending, revoking or modifying an
individual's certification. EPA may suspend, revoke, or modify an
individual's certification if the individual fails to comply with
Federal lead-based paint statutes or regulations. EPA may also suspend,
revoke, or modify a certified renovator's certification if the
renovator fails to ensure that all assigned renovations comply with
Sec. 745.85. 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.
(2) Grounds for suspending, revoking or modifying a firm's
certification. EPA may suspend, revoke, or modify a firm's
certification if the firm:
(i) Submits false or misleading information to EPA in its
application for certification or re-certification.
(ii) Fails to maintain or falsifies records required in Sec.
745.86.
(iii) Fails to comply, or an individual performing a renovation on
behalf of the firm fails to comply, with Federal lead-based paint
statutes or regulations. 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.
(b) Process for suspending, revoking, or modifying certification.
(1) Prior to taking action to suspend, revoke, or modify an
individual's or firm's certification, EPA will notify the affected
entity in writing of the following:
(i) The legal and factual basis for the proposed 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 certification in
the future.
(iv) The opportunity and method for requesting a hearing prior to
final suspension, revocation, or modification.
(2) If an individual or firm requests a hearing, EPA will:
(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.
(ii) Appoint an impartial official of EPA as Presiding Officer to
conduct the hearing.
(3) The Presiding Officer will:
(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 certification of any
individual or firm prior to the opportunity for a hearing, it will:
(i) Notify the affected entity in accordance with paragraph
(b)(1)(i) through (b)(1)(iii) of this section, explaining why it is
necessary to suspend the entity's certification before an opportunity
for a hearing.
(ii) 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 transcript or other verbatim record of oral testimony, and
any documents filed by a certified individual or firm in a hearing
under this section will be available to the public, except as otherwise
provided by section 14 of TSCA or by part 2 of this title. Any such
hearing at which oral testimony is presented will be open to the
public, except that the Presiding Officer may exclude the public to the
extent necessary to allow presentation of information which may be
entitled to confidential treatment under section 14 of TSCA or part 2
of this title.
(6) EPA will maintain a publicly available list of entities whose
certification has been suspended, revoked, modified or reinstated.
16. Section 745.220 is amended by revising paragraph (a) to read as
follows:
[[Page 1634]]
Sec. 745.220 Scope and applicability.
(a) This subpart contains procedures and requirements for the
accreditation of training programs for lead-based paint activities and
renovations, procedures and requirements for the certification of
individuals and firms engaged in lead-based paint activities, and work
practice standards for performing such activities. This subpart also
requires that, except as discussed below, all lead-based paint
activities, as defined in this subpart, be performed by certified
individuals and firms.
* * * * *
17. Section 745.225 is amended as follows:
a. Revise paragraph (a).
b. Revise the introductory text of paragraph (b), revise paragraph
(b)(1)(ii), and add paragraph (b)(1)(iv)(C).
c. Revise the introductory text of paragraph (c) and paragraph
(c)(8)(iv), add paragraphs (c)(6)(vi), (c)(6)(vii), and (c)(8)(vi), and
revise paragraph (c)(10).
d. Amend paragraph (c)(13) by replacing the phrase ``lead-based
paint activities'' with the phrase ``renovator, dust sampling
technician, or lead-based paint activities'' wherever it appears in the
paragraph.
e. Add paragraphs (d)(6) and (d)(7).
f. Revise the introductory text of paragraph (e).
g. Amend paragraph (e)(1) by removing the word ``activities''
wherever it appears in the paragraph.
h. Revise paragraph (e)(2).
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 [insert date 1 year after date of publication of
the final rule in the Federal Register].
(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 [insert date 60 days after date of publication of the final
rule in the Federal Register].
(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) * * *
(ii) A list of courses for which it is applying for accreditation.
For the purposes of this section, courses taught in different languages
are considered different courses, and each must independently meet the
accreditation requirements.
* * * * *
(iv) * * *
(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.
(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:
* * * * *
(6) * * *
(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. Hands-on training activities must
cover renovation methods that minimize the creation of dust and lead-
based paint hazards, interior and exterior containment and cleanup
methods, and post-renovation cleaning verification.
(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.
Hands on training activities must cover dust sampling methodologies.
* * * * *
(8) * * *
(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.
