[Federal Register Volume 75, Number 87 (Thursday, May 6, 2010)]
[Proposed Rules]
[Pages 25038-25073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10102]
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Part II
Environmental Protection Agency
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40 CFR Part 745
Lead; Clearance and Clearance Testing Requirements for the Renovation,
Repair, and Painting Program; Proposed Rule
Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed
Rules
[[Page 25038]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[EPA-HQ-OPPT-2005-0049; FRL-8823-5]
RIN 2070-AJ57
Lead; Clearance and Clearance Testing Requirements for the
Renovation, Repair, and Painting Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing several revisions to the 2008 Lead
Renovation, Repair, and Painting Program (RRP) rule that established
accreditation, training, certification, and recordkeeping requirements
as well as work practice standards for persons performing renovations
for compensation in most pre-1978 housing and child-occupied
facilities. EPA is particularly concerned about dust-lead hazards
generated by renovations because of the well-documented toxicity of
lead, especially to younger children. This proposal includes additional
requirements designed to ensure that lead-based paint hazards generated
by renovation work are adequately cleaned after renovation work is
finished and before the work areas are re-occupied. Specifically, EPA
is proposing to require dust wipe testing after many renovations
covered by the RRP rule. For a subset of jobs involving demolition or
removal of plaster through destructive means or the disturbance of
paint using machines designed to remove paint through high-speed
operation, such as power sanders or abrasive blasters, this proposal
would also require the renovation firm to demonstrate, through dust
wipe testing, that dust-lead levels remaining in the work area are
below regulatory levels.
DATES: Comments must be received on or before July 6, 2010.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2005-0049, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001.
Hand Delivery: OPPT Document Control Office (DCO), EPA
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC.
Attention: Docket ID Number EPA-HQ-OPPT-2005-0049. The DCO is open from
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the DCO is (202) 564-8930. Such deliveries are
only accepted during the DCO's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2005-0049. EPA's policy is that all comments received will be included
in the docket without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through regulations.gov or e-mail. The
regulations.gov Web site is an ``anonymous access'' system, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through regulations.gov, your e-mail
address will be automatically captured and included as part of the
comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the docket index
available at http://www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available
electronically at http://www.regulations.gov, or, if only available in
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number of the EPA/DC Public Reading Room
is (202) 566-1744, and the telephone number for the OPPT Docket is
(202) 566-0280. Docket visitors are required to show photographic
identification, pass through a metal detector, and sign the EPA visitor
log. All visitor bags are processed through an X-ray machine and
subject to search. Visitors will be provided an EPA/DC badge that must
be visible at all times in the building and returned upon departure.
FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: [email protected].
For technical information contact: Cindy Wheeler, National Program
Chemicals Division, Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 566-0484; e-mail
address: [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 or child-occupied facilities for
compensation, dust sampling, or dust testing. You may also be affected
by this action if you perform lead-based paint inspections, lead hazard
screens, risk assessments or abatements in target housing or child-
occupied facilities or if you operate a training program for
individuals who perform any of these activities. ``Target housing'' is
defined in section 401 of TSCA as any housing constructed prior to
1978, except housing for the elderly or persons with disabilities
(unless any child under age 6 resides or is expected to reside in such
housing) or any 0-bedroom dwelling. Under this rule, a child-occupied
facility is a building, or a portion of a building, constructed prior
to 1978, visited regularly by the same child, under 6 years of age, on
at least 2 different days within any week (Sunday through Saturday
period), provided that each day's visit lasts at least 3 hours and the
combined weekly visits last at least 6 hours, and the combined annual
visits last at least 60 hours. Potentially-affected entities may
include, but are not limited to:
Building construction (NAICS code 236), e.g., single
family housing
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construction, multi-family housing construction, residential
remodelers.
Specialty trade contractors (NAICS code 238), e.g.,
plumbing, heating, and air-conditioning contractors, painting and wall
covering contractors, electrical contractors, finish carpentry
contractors, drywall and insulation contractors, siding contractors,
tile and terrazzo contractors, glass and glazing contractors.
Real estate (NAICS code 531), e.g., lessors of residential
buildings and dwellings, residential property managers.
Child day care services (NAICS code 624410).
Elementary and secondary schools (NAICS code 611110),
e.g., elementary schools with kindergarten classrooms.
Other technical and trade schools (NAICS code 611519),
e.g., training providers.
Engineering services (NAICS code 541330) and building
inspection services (NAICS code 541350), e.g., dust sampling
technicians.
Lead abatement professionals (NAICS code 562910), e.g.,
firms and supervisors engaged in lead-based paint activities.
This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. If you have any
questions regarding the applicability of this action to a particular
entity, consult the technical person listed under FOR FURTHER
INFORMATION CONTACT.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and
then identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments. When submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Introduction
A. What action is the agency taking?
EPA is proposing several revisions to the 2008 Lead Renovation,
Repair, and Painting Program (RRP) rule (Ref. 1) that established
accreditation, training, certification, and recordkeeping requirements
as well as work practice standards for persons performing renovations
for compensation in most pre-1978 housing and child-occupied
facilities. EPA is particularly concerned about dust-lead hazards
generated by renovations because of the well-documented toxicity of
lead, especially to younger children. This proposal includes additional
requirements designed to ensure that lead-based paint hazards generated
by renovation work are adequately cleaned after renovation work is
finished and before the areas are re-occupied. Specifically, EPA is
proposing to require dust wipe testing after many renovations covered
by the RRP rule. For a subset of jobs involving demolition or removal
of plaster through destructive means or the disturbance of paint using
machines designed to remove paint through high-speed operation, such as
power sanders or abrasive blasters, this proposal would also require
the renovation firm to demonstrate, through dust wipe testing, that
dust-lead levels remaining in the work area are below regulatory
levels. EPA is not, however, reopening other aspects of the work
practices required by the 2008 RRP rule.
EPA is also proposing various minor amendments to the regulations
concerning applications for training provider accreditation, amending
accreditations, course completion certificates, record keeping, State
and Tribal program requirements, and grandfathering (i.e., taking a
refresher training in lieu of the initial training). In addition, the
proposed amendments intend to clarify that certain requirements apply
to the RRP rule as well as the Lead-Based Paint Activities (abatement)
regulations, that the prohibitions and restrictions on work practices
in the RRP rule apply to the disturbance of any painted surface, that
certified renovators need only provide on-the-job training to other
renovation workers in the work practices required by the rule, that a
certified inspector or risk assessor can act as a dust sampling
technician, which hands-on training topics are required for renovator
and dust sampling technician courses, and requirements for States and
Tribes that apply to become authorized to implement the RRP program.
Again, EPA is not reopening for consideration any aspects of the
existing regulations, except as provided in today's proposal.
B. What is the agency's authority for taking this action?
These work practice requirements for dust wipe testing and
clearance, training, certification and accreditation requirements, and
State, Territorial and Tribal authorization provisions are being
promulgated under the authority of sections 402(c)(3), 404, and 407 of
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2682(c)(3), 2684,
and 2687.
C. Background
1. Health effects of lead exposure. This Unit describes some of the
more significant health effects of lead exposure and the routes of
exposure associated with lead in paint. Much more information is
available in the preamble to the 2008 Lead Renovation, Repair, and
Painting (RRP) Rule (Ref. 1) and the Air Quality Criteria for Lead
document (Ref. 2).
Lead has been known throughout the ages for its useful properties,
having been commonly used in the production of paint, batteries, pipes,
solder, pottery, and gasoline. Lead is also known for its ``broad array
of deleterious effects on multiple organ systems via widely diverse
mechanisms of action.'' (Ref. 2) This array of health effects includes
heme biosynthesis and related
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functions; neurological development and function; reproduction and
physical development; kidney function; cardiovascular function; and
immune function. There is also some evidence of lead carcinogenicity,
primarily from animal studies, together with limited human evidence of
suggestive associations.
Of particular interest to EPA during the RRP rulemaking was the
delineation of lowest observed effect levels for those lead-induced
effects that are most clearly associated with blood lead levels of less
than 10 micrograms per deciliter ([mu]g/dL) in children and adults
(Ref. 2, at 8-60). As is evident from the Criteria Document, neurotoxic
effects in children and cardiovascular effects in adults are among
those best substantiated as occurring at blood-lead concentrations as
low as 5 to 10 [mu]g/dL (or possibly lower), so these categories of
effects would result in the greatest public health concern. Other newly
demonstrated immune and renal system effects among general population
groups are also emerging as low-level lead-exposure effects of
potential public health concern (Ref. 2, at 8-60).
Among the wide variety of health endpoints associated with lead
exposures, there is general consensus that the developing nervous
system in children is among the, if not the, most sensitive. While
blood lead levels in U.S. children have decreased notably since the
late 1970s, newer studies have investigated and reported associations
of effects on the neurodevelopment of children with these more recent
blood lead levels (Ref. 2, chapter 6). Functional manifestations of
lead neurotoxicity during childhood include sensory, motor, cognitive,
and behavioral impacts. Numerous epidemiological studies have reported
neurocognitive, neurobehavioral, sensory, and motor function effects in
children with blood lead levels below 10 [mu]g/dL (Ref. 2, sections 6.2
and 8.4. [FN 7. Further, neurological effects in general include
behavioral effects, such as delinquent behavior (Ref. 2, sections 6.2.6
and 8.4.2.2), sensory effects, such as those related to hearing and
vision (Ref. 2, sections 6.2.7 and 8.4.2.3), and deficits in neuromotor
function (Ref. 2, p. 8-36).] As discussed in the Criteria Document,
``extensive experimental laboratory animal evidence has been generated
that (a) substantiates well the plausibility of the epidemiologic
findings observed in human children and adults and (b) expands our
understanding of likely mechanisms underlying the neurotoxic effects''
(Ref. 2, p. 8-25; section 5.3).
Cognitive effects associated with lead exposures that have been
observed in epidemiological studies have included decrements in
intelligence test results, such as the widely used IQ score, and in
academic achievement as assessed by various standardized tests as well
as by class ranking and graduation rates (Ref. 2, section 6.2.16 and
pp. 8-29 to 8-30). As noted in the Criteria Document with regard to the
latter, ``Associations between lead exposure and academic achievement
observed in the above-noted studies were significant even after
adjusting for IQ, suggesting that lead-sensitive neuropsychological
processing and learning factors not reflected by global intelligence
indices might contribute to reduced performance on academic tasks''
(Ref. 2, pp. 8-29 to 8- 30).
With regard to potential implications of lead effects on IQ, the
Criteria Document recognizes the ``critical'' distinction between
population and individual risk, identifying issues regarding declines
in IQ for an individual and for the population. The Criteria Document
further states that a ``point estimate indicating a modest mean change
on a health index at the individual level can have substantial
implications at the population level'' (Ref. 2, p. 8-77). [FN 8. As an
example, the Criteria Document states, ``although an increase of a few
mm Hg in blood pressure might not be of concern for an individual's
well-being, the same increase in the population mean might be
associated with substantial increases in the percentages of individuals
with values that are sufficiently extreme that they exceed the criteria
used to diagnose hypertension'' (Ref. 2, p. 8-77).] A downward shift in
the mean IQ value is associated with both substantial decreases in
percentages achieving very high scores and substantial increases in the
percentage of individuals achieving very low scores (Ref. 2, p. 8-81).
[FN 9. For example, for a population mean IQ of 100 (and standard
deviation of 15), 2.3% of the population would score above 130, but a
shift of the population to a mean of 95 results in only 0.99% of the
population scoring above 130 (Ref. 2, pp. 8-81 to 8-82).] For an
individual functioning in the low IQ range due to the influence of
developmental risk factors other than lead, a lead-associated IQ
decline of several points might be sufficient to drop that individual
into the range associated with increased risk of educational,
vocational, and social failure (Ref. 2, p. 8-77).
Other cognitive effects observed in studies of children have
included effects on attention, executive functions, language, memory,
learning, and visuospatial processing (Ref. 2, sections 5.3.5, 6.2.5,
and 8.4.2.1), with attention and executive function effects associated
with lead exposures indexed by blood lead levels below 10 [mu]g/dL
(Ref. 2, section 6.2.5 and pp. 8-30 to 8-31). The evidence for the role
of lead in this suite of effects includes experimental animal findings
(Ref. 2, section 8.4.2.1; p. 8-31), which provide strong biological
plausibility of lead effects on learning ability, memory and attention
(Ref. 2, section 5.3.5), as well as associated mechanistic findings.
The persistence of such lead-induced effects is described in the
proposal and the Criteria Document (e.g., Ref. 2, sections 5.3.5,
6.2.11, and 8.5.2). The persistence or irreversibility of such effects
can be the result of damage occurring without adequate repair offsets
or of the persistence of lead in the body (Ref. 2, section 8.5.2). It
is additionally important to note that there may be long-term
consequences of such deficits over a lifetime. Poor academic skills and
achievement can have ``enduring and important effects on objective
parameters of success in real life,'' as well as increased risk of
antisocial and delinquent behavior (Ref. 2, section 6.2.16).
Multiple epidemiologic studies of lead and child development have
demonstrated inverse associations between blood lead concentrations and
children's IQ and other cognitive-related outcomes at successively
lower lead exposure levels over the past 30 years (Ref. 2, section
6.2.13). For example, the overall weight of the available evidence,
described in the Criteria Document, provides clear substantiation of
neurocognitive decrements being associated in children with mean blood
lead levels in the range of 5 to 10 [mu]g/dL, and some analyses
indicate lead effects on intellectual attainment of children for which
population mean blood lead levels in the analysis ranged from 2 to 8
[mu]g/dL (Ref. 2, sections 6.2, 8.4.2, and 8.4.2.6). Thus, while blood
lead levels in U.S. children have decreased notably since the late
1970s, newer studies have investigated and reported associations of
effects on the neurodevelopment of children with blood lead levels
similar to the more recent, lower blood lead levels (Ref. 2, chapter
6).
Paint that contains lead can pose a health threat through various
routes of exposure. House dust is the most common exposure pathway
through which children are exposed to lead-based paint hazards. Dust
created during normal lead-based paint wear (especially around windows
and doors)
[[Page 25041]]
can create an invisible film over surfaces in a house. Children,
particularly younger children, are at risk for high exposures of lead-
based paint dust via hand-to-mouth exposure, and may also ingest lead-
based paint chips from flaking paint on walls, windows, and doors. Lead
from exterior house paint can flake off or leach into the soil around
the outside of a home, contaminating children's play areas. Cleaning
and renovation activities may actually increase the threat of lead-
based paint exposure by dispersing lead dust particles in the air and
over accessible household surfaces. In turn, depending on the levels of
lead in the dust, both adults and children can receive hazardous
exposures by inhaling the dust or by ingesting lead-based paint dust
during hand-to-mouth activities.
EPA's Wisconsin Childhood Blood-Lead Study, described more fully in
Unit III.C.1.c. of the preamble to the 2006 Proposal, provides ample
evidence of a link between renovation activities and elevated blood
lead levels in resident children (Ref. 3). This peer-reviewed study
concluded that general residential renovation and remodeling is
associated with an increased risk of elevated blood lead levels in
children and that specific renovation and remodeling activities are
also associated with an increase in the risk of elevated blood lead
levels in children. In particular, removing paint (using open flame
torches, using heat guns, using chemical paint removers, and wet
scraping/sanding) and preparing surfaces by sanding or scraping
significantly increased the risk of elevated blood lead levels.
Three studies from New York support the findings of the Wisconsin
Childhood Blood-Lead Study. In 1995, the New York State Department of
Health assessed lead exposure among children resulting from home
renovation and remodeling in 1993-1994. A review of the health
department records of children with blood lead levels equal to or
greater than 20 [mu]g/dL identified 320, or 6.9%, with elevated blood
lead levels that were attributable to renovation and remodeling (Ref.
4). An update to that study with data from environmental investigations
conducted during 2006-2007 in New York State (excluding New York City)
identified renovation, repair, and painting activities as the probable
source of lead exposure in 14% of 972 children with blood lead levels
equal to or exceeding 20 [mu]g/dL (Ref. 5). The authors concluded that
children living in housing undergoing renovation, repair, and painting
that was built before 1978, and particularly before 1950, when
concentrations of lead in paint were higher, are at high risk for
elevated blood lead levels. The final study was a case-control study
that assessed the association between elevated blood lead levels in
children younger than 5 years and renovation or repair activities in
homes in New York City (Ref. 6). EPA notes that the authors show that
when dust and debris was reported (by respondents via telephone
interviews) to be ``everywhere'' following a renovation, the blood lead
levels were significantly higher than children at homes that did not
report remodeling work. On the other hand, when the respondent reported
either ``no visible dust and debris'' or that ``dust and debris was
limited to the work area,'' there was no statistically significant
effect on blood lead levels relative to homes that did not report
remodeling work. Although the study found only a weak and
nonsignificant link between a report of any renovation activity and the
likelihood that a resident child had an elevated blood-lead level, the
link to the likelihood of an elevated blood-lead level was
statistically significant for surface preparation by sanding and for
renovation work that spreads dust and debris beyond the work area. The
researchers noted the consistency of their results with EPA's Wisconsin
Childhood Blood-Lead Study (Ref. 6, at 509).
Children in minority populations and children whose families are
poor have an increased risk of exposure to harmful lead levels (Ref. 7,
at e376). Analysis of the National Health and Nutrition Examination
Surveys (NHANES) data from 1988 through 2004 shows that the prevalence
of blood lead levels equal to or exceeding 10 [mu]g/dL in children aged
1 to 5 years has decreased from 8.6% in 1988-1991 to 1.4% in 1999-2004,
which is an 84% decline (Ref. 7, at e377). However, the NHANES data
from 1999-2004 indicates that non-Hispanic black children aged 1 to 5
years had higher percentages of blood lead levels equal to or exceeding
10 [mu]g/dL (3.4%) than white children in the same age group (1.2%)
(Ref. 7). In addition, among children aged 1 to 5 years over the same
period, the geometric mean blood lead level was significantly higher
for non-Hispanic blacks (2.8 [mu]g/dL), compared with Mexican Americans
(1.9 [mu]g/dL) and non-Hispanic whites (1.7 [mu]g/dL) (Ref. 7, at
e377). For children aged 1 to 5 years from families with low income,
the geometric mean blood lead level was 2.4 [mu]g/dL (Ref. 7, at e377).
Further, the incidences of blood-lead levels greater than 10 [mu]g/dL
and greater than or equal to 5 [mu]g/dL were higher for non-Hspanic
blacks (14% and 3.4% respectively) than for Mexican Americans (4.7% and
1.2%, respectively) and non-Hispanic whites (4.4% and 1.2%,
respectively). (Ref. 7, at e377). The analysis ``indicates that
residence in older housing, poverty, age, and being non-Hispanic black
are still major risk factors for higher lead levels'' (Ref. 7, at
e376).
2. Prior EPA rulemakings under TSCA Sections 402(a) and 403. TSCA
section 402(a) directs EPA to promulgate regulations covering lead-
based paint activities, such as abatement, to ensure persons performing
these activities are properly trained, that training programs are
accredited, and that contractors performing these activities are
certified. These regulations must contain standards for performing
lead-based paint activities, taking into account reliability,
effectiveness, and safety. On August 29, 1996, EPA promulgated final
regulations under TSCA section 402(a) that govern lead-based paint
inspections, lead hazard screens, risk assessments, and abatements in
target housing and child-occupied facilities (also referred to as the
Lead-based Paint Activities Regulations) (Ref. 8). These regulations,
codified at 40 CFR part 745, subpart L, contain an accreditation
program for training providers and training and certification
requirements for lead-based paint inspectors, risk assessors, project
designers, abatement supervisors, and abatement workers. Work practice
standards for lead-based paint activities are included. Pursuant to
TSCA section 404, provision was made for interested States,
Territories, and Indian Tribes to apply for and receive authorization
to administer their own lead-based paint activities programs. The
regulations applicable to State, Territorial, and Tribal programs are
codified at 40 CFR part 745, subpart Q.
The work practice standards for abatements in the Lead-based Paint
Activities Regulations are essentially performance standards. They give
a trained and certified abatement contractor some discretion in
determining how best to ensure that an abatement is performed safely,
so long as the contractor can demonstrate that the abatement has been
properly completed and that no lead-based paint hazards remain. Certain
high dust generating practices are prohibited and contractors are
required to prepare occupant protection plans specifically describing
the procedures to be followed on each job to protect occupants from
exposures to lead-based paint hazards. In most cases, residents
relocate until the abatement has been
[[Page 25042]]
completed. Although these additional procedures are not specified in
the regulations, abatement supervisor and worker courses provide
comprehensive training in the specialized techniques these individuals
can use to contain work areas, remove, enclose, or encapsulate lead-
based paint and lead-based paint hazards, and clean up after the job is
finished. The regulations are much more detailed in describing the
procedures that must be followed to ensure that the abatement has been
properly completed and that the work area is ready for re-occupancy.
These procedures, typically referred to as ``clearance,'' must be
performed by a certified inspector or risk assessor. First, a visual
inspection must be performed to determine whether deteriorated painted
surfaces or visible amounts of dust, debris, or residue are still
present. If so, these conditions must be eliminated before the
clearance procedures may continue. An exterior abatement project is
considered complete after a successful visual inspection. Following a
successful visual inspection after an interior abatement project, the
inspector or risk assessor must collect dust wipe samples from floors,
windowsills, and window troughs in the work area and have them analyzed
by a laboratory accredited under the National Lead Laboratory
Accreditation Program (NLLAP) for dust lead analysis. After the
sampling results are received, the inspector or risk assessor must
compare them with the established clearance standards for lead in dust.
If all of the samples are below the clearance standards, the abatement
is complete and the area may be re-occupied. If any samples are above
the standards, the components represented by those samples must be re-
cleaned and the clearance process must be repeated until all samples
are below the clearance standards. For example, if any interior window
sills fail clearance, all of the unsampled window sills, as well as the
failed window sills, must be recleaned and retested. If the abatement
was conducted in multiple dwelling units, and units were selected for
random testing, the window sills in the unsampled units would also have
to be recleaned and retested.
TSCA section 403 directs EPA to promulgate regulations that
identify, for the purposes of Title X and Title IV of TSCA, dangerous
levels of lead in paint, dust, and soil. These regulations were
promulgated on January 5, 2001 and codified at 40 CFR part 745, subpart
D (Ref. 9). These hazard standards define lead-based paint hazards in
target housing and child-occupied facilities as paint-lead, dust-lead,
and soil-lead hazards. A paint-lead hazard is defined as any damaged or
deteriorated lead-based paint, any chewable lead-based painted surface
with evidence of teeth marks, or any lead-based paint on a friction
surface if lead dust levels underneath the friction surface exceed the
dust-lead hazard standards. A dust-lead hazard is surface dust that
contains a mass-per-area concentration of lead equal to or exceeding 40
micrograms per square foot ([mu]g/ft\2\) on floors or 250 [mu]g/ft\2\
on interior windowsills based on wipe samples. A soil-lead hazard is
bare soil that contains total lead equal to or exceeding 400 parts per
million (ppm), equivalent to 400 micrograms per gram ([mu]g/g), in a
play area or average of 1,200 ppm of bare soil in the rest of the yard
based on soil samples.
The TSCA section 403 rulemaking also amended the Lead-based Paint
Activities Regulations to incorporate new dust-lead clearance standards
for abatements. These standards are 40 [mu]g/ft\2\ on floors, 250
[mu]g/ft\2\ on interior windowsills, and 400 [mu]g/ft\2\ on window
troughs, based on wipe samples.
On August 10, 2009, EPA received a petition requesting that EPA
lower the regulatory dust-lead hazard standard and modify the
regulatory definition of lead-based paint. After careful consideration,
EPA decided to grant the request and accordingly intends to begin the
appropriate proceedings. Although EPA granted the request, the Agency
did not commit to either a specific rulemaking outcome or a certain
date for promulgation of a final rule. EPA's primary reason for
granting the request was based on recent epidemiological studies that
indicate the current hazard standards are insufficiently protective.
The request was granted under section 553(e) of the Administrative
Procedures Act (APA). Additionally, because the Secretary of the
Department of Housing and Urban Development (HUD) was given the
statutory authority to establish a lower level of lead in paint for
purposes of the definition of lead-based paint in target housing, EPA
plans to work with HUD on this aspect of the request.
3. The 2008 Renovation, Repair, and Painting Rule. TSCA section
402(c) addresses renovation and remodeling. Specifically, TSCA section
402(c)(2) directs EPA to study the extent to which persons engaged in
various types of renovation and remodeling activities are exposed to
lead during such activities or create a lead-based paint hazard
regularly or occasionally. EPA conducted this study in four phases.
Phase I, the Environmental Field Sampling Study (EFSS) (Ref. 10),
evaluated the amount of leaded dust released by the following
activities:
Paint removal by abrasive sanding.
