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Lead; Renovation, Repair, and Painting Program

PDF Version (79 pp, 867K, About PDF)

[Federal Register: April 22, 2008 (Volume 73, Number 78)]
[Rules and Regulations]
[Page 21691-21769]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap08-11]
[[Page 21692]]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[EPA-HQ-OPPT-2005-0049; FRL-8355-7]
RIN 2070-AC83

Lead; Renovation, Repair, and Painting Program

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is issuing a final rule under the authority of section
402(c)(3) of the Toxic Substances Control Act (TSCA) to address lead-
based paint hazards created by renovation, repair, and painting
activities that disturb lead-based paint 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
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 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. This 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.

DATES: This final rule is effective June 23, 2008.

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPPT-2005-0049. All documents in the
docket are listed in the docket index available in regulations.gov. To
access the electronic docket, go to http://www.regulations.gov, select
``Advanced Search,'' then ``Docket Search.'' Insert the docket ID
number where indicated and select the ``Submit'' button. Follow the
instructions on the regulations.gov website to view the docket index or
access available documents. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (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 Federal holidays. The telephone number of the
EPA/DC Public Reading Room is (202) 566-1744, and the telephone number
for the OPPT Docket is (202) 566-0280. Docket visitors are required to
show photographic identification, pass through a metal detector, and
sign the EPA visitor log. All visitor bags are processed through an X-
ray machine and subject to search. Visitors will be provided an EPA/DC
badge that must be visible at all times in the building and returned
upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: 
TSCA-Hotline@epa.gov.
    For technical information contact: Mike Wilson, National Program
Chemicals Division (7404T), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 566-0521; e-mail
address: wilson.mike@epa.gov.

SUPPLEMENTARY INFORMATION:

I. 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 or dust sampling. ``Target housing'' is defined in section
401 of TSCA as any housing constructed prior to 1978, except housing
for the elderly or persons with disabilities (unless any child under
age 6 resides or is expected to reside in such housing) or any 0-
bedroom dwelling. 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. Child-occupied facilities may be located in
public or commercial buildings or in target housing. Potentially
affected entities may include, but are not limited to:
    • Building construction (NAICS code 236), e.g., single family housing
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.
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. To determine
whether you or your business may be affected by this action, you should
carefully examine the applicability provisions in Unit III. If you have
any questions regarding the applicability of this action to a
particular entity, consult the technical person listed underFOR FURTHER
INFORMATION CONTACT.

II. Background

A. What Action is the Agency Taking?

    EPA is issuing a final rule under the authority of section
402(c)(3) of the

[[Page 21693]]

Toxic Substances Control Act (TSCA) to address lead-based paint hazards
created by renovation, repair, and painting activities (hereinafter
also referred to as renovation activities or renovation projects) that
disturb lead-based paint 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
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 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. This 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.
    1. Information on lead and its health effects. Lead is a soft,
bluish metallic chemical element mined from rock and found in its
natural state all over the world. Lead is virtually indestructible, is
persistent, and has been known since antiquity for its adaptability in
making various useful items. In modern times, it has been used to
manufacture many different products, including paint, batteries, pipes,
solder, pottery, and gasoline. Through the 1940's, paint manufacturers
frequently used lead as a primary ingredient in many oil-based interior
and exterior house paints. Usage gradually decreased through the 1950's
and 1960's as titanium dioxide replaced lead and as latex paints became
more widely available.
    Lead has been demonstrated to exert ``a broad array of deleterious
effects on multiple organ systems via widely diverse mechanisms of
action.'' This array of health effects, the evidence for which is
comprehensively described in EPA's Air Quality Criteria for Lead
document (Ref. 1), includes heme biosynthesis and related 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 for present purposes is the delineation of
lowest observed effect levels for those lead-induced effects that are
most clearly associated with blood lead less 10 μg/dL in children
and/or adults and are, therefore, of greatest public health concern
(Ref. 1, at 8-60). As 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 μg/dL (or possibly lower); and these categories of
effects are currently clearly of 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. 1, at 8-60)
    The overall weight of the available evidence provides clear
substantiation of neurocognitive decrements being associated in young
children with blood lead concentrations in the range of 5-10 micrograms
per deciliter (μg/dL), and possibly somewhat lower. Some newly
available analyses appear to show lead effects on the intellectual
attainment of preschool and school age children at population mean
concurrent blood-lead levels ranging down to as low as 2 to 8 μg/dL.
A decline of 6.2 points in full scale IQ for an increase in concurrent
blood lead levels from 1 to 10 μg/dL has been estimated, based on a
pooled analysis of results derived from seven well-conducted
prospective epidemiologic studies (Ref. 1, at E-9).
    Epidemiologic studies have consistently demonstrated associations
between lead exposure and enhanced risk of deleterious cardiovascular
outcomes, including increased blood pressure and incidence of
hypertension. A meta-analysis of numerous studies estimates that a
doubling of blood lead level (e.g., from 5 to 10 μg/dL) is
associated with ~1.0 mm Hg increase in systolic blood pressure and ~0.6
mm Hg increase in diastolic pressure. (Ref. 1, at E-10).
    Both epidemiologic and toxicologic studies have shown that
environmentally relevant levels of lead affect many different organ
systems (Ref. 1, at E-8). Please see Ref. 1 for further information.
    The nervous system has long been recognized as a target of lead
toxicity, with the developing nervous system affected at lower
exposures than the mature system. While blood lead levels in U.S.
children ages 1 to 5 years have decreased notably since the late
1970's, newer studies have investigated and reported associations of
effects on the neurodevelopment of children at population mean
concurrent blood lead levels ranging down to as low as 2 to 8 μg/dL
(Ref. 1, at E-9). Functional manifestations of lead neurotoxicity
during childhood include sensory, motor, cognitive and behavioral
impacts. Investigating associations between lead exposure and behavior,
mood, and social conduct of children has been an emerging area of
research (see Ref. 1, at 6.2.6). Early studies indicated linkages
between lower-level lead toxicity and behavioral problems (e.g.,
aggression, attentional problems, and hyperactivity) in children.
    Effects of lead on neurobehavior have been reported with remarkable
consistency across numerous studies of various designs, populations
studied, and developmental assessment protocols. The negative impact of
lead on IQ and other neurobehavioral outcomes persist in most recent
studies following adjustment for numerous confounding factors including
social class, quality of caregiving, and parental intelligence.
Moreover, these effects appear to persist into adolescence and young
adulthood. Cognitive effects associated with lead exposures that have
been observed in some studies include 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. 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. 1, at 8-29).
    Other cognitive effects observed in studies of children have
included effects on attention, executive functions, language, memory,
learning and visuospatial processing with attention and executive
function effects observed. The evidence for the role of lead in this
suite of effects includes experimental animal findings.These animal
toxicology findings provide strong biological plausibility in support of
the concept that lead may impact one or more of these specific cognitive

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functions in humans (Ref. 1, at 8-30). Further, lead-induced deficits
observed in animal and epidemiological studies, for the most part, have
been found to be persistent in the absence of markedly reduced
environmental exposures. It is additionally important to note that
there may be long-term consequences of such deficits over a lifetime.
Studies examining aspects of academic achievement related to lead
exposure indicate the association of deficits in academic skills and
performance, which in turn lead to enduring and important effects on
objective parameters of success in real life (Ref. 1, at 6-76).
    Lead bioaccumulates, and is only slowly removed, with bone lead
serving as a blood lead source for years after exposure and may serve
as a significant source of exposure. Bone accounts for more than 90% of
the total body burden of lead in adults and 70% in children (Ref. 1, at
4-42). In comparison to adults, bone mineral turns over much more
quickly in children as a result of growth. Changes in blood lead
concentration in children are thought to parallel more closely to
changes in total body burden. Therefore, blood lead concentration is
often used in epidemiologic and toxicological studies as an index of
exposure and body burden for children.
    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) 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, both adults and
children can receive hazardous exposures by inhaling the dust or by
ingesting lead-based paint dust during hand-to-mouth activities.
    2. Statutory and regulatory background. In 1992, Congress found
that low-level lead poisoning was widespread among American children,
affecting, at that time, as many as 3,000,000 children under age 6;
that the ingestion of household dust containing lead from deteriorating
or abraded lead-based paint was the most common cause of lead poisoning
in children; and that the health and development of children living in
as many as 3,800,000 American homes was endangered by chipping or
peeling lead paint, or excessive amounts of lead-contaminated dust in
their homes. Congress further determined that the prior Federal
response to this threat was insufficient and enacted Title X of the
Housing and Community Development Act of 1992, Public Law 102-550 (also
known as the Residential Lead-Based Paint Hazard Reduction Act of 1992)
(``the Act'' or ``Title X''). Title X established a national goal of
eliminating lead-based paint hazards in housing as expeditiously as
possible and provided a leadership role for the Federal government in
building the infrastructure necessary to achieve this goal.
    Subsequently, President Clinton created the President's Task Force
on Environmental Health Risks and Safety Risks to Children. Co-chaired
by the Secretary of the Department of Health and Human Services (HHS)
and the Administrator of EPA, the Task Force consisted of
representatives from 16 Federal departments and agencies. The Task
Force set a Federal goal of eliminating childhood lead poisoning by the
year 2010 (Ref. 2). In October 2001, President Bush extended the work
of the Task Force for an additional 18 months beyond its original
charter. Reducing lead poisoning in children was the Task Force's top
priority. Although more work remains to be done, significant progress
has been made towards reducing lead poisoning in children. The
estimated percentage of children with blood lead levels above the CDC
level of concern declined from 4.4% between 1991 and 1994 to 1.6%
between 2003 and 2004. More information on Federal efforts to address
lead poisoning, including the responsibilities of EPA and other Federal
Agencies under Title X, can be found in Units III.A. and III.B. of the
preamble to the 2006 Lead; Renovation, Repair, and Painting Program
Proposed Rule (``2006 Proposal'') (Ref. 3).
    The Act added a new title to TSCA entitled ``Title IV-Lead Exposure
Reduction.'' Most of EPA's responsibilities for addressing lead-based
paint hazards can be found in this title, with section402 of TSCA being
one source of the rulemaking authority to carry out these
responsibilities. TSCA section 402(a) directs EPA to promulgate
regulations covering lead-based paint activities to ensure persons
performing these activities are properly trained, that training
programs are accredited, and that contractors performing these
activities are certified. These regulations must contain standards for
performing lead-based paint activities, taking into account
reliability, effectiveness, and safety. On August 29, 1996, EPA
promulgated final regulations under TSCA section 402(a) 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). 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.
    On June 9, 1999, the Lead-based Paint Activities Regulations were
amended to include a fee schedule for training programs seeking EPA
accreditation and for individuals and firms seeking EPA certification
(Ref. 5). These fees were established as directed by TSCA section
402(a)(3), which requires EPA to recover the cost of administering and
enforcing the lead-based paint activities requirements in unauthorized
States. The most recent amendment to the Lead-based Paint Activities
Regulations occurred on April 8, 2004, when notification requirements were
added to help EPA monitor compliance with the training and certification
provisions and the abatement work practice standards (Ref. 5).
    Another of EPA's responsibilities under Title X is to require that
purchasers and tenants of target housing and occupants of target
housing undergoing renovation are provided information on lead-based
paint and lead-based paint hazards. As directed by TSCA section 406(a),
the Consumer Products Safety Commission (CPSC), the Department of
Housing and Urban Development (HUD), and EPA, in consultation with the
Centers for Disease Control and Prevention (CDC), jointly developed a
lead hazard information pamphlet entitled Protect Your Family From Lead
in Your Home (``PYF'') (Ref. 7). This pamphlet was designed to be
distributed as part of the disclosure requirements of section 1018 of
Title X and TSCA section 406(b), to provide home purchasers, renters,

[[Page 21695]]

owners, and occupants with the information necessary to allow them to
make informed choices when selecting housing to buy or rent, or
deciding on home renovation projects. The pamphlet contains information
on the health effects of lead, how exposure can occur, and steps that
can be taken to reduce or eliminate the risk of exposure during various
activities in the home.
    TSCA section 406(b) directs EPA to promulgate regulations requiring
persons who perform renovations for compensation in target housing to
provide a lead hazard information pamphlet to owners and occupants of
the home being renovated. These regulations, promulgated on June 1,
1998, are codified at 40 CFR part 745, subpart E (Ref. 8). The term
``renovation'' is not defined in the statute, but the regulation, at 40
CFR 745.83, defines a ``renovation'' as the modification of any
existing structure, or portion of a structure, that results in the
disturbance of painted surfaces. The regulations specifically exclude
lead-based paint abatement projects as well as small projects that
disturb 2 square feet or less of painted surface per component,
emergency projects, and renovations affecting components that have been
found to be free of lead-based paint, as that term is defined in the
regulations, by a certified inspector or risk assessor. These
regulations require the renovation firm to document compliance with the
requirement to provide the owner and the occupant with the PYF
pamphlet. TSCA section 404 also allows States to apply for, and receive
authorization to administer, the TSCA section 406(b) requirements.
    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 (μg/ft\2\) on floors
or 250 μg/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) in a play area or average of
1,200 ppm of bare soil in the rest of the yard based on soil samples.
    TSCA section 402(c) addresses renovation and remodeling. For the
stated purpose of reducing the risk of exposure to lead in connection
with renovation and remodeling activities, section 402(c)(1) of TSCA
requires EPA to promulgate and disseminate guidelines for the conduct
of such activities that may create a risk of exposure to dangerous
levels of lead. In response to this statutory directive, EPA developed
the guidance document entitledReducing Lead Hazards when Remodeling
Your Home in consultation with industry and trade groups (Ref. 10).
This document has been widely disseminated to renovation and remodeling
stakeholders through the National Lead Information Center, EPA Regions,
and EPA's State and Tribal partners and is available at 
http://www.epa.gov/lead/pubs/rrpamph.pdf.
    TSCA section 402(c)(2) directs EPA to study the extent to which
persons engaged in various types of renovation and remodeling
activities are exposed to lead during such activities or create a lead-
based paint hazard regularly or occasionally. EPA conducted this study
in four phases. Phase I, the Environmental Field Sampling Study (Ref. 11),
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.
12), involved collecting data on blood lead and renovation and
remodeling activities from workers. Phase III, the Wisconsin Childhood
Blood-Lead Study (Ref. 13.), 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. 14), 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 Proposal.
    3. Summary of 2006 Proposal. TSCA section 402(c)(3) directs EPA to
revise the Lead-based Paint Activities Regulations to apply to
renovation or remodeling activities that create lead-based paint
hazards. In the 2006 Proposal, EPA proposed 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. Accordingly, on January
10, 2006, EPA issued a Notice of Proposed Rulemaking covering
renovation performed for compensation in target housing (Ref. 3). The
2006 Proposal contained requirements designed to address lead-based
paint hazards created by renovation, repair, and painting activities
that disturb lead-based paint. The 2006 Proposal included 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. The 2006 Proposal would have made the rule effective in
two stages. Initially, the rule would have applied to all renovations
for compensation performed in target housing where a child with an
increased blood lead level resided and rental target housing built
before 1960. The rule would also have applied to owner-occupied target
housing built before 1960, unless the person performing the renovation
obtained a statement signed by the owner-occupant that the renovation
would occur in the owner's residence and that no child under age 6
resided there. As proposed, the rule would take effect 1 year later in
all rental target housing built between 1960 and 1978 and owner-
occupied target housing built between 1960 and 1978. EPA also proposed
to allow interested States, Territories, and Indian Tribes the
opportunity to apply for and receive authorization to administer and
enforce all of the elements of the new renovation provisions.
    4. Summary of 2007 Supplemental Proposal. EPA received
approximately 250 comments on its 2006 Proposal. These comments came
from a wide variety of commenters, including State and local
governments, industry groups, advocacy groups, renovation contractors,
training providers, and individuals. A significant number of these
commenters observed that the

[[Page 21696]]

proposal did not cover buildings where children under age 6 spend a
great deal of time, such as day care centers and schools. Commenters
noted that the risk posed to children from lead-based paint hazards in
schools and day care centers is likely to be equal to, if not greater
than, the risk posed from these hazards at home. These commenters
suggested that EPA expand its proposal to include such places, and
several suggested that EPA use the existing definition of ``child-
occupied facility'' in 40 CFR 745.223 to define the expanded scope of
coverage. EPA felt that these comments had merit, and, because adding
child-occupied facilities was beyond the scope of the 2006 Proposal, an
expansion of the 2006 Proposal was necessary to give this issue full
and fair consideration. Accordingly, on June 5, 2007, EPA issued a
Supplemental Notice of Proposed Rulemaking (2007 Supplemental Proposal)
to add child-occupied facilities to the universe of buildings covered
by the 2006 Proposal (Ref. 15).
    EPA proposed to use the definition of ``child-occupied facility''
from 40 CFR 745.223 with some modifications to make it consistent with
the statutory focus on children under age 6 and to better describe the
applicability of the term in target housing and in public or commercial
buildings. The 2007 Supplemental Proposal would apply all of the
accreditation, training, certification, work practice, and
recordkeeping requirements to renovations in child-occupied facilities
in the same way that the requirements would apply to renovations in
target housing. In addition, EPA proposed to extend the lead hazard
information distribution requirements of the Pre-Renovation Education
Rule, 40 CFR part 745, subpart E, to renovations in child-occupied
facilities. Specifically, EPA proposed that persons performing
renovations in child-occupied facilities in public or commercial
buildings would have to provide a lead hazard information pamphlet to
the owner of the building and to the proprietor of the child-occupied
facility. In addition, general information about the renovation would
have to be provided to parents and guardians of children under age 6
using the child-occupied facility. The 2007 Supplemental Proposal
further provided that a lead hazard information pamphlet would have to
be provided to parents and guardians or made available upon request.
EPA received 12 comments on its 2007 Supplemental Proposal.
    5. 2007 Notice of Data Availability. After the 2006 proposal, two
new studies assessing hazards associated with renovation activities
were completed. On March 16, 2007, EPA announced the availability of
these new studies in the docket for this rulemaking (Ref. 16). EPA
requested comment on how these studies might inform provisions of the
final rule. EPA received nearly 100 comments in response to its notice.
Comments specifically on the studies are discussed below. Comments on
how the studies might affect the final rule are discussed along with
the provisions of the final rule in Unit III.E. of this preamble.
    a. Characterization of Dust Lead Levels after Renovation, Repair,
and Painting Activities. EPA conducted a field study (Characterization
of Dust Lead Levels after Renovation, Repair, and Painting Activities)
(the ``Dust Study'') to characterize dust lead levels resulting from
various renovation, repair, and painting activities (Ref. 17). 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-occupied
facilities. All of the jobs disturbed more than 2 square feet of lead-
based paint, so they would not have been eligible for the minor
maintenance exception from the 2006 Proposal. The renovation activities
were conducted by local professional renovation firms, using personnel
who received lead safe work practices training using the curriculum
developed by EPA and HUD, ``Lead Safety for Remodeling, Repair, and
Painting'' (Ref. 18). The activities conducted represented a range of
activities that would be permitted under the 2006 Proposal, including
work practices that are restricted or prohibited for abatements under
40 CFR 745.227(e)(6). 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 design of the Dust Study was peer-reviewed by experts in fields
related to the study. They reviewed the design and quality assurance
plan independently and provided written comments to EPA. The results of
this peer-review are summarized in Unit 2 of the Dust Study report
(Ref. 17). In addition, the record of this peer-review, which includes
the comments from the reviewers and EPA's responses, has been placed
into the public docket for this action.
    In the Dust Study, 12 different interior and 12 different exterior
renovation activities were performed at 7 vacant target housing units
in Columbus, Ohio, and 8 vacant target housing units (including four
apartments) in Pittsburgh, Pennsylvania. Three different interior and
three different exterior renovation activities were conducted at a
building representing a child-occupied facility, a vacant school in
Columbus. The presence of lead-based paint was confirmed by laboratory
analysis before a building was assigned a particular renovation
activity or set of activities. Before interior renovation activities
were performed, the floors and windowsills in the work area and
adjacent rooms were cleaned. In most cases, pre-work cleaning resulted
in dust lead levels on floors of less than 10 [micro]g/ft\2\; nearly
all floors were less than 40 [micro]g/ft\2\ before work started. Most
windowsills that would be used for later sampling were cleaned to dust
lead levels less than 250 [micro]g/ft\2\. In the few cases where that
level was not achieved on a windowsill needed for sampling, dust
collection trays were used. Interior renovation activities included the
following jobs:
    • Making cut-outs in the walls.
    • Replacing a window from the inside.
    • Removing paint with a high temperature (greater than 1100
degrees Fahrenheit) heat gun.
    • Removing paint with a low temperature (less than 1100
degrees Fahrenheit) heat gun.
    • Removing paint by dry scraping.
    • Removing kitchen cabinets.
    • Removing paint with a power planer.
    To illustrate the impact of the containment plastic and the
specialized cleaning and cleaning verification protocol that would be
required by the 2006 Proposal, each activity was performed a minimum of
four times:
    • With the plastic containment described in the 2006
Proposal followed by the cleaning protocol described in the proposal.
    • With the plastic containment described in the 2006
Proposal followed by dry sweeping and vacuuming with a shop vacuum.
    • With no plastic containment followed by the cleaning
protocol described in the 2006 Proposal.
    • With no plastic containment followed by dry sweeping and
vacuuming with a shop vacuum.
    Dust samples were collected after the renovation work was
completed, after cleaning, and after cleaning verification. If a
building was being used again for the same job under different work

[[Page 21697]]

practices, or for a completely different job, the unit was recleaned
and retested prior to starting the next job. All buildings were cleaned
and tested after the last job.
    Geometric mean post-work, pre-cleaning floor dust lead levels in
the work room were as follows (in [micro]g/ft\2\):
    • Cut-outs--422.
    • Kitchen cabinet removal--958.
    • Low temperature heat gun--2,080.
    • Dry scraping--2,686.
    • Window replacement--3,993.
    • High temperature heat gun--7,737.
    • Power planing--32,644.
    Power planing is an activity very similar to power sanding in which
a machine that operates at high speed generating large quantities of
dust is used.
    Where baseline practices, i.e., no containment, dry sweeping, and
vacuuming with a shop vacuum, were used, the geometric mean post-job floor
dust lead levels in the work room were as follows (in [micro]g/ft\2\):
    • Cut-outs--22.
    • Kitchen cabinet removal--58.
    • Low temperature heat gun--41.
    • Dry scraping--66.
    • Window replacement--135.
    • High temperature heat gun--445.
    • Power planing--450.
    The package of proposed rule requirements, i.e., containment,
specialized cleaning, and cleaning verification, resulted in the lowest
geometric mean dust lead levels in the work room at the end of a job.
These results were as follows (in [micro]g/ft\2\):
    • Cut-outs--5.
    • Kitchen cabinet removal--12.
    • Low temperature heat gun--24.
    • Dry scraping--30.
    • Window replacement--33.
    • High temperature heat gun--36.
    • Power planing--148.
    Windowsill sample results were similar; the geometric mean dust
lead levels after renovation activities performed in accordance with
the proposed rule exceeded 250 [micro]g/ft\2\ only where power planing
or a high temperature heat gun were used. When baseline practices were
used, the geometric mean dust lead levels on the windowsills exceeded
250 [micro]g/ft\2\ for kitchen cabinet removal, window replacement,
high temperature heat gun use, and power planing.
    Exterior renovation activities performed as part of the study
included the following:
    • Replacing a door and doorway.
    • Replacing fascia boards, soffits, and other trim.
    • Removing paint with a high temperature (greater than 1100
degrees Fahrenheit) heat gun.
    • Removing paint with a low temperature (less than 1100
degrees Fahrenheit) heat gun.
    • Removing paint by dry scraping.
    • Removing paint with a needle gun.
    • Removing paint with power sanding or grinding.
    • Removing paint with a torch or open flame.
    For the exterior jobs, plastic sheeting was placed on the ground to
catch the debris and dust from the job, in accordance with the
requirements of the proposed rule. Additional plastic sheeting was laid
out beneath and beyond the ``proposed rule'' plastic. Trays to collect
dust and debris were placed on top of and underneath the ``proposed
rule'' plastic. Trays were also placed just outside of the ``proposed
rule'' plastic to assess how far the dust was spreading. A vertical
containment, as high as the work zone, was erected at the end of the
additional plastic.
    The use of the ``proposed rule'' plastic as a ground covering
captured large amounts of leaded dust. For all job types except
removing paint with a torch, there was a substantial difference between
the amount of lead captured by the ``proposed rule'' plastic and the
amount under the ``proposed rule'' plastic. Including both bulk debris
and dust, geometric mean lead levels in exterior samples from the
collection trays on top of the ``proposed rule'' plastic ranged from a
low of 60,662 [micro]g/ft\2\ for the door replacement activity to a
high of 7,216,358 [micro]g/ft\2\ for removing paint with a high
temperature heat gun. Geometric mean lead levels from the collection
trays under the ``proposed rule'' plastic ranged from a low of 32
[micro]g/ft\2\ for door replacement to 8,565 [micro]g/ft\2\ for
removing paint with a torch.
    This regulatory action was supported by the Dust Study discussed
above. Therefore, EPA conducted a peer review in accordance with OMB's
Final Information Quality Bulletin for Peer Review. EPA requested this
review from the Clean Air Scientific Advisory Committee (CASAC) Lead
Review Panel. The CASAC, which is comprised of seven members appointed
by the EPA Administrator, was established under the Clean Air Act as an
independent scientific advisory committee. The CASAC's comments on the
Dust Study, along with EPA's responses, have been placed into the
public docket for this action. More information on the CASAC
consultation process, along with background documents, is available on
EPA's website at http://www.epa.gov/lead/pubs/casac.htm.
    According to the peer review report, the CASAC Panel found
    . . .that the [Dust Study] was reasonably well-designed,
considering the complexity of the problem, and that the report
provided information not available from any other source. The study
indicated that the rule cleaning procedures reduced the residual
lead (Pb) remaining after a renovation more than did the baseline
cleaning procedures. Another positive aspect of the Dust Study was
that it described deviations from the protocol when they occurred.

The CASAC Panel also contended that the limited data from residential
housing units and child-occupied facilities included in the Dust Study,
most likely do not represent a statistically valid sample of housing at
the national level. They noted that there are aspects of the study that
would underestimate the levels of lead-loadings while other aspects of
the study would overestimate the loadings. EPA agrees that the Dust
Study is not nationally representative of all housing. EPA notes that
there are several reasons why this is the case, including the fact that
all of the housing studied was built during 1925 or earlier, and a
large number of the floors were in poor condition. A major purpose of
the Dust Study was to assess the proposed work practices. A
statistically valid sample of housing at the national level is not
needed to assess the work practices. If anything, the Dust Study is
conservative with respect to the age of housing because it studied
older houses and therefore is appropriate for assessing the
effectiveness of the work practices.
    In addition to the Dust Study which directly supported this
regulatory action, several other studies are discussed throughout the
preamble which may or may not have been peer reviewed.
    b. Lead-Safe Work Practices Survey Project. The National
Association of Home Builders (NAHB) conducted a survey that assessed
renovation and remodeling activities to measure levels of lead dust
generated by home improvement contractors (Ref. 19). The stated
objective of this survey, completed in November 2006, was to measure
the amount of lead dust generated during typical renovation and
remodeling activities and assess whether routine renovation and
remodeling activities increased lead dust levels in the work area and
on the property.
    The activities evaluated during the survey were selected in
consultation with remodeling contractors. NAHB believes that these
activities represent the most common jobs performed by renovation and
remodeling firms. The renovations were performed by professional
renovation and remodeling

[[Page 21698]]

contractors from each of the communities where the properties were
located. All of the workers who participated in this project had
previously attended and successfully completed the EPA/HUD curriculum
for Lead Safety for Remodeling, Repair, & Painting.
    According to the NAHB survey, anEPA-certified lead-based paint
inspector confirmed the presence of lead-based paint in all of the
properties considered for this survey. Previous inspection reports were
consulted if the inspections conformed to the HUD Guidelines for lead-
based paint inspections. Properties used in this survey included a
single family home in Illinois, two single-family homes and a duplex in
Connecticut, and an apartment above a storefront in Wisconsin.
    The NAHB survey evaluated the following activities:
    • Wall and ceiling removal (demolition).
    • Wall and ceiling modification.
    • Window and door removal and/or replacement (no sanding).
    • Window and door alteration (no sanding).
    • Sanding on windows and doors.
    • Kitchen or bath cabinet removal.
    • Baseboard and stair removal.
    • Surface preparation (sanding).
    • Sawing into wood and plaster.
    Activities were performed in one of three ways: Using the work
practices presented in the EPA/HUD curriculum, using modified work
practices (one or more of the dust control or cleanup methods discussed
in the EPA/HUD curriculum), or routine renovation practices.
    Area air samples were collected before, during and after the work
activity. Personal breathing zone air samples were collected during the
work activity. Dust wipe samples were collected before work started and
after final clean-up. Dust wipe samples were routinely collected from
floors near the work activity and in some cases collected from a
windowsill and/or window well.
    In comparing the mean dust lead levels before the activities with
the mean dust lead levels after the activities, the NAHB concluded that
the renovation activities surveyed did not create new lead dust hazards
overall. However, even after clean-up was conducted, over half of the
60 individual renovation activities studied resulted in an increase in
dust lead levels on at least one surface. In most cases, the increase
was considerably greater than the regulatory dust-lead hazard standard
for that surface.
    6. Statutory finding and regulatory approach--TSCA section
402(c)(3) determination. TSCA section 402(c)(3) directs EPA to revise
the regulations issued under TSCA section 402(a), the Lead-based Paint
Activities Regulations, to apply to renovation or remodeling activities
that create lead-based paint hazards. EPA finds that renovation,
repair, and painting activities that disturb lead-based paint create
lead-based paint hazards. This finding is based upon EPA's
Environmental Field Sampling Study and corroborated by the Dust Study
and the NAHB survey (Refs. 11, 17, and 19).
    In the 2006 Proposal, EPA proposed 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. EPA's proposed conclusions were based upon the
results of the Environmental Field Sampling Study, which examined, on a
variety of components using a variety of tools and methods, activities
that EPA had determined were representative of the paint-disturbing
activities that typically occur during renovations. The activities were:
    • Paint removal by abrasive sanding.
    • Window replacement.
    • HVAC duct work.
    • Demolition of interior plaster walls.
    • Drilling into wood.
    • Drilling into plaster.
    • Sawing into wood.
    • Sawing into plaster.
    Specifically, EPA proposed to conclude that all of the activities
studied in the Environmental Field Sampling Study, with the exception
of drilling into plaster, can create lead-based paint hazards. With
respect to drilling into plaster, where lead-based paint is present,
EPA proposed to conclude that this activity can reasonably be
anticipated to create lead-based paint hazards. The Environmental Field
Sampling Study found that, with the exception of drilling into plaster,
all renovation and remodeling activities, when conducted where lead-
based paint is present, generated lead loadings on floors at a distance
of 5 to 6 feet from the activity that exceeded EPA's dust-lead hazard
standard of 40 [micro]g/ft\2\. However, upon further review, it is
apparent that the study also found that drilling into plaster created
dust lead levels in the immediate vicinity of the activity that
exceeded the dust-lead hazard standard. Thus, all the activities
studied did in fact create lead-based paint hazards.
    The 2006 Proposal cited the other phases of the TSCA section
402(c)(2) renovation and remodeling study to support EPA's proposed
determination that any renovation, remodeling, or painting activity
that disturbs lead-based paint can be reasonably anticipated to create
lead-based paint hazards. Phase III, the Wisconsin Childhood Blood-Lead
Study, found that children who live in homes where renovation and
remodeling activities were performed within the past year are 30% more
likely to have a blood lead-level that equals or exceeds 10 μg/dL,
the level of concern established by CDC, than children living in homes
where no such activity has taken place recently. Phases II and IV of
the study, which evaluated worker exposures from renovation and
remodeling activities, provide additional documentation of the
significant and direct relationship between blood-lead levels and the
conduct of certain renovation and remodeling activities. Phase II found
a statistically significant association between increased blood lead
levels and the number of days spent performing general renovation and
remodeling activities, paint removal, and cleanup in pre-1950 buildings
in the past month. Phase IV of the study found that persons performing
renovation and remodeling activities in old historic buildings are more
likely to have elevated blood lead levels than persons in the general
population of renovation and remodeling workers.
    In light of EPA's proposed determination, the 2006 Proposal
included revisions to the existing Lead-based Paint Activities
Regulations to extend them to renovation, remodeling, and painting
activities in target housing, with certain exceptions. In proposing to
extend these regulations to renovation, remodeling, and painting
activities in child-occupied facilities, the 2007 Supplemental Proposal
incorporated the proposed TSCA section 402(c)(3) determination.
    Since the 2006 Proposal, EPA conducted the Dust Study and NAHB
submitted the results of their survey. The results of the Dust Study
confirm that renovation and remodeling activities that disturb lead-
based paint create lead-based paint hazards. The Dust Study evaluated a
number of common renovation activities, including replacing windows,
removing kitchen cabinets, cutting into walls, and removing paint by
high and low temperature heat guns, power tools, and dry scraping. The
geometric mean post-work dust lead levels on work room floors ranged
from a low of 422 [micro]g/ft\2\, or 10 times the dust-lead hazard

[[Page 21699]]

standard for floors, for cut-outs, to a high of 32,644 [micro]g/ft\2\
for power planing. Thus, all of the activities evaluated in the Dust
Study created floor dust lead levels that exceeded 40 [micro]g/ft\2\,
one of the measures that, in 40 CFR 745.65, defines a lead-based paint
hazard. It is more difficult to evaluate the effect of disturbing lead-
based paint in the NAHB Survey, since the survey did not involve
collecting samples after work had been performed but before the post-
renovation cleaning had begun. Nevertheless, even after post-renovation
cleaning using a variety of methods, in more than half of the 60
experiments performed in this survey, the post-cleaning dust wipe
sample results for at least one surface showed an increase greater than
the TSCA section 403 hazard standard over pre-work levels. These
experiments showing increased dust lead levels cover the range of
activities evaluated in the NAHB Survey.
    Therefore, in this action, EPA is issuing its determination that
renovation, repair, and painting activities that disturb lead-based
paint create lead-based paint hazards. Because the evidence shows that
all such activities in the presence of lead-based paint create lead-
based paint hazards, EPA is modifying its proposed finding, which
distinguished between activities that create lead-based paint hazards
and those that can reasonably be anticipated to create lead-based paint
hazards, and instead concludes that renovation activities that disturb
lead-based paint create lead-based paint hazards. Indeed, no commenter
submitted data indicating that any renovation, repair, or painting
activity should be exempt from regulation because it does not create
lead-based paint hazards.
    EPA received a large number of comments on this proposed finding.
Many expressed support for EPA's determination that any renovation,
repair, or painting activity that disturbs lead-based paint creates
lead-based paint hazards. Some commenters, while expressing their
support for this determination, also opined that the regulatory dust-
lead hazard standards for floors and windowsills are too high. These
commenters argued that recent scientific evidence shows that children
experience adverse health effects at lower blood lead levels than
previously thought, and since EPA's regulatory dust-lead hazard
standards were set with reference to a blood lead level of 10 μg/dL,
the CDC level of concern, the dust-lead hazard standards must be
lowered. EPA agrees that recent studies demonstrate that neurocognitive
effects occur at blood lead levels below the current CDC level of
concern. In fact, EPA's most recent Air Quality Criteria for Lead
document, issued in October, 2006, describes several epidemiologic
studies published in the last 5 years that observed significant lead-
induced IQ decrements in children with some effects observed at blood
lead levels of 5 μg/dL and lower (Ref. 1). The document also notes
that other recent studies observed significant associations at low
blood-lead levels for other neurotoxicity endpoints in addition to IQ,
such as arithmetic and reading scores, attentional behavior, and
neuromotive function. However, EPA is not addressing the
appropriateness of the existing dust-lead hazard standards in this
rulemaking. The original hazard standards were set through a separate
rulemaking process under TSCA section 403 that allowed for input from
all of the parties that would be affected by the standards.
Furthermore, EPA is concerned that a full review of the available
evidence and other considerations affecting the hazard standards as
part of this rulemaking would result in a significant delay in
promulgating training, certification, and work practice standards for
renovation activities. EPA did not propose to modify the TSCA section
403 hazard standard levels in this rulemaking and has not undertaken
the significant analyses that would need to be performed in order to
establish different standards. Accordingly, EPA is not able, in this
final rule, to modify the regulatory hazard standard. In any event,
since EPA finds that renovation activities that disturb lead-based
paint create lead-paint hazards, lowering the hazard standard would not
affect EPA's finding.
    Some commenters objected to EPA's proposed determination that
renovation, repair, or painting activities that disturb lead-based
paint create lead-based paint hazards. Some commenters interpreted
EPA's statutory authority to regulate renovation and remodeling under
TSCA section 402(c)(3) as being limited to those renovation and
remodeling activities for which EPA can prove a link between the
activity and the blood lead action level established by CDC for public
health intervention. These commenters contend that the failure to prove
such a link means that renovation and remodeling activities do not
create lead-based paint hazards. This interpretation is not supported
by the plain language of the statute. TSCA section 402(c)(3) requires
EPA to regulate renovation and remodeling activities that create lead-
based paint hazards. The term ``lead-based paint hazard'' is defined in
TSCA section 401 as ``any condition that causes exposure to lead from
lead-contaminated dust . . . that would result in adverse human health
effects as established by the Administrator under this subchapter.''
TSCA section 403 directs EPA to promulgate regulations which
``identify, for purposes of this subchapter and the Residential Lead-
Based Paint Hazard Reduction Act of 1992, lead-based paint hazards,
lead-contaminated dust, and lead-contaminated soil.'' The TSCA section
403 regulations define dust-lead hazards as levels that equal or exceed
40 [micro]g/ft\2\ of lead on floors or 250 [micro]g/ft\2\ of lead on
interior windowsills. Therefore, EPA interprets TSCA as directing it to
regulate renovation and remodeling activities if such activities create
dust lead levels that exceed the standards for dust-lead hazards
established under TSCA section 403. Again, the Environmental Field
Sampling Study, the Dust Study, and the NAHB survey all demonstrate
that renovation and remodeling activities that disturb lead-based paint
create dust lead levels that exceed the hazard standards in 40 CFR 745.65.
    EPA also interprets the scientific evidence for a link between
renovations and the CDC blood lead action level differently than do
these commenters. 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. 13). 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. Some of
the commenters on this rule focused on Table 3-13 in the study report
and cited that as evidence that work performed by paid professional
renovators does not create a statistically significant risk of an
elevated blood-lead level in a resident child.EPA agrees that this
table, which presents the results of analyses using one of the sets of
models used to interpret study data, indicates that, with respect to
the persons performing the work, the only statistically significant
result associated with increased risk of

[[Page 21700]]

elevated blood lead levels was work performed by a relative or friend
not in the household. Work performed by professional renovators was
associated with an increased risk of an elevated blood lead level, but
the association was not statistically significant. As explained more
fully in a memorandum summarizing additional analyses of the data from
this study (Ref. 20), this table does not indicate that professional
contractors were not responsible for creating lead exposure hazards.
Rather, it indicates that renovation activities performed by
professional contractors are no more or less hazardous than renovation
activities performed by most of the other categories of persons
identified in the survey responses collected as part of the study. It
is also important to note that, while these commenters focus on a
blood-lead level of 10 μg/dL as a threshold, this level is not and
has not been considered by CDC or EPA as a threshold for adverse effects.
    One commenter also dismissed the two studies from New York that EPA
cited as supporting 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 μg/dL identified
320, or 6.9%, with elevated blood lead levels that were attributable to
renovation and remodeling (Ref. 21). The commenter noted that this
study suffered from a number of limitations, including the fact that it
was not a case-control study; i.e., the group of children with elevated
blood lead levels attributed to renovation and remodeling was not
compared with a similar group of households that had not undergone
renovation during the period. EPA agrees that this is an important
limitation of this study. However, with respect to the other
limitations noted by this commenter, the authors of the report felt
that most of these limitations would likely result in an
underestimation of the burden of lead exposure associated with
renovation and remodeling.
    The other study cited by EPA as supporting the Wisconsin Childhood
Blood-Lead Study conclusions 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. 22).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. 13, at 509). EPA
notes that this confirms that keeping visible dust and debris contained
to the work area is important for limiting children exposures to lead
dust, rather than providing substantial arguments for the effectiveness
of visual inspection.
    In sum, EPA's finding that renovation and remodeling activities
create lead-based paint hazards is not dependent upon establishing a
correlation between such activities and elevated blood lead levels.
Rather, it rests on the fact that, as demonstrated by EPA's
Environmental Field Sampling Study, EPA's Dust Study, and by the NAHB
Survey, such activities create lead-based paint hazards as defined by
EPA regulations. Moreover, EPA disagrees that there is no scientific
support for establishing a relationship between elevated blood lead
levels in children and renovation activities. While EPA interprets
these studies as supporting such a relationship and believes these
studies further support its finding, it is not a determinative factor.
    b. EPA's approach to this final rule. Given EPA's determination
that renovation, repair, and painting activities that disturb lead-
based paint create lead-based paint hazards, TSCA section 402(c)(3)
directs EPA to revise the Lead-based Paint Activities Regulations to
apply to these activities. EPA does not interpret its statutory mandate
to require EPA to apply the existing TSCA section 402(a) regulations to
renovations without change. By using the word ``revise,'' and creating
a separate subsection of the statute for renovation, EPA believes that
Congress intended that EPA make revisions to those existing regulations
to adapt them to a very different regulated community. As discussed
below, there are significant differences between renovations and
abatements. Accordingly, this final rule does not merely expand the
scope of the current abatement requirements to cover renovation and
remodeling activities. Rather, EPA has carefully considered the
elements of the existing abatement regulations and revised them as
necessary to craft a 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). Specifically, the Agency concludes that the training,
containment, cleaning, and cleaning verification requirements in this
final rule rule achieve the goal of minimizing exposure to lead-based
paint hazards created during renovation, remodeling and painting
activities, taking into account reliability, effectiveness, and safety.
    In taking safety into account, EPA looked to the statutory
directive to regulate renovation activities that create lead-based
paint hazards. Although there is no known level of lead exposure that
is safe, EPA does not believe the intent of Congress was to require
elimination of all possible risk arising from a renovation. Nor does
TSCA explicitly require EPA to eliminate all possible risk from lead,
nor would it be feasible to do so since lead is a component of the
earth. Rather, it directs EPA to regulate renovation and remodeling
activities that create lead-based paint hazards. Given that the trigger
for regulating renovation and remodeling activities is the creation of
lead-based paint hazards--which EPA has identified in a separate
rulemaking pursuant to TSCA section 403--EPA believes taking safety
into account in this context is best interpreted with reference to
those promulgated hazard standards. If taking safety into account
required a more stringent standard, as suggested by some commenters,
the potential would be created for a scheme under which any renovation
activities found not to create hazards are not regulated at all,
whereas renovation activities found to create hazards trigger
requirements designed to leave the renovation site cleaner than the
unregulated renovations. EPA's interpretation is supported by the broad
Congressional intent that the section 403 hazard standards apply for
purposes of subchapter IV of TSCA. It is also consistent with EPA's
approach in its abatement regulations, which require post-abatement
cleaning to dust-lead

[[Page 21701]]

clearance levels that are numerically equal to the TSCA section 403
hazard standards levels. It would be anomalous to impose a more
stringent safety standard in the renovation context than in the
abatement context, where the express purpose of the regulated
activities is to abate lead-based paint hazards. Therefore, in taking
into account safety, this final rule regulates renovation and
remodeling activities relative to the TSCA section 403 hazard standard,
with the purpose of minimizing exposure to such hazards created during
renovation and remodeling activities.
    Additionally, EPA has interpreted practicality in implementation to
be an element of the statutory directive to take into account
effectiveness and reliability. In particular, EPA believes that given
the highly variable nature of the regulated community, the work
practices required by this rule should be simple to understand and easy
to use. EPA is very aware that this regulation will apply to a whole
range of individuals from day laborers to property maintenance staff to
master craftsmen performing a whole range of activities from simple
drywall repair to window replacement to complete kitchen and bath
renovations to building additions and everything in between. Work
practices that are easy and practical to use are more likely to be
followed by all of the persons who perform renovations, and, therefore,
more likely to be reliable and effective in minimizing exposure to
lead-based paint hazards created by renovation activities.
    One of the biggest challenges facing EPA in revising the TSCA
section 402(a) Lead-based Paint Activities Regulations is how to
effectively bridge the differences between abatement and renovation and
remodeling while acknowledging that many of the dust generating
activities are the same. Abatements are generally performed in three
circumstances. First, an abatement may be performed in the residence of
a child who has been found to have an elevated blood lead level.
Second, abatements are performed in housing receiving HUD financial
assistance when required by HUD's Lead-Safe Housing Rule. Third, state
and local laws and regulations may require abatements in certain
situations associated with rental housing. 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 difficult to demonstrate that it is free of
lead-based paint hazards. 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 and lead-based paint hazards.
    On the other hand, renovations are performed for a myriad of
reasons, most having 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.
    Further, performing abatement is a highly specialized skill that
workers and supervisors must learn in training courses accredited by
EPA or authorized States, Territories, and Tribes. In contrast, EPA is
not interested in teaching persons how to be painters, plumbers, or
carpenters. Rather, EPA's objective is to ensure that persons who
already know how to perform renovations perform their typical work in a
lead-safe manner.
    Nevertheless, as pointed out by some commenters, abatement and
renovation have some things in common. For example, as noted by one
commenter, window replacement may be performed as part of an abatement
to remove the lead-based paint and lead-based paint hazards on the
existing window, or it may be performed as part of a renovation
designed to improve the energy efficiency of the building. In many
cases, the window replacement as abatement and the window replacement
as renovation will generate the same amount of leaded dust.
    Another consideration is that while renovation activities
undoubtedly create lead-based paint hazards, without results from dust
wipe samples collected immediately before the renovation commences,
there is no way to tell what portion of the lead dust remaining on the
surface was contributed by the renovation. In addition, as a practical
matter, once dust-lead hazards commingle with pre-existing hazards,
there is no functional way to distinguish between those created by the
renovation activity and any pre-existing dust-lead hazards. However,
the Dust Study shows that the combination of training, containment,
cleaning and cleaning verification required by this rule is effective
at reducing dust lead levels below the dust-lead hazard standard. While
the requirements of this rule will, in some cases, have the ancillary
benefit of removing some pre-existing dust-lead hazards, these
requirements are designed to effectively clean-up the lead-based paint
hazards created during renovation activities without changing the scope
of the renovation activity itself. The intent of this final rule is not
to require cleanup of pre-existing contamination.
    For example, the rule does not require cleaning of dust or any
other possible lead sources in portions of target housing or child-
occupied facilities beyond the location in and around the work area.
Nor does this rule require the replacement of carpets in the area of
the renovation or the refinishing or sealing of uncarpeted floors. The
approach in this final rule is designed to address the lead-based paint
hazards created during the renovation while not requiring renovators to
remediate or eliminate hazards that are beyond the scope of the work
they were hired to do.
    In addition, EPA has made a concerted effort to keep the costs and
burdens associated with this rule as low as possible, while still
providing adequate protection against lead-based paint hazards created
by renovation activities. Indeed, as part of this rulemaking EPA has,
as directed by TSCA section 2(c), considered the environmental,
economic, and social impact of this rule. Nonetheless, many commenters
expressed concerns over the potential unintended consequences of this
rulemaking. These commenters argued that atoo-burdensome rule will
result in more renovations by noncompliant renovators, and more do-it-
yourself renovations, both of which are likely to be more hazardous
than renovations by certified professional renovation firms using
certified renovators who follow the work practice requirements of the
rule. These commenters were also concerned about deferred property
maintenance which can be hazardous for many reasons, including lead-
based paint issues. For example, one commenter pointed out that a
renovation project that replaces old lead-based paint covered windows
with new ones that have no lead-based paint may, as a by-product, reduce
lead hazards, and the rule should not work to discourage this activity.
    On the other hand, one commenter argued that increased do-it-
yourself activity is an unlikely byproduct of this rule because
consumers are not only opting to hire or not hire contractors based on
factors such as cost, convenience, and perceived quality, but,

[[Page 21702]]

even more importantly, their own proclivity towards performing
renovation work. According to the commenter, the fact that the work
practices required by this rule may result in slight cost increases is
unlikely to motivate homeowners to perform their own renovations. This
commenter also felt that the sooner that protective approaches become
the accepted standard of care for renovation work by contractors
receiving compensation, the sooner do-it-yourselfers and the do-it-yourself
literature and training supports will adopt the same protective approaches.
    It is difficult to determine with any amount of certainty whether
this final rule will have unintended consequences. However, EPA agrees
that it is important to minimize disincentives for using certified
renovation firms who follow the work practices required by this rule.
EPA also agrees that practicality is an important consideration. Given
the relatively low estimated overall average per-job cost of this final
rule, which is $35, and the relatively easy-to-use work practices
required by this final rule, EPA does not expect the incremental costs
associated with this rule to be a determinative factor for consumers.
However, that relatively low cost has resulted in part from EPA's
efforts to contain the costs of this rule in order to avoid creating
disincentives to using certified renovation firms, and EPA has viewed
the comments received with those considerations in mind.
    With respect to the comment regarding the standard of care for do-
it-yourselfers, EPA also plans to conduct an outreach and education
campaign aimed at encouraging homeowners and other building owners to
follow work practices while performing renovations or hire a certified
renovation firm to do so.
    7. Summary of the final rule. This section summarizes the final
rule in general terms. For more information, consult Unit III. below,
which describes each provision in detail, discusses any changes from
the proposal, and reviews the comments received.
    a. Definitions and scope. This final rule applies to renovations
for compensation in target housing and child-occupied facilities. TSCA
section 401 defines ``target housing'' as any housing constructed prior
to 1978, except housing for the elderly or persons with disabilities
(unless any child who is less than 6 years of age resides or is
expected to reside in such housing for the elderly or persons with
disabilities) or any 0-bedroom dwelling. This rule contains the
following definition of ``child-occupied facility'':
    Child-occupied facility'' means a building, or 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 include, but are not limited
to, day care centers, preschools and kindergarten classrooms. Child-
occupied facilities may be located in target housing or in public or
commercial buildings. With respect to common areas in public or
commercial buildings that contain child-occupied facilities, the
child-occupied facility encompasses only those common areas that are
routinely used by children under age 6, such as restrooms and
cafeterias. Common areas that children under age 6 only pass
through, such as hallways, stairways, and garages are not included.
In addition, with respect to exteriors of public or commercial
buildings that contain child-occupied facilities, the child-occupied
facility encompasses only the exterior sides of the building that
are immediately adjacent to the child-occupied facility or the
common areas routinely used by children under age 6.