* * * * *
(vi) The language in which the course was taught.
* * * * *
(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.
* * * * *
(d) * * *
(6) Renovator. (i) Role and responsibility of a renovator.
(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) Procedures for using acceptable test kits to determine whether
paint is lead-based paint.
(v) Renovation methods to minimize the creation of dust and lead-
based paint hazards.
(vi) Interior and exterior containment and cleanup methods.
(vii) Methods to ensure that the renovation has been properly
completed, including clean-up verification, and clearance testing.
(viii) Waste handling and disposal.
(7) Dust sampling technician. (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:
* * * * *
[[Page 1635]]
(1) * * *
(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.
* * * * *
18. Section 745.320 is amended by revising paragraph (c) to read as
follows:
Sec. 745.320 Scope and purpose.
* * * * *
(c) A State or Indian Tribe may seek authorization to administer
and enforce all of the provisions of subpart E of this part or just the
pre-renovation education provisions of subpart E of this part. The
provisions of Sec. Sec. 745.324 and 745.326 apply for the purposes of
such program authorizations.
* * * * *
19. Section 745.324 is amended as follows:
a. Revise paragraph (a)(1).
b. Delete the phrase ``lead-based paint training accreditation and
certification'' from the second sentence of paragraph (b)(1)(iii).
c. Revise paragraph (b)(2)(ii).
d. Revise paragraphs (e)(2)(i) and (e)(4).
e. Revise paragraph (f)(2).
f. Revise paragraph (i)(8).
Sec. 745.324 Authorization of State or Tribal programs.
(a) Application content and procedures. (1) Any State or Indian
Tribe that seeks authorization from EPA to administer and enforce the
provisions of subpart E or subpart L of this part must submit an
application to the Administrator in accordance with this paragraph.
* * * * *
(b) * * *
(2) * * *
(i) * * *
(ii) An analysis of the State or Tribal program that compares the
program to the Federal program in subpart E or subpart L of this part,
or both. This analysis must demonstrate how the program is, in the
State's or Indian Tribe's assessment, at least as protective as the
elements in the Federal program at subpart E or subpart L of this part,
or both. EPA will use this analysis to evaluate the protectiveness of
the State or Tribal program in making its determination pursuant to
paragraph (e)(2)(i) of this section.
* * * * *
(e) * * *
(2) * * *
(i) The State or Tribal program is at least as protective of human
health and the environment as the corresponding Federal program under
subpart E or subpart L of this part, or both; and
* * * * *
(4) If the State or Indian Tribe applies for authorization of State
or Tribal programs under both subpart E and subpart L, EPA may, as
appropriate, authorize one program and disapprove the other.
* * * * *
(f) * * *
(2) If a State or Indian Tribe does not have an authorized program
to administer and enforce the pre-renovation education requirements of
subpart E of this part by August 31, 1998, the Administrator will, by
such date, enforce those provisions of subpart E of this part as the
Federal program for that State or Indian Country. If a State or Indian
Tribe does not have an authorized program to administer and enforce the
training, certification and accreditation requirements and work
practice standards of subpart E of this part by [insert date 1 year
after date of publication of the final rule in the Federal Register],
the Administrator will, by such date, enforce those provisions of
subpart E of this part as the Federal program for that State or Indian
Country.
* * * * *
(i) * * *
(8) By the date of such order, the Administrator will establish and
enforce the provisions of subpart E or subpart L of this part, or both,
as the Federal program for that State or Indian Country.
20. Section 745.326 is revised to read as follows:
Sec. 745.326 Renovation: State and Tribal program requirements.
(a) Program elements. To receive authorization from EPA, a State or
Tribal program must contain the following program elements:
(1) For pre-renovation education programs, procedures and
requirements for the distribution of lead hazard information to owners
and occupants of target housing before renovations for compensation.
(2) For renovation training, certification, accreditation, and work
practice standards programs:
(i) Procedures and requirements for the accreditation of renovation
and dust sampling technician training programs.
(ii) Procedures and requirements for the certification of
renovators and dust sampling technicians.
(iii) Procedures and requirements for the certification of
individuals and/or firms.
(iv) Requirements that all renovations be conducted by
appropriately certified individuals and/or firms.
(v) Work practice standards for the conduct of renovations.