Removal of large structures, including demolition of
interior plaster walls.
Window replacement.
Carpet removal.
HVAC repair or replacement, including duct work.
Repairs resulting in isolated small surface disruptions,
including drilling and sawing into wood and plaster.
Phase II, the Worker Characterization and Blood Lead Study (Ref. 11),
involved collecting data on blood lead and renovation and remodeling
activities from workers. Phase III, the Wisconsin Childhood Blood Lead
Study (Ref. 3), was a retrospective study focused on assessing the
relationship between renovation and remodeling activities and
children's blood-lead levels. Phase IV, the Worker Characterization and
Blood-Lead Study of R&R Workers Who Specialize in Renovations of Old or
Historic Homes (Ref. 12), was similar to Phase II, but focused on
individuals who worked primarily in old historic buildings. More
information on the results of these peer-reviewed studies can be found
in Unit III.C.1. of the preamble to the 2006 Lead; Renovation, Repair,
and Painting Program Proposed Rule (``2006 Proposal'') (Ref. 13).
TSCA section 402(c)(3) further directs EPA to revise the Lead-based
Paint Activities Regulations to apply to renovation or remodeling
activities that create lead-based paint hazards. Accordingly, EPA
issued the 2006 Proposal, proposing to conclude that any renovation
activity that disturbs lead-based paint can create significant amounts
of leaded dust, that most activities created lead-based paint hazards,
and that some activities can be reasonably anticipated to create lead-
based paint hazards (Ref. 13). This proposed finding was largely based
on the results of the studies conducted under TSCA section 402(c)(2).
After the 2006 Proposal was issued, EPA conducted a field study
(Characterization of Dust Lead Levels after Renovation, Repair, and
Painting Activities) (the ``Dust Study'') to better characterize dust
lead levels resulting from various renovation, repair, and painting
activities (Ref. 14). This study, completed in January, 2007, was
designed to compare environmental lead levels at appropriate stages
after various types of renovation, repair, and painting preparation
activities were performed on the interiors and exteriors of target
housing units and child-
[[Page 25043]]
occupied facilities. The renovation activities were conducted by local
professional renovation firms, using personnel who received lead safe
work practices training. The activities conducted represented a range
of activities that would have been permitted under the 2006 Proposal,
including work practices that are restricted or prohibited under the
final RRP rule. Of particular interest was the impact of using specific
work practices that renovation firms would be required to use under the
proposed rule, such as the use of plastic to contain the work area and
a multi-step cleaning protocol, as opposed to more typical work
practices.
The final RRP rule was published in the Federal Register issue of
April 22, 2008 (Ref. 1). The final RRP rule, codified in 40 CFR part
745, subparts E, L, and Q, addresses lead-based paint hazards created
by renovation, repair, and painting activities that disturb painted
surfaces in target housing and child-occupied facilities. ``Target
housing'' is defined in TSCA section 401 as any housing constructed
before 1978, except housing for the elderly or persons with
disabilities (unless any child under age 6 resides or is expected to
reside in such housing) or any 0-bedroom dwelling. Under the final RRP
rule, a child-occupied facility is a building, or a portion of a
building, constructed prior to 1978, visited regularly by the same
child, under 6 years of age, on at least two different days within any
week (Sunday through Saturday period), provided that each day's visit
lasts at least 3 hours and the combined weekly visits last at least 6
hours, and the combined annual visits last at least 60 hours. Child-
occupied facilities may be located in public or commercial buildings or
in target housing.
In the final RRP rule, EPA issued its determination that
renovation, repair, and painting activities that disturb lead-based
paint create lead-based paint hazards. This finding was based on
evidence from the TSCA section 402(c)(2) study and the Dust Study that
all such activities in the presence of lead-based paint create lead-
based paint hazards. Having made this finding, TSCA section 402(c)(3)
then directs EPA to revise the Lead-based Paint Activities regulations
to apply to such renovations. In the final RRP rule, EPA did not
interpret its statutory mandate to require application of the existing
TSCA section 402(a) regulations to renovations without change. EPA
stated its belief that Congress, by using the word ``revise,'' and
creating a separate subsection of the statute for renovation, intended
that EPA make revisions to those existing regulations to adapt them to
a different set of actions and a very different regulated community. As
discussed in the preamble to the final RRP rule, there are significant
differences between renovations and abatements (Ref. 1). For example,
performing abatement is a highly specialized skill that workers and
supervisors must learn in accredited training courses. However,
painters, plumbers and carpenters already know how to perform
renovation work, so accredited renovator training courses are designed
to teach renovators how to incorporate principles of lead safety into
their typical work. Accordingly, the rule did not merely expand the
scope of the current abatement requirements to cover renovation and
remodeling activities. Instead, EPA considered the elements of the
existing abatement regulations and revised them as necessary to craft a
rule that is practical for renovation, remodeling and painting
businesses and their customers, taking into account reliability,
effectiveness, and safety as directed by TSCA section 402(a).
The final RRP rule establishes requirements for training
renovators, other renovation workers, and dust sampling technicians;
for certifying renovators, dust sampling technicians, and renovation
firms; for accrediting providers of renovation and dust sampling
technician training; for renovation work practices; and for
recordkeeping. Interested States, Territories, and Indian Tribes may
apply for and receive authorization to administer and enforce all of
the elements of these new renovation requirements.
The final RRP rule created two new training disciplines in the
field of lead-based paint: renovator and dust sampling technician.
Persons who successfully complete renovator training from an accredited
renovation training provider are certified renovators. Certified
renovators are responsible for ensuring that renovations to which they
are assigned are performed in compliance with the work practice
requirements set out in 40 CFR 745.85. Persons who successfully
complete dust sampling technician training from an accredited training
provider are certified dust sampling technicians. Certified dust
sampling technicians may be called upon to collect dust wipe samples
after renovation activities have been completed. While the training
disciplines, the work practice standards, and the recordkeeping
requirements of the final RRP rule differ from those established in the
lead-based paint activities regulations, EPA determined that the
accreditation requirements imposed on persons providing lead-based
paint activities training would also be effective for persons providing
renovation training. Therefore, the final RRP rule amended 40 CFR
745.225 to cover persons who provide or wish to provide renovation
training for the purposes of the final RRP rule.
As amended, 40 CFR 745.225 requires training providers who wish to
provide lead-based paint activities or renovation training for the
purposes of the EPA's lead-based paint programs to be accredited by
EPA. The requirements for each course of study are described in detail
at 40 CFR 745.225 as are the operational requirements for training
programs and the process for obtaining accreditation.
Under the final RRP rule, covered renovations in target housing and
child-occupied facilities must be performed by certified renovation
firms. A certified firm must ensure that persons who perform
renovations on behalf of the firm are properly trained and that the
work practice requirements are followed. Renovations must be performed
or directed by certified renovators, who are also responsible for
compliance with the RRP rule's requirements. The final RRP rule
contains a number of work practice requirements that must be followed
for every covered renovation. These requirements pertain to warning
signs and work area containment, the restriction or prohibition of
certain practices (e.g., high heat gun, torch, power sanding, power
planing), waste handling, cleaning, and post-renovation cleaning
verification. In contrast, the RRP rule did not apply the same
performance standard of an abatement-style clearance requirement to
demonstrate that lead-based paint hazards created by the renovation
have been eliminated. Instead, the RRP rule sets forth the steps that
must be taken to isolate and contain the work area before work begins
and the cleaning protocol that must be followed after the renovation
has been completed.
A final step in the process for interior renovations is cleaning
verification. After the RRP rule's specific cleaning protocol has been
followed, a visual inspection for visible dust and debris is performed.
If no dust or debris is found, a certified renovator must wipe the
interior windowsills and uncarpeted floors with wet disposable cleaning
cloths and compare each to a cleaning verification card developed and
distributed by EPA. If the cloth matches or is lighter than the image
on the card, the surface represented by the cloth has passed the post-
renovation cleaning
[[Page 25044]]
verification. If the cloth is darker than the image on the card, the
surface represented by the cloth must be re-cleaned and then wiped with
a new wet cloth, which is then compared to the cleaning verification
card. If the cloth is still darker than the image on the card, the
surface must be allowed to dry for at least an hour. At that time, the
surface is wiped with a dry electrostatic cleaning cloth, which
completes the cleaning verification process for that surface. When all
surfaces in the work area have completed cleaning verification, the
renovation has been completed and the work area may be re-occupied.
Shortly after the final RRP rule was promulgated, several petitions
were filed challenging the rule. These petitions were consolidated in
the Circuit Court of Appeals for the District of Columbia Circuit. On
August 26, 2009, EPA signed an agreement with the environmental and
children's health advocacy groups in settlement of their petitions. In
this agreement EPA committed to propose several changes to the RRP
rule, including the changes discussed in this notice.
Throughout this notice, EPA will use several different terms to
describe the proposed requirements. EPA will use the term ``dust wipe
testing'' to mean collecting wipe samples of dust on floors and
windowsills and in window troughs, analyzing the samples for lead
content, and reporting the results of the analysis to the owners and
occupants of the building being renovated. Although the term ``dust
wipe sampling'' was used in the settlement agreement to describe these
activities, EPA is using ``dust wipe testing'' in this notice to signal
that sample analysis may be performed off-site in a traditional
laboratory setting or on-site by a portable laboratory, so long as the
entity performing the analysis is accredited or recognized by the
National Lead Laboratory Accreditation Program (NLLAP). In this notice,
EPA will use the term ``dust wipe sampling'' to refer to the specific
activity of collecting the wipe samples, not to the analysis or
reporting of results. EPA will use the term ``clearance'' to mean
demonstrating, through dust wipe testing, that the floors, windowsills,
and window troughs in the renovation work area are below the regulatory
clearance standards that have been established for the abatement
program and codified at 40 CFR 745.227(e)(8). This includes re-cleaning
where necessary to achieve the clearance standards.
III. Provisions of This Proposal
A. Dust Wipe Testing and Clearance
1. Background. One of the most significant issues arising out of
the RRP rulemaking was the issue of how to determine whether a
renovation had been properly completed. The Lead-based Paint Activities
Rule requires clearance to be achieved in an abatement work area before
the abatement is considered complete. As previously discussed, the
abatement clearance process involves a visual inspection, dust wipe
sampling of floors, windowsills, and window troughs in the work area,
analysis by an NLLAP-accredited laboratory, and comparison of the
results to the clearance standards. If the sample results are below the
clearance standards, clearance has been achieved and the work area may
be re-occupied. If the sample results are at or above the standards,
the work area must be re-cleaned and the clearance process must begin
again. For this reason, abatement projects often include coating floors
with a sealant. According to the U.S. Department of Housing and Urban
Development's ``Guidelines For the Evaluation and Control of Lead-Based
Paint Hazards in Housing'' (HUD Guidelines), the purpose of sealing
floors is not to trap leaded dust underneath the sealant, but to
provide a surface that can be cleaned effectively by the resident (Ref.
15). Although achieving clearance is not the main reason for sealing
floors, the process typically results in a surface than can achieve
clearance and be kept clean by the resident. This is a sensible
approach for abatements, because the goal of abatement is to
permanently eliminate lead-based paint and lead-based paint hazards.
The clearance process ensures that no lead-based paint or lead-based
paint hazards remain in the work area.
However, EPA recognized that there are many differences between
renovations and abatements. As discussed in the preamble to the final
RRP rule, renovations are different from abatements in intent,
implementation, type of workforce, funding, and goal (Ref. 1). One of
the biggest challenges that faced EPA in revising the TSCA section
402(a) Lead-based Paint Activities Regulations was how to effectively
bridge the differences between abatement and renovation and remodeling
while acknowledging that many of the activities employed in both (e.g.,
window replacement) are the same and generate the same amount of dust.
Abatements are generally performed in three circumstances. First,
abatements may be performed in the residences of children who have been
found to have elevated blood lead levels. Second, abatements are
performed in certain housing receiving financial assistance from HUD
when required by HUD's Lead-Safe Housing Rule, codified at 24 CFR part
35 (see Sec. Sec. 35.630 and 35.930(d)). Third, state and local laws
and regulations may require abatements in certain situations associated
with rental housing, or when abatement orders have been issued when
resident young children, typically under age 6, have blood lead levels
at or above specified values. Typically, when an abatement is
performed, the housing is either unoccupied or the occupants are
temporarily relocated to lead-safe housing until the abatement has been
demonstrated to have been properly completed through dust clearance
testing. Carpet in the housing is usually removed as part of the
abatement because it is harder to clean. Uncarpeted floors that have
not been replaced during the abatement may need to be refinished or
sealed in order to achieve clearance. Abatements have only one
purpose--to permanently eliminate lead-based paint or lead-based paint
hazards.
On the other hand, renovations are performed for myriad reasons
that may have nothing to do with lead-based paint. Renovations involve
activities designed to update, maintain, or modify all or part of a
building. Renovations may be performed while the property is occupied
or unoccupied. If the renovation is performed while the property is
occupied, the occupants do not typically relocate pending the
completion of the project.
EPA also recognized that dust wipe testing and clearance as
required after abatements can be expensive. The costs can be attributed
to two major factors: the cost of trained personnel to collect the
samples and the cost of the laboratory analysis. EPA preliminarily
estimated the cost of three dust wipe samples to be $160 to collect and
analyze (Ref. 13). If EPA had required dust wipe testing and clearance
after every renovation project, it would have made up a significant
portion of the cost of smaller projects. In addition, laboratory
results may not be available for several days. If EPA had required
traditional abatement-style clearance after renovations, the work area
would not be able to be re-occupied while waiting for the laboratory
results.
In addition, EPA was also concerned that requiring clearance after
every renovation job could, in some instances, result in the renovation
firm being held responsible for abating all dust-lead hazards,
including such hazards that
[[Page 25045]]
may have existed in the area before the renovation commenced. During
the stakeholder input opportunities provided by EPA before issuing the
2006 Proposal, contractors suggested that, if post-renovation dust wipe
testing were required, the contractors would have to protect themselves
by collecting pre-renovation dust wipe samples, to ensure that they
would not be held liable for pre-existing hazards.
To address these various concerns, EPA began looking for an
alternative to dust wipe testing and clearance that would be quick,
inexpensive, reliable, and easy to perform. EPA conducted a series of
studies using commercially available disposable cleaning cloths to
determine whether variations of a ``white glove'' test could serve as
an effective alternative to clearance. Based on the favorable final
report of these studies, entitled ``Electrostatic Cloth and Wet Cloth
Field Study in Residential Housing'' (Disposable Cleaning Cloth Study)
(Ref. 16), EPA's 2006 Proposal included a cleaning verification
protocol using wet and dry disposable cleaning cloths.
Unlike the earlier Disposable Cleaning Cloth Study, the Dust Study
was not designed specifically to evaluate the cleaning verification in
isolation from the rest of the work practices. However, the Dust Study
did serve as a valuable field test of the cleaning verification
protocol. The Dust Study involved actual renovations performed by local
renovation contractors who received instruction in how to perform
cleaning verification using wet and dry disposable cleaning cloths and
then were left alone to determine whether the cleaning cloths matched
or were lighter than the cleaning verification card developed by the
EPA. In order to maximize the information collected about cleaning
verification in the Dust Study, cleaning verification was conducted
after each experiment, not just those experiments that were being
conducted in accordance with the proposed rule requirements for
containment and cleaning.
EPA received numerous comments on this aspect of the RRP
rulemaking. While some commenters supported the proposed work
practices, including cleaning verification, many others thought that
renovation work areas ought to be tested and cleared for re-occupancy
in the same way that abatement work areas are cleared through the
clearance process, including dust wipe testing. Many commenters
believed that renovation firms should be required to demonstrate that
no dust-lead hazards had been left behind in the work area. These
commenters contended that the only reliable, safe, and effective way to
do this was through dust wipe testing and clearance.
These commenters contended that the unreliability of cleaning
verification made it an unsuitable substitute for dust wipe testing and
clearance. They pointed to the sentence in the conclusion section of
EPA's Dust Study that states that the cleaning verification protocol
was not always accurate in identifying the presence of levels above EPA
standards for floors and sills. Some commenters also noted the Dust
Study report's discussion of factors that affected the effectiveness of
cleaning verification, such as floor condition, contractor performance,
job type, and dust particle characteristics. One commenter observed
that while all interior experiments resulted in final passed cleaning
cloths for all floor zones and for all windowsills, nearly half of the
experiments in the study ended with average work room floor lead levels
above EPA's dust-lead hazard standard for floors of 40 [micro]g/ft\2\.
The Clean Air Scientific Advisory Committee, who was asked to review
the underlying analysis for the estimation of the effect of the RRP
rule on children's blood lead levels, stated that in the Dust Study
cleaning verification did not provide sufficiently reliable results,
leading to an inaccurate assessment of cleaning efficiency.
EPA agreed with the commenters who argued that cleaning
verification was not a suitable substitute for dust wipe testing and
clearance. EPA noted in the preamble to the final RRP rule that even
though the Disposable Cleaning Cloth Study showed that the cleaning
verification cloths that reached ``white glove'' were approximately 91%
to 97% likely to be below the regulatory hazard standard, EPA believes
the greater variability seen in the Dust Study, particularly in the
experiments where the complete suite of proposed work practices were
not used, does not support the characterization of cleaning
verification as a direct substitute for clearance testing. Cleaning
verification, in itself, is not a substitute for quantitative dust wipe
testing. However, EPA continues to believe that the Dust Study supports
the validity of cleaning verification as an effective component of the
RRP rule's work practices. The cleaning and feedback aspects of
cleaning verification are important to its contribution to the
effectiveness of the work practices (Ref. 1).
In the Dust Study, for renovations not involving practices
restricted or prohibited by the final RRP rule, cleaning verification
in combination with the other required work practices were effective at
reducing dust lead levels on surfaces to or below the dust-lead hazard
standards, regardless of the condition of the floor. Of the 10
experiments performed in compliance with the RRP rule's work practices,
final average lead-based paint dust levels were at or below the
regulatory hazard standard (taking into account the accepted level of
uncertainty, i.e., within plus or minus 20%, which is the performance
criteria for the National Lead Laboratory Accreditation Program). For
the experiments not performed according to the RRP rule's work
practices, the use of cleaning verification after cleaning reduced,
often significantly, the amount of lead dust remaining. EPA determined
that there is sufficient consistency in the Dust Study data to support
the use of cleaning verification as an effective component of the RRP
rule's work practices.
Commenters also expressed concern about the subjectivity of the
cleaning verification process. They noted that the effectiveness of
cleaning verification relies upon the certified renovator's
understanding and application of the protocol, ability to define the
floor sampling area or areas, and use of the cleaning verification card
to determine whether a surface has been adequately cleaned. Some
commenters speculated that the certified renovator's accuracy in
comparing the cleaning cloth to the verification card could depend on
factors such as his or her visual acuity, the lighting in the room, or
simply differences in judgment among certified renovators. The issue of
a person (i.e., the certified renovator on the project) verifying
cleaning of a project that he or she has worked on also raised concerns
about actual or potential conflict of interest, which might, even
unconsciously, affect the person's judgment. One thought that the lack
of corrections for surface conditions, the experience of the person
conducting the visual assessment, or pre-existing conditions might bias
the results of testing.
EPA agreed that the visual comparison of a cleaning cloth to a
cleaning verification card has an element of subjectivity because the
visual comparison of cloth to card requires some exercise of judgment
on the part of the person doing the comparing. However, EPA did not
agree that this necessarily makes the comparison suspect. The Dust
Study represented a real-world test of the ability of renovators to
learn how to do cleaning verification and to apply it in the field.
Although one Dust Study participant expressed concern about
subjectivity, cleaning verification was
[[Page 25046]]
successfully performed by the renovation contractors in all of the
experiments performed in compliance with the work practices in the
final RRP rule. In addition, cleaning verification was predictive of
whether renovators had cleaned-up the lead-based paint hazards created
during the renovation activity to the dust-lead standard, particularly
when the proposed work practices were used. The cleaning verifications
performed during the Dust Study were conducted by various persons in
various lighting conditions and on various surface conditions.
Other commenters did not support dust wipe testing and clearance.
One reason cited by these commenters was the cost of dust wipe testing,
especially if required to be performed by independent certified
inspectors or risk assessors. Some also contended that dust clearance
testing is time consuming and an obstacle to completing the renovation
job. One commenter noted that a major component of the cost of
performing clearance is due to the fact that the portion of the
premises affected by the renovation would have to remain unoccupied.
Another commenter noted that it is not uncommon for the abatement
clearance process to be conducted up to three times on a home to make
sure that lead levels are sufficiently low. Again, commenters expressed
the concern that a requirement for dust wipe testing and clearance
would have the effect of holding renovation firms responsible for pre-
existing dust-lead hazards.
Based on the weight of the evidence in the rulemaking record,
primarily from the Disposable Cleaning Cloth Study and the Dust Study,
EPA determined that, once certain high dust generating practices were
prohibited or restricted, the full suite of work practice requirements,
including containment, cleaning, and cleaning verification, was
effective at minimizing exposure to lead-based paint hazards created by
renovation, repair, and painting activities. At the same time, EPA
recognizes that cleaning verification is an imperfect check on whether
the dust-lead hazard standard has been achieved. Among other things, as
commenters pointed out, there is an element of subjectivity to cleaning
verification, which is not present in dust wipe testing.
In the final RRP rule, EPA gave significant weight to the cost,
timing, and liability concerns expressed by commenters. In balancing
the various considerations, EPA concluded that cleaning verification,
as part of the full suite of work practices, was an appropriate check
on the effectiveness of the work practices. EPA has continued to
balance these considerations in today's proposal, but has preliminarily
concluded that, for certain jobs, the additional benefits of dust wipe
testing, and in some cases clearance, warrant imposing these additional
requirements.
2. Proposed requirements for dust wipe testing after certain
renovations. This proposal contains dust wipe testing requirements for
many renovations. In most of these situations, the renovation firm will
only be required to provide the dust wipe testing results to the
building owners and occupants. However, as discussed more fully in Unit
III.A.3. of this preamble below, after two types of renovations, this
proposal would also require renovation firms to achieve clearance.
EPA has evaluated the value of the information that would be
available to renovation firms and building owners and occupants through
such testing. EPA expects two kinds of benefits to flow from proposed
dust wipe testing requirements. The first are the direct benefits of
the information to the owners and occupants, the pure value of the
information on dust lead levels remaining in the renovation work area,
including leaded dust that may have been generated during the
renovation activity. For building owners and occupants, this
information is likely to improve their understanding and awareness of
dust-lead hazards. It will also greatly improve their ability to make
further risk management decisions. This information is particularly
critical where dust lead levels approach or exceed the regulatory
hazard standards. One commenter on the 2008 RRP rule described the
value of dust wipe testing results in this way: ``Because the white
glove test does not provide a numeric result, a family is given limited
information from which to make informed decisions and worse yet, may be
given a false sense of security.'' (Ref. 17) The commenter then argued
that, ``although the federal floor dust standard is set at 40 [mu]g/
ft\2\, there is sufficient evidence to suggest that floors well below
this standard may endanger children. Property owners and residents
should be provided quantitative information so they can choose what
actions to take based on those levels.'' The commenter believed that in
instances where floor dust wipe test results are just below the EPA
regulatory standard, the owners or occupants may want to undertake
additional cleaning. The value of this information has new significance
in light of recent epidemiological studies that indicate the current
lead-based hazard standards are insufficiently protective.
In addition, in enacting the Residential Lead-based Paint Hazard
Reduction Act of 1992, Congress recognized that there is a value in
providing information to property owners and occupants. Section 1018 of
the Act requires the disclosure of information on lead-based paint and
lead-based paint hazards to purchasers and tenants of target housing.
Even if no specific information on the housing to be sold or rented is
available, the seller or landlord must provide a lead hazard
information pamphlet to the purchaser or tenant. Similarly, TSCA
section 406(b) requires renovators or their firms to provide a lead
hazard information pamphlet to the owners and occupants of target
housing before beginning a renovation in the housing. The information
provided by dust wipe testing after renovations is a different and more
targeted benefit, i.e., a more accurate check on whether the hazard
standard has been met at completion of the job, but it is in line with
the broader statutory emphasis on disclosure of information related to
possible lead-based paint hazards. This information is beneficial in
the same way that disclosure of known lead-based paint and lead-based
paint hazards is beneficial to purchasers and tenants under Section
1018.
The other benefits that EPA expects to flow from a dust wipe
testing requirement are the benefits that may result from changed
behavior on the part of renovation firms. EPA believes that dust wipe
testing results will also provide valuable feedback to renovation firms
on how well they are cleaning up after renovations. In its Evaluation
of the HUD Lead-Based Paint Hazard Control Grant Program (Ref. 18), HUD
noted that the rate of passing initial clearance was associated with
repetition of lead hazard control activities. As renovation firms
become more familiar with the performance requirements for cleaning on
projects covered by the RRP rule, their projects are more likely to
require fewer cleaning cycles.