    TSCA does not define the terms ``renovation'' or ``remodeling,''
but this final rule builds upon the definition of ``renovation''
already established by the regulations promulgated under TSCA section
406(b). This rule defines ``renovation'' as follows:
    ``Renovation'' means the modification of any existing structure, or
portion thereof, that results in the disturbance of painted surfaces,
unless that activity is performed as part of an abatement as defined by
this part (40 CFR 745.223). The term renovation includes (but is not
limited to): The removal, modification or repair of painted surfaces or
painted components (e.g., modification of painted doors, surface
restoration, window repair, surface preparation activity (such as
sanding, scraping, or other such activities that may generate paint
dust)); the removal of building components (e.g., walls, ceilings,
plumbing, windows); weatherization projects (e.g., cutting holes in
painted surfaces to install blown-in insulation or to gain access to
attics, planing thresholds to install weather-stripping), and interim
controls that disturb painted surfaces. A renovation performed for the
purpose of converting a building, or part of a building, into target
housing or a child-occupied facility is a renovation under this
subpart. The term renovation does not include minor repair and
maintenance activities.
    This final rule excludes some of the same projects that are
excluded by the TSCA section 406(b) regulations, such as lead-based
paint abatement projects and renovations affecting components that have
been found to be free of lead-based paint. To be eligible for the
latter exception, the components must be determined to be free of lead-
based paint by a certified inspector or risk assessor, or by a
certified renovator using an EPA-approved test kit. Emergency projects
would continue to be exempt from the lead hazard information
distribution requirements, but the clean-up after the project must meet
the requirements of this regulation, and compliance with the training,
certification, warning sign, and containment requirements of this
regulation is required to the extent practicable. Minor maintenance
projects that disturb no more than 6 square feet of painted surface per
room for interiors or no more than 20 square feet of painted surface
for exteriors are also exempt, so long as no work practices prohibited
or restricted by this final rule are used, the renovation does not
involve window replacement and there is no demolition of painted areas.
Finally, this regulation contains an exception for renovations in
owner-occupied target housing where no child under age 6 or pregnant
woman resides, so long as the housing does not meet the definition of
``child-occupied facility.'' To claim this exception, the renovation
firm must obtain, before beginning the renovation, a signed statement
from the owner of the housing that states that the person signing is
the owner of the housing to be renovated, that he or she resides there,
that no child under age 6 or pregnant woman resides there, that the
housing is not a child-occupied facility, and that the owner
understands that the renovation firm will not be required to use the
work practices contained in this rule.
    b. Pre-Renovation Education Rule. As described in greater detail in
a separate notice published elsewhere in today's Federal Register, EPA
has developed a new renovation-specific lead hazard information
pamphlet intended for use in fulfilling the requirements of the Pre-
Renovation Education Rule, 40 CFR part 745, subpart E. This final rule
requires firms performing renovations for compensation in target
housing and child-occupied facilities to distribute this new pamphlet
before beginning renovations to the owners and occupants of target
housing, owners of public or commercial buildings that contain a child-
occupied facility, and the proprietor of the child-occupied facility,
if different, and to provide general information on the renovation

[[Page 21703]]

and the pamphlet to, or make it available to, parents or guardians of
children under age 6 using the child-occupied facility. This can be
accomplished by mailing or hand-delivering the general information on
the renovation and the pamphlet to the parents and guardians or by
posting informational signs containing general information on the
renovation in areas where the signs can be seen by the parents or
guardians of the children frequenting the child-occupied facility. The
signs must be accompanied by a posted copy of the pamphlet or
information on how interested parents or guardians can review a copy of
the pamphlet or obtain a copy from the renovation firm at no cost to
the parents or guardians. For renovations in the common areas of multi-
unit target housing, similar notification options are available to
firms. They must provide tenants with general information regarding the
nature of the renovation by mail, by hand-delivery, or by posting
signs, and must also make this new pamphlet available upon request.
Firms must maintain documentation of compliance with these requirements.
    c. Training, accreditation, and certification. This final rule
contains training requirements leading to certification for
``renovators''--individuals who perform and direct renovation
activities--and ``dust sampling technicians''--individuals who perform
dust sampling not in connection with an abatement. Requirements for
each of these courses of study are described in detail, and a hands-on
component is required. Training providers who wish to provide training
to renovators and dust sampling technicians for Federal certification
purposes must apply for and receive accreditation from EPA following
the same procedures that training providers who offer lead-based paint
activities training now use to become accredited by EPA. Providers of
renovation training must follow the same requirements for program
operation as training providers who offer lead-based paint activities
training. For example, renovation training programs must have adequate
facilities and equipment for delivering the training, a training
manager with experience or education in a construction or environmental
field, and a principal instructor with experience or education in a
related field and education or experience in teaching adults. To become
accredited to provide training for renovators and dust sampling
technicians, a provider must submit an application for accreditation to
EPA. The application must include the following items:
    • The course materials and syllabus, or a statement that EPA
model materials or materials approved by an authorized State or Tribe
will be used.
    • A description of the facilities and equipment that will be used.
    • A copy of the test blueprint for each course.
    • A description of the activities and procedures that will
be used during the hands-on skills portion of each course.
    • A copy of the quality control plan.
    • The correct amount of fees.
    Training programs that submit a complete application and meet the
requirements for faculty, facilities, equipment, and course and test
content will be accredited for 4 years. To maintain accreditation, the
training program must submit an application and the correct amount of
fees every 4 years. EPA is not establishing the required fees in this
rulemaking. EPA intends to publish a proposed fee schedule for public
comment shortly. Accredited renovation training programs must also
comply with the existing notification and recordkeeping requirements
for lead-based paint activities training programs at 40 CFR
745.225(c)(13) and 40 CFR 745.225(i), respectively, by notifying EPA
before and after providing renovation training and by maintaining
records of course materials, course test blueprints, information on how
hands-on training is delivered, and the results of the students' skills
assessments and course tests.
    Each renovation project covered by this final rule must be
performed and/or directed by an individual who has become a certified
renovator by successfully completing renovator training from an
accredited training provider. The certified renovator is responsible
for ensuring compliance with the work practice standards of this final
regulation. The certified renovator must perform or direct certain
critical tasks during the renovation, such as posting warning signs,
establishing containment of the work area, and cleaning the work area
after the renovation. These and other renovation activities may be
performed by workers who have been provided on-the-job training in
these activities by a certified renovator. However, the certified
renovator must be physically present at the work site while signs are
being posted, containment is being established, and the work area is
being cleaned after the renovation to ensure that these tasks are
performed correctly. Although the certified renovator is not required
to be on-site at all times, while the renovation project is ongoing, a
certified renovator must nonetheless regularly direct the work being
performed by other workers to ensure that the work practices are being
followed. When a certified renovator is not physically present at the
work site, the workers must be able to contact the renovator
immediately by telephone or other mechanism. In addition, the certified
renovator must perform the post-renovation cleaning verification. This
task may not be delegated to workers with on-the-job training. To
maintain certification, a renovator must successfully complete an
accredited renovator refresher training course every 5 years.
    Renovations must be performed by certified firms. The certification
requirements for renovation firms are identical to the certification
requirements for firms that perform lead-based paint activities, except
that renovation firm certification lasts for 5 years instead of 3
years.A firm that wishes to become certified to perform renovations
must submit an application, along with the correct amount of fees,
attesting that it will assign a certified renovator to each renovation
that it performs, that it will use only certified or properly trained
individuals to perform renovations, and that it will follow the work
practice standards and recordkeeping requirements in this regulation.
EPA will certify any firm that meets these requirements unless EPA
determines that the environmental compliance history of the firm, its
principals, or its key employees demonstrates an unwillingness or
inability to maintain compliance with environmental statutes or
regulations. To maintain certification, the firm must submit an
application and the correct amount of fees every 5 years. As noted
above, EPA will establish the required fees in a subsequent rulemaking.
    d. Work practice standards. This final rule contains a number of
work practice requirements that must be followed for every covered
renovation in target housing and child-occupied facilities. 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. The firm must ensure compliance
with these work practices. Although the certified renovator is not
required to be on-site at all times, while the renovation project is
ongoing, a certified renovator must nonetheless regularly direct the
work being performed by other workers to ensure that the work practices
are being

[[Page 21704]]

followed. When a certified renovator is not physically present at the
work site, the workers must be able to contact the renovator
immediately by telephone or other mechanism.
    i. Warning signs and work area containment. Before beginning a
covered renovation, the certified renovator or a worker under the
direction of the certified renovator must post signs outside the area
to be renovated warning occupants and others not involved in the
renovation to remain clear of the area. In addition, the certified
renovator or a worker under the direction of the certified renovator
must also contain the work area so that dust or debris does not leave
the area while the work is being performed. At a minimum, containment
for interior projects must include:
    • Removing or covering all objects in the work area with
plastic or other impermeable material.
    • Closing and covering all forced air HVAC ducts in the work
area with plastic or other impermeable material.
    • Closing all windows in the work area.
    • Closing and sealing all doors in the work area with
plastic or other impermeable material.
    • Covering the floor surface, including installed carpet,
with taped-down plastic sheeting or other impermeable material in the
work area 6 feet beyond the perimeter of surfaces undergoing renovation
or a sufficient distance to contain the dust, whichever is greater.
Doors within the work area that will be used while the job is being
performed must be covered with plastic sheeting or other impermeable
material in a manner that allows workers to pass through while
confining dust and debris to the work area. In addition, all personnel,
tools, and other items, including the exterior of containers of waste,
must be free of dust and debris when leaving the work area. There are
several ways of accomplishing this. For example, tacky mats may be put
down immediately adjacent to the plastic sheeting covering the work
area floor to remove dust and debris from the bottom of the workers'
shoes as they leave the work area, workers may remove their shoe covers
(booties) as they leave the work area, and clothing and materials may be
wet-wiped and/or HEPA-vacuumed before they are removed from the work area.
    At a minimum, containment for exterior projects must include:
    • Covering the ground with plastic sheeting or other
disposable impermeable material extending 10 feet beyond the perimeter
of surfaces undergoing renovation or a sufficient distance to collect
falling paint debris, whichever is greater, unless the property line
prevents 10 feet of such ground covering.
    • Closing all doors and windows within 20 feet of the
outside of the work area on the same floor as the renovation and
closing all doors and windows on the floors below that area.
    In certain situations, such as where other buildings are in close
proximity to the work area, when conditions are windy, or where the
work area abuts a property line, the certified renovator or a worker
under the direction of the certified renovator performing the
renovation may have to take extra precautions to prevent dust and
debris from leaving the work area as required by the regulation. This
may include erecting a system of vertical containment designed to
prevent dust and debris from migrating to adjacent property or
contaminating the ground, other buildings, or any object beyond the
work area. In addition, doors within the work area that will be used
while the job is being performed must be covered with plastic sheeting
or other impermeable material in a manner that allows workers to pass
through while confining dust and debris to the work area.
    ii. Waste management. The certified renovator or a worker trained
and directed by a certified renovator must, at the conclusion of each
work day, store any collected lead-based paint waste from renovation
activities under containment, in an enclosure, or behind a barrier that
prevents release of dust and debris and prevents access to the waste.
In addition, the certified renovator or a worker under the direction of
the certified renovator transporting lead-based paint waste from a work
site must contain the waste to prevent identifiable releases. With
regard to the lead-based paint waste generated by renovations in
housing units, Unit IV.D.2. of the preamble to the 2006 Proposal
describes how a clarification of the hazardous waste exclusion in 40
CFR 261.4(b)(1) means that residential lead-based paint waste may be
disposed of in municipal solid waste landfill units, as long as the
waste is generated during abatement or renovation and remodeling
activities in households. Also discussed in the preamble to the 2006
Proposal is a subsequent amendment to the waste regulations promulgated
under the Resource Conservation and Recovery Act (RCRA) that allows
construction and demolition (C&D) landfills to accept residential lead-
based paint waste.
    iii. Cleaning. This final rule contains a number of specific
cleaning steps that the certified renovator or a worker under the
direction of the certified renovator must follow after performing a
covered renovation. Upon completion of renovation activities, all paint
chips and debris must be picked up. Protective sheeting must be misted
and folded dirty side inward. Sheeting used to isolate the work area
from other areas must remain in place until after the cleaning and
removal of other sheeting; this sheeting must be misted and removed
last. Removed sheeting must either be folded and taped shut to seal or
sealed in heavy-duty bags and disposed of as waste.
    After the sheeting has been removed from the work area, the entire
area must be cleaned, including the adjacent surfaces that are within 2
feet of the work area. The walls, starting from the ceiling and working
down to the floor, must be vacuumed with a HEPA vacuum or wiped with a
damp cloth. This final rule requires that all remaining surfaces and
objects in the work area, including floors, furniture and fixtures, be
thoroughly vacuumed with a HEPA-equipped vacuum. When cleaning carpets,
the HEPA vacuum must be equipped with a beater bar to aid in dislodging
and collecting deep dust and lead from carpets. Where feasible, floor
surfaces underneath area rugs must also be thoroughly vacuumed with a
HEPA vacuum.
    After vacuuming, all surfaces and objects in the work area, except
for walls and carpeted or upholstered surfaces, must be wiped with a
damp cloth. Uncarpeted floors must be thoroughly mopped using a 2-
bucket mopping method that keeps the wash water separate from the rinse
water, or using a wet mopping system with disposable absorbent cleaning
pads and a built-in mechanism for distributing or spraying cleaning
solution from a reservoir onto a floor.
    For cleaning following an exterior renovation, this final rule
requires all paint chips and debris to be picked up. Protective
sheeting must be misted and folded dirty side inward. Removed sheeting
must be either folded and taped shut to seal or sealed in heavy-duty
bags and disposed of as waste.
    iv. Post-renovation cleaning verification. This final rule requires
a certified renovator to perform a visual inspection of the work area
after the cleaning steps outlined in the previous subsection. This
visual inspection is for the purpose of determining whether dust,
debris, or other residue is present in the work area. If dust, debris,
or other residue remains in the work area, the dust, debris, or other
residue must be

[[Page 21705]]

removed by re-cleaning and another visual inspection must be performed.
    When an exterior work area passes the visual inspection, the
renovation has been properly completed and the warning signs may be
removed. When an interior work area passes the visual inspection, an
additional cleaning verification step is required. A certified
renovator assigned to the renovation project must use disposable
cleaning cloths to wipe the windowsills, countertops, and uncarpeted
floors in the work area. These cloths must then be compared to a
cleaning verification card. For each cloth that matches or is lighter
than the cleaning verification card, the corresponding windowsill,
countertop, or floor area is considered to have passed the post-
renovation cleaning verification. In contrast to the 2006 Proposal,
this final rule limits this requirement to two wet cloths and one dry
cloth. After the first dry cloth, that surface will be considered to
have passed post-renovation cleaning verification. When all
windowsills, countertops, and floor areas in the work area have passed
post-renovation cleaning verification, the warning signs may be
removed. More information on the post-renovation cleaning verification
procedure and the underlying studies can be found in Unit IV.E. of the
preamble to the 2006 Proposal and in Unit III.E.7. of this preamble.
    In contrast to the 2006 Proposal, this final rule does not allow
dust clearance sampling in lieu of post-renovation cleaning
verification, except in cases where the contract between the renovation
firm and the property owner or another Federal, State, Territorial,
Tribal, or local regulation requires dust clearance sampling by a
certified sampling professional and requires the renovation firm to
clean the work area until it passes clearance.
    e. State, Territorial, and Tribal programs. This final rule also
contains provisions for interested States, Territories, and Tribes to
apply for and receive authorization to administer their own renovation,
repair and painting programs in lieu of the proposed regulation.
States, Territories and Tribes may choose to administer and enforce
just the existing requirements of subpart E, the pre-renovation
education elements, the training, certification, accreditation, work
practice, and recordkeeping requirements of this final rule, or both.
EPA will use the same process used for lead-based paint activities
programs, along with proposed specific renovation program elements, to
authorize State, Territorial, and Tribal programs.
    States, Territories, and Tribes seeking authority to administer and
enforce renovation programs must obtain public input and then submit an
application to EPA. Applications must contain a number of items,
including a description of the State, Territorial, or Tribal program,
copies of all applicable statutes, regulations, and standards, and a
certification by the State Attorney General, Tribal Counsel, or an
equivalent official, that the applicable legislation and regulations
provide adequate legal authority to administer and enforce the program.
The program description must demonstrate that the State, Territorial,
or Tribal program is at least as protective as the Federal program and
that it provides for adequate enforcement.
    To be eligible for authorization to administer and enforce
renovation programs, State, Territorial, and Tribal renovation programs
must contain certain minimum elements that are very similar to the
minimum elements required for lead-based paint activities programs. In
order to be authorized, State, Territorial, or Tribal programs must
have procedures and requirements for the accreditation of training
programs, the training of renovators, and the certification of
renovators or renovation firms. At a minimum, the program requirements
must include accredited training for renovators and procedures and
requirements for re-certification. State, Territorial, and Tribal
programs applying for authorization are also required to include work
practice standards for renovations that ensure that renovations are
conducted only by certified renovators or renovation firms and that
renovations are conducted using work practices at least as protective
as those of the Federal program.

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

    These training, certification and accreditation requirements;
State, Territorial, and Tribal authorization provisions; and work
practice standards are being promulgated under the authority of TSCA
sections 402(c)(3), 404, 406, and 407, 15 U.S.C. 2682(c)(3), 2684,
2686, and 2687, and in a manner that is consistent with TSCA section
2(c), 15 U.S.C. 2601(c).

III. Provisions of this Final Rule

    This unit describes the specific provisions of the final regulation
and discusses the major comments received.

A. Scope of the Final Rule

    EPA is amending the existing regulations at 40 CFR part 745,
subpart E (the ``Pre-Renovation Education Rule''), that implement TSCA
section 406(b) to add training and certification requirements, as well
as work practice standards, for certain renovation, repair, and
painting projects performed for compensation in target housing and in
child-occupied facilities.
    1. Buildings covered--a. Target housing. The requirements of this
final rule apply to renovations performed for compensation within and
on the exteriors of target housing units, including renovations
performed for compensation in common areas, such as hallways,
stairways, and laundry and recreational rooms, in multi-unit target
housing. The term ``target housing'' is defined in TSCA section 401 as
any housing constructed before 1978, except housing for the elderly or
persons with disabilities (unless any child under age 6 resides or is
expected to reside in such housing) or any 0-bedroom dwelling.
    Several commenters were concerned about the exclusion of 0-bedroom
dwellings from the definition of ``target housing.'' These commenters
noted that this effectively excludes a significant subset of housing
where children live, particularly studio or efficiency apartments and
certain low-income housing such as single-room occupancy hotels. One
commenter stated that, in his city, at least 400 families with more
than 700 children live in single-room occupancy hotels, and these
hotels constitute some of oldest housing in their city. Other
commenters were concerned about the exclusion of housing for the
elderly (or persons with disabilities) unless any child under age 6
resides or is expected to reside in such housing. These commenters
suggested that EPA not exempt such housing because children may be
present for a substantial amount of time. One commenter noted that,
because some children spend 40 or more hours per week at their
grandparents' home, eliminating housing for the elderly from the rule
would place an inordinate number of young children at risk. Another
commenter observed that unless the building is reserved for elderly
residents only, the likelihood of children living in a multi-unit
building and being exposed to lead hazards in common areas is high.
    EPA understands and shares the concerns of these commenters.
However, these exclusions were established by Congress in Title X. The
exclusions and limitations in the exclusions appear consistent with a focus
on housing where children under age 6 reside. Nonetheless, EPA does wish
to point out that this regulation and other existing TSCA regulations

[[Page 21706]]

cover activities in common areas that are accessible to residents of
target housing units. Thus, renovations in common areas in a building
built before 1978 that contains both housing units reserved for the
elderly and regular housing units would be covered by this rule. In
addition, as described more fully in Unit III.G. of this preamble,
States, Territories and Tribes may choose to develop and implement
their own lead renovation, repair, and painting programs. Such programs
may be more stringent than this Federal regulation and could,
therefore, cover 0-bedroom dwellings or housing for the elderly.
    Finally, one commenter questioned the existing definition
of``multi-family housing'' in 40 CFR 745.83, which defines the term as
a ``housing property consisting of more than four dwelling units.'' The
commenter referred to the definition of ``multi-family dwelling'' in 40
CFR 745.223 which does not limit the term to a specific number of
units, and questioned why smaller multi-family housing such as duplexes
should not be included in the definition in 40 CFR 745.83. This
commenter and others contended that it is important to cover common
areas, including building exteriors, in all multi-unit target housing.
In response to these commenters, EPA is deleting the definition of
``multi-family housing'' from 40 CFR 745.83 because the term is not
used in this final rule. This final rule covers renovations in common
areas, including building exteriors, of multi-unit buildings regardless
of the number of units contained in the building. In addition, the
deletion of this definition will also make it clear that the existing
Pre-Renovation Education Rule provisions also apply to the same
renovations covered by this final rule.
    b. Child-occupied facilities. The certification, training,
recordkeeping, and work practice standards of this final rule also
apply to renovations for compensation in child-occupied facilities. As
discussed in the preamble to the 2007 Supplemental Proposal, numerous
commenters on the 2006 Proposal requested that EPA cover child-occupied
facilities under this regulation and suggested that EPA use the
existing definition of ``child-occupied facility'' in 40 CFR 745.223.
In response, the 2007 Supplemental Proposal included a definition of
``child-occupied facility'' that was based upon the existing
definition, with modifications to make it consistent with the
provisions of the 2006 Proposal. EPA also proposed to modify the
definition to clarify, for child-occupied facilities located in public
or commercial buildings, which portions of the building would be
considered part of the child-occupied facility for purposes of this
rulemaking. EPA received several comments suggesting modifications to
the proposed definition, but (with the exception of one small
clarification) EPA is retaining the proposed definition for the reasons
discussed below. The final rule's definition of ``child-occupied
facility'' is as follows:
    ``Child-occupied facility'' means a building, or 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. Child-
occupied facilities may include, but are not limited to, day care
centers, preschools and kindergarten classrooms. Child-occupied
facilities may be located in target housing or in public or commercial
buildings. With respect to common areas in public or commercial
buildings that contain child-occupied facilities, the child-occupied
facility encompasses only those common areas that are routinely used by
children under age 6, such as restrooms and cafeterias. Common areas
that children under age 6 only pass through, such as hallways,
stairways, and garages are not included. In addition, with respect to
exteriors of public or commercial buildings that contain child-occupied
facilities, the child-occupied facility encompasses only the exterior
sides of the building that are immediately adjacent to the child-occupied
facility or the common areas routinely used by children under age 6.
    EPA added the introductory clauses ``with respect to common areas''
and ``with respect to exteriors of'' to the sentences describing the
applicability of the rule to common areas and exteriors of public or
commercial buildings because EPA was concerned that people would be
confused about the area defined by the term ``child-occupied facility''
in those situations.
    Most of the commenters on the 2007 Supplemental Proposal expressed
support for including child-occupied facilities within the universe of
buildings covered by this rulemaking. Several commenters requested that
EPA provide a more clear definition of public buildings that contain
child-occupied facilities or additional examples of such facilities.
However, EPA is not aware of additional examples that could be included
in the definition to make the applicability of this rule clearer. One
commenter believed that a definition based upon the amount of time a
child spends at a facility would be unworkable.
    EPA disagrees with the comment that a time-based definition of
child-occupied facility is unworkable. A time-based definition has been
a part of the Lead-based Paint Activities Program under TSCA section
402(a) for more than 10 years and EPA is not aware of any significant
implementation difficulties. As initially proposed in 1994, the Lead-
based Paint Activities Regulations under TSCA section 402(a) would have
contained one set of requirements for the training and certification of
contractors and the accreditation of training programs, as well as
specific work practice standards that would have applied to lead-based
paint activities conducted in target housing and public buildings (Ref.
23). A different set of requirements would have applied to lead-based
paint activities conducted in commercial buildings and on bridges and
other structures. The 1994 proposal would have defined public buildings
to include all buildings generally open to the public or occupied or
visited by children, such as stores, museums, airports, offices,
restaurants, hospitals, and government buildings, as well as schools
and day care centers. During the comment period, a significant majority
of commenters expressed the concern that applying these regulations to
activities in all of the buildings that EPA would consider public would
result in significant costs without a comparable reduction in lead-
based paint exposures for children under age 6, the population most
vulnerable to lead exposures. Many of these commenters recommended that
EPA focus its attention on buildings that are frequented by children,
rather than on buildings that may be briefly visited by children.
    In response to these comments, EPA established, in the final rule,
a subset of the buildings EPA had intended to define as public. This
subset, called ``child-occupied facilities,'' was delineated in terms
of the frequency and duration of visits by children (Ref. 4). These
primarily consist of public buildings where young children receive care
or instruction on a regular basis, such as child care centers and
kindergarten classrooms. The Agency's decision to define child-occupied
facilities as a sub-category of public buildings was based on one of the
key objectives of the Lead-based Paint Activities Regulations, which was to

[[Page 21707]]

prevent lead exposures among young children. The Agency reasoned that
children face an equal, if not greater, risk from lead-based paint
hazards in schools and day care centers as they do at home. Indeed, EPA
was concerned that children could spend more time in a particular
classroom or day care room in a given day or week than they might spend
in a single room in their homes. With respect to the type of building
covered, this regulation will operate in much the same way as the Lead-
based Paint Activities Regulations. In most cases, office buildings
without child care facilities, museums, stores, airports, and
restaurants will not be covered by this rule. Although there may be
large numbers of children present at any given time in these kinds of
buildings, individual children are not likely to be there often enough
and long enough to qualify the building as a child-occupied facility.
    Some commenters appeared to be confused about whether the
definition of ``child-occupied facility'' covers housing where informal
or unpaid care is provided, such as the homes of relatives and
neighbors. Whether or not a building is a child-occupied facility does
not depend upon whether the owner or operator of the child-occupied
facility is somehow compensated for the child's presence. Indeed, the
first sentence of the definition makes this clear in stating that a
child-occupied facility is a ``building, or portion of a building,
constructed prior to 1978, visited regularly by the same child . . .''
The word ``visited'' is very broad, it includes visits to a relative's
house or a neighbor's house as well as visits to a child-care facility
or school.
    Except in owner-occupied target housing, as discussed below, the
firm performing the renovation is responsible for determining whether a
building is a child-occupied facility. This can be accomplished in any
number of ways. A stand-alone child care center is likely to have a
name that suggests that it provides child care, and the center's status
as a child-occupied facility should be obvious upon entering the
center. Child care centers in office buildings are likely to have
informational signs posted and the centers are likely to be identified
in the building directory. Elementary schools are likely to have
kindergarten classrooms. The renovation firm should inquire about the
presence of a child-occupied facility when contracting to perform
renovation services in a public or commercial building. However, a
statement by the building owner or manager that there is no child-
occupied facility in the building may not be relied upon in the face of
evidence to the contrary.
    Several commenters felt that EPA had inappropriately limited the
space encompassed by achild-occupied facility in a public or commercial
building. These commenters thought that EPA should follow the approach
used for common areas in multi-family housing. Under this approach, the
rule would cover renovations for compensation in all areas normally
accessible to the children using the child-occupied facility. However,
children under age 6 are likely to spend less time in the hallways and
stairways of public or commercial buildings than they do in common
areas in the buildings where they live. It is also likely that children
under age 6 walking to and from a child care center in an office
building, or to and from a classroom in a school building, will be
closely supervised and will not be permitted to walk through active
renovation work sites. Although some exposure is possible in these
areas, they are more akin to general public and commercial buildings
that children may enter but where they are not expected to spend
significant amounts of time than to the exposures associated with
child-occupied facilities, and EPA's hazard standards are applicable to
residents and residential-type settings. In addition, EPA is concerned
that application of this final rule to all common areas of public or
commercial buildings that may house a child-occupied facility in a
small portion of the building would likely result in minimal benefit to
the children at a potentially large cost.
    c. Other public or commercial buildings. A number of commenters
noted that TSCA section 402(c)(3) directs EPA to address renovation or
remodeling activities that create lead-based paint hazards not only in
target housing, but also in public buildings constructed before 1978,
and commercial buildings. Most of these commenters, commenting on the
2006 Proposal, expressed the greatest concern over EPA's failure to
address buildings where young children spend significant amounts of
time, or child-occupied facilities. However, a handful of commenters
argued that EPA also needed to address other public and commercial
buildings under the renovation, repair, and painting program.
    TSCA section 402(c)(3) provides authority for EPA to regulate
renovation or remodeling activities that create lead-based paint
hazards. EPA has, by regulation under TSCA section 403, identified
lead-based paint hazards for purposes of Title IV. These hazard
standards were developed by evaluating exposure patterns and hazard
information for young children and taking into account costs and
benefits. They are only applicable in target housing and child-occupied
facilities, places where young children are likely to be present for
significant periods of time. Although EPA realizes that lead exposure
for older children and adults can result in adverse health effects,
effects which are discussed in chapter 5 of the Final Economic Analysis
for the Lead Renovation, Repair, and Painting Program (``Final Economic
Analysis'') (Ref. 24), EPA has not evaluated the exposure and hazard
information for these groups in the same way that it has for young
children. EPA has not evaluated the potential adverse health effects
and associated them with a specific level of surface dust that will
result in a blood lead level in an older child or an adult that is
likely to cause a particular adverse effect. Nor has EPA evaluated the
potential health effects to young children from the less frequent
exposures that might arise in public and commercial buildings that are
not child-occupied facilities. At this time, EPA does not have
sufficient information with which to conclude that renovation and
remodeling activities in buildings not frequented by young children,
e.g., public or commercial buildings that are not child-occupied
facilities, create lead-based paint hazards because EPA's TSCA section
403 hazard standards only apply to target housing and child-occupied
facilities. EPA has no hazard standards to apply in other situations.
Thus, this rule, like the Lead-based Paint Activities Regulations, only
applies in target housing and child-occupied facilities.
    2. Activities covered--a. Renovations for compensation. This rule,
like the Pre-Renovation Education Rule, only applies to persons who
perform renovations for compensation. As discussed in the preamble to
the 2007 Supplemental Proposal, for the purposes of this regulation,
compensation includes pay for work performed, such as that paid to
contractors and subcontractors; wages, such as those paid to employees
of contractors, building owners, property management companies, child-
occupied facility operators, State and local government agencies, and
non-profits; and rent for target housing or public or commercial
building space.
    Although the owner of rental property may not be compensated for
maintenance and repair work at the time that the work is performed,
tenants generally pay rent for the right to

[[Page 21708]]

occupy rental space as well as for maintenance services in that space.
Thus, renovations performed by renovation contractors and their
employees in target housing or child-occupied facilities are covered,
as are renovations by owners of rental target housing or child-occupied
facilities, if the child-occupied facility leases space.
    Renovations in target housing or in child-occupied facilities are
covered if they are performed by employees of the renovation
contractor, the building owner, the building manager, a State or local
government agency, a non-profit organization, or the child-occupied
facility operator, and the employees receive wages or other
compensation for the work performed. Child care payments, in and of
themselves, are not considered compensation for renovations. An
agreement to provide child care in exchange for a payment is not a
contract for building maintenance services in the same way that a lease
or other agreement between a landlord and a tenant generally is.
    One commenter requested that EPA consider payments for child care
to be compensation for renovations. A number of other commenters
expressed a general concern over the fact that EPA was not proposing to
cover do-it-yourself renovations in owner-occupied target housing. Some
of these commenters cited research or observations suggesting that
improperly performed renovations by homeowners, relatives, or friends
are equally likely, if not more likely, to cause elevated blood lead
levels as renovations performed by professional contractors. The most
commonly cited study for this proposition was the Wisconsin Childhood
Blood-Lead Study, commissioned by EPA as Phase III of the Renovation
and Remodeling Study performed pursuant to TSCA section 402(c)(2). As
described more fully in the preamble to the 2006 Proposal, in homes
where renovation and remodeling activities had been performed, the
analysis of the results of the Wisconsin Study indicated the following
ordering of the five possible responses to the question of who
performed the renovation and remodeling, in order of highest to lowest
risk of increased odds of an elevated blood lead level:
    • Relative or friend not in household.
    • Paid professional.
    • Owner or building superintendent.
    • Head of household or spouse.
    • Other person in household.
    As discussed in the preamble to the 2007 Supplemental Proposal, EPA
does not believe that child-care payments represent compensation for
renovations in the same way that rent is. Furthermore, as discussed in
the Final Economic Analysis, the overwhelming majority of child-
occupied facilities covered by this final rule are located in target
housing. Some of that housing is rental target housing, and renovations
in rental target housing are covered by this final rule regardless of
whether a child-occupied facility is present. With respect to child-
occupied facilities located in owner-occupied target housing and do-it-
yourself renovations in owner-occupied target housing in general, EPA
believes that it would be inconsistent with Congressional intent to
cover these renovations.
    EPA has previously determined that Congress was most concerned with
the certification and training of contractors, not homeowners. In the
preamble to the proposed Lead-based Paint Activities Regulations, EPA
reviewed section 1021 of the Residential Lead-Based Paint Hazard
Reduction Act of 1992, the section that added Title IV to TSCA, and
determined that the emphasis under section 402 of TSCA ought to be the
certification and training of contractors, not homeowners (Ref. 23). In
its review, EPA declared that TSCA section 402(c)(3), the section under
which this final rule is being issued, shows that Congressional ``focus
was on the need to regulate contractors doing renovation and remodeling
activities, and not homeowners doing renovation and remodeling of their
own homes'' (Ref. 23). Specifically, TSCA section 402(c)(3) directs EPA
to revise the TSCA section 402(a) Lead-based Paint Activities
Regulations to apply to renovation and remodeling activities. In so
doing, EPA is to determine ``which contractors are engaged in such
activities.'' TSCA section 402(c)(3) (emphasis added). EPA thus
interprets the statutory directive to regulate remodeling and
renovation activities found in TSCA section 402(c)(3) as applying to
contractors and not a broader category of persons, such as homeowners.
    With respect to do-it-yourself renovations in child-occupied
facilities in target housing, as stated above, although payment is
received in exchange for childcare, EPA does not consider this to be a
contract for building maintenance. As discussed in the previous
paragraph, Congress intended to cover renovation contractors, not
homeowners who perform renovations on their own homes.
    However, as previously discussed, EPA intends to conduct an
outreach and education campaign designed to encourage homeowners and
other building owners to follow lead-safe work practices while
performing renovations or hire a certified renovation firm to do so.
    b. Definition of ``renovation.'' The universe of renovation
activities covered by this rule is virtually identical to the
renovation activities already regulated under the Pre-Renovation
Education Rule--essentially, activities that modify an existing
structure and that result in the disturbance of painted surfaces. All
types of repair, remodeling, modernization, and weatherization projects
are covered, including projects performed as part of another Federal,
State, or local program, if the projects meet the definition of
``renovation'' already codified in 40 CFR 745.83.
    As discussed in Unit IV.B.3. of the preamble to the 2006 Proposal,
EPA considered a number of options for defining the term ``renovation''
for the Pre-Renovation Education Rule, and chose a definition that
focuses on the activities of greatest concern to EPA, activities that
disturb lead-based paint. This definition also covers virtually all of
the types of activities in the Environmental Field Sampling Study that
created lead-based paint hazards. In this rulemaking, EPA received
several comments requesting clarification on the definition; some of
these commenters were particularly interested in the types of jobs that
would be covered by this definition. One commenter requested that, if
EPA intended to cover maintenance and repair projects and interim
control projects, the definition of ``renovation'' be modified to
specifically include those projects. Another commenter requested that
EPA specifically mention weatherization projects as an example of the
types of projects covered by the rule. Several commenters suggested
that the definition should clearly delineate the boundaries between
renovation and abatement.
    EPA also received several responses to its requests for comment on
whether to exclude any category of specialty contractor and whether
certain renovation activities, such as HVAC duct work, which may result
in the disturbance of limited amounts of lead-based paint, should be
specifically included or excluded. A state agency contended that
exterior siding projects, HVAC duct work, and wallpaper removal should
not be excluded, noting that wallpaper removal was implicated in a lead
poisoning case the agency investigated. Another commenter argued that
many interior and exterior painting projects involve washing, scuff-
sanding, and scraping to remove loose materials, and that such
``common'' and

[[Page 21709]]

``relatively benign'' industry practices should not be regulated. Other
commenters argued that there should be no categorical exemption for any
type of specialty contractor. Most commenters on this issue contended
that the amount of lead-based paint disturbed, rather than the type of
project or contractor involved, should control the applicability of the
rule.
    EPA specifically disagrees that scuff-sanding and scraping are
``benign,'' especially in light of the dust lead levels generated by
dry scraping in the Dust Study. The geometric mean post-work, pre-
cleaning dust lead levels resulting from dry scraping were 2,686 μg/
ft\2\. After baseline cleaning procedures, the geometric mean was still
66 μg/ft\2\. When the work practices required by the final rule were
used, the geometric mean was 30 μg/ft\2\. As stated above, all of
the renovation activities in the Dust Study and the other studies in
the record for this final rule created lead-based paint hazards.
Therefore, this regulation will not exempt any category of specialty
contractor or any specific type of renovation. EPA notes, however, that
it has not prohibited the use of dry scraping or dry hand sanding. More
information on prohibited renovation practices can be found in Unit
III.E.4. of this preamble. EPA also notes that some small jobs will be
exempt from the requirements of this final rule under the minor repair
and maintenance exception.
    EPA has also determined that, based on the comments, some changes
to the proposed definition of the term ``renovation'' are necessary to
ensure that everyone understands that all types of building renovation,
repair, and painting projects are covered, so long as painted surfaces
are disturbed. The following definition of ``renovation'' will be
incorporated into 40 CFR 745.83.
    Renovation means the modification of any existing structure, or
portion thereof, that results in the disturbance of painted surfaces,
unless that activity is performed as part of an abatement as defined by
this part (40 CFR 745.223). The term renovation includes (but is not
limited to): The removal, modification or repair of painted surfaces or
painted components (e.g., modification of painted doors, surface
restoration, window repair, surface preparation activity (such as
sanding, scraping, or other such activities that may generate paint
dust)); the removal of building components (e.g., walls, ceilings,
plumbing, windows); weatherization projects (e.g., cutting holes in
painted surfaces to install blown-in insulation or to gain access to
attics, planing thresholds to install weather-stripping), and interim
controls. A renovation performed for the purpose of converting a
building, or part of a building, into target housing or a child-
occupied facility is a renovation under this subpart. The term
renovation does not include minor repair and maintenance activities.
    EPA added ``repair,'' ``surface restoration,'' ``window repair,''
``weatherization,'' and ``interim controls'' to the definition to make
it clear that all of these activities are covered by this definition if
they disturb painted surfaces. EPA also separated the removal and the
modification of building components to provide clarity. In addition,
EPA provided examples of weatherization activities and building
component removal. Finally, EPA added a sentence to ensure that it is
clear that renovations performed to turn a building into target housing
or a child-occupied facility are covered.
    Thus, interim control projects and weatherization projects that
disturb painted surfaces are renovations. In addition, under this
definition, the line between renovation and abatement is clear. Any
renovation, repair, maintenance, or painting project is a renovation
potentially covered by this rule unless the purpose of the project is
to permanently eliminate lead-based paint or lead-based paint hazards.
In that case, the project is an abatement. Covered renovations must be
performed in accordance with 40 CFR part 745, subpart E, while covered
abatements must be performed in accordance with 40 CFR part 745, subpart L.
    3. Exceptions--a. Owner-occupied target housing that is neither the
residence of a child under age 6 or a pregnant woman, nor a child-
occupied facility. The 2006 Proposal proposed to establish an exception
that would allow owner-occupants of target housing to opt-out of having
renovation firms use the work practices that would be required by the
rule. The proposed exception provided that if the owner-occupant signed
a statement that no child under 6 resided there, the renovation would
be exempt from the training, certification, and work practice
requirements of the regulation. The 2007 Supplemental Proposal narrowed
this exception. Under the 2007 Supplemental Proposal, owner-occupied
target housing where no child under age 6 resides would not be eligible
for this exception if the housing meets the definition of ``child-
occupied facility.'' This final rule retains this exception, but
further narrows it to exclude housing where pregnant women reside. In
addition, to make it clear to the property owner what the effect of the
signed statement is, EPA has modified the requirements to include an
acknowledgment by the owner that the renovation firm will not be
required to use the lead-safe work practices contained in EPA's
renovation, repair, and painting rule. Thus, unless the target housing
meets the definition of a child-occupied facility, if an owner-occupant
signed a statement that no child under 6 and no pregnant woman reside
there and an acknowledgment that the renovation firm will not be
required to use the lead-safe work practices contained in EPA's
renovation, repair, and painting rule, the renovation activity is
exempt from the training, certification, and work practice requirements
of the rule. Conversely, if the owner-occupant does not sign the
certification and acknowledgement (even if no children under 6 or no
pregnant women reside there), or if the owner-occupant chooses not to
take advantage of the exception for other reasons, the exception does
not apply and the renovation is subject to the requirements of this
final rule.
    EPA asked for and received numerous comments on this aspect of the
2006 Proposal. Several commenters supported EPA's focus on housing
where children under age 6 reside, citing the need to target society's
resources towards the housing that presents the greatest risk. One
commenter also noted that this provision would help keep renovation
costs down for low-income homeowners without children. Most commenters,
however, did not agree with EPA's proposal to allow homeowners with no
children under age 6 who occupy their own homes to opt out of the
rule's requirements. These commenters cited a number of reasons for
their position, including the fact that children visit homes where they
do not reside, and newly renovated housing may be sold to a family with
young children regardless of whether children were in residence when
the renovation occurred. Commenters also expressed concern about
pregnant women, given that the transplacental transfer of lead in
humans is well documented, and infants are generally born with a lead
body burden reflecting that of the mother. This led some commenters to
suggest that women of child-bearing age and girls between the ages of 6
and 14 also deserve special protection, because any lead body burden
that they acquire through uncontrolled renovations will be passed on to
any children they may eventually have.
    EPA has carefully considered the issues and concerns raised with
respect to exceptions to the rule. On the one

[[Page 21710]]

hand, EPA agrees with the commenters that believed it was important to
focus this regulation on the housing that presents the greatest risk to
young children. EPA is mindful of the impacts this regulation may have
on the affordability of renovations, particularly for low-income
homeowners. EPA believes that primarily focusing society's resources on
the housing that presents the greatest risk to children is consistent
with Congressional intent. In the Senate report on Title X, Congress
noted the need ``for a flexible, targeted approach for protecting
children from exposure to lead hazards while maintaining housing
affordability'' (Ref. 25). The report also noted that ``exposure to
lead is primarily caused by ingesting paint dust or chips,'' which is
the route of exposure of concern primarily for young children, ages 18-
27 months. Indeed, in the Congressional findings for Title X, Congress
focused on the lead poisoning of children and the need to address this
as a national priority. [Sec. 1002, Public Law 102-550]. The focus on
children can also be inferred from the very definition of ``target
housing'' which on the one hand excludes housing for the elderly and
disabled ``unless a child under six resides or is expected to reside''
there. Similarly, this final rule focuses on the population most at
risk and does not provide any exceptions if a child under age 6 resides
in the target housing to be renovated.
    On the other hand, EPA understands and shares some of the concerns
expressed by those commenters who did not support an exception for
owner-occupied target housing where no child under 6 resides. In
balancing these countervailing considerations, EPA has further limited
this exception to owner-occupied target housing that does not meet the
definition of a child-occupied facility because no child under 6 is
present on a regular basis and in which no pregnant women reside. This
has the effect of focusing this regulation primarily on renovations
performed in buildings where children under age 6 reside or spend a
great deal of time or in which a pregnant woman resides.
    With regard to older children and adults, it is important to
remember that the hazards presented by a particular floor or windowsill
dust lead level are markedly different for a toddler than for an older
child or an adult. As discussed in EPA's most recent Air Quality
Criteria for Lead document, hand-to-mouth behavior is an important
means of exposure for children. The period of peak exposure, reflected
in peak blood lead levels, is around 18-27 months when hand-to-mouth
activity is at its maximum. This leads to a high rate of ingestion of
dust at a time when children are believed to be particularly vulnerable
to the neurological effects of lead exposure. While lead exposure
continues to affect older children and adults, these individuals do not
ingest dust at the same high rate that a toddler does. Therefore, the
same floor dust level will present a much greater hazard for the young
child than it will for the older child or adult. The lead-based paint
hazard standards in 40 CFR part 745, subpart D, were established with
reference to impacts on childhood blood lead levels based principally
on hand-to-mouth activity, and EPA has not assessed the effect of dust
lead levels or other potential sources of lead-based paint hazards on
older children or adults.
    However, EPA is particularly concerned about exposure to pregnant
women because while the exposure patterns for small children and older
children and adults are different, once exposed a pregnant woman can
transfer lead to the developing fetus. Epidemiologic evidence indicates
that lead freely crosses the placenta resulting in continued fetal
exposure throughout pregnancy. Of particular concern is transfer to the
developing brain of the fetus across the poorly developed blood brain
barrier. Further, a significant proportion of lead transferred from the
mother is incorporated into the developing skeletal system of the
offspring, where it can serve as a continuing source of toxic exposure
(Ref. 1). Thus, EPA agrees with the commenters who believed it is
important to ensure that the work practices required in this final rule
are followed in homes where a pregnant woman resides.
    EPA also acknowledges the concern expressed by a number of
commenters that newly renovated housing will be sold to a family with
young children. If the renovation was not performed in accordance with
the work practices prescribed by this rule, a dust-lead hazard may be
present in the home. However, EPA does not believe it is an effective
use of society's resources to impose this final rule requirements on
all renovations in order to account for the portion of homes without
young children that will be sold to families with young children
following renovations. Moreover, the Disclosure Rule, 40 CFR part 745,
subpart F, requires sellers of target housing to disclose known lead-
based paint or lead-based paint hazard information to purchasers and
provide them with a copy of the lead hazard information pamphlet
entitledProtect Your Family From Lead in Your Home (Ref. 7). In the
situation described by the commenters, the receipt of this information
should prompt the family to inquire about potential lead-based paint
hazards in the home, particularly if one of the selling points is that
areas of the home have been recently renovated. In addition, EPA
continues to recommend that purchasers take advantage of their
statutory opportunity to have a lead-based paint inspection or risk
assessment done while in the process of purchasing target housing.
    In response to comments expressing concern about this exception
from this final rule, EPA has further considered the proposed owner-
occupant acknowledgement statement and concluded that it is important
that homeowners understand the effect of the acknowledgement.
Accordingly, EPA has clarified and expanded the acknowledgement
language to ensure that it is clear and consistent. In addition, EPA
would like to make it clear that even if the housing to be renovated
qualifies for this exception, the homeowner may always choose to have
the renovation firm follow the work practices required by this rule.
For example, the homeowner may be concerned about potential exposures
for visiting children who do not visit often enough to make the housing
a child-occupied facility. The homeowner may also be concerned that she
may be pregnant, even though she is not yet certain. EPA has added a
statement to the sample acknowledgment form that would allow the
homeowner to state that the housing does qualify for the exception, but
the homeowner wishes the renovation firm to follow the requirements of
this rule anyway.
    EPA would like to reiterate that this exception applies only to
target housing that is occupied by its owner. For a number of reasons,
this exception is not available in rental target housing, whether young
children are present or not. First, tenants are likely to have much
less control over renovations in their housing than owners. Next, as
pointed out by some commenters, there is more turnover in rental
housing than in owner-occupied housing. In many cases, renovations are
done between tenants and it may not be known who will be occupying the
unit next. Finally, as noted by at least two commenters, exempting
renovations in rental housing that is not occupied by a child under age
6 could cause discrimination in the rental housing market against
families with young children. Nearly all of the commenters on this
issue agreed with this approach.