(3) For all renovation programs, development of the appropriate
infrastructure or government capacity to effectively carry out a State
or Tribal program.
(b) Pre-renovation education. To be considered at least as
protective as the Federal program, the State or Tribal program must:
(1) Establish clear standards for identifying renovation activities
that trigger the information distribution requirements.
(2) Establish procedures for distributing the lead hazard
information to owners and occupants of housing prior to renovation
activities.
(3) Require that the information to be distributed include either
the pamphlet titled Protect Your Family from Lead During Renovation,
Repair & Painting, developed by EPA under section 406(a), or an
alternate pamphlet or package of lead hazard information that has been
submitted by the State or Tribe, reviewed by EPA, and approved by EPA
for that State or Tribe. Such information must contain renovation-
specific information similar to that in Protect Your Family from Lead
During Renovation, Repair & Painting, must meet the content
requirements prescribed by section 406(a) of TSCA, and must be in a
format that is readable to the diverse audience of housing owners and
occupants in that State or Tribe.
(i) A State or Tribe with a pre-renovation education program
approved before [insert date 60 days after date of publication of the
final rule in the Federal Register] 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) of this subpart on or after
[insert date 1 year after date of publication of the final rule in the
Federal Register].
(ii) A State or Tribe with an application for approval of a pre-
renovation education program submitted but not approved before [insert
date 60 days after date of publication of the final rule in the Federal
Register] 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) of this part on or after
[insert date 1 year after date of publication of the final rule in the
Federal Register].
(iii) A State or Indian Tribe submitting its application for
approval
[[Page 1636]]
of a pre-renovation education program on or after [insert date 60 days
after date of publication of the final rule in the Federal Register]
must demonstrate in its application that it meets the requirements of
this section.
(c) Accreditation of training programs. To be considered at least
as protective as the Federal program, the State or Tribal program must
meet the requirements of either paragraph (c)(1) or (c)(2) of this
section:
(1) The State or Tribal program must establish accreditation
procedures and requirements, including:
(i) Procedures and requirements for the accreditation of training
programs, including, but not limited to:
(A) Training curriculum requirements.
(B) Training hour requirements.
(C) Hands-on training requirements.
(D) Trainee competency and proficiency requirements.
(E) Requirements for training program quality control.
(ii) Procedures and requirements for the re-accreditation of
training programs.
(iii) Procedures for the oversight of training programs.
(iv) Procedures and standards for the suspension, revocation, or
modification of training program accreditations; or
(2) The State or Tribal program must establish procedures and
requirements for the acceptance of renovation training offered by
training providers accredited by EPA or a State or Tribal program
authorized by EPA under this subpart.
(d) Certification of renovators. To be considered at least as
protective as the Federal program, the State or Tribal program must:
(1) Establish procedures and requirements for individual
certification that ensure that certified renovators are trained by an
accredited training program.
(2) Establish procedures and requirements for re-certification.
(3) Establish procedures for the suspension, revocation, or
modification of certifications.
(e) Work practice standards for renovations. To be considered at
least as protective as the Federal program, the State or Tribal program
must establish standards that ensure that renovations are conducted
reliably, effectively, and safely. At a minimum, the State or Tribal
program must contain the following requirements:
(1) Renovations must be conducted only by certified contractors.
(2) Renovations are conducted using lead-safe work practices that
are at least as protective to occupants as the requirements in Sec.
745.85.
(3) Certified contractors must retain appropriate records.
21. Section 745.327 is amended by revising paragraphs (b)(1)(iv)
and (b)(2)(ii) to read as follows:
Sec. 745.327 State or Indian Tribal lead-based paint compliance and
enforcement programs.
* * * * *
(b) * * *
(1) * * *
(iv) Requirements that regulate the conduct of renovation
activities as described at Sec. 745.326.
(2) * * *
(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.
* * * * *
22. Section 745.339 is revised to read as follows:
Sec. 745.339 Effective dates.
States and Indian Tribes may seek authorization to administer and
enforce subpart L of this part pursuant to this subpart at any time.
States and Indian Tribes may seek authorization to administer and
enforce subpart E of this part pursuant to this subpart effective
[insert date 60 days after date of publication of the final rule in the
Federal Register].
[FR Doc. 06-71 Filed 1-9-06; 8:45 am]
BILLING CODE 6560-50-S