It is also likely that having to provide to owners and occupants
the specific dust lead levels contained in dust wipe testing results
will increase renovation firm cleaning efficiency. Renovation firms
will be incentivized to lower the dust lead levels remaining after
renovation jobs, even if the levels are at or near the regulatory
standards. In particular, firms that might otherwise be inclined to be
less than thorough in the use of the disposable cleaning cloths in
order to avoid darkening the cloths will be incentivized to perform
cleaning
[[Page 25047]]
verification thoroughly. Because proper cleanup plays such a vital role
in the minimization of dust-lead hazards created by renovations,
providing information on dust lead levels remaining after renovations
to building owners and occupants will serve as an incentive for firms
to perform post-renovation cleaning efficiently, thoroughly, and
correctly so that the benefits of the RRP rule may be fully realized.
EPA is therefore proposing to require that dust wipe testing be
performed after many renovation jobs. EPA has determined that dust wipe
testing results will provide a valuable check on the performance of
cleaning verification and the other work practices for most of the
paint-disturbing renovations covered by the Dust Study (Ref. 14). In
reviewing the data from the Dust Study, EPA believes that, of the jobs
performed in the Dust Study, the additional safeguard of dust wipe
testing is warranted where the floor dust-lead levels changed markedly
from pre-work to post-cleaning to post-cleaning verifications. The only
jobs where this did not occur were the renovations involving cut-outs,
which also created significantly less dust than most other renovations.
Accordingly, today's proposal would require dust wipe testing on
uncarpeted floors, windowsills, and window troughs in the work area
after the following types of interior renovations:
Use of a heat gun at temperatures below 1100 degrees
Fahrenheit.
Removal or replacement of window or door frames.
Scraping 60 ft\2\ or more of painted surfaces.
Removing more than 40 ft\2\ of trim, molding, cabinets, or
other fixtures.
These jobs represent all of the experiments conducted in the Dust
Study other than those involving cut-outs or practices prohibited or
restricted by the final RRP rule. The experiments labeled ``kitchen
gut'' in the Dust Study mostly involved the removal of kitchen cabinets
and kitchen fixtures. The scraping experiments involved the scraping of
approximately 60 ft\2\ or more of lead-based paint, so EPA is proposing
to limit the dust wipe testing requirement to renovations during which
at least that much painted surface is scraped. EPA requests comment,
information, or data on whether the threshold for dust wipe testing
after renovations involving scraping should be lowered to 6 ft\2\,
which is the minor maintenance threshold, or to some other number.
Likewise, the trim and molding removal experiments all involved the
removal of more than 40 ft\2\ of trim or molding, so EPA is proposing
to limit the dust wipe testing requirement to renovations during which
at least that much trim or molding is removed. EPA also requests
comment, information, or data on whether the threshold for dust wipe
testing after trim, molding, cabinet, or fixture removal should be
lowered. EPA acknowledges that the benefits identified above of dust
wipe testing would apply for these smaller jobs, as well as the larger
jobs covered by today's proposal. At the same time, in order to ensure
a program that is practical for renovation activities, EPA has tried in
this proposal to maintain some proportionality between the complexity
and cost of the proposed requirements on one hand, and the size and
cost of the renovation job on the other.
EPA wishes to clarify that the size thresholds for scraping painted
surfaces and removing trim, molding, cabinets, or other fixtures would
be calculated on a per-job basis. This is in contrast to the minor
repair and maintenance exception, which is calculated on a per-room
basis for interior projects.
EPA is also requesting comment on whether dust wipe testing should
be required in situations where a surface fails the cleaning
verification process twice, i.e., when the second wet disposable
cleaning cloth is darker than the cleaning verification card. In that
case, the surface must be allowed to dry for at least an hour, after
which the certified renovator must wipe the surface with a dry
electrostatic cleaning cloth. In the Dust Study, only four surfaces
failed cleaning verification twice, representing two of the sixty
experiments. In one experiment involving cut-outs, a vinyl floor in
poor condition failed cleaning verification twice. The average dust-
lead level on the floor after the second wet disposable cleaning cloth
was 61.5 [micro]g/ft\2\, and after the dry electrostatic cleaning
cloth, the level was 57.2 [micro]g/ft\2\. However, this floor was in
such poor condition that after two pre-cleanings, the cleanings done
before any experiments were conducted, the floor dust lead levels were
still 95 [micro]g/ft\2\. Thus, the floor was cleaner than when it
started, even though it failed cleaning verification twice. In the
other experiment, a kitchen gut performed on a tile floor in fair
condition, three floor sections failed the second cleaning
verification. After the second wet disposable cleaning cloth, the
average dust lead levels on two of the three failed sections were less
than 10 [micro]g/ft\2\, while the other was significantly higher at 150
[micro]g/ft\2\. Nevertheless, after the dry electrostatic cleaning
cloth wipe, the dust lead levels for all floor sections averaged 41.4
[micro]g/ft\2\, which is within the accepted level of uncertainty,
i.e., within plus or minus 20%, for the National Lead Laboratory
Accreditation Program (NLLAP).
The dust wipe testing would have to be performed in a manner
similar to the abatement clearance sampling requirements at 40 CFR
745.227(e)(8). After the cleaning required by 40 CFR 745.85(a)(5) has
been performed, a certified inspector, certified risk assessor, or
certified dust sampling technician would be required to perform a
visual inspection to ensure that the work area is free of visible dust,
debris or residue. EPA is proposing to require this second visual
inspection, in addition to the one performed by the certified renovator
before cleaning verification, because, in many cases, the person
performing the dust wipe testing will not be the same person who
performed the cleaning verification. In addition, there may be a delay
between the completion of cleaning verification and the beginning of
dust wipe testing. EPA believes that the requirement for a visual
inspection immediately prior to dust wipe testing will give the
certified inspector, risk assessor, or dust sampling technician a means
to address any concerns they may have as to the cleanliness of the work
area. The locations for dust wipe samples would be dependent on the
number of rooms, hallways, or stairwells within the work area. If there
is more than 1 room, hallway, or stairwell within the work area, the
following samples would have to be collected:
1 windowsill sample, 1 window trough sample, and 1 floor
sample within each room, hallway, or stairwell (no more than 4 rooms,
hallways, or stairwells need be sampled).
1 floor sample adjacent to the work area, but not in an
area that has been cleaned.
If the work area is a single room, hallway, or stairwell, or a smaller
area, the following samples would have to be collected:
1 windowsill sample, 1 window trough sample, and 1 floor
sample.
1 floor sample adjacent to the work area, but not in an
area that has been cleaned.
If there are no uncarpeted floors in the work area, then no floor
samples would need to be collected. The same would be true for windows
and windowsill or trough samples. Dust wipe samples would be collected
in accordance with the protocol in ``Residential Sampling for Lead:
Protocols for Dust and Soil Sampling'' (Ref. 19).
HUD's Lead Safe Housing Rule, at 24 CFR 35.1340(g), requires the
sample
[[Page 25048]]
adjacent to the work area to be collected within 5 feet of the work
area in an area that is connected to the work area. This specifically
precludes samples from being collected from rooms separated from the
work area by a solid wall. EPA requests comment on whether these
provisions should be incorporated into this rulemaking.
EPA also requests comment on whether this protocol is sufficient to
determine dust lead levels remaining on floors, windowsills, and window
troughs. This protocol has been used for more than a decade in
clearance examinations after lead abatements and HUD interim lead
hazard control work. However, one test per surface may not always be
enough to accurately characterize the dust lead levels over the entire
surface. While the physical variability of dust loadings and lead
concentrations across a room has not been thoroughly investigated,
several studies including EPA's EFSS have found high variability in
side-by-side samples collected before and after various activities
(Ref. 10). EPA requests comment on whether more tests should be
required, and, if so, what protocol should be followed in determining
the number and location of additional tests. For example, one option
would be to follow the ASTM International ``Standard Practice for
Clearance Examinations Following Lead Hazard Reduction Activities in
Dwellings, and Other Child-Occupied Facilities.'' This document says
that for rooms that exceed 500 ft \2\, the floor should be divided into
two or more equal parts of 500 ft \2\ or less and a sample collected in
each part (Ref. 20).
EPA requests comment on whether the provision for random clearance
sampling in multi-unit buildings in the Lead-based Paint Activities
regulations at 40 CFR 745.227(e)(9) should be incorporated into this
regulation. This would permit random testing of individual housing
units after renovations affecting multiple individual housing units in
a multi-family dwelling with similarly constructed and maintained
residences. Consistent with 40 CFR 745.227(e)(9), to take advantage of
this provision, the certified renovators and other trained persons who
renovate or clean the individual housing units would not know in
advance which units would be selected for random testing. In addition,
the dust wipe testing would have to be performed by a certified
inspector or certified risk assessor and the number of residential
units selected for dust wipe testing would have to be sufficient to
provide a 95 percent level of confidence such that, if clearance were
required, no more than 5 percent or 50 of the residential units
(whichever is smaller) in the randomly-sampled population would exceed
the applicable clearance levels. This is the standard for random
clearance sampling after abatement projects and this particular
requirement would be designed to allow certified inspectors and
certified risk assessors to use the training they have already received
on random clearance sampling after abatement projects to decide which
units to test after a renovation in a multi-family dwelling.
Although random dust wipe testing has the potential to reduce costs
for a large multi-unit renovation project, it may not be appropriate
for this rule, given that an important purpose for the proposed dust
wipe testing requirements is the provision of information to building
owners and occupants. However, random sampling is already accepted by
EPA and HUD for disclosure of information on lead-based paint
inspections, risk assessments and abatement clearances under the
Disclosure Rule (Ref. 21), and for notification after activities other
than abatement under HUD's Lead Safe Housing Rule at 24 CFR 35.125(b)
and 35.1340(b)(2)(i). EPA also requests comment on whether a random
sampling provision should be incorporated, but limited to situations
where the HUD rule applies or to situations where the housing is
completely vacant, e.g., an entire apartment building is vacant and
being renovated.
In addition, the current requirements for dust sampling technician
courses do not include random sampling, so dust sampling technicians
would not be able to select the units and locations for random dust
wipe testing. Dust sampling technicians could perform the actual
sampling or testing, so long as the locations for testing were selected
by a certified inspector or risk assessor. EPA requests comment on
whether EPA should modify the dust sampling technician course
requirements to include random testing in multi-family buildings so
that dust sampling technicians would be able to select units randomly
as do certified inspectors and certified risk assessors. EPA also
requests comment on whether this could be done and still allow the
course to be taught within a single 8-hour day.
Dust wipe testing results would have to be provided by an entity
accredited or recognized under the NLLAP. EPA established the NLLAP in
accordance with TSCA section 405(b) to assure the public that
analytical laboratories recognized by the EPA have demonstrated that
they are capable of accurately analyzing for lead in paint chip, dust,
and soil samples. In January 2008, the Agency announced in the Federal
Register changes to NLLAP that expand the opportunity to participate in
the NLLAP to all lead testing service providers (Ref. 22). These
providers include:
Fixed-site operations that perform analytical lead testing
at a permanent location under controlled environmental conditions;
Mobile facilities, or transportable, self-contained
operations that can perform analytical lead testing under controlled
environmental conditions; and
Field sampling and measurement organizations (FSMOs), or
operations that perform on-site sampling and lead testing using
portable testing technologies.
Portable testing technologies that might be employed by FSMOs, once
accredited or recognized, include devices such as an x-ray fluorescence
(XRF) analyzer, an anodic stripping voltammetry (ASV) analyzer, or any
other portable technology that has been shown to accurately and
verifiably measure lead content in dust, paint chip, or soil. EPA
believes these NLLAP changes remove barriers and provide a process so
that all types of lead testing service providers may participate in the
NLLAP. This can make the NLLAP more efficient and cost-effective while
maintaining the high standard of quality, science and technology for
those who purchase analytical services related to lead hazard
identification and control. The ability for portable dust testing
technologies to become accredited under NLLAP is particularly relevant
to this rulemaking, because EPA believes that this will make dust wipe
testing less expensive and time-consuming.
EPA requests comment on additional technologies that may be
available for sampling or testing for lead in dust. EPA is seeking
information on what technologies are available, along with information
on the research or evaluations that may have been conducted on these
technologies. EPA is also interested in research or other information
on technologies that show promise for commercial development.
Persons performing visual inspections, collecting dust wipe
samples, or analyzing dust wipe samples would not be required to be
third parties independent of the firm performing the renovation. This
is consistent with the final RRP rule and EPA's abatement regulations.
EPA has historically not required independent
[[Page 25049]]
third parties to perform testing for two reasons. The first is the cost
savings and convenience of being able to hire just one firm to perform
all necessary lead-based paint activities. The second is the potential
regional scarcity of firms to perform the work. As discussed in the
preamble to the final RRP rule, these considerations are also likely to
be applicable to the renovation sector (Ref. 1, at 21711). EPA does
recommend, however, that the renovation firm comply with the HUD's
prohibition against the same person performing both the renovation
activity and the clearance process. (See 24 CFR 35.1340(f)). EPA
requests comment on whether EPA should impose the same prohibition or a
similar prohibition with perhaps an exception for single person firms.
Under this proposal, dust wipe testing would be performed after
cleaning verification, not instead of it. Cleaning verification is
useful because it combines fine cleaning properties with feedback to
the certified renovator on the effectiveness of the post-renovation
cleaning process. As discussed in the preamble to the final RRP rule,
the Dust Study demonstrated that cleaning verification is quite often
needed to minimize exposure to dust-lead hazards created during
renovations (Ref. 1, at 21744). In 4 of the 10 experiments performed in
accordance with the final RRP rule requirements for containment,
cleaning, and cleaning verification, the average post-cleaning floor
dust lead levels were above the clearance standards. In those
experiments, cleaning verification was needed to reduce average dust
lead levels below the standards. In addition, dust wipe testing only
tests part of the surface, and, as discussed above, leaded dust may not
be distributed uniformly over the entire surface. In contrast, cleaning
verification provides feedback on cleaning effectiveness over the
entire surface so variability in distribution presents fewer
challenges. EPA remains concerned that if dust wipe testing were
allowed instead of cleaning verification, without an accompanying
requirement that the renovation firm re-clean until clearance is
achieved, the RRP rule would actually be less protective because the
surfaces in the work area could be left less clean than if cleaning
verification were performed. Accordingly, dust wipe testing would be
performed after cleaning verification has been performed in accordance
with the existing protocol. After the dust wipe samples have been
collected, the renovation would be considered complete, the warning
signs could be removed, and the work area could be re-occupied. Re-
occupancy would not have to wait until the results of the testing were
available.
However, because re-occupancy can occur immediately after the dust
wipe samples are collected, it is important to ensure that the results
of the dust wipe testing be communicated to owners and occupants as
soon as practicable. Accordingly, this proposal requires the certified
inspector, certified risk assessor, or certified dust sampling
technician to prepare a dust wipe testing report and provide it to the
renovation firm within 3 days of the date that the results are
obtained. If the dust wipe testing results are to be determined by a
fixed-site laboratory, the samples would have to be sent to the
laboratory within 1 business day of the date that they are collected.
The dust wipe testing report would include the name and signature of
each certified person collecting the samples or performing the testing,
the name and address of each certified firm employing the person(s)
conducting the sampling or testing, the start and completion dates of
the renovation, a brief written description of the renovation, the
results of the visual inspection, a detailed written description of the
specific sampling or testing locations or a detailed drawing that
clearly identifies the location of each sample or test, the name of the
NLLAP-recognized entity analyzing the results, the results of each
sample or test, and the clearance standard that is applicable to each
sample or test. EPA does not expect long, involved narrative
descriptions in these reports. The results of the visual inspection
could be as simple as ``no dust, debris, or residue was visible in the
work area,'' while the brief written description of the renovation
could be as simple as ``replaced all of the windows in the upstairs
bedrooms.'' The report should be organized and presented in such a way
that the recipients of the report will be able to easily understand the
information presented. The report must be a single document, with
clearly-identifiable attachments, such as analytical reports from NLLAP
laboratories, where appropriate. If a significant number of tests are
involved, the certified individual preparing the report should
incorporate an executive summary presenting the overall results, with
particular attention given to those results that exceeded the
applicable clearance standards.
The renovation firm would be required to provide this report to the
owner of renovated target housing or child-occupied facilities within 3
days of the date that the renovation firm receives the report. The
renovation firm would also have to provide the report within 3 days of
receipt to the occupants of individual housing units that have been
renovated, if the housing units are not owner-occupied. Similarly, the
report would have to be provided within 3 days to the proprietor of
renovated child-occupied facilities if they are not operated by the
building owner. If the renovation firm has chosen to notify each
individual housing unit affected by a renovation in a common area of
target housing, or each parent or guardian of a child under age 6 using
a renovated child-occupied facility, the renovation firm would also
have to provide these persons with the dust wipe testing report within
3 days of the date that the renovation firm receives the report. In
cases where the renovation firm has chosen to post signs to notify
tenants affected by common area renovations, or parents and guardians
of children under age 6 using a child-occupied facility, the renovation
firm would have to provide the dust wipe testing report upon request.
EPA requests comment on whether the renovation firm should be required
to provide the dust wipe testing report to the building owner and
occupants with the final invoice or within 3 days of the date that the
report is received, whichever is earlier.
3. Clearance. For two types of renovations that can create large
amounts of difficult-to-clean dust, EPA remains concerned about the
possibility that dust lead levels remaining, even after cleaning
verification, may substantially exceed the clearance standards. These
are renovations that disturb paint using machines designed to remove
paint through high speed operation, such as power sanders or abrasive
blasting, when equipped with high-efficiency particulate air (HEPA)
exhaust controls and the demolition, or removal, through destructive
means, of plaster and lath walls, ceilings or other building
components. If renovation firms choose to utilize these methods, EPA is
also proposing to require that renovation firms demonstrate, through
dust wipe testing, that they have met the clearance standards before
the renovation will be considered completed.
EPA's Dust Study demonstrated that machines that remove paint
through high-speed operation, in the absence of HEPA exhaust control,
create enormous amounts of leaded dust that is particularly difficult
to clean up. In the Dust Study, the geometric mean post-work floor dust
lead levels after experiments involving power planing
[[Page 25050]]
were 201,902 [mu]g/ft\2\. That was the only type of power tool
experiment done indoors during the Dust Study. However, two additional
high speed tool experiments were done on exteriors, power sanding and
needle gun. In these cases, using the Dust Study results from the
surface of the plastic containment required by the rule, the geometric
mean post-work floor dust lead levels that could be expected from work
done using these types of tools without HEPA exhaust control are
591,491 [mu]g/ft\2\ for power sanding, and 195,372 [mu]g/ft\2\ for the
needle gun.
In the Dust Study, the work practices required by the final RRP
rule, containment, specialized cleaning, and cleaning verification,
were, in most cases, unable to reduce the dust lead levels remaining on
the work area floors after power planing to anything close to the
clearance standard of 40 [mu]g/ft\2\. Accordingly, EPA banned the use
of machines that remove lead-based paint through high speed operation
without HEPA exhaust control.
EPA did not perform any experiments in the Dust Study with power
tools equipped with HEPA exhaust control. However, EPA has subsequently
reviewed 14 published studies that examined the effectiveness of HEPA
exhaust control on power tools (Ref. 23). These 14 studies reported
reductions in airborne dust levels ranging from 70 to 99 percent.
However, most studies (9) reported reductions in airborne dust levels
between 90 and 95 percent. Applying a 90 to 95 percent reduction to the
post-work dust lead levels generated by the power tools in the Dust
Study results in dust-lead levels of 20,190 [mu]g/ft\2\ to 10,095
[mu]g/ft\2\ for door planing, 59,149 [mu]g/ft\2\ to 29,575 [mu]g/ft\2\
for power sanding, and 19,537 [mu]g/ft\2\ to 9,769 [mu]g/ft\2\ for
needle gun use. It is likely that the work practices required by the
final RRP rule will be unable to reduce these levels to anything
approximating the clearance level of 40 [mu]g/ft\2\ at the end of the
job because of the quantity of the dust generated and the particular
characteristics of this dust that make it hard to clean up.
In addition, in order to achieve 90 to 95 percent effectiveness,
the HEPA exhaust control must be maintained properly and used
correctly. Any lapse in either maintenance or use could result in much
higher dust lead levels remaining after a renovation. For example, when
sanding a mantle, if the renovation worker moves half of the sander off
the edge of the mantle, the HEPA exhaust control will not be operating
at maximum collection efficiency. The same problem would occur any time
that the entire sander is not in contact with the surface, such as when
sanding a curved surface.
With respect to the demolition of plaster, EPA did not perform any
experiments involving that kind of renovation activity in the Dust
Study. However, demolition of several different plaster walls was
studied in the EFSS. The EFSS measured worker exposures by personal air
monitoring, and estimated occupant exposures by dust wipe sampling.
Dust wipe sampling in the EFSS was done from stainless steel dustfall
collectors placed at various locations adjacent to and at varying
distances from the activity. The estimated lead loading over a 6 ft\2\
area resulting from the demolition of a plaster wall was 19,500 [mu]g,
the highest loading for any of the typical activities studied. However,
according to the EFSS, no collectors were placed adjacent to demolition
activities ``due to the large amount of debris.'' (Ref. 10, at 9-10)
EPA was able to determine the functional relationship between settled
dust and distance for the demolition activity, but the relationship
``does not take into account the amount of lead that settles at a
location directly adjacent to the activity. Since the settled dust
samples associated with the demolition were all located at a distance
from the activity space, the estimated 6-foot by 1-foot gradient lead
loading in the demolition activity is interpreted as being the amount
of lead found in the 6-foot by 1-foot region that was airborne in dust
and smaller particles, rather than the total amount of lead
disturbed.'' (Ref. 10, at 9-10)
In the EFSS, EPA also reviewed data on plaster wall demolition
available from OSHA (Ref. 10). The study monitored the demolition of
interior plaster walls and ceilings in a home using hammers and claw-
bars. This study involved only personal air monitoring, not settled
dust sampling. The geometric mean worker exposure for the demolition
activities studied by the EFSS was 107 [mu]g/m\3\, while the geometric
mean worker exposure for the OSHA study was 166 [mu]g/m\3\. Because of
the length of time involved in demolishing a plaster wall, both of
these activities are likely to substantially exceed the OSHA
permissible exposure limit of 50 [mu]g/m\3\ as an 8-hour time-weighted
average.
These studies demonstrate that plaster wall demolition creates
large amounts of lead-contaminated dust. EPA also believes that this
dust is particularly difficult to clean up, because of the qualities of
plaster and the way in which such demolition is typically done through
destructive means such as sledgehammers. The dust created by this
activity is likely to consist of very fine particles. EPA is concerned
that, like the dust produced by machines that remove paint through high
speed operation, the large quantities of dust created by plaster wall
demolition will overwhelm the containment, specialized cleaning, and
cleaning verification processes and result in renovation work areas
being re-occupied with lead-based paint hazards created by the
renovation still in place.
Given these concerns, EPA is proposing to require renovation firms
to follow a clearance process similar to that performed after abatement
projects after renovations involving the disturbance of paint using
machines designed to remove paint through high speed operation or the
demolition, or removal, through destructive means, of more than 6 ft\2\
of plaster and lath building component. After the cleaning required by
40 CFR 745.85(a)(5) and the cleaning verification required by 40 CFR
745.85(b)(1), dust wipe testing would have to be performed in exactly
the same way that it would be required after the renovations discussed
in Unit III.A.2. of this preamble. If any of the test results equal or
exceed the regulatory clearance standards in 40 CFR 745.85(b)(4), the
renovation firm would be required to re-clean the surfaces represented
by those tests in accordance with 40 CFR 745.85(a)(5)(ii). Those
surfaces would have to be re-tested, and the results compared to the
clearance standards.
With respect to plaster removal, the clearance requirement would
apply only to walls, ceilings constructed of plaster and lath, not
gypsum drywall finished with plaster. The experiments performed and
reviewed in the EFSS involved plaster and lath walls, not drywall. In
this country, interior walls were commonly constructed of plaster and
lath until the 1950's, when drywall began to replace the lath and
plaster construction method. Again, this clearance requirement would
only apply to plaster removal done through destructive means, such as
sledgehammers.
This proposal would not allow renovation firms to skip the cleaning
verification step when they are required to perform clearance. The Dust
Study demonstrates that cleaning verification is an important part of
the cleaning process. Of the 10 experiments completed in the Dust Study
in accordance with the final RRP rule requirements, 4 required the
additional cleaning provided by cleaning verification to reach an
average floor dust lead level below 40 [mu]g/ft\2\ (Ref. 14).