[[Page 21711]]

    Several commenters expressed reservations about the ability of
renovation firms to determine whether housing to be renovated is
eligible for this exception. As discussed in both proposals, EPA
believes that it could be difficult for a renovation firm to determine
whether a child under age 6 resides in a particular unit of target
housing or whether the housing is a child-occupied facility or whether
a woman is pregnant. EPA will therefore allow renovation firms to rely
on a signed statement from the owner of the housing that he or she is
the owner of the housing to be renovated, that he or she resides in the
housing to be renovated, that no child under 6 or pregnant woman
resides there, that the housing does not meet the definition of a
child-occupied facility, and that the owner acknowledges that the
renovation firm will not be required to use the lead-safe work
practices contained in this final rule. In the absence of such a signed
statement, the renovation firm must comply with all of the regulation's
requirements. If the renovation firm obtains such a statement, the
renovation firm is not subject to the work practice and other
requirements of this final rule. EPA will not hold the renovation firm
responsible for misrepresentations on the part of the owner of the
housing. Renovations in common areas of owner-occupied multi-unit
target housing, such as condominiums, must be performed in accordance
with the requirements of this rule unless the renovation firm obtains a
signed statement from each occupant with access to the common area that
the occupant is the owner of the housing unit, that he or she resides
there, that no child under age 6 or pregnant woman resides there, that
the housing does not meet the definition of child-occupied facility,
and that the owner understands that the renovation firm will not be
required to use the work practices contained in this final rule.
    Finally, some commenters argued that TSCA section 402(c)(3)
requires EPA to cover all renovations in target housing regardless of
whether the housing is the residence of a child under age 6 or a child-
occupied facility. This regulation covers all target housing. In order
to perfect a claim for the exception for owner-occupied target housing
that is not the residence of a child under age 6 or a pregnant woman or
a child-occupied facility, the renovation firm must obtain the owner's
signature on a form indicating that the housing qualifies for the
exception and the owner is opting out of the training, certification,
and work practice requirements of this rule. In addition, the form and
regulation provide the option for a homeowner to request that the work
conform to the requirements of this final rule even in homes without
young children or pregnant women. EPA believes homeowners without young
children or who reside in homes without pregnant women should be able
to choose whether or not work done in their own homes conforms to the
requirements of this final rule. EPA has determined that allowing these
owner-occupants to opt out of the training, certification, and work
practice requirements of the rule does not significantly compromise the
safety and effectiveness of this rule because the limitations on the
applicability of the exception with respect to children under 6 and
pregnant women serve to minimize the possibility that a young child or
a pregnant woman will be exposed to a lead-based paint hazard resulting
from a renovation in target housing.
    b. Renovations affecting only components free of regulated lead-
based paint--i. Determination by certified inspector or risk assessor.
In keeping with the 2006 Proposal and the 2007 Supplemental Proposal,
this final rule exempts renovations that affect only components that a
certified inspector or risk assessor has determined 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. These standards are from the definition
of lead-based paint in Title X and in EPA's implementing regulations.
Nearly all of the commenters that expressed an opinion on this topic
favored this exception. The determination that any particular component
is free of lead-based paint may be made as part of a lead-based paint
inspection of an entire housing unit or building, or on a component-by-
component basis.
    Some commenters expressed confusion over the mechanics of this
exception. The certified inspector or risk assessor determines whether
components contain lead-based paint, while the renovation firm is
responsible for determining which components will be affected by the
renovation. A renovation firm may rely on the report of a past
inspection or risk assessment that addresses the components that will
be disturbed by the renovation.
    ii. Determination by certified renovator using EPA-recognized test
kits. Also in accordance with both of the proposals, this final rule
exempts renovations that affect only components that a certified
renovator, using a test kit recognized by EPA, determines are free of
lead-based paint. EPA has deleted the regulatory thresholds for lead-
based paint from this definition because they unnecessarily complicate
the exception. As discussed in Unit III.C.1. of this preamble, a
certified renovator is a person who has taken an accredited course in
work practices. This training will include how to properly use the EPA-
approved test kits. This final rule also establishes the process EPA
will use to recognize test kits.
    As discussed in the preamble to the 2006 Proposal, research on the
use of currently available kits for testing lead in paint has been
published by the National Institute of Standards and Technology (NIST)
(Ref. 26). The research indicates that there are test kits on the
market that, when used by a trained professional, can reliably
determine that regulated lead-based paint is not present by virtue of a
negative result. Based on this research, EPA proposed to initially
recognize test kits that have, for paint containing lead at or above
the regulated level, 1.0 mg/cm\2\ or 0.5% by weight, a demonstrated
probability (with 95% confidence) of a negative response less than or
equal to 5% of the time.
    Some commenters, representing a variety of interests, supported an
exception for renovations affecting components that have been found to
be free of regulated lead-based paint by use of a test kit. One
commenter cited the need for faster and cheaper methods of accurately
checking for lead and expressed the opinion that this approach will
expand access to lead screening in homes. Several comments were
generally supportive, with some reservations about kit reliability.
    However, most commenters did not favor the use of test kits. The
most commonly cited reason for not supporting this approach was the
potential conflict-of-interest present in having the certified
renovator be the one to determine whether or not he or she must use the
work practices required by the rule. EPA addressed potential conflicts-
of-interest in its lead-based paint program in the preamble to the
final Lead-based Paint Activities Regulations. That discussion outlined
two reasons for not requiring that inspections or risk assessments,
abatements, and post-abatement clearance testing all be performed by
different entities. The first was the cost savings and convenience of
being able to hire just one firm to perform all necessary lead-based
paint activities. The second was the potential regional scarcity of
firms to perform the work. These considerations may also be applicable
to the renovation sector, given the premium on maintaining a

[[Page 21712]]

rule that is simple and streamlined and does not unduly prolong the
timeframes for completing renovations. Moreover, it is not unusual in
regulatory programs to allow regulated entities to make determinations
affecting regulatory applicability and compliance. See, e.g., 40 CFR
262.11 (hazardous waste determinations by waste generators under RCRA).
EPA has decided to take an approach that is consistent with the
approach taken in the 402(a) lead-based Paint Activities regulation and
not require third party testing.
    Another commonly cited reason for not supporting the use of test
kits by certified renovators was the lack of any sampling protocol in
the regulation. A related concern was that the training in sampling
techniques and protocols in the lead-based paint inspector course could
not be shortened to fit within the 8-hour renovator course and still
retain all of the necessary information. EPA wishes to make it clear
that the 8-hour renovator course will not train renovators in how to
select components for sampling because the certified renovator must use
a test kit on each component affected by the renovation. The only
exception to this is when the components make up an integrated whole,
such as the individual stair treads and risers in a staircase. In this
situation, the renovator need test only one such individual component,
e.g., a single stair tread, unless it is obvious to therenovator that
the individual components have been repainted or refinished separately.
As such, a complicated sampling protocol is not necessary. EPA plans to
modify the EPA/HUD Lead Safe Work Practices course to include training
on how to use a test kit. To ensure that the applicability of the
exception is clear, EPA has also modified 40 CFR 745.82(a)(2) to
specifically state that the certified renovator must test each of the
components that will be affected by the renovation.
    iii. Phased implementation and improved test kits. Under the
proposals, the regulatory requirements would have taken effect in two
major stages, based on the age of the building being renovated. The
first stage would have applied to renovations in target housing and
child-occupied facilities built before 1960. Requirements for
renovations in target housing and child-occupied facilities built
between 1960 and 1978 would have taken effect 1 year later. The primary
reason for this phased implementation was to allow time for the
development of improved test kits.
    According to the National Survey of Lead and Allergens in Housing,
24% of the housing constructed between 1960 and 1978 contains lead-
based paint (Ref. 27). In contrast, 69% of the housing constructed
between 1940 and 1959, and 87% of the housing constructed before 1940
contains lead-based paint. The results of this survey indicate that
there is a much greater likelihood of disturbing lead-based paint
during a renovation that occurs in a home built before 1960 than in a
home built after that date. The NIST research on existing test kits
shows that existing test kits cannot reliably determine that lead is
present in paint only above the statutory levels because the kits are
sensitive to lead at levels below the Federal standards that define
lead-based paint, and therefore are prone to a large number of false
positive results (i.e., a positive result when regulated lead-based
paint is, in fact, not present). The NIST research found that such
false positive rates range from 42% to 78%. This means that the
currently available kits are not an effective means of identifying the
76% of homes built between 1960 and 1978 that do not contain regulated
lead-based paint.
    Research conducted by EPA subsequent to the publication of the 2006
Proposal confirms that the sensitivity of test kits could be adjusted
for paint testing so that the results from the kits reliably correspond
to one of the two Federal standards for lead-based paint, 1.0 mg/cm\2\
and 0.5% by weight. EPA's research and initial contacts with potential
kit manufacturers also indicate that this can be accomplished in the
near future. As stated in the preamble to the 2006 Proposal, EPA's goal
is to foster the development of a kit that can reliably be used by a
person with minimal training, is inexpensive, provides results within
an hour, and is demonstrated to have a false positive rate of no more
than 10% and a false negative rate at 1.0 mg/cm\2\ or 0.5% by weight of
less than 5%. EPA is confident that improved test kits meeting EPA's
benchmarks will be commercially available by September 2010.
    With this in mind, EPA felt that a staged approach would initially
address the renovations that present the greatest risks to children
under age 6, i.e., the renovations that are most likely to disturb
lead-based paint, while allowing additional time to ensure that the
improved test kits are commercially available before phasing in the
applicability of the rule to newer target housing and child-occupied
facilities. However, EPA was concerned about delaying implementation
for post-1960 target housing and child-occupied facilities that are
occupied or used by children under age 6 with increased blood lead
levels. In order to reduce the possibility that an unregulated
renovation activity would contribute to continuing exposures for these
children, the 2006 Proposal would have required renovation firms,
during the first year that the training, certification, work practice
and recordkeeping requirements are in effect, to provide owners and
occupants of target housing built between 1960 and 1978 and child-
occupied facilities built between 1960 and 1978 the opportunity to
inform the firm that the building to be renovated is the residence of,
or is a child-occupied facility frequented by, a child under age 6 with
a blood lead level that equals or exceeds the CDC level of concern, or
a lower State or local government level of concern. If the owner or
occupant informs the renovation firm that a child under age 6 with an
increased blood lead level lives in or frequents the building to be
renovated, the renovation firm must comply with all of the training,
certification, work practice, and recordkeeping requirements of this
regulation.
    Some commenters agreed that a staged approach was probably
necessary, given the number of renovations that would be covered by the
rule, and that a focus on buildings built before 1960 was appropriate.
However, most commenters objected to the phased implementation. Some
were concerned about the potential exposures to children in buildings
built between 1960 and 1978 during the first stage of the rule. Another
major concern expressed by commenters was that the phased
implementation would unnecessarily complicate the rule, especially with
the provision relating to children under age 6 with increased blood
lead levels. These commenters felt that, because there already are
accurate methods for determining whether a building contains lead-based
paint, and because renovation firms ought to get into the habit of
working in a lead-safe manner whenever they are working on a building
built before 1978, the utility of the delay does not outweigh the
likely confusion in the regulated community. Commenters also expressed
reservations about providing sensitive medical information to
contractors, in the case of children under age 6 with increased blood
lead levels.
    After reviewing the comments and weighing all of the factors,
including EPA's expectation that the improved test kits will be
commercially available by September 2010, EPA has decided not to
include a phased implementation in this rulemaking. Therefore, this

[[Page 21713]]

regulation will take effect at the same time for target housing and
child-occupied facilities regardless of whether they were built before
or after 1960. Nonetheless, if the improved test kits are not
commercially available by September 2010, EPA will initiate a
rulemaking to extend the effective date of this final rule for 1 year
with respect to owner-occupied target housing built after 1960.
    iv. Test kit recognition process. In the 2006 Proposal, EPA
described proposed criteria for test kit recognition. Specifically, for
paint containing lead at or above the regulated level, 1.0 mg/cm\2\ or
0.5% by weight, EPA stated its intention to only recognize kits that
have a demonstrated probability (with 95% confidence) of a negative
response less than or equal to 5% of the time. In addition, as soon as
the improved test kits are generally available, EPA proposed to
recognize only those test kits that have a demonstrated probability
(with 95% confidence) of a false positive response of no more than 10%
to lead in paint at levels below the regulated level. EPA stated its
belief that limiting recognition to kits that demonstrate relatively
low rates of false positives would benefit the consumer by reducing the
number of times that the training and work practice requirements of
this regulation are followed in the absence of regulated lead-based
paint. EPA also proposed to require that these performance parameters
be validated by a laboratory independent of the kit manufacturer, using
ASTM International's E1828, Standard Practice for Evaluating the
Performance Characteristics of Qualitative Chemical Spot Test Kits for
Lead in Paint (Ref. 28) or an equivalent validation method. In
addition, the instructions for use of any particular kit would have to
conform to the results of the validation, and the certified renovator
would have to follow the manufacturer's instructions when using the
kit. EPA requested comment on whether these standards are reasonably
achievable and sufficiently protective. EPA also solicited input on how
to conduct the kit recognition process.
    Some commenters expressed reservations about the proposed
performance criteria, contending that a false negative rate of 5% is
too high to be protective. However, a 5% false negative rate (with 95%
confidence) is similar to the performance requirements for other lead-
based paint testing methods, such as laboratory analysis used for lead-
based paint inspections, and is considered to be the statistical
equivalent of zero. Therefore, this final rule retains the proposed
false-negative criteria for test kit recognition, i.e., for paint
containing lead at or above the regulated level, 1.0 mg/cm\2\ or 0.5%
by weight, kits will be only recognized if they have a demonstrated
probability (with 95% confidence) of a negative response less than or
equal to 5% of the time. Because no comments were received on the
proposed false-positive criteria of 10% for the improved test kits,
this final rule also retains the proposed false-positive criteria for
the improved kits, i.e., after the improved kits are available, the
only test kits that will be recognized are those that have a demonstrated
probability (with 95% confidence) of a false positive response of no more
than 10% to lead in paint at levels below the regulated level.
    EPA did not receive any comments or suggestions on the test kit
recognition process itself. With respect to existing test kits, EPA has
determined that the NIST research (Ref. 26) is the equivalent of an
independent laboratory validation of test kit performance. The NIST
research found that three kits met the false-negative criteria
established in this final rule. For the purposes of this regulation,
EPA will therefore recognize these test kits, provided that they still
use the same formulation that was evaluated by NIST. These test kits
will be recognized by EPA until EPA publicizes its recognition of the
first improved test kit.
    With respect to the improved test kits, EPA has determined that
Environmental Technology Verification Program (ETV) is a suitable
vehicle for obtaining independent laboratory validation of test kit
performance. EPA intends to use ETV or an equivalent testing program
approved by EPA for the test kit recognition process. The goal of the
ETV Program is to provide independent, objective, and credible
performance data for commercial-ready environmental technologies. The
ETV process promotes these technologies implementation for the benefit
of purchasers, permitters, vendors and the public. If ETV is used, EPA
would utilize the Environmental and Sustainable Technology Evaluations
(ESTE) element of the ETV program because the development of the test
kits is in support of this final rule, and the ESTE element was created
in 2005 to address Agency priorities such as rule making. More
information on this program is available on EPA's website at 
http://www.epa.gov/etv/index.html.
    In the 2006 Proposal, EPA noted that it would look to ASTM
International's E1828, Standard Practice for Evaluating the Performance
Characteristics of Qualitative Chemical Spot Test Kits for Lead in
Paint (Ref. 28) or equivalent for a validation method for test kits.
With the input of stakeholders, EPA is adapting this ASTM Standard for
use in the laboratory validation program. The testing protocol will
consist of an evaluation of the performance of the test kits, using the
manufacturer's instructions, on various substrates, such as wood,
steel, drywall, and plaster, with various lead compounds, such as lead
carbonate and lead chromate, at various lead concentrations above and
below regulatory threshold for lead-based paint. To be consistent with
the performance criteria of the National Lead Laboratory Accreditation
Program, the testing protocol will not involve testing the performance
of the kits on paint that contains between 0.8 milligrams of lead per
square centimeter and 1.2 milligrams of lead per square centimeter.
After a test kit has gone through the ETV or other EPA approved testing
process, EPA will review the test report to determine whether the kit
has been demonstrated to achieve the criteria set forth in the rule.
EPA anticipates that evaluation of the improved test kits under the
recognition program will begin by August 2009.
    In addition, EPA intends to allow other existing test kit
manufacturers the opportunity to demonstrate that their kits meet the
false negative criteria described in 40 CFR 745.88(c)(1) by going
through the ETV process. Any recognition granted to test kits based
only on the false negative criteria will expire when EPA publicizes its
recognition of the first improved test kit that meets both the false
negative and false positive criteria of 40 CFR 745.88(c).
    Beginning on September 1, 2008, EPA's ETV program will accept
applications for testing from test kit manufacturers. Applications must
be submitted, along with a sufficient number of kits and the
instructions for using the kits, to EPA. The test kit manufacturer
should first visit the following website for information on where to
apply: http://www.epa.gov/etv/howtoapply.html.
    c. Minor repair and maintenance. EPA proposed to incorporate into
this regulation the minor maintenance exception for the Pre-Renovation
Education Rule. The proposed minor maintenance exception would have
applied to projects that disturb 2 ft\2\ or less of painted surface per
component. The preamble to the 2006 Proposal discusses the history of
this exception and requested comment on potential changes. In
particular, EPA noted that HUD's Lead Safe Housing Rule, at 20 CFR
35.1350(d), includes a de minimis exception for projects that disturb 2
ft\2\ or less of painted surface per room for

[[Page 21714]]

interior projects, 20 ft\2\ or less of painted exterior surfaces, and
10% or less of the total surface area on an interior or exterior type
of component with a small surface area. If less than this amount of
painted surface is disturbed, HUD's lead-safe work practice
requirements do not apply. EPA's lead-based Paint Activities Regulation
incorporates this as an exception for small projects at 40 CFR
745.65(d). EPA requested comment on whether the minor maintenance
exception in this regulation should be consistent with other EPA
regulations and the HUD Lead Safe Housing Rule. This provision
describes the applicability of the Pre-Renovation Education Rule as
well as this final rule.
    Most commenters expressed support for consistency in the various
lead-based paint regulations administered by EPA and HUD. They noted
that a consistent exception for small projects or minor maintenance
would be easier for the regulated community to apply. Many of these
commenters recommended 2 ft\2\ for interior projects and 20 ft\2\ on
exterior surfaces. While some commenters supported a ``per component''
exception, several commenters specifically noted that the ``per
component'' aspect of the existing Pre-Renovation Education Rule
exception was problematic in that it could result in the disturbance of
large areas of painted surfaces in a single room. Other commenters
recommended that the threshold area for the exception be made smaller
or the exception abolished. These commenters noted that even very small
projects have the potential to create lead-based paint hazards and
that, rather than worrying about the applicability of the exception,
renovation firms should just get into the habit of performing every
project in a lead-safe manner. Other commenters suggested that EPA
consider a larger threshold area for the exception, or an exception
based on other factors, such as time spent performing an activity. EPA
recognizes that, depending upon the methods used to disturb lead-based
paint, very small disturbances can release a great deal of lead. EPA
also understands the practicality of a minor maintenance exception.
    In weighing these competing considerations, EPA has decided to
incorporate in this final rule a minor maintenance exception for
projects that disturb 6 ft\2\ or less of painted surface per room for
interiors and 20 ft\2\ or less of painted surface on exteriors. This
addresses the concerns of those commenters who supported a ``per
component'' exception while still limiting the overall amount of paint
that can be disturbed in a single room during a single project. As in
the 2006 Proposal, this exception is not available for window
replacement projects. In contrast to the Proposal, this exception is
only available for projects that do not use any of the work practices
prohibited or restricted by 40 CFR 745.85(a)(3) and that do not involve
demolition of painted surface areas.
    EPA remains convinced that the distinction between renovation and
minor maintenance activities is an important part of implementing this
program. Congress directed EPA to address renovation and remodeling. In
ordinary usage, minor maintenance activities that might disturb lead-
based paint (e.g., removing a face plate for an electric switch to
repair a loose connection, adding a new cable TV outlet, or removing a
return air grill to service the HVAC system) are not normally
considered home renovations. EPA believes that minor repair and
maintenance activities that cover 6 ft\2\ or less per room and 20 ft\2\
or less for exteriors and that do not involve prohibited practices,
demolition or window replacement would not ordinarily be considered
renovation or remodeling but would better be described as minor work on
the home or COF. EPA also believes that a typical minor repair and
maintenance activity would not normally involve the use of high dust
generating machinery such as those prohibited or restricted by this
rule. To make the distinction between renovations and minor repair and
maintenance activities clear, EPA has added a definition of ``minor
repair and maintenance activities'' to 40 CFR 745.83. This term is
defined as follows:
    Minor repair and maintenance activities'' are activities,
including minor heating, ventilation or air conditioning work,
electrical work, and plumbing, that disrupt 6 square feet or less of
painted surface per room for interior activities or 20 square feet
or less of painted surface for exterior activities where none of the
work practices prohibited or restricted by Sec.  745.85(a)(3) are
used and where the work does not involve window replacement or
demolition of painted surface areas. When removing painted
components, or portions of painted components, the entire surface
area removed is the amount of painted surface disturbed. Jobs, other
than emergency renovations, performed in the same room within the
same 30 days must be considered the same job for the purpose of
determining whether the job is a minor repair and maintenance activity.

    To accommodate this new definition of ``minor repair and
maintenance activities,'' the definition of ``renovation'' in Sec. 
745.83 has also been changed to include the following sentence: ``The
term renovation does not include minor repair and maintenance
activities.'' As a result of these two definitional changes, the
reference to minor maintenance in 40 CFR 745.82(a)(1) is no longer
necessary. Therefore, when engaged in minor repair and maintenance
activities as defined in 40 CFR 745.83, renovation firms and renovators
are not covered by this rule. EPA believes this approach--eliminating
the per-component limitation in favor of an overall size cap, and
prohibiting practices that EPA believes are inconsistent with minor
maintenance work and that generate very high lead dust loadings--is a
reasonable balance of the considerations identified by commenters and
considered by EPA.
    Several commenters expressed concerns about how the exception would
be applied, and whether various activities would be covered by the rule
or exempt under the minor maintenance exception. Window replacement was
of interest to several commenters, who referred to EPA's previous
guidance on window replacement under the Pre-Renovation Education Rule
(Ref. 29). That guidance states that window replacement, for various
reasons, cannot qualify for the minor maintenance exception. EPA knows
of no reason why this interpretation should be changed. In fact,
contrary to the assertions of some commenters, the Dust Study found
that window replacement was one of the more hazardous jobs. The
geometric mean of the lead content of floor dust samples taken in the
work area after the window replacement projects was 3,003 μg/ft\2\
(Ref. 17, at 6-11). In addition, EPA does not believe that window
replacement is within the common understanding of the meaning of either
minor repair or maintenance. EPA has specifically included language in
the definition of ``minor repair and maintenance activities'' to make
it clear that window replacements cannot qualify.
    Two commenters contended that, when determining whether wall or
ceiling cut-outs exceed the minor maintenance exception, the painted
surface disturbed should be measured by multiplying the length of the
cut by its width, as opposed to the total size of the cut-out. EPA
disagrees with these commenters. For cut-outs, the calculation is made
for the entire area of surface being disturbed, e.g., the area of the
cut-out, for the following reasons:
    • The removed portion can flex or be broken during the
removal process and the paint can flake off;
    • The removed portion can fall on the floor and be trampled upon; or
    • The removed portion may not be removed as a single piece.

[[Page 21715]]

    Calculating the amount of painted surface disturbed in the manner
that the commenters suggested would also complicate the rule and be
more difficult to convey during the renovator training course. In
response to these comments, EPA has inserted clarifying language on
this into the text of the definition of ``minor repair and maintenance
activities'' at 40 CFR 745.83.
    One commenter recommended that EPA prohibit splitting work, i.e.,
conducting a single project as several minor maintenance activities in
the same room in a short time (like a month) in order to avoid the
regulatory requirements. EPA agrees with this commenter. It has always
been EPA's interpretation of the Pre-Renovation Education Rule that
renovators could not artificially split up projects in order to avoid
having to provide the pamphlet. In response to this comment, EPA has
inserted clarifying language on this into the definition of ``minor
repair and maintenance activities'' at 40 CFR 745.83. This definition
states that jobs, other than emergency renovations, performed in the
same room within the same 30 days must be considered the same job for
the purpose of determining whether the job is a minor repair and
maintenance activity.
    d. Emergency projects. Both the 2006 Proposal and the 2007
Supplemental Proposal proposed to retain the emergency project
exception in the Pre-Renovation Education Rule with one modification.
EPA proposed to clarify that interim control projects performed on an
expedited basis in response to an elevated blood lead level finding in
a resident child qualify for the emergency project exception from the
Pre-Renovation Education Rule requirements. As discussed in the 2006
Proposal, EPA was concerned that local public health organizations may
be delayed in responding to a lead-poisoned child if the owner of the
building where the child resides is not available to acknowledge
receipt of the lead hazard information pamphlet before an interim
control project begins. In addition, EPA recognized that some
emergencies could make it difficult to comply with all of the training,
certification, work practice, and recordkeeping requirements. For
example, a broken water pipe may make it impossible to contain the work
area before beginning to disturb painted surfaces to get to the pipe.
The proposed emergency project exception would have required firms to
comply with the work practice, training, certification, and
recordkeeping requirements to the extent practicable.
    EPA received a number of comments on this aspect of the 2006
Proposal. Several recognized the need for such an exception, but most
of the commenters were concerned that the language of the proposal
would make it possible for renovation firms to circumvent the training,
certification, and work practice controls when performing interim
controls in response to a child with an elevated blood lead level. A
number of these commenters, as well as several others, urged EPA to be
more specific about which requirements could be bypassed in particular
situations. EPA agrees with these commenters. It never was EPA's
intention to allow firms performing interim controls in response to a
poisoned child to use untrained workers or work in a manner not
consistent with the work practices required by this rule.
    EPA has therefore revised the exception to specifically state that
interim controls performed in response to a child with an elevated
blood lead level are only exempt from the information distribution
requirements, which is consistent with the current Pre-Renovation
Education Rule. EPA has also modified the exception to state that
emergency renovations are only exempt to the extent necessary to
respond to the emergency from the training, certification, sign
posting, and containment requirements of this regulation. For example,
most property management companies who do their own maintenance are
likely to have at least one trained and certified renovator on staff to
perform renovations, so these companies should be able to comply with
the training and certification requirements on all renovations.
Likewise, firms performing emergency renovations should be able to
follow the required cleaning procedures after emergency repairs have
been made. As such, under the final rule, in all cases the cleaning
specified by the regulation must be performed and it must be performed
or directed by certified renovators. In addition, in all cases, the
cleaning verification requirements of this regulation must be performed
and they must be performed by a certified renovator. In response to one
commenter who requested that EPA require firms to document their
inability to comply with all of the regulatory provisions in
emergencies, EPA has included such a requirement in 40 CFR
745.86(b)(7). Finally, EPA has removed the word ``operations'' from the
exception, in response to one commenter who suggested that the word is
unnecessary and confusing. EPA agrees that the word ``operations'' is
unnecessary in its description of emergency renovations. EPA intends to
continue interpreting the term ``emergency renovations'' in the same
way that it always has done, except that EPA has clarified that interim
controls performed in response to a child with an elevated blood-lead
level can be an emergency renovation.

B. Pre-Renovation Education

    The Pre-Renovation Education Rule, promulgated pursuant to TSCA
section 406(b) and codified at 40 CFR part 745, subpart E, requires
renovators to provide owners and occupants of target housing with a
lead hazard information pamphlet before beginning a renovation in the
housing (Ref. 8). The pamphlet currently used for this purpose,
``Protect Your Family From Lead in Your Home,'' was developed in
accordance with TSCA section 406(a) and includes useful information on
lead-based paint and lead-based paint hazards in general. This pamphlet
is also used to provide lead hazard information to purchasers and
renters of target housing under the Requirements for Disclosure of
Information Concerning lead-Based Paint in Housing ``Lead Disclosure
Rule'' (Ref. 30).
    1. New renovation-specific pamphlet. EPA has developed a new lead
hazard information pamphlet that addresses renovation-specific lead
exposure concerns. The development of this pamphlet, including the
public comments received on the format and content, is discussed in
greater detail in a separate notice published elsewhere in today's
Federal Register. This new renovation-specific pamphlet, entitled
Renovate Right: Important Lead Hazard Information for Families, Child
Care Providers and Schools will better inform families about the risks
of exposure to lead-based paint hazards created during renovations and
promote the use of work practices and other health and safety measures
during renovation activities (Ref. 31). This new pamphlet gives
information on lead-based paint hazards, lead testing, how to select a
contractor, what precautions to take during the renovation, and proper
cleanup activities, while still incorporating the information already
included in the original ``Protect Your Family From Lead In Your Home''
and mandated by section 406(a) of TSCA.
    In the 2006 Proposal, EPA proposed to require renovation firms to
distribute the new renovation-specific pamphlet (then titled Protect
Your Family From Lead During Renovation, Repair & Painting) instead of
the pamphlet currently used for this purpose (Protect Your Family From
Lead in Your Home).

[[Page 21716]]

In general, most commenters were supportive of a requirement to
distribute a new renovation-specific pamphlet for the purposes of TSCA
section 406(b). One commenter stated a belief that the existing Protect
Your Family From Lead in Your Home pamphlet had served its purpose well
and the development of a new pamphlet should not be a priority. EPA
agrees with the commenters who recognized the merit of providing
renovation-specific information to owners and tenants before
renovations commence. Therefore, this final rule will require
renovation firms to distribute the new Renovate Right: Important Lead
Hazard Information for Families, Child Care Providers and Schools;
pamphlet before beginning renovations. This requirement to use the new
pamphlet will become effective as discussed in Unit III.H. of this preamble.
    2. Information distribution requirements. Other than the use of the
new renovation-specific pamphlet, EPA did not specifically propose any
changes to the existing information distribution requirements for
target housing that does not meet the proposed definition of ``child-
occupied facility.'' One commenter contended that the existing
information distribution requirements for multi-family target housing
were extremely burdensome and resulted in tenants being given multiple
notifications and copies of the lead hazard information pamphlet over
the course of a year's time. This commenter requested that EPA modify
the regulations to allow an annual distribution of renovation-related
lead hazard information to tenants. However, as noted in interpretive
guidance previously issued on the Pre-renovation Education Rule, EPA,
in developing the final Pre-renovation Education Rule, carefully
weighed whether a one-time pamphlet distribution would be adequate to
meet the objectives of section 406(b) of the lead statute, and
concluded that many, if not most, tenants would benefit from receiving
the information in the lead pamphlet closer to the time that a
renovation is to begin. Although some tenants may read lead information
delivered on a ``for-your-information'' basis, many others are not
likely to focus on potential lead hazards until a renovation affecting
their unit is imminent, and would welcome receiving information on
protecting their families from lead in a more timely fashion.
Therefore, EPA has determined that an annual distribution of
renovation-specific lead hazard information would not be an effective
means of providing timely information to tenants.
    However, with respect to renovations in common areas, EPA has
determined that there are other effective ways of delivering lead
hazard information to tenants in a timely manner. Specifically, the
posting of informational signs during the renovation in places where
the tenants of the affected units are likely to see them will provide
these tenants with the information they need at the time that they need
it. Depending upon the circumstances, renovation firms may find the
posting of such signs to be less burdensome than mailing or hand-
delivering this information to affected tenants. Indeed sign posting
may be more effective than mail since it provides an immediate
reminder. Therefore, EPA will allow renovation firms performing
renovations in common areas of multi-unit target housing the option of
mailing or hand-delivering general information about the renovation and
making a copy of the pamphlet available to the tenants of affected
units upon request prior to the start of the renovation, or posting
informational signs while the renovation is ongoing. These signs must
be posted where they are likely to be seen by all of the tenants of the
affected units and they must contain a description of the general
nature and locations of the renovation and the anticipated completion
date. The signs must be accompanied by a posted copy of the pamphlet or
information on how interested tenants can review or obtain a copy of
the pamphlet at no cost to the tenants.
    One commenter expressed concern about tenants either not seeing the
``postings'' because they use different entrances or distinguishing the
renovation-specific lead hazard information ``postings'' from other
``postings'' in the general area. To take advantage of this option,
this final rule requires renovation firms to use actual signs, not
notices on tenant bulletin boards. In addition, these signs must be
posted where the tenants of all of the affected units can see them. If
the tenants of the affected units use several different entrances, a
sign posted by one of the entrances would not be sufficient.
    With respect to renovations in individual housing units, whether
single family or multi-family, firms performing renovations for
compensation in target housing must continue to distribute a lead
hazard information pamphlet to the owners and tenants of the housing no
more than 60 days before beginning renovations. This requirement, along
with the associated requirements to obtain acknowledgments or document
delivery, has not changed. For renovations in the common areas of
multi-unit target housing, firms must provide tenants with general
information regarding the nature of the renovation and make the
pamphlet available upon request, by mailing, hand-delivery, or posting
informational signs. Firms must also maintain documentation of
compliance with these requirements. The 2007 Supplemental Proposal
contained additional proposed information distribution requirements for
child-occupied facilities in target housing and in public and commercial
buildings. This final rule incorporates those additional requirements.
    Also, as proposed in the 2006 Proposal, this final rule deletes the
existing 40 CFR 745.84 because it is duplicative. The section provided
some details on submitting CBI and how EPA will handle that
information. However, comprehensive regulations governing sensitive
business information, including CBI under TSCA, are codified in 40 CFR
part 2. The regulations in 40 CFR part 2 set forth the procedures for
making a claim of confidentiality and describe the rules governing
EPA's release of information. EPA received no comments on the proposed
deletion of 40 CFR 745.84. Therefore, EPA is deleting this section and
redesignating existing 40 CFR 745.85 as 40 CFR 745.84.
    EPA is also taking this opportunity to reiterate who is responsible
for complying with the information distribution responsibilities of 40
CFR 745.84. This provision of this final rule includes the existing
Pre-Renovation Education Rule information distribution requirements as
amended to include requirements applicable to child-occupied
facilities. In interpretive guidance issued for the Pre-Renovation
Education Rule, EPA shed additional light on the issue of who is
responsible for complying with the information distribution
requirements, particularly for renovation projects where multiple
contractors are involved (Ref. 32). EPA stated that if the renovation
is overseen by a general contractor, the general contractor is
considered to be the ``renovator'' under the rule and is therefore
responsible for ensuring that the information distribution requirements
are met. EPA further stated that it would not consider a subcontractor
to be a ``renovator'' for purposes of the Pre-Renovation Education Rule
so long as the subcontractor has no direct contractual relationship
with the property owner or manager relating to the particular renovation.
EPA's reasoning is that the information distribution requirements

[[Page 21717]]

should be fulfilled by the person or entity with which the customer
enters into the contract and compensates for the work--even if that
work is subsequently contracted out.
    This final rule changes the existing definition of ``renovator'' to
refer specifically to the individual trained in work practices as
distinct from the renovation firm. The final rule also specifies in 40
CFR 745.84 that the renovation firm is responsible for carrying out the
information distribution requirements. Renovation firms may find it
more efficient to have someone other than the certified renovator
distribute the pamphlet and obtain the acknowledgement forms. In
changing the definition of ``renovator,'' EPA is not changing its
policies as to which entity, between a contractor and subcontractor, is
responsible for carrying out the information distribution requirements.
On the contrary, as to this issue, EPA intends to continue interpreting
the regulatory responsibility for the information distribution
requirements as it has in the past.
    a. Owners and occupants of public or commercial buildings
containing a child-occupied facility. The Pre-Renovation Education Rule
covers only renovations in target housing. Thus, the information
distribution requirements summarized in the preceding paragraph have
not historically applied to firms performing renovations for
compensation in public or commercial buildings. In the 2007
Supplemental Proposal, EPA proposed to require firms performing
renovations for compensation in child-occupied facilities in public or
commercial buildings to provide a lead hazard information pamphlet to
the owner of the building as well as to an adult representative of the
child-occupied facility, if the owner of the building and the child-
occupied facility are different entities. This requirement was modeled
on the Pre-Renovation Education Rule's requirements for pamphlet
distribution in rental target housing. As described in the 2007
Supplemental Proposal, EPA has determined, in accordance with TSCA
section 407, that the distribution of lead hazard information, before
renovation projects begin, to an adult representative of the child-
occupied facility as well as to the owners of public or commercial
buildings that contain child-occupied facilities is necessary to ensure
effective implementation of this regulation. EPA believes that
information on lead-based paint hazards, and lead-safe work practices
that minimize the creation of hazards, will stimulate interest on the
part of child-occupied facilities and public or commercial building
owners in these work practices and increase the demand for their use.
    EPA received no comments on this aspect of the 2007 Supplemental
Proposal. Therefore, the final rule includes this requirement as
proposed. Renovation firms performing renovations for compensation in a
child-occupied facility in a public or commercial building must provide
the lead hazard information pamphlet entitled Renovate Right: Important
Lead Hazard Information for Families, Child Care Providers and
Schoolsto the owner of the building. The renovation firm must either
obtain written acknowledgment from the owner that the pamphlet was
delivered or obtain a certificate of mailing for the pamphlet at least
7 days prior to the start of the renovation. In addition, the
renovation firm must provide the pamphlet to an adult representative of
the child-occupied facility if the facility and the building are owned
by different entities. To document compliance with this requirement,
the renovation firm must do one of the following:
    • Obtain a written acknowledgment of pamphlet delivery from
the adult representative of the child-occupied facility.
    • Obtain a certificate of mailing for the pamphlet at least
7 days prior to the start of the renovation.
    • Certify in writing that the pamphlet has been delivered to
the child-occupied facility and the firm has been unsuccessful in
attempting to obtain the signature of an adult representative of the
child-occupied facility. This certification must contain the reason for
the failure to obtain the signature.
    b. Parents and guardians of children under age 6 using a child-
occupied facility. The 2007 Supplemental Proposal would also have
required a renovation firm performing a renovation for compensation in
a child-occupied facility to provide information about the renovation
to the parents and guardians of children under age 6 using the
facility. This proposed requirement was designed to be comparable to
the Pre-Renovation Education Rule provisions for informing adult
occupants (who are not owners). EPA is finalizing this requirement as
proposed. The renovation firm must either mail each parent or guardian
the lead hazard information pamphlet and a general description of the
renovation or post informational signs where parents and guardians
would be likely to see them. The signs must be accompanied by a posted
copy of the pamphlet or information on how to obtain the pamphlet at no
charge to interested parents or guardians. This requirement applies to
renovations in child-occupied facilities in target housing as well as to
renovations in child-occupied facilities in public or commercial buildings.
    EPA received three comments on this aspect of the 2007 Supplemental
Proposal. One commenter expressed support for this proposed
requirement. The other two provided a number of reasons why the final
rule should not include such a requirement. These commenters noted that
renovation firms have no contractual connection with or contractual
responsibility to the parents or guardians of children using a child-
occupied facility. They believe that the child-occupied facility owner
bears primary responsibility for maintaining a safe environment for
children. They were also concerned that renovation firms might be
called upon to spend a significant amount of additional time at a
child-occupied facility to answer parents' questions about lead
poisoning. EPA is not persuaded by these comments. Although the firms
may have no contractual connection with the parents or guardians of the
children, that is often the case with occupants who are not owners.
Although child-occupied facility owners bear responsibility for
maintaining a safe environment for children, renovation firms are
responsible for providing the pamphlet to owners and occupants. Once
the renovation firm has distributed the pamphlet, it has no further
obligation to educate the owners or occupants about lead poisoning. The
pamphlet contains this information and refers to additional resources.
EPA acknowledges that it may be difficult to provide copies of the
pamphlet to each parent, which is why this final rule allows renovation
firms to comply by posting informational signs where parents or
guardians would be likely to see them.
    c. Other commenter suggestions regarding information distribution
to owners and occupants. EPA received a number of comments that
recommended that additional information be provided to the owner and
the occupant before and after a renovation occurs. These commenters
believe that one of the purposes of this rule ought to be to provide
enough information to owners and occupants so that they can understand
the work practices and can adequately monitor the work being performed
by renovation firms. EPA agrees that consumers will play a critical
role in ensuring that the requirements of this regulation are being
followed. EPA believes that some of the

[[Page 21718]]

suggested items of additional information, such as an explanation of
the cleaning verification process, use of test kits, lead-based paint
and dust testing recommendations, and how to find a qualified person to
do testing, are best addressed through revisions to the new lead hazard
informational pamphlet for renovations, Renovate Right: Important Lead
Hazard Information for Families, Child Care Providers and Schools.
Those changes are described and discussed in a notice published
elsewhere in today's Federal Register.
    Other information distribution elements recommended by these
commenters are likely to be provided by renovation firms already. For
example, several commenters suggested that EPA require the renovation
firm to provide emergency contact information to owners and occupants.
EPA believes that, during the normal course of business, persons that
hire renovation firms to perform renovations typically already have
contact information. A person who contracts for a renovation is likely
to be the owner of the property being renovated, and this person is
also likely to be able to stop the work at any time so that he or she
can confer with the certified renovator or supervisor. Occupants who
are not the owners of the property being renovated often will not be
the party contracting for the renovation and may not always have
emergency contact information for the specific firm performing a
renovation in their housing unit or building. However, these occupants
will most likely have contact information for their landlord, and the
landlord as the person most likely contracting with the renovation firm
and therefore to have authority to direct the renovation work. In
addition, renovations that occur in occupied rental housing are likely
to be maintenance or repair projects that are performed by the landlord,
the landlord's employees, or a maintenance company under contract to
perform all maintenance for a particular landlord or rental complex.
    Some commenters suggested that EPA require renovation firms provide
a description of the work area and identify the designated entrance and
exit from the work area. EPA is not requiring the renovation firm to
designate a specific entrance and exit from the work area. This final
rule requires the work area itself to be delineated by warning signs
and plastic containment. EPA does not believe there is any utility in
requiring the contractor to also provide the owner and occupant with a
written description of the work area before the work begins.
    Other commenters noted the existence of the Lead Disclosure Rule
(Ref. 30), promulgated under section 1018 of the Residential lead-Based
Paint Hazard Reduction Act of 1992, and codified at 40 CFR part 745,
subpart F and 24 CFR part 35. These commenters stated that information
about the use of spot test kits and the results of those tests, and
well as any sort of dust testing information, are information
pertaining to lead-based paint or lead-based paint hazards and would
therefore have to be disclosed to subsequent purchasers or tenants of
the renovated property under the Lead Disclosure Rule. These commenters
further opined that a requirement for the renovation firm to provide
this information to the owner of the property is necessary to ensure
the information is available to be disclosed. With respect to the use
of test kits to determine whether components to be affected by a
renovation contain lead-based paint, EPA agrees with these commenters
in their Lead Disclosure Rule analysis. Therefore, this final rule
includes a requirement for the renovation firm to provide, within 30
days, information identifying the manufacturer and model of test kits
used, a description of the components tested, including locations, and
the results of the test kits to the person who contracted for the
renovation. EPA also agrees that dust clearance sampling information is
information pertaining to lead-based paint hazards and must be
disclosed under the Disclosure Rule. If dust clearance sampling is
performed instead of cleaning verification as permitted in 40 CFR
745.85(c), this final rule requires the renovation firm to provide,
within 30 days, a copy of the dust clearance report to the person
contracting for the renovation.
    However, EPA does not believe that information related to cleaning
verification is a record or report ``pertaining to lead-based paint or
lead-based paint hazards'' for purposes of section 1018. As discussed
in more detail in Unit III.E.7. of this preamble, cleaning verification
is not the equivalent of clearance. The purpose of cleaning
verification is to determine whether the dust that was created by the
renovation, whether or not it contains lead, has been adequately
removed. Although the disposable cleaning-cloth study, discussed in
Unit III.E.7., and the Dust Study show that information is correlated
with the hazard standard, the purpose of cleaning verification is not
to detect lead-based paint hazards per se. In addition, under this
final rule, cleaning verification must be completed for every
renovation (i.e., it must achieve ``white glove'' or the prescribed
combination of wet and dry wipes must have been used), so the results
of verification will always show that ``white glove'' or the equivalent
has been achieved. As explained below, the cleaning verification is
part of a package of work practices that, together, minimize exposure
to hazards created by renovation. Also, as explained below, completing
the cleaning verification process does not necessarily indicate that
the surface does not have lead-based paint hazards unrelated to the
renovation. Therefore, EPA will not require the results of cleaning
verification activities to be disclosed under the Lead Disclosure Rule.

C. Training and Certification

    Under the current Lead-based Paint Activities Regulations at 40 CFR
part 745, subpart L, both individuals and firms that perform lead-based
paint inspections, lead hazard screens, risk assessments, and
abatements must be certified by EPA. EPA proposed a similar, but not
identical, regulatory scheme for individuals and firms that perform
renovations.
    This final rule requires all renovations subject to this rule to be
performed by a firm certified to perform renovations. In addition, the
rule requires that all persons performing renovation work either be
certified renovators or receive on-the-job training from and perform
key tasks under the direction of a certified renovator. In order to
become a certified renovator, a person must successfully complete an
accredited renovator course. EPA renovator certification allows the
certified individual to perform renovations in any State, Territory, or
Indian Tribal area that does not have a renovation program authorized
under 40 CFR part 745, subpart Q. These requirements are discussed in
greater detail in the following sections.
    EPA is also creating, with this final rule, a dust sampling
technician discipline. Although, as discussed in Unit III.E.7. of this
preamble, this final rule does not allow dust clearance testing in lieu
of post-renovation cleaning verification, except in limited
circumstances, EPA still believes that there will be a market for the
services of persons with dust sampling technician credentials. EPA
recommends that any property owners who choose to have dust clearance
testing performed after a renovation use a certified inspector, risk
assessor, or dust sampling technician.
    Finally, in response to one commenter who suggested that EPA's use
of the term ``person'' and the term

[[Page 21719]]

``individual'' was confusing, EPA has modified the regulatory text in
the sections added or significantly revised by this final rule to use
the term ``person'' when referring to both natural persons and judicial
persons, such as renovation firms, property management companies, or
units of government, and the term ``individual'' when referring only to
natural persons.
    1. Individuals. Under this final rule, EPA is establishing new
individual certification disciplines for renovators and dust sampling
technicians. All renovation activities covered by this final rule must
be performed by certified renovators, or by renovation workers who receive
on-the-job training in the work practices from a certified renovator.
    a. Certified renovators and renovation workers--i. Responsibilities
of certified renovators. The certified renovator assigned to a
renovation is responsible for ensuring that the renovation is performed
in compliance with the work practice requirements set out in 40 CFR
745.85. 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), waste handling, cleaning, and
post-renovation cleaning verification. The certified renovator can
perform these work practices herself or himself. Alternatively, the
certified renovator can direct other workers to perform most of these
work practices. However, the post-renovation cleaning verification
requirements must be performed by a certified renovator. These
requirements cannot be delegated to a worker. If the certified
renovator directs the other workers to perform the work practices, the
certified renovator must be at the work site during the critical phases
of the renovation activity. The critical phases are posting warning
signs, containing the work area, and cleaning the work site.
    Although the certified renovator is not required to be on-site at
all times, while the renovation project is ongoing, a certified
renovator must nonetheless regularly direct the work being performed by
other workers to ensure that the work practices are being followed.
When a certified renovator is not physically present at the work site,
the workers must be able to contact the renovator immediately by
telephone or other mechanism. A certified renovator must:
    • Perform the post-renovation cleaning verification
described in 40 CFR 745.85(b).
    • Perform or direct workers who perform all of the work
practices described in 40 CFR 745.85(a).
    • Provide training to workers on the work practices they
will be using in performing their assigned tasks.
    • Be physically present at the work site when the signs
required by 40 CFR 745.85(a)(1) are posted, while the work area
containment required by 40 CFR 745.85(a)(2) is being established, and
while the work area cleaning required by 40 CFR 745.85(a)(5) is performed.
    • Regularly direct the work being performed by other 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.
    • Be available, either on-site or by telephone, at all times
that renovations are being conducted.
    • When requested by the party contracting for renovation
services, use an acceptable test kit to determine whether components to
be affected by the renovation contain lead-based paint.
    • Have with them at the work site copies of their initial
course completion certificate and their most recent refresher course
completion certificate.
    • Prepare the records required to demonstrate that renovations have
been performed in accordance with the requirements of this rule.
    There are some slight revisions between the 2006 Proposal and this
final rule, although none of these changes add to or detract from the
renovator's responsibilities. First, the Proposal used both the term
``lead-safe work practices'' and ``work practices'' in the preamble and
in the proposed rule text. Although the work practices required in this
final rule are lead-safe, for purposes of clarity, the final rule text
has been changed to ``work practices.'' The reason for this change was
to make text of the rule relating the renovator's responsibilities text
consistent with other provisions in the rule, particularly 40 CFR
745.85 (Work Practice Standards). Today's work practices are lead-safe
work practices. The work practice standards listed in Sec.  745.85(a)
are the same tasks that the other workers will be directed in and
trained to do by the certified renovator (except for cleaning
verification). In addition, the term ``lead-safe work practices'' has
different meanings in different contexts, and this change is to make
clear that the work practices required by this final rule are the work
practices required in Sec.  745.85(a).
    Second, one of the renovator's responsibilities listed in the
preamble of the 2006 Proposal was to ``[r]egularly direct the work
being performed by uncertified persons to ensure that lead-safe work
practices are being followed, the integrity of the containment barriers
is maintained, and dust or debris is not spread beyond the work area.''
The word ``regularly'' was inadvertently omitted from the proposed
regulatory text. To make the regulatory text consistent with the
preamble, the word ``regularly'' has been added to the final regulatory
text. In addition, EPA has slightly modified the regulatory text,
consistent with the preceding paragraph, to clarify that maintaining
the integrity of the containment barriers and ensuring that dust or
debris does not spread beyond the work area are among the work
practices required by the rule.
    Some commenters agreed that it was unnecessary for a certified
renovator to be on site at all times and believed that oversight by a
certified renovator on a regular basis was sufficient. One commenter
believed that the certified renovator should be on site at critical
points including site preparations and isolation, end of day and end of
project cleaning, and cleaning verification. Many other commenters
thought a certified renovator should be on site at all times. Another
stated that a certified renovator would not have to be on site at all
times if workers received lead safe work practices training. After
carefully considering the issue, EPA has concluded that requiring a
certified renovator to be on site during critical phases of the work is
sufficient to ensure that the work practices required by this final
rule are followed. These work practices provide a mechanism to contain
dust and debris generated by a job and a clean-up regimen following
work that is designed to minimize exposure to lead-based paint hazards
created during the renovation activity. Once the containment has been
established and until cleanup begins, this final rule requires few, and
simple, changes from the way renovation work is currently carried out.
Specifically, renovation workers need to avoid using the specific
practices prohibited by this final rule; they need to maintain the
containment (e.g., avoid ripping or displacing the plastic); and they
need to make sure that any waste generated is contained at the end of
the day. These are important but relatively simple measures that EPA
does not believe require formal classroom training, or the constant
supervision of a certified renovator who has had formal training. Once
the cleanup begins, the certified renovator will again be required to
be present, either performing the cleanup

[[Page 21720]]

or directing others. In addition, the certified renovator must perform
the cleaning verification. Thus, EPA has concluded that having a
renovator on site at all times is unwarranted.
    ii. Renovator training. To become a certified renovator, a person
must successfully complete a renovator course accredited by EPA or by a
State, Territorial, or Tribal program authorized by EPA.
    Some commenters questioned the need to create a separate discipline
for renovators. In their opinion, the existing abatement course is
sufficient (with some basic changes) and to create a new program will
take resources away from existing efforts in lead hazard control. EPA
believes that there are sufficient differences between abatement and
renovation activities to warrant different training and work practice
requirements. Specific activities of an abatement contractor may be
similar to those of a renovator (e.g., sanding, caulking, painting,
sawing), but because the project goal is the permanent elimination of
hazards, the application and methodology differ. Therefore, a
significant portion of an abatement contractor's training is focused on
abatement techniques and selection of the appropriate course of action
for a variety of hazards. Renovators, on the other hand, do not seek to
permanently eliminate lead hazards. Renovators perform maintenance and
improvement tasks as directed by the consumer. The goal of EPA's
renovator training and certification program is not to update the
methodology a renovator uses to accomplish these tasks, with the
exception of the practices prohibited or restricted by this final rule,
but rather to introduce containment and cleaning methods to minimize
exposure to lead-based paint hazards created by the renovation activity.
    Several commenters saw the need for universal, standard renovator
training. A commenter suggested that training for certified renovators
be similar to the current EPA/HUD renovator and remodeler course. One
commenter thought that standard training would make it easier when
hiring someone to verify that they had completed the appropriate
training. Another mentioned that it would encourage state-to-state
reciprocity for training programs so that renovators would not need to
take multiple courses with the same content. EPA plans to work with HUD
to update the model EPA/HUD renovator training course to cover the
requirements of this final rule. EPA agrees that reciprocity among
authorized State, Territorial, and Tribal programs, and with the
Federal program, is preferable. However, as with the abatement program,
authorized programs will have the ability to customize requirements and
course content based on their particular needs. The Agency encourages
jurisdictions seeking authorization to consider reciprocity of training
as they develop their individual programs.
    Commenters were also concerned about the cost of formal training.
Commenters thought that EPA could provide free training to encourage
renovator compliance, or that EPA funds for enforcement of the final
rule would be better spent on training. EPA agrees that renovator
training should be as inexpensive as possible. However, the training
course costs will be established by independent training programs based
on market forces. The total cost of conducting a training course
depends upon the labor cost for the instructor(s), the cost of
providing a classroom and other facilities, and other fixed costs. But
the cost per trainee also depends on the number of trainees per class.
Due to the large number of individuals who will need training, the
Agency anticipates that demand will be high, keeping the cost per
trainee lower than might otherwise be the case. But also due to that
large volume, the Agency does not anticipate that it will be able to
provide any significant source of funding to support training.
    iii. Other renovation worker training. This final rule does not
require everyone involved in performing a regulated renovation project
to receive training from an accredited training provider. To allow
flexibility for firms undertaking these projects, the rule allows firms
to use other workers to perform renovation activities as long as they
receive on-the-job training (OJT) in work practices from a certified
renovator. This training must include instruction in the specific work
practices that these workers will be responsible for performing. OJT
training occurs while the worker is engaged in productive work and
which provides knowledge and skills essential to the full and adequate
performance of the job. OJT may also be structured through a planned
process of developing competence on units of work by having the
certified renovator train the worker at the work setting or a location
that closely resembles the work setting. Although there is no specific
requirement for ``refresher training,'' OJT must be provided for each
worker for each job to the extent necessary to ensure that that worker
is adequately trained for the tasks he or she will be performing.
    If, under the direction of the certified renovator, the workers
will be posting warning signs, establishing containment, or cleaning
the work area after the renovation, the certified renovator must
provide instruction, either verbally or through demonstration, to the
workers in how to perform these tasks. With respect to other
activities, including work performed while the certified renovator is
not present, the certified renovator must provide instruction, either
verbally or through demonstration, in how to perform the work without
using work practices prohibited by this rule, how to maintain the
integrity of the containment barriers (e.g., taking care not to tear
the plastic), and how to avoid spreading dust or debris beyond the work
area (e.g., vacuuming clothing and tools with a HEPA vacuum before
leaving the work area). In any event, the certified renovator remains
responsible for ensuring that this work is done in compliance with the
rule's requirements, e.g., that containment sufficient to prevent release
of dust or debris from the work site has been established and that
clothing and tools were adequately cleaned before leaving the work area.
    Workers need not be trained in work practices that do not pertain
to the renovations they will be performing. If the certified renovator
will be the one posting warning signs, establishing containment, and
cleaning the work area after the renovation, it is not necessary for
the certified renovator to provide instruction on these tasks to any
workers who will be used elsewhere on the project. Similarly, workers
hired to perform only exterior projects need not receive training in
how to clean an interior work area after a renovation.
    EPA chose to allow OJT to alleviate industry concerns raised during
the SBREFA panel process regarding high employee turnover rates within
the industry and the potential for high training costs if all workers
were required to be certified. The Agency concluded that allowing OJT
could be done effectively and would provide flexibility for firms
undertaking renovation projects. EPA determined that OJT can be
effectively delivered by a certified renovator because the requirements
themselves are simple and easy to understand. This final rule also
requires a certified renovator be assigned and responsible for each
project to ensure compliance with required standards.
    Some commenters agreed that OJT by a certified renovator is
sufficient for training workers. One commenter stated that as long as a
specific person is

