[Federal Register Volume 73, Number 78 (Tuesday, April 22, 2008)]
[Rules and Regulations]
[Pages 21692-21769]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8141]



[[Page 21691]]

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Part II





Environmental Protection Agency





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40 CFR Part 745



Lead; Renovation, Repair, and Painting Program; Lead Hazard Information 
Pamphlet; Notice of Availability; Final Rule

Federal Register / Vol. 73, No. 78 / Tuesday, April 22, 2008 / Rules 
and Regulations

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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 [mu]g/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 [mu]g/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 ([mu]g/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 [mu]g/dL. 
A decline of 6.2 points in full scale IQ for an increase in concurrent 
blood lead levels from 1 to 10 [mu]g/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 [mu]g/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 [mu]g/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,

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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 ([mu]g/ft\2\) on floors 
or 250 [mu]g/ft\2\ on interior windowsills based on wipe samples. A 
soil-lead hazard is bare soil that contains total lead equal to or 
exceeding 400 parts per million (ppm) 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 [mu]g/dL, 
the level of concern established by CDC, than children living in homes 
where no such activity has taken place recently. Phases II and IV of 
the study, which evaluated worker exposures from renovation and 
remodeling activities, provide additional documentation of the 
significant and direct relationship between blood-lead levels and the 
conduct of certain renovation and remodeling activities. Phase II found 
a statistically significant association between increased blood lead 
levels and the number of days spent performing general renovation and 
remodeling activities, paint removal, and cleanup in pre-1950 buildings 
in the past month. Phase IV of the study found that persons performing 
renovation and remodeling activities in old historic buildings are more 
likely to have elevated blood lead levels than persons in the general 
population of renovation and remodeling workers.
    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 [mu]g/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 [mu]g/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 [mu]g/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 [mu]g/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 [mu]g/
ft\2\. After baseline cleaning procedures, the geometric mean was still 
66 [mu]g/ft\2\. When the work practices required by the final rule were 
used, the geometric mean was 30 [mu]g/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 [mu]g/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 [mu]g/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 [mu]g/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 [mu]g/sf for floors and 250 [mu]g/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 [mu]g/ft\2\, three resulted in levels less than 30 [mu]g/ft\2\, 
and three resulted in levels that were approximately 40 [mu]g/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 [mu]g/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.


0
 Therefore, 40 CFR chapter I is amended as follows:

PART 745--[AMENDED]

0
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.

0
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.
0
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.
0
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.
0
5. Section 745.83 is amended as follows:
0
a. Remove the definitions of ``Emergency renovation operations'' and 
``Multi-family housing.''
0
b. Revise the definitions of ``Pamphlet,'' ``Renovation,'' and 
``Renovator.''
0
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]

0
6. Section 745.84 is removed.


Sec.  745.85  [Redesignated as Sec.  745.84]

0
7. Section 745.85 is redesignated as Sec.  745.84.
0
8. Newly designated Sec.  745.84 is amended as follows:
0
a. Revise the introductory text of paragraph (a) and revise paragraph 
(a)(2)(i).
0
b. Revise the introductory text of paragraph (b) and revise paragraphs 
(b)(2) and (b)(4).
0
c. Redesignate paragraph (c) as paragraph (d).
0
d. Add a new paragraph (c).
0
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:
* * * * *
0
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.
0
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.
0
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]]

0
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.
0
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.
0
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.
0
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.
0
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.
* * * * *
0
17. Section 745.225 is amended as follows:
0
a. Revise paragraph (a).
0
b. Revise the introductory text of paragraph (b), revise paragraph 
(b)(1)(ii), and add paragraph (b)(1)(iv)(C).
0
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).
0
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).
0
e. Add paragraph (c)(14)(ii)(D)(6).
0
f. Add paragraphs (d)(6) and (d)(7).
0
g. Revise the introductory text of paragraph (e).
0
h. Remove the word ``activities'' wherever it appears in paragraph 
(e)(1).
0
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.
* * * * *
0
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.
* * * * *
0
19. Section 745.324 is amended as follows:
0
a. Revise paragraph (a)(1).
0
b. Remove the phrase ``lead-based paint training accreditation and 
certification'' from the second sentence of paragraph (b)(1)(iii).
0
c. Revise paragraph (b)(2)(ii).
0
d. Revise paragraphs (e)(2)(i) and (e)(4).
0
e. Revise paragraph (f)(2).
0
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.
0
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.
0
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.
* * * * *
0
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