[[Page 25051]]
The additional cleaning resulting from cleaning verification was
particularly dramatic in the window replacement experiments, where the
dust lead levels on the floor were cut nearly in half by cleaning
verification. EPA is specifically requesting comment on cleaning
verification requirements for surfaces that fail clearance due to high
dust wipe test results. While the Dust Study shows that cleaning
verification is a very effective cleaning method, EPA recognizes that
there is a cost associated with multiple cleaning verification passes
over a surface, particularly if the surface fails the wet disposable
cleaning cloth phase and must be allowed to dry for an hour before
using a dry electrostatic disposable cleaning cloth. Although not
specifically studied, the Dust Study suggests that it would be unlikely
for a surface that had been cleaned and had gone through the cleaning
verification process to fail another round of cleaning verification.
Sixty interior experiments were performed in the Dust Study; only 3
work room floors failed all rounds of cleaning verification. Two of
those were performed using only baseline work practices, no containment
or specialized cleaning, on a vinyl floor in poor condition that EPA's
contractor had difficulty pre-cleaning to below 40 [mu]g/ft\2\ before
beginning the study. The third was on a tile floor in fair condition,
with plastic containment but no specialized cleaning. In addition, of
the 4 experiments in the Dust Study performed in accordance with the
final RRP rule that needed cleaning verification to reduce average
floor dust lead levels below 40 [mu]g/ft\2\, failed cleaning
verification cloths were only seen in 1. The reductions in dust lead
levels seen in the window replacement experiments occurred after only 1
pass with a wet disposable cleaning cloth. In light of these results,
this proposal would require surfaces failing clearance due to high dust
wipe test results to be recleaned in accordance with the RRP rule, HEPA
vacuuming followed by wet wiping or mopping, followed by one round of
cleaning verification using a wet disposable cleaning cloth. This cloth
would not have to be compared to the cleaning verification card, the
renovation firm could conduct additional dust wipe testing for
clearance purposes on the surface as soon as it has dried.
EPA is also proposing to eliminate the existing provision that
allows renovation firms to perform clearance in lieu of cleaning
verification when another Federal, State, or local law or regulation,
or the contract between the renovation firm and the property owner,
requires the renovation firm to use qualified entities to perform dust
wipe testing and requires the renovation firm to achieve clearance.
Because cleaning verification has been shown to be such an important
part of the post-renovation cleaning process, and because that
provision would be inconsistent with this proposal, EPA believes that
it should be eliminated. Rather, this proposal would require cleaning
verification to be performed in the same way it would have to be
performed after jobs involving demolition or removal of plaster through
destructive means or the disturbance of paint using machines designed
to remove paint through high-speed operation.
The renovation would not be considered complete, and the warning
signs would have to remain in place, until the renovation firm can
demonstrate through a dust wipe testing report that it has met the
clearance standards. The certified inspector, certified risk assessor,
or certified dust sampling technician performing the sampling or
testing would be required to prepare a clearance report. The clearance
report would include the start and completion dates of the renovation;
a brief written description of the renovation; the name and address of
each certified firm employing each certified inspector, certified risk
assessor, or certified dust sampling technician performing the
clearance procedures; the name and signature of each certified
inspector, certified risk assessor, or certified dust sampling
technician performing the clearance procedures and the dates that the
clearance procedures were performed; the results of the visual
inspection; a detailed written description of the specific sampling or
testing locations or a detailed drawing that clearly identifies the
location of each sample or test; the results for each dust wipe sample
or test; whether or not clearance was achieved; and the name of each
recognized entity that conducted the analyses. As with the dust testing
report, EPA does not expect long, involved narrative descriptions in
these reports. The results of the visual inspection could be as simple
as ``no dust, debris, or residue was visible in the work area,'' while
the brief written description of the renovation could be as simple as
``replaced all of the windows in the upstairs bedrooms.'' However, the
report should be organized and presented in such a way that the
recipients of the report will be able to easily understand the
information presented. The report must be a single document, with
clearly-identifiable attachments, such as analytical reports from NLLAP
laboratories, where appropriate. If a significant number of tests are
involved, the certified individual preparing the report should
incorporate an executive summary presenting the overall results, with
particular attention to those results that exceeded the applicable
clearance standards.
The certified inspector, certified risk assessor, or certified dust
sampling technician would be required to provide a copy of this report
to the renovation firm within 3 days of the date that the dust wipe
testing results are obtained. If the dust wipe testing results are to
be determined by a fixed-site laboratory, the samples would have to be
sent to the laboratory within 1 business day of the date that they are
collected. The renovation firm would be required to provide this report
to the owner of renovated target housing or child-occupied facilities
within 3 days of the date that the renovation firm receives the report.
The renovation firm would also have to provide the report within 3 days
of receipt to the occupants of individual housing units that have been
renovated, if the housing units are not owner-occupied. Similarly, the
report would have to be provided within 3 days to the proprietor of
renovated child-occupied facilities if they are not operated by the
building owner. If the renovation firm has chosen to notify each
individual housing unit affected by a renovation in a common area of
target housing, or each parent or guardian of a child under age 6 using
a renovated child-occupied facility, the renovation firm would also
have to provide these persons with the dust wipe testing report within
3 days of the date that the renovation firm receives the results. In
cases where the renovation firm has chosen to post signs to notify
tenants affected by common area renovations, or parents and guardians
of children under age 6 using a child-occupied facility, the renovation
firm would have to provide the dust wipe testing report when requested.
In most cases, renovation firms will be able to avoid using the
work practices that would require clearance afterwards. Sanding or
scraping could be done by hand instead of by power tool. Many plaster
removal jobs can be performed by using non-destructive means such as
saws and pry-bars to remove sections of plaster and lath wall. At the
same time, EPA also understands that renovation firms may encounter
floors, windowsills, and window troughs that are in such poor condition
that clearance may not be possible. As
[[Page 25052]]
discussed previously, the HUD Guidelines recommend using a sealant on
floors if necessary to achieve clearance (Ref. 15). The Guidelines
suggest that, if any surface fails two clearance tests, the ``property
owner should consider additional hazard control measures and/or further
sealing of the surface'' (Ref. 15, at 15-10). EPA's own experience with
the Dust Study confirms that surface condition may be a problem, at
least in some instances. After several encounters with work room floors
that could not be cleaned to the clearance standards in preparation for
a new experiment, the Dust Study contractors began using a sealant
before testing floors in preparation for beginning work (Ref. 24). When
this occurred with windowsills, the contractors used dust collection
trays instead of the sill surface for sampling.
Various studies have shown that dust lead levels on surfaces are
directly correlated with the condition of the surface. That is, a
surface, such as a floor, in poor condition tends to have higher dust
lead levels than a floor in fair to good condition. An evaluation of
the HUD Lead-Based Paint Hazard Control Grant Program found that the
``effect of the condition of the wiped surface at clearance was
significant in all analyses. The surfaces in better condition at
clearance had lower clearance dust lead loadings and lower failure
rates'' (Ref. 18, at 7-20). EPA's Dust Study also found that floors in
poor condition had higher dust lead levels across the post-work, post-
cleaning, and post-cleaning verification sampling stages than floors in
better condition, although this could have been due to higher-intensity
work (Ref. 14, at 6-14). EPA requests comment on whether this
correlation should affect clearance or dust wipe testing requirements,
and if, so, in what way. EPA is interested in suggestions on how to
address the fact that some floors will be more difficult to clean than
others.
In particular, EPA has wrestled with the issue of how to reconcile
a clearance requirement when floors are in such poor condition that
achieving clearance would require the renovation firm to expand the
scope of the original job to include additional remedial action such as
refinishing the floor. In part, this situation raises the concern that
renovation firms might be required to remediate lead hazards that
existed prior to the renovation. To address the situation where
achieving lead levels below the lead hazard standards would require
expanding the scope of the renovation job, EPA is proposing an
exception to the requirement to achieve clearance. Specifically, EPA
proposes to allow renovation firms to stop after the second failed
clearance test, regardless of the result, if the renovation firm did
not agree to refinish the surface that is failing clearance as part of
the renovation contract. For example, if a renovation firm is hired to
remove plaster and lath wall sections that partially separate a living
and dining room, and repaint the walls (including the windows) in both
rooms, then the renovation firm would be required to ensure that the
windowsills in the work area achieve clearance, no matter how many
times the sills must be re-cleaned and re-tested. However, if the
renovation firm was not hired to refinish the floor, the renovation
firm would only have to re-clean and re-test the floor once if it
failed clearance the first time, no matter what the second dust wipe
testing result is. EPA believes that such a provision is necessary,
given that renovation firms may encounter floors, windowsills, and
window troughs that are in such poor condition that clearance may not
be possible.
EPA is also requesting comment on whether renovation firms ought to
be allowed to perform pre-renovation dust wipe testing on surfaces in
the work area that are in poor condition to help demonstrate that they
are not leaving behind dust-lead hazards that they created. In this
option, the renovation firm would only have to demonstrate that, for
surfaces in poor condition in the work area, the dust-lead levels on
these surfaces (which could be windowsills and/or floors) after the
renovation are no higher than 150 [mu]g/ft\2\. This would ensure that
renovation firms are not unduly held accountable for pre-existing lead-
based paint hazards. EPA believes that 150 [mu]g/ft\2\ is an
appropriate upper limit, given that EPA's contractor was able to clean
all of the floors encountered in the buildings used for the Dust Study
to this level or below (Ref. 14). EPA requests comment on whether there
is an appropriate alternate upper limit that should be considered and
the available data to support this alternate limit. Any pre-renovation
testing option would also include a requirement to provide both the
pre-renovation dust wipe testing report as well as the post-renovation
report to the building owners and occupants. As part of its
consideration, EPA requests comment on how ``poor condition'' should be
defined for this approach.
EPA believes that window troughs are particularly likely to harbor
pre-existing dust lead levels at or above the clearance standards. They
are also particularly likely to be difficult to clean. Therefore, EPA
is requesting comment on whether EPA should allow renovation firms to
close windows in the work area that are not being worked on and cover
them with taped-down plastic or other impermeable material to avoid the
requirement to ensure that the window troughs achieve clearance
standards. EPA would still require renovation firms to test both the
sills and troughs of closed and covered windows, and report the results
to the building owners and occupants, but firms would only need to
ensure that the sills achieve the clearance standards.
EPA is also requesting comment on whether clearance should be
required in other situations. In particular, EPA is interested in
comment on whether clearance should be required after any of the
activities for which EPA is proposing a dust wipe testing requirement.
EPA is also interested in comment on whether clearance should be
required in rental properties after renovations for which EPA is
proposing a dust wipe testing requirement, especially if the renovation
firm has been informed that the renovation is being performed to remedy
a violation of federal, state, or local laws or regulations or to
comply with a federal, state, or local government order, such as an
order to correct building code violations, or an abatement order in
response to an elevated blood lead level. In this case, EPA is also
interested in comment on whether EPA should require renovation firms to
affirmatively ask whether the work is being performed to remedy a
violation or comply with an order, and whether renovation firms should
provide this information to owners and occupants after the renovation.
Finally, EPA requests comment on whether dust wipe testing or clearance
should be required in any other situations not discussed specifically
in this proposal, including situations where a surface has failed
cleaning verification twice.
4. Additional requests for comment on dust wipe testing or
clearance.
EPA is seeking comment on whether there are other regulatory
options for dust wipe testing or clearance that maximize the potential
benefits by targeting those activities that are most likely to exceed
the clearance standards. For example, should different size thresholds
be used for some or all of the renovations affected by this proposal?
As discussed, the proposed thresholds for dust wipe testing are taken
from the Dust Study. Does the data from the Dust Study, or data from
another source, support larger thresholds for some or all of these
jobs? Although EPA is concerned about potential confusion
[[Page 25053]]
with the definition of minor maintenance and repair, does the data from
the Dust Study support applying these proposed thresholds on a per-room
basis?
Another potential option would be to apply dust wipe testing or
clearance requirements only in homes where pregnant women or children
under age 6 reside or in any building that meets the definition of
child-occupied facility. EPA requests comment on this option, which
does target particularly vulnerable populations but provides no
protections for older children, adults and family pets.
EPA also requests comment on whether dust wipe testing should only
be required when a surface fails the first round of cleaning
verification, and, if dust wipe testing is done, whether the second
round of cleaning verification should then be performed. In the Dust
Study, if a surface failed the first round of cleaning verification, no
dust wipe samples were collected before the surface was cleaned and
cleaning verification performed again (Ref. 14). This occurred in 17 of
the 60 interior experiments performed. Three of those surfaces also
failed the second round of cleaning verification. In each of those 3
cases, at least one surface was also demonstrated to be above the
regulatory clearance standards by dust wipe testing. Since no dust wipe
samples were collected after the first round of cleaning verification,
it is not possible to determine, for certain, what additional
reductions in dust lead levels were attributable to the second round of
cleaning verification. However, some insight is provided by the
reductions in dust lead levels made by the first round of cleaning
verification. In many of the experiments that passed the first round of
cleaning verification, the cleaning verification step resulted in
significant dust lead reductions between the samples taken post-
cleaning and the samples taken post-cleaning verification. Thus, the
Dust Study demonstrates that the cleaning verification protocol in the
2008 RRP rule is an integral part of the cleaning regimen. Because the
second round of cleaning verification likely contributes significantly
to the total reduction in dust lead levels attributable to cleaning
verification, EPA continues to believe that the second round of
cleaning verification is a necessary step in the process, regardless of
whether dust wipe samples are collected or not.
Another possible regulatory option would be to require clearance
for renovations involving the demolition of plaster or the use of high-
speed machines designed to remove paint, or a larger set of renovation
types, or smaller renovation size thresholds, and not require dust wipe
testing in the absence of a clearance requirement. EPA requests comment
on these options and suggestions for other regulatory options that may
be less burdensome but still justifiable based on the available data.
B. Test Kits for Lead in Paint
EPA has worked with test kit vendors to develop kits that can more
accurately identify the presence of regulated lead-based paint. Through
its Environmental Technology Verification (ETV) program, EPA is
currently reviewing five test kits that have been submitted by vendors.
More information on this process can be found at http://www.epa.gov/lead/pubs/testkit.htm#recognize.
EPA is also proposing to give certified renovators another option
for determining whether lead-based paint is present on components to be
affected by a renovation. This proposal would permit certified
renovators to collect paint chip samples from components to be affected
by a renovation instead of using test kits to test the paint on the
components. When utilizing this option, the certified renovator would
be required to send the samples to a recognized NLLAP laboratory.
Because renovator training courses are already required to include
training in how and where to use test kits, EPA believes that it would
take very little additional time to also provide renovators with
training in how to collect a chip sample such that all paint layers are
present with a minimal amount of substrate included in the sample, and
how to submit these samples to an NLLAP laboratory for analysis. Such
an option would not make a certified renovator the equivalent of a
certified lead-based paint inspector. Certified renovators would still
have to test each affected component, they would not be permitted to
exclude components based on similar painting histories or perform
random paint sampling in multi-unit buildings. EPA is proposing to
allow certified renovators to collect paint chip samples instead of
using test kits in order to provide maximum flexibility for certified
renovators and renovation firms.
C. Training Provider Accreditation
Training providers who wish to provide renovator, dust sampling
technician, or lead-based paint activities training for Federal
certification purposes must apply for and receive accreditation from
EPA. To become accredited, a provider must employ a training program
manager as well as principal instructor(s) who meet certain education,
training and work experience requirements. The training provider must
indicate on its application for accreditation that the training program
manager and principal instructor(s) meet these requirements; however,
currently, no documentation (e.g., resumes) regarding the
qualifications of these individuals must be submitted to EPA. The
Agency believes it is important to review this information when
determining whether to approve a training provider application. When
EPA reviews applications for accreditation, it is common for the Agency
to request this documentation from training providers in order to
verify that the training program manager and principal instructor(s)
have the proper qualifications. Requesting this information takes time
and can delay the review of an application. Therefore, the Agency is
proposing to require that training providers submit documentation
regarding the qualifications of the education, training and work
experience of training managers and principal instructors with their
applications for accreditation.
EPA is also proposing to clarify the role of principal instructors
in teaching courses. The current regulation, at 40 CFR 745.227(c)(3),
states that principal instructors are responsible for the organization
of their courses and oversight of the teaching of all course material.
The regulations also define ``principal instructor'' as ``the
individual who has the primary responsibility for organizing and
teaching a particular course.'' Nonetheless, the rule also allows
training program managers to designate experts in a particular field
(e.g., doctors or lawyers) as guest instructors, on an as needed basis,
to teach discrete portions of the course. EPA interprets these
provisions to require a principal instructor to be present and
primarily responsible for teaching the course, although guest
instructors may be used to teach some portion(s) of the course.
Principal instructors are also responsible for the quality of the
instruction delivered by the guest instructors. To ensure that the
regulation is clear on this point, EPA is proposing to amend 40 CFR
745.227(c)(3) to state that principal instructor(s) are primarily
responsible for teaching the course materials and must be present to
provide instruction (or oversight of portions of the course taught by
guest instructors) for the course for which he has been designated the
principal instructor.
The final RRP rule included requirements for amending the
certification of a renovation firm. Firms must submit an amendment
within 90
[[Page 25054]]
days of the date that a change occurs to information in its most recent
application for certification or re-certification. Examples of
amendments include a change in the firm's name without transfer of
ownership, or a change of address or other contact information. To
amend its certification, a firm must submit an application, noting on
the form that it was submitted as an amendment. The firm must complete
the sections of the application pertaining to the new information, and
sign and date the form. EPA has interpreted the training provider
accreditation regulations to require accredited training providers to
submit amended applications whenever there is a change to the
information provided in the training provider's most recent application
for accreditation or re-accreditation, including information regarding
the training manager and any principal instructor(s) teaching courses
offered by the training provider. However, the existing regulations do
not specify a time limit for submitting an amendment. Therefore, the
Agency is proposing to require training providers to submit amendments
within 90 days of the date a change occurs to information in each
provider's most recent application. If the training provider does not
amend its most recent accreditation application within the 90-day time
period, it must stop providing training until the accreditation
application is amended. The Agency is also proposing to approve or
disapprove amendments for a new training manager, any new or additional
principal instructors, or any new permanent training location within 30
days of the date EPA receives the amendment. This 30-day time period
will give EPA sufficient time to check the qualifications of the
training manager(s) or principal instructor(s) before the training
manager begins managing or the principal instructor begins teaching a
course. This 30-day time period would also give EPA sufficient time to
verify the suitability of a new permanent training location by visiting
the location. The training provider would not be permitted to provide
training under the new training manager or offer courses taught by any
new principal instructor(s) or at the new training location until EPA
either approves the amendment or 30 days has passed. Finally, this
proposal would also clarify that no fee will be charged for
accreditation application or certification amendments.
To become accredited, a training provider must submit a copy of its
training course materials with its application for accreditation for
review by the Agency. If a training provider chooses to use the model
course developed by EPA or a course approved by an authorized State or
Indian Tribe, then it is not currently required to submit the course
materials with its application. Instead the training provider indicates
on its application that it will use the EPA model course or a course
approved by an authorized State or Indian Tribe. Authorized States and
Indian Tribes can have renovation or abatement programs that are
significantly different from the EPA-administered program which would
be reflected in their approved course materials. In these instances, a
training course approved by the State or Indian Tribe may not be
sufficient for the purposes of training someone on the requirements of
the federal program. Therefore, the Agency is proposing to require
training providers who apply to EPA for accreditation and wish to use a
course approved by an authorized State or Indian Tribe to submit the
course materials for EPA review. This will give the Agency the
opportunity to identify and address any significant differences between
the requirements of EPA and the authorized program that may appear in
the course so the Agency can ensure that EPA-accredited training
providers are using appropriate course materials. Training providers
wishing to use the EPA model courses would not be required to submit
those materials with their applications.
As a matter of clarification, Web-based training and other types of
alternative training delivery are permitted. In fact, EPA has developed
a model on-line renovator course that could be used to deliver the
classroom portion of the renovator course. While such alternative
training delivery options cannot be used to deliver required hands-on
training, EPA encourages training providers to make use of such options
where appropriate to increase access to training and make it more
affordable. Web-based training courses are considered separate courses
and a separate application fee is required for each. This is because
EPA must review not only the content of the course, but the mechanics
of the delivery of the course.
EPA's model electronic training courses contain certain basic
administration and delivery requirements. These include assigning a
unique identifier to each student, to allow the training provider to
track student course progress and completion. In addition, there are
knowledge checks for each chapter, which must be completed before the
student can go on to the next chapter, and a final test for the
electronic learning portion which consists of at least 20 questions.
Finally, students must be able to save or print an uneditable copy of a
record showing completion of the electronic learning portion of the
course. Under this proposal, these requirements would be explicitly
incorporated into 40 CFR 745.225 to ensure that all training providers
wishing to use electronic learning for the classroom portions of lead-
based paint courses are aware of these requirements and plan their
course development accordingly. EPA requests comment on the specifics
of these requirements, such as whether a course test of 20 questions is
sufficient and whether a student should be required to score at least
80 percent on the course test in order to pass the classroom portion of
the renovator course. EPA also requests comment on whether a final test
for the electronic portion of the course is necessary, given that
trainees must pass a hands-on skills assessment and the course test in
order to receive a course completion certificate. EPA also requests
comment on whether other requirements should likewise be incorporated
into the regulations.
EPA is requesting comment on whether training providers should be
allowed to provide a combined Abatement Worker/Renovator refresher
course or a combined Abatement Supervisor/Renovator refresher course or
both. After the RRP rule was promulgated, EPA received input from the
regulated community and others that indicates that many abatement
contractors are likely to also become certified renovation firms. If
this is the case, it would be advantageous for such firms to be able to
send their employees to combined refreshers so that the employees would
more readily be able to keep up their dual certifications. EPA requests
comment on the likelihood that this will be the case, and, if combined
refreshers are desirable, whether the different certification time
periods for individual abatement certification (3 years) and individual
renovator certification (5 years) should be harmonized and, if so, how.
Finally, EPA is proposing to require training providers to maintain
renovator and dust sampling technician training records for a period of
5 years. Under the existing regulations, training providers must keep
training records for 3 years and 6 months. This length of time was
chosen because of the length of individual certification periods for
lead-based paint activities, which can be as long as 3 years and 6
months including interim certification.
[[Page 25055]]
However, the renovator and dust sampling technician certification
periods are 5 years, with no interim certification. Therefore, in order
to ensure that the training records from the previous training course
are available for certified renovators and dust sampling technicians
taking refresher courses, the recordkeeping period applicable to these
disciplines would be increased to 5 years.
D. State, Territorial, and Tribal Program Authorization
Interested States, Territories, and Indian Tribes may apply for,
and receive authorization to, administer and enforce all of the
elements of the RRP program. The regulations for the State and Tribal
program requirements are found in 40 CFR 745.326. Under this proposed
rule EPA is clarifying several parts of this section. First, the Agency
is amending the regulations to make it clear that State and Tribal
programs do not need to include requirements for the accreditation of
dust sampling technicians if they are going to require dust sampling to
be performed by a certified inspector or risk assessor. Second, the
Agency is proposing to amend the regulations to reflect that both
individuals and firms must receive certification. Finally, EPA is
proposing to require State and Tribal renovation programs to include
procedures and requirements for on-the-job training of renovation
workers that do not receive accredited training.
Strong enforcement of the lead-based paint regulations by
authorized State and Tribal programs is critical to ensuring the safety
of the occupants of target housing and child occupied facilities
undergoing lead abatement, renovation, repair or painting. The State
and Tribal program authorization requirements at 40 CFR 745.327 include
provisions for approval of compliance and enforcement programs.
Specifically, State and Tribal programs must have adequate compliance
monitoring and enforcement authorities. Section 745.327(b)(3)(ii)
requires ``[a]dministrative or civil actions including penalty
authority * * *;'' but the rule does not establish a minimum penalty
level or other requirements for enforcement authorities comparable to
EPA authorities under TSCA. To remedy this, EPA is proposing that in
order to be authorized for any of the lead certification programs,
State or Tribal programs demonstrate that: (1) The State or Tribe be
able to sue to obtain penalties, (2) civil and criminal penalties are
assessable for each instance of violation, (3) if violations are
continuous, the penalties are assessable up to the maximum amount for
each day of violation, and (4) the burden of proof and degree of
knowledge or intent of the respondent is no greater than it is for EPA
under TSCA. EPA is also requesting comment on whether a minimum penalty
level for civil and criminal fines ought to be established, and, if so,
what the minimum level for each should be. States and Tribes may be
authorized to administer a number of EPA programs; some of these
programs have minimum penalty requirements for State and Tribal
programs and some do not. For example, under the Clean Air Act
implementing regulations at 40 CFR 70.11(a)(3) and the Resource
Conservation and Recovery Act implementing regulations at 40 CFR
271.16(a)(3), State programs must have the authority to assess civil
and criminal fines of at least $10,000 per day per violation. Other
programs have established lower minimum penalty requirements. The
implementing regulations for the Safe Drinking Water Act require State
programs to have the authority to impose a penalty of at least $1,000
per day per violation on public water systems serving a population of
more than 10,000 individuals. Some EPA programs have set no minimum
penalty authority requirements for States and Tribes; these programs
include the Asbestos Hazard Emergency Response Act program and the
State pesticide applicator certification program under the Federal
Insecticide, Fungicide, and Rodenticide Act. EPA is proposing that in
order to become authorized, State and Tribal lead-based paint programs
must have minimum civil and criminal penalty authorities of at least
$10,000 per violation per day. EPA requests comment on whether
proposing minimum levels for the maximum civil penalty and criminal
fine recoverable under a State or Tribal program is necessary to ensure
that enforcement is adequate and, if so, whether $10,000 should be the
minimum level. EPA also requests comment on whether such a minimum
requirement would appropriately promote consistency across authorized
State and Tribal programs. In addition, EPA is requesting comment on
whether these minimum levels should also be adjusted periodically to
account for inflation, as required for Federal penalties under Federal
Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note,
as amended by the Debt Collection Improvement Act of 1996, 31 U.S.C.