[[Page 21721]]

designated to oversee the job, there is no need for all workers on site
to have formal training. The commenter noted the similarity between
this approach and OSHA's ``competent person'' standard. EPA agrees that
there are some similarities between the approach in this final rule and
OSHA's ``competent person'' standard.
    However, the majority of commenters had concerns about the use of
OJT to train workers. Many argued that OJT is insufficient for
providing workers with the necessary skills and thought renovation
workers should receive formal LSWP training such as a 1 day course
equivalent to that required for certified renovators. Some of these
commenters also thought that workers should be certified or licensed.
    Some commenters were concerned that the content of OJT is not
clearly defined in the rule. One believed EPA should impose a
structured OJT program in order to produce consistent, accurate, and
comprehensive training outcomes. Others thought more time was needed
for OJT, with suggestions ranging from 5 to 6 hours of training to 3 to
4 days. EPA has neither established a structured OJT program nor
required a specific length of time for OJT because the OJT required
will vary widely from project to project, depending upon how the other
workers are used. As discussed above, if the worker will not be
establishing containment, there is no need to train the worker in how
to establish containment. If the worker in question is an electrician,
and he will merely be installing an electrical outlet as part of a
larger job, then there may be no need to provide any training to this
worker other than instructing him not to disturb the plastic on the
floor and making sure that he and his tools are free of dust and debris
before leaving the work area.
    In addition, as discussed in Unit III.C.1.c.iii. of this preamble,
EPA will ``grandfather'' persons with previous EPA/HUD lead-safe work
practices training or accredited abatement supervisor or worker
training. To become certified renovators, these persons must take a
renovator refresher course in order to ensure that they are acquainted
with how to use test kits to determine whether lead-based paint is
present on a component and how to perform cleaning verification.
However, even if they do not take the refresher course and become
certified renovators, these individuals have still received significant
training in the required work practices such as establishing
containment and cleaning the area after the job is finished. They are
not likely to need much, if any OJT, depending upon how recent their
training was. Similarly, although not recognized for the purpose of
``grandfathering'' by EPA, HUD's Lead Maintenance course would also
provide a great deal of information on lead-safe work practices.
Someone who had taken the Maintenance course recently would also not be
likely to need much, if any, OJT.
    Several commenters thought that workers would not receive adequate
OJT because the certified renovator was not qualified to train others.
They noted that the certified renovators are renovators, not
professional trainers, and do not necessarily have the skills necessary
for teaching others.
    After consideration of these commenters' concerns, EPA has
concluded that OJT is sufficient for training some renovation
employees. The work practice standards of this final rule are not
complex or difficult to institute, and those activities critical to
ensuring the lead safe outcome of the project are either conducted by
certified renovators or directed by certified renovators. The remainder
of the project is often just the renovation itself, and EPA was careful
when developing these final work practices to minimize the effect on
the way typical renovations are conducted. With the exception of the
prohibition of certain unsafe practices, renovation methods are
unaffected by this rule. For example, the work practices of this final
rule do not affect the method a firm would employ to replace a window.
A certified renovator should be able to demonstrate to other firm
employees work practices, such as how to work within containment and
how to move into and out of containment without spreading lead dust and
debris. EPA does not believe a professional trainer is needed to train
renovation workers, who will be directed by a certified renovator if
they will be performing any of the key tasks associated with the work
practices. Most of the people performing renovations today are not
trained by professional trainers. They are trained on-the-job by
experienced firm employees. For example, persons learn the various
techniques for removing and replacing windows from others in the firm
who are experienced in these techniques. Renovation workers can learn
work practices in the same way from a certified renovator.
    Although the work practices in the final regulation are
sufficiently straightforward and can be easily demonstrated by the
certified renovator, EPA agrees that renovators do not necessarily
consider themselves to be trainers. Therefore, accredited renovator
training will include a train-the-trainer component to provide
instruction on providing OJT. In addition, instructors will be expected
to provide training tips to renovators during hands-on instruction. As
the instructor is showing the renovator how to do these work practices,
he or she can also provide instruction on how to show others how to do
these work practices. Accordingly, EPA has concluded that certified
renovators will be adequately prepared to provide OJT that is
sufficient and appropriate for the purposes of this rule.
    Commenters expressed concerns that the rule would not provide
appropriate training for the large number of non-English speaking
workers in the renovation field. One of these commenters suggested that
EPA consider such means as graphic manuals, video presentations, and
translators to aid in training non-English speaking workers. Another
thought that a hands-on only training process overlooked possible
language barriers between the certified renovator and trainee. EPA
agrees that OJT can be conducted effectively by demonstration by the
certified renovator or through the use of graphic training materials.
The Agency plans to develop materials to assist certified renovators in
conducting on-the-job training. To the extent possible, these materials
will use a graphic format that does not require the use of any
particular language. Moreover, renovation firms currently communicate
job needs to their employees, and EPA doubts that firms routinely hire
people with whom they are unable to communicate. Finally, EPA
emphasizes again that the certified renovator and the renovation firm
are responsible for ensuring compliance with this final rule. If the
certified renovator has doubts about an employee's understanding of or
ability to comply with the requirements that are relevant to the work
he or she is to undertake, the certified renovator may need to be on
site and direct the work more regularly than he otherwise would, or may
need to perform certain tasks himself. However, given the relative
simplicity of the work practices that are required between
establishment of containment and cleanup, EPA does not expect that this
will often be necessary.
    Some commenters were concerned that OJT does not include a means to
assess worker competence such as an examination. Commenters were also
concerned about ongoing training needs and suggested requiring worker
refresher training on a periodic or annual basis. This final rule
requires a certified renovator to direct workers with OJT as necessary
to ensure that

[[Page 21722]]

work practices are being followed. This will necessarily involve a
period of observation after OJT is provided to ensure that the worker
has understood and is following the work practices pertinent to his
assigned duties. In addition, to some extent, OJT is continuous and
certified renovators will likely need to continue to provide training
to workers based on the activities that they will be expected to
perform on a particular job. A certified renovator would not need to
provide OJT to the same worker on consecutive jobs if the worker is
performing the same work, but if the nature of the work varies, or if
the firm hires a new employee, relevant OJT would have to be provided
for the work to be performed. EPA believes that the continuous nature
of OJT obviates the need for a refresher training requirement in the
rule and will serve as an incentive for firms to have their permanent
employees trained as certified renovators. EPA also believes that
refresher training per se is not practical, given that OJT will be
specific to the job in question.
    Some commenters wanted some form of verification that a worker had
received training, such as a certificate of training or a sticker which
could be placed on an ID card. Because each worker is not likely to
receive training in all aspects of lead safe work practices, a
certificate or other form of training completion that would indicate an
employee's OJT is complete is not appropriate for this program. It is
important to note that OJT is not as portable as certified renovator
training nor is it intended to be. Certified renovators carry a
training certificate that they can present to each new employer to
prove that they have received training in the required work practices.
There is no corresponding document that can be used to verify OJT by a
previous employer. Renovation firms will generally need to provide OJT
each time a new worker is used. It is also the renovation firm's
responsibility to adequately document the elements of OJT provided to
each worker on each project.
    Because a certified renovator must be assigned to each and every
renovation covered by this regulation, EPA anticipates that some
renovation contractors and property management companies will find that
they achieve maximum efficiency and flexibility by qualifying all of
their permanent employees who perform renovations as certified
renovators. However, due to the industry's high employee turnover rates
and short-term labor needs, the Agency believes that training
flexibility in the form of on-the-job training is needed. EPA believes
that such flexibility will provide firms the ability to respond to
variable labor demands and will not compromise the safety of this final
rule. EPA is concerned that a regulation requiring formal, classroom
training for every worker performing any renovation activity would be
unrealistic for this industry and therefore less effective at ensuring
that the renovation work force is trained in work practices than the
more balanced training requirements in this final rule.
    b. Dust sampling technicians. Except as provided in 40 CFR
745.85(c), this final rule does not allow dust clearance sampling to be
performed in lieu of post-renovation cleaning verification. However,
some property owners may still choose to have dust clearance sampling
performed after the renovation. Dust sampling technicians certified in
accordance with this final rule will be available to perform dust
clearance sampling after renovations and for purposes of HUD's Lead
Safe Housing Rule.
    Some commenters questioned the need for dust sampling technicians.
One stated that there is no benefit to creating a third inspection-type
discipline that has such limited training requirements. Two commenters
thought that only EPA- or State-certified risk assessors should be
allowed to collect dust wipe clearance samples and two commenters
thought that dust sampling technicians should be required to work under
a certified risk assessor or inspector.
    In 1999, in order to make accurate dust testing for lead more
available and affordable, Congress provided EPA with funding for the
development of a 1 day dust sampling technician course. Congress also
encouraged the Agency to promote the recognition of this discipline.
EPA completed the development of the course, entitled Lead Sampling
Technician Training Course,'' in July of 2000. This course provides
instruction on how to conduct a visual assessment for deteriorated
paint, collect samples for lead dust, and interpret sample results. The
training curriculum provides clearance sampling instruction that is
equivalent to that presented in inspector and risk assessor courses, in
terms of time and quality with respect to dust sampling. Therefore, EPA
can recommend that property owners and others who wish to have optional
dust sampling performed use the services of a certified inspector, risk
assessor, or dust sampling technician.
    c. Certification of individuals--i. Initial certification. Section
745.90 of this final rule addresses renovator and dust sampling
technician certification. To become a certified renovator, a person
must successfully complete a renovator course accredited by EPA or by a
State, Territorial, or Tribal program authorized by EPA under 40 CFR
part 745, subpart Q. The renovator course accreditation requirements
are based on the joint EPA-HUD model curriculum entitled Lead Safety
for Remodeling, Repair, & Painting. EPA is not requiring additional
education or work experience of persons wishing to become certified
renovators. EPA renovator certification will allow the certified
individual to perform renovations covered by this section in any State
or Indian Tribal area that does not have a renovation program
authorized under 40 CFR part 745, subpart Q. To become a certified dust
sampling technician, a person must successfully complete a dust
sampling technician training course that has been accredited either by
EPA or by a State, Territorial, or Tribal program authorized by EPA
under 40 CFR part 745, subpart Q. EPA is not requiring additional
education or work experience of persons wishing to become certified
dust sampling technicians.
    The final rule also establishes, in 40 CFR 745.91, procedures for
suspending, revoking, or modifying an individual's or firm's
certification. These procedures are very similar to the current
procedures in place at 40 CFR 745.226(i) for suspending, revoking, or
modifying the certification of an individual who is certified to
perform lead-based paint activities. In addition, under the final rule,
renovator certification can be suspended, revoked, or modified if the
certified renovator does not conduct projects to which he or she is
assigned in accordance with the work practice requirements of this
final rule. Finally, in order to ensure that the effect of a
suspension, revocation, or modification determination is clear to the
certified individual or firm, EPA has added language to this section
ensuring that the commencement date and duration of a suspension,
revocation, or modification is identified in the Presiding Officer's
decision and order. EPA has also added language to this section to
clarify what steps an individual or firm must take after such an action
in order to exercise the privileges of certification again. An
individual whose certification has been suspended must take a refresher
training course in the appropriate discipline in order to make his or
her certification current, while an individual whose certification has
been revoked must take another initial training course in order to be
re-certified. A firm whose

[[Page 21723]]

certification has been suspended need not do anything after the
suspension ends to become current again, as long as the suspension ends
before the firm's certification expires. If the firm's certificate
expires during the suspension, the firm must apply for re-certification
after the suspension ends. If a firm's certification is revoked, the
firm must apply for certification after the revocation period ends in
order to be certified.
    Some commenters questioned the need for a certification
requirement, emphasizing that it is the training that is important
rather than the certification. One commenter thought that, since firms
will have to be certified, there was no added value in certifying
renovators. Others supported certification and some thought renovators
should have to apply to EPA to receive their certification in the same
way that abatement workers do, stating that no regulatory program can
work unless the regulating agency can reliably identify and contact the
regulated individuals. One commenter thought that there should also be
a work experience requirement for certified renovators.
    EPA believes that renovators must be certified so that the Agency
has a mechanism to verify an individual has received the appropriate
training. In addition, if a contractor does not comply with the
regulatory standards then withdrawal of the renovator's certification
is a regulatory remedy available to the Agency. The final rule includes
a certification process that is more streamlined than the individual
certification process of the Agency's abatement regulations. In the
abatement program, an individual must complete training, then submit an
application and fee to the Agency and, depending on the discipline,
take a third party exam in order to be certified. In contrast, an
individual will be considered a certified renovator upon successful
completion of an accredited training program, and the accredited
training program is required to submit identifying and contact
information to EPA regarding the individuals that they have trained.
EPA does not believe that work experience requirements are necessary
because previous experience in the construction or renovation industry
would do little to help an individual understand or perform the work
practices, which are not a standard practice in the industry.
Consequently, there is no relevant work experience for EPA to require.
In addition, the work practices required by this final rule are
sufficiently straightforward that EPA does not believe it is necessary
to require work experience in addition to certified renovator training.
    Because EPA is not requiring any additional education or work
experience requirements, or a third-party examination similar to that
taken by inspector, risk assessor, or supervisor candidates, EPA
believes that there is little value in requiring candidates to apply to
EPA to receive their renovator or dust sampling technician
certification. Currently, the only certified discipline without
prerequisites in education or experience, or a third-party examination,
is the abatement worker. When candidates for worker certification apply
to EPA, EPA verifies that the copy of the training course certificate
submitted with the application is from an accredited training provider.
Without requiring renovators or dust sampling technicians to apply to
EPA for certification EPA will still receive course completion
information from course providers. With this information, EPA will have
a complete list of certified renovators and will be able to check to
see if a particular course completion certificate holder appeared on a
course completion list submitted by the training course provider
identified on the certificate. When EPA inspects a renovation job for
compliance with these regulations, EPA will have the ability to verify,
to the same extent, the validity of a course completion certificate
held by a renovator at that job. Therefore, under this final rule, EPA
is requiring that a course completion certificate from an accredited
training provider serve as a renovator's or dust sampling technician's
certification. To facilitate compliance monitoring, the rule requires a
certified renovator or dust sampling technician to have a copy of the
course completion certificate at the job site.
    Several commenters saw the need for a way to determine that a
certified renovator was current with applicable training requirements.
Suggestions for proof of training included issuing photo IDs, issuing a
hard card or certificate, and establishing a national database of
workers with current training. One commenter thought that it should be
the responsibility of the training provider to certify that renovators
have successfully completed the training requirements and to then
supply EPA with all of the information. EPA agrees that there must be a
way to determine if a renovator is certified and is current with
training requirements. The Agency agrees that a database of renovator
information would be important, and will include identifying and
training information in the Agency's Federal Lead Paint Program (FLPP)
database. However, this database will only contain information about
certified renovators working in federally administered jurisdictions.
In addition, the Agency will require training programs to include a
photograph of the individual who completes renovator or dust sampling
technician training on the training certificate and to submit that
photo to the Agency to be included in the database record. This will
enable inspectors to determine whether a particular individual has
received training from an accredited training provider.
    Some of the commenters had concerns specific to small businesses.
Two commenters stressed the need for outreach programs to inform small
businesses of new compliance requirements. One commenter stated that
smaller firms should not be exempt from training and certification
requirements; another thought that small businesses would continue to
operate without appropriate training and certification unless there was
some type of enforcement. EPA understands that the task of
communicating this final rule requirements to the renovation community
will be challenging. Therefore, EPA is developing a comprehensive
outreach and communications program to support this final rule. This
will include outreach to contractors as well as consumers. In addition
the Agency plans to roll out a compliance assistance effort to
complement this undertaking.
    One commenter suggested that authorized State, Territorial, or
Tribal programs include the requirement for training as part of a
contractor licensing function, thereby eliminating the need to create a
special (new) lead renovator's certification or license. EPA agrees
that where a State, Territory, or Tribe has a pre-existing relationship
with renovation contactors, such as a renovators' licensing program,
the simplest and most cost-effective approach may be to incorporate a
requirement for lead safe work practice training into that pre-existing
program.
    ii. Recertification. Under this final rule EPA is requiring that
renovators and dust sampling technicians who wish to remain certified
take refresher training every 5 years. In addition, EPA is requiring
that the refresher training course be half the length of the initial
course. This is consistent with current practice for certified
individuals performing lead-based paint activities. If an individual
does not take a refresher course within 5 years of the date he or she
completed the initial course or the

[[Page 21724]]

previous refresher course, that individual's certification will expire
on that date and that individual may no longer serve as a certified
renovator or dust sampling technician. There is no grace period. To
become certified again, the individual must take another initial
training course. In addition, under this final rule a certified
renovator may choose to take the initial renovator course instead of a
refresher course to allow maximum flexibility, particularly if for some
reason the person was unable to attend a refresher course.
    Some commenters asserted that the refresher requirement was of no
benefit or imposed an unnecessary cost. These commenters reasoned that
lead-safe work practices were not likely to change significantly over
time. One noted that HUD's experience with lead-safe work practices
training since 1999 has not revealed a need for refresher training in
their program. Commenters who supported refresher training differed on
the frequency of the training and the length of the refresher course.
Some agreed that refresher training should be required every 3 years,
others thought it should be required biennially, annually, or every 3
to 6 months. One commenter agreed with the proposed 4-hour course, two
commenters thought a 4-hour course was too short, and one thought that
instead of completing a refresher, certified renovators should be
required to retake the initial training course every 2 to 3 years. One
commenter stated that a certified renovator should have the opportunity
to take a third party test and allow the renovator to ``test out'' of
having to complete the refresher course.
    After considering the range of concerns raised by the commenters,
EPA has concluded that refresher training is important for renovators
and dust sampling technicians and for the Agency. During the refresher
course, renovators and dust sampling technicians are given the
opportunity to discuss any point of emphasis and to be updated on
changes in the regulations or technical issues. For example, refresher
training could be used to update renovators on availability of new
techniques and products, such as test kits. Refresher training provides
the Agency with a mechanism to pass along critical information to
certified individuals and to keep track of the workforce. However, EPA
has determined that these purposes can be adequately served by 4-hour
refresher training every 5 years, instead of every 3 years. This
provides a reasonable period between trainings that limits training
costs while providing an opportunity to update renovators and dust
sampling technicians regarding regulations and technical issues. EPA
believes that most renovators will not also be certified abatement
professionals, so the difference in the length of time between required
refresher courses should not confuse individuals about their
responsibilities under the two programs.
    iii. Grandfathering. Under this final rule, individuals who
successfully completed an accredited abatement worker or supervisor
course, and individuals who successfully completed either 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. Inspectors and risk assessors who
are certified by EPA or an authorized 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.
    A number of commenters thought that certification should be given
to those who have already attended appropriate training. Some of these
commenters thought that individuals who had received EPA, HUD, or
State-approved Lead Safe Work Practices (LSWP) training should be
grandfathered. One commenter thought individuals that had completed
OSHA's 40-hour Hazardous Waste Operations and Emergency Response course
should also be grandfathered and another wanted individuals that had
taken the National Apartment Association's lead worker training course
to be grandfathered. Four commenters were in favor of grandfathering
dust sampling technicians that have previously completed a dust
sampling course.
    Most of the commenters who expressed an opinion agreed with
grandfathering previously trained individuals but suggested that there
be restrictions. Some of these commenters thought that in order to
receive credit the training needed to have been completed in the last 2
to 3 years while others thought that certification should be given only
if a refresher or ``gap'' course were completed. One commenter thought
that the quality of the previous course should be taken into account
and another commenter thought that a one-size fits all rule would not
be appropriate and that factors including previous course requirements,
the facility that had provided the training, and time elapsed since
initial training should all be considered in establishing requirements
for streamlined certification. One commenter opposed grandfathering,
noting that existing courses do not cover lead test kits, cleaning
verification, or recordkeeping in accordance with the proposed rule.
    The final rule allows individuals who have successfully completed
model renovation courses developed by HUD or EPA and individuals who
have taken an abatement worker or supervisor course accredited by EPA
or an authorized State or Tribal program to become certified renovators
by taking EPA-accredited renovator refresher training. Individuals who
have successfully completed a risk assessor or inspector course
accredited by EPA or an authorized State or Tribal program can become
certified dust sampling technicians by taking EPA-accredited dust
sampling technician refresher training. EPA is recognizing only EPA and
HUD model renovation training and lead-based paint activities training
courses accredited by EPA or an authorized State, Territorial, or
Tribal program because EPA has not sufficiently evaluated the content
of other courses. In addition, it would be unwieldy to develop the
content of multiple refresher courses based on the content of different
initial training courses. While the recognized training provides
meaningful information relevant to these disciplines, it does not
include some specific requirements of this final regulation. Therefore,
EPA is requiring these individuals to receive refresher training to
ensure they are familiar with the requirements of this final rule.
Training providers are required to notify EPA of the individuals who
become certified by successfully completing the refresher training.
This information will support EPA's compliance assistance programs.
    2. Renovation firms--a. Responsibilities of renovation firms. Under
this final rule, firms must ensure that all persons performing
renovation activities on behalf of the firm are either certified
renovators or have been trained and are directed by a certified
renovator in accordance with 40 CFR 745.90. The firm is responsible for
assigning a certified renovator to each renovation performed by the
firm and ensuring that the certified renovator discharges all of the
responsibilities identified in this final rule. The firm must ensure
that the

[[Page 21725]]

information distribution requirements in 40 CFR 745.84 are met. As
mentioned above, the certified renovator is responsible for ensuring
compliance with 40 CFR 745.85 at all renovations to which he or she is
assigned. The firm is also responsible for ensuring that all
renovations performed by the firm are performed using certified
renovators and in accordance with the work practice standards in
proposed 40 CFR 745.85.
    Where multiple contractors are involved in a renovation, any
contractor who disturbs, or whose employees disturb, paint in excess of
the minor maintenance exception is responsible for compliance with all
of the requirements of this final rule. In this situation, renovation
firms may find it advantageous to decide among themselves which firm
will provide pre-renovation education to the owners and occupants,
which firm will establish containment, and which firm will perform the
post-renovation cleaning and cleaning verification. For example, a
general contractor may be hired to conduct a multi-faceted project
involving the large-scale disturbance of paint, which the general
contractor then divides up among several subcontractors. In this
situation, having the general contractor discharge the obligations of
the Pre-Renovation Education Rule is likely to be the most efficient
approach, since this only needs to be done once. With regard to
containment, the general contractor may decide that it is most cost-
effective to establish one large work area for the entire project. In
this case, from the time that containment is established until post-
renovation cleaning verification occurs, all general contractor and
subcontractor personnel performing renovation tasks within the work
area must be certified renovators or trained and directed by certified
renovators in accordance with this rule. In addition, these personnel
are responsible for ensuring the integrity of the containment barriers.
The cleaning and post-renovation cleaning verification could be
performed by any properly qualified individuals, without regard to
whether they are employees of the general contractor or a
subcontractor. However, all contractors involved in the disturbance of
lead-based paint, or who perform work within the work area established
for the containment of lead dust and debris, are responsible for
compliance with this final rule, regardless of any agreements the
contractors may have made among themselves.
    b. Certification of firms--i. Initial certification. This final
rule requires firms that perform renovations, as defined by this rule,
to be certified by EPA. EPA is adding a definition of ``firm'' to Sec. 
745.83 to make it clear that this term includes persons in business for
themselves, i.e., sole proprietorships, as well as Federal, State,
Tribal, and local governmental agencies, and nonprofit organizations.
Firms covered by this final rule include firms that typically perform
renovations, such as building contractors or home improvement
contractors, as well as property management companies or owners of
multi-family housing performing property maintenance activities that
include renovations within the scope of this final rule.
    This final rule provides information about the certification and
re-certification process, establishes procedures for amending and
transferring certifications, and identifies clear deadlines. A firm
wishing to become certified to perform renovations must submit a
complete ``Application for Firms,'' signed by an authorized agent of
the firm, along with the correct certification fee. EPA intends to
establish firm certification fees in a separate rulemaking. EPA will
approve a firm's initial application within 90 days of receipt if it is
complete, including the proper amount of fees, and if EPA determines
that the environmental compliance history of the firm, its principals,
or its key employees does not show an unwillingness or inability to
comply with applicable environmental statutes or regulations. EPA will
generally consider the following to be an indication that the applicant
is unwilling or unable to comply with environmental statutes or
regulations if, during the past 3 years, the applicant has:
    • A criminal conviction under a Federal environmental statute;
    • An administrative or civil judgment against the applicant
for a willful violation of a Federal environmental statutory or
regulatory requirement; or
    • More than one administrative or civil judgment for a
violation of a Federal environmental statute. Violations that involve
only recordkeeping requirements will not be considered.
    If the application is approved, EPA will establish the firm's
certification expiration date at 5 years from the date of EPA's
approval. EPA certification will allow the firm to perform renovations
covered by this section in any State or Indian Tribal area that does
not have a renovation program authorized under 40 CFR part 745, subpart
Q. If the application is incomplete, EPA will notify the firm within 90
days of receipt that its application was incomplete, and ask the firm
to supplement its application within 30 days. If the firm does not
supplement its application within that period of time, or if EPA's
check into the compliance history of the firm revealed an unwillingness
or inability to comply with environmental statutes or regulations, EPA
will not approve the application and will provide the applicant with
the reasons for not approving the application. EPA will not refund the
application fees. A firm could reapply for certification at any time by
filing a new, complete application that included the correct amount of fees.
    This final rule provides firms with more time to amend their
certification whenever a change occurs. A firm must amend its
certification within 90 days whenever a change occurs to information
included in the firm's most recent application. If the firm failed to
amend its certification within 90 days of the date the change occurred,
the firm would not be authorized to perform renovations until its
certification was amended. Examples of amendments include a change in
the firm's name without transfer of ownership, or a change of address
or other contact information. To amend its certification, a firm 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. The
amendment must include the correct amount of fees. Amending a
certification will not affect the validity of the existing
certification or extend the certification expiration date. EPA will
issue the firm a new certificate if necessary to reflect information
included in the amendment. Firm certifications are not transferable--if
the firm is sold, the new owner must submit a new initial application
for certification in accordance with 40 CFR 745.89(a). The final rule
also includes procedures for suspending, revoking, or modifying a
firm's certification. These procedures are very similar to the current
procedures in place for suspending, revoking, or modifying the
certification of a firm that is certified to perform lead-based paint
activities.
    Some commenters questioned the need for firm certification, while
others, including industry representatives, supported it. The Agency
believes that firm certification is necessary for several reasons.
First, certification is an important tool for the Agency's

[[Page 21726]]

enforcement program. To become certified, a firm acknowledges their
responsibility to use appropriately trained and certified employees and
follow the work practice standards set forth in the final rule. This is
especially important under this final rule, since the certified
renovator is not required to perform or be present during all of the
renovation activities. Under these circumstances, it is important for
the firm to acknowledge its legal responsibility for compliance with
all of the final rule requirements, since the firm both hires and
exercises supervisory control over all of its employees. Should the
firm be found to violate any requirements, its certification can be
revoked, giving the firm a strong incentive to ensure compliance by all
employees.
    ii. Recertification. Under 40 CFR 745.89(b), a certified firm
maintains its certification by submitting a complete and timely
``Application for Firms,'' noting that it is an application for re-
certification, and paying the required re-certification fee. With
regard to the timeliness of the application for re-certification, if a
complete application, including the proper fee, is postmarked 90 days
or more before the date the firm's current certification expires, the
application will be considered timely and sufficient, and the firm's
existing certification will remain in effect until its expiration date
or until EPA has made a final decision to approve there-certification
application, or not, whichever occurs later. If the firm submits a
complete re-certification application fewer than 90 days before the
date the firm's current certification expired, EPA might be able to
process the application and re-certify the applicant before the
expiration date, but this would not be guaranteed. If EPA does not
approve the re-certification application before the existing
application expired, the firm's certification expires and the firm is
not able to conduct renovations until EPA approves its re-certification
application. In any case, the firm's new certification expiration date
will be 5 years from the date the existing certification expired.
    If the firm submits an incomplete application for re-certification
and EPA does not receive all of the required information and fees
before the date the firm's current certification expires, or if the
firm does not submit its application until after its certification
expired, EPA will not approve the firm's re-certification application.
The firm cannot cure any deficiencies in its application package by
postmarking missing information or fees by its certification expiration
date. All required information and fees must be in EPA's possession as
of the expiration date for EPA to approve the application. If EPA does
not approve the application, the Agency will provide the applicant with
the reasons for not approving the re-certification application. Any
fees submitted by the applicant will not be refunded, but the firm can
submit a new application for certification, along with the correct
amount of fees, at any time.
    As with initial applications, this final rule includes a
description of the actions EPA may take in response to an application
for re-certification and the reasons why EPA will take a particular
action. This section is identical to the process for initial
applications, except that EPA will not require an incomplete
application to be supplemented within 30 days of the date EPA requests
additional information or fees. In the re-certification context, the
firm must make its application complete by the date that its current
certification expires.
    Several commenters thought that firms should not be required to be
re-certified because the firm's certification is not based on knowledge
or technology, but rather on a promise to abide by the rules. The
Agency believes that firm re-certification is an important element of
the final regulation. Firm re-certification provides a mechanism for
EPA to keep its records current with respect to firms actively engaged
in renovations. Re-certification also provides a means for EPA to
ensure that it has updated firm contact information. Re-certification
also prompts the firm to positively reaffirm their commitment to adhere
to the requirements set forth in this regulation. Finally, re-
certification allows EPA an opportunity to review a firm's compliance
history before it obtains re-certification. However, EPA has determined
that these purposes can be adequately served by re-certifying
renovation firms every 5 years instead of every 3 years as proposed.

D. Training Provider Accreditation and Recordkeeping

    EPA is amending the general accreditation requirements of 40 CFR
745.225 to apply to training programs that offer renovator or dust
sampling technician courses for certification purposes. The regulations
describe training program qualifications, quality control measures,
recordkeeping and reporting requirements, as well as suspension,
revocation, and modification procedures. Amendments to Sec.  745.225
add specific requirements for the renovator and dust sampling
technician disciplines. Also included are minimum training curriculum,
training hour, and hands-on requirements for courses leading to
certification as a renovator or a dust sampling technician. As
discussed in the previous Unit of this preamble, to assist EPA
compliance inspectors in determining whether a renovator at a
renovation work site successfully completed an accredited renovator
training course, this final rule also requires providers of renovator
training to take a digital photograph of each individual who
successfully completes a renovator training course, include that
photograph on the individual's course completion certificate, and
provide that photograph to EPA along with the training course
provider's post-training notification required by 40 CFR 745.225(c)(14).
    Training course providers that obtained accreditation to offer
renovator or dust sampling technician training would have to comply
with the existing recordkeeping requirements for lead-based paint
activities training course providers. These existing recordkeeping
provisions require providers to maintain records of course materials,
course test blueprints, information on how hands-on training is
delivered, and the results of the students' skills assessments and
course tests. EPA received no comments on this aspect of the proposed
recordkeeping requirements. These requirements are currently working
well for lead-based paint activities training providers and EPA
believes they will work equally well for renovation training providers.
Therefore, EPA is finalizing this requirement as proposed. Training
course providers who receive accreditation to provide renovator or dust
sampling technician courses must comply with the recordkeeping
requirements of 40 CFR 745.225(i).
    1. Renovator training. The minimum curriculum requirements for an
initial renovator course are described in 40 CFR 745.225(d)(6). The
topics include the roles and responsibilities of a renovator;
background information on lead and its health effects; background on
applicable Federal, State, and local regulations and guidance; use of
acceptable test kits to test paint to determine whether it is lead-
based paint; methods to minimize the creation of lead-based paint
hazards during renovations; containment and clean-up methods; ways to
verify that a renovation project has been properly completed, including
cleaning verification; and waste handling and disposal. Hands-on
activities relating to renovation methods, containment and clean-up,
cleaning verification, and waste handling would be required in all
courses. Section 745.225(c)(6)(vi)

[[Page 21727]]

establishes the minimum length for an initial renovator course at 8
training hours, with 2 hours being devoted to hands-on activities.
    Commenters raised concerns and had suggestions regarding how
certified renovator training should be conducted in three broad areas:
Course length; course content and format; and training of non-English
speaking renovators.
    a. Course length. Several commenters raised concerns about the
length of the certified renovator training course. Some agreed with the
training length as defined in the rule, others stated it was too short
or too long, and one said that the length of the training should not be
defined in the rule. In establishing the minimum requirements for the
renovator course, the Agency considered the many types of activities
that would likely be performed during renovation, remodeling, and
painting activities and tried to balance that with the need for a
training course that would address the necessary skills without being
overly burdensome on the part of the trainee. The suggested course
schedule for the EPA/HUD lead-safe work practices curriculum ``Lead
Safety for Remodeling, Repair, & Painting'' calls for an 8-hour
training day, including lunch, two breaks, and an hour-long course
test. The course is designed in a modular format, so that it can be
delivered in 1 day or over two or more days, at the discretion of the
training provider. Based on a review of the material and the suggested
schedule, EPA believes that ``Lead Safety for Remodeling, Repair, and
Painting'' can be modified to include material on the use of test kits
and performing cleaning verification and still fit within eight
training hours. However, any attempt to cover all of the required
elements in a shorter period of time would likely result in a
significant reduction in the level of detail with which the elements
are presented. A minimum requirement for eight training hours
represents a reasonable minimum requirement for the renovator course
and gives training course providers an indication of the amount of time
that EPA has determined through experience with the EPA/HUD curriculum
that it takes to adequately cover each required training element.
    b. Course content and format. Most commenters agree that the
certified renovator course should include a hands-on training portion
and several of these agree that the hands-on portion should not be any
shorter than two hours as proposed. Other commenters suggested that the
hands-on portion of the training should be allowed to be conducted as a
demonstration via a remote delivery system (DVD or Internet). EPA
agrees that development of a procedure to address the hands-on
component of the renovator course via remote delivery systems would be
beneficial. This final rule does not preclude training providers from
developing alternative methods for the delivery and evaluation of
training for submission for approval to EPA.
    Several commenters had suggestions as to the certified renovator
training content. Two recommended that the renovator course include
training on recordkeeping requirements. EPA agrees with these
commenters, and has added the element of recordkeeping to the required
training course elements for renovators. Because EPA has modified the
recordkeeping requirements, as discussed below, to require the
certified renovator to prepare the records associated with renovations
to which he or she is assigned, the renovation training course will
include a recordkeeping component. Three commenters suggested that, if
the certified renovator is responsible for providing OJT to other
renovation workers, the renovator training course should include a
train-the-trainer component. EPA agrees with these commenters and has
added a train-the-trainer element to the required elements for the
renovator training course. In addition, EPA will develop a train-the-
trainer component for its model renovator training course. Other
commenters suggested that the required training elements include OSHA
health and personal safety requirements. The Agency agrees that these
are relevant topics and considers an overview of the OSHA requirements
to be part of the required element of background on applicable Federal,
State, and local regulations and requirements. To ensure that this is
clear, EPA has modified this provision to state that the background
information must include EPA, HUD, OSHA, and other Federal, State, and
local regulations and guidance. Consistent with its approach in other
courses related to lead-based paint activities, the Agency believes
that identifying potential OSHA requirements, rather than requiring in-
depth curriculum components, is the best way to make trainees aware of
those requirements and yet avoid redundancies between EPA- and OSHA-
required courses.
    c. Training of non-English speaking renovators. Renovator and dust
sampling technician courses, both initial and refresher, can be taught
in any language, but accreditation would be required for each specific
language the provider wished to present the course in. All course
materials and instruction for the course would have to be in the
language of the course. The modification to Sec.  745.225(b)(1)(ii)
clarifies that all lead-based paint courses taught in different
languages are considered different courses, and accreditation must be
obtained for each. To facilitate accreditation of courses in languages
other than English, EPA is requiring that the training provider include
in its application both the English version as well as the non-English
version of all training materials, in addition to a signed statement
from a qualified, independent translator that the translator has
compared the non-English language version of the course materials to
the English-language version and that the translation is accurate. This
requirement applies to any course for which accreditation is sought,
including lead-based paint activities courses. Finally, to assist EPA
in monitoring compliance with these requirements, EPA is requiring that
course completion certificates include the language in which the course
was taught.
    Several commenters agreed that the needs of non-English speaking
workers should be considered. Commenters suggested that EPA translate
its model course into other languages and/or facilitate free access to
such translations. EPA agrees that it is important to have renovator
training available in languages other than English. EPA anticipates
translating its revised model renovator course into Spanish. EPA will
also consider translating the course into other languages. However, EPA
is not able to make available proprietary material developed by
training course providers that is then translated by those providers
into other languages.
    2. Dust sampling technician training. The minimum curriculum
requirements for an initial dust sampling technician course are
described in 40 CFR 745.225(d)(7). The topics include the roles and
responsibilities of a dust sampling technician; background information
on lead and its adverse health effects; background information on
Federal, State, and local regulations and guidance that pertains to
lead-based paint and renovation activities; dust sampling
methodologies; clearance standards and testing; and report preparation
and recordkeeping requirements. Section 745.225(c)(6)(vii) establishes
the minimum length for an initial dust sampling technician course at 8
training hours, with 2 hours being devoted to hands-on activities. EPA
received relatively few comments specifically on the content of dust

[[Page 21728]]

sampling technician training; most had to do with the length of the
training course. EPA has developed a model dust sampling technician
course (Ref. 33). This course has been designed to be delivered in one
8-hour training day, including lunch, breaks, and a course test. As
with the EPA/HUD ``Lead Safety for Remodeling, Repair, & Painting''
curriculum, EPA believes that this is a reasonable minimum requirement
for the dust sampling technician course and it gives training course
providers an indication of the amount of time that EPA has determined
it takes to adequately cover each required training element.

E. Work Practices

    This final rule requires that all renovations subject to this rule
be conducted in accordance with a defined set of work practice
standards. Again, this final rule is a revision of the existing TSCA
section 402(a) Lead-based Paint Activities Regulations to extend
training, certification, and work practice requirements to certain
renovation and remodeling projects in target housing and child-occupied
facilities. In so doing, EPA did not merely modify the scope of the
current abatement requirements to cover renovation and remodeling
activities. Rather, EPA has carefully considered the elements of the
existing abatement regulations and is revising those regulations in a
manner that reflects the differences between abatement and renovation
activities.
    Work practices for abatement are part of larger range of activities
that are intended to identify and eliminate lead-based paint hazards.
When abatements are conducted, residents typically are removed from the
home until after the abatement activities are completed, which is
demonstrated through the use of clearance testing. This may require the
removal of carpeting, refinishing, sealing, or replacement of floors to
achieve clearance. Accordingly, clearance testing is part of a broader
set of activities that comprise abatement, with the purpose of
permanently eliminating existing lead-based paint hazards.
    Renovation, repair, and painting activities typically are conducted
while the residents are present in the dwelling and are not activities
intended to eliminate lead-based paint hazards. Work practices for
renovation, repair, and painting are designed to minimize exposure to
lead-based paint hazards created by the renovation both during the
renovation, while residents are likely to be present in the dwelling,
and after the renovation. The work practices are not intended to
address pre-existing hazards.
    1. In general. This final rule incorporates work practice standards
generally derived from the HUD Guidelines, EPA's draft technical
specifications for renovations, and the model training curriculum
entitled Lead Safety for Remodeling, Repair, & Painting (Refs. 18, 34,
and 35). For more information on the development of these documents,
please consult Unit III.C. of the preamble to the 2006 Proposal. To
reduce exposure to lead-based paint hazards created by renovation
activities, the work practices standards in this regulation provide
basic requirements for occupant protection, site preparation, and clean-up.
    Commenters generally felt that work practices are important and
should be clear and correctly followed. One commenter stated that the
rule has ``tremendous potential for making a difference,'' especially
in establishing and ``reinforcing the industry norm.'' One commenter
noted that EPA should ``set simple and flexible work practices.''
Another commenter asked for less specificity. EPA believes that this
final rule provides certified renovators an appropriate blend of
flexibility and specificity. EPA believes that, due to the highly
variable nature of renovation activities, flexibility is needed for
certain tasks, such as establishing containment, and that other tasks,
such as specialized cleaning, require a greater degree of specificity.
    2. Occupant protection. This final rule requires the firm to post
signs clearly defining the work area and warning occupants and other
persons not involved in renovation activities to remain outside of the
work area. In addition, it requires that the certified renovator be
physically present at the work site when the required signs are posted.
These signs must be posted before beginning the renovation and must
remain in place until the renovation has been completed and cleaning
verification has been completed. The signs must be, to the extent
practicable, provided in the occupants' primary language. If warning
signs have been posted in accordance with HUD's Lead Safe Housing Rule
(24 CFR 35.1345(b)(2)) or OSHA's Lead in Construction Standard (29 CFR
1926.62(m)), additional signs are not required.
    Three commenters stated that the required signs for posting at a
work site should be in the language of the occupant. One commenter
stated that such a requirement would be consistent with HUD's Lead Safe
Housing Rule requirements. EPA agrees that having signs in the language
of the occupant is preferable. However, the Agency is concerned that
renovators will not have the ability to provide signs in every
language, and that it may be the case that occupants, especially in
multi-family dwellings, will speak a variety of languages. In the HUD
Lead Safe Housing Rule, HUD addressed this issue by requiring that
signs, to the extent practicable, be provided in the occupants' primary
language. Therefore, consistent with HUD's Lead Safe Housing Rule, this
final rule requires warning signs, to the extent practicable, to be
provided in the occupants' primary language.
    3. Containment. This final rule requires that the firm isolate the
work area so that dust or debris does not leave the work area while the
renovation is being performed. In addition, EPA has clarified that the
firm must maintain the integrity of the containment by ensuring that
any plastic or other impermeable materials are not torn or displaced,
and taking any other steps necessary to ensure that dust or debris does
not leave the work area while the renovation is being performed.
    In addition, EPA has made conforming changes to the performance
standard that renovators and renovation firms are being held to in this
final rule. EPA was concerned that the rule text and preamble were
confusing because there were references to ``visible'' dust and debris
or ``identifiable'' dust and debris and ``all'' dust and debris. For
example, in the 2006 Proposal ``work area'' was defined as the area
established by the certified renovator to ``contain all the dust and
debris generated by a renovation.'' In the renovator responsibilities
(as proposed at 40 CFR 745.90(b)(4)), the renovator was responsible for
ensuring ``that dust and debris is not spread beyond the work area.''
In describing the containment to be established, the rule text referred
to ``visible'' dust and debris and in the section on waste from
renovations (as proposed at 40 CFR 745.85(a)(3)) the rule text referred
to ``identifiable'' dust. It was not EPA's intention to create
subjectivity as to whether dust and debris were being dispersed. By
conforming its terminology EPA is clarifying that certified renovators
and renovation firms must ensure that the dust and debris (as opposed
to ``visible'' or ``indentifiable'' dust and debris) generated by the
renovation is contained. Should an EPA inspector observe dust or debris
escaping from the containment, the certified renovator and

[[Page 21729]]

the renovation firm would be in violation of this final rule.
    This final rule also requires that the certified renovator be
physically present at the work site when the required containment is
established. This means the certified renovator must determine for each
regulated project the size and type of containment necessary to prevent
dust and debris from leaving the established work area. This
determination will be based on the certified renovator's evaluation of
the extent and nature of the activity and the specific work practices
that will be used.
    Containment refers to methods of preventing leaded dust from
contaminating objects in the work area and from migrating beyond the
work area. It includes, among other possible measures, the use of
disposable plastic drop cloths to cover floors and objects in the work
area, and sealing of openings with plastic sheeting where necessary to
prevent dust and debris from leaving the work area. When planning a
renovation project, it is the certified renovator's responsibility to
determine the type of work site preparation necessary to prevent dust
and debris from leaving the work area.
    Renovation projects generate varying amounts of leaded dust, paint
chips, and other lead-contaminated materials depending on the type of
work, area affected, and work methods used. Because of this
variability, the size of the area that must be isolated and the
containment methods used will vary from project to project. Large
renovation projects could involve one or more rooms and potentially
encompass an entire home or building, while small projects may require
only a relatively small amount of containment. The necessary work area
preparations will depend on the size of the surface(s) being disturbed,
the method used in disturbing the surface, and the building layout. For
example, repairing a small area of damaged drywall would most likely
require the containment of a smaller work area and less preparation
than demolition work, which would most likely require a containment of
a larger work area and more extensive preparation in order to prevent
the migration of dust and debris from the work area. The Environmental
Field Sampling Study, which found that the following activities created
dust-lead hazards at a distance of 6 feet from where the work was being
performed:
    • Paint removal by abrasive sanding.
    • Window replacement.
    • HVAC duct work.
    • Demolition of interior plaster walls.
    • Drilling into wood.
    • Sawing into wood.
    • Sawing into plaster.
    Based on these data, EPA believes that at least 6 feet of containment
is necessary to contain dust generated by most renovation projects.
    Under this final rule, at a minimum, interior work area
preparations must include removing all objects in the work area or
covering them with plastic sheeting or other impermeable material. This
includes fixed objects, such as cabinets and countertops, and objects
that may be difficult to move, such as appliances. Interior
preparations must also include closing all forced air HVAC ducts in the
work area and covering them with plastic sheeting or other impermeable
material; closing all windows in the work area; closing and sealing all
doors in the work area; and covering the floor surface in the work
area, including installed carpet, with taped-down plastic sheeting or
other impermeable material in the work area 6 feet beyond the perimeter
of surfaces undergoing renovation or a sufficient distance to contain
the dust, whichever is greater.
    To ensure that dust and debris do not leave the work area, it may
be necessary to close forced air HVAC ducts or windows near the work
area. Doors within the work area that will be used while the job is
being performed must be covered with plastic sheeting or other
impermeable material in a manner that allows workers to pass through,
while confining dust and debris to the work area. In addition, all
personnel, tools, and other items, including the exterior of containers
of waste, must be free of dust and debris when leaving the work area.
    For exterior projects, the same performance standard applies;
namely, the certified renovator or a worker under the direction of the
certified renovator must contain the work area so that dust or debris
does not leave the work area while the renovation is being performed.
Additionally, in response to comments suggesting that EPA follow the
HUD Guidelines with respect to exterior containment requirements, EPA
has incorporated a similar 10 foot minimum. Consequently, this final
rule requires that exterior containment include covering the ground 10
feet beyond the perimeter of surfaces undergoing renovation or a
sufficient distance to collect falling paint debris, whichever is
greater, unless the property line prevents 10 feet of such ground
covering. EPA has concluded that this is an appropriate and reasonable
precaution for exterior work, given the fact that some amount of
dispersal of dust or debris is likely as a result of air movement, even
on relatively calm days. In addition, EPA sees value in maintaining
appropriate consistency between this regulation and related HUD rules
and guidelines.
    In addition to such ground covering, exterior work area
preparations must include, at a minimum, closing all doors and windows
within 20 feet of the outside of the work area on the same floor as the
renovation, and closing all doors and windows on the floors below that
area. For example, if the renovation involves sanding a 5-foot by 5-
foot area of paint in the middle of the third floor of a building, and
that side of the building is only 40 feet long, all doors and windows
on that side of the third floor must be closed, as well as all of the
doors and windows on that side of the second and first floors. In
situations where other buildings are in close proximity to the work
area, where the work area abuts a property line, or weather conditions
dictate the need for additional containment (i.e., windy conditions)
the certified renovator or a worker under the direction of the
certified renovator performing the renovation may have to take extra
precautions in containing the work area to ensure that dust and debris
from the renovation does not contaminate other buildings or migrate to
adjacent property. This may include erecting vertical containment
designed to prevent dust and debris from contaminating the ground or
any object beyond the work area. In addition, doors within the work
area that will be used while the job is being performed must be covered
with plastic sheeting or other impermeable material in a manner that
allows workers to pass through while confining dust and debris to the
work area.
    Some commenters agreed with the proposed procedures. One commenter
agreed that with containment, dust can be contained and cleaned up
sufficiently to pass the wipe test screening results. Another commenter
supported the use of standard containment and cleaning practices known
to reduce dust lead levels on both interior and exterior surfaces and
to protect soils and gardens surrounding the house.
    Some commenters asserted that the containment procedures were not
stringent enough. Some suggested that EPA follow the HUD Guidelines
with respect to exterior containment requirements. Others asked EPA to
strengthen exterior containment requirements by specifying that containment
extend at least twenty feet to collect all debris and residue and that

[[Page 21730]]

the rule address circumstances such as wind and rain. One commenter
asserted that allowing the certified renovator complete discretion to
determine what is appropriate renders the worksite containment
requirements completely unenforceable and asked EPA to consider
providing a minimum performance standard that all renovators must meet.
EPA agrees that a minimum performance standard is necessary and that is
why under this final rule EPA is requiring certified renovators to
establish containment that prevents dust and debris from leaving the
work area. In addition, in this rule EPA has established minimum
containment requirements for both interior and exterior renovation
requirements. While the certified renovator has discretion regarding
the specific components and extent of containment, the renovator and
firm will be in violation of this final rule if dust or debris leaves
the work area for both interior and exterior renovations. If dust or
debris migrates beyond the work area, that migration constitutes a
violation of the rule. Accordingly, EPA does not agree with the
commenter that the rule is unenforceable.
    This final rule provides the certified renovator with some
discretion to define the specific size and configuration of the
containment to accommodate the variability in size and scope of
renovations. EPA considered requiring that in all cases the entire room
in which a renovation is occurring be contained, but concluded that
doing so would be unwarranted. For example, a small manual sanding job
in a large room would not necessarily require full room containment to
isolate the work area. EPA has concluded that the most appropriate
approach is to impose a minimum size for containment coupled with a
performance standard--preventing dust or debris from leaving the
workarea--and to prescribe with reasonable specificity the containment
measures that are required--e.g., use of plastic of other impermeable
material, removal or covering of objects in the work area - but to
provide some measure of discretion with regards to the case-specific
approaches to containment.
    In response to EPA's request for comments on whether there are any
situations where some or all of the proposed work practices are not
necessary, commenters suggested that work practices were not needed
during a gut rehabilitation, although two of the commenters suggested a
waiver rather than an exemption in these situations. Several commenters
thought that work in unoccupied structures should not require the use
of lead safe work practices, or should have an adapted set of work
practices. A commenter opined that certain interior containments may
not be necessary in vacant and empty housing, but that exterior work
always should use lead safe work practices to protect the environment
and neighborhood. A commenter stated that there are certain activities
common to multifamily and rental housing that warrant special
consideration from the Agency. For example, simple painting activities
that occur when rental properties turn over should not require a full
suite of work practices, particularly given that most state laws
require apartment owners to paint each unit at turnover. The commenter
suggested that EPA consider a less restrictive set of guidelines for
those properties simply undergoing routine painting during the turnover
process.
    EPA believes that whole house gut rehabilitation projects may
demolish and rebuild a structure to a point where it is effectively new
construction. In this case, it would not be a modification of an
existing structure, and therefore not a renovation. However, a partial-
house gut rehabilitation such as a kitchen or bathroom gut rehabilitation
project clearly falls within the scope of this final rule.
    EPA disagrees that temporarily unoccupied or vacant housing should
be per se exempt from the requirements of this final rule. EPA's
primary concern with exempting renovations in such housing from the
work practices required by this final rule is the exposure to returning
residents to lead-based paint hazards created by the renovation.
However, EPA recognizes that if no child under 6 or no pregnant woman
resides there, the owner-occupant may so state in writing and the
requirements of this rule would not apply. In addition, for routine
painting, such as at unit turnover, if such painting activity does not
involve disturbing more than 6 ft\2\ of painted surfaces per room for
interiors or 20 ft\2\ for exteriors, and otherwise meet the definition
of ``minor repair and maintenance,'' the requirements of this final
rule would not apply. EPA cannot see a basis for imposing a less
restrictive set of requirements for projects that disturb more than 6
ft\2\ of painted surfaces per room for interiors or 20 ft\2\ for exteriors.
    Some commenters believed that the Proposal did not adequately
address the decontamination of workers and equipment involved in a
renovation. They supported the proposed requirement that all personnel,
tools and other items, including the exteriors of containers of waste,
be free of dust and debris before leaving the work area. However, they
believed that the proposed alternative, covering the paths used to
reach the exterior of the building with plastic, was not sufficiently
protective. One contended that significant lead dust contamination can
be tracked or carried out of a work area if workers and equipment are
not properly decontaminated. This commenter further noted that workers
with contaminated clothing can take that contamination home to their
own children and taking contaminated equipment to another jobsite could
potentially create a lead hazard at a new site. EPA agrees with these
commenters and has deleted the alternative language. The final rule
requires renovation firms to use precautions to ensure that all
personnel, tools and other items, including the exteriors of containers
of waste, to be free of dust and debris before leaving the work area.
There are several ways of accomplishing this. For example, tacky mats
may be put down immediately adjacent to the plastic sheeting covering
the work area floor to remove dust and debris from the bottom of the
workers' shoes as they leave the work area, workers may remove their
shoe covers (booties) as they leave the work area, and clothing and
materials may be wet-wiped and/or HEPA-vacuumed before they are removed
from the work area.
    Finally, in response to a commenter who was concerned about
containment not impeding occupant egress in an emergency, EPA has
modified the regulatory text to specify that containment must be
installed in such a manner that it does not interfere with occupant and
worker egress in an emergency. This can be accomplished, as noted in
chapter 17 of the HUD Guidelines, by installing plastic over doors with
a weak tape.
    4. Prohibited and restricted practices. The final rule prohibits or
restricts the use of certain work practices during regulated
renovations. These practices are open flame burning or torching of
lead-based paint; the use of machines that remove lead-based paint
through high speed operation such as sanding, grinding, power planing,
needle gun, abrasive blasting, or sandblasting, unless such machines
are used with HEPA exhaust control; and operating a heat gun above 1100
degrees Fahrenheit. These are essentially the same practices as are
currently prohibited or restricted under the Lead-based Paint
Activities Regulations, 40 CFR 745.227(e)(6), with the exception of dry
hand scraping of lead-based paint. While this final rule and EPA's
Lead-Based Paint Activities Regulations do not prohibit or restrict the
use of volatile paint strippers or

[[Page 21731]]

other hazardous substances to remove paint, the use of these substances
are prohibited for use in poorly ventilated areas by HUD's Lead Safe
Housing Rule and they are regulated by OSHA.
    EPA did not propose to prohibit or restrict any work practices, but
instead asked for public comment regarding their prohibition or
restriction. The Agency was concerned that, because these practices are
commonly used during renovation work, prohibiting such practices could
make certain jobs, such as preparing detailed or historic millwork for
new painting, extremely difficult, if not impossible. In addition, EPA
believed that use of the proposed package of training, containment,
cleanup, and cleaning verification requirements would be effective in
preventing the introduction of new lead-based paint hazards, even when
such practices were used. EPA is modifying the proposal based on new data
evaluating specific work practices and in response to comments received.
    a. The Dust Study. EPA understood when developing the proposed rule
that considerable data existed showing the potential for significant
lead contamination when lead paint is disturbed by practices restricted
under EPA's Lead-based Paint Activities Regulations for abatements. EPA
conducted the Dust Study, in part, to determine the effectiveness of
the proposed work practices. The Dust Study evaluated a variety of
renovation activities, including activities that involved several
practices restricted or prohibited under the abatement regulations. For
example, power planing was included in the Dust Study as a
representative of machines that remove lead-based paint through high
speed operation. Similarly, the Dust Study also included experiments
with power sanding and a needle gun. Each of these activities generated
very high levels of dust. The Dust Study thus evaluated the proposed
work practice standards, using a range of typical practices currently
used by contractors.
    In particular, the Dust Study found that renovation activities
involving power planing and high temperature heat gun resulted in
higher post-job renovation dust lead levels than activities using other
practices. The geometric mean post-work, pre-cleaning floor dust lead
levels in the work room were 32,644 [micro]g/ft\2\ for power planing
and 7,737 [micro]g/ft\2\ for high temperature heat guns. More
importantly, in experiments performed in compliance with this rule's
requirements for containment, cleaning, and cleaning verification, the
geometric mean post-job floor dust lead levels were still 148 [micro]g/
ft\2\ for power planing, well over the TSCA section 403 hazard standard
for floors. While the geometric mean post-job floor dust levels for the
3 similar experiments involving high temperature heat guns, i.e.,
experiments performed in compliance with this rule's requirements, were
36 [micro]g/ft\2\, the average post-cleaning-verification floor dust
lead levels for the individual experiments were 147.5, 65.5, and less
than 10 [micro]g/ft\2\. Thus, in 2 of these 3 experiments, the
requirements of this final rule were insufficient to reduce the floor
dust lead levels below the TSCA section 403 hazard standards for
floors. In addition, power planing and use of a high temperature heat
gun generated fine particle-size dust that was difficult to clean. In
fact, almost all of the high post-renovation lead levels were
associated with activities involving power planing and high temperature
heat guns. Moreover, activities involving power planing and high
temperature heat gun jobs also resulted in higher post-job tool room
and observation room lead levels than other practices.
    Thus, while the Dust Study confirmed that most practices prohibited
or restricted under EPA's Lead-based Paint Activities Regulations do
indeed produce large quantities of lead dust, it also demonstrated
that, with respect to lead-based paint hazards created by machines that
remove lead-based paint through high speed operation and high
temperature heat guns, the use of the proposed work practices were not
effective at containing or removing dust-lead hazards from the work area.
    b. Alternatives to certain practices. As discussed above, in the
proposed rule, EPA stated a concern that, because practices prohibited
or restricted under EPA's Lead-based Paint Activities Regulations are
commonly used during renovation work, prohibiting or restricting such
practices could make certain jobs, such as preparing detailed or
historic millwork for new painting, extremely difficult or, in some
cases, impossible. In response to its request for comment, the Agency
received information on techniques including benign strippers, steam
stripping, closed planing with vacuums, and infrared removal that the
commenter believed are far superior, far safer and far cheaper than
some of the traditionally prohibited or restricted practices. Another
commenter noted that window removal and off-site chemical stripping in
a well-ventilated setting is an alternative to using heat or mechanical
methods to remove lead paint on-site. Alternatively, chemical strippers
can be used on-site, given adequate ventilation and protection for
workers and building occupants. EPA is therefore persuaded that there
are sufficient alternatives to these practices.
    c. Conclusion. Based on the results of the Dust Study and in
response to the voluminous persuasive public comments, this final rule
prohibits or restricts the use of the following practices during
renovation, repair, and painting activities that are subject to the
work practice requirements of this rule:
    • Open-flame burning or torching.
    • Machines that remove lead-based paint through high speed
operation such as sanding, grinding, power planing, needle gun,
abrasive blasting, or sandblasting, unless such machines are used with
HEPA exhaust control.
    • Operating a heat gun above 1100 degrees Fahrenheit.
    EPA has concluded that these practices must be prohibited or
restricted during renovation, repair, and painting activities that
disturb lead-based paint because the work practices in this final rule
are not effective at containing the spread of leaded dust when these
practices are used, or at cleaning up lead-based paint hazards created
by these practices. Thus, the work practices are not effective at
minimizing exposure to lead-based paint hazards created during
renovation activities when these activities are used.
    This final rule does not prohibit or restrict the use of dry hand
scraping. EPA has concluded based primarily on the Dust Study as
corroborated by other data described below that it is not necessary to
prohibit or restrict dry scraping because the containment, cleaning,
and cleaning verification requirements of this rule are effective at
minimizing exposure to lead-based paint hazards created by renovations
and the migration of dust-lead hazards beyond the work area when dry
hand scraping is employed.
    The Dust Study evaluated dry hand scraping, which is restricted
under EPA's lead abatement program. In contrast to the results of the
activities using power planing and high temperature heat gun, average
post-job dust lead levels in the two experiments in which paint was
disturbed by dry hand scraping and the work practices required by this
rule were used were below the regulatory dust-lead hazard standard for
floors. In addition, the National Institute for Occupational Safety and
Health (NIOSH) conducted a Health Hazard Evaluation (HHE) at the
request of the Rhode Island Department of Health, and published a final
report in June of 2000 (Ref. 36). The purpose of the evaluation was to
measure worker exposure during various tasks and to

[[Page 21732]]

determine whether workers were exposed to hazardous amounts of lead-
based paint. Notably worker exposures were compared when scraping
painted surfaces using wet and dry scraping methods (wet scraping is
the customary substitute for dry scraping in abatement applications). A
comparison of worker exposure found statistically equivalent worker
exposures. Based on the NIOSH study, EPA has determined that dry
scraping is the equivalent of its only practical alternative, wet scraping.
    In sum, EPA has determined based on the studies described above and
the persuasive comments, including those summarized below, provided by
the overwhelming majority of commenters that its approach of
prohibiting or restricting certain practices in combination with the
containment, cleaning, and cleaning verification, will be effective in
minimizing exposure to lead-based paint hazards created during renovation
activities, provide an appropriate measure of consistency with other
regulatory programs, and cause minimal disruption for renovation firms.
    i. Substantial exposures. Numerous commenters argued that the rule
should prohibit certain practices based on potential health hazards,
many backed up by well-documented scientific studies and proven health-
protective standards. One commenter stated, after citing several
scientific studies, that removing or disturbing lead paint without
proper controls causes substantial contamination, posing serious risks
to occupants, workers and others. Another cited numerous scientific
studies demonstrating the adverse public health implications of
permitting these work practices and the availability of alternative
work methods. Still another cited the EPA renovation and remodeling
study and a State of Maryland study as evidence that prohibited work
practices may be associated with elevated blood lead levels. One
commenter cited health hazard evaluations of residential lead
renovation work showing that these activities produce hazardous worker
exposures. Another commenter noted that the hazards of activities that
are likely to produce large amounts of lead dust or fumes are well
documented, stating that, for example, the Wisconsin Childhood Blood-
Lead Study found that the odds of a resident child having a blood lead
level in excess of 10 [micro]g/dL increased by 5 times after renovation
using open flame torching, and by 4.6 times after heat gun use. Another
commenter was concerned that previously collected data may not account
for different particle-size distribution, a factor in both the potential
cleaning efficacy of work areas and the toxicology of lead poisoning.
    ii. Consistency with other standards. Some commenters urged EPA to
prohibit certain high dust generating practices for the sake of
consistency with other work practice standards. Numerous commenters
asserted EPA's rule should be consistent with HUD requirements to avoid
confusion on the part of contractors and to conform to the standard
that has been in place for nearly 6 years. One commenter noted that the
regulations of several other federal agencies that administer housing
programs, such as the Department of Defense, Department of Agriculture,
and Veterans Affairs include prohibited practices. Other commenters
noted that the proposed rule conflicted with OSHA rules and would cause
confusion among contractors.
    Some commenters noted that EPA's proposed rule would conflict with
individual state or local regulations prohibiting some or all of these
practices. One commenter listed the following states and some cities
that have prohibited work practices: California, Indiana, Maine,
Massachusetts, Minnesota, New Jersey, Ohio, Rhode Island, Vermont,
Wisconsin, Chicago, Cleveland, New Orleans, New York City, Rochester,
and San Francisco. Two commenters cited state law in Indiana, under
which certain work practices are prohibited and contractors using such
work practices are committing a Class D felony (422, 449).
    Other commenters noted that practices that are prohibited under
EPA's Lead-based Paint Activities Regulations should also be prohibited
for renovation work in pre-1978 properties, and noted that in
developing the abatement rule EPA demonstrated through its own studies
that these practices may increase the risk of elevated blood lead
levels in children.
    5. Waste from renovations. Under this final rule the certified
renovator or a worker trained by and under the direction of the
certified renovator is required to ensure that all personnel, tools,
and other items including waste are free of dust and debris when
leaving the work area. The certified renovator or a worker trained by
and under the direction of the certified renovator must also contain
waste to prevent releases of dust and debris before the waste is
removed from the work area for storage or disposal. If a chute is used
to remove waste from the work area, it must be covered. At the
conclusion of each work day and at the conclusion of the renovation,
the certified renovator or a worker trained by and under the direction
of the certified renovator must ensure that waste that has been
collected from renovation activities is stored under containment, in an
enclosure, or behind a barrier that prevents release of dust and debris
from the work area and prevents access to dust and debris. This final
rule also requires the certified renovator or a worker trained by and
under the direction of the certified renovator transporting lead-based
paint waste from a work site to contain the waste to prevent releases,
e.g., inside a plastic garbage bag. As described in more detail in Unit
IV.D.2.c. of the preamble to the 2006 Proposal, EPA revised its solid
waste regulations in 40 CFR parts 257 and 258 to make clear that lead-
based paint waste generated through renovation and remodeling
activities in residential settings may be disposed of in municipal
solid waste landfill units or in construction and demolition (C&D)
landfills. Requirements for waste disposal may vary by jurisdiction and
state and local requirements may be more stringent than Federal
requirements. When disposing of waste, including waste water, from
renovation activities, the renovation firm must ensure that it complies
with all applicable Federal, State, and local requirements.
    One commenter suggested that EPA should consider requiring that
lead-contaminated waste be stored in a locked area or in a lockable
storage container. This commenter also suggested that to prevent any
confusion on what constitutes a covered chute, a definition or
clarification should be provided in the rule. Another commenter
recommended the use of ``sealed'' rather than ``covered'' chutes for
waste removal, as a covered chute may not be protective enough to
prevent the release of significant amounts of lead-contaminated dust.
This final rule requires that waste must be contained to prevent
releases of dust and debris before the waste is removed from the work
area for storage or disposal. With respect to the use of chutes for
waste removal, the requirement for a covered chute was proposed merely
to facilitate the removal of bagged or sealed waste so that it is
deposited in an appropriate waste disposal container and does not fall
to the ground. EPA does not, therefore, believe that this term either
needs to be further defined or to require the use of a ``sealed'' chute.
    EPA understands that renovation projects can generate a
considerable amount and variety of waste material. However, EPA
believes that the requirements of the final rule protect

[[Page 21733]]

occupants and others from potential lead-based paint hazards presented
by this waste. While storing the waste in a locked container is one way
to meet the performance standard of this final rule, EPA does not
believe that is necessary to specify that as a requirement. The waste
may be stored in the work area, which will already be delineated with
signs cautioning occupants and others to keep out. EPA believes the
owner/occupants have some responsibility for observing these signs.
Renovation sites pose potential hazards other than lead-based paint
hazards--including the potential fall hazards, sharp protrusions, etc.
In sum, the certified renovator is responsible for ensuring that lead-
contaminated building components and work area debris that are stored
under containment, in an enclosure, or behind a barrier that prevents
release of dust and debris and prevents access to the debris. Under
this final rule the certified renovator must ensure that waste leaving
the work area is contained (e.g., in a heavy duty plastic bag or sealed
in plastic sheeting) and free of dust or debris. This imposes a
reasonable performance standard without requiring a specific approach.
The certified renovator is responsible for evaluating the waste
generated and the characteristics of the work site to determine the
most effective way of meeting this standard.
    6. Cleaning the work area--a. Final rule requirements. Under this
final rule the certified renovator or a worker under the direction of
the certified renovator must clean the work area to remove dust, debris
or residue. All renovation activities that disturb painted surfaces can
produce dangerous quantities of leaded dust. Because very small
particles of leaded dust are easily absorbed by the body when ingested
or inhaled, it can create a health hazard for children. Unless this
dust is properly removed, renovation and remodeling activities are
likely to introduce new lead-based paint hazards. Therefore, the rule
requires prescriptive cleaning practices. Ultimately, improper cleaning
can increase the cost of a project because additional cleaning may be
necessary during post-renovation cleaning verification.
    This final rule requires that, upon completion of interior
renovation activities, all paint chips and debris must be picked up.
Protective sheeting must be misted and folded dirty side inward.
Sheeting used to isolate contaminated rooms from non-contaminated rooms
must remain in place until after the cleaning and removal of other
sheeting; this sheeting must then be misted and removed last. Removed
sheeting must be either folded and taped shut to seal or sealed in
heavy-duty bags and disposed of as waste. After the sheeting has been
removed from the work area, the entire area must be cleaned including
the adjacent surfaces that are within 2 feet of the work area. The
walls, starting from the ceiling and working down to the floor, must be
vacuumed with a HEPA vacuum or wiped with a damp cloth. The final rule
requires that all remaining surfaces and objects in the work area,
including floors, furniture, and fixtures be thoroughly vacuumed with a
HEPA vacuum. When cleaning carpets, the HEPA vacuum must be equipped
with a beater bar to aid in dislodging and collecting deep dust and
lead from carpets. The beater bar must be used on all passes on the
carpet face during dry vacuuming. This cleaning step is intended to
remove as much dust and remaining debris as possible. After vacuuming,
all surfaces and objects in the work area, except for walls and
carpeted or upholstered surfaces, must be wiped with a damp cloth. Wet
disposable cleaning cloths of any color may be used for this purpose.
In contrast, as discussed in the next section, only wet disposable
cleaning cloths that are white may be used for cleaning verification.
Uncarpeted floors must be thoroughly mopped using a 2-bucket mopping
method that keeps the wash water separate from the rinse water, or
using a wet mopping system with disposable absorbent cleaning pads and
a built-in mechanism for distributing or spraying cleaning solution
from a reservoir onto a floor.
    When cleaning following an exterior renovation, all paint chips and
debris must be picked up. Protective sheeting used for containment must
be misted with water. All sheeting must be folded from the corners or
ends to the middle to trap any remaining dust and either taped shut to seal
or sealed in heavy duty bags. The sheeting must be disposed of as waste.
    b. Comments on the cleaning protocol. Several commenters proposed
minor changes to the cleaning procedures. Three commenters recommended
that daily clean-up be required for projects lasting more than 1 day.
One commenter stated that all tools and equipment should be cleaned
prior to leaving the job site. One commenter indicated concern that
there is no mention of wet wiping areas such as window sills. This
final rule requires cleaning both in and around the work area to ensure
no dust or debris remains following the renovation. The final rule also
requires that all personnel, tools, and other items including waste are
free of dust and debris when leaving the work area. EPA recommends that
contractors keep work areas as clean and free of dust and debris as
practical. Daily cleaning is a good practice, and it may be necessary
in some cases to ensure no dust or debris leaves the work area as
required by this final rule. However, EPA has no basis to believe that
daily cleaning is necessary in every case or even most cases. EPA also
notes that the work area must be delineated by signs so that occupants
and others do not enter the area. This final rule requires the work
area to be contained, and to ensure that all tools, personnel, and
other items, including waste, to be free of dust and debris when
leaving the work area. Under this final rule, interior windowsills and
most other interior surfaces in the work area must be wet wiped. The
exceptions are upholstery and carpeting, which must be vacuumed with a
HEPA vacuum, and walls, which may be wet wiped or vacuumed with a HEPA
vacuum.
    Some commenters requested clarification of the requirement to clean
``in and around the work area.'' In response to the two commenters that
noted that the HUD Guidelines recommend cleaning 2 feet beyond the work
area, EPA has modified the regulatory text to require cleaning of
surfaces and objects in and within 2 feet of the work area.
    One commenter argued that vacuuming was not necessary because 40
CFR 745.85 requires the certified renovator to cover all furnishings
not removed from the work area, so additional cleaning is unnecessary.
EPA disagrees with this commenter. Carpets and upholstered objects that
remained, covered with plastic, in the work area during the renovation
must be vacuumed after the plastic is removed to ensure that the
surfaces did not become contaminated during the renovation due to a
breach in the containment or during the removal of the containment
during clean-up.
    One commenter asserted that some requirements for cleaning were not
prescriptive enough. The commenter suggested that the rule text, which
states that the certified renovator or a worker under the direction of
the certified renovator must ``pick up all paint chips and debris,''
could be re-worded to state that the certified renovator or a worker
under the direction of the certified renovator must ``collect all paint
chips, debris, and dust, and, without dispersing any of it, seal this
material in a heavy-duty plastic bag.'' EPA agrees that additional
detail would be helpful in this instance and has modified the final
rule to include this

[[Page 21734]]

recommendation, with the exception of dust, which is collected when the
protective sheeting is misted and folded inward.
    One commenter stated that the cleaning procedures were excessive
and problematic. This commenter asserted that the two-bucket mopping
system is inappropriate for some floor types such as wood floors for
which excessive water could damage the floor. The commenter suggested
that EPA allow a cleaning method employing a dry or damp cloth, or any
other specified methodology, to be used in order to achieve a no dust
or debris level of cleaning. Three commenters asserted that EPA's
definition of wet mopping system was too specific. One commenter stated
that to include ``a long handle, a mop head...'' in the description of
the wet mopping system is too prescriptive and favors a particular
model of commercial product. EPA understands that the two bucket
mopping system may not be appropriate for all floor types due to the
quantity of water involved. However, the HUD Guidelines recommend and
the Dust Study demonstrates that wet cleaning is best able to achieve
desired results. This final rule allows for the use of a wet mopping
system instead of the two bucket system for the cleaning of flooring.
EPA has included a definition of a wet mopping system in order to allow
the regulated community to use such a system in place of the
traditional two-bucket mop method. EPA's Electrostatic Cloth and Wet
Cloth Field Study in Residential Housing study (``Disposable Cleaning
Cloth Study''), discussed in more detail in Unit IV.E.2. of the 2006
Proposal, indicates that a wet mopping system is an effective method
for cleaning up leaded dust (Ref. 37). EPA believes that allowing the
use of a wet mopping system like those widely available in a variety of
stores should alleviate concerns regarding the quantity of water used
in the cleanup. In addition, EPA disagrees that the description of a
wet mopping system favors a particular model of commercial product.
Rather, it generally describes any number of wet mopping systems widely
available in most stores. However, to alleviate concerns that a
particular model of commercial product is preferred, EPA has added the
phrase ``or a method of equivalent efficacy'' to the end of the
definition of ``wet mopping system.''
    One commenter recommended that instead of referencing a two bucket
method, EPA should consider simply stating that a method be used that
keeps the wash water separate from the rinse water. EPA agrees and has
revised the regulatory text to specify a method that keeps wash water
separate from rinse water, giving as an example the two bucket method.
    One commenter questioned the requirement to vacuum underneath a rug
or carpet where feasible. The commenter suggested that EPA clarify that
this does not include permanently affixed wall-to-wall carpeting. The
commenter notes that it is highly unlikely that the renovation or
remodeling activity conducted in a carpeted room would have created the
dust embedded underneath both the layer of plastic sheeting and the
installed carpeting. EPA agrees with this commenter. EPA did not intend
to require vacuuming beneath permanently affixed carpets, i.e., wall to
wall carpeting, but rather that removable rugs should be removed and
the area beneath vacuumed. However, small, movable, area rugs should be
removed from the work area prior to the renovation and the floor
beneath would be cleaned as required under this final rule. Therefore,
in response to this commenter, EPA has deleted the requirement to
vacuum beneath rugs where feasible.
    One commenter recommended four options for cleaning carpets:
Removing the carpet and pad, cleaning the underlying flooring, then
replacing the carpet and pad; shampooing the carpet using a vacuum
attachment that removes the suds; steam cleaning the carpet using a
vacuum attachment that removes the moisture; or HEPA filtered
vacuuming. This final rule seeks to minimize the introduction of lead-
based paint hazards to carpeted floors by requiring the certified
renovator to cover the floor of the work area with plastic sheeting,
carefully clean up and remove the plastic sheeting following work, and
thoroughly vacuum the carpet using a HEPA vacuum with a beater bar. EPA
believes this containment and cleanup protocol will minimize exposure
to lead-based paint hazards created during renovation activities. EPA
does not believe a renovation contractor should be responsible for
removing and replacing carpet in a home when such a requirement was not
within the scope of the renovation project. Also, in contrast to the
effectiveness of using a HEPA on carpets, EPA does not have sufficient
data on steam cleaning or shampooing to evaluate its effectiveness.
Without data to demonstrate the effectiveness of shampooing or steam
cleaning carpets EPA is not prepared to require these methods be used
in lieu of vacuuming with a HEPA vacuum. EPA further notes that the HUD
lead-safe Housing Rule only requires HEPA vacuuming, not steam cleaning
or shampooing.
    c. Vacuums equipped with HEPA filters. Given that the HUD
Guidelines recommend the use of HEPA vacuums and the OSHA Lead in
Construction standard requires that vacuums be equipped with HEPA
filters where vacuums are used, EPA proposed requiring the use of HEPA
vacuums in its proposed work practices. Nonetheless, EPA requested
comment on whether the rule should allow the use of vacuums other than
vacuums equipped with HEPA filters given. Specifically, EPA requested
comment on whether there are other vacuums that have the same
efficiency at capturing the smaller lead particles as HEPA-equipped
vacuums, along with any data that would support this performance
equivalency and whether this performance specification is appropriate
for leaded dust cleanup.
    i. Background. HEPA filters were first developed by the U.S. Atomic
Energy Commission during World War II to capture microscopic
radioactive particles that existing filters could not remove. HEPA
filters have the ability to capture particles of 0.3 microns with
99.97% efficiency. Particles both larger and smaller than 0.3 microns
are easier to catch. Thus, HEPA filters capture those particles at
100%. Available information indicates that lead particles generated by
renovation activities range in size from over 20 microns to 0.3 microns
or less (Ref. 38).
    OSHA recently completed a public review of their Lead in
Construction standard (Ref. 39). OSHA concluded that the principal
concerns regarding HEPA vacuums (i.e., cost and availability) have been
significantly reduced since the standard was established in 1994. HEPA
vacuum cleaners have an increased presence in the marketplace and their
cost has decreased significantly. Therefore, OSHA continues to require the
use of HEPA vacuums in work subject to the Lead in Construction Standard.
    ii. Final rule requirements. Vacuums used as part of the work
practices being finalized in this final rule must be HEPA vacuums,
which are to be used and emptied in a manner that minimizes the reentry
of lead into the workplace. The term ``HEPA vacuum'' is defined as a
vacuum which has been designed with a HEPA filter as the last
filtration stage. A HEPA filter is a filter that is capable of
capturing particles of 0.3 microns with 99.97% efficiency. The vacuum
cleaner must be designed so that all the air drawn into the machine is
expelled through the filter with none of the air leaking past it.

[[Page 21735]]

    iii. Comments. Many commenters supported the use of HEPA vacuums.
Some of these commenters supported the requirement that they be used
because they are also required by the OSHA Lead in Construction
standard. One commenter noted that the price of HEPA vacuums had decreased
and were no longer significantly more expensive than non-HEPA vacuums.
    Another commenter cited the Dust Study, the NAHB Lead Safe Work
Practices Survey, and several other studies as supporting the
conclusion that lead-safe work practices and modified lead-safe work
practices, along with a two-step or three-step cleaning process using a
HEPA-equipped vacuum and wet washing, greatly reduce dust lead levels
and should be regarded as best management practices for renovation
jobs. The commenter notes that the NAHB study found significant
reductions in loading levels after cleanup using HEPA-equipped vacuum
and then either wet washing or using a wet disposable cleaning cloth mop.
    One commenter contended that HEPA vacuums with beater bars were not
currently available on the market at the time comments were submitted.
However, EPA has been able to identify commercial vacuum manufacturers
as well as department store brands that currently offer HEPA vacuums
with beater bar attachments.
    Several commenters noted that vacuum cleaners other than HEPA
vacuums were effective at removing lead dust. They cited several papers
which they asserted support their conclusion, including Comparison of
Home Lead Dust Reduction Techniques on Hard Surfaces: The New Jersey
Assessment of Cleaning Techniques Trial (2002) by Rich, et al (Ref.
40), a study by the California Department of Health Services (Ref. 41)
which the commenter contends concluded that some non-HEPA vacuums
performed better than the HEPA units tested, Comparison of Techniques
to Reduce Residential Lead Dust on Carpet and Upholstery: The New
Jersey Assessment of Cleaning Techniques Trial (2002) by Yiin, et al
(Ref. 42), and Effectiveness of Clean up Techniques for Leaded Paint
Dust (1992) by the Canadian Mortgage and Housing Corporation (Ref. 43).
    The commenter that cited the Rich, et al paper contended that the
authors found no clear difference between the efficacy of HEPA and non-
HEPA vacuums on hard surfaces (non-carpeted floors, windowsills, and
window troughs), and found that non-HEPA vacuums appeared more
efficient in removing particles on uncarpeted floors, which are the
hard surfaces that may best reflect exposure to children. One commenter
stated that given the research literature demonstrates that there is no
performance difference in lead dust removal, EPA should allow cleanup
with either a HEPA or non-HEPA vacuum. Another commenter contended that
a vacuum cleaner retrofitted with a HEPA filter rather than a HEPA
vacuum should be required to be used as part of the work practices.
    EPA disagrees with the commenters who state that the literature
does not demonstrate a difference between HEPA vacuums and non-HEPA
vacuums. In the Yiin, et al study, the authors stated that for carpets,
data from the ``[Environmental and Occupational Health Sciences
Institute] vacuum sampling method showed a significant reduction
(50.6%, p = 0.014) in mean lead loading for cleaning using the HEPA
vacuum cleaner but did not result in a significant difference (14.0%
reduction) for cleaning using the non-HEPA vacuum cleaner.'' They also
note that when they used wipe sampling ``the results indicated that
neither of the cleaning methods yielded a significant reduction in lead
loading.'' EPA believes the results from the wipe sampling method is
less useful because as discussed in Unit III.E.8.iv. of this preamble,
the Agency believes that wipe sampling on carpets is not a reliable
indicator of the lead-based paint dust in the carpet. The authors
report that in their study non-HEPA vacuums were more effective than
HEPA vacuums on upholstery but note ``[t]he reduced efficiency of the
HEPA vacuum cleaner in cleaning upholstery [as compared to carpets] may
be, at least partially, due to the lower pre-cleaning dust lead level
and the smaller sample data set for the HEPA vacuum cleaner than for
the non-HEPA vacuum cleaner.''
    In the Rich, et al study, the authors noted that ``On windowsills,
the HEPA vacuum cleaner produced 22% (95% CI, 11-32%) larger reductions
than the non-HEPA vacuum cleaner, and on the window troughs it produced
16% (95% CI, -4 to 33%) larger reductions than the non-HEPA vacuum
cleaner.'' Not only were the percent reductions greater, the post-
cleaning geometric mean lead loadings for the experiments in which the
HEPA vacuums were used was lower than the post-geometric mean lead
loadings for the experiments in which the non-HEPA vacuums were used.
On hard floors, the authors reported that the non-HEPA vacuum removed
the largest quantities of lead-based paint dust. They note that this
may be due in part to the fact that the initial loadings were higher
where the non-HEPA vacuums were used (Pre-cleaning geometric mean lead
loadings were 200 and 155 μg/ft\2\ for the two types of experiments
where non-HEPA vacuum were used) as compared to the lead loadings for
the experiments in which the HEPA vacuum was used (Pre-cleaning
geometric mean lead loading of 100 μg/ft\2\). However, the post-
cleaning geometric mean lead loading for the experiments in which the
HEPA vacuum was used was lower than for either of the two types of
experiments where non-HEPA vacuums were used. The post-cleaning
geometric mean lead loading was lower for each set of experiments in
which the HEPA vacuum was used. In considering these data, EPA believes
that the data on the post-cleaning lead loadings are particularly
important. In assessing the performance of cleaning methods, it is not
only the percent reduction that is important but also the ability to
clean down to very low levels. Several studies have demonstrated that
reducing lead loadings from relatively high levels to about 100 ug/
ft\2\ is more readily accomplished than reductions below 100 ug/ft\2\
and becomes progressively harder at lower levels (Ref. 44).
    One commenter stated that EPA did not have sufficient evidence
showing that HEPA vacuums are significantly better at removing lead
dust than non-HEPA vacuums and cited a Canadian Mortgage and Housing
Corporation study from 1992 (Ref. 43). That study was a laboratory
study done in a dynamic chamber under controlled conditions and used
simulated lead dust. Lead stearate, a compound not typically used in
lead-based paint, was used to spike the construction dust used in the
experiments. This study has various limitations. It focused on how much
of the quantity of leaded dust applied to a surface was present in the
vacuum bag after vacuuming. There was no assessment of the size of the
dust particles collected. Most importantly, the study did not measure
the quantity of leaded dust that remained on the floor. Without this
data, the efficacy of the non-HEPA vacuums cannot be assessed. In
addition, the study is not very informative as to what will occur under
real world conditions.
    Two years later, the same group (Ref. 45) studied 20 test rooms
where they produced lead-containing dust by power sanding walls of
known lead levels. Four cleaning methods were used, of which only two
produced acceptable results. The two cleaning methods that did not
produce acceptable clean-ups were: (1) Dry sweeping the floor with a
corn broom followed by vacuuming with a utility vacuum; and (2)
vacuuming the floor with a household

[[Page 21736]]

vacuum cleaner followed by wet mopping with a commercial household
cleaner. The other two methods that achieved clean-ups resulting in
floors that passed dust clearance testing were: (3) vacuuming the floor
with a utility vacuum followed by wet mopping with a 2% solution of a
commercial lead-cleaning product, followed by a rinse with clean water;
and (4) vacuuming with a HEPA vacuum, followed by wet mopping with
trisodium phosphate, followed by a clean water rinse, followed by more
vacuuming with a HEPA vacuum. The report concludes that ``. . .Cleaning
Methods 1 and 2 were inadequate to meet the cleanliness criteria. . .''
Later it states ``Cleaning Methods 3 and 4 did meet both the current
and proposed HUD criteria.''
    The same commenter also referred to a report submitted to HUD by
the California Department of Health Services (Ref. 41). This study
evaluated a range of vacuums. The efficacy of the non-HEPA vacuums
varied, particularly in comparison with the HEPA vacuums. The authors
of the report did not identify the attributes of the non-HEPA vacuums
that were instrumental in determining their effectiveness. At best,
vacuums that were effective at picking up and retaining lead-based
paint dust could be classified as high performing although there were
no criteria that could be discerned on what made a high performing
vacuum. The report also states that HEPA models without floor tool
brushes performed poorly. This may be the case. The HEPA vacuums used
in EPA's Dust Study performed adequately and all of these vacuums were
equipped with flip down brushes on the floor tool.
    The California report contained another finding of interest. ``Of
special concern is the direct observation under the scanning electron
microscope of lead dust particles dissolving on exposure to water to
release large numbers of sub-micron lead particles. Although requiring
further study, this effect suggests that vacuuming to remove most of
the water soluble lead dust, followed by wet-washing would be the best
cleaning strategy.'' The cleaning protocol in this final rule follows
this strategy by requiring, for all surfaces in and around the work
area except for walls, HEPA vacuuming, followed by wet wiping or wet
mopping, followed by the cleaning verification protocol.
    EPA has determined that the weight of the evidence provided by
these studies demonstrate that the HEPA vacuums consistently removed
significant quantities of lead-based paint dust and reduced lead
loadings to lower levels then did other vacuums.
    While there may be some vacuums cleaners that are as effective as
HEPA vacuums, EPA has not been able to define quantitatively the
specific attributes of those vacuums. That is, EPA is not able to
identify what criteria should be used to identify vacuums that are
equivalent to HEPA vacuums in performance. The authors of the studies
discussed above do not state that the vacuums used are representative
of all vacuums nor do they try to identify particular aspects of the
non-HEPA vacuums. Thus, EPA does not believe that it can identify in
this final rule what types of vacuums can be used as substitutes for
HEPA-vacuums. EPA believes it would be ineffective to identify specific
makes or models of vacuums (e.g., the ones used in the studies) in this
final rule given how quickly manufactures change models, nor would that
take into account new manufacturers.
    EPA also disagrees with the commenter that suggested that vacuums
that are retrofitted with a HEPA filter should be considered sufficient
for purposes of this rule. These vacuums are not necessarily properly
sealed or designed so that the air flow goes exclusively through the
HEPA filter. EPA agrees with the commenter who stated that HEPA vacuums
are vacuums which have been designed for the integral use of HEPA
filters, in which the contaminated air flows through the HEPA filter in
accordance with the instructions of its manufacturer and for which the
performance standard for the operation of the filter is defined. EPA
also agrees with those commenters that contended that the rule should
contain a more-specific definition of HEPA vacuum. Accordingly, this
final rule defines ``HEPA vacuum'' as a vacuum which has been designed
with a HEPA filter as the last filtration stage and includes a
description of what the term HEPA means. The definition of ``HEPA
vacuum'' also specifies that the vacuum cleaner must be designed so
that all the air drawn into the machine is expelled through the filter
with none of the air leaking past it.
    Furthermore, EPA agrees that OSHA's requirement that HEPA vacuums
should be an important consideration in determining whether HEPA
vacuums should be required to be used as part of the work practices
being finalized today. Because OSHA's standard covers practically all
work subject the to EPA's final Renovation, Repair, and Painting
program regulations, and applies to all firms having an employee/
employer relationship with few exceptions, there is no reason to create
a separate standard for those firms not subject to the OSHA standard,
particularly in light of the data on the efficacy of HEPA vacuums
versus non-HEPA vacuums discussed above. Even if EPA were able to
define vacuums that were acceptable substitutes to HEPA vacuums, it is
not clear that the benefits would outweigh the complications associated
with creating an EPA standard that is different than that required by OSHA.
    7. Cleaning verification. This final rule requires the certified
renovator to use disposable cleaning cloths after cleaning both as a
fine cleaning step and as verification that the containment and
cleaning have sufficiently cleaned up the lead-paint dust created by
the renovation activity. Cleaning verification's usefulness is based on
the combination of its fine cleaning properties and the fact that it
provides feed-back to the certified renovator on the effectiveness of
the cleaning. Cleaning verification is an important component of the
work practices set forth in this rule and contributes to the
effectiveness of the combination of training, containment, cleaning and
verification at minimizing exposure to lead-based paint hazards created
during renovation, remodeling and painting activities.
    a. Background. As described in greater detail in Unit IV.E.2. of
the preamble to the 2006 Proposal (Ref. 3), EPA began looking for an
alternative to dust clearance sampling that would be quick,
inexpensive, reliable, and easy to perform. EPA believed that a
verification method was needed because studies have consistently shown
that interior visual clearance resulted in a high percentage of false
negatives, that is falsely indicating that lead loadings were below the
standards used. This occurred even when using a clearance standard of
100 [micro]g/ft\2\.
    i. Disposable Cleaning Cloth Study. The Disposable Cleaning Cloth
Study used commercially available disposable cleaning cloths to
determine whether variations of a ``white glove'' test could serve as
an effective alternative (Ref. 37). White disposable wet and dry
cleaning cloths were used to wipe windowsills and wipe floors, then
they were examined to determine whether dust was visible on the cloth.
This determination was made by visually comparing the cloth to a
photographic standard that EPA developed to correlate to a level of
contamination that is at or below the dust-lead hazard standard in 40
CFR 745.65(b). Cloths that matched or were lighter than the
photographic standard were considered to have achieved ``white glove.''
This series of studies found that on uncarpeted floors, 91.5% of the
surfaces

[[Page 21737]]

that achieved ``white glove'' using only dry cloths were confirmed by
dust wipe sampling to be below the dust lead hazard standard for
floors, while 97.3% of the floors that achieved ``white glove'' using
only wet cloths were also below the hazard standard. In addition, 10 of
the 11 floors where ``white glove'' was not achieved using dry cloths,
and 20 of the 21 floors where ``white glove'' was not achieved using
wet cloths, were nonetheless below the dust lead hazard standard. There
were very few instances where ``white glove'' was achieved but the dust
lead level was above the dust lead hazard standard. Thus, the study
showed that for floors, the white glove test results were biased
towards false positives. Windowsills were also tested. For the dry
cloth protocol, 96.4% of the sills that achieved ``white glove'' were
also confirmed by dust wipe sampling to be below the dust lead hazard
standard for windowsills, and the one sill that did not achieve ``white
glove'' was also below the standard. For the wet cloth protocol, all of
the sills that achieved ``white glove'' were also below the dust lead
hazard standard, as were the four sills that did not reach ``white glove.''
    Based on the results of the Disposable Cleaning Cloth Study, the
2006 Proposal included for interior renovations, as part of the work
practices, a post-renovation cleaning verification process that would
follow the visual inspection and cleaning. Cleaning verification would
consist of wiping the interior windowsills and uncarpeted floors with
wet disposable cleaning cloths and, if necessary dry disposable
cleaning cloths, and comparing each to a cleaning verification card
developed and distributed by EPA.
    ii. The Dust Study. The Dust Study (Ref. 17), which is described
elsewhere in this preamble, assessed the proposed work practices. As
one component of the proposed work practices, the cleaning verification
was evaluated in the Dust Study. It should be noted that the Dust Study
was not designed specifically to evaluate the cleaning verification in
isolation of the rest of the work practices. Unlike the earlier
Disposable Cleaning Cloth Study that was intended to test the
effectiveness of the use of the ``white glove'' test in isolation, the
Dust Study was meant to evaluate the effectiveness of the proposed work
practices, including cleaning verification. Unlike the earlier
Disposable Cleaning Cloth Study, the Dust Study involved actual
renovations performed by local renovation contractors who received
instruction in how to perform cleaning verification and then were left
alone to determine whether cleaning cloths matched or were lighter than
the cleaning verification card. 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.
    One of the Dust Study conclusions was that cleaning verification
resulted in decreases in lead levels, but was not always accurate in
identifying the presence of levels above EPA dust lead hazard standards
for floors and sills. This refers to the experiments involving power
planing and high temperature heat guns. An examination of the cleaning
verification data in the study shows that, if power planing and high
temperature heat gun experiments are excluded, the values for post-
renovation cleaning verification when the proposed rule work practices
were used were at or below the regulatory hazard standard for floors,
often significantly below the regulatory hazard standard. These results
were similar for windowsills. Excluding power planing and high
temperature heat gun experiments, all of the post-renovation cleaning
verification windowsill sample averages for experiments conducted in
accordance with the proposed rule requirements were below the
regulatory dust lead hazard standard for windowsills. In addition, 26
of the 30 other experiments (using only some elements of the proposed
containment and cleaning requirements) not involving power planing or
high temperature heat guns had post-renovation cleaning verification
sill sample averages well below the hazard standards.
    b. Cleaning verification as an alternative to clearance testing. In
determining whether cleaning verification could be seen as a
qualitative alternative to clearance testing, EPA considered both the
Disposable Cleaning Cloth Study and the Dust Study. 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,
when used apart from the other work practices, is not as reliable a
test for determining whether the hazard standard has been achieved as
clearance testing. However, the Dust Study supports the validity of
cleaning verification as an effective component of the work practices.
The cleaning and feedback aspects of cleaning verification are
important to its contribution to the effectiveness of the work practices.
    c. Final rule requirements. Based on a review of the Dust Study and
the Disposable Cleaning Cloth Study, EPA concluded that if the
practices prohibited in this final rule are avoided and the required
work practices are followed, then cleaning verification is an effective
component of the work practices. EPA believes that the suite of work
practices as a whole are effective at addressing the lead-paint dust
that is generated during renovation, repair, and painting preparation
activities. Therefore, the final rule does not require dust clearance
sampling after any renovations, nor does it allow the signs delineating
the work area to be removed based solely on the results of a visual
inspection. The final rule does require a certified renovator to
perform a visual inspection to determine whether dust, debris, or
residue is still present in the work area, and, if these conditions
exist, they must be eliminated by re-cleaning and another visual
inspection must be performed. In addition, the rule requires that after
an interior work area passes the visual inspection, the cleaning of
each windowsill and uncarpeted floor within the work area must be
verified, as explained below. After an exterior work area passes the
visual inspection, the renovation has been properly completed. In
response to one commenter who was concerned about the dust that could
collect on exterior windowsills during exterior projects, the final
rule clarifies that the visual inspection must confirm that no dust,
debris or residue remains on surfaces in and below the work area,
including windowsills and the ground.
    For interior renovations, after the work area has been cleaned and
has passed a visual inspection, a certified renovator must wipe each
interior windowsill in the work area with a wet disposable cleaning
cloth and compare the cloth to a cleaning verification card developed
by EPA. If the cloth matches or is lighter than the image on the card,
that windowsill has passed the post-renovation cleaning verification.
If the cloth is darker than the image on the card, that windowsill must
be re-cleaned in accordance with Sec.  745.85(a)(5)(ii)(B) and (C) and
the certified renovator must wipe that windowsill with a new wet cloth,
or the same one folded so that an unused surface is exposed, and
compare it to

[[Page 21738]]

the cleaning verification card. If the cloth matches or is lighter than
the card, that windowsill has passed. If not, the certified renovator
must then wait for one hour after the surface was wiped with the second
wet cleaning verification cloth or until the surface has dried,
whichever is longer. Then, the certified renovator must wipe the
windowsill with a dry disposable cleaning cloth. Based on the Dust
Study, EPA concluded that this process need not be repeated after the
first dry cloth. At that point, that windowsill has passed the post-
renovation cleaning verification process. Each windowsill in the work
area must pass the post-renovation cleaning verification process.
    The cleaning verification protocol in the final rule is similar to
what was in 2006 Proposal. By not requiring the surface to be re-
cleaned after the second wet wipe and by ending the cleaning
verification process after one dry cloth, this final rule is different
from the Proposal. The 2006 Proposal required that the dry cloths be
used until one passed verification (i.e., reached ``white glove'').
EPA's final rule does not require more than one dry cloth because only
3 experiments out of the 60 performed in the Dust Study failed the
second wet cloth. None of these 3 experiments were performed in
accordance with the requirements of this final rule; all experiments
performed in accordance with the requirements of this final rule passed
after either the first or second wet cloth. Based on the Dust Study, it
is unlikely that dust containing lead will remain in excess of the
hazard standard following two wet and one dry wipes; however EPA is
concerned about the possibility of requiring potentially indefinite
cleaning by renovation contractors, with the potential of making them
responsible for cleaning up pre-existing dirt or grime, whether lead-
contaminated or not.
    After the windowsills in the work area have passed the post-
renovation cleaning verification, a certified renovator must proceed
with the cleaning verification process for the floors and countertops
in the work area. A certified renovator must wipe no more than 40 ft\2\
of floor or countertop area at a time with a wet disposable cleaning
cloth. For floors, the renovator must use an application device
consisting of a long handle and a head to which a wet disposable
cleaning cloth is attached. If the floor and countertop surfaces in the
work area exceed 40 ft\2\, the certified renovator must divide the
surfaces into sections, each section being no more than 40 ft\2\, and
perform the post-renovation cleaning verification on each section
separately. If the wet cloth used to wipe a particular section of
surface matches or is lighter than the image on the cleaning
verification card, that section has passed the post-renovation cleaning
verification. If, however, on the first wiping of a section of the
surface, the wet cloth does not match and is darker than the image on
the cleaning verification card, the surface of that section must be re-
cleaned in accordance with Sec.  745.85(a)(5)(ii)(B) and (C). After re-
cleaning, the certified renovator must wipe that section of the surface
again using a new wet disposable cleaning cloth. If the second wet
cloth matches or is lighter than the image on the cleaning verification
card, that section of the floor has passed. If the second wet cloth
does not match and is darker than the image on the verification card,
the certified renovator must wait for 1 hour or until the surface has
dried, whichever is longer. Then, the certified renovator must wipe
each of those 40 ft\2\ sections of the floor or countertop surfaces
that did not achieve post-renovation cleaning verification using the
wet cloths with a dry disposable cleaning cloth. On floors, this wiping
must also be performed using an application device with a long handle
and a head to which the dry cloth is attached. At that point, the
floors and countertops have passed the post-renovation cleaning
verification process and the warning signs may be removed.
    In finalizing the work practices in this final rule, EPA has taken
into consideration safety, reliability and effectiveness. EPA has
concluded that these work practices, including cleaning verification,
are an effective and reliable method for minimizing exposure to lead-
based paint hazards created by the renovation, both during and after
the renovation.
    d. Comments. EPA received many comments on cleaning verification.
The majority of the comments supported the use of dust wipe clearance
testing and did not consider cleaning verification as a suitable
substitute. Some of these commenters supported the use of dust wipe
clearance testing for purposes of clearance. Some commenters did not
support either dust wipe clearance testing or cleaning verification;
they contended that visual inspection alone was sufficient and that
dust clearance testing is too costly. Others questioned whether
cleaning verification had been demonstrated to be valid, reliable, and
effective in establishing that the work area had been adequately
cleaned or that the clearance standards were met. Some contended that
the cleaning verification method showed promise, but should be
subjected to additional testing, including field trials, to demonstrate
its effectiveness when used by certified renovators. A minority of
commenters supported the use of cleaning verification. Some supported
its use rather than dust wipe-clearance testing and clearance,
particularly given that renovations are not intended to remove lead-
based paint. Some supported cleaning verification because it is faster,
easier to implement, and less expensive than clearance testing.
    i. Cleaning verification is not a substitute for clearance testing.
Many commenters contended that cleaning verification is not a
substitute technology for dust-wipe clearance testing and should not be
used in this manner. EPA agrees with the commenters. As discussed in
Unit III.E.8.b., based on a careful consideration of the Disposable
Cleaning Cloth Study and the Dust Study, EPA has concluded that, in
itself, cleaning verification should not be used as a substitute for
dust wipe clearance testing.
    ii. Dust clearance testing and clearance. Many commenters asserted
that the rule should require dust clearance testing instead of the
cleaning verification. Some further contended that dust clearance
testing is the only proven method for verifying lead dust levels.
Others supported the use of dust wipe clearance testing for purposes of
clearance for the renovation. One commenter noted that even when dust
clearance testing is performed it is not uncommon for clearance to be
conducted up to three times on a home to make sure that lead levels are
sufficiently low. Some commenters suggested that cleaning verification
be used as a screen before dust clearance testing. Other commenters
contended that dust clearance testing should not be required because it
is expensive and time consuming and is an obstacle to completing the
renovation job. Other commenters contended that dust clearance testing
has been done in some jurisdictions quickly and relatively
inexpensively. A few commenters contended that EPA should not require
dust clearance testing because there is a difference between abatement,
which is intended to eliminate lead-based paint hazards, and
renovations in which the focus should be to not create any new lead-
based paint hazards. Some commenters asserted that dust clearance
testing should not be required because this would result in the
renovator being responsible for existing lead-based paint hazards. One
commenter used the example of a window replacement

[[Page 21739]]

project to illustrate this point. The commenter argued that, where the
floor in the work area is in poor condition but outside the scope of
the renovation contract, the window replacement contractor should not
be responsible for making sure the floor passes a clearance standard,
which may not be possible without modifying the floor.
    EPA disagrees that dust clearance testing and clearance should be
components of the renovation activities subject to this final rule.
Dust clearance testing is used in abatement to determine whether lead-
based paint hazards have been eliminated. This test is part of a
specific process that involves a specialized work force (e.g.,
inspector, risk-assessor), typically removal of residents, and
modifications to the housing in some instances to eliminate lead-based
hazards (e.g., removing carpet or refinishing or sealing uncarpeted
floors). Dust clearance testing is needed to determine if lead-based
paint hazards have been eliminated and residents can re-occupy a house
and not be exposed to lead-based paint hazards. As noted by a
commenter, a home may require clearance testing be conducted up to
three times before the home is determined to be free of lead-based
paint hazards and it may require that floors be refinished or that
carpets be replaced.
    The Disposal Cleaning Cloth Study showed that wet wipes can pick up
accumulated grime from floors. Applying this to the renovation context,
if EPA were to require clearance, renovators might be held responsible
for cleaning up pre-existing lead dust hazards that had accumulated in
the grime on the floor.Based on the Dust Study, EPA has determined that
all of the leaded dust generated by the renovation will have been
cleaned up by two wet wipes followed by one dry wipe, where necessary.
EPA is concerned about the possibility of requiring potentially
indefinite cleaning by renovation contractors, with the potential of
making them responsible for cleaning up pre-existing dirt or grime,
whether lead-contaminated or not. Even assuming EPA has authority to
require replacement of carpets and floors under some circumstances as
part of a renovation project, EPA does not think as a policy matter
that such an approach in which pre-existing hazards must be eliminated
is appropriate. It could fundamentally change the scope of a renovation
job. The time and cost of conducting clearance testing and achieving
clearance is an acceptable part of the time and cost of conducting the
abatement given the goal of an abatement, the range of activities that
are inherent in an abatement, and the activities that are required to
be conducted to achieve clearance. Given the effectiveness of the work
practices being finalized in this rulemaking, including the role of
cleaning verification in minimizing exposure to lead-based paint dust
generated during renovations, dust clearance testing does not provide
the added value to balance the time and effort and the cost to home and
building owners associated with requiring this additional step to the
work practices.
    As discussed in Unit II.A.6.b., there are many differences between
renovations and abatements. Renovations are different from abatements
in intent, implementation, type of workforce, workforce makeup,
funding, and goal. Renovations are focused not on eliminating lead-
based paint hazards, but rather on making repairs or improvements to a
building. The vast majority of abatements are either done with funding
from HUD and/or a State or local government. In addition, residents are
not typically present in a residence during an abatement while they are
typically present in a residence during a renovation. Thus, the purpose
of dust wipe clearance testing and clearance would necessarily be
different if it were used in a renovation than in an abatement. For
abatements, clearance testing and clearance are used to minimize
potential exposure by eliminating lead-based paint hazards after
completion of the job. Clearance acts as the means to ensure that
minimization and signal the end of the job. For renovations, given the
presence of residents, the concern is for potential exposure both
during and after the job. Dust clearance testing and clearance would
only address the second part of the exposure equation. Thus, dust
clearance testing conducted after renovation activities have been
completed would not provide the equivalent determination of potential
exposure that it does for abatement. EPA has considered this difference
as one factor in its determination that given the effectiveness of the
work practices being finalized in this rulemaking, including the role
of cleaning verification in minimizing exposure to lead-based paint
dust generated during renovations, dust clearance testing does not
provide the added value to balance the time and effort and the cost to
home and building owners associated with requiring this additional step
to the work practices.
    Although renovators should be required to address lead-based paint
dust generated by renovation activities, the Agency is not requiring
renovators to take the actions required under the abatement rules to
achieve clearance for lead-based paint dust not associated with the
renovation and to address housing conditions not associated with the
renovation.
    EPA agrees that having dust wipe samples collected by a qualified
person and analyzed by a qualified laboratory is an effective way to
determine the quantity of lead in dust remaining after a renovation
activity, but it would not necessarily show that the dust was due to
the specific renovation activity. EPA also notes that in addition to
providing a numerical value, dust clearance testing costs more than
cleaning verification and takes longer to produce results. Results can
take from 24 to 48 hours or longer and cleaning, sampling and analysis
may have to be repeated depending upon the initial results. During this
period, the warning signs delineating the work area would need to be
maintained to protect occupants and others from the risk of exposure to
lead-based paint hazards created by the renovation. Thus, EPA believes
that dust clearance sampling is a poor fit for renovation work for a
variety of reasons, including the greater expense associated with
clearance testing, the time necessary to obtain the results of the
testing and the consequent delay in the completion of the job, and the
potential to expand the scope of the renovation.
    EPA believes that dust clearance testing and clearance are not
necessary given that the Dust Study demonstrates that cleaning
verification, as an effective component of the work practices,
minimizes exposure to lead-based paint hazards created by the
renovation, both during and after the renovation. The cleaning and
feedback aspects of cleaning verification are important to its
contribution to the effectiveness of the work practices. EPA notes that
unlike dust wipe clearance testing in which a small part of the work
area would be tested, cleaning verification is conducted over the whole
work area. Each repetition of the cleaning verification protocol
further cleans the surface.
    The work practices, including cleaning verification, required by
this final rule are expected to minimize exposure to any newly created
lead-based paint hazards created by a renovation by removing newly
deposited dust, while requiring cleanup of pre-existing hazards only
incidentally, to the extent such cleanup is unavoidable to address the
newly created hazards. The Dust Study demonstrates that the cleaning
verification protocol, used in