3701 note. One way of doing this would be to require State and Tribal
programs to have minimum civil penalty authority of 40% of the Federal
maximum penalty authority under TSCA section 16, as adjusted for
inflation, at the time the State or Tribe is authorized. However, this
approach would result in different requirements for States and Tribes
depending upon when they apply for authorization. Another way of
accomplishing inflation adjustments would be to require State and
Tribal authorized programs to have their own established mechanism for
adjusting penalties to account for inflation. By requiring all
authorized programs to make adjustments for inflation, this approach
might be more likely to promote enforcement consistency across
programs. Also in the interests of promoting national enforcement
consistency, EPA requests comment on what criteria States or Tribes
should consider, such as the size of a respondent's business, ability
to remain in business, enforcement history, or risk posed by the
respondent's actions, in establishing or mitigating penalties.
E. Other Proposed Amendments to the Final RRP Rule
1. Containment. EPA is proposing to be more specific about the
vertical containment requirements for exterior projects. Under this
proposal, the rule would specifically state that vertical containment
is required for exterior renovation projects that are covered by the
rule and that affect painted surfaces within 10 feet of the property
line. In such cases, vertical containment is necessary to ensure that
adjacent buildings or properties are not contaminated by leaded dust or
debris generated by the renovation. The rule would also note that
vertical containment may be required in other situations, such as windy
conditions, to prevent contamination of other buildings, other areas of
the property, or adjacent buildings or properties. Finally, to clarify
what is meant by the term ``containment,'' this proposal would add a
definition of the term that is based on the definition of ``Worksite
preparation level'' from the HUD Guidelines. The definition includes
additional information on what constitutes vertical containment.
2. Prohibited or restricted practices. EPA is proposing to clarify
that the prohibitions and restrictions on work practices in 40 CFR
745.85(a)(3), e.g., the prohibition on open flame burning or torching,
apply to all painted surfaces, not just surfaces where the presence of
lead-based paint has been confirmed. The term ``lead-based paint'' was
incorrectly and inadvertently used in this subsection, making it
inconsistent with the rest of the RRP
[[Page 25056]]
rule, which applies in the presence of known lead-based paint as well
as paint that has not been tested for lead content. This proposal would
replace the term ``lead-based paint'' with ``painted surfaces'' in this
subsection. Of course, if the painted surface has been tested and found
to be free of lead-based paint, the prohibitions and restrictions on
work practices in the final RRP rule do not apply. In addition, EPA
wishes to clarify that the restriction on the use of machines that
remove paint through high speed operation applies where painted
surfaces are being disturbed by such machines. The restriction is not
limited to situations where all of the paint is removed by such
machines. Finally, EPA has received several requests for clarification
on what is meant by HEPA exhaust control. In order to better express
what is required when machines designed to remove paint through high
speed operation are used, EPA is using terminology from the
Occupational Safety and Health Administration's Technical Manual (Ref.
25). The use of shrouded tools to remove lead-based paint is discussed
in Chapter 3 of Section V, entitled ``Controlling Lead Exposures in the
Construction Industry: Engineering and Work Practice Controls.''
Therefore, this proposal would amend 40 CFR 745.85(a)(3)(ii) to read,
``The use of machines designed to remove paint through high speed
operation such as sanding, grinding, power planing, needle gun,
abrasive blasting, or sandblasting, is prohibited on painted surfaces
unless such machines are used shrouded and equipped with a HEPA vacuum
attachment to collect dust and debris at the point of generation.''
3. HEPA vacuums. EPA is proposing to clarify that vacuums
qualifying as HEPA vacuums for the purposes of this rule must be
operated and maintained in accordance with the manufacturer's
instructions in order to continue to qualify as HEPA vacuums. This
includes following the manufacturer's filter change interval
recommendations. EPA would also like to clarify that the standard for
HEPA filters, that they be capable of capturing particles of 0.3
microns with 99.97% efficiency, means that the filters must have a
Minimum Efficiency Reporting Value (MERV) of 17 or greater (Ref. 26).
EPA recommends that renovation firms have information from the
manufacturer that the particular model of vacuum that the renovation
firm intends to use, or the vacuum's HEPA filter, has been tested in
accordance with an applicable test method, such as ASTM F1471-09,
``Standard Test Method for Air Cleaning Performance of a High-
Efficiency Particulate Air-Filter System,'' and has been determined to
meet this standard (Ref. 27).
4. On-the-job training. EPA is proposing to clarify that the RRP
rule requires certified renovators to train other renovation workers in
only the work practices required by the RRP rule that the workers will
be using in performing their assigned tasks. EPA did not intend to
require training in any other subjects, such as how to paint or how to
connect pipes. Therefore, EPA is proposing to amend 40 CFR 745.90(b)(2)
and (b)(4) to refer specifically to the work practice requirements in
40 CFR 745.85(a).
5. Grandfathering. Under the final RRP rule, individuals who
successfully completed an accredited abatement worker or supervisor
course, and individuals who successfully completed the HUD, EPA, or the
joint EPA/HUD model renovation training courses may take an accredited
refresher renovation training course in lieu of the initial renovation
training to become a certified renovator. In addition, individuals who
have successfully completed an accredited lead-based paint inspector or
risk assessor course, but are not currently certified in the
discipline, may take an accredited refresher dust sampling technician
course in lieu of the initial training to become a certified dust
sampling technician. EPA inadvertently did not address a time limit in
the RRP rule for taking the initial course in lieu of the refresher.
Many of the commenters who addressed the issue of grandfathering
contended that there should be restrictions based on how much time
elapsed since the training was taken. Further, under the lead-based
paint activities regulations at 40 CFR 745.226, EPA allowed a similar
grandfathering provision but only for a limited time. In today's
notice, EPA is proposing to set a limit on when an individual can take
advantage of the grandfathering provision under the RRP rule. Under
today's proposal, renovators and dust sampling technicians who take the
appropriate prerequisite course before July 31, 2011, may take an
accredited refresher training course in lieu of the initial training.
This time frame is consistent with some of the time limitations
suggested in comments on the RRP rule (Ref. 1 at 21724).
6. Hands-on requirements. 40 CFR 745.225 includes requirements and
procedures that training programs must follow to become accredited in
order to provide instruction in lead-based paint courses. Minimum
requirements for training curricula are found in this section, which
list course topics that must be included in the different training
courses with an indication of the topics that require hands-on
instruction. However, EPA inadvertently omitted indicating which course
topics required hands-on training for the renovator and dust sampling
technician disciplines. Under this proposed rule, EPA identifies in 40
CFR 745.227(d) which topics in the renovator and dust sampling
technician courses require hands-on training. For further
clarification, EPA is proposing to add a sentence to 40 CFR
745.227(e)(2) stating that refresher courses for all disciplines except
project designer must include a hands-on component.
7. Dust sampling technicians. Individuals who successfully complete
an accredited lead-based paint inspector or risk assessor course, but
are not currently certified in the discipline, may take an accredited
refresher dust sampling technician course in lieu of the initial
training before April 22, 2011 to become a certified dust sampling
technician. Inspectors and risk assessors who are certified by EPA or
an authorized state program are qualified to perform dust sampling as
part of lead hazard screens, risk assessments, or abatements.
Therefore, it would be unnecessary for a certified inspector or risk
assessor to seek certification as a dust sampling technician. The
regulations promulgated in the RRP rule explained who is eligible to
take the refresher dust sampling technician course in lieu of the
initial training. However, the regulations did not explicitly say that
a certified inspector or risk assessor could perform dust sampling. In
order to clarify the intent of the regulation, EPA is proposing to
amend 40 CFR 745.90(a)(3) to specifically state that a certified
inspector or risk assessor may act as a dust sampling technician.
8. Trainee photographs. Accredited training programs are required
to issue a course completion certificate for each person who passes a
training course. A variety of information is required to be on the
certificate including the name of the course, the name and address of
the student, and contact information for the training program. Course
certificates for renovators or dust sampling technicians must include a
photograph of the student. Since publishing the RRP rule, the Agency
has been asked if there is a minimum size for the photograph.
Currently, there are no size requirements or other specifications for
the photograph on a course completion certificate. Nonetheless, EPA
believes that it would be beneficial to have such requirements to
ensure that the person in the photograph is recognizable. Thus,
[[Page 25057]]
EPA is proposing to require that the photographs on course completion
certificates be an accurate and recognizable image of the trainee and
at least one square inch in size. EPA is requesting comments on whether
the image quality requirements should be more specific, e.g., more
quantitative.
9. Training requirements. As stated previously, 40 CFR 745.225
includes requirements and procedures that training programs must follow
to become accredited in order to provide instruction in renovator, dust
sampling technician, and lead-based paint activities courses. The final
RRP rule amended Section 745.225 to cover persons who provide or wish
to provide renovator or dust sampling technician training for the
purposes of the final RRP rule. There are some instances where the
regulations do not specifically mention the renovator or dust sampling
technician courses even though the regulations apply to those courses.
For example, 40 CFR 745.225(c)(14) explains the requirements which a
training provider must follow when submitting notification to EPA after
the completion of a training. However, the conforming changes, i.e., to
replace ``lead-based paint activities courses'' with ``renovator, dust
sampling technician, and lead-based paint activities courses,'' were
not made to every subparagraph even though all the requirements of that
section apply to those courses. Consequently, EPA is proposing to
clarify that the requirements in 40 CFR 745.225 apply to renovator and
dust sampling technician courses in addition to lead-based paint
activities courses. These changes do not alter the requirements but
merely clarify them.
IV. References
As indicated under ADDRESSES, a docket has been established for
this rulemaking under docket ID number EPA-HQ-OPPT-2005-0049. The
following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical contact listed under FOR FURTHER INFORMATION CONTACT.
1. U.S. Environmental Protection Agency (EPA). Lead; Renovation,
Repair, and Painting Program; Final Rule. Federal Register (73 FR
21692, April 22, 2008) (FRL-8355-7).
2. EPA. Air Quality Criteria for Lead (October 2006).
3. EPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase III, Wisconsin Childhood Blood-Lead Study (EPA
747-R-99-002, March 1999).
4. U.S. Department of Health and Human Services (HHS), U.S. Public
Health Service (PHS), Centers for Disease Control and Prevention
(CDC). Children with Elevated Blood Lead Levels Attributed to Home
Renovation and Remodeling Activities--New York, 1993-1994. Morbidity
and Mortality Weekly Report (45(51); 1120-1123, January 3, 1997).
5. HHS, PHS, CDC. Children with Elevated Blood Lead Levels Related
to Home Renovation, Repair, and Painting Activities--New York State,
2006-2007. Morbidity and Mortality Weekly Report (58(03); 55-58,
January 30, 2009).
6. Reissman, Dori B., Thomas D. Matte, Karen L. Gurnite, Rachel B.
Kaufmann, and Jessica Leighton. ``Is Home Renovation or Repair a
Risk Factor for Exposure to Lead Among Children Residing in New York
City?'' Journal of Urban Health: Bulletin of the New York Academy of
Medicine. Vol. 79, No. 4, 502-511, December 2005.
7. Jones, Robert L., David M. Homa, Pamela A. Meyer, Debra J. Brody,
Kathleen L. Caldwell, James L. Pirkle, and Mary Jean Brown. ``Trends
in Blood Lead Levels and Blood Lead Testing Among U.S. Children Aged
1 to 5 Years, 1988-2004.'' Pediatrics: Official Journal of the
American Academy of Pediatrics. Vol. 123, No. 3, pp. e376-e385,
March 2009.
8. EPA. Lead; Requirements for Lead-based Paint Activities; Final
Rule. Federal Register (61 FR 45778), August 29, 1996).
9. EPA. Lead; Identification of Dangerous Levels of Lead; Final
Rule. Federal Register (66 FR 1206, January 5, 2001).
10. EPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase I, Environmental Field Sampling Study (EPA 747-R-
96-007, May 1997).
11. EPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase II, Worker Characterization and Blood-Lead Study
(EPA 747-R-96-006, May 1997).
12. EPA. Exposure Associated With Renovation and Remodeling
Activities: Phase IV, Worker Characterization and Blood-Lead Study
of R&R Workers Who Specialize in Renovation of Old or Historic Homes
(EPA 747-R-99-001, March 1999).
13. EPA. Lead; Renovation, Repair, and Painting Program; Proposed
Rule. Federal Register (71 FR 1588, January 10, 2006) (FRL-8355-7).
14. EPA. Characterization of Dust Lead Levels After Renovation,
Repair, And Painting Activities. (November 13, 2007).
15. U.S. Department of Housing and Urban Development (HUD).
Guidelines for the Evaluation and Control of Lead-Based Paint
Hazards in Housing (June 1995).
16. EPA. Electrostatic Cloth and Wet Cloth Field Study in
Residential Housing (September 2005).
17. Rx Solutions International/BTS Laboratories Inc. Comment on
EPA's Proposed Renovation, Remodeling, and Painting Program. EPA-HQ-
OPPT-2005-0049-0483. May 22, 2006.
18. HUD. Evaluation of the HUD Lead-Based Paint Hazard Control Grant
Program: Final Report. May 1, 2004. http://www.hud.gov/offices/lead/library/misc/NatEval.pdf.
19. EPA. Residential Sampling for Lead: Protocols for Dust and Soil
Sampling, March 1995 (EPA 747-R-95-001).
20. ASTM International. Standard Practice for Clearance Examinations
Following Lead Hazard Reduction Activities in Single-Family
Dwellings and Child-Occupied Facilities (E 2271-05a).
21. EPA and HUD. Lead; Requirements for Disclosure of Information
Concerning Lead-Based Paint in Housing; Final Rule. Federal Register
(61 FR 9064, March 6, 1996).
22. EPA. National Lead Laboratory Accreditation Program (NLLAP);
Notice of Availability of Revisions to the NLLAP; Notice of
Availability (73 FR 3967 January 23, 2008).
23. EPA. Reviewed Studies Pertaining to HEPA Shroud Effectiveness.
2009.
24. Battelle Memorial Institute. Encapsulation Treatment of Dust
Study Floors. January 2010.
25. U.S. Department of Labor, Occupational Safety and Health
Administration (OSHA). Technical Manual TED 01-00-015 [TED 1-0.15A].
Revised June 24, 2008.
26. American Society of Heating, Refrigerating and Air-Conditioning
Engineers (ASHRAE). Standard 52.2-2007--Method of Testing General
Ventilation Air-Cleaning Devices for Removal Efficiency by Particle
Size (ANSI/ASHRAE Approved) 2007.
27. ASTM International. Standard Test Method for Air Cleaning
Performance of a High-Efficiency Particulate Air-Filter System
(F1471-09).
28. EPA. Office of Pollution Prevention and Toxics (OPPT). Economic
Analysis of the Proposed Dust Testing and Clearance Amendments to
the TSCA Lead Renovation, Repair, and Painting Program for Target
Housing and Child-Occupied Facilities. April 2010.
29. EPA. Proposed Clearance Rule ICR Addendum for the rulemaking
entitled Lead; Clearance and Clearance Testing Requirements for the
Renovation, Repair, and Painting Program; Proposed Rule. April 2010.
30. EPA. Initial Regulatory Flexibility Analysis for the Clearance
and Clearance Testing Requirements for the Lead Renovation, Repair,
and Painting Program; Proposed Rule. April 2010.
31. EPA. Report of the Small Business Advocacy Review Panel on the
Lead-based Paint Certification and Training; Renovation and
Remodeling Requirements. March 3, 2000.
32. EPA. Unfunded Mandates Reform Act Statement; Lead; Clearance and
Clearance Testing Requirements for the Renovation, Repair, and
Painting Program; Proposed Rule. April 2010.
[[Page 25058]]
33. ASTM International. Standard Practice for Collection of Settled
Dust Samples Using Wipe Sampling Methods for Subsequent Lead
Determination (E1728-03).
34. ASTM International. Standard Specification for Wipe Sampling
Materials for Lead in Surface Dust (E1792-03).
35. ASTM International. Standard Practice for Record Keeping and
Record Preservation for Lead Hazard Activities (E2239-04).
V. Statutory and Executive Order Reviews
EPA has prepared an analysis of the potential costs and benefits
associated with this rulemaking. This analysis is contained in the
``Economic Analysis of the Proposed Dust Testing and Clearance
Amendments to the TSCA Lead Renovation, Repair, and Painting Program
for Target Housing and Child-Occupied Facilities'' (Economic Analysis,
Ref. 26), which is available in the docket for this action and is
briefly summarized here, and in more detail later in this Unit.
------------------------------------------------------------------------
Category Description
------------------------------------------------------------------------
Benefits...................... Benefits are not monetized or
quantified, although there may be
benefits through:
(1) Information on lead-dust levels
remaining in the renovation work area,
including lead-dust that may have been
generated during the renovation
activity.
(2) Changed behavior on the part of
renovation firms, owners, and occupants
which may prevent adverse health
effects attributable to lead exposure
from renovations in pre-1978 buildings.
EPA has estimated the size of the
population affected by this rule, but
does not have sufficient information to
estimate the value of information to
consumers about lead-dust risks, or the
decrease in exposure to lead-dust from
renovations in target housing and child-
occupied facilities.
Costs......................... $272 million annualized (3% discount
rate).
$293 million annualized (7% discount
rate).
------------------------------------------------------------------------
A. Executive Order 12866
Under section 3(f)(1) of Executive Order 12866, entitled
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993), this
action is an ``economically significant regulatory action'' because EPA
estimates that it will have an annual effect on the economy of $100
million or more. Accordingly, this action was submitted to the Office
of Management and Budget (OMB) for review under Executive Order 12866
and any changes made based on OMB recommendations have been documented
in the public docket for this rulemaking as required by section
6(a)(3)(E) of the Executive Order.
The following is a summary of the Economic Analysis (Ref. 28),
which is available in the docket for this action.
1. Options evaluated. The Economic Analysis analyzes several
options. In addition to the proposed rule option, the Economic Analysis
includes options with lower and higher thresholds (in terms of the
amount of lead-based paint disturbed) for renovations which require
dust wipe testing or clearance. In the proposed rule, the renovation
events for which clearance is required (use of high speed machines to
remove paint, and the demolition or destructive removal of plaster)
have a threshold of 6 ft\2\ of lead-based paint disturbed. The
thresholds in the proposed rule for the renovation events that require
the use of dust wipe testing without necessarily achieving clearance
vary from 6 to 60 ft\2\, depending on the type of renovation (use of a
heat gun; scraping painted surfaces; removing trim, molding, cabinets,
or other fixtures; etc.). In the low threshold option, the thresholds
are 6 ft\2\ for all of the affected renovations. In the high threshold
option, the thresholds for the events where clearance is required are
60 ft\2\, while the thresholds for the renovations events that require
the use of dust wipe testing without necessarily achieving clearance
vary from 60 to 120 ft\2\, depending on the type of renovation. The
Economic Analysis also includes three options that use the same
threshold sizes as the proposed rule but apply different requirements
to them. There is an option that requires dust wipe testing for all of
the renovation events covered by the proposed rule without requiring
clearance for any of them, as well as an option that requires clearance
for all of these events. Finally, there is an option that applies to
the same dust wipe testing and clearance events and thresholds as the
proposed rule but that requires renovation firms to have the dust wipe
sampling performed by an independent third party.
2. Number of facilities and renovations. There are approximately
18.7 million renovation events per year covered by EPA's renovation,
repair, and painting program in the 78 million target housing units and
child-occupied facilities. The number of renovations affected by this
proposed rule depends on the option selected. The low threshold option
affects an estimated 1.8 million dust wipe testing only events and
69,000 clearance events per year. The proposed rule is estimated to
affect 1.5 million dust wipe testing only events and 69,000 clearance
events a year. The high threshold option affects an estimated 1.2
million dust wipe testing only events and 58,000 clearance events per
year. The remaining three options (only dust wipe testing is required
for all renovations covered by the proposed rule, clearance is required
for all renovations covered by the proposed rule, and third-party dust
wipe sampling is required for all renovations covered by the proposed
rule) all affect an estimated 1.6 million events per year.
3. Benefits. The benefits of the rule result from the prevention of
adverse health effects attributable to lead exposure from renovations
in pre-1978 buildings. These health effects include impaired cognitive
function in children and several illnesses in children and adults, such
as increased adverse cardiovascular outcomes (including increased blood
pressure, increased incidence of hypertension, cardiovascular morbidity
and mortality) and decreased kidney function.
The proposed rule will generate benefits by providing greater
assurance that dust-lead hazards created by renovations are adequately
cleaned up, primarily by requiring renovation firms to provide building
owners and occupants with information on dust lead levels remaining in
the work area after many renovation projects, but also by requiring
renovation firms to demonstrate that they have achieved regulatory
clearance levels after some of the dustiest renovations. These changes
will protect individuals residing in target housing or attending a
child-occupied facility where these renovation events are performed. It
will also protect individuals who move into target housing after such a
renovation is performed, or who visit a friend, relative, or
caregiver's house where such a renovation is performed.
[[Page 25059]]
EPA has estimated the number of individuals residing in target
housing units or attending COFs where renovation events are performed.
The proposed rule will benefit 809,000 children under the age of 6 and
7,547,000 individuals age 6 and older (including 96,000 pregnant women)
per year by minimizing their exposure to lead dust generated by
renovations. The low threshold option would protect 882,000 children
under the age of 6 and 8,193,000 individuals age 6 and older, including
105,000 pregnant women. The high threshold option protects 706,000
children and 6,590,000 individuals age 6 and older, including 83,000
pregnant women. The remaining three alternative options (dust wipe
testing only, clearance only, and third party dust wipe testing) would
affect the same number of individuals as the proposed rule, although
the amount of protection provided to some of those individuals may
differ from the proposed rule.
4. Costs. Firms performing the renovation events covered by the
proposed rule will incur costs associated with having a third party
perform dust wipe sampling and testing (or with having a firm staff
member trained as a dust sampling technician so that they can take
their own dust wipe samples and send them to a lab). For jobs subject
to the clearance requirements in the proposed rule, firms may incur re-
cleaning costs if dust wipe testing after clean-up yields results that
exceed the clearance standards. Firms will also incur small costs to
provide the dust wipe testing results to owners and occupants of the
target housing units and child-occupied facilities where the
renovations are performed.
EPA's updated estimate is that the average cost for a renovation
firm to hire a third-party lead evaluation firm to take four dust
samples, send them to a lab for analysis, and provide a short report is
slightly over $260. However, many renovation firms may find it more
cost effective to have a staff member trained and certified as a dust
sampling technician rather than hiring a third party to take the
samples.
Renovation firms would incur the same dust wipe testing costs for
renovations where achieving clearance is required. If dust levels
exceed the clearance standards after cleaning verification, the
renovation firm will incur additional costs for re-cleaning the work
area up to two times. These re-cleaning costs vary from job to job,
depending on the size of the space that must be cleaned.
Annualized costs for the rule options are calculated using both a
3% and a 7% discount rate. Total annualized costs for the proposed rule
are $272 million per year using a 3% discount rate and $293 million per
year using a 7% discount rate. Under the low threshold option, costs
are $312 million per year with a 3% discount rate and $336 million per
year with a 7% rate. Under the high threshold option, costs are $224
million per year with a 3% discount rate and $242 million per year with
a 7% discount rate. The option that only requires dust wipe testing
costs $268 million per year with a 3% discount rate and $288 million
per year with a 7% discount rate. The option requiring clearance for
all renovations covered by the proposed rule costs $367 million with a
3% discount rate and $394 million with a 7% discount rate. The option
requiring the use of a third party for dust wipe sampling costs $431
million per year with a 3% discount rate and $459 million per year with
a 7% discount rate.