[[Page 21740]]

conjunction with the other work practices in this final rule, is
effective and reliable in achieving this result.
    While the requirements of this rule will, in some cases, have the
ancillary benefit of removing some pre-existing dust-lead hazards, it
strikes the proper balance of addressing the lead-based paint hazards
create during the renovation but at the same time not requiring
renovators to remediate or eliminate hazards that are beyond the scope
of the work they were hired to do.
    iii. Visual inspection in lieu of cleaning verification. Some
commenters urged EPA to require only visual inspection of the work area
after the cleaning following a renovation. They contend that cleaning
verification is not needed. Some commenters argued that thorough
cleaning in combination with a requirement that no visible dust or
debris remain is adequate to address the lead dust created by the
renovation activity. Most of these commenters also noted that because
renovation and abatement are different that it would be inappropriate
for EPA to impose additional requirements on renovation firms beyond
visual inspection. Some commenters contended that the lead dust from a
renovation is usually in the form of debris such as chips and splinters
that can be seen with the naked eye, and the presence of this debris is
an indicator to workers that the job site requires additional cleaning
until no visible debris remains.
    One commenter contended that cleaning after the renovation activity
until the worksite passed a visual inspection was the most important
determinant of whether a job would pass a dust clearance test. In
support of this contention, the commenter cited the Reissman study
(Ref. 22). The commenter contended that the study demonstrates that
when there was no visible dust and debris present after completion of
renovation or remodeling activity, there was no added risk of a child
having an elevated blood lead level as compared to the risk for
children living in homes where there was no reported renovation or
remodeling work.
    Two commenters offered an analysis of two sets of data collected by
an environmental testing firm. One dataset consists of post-renovation
dust samples collected in Maryland apartment units; the other consists
of dust samples collected for risk assessment purposes in 41 states. No
information on renovation activity is provided for the second dataset.
The commenters argue that because 96.7% of the Maryland post-renovation
samples and 96.1% of the other samples were below the applicable hazard
standard for the surface (floor or windowsill) tested, this suggests
that visual inspection in those cases was sufficient to ensure that no
dust-lead hazard existed.
    One commenter cited the Dust Study (Ref. 17), the NAHB Lead Safe
Work Practices Survey (Ref. 19), and several other studies as
supporting the conclusion that lead-safe work practices and modified
lead-safe work practices, along with a two-step or three-step cleaning
process using a HEPA-equipped vacuum and wet washing, greatly reduce
dust lead levels and should be regarded as best management practices
for renovation jobs. The commenter notes that the NAHB study found
significant reductions in loading levels after cleanup using HEPA-
equipped vacuum and then either wet washing or using a wet mopping
system. The commenter argues that if the work area is cleaned using
these practices, it is appropriate to adopt a visual clearance standard
allowing no visible dust or debris in the work area at the conclusion
of the job.
    Other commenters contended that visual inspection following
cleaning after a renovation is not a reliable method for determining
whether a lead-based paint hazard remains after cleaning. Some
commenters cited a study conducted by the National Center for Healthy
Housing (NCHH) showing that 67% of the visual inspections that
initially passed failed when checked more carefully and 54% that
eventually passed a visual inspection were found to be above the hazard
standard. However, one commenter contended this was a poorly conducted
study. Another commenter referred to the study ``An Evaluation of the
Efficacy of the Lead Hazard Reduction Treatments Prescribed in Maryland
Environmental Article 6-8'' conducted by NCHH for the Baltimore City
Health Department in which 53% of housing identified by visual
inspection as being below the hazard standard was actually above the
hazard standard. Another commenter argued that NIOSH research indicates
that significant lead contamination may remain on surfaces that appear
clean.
    During inter-Agency review, one commenter pointed to 2007 studies
from Maryland and Rochester, New York that they contend show trained
workers and visual inspection for dust and debris can achieve 85-90%
compliance with the hazard standards following renovations in
previously occupied housing. Given the lateness of the submission, EPA
did not review this information. However, EPA notes that in a cover
letter, the commenter states that the 2007 Maryland Study was conducted
by workers that had taken a 2-day training course, which is more
training than required by this rule. Even if the studies do demonstrate
this effectiveness by highly trained workers, EPA does not believe that
a 85-90% effectiveness is sufficiently protective for residents.
    EPA disagrees with those commenters that contended that a visual
inspection following cleaning after a renovation is sufficient to
ensure the lead-based paint dust generated by a renovation has been
sufficiently cleaned-up. The weight-of-the-evidence clearly
demonstrates that visual inspection following cleaning after a
renovation is insufficient at detecting dust-lead hazards, even at
levels significantly above the regulatory hazard standards. Further,
EPA disagrees with the implication that easily visible paint chips and
splinters are necessarily the primary materials generated during a
renovation. EPA studies, including the Dust Study, show that renovation
activities generate dust as well as chips and splinters. Finally, EPA
disagrees with those commenters who requested the work practices in
this final rule not include any verification beyond visual inspection.
In the Dust Study, there were 10 renovations performed in accordance
with the 2006 proposed work practices that did not involve practices
prohibited by this final rule. Of those 10 renovations, 5 needed the
additional cleaning verification step in order to achieve EPA's
regulatory dust-lead hazard standards for floors. (EPA notes that the
Dust Study Protocol did not explicitly specify that all dust and debris
be eliminated prior to the cleaning verification step, only that
visible debris be removed. However, the contractor running the study
for EPA reported that, in practice, the renovators participating in the
study eliminated all visible dust and debris as part of their typical
cleaning regimen. Thus, the study protocol was slightly different from
the rule requirements, which state that the renovation firm must remove
all dust and debris and conduct a visual inspection before beginning
the cleaning verification procedure.)
    EPA does not believe that the Reissman, et al. study is supportive
of the contention that visual inspection of the work area is sufficient
because it did not evaluate the effectiveness of a visual inspection
requirement. The study did not measure dust lead levels, which are the
basis for this rule. Instead, it characterized the relationships
between elevated blood lead levels and renovation dust and debris that
spread throughout the housing. EPA notes that Reissman, et al.
concluded that there

[[Page 21741]]

was a correlation between renovation activities and elevated blood lead
levels.
    EPA concluded that the dataset referenced by one commenter that
consists of dust samples collected for risk assessment purposes in 41
States is not informative because there was no information on
renovation activity collected with these dust samples. With respect to
the Maryland renovation study,96.7% is an overstatement. The author who
conducted the analysis stated that:
    [W]hen the maximum test values are examined rather than the
mean, 9.8% of the MD sample and 12.5% of the national sample of
properties with LBP surpassed at least one of the hazard thresholds
of 40 μg/sf for floors and 250 μg/sf for sills. As illustrated
in Exhibit 1, a fairly sizable percentage of the lead tests exceed
the clearance thresholds. The failure rates are about 20 percent
lower for Maryland than for the national LBP sample. However, even
for Maryland, nearly one in ten apartments would fail the hazard test.
    Thus, even if these were the only data available, it would not
support the conclusion that visual clearance is effective.
    After reviewing the NAHB Lead Safe Work Practices Survey, EPA
concluded that it does not support the contention that visual
inspection is sufficient to detect whether lead-based paint dust
remains. While EPA agrees that use of a HEPA-vacuum and wet-washing are
effective at cleaning lead-based paint dust, this does not support the
case for relying on visual inspection without subsequent cleaning
verification. In the NAHB study, the levels of lead-based paint dust
that remained after the renovation activities were sometimes higher and
sometimes lower than at the start of the renovation, but they were always
at relatively high levels after the renovation--as high as 11,400 ug/ft\2\.
    In addition, the two studies conducted by the National Center for
Healthy Housing as noted by commenters demonstrate that visual
inspection was not effective at determining the presence of dust-lead
hazards. The study ``Evaluation of the HUD lead-Based Paint Hazard Control
Grant Program'' study conducted by NCHH corroborates these findings.
    iv. Carpets and other horizontal surfaces within the work area.
Some commenters were concerned that cleaning verification is not
intended for use on carpeted floors. They were not confident that
thorough cleaning was adequate to address potential lead hazards that
might remain in carpet after the renovation. One commenter pointed to
studies showing a significant correlation between dust lead in carpets
and children's blood lead. As cleaning verification is not required for
carpet, commenters criticized the lack of a required method for
determining that lead hazards in carpet had been eliminated. Commenters
suggested EPA require clearance testing for carpeted rooms in the work
area, which some argued has been demonstrated to be effective, or rely
on the HUD protocol, which they asserted is widely accepted and used.
    As discussed in detail in Unit IV.E. of the preamble to the 2006
Proposal, EPA did not design cleaning verification for use on carpeted
floors. This was based on EPA's concerns about the validity of dust
wipe sampling on carpeted floors. EPA noted that the decision to apply
the clearance standard promulgated in the TSCA section 403 rulemaking
to carpeted floors ultimately had little consequence, given the context
in which clearance standards are used--to ensure that lead-based paint
hazards have been eliminated. Typically, during an abatement, carpets
that are in poor condition or are known to be highly contaminated are
removed and disposed. EPA further notes that the HUD Lead-safe Housing
Rule only requires HEPA vacuuming, not steam cleaning or shampooing.
    While an abatement might require the removal of a lead-contaminated
carpet, EPA has concluded that it is not appropriate to require carpet
removal following a renovation. Even assuming EPA has authority to
require removal of carpet following a renovation, this could
significantly expand the cost of a renovation, and fundamentally expand
the scope of the renovation activity contracted for by the homeowner or
building owner by requiring removal of carpets as a result of pre-
existing lead contamination.
    Dust Study data on containment and information on the effectiveness
of HEPA vacuums show that the use of containment and post-renovation
cleaning with HEPA vacuums to remove the lead-based paint dust
potentially deposited on the carpets during the renovation would
reliably and effectively address lead-based paint dust generated during
a renovation. Thus, rather than rely upon a dust clearance sample that
may not be accurate and may require the replacement of the carpet for
renovation projects in which a carpet is present, EPA is finalizing the
work practices which require containment and the use of a HEPA vacuum
equipped with a beater bar for cleaning.
    In the absence of a practical, effective way of determining how
much lead dust has been added to a carpet and whether it has been fully
removed, EPA is adopting a technology-based approach for carpets that
differs from the approach used for hard-surfaced floors, by requiring
use of a HEPA vacuum with a beater bar. EPA is not aware of, and
commenters have not identified, a practicable approach similar to the
one EPA has adopted for floors as a basis to evaluate the results of
the application of work practice standards to carpets. In the absence
of such an approach, EPA believes the approach adopted today is the
most effective, reliable approach available for minimizing potential
lead-based paint hazards in carpets created by renovations.
    One commenter suggested that cleaning verification be required on
other horizontal surfaces within the work area, in addition to
windowsills and uncarpeted floors. EPA agrees with this commenter
because the Dust Study demonstrated that, in nearly all cases, the
cleaning verification step resulted in lower dust lead levels and, in
most cases, the verification step was needed in order to achieve
cleanup of all of the leaded dust deposited on the floors by the
renovation. EPA is also concerned about the possible contamination of
surfaces that are used to prepare, serve, and consume meals. EPA
expects that movable surfaces, such as tables and desks, will be moved
from the work area before work begins. Therefore, EPA has modified the
rule to require cleaning verification on all countertops in the work area.
    v. Reliability of cleaning verification. EPA received comments
prior to the 2007 request for comments on the proposed work practices
in light of the Dust Study. Those pre-Dust Study comments are
summarized here. Commenters questioned whether cleaning verification
had been demonstrated to be valid, reliable, effective, or efficient in
establishing that the work area had been adequately cleaned or that the
clearance standards were met. Some commenters contended that the
cleaning verification method showed promise, but should be subjected to
additional testing, including field trials, to demonstrate its
effectiveness when used by certified renovators. Commenters on the 2006
Proposal observed that the cleaning verification protocol was supported
by a single study that was conducted under conditions unlike those
presented by the typical renovation. Specifically, a commenter noted
that most of the housing units studied had undergone some form of
abatement that would likely have reduced dust levels and the study used
professional inspectors or other highly trained individuals to collect
the samples according to

[[Page 21742]]

specified protocols. The commenter was concerned that a renovator with
no experience with sample collection and little training could
replicate the work of the professionals used in the study. The
commenter pointed out that the study avoided testing the procedure on
rough surfaces, a condition that will frequently occur in real world
applications, and used a different set of wipe protocols than actually
utilized by the EPA in the 2006 Proposal. Another commenter on the 2006
Proposal noted that cleaning verification had never been employed in a
real-world practical setting. In addition, some of these commenters
contended that the cleaning verification protocol was too complicated
or too confusing to follow.
    A number of commenters who provided comments in response to EPA's
request for comments on the proposed work practices in light of the
Dust Study quoted 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 of these 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, while not asked to comment on the efficacy of the
cleaning verification, contended that in the Dust Study cleaning
verification did not provide sufficiently reliable results, leading to
an inaccurate assessment of cleaning efficiency.
    EPA disagrees with these commenters. The Dust Study did provide a
real-world practical setting in which to assess the use of cleaning
verification. Local renovation contractors performed actual renovations
for each experiment in the study. The contractors performed cleaning
verification on floors of wood, vinyl, or tile, in good, fair, or poor
condition. The Dust Study used the protocols that were consistent with
those in the 2006 Proposal. While the Dust Study was not designed
specifically to assess cleaning verification, it did assess the
effectiveness of cleaning verification both when it was used as part of
the proposed rule work practices and as a separate step after the other
experiments which did not follow all the proposed work practices. Each
experiment included a cleaning verification step. The contractors were
instructed in how to perform cleaning verification. They independently
determined whether particular cloths matched or were lighter than the
cleaning verification card. In most renovations not involving the
practices that EPA is prohibiting in this rule, i.e., power planing
(power sanding) and high temperature heat guns, cleaning verification
in combination with the other 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. Cleaning
verification, as well as the other components of the work practices
being finalized today were not effective when high dust generation
practices such as power planing (including power sanding) and high
temperature heat guns were used. These practices, as well as torching,
are being prohibited in this rulemaking. Thus, EPA, in its
determination on the effectiveness of cleaning verification, is
focusing on the results of the experiments in the Dust Study that did
not involve these prohibited practices.
    Of the 10 experiments in which the proposed rule practices were
used and in which the practices being prohibited in this final rule
were not used, all final 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). In fact, four experiments resulted in levels that were less
than 10 μg/ft\2\, three resulted in levels less than 30 μg/ft\2\,
and three resulted in levels that were approximately 40 μg/ft\2\
(all were well within the level of uncertainty for this value). In four
of the experiments, at least one floor area failed verification on the
first wet disposable cleaning cloth, all passed on the second wet
cloth. In one of the experiments, a windowsill failed the first wet
cloth, but passed the second. These results were seen on floors in a
variety of conditions, including good, fair and poor conditions. As a
general case, in the other experiments that did not follow all the
proposed work practices, the use of cleaning verification after
cleaning (both baseline cleaning and cleaning following the proposed
work practices) reduced, often significantly, the amount of lead dust
remaining.
    EPA agrees with commenters that cleaning verification should not be
used for clearance. However, while cleaning verification is not
clearance testing, as described above the use of cleaning verification
consistently resulted in levels of lead-based paint dust at or below
the hazard standard Also, the use of cleaning verification consistently
resulted in lower levels of lead-based paint dust than remained after
all types of cleaning studied when only followed by visual inspection.
There is sufficient consistency in the data to support the use of
cleaning verification as an effective component of the work practices
being finalized today.
    In response to the comment that the Disposable Cleaning Cloth Study
used professional inspectors or other highly trained individuals
following specified protocols, EPA intends to include cleaning
verification in its training course for renovators and will use the
results of the Dust Study and the Agency's observations on the experience
of the contractors in the study in its development of this course.
    vi. Subjectivity of cleaning verification. Many commenters objected
to the ``white glove'' standard as inherently subjective, and doubted
whether it would be protective. The commenters were concerned that the
effectiveness of cleaning verification relies upon a renovation
worker'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. One commenter contended that, based on its experience as a
sub-contractor to EPA on the Disposable Cleaning Cloth Study, making
the visual pass/fail determination can be quite subjective and open to
interpretation. The commenter believes that it may be unrealistic to
expect that renovation workers will consistently make the proper
decision using the proposed verification card. Some commenters
speculated that the renovator's accuracy in comparing the cleaning
cloth to the verification card could depend on factors such as the
renovator's visual acuity, the lighting in the room, or simply
differences in judgment among renovators. Another commenter 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 agrees that 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.

[[Page 21743]]

However, this does not necessarily mean that the comparison is suspect.
As previously stated, the Dust Study represents 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 participant in the Dust Study
expressed concern about the subjectivity of the test, the fact remains
that cleaning verification was successfully performed by the renovation
contractors in all of the experiments involving the work practices
being finalized in this final rule (excluding those involving power
planing (power sanding) and high temperature heat guns) and 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.
These cleaning verifications were conducted by various persons in
various light conditions and on various surface conditions. Further,
EPA notes that cleaning verification is not simply qualitative
clearance. Unlike the sampling for dust clearance testing, the cleaning
verification involves a cleaning component. The act of doing the
cleaning verification has been shown to lower, often significantly, the
dust lead levels. Finally, in the development of its training course
for contractors, EPA plans to use its data on the contractors' use of
cleaning verification in the Dust Study, including their use of the
cleaning verification cards.
    vii. Cost of cleaning verification. Some commenters were concerned
that the cleaning verification protocols are too impractical,
burdensome, or time-consuming for many contractors to perform. However,
the Dust Study found that cleaning verification only took, on average,
slightly less than 13 minutes for experiments where the proposed rule
requirements were followed. EPA's Final Economic Analysis estimates
that the average cost of cleaning verification ranges from less than
$10 to $30 in residences, and in public and commercial building COFs it
ranges from less than $10 to less than $50.
    viii. Availability of cleaning verification card. One commenter
asked about the availability of the cleaning verification card,
specifically, who would produce them, where would they be available,
and how often do they need to be replaced. EPA intends to produce the
cleaning verification cards and to make them available at accredited
renovator training courses and upon request from the National Lead
Information Center.
    ix. Third-parties. Several commenters argued that a third party
should perform cleaning verification (or visual inspection, in the case
of exterior jobs) rather than the certified renovator. Commenters saw a
conflict of interest, since by performing the cleaning verification the
certified renovator is evaluating the effectiveness of his or her own
work. Some thought the subjective nature of the method left it open to
misinterpretation or fraud. Commenters were concerned that given the
competitive pressures of the renovation industry and lack of
independent oversight, it was not realistic to expect all renovators to
follow the cleaning verification protocol in good faith. Others worried
that a renovator might feel pressured to produce a passing result,
perhaps to the point of recording false results. One commenter stated
that those who would not comply with the cleaning procedure are
unlikely to comply with cleaning verification.
    Again, as described above, EPA addressed potential conflicts-of-
interest in its lead-based paint program in the preamble to the final
Lead-based Paint Activities Regulations. That discussion outlined two
reasons for not requiring that inspections or risk assessments,
abatements, and post-abatement clearance testing all be performed by
different entities. The first was the cost savings and convenience of
being able to hire just one firm to perform all necessary lead-based
paint activities. The second was the potential regional scarcity of
firms to perform the work. EPA believes that these considerations may
be equally applicable to renovations, and perhaps more compelling,
given the objective of keeping this rule simple and relatively
inexpensive. EPA is concerned that a requirement that contractors
engage a third party for every renovation job will add undue
complication and expense to home renovations, and that it could delay
completion of renovation jobs. There are estimated to be 8.4 million
renovation events annually. Moreover, as stated above, it is not
uncommon for regulated entities to make determinations relating to
their regulated status. Thus, after weighing these competing
considerations, EPA has decided to take an approach that is consistent
with the approach taken in the 402(a) Lead-based Paint Activities
Regulation and not require third party visual inspections, testing, or
cleaning verification.
    x. Relationship between cleaning verification and the regulatory
lead-based paint hazard standards. Some commenters contend that
cleaning verification is not protective because it was designed to pass
based on the regulatory hazard standard for floors. These commenters
contend that this level is too high to be protective and that
continuing to use this level is unwarranted given more recent data that
demonstrates that lead causes neurocognitive effects at levels much
lower than 10 μg/dL, the current CDC blood lead level of concern
which was used in establishing the regulatory hazard standards.
    EPA interprets the statutory directive to take into account safety
when promulgating work practice standards as meaning that such work
practice standards should be established in relation to lead-based
paint hazards--as identified pursuant to TSCA section 403. There is no
level of lead exposure that can yet be clearly identified, with
confidence, as clearly not being associated with potentially increased
risk of deleterious health effects. EPA does not believe the intent of
Congress was to require elimination of all possible risk arising from a
renovation, nor is EPA aware of a method that could reliably and
effectively accomplish this. Given that the hazard standards are the
trigger for regulation under section 402(c)(3) and that they are set
through rulemaking, EPA has concluded that it makes most sense to use
the same standards as the target level for safe work practices.
Otherwise, the potential is created for a scheme under which any
renovation activities found not to create hazards are not regulated at
all, whereas renovation activities found to create hazards trigger
requirements designed to leave the renovation site cleaner than the
unregulated renovations. Given the Congressional intent that the
section 403 hazard standards apply for purposes of subchapter IV of
TSCA, EPA is applying them as the target level for safe work practices,
which include the cleaning verification process, in this rule.
    8. Consistency with HUD. Several commenters recommended that EPA
adopt HUD's clearance requirement for activities other than abatement,
which some commenters noted has been successfully implemented in
projects in federally assisted housing. One pointed out that renovators
have accepted HUD's clearance testing protocol, and implementing the
``white glove'' method will cause confusion in the industry and give
contractors a reason for not following lead-safe work practices. A
commenter recommended that EPA adopt HUD's standard for exterior
clearance of visual inspection of the work area and a soil test.
Commenters expressed concern that the final rule could undermine more
stringent State

[[Page 21744]]

and local standards, and asked EPA to make clear that more stringent
state and local requirements for clearance would apply despite the lack
of mandatory clearance in the final rule.
    This final regulation does not supersede more stringent or
different requirements for interim control projects or renovations
regulated by HUD, the States, or local jurisdictions. Renovation firms
are still responsible for complying with all applicable Federal, State,
or local laws when conducting renovations. In some cases, this may mean
that dust clearance testing must be performed at the conclusion of a
renovation rather than cleaning verification. EPA believes that
renovation firms will be able to integrate these new requirements into
their existing business practices with very little difficulty.
    EPA also notes that the scope of the housing covered by HUD is
different than the scope covered by this final rule. As noted by the
commenter, HUD covers activities in projects in federally assisted
housing. The occupancy patterns, including turn-over, will be different
than in the general population covered by this final rule. While there
is some overlap, there are substantial differences. Thus, EPA believes
that total consistency with HUD is not needed.
    9. Optional use of clearance. In the 2006 Proposal, EPA proposed to
allow optional dust clearance sampling at the completion of renovation
activities instead of the post-renovation cleaning verification
described in Sec.  745.85(b). Some commenters agreed that the decision
whether to perform clearance at the conclusion of the job should be
left to the homeowner. One commenter asked EPA to require that, if a
resident arranged for clearance testing and found lead hazards, the
contractor would have to re-clean to the resident's satisfaction.
    As discussed, dust clearance sampling and cleaning verification are
not surrogates and EPA is not requiring renovation firms to perform an
abatement, i.e., eliminate all lead-based paint hazards, as part of a
renovation. The Dust Study demonstrated that cleaning verification is
quite often needed to minimize exposure to dust-lead hazards created
during renovations. EPA is concerned that if dust clearance sampling
were allowed instead of cleaning verification, without an accompanying
requirement that the renovation firm re-clean until clearance is
achieved, the rule would actually be less protective because the
surfaces in the work area could be left less clean than if cleaning
verification were performed.
    In response to these comments, EPA has further considered the issue
and decided to allow dust clearance sampling instead of cleaning
verification only in certain limited situations. EPA agrees with the
commenters that, if the rule were to allow clearance sampling instead
of verification, EPA would have to require the renovator to achieve
clearance, otherwise, there would be no check on whether the renovation
had been safely performed. HUD's Lead Safe Housing Rule requires
clearance to be achieved in many situations, as do several States. For
example, the State of New Jersey requires dust clearance sampling and
clearance in certain situations in multi-unit rental housing.As noted
in Unit III.G. of this preamble, States, Territories, and Tribes may
choose to have as protective as or more protective requirements than
this final rule. One example of a more protective requirement would be
a requirement to perform dust clearance testing and achieve clearance
after renovations. Another example may be requiring that trained
renovation workers demonstrate achievement of clearance levels by other
cleaning verification methods, such as using newer technologies. If a
firm can demonstrate, for example, using data obtained in the field,
that it regularly meets the clearance standards without using the EPA
specified approach but rather by using newer technology or alternative
methods, a State may request that EPA evaluate such a provision as
being as protective as or more protective than the methods described in
this final rule.
    Therefore, in situations where the contract between the renovation
firm and the property owner or another regulation, such as HUD's Lead-
Safe Housing Rule or a state regulation, requires dust clearance
sampling by a properly qualified person and requires the certified
renovator or a worker under the direction of the certified renovator to
re-clean until clearance is achieved, EPA will allow the renovation
firm to use both dust clearance testing and clearance instead of the
cleaning verification step.
    Property owners in other situations may still choose to perform
dust testing at any time, such as after a renovation, including
cleaning verification, has been completed. EPA recommends that property
owners who choose to have dust testing performed use certified dust
sampling professionals such as inspectors, risk assessors, or dust
sampling technicians. EPA also recommends that property owners who wish
to have dust testing performed after a renovation reach an agreement
with the renovation firm up front as to what will happen based on the
results of the dust testing, such as whether additional cleaning will
be performed if the surfaces do not achieve the clearance standards in
40 CFR 745.227(e)(8)(viii).

F. Recordkeeping for Renovation Firms

    1. Recordkeeping--a. Pre-renovation education. 40 CFR 745.86
already requires that persons performing renovations in target housing
document compliance with the lead hazard information distribution
provisions of the Pre-Renovation Education Rule. Consistent with the
2006 Proposal, this final rule deletes existing 40 CFR 745.88 because
it contains only sample acknowledgment statements for the purpose of
documenting compliance with the information distribution requirements
and is thus unnecessary. EPA received no comments on this proposed
deletion. In addition, EPA received no substantive comments on the
sample acknowledgment form provided with the proposed rule. New sample
acknowledgment forms incorporating language consistent with this final
rule and reflecting commenter editorial suggestions are available on
EPA's website at http://www.epa.gov/lead and from the National Lead
Information Center at 1-(800)-424-LEAD (5323).
    In addition, as proposed in the 2006 Proposal, EPA has modified
paragraph (a) of 40 CFR 745.86 to make compliance with the
recordkeeping requirements the responsibility of the renovation firm,
not the certified renovator. Although, as discussed below, this final
rule requires the certified renovator assigned to a renovation to
certify compliance with the work practice requirements for that
renovation, the renovation firm may choose to delegate other tasks
associated with recordkeeping requirements to someone other than a
certified renovator. For example, this rule does not require a
certified renovator to distribute lead hazard information to owners and
occupants before a renovation, nor does it require a certified
renovator to obtain the necessary acknowledgment statements or
certified mail receipts. The renovation firm may decide that it is more
efficient to have someone other than the certified renovator perform
these tasks.
    As described in Unit III.B.2. of this preamble, this final rule
expands the information distribution requirements to renovations in
child-occupied facilities. In proposing this expansion, the 2007
Supplemental Proposal included

[[Page 21745]]

associated recordkeeping requirements for firms performing renovations
in child-occupied facilities. Although EPA did receive comments on
extending the information distribution requirements to child-occupied
facilities, none of these comments specifically addressed the
recordkeeping provisions themselves. EPA has determined that the
recordkeeping requirements are an important part of monitoring
compliance with and ensuring the effectiveness of the information
distribution provisions of this rule. Therefore, this final rule
retains the existing recordkeeping requirements for pre-renovation lead
hazard information distribution in target housing and extends those
recordkeeping requirements to renovations in child-occupied facilities.
Firms performing renovations in target housing or child-occupied
facilities must obtain and retain signed and dated acknowledgements of
receipt of the lead hazard information from building owners or a
certificate of mailing for such information. In addition, renovation
firms must obtain and retain signed and dated acknowledgments of
receipt from the occupant (the resident of the housing unit being
renovated or the proprietor of the child-occupied facility) or
certificates of mailing for such information, or the firm must prepare
a certification that documents the attempts made to provide this
information to the occupants. For renovations in common areas in target
housing, the firm must also document the steps taken to provide
information to the tenants with access to the common area being
renovated. Finally, firms performing renovations in child-occupied
facilities must take steps to provide information to the parents and
guardians of children under age 6 using the facility. Firms may do this
by either mailing each parent or guardian the lead hazard information
pamphlet and a general description of the renovation or by posting
informational signs where parents and guardians are likely to see them.
Informational signs must be accompanied by a posted copy of the
pamphlet or information on how to obtain the pamphlet at no charge to
interested parents or guardians. The firm's activities with respect to
parents and guardians must also be documented.
    b. Documentation of compliance with other regulatory provisions.
This final rule provides for a number of exceptions. Unit III.A.3. of
this preamble describes an exception for renovations in owner-occupied
target housing that is neither the residence of a child under age 6 or
apregnant woman, nor a child-occupied facility. In order for a
renovation to be eligible for this exception, the renovation firm must
obtain a signed statement from the owner of the housing to the effect
that he or she is the owner of the housing to be renovated, that he or
she resides in the housing to be renovated, that no child under 6 or no
pregnant woman resides there, that the housing is not a child-occupied
facility, and that the owner acknowledges that the work practices to be
used during the renovation will not necessarily include all of the work
practices contained in EPA's renovation, repair, and painting rule.
Consistent with the 2006 Proposal and the 2007 Supplemental Proposal,
this final rule requires renovation firms to maintain this signed
statement, which must include the address of the housing being
renovated, for 3 years after the completion of the renovation. Again,
although EPA received comments on the merits of this exception, no
comments were directed specifically to the recordkeeping requirement.
EPA has determined that the recordkeeping requirement is necessary to
allow EPA to monitor compliance with the terms of this exception.
    This final rule also requires firms performing renovations to
retain documentation of compliance with the work practices and other
requirements of the rule. Specifically, the firm must document that a
certified renovator was assigned to the project, that the certified
renovator provided on-the-job training for workers used on the project,
that the certified renovator performed or directed workers who
performed the tasks required by this final rule, and that the certified
renovator performed the post-renovation cleaning verification. This
documentation must include a copy of the certified renovator's training
certificate. Finally, the documentation must include a certification by
the certified renovator that the work practices were followed with
narration as applicable. The certification must include the specific
information listed in Sec.  745.86(b)(7). The firm must keep this
information for 3 years after the completion of the renovation.
    The 2006 Proposal also included a requirement that renovation firms
maintain documentation of compliance with the renovator and worker
training requirements and the work practice requirements. This
documentation would have had to include signed and dated descriptions
of how activities performed by the certified renovator were conducted
in compliance with the proposed requirements. To demonstrate how these
recordkeeping requirements might be met, EPA prepared and placed into
the docket a draft recordkeeping checklist.
    EPA received many comments on the substance of these recordkeeping
requirements and on the draft recordkeeping checklist. Some commenters
thought that the purpose of the recordkeeping requirement should be to
provide important information to consumers or to serve as part of the
record of whether a particular structure was lead-safe. Some, but not
all of these commenters suggested that there was no need for the
renovation firm to retain the records it prepares. Rather, the records
should be given to the owners and occupants of the building either
before or after the renovation. However, as proposed, the recordkeeping
requirement served two purposes. The first is to allow EPA or an
authorized State to review a renovation firm's compliance with the
substantive requirements of the regulation through reviewing the
records maintained for all of the renovation jobs the firm has done.
The second is to remind a renovation firm what it must do to comply.
EPA envisioned that renovation firms would use the recordkeeping
requirements and checklist as an aid to make sure that they have done
everything that they are required to do for a particular renovation.
For these two purposes, there is no substitute for recordkeeping by
renovation firms.
    However, EPA agrees with those commenters that felt that the
recordkeeping requirements were vague, particularly in light of the
draft recordkeeping checklist itself and the amount of time that EPA
estimated it would take a renovation firm to complete the checklist.
Many commenters said that it was unclear how much detail EPA would be
looking for in descriptions of how the firm complied with the various
work practices, and some noted that an extensive narrative would
contribute no more to compliance or enforcement than a box checked to
indicate that the requirements had been complied with.
    In response to these commenters, EPA has revised that draft
recordkeeping checklist to be more in the nature of a checklist, with a
certification that the representations on the form are true and
correct. Narrative information is still required where necessary, such
as an identification of the brand of test kits used, the locations
where they were used, and the results. EPA has also revised the
regulatory text to describe the specific information that must be
provided and the specific items for which a certification of compliance is

[[Page 21746]]

required. The regulatory text at 40 CFR 745.86(b)(7) now contains a
list of work practice elements that must be certified as having been
performed. In response to two commenters that suggested that the only
person truly capable of certifying that the lead-safe work practices
were followed on a particular job would be the certified renovator
assigned to that job, EPA is requiring the certification to be
completed by the certified renovator assigned to the renovation. EPA
has determined that a review of the records maintained by renovation
firms will be an effective method of determining whether a particular
firm is generally complying with the regulations or not.
    2. Notification to EPA. In the 2006 Proposal, EPA requested comment
on, but did not propose, a requirement that renovation firms notify EPA
before beginning a covered renovation project. Most commenters
supported a notification requirement, arguing notifications would
provide information to EPA about where renovation activities will be
occuring, so EPA could inspect ongoing renovation projects for
compliance with the requirements of this rule. These commenters stated
that EPA would be unable to enforce the requirements of the rule
without a notification provision. Some commenters also suggested that
the act of informing EPA of their activities provides a powerful
incentive for renovation firms to comply. Other commenters observed
that prior notification for every covered renovation would be too
burdensome for the regulated community and for the Agency. Some of
these commenters suggested that notifications only be required for
renovations involving high-risk methods, housing where a child under
age 6 or a pregnant woman resides, or renovations involving multiple
rooms in a housing unit.
    This final rule does not include a prior notification requirement.
EPA disagrees with the notion that there is no way to enforce this
regulation without a prior notification requirement. As stated above in
the discussion on recordkeeping, EPA believes that a review of a
renovation firm's records will demonstrate whether or not a renovation
firm generally complies with the regulations. In addition, as at least
one commenter noted, many renovations require a building permit from
the local permitting authority. EPA can work with the local authorities
to identify inspection targets. EPA can also follow up on tips and
complaints.
    EPA agrees with those commenters that believe that prior
notification for every project is simply too burdensome for the
regulated community and for the Agency. If the streamlined, telephone-
based system recommended by some of the commenters were implemented, it
would reduce the initial burden on the renovation firms. However, EPA
would still have to process millions of such notifications annually,
and the collective burden on renovation firms and the government would
be considerable. Rather than require millions of notifications
annually, the great majority of which would never be reviewed, EPA
prefers to use other methods for targeting renovation projects for
inspections.
    An initially attractive option considered by EPA was a prior
notification requirement for a subset of covered renovation projects.
This option could potentially reduce the notifications received to a
manageable level, while preserving the benefits of a prior notification
requirement, but EPA was unable to develop appropriate criteria for
defining which renovations would require prior notification. EPA
considered requiring prior notification for renovations using certain
high-risk practices, the practices prohibited by the HUD Lead Safe
Housing Rule and EPA's Lead-based Paint Activities Regulations.
However, EPA ultimately decided, as described in Unit III.E.6. of this
preamble, to prohibit most of those practices for covered renovations.
Requiring prior notifications only for renovations in housing where a
child under age 6 resides and in child-occupied facilities would not
significantly reduce the notifications that would be required. EPA
determined that a prior notification requirement tied to project size
would not be feasible or effective, because the hazard potential from a
renovation job is a combination of the size of the project and the
activity being performed.
    With regard to the compliance mindset mentioned by some commenters,
EPA believes that the recordkeeping requirements are a less burdensome
way to achieve the same goal. In fact, a prior notification requirement
could lead to EPA targeting for inspection those persons who are most
likely to be making an effort to comply with the substantive
requirements of the regulation. The person who would not bother to
comply with the substantive provisions of this rule would most likely
avoid filing a prior notification to EPA before beginning a covered
renovation, repair, or painting project. These persons are more likely
to be performing renovations in a non-compliant manner than are persons
who have complied with a prior notification requirement and told EPA
where to find them.
    EPA has therefore determined that a prior notification requirement
is not an effective or efficient means of facilitating the monitoring
of compliance with this regulation. States, Territories, and Tribes
developing their own renovation, repair, and painting programs may come
to a different conclusion. These jurisdictions are free to establish
prior notification schemes that make sense for their community.

G. State, Territorial, and Tribal Programs

    1. In general. Because of the enormous number of renovation
activities that occur in this country on an annual basis, EPA welcomes
the help of its State, Territorial, and Tribal partners to ensure that
these renovations are performed by trained persons in accordance with
this final rule. This final rule establishes, in accordance with TSCA
section 404 and EPA's Policy for the Administration of Environmental
Programs on Indian Reservations (Ref. 46), requirements for the
authorization of State, Territorial, and Tribal renovation, repair, and
painting programs. The process for obtaining authorization to operate
these programs in lieu of the Federal program is the same process used
to authorize State, Territorial, and Tribal lead-Based Paint Activity
or Pre-Renovation Education programs found in 40 CFR part 745, subpart Q.
    Interested States, Territories, and Indian Tribes may apply for,
and receive authorization to, administer and enforce all of the
elements of the new subpart E, as amended. States, Territories and
Tribes may choose to administer and enforce just the existing
requirements of subpart E, the pre-renovation education elements, or
all of the requirements of the proposed subpart E, as amended. The 2006
Proposal and the 2007 Supplemental Proposal would not have provided for
the authorization of State, Territorial, or Tribal programs that
include only the training, certification, accreditation, and work
practice requirements for renovation, repair, and painting programs and
not the pre-renovation education provisions of subpart E. EPA proposed
this approach because the Agency believes that the pre-renovation
education provisions are an integral part of ensuring that consumers
have the information they need to make informed decisions about
renovation practices in their homes and other buildings. In addition,
consistent with the proposals, this final rule encourage renovation
firms to use the existing pamphlet acknowledgment

[[Page 21747]]

process to provide owner-occupants of target housing with the
opportunity to opt out of the training, certification, and work
practice requirements of the rule if they reside in the housing to be
renovated, there is no child under age 6 orpregnant woman in residence,
the housing does not otherwise meet the definition of child-occupied
facility, and the owner acknowledges that the work practices to be used
during the renovation will not necessarily include all of the lead-safe
work practices contained in EPA's renovation, repair, and painting rule.
    One State commenter disagreed with EPA's proposed approach and
requested that EPA authorize State, Territorial or Tribal programs that
incorporate only the training, certification, accreditation, and work
practices of this final rule because TSCA section 404 allows states to
administer and enforce the standards, regulations, or other
requirements established under TSCA section 402 or TSCA section 406 or
both. EPA agrees with this commenter's reading of TSCA. Therefore, this
final rule provides for the authorization of State, Territorial, or
Tribal programs that include either the pre-renovation education
requirements of 40 CFR part 745, subpart E, or the training, certification,
accreditation and work practice requirements of this rule, or both.
    States, Territories, and Tribes that wish to administer and enforce
the pre-renovation education provisions of subpart E, as amended, must
include both target housing and child-occupied facilities within the
scope of their program. Similarly, States, Territories, and Tribes that
are also interested in obtaining authorization to administer and
enforce the training, certification, accreditation, work practice, and
recordkeeping elements of subpart E, as amended, must include both
target housing and child-occupied facilities within the scope of their
program. States with existing authorized pre-renovation education
programs are required to demonstrate that they have modified their
programs to include child-occupied facilities. These States must
provide this demonstration no later than the first report submitted
pursuant to 40 CFR 745.324(h) on or after April 22, 2009.
    2. Process. The authorization process currently codified at 40 CFR
part 745, subpart Q, will be used for the purpose of authorizing State,
Territorial, and Tribal renovation, repair, and painting programs.
States, Territories, and Tribes seeking authority for their programs
must obtain public input, then submit an application to EPA.
Applications must contain a number of items, including a description of
the State, Territorial, or Tribal program, copies of all applicable
statutes, regulations, and standards, and a certification by the State
Attorney General, Tribal Counsel, or an equivalent official, that the
applicable legislation and regulations provide adequate legal authority
to administer and enforce the program. The program description must
demonstrate that the State, Territorial, or Tribal program is at least
as protective as the Federal program. In this case, the Federal program
consists of the requirements for training, certification, and
accreditation and the work practice standards of this final rule.
    One commenter suggested that EPA require States with a currently
authorized TSCA 402(a) lead-based paint activities program to submit
only an amended application for incorporating the TSCA section
402(c)(3) renovation, repair, and painting program requirements since
many of the required documents would be the same as those submitted for
the original TSCA 402(a) application. Furthermore, the commenter
recommended that a letter from the State agency identified in the
original 402(a) authorization application with a synopsis detailing how
the State proposes to administer and enforce the renovation, repair,
and painting program serve as an amended application. EPA has
determined that a new application for authorization for the renovation,
repair, and painting program is necessary because there may be a
different State agency or consortia of agencies implementing and
enforcing this program, a long time may have elapsed since most States
submitted their TSCA section 402(a) program application, and many of
the requirements within the elements of the renovation, repair, and
painting program differ from their counterparts in the lead-based paint
activities program.
    To be eligible for authorization to administer and enforce the
training, certification, accreditation, and work practice requirements
of this final rule, State, Territorial, and Tribal renovation programs
must contain certain minimum elements, e.g., work practice standards
and procedures and requirements for the certification of individuals
and/or firms, that are very similar to the existing minimum elements
specified in 40 CFR 745.326(a) for lead-based paint activities
programs. In order to be authorized, State, Territorial, or Tribal
programs must have procedures and requirements for the accreditation of
training programs, which can be as simple as procedures for accepting
training provided by an EPA-accredited provider, or a provider
accredited by another authorized State, Territorial, or Tribal program.
Procedures and requirements for the certification of renovators are
also necessary. At a minimum, these must include a requirement that
certified renovators have taken accredited training, and procedures and
requirements for re-certification. State, Territorial, and Tribal
programs applying for authorization must also include work practice
standards for renovations that ensure that renovations are conducted
only by certified renovation firms and the renovations are conducted
using work practices at least as protective as those of the Federal
program. As is the current practice with lead-based paint activities,
EPA will not require State, Territorial, or Tribal programs to certify
both firms and individuals that perform renovations. States,
Territories and Tribes may choose to certify either firms or
individuals, so long as the individuals that perform the duties of
renovators are required to take accredited training.
    3. Implementation. In order to provide interested States,
Territories and Tribes time to develop, or begin developing renovation,
repair, and painting programs in accordance with this rule, EPA will
not begin to actively implement the Federal program until April 22,
2009, at which time EPA will begin accepting applications for training
program accreditation. Several commenters thought 1 year would be
adequate for the purpose of allowing States, Territories, and Tribes to
develop their own programs, while others expressed concern that 1 year
would not be enough time to get these programs developed and
authorized. Most commenters who expressed an opinion on this topic
generally agreed that an implementation delay is necessary. Reasons
given in support of a delay were conservation of State financial and
administrative resources and the fact that some States have had
difficulties in retraining contractors to new State-specific
requirements after the contractors had become accustomed to working
under the Federal program. In contrast, some commenters argued that, in
light of the 2010 goal, no delay whatsoever was warranted. This final
rule retains the 1 year implementation delay set forth in the 2006
Proposal. EPA has determined that this period of time represents an
appropriate balance between the need to implement this rule quickly and
concerns over potential duplication of effort and additional

[[Page 21748]]

costs incurred by the regulated community if EPA begins accrediting
training providers and certifying firms in jurisdictions that are also
working towards implementing their own programs. States, Territories,
and Tribes may begin the authorization process at any time after the
effective date of this final rule, even after the Federal program has
been implemented in their jurisdiction.
    Some commenters were concerned about the effect of this rule on
existing State programs. Several commenters asked EPA to expressly
state that this rule does not pre-empt existing State programs and that
State programs that are more stringent than the Federal program will be
eligible for authorization. One commenter noted that the number of
houses with lead contaminated paint is disproportionately distributed
throughout the U.S. This commenter pointed out that this apparent
disparity supports the need for State control of lead programs and for
EPA to practice ``regulatory restraint.'' According to this commenter,
this ``regulatory restraint'' will allow States with more severe lead
paint problems to impose stricter standards and requirements regarding
certification and work practices without imposing unnecessary burdens
on States with less severe problems.
    This final rule does not preempt existing programs that address
renovations. However, to the extent that these programs are less
protective than the requirements of this final rule, the requirements
of this final rule will apply. To be eligible for authorization, State,
Territorial, and Tribal programs need not exactly duplicate the Federal
program contained in this final rule, but they must still meet the
requirement of TSCA section 404 that they be ``at least as protective
as'' the Federal program. It would be difficult for the Agency to
describe specific requirements that would make a program more or less
``protective.'' EPA will review each program application separately
against the protections provided by this final rule.
    Several commenters expressed concern regarding the uniformity and
consistency of State programs. Some recommended that EPA take States'
concerns into account, but guarantee uniformity of State programs by
prohibiting States from arbitrarily deviating from program elements.
Others noted that if there are uniform regulations for approved
training courses for State certification, there should be reciprocity
between States since many people work in multiple States. One commenter
suggested that, in an effort to promote consistency, States institute a
lead-safety test that renovators must pass prior to receiving permits
to conduct work. Several commenters noted that a lack of reciprocity
between States and/or duplicative or divergent certification
requirements will add an unnecessary burden and level of complexity for
renovation and remodeling firms, especially those working in multi-
State areas. One commenter argued that this could lead to a problem in
maintaining certifications similar to the problem the commenter
believes exists in maintaining lead-based paint inspector, risk
assessor, and other certifications associated with TSCA section 402
abatements. One suggested that EPA should exert control over the right
to refuse approval of State programs unless they provide for
reciprocity with the Federal program and programs of other
jurisdictions approved by EPA.
    The standard of EPA review for State, Territorial, and Tribal
programs under TSCA section 404 is that they be ``at least as
protective'' as the Federal program. In addition, TSCA section 404 (e)
reserves the right of States and their political subdivisions to impose
requirements that are more stringent than the Federal program. EPA
interprets this to mean that EPA cannot compel States, Territories, and
Tribes to adopt programs identical to the Federal program or to
establish reciprocity provisions. However, EPA continues to encourage
States, Territories, and Tribes that may be considering establishing
their own renovation programs to keep reciprocity in mind as they move
forward. The benefits to be derived from reciprocity arrangements with
the Federal program and other authorized jurisdictions include
potential cost-savings from reducing duplicative activity and the
development of a professional renovation workforce more quickly, thus
providing maximum flexibility to State, Territorial, or Tribal
residents. In addition, the Agency encourages States, Territories and
Tribes to consider the use of existing certification and accreditation
procedures as they develop their programs. These existing programs need
not be limited to lead-based paint. For example, a State may choose to
add lead-safe renovation requirements to their existing contractor
licensing programs.

H. Effective Date and Implementation Dates

    This final rule is effective on June 23, 2008. This final rule will
be implemented according to the following schedule:
    1. As of June 23, 2008.
    a. States, Territories, and Tribes may begin applying for
authorization to administer and enforce their own renovation, repair,
and painting programs. EPA will begin authorizing States, Territories,
and Tribes as soon as it receives their complete applications.
    b. No training program may provide, offer, or claim to provide
training or refresher training for EPA certification as a renovator or
a dust sampling technician without accreditation from EPA under 40 CFR
745.225.
    2. As of April 22, 2009. Training programs for renovators or dust
sampling technicians may begin applying for accreditation under 40 CFR
745.225. EPA will begin accrediting training programs as soon as it
receives complete applications from training providers. Individuals who
wish to become certified renovators or dust sampling technicians may
begin taking accredited training as soon as it is available.
    3. As of October 22, 2009. Renovation firms may begin applying for
certification under 40 CFR 745.89. EPA will begin certifying renovation
firms as soon as it receives their complete applications.
    4. As of April 22, 2010. The rule will be fully implemented.
    a. No firm may perform, offer, or claim to perform renovations
without certification from EPA under 40 CFR 745.89 in target housing or
child-occupied facilities, unless, in the case of owner-occupied target
housing, the firm has obtained a statement signed by the owner that the
renovation will occur in the owner's residence, no child under age 6
resides there, the housing is not a child-occupied facility, and the
owner acknowledges that the work practices to be used during the
renovation will not necessarily include all of the lead-safe work
practices contained in EPA's renovation, repair, and painting rule.
    b. All renovations must be directed by renovators certified in
accordance with 40 CFR 745.90(a) and performed by certified renovators
or individuals trained in accordance with 40 CFR 745.90(b)(2) in target
housing or child-occupied facilities, unless, in the case of owner-
occupied target housing, the firm performing the renovation has
obtained a statement signed by the owner that the renovation will occur
in the owner's residence, no child under age 6 resides there, the
housing is not a child-occupied facility, and the owner acknowledges
that the work practices to be used during the renovation will not
necessarily include all of the lead-safe work practices contained in
EPA's renovation, repair, and painting rule.