B. Paperwork Reduction Act
The information collection requirements contained in this proposed
rule have been submitted for approval to the Office of Management and
Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
EPA has prepared an Information Collection Request (ICR) document to
amend an existing approved ICR. The ICR document, referred to as the
Proposed Clearance Rule ICR Addendum and identified under EPA ICR No.
2381.01 and OMB Control Number 2070-NEW, has been placed in the docket
for this proposed rule (Ref. 29). The information collection
requirements are not enforceable until OMB approves them.
Burden under the PRA means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, disclose,
or provide information to or for a Federal agency. This includes the
time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
The information collection activities contained in this proposed
rule are designed to assist the Agency in meeting the core objectives
of TSCA section 402. EPA has carefully tailored the recordkeeping
requirements so they will permit the Agency to achieve statutory
objectives without imposing an undue burden on those firms that choose
to be involved in renovation, repair, and painting activities.
This proposed rule requires renovation firms to provide owners and
occupants with a report including the results of the dust wipe testing.
Although firms have the option of choosing to engage in the covered
activities, once a firm chooses to do so, the information collection
activities become mandatory for that firm. The rule may result in an
increase in the number of individuals becoming trained as dust sampling
technicians, resulting in additional paperwork requirements for
training providers.
The ICR document provides a detailed presentation of the estimated
paperwork burden and costs resulting from this proposed rule. The
burden to firms engaged in renovation, repair, and painting activities
and to training providers are summarized in this unit.
The requirement for renovation firms to provide a dust wipe testing
report for the renovations covered by the rule will impact about
224,000 firms. The additional burden for these firms arising from the
proposed rule is estimated to average nearly 13 hours per firm
annually, resulting in a total burden of approximately 2,867,000 hours
per year for these firms.
Many certified renovators may become trained and certified as dust
sampling technicians so that they can take their own dust wipe samples
and send them to a lab for analysis. This will increase the paperwork
burden for training providers, since they must submit records to EPA
(or an authorizing State, Tribe, or Territory) pertaining to each
student attending a training course to become a dust sampling
technician. Around 170 training providers are estimated to incur an
average burden of about 82 hours, resulting in an increase of
approximately 14,000 hours per year in training provider burden as a
result of the proposed rule.
Total respondent burden for renovation firms and training providers
is estimated to average approximately 2.9 million hours per year during
the 3 year period covered by the ICR.
The proposed rule may also result in additional government costs to
administer the program (to process the additional training provider
notifications and to administer and enforce the program). States,
Tribes, and Territories are allowed, but are under no obligation, to
apply for and receive authorization to administer these requirements.
EPA will directly
[[Page 25060]]
administer programs for States, Tribes, and Territories that do not
become authorized. Because the number of States, Tribes, and
Territories that will become authorized is not known, administrative
costs are estimated assuming that EPA will administer the program
everywhere. To the extent that other government entities become
authorized, EPA's administrative costs will be lower.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations codified in chapter 40 of the CFR, after appearing in the
preamble of the final rule, are listed in 40 CFR part 9, are displayed
either by publication in the Federal Register or by other appropriate
means, such as on the related collection instrument or form, if
applicable. When the ICR is approved by OMB, the Agency will publish a
technical amendment to 40 CFR part 9 in the Federal Register to display
the OMB control number for the approved information collection
requirements contained in the final rule.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a docket for this
proposed rule, which includes this ICR, under docket ID number EPA-HQ-
OPPT-2005-0049. Submit any comments related to the ICR to EPA and OMB.
See ADDRESSES for where to submit comments to EPA. Send comments to OMB
at the Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th St., NW., Washington, DC 20503,
Attention: Desk Office for EPA. Since OMB is required to make a
decision concerning the ICR between 30 and 60 days after May 6, 2010, a
comment to OMB is best assured of having its full effect if OMB
receives it by June 7, 2010. The final rule will respond to any OMB or
public comments on the information collection requirements contained in
this proposed rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on
small entities, small entity is defined in accordance with section 601
of the RFA as:
(1) A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201.
(2) A small governmental jurisdiction that is a government of a
city, county, town, school district, or special district with a
population of less than 50,000.
(3) A small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.
As required by section 603 of the RFA, EPA has prepared an initial
regulatory flexibility analysis (IRFA) for this proposed rule. The IRFA
is available for review in the docket and is summarized in this unit
(Ref. 30).
1. Reasons why action by the Agency is being considered. The Agency
believes it is in the best interest of the public to require dust wipe
testing for many types of renovations (and to require renovation firms
to achieve clearance for certain types of renovations). EPA expects two
kinds of benefits to flow from the proposed dust wipe testing
requirements. The first are the direct benefits of the information to
the owners and occupants, the pure value of the information on dust
lead levels remaining in the renovation work area. For building owners
and occupants, this information is likely to improve their
understanding and awareness of dust-lead hazards. It will also greatly
improve their ability to make further risk management decisions,
especially in light of mounting evidence suggesting that the current
dust-lead hazard standards are too high. This information is
particularly critical where dust lead levels approach or exceed the
regulatory hazard standards. The other benefits that EPA expects to
flow from a dust wipe testing requirement are the benefits that may
result from changed behavior on the part of renovation firms. EPA
believes that dust wipe testing results will also provide valuable
feedback to renovation firms on how well they are cleaning up after
renovations. It is likely that the specific dust lead levels contained
in dust wipe testing results will increase renovation firm cleaning
efficiency. Renovation firms will be incentivized to lower the dust
lead levels remaining after renovation jobs, even if the levels are at
or near the regulatory standards. For two types of renovations that can
create large amounts of difficult-to-clean dust, EPA remains concerned
about the possibility that dust lead levels remaining, even after
cleaning verification, may substantially exceed the clearance
standards. If renovation firms choose to utilize these methods, the
firms would be required to demonstrate, through dust wipe testing, that
they have met the clearance standards before the renovation will be
considered completed.
2. Legal basis and objectives for this proposed rule. These work
practice requirements for dust wipe testing and clearance, training,
certification and accreditation requirements, and State, Territorial
and Tribal authorization provisions are being promulgated under the
authority of TSCA sections 402(c)(3), 404, and 407, 15 U.S.C.
2682(c)(3), 2684, and 2687. A central objective of this proposed rule
is to provide greater assurance that dust-lead hazards created by
renovations are adequately cleaned up, primarily by requiring
renovation firms to provide building owners and occupants with
information on dust lead levels remaining in the work area after many
renovation projects, but also by requiring renovation firms to
demonstrate that they have achieved regulatory clearance levels after
some of the dustiest renovations.
3. Potentially affected small entities. Small entities include
small businesses, small organizations, and small governmental
jurisdictions. The small entities that are potentially directly
regulated by this proposed rule include: Small businesses (such as
renovation contractors and property owners and managers); small
nonprofits (certain childcare centers and private schools); and small
governments (school districts which operate pre-schools, kindergartens
and certain child care centers).
In determining the number of small businesses affected by the
proposed rule, the Agency applied U.S. Economic Census data to the
SBA's definition of small business. However, applying the U.S. Economic
Census data requires either under- or overestimating the number of
small businesses affected by the proposed rule. For example, for many
construction establishments, the SBA defines small businesses as having
revenues of less than $14 million. With respect to those
establishments, the U.S. Economic Census data groups all establishments
with revenues of $10 million or more into one revenue bracket. On the
one hand, using data for the entire industry would overestimate the
number of small businesses affected by the proposed rule and would
defeat the purpose of estimating impacts on small business. It would
also
[[Page 25061]]
underestimate the proposed rule's impact on small businesses because
the impacts would be calculated using the revenues of large businesses
in addition to small businesses. On the other hand, applying the
closest, albeit lower, revenue bracket would underestimate the number
of small businesses affected by the proposed rule while at the same
time overestimating the impacts. Similar issues arose in estimating the
fraction of property owners and managers that are small businesses. EPA
has concluded that a substantial number of small businesses will be
affected by the rule. Consequently, EPA has chosen to be more
conservative in estimating the cost impacts of the rule by using the
closest, albeit lower, revenue bracket for which U.S. Economic Census
data is available. For other sectors (nonprofits operating childcare
centers or private schools), EPA assumed that all affected firms are
small, which may overestimate the number of small entities affected by
the proposed rule.
The vast majority of entities in the industries affected by this
proposed rule are small. Using EPA's estimates, these revisions to the
renovation, repair, and painting program will affect over 203,000 small
entities per year.
4. Potential economic impacts on small entities. EPA evaluated two
factors in its analysis of the proposed rule's requirements on small
entities, the number of firms that would experience the impact, and the
size of the impact. Average annual compliance costs as a percentage of
average annual revenues were used to assess the potential average
impacts of the rule on small businesses and small governments. This
ratio is a good measure of entities' ability to afford the costs
attributable to a regulatory requirement, because comparing compliance
costs to revenues provides a reasonable indication of the magnitude of
the regulatory burden relative to a commonly available measure of
economic activity. Where regulatory costs represent a small fraction of
a typical entity's revenues, the financial impacts of the regulation on
such entities may be considered as not significant. For non-profit
organizations, impacts were measured by comparing rule costs to annual
expenditures. When expenditure data were not available, however,
revenue information was used as a proxy for expenditures. It is
appropriate to calculate the impact ratios using annualized costs,
because these costs are more representative of the continuing costs
entities face to comply with the proposed rule.
The cost of the proposed rule to a typical small business averages
approximately $1,200 per year. This represents 0.4% to 1.1% of revenues
depending on the industry sector. Overall, an estimated 203,000 small
renovation contractors would be affected by the proposed rule, with
average impacts of 0.5% of revenues. Approximately 100 small
governments per year would incur a cost of about $800, resulting in an
average impact of less than 0.01%. And around 200 small non-profits per
year would incur a cost of about $600, resulting in an impact of
approximately 0.1%.
Some of the small renovation contractors subject to the rule have
employees while others are non-employers. The non-employers typically
perform fewer jobs than firms with employees, and thus have lower work
practice compliance costs. However, they also have lower average
revenues than entities with employees, so their impacts (measured as
costs divided by revenues) can be higher. Impact estimates for non-
employers should be interpreted with caution, as some non-employers may
have significant issues related to understatement of income, which
would tend to exaggerate the average impact ratio for this class of
small entities. There are 151,000 non-employer renovation contractors
estimated to be affected by the proposed rule. The average cost to
these contractors is estimated to be approximately $700 apiece. This
represents 0.7% to 2.6% of reported revenues, depending on the industry
sector.
5. Relevant Federal rules. The requirements in this proposed rule
will fit within an existing framework of other Federal regulations that
address lead-based paint. Notably, the Pre-Renovation Education Rule,
40 CFR 745.85, requires renovation firms to distribute a lead hazard
information pamphlet to owners and occupants before conducting a
renovation in target housing and child-occupied facilities. This
proposed rule's requirement that renovation firms provide owners and
occupants with dust wipe testing and clearance reports complements the
existing pre-renovation education requirements. Another such Federal
regulation is HUD's Lead Safe Housing Rule, 24 CFR part 35, subparts B-
R, which requires firms conducting interim controls of lead-based paint
hazards (a category which includes RRP work) to provide owners and
occupants with dust wipe testing and clearance reports.
6. Skills needed for compliance. Under the lead renovation, repair,
and painting program requirements, renovators and dust sampling
technicians working in target housing and child-occupied facilities
have to take courses to learn the proper techniques for accomplishing
the tasks (including dust sampling, preparing a report with the
results, and performing specialized cleaning) they will perform during
renovations. These courses are intended to provide them with the
information they would need to comply with the rule based on the skills
they already have. Other renovation workers that have not been formally
trained and certified must receive training on the work practices they
will be using in performing their assigned tasks from a certified
renovator, and a certified renovator must regularly direct work being
performed by other renovation workers to ensure that the work practices
are being followed, including maintaining the integrity of the
containment barriers and ensuring that dust or debris does not spread
beyond the work area.
7. Small Business Advocacy Review Panel. EPA has been concerned
with potential small entity impacts since the earliest stages of
planning for the RRP program under section 402(c)(3) of TSCA. EPA
conducted outreach to small entities and, pursuant to section 609 of
the RFA, convened a Small Business Advocacy Review Panel (the Panel) in
1999 to obtain advice and recommendations of representatives of the
regulated small entities. EPA identified eight key elements of a
potential renovation and remodeling regulation for the Panel's
consideration. These elements were: applicability and scope, firm
certification, individual training and certification, accreditation of
training courses, work practice standards, prohibited practices,
exterior clearance, and interior clearance.
Details on the Panel and its recommendations are provided in the
Panel Report (Ref. 31). Information on how EPA implemented the Panel's
recommendations in the development of the RRP program is available in
Unit VIII.C. of the preamble to the 2006 proposed rule (Ref. 13) and in
Unit V.C. of the preamble to the 2008 final rule (Ref. 1). EPA believes
that the conclusions it made in 2008 regarding these recommendations
are applicable to this proposal. Indeed, EPA has considered input from
the 1999 Panel process in this rule precisely because it is so closely
related that EPA considers it an extension of the 2008 RRP rulemaking.
(See 5 U.S.C. 605(c))
8. Alternatives considered. EPA considered alternatives to this
proposed rule that could affect the economic impacts of the proposed
rule on small entities. These alternatives would have applied to both
small and large entities,
[[Page 25062]]
but given the number of small entities in the affected industries,
these alternatives would primarily affect small entities. For the
reasons described in this unit, EPA believes these alternatives are not
consistent with the objectives of the rule.
i. Higher thresholds. EPA considered an option under which the size
thresholds for determining whether renovation jobs would need to
perform dust wipe testing or achieve clearance would be higher than
those in the proposed rule. By reducing the number of renovations where
dust wipe testing or clearance are required, this option would reduce
the costs of the rule and thus the estimated small entity impacts.
However, higher thresholds would result in more jobs where occupants do
not have information on the dust lead levels they are exposed to, or
where they are exposed to dust lead levels above the hazard standard.
EPA believes that the proposed rule provides the best balance between
the benefits of the rule (the value of information from dust wipe
testing and the benefits of reduced exposure to lead dust from
achieving clearance) compared to the costs (and resulting small
business impacts) of dust wipe testing, re-cleaning, and the other
requirements of the proposed rule. Therefore, EPA believes that an
option with higher thresholds is not consistent with the stated
objectives of the proposed rule.
ii. Dust testing only. EPA considered an option that would require
dust wipe testing but not clearance for any of these renovation events.
EPA remains concerned that renovations that disturb paint using
machines designed to remove lead-based paint through high speed
operation (such as power sanders or abrasive blasting) can create large
amounts of difficult-to-clean dust, creating the possibility that dust
lead levels may substantially exceed the clearance standards even after
cleaning verification. The same is true for the demolition or removal
through destructive means of plaster and lath walls, ceilings or other
building components with lead-based paint. Therefore, EPA believes that
this option is not consistent with the stated objectives of the
proposed rule.
As required by section 212 of Small Business Regulatory Enforcement
Fairness Act (SBREFA), Public Law 104-121, EPA issued a Small Entity
Compliance Guide (the Guide) in December 2008 to help small entities
comply with the RRP rule. The Guide is available at: http://www.epa.gov/lead/pubs/sbcomplianceguide.pdf or from the National Lead
Information Center by calling 1(800) 424-LEAD [5323]. EPA will revise
the Guide, as necessary, to reflect this rulemaking activity.
EPA invites comments on all aspects of the proposal and its impact
on small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. This rule
contains a Federal mandate that may result in expenditures of $100
million or more by the private sector in any 1 year, but it will not
result in such expenditures by State, local, and Tribal governments in
the aggregate. Accordingly, EPA has prepared under section 202 of the
UMRA a written statement (Ref. 32) which is summarized below.
Consistent with section 205 of the UMRA, EPA has identified and
considered a reasonable number of regulatory alternatives, also
summarized below.
1. Authorizing legislation. This proposed rule is issued under the
authority of TSCA sections 402(c)(3), 404, and 407 (15 U.S.C.
2682(c)(3), 2684, and 2687).
2. Cost-benefit analysis. EPA has prepared an analysis of the costs
and benefits associated with this proposed rule, a copy of which is
available in the docket for this proposed rule (Ref. 28). The Economic
Analysis presents the costs of this proposed rule as well as various
regulatory options and is summarized in Unit V.A. EPA has estimated the
total annualized costs of this proposed rule are $272 million per year
using a 3% discount rate and $293 million per year using a 7% discount
rate.
The benefits of the proposed rule result from the prevention of
adverse health effects attributable to lead exposure from renovations
in pre-1978 buildings. These health effects include impaired cognitive
function in children and several illnesses in children and adults, such
as increased adverse cardiovascular outcomes (including increased blood
pressure, increased incidence of hypertension, cardiovascular morbidity
and mortality) and decreased kidney function.
3. State, local, and Tribal government input. EPA has sought input
from State, local and Tribal government representatives throughout the
development of the renovation, repair, and painting program. EPA's
experience in administering the existing lead-based paint activities
program under TSCA section 402(a) suggests that these governments will
play a critical role in the successful implementation of a national
program to reduce exposures to lead-based paint hazards associated with
renovation, repair, and painting activities. Consequently, as discussed
in Unit III.C.2. of the preamble to the 2006 proposed rule (Ref. 13),
the Agency has met with State, local, and Tribal government officials
on numerous occasions to discuss renovation issues.
4. Least burdensome option. EPA has considered a wide variety of
options for addressing the risks presented by renovation activities
where lead-based paint is present. As part of the development of the
renovation, repair, and painting program, EPA considered different
options for the scope of the proposed rule, various combinations of
training and certification requirements for individuals who perform
renovations, various combinations of work practice requirements, and
various methods for ensuring that no lead-based paint hazards are left
behind by persons performing renovations. The Economic Analysis for
this proposed rule analyzed several additional options for the scope of
the work practices required, in terms of the size threshold and whether
dust wipe testing or clearance is required. As described in Unit V.C.,
EPA has preliminarily concluded that the options for reducing the scope
would result in an unacceptable number of jobs where occupants do not
have information on the dust lead levels they are exposed to, or where
they are exposed to dust lead levels above the hazard standard.
Currently, EPA believes that the preferred option is the least
burdensome option available that achieves a central objective of this
proposed rule, which is to provide greater assurance that dust-lead
hazards created by renovations are adequately cleaned up, primarily by
requiring renovation firms to provide building owners and occupants
with information on dust lead levels remaining in the work area after
many renovation projects, but also by requiring renovation firms to
demonstrate that they have achieved regulatory clearance levels after
some of the dustiest renovations.
This rule is not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. Based on the definition of
``small government jurisdiction'' in RFA section 601, 5 U.S.C. 601, no
State governments can be considered small. Small Territorial or Tribal
governments may apply for authorization to administer and enforce this
program, which would
[[Page 25063]]
entail costs, but these small jurisdictions are under no obligation to
do so. Small governments operate schools that are child-occupied
facilities. If these governments perform renovations in these
facilities, they may incur additional costs to perform dust wipe
testing or achieve clearance, and to provide residents, parents or
guardians with copies of the report documenting the dust wipe testing
results. EPA generally measures a significant impact under UMRA as
being expenditures, in the aggregate, of more than 1% of small
government revenues in any 1 year. As explained in Unit V.C.4., the
proposed rule is expected to result in small government impacts well
under 1% of revenues. So EPA has determined that the rule does not
significantly affect small governments. Nor does the rule uniquely
affect small governments, as the proposed rule is not targeted at small
governments, does not primarily affect small governments, and does not
impose a different burden on small governments than on other entities
that operate child-occupied facilities.
E. Executive Order 13132
Pursuant to Executive Order 13132, entitled ``Federalism'' (64 FR
43255, August 10, 1999), EPA has determined that this proposed rule
does not have ``federalism implications,'' because it will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this proposed rule. States are able to apply for, and
receive authorization to administer the lead renovation, repair, and
painting program requirements, but are under no obligation to do so. In
the absence of a State authorization, EPA will administer the
requirements. Nevertheless, in the spirit of the objectives of this
Executive Order, and consistent with EPA policy to promote
communications between the Agency and State and local governments, EPA
consulted with representatives of State and local governments in
developing the renovation, repair, and painting program. These
consultations were described in the preamble to the 2006 Proposal (Ref.
13).
F. Executive Order 13175
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). EPA has
determined that this proposed rule does not have Tribal implications
because it will not have substantial direct effects on Tribal
governments, on the relationship between the Federal government and the
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in the
Order. Tribes are able to apply for and receive authorization to
administer the lead renovation, repair, and painting program on Tribal
lands, but Tribes are under no obligation to do so. In the absence of a
Tribal authorization, EPA will administer these requirements. While
Tribes may operate public housing or child-occupied facilities covered
by the rule such as kindergartens, pre-kindergartens, and daycare
facilities, EPA has determined that this rule would not have
substantial direct effects on the Tribal governments that operate these
facilities.
Thus, Executive Order 13175 does not apply to this proposed rule.
Although Executive Order 13175 does not apply, EPA consulted with
Tribal officials and others by discussing potential renovation
regulatory options for the renovation, repair, and painting program at
several national lead program meetings hosted by EPA and other
interested Federal agencies. EPA specifically solicits additional
comment on this proposed action from tribal officials.
G. Executive Order 13045
This action is subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is an ``economically
significant regulatory action'' as defined by Executive Order 12866,
and because the environmental health or safety risk addressed by this
action may have a disproportionate effect on children.
A central purpose of this proposed rule is to provide greater
assurance that dust-lead hazards created by renovations are adequately
cleaned up, primarily by requiring renovation firms to provide building
owners and occupants with information on dust lead levels remaining in
the work area after many renovation projects, but also by requiring
renovation firms to demonstrate that they have achieved regulatory
clearance levels after some of the dustiest renovations. In the absence
of this regulation, owners and occupants would not have information on
the dust lead levels remaining following these renovation events, and
dust lead levels may substantially exceed the clearance standards for
certain renovations that can create large amounts of difficult-to-clean
dust.
The proposed rule will protect children who reside in housing units
or attend child-occupied facilities where such renovations occur; who
visit a friend, relative, or caregiver's house where such renovations
are performed; or who move into such housing when their family
purchases it after such a renovation has been performed.
H. Executive Order 13211
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, entitled ``Actions concerning
Regulations that Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001) because it is not likely to have any
adverse effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note),
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking involves technical standards. EPA proposes
to use the government-unique technical standards described in Unit III
of this preamble. EPA has identified several potentially-applicable
voluntary consensus standards developed by ASTM International (formerly
the American Society for Testing and Materials) that address dust wipe
sampling, recordkeeping, and clearance procedures. These standards are:
``Standard Practice for Collection of Settled Dust Samples Using Wipe
Sampling Methods for Subsequent Lead Determination,'' ``Standard
Specification for Wipe Sampling Materials for Lead in Surface Dust,''
``Standard Practice for Record Keeping and Record Preservation for Lead
Hazard Activities,'' and ``Standard Practice for Clearance Examinations
Following Lead Hazard Reduction Activities in Single-Family Dwellings
and Child-Occupied Facilities'' (Refs. 33, 34, 35, 20). Each of
[[Page 25064]]
these ASTM documents represents state-of-the-art knowledge regarding
the performance of these particular aspects of lead-based paint hazard
evaluation and control practices and EPA recommends the use of these
documents where appropriate. EPA believes that the proposed amendments
to the RRP rule as well as EPA's model training courses for lead-based
paint inspectors, risk assessors, and dust sampling technicians are
consistent with these ASTM standards. However, because each of these
documents is extremely detailed and encompasses many circumstances
beyond the scope of this rulemaking, EPA determined that it would be
impractical to incorporate these voluntary consensus standards into the
rule.
In addition, EPA has identified a potentially-applicable voluntary
consensus standard developed by ASTM International for evaluating the
performance of HEPA filtration systems, the ``Standard Test Method for
Air Cleaning Performance of a High-Efficiency Particulate Air-Filter
System'' (Ref. 27). EPA does recommend that renovation firms in the
market for a HEPA vacuum verify that the filter has been tested in
accordance with the ASTM standard or an equivalent test method.
However, EPA has determined that it would be impractical to incorporate
this test method into the rule.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
Executive Order 12898
Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994) establishes federal
executive policy on environmental justice. Its main provision directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. EPA has assessed the potential impact of this
proposed rule on minority and low-income populations. The results of
this assessment are presented in the Economic Analysis, which is
available in the docket for this proposed rule (Ref. 28).
List of Subjects in 40 CFR Part 745
Environmental protection, Child-occupied facility, Housing
renovation, Lead, Lead-based paint, Renovation, Reporting and
recordkeeping requirements.
Dated: April 22, 2010.
Lisa P. Jackson,
Administrator.
Therefore, it is proposed that 40 CFR chapter I be amended as
follows:
1. The authority citation for part 745 would continue to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
2. In Sec. 745.82, add a new paragraph (a)(3) to read as follows.
Sec. 745.82 Applicability.