[[Page 21749]]

    c. All renovations must be performed in accordance with the work
practice standards in 40 CFR 745.85 and the associated recordkeeping
requirements in 40 CFR 745.86(b)(6) and (b)(7) in target housing or
child-occupied facilities, unless, in the case of owner-occupied target
housing, the firm performing the renovation has obtained a statement
signed by the owner that the renovation will occur in the owner's
residence, no child under age 6 resides there, the housing is not a
child-occupied facility, and the owner acknowledges that the work
practices to be used during the renovation will not necessarily include
all of the lead-safe work practices contained in EPA's renovation,
repair, and painting rule.
    With respect to the new renovation-specific pamphlet and the
requirements of the Pre-Renovation Education Rule, as of the effective
date of the rule June 23, 2008, renovators or renovation firms
performing renovations in States and Indian Tribal areas without an
authorized Pre-Renovation Education Rule program may provide owners and
occupants with either of the following EPA pamphlets: Protect Your
Family From Lead in Your Home; or Renovate Right: Important Lead Hazard
Information for Families, Child Care Providers and Schools. As of
December 22, 2008, Renovate Right: Important Lead Hazard Information
for Families, Child Care Providers and Schools must be used exclusively.

IV. References

    The following is a list of the documents that are specifically
referenced in this final rule and placed in the public docket that was
established under Docket ID number EPA-HQ-OPPT-2005-0049. For
information on accessing the docket, refer to the ADDRESSES unit at the
beginning of this document.
    1. U.S. Environmental Protection Agency (USEPA). Air Quality
Criteria for Lead (September 29, 2006).
    2. President's Task Force on Environmental Health Risks and Safety
Risks to Children. Eliminating Childhood Lead Poisoning: A Federal
Strategy Targeting Lead Paint Hazards (February 2000).
    3. USEPA. Lead; Renovation, Repair, and Painting Program; Proposed
Rule. Federal Register (71 FR 1588, January 10, 2006).
    4. USEPA. Lead; Requirements for Lead-based Paint Activities; Final
Rule. Federal Register (61 FR 45778, August 29, 1996).
    5. USEPA. Lead; Fees for Accreditation of Training Programs and
Certification of Lead-based Paint Activities Contractors; Final Rule.
Federal Register (64 FR 31091, June 9, 1999).
    6. USEPA. Lead; Notification Requirements for Lead-Based Paint
Abatement Activities and Training; Final Rule. Federal Register (69 FR
18489, April 8, 2004).
    7. USEPA, Consumer Product Safety Commission (CPSC), U.S.
Department of Housing and Urban Development (HUD). Protect Your Family
From Lead in Your Home (EPA 747-K-99-001, June 2003).
    8. USEPA. Lead; Requirements for Hazard Education Before Renovation of
Target Housing; Final Rule. Federal Register (63 FR 29907, June 1, 1998).
    9. USEPA. Lead; Identification of Dangerous Levels of Lead; Final
Rule. Federal Register (66 FR 1206, January 5, 2001).
    10. USEPA. Reducing Lead Hazards When Remodeling Your Home (EPA747-
K-97-001, September 1997).
    11. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase I, Environmental Field Sampling Study (EPA 747-R-96-
007, May 1997).
    12. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase II, Worker Characterization and Blood-Lead Study (EPA
747-R-96-006, May 1997).
    13. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase III, Wisconsin Childhood Blood-Lead Study (EPA 747-R-
99-002, March 1999).
    14. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase IV, Worker Characterization and Blood-Lead Study of
R&R Workers Who Specialize in Renovation of Old or Historic Homes (EPA
747-R-99-001, March 1999).
    15. USEPA. Lead; Renovation, Repair, and Painting Program;
Supplemental Notice of Proposed Rulemaking. Federal Register (72 FR
31022, June 5, 2007).
    16. USEPA. Lead; Renovation, Repair, and Painting Program; Notice
of Availability. Federal Register (72 FR 12582, March 16, 2007).
    17. USEPA. Characterization of Dust Lead Levels After Renovation,
Repair, And Painting Activities. (November 13, 2007).
    18. USEPA. Lead Safety for Remodeling, Repair, And Painting. Joint
EPA/HUD Renovation Training Curriculum (EPA 747-B-03-001/2, July 2003).
    19. National Association of Home Builders (NAHB). Lead Safe Work
Practices Survey Project Report. Prepared by Atrium Environmental
Health and Safety Services (November 9, 2006).
    20. McMillan Associates. Response to SBREFA Panel Recommendations
for Further Analysis of Existing Phase III Data (August 6, 2001).
    21. U.S. Department of Health and Human Services (HHS), U.S. Public
Health Service (PHS), CDC. Children with Elevated Blood Lead Levels
Attributed to Home Renovation and Remolding Activities--New York, 1993-
1994. Morbidity and Mortality Weekly Report (45(51); 1120-1123, January
3, 1997).
    22. 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).
    23. USEPA. Lead; Requirements for Lead-based Paint Activities;
Proposed Rule. Federal Register (59 FR 45872, September 2, 1994).
    24. USEPA. Office of Pollution Prevention and Toxics (OPPT)
``Economic Analysis for the TSCA Lead Renovation, Repair, and Painting
Program Final Rule for Target Housing and Child-Occupied Facilities''
(March 2008).
    25. S. Rep. 102-332, P.L. 102-550, Housing and Community
Development Act of 1992 (July 23, 1992).
    26. National Institute of Standards and Technology (NIST). Spot
Test Kits for Detecting Lead in Household Paint, a Laboratory
Evaluation (NISTIR 6398, May 2000).
    27. HUD. National Survey of Lead and Allergens in Housing, Volume I:
Analysis of Lead Hazards, Final Report, Revision 7.1. (October 31, 2002).
    28. ASTM International. Standard Practice for Evaluating the
Performance Characteristics of Qualitative Chemical Spot Test Kits for
Lead in Paint (E 1828-01).
    29. USEPA. Lead-Based Paint Pre-Renovation Education Rule;
Interpretive Guidance, Part I (May 28, 1999).
    30. USEPA and HUD. Lead; Requirements for Disclosure of Information
Concerning Lead-Based Paint in Housing; Final Rule. Federal Register
(61 FR 9064, March 6, 1996).
    31. USEPA, HUD. Renovate Right: Important Lead Hazard Information
for Families, Child Care Providers and Schools. (March 2008).
    32. USEPA. Lead-Based Paint Pre-Renovation Education Rule;
Interpretive Guidance, Part II (October 15, 1999).

[[Page 21750]]

    33. USEPA. Lead Sampling Technician Course (EPA 747-B-00-002, July
2000).
    34. HUD. Guidelines for the Evaluation and Control of Lead-Based
Paint Hazards in Housing (June 1995).
    35. USEPA. Lead Dust Minimization Work Practices for Renovation,
Remodeling and Repainting; Draft Technical Manual (September 29, 1998).
    36. National Institute for Occupational Safety and Health (NIOSH).
Health Hazard Evaluation; Rhode Island Department of Health; HETA 96-
0200-2799 (June 2000).
    37. USEPA. Electrostatic Cloth and Wet Cloth Field Study in
Residential Housing (September 2005).
    38. United States Department of Energy. Office of Health, Safety
and Security. http://www.hss.energy.gov/csa/csp/hepa.
    39. Occupational Safety and Health Administration (OSHA),
Department of Labor (DOL). Regulatory Flexibility Act Review of the
Occupational Safety Standard for Lead in Construction Labor (72 FR
54826, September 27, 2007).
    40. Rich, David Q. George G. Rhoads, Lih-Ming Yiin, Junfeng Zhang,
Zhipeng Bai, John L. Adgate, Peter J. Ashley, and Paul J. Lioy.
``Comparison of Home Lead Dust Reduction Techniques on Hard Surfaces:
the New Jersey Assessment of Cleaning Techniques Trial.'' Environmental
Health Perspectives 110(9): 889-893 (September 2002).
    41. HUD. Evaluation of Household Vacuum Cleaners in the Removal of
Settled Lead Dust from Hard Surface Floors. (December 27, 2002, revised
February 2006).
    42. Lih-Ming Yiin, George G. Rhoads, David Q. Rich, Junfeng Zhang,
Zhipeng Bai, John L. Adgate, Peter J. Ashley, and Paul J. Lioy.
``Comparison of Techniques to Reduce Residential Lead Dust on Carpet
and Upholstery: the New Jersey Assessment of Cleaning Techniques
Trial.'' Environmental Health Perspectives 110(12): 1233-1237.
(December 2002).
    43. Canadian Mortgage and Housing Corporation (CMHC).
``Effectiveness of Clean up Techniques for Leaded Paint Dust.'' (1992).
    44. USEPA. A Comparison of Post-Renovation and Remodeling Surface
Cleaning Techniques. Prepared by Clemson Environmental Technologies
Laboratory (December 14, 2001)
    45. CMHC. ``Evaluation of the Cleanup of Lead Paint Dust In
Houses.'' Prepared by Pinchin Environmental Consultants (1995).
    46. USEPA. EPA Policy for the Administration of Environmental
Programs on Indian Reservations (November 8, 1984).
    47. USEPA. ICR Final Rule Addendum for rulemaking entitled ``Lead;
Renovation, Repair, and Painting Program; Final Rule'' (March 2008).
    48 USEPA. Report of the Small Business Advocacy Review Panel on the
Lead-based Paint Certification and Training; Renovation and Remodeling
Requirements (March 3, 2000).
    49. Final Regulatory Flexibility Analysis for the Lead; Renovation,
Repair, and Painting Program; Final Rule (March 2008).
    50. ASTM International. Standard Practice for Clearance
Examinations Following Lead Hazard Reduction Activities in Single-
Family Dwellings and Child-Occupied Facilities (E 2271-05).
    51. ASTM International. Standard Guide for Evaluation, Management,
and Control of Lead Hazards in Facilities (E 2052-99).

V. Statutory and Executive Order Reviews

A. Executive Order 12866

    Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), it has been determined that this
rule is a ``significant regulatory action'' under section 3(f)(1) of
the Executive Order because EPA estimates that it will have an annual
effect on the economy of $100 million or more. Accordingly, this action
was submitted to the Office of Management and Budget (OMB) for review
under Executive Order 12866 and any changes made based on OMB
recommendations have been documented in the public docket for this
rulemaking as required by section 6(a)(3)(E) of the Executive Order.
    In addition, EPA has prepared an analysis of the potential costs
and benefits associated with this rulemaking. This analysis is
contained in the Economic Analysis (Ref. 24), which is available in the
docket for this action and is briefly summarized here.
    1. Types of facilities. This rule applies to an estimated 37.8
million pre-1978 facilities. Of these, approximately 37.7 million
facilities are located in target housing, either in rental housing,
owner-occupied housing where a child under age 6 resides, or owner-
occupied housing where no child under age 6 resides but that otherwise
meets the definition of a child-occupied facility. Approximately
100,000 facilities are child-occupied facilities in pre-1978 public or
commercial buildings.
    2. Options evaluated. EPA considered a variety of options for
addressing the risks presented by renovation, repair, and painting
actions where lead-based paint is present. The Economic Analysis
analyzed several different options for the scope of the rule, which
would limit the coverage of the rule's substantive provisions depending
on when the facility was built (such as pre-1960 or pre-1978), and
whether or not there are children under the age of 6 or a pregnant
woman residing in owner-occupied housing. In some options, coverage of
the rule was phased in over time. EPA also considered different options for
work practices, such as containment, cleaning, and cleaning verification.
    3. Number of events and individuals affected. In the first year
that all of the rule requirements will be in effect, there will be an
estimated 8.4 million renovation, repair, and painting events where
lead-safe work practices will be used due to the rule. As a result,
there will be approximately 1.4 million children under the age of 6 who
will be affected by having their exposure to lead dust minimized due to
the rule. There will also be about 5.4 million adults who will be
affected. After improved test kits for determining whether a painted
surface contains lead-based paint become available (which is assumed in
the analysis to occur by the second year of the rule), the number of
renovation, repair, and painting events using lead-safe work practices
is expected to drop to 4.4 million events per year. No change in the
number of exposures avoided due to the rule is expected because the
improved test kit will more accurately identify paint without lead,
thus reducing the number of events unnecessarily using the required
work practices.
    4. Benefits. The Economic Analysis describes the estimated benefits
of the rulemaking in qualitative and quantitative terms. Benefits
result from the prevention of adverse health effects attributable to
lead exposure. These health effects include impaired cognitive function
in children and several illnesses in children and adults. EPA estimated
the benefits of avoided incidence of IQ loss due to reduced lead
exposure to children under the age of 6. There are not sufficient data
at this time to develop dose-response functions for other health
effects in children or for pregnant women. The benefits of avoided
exposure to adults were not quantified due to uncertainties about the
exposure of adults to lead in dust from renovation, repair, and
painting activities in these facilities.
    The rule is estimated to result in quantified benefits of
approximately $700 million to $1,700 million in the first year. The 50-
year annualized benefits provide a measure of the

[[Page 21751]]

steady-state benefits. The quantified IQ benefits to children are
expected to be approximately $700 million to $1,700 million per year
when annualized using a 3% discount rate, and $700 million to $1,800
million per year when using a 7% discount rate. The estimated benefits
for the other scope options range from approximately $300 million to
$1,700 million using a 3% discount rate and from $300 million to $1,800
million using a 7% discount rate. The benefits from prohibiting certain
paint preparation and removal practices in renovations requiring lead-
safe work practices under the rule are estimated to be $400 million to
$900 million per year using a 3% discount rate. There are additional
unquantified benefits, including other avoided health effects in
children and adults.
    5. Costs. The Economic Analysis estimates the costs of complying
with the rule. Costs may be incurred by contractors that perform
renovation, repair, and painting work for compensation, landlords that
use their own staff to perform renovation, repair, and painting work in
leased buildings; and child-occupied facilities that use their own
staff to perform renovation, repair, and painting work.
    The rule is estimated to result in a total cost of approximately
$800 million in the first year that all of the rule requirements will
be in effect. The cost is estimated to drop to approximately $400
million per year in the second year when the improved test kits are
assumed to become available. The 50-year annualized costs provide a
measure of the steady-state cost. Annualized costs of the rule are
estimated to be approximately $400 million per year using either a 3%
discount rate or a 7% discount rate. Annualized costs for the other
scope options range from approximately $300 million to approximately
$700 million per year using a 3% discount rate and $400 million to $700
million per year using a 7% discount rate. The cost of prohibiting
certain paint preparation and removal practices is estimated to cost
less than $10 million per year using either a 3% or a 7% discount rate
    6. Net benefits. Net benefits are the difference between benefits
and costs. The rule is estimated to result in net benefits of--$50
million to $1,000 million in the first year, based on children's IQ
benefits alone. The 50-year annualized net benefits for the rule based
on children's benefits are estimated to be $300 million to $1,300
million per year using either a 3% or a 7% discount rate. The
annualized net benefits for the other scope options range from
approximately--$50 million to $1,300 million per year using either a 3%
or a 7% discount rate. The net benefits of prohibiting certain paint
preparation and removal practices for renovations requiring lead-safe
work practices are estimated to be approximately $400 million to $900
million per year using either a 3% or a 7% discount rate. There are
additional unquantified benefits, including other avoided health
effects in children and adults that are not included in the net
benefits estimates.
    It is important to note that the EPA analysis generates certain
results that seem to indicate that more stringent control options yield
smaller improvements reducing the risks of elevated blood lead levels
in children than do less stringent control options. For example, the
analysis estimates that using only containment of dust and debris
generated during a RRP activity yields higher benefits than using all
of the rule's work practices (containment, specialized cleaning, and
cleaning verification). This is the opposite of what one might expect
and of what is observed in the Dust Study for the 10 experiments that
used the proposed rule cleaning and containment, since the benefits
analysis implies that the combination of rule-style containment with
rule-style cleaning and verification would result in more exposure than
when such containment is combined with conventional cleaning. This is
inconsistent with the Dust Study which shows that the largest decreases
were observed in the 10 experiments where this final rule's practices
of containment, specialized cleaning, and cleaning verification were
used. Therefore, the anomalous results are likely to be artifacts of
sparse underlying data and modeling assumptions. Although EPA
summarizes some of the potential causes of these unexpected results in
the Economic Analysis, at this time EPA is unclear as to precisely what
is leading to these unexpected results. Because EPA has not determined
why the benefits analyses contain anomalous results, EPA has limited
confidence in the estimated benefits. EPA does not view the results as
being sufficiently robust to represent the difference in magnitude of
the benefits across regulatory alternatives. Nevertheless, EPA is
confident that there are positive benefits.

B. Paperwork Reduction Act

    The information collection requirements contained in this 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. An
Information Collection Request (ICR) document prepared by EPA, an
amendment to an existing ICR and referred to as the ICR Final Rule
Addendum (EPA ICR No. 1715.10, OMB Control Number 2070-0155) has been
placed in the public docket for this rule (Ref. 47). The information
collection requirements are not enforceable until OMB approves them.
    The new information collection activities contained in this rule
are designed to assist the Agency in meeting the core objectives of
TSCA section 402, including ensuring the integrity of accreditation
programs for training providers, providing for the certification of
renovators, and determining whether work practice standards are being
followed. 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.
    Burden under the Paperwork Reduction Act means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, disclose or provide information to or for a Federal
agency. This includes the time needed to review instructions; develop,
acquire, install, and utilize technology and systems for the purposes
of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
    Under this rule, the new information collection requirements may
affect training providers and firms that perform renovation, repair, or
painting for compensation. Although these firms have the option of
choosing to engage in the covered activities, once a firm chooses to do
so, the information collection activities contained in this rule become
mandatory for that firm.
    The ICR document provides a detailed presentation of the estimated
burden and costs for 3 years of the program. The aggregate burden
varies by year due to changes in the number of firms that will seek
certification each year. The burden and cost to training providers and
firms engaged in renovation, repair, and painting activities is
summarized below.
    It is estimated that approximately 170 training providers will
incur burden to

[[Page 21752]]

notify EPA (or an authorizing State, Tribe, or Territory) before and
after training courses. The average burden for training provider
notifications is estimated at 20 to 100 hours per year, depending on
the number of training courses provided. Total training provider burden
is estimated to average 9,000 hours per year. There are approximately
211,000 firms estimated to become certified to engage in renovation,
repair, or painting activities. The average certification burden is
estimated to be 3.5 hours per firm in the year a firm is initially
certified, and 0.5 hours in years that it is re-certified (which occurs
every 5 years). Firms must also distribute lead hazard information to
the owners and occupants of public or commercial buildings that contain
child-occupied facilities and in target housing containing child-
occupied facilities. Finally, firms must keep records of the work they
perform; this recordkeeping is estimated to average approximately 5
hours per year per firm. Total burden for these certified firms is
estimated to average 1,373,000 hours per year. Total respondent burden
during the period covered by the ICR is estimated to average
approximately 1,382,000 hours per year.
    There are also government costs to administer the program. States,
Tribes, and Territories are allowed, but are under no obligation, to
apply for and receive authorization to administer these requirements.
EPA will directly administer programs for States, Tribes, and
Territories that do not become authorized. Because the number of
States, Tribes, and Territories that will become authorized is not
known, administrative costs are estimated assuming that EPA will
administer the program everywhere. To the extent that other government
entities become authorized, EPA's administrative costs will be lower.
    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 this 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 this final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 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 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; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
    Pursuant to section 603 of the RFA, EPA prepared an initial
regulatory flexibility analysis (IRFA) for the proposed rule and
convened a Small Business Advocacy Review Panel to obtain advice and
recommendations of representatives of the regulated small entities. A
summary of the IRFA, a description of the Panel process, and a summary
of the Panel's recommendations can be found in Unit VIII.C. of the
preamble to the 2006 Proposal (Ref. 3). A detailed discussion of the
Panel's advice and recommendations is found in the Panel Report (Ref. 48).
    As required by section 604 of the RFA, we also prepared a final
regulatory flexibility analysis (FRFA) for this final rule. The FRFA
addresses the issues raised by public comments on the IRFA, which was
part of the proposal of this rule. The FRFA is available for review in
the docket and is summarized below (Ref. 49).
    1. Legal basis and objectives for the rule. As discussed in Unit
II.A. of this preamble, TSCA section 402(c)(2) directs EPA to study the
extent to which persons engaged in renovation, repair, and painting
activities are exposed to lead or create lead-based paint hazards
regularly or occasionally. After concluding this study, TSCA section
402(c)(3) further directs EPA to revise its Lead-based Paint Activities
Regulations under TSCA section 402(a) to apply to renovation or
remodeling activities that create lead-based paint hazards. Because
EPA's study found that activities commonly performed during renovation
and remodeling create lead-based paint hazards, EPA is revising the
TSCA section 402(a) regulatory scheme to apply to individuals and firms
engaged in renovation, repair, and painting activities. In so doing,
EPA has also taken into consideration the environmental, economic, and
social impact of this final rule as provided in TSCA section 2(c). The
primary objective of the rule is to minimize exposure to lead-based
paint hazards created during renovation, repair, and painting
activities in housing where children under age 6 reside and in housing
where a pregnant woman resides and in housing or other buildings
frequented by children under age 6.
    2. 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 rule include: small businesses (including contractors
and property owners and managers); small nonprofits (certain day care
centers and private schools); and small governments (school districts).
    In determining the number of small businesses affected by the 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 rule. For example, for many construction
establishments, the SBA defines small businesses as having revenues of
less than $13 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 rule and would defeat the purpose of
estimating impacts on small business. It would also underestimate the
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 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

[[Page 21753]]

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 Census data is available. For other sectors
(nonprofits operating day care centers or private schools), EPA assumed
that all affected firms are small, which may overestimate the number of
small entities affected by the rule.
    The vast majority of entities in the industries affected by this
rule are small. Using EPA's estimates, the renovation, repair, and painting
program will affect an average of approximately 189,000 small entities.
    3. Potential economic impacts on small entities. EPA evaluated two
factors in its analysis of the 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
rule.
    EPA estimates that there are an average of 189,000 small entities
that would be affected by the renovation, repair, and painting
activities program. Of these, there are an estimated 165,000 small
businesses with an average impact of 0.7%, 17,000 small non-profits
with an average impact of 0.1%, and 6,000 small governments with an
average impact of 0.004%. These estimates are based on an average cost
of approximately $35 per renovation.
    4. Relevant Federal rules. The requirements in this rulemaking will
fit within an existing framework of other Federal regulations that
address lead-based paint. The Pre-Renovation Education Rule, discussed
in Unit II.A.2. of this preamble, requires renovators to distribute a
lead hazard information pamphlet to owners and occupants before conducting
a renovation in target housing. This rule has been carefully crafted to
harmonize with the existing pre-renovation education requirements.
    Disposal of waste from renovation projects that would be regulated
by this rule is covered by the Resource Conservation and Recovery Act
(RCRA) regulations for solid waste. This rule does not contain specific
requirements for the disposal of waste from renovations.
    HUD has extensive regulations that address the conduct of interim
controls, as well as other lead-based paint activities, in federally
assisted housing. Some of HUD's interim controls are regulated under
this rule as renovations, depending upon whether the particular interim
control measure disturbs more than the threshold amount of paint. In
most cases, the HUD regulations are comparable to, or more stringent
than this rule. In general, persons performing HUD-regulated interim
controls must have taken a course in lead-safe work practices, which is
also a requirement of this rule. However, this rule does not require
dust clearance testing, a process required by HUD after interim control
activities that disturb more than a minimal amount of lead-based paint.
    Finally, OSHA's Lead Exposure in Construction standard covers
potential worker exposures to lead during many construction activities,
including renovation, repair, and painting activities. Although this
standard may cover many of the same projects as this final rule, the
requirements themselves do not overlap. The OSHA rule addresses the
protection of the worker, this EPA rule principally addresses the
protection of the building occupants, particularly children under age 6
and pregnant women.
    5. Skills needed for compliance. This rule establishes requirements
for training renovators, other renovation workers, and dust sampling
technicians; certifying renovators, dust sampling technicians, and
entities engaged in renovation, repair, and painting activities;
accrediting providers of renovation and dust sampling technician
training; and for renovation work practices. Renovators and dust
sampling technicians would have to take a course to learn the proper
techniques for accomplishing the tasks they will perform during
renovations. These courses are intended to provide them with the
information they would need to comply with the rule based on the skills
they already have. Renovators would then provide on-the-job training in
work practices to any other renovation workers used on a particular
renovation. They would also need to document the work they have done
during renovations. This does not require any special skills.
Renovation firms would be required to apply for certification to
perform renovations; this process does not require any special skills
other than the ability to complete the application. Training providers
must be knowledgeable about delivering technical training. Training
providers would be required to apply for accreditation to offer
renovator and dust sampling technician courses. They would also be
required to provide prior notification of such courses and provide
information on the students trained after each such course. Completing
the accreditation application and providing the required notification
information does not require any special skills.
    6. Small Business Advocacy Review Panel. Since the earliest stages
of planning for this regulation under section 402(c)(3) of TSCA, EPA
has been concerned with potential small entity impacts. EPA conducted
outreach to small entities, and, in 1999, convened a Small Business
Advocacy Review (SBAR) Panel to obtain advice and recommendations of
representatives of the small entities that would potentially be subject
to this regulation's requirements. At that time, EPA was planning an
initial regulation that would apply to renovations in target housing,
with requirements for public and commercial building renovations,
including child-occupied facility renovations, to follow at a later
date. The small entity representatives (SERs) chosen for consultation
reflect that initial emphasis. They included maintenance and renovation
contractors, painting and decorating contractors, multi-family housing
owners and operators, training providers/consultants, and
representatives from several national contractor associations, the
National Multi-Housing Council, and the National Association of Home
Builders. After considering the existing Lead-based Paint Activities
Regulations, and taking into account preliminary stakeholder feedback,
EPA identified eight key elements of a potential renovation and remodeling
regulation for the SBAR Panel's consideration. These elements were:
    • Applicability and scope.
    • Firm certification.

[[Page 21754]]

    • Individual training and certification.
    • Accreditation of training courses.
    • Work practice standards.
    • Prohibited practices.
    • Exterior clearance.
    • Interior clearance.
    EPA also developed several options for each of these key elements.
Although the scope and applicability options specifically presented to
the SBAR Panel covered only target housing, background information
presented to the SERs and to the SBAR Panel members shows that EPA was
also considering a regulation covering child-occupied facilities. The
2007 Supplemental Proposal (Ref. 15) extended the potentially regulated
universe to include child-occupied facilities. When the 2007
Supplemental Proposal was issued, EPA conducted a targeted mailing
campaign to specifically solicit input on the rule from child-occupied
facilities, such as child care providers and kindergartens, in public
or commercial buildings. More information on the SBAR Panel, its
recommendations, and how EPA implemented them in the development of the
program, is provided in Unit VIII.C.6. of the preamble to the 2006
Proposal (Ref. 3).
    7. Alternatives considered. The following is a discussion of
significant alternatives to the rule, originated by EPA or by
commenters, that could affect the economic impacts of the rule on small
entities. These alternatives would have applied to both small and large
entities, but, given the large number of small entities in the
industry, these alternatives would primarily affect small entities. For
the reasons described below, these alternatives are not consistent with
the objectives of the rule.
    a. Applicability and scope. EPA considered a number of options for
the scope and applicability of the rule: include all pre-1978 housing,
all pre-1978 rental housing, all pre-1960 housing, and all pre-1960
rental housing. Although the scope and applicability options
specifically presented to the SBAR Panel covered only target housing,
background information presented to the SERs and to the SBAR Panel
members shows that EPA was also considering a regulation covering
child-occupied facilities.
    The SBAR Panel recommended that EPA request public comment in the
proposal on the option of limiting the housing stock affected by the
rule to that constructed prior to 1960, as well as the option of
covering all pre-1978 housing and other options that may help to reduce
costs while achieving the protection of public health. EPA asked for
comment in the proposed rule on alternative scope options, including an
option limited to buildings constructed prior to 1960. After
considering the public comments, EPA has determined that limiting the
rule to exclude buildings constructed on or after 1960 is not
consistent with the stated objectives of the rule, in part because this
would not protect children under the age of 6 and pregnant women.
    b. Staged approach. EPA proposed a staged approach that would
initially address renovations in pre-1960 target housing and child-
occupied facilities, or where a child had an increased blood-lead
level. EPA requested comment about whether to delay implementation for
post-1960 target housing and child-occupied facilities for 1 year. Most
commenters objected to the phased implementation, expressing concerns
about adding complexity to implementation and about potential exposures
to children in buildings built between 1960 and 1978 during the first
year. After reviewing the comments, EPA determined the reduced burdens
of a staged approach did not outweigh the complexity that it added to
implementation.
    c. Exclude categories of contractors or renovation activities. EPA
requested comment on whether to exclude any categories of specialty
contractors and whether certain renovation activities should be
specifically included or excluded. In response, no commenter offered
any data to show that any category of contractor or type of renovation
activity should be exempt because they do not create lead-based paint
hazards. All of the renovation activities in the Dust Study and the
other studies in the record for the rule created lead-based paint
hazards. EPA determined that it had no basis on which to exempt any
category of contractor or type of renovation. However, some small jobs
will be exempt from the requirements of the rule under the minor
maintenance exception.
    d. Prohibited practices. The current abatement regulations in 40
CFR part 745, subpart L prohibit the following work practices during
abatement projects: Open-flame burning or torching, machine sanding or
grinding, abrasive blasting or sandblasting, dry scraping of large
areas, and operating a heat gun in excess of 1100 degrees Fahrenheit.
EPA presented four options to the SBAR Panel on this topic: prohibit
these practices during renovations; allow dry scraping and exterior
flame-burning or torching; allow dry scraping and interior and exterior
flame-burning or torching; or allow all of these practices. The SBAR
Panel recognized industry concerns over the feasibility of prohibiting
these practices, especially when no cost-effective alternatives exist.
The SBAR Panel was also concerned about the potential risks associated
with these practices, but noted that reasonable training, performance,
containment, and clean-up requirements may adequately address these risks.
    EPA followed the SBAR Panel's recommendation and requested public
comment on the cost, benefit, and feasibility of prohibiting certain
work practices. In response to its request for comment in the proposed
rule, the Agency received information on techniques including benign
strippers, steam stripping, closed planing with vacuums, infrared
removal, and chemical stripping. Therefore, EPA believes that there are
cost-effective alternatives to these prohibited or restricted
practices. In addition, the Dust Study (Characterization of Dust Lead
Levels after Renovation, Repair, and Painting Activities) found that
most practices prohibited or restricted under EPA's Lead-based Paint
Activities Regulations produce large quantities of lead dust, and that
the use of the proposed work practices were not effective at containing
or removing dust-lead hazards from the work area.
    EPA has concluded that these practices should be prohibited or
restricted during renovation, repair, and painting activities that
disturb lead-based paint because the work practices in the rule are not
effective at containing the spread of leaded dust when these practices
are used, or at cleaning up lead-based paint hazards created by these
practices. Thus, the work practices are not effective at minimizing
exposure to lead-based paint hazards created during renovation
activities when these activities are used.
    e. HEPA vacuums. The proposed rule required the use of a HEPA
vacuum as part of the work practice standards for renovation
activities. One commenter stated that EPA did not have sufficient
evidence showing that HEPA vacuums are significantly better at removing
lead dust than non-HEPA vacuums. EPA has determined that the weight of
the evidence provided by the studies it reviewed demonstrates that the
HEPA vacuums consistently removed significant quantities of lead-based
paint dust and reduced lead loadings to lower levels then did other
vacuums. While there may be some vacuums cleaners that are as effective
as HEPA vacuums, EPA has not been able to define quantitatively the
specific attributes of

[[Page 21755]]

those vacuums. That is, EPA is not able to identify what criteria
should be used to identify vacuums that are equivalent to HEPA vacuums
in performance. Thus, EPA does not believe that it can identify in the
final rule what types of vacuums can be used as substitutes for HEPA-
vacuums. Therefore, EPA has not adopted this alternative.
    f. Visual inspection in lieu of cleaning verification. EPA
requested comment on whether cleaning verification is necessary given
the cleaning required by the rule. Some commenters contended that a
visual inspection following cleaning after a renovation is sufficient
to ensure the lead-based paint dust generated by a renovation has been
sufficiently cleaned-up. EPA disagrees with those commenters who
requested that the work practices in the final rule not include any
verification beyond visual inspection. The weight of the evidence
clearly demonstrates that visual inspection following cleaning after a
renovation is insufficient at detecting dust-lead hazards, even at
levels significantly above the regulatory hazard standards. Further,
EPA disagrees with the implication that easily visible paint chips and
splinters are necessarily the primary materials generated during a
renovation. EPA studies, including the Dust Study, show that renovation
activities generate dust as well as chips and splinters. Therefore, EPA
has not adopted this alternative.
    8. Significant issues raised by comments on the Initial Regulatory
Flexibility Analysis. A commenter requested that the plumbing-heating-
cooling industry be exempted from the rule, claiming that the rule is
impractical for the industry. The commenter did not provide any
supporting data as to why the rule is impractical for the plumbing-
heating-cooling industry, or any data indicating that renovations
conducted by plumbing, heating, or cooling contractors do not create
lead hazards. By contrast, the Dust Study indicated that cutting open
drywall (an activity often performed by plumbing, heating, and cooling
contractors) can create a lead hazard. Therefore, EPA believes that
plumbing, heating, and cooling contractors who disturb more than an
exempt amount of lead-based paint can create lead hazards. EPA does not
believe that there is a factual basis for exempting this, or any other,
industry from the rule.
    Another commenter stated that EPA's proposed rule gave little
deference to HUD's rules, and thus is inconsistent with the Regulatory
Flexibility Act's requirements to fit new rules within the framework of
existing Federal regulations. The commenter stated that EPA's rule
needed to give greater deference to the framework established in HUD's
rules (especially HUD's requirements for independent clearance
examinations and its prohibition of dangerous work practices), and to
clearly explain how the Renovation, Repair and Painting Rule will
interface with HUD's rules to avoid confusion.
    Regarding HUD's requirements for independent clearance
examinations, EPA's final rule clarifies that dust clearance sampling
is allowed in lieu of post-renovation cleaning verification in cases
where another Federal, State, Territorial, Tribal, or local regulation
requires dust clearance testing and requires the renovation firm to
clean the work area until it passes clearance. This would apply to HUD-
regulated renovations. Regarding the prohibition of dangerous work
practices, EPA's final rule prohibits the use of the following work
practices during regulated renovations: Open flame burning or torching
of lead-based paint; the use of machines that remove lead-based paint
through high speed operation such as sanding, grinding, power planing,
needle gun, abrasive blasting, or sandblasting unless such machines are
used with HEPA exhaust control; and operating a heat gun above 1100
degrees Fahrenheit. EPA believes that the provisions in the final rule
provide an appropriate measure of consistency with other regulatory
programs (including HUD's), and will cause minimal disruption for
renovation firms.
    One commenter contended that EPA said that ``[n]one of the housing
authorities identified in section 8.2.1 as operating public housing
that does not receive HUD funding qualifies as a small government under
the Regulatory Flexibility Act.'' According to the commenter, public
housing authorities are government entities, and hundreds of them are
located in and are part of communities with a population of less than
50,000.
    EPA's small entity analysis was not claiming that no small
governments operate housing authorities, but that they would not be
significantly impacted by the rule. EPA's reasoning was as follows:
    • The only public housing authorities that EPA could
identify that do not receive HUD funds are operated by Massachusetts,
New York, Hawaii, Connecticut, and New York City.
    • Massachusetts, New York, Hawaii, Connecticut, and New York City have
populations over 50,000 and thus do not qualify as small governments.
    • To the best of EPA's knowledge, governments with populations under
50,000 that operate public housing authorities all receive HUD funds.
    • Public housing that receives funding from HUD already must
comply with HUD regulations regarding lead paint and so are not likely
to incur significant additional costs due to this rule.
The commenter has offered no factual information to dispute this
reasoning. Therefore, the Agency believes its conclusions regarding
public housing authorities operated by small governments were appropriate.
    A commenter stated that the proposed rule will have a significant
impact on small businesses, and that EPA's own economic analysis of
this rule finds that residential property managers and lessors of
residential real estate will bear the largest share of costs in
association with the rule. EPA disagrees with the commenter's claim
that residential property managers and lessors of residential real
estate will bear the largest share of costs in association with the
rule. EPA analyzed small business impacts by estimating the average
cost impact ratio for each industry, calculated as the average annual
compliance cost as a percentage of average annual revenues. The average
cost impact ratio for lessors of real estate is below the average cost
impact ratio for all small businesses under the rule. And while the
average cost impact ratio for residential property managers is above
the average cost impact for all small businesses under the rule, small
residential property managers make up approximately 3% of the small
entities impacted by the rule. Therefore, it is not accurate to claim
that residential property managers and lessors of residential real
estate will bear the largest share of costs in association with the rule.
    Another commenter stated that given the lack of evidence showing
that HEPA vacuums are significantly better at removing lead dust from
floors, and because HEPA vacuums are significantly more costly than
non-HEPA units, EPA should modify its proposed rule to allow cleanup
with either a HEPA or non-HEPA vacuum. According to the commenter,
doing so would reduce the cost to small entities in the renovation and
lead mitigation businesses without compromising the level of lead dust
clearance achieved by the standard.
    EPA disagrees that it should modify its proposed rule to allow
cleanup with a non-HEPA vacuum. EPA has determined that the weight of
the evidence provided by various studies

[[Page 21756]]

demonstrate that the HEPA vacuums consistently removed significant
quantities of lead-based paint dust and reduced lead loadings to lower
levels then did other vacuums. While there may be some vacuums that are
as effective as HEPA vacuums, EPA has not been able to define
quantitatively the specific attributes of those vacuums. That is, EPA
is not able to identify what criteria should be used to identify
vacuums that are equivalent to HEPA vacuums in performance. Thus, EPA
does not believe that it can identify what types of vacuums can be used
as substitutes for HEPA-vacuums. EPA also notes that non-HEPA vacuums
that perform as well as HEPA vacuums may not be less expensive than
HEPA vacuums. For these reasons, EPA has determined that modifying its
proposed rule to allow cleanup with non-HEPA vacuums would compromise
the level of lead dust clearance achieved by the standard, and might
not result in meaningful cost reductions.
    As required by section 212 of SBREFA, EPA also is preparing a Small
Entity Compliance Guide to help small entities comply with this rule.
Before the date that this rule's requirements take effect for training
providers, renovation firms, and renovators, the guide will be
available on EPA's website at http://www.epa.gov/lead or from the
National Lead Information Center by calling 1-800-424-LEAD (5323).

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory requirements.
    Under UMRA Title II, EPA has determined that this rule contains a
Federal mandate that may result in expenditures that exceed the
inflation-adjusted UMRA threshold of $100 million by the private sector
in any 1 year, but it will not result in such expenditures by State,
local, and Tribal governments in the aggregate. Accordingly, EPA has
prepared a written statement under section 202 of UMRA which has been
placed in the public docket for this rulemaking and is summarized here.
    1. Authorizing legislation. This rule is issued under the authority
of TSCA sections 402(c)(3), 404, 406, and 407, 15 U.S.C. 2682(c)(3),
2684, 2686, and 2687.
    2. Cost-benefit analysis. EPA has prepared an analysis of the costs
and benefits associated with this rulemaking, a copy of which is
available in the docket for this rulemaking (Ref. 24). The Economic
Analysis presents the costs of the rule as well as various regulatory
options and is summarized in Unit III.A. of this preamble.EPA has
estimated that the total annualized costs of this rulemaking are
approximately $400 million per year using either a 3% or a 7% discount
rate,and that benefits are approximately $700 to $1,700 million per
year using a 3% discount rate and $700 to $1,800 million per year using
a 7% discount.
    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 Proposal (Ref. 3), the
Agency has met with State, local, and Tribal government officials on
numerous occasions to discuss renovation issues.
    4. Least burdensome option. EPA 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 has considered different
options for the scope of the 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 analyzed several
different options for the scope of the rule. Additional information on
the options considered is available in Unit VIII.C.6. of the preamble
for the 2006 Proposal (Ref. 3), and in the Economic Analysis (Ref. 24).
EPA has determined that the preferred option is the least burdensome
option available that achieves the primary objective of this rule,
which is to minimize exposure to lead-based paint hazards created
during renovation, repair, and painting activities in housing where
children under age 6 reside and where a pregnant woman resides and in
housing or other buildings frequented by children under age 6.
    This rule does not contain a significant Federal intergovernmental
mandate as described by section 203 of UMRA. Based on the definition of
``small government jurisdiction'' in RFA section 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 entail costs, but these small jurisdictions are
under no obligation to do so.
    EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments operate schools that are child-occupied
facilities. 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 III.C.3., the
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 rule is not targeted

[[Page 21757]]

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. Federalism

    Pursuant to Executive Order 13132, entitled Federalism (64 FR
43255, August 10, 1999), EPA has determined that this 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 rule. States would be able to apply for, and receive authorization
to administer these requirements, but would be under no obligation to
do so. In the absence of a State authorization, EPA will administer
these 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 has
consulted with representatives of State and local governments in developing
the renovation, repair, and painting program. These consultations
are as described in the preamble to the 2006 Proposal (Ref. 3).

F. Tribal Implications

    As required by Executive Order 13175, entitled Consultation and
Coordination with Indian Tribal Governments (59 FR 22951, November 9,
2000), EPA has determined that this 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 would be able to apply for, and receive
authorization to administer these requirements on Tribal lands, but
Tribes would be under no obligation to do so. In the absence of a
Tribal authorization, EPA will administer these requirements. While
Tribes may operate child-occupied facilities covered by the rule such
as kindergartens, pre-kindergartens, and day care 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 rule. Although
Executive Order 13175 does not apply to this rule, 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.

G. Children's Health Protection

    Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997) applies to this rule 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. Accordingly, EPA has
evaluated the environmental health or safety effects of renovation,
repair, and painting projects on children. Various aspects of this
evaluation are discussed in the preamble to the 2006 Proposal (Ref. 3).
    The primary purpose of this rule is to minimize exposure to lead-
based paint hazards created during renovation, repair, and painting
activities in housing where children under age 6 reside and in housing
or other buildings frequented by children under age 6. In the absence
of this regulation, adequate work practices are not likely to be
employed during renovation, repair, and painting activities. EPA's
analysis indicates that there will be approximately 1.4 million
children under age 6 affected by the rule. These children are projected
to receive considerable benefits due to this regulation.

H. Energy Effects

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

I. Technology Standards

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. In
the 2006 Proposal, EPA proposed to adopt a number of work practice
requirements that could be considered technical standards for
performing renovation projects in residences that contain lead-based
paint. As discussed in Unit VIII.I. of the 2006 Proposal, EPA
identified two potentially applicable voluntary consensus standards
(Ref. 3 at 1626). ASTM International (formerly the American Society for
Testing and Materials) has developed two potentially applicable
documents: Standard Practice for Clearance Examinations Following Lead
Hazard Reduction Activities in Single-Family Dwellings and Child-
Occupied Facilities (Ref. 50), and ``Standard Guide for Evaluation,
Management, and Control of Lead Hazards in Facilities'' (Ref. 51). With
respect to the first document, EPA did not propose to require
traditional clearance examinations, including dust sampling, following
renovation projects. However, EPA did propose to require that a visual
inspection for dust, debris, and residue be conducted after cleaning
and before post-renovation cleaning verification is performed. The
first ASTM document does contain information on conducting a visual
inspection before collecting dust clearance samples. The second ASTM
document is a comprehensive guide to identifying and controlling lead-
based paint hazards. Some of the information in this document is
relevant to the work practices required by the rule. Each of these ASTM
documents represents state-of-the-art knowledge regarding the
performance of these particular aspects of lead-based paint hazard
evaluation and control practices and EPA continues to recommend the use
of these documents where appropriate. However, because each of these
documents is extremely detailed and encompasses many circumstances beyond
the scope of this rulemaking, EPA determined that it would be impractical
to incorporate these voluntary consensus standards into the rule.
    In addition, this final rule contains performance standards and a
process for recognizing test kits that may be used by certified
renovators to determine whether components to be affected by a
renovation contain lead-based paint.

[[Page 21758]]

EPA will recognize those kits that meet certain performance standards
for limited false positives and negatives. EPA will also recognize only
those kits that have been properly validated by a laboratory
independent of the kit manufacturer. For most kits, this will mean
participating in EPA's Environmental Technology Verification (ETV)
program. With stakeholder input, EPA is adapting a volunary consensus
standard, ASTM's ``Standard Practice for Evaluating the Performance
Characteristics of Qualitative Chemical Spot Test Kits for Lead in
Paint'' (Ref. 28), for use as a testing protocol to determine whether a
particular kit has met the performance standards established in this
final rule.

J. Environmental Justice

    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 assessed the potential impact of this rule on minority and
low-income populations. The results of this assessment are presented in
the Economic Analysis, which is available in the public docket for this
rulemaking (Ref. 24). As a result of this assessment, the Agency has
determined that this final 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.

VI. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This rule is effective June 23, 2008.

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: March 31, 2008,
Steven L. Johnson,
Administrator.

•  Therefore, 40 CFR chapter I is amended as follows:

PART 745--[AMENDED]

• 1. The authority citation for part 745 continues to read as follows:

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

• 2. Section 745.80 is revised to read as follows:

Sec.  745.80  Purpose.

    This subpart contains regulations developed under sections 402 and
406 of the Toxic Substances Control Act (15 U.S.C. 2682 and 2686) and
applies to all renovations performed for compensation in target housing
and child-occupied facilities. The purpose of this subpart is to ensure
the following:
    (a) Owners and occupants of target housing and child-occupied
facilities receive information on lead-based paint hazards before these
renovations begin; and
    (b) Individuals performing renovations regulated in accordance
withSec.  745.82 are properly trained; renovators and firms performing
these renovations are certified; and the work practices in Sec.  745.85
are followed during these renovations.

• 3. Section 745.81 is revised to read as follows:

Sec.  745.81  Effective dates.

    (a) Training, certification and accreditation requirements and work
practice standards. The training, certification and accreditation
requirements and work practice standards in this subpart are applicable
in any State or Indian Tribal area that does not have a renovation
program that is authorized under subpart Q of this part. The training,
certification and accreditation requirements and work practice
standards in this subpart will become effective as follows:
    (1) Training programs. Effective June 23, 2008, no training program
may provide, offer, or claim to provide training or refresher training
for EPA certification as a renovator or a dust sampling technician
without accreditation from EPA under Sec.  745.225. Training programs
may apply for accreditation under Sec.  745.225 beginning April 22, 2009.
    (2) Firms. (i) Firms may apply for certification under Sec.  745.89
beginning October 22, 2009.
    (ii) On or after April 22, 2010, no firm may perform, offer, or
claim to perform renovations without certification from EPA under Sec. 
745.89 in target housing or child-occupied facilities, unless the
renovation qualifies for one of the exceptions identified in Sec. 
745.82(a) or (c).
    (3) Individuals. On or after April 22, 2010, all renovations must
be directed by renovators certified in accordance with Sec.  745.90(a)
and performed by certified renovators or individuals trained in
accordance with Sec.  745.90(b)(2) in target housing or child-occupied
facilities, unless the renovation qualifies for one of the exceptions
identified in Sec.  745.82(a) or (c).
    (4) Work practices. On or after April 22, 2010, all renovations
must be performed in accordance with the work practice standards in
Sec.  745.85 and the associated recordkeeping requirements in Sec. 
745.86(b)(6) and (b)(7) in target housing or child-occupied facilities,
unless the renovation qualifies for one of the exceptions identified in
Sec.  745.82(a) or (c).
    (5) The suspension and revocation provisions in Sec.  745.91 are
effectiveApril 22, 2010.
    (b) Renovation-specific pamphlet. Before December 22, 2008,
renovators or firms performing renovations in States and Indian Tribal
areas without an authorized program may provide owners and occupants
with either of the following EPA pamphlets: Protect Your Family From
Lead in Your Home or Renovate Right: Important Lead Hazard Information
for Families, Child Care Providers and Schools. After that date,
Renovate Right: Important Lead Hazard Information for Families, Child
Care Providers and Schools must be used exclusively.
    (c) Pre-Renovation Education Rule. With the exception of the
requirement to use the pamphlet entitled Renovate Right: Important Lead
Hazard Information for Families, Child Care

[[Page 21759]]

Providers and Schools, the provisions of the Pre-Renovation Education
Rule in this subpart have been in effect since June 1999.

• 4. Section 745.82 is revised to read as follows:

Sec.  745.82  Applicability.

    (a) This subpart applies to all renovations performed for
compensation in target housing and child-occupied facilities, except
for the following:
    (1) Renovations in target housing or child-occupied facilities in
which a written determination has been made by an inspector or risk
assessor (certified pursuant to either Federal regulations at Sec. 
745.226 or a State or Tribal certification program authorized pursuant
to Sec.  745.324) that the components affected by the renovation are
free of paint or other surface coatings that contain lead equal to or
in excess of 1.0 milligrams/per square centimeter (mg/cm\2\) or 0.5% by
weight, where the firm performing the renovation has obtained a copy of
the determination.
    (2) Renovations in target housing or child-occupied facilities in
which a certified renovator, using an EPA recognized test kit as
defined in Sec.  745.83 and following the kit manufacturer's
instructions, has tested each component affected by the renovation and
determined that the components 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.
    (b) The information distribution requirements in Sec.  745.84 do
not apply to emergency renovations, which are renovation activities
that were not planned but result from a sudden, unexpected event (such
as non-routine failures of equipment) that, if not immediately attended
to, presents a safety or public health hazard, or threatens equipment
and/or property with significant damage. Interim controls performed in
response to an elevated blood lead level in a resident child are also
emergency renovations. Emergency renovations other than interim
controls are also exempt from the warning sign, containment, waste
handling, training, and certification requirements in Sec. Sec. 
745.85, 745.89, and 745.90 to the extent necessary to respond to the
emergency. Emergency renovations are not exempt from the cleaning
requirements of Sec.  745.85(a)(5), which must be performed by
certified renovators or individuals trained in accordance with Sec. 
745.90(b)(2), the cleaning verification requirements of Sec. 
745.85(b), which must be performed by certified renovators, and the
recordkeeping requirements of Sec.  745.86(b)(6) and (b)(7).
    (c) The training requirements in Sec.  745.90 and the work practice
standards for renovation activities in Sec.  745.85 apply to all
renovations covered by this subpart, except for renovations in target
housing for which the firm performing the renovation has obtained a
statement signed by the owner that the renovation will occur in the
owner's residence, no child under age 6 resides there, no pregnant
woman resides there, the housing is not a child-occupied facility, and
the owner acknowledges that the renovation firm will not be required to
use the work practices contained in EPA's renovation, repair, and
painting rule. For the purposes of this section, a child resides in the
primary residence of his or her custodial parents, legal guardians, and
foster parents. A child also resides in the primary residence of an
informal caretaker if the child lives and sleeps most of the time at
the caretaker's residence.

• 5. Section 745.83 is amended as follows:
• a. Remove the definitions of ``Emergency renovation operations'' and
``Multi-family housing.''
• b. Revise the definitions of ``Pamphlet,'' ``Renovation,'' and
``Renovator.''
• c. Add 13 definitions in alphabetical order.

Sec.  745.83  Definitions.