(a) * * *
(3) Renovations in target housing or child-occupied facilities in
which a certified renovator has collected a paint chip sample from each
painted component affected by the renovation and a laboratory
recognized by EPA pursuant to section 405(b) of TSCA as being capable
of performing analyses for lead compounds in paint chip samples has
determined that the samples are free of paint or other surface coatings
that contain lead equal to or in excess of 1.0 mg/cm\2\ or 0.5% by
weight. If the components make up an integrated whole, such as the
individual stair treads and risers of a single staircase, the renovator
is required to test only one of the individual components, unless the
individual components appear to have been repainted or refinished
separately.
* * * * *
3. In Sec. 745.83, add the definition ``Containment'' in
alphabetical order to read as follows:
Sec. 745.83 Definitions.
* * * * *
Containment means a set of measures designed to protect residents
and the environment from leaded dust, paint chips, or other forms of
lead contamination created by renovations through the erection of
barriers and warning signs and the establishment of access control,
modifications to heating, ventilation, and air conditioning systems,
and other strategies. Vertical containment, required for some exterior
renovations, is a vertical barrier consisting of plastic sheeting over
scaffolding or a wood or metal frame, or an equivalent system.
* * * * *
4. Section 745.85 is amended as follows:
a. Revise paragraph (a)(2)(ii)(D);
b. Revise paragraph (a)(3);
c. Remove paragraph (c);
d. Redesignate paragraphs (b) and (d) as paragraphs (c) and (e)
respectively;
e. Add new paragraphs (b) and (d);
f. Revise newly-redesignated paragraph (e);
The revisions and additions read as follows:
Sec. 745.85 Work practice standards.
(a) * * *
(2) * * *
(ii) * * *
(D) If the renovation will affect surfaces within 10 feet of the
property line, the renovation firm must erect vertical containment to
ensure that dust and debris from the renovation does not contaminate
adjacent buildings or migrate to adjacent properties. Vertical
containment may also be necessary in other situations, such as in windy
conditions, in order to prevent contamination of other buildings, other
areas of the property, or adjacent buildings or properties.
(3) Prohibited and restricted practices. The work practices listed
below are prohibited or restricted during a renovation as follows:
(i) Open-flame burning or torching of painted surfaces is
prohibited.
(ii) The use of machines designed to remove paint through high
speed operation such as sanding, grinding, power planing, needle gun,
abrasive blasting, or sandblasting, is prohibited on painted surfaces
unless such machines are shrouded and equipped with a HEPA vacuum
attachment to collect dust and debris at the point of generation.
(iii) Operating a heat gun on painted surfaces is permitted only at
temperatures below 1,100 degrees Fahrenheit.
* * * * *
(b) Clearance--(1) Mandatory clearance. Clearance is required after
renovations involving the demolition, or removal through destructive
means, of more than 6 ft\2\ of plaster and lath building component, or
the disturbance
[[Page 25065]]
of paint using machines designed to remove paint through high-speed
operation, such as sanding, grinding, power planning, needle gun,
abrasive blasting or sandblasting. When clearance is required, the
following clearance procedures must be performed:
(i) A certified inspector, certified risk assessor, or certified
dust sampling technician must perform a visual inspection to determine
whether dust, debris or residue is still present in the renovation work
area. If dust, debris or residue is present, these conditions must be
removed by re-cleaning and another visual inspection must be performed.
(ii) A certified inspector, certified risk assessor, or certified
dust sampling technician must collect dust wipe samples in accordance
with EPA's ``Residential Sampling for Lead: Protocols for Dust and Soil
Sampling, EPA-747-R-95-001'' or an equivalent protocol that
incorporates adequate quality control procedures. Samples must be
collected in the following locations:
(A) If there is more than one room, hallway, or stairwell within
the work area, the following samples must be collected:
(1) One windowsill sample, one window trough sample, and one floor
sample within each room, hallway, or stairwell in the work area. If
there are more than four rooms, hallways, or stairwells within the work
area, only four rooms, hallways, or stairwells must be sampled.
(2) One floor sample adjacent to the work area, but not in an area
that has been cleaned.
(B) If the work area is a single room, hallway, stairwell, or
smaller area, the following samples must be collected:
(1) One windowsill sample, one window trough sample, and one floor
sample.
(2) One floor sample adjacent to the work area, but not in an area
that has been cleaned.
(C) No window sill or trough samples must be collected if there are
no windows in the work area.
(iii) Dust wipe samples must be analyzed by a laboratory or other
entity recognized by EPA pursuant to section 405(b) of the Toxic
Substances Control Act as being capable of performing analyses for lead
compounds in dust samples. If a fixed-site laboratory is to be used,
the dust wipe samples must be mailed or otherwise transmitted to the
laboratory within 1 business day of the date that they are collected.
(iv) A certified inspector, certified risk assessor, or certified
dust sampling technician must compare the residual lead level reported
by the EPA-recognized laboratory for each dust sample or test with the
applicable clearance level. If the residual lead level in a particular
dust sample or test equals or exceeds the applicable clearance level,
the components represented by the failed sample or test shall be re-
cleaned and re-tested. The applicable clearance levels are:
(A) 40 [mu]g/ft\2\ for floors.
(B) 250 [mu]g/ft\2\ for interior window sills.
(C) 400 [mu]g/ft\2\ for window troughs.
(v) For surfaces in poor condition that the renovation firm did not
specifically agree to refinish in the renovation contract, the
renovation firm may stop re-cleaning and re-testing after the second
failed dust wipe test on that surface.
(vi) The certified inspector, certified risk assessor, or certified
dust sampling technician performing the clearance procedures must
prepare a clearance report and provide it to the renovation firm within
3 days of the date that the final dust wipe testing results are
obtained. The report must be a single document, with attachments, and
must include the following information:
(A) Start and completion dates of the renovation.
(B) A brief written description of the renovation.
(C) The name and address of the certified firm employing the
certified inspector, certified risk assessor, or certified dust
sampling technician performing the clearance procedures.
(D) The name and signature of each certified inspector, certified
risk assessor, or certified dust sampling technician performing
clearance procedures and the date(s) that clearance procedures were
performed.
(E) The results of the visual inspection.
(F) A detailed written description of the specific sampling or
testing locations or a detailed drawing that clearly identifies the
location of each sample or test.
(G) The results for each dust wipe sample or test, whether or not
clearance was achieved, and the name of each recognized laboratory or
other entity that conducted the analyses.
(2) Optional clearance. Renovation firms that choose to comply with
all of the requirements of this paragraph (745.85(b)) need not comply
with the requirements of paragraph (d) of this section.
* * * * *
(d) Dust wipe testing. (1) Dust wipe testing must be performed
after all renovations involving:
(i) Use of a heat gun at temperatures below 1,100 degrees
Fahrenheit.
(ii) Removal or replacement of window or door frames.
(iii) Scraping 60 ft\2\ or more of painted surfaces.
(iv) Removing more than 40 ft\2\ of trim, molding, cabinets, or
other fixtures.
(2) After cleaning verification has been performed in accordance
with paragraph (c) of this section, a certified inspector, certified
risk assessor, or certified dust sampling technician must collect dust
wipe samples in accordance with EPA's ``Residential Sampling for Lead:
Protocols for Dust and Soil Sampling, EPA-747-R-95-001'' or an
equivalent protocol that incorporates adequate quality control
procedures. Samples must be collected in the following locations:
(i) If there is more than one room, hallway, or stairwell within
the work area, the following samples must be collected:
(A) One windowsill sample, one window trough sample, and one floor
sample within each room, hallway, or stairwell in the work area. If
there are more than four rooms, hallways, or stairwells within the work
area, only four rooms, hallways, or stairwells must be sampled.
(B) One floor sample adjacent to the work area, but not in an area
that has been cleaned.
(ii) If the work area is a single room, hallway, stairwell, or
smaller area, the following samples must be collected:
(A) One windowsill sample, one window trough sample, and one floor
sample.
(B) One floor sample adjacent to the work area, but not in an area
that has been cleaned.
(iii) No window sill or trough samples must be collected if there
are no windows in the work area.
(3) Dust wipe samples must be analyzed by a laboratory or other
entity recognized by EPA pursuant to section 405(b) of the Toxic
Substances Control Act as being capable of performing analyses for lead
compounds in dust samples. If a fixed-site laboratory is to be used,
the dust wipe samples must be mailed or otherwise transmitted to the
laboratory within 1 business day of the date that they are collected.
(4) The certified inspector, certified risk assessor, or certified
dust sampling technician performing the dust wipe testing must prepare
a dust wipe testing report and provide it to the renovation firm within
3 days of the date that the dust wipe testing results are obtained. The
report must be a single document,
[[Page 25066]]
with attachments, and must include the following information:
(i) Start and completion dates of the renovation.
(ii) A brief written description of the renovation.
(iii) The name and address of the certified firm employing the
certified inspector, certified risk assessor, or certified dust
sampling technician performing the dust wipe testing.
(iv) The name and signature of each certified inspector, certified
risk assessor, or certified dust sampling technician performing
sampling or testing and the date(s) that samples were collected or
testing performed.
(v) The results of the visual inspection.
(vi) A detailed written description of the specific sampling or
testing locations or a detailed drawing that clearly identifies the
location of each sample or test.
(vii) The results for each dust wipe test, a statement of whether
or not all samples analyzed were below the applicable clearance
standards, and the name of each recognized laboratory or other entity
that conducted the analyses.
(viii) The clearance standard from paragraph (b)(1)(iv) of this
section that is applicable to each dust wipe test and, if one or more
final dust wipe tests equals or exceeds the applicable clearance
standards, a statement that any dust lead levels that equal or exceed
the clearance standards will demonstrate that a lead-based paint hazard
is present after the work is completed..
(e) Activities conducted after post-renovation clearance, dust wipe
testing, or cleaning verification. Activities that do not disturb
paint, such as applying paint to walls that have already been prepared,
are not regulated by this subpart if they are conducted after post-
renovation clearance, dust wipe testing, or cleaning verification has
been performed.
5. In Sec. 745.86, revise paragraph (d) to read as follows:
Sec. 745.86 Recordkeeping and reporting requirements.
* * * * *
(d) If clearance or dust wipe testing is performed in accordance
with Sec. 745.85, the renovation firm must provide, within 3 days of
the date the renovation firm receives the report, a copy of the
clearance or dust wipe testing report to:
(1) The owner of the building; and, if different,
(2) An adult occupant of the residential dwelling, if the
renovation took place within a residential dwelling, or an adult
representative of the child-occupied facility, if the renovation took
place within a child-occupied facility.
6. Section 745.90 is amended as follows:
a. By revising paragraphs (a)(2) and (a)(3).
b. By revising paragraphs (b)(2), (b)(4), and (b)(8).
Sec. 745.90 Renovator certification and dust sampling technician
certification.
(a) * * *
(2) Individuals who have successfully completed an accredited
abatement worker or supervisor course, or individuals who successfully
completed an EPA, HUD, or EPA/HUD model renovation training course may
take an accredited refresher renovator training course before April 22,
2011 in lieu of the initial renovator training course to become a
certified renovator.
(3) Individuals who have successfully completed an accredited lead-
based paint inspector or risk assessor course may take an accredited
refresher dust sampling technician course before April 22, 2011 in lieu
of the initial training to become a certified dust sampling technician.
Individuals who are currently certified as lead-based paint inspectors
or risk assessors may act as dust sampling technicians without further
training.
* * * * *
(b) * * *
(2) Must provide training to workers on the work practices required
by Sec. 745.85(a) that they will be using in performing their assigned
tasks.
* * * * *
(4) Must regularly direct work being performed by other individuals
to ensure that the work practices required by Sec. 745.85(a) are being
followed, including maintaining the integrity of the containment
barriers and ensuring that dust or debris does not spread beyond the
work area.
* * * * *
(8) Must prepare the records required by Sec. 745.86(b)(1) and
(6).
* * * * *
7. In Sec. 745.92, add paragraph (b)(3) to read as follows:
Sec. 745.92 Fees for the accreditation of renovation and dust
sampling technician training and the certification of renovation firms.
* * * * *
(b) * * *
(3) Accreditation or certification amendments. No fee will be
charged for accreditation or certification amendments.
* * * * *
8. Revise Sec. 745.225 to read as follows:
Sec. 745.225 Accreditation of training programs: target housing and
child-occupied facilities.
(a) Scope. (1) A training program may seek accreditation to offer
courses in any of the following disciplines: Inspector, risk assessor,
supervisor, project designer, abatement worker, renovator, and dust
sampling technician. A training program may also seek accreditation to
offer refresher courses for each of the above listed disciplines.
(2) Training programs may first apply to EPA for accreditation of
their lead-based paint activities courses or refresher courses pursuant
to this section on or after August 31, 1998. Training programs may
first apply to EPA for accreditation of their renovator or dust
sampling technician courses or refresher courses pursuant to this
section on or after April 22, 2009.
(3) A training program must not provide, offer, or claim to provide
EPA-accredited lead-based paint activities courses without applying for
and receiving accreditation from EPA as required under paragraph (b) of
this section on or after March 1, 1999. A training program must not
provide, offer, or claim to provide EPA-accredited renovator or dust
sampling technician courses without applying for and receiving
accreditation from EPA as required under paragraph (b) of this section
on or after June 23, 2008.
(b) Application process. The following are procedures a training
program must follow to receive EPA accreditation to offer lead-based
paint activities courses, renovator courses, or dust sampling
technician courses:
(1) A training program seeking accreditation shall submit a written
application to EPA containing the following information:
(i) The training program's name, address, and telephone number.
(ii) A list of courses for which it is applying for accreditation.
For the purposes of this section, courses taught in different languages
and electronic learning courses are considered different courses, and
each must independently meet the accreditation requirements.
(iii) The name and documentation of the qualifications of the
training program manager.
(iv) The name(s) and documentation of qualifications of any
principal instructor(s).
(v) A statement signed by the training program manager certifying
that the training program meets the requirements established in
paragraph (c) of this section. If a training program uses EPA-
recommended model training
[[Page 25067]]
materials, or training materials approved by a State or Indian Tribe
that has been authorized by EPA under subpart Q of this part, the
training program manager shall include a statement certifying that, as
well.
(vi) If a training program does not use EPA-recommended model
training materials, its application for accreditation shall also
include:
(A) A copy of the student and instructor manuals, or other
materials to be used for each course.
(B) A copy of the course agenda for each course.
(C) When applying for accreditation of a course in a language other
than English, a signed statement from a qualified, independent
translator that they had compared the course to the English language
version and found the translation to be accurate.
(vii) All training programs shall include in their application for
accreditation the following:
(A) A description of the facilities and equipment to be used for
lecture and hands-on training.
(B) A copy of the course test blueprint for each course.
(C) A description of the activities and procedures that will be
used for conducting the assessment of hands-on skills for each course.
(D) A copy of the quality control plan as described in paragraph
(c)(9) of this section.
(2) If a training program meets the requirements in paragraph (c)
of this section, then EPA shall approve the application for
accreditation no more than 180 days after receiving a complete
application from the training program. In the case of approval, a
certificate of accreditation shall be sent to the applicant. In the
case of disapproval, a letter describing the reasons for disapproval
shall be sent to the applicant. Prior to disapproval, EPA may, at its
discretion, work with the applicant to address inadequacies in the
application for accreditation. EPA may also request additional
materials retained by the training program under paragraph (i) of this
section. If a training program's application is disapproved, the
program may reapply for accreditation at any time.
(3) A training program may apply for accreditation to offer courses
or refresher courses in as many disciplines as it chooses. A training
program may seek accreditation for additional courses at any time as
long as the program can demonstrate that it meets the requirements of
this section.
(4) A training program applying for accreditation must submit the
appropriate fees in accordance with Sec. 745.238.
(c) Requirements for the accreditation of training programs. For a
training program to obtain accreditation from EPA to offer lead-based
paint activities courses, renovator courses, or dust sampling
technician courses, the program must meet the following requirements:
(1) The training program shall employ a training manager who has:
(i) At least 2 years of experience, education, or training in
teaching workers or adults; or
(ii) A bachelor's or graduate degree in building construction
technology, engineering, industrial hygiene, safety, public health,
education, business administration or program management or a related
field; or
(iii) Two years of experience in managing a training program
specializing in environmental hazards; and
(iv) Demonstrated experience, education, or training in the
construction industry including: Lead or asbestos abatement, painting,
carpentry, renovation, remodeling, occupational safety and health, or
industrial hygiene.
(2) The training manager shall designate a qualified principal
instructor for each course who has:
(i) Demonstrated experience, education, or training in teaching
workers or adults; and
(ii) Successfully completed at least 16 hours of any EPA-accredited
or EPA-authorized State or Tribal-accredited lead-specific training;
and
(iii) Demonstrated experience, education, or training in lead or
asbestos abatement, painting, carpentry, renovation, remodeling,
occupational safety and health, or industrial hygiene.
(3) The principal instructor shall be responsible for the
organization of the course, course delivery, and oversight of the
teaching of all course material. The training manager may designate
guest instructors as needed for a portion of the course to provide
instruction specific to the lecture, hands-on activities, or work
practice components of a course. However, the principal instructor is
primarily responsible for teaching the course materials and must be
present to provide instruction (or oversight of portions of the course
taught by guest instructors) for the course for which he has been
designated the principal instructor.
(4) The following documents shall be recognized by EPA as evidence
that training managers and principal instructors have the education,
work experience, training requirements or demonstrated experience,
specifically listed in paragraphs (c)(1) and (c)(2) of this section.
This documentation must be submitted with the accreditation application
and retained by the training program as required by the recordkeeping
requirements contained in paragraph (i) of this section. Those
documents include the following:
(i) Official academic transcripts or diploma as evidence of meeting
the education requirements.
(ii) Re[acute]sume[acute]s, letters of reference, or documentation
of work experience, as evidence of meeting the work experience
requirements.
(iii) Certificates from train-the-trainer courses and lead-specific
training courses, as evidence of meeting the training requirements.
(5) The training program shall ensure the availability of, and
provide adequate facilities for, the delivery of the lecture, course
test, hands-on training, and assessment activities. This includes
providing training equipment that reflects current work practices and
maintaining or updating the equipment and facilities as needed.
(6) To become accredited in the following disciplines, the training
program shall provide training courses that meet the following training
requirements:
(i) The inspector course shall last a minimum of 24 training hours,
with a minimum of 8 hours devoted to hands-on training activities. The
minimum curriculum requirements for the inspector course are contained
in paragraph (d)(1) of this section.
(ii) The risk assessor course shall last a minimum of 16 training
hours, with a minimum of 4 hours devoted to hands-on training
activities. The minimum curriculum requirements for the risk assessor
course are contained in paragraph (d)(2) of this section.
(iii) The supervisor course shall last a minimum of 32 training
hours, with a minimum of 8 hours devoted to hands-on activities. The
minimum curriculum requirements for the supervisor course are contained
in paragraph (d)(3) of this section.
(iv) The project designer course shall last a minimum of 8 training
hours. The minimum curriculum requirements for the project designer
course are contained in paragraph (d)(4) of this section.
(v) The abatement worker course shall last a minimum of 16 training
hours, with a minimum of 8 hours devoted to hands-on training
activities. The minimum curriculum requirements for the abatement
worker course are contained in paragraph (d)(5) of this section.
[[Page 25068]]
(vi) The renovator course must last a minimum of 8 training hours,
with a minimum of 2 hours devoted to hands-on training activities. The
minimum curriculum requirements for the renovator course are contained
in paragraph (d)(6) of this section.
(vii) The dust sampling technician course must last a minimum of 8
training hours, with a minimum of 2 hours devoted to hands-on training
activities. The minimum curriculum requirements for the dust sampling
technician course are contained in paragraph (d)(7) of this section.
(viii) Electronic learning and other alternative course delivery
methods are permitted for the classroom portion of renovator, dust
sampling technician, or lead-based paint activities courses but not the
hands-on portion of these courses. Electronic learning courses must
comply with the following requirements:
(A) A unique identifier must be assigned to each student for them
to use to launch and re-launch the course.
(B) The training provider must track each student's course log-ins,
launches, progress, and completion, and maintain these records in
accordance with paragraph (i) of this section.
(C) The course must include knowledge checks for each module, which
must be successfully completed before the student can go on to the next
module.
(D) There must be a test of at least 20 questions at the end of the
electronic learning portion of the course, of which 80% must be
answered correctly by the student for successful completion of the
electronic learning portion of the course.
(E) Each student must be able to save or print an uneditable copy
of an electronic learning course completion certificate.
(7) For each course offered, the training program shall conduct
either a course test at the completion of the course, and if
applicable, a hands-on skills assessment, or in the alternative, a
proficiency test for that discipline. Each individual must successfully
complete the hands-on skills assessment and receive a passing score on
the course test to pass any course, or successfully complete a
proficiency test.
(i) The training manager is responsible for maintaining the
validity and integrity of the hands-on skills assessment or proficiency
test to ensure that it accurately evaluates the trainees' performance
of the work practices and procedures associated with the course topics
contained in paragraph (d) of this section.
(ii) The training manager is responsible for maintaining the
validity and integrity of the course test to ensure that it accurately
evaluates the trainees' knowledge and retention of the course topics.
(iii) The course test shall be developed in accordance with the
test blueprint submitted with the training accreditation application.
(8) The training program shall issue unique course completion
certificates to each individual who passes the training course. The
course completion certificate shall include:
(i) The name, a unique identification number, and address of the
individual.
(ii) The name of the particular course that the individual
completed.
(iii) Dates of course completion/test passage.
(iv) For initial inspector, risk assessor, project designer,
supervisor, or abatement worker course completion certificates, the
expiration date of interim certification, which is 6 months from the
date of course completion.
(v) The name, address, and telephone number of the training
program.
(vi) The language in which the course was taught.
(vii) For renovator and dust sampling technician course completion
certificates, a photograph of the individual. The photograph must be an
accurate and recognizable image of the individual. As reproduced on the
certificate, the photograph must not be smaller than 1 square inch.
(9) The training manager shall develop and implement a quality
control plan. The plan shall be used to maintain and improve the
quality of the training program over time. This plan shall contain at
least the following elements:
(i) Procedures for periodic revision of training materials and the
course test to reflect innovations in the field.
(ii) Procedures for the training manager's annual review of
principal instructor competency.
(10) Courses offered by the training program must teach the work
practice standards contained in Sec. 745.85 or Sec. 745.227, as
applicable, in such a manner that trainees are provided with the
knowledge needed to perform the renovations or lead-based paint
activities they will be responsible for conducting.
(11) The training manager shall be responsible for ensuring that
the training program complies at all times with all of the requirements
in this section.
(12) The training manager shall allow EPA to audit the training
program to verify the contents of the application for accreditation as
described in paragraph (b) of this section.
(13) The training manager must provide notification of renovator,
dust sampling technician, or lead-based paint activities courses
offered.
(i) The training manager must provide EPA with notification of all
renovator, dust sampling technician, or lead-based paint activities
courses offered. The original notification must be received by EPA at
least 7 business days prior to the start date of any renovator, dust
sampling technician, or lead-based paint activities course.
(ii) The training manager must provide EPA updated notification
when renovator, dust sampling technician, or lead-based paint
activities courses will begin on a date other than the start date
specified in the original notification, as follows:
(A) For renovator, dust sampling technician, or lead-based paint
activities courses beginning prior to the start date provided to EPA,
an updated notification must be received by EPA at least 7 business
days before the new start date.
(B) For renovator, dust sampling technician, or lead-based paint
activities courses beginning after the start date provided to EPA, an
updated notification must be received by EPA at least 2 business days
before the start date provided to EPA.
(iii) The training manager must update EPA of any change in
location of renovator, dust sampling technician, or lead-based paint
activities courses at least 7 business days prior to the start date
provided to EPA.
(iv) The training manager must update EPA regarding any course
cancellations, or any other change to the original notification.
Updated notifications must be received by EPA at least 2 business days
prior to the start date provided to EPA.
(v) Each notification, including updates, must include the
following:
(A) Notification type (original, update, cancellation).
(B) Training program name, EPA accreditation number, address, and
telephone number.
(C) Course discipline, type (initial/refresher), and the language
in which instruction will be given.
(D) Date(s) and time(s) of training.
(E) Training location(s) telephone number, and address.
(F) Principal instructor's name.
(G) Training manager's name and signature.