* * * * *
    Child-occupied facility means a building, or 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 include, but are not limited to, day care centers,
preschools and kindergarten classrooms. Child-occupied facilities may
be located in target housing or in public or commercial buildings. With
respect to common areas in public or commercial buildings that contain
child-occupied facilities, the child-occupied facility encompasses only
those common areas that are routinely used by children under age 6,
such as restrooms and cafeterias. Common areas that children under age
6 only pass through, such as hallways, stairways, and garages are not
included. In addition, with respect to exteriors of public or
commercial buildings that contain child-occupied facilities, the child-
occupied facility encompasses only the exterior sides of the building
that are immediately adjacent to the child-occupied facility or the
common areas routinely used by children under age 6.
    Cleaning verification card means a card developed and distributed,
or otherwise approved, by EPA for the purpose of determining, through
comparison of wet and dry disposable cleaning cloths with the card,
whether post-renovation cleaning has been properly completed.
    Component or building component means specific design or structural
elements or fixtures of a building or residential dwelling that are
distinguished from each other by form, function, and location. These
include, but are not limited to, interior components such as: Ceilings,
crown molding, walls, chair rails, doors, door trim, floors,
fireplaces, radiators and other heating units, shelves, shelf supports,
stair treads, stair risers, stair stringers, newel posts, railing caps,
balustrades, windows and trim (including sashes, window heads, jambs,
sills or stools and troughs), built in cabinets, columns, beams,
bathroom vanities, counter tops, and air conditioners; and exterior
components such as: Painted roofing, chimneys, flashing, gutters and
downspouts, ceilings, soffits, fascias, rake boards, cornerboards,
bulkheads, doors and door trim, fences, floors, joists, lattice work,
railings and railing caps, siding, handrails, stair risers and treads,
stair stringers, columns, balustrades, windowsills or stools and
troughs, casings, sashes and wells, and air conditioners.
    Dry disposable cleaning cloth means a commercially available dry,
electrostatically charged, white disposable cloth designed to be used
for cleaning hard surfaces such as uncarpeted floors or counter tops.
    Firm means a company, partnership, corporation, sole proprietorship
or individual doing business, association, or other business entity; a
Federal, State, Tribal, or local government agency; or a nonprofit
organization.
    HEPA vacuum means a vacuum cleaner which has been designed with a
high-efficiency particulate air (HEPA) filter as the last filtration
stage. A HEPA filter is a filter that is capable of

[[Page 21760]]

capturing particles of 0.3 microns with 99.97% efficiency. The vacuum
cleaner must be designed so that all the air drawn into the machine is
expelled through the HEPA filter with none of the air leaking past it.
    Interim controls means a set of measures designed to temporarily
reduce human exposure or likely exposure to lead-based paint hazards,
including specialized cleaning, repairs, maintenance, painting,
temporary containment, ongoing monitoring of lead-based paint hazards
or potential hazards, and the establishment and operation of management
and resident education programs.
    Minor repair and maintenance activities are activities, including
minor heating, ventilation or air conditioning work, electrical work,
and plumbing, that disrupt 6 square feet or less of painted surface per
room for interior activities or 20 square feet or less of painted
surface for exterior activities where none of the work practices
prohibited or restricted by Sec.  745.85(a)(3) are used and where the
work does not involve window replacement or demolition of painted
surface areas. When removing painted components, or portions of painted
components, the entire surface area removed is the amount of painted
surface disturbed. Jobs, other than emergency renovations, performed in
the same room within the same 30 days must be considered the same job
for the purpose of determining whether the job is a minor repair and
maintenance activity.
    Pamphlet means the EPA pamphlet titled Renovate Right: Important
Lead Hazard Information for Families, Child Care Providers and Schools
developed under section 406(a) of TSCA for use in complying with
section 406(b) of TSCA, or any State or Tribal pamphlet approved by EPA
pursuant to 40 CFR 745.326 that is developed for the same purpose. This
includes reproductions of the pamphlet when copied in full and without
revision or deletion of material from the pamphlet (except for the
addition or revision of State or local sources of information). Before
December 22, 2008, the term ``pamphlet'' also means any pamphlet
developed by EPA under section 406(a) of TSCA or any State or Tribal
pamphlet approved by EPA pursuant to Sec.  745.326.
* * * * *
    Recognized test kit means a commercially available kit recognized
by EPA under Sec.  745.88 as being capable of allowing a user to
determine the presence of lead at levels equal to or in excess of 1.0
milligrams per square centimeter, or more than 0.5% lead by weight, in
a paint chip, paint powder, or painted surface.
    Renovation means the modification of any existing structure, or
portion thereof, that results in the disturbance of painted surfaces,
unless that activity is performed as part of an abatement as defined by
this part (40 CFR 745.223). The term renovation includes (but is not
limited to): The removal, modification or repair of painted surfaces or
painted components (e.g., modification of painted doors, surface
restoration, window repair, surface preparation activity (such as
sanding, scraping, or other such activities that may generate paint
dust)); the removal of building components (e.g., walls, ceilings,
plumbing, windows); weatherization projects (e.g., cutting holes in
painted surfaces to install blown-in insulation or to gain access to
attics, planing thresholds to install weather-stripping), and interim
controls that disturb painted surfaces. A renovation performed for the
purpose of converting a building, or part of a building, into target
housing or a child-occupied facility is a renovation under this
subpart. The term renovation does not include minor repair and
maintenance activities.
    Renovator means an individual who either performs or directs
workers who perform renovations. A certified renovator is a renovator
who has successfully completed a renovator course accredited by EPA or
an EPA-authorized State or Tribal program.
    Training hour means at least 50 minutes of actual learning,
including, but not limited to, time devoted to lecture, learning
activities, small group activities, demonstrations, evaluations, and
hands-on experience.
    Wet disposable cleaning cloth means a commercially available, pre-
moistened white disposable cloth designed to be used for cleaning hard
surfaces such as uncarpeted floors or counter tops.
    Wet mopping system means a device with the following
characteristics: A long handle, a mop head designed to be used with
disposable absorbent cleaning pads, a reservoir for cleaning solution,
and a built-in mechanism for distributing or spraying the cleaning
solution onto a floor, or a method of equivalent efficacy.
    Work area means the area that the certified renovator establishes
to contain the dust and debris generated by a renovation.

Sec.  745.84  [Removed]

• 6. Section 745.84 is removed.

Sec.  745.85  [Redesignated as Sec.  745.84]

• 7. Section 745.85 is redesignated as Sec.  745.84.
• 8. Newly designated Sec.  745.84 is amended as follows:
• a. Revise the introductory text of paragraph (a) and revise paragraph
(a)(2)(i).
• b. Revise the introductory text of paragraph (b) and revise paragraphs
(b)(2) and (b)(4).
• c. Redesignate paragraph (c) as paragraph (d).
• d. Add a new paragraph (c).
• e. Revise the introductory text of newly designated paragraph (d).

Sec.  745.84  Information distribution requirements.

    (a) Renovations in dwelling units. No more than 60 days before
beginning renovation activities in any residential dwelling unit of
target housing, the firm performing the renovation must:
* * * * *
    (2) * * *
    (i) Obtain, from the adult occupant, a written acknowledgment that
the occupant has received the pamphlet; or certify in writing that a
pamphlet has been delivered to the dwelling and that the firm
performing the renovation has been unsuccessful in obtaining a written
acknowledgment from an adult occupant. Such certification must include
the address of the unit undergoing renovation, the date and method of
delivery of the pamphlet, names of the persons delivering the pamphlet,
reason for lack of acknowledgment (e.g., occupant refuses to sign, no
adult occupant available), the signature of a representative of the
firm performing the renovation, and the date of signature.
* * * * *
    (b) Renovations in common areas. No more than 60 days before
beginning renovation activities in common areas of multi-unit target
housing, the firm performing the renovation must:
* * * * *
    (2) Comply with one of the following. (i) Notify in writing, or
ensure written notification of, each affected unit and make the
pamphlet available upon request prior to the start of renovation. Such
notification shall be accomplished by distributing written notice to
each affected unit. The notice shall describe the general nature and
locations of the planned renovation activities; the expected starting
and ending dates; and a statement of how the occupant can obtain the
pamphlet, at no charge, from the firm performing the renovation, or
    (ii) While the renovation is ongoing, post informational signs
describing the

[[Page 21761]]

general nature and locations of the renovation and the anticipated
completion date. These signs must be posted in areas where they are
likely to be seen by the occupants of all of the affected units. The
signs must be accompanied by a posted copy of the pamphlet or
information on how interested occupants can review a copy of the
pamphlet or obtain a copy from the renovation firm at no cost to occupants.
* * * * *
    (4) If the scope, locations, or expected starting and ending dates
of the planned renovation activities change after the initial
notification, and the firm provided written initial notification to
each affected unit, the firm performing the renovation must provide
further written notification to the owners and occupants providing
revised information on the ongoing or planned activities. This
subsequent notification must be provided before the firm performing the
renovation initiates work beyond that which was described in the
original notice.
    (c) Renovations in child-occupied facilities. No more than 60 days
before beginning renovation activities in any child-occupied facility,
the firm performing the renovation must:
    (1)(i) Provide the owner of the building with the pamphlet, and
comply with one of the following:
    (A) Obtain, from the owner, a written acknowledgment that the owner
has received the pamphlet.
    (B) Obtain a certificate of mailing at least 7 days prior to the
renovation.
    (ii) If the child-occupied facility is not the owner of the
building, provide an adult representative of the child-occupied
facility with the pamphlet, and comply with one of the following:
    (A) Obtain, from the adult representative, a written acknowledgment
that the adult representative has received the pamphlet; or certify in
writing that a pamphlet has been delivered to the facility and that the
firm performing the renovation has been unsuccessful in obtaining a
written acknowledgment from an adult representative. Such certification
must include the address of the child-occupied facility undergoing
renovation, the date and method of delivery of the pamphlet, names of
the persons delivering the pamphlet, reason for lack of acknowledgment
(e.g., representative refuses to sign), the signature of a representative
of the firm performing the renovation, and the date of signature.
    (B) Obtain a certificate of mailing at least 7 days prior to the
renovation.
    (2) Provide the parents and guardians of children using the child-
occupied facility with the pamphlet and information describing the
general nature and locations of the renovation and the anticipated
completion date by complying with one of the following:
    (i) Mail or hand-deliver the pamphlet and the renovation information
to each parent or guardian of a child using the child-occupied facility.
    (ii) While the renovation is ongoing, post informational signs
describing the general nature and locations of the renovation and the
anticipated completion date. These signs must be posted in areas where
they can be seen by the parents or guardians of the children
frequenting the child-occupied facility. The signs must be accompanied
by a posted copy of the pamphlet or information on how interested
parents or guardians can review a copy of the pamphlet or obtain a copy
from the renovation firm at no cost to the parents or guardians.
    (3) The renovation firm must prepare, sign, and date a statement
describing the steps performed to notify all parents and guardians of
the intended renovation activities and to provide the pamphlet.
    (d) Written acknowledgment. The written acknowledgments required by
paragraphs (a)(1)(i), (a)(2)(i), (b)(1)(i), (c)(1)(i)(A), and
(c)(1)(ii)(A) of this section must:
* * * * *
• 9. Section 745.85 is added to subpart E to read as follows:

Sec.  745.85  Work practice standards.

    (a) Standards for renovation activities. Renovations must be
performed by certified firms using certified renovators as directed in
Sec.  745.89. The responsibilities of certified firms are set forth in
Sec.  745.89(d) and the responsibilities of certified renovators are
set forth in Sec.  745.90(b).
    (1) Occupant protection. Firms must post signs clearly defining the
work area and warning occupants and other persons not involved in
renovation activities to remain outside of the work area. To the extent
practicable, these signs must be in the primary language of the
occupants. These signs must be posted before beginning the renovation
and must remain in place and readable until the renovation and the
post-renovation cleaning verification have been completed. If warning
signs have been posted in accordance with 24 CFR 35.1345(b)(2) or 29
CFR 1926.62(m), additional signs are not required by this section.
    (2) Containing the work area. Before beginning the renovation, the
firm must isolate the work area so that no dust or debris leaves the
work area while the renovation is being performed. In addition, the
firm must maintain the integrity of the containment by ensuring that
any plastic or other impermeable materials are not torn or displaced,
and taking any other steps necessary to ensure that no dust or debris
leaves the work area while the renovation is being performed. The firm
must also ensure that containment is installed in such a manner that it
does not interfere with occupant and worker egress in an emergency.
    (i) Interior renovations. The firm must:
    (A) Remove all objects from the work area, including furniture,
rugs, and window coverings, or cover them with plastic sheeting or
other impermeable material with all seams and edges taped or otherwise
sealed.
    (B) Close and cover all ducts opening in the work area with taped-
down plastic sheeting or other impermeable material.
    (C) Close windows and doors in the work area. Doors must be covered
with plastic sheeting or other impermeable material. Doors used as an
entrance to the work area must be covered with plastic sheeting or
other impermeable material in a manner that allows workers to pass
through while confining dust and debris to the work area.
    (D) Cover the floor surface, including installed carpet, with
taped-down plastic sheeting or other impermeable material in the work
area 6 feet beyond the perimeter of surfaces undergoing renovation or a
sufficient distance to contain the dust, whichever is greater.
    (E) Use precautions to ensure that all personnel, tools, and other
items, including the exteriors of containers of waste, are free of dust
and debris before leaving the work area.
    (ii) Exterior renovations. The firm must:
    (A) Close all doors and windows within 20 feet of the renovation.
On multi-story buildings, close all doors and windows within 20 feet of
the renovation on the same floor as the renovation, and close all doors
and windows on all floors below that are the same horizontal distance
from the renovation.
    (B) Ensure that doors within the work area that will be used while
the job is being performed are covered with plastic sheeting or other
impermeable material in a manner that allows workers to pass through
while confining dust and debris to the work area.
    (C) Cover the ground with plastic sheeting or other disposable
impermeable material extending 10 feet beyond the perimeter of surfaces

[[Page 21762]]

undergoing renovation or a sufficient distance to collect falling paint
debris, whichever is greater, unless the property line prevents 10 feet
of such ground covering.
    (D) In certain situations, the renovation firm must take extra
precautions in containing the work area to ensure that dust and debris
from the renovation does not contaminate other buildings or other areas
of the property or migrate to adjacent properties.
    (3) Prohibited and restricted practices. The work practices listed
below shall be prohibited or restricted during a renovation as follows:
    (i) Open-flame burning or torching of lead-based paint is prohibited.
    (ii) The use of machines that remove lead-based paint through high
speed operation such as sanding, grinding, power planing, needle gun,
abrasive blasting, or sandblasting, is prohibited unless such machines
are used with HEPA exhaust control.
    (iii) Operating a heat gun on lead-based paint is permitted only at
temperatures below 1100 degrees Fahrenheit.
    (4) Waste from renovations--(i) Waste from renovation activities
must be contained to prevent releases of dust and debris before the
waste is removed from the work area for storage or disposal. If a chute
is used to remove waste from the work area, it must be covered.
    (ii) At the conclusion of each work day and at the conclusion of
the renovation, waste that has been collected from renovation
activities must be stored under containment, in an enclosure, or behind
a barrier that prevents release of dust and debris out of the work area
and prevents access to dust and debris.
    (iii) When the firm transports waste from renovation activities,
the firm must contain the waste to prevent release of dust and debris.
    (5) Cleaning the work area. After the renovation has been
completed, the firm must clean the work area until no dust, debris or
residue remains.
    (i) Interior and exterior renovations. The firm must:
    (A) Collect all paint chips and debris and, without dispersing any
of it, seal this material in a heavy-duty bag.
    (B) Remove the protective sheeting. Mist the sheeting before
folding it, fold the dirty side inward, and either tape shut to seal or
seal in heavy-duty bags. Sheeting used to isolate contaminated rooms
from non-contaminated rooms must remain in place until after the
cleaning and removal of other sheeting. Dispose of the sheeting as waste.
    (ii) Additional cleaning for interior renovations. The firm must
clean all objects and surfaces in the work area and within 2 feet of
the work area in the following manner, cleaning from higher to lower:
    (A) Walls. Clean walls starting at the ceiling and working down to the
floor by either vacuuming with a HEPA vacuum or wiping with a damp cloth.
    (B) Remaining surfaces. Thoroughly vacuum all remaining surfaces
and objects in the work area, including furniture and fixtures, with a
HEPA vacuum. The HEPA vacuum must be equipped with a beater bar when
vacuuming carpets and rugs.
    (C) Wipe all remaining surfaces and objects in the work area,
except for carpeted or upholstered surfaces, with a damp cloth. Mop
uncarpeted floors thoroughly, using a mopping method that keeps the
wash water separate from the rinse water, such as the 2-bucket mopping
method, or using a wet mopping system.
    (b) Standards for post-renovation cleaning verification--(1)
Interiors. (i) A certified renovator must perform a visual inspection
to determine whether dust, debris or residue is still present. If dust,
debris or residue is present, these conditions must be removed by re-
cleaning and another visual inspection must be performed.
    (ii) After a successful visual inspection, a certified renovator must:
    (A) Verify that each windowsill in the work area has been
adequately cleaned, using the following procedure.
    (1) Wipe the windowsill with a wet disposable cleaning cloth that
is damp to the touch. If the cloth matches or is lighter than the
cleaning verification card, the windowsill has been adequately cleaned.
    (2) If the cloth does not match and is darker than the cleaning
verification card, re-clean the windowsill as directed in paragraphs
(a)(5)(ii)(B) and (a)(5)(ii)(C) of this section, then either use a new
cloth or fold the used cloth in such a way that an unused surface is
exposed, and wipe the surface again. If the cloth matches or is lighter
than the cleaning verification card, that windowsill has been
adequately cleaned.
    (3) If the cloth does not match and is darker than the cleaning
verification card, wait for 1 hour or until the surface has dried
completely, whichever is longer.
    (4)After waiting for the windowsill to dry, wipe the windowsill
with a dry disposable cleaning cloth. After this wipe, the windowsill
has been adequately cleaned.
    (B) Wipe uncarpeted floors and countertops within the work area
with a wet disposable cleaning cloth. Floors must be wiped using
anapplication device with a long handle and a head to which the cloth
is attached. The cloth must remain damp at all times while it is being
used to wipe the surface for post-renovation cleaning verification. If
the surface within the work area is greater than 40 square feet, the
surface within the work area must be divided into roughly equal
sections that are each less than 40 square feet. Wipe each such section
separately with a new wet disposable cleaning cloth. If the cloth used
to wipe each section of the surface within the work area matches the
cleaning verification card, the surface has been adequately cleaned.
    (1) If the cloth used to wipe a particular surface section does not
match the cleaning verification card, re-clean that section of the
surface as directed in paragraphs (a)(5)(ii)(B) and (a)(5)(ii)(C) of
this section, then use a new wet disposable cleaning cloth to wipe that
section again. If the cloth matches the cleaning verification card,
that section of the surface has been adequately cleaned.
    (2) If the cloth used to wipe a particular surface section does not
match the cleaning verification card after the surface has been re-
cleaned, wait for 1 hour or until the entire surface within the work
area has dried completely, whichever is longer.
    (3) After waiting for the entire surface within the work area to
dry, wipe each section of the surface that has not yet achieved post-
renovation cleaning verification with a dry disposable cleaning cloth.
After this wipe, that section of the surface has been adequately cleaned.
    (iii) When the work area passes the post-renovation cleaning
verification, remove the warning signs.
    (2) Exteriors. A certified renovator must perform a visual
inspection to determine whether dust, debris or residue is still
present on surfaces in and below the work area, including windowsills
and the ground. If dust, debris or residue is present, these conditions
must be eliminated and another visual inspection must be performed.
When the area passes the visual inspection, remove the warning signs.
    (c) Optional dust clearance testing. Cleaning verification need not
be performed if the contract between the renovation firm and the person
contracting for the renovation or another Federal, State, Territorial,
Tribal, or local law or regulation requires:

[[Page 21763]]

    (1) The renovation firm to perform dust clearance sampling at the
conclusion of a renovation covered by this subpart.
    (2) The dust clearance samples are required to be collected by a
certified inspector, risk assessor or dust sampling technician.
    (3) The renovation firm is required to re-clean the work area until
the dust clearance sample results are below the clearance standards in
Sec.  745.227(e)(8) or any applicable State, Territorial, Tribal, or
local standard.
    (d) Activities conducted after post-renovation cleaning
verification. Activities that do not disturb paint, such as applying
paint to walls that have already been prepared, are not regulated by
this subpart if they are conducted after post-renovation cleaning
verification has been performed.

• 10. Section 745.86 is revised to read as follows:

Sec.  745.86  Recordkeeping and reporting requirements.

    (a) Firms performing renovations must retain and, if requested,
make available to EPA all records necessary to demonstrate compliance
with this subpart for a period of 3 years following completion of the
renovation. This 3-year retention requirement does not supersede longer
obligations required by other provisions for retaining the same
documentation, including any applicable State or Tribal laws or regulations.
    (b) Records that must be retained pursuant to paragraph (a) of this
section shall include (where applicable):
    (1) Reports certifying that a determination had been made by an
inspector (certified pursuant to either Federal regulations at Sec. 
745.226 or an EPA-authorized State or Tribal certification program)
that lead-based paint is not present on the components affected by the
renovation, as described in Sec.  745.82(b)(1).
    (2) Signed and dated acknowledgments of receipt as described
inSec.  745.84(a)(1)(i), (a)(2)(i), (b)(1)(i), (c)(1)(i)(A), and
(c)(1)(ii)(A).
    (3) Certifications of attempted delivery as described in Sec. 
745.84(a)(2)(i) and (c)(1)(ii)(A).
    (4) Certificates of mailing as described in Sec.  745.84(a)(1)(ii),
(a)(2)(ii), (b)(1)(ii), (c)(1)(i)(B), and (c)(1)(ii)(B).
    (5) Records of notification activities performed regarding common
area renovations, as described in Sec.  745.84(b)(3) and (b)(4), and
renovations in child-occupied facilities, as described in Sec. 
745.84(c)(2).
    (6) Any signed and dated statements received from owner-occupants
documenting that the requirements of Sec.  745.85 do not apply. These
statements must include a declaration that the renovation will occur in
the owner's residence, a declaration that no children under age 6
reside there, a declaration that no pregnant woman resides there, a
declaration that the housing is not a child-occupied facility, the
address of the unit undergoing renovation, the owner's name, an
acknowledgment by the owner that the work practices to be used during
the renovation will not necessarily include all of the lead-safe work
practices contained in EPA's renovation, repair, and painting rule, the
signature of the owner, and the date of signature. These statements
must be written in the same language as the text of the renovation
contract, if any.
    (7) Documentation of compliance with the requirements of Sec. 
745.85, including documentation that a certified renovator was assigned
to the project, that the certified renovator provided on-the-job
training for workers used on the project, that the certified renovator
performed or directed workers who performed all of the tasks described
in Sec.  745.85(a), and that the certified renovator performed the
post-renovation cleaning verification described in Sec.  745.85(b). If
the renovation firm was unable to comply with all of the requirements
of this rule due to an emergency as defined in Sec.  745.82, the firm
must document the nature of the emergency and the provisions of the
rule that were not followed. This documentation must include a copy of
the certified renovator's training certificate, and a certification by
the certified renovator assigned to the project that:
    (i) Training was provided to workers (topics must be identified for
each worker).
    (ii) Warning signs were posted at the entrances to the work area.
    (iii) If test kits were used, that the specified brand of kits was
used at the specified locations and that the results were as specified.
    (iv) The work area was contained by:
    (A) Removing or covering all objects in the work area (interiors).
    (B) Closing and covering all HVAC ducts in the work area (interiors).
    (C) Closing all windows in the work area (interiors) or closing all
windows in and within 20 feet of the work area (exteriors).
    (D) Closing and sealing all doors in the work area (interiors) or
closing and sealing all doors in and within 20 feet of the work area
(exteriors).
    (E) Covering doors in the work area that were being used to allow
passage but prevent spread of dust.
    (F) Covering the floor surface, including installed carpet, with
taped-down plastic sheeting or other impermeable material in the work
area 6 feet beyond the perimeter of surfaces undergoing renovation or a
sufficient distance to contain the dust, whichever is greater
(interiors) or covering the ground with plastic sheeting or other
disposable impermeable material anchored to the building extending 10
feet beyond the perimeter of surfaces undergoing renovation or a
sufficient distance to collect falling paint debris, whichever is
greater, unless the property line prevents 10 feet of such ground
covering, weighted down by heavy objects (exteriors).
    (G) Installing (if necessary) vertical containment to prevent
migration of dust and debris to adjacent property (exteriors).
    (v) Waste was contained on-site and while being transported off-site.
    (vi) The work area was properly cleaned after the renovation by:
    (A) Picking up all chips and debris, misting protective sheeting,
folding it dirty side inward, and taping it for removal.
    (B) Cleaning the work area surfaces and objects using a HEPA vacuum
and/or wet cloths or mops (interiors).
    (vii) The certified renovator performed the post-renovation
cleaning verification (the results of which must be briefly described,
including the number of wet and dry cloths used).
    (c) When test kits are used, the renovation firm must, within 30
days of the completion of the renovation, provide identifying
information as to the manufacturer and model of the test kits used, a
description of the components that were tested including their
locations, and the test kit results to the person who contracted for
the renovation.
    (d) If dust clearance sampling is performed in lieu of cleaning
verification as permitted by Sec.  745.85(c), the renovation firm must
provide, within 30 days of the completion of the renovation, a copy of
the dust sampling report to the person who contracted for the renovation.

• 11. Section 745.87 is amended by revising paragraph (e) to read as
follows:

Sec.  745.87  Enforcement and inspections.

* * * * *
    (e) Lead-based paint is assumed to be present at renovations
covered by this subpart. EPA may conduct inspections and issue
subpoenas pursuant to the provisions of TSCA section 11 (15 U.S.C.
2610) to ensure compliance with this subpart.

[[Page 21764]]

• 12. Section 745.88 is revised to read as follows:

Sec.  745.88  Recognized test kits.

    (a) Effective June 23, 2008, EPA recognizes the test kits that have
been determined by National Institute of Standards and Technology
research to meet the negative response criteria described in paragraph
(c)(1) of this section. This recognition will last until EPA publicizes
its recognition of the first test kit that meets both the negative
response and positive response criteria in paragraph (c) of this
section.
    (b) No other test kits will be recognized until they are tested
through EPA's Environmental Technology Verification Program or other
equivalent EPA approved testing program.
    (1) Effective September 1, 2008, to initiate the testing process, a
test kit manufacturer must submit a sufficient number of kits, along
with the instructions for using the kits, to EPA. The test kit
manufacturer should first visit the following website for information
on where to apply:http://www.epa.gov/etv/howtoapply.html.
    (2) After the kit has been tested through the Environmental
Technology Verification Program or other equivalent approved EPA
testing program, EPA will review the report to determine whether the
required criteria have been met.
    (3) Before September 1, 2010, test kits must meet only the negative
response criteria in paragraph (c)(1) of this section. The recognition
of kits that meet only this criteria will last until EPA publicizes its
recognition of the first test kits that meets both of the criteria in
paragraph (c) of this section.
    (4) After September 1, 2010, test kits must meet both of the
criteria in paragraph (c) of this section.
    (5) If the report demonstrates that the kit meets the required
criteria, EPA will issue a notice of recognition to the kit
manufacturer, provide them with the report, and post the information on
EPA's website.
    (6) If the report demonstrates that the kit does not meet the
required criteria, EPA will notify the kit manufacturer and provide
them with the report.
    (c) Response criteria--(1) Negative response criteria. For paint
containing lead at or above the regulated level, 1.0 mg/cm\2\ or 0.5%
by weight, a demonstrated probability (with 95% confidence) of a
negative response less than or equal to 5% of the time.
    (2) Positive response criteria. For paint containing lead below the
regulated level, 1.0 mg/cm\2\ or 0.5% by weight, a demonstrated
probability (with 95% confidence) of a positive response less than or
equal to 10% of the time.

• 13. Section 745.89 is added to subpart E to read as follows:

Sec.  745.89  Firm certification.

    (a) Initial certification. (1) Firms that perform renovations for
compensation must apply to EPA for certification to perform renovations
or dust sampling. To apply, a firm must submit to EPA a completed
``Application for Firms,'' signed by an authorized agent of the firm,
and pay at least the correct amount of fees. If a firm pays more than the
correct amount of fees, EPA will reimburse the firm for the excess amount.
    (2) After EPA receives a firm's application, EPA will take one of the
following actions within 90 days of the date the application is received:
    (i) EPA will approve a firm's application if EPA determines that it
is complete and that the environmental compliance history of the firm,
its principals, or its key employees does not show an unwillingness or
inability to maintain compliance with environmental statutes or
regulations. An application is complete if it contains all of the
information requested on the form and includes at least the correct
amount of fees. When EPA approves a firm's application, EPA will issue
the firm a certificate with an expiration date not more than 5 years
from the date the application is approved. EPA certification allows the
firm to perform renovations covered by this section in any State or
Indian Tribal area that does not have a renovation program that is
authorized under subpart Q of this part.
    (ii) EPA will request a firm to supplement its application if EPA
determines that the application is incomplete. If EPA requests a firm
to supplement its application, the firm must submit the requested
information or pay the additional fees within 30 days of the date of
the request.
    (iii) EPA will not approve a firm's application if the firm does
not supplement its application in accordance with paragraph (a)(2)(ii)
of this section or if EPA determines that the environmental compliance
history of the firm, its principals, or its key employees demonstrates
an unwillingness or inability to maintain compliance with environmental
statutes or regulations. EPA will send the firm a letter giving the
reason for not approving the application. EPA will not refund the
application fees. A firm may reapply for certification at any time by
filing a new, complete application that includes the correct amount of fees.
    (b) Re-certification. To maintain its certification, a firm must be
re-certified by EPA every 5 years.
    (1) Timely and complete application. To be re-certified, a firm
must submit a complete application for re-certification. A complete
application for re-certification includes a completed ``Application for
Firms'' which contains all of the information requested by the form and
is signed by an authorized agent of the firm, noting on the form that
it is submitted as a re-certification. A complete application must also
include at least the correct amount of fees. If a firm pays more than the
correct amount of fees, EPA will reimburse the firm for the excess amount.
    (i) An application for re-certification is timely if it is
postmarked 90 days or more before the date the firm's current
certification expires. If the firm's application is complete and
timely, the firm's current certification will remain in effect until
its expiration date or until EPA has made a final decision to approve
or disapprove the re-certification application, whichever is later.
    (ii) If the firm submits a complete re-certification application
less than 90 days before its current certification expires, and EPA
does not approve the application before the expiration date, the firm's
current certification will expire and the firm will not be able to
conduct renovations until EPA approves its re-certification application.
    (iii) If the firm fails to obtain recertification before the firm's
current certification expires, the firm must not perform renovations or
dust sampling until it is certified anew pursuant to paragraph (a) of
this section.
    (2) EPA action on an application. After EPA receives a firm's
application for re-certification, EPA will review the application and
take one of the following actions within 90 days of receipt:
    (i) EPA will approve a firm's application if EPA determines that it
is timely and complete and that the environmental compliance history of
the firm, its principals, or its key employees does not show an
unwillingness or inability to maintain compliance with environmental
statutes or regulations. When EPA approves a firm's application for re-
certification, EPA will issue the firm a new certificate with an
expiration date 5 years from the date that the firm's current
certification expires. EPA certification allows the firm to perform
renovations or dust sampling covered by this section in any State or
Indian Tribal area that does not have a renovation program that is
authorized under subpart Q of this part.

[[Page 21765]]

    (ii) EPA will request a firm to supplement its application if EPA
determines that the application is incomplete.
    (iii) EPA will not approve a firm's application if it is not
received or is not complete as of the date that the firm's current
certification expires, or if EPA determines that the environmental
compliance history of the firm, its principals, or its key employees
demonstrates an unwillingness or inability to maintain compliance with
environmental statutes or regulations. EPA will send the firm a letter
giving the reason for not approving the application. EPA will not
refund the application fees. A firm may reapply for certification at
any time by filing a new application and paying the correct amount of fees.
    (c) Amendment of certification. A firm must amend its certification
within 90 days of the date a change occurs to information included in
the firm's most recent application. If the firm fails to amend its
certification within 90 days of the date the change occurs, the firm
may not perform renovations or dust sampling until its certification is
amended.
    (1) To amend a certification, a firm must submit a completed
``Application for Firms,'' signed by an authorized agent of the firm,
noting on the form that it is submitted as an amendment and indicating
the information that has changed. The firm must also pay at least the
correct amount of fees.
    (2) If additional information is needed to process the amendment,
or the firm did not pay the correct amount of fees, EPA will request
the firm to submit the necessary information or fees. The firm's
certification is not amended until the firm complies with the request.
    (3) Amending a certification does not affect the certification
expiration date.
    (d) Firm responsibilities. Firms performing renovations must ensure
that:
    (1) All individuals performing renovation activities on behalf of
the firm are either certified renovators or have been trained by a
certified renovator in accordance with Sec.  745.90.
    (2) A certified renovator is assigned to each renovation performed
by the firm and discharges all of the certified renovator
responsibilities identified in Sec.  745.90.
    (3) All renovations performed by the firm are performed in
accordance with the work practice standards in Sec.  745.85.
    (4) The pre-renovation education requirements of Sec.  745.84 have
been performed.
    (5) The recordkeeping requirements of Sec.  745.86 are met.

• 14. Section 745.90 is added to subpart E to read as follows:

Sec.  745.90  Renovator certification and dust sampling technician
certification.

    (a) Renovator certification and dust sampling technician
certification. (1) To become a certified renovator or certified dust
sampling technician, an individual must successfully complete the
appropriate course accredited by EPA under Sec.  745.225 or by a State
or Tribal program that is authorized under subpart Q of this part. The
course completion certificate serves as proof of certification. EPA
renovator certification allows the certified individual to perform
renovations covered by this section in any State or Indian Tribal area
that does not have a renovation program that is authorized under
subpart Q of this part. EPA dust sampling technician certification
allows the certified individual to perform dust clearance sampling
under Sec.  745.85(c) in any State or Indian Tribal area that does not
have a renovation program that is authorized under subpart Q of this part.
    (2) Individuals who have successfully completed an accredited
abatement worker or supervisor course, or individuals who have
successfully completed an EPA, HUD, or EPA/HUD model renovation
training course may take an accredited refresher renovator training
course 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 in lieu of the initial
training to become a certified dust sampling technician.
    (4) To maintain renovator certification or dust sampling technician
certification, an individual must complete a renovator or dust sampling
technician refresher course accredited by EPA under Sec.  745.225 or by
a State or Tribal program that is authorized under subpart Q of this
part within 5 years of the date the individual completed the initial
course described in paragraph (a)(1) of this section. If the individual
does not complete a refresher course within this time, the individual
must re-take the initial course to become certified again.
    (b) Renovator responsibilities. Certified renovators are
responsible for ensuring compliance with Sec.  745.85 at all
renovations to which they are assigned. A certified renovator:
    (1) Must perform all of the tasks described in Sec.  745.85(b) and
must either perform or direct workers who perform all of the tasks
described in Sec.  745.85(a).
    (2) Must provide training to workers on the work practices they
will be using in performing their assigned tasks.
    (3) Must be physically present at the work site when the signs
required by Sec.  745.85(a)(1) are posted, while the work area
containment required by Sec.  745.85(a)(2) is being established, and
while the work area cleaning required by Sec.  745.85(a)(5) is performed.
    (4) Must regularly direct work being performed by other individuals
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.
    (5) Must be available, either on-site or by telephone, at all times
that renovations are being conducted.
    (6) When requested by the party contracting for renovation
services, must use an acceptable test kit to determine whether
components to be affected by the renovation contain lead-based paint.
    (7) Must have with them at the work site copies of their initial
course completion certificate and their most recent refresher course
completion certificate.
    (8) Must prepare the records required by Sec.  745.86(b)(7).
    (c) Dust sampling technician responsibilities. When performing
optional dust clearance sampling under Sec.  745.85(c), a certified
dust sampling technician:
    (1) Must collect dust samples in accordance with Sec. 
745.227(e)(8), must send the collected samples to a laboratory
recognized by EPA under TSCA section 405(b), and must compare the
results to the clearance levels in accordance with Sec.  745.227(e)(8).
    (2) Must have with them at the work site copies of their initial
course completion certificate and their most recent refresher course
completion certificate.

• 15. Section 745.91 is added to subpart E to read as follows:

Sec.  745.91  Suspending, revoking, or modifying an individual's or
firm's certification.

    (a)(1) Grounds for suspending, revoking, or modifying an
individual's certification. EPA may suspend, revoke, or modify an
individual's certification if the individual fails to comply with
Federal lead-based paint statutes or regulations. EPA may also suspend,
revoke, or modify a certified renovator's certification if the
renovator fails to ensure that all assigned renovations comply with
Sec.  745.85. In addition to an administrative or judicial finding of
violation, execution of a consent

[[Page 21766]]

agreement in settlement of an enforcement action constitutes, for
purposes of this section, evidence of a failure to comply with relevant
statutes or regulations.
    (2) Grounds for suspending, revoking, or modifying a firm's
certification. EPA may suspend, revoke, or modify a firm's
certification if the firm:
    (i) Submits false or misleading information to EPA in its
application for certification or re-certification.
    (ii) Fails to maintain or falsifies records required in Sec.  745.86.
    (iii) Fails to comply, or an individual performing a renovation on
behalf of the firm fails to comply, with Federal lead-based paint
statutes or regulations. In addition to an administrative or judicial
finding of violation, execution of a consent agreement in settlement of
an enforcement action constitutes, for purposes of this section,
evidence of a failure to comply with relevant statutes or regulations.
    (b) Process for suspending, revoking, or modifying certification.
(1) Prior to taking action to suspend, revoke, or modify an
individual's or firm's certification, EPA will notify the affected
entity in writing of the following:
    (i) The legal and factual basis for the proposed suspension,
revocation, or modification.
    (ii) The anticipated commencement date and duration of the
suspension, revocation, or modification.
    (iii) Actions, if any, which the affected entity may take to avoid
suspension, revocation, or modification, or to receive certification in
the future.
    (iv) The opportunity and method for requesting a hearing prior to
final suspension, revocation, or modification.
    (2) If an individual or firm requests a hearing, EPA will:
    (i) Provide the affected entity an opportunity to offer written
statements in response to EPA's assertions of the legal and factual
basis for its proposed action.
    (ii) Appoint an impartial official of EPA as Presiding Officer to
conduct the hearing.
    (3) The Presiding Officer will:
    (i) Conduct a fair, orderly, and impartial hearing within 90 days
of the request for a hearing.
    (ii) Consider all relevant evidence, explanation, comment, and
argument submitted.
    (iii) Notify the affected entity in writing within 90 days of
completion of the hearing of his or her decision and order. Such an
order is a final agency action which may be subject to judicial review.
The order must contain the commencement date and duration of the
suspension, revocation, or modification.
    (4) If EPA determines that the public health, interest, or welfare
warrants immediate action to suspend the certification of any
individual or firm prior to the opportunity for a hearing, it will:
    (i) Notify the affected entity in accordance with paragraph
(b)(1)(i) through (b)(1)(iii) of this section, explaining why it is
necessary to suspend the entity's certification before an opportunity
for a hearing.
    (ii) Notify the affected entity of its right to request a hearing
on the immediate suspension within 15 days of the suspension taking
place and the procedures for the conduct of such a hearing.
    (5) Any notice, decision, or order issued by EPA under this
section, any transcript or other verbatim record of oral testimony, and
any documents filed by a certified individual or firm in a hearing
under this section will be available to the public, except as otherwise
provided by section 14 of TSCA or by part 2 of this title. Any such
hearing at which oral testimony is presented will be open to the
public, except that the Presiding Officer may exclude the public to the
extent necessary to allow presentation of information which may be
entitled to confidential treatment under section 14 of TSCA or part 2
of this title.
    (6) EPA will maintain a publicly available list of entities whose
certification has been suspended, revoked, modified, or reinstated.
    (7) Unless the decision and order issued under paragraph
(b)(3)(iii) of this section specify otherwise:
    (i) An individual whose certification has been suspended must take
a refresher training course (renovator or dust sampling technician) in
order to make his or her certification current.
    (ii) An individual whose certification has been revoked must take
an initial renovator or dust sampling technician course in order to
become certified again.
    (iii) A firm whose certification has been revoked must reapply for
certification after the revocation ends in order to become certified
again. If the firm's certification has been suspended and the
suspension ends less than 5 years after the firm was initially
certified or re-certified, the firm does not need to do anything to re-
activate its certification.

• 16. Section 745.220 is amended by revising paragraph (a) to read as
follows:

Sec.  745.220  Scope and applicability.

    (a) This subpart contains procedures and requirements for the
accreditation of training programs for lead-based paint activities and
renovations, procedures and requirements for the certification of
individuals and firms engaged in lead-based paint activities, and work
practice standards for performing such activities. This subpart also
requires that, except as discussed below, all lead-based paint
activities, as defined in this subpart, be performed by certified
individuals and firms.
* * * * *
• 17. Section 745.225 is amended as follows:
• a. Revise paragraph (a).
• b. Revise the introductory text of paragraph (b), revise paragraph
(b)(1)(ii), and add paragraph (b)(1)(iv)(C).
• c. Revise the introductory text of paragraph (c), add paragraphs
(c)(6)(vi), (c)(6)(vii), (c)(8)(vi), and (c)(8)(vii), and revise
paragraphs (c)(8)(iv) and (c)(10).
• d. Remove the phrase ``lead-based paint activities'' and add in its
place the phrase ``renovator, dust sampling technician, or lead-based
paint activities'' wherever it appears in paragraph (c)(13).
• e. Add paragraph (c)(14)(ii)(D)(6).
• f. Add paragraphs (d)(6) and (d)(7).
• g. Revise the introductory text of paragraph (e).
• h. Remove the word ``activities'' wherever it appears in paragraph (e)(1).
• i. Revise paragraph (e)(2).

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

    (a) Scope. (1) A training program may seek accreditation to offer
courses in any of the following disciplines: Inspector, risk assessor,
supervisor, project designer, abatement worker, renovator, and dust
sampling technician. A training program may also seek accreditation to
offer refresher courses for each of the above listed disciplines.
    (2) Training programs may first apply to EPA for accreditation of
their lead-based paint activities courses or refresher courses pursuant
to this section on or after August 31, 1998. Training programs may
first apply to EPA for accreditation of their renovator or dust
sampling technician courses or refresher courses pursuant to this
section on or after 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

[[Page 21767]]

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) * * *
    (ii) A list of courses for which it is applying for accreditation.
For the purposes of this section, courses taught in different languages
are considered different courses, and each must independently meet the
accreditation requirements.
* * * * *
    (iv) * * *
    (C) When applying for accreditation of a course in a language other
than English, a signed statement from a qualified, independent
translator that they had compared the course to the English language
version and found the translation to be accurate.
* * * * *
    (c) Requirements for the accreditation of training programs. For a
training program to obtain accreditation from EPA to offer lead-based
paint activities courses, renovator courses, or dust sampling
technician courses, the program must meet the following requirements:
* * * * *
    (6) * * *
    (vi) The renovator course must last a minimum of 8 training hours,
with a minimum of 2 hours devoted to hands-on training activities. The
minimum curriculum requirements for the renovator course are contained
in paragraph (d)(6) of this section. Hands-on training activities must
cover renovation methods that minimize the creation of dust and lead-
based paint hazards, interior and exterior containment and cleanup
methods, and post-renovation cleaning verification.
    (vii) The dust sampling technician course must last a minimum of 8
training hours, with a minimum of 2 hours devoted to hands-on training
activities. The minimum curriculum requirements for the dust sampling
technician course are contained in paragraph (d)(7) of this section.
Hands-on training activities must cover dust sampling methodologies.
* * * * *
    (8) * * *
    (iv) For initial inspector, risk assessor, project designer,
supervisor, or abatement worker course completion certificates, the
expiration date of interim certification, which is 6 months from the
date of course completion.
* * * * *
    (vi) The language in which the course was taught.
    (vii) For renovator and dust sampling technician course completion
certificates, a photograph of the individual.
* * * * *
    (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.
* * * * *
    (14) * * *
    (ii) * * *
    (D) * * *
    (6) A digital photograph of the student.
    (d) * * *
    (6) Renovator. (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) Renovation methods to minimize the creation of dust and lead-
based paint hazards.
    (vi) Interior and exterior containment and cleanup methods.
    (vii) Methods to ensure that the renovation has been properly
completed, including cleaning verification, and clearance testing.
    (viii) Waste handling and disposal.
    (ix) Providing on-the-job training to other workers.
    (x) Record preparation.
    (7) Dust sampling technician. (i) Role and responsibility of a dust
sampling technician.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local
regulations and guidance that pertains to lead-based paint and
renovation activities.
    (iv) Dust sampling methodologies.
    (v) Clearance standards and testing.
    (vi) Report preparation.
* * * * *
    (e) Requirements for the accreditation of refresher training
programs. A training program may seek accreditation to offer refresher
training courses in any of the following disciplines: Inspector, risk
assessor, supervisor, project designer, abatement worker, renovator,
and dust sampling technician. To obtain EPA accreditation to offer
refresher training, a training program must meet the following minimum
requirements:
* * * * *
    (2) Refresher courses for inspector, risk assessor, supervisor, and
abatement worker must last a minimum of 8 training hours. Refresher
courses for project designer, renovator, and dust sampling technician
must last a minimum of 4 training hours.
* * * * *
• 18. Section 745.320 is amended by revising paragraph (c) to read as
follows:

Sec.  745.320  Scope and purpose.

* * * * *
    (c) A State or Indian Tribe may seek authorization to administer
and enforce all of the provisions of subpart E of this part, just the
pre-renovation education provisions of subpart E of this part, or just
the training, certification, accreditation, and work practice
provisions of subpart E of this part. The provisions of Sec. Sec. 
745.324 and 745.326 apply for the purposes of such program
authorizations.
* * * * *
• 19. Section 745.324 is amended as follows:
• a. Revise paragraph (a)(1).
• b. Remove the phrase ``lead-based paint training accreditation and
certification'' from the second sentence of paragraph (b)(1)(iii).
• c. Revise paragraph (b)(2)(ii).
• d. Revise paragraphs (e)(2)(i) and (e)(4).
• e. Revise paragraph (f)(2).
• f. Revise paragraph (i)(8).

Sec.  745.324  Authorization of State or Tribal programs.

    (a) Application content and procedures. (1) Any State or Indian
Tribe that seeks authorization from EPA to administer and enforce the
provisions of subpart E or subpart L of this part must submit an
application to the Administrator in accordance with this paragraph.
* * * * *
    (b) * * *
    (2) * * *
    (ii) An analysis of the State or Tribal program that compares the
program to the Federal program in subpart E or subpart L of this part,
or both. This analysis must demonstrate how the program is, in the
State's or Indian Tribe's assessment, at least as protective as the
elements in the Federal program at subpart E or subpart L of this part, or

[[Page 21768]]

both. EPA will use this analysis to evaluate the protectiveness of the
State or Tribal program in making its determination pursuant to
paragraph (e)(2)(i) of this section.
* * * * *
    (e) * * *
    (2) * * *
    (i) The State or Tribal program is at least as protective of human
health and the environment as the corresponding Federal program under
subpart E or subpart L of this part, or both; and
* * * * *
    (4) If the State or Indian Tribe applies for authorization of State
or Tribal programs under both subpart E and subpart L, EPA may, as
appropriate, authorize one program and disapprove the other.
* * * * *
    (f) * * *
    (2) If a State or Indian Tribe does not have an authorized program
to administer and enforce the pre-renovation education requirements of
subpart E of this part by August 31, 1998, the Administrator will, by
such date, enforce those provisions of subpart E of this part as the
Federal program for that State or Indian Country. If a State or Indian
Tribe does not have an authorized program to administer and enforce the
training, certification and accreditation requirements and work
practice standards of subpart E of this part by April 22, 2009, the
Administrator will, by such date, enforce those provisions of subpart E
of this part as the Federal program for that State or Indian Country.
* * * * *
    (i) * * *
    (8) By the date of such order, the Administrator will establish and
enforce the provisions of subpart E or subpart L of this part, or both,
as the Federal program for that State or Indian Country.

• 20. Section 745.326 is revised to read as follows:

Sec.  745.326  Renovation: State and Tribal program requirements.

    (a) Program elements. To receive authorization from EPA, a State or
Tribal program must contain the following program elements:
    (1) For pre-renovation education programs, procedures and
requirements for the distribution of lead hazard information to owners
and occupants of target housing and child-occupied facilities before
renovations for compensation.
    (2) For renovation training, certification, accreditation, and work
practice standards programs:
    (i) Procedures and requirements for the accreditation of renovation
and dust sampling technician training programs.
    (ii) Procedures and requirements for the certification of
renovators and dust sampling technicians.
    (iii) Procedures and requirements for the certification of
individuals and/or firms.
    (iv) Requirements that all renovations be conducted by
appropriately certified individuals and/or firms.
    (v) Work practice standards for the conduct of renovations.
    (3) For all renovation programs, development of the appropriate
infrastructure or government capacity to effectively carry out a State
or Tribal program.
    (b) Pre-renovation education. To be considered at least as
protective as the Federal program, the State or Tribal program must:
    (1) Establish clear standards for identifying renovation activities
that trigger the information distribution requirements.
    (2) Establish procedures for distributing the lead hazard
information to owners and occupants of housing and child-occupied
facilities prior to renovation activities.
    (3) Require that the information to be distributed include either
the pamphlet titled Renovate Right: Important Lead Hazard Information
for Families, Child Care Providers and Schools, developed by EPA under
section 406(a) of TSCA, or an alternate pamphlet or package of lead
hazard information that has been submitted by the State or Tribe,
reviewed by EPA, and approved by EPA for that State or Tribe. Such
information must contain renovation-specific information similar to
that in Renovate Right: Important Lead Hazard Information for Families,
Child Care Providers and Schools, must meet the content requirements
prescribed by section 406(a) of TSCA, and must be in a format that is
readable to the diverse audience of housing and child-occupied facility
owners and occupants in that State or Tribe.
    (i) A State or Tribe with a pre-renovation education program
approved before June 23, 2008, 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) on or after April 22, 2009.
    (ii) A State or Tribe with an application for approval of a pre-
renovation education program submitted but not approved before June 23,
2008, must demonstrate that it meets the requirements of this section
either by amending its application or in the first report that it submits
pursuant toSec.  745.324(h) of this part on or after April 22, 2009.
    (iii) A State or Indian Tribe submitting its application for
approval of a pre-renovation education program on or after June 23,
2008, must demonstrate in its application that it meets the
requirements of this section.
    (c) Accreditation of training programs. To be considered at least
as protective as the Federal program, the State or Tribal program must
meet the requirements of either paragraph (c)(1) or (c)(2) of this section:
    (1) The State or Tribal program must establish accreditation
procedures and requirements, including:
    (i) Procedures and requirements for the accreditation of training
programs, including, but not limited to:
    (A) Training curriculum requirements.
    (B) Training hour requirements.
    (C) Hands-on training requirements.
    (D) Trainee competency and proficiency requirements.
    (E) Requirements for training program quality control.
    (ii) Procedures and requirements for the re-accreditation of
training programs.
    (iii) Procedures for the oversight of training programs.
    (iv) Procedures and standards for the suspension, revocation, or
modification of training program accreditations; or
    (2) The State or Tribal program must establish procedures and
requirements for the acceptance of renovation training offered by
training providers accredited by EPA or a State or Tribal program
authorized by EPA under this subpart.
    (d) Certification of renovators. To be considered at least as
protective as the Federal program, the State or Tribal program must:
    (1) Establish procedures and requirements for individual
certification that ensure that certified renovators are trained by an
accredited training program.
    (2) Establish procedures and requirements for re-certification.
    (3) Establish procedures for the suspension, revocation, or
modification of certifications.
    (e) Work practice standards for renovations. To be considered at
least as protective as the Federal program, the State or Tribal program
must establish standards that ensure that renovations are conducted
reliably, effectively, and safely. At a minimum, the State or Tribal
program must contain the following requirements:
    (1) Renovations must be conducted only by certified contractors.
    (2) Renovations are conducted using lead-safe work practices that
are at least

[[Page 21769]]

as protective to occupants as the requirements in Sec.  745.85.
    (3) Certified contractors must retain appropriate records.

• 21. Section 745.327 is amended by revising paragraphs (b)(1)(iv) and
(b)(2)(ii) to read as follows:

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

* * * * *
    (b) * * *
    (1) * * *
    (iv) Requirements that regulate the conduct of renovation
activities as described at Sec.  745.326.
    (2) * * *
    (ii) For the purposes of enforcing a renovation program, State or
Tribal officials must be able to enter a firm's place of business or
work site.
* * * * *
• 22. Section 745.339 is revised to read as follows:

Sec.  745.339  Effective date.

    States and Indian Tribes may seek authorization to administer and
enforce subpart L of this part pursuant to this subpart at any time.
States and Indian Tribes may seek authorization to administer and
enforce the pre-renovation education provisions of subpart E of this
part pursuant to this subpart at any time. States and Indian Tribes may
seek authorization to administer and enforce all of subpart E of this
part pursuant to this subpart effective June 23, 2008.

[FR Doc. E8-8141 Filed 4-21-08; 8:45 am]
BILLING CODE 6560-50-S

 
 


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