(vi) Notification must be accomplished using any of the following
methods: Written notification, or electronically using the Agency's
[[Page 25069]]
Central Data Exchange (CDX). Written notification of lead-based paint
activities course schedules can be accomplished by using either the
sample form titled ``Lead-Based Paint Training Notification'' or a
similar form containing the information required in paragraph
(c)(13)(v) of this section. All written notifications must be delivered
by U.S. Postal Service, fax, commercial delivery service, or hand
delivery (persons submitting notification by U.S. Postal Service are
reminded that they should allow 3 additional business days for delivery
in order to ensure that EPA receives the notification by the required
date). Instructions and sample forms can be obtained from the NLIC at
1-800-424-LEAD(5323), or on the Internet at http://www.epa.gov/lead.
(vii) Renovator, dust sampling technician, or lead-based paint
activities courses must not begin on a date, or at a location other
than that specified in the original notification unless an updated
notification identifying a new start date or location is submitted, in
which case the course must begin on the new start date and/or location
specified in the updated notification.
(viii) No training program shall provide renovator, dust sampling
technician, or lead-based paint activities courses without first
notifying EPA of such activities in accordance with the requirements of
this paragraph.
(14) The training manager must provide notification following
completion of renovator, dust sampling technician, or lead-based paint
activities courses.
(i) The training manager must provide EPA notification after the
completion of any lead-based paint activities course. This notice must
be received by EPA no later than 10 business days following course
completion.
(ii) The notification must include the following:
(A) Training program name, EPA accreditation number, address, and
telephone number.
(B) Course discipline and type (initial/refresher).
(C) Date(s) of training.
(D) The following information for each student who took the course:
(1) Name.
(2) Address.
(3) Date of birth.
(4) Course completion certificate number.
(5) Course test score.
(6) For renovator or dust sampling technician courses, a digital
photograph of the student.
(E) Training manager's name and signature.
(iii) Notification must be accomplished using any of the following
methods: Written notification, or electronically using the Agency's
Central Data Exchange (CDX). Written notification following renovator,
dust sampling technician, or lead-based paint activities training
courses can be accomplished by using either the sample form titled
``Lead-Based Paint Training Course Follow-up'' or a similar form
containing the information required in paragraph (c)(14)(ii) of this
section. All written notifications must be delivered by U.S. Postal
Service, fax, commercial delivery service, or hand delivery (persons
submitting notification by U.S. Postal Service are reminded that they
should allow 3 additional business days for delivery in order to ensure
that EPA receives the notification by the required date). Instructions
and sample forms can be obtained from the NLIC at 1-800-424-LEAD(5323),
or on the Internet at http://www.epa.gov/lead.
(d) Minimum training curriculum requirements. To become accredited
to offer lead-based paint courses in the specific disciplines listed
below, training programs must ensure that their courses of study
include, at a minimum, the following course topics.
(1) Inspector. Instruction in the topics described in paragraphs
(d)(1)(iv), (v), (vi), and (vii) of this section must be included in
the hands-on portion of the course.
(i) Role and responsibilities of an inspector.
(ii) Background information on lead and its adverse health effects.
(iii) Background information on Federal, State, and local
regulations and guidance that pertains to lead-based paint and lead-
based paint activities.
(iv) Lead-based paint inspection methods, including selection of
rooms and components for sampling or testing.
(v) Paint, dust, and soil sampling methodologies.
(vi) Clearance standards and testing, including random sampling.
(vii) Preparation of the final inspection report.
(viii) Recordkeeping.
(2) Risk assessor. Instruction in the topics described in
paragraphs (d)(2)(iv), (vi), and (vii) of this section must be included
in the hands-on portion of the course.
(i) Role and responsibilities of a risk assessor.
(ii) Collection of background information to perform a risk
assessment.
(iii) Sources of environmental lead contamination such as paint,
surface dust and soil, water, air, packaging, and food.
(iv) Visual inspection for the purposes of identifying potential
sources of lead-based paint hazards.
(v) Lead hazard screen protocol.
(vi) Sampling for other sources of lead exposure.
(vii) Interpretation of lead-based paint and other lead sampling
results, including all applicable State or Federal guidance or
regulations pertaining to lead-based paint hazards.
(viii) Development of hazard control options, the role of interim
controls, and operations and maintenance activities to reduce lead-
based paint hazards.
(ix) Preparation of a final risk assessment report.
(3) Supervisor. Instruction in the topics described in paragraphs
(d)(3)(v), (vii), (viii), (ix), and (x) of this section must be
included in the hands-on portion of the course.
(i) Role and responsibilities of a supervisor.
(ii) Background information on lead and its adverse health effects.
(iii) Background information on Federal, State, and local
regulations and guidance that pertain to lead-based paint abatement.
(iv) Liability and insurance issues relating to lead-based paint
abatement.
(v) Risk assessment and inspection report interpretation.
(vi) Development and implementation of an occupant protection plan
and abatement report.
(vii) Lead-based paint hazard recognition and control.
(viii) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices.
(ix) Interior dust abatement/cleanup or lead-based paint hazard
control and reduction methods.
(x) Soil and exterior dust abatement or lead-based paint hazard
control and reduction methods.
(xi) Clearance standards and testing.
(xii) Cleanup and waste disposal.
(xiii) Recordkeeping.
(4) Project designer. (i) Role and responsibilities of a project
designer.
(ii) Development and implementation of an occupant protection plan
for large-scale abatement projects.
(iii) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices for large-scale
abatement projects.
(iv) Interior dust abatement/cleanup or lead hazard control and
reduction methods for large-scale abatement projects.
(v) Clearance standards and testing for large scale abatement
projects.
(vi) Integration of lead-based paint abatement methods with
modernization and rehabilitation projects for large scale abatement
projects.
[[Page 25070]]
(5) Abatement worker. Instruction in the topics described in
paragraphs (d)(5)(iv), (v), (vi), and (vii) of this section must be
included in the hands-on portion of the course.
(i) Role and responsibilities of an abatement worker.
(ii) Background information on lead and its adverse health effects.
(iii) Background information on Federal, State and local
regulations and guidance that pertain to lead-based paint abatement.
(iv) Lead-based paint hazard recognition and control.
(v) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices.
(vi) Interior dust abatement methods/cleanup or lead-based paint
hazard reduction.
(vii) Soil and exterior dust abatement methods or lead-based paint
hazard reduction.
(6) Renovator. Instruction in the topics described in paragraphs
(d)(6)(iv), (v), (vi), (vii), and (viii) of this section must be
included in the hands-on portion of the course.
(i) Role and responsibility of a renovator.
(ii) Background information on lead and its adverse health effects.
(iii) Background information on EPA, HUD, OSHA, and other Federal,
State, and local regulations and guidance that pertains to lead-based
paint and renovation activities.
(iv) Procedures for using acceptable test kits to determine whether
paint is lead-based paint.
(v) Procedures for collecting a paint chip sample and sending it to
a laboratory recognized by EPA under section 405(b) of TSCA.
(vi) Renovation methods to minimize the creation of dust and lead-
based paint hazards.
(vii) Interior and exterior containment and cleanup methods.
(viii) Methods to ensure that the renovation has been properly
completed, including cleaning verification and clearance testing.
(ix) Waste handling and disposal.
(x) Providing on-the-job training to other workers.
(xi) Record preparation.
(7) Dust sampling technician. Instruction in the topics described
in paragraphs (d)(6)(iv) and (vi) of this section must be included in
the hands-on portion of the course.
(i) Role and responsibility of a dust sampling technician.
(ii) Background information on lead and its adverse health effects.
(iii) Background information on Federal, State, and local
regulations and guidance that pertains to lead-based paint and
renovation activities.
(iv) Dust sampling methodologies.
(v) Clearance standards and testing.
(vi) Report preparation.
(e) Requirements for the accreditation of refresher training
programs. A training program may seek accreditation to offer refresher
training courses in any of the following disciplines: Inspector, risk
assessor, supervisor, project designer, abatement worker, renovator,
and dust sampling technician. To obtain EPA accreditation to offer
refresher training, a training program must meet the following minimum
requirements:
(1) Each refresher course shall review the curriculum topics of the
full-length courses listed under paragraph (d) of this section, as
appropriate. In addition, to become accredited to offer refresher
training courses, training programs shall ensure that their courses of
study include, at a minimum, the following:
(i) An overview of current safety practices relating to lead-based
paint in general, as well as specific information pertaining to the
appropriate discipline.
(ii) Current laws and regulations relating to lead-based paint in
general, as well as specific information pertaining to the appropriate
discipline.
(iii) Current technologies relating to lead-based paint in general,
as well as specific information pertaining to the appropriate
discipline.
(2) Refresher courses for inspector, risk assessor, supervisor, and
abatement worker must last a minimum of 8 training hours. Refresher
courses for project designer, renovator, and dust sampling technician
must last a minimum of 4 training hours. Refresher courses for all
disciplines except project designer must include a hands-on component.
(3) For each course offered, the training program shall conduct a
hands-on assessment (for all courses except project designer), and at
the completion of the course, a course test.
(4) A training program may apply for accreditation of a refresher
course concurrently with its application for accreditation of the
corresponding training course as described in paragraph (b) of this
section. If so, EPA shall use the approval procedure described in
paragraph (b) of this section. In addition, the minimum requirements
contained in paragraphs (c) (except for the requirements in paragraph
(c)(6)), and (e)(1), (e)(2) and (e)(3) of this section shall also
apply.
(5) A training program seeking accreditation to offer refresher
training courses only shall submit a written application to EPA
containing the following information:
(i) The refresher training program's name, address, and telephone
number.
(ii) A list of courses for which it is applying for accreditation.
(iii) The name and documentation of the qualifications of the
training program manager.
(iv) The name(s) and documentation of the qualifications of the
principal instructor(s).
(v) A statement signed by the training program manager certifying
that the refresher training program meets the minimum requirements
established in paragraph (c) of this section, except for the
requirements in paragraph (c)(6) of this section. If a training program
uses EPA-developed model training materials, or training materials
approved by a State or Indian Tribe that has been authorized by EPA
under Sec. 745.324 to develop its refresher training course materials,
the training manager shall include a statement certifying that, as
well.
(vi) If the refresher training course materials are not based on
EPA-developed model training materials, the training program's
application for accreditation shall include:
(A) A copy of the student and instructor manuals to be used for
each course.
(B) A copy of the course agenda for each course.
(vii) All refresher training programs shall include in their
application for accreditation the following:
(A) A description of the facilities and equipment to be used for
lecture and hands-on training.
(B) A copy of the course test blueprint for each course.
(C) A description of the activities and procedures that will be
used for conducting the assessment of hands-on skills for each course
(if applicable).
(D) A copy of the quality control plan as described in paragraph
(c)(9) of this section.
(viii) The requirements in paragraphs (c)(1) through (c)(5), and
(c)(7) through (c)(14) of this section apply to refresher training
providers.
(ix) If a refresher training program meets the requirements listed
in this paragraph, then EPA shall approve the application for
accreditation no more than 180 days after receiving a complete
application from the refresher training program. In the case of
approval, a certificate of accreditation shall be sent to the
applicant. In the case of disapproval, a letter describing the reasons
for disapproval shall be sent to the applicant. Prior to disapproval,
EPA may, at its discretion, work with the applicant to address
inadequacies in the application for accreditation. EPA may
[[Page 25071]]
also request additional materials retained by the refresher training
program under paragraph (i) of this section. If a refresher training
program's application is disapproved, the program may reapply for
accreditation at any time.
(f) Re-accreditation of training programs. (1) Unless re-
accredited, a training program's accreditation, including refresher
training accreditation, shall expire 4 years after the date of
issuance. If a training program meets the requirements of this section,
the training program shall be re-accredited.
(2) A training program seeking re-accreditation shall submit an
application to EPA no later than 180 days before its accreditation
expires. If a training program does not submit its application for re-
accreditation by that date, EPA cannot guarantee that the program will
be re-accredited before the end of the accreditation period.
(3) The training program's application for re-accreditation shall
contain:
(i) The training program's name, address, and telephone number.
(ii) A list of courses for which it is applying for re-
accreditation.
(iii) The name and qualifications of the training program manager.
(iv) The name(s) and qualifications of the principal instructor(s).
(v) A description of any changes to the training facility,
equipment or course materials since its last application was approved
that adversely affects the students' ability to learn.
(vi) A statement signed by the program manager stating:
(A) That the training program complies at all times with all
requirements in paragraphs (c) and (e) of this section, as applicable;
and
(B) The recordkeeping and reporting requirements of paragraph (i)
of this section shall be followed.
(vii) A payment of appropriate fees in accordance with Sec.
745.238.
(4) Upon request, the training program shall allow EPA to audit the
training program to verify the contents of the application for re-
accreditation as described in paragraph (f)(3) of this section.
(g) Suspension, revocation, and modification of accredited training
programs. (1) EPA may, after notice and an opportunity for hearing,
suspend, revoke, or modify training program accreditation, including
refresher training accreditation, if a training program, training
manager, or other person with supervisory authority over the training
program has:
(i) Misrepresented the contents of a training course to EPA and/or
the student population.
(ii) Failed to submit required information or notifications in a
timely manner.
(iii) Failed to maintain required records.
(iv) Falsified accreditation records, instructor qualifications, or
other accreditation-related information or documentation.
(v) Failed to comply with the training standards and requirements
in this section.
(vi) Failed to comply with Federal, State, or local lead-based
paint statutes or regulations.
(vii) Made false or misleading statements to EPA in its application
for accreditation or re-accreditation which EPA relied upon in
approving the application.
(2) In addition to an administrative or judicial finding of
violation, execution of a consent agreement in settlement of an
enforcement action constitutes, for purposes of this section, evidence
of a failure to comply with relevant statutes or regulations.
(h) Procedures for suspension, revocation or modification of
training program accreditation. (1) Prior to taking action to suspend,
revoke, or modify the accreditation of a training program, EPA shall
notify the affected entity in writing of the following:
(i) The legal and factual basis for the suspension, revocation, or
modification.
(ii) The anticipated commencement date and duration of the
suspension, revocation, or modification.
(iii) Actions, if any, which the affected entity may take to avoid
suspension, revocation, or modification, or to receive accreditation in
the future.
(iv) The opportunity and method for requesting a hearing prior to
final EPA action to suspend, revoke or modify accreditation.
(v) Any additional information, as appropriate, which EPA may
provide.
(2) If a hearing is requested by the accredited training program,
EPA shall:
(i) Provide the affected entity an opportunity to offer written
statements in response to EPA's assertions of the legal and factual
basis for its proposed action, and any other explanations, comments,
and arguments it deems relevant to the proposed action.
(ii) Provide the affected entity such other procedural
opportunities as EPA may deem appropriate to ensure a fair and
impartial hearing.
(iii) Appoint an official of EPA as Presiding Officer to conduct
the hearing. No person shall serve as Presiding Officer if he or she
has had any prior connection with the specific matter.
(3) The Presiding Officer appointed pursuant to paragraph (h)(2) of
this section shall:
(i) Conduct a fair, orderly, and impartial hearing within 90 days
of the request for a hearing.
(ii) Consider all relevant evidence, explanation, comment, and
argument submitted.
(iii) Notify the affected entity in writing within 90 days of
completion of the hearing of his or her decision and order. Such an
order is a final agency action which may be subject to judicial review.
(4) If EPA determines that the public health, interest, or welfare
warrants immediate action to suspend the accreditation of any training
program prior to the opportunity for a hearing, it shall:
(i) Notify the affected entity of its intent to immediately suspend
training program accreditation for the reasons listed in paragraph
(g)(1) of this section. If a suspension, revocation, or modification
notice has not previously been issued pursuant to paragraph (g)(1) of
this section, it shall be issued at the same time the emergency
suspension notice is issued.
(ii) Notify the affected entity in writing of the grounds for the
immediate suspension and why it is necessary to suspend the entity's
accreditation before an opportunity for a suspension, revocation or
modification hearing.
(iii) Notify the affected entity of the anticipated commencement
date and duration of the immediate suspension.
(iv) Notify the affected entity of its right to request a hearing
on the immediate suspension within 15 days of the suspension taking
place and the procedures for the conduct of such a hearing.
(5) Any notice, decision, or order issued by EPA under this
section, any transcripts or other verbatim record of oral testimony,
and any documents filed by an accredited training program in a hearing
under this section shall be available to the public, except as
otherwise provided by section 14 of TSCA or by 40 CFR part 2. Any such
hearing at which oral testimony is presented shall be open to the
public, except that the Presiding Officer may exclude the public to the
extent necessary to allow presentation of information which may be
entitled to confidential treatment under section 14 of TSCA or 40 CFR
part 2.
(6) The public shall be notified of the suspension, revocation,
modification or reinstatement of a training program's accreditation
through appropriate mechanisms.
[[Page 25072]]
(7) EPA shall maintain a list of parties whose accreditation has
been suspended, revoked, modified or reinstated.
(i) Training program recordkeeping requirements. (1) Accredited
training programs shall maintain, and make available to EPA, upon
request, the following records:
(i) All documents specified in paragraph (c)(4) of this section
that demonstrate the qualifications listed in paragraphs (c)(1) and
(c)(2) of this section of the training manager and principal
instructors.
(ii) Current curriculum/course materials and documents reflecting
any changes made to these materials.
(iii) The course test blueprint.
(iv) Information regarding how the hands-on assessment is conducted
including, but not limited to:
(A) Who conducts the assessment.
(B) How the skills are graded.
(C) What facilities are used.
(D) The pass/fail rate.
(v) The quality control plan as described in paragraph (c)(9) of
this section.
(vi) Results of the students' hands-on skills assessments and
course tests, and a record of each student's course completion
certificate.
(vii) Any other material not listed above in paragraphs (i)(1)(i)
through (i)(1)(vi) of this section that was submitted to EPA as part of
the program's application for accreditation.
(viii) For renovator refresher and dust sampling technician
refresher courses, a copy of each trainee's prior course completion
certificate showing that each trainee was eligible to take the
refresher course.
(ix) For course modules delivered in an electronic format, a record
of each student's log-ins, launches, progress, and completion, and a
copy of the electronic learning completion certificate for each
student.
(2) The training program must retain records pertaining to lead-
based paint activities courses at the address specified on the training
program accreditation application (or as modified in accordance with
paragraph (i)(3) of this section) for a minimum of 3 years and 6
months. Records pertaining to renovator or dust sampling technician
courses must be retained at the address specified on the training
program accreditation application (or as modified in accordance with
paragraph (i)(3) of this section) for a minimum of 5 years.
(3) The training program shall notify EPA in writing within 30 days
of changing the address specified on its training program accreditation
application or transferring the records from that address.
(j) Amendment of accreditation. (1) A training program must amend
its accreditation within 90 days of the date a change occurs to
information included in the program's most recent application. If the
training program fails to amend its accreditation within 90 days of the
date the change occurs, the program may not provide renovator, dust
sampling technician, or lead-based paint activities training until its
accreditation is amended.
(2) To amend an accreditation, a training program must submit a
completed ``Accreditation Application for Training Providers,'' signed
by an authorized agent of the training provider, noting on the form
that it is submitted as an amendment and indicating the information
that has changed.
(3) If the amendment includes a new training program manager, any
new or additional principal instructor(s), or any new permanent
training location(s), the training provider is not permitted to provide
training under the new training manager or offer courses taught by any
new principal instructor(s) or at the new training location(s) until
EPA either approves the amendment or 30 days have elapsed, whichever
occurs earlier.
9. In Sec. 745.238, add paragraph (c)(5) to read as follows:
Sec. 745.238 Fees for accreditation and certification of lead-based
paint activities.
* * * * *
(c) * * *
(5) No fee will be charged for accreditation amendments.
* * * * *
10. In Sec. 745.326, revise paragraphs (a)(2)(i), (a)(2)(ii), (d),
(e)(1), and (e)(3), and add paragraph (f) to read as follows:
Sec. 745.326 Renovation: State and Tribal program requirements.
(a) * * *
(2) * * *
(i) Procedures and requirements for the accreditation of renovation
and dust sampling technician training programs. (Note: a State and
Tribal program is not required to include procedures and requirements
for the dust sampling technician training discipline if the State or
Tribal program requires dust sampling to be performed by a certified
lead-based paint inspector or risk assessor.)
(ii) Procedures and requirements for accredited initial and
refresher training for renovators and dust sampling technicians and on-
the-job training for other individuals who perform renovations.
* * * * *
(d) Certification of individuals and/or renovation firms. To be
considered at least as protective as the Federal program, the State or
Tribal program must:
(1) Establish procedures and requirements that ensure that
individuals who perform or direct renovations are properly trained.
These procedures and requirements must include:
(i) A requirement that renovations be performed and directed by at
least one individual who has been trained by an accredited training
program.
(ii) Procedures and requirements for accredited refresher training
for these individuals.
(iii) Procedures and requirements for certified renovators to
provide on-the-job training for those individuals who perform
renovations but do not receive accredited training.
(2) Establish procedures and requirements for the formal
certification and re-certification of either individuals or renovation
firms.
(3) Establish procedures for the suspension, revocation, or
modification of certifications.
(e) * * *
(1) Renovations must be conducted only by certified individuals
and/or certified renovation firms.
* * * * *
(3) Certified individuals and/or renovation firms must retain
appropriate records.
(f) Revisions to renovation program requirements. If EPA revises
the renovation program requirements contained in subparts E and L of
this part:
(1) A State or Tribe with a renovation program approved before the
effective date of the revisions must demonstrate that it meets the
requirements of this section no later than the first report that it
submits pursuant to Sec. 745.324(h) no later than one year after the
effective date of the revisions.
(2) A State or Tribe with an application for approval of a
renovation program submitted but not approved before the effective date
of the revisions must demonstrate that it meets the requirements of
this section either by amending its application or in the first report
that it submits pursuant to Sec. 745.324(h) no later than one year
after the effective date of the revisions.
(3) A State or Indian Tribe submitting its application for approval
of a renovation program on or after the effective date of the revisions
must
[[Page 25073]]
demonstrate in its application that it meets the requirements of this
section.
11. In Sec. 745.327, revise paragraphs (b)(1), (b)(2), (b)(3), and
(c)(2) to read as follows:
Sec. 745.327 State or Indian Tribal lead-based paint compliance and
enforcement programs.
* * * * *
(b) * * *
(1) Lead-based paint activities or renovation requirements. State
or Tribal lead-based paint compliance and enforcement programs will be
considered adequate if the State or Indian Tribe demonstrates, in its
application at Sec. 745.324(b)(2), that it has established a lead-
based paint program that contains all of the elements specified in
Sec. 745.325 or Sec. 745.326, or both, as applicable.
(2) Authority to enter. State or Tribal officials must be able to
enter, through consent, warrant, or other authority, premises or
facilities where lead-based paint violations may occur for purposes of
conducting inspections.
(i) State or Tribal officials must be able to enter premises or
facilities where those engaged in training for lead-based paint
activities or renovations conduct business.
(ii) For the purposes of enforcing a renovation program, State or
Tribal officials must be able to enter a firm's place of business or
work site.
(iii) State or Tribal officials must have authority to take samples
and review records as part of the lead-based paint inspection process.
(3) Flexible remedies. A State or Tribal lead-based paint
compliance and enforcement program must provide for a diverse and
flexible array of enforcement statutory and regulatory authorities and
remedies. At a minimum, these authorities and remedies, which must also
be reflected in an enforcement response policy, must include the
following:
(i) The authority to issue warning letters, Notices of
Noncompliance, Notices of Violation, or the equivalent;
(ii) The authority to assess administrative or civil fines,
including a maximum penalty authority for any violation in an amount no
less than $10,000 per violation per day;
(iii) The authority to assess the maximum penalties or fines for
each instance of violation and, if the violation is continuous, the
authority to assess penalties or fines up to the maximum amount for
each day of violation, with all penalties assessed or collected being
appropriate for the violation after consideration of the size or
viability of the business, enforcement history, risks to human health
or the environment posed by the violation, and other similar factors;
(iv) The authority to commence an administrative proceeding or to
sue in courts of competent jurisdiction to recover penalties;
(v) The authority to suspend, revoke, or modify the accreditation
of any training provider or the certification of any individual or
firm;
(vi) The authority to commence an administrative proceeding or to
sue in courts of competent jurisdiction to enjoin any threatened or
continuing violation of any program requirement, without the necessity
of a prior suspension or revocation of a trainer's accreditation or a
firm's or individual's certification;
(vii) The authority to apply criminal sanctions, including
recovering fines; and
(viii) The authority to enforce its authorized program using a
burden of proof standard, including the degree of knowledge or intent
of the respondent that is no greater than it is for EPA under TSCA.
* * * * *
(c) * * *
(2) Compliance assistance. A State or Tribal lead-based paint
compliance and enforcement program must provide compliance assistance
to the public and the regulated community to facilitate awareness and
understanding of and compliance with State or Tribal requirements
governing the conduct of lead-based paint activities or renovations.
The type and nature of this assistance can be defined by the State or
Indian Tribe to achieve this goal.
* * * * *
[FR Doc. 2010-10102 Filed 5-5-10; 8:45 am]
BILLING CODE 6560-50-P