[Federal Register Volume 76, Number 151 (Friday, August 5, 2011)]
[Rules and Regulations]
[Pages 47917-47946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19417]



[[Page 47917]]

Vol. 76

Friday,

No. 151

August 5, 2011

Part IV





Environmental Protection Agency





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40 CFR Part 745





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

Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Rules 
and Regulations

[[Page 47918]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2005-0049; FRL-8881-8]
RIN 2070-AJ57


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: As part of a settlement of litigation over certain post-
renovation cleaning requirements of the 2008 Lead Renovation, Repair, 
and Painting Program (RRP) rule, the EPA agreed to propose a number of 
revisions to the 2008 RRP rule that established accreditation, 
training, certification, and recordkeeping requirements as well as work 
practice standards for persons performing renovations for compensation 
in most pre-1978 housing and child-occupied facilities and to 
subsequently take final action on the proposed rule by July 15, 2011. 
The proposed rule published on May 6, 2010. EPA has decided not to 
promulgate dust wipe testing and clearance requirements as proposed. 
However, EPA is promulgating several other revisions to the RRP rule, 
including a provision allowing a certified renovator to collect a paint 
chip sample and send it to a recognized laboratory for analysis in lieu 
of using a lead test kit, minor changes to the training program 
accreditation application process, standards for e-learning in 
accredited training programs, minimum enforcement provisions for 
authorized state and tribal renovation programs, and minor revisions to 
the training and certification requirements for renovators. EPA is also 
promulgating clarifications to the requirements for vertical 
containment on exterior renovation projects, the prohibited or 
restricted work practice provisions, and the requirements for high-
efficiency particulate air (HEPA) vacuums. Today's action is EPA's 
final action on all aspects of the May 6, 2010 proposal.

DATES: This final rule is effective October 4, 2011.

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 at http://www.regulations.gov. 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, is not placed on the 
Internet and will be publicly available only in hard copy. Publicly 
available docket materials are available in the electronic docket at 
http://www.regulations.gov, or, if only available in hard copy, at the 
OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/
DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., 
Washington, DC. The EPA/DC Public Reading Room hours of operation are 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number of the EPA/DC Public Reading Room is 
(202) 566-1744, and the telephone number for the OPPT Docket is (202) 
566-0280. Hearing- or speech-impaired persons may reach the above 
telephone numbers through TTY by calling the toll-free Federal Relay 
Service at 1-800-877-8339. 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 technical information contact: 
Cindy Wheeler, 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) 566-0484; e-mail address: [email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; e-mail address: [email protected]. Hearing- or speech-
impaired persons may reach the above telephone number through TTY by 
calling the toll-free Federal Relay Service at 1-800-877-8339.

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, dust sampling, or dust testing. You may also be affected 
by this action if you perform lead-based paint inspections, lead hazard 
screens, risk assessments or abatements in target housing or child-
occupied facilities or if you operate a training program for 
individuals who perform any of these activities. ``Target housing'' is 
defined in section 401 of TSCA as any housing constructed prior to 
1978, except housing for the elderly or persons with disabilities 
(unless any child under age 6 resides or is expected to reside in such 
housing) or any 0-bedroom dwelling. Under this rule, a child-occupied 
facility is a building, or a portion of a building, constructed prior 
to 1978, visited regularly by the same child, under 6 years of age, on 
at least 2 different days within any week (Sunday through Saturday 
period), provided that each day's visit lasts at least 3 hours and the 
combined weekly visits last at least 6 hours, and the combined annual 
visits last at least 60 hours.
    Potentially-affected entities may include, but are not limited to:
     Building construction (NAICS code 236), e.g., single 
family housing construction, multi-family housing construction, 
residential remodelers.
     Specialty trade contractors (NAICS code 238), e.g., 
plumbing, heating, and air-conditioning contractors, painting and wall 
covering contractors, electrical contractors, finish carpentry 
contractors, drywall and insulation contractors, siding contractors, 
tile and terrazzo contractors, glass and glazing contractors.
     Real estate (NAICS code 531), e.g., lessors of residential 
buildings and dwellings, residential property managers.
     Child day care services (NAICS code 624410).
     Elementary and secondary schools (NAICS code 611110), 
e.g., elementary schools with kindergarten classrooms.
     Other technical and trade schools (NAICS code 611519), 
e.g., training providers.
     Engineering services (NAICS code 541330) and building 
inspection services (NAICS code 541350), e.g., dust sampling 
technicians.
     Lead abatement professionals (NAICS code 562910), e.g., 
firms and supervisors engaged in lead-based paint activities.
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult

[[Page 47919]]

the technical person listed under FOR FURTHER INFORMATION CONTACT.

II. Background

A. What action is the agency taking?

    On May 6, 2010, EPA proposed a number of revisions to the 2008 Lead 
Renovation, Repair, and Painting Program (RRP) rule that established 
accreditation, training, certification, and recordkeeping requirements 
as well as work practice standards for persons performing renovations 
for compensation in most pre-1978 housing and child-occupied facilities 
(Ref. 1). Specifically, EPA proposed requirements for dust wipe 
testing, clearance, allowing a certified renovator to collect a paint 
chip sample and send it to a recognized laboratory for analysis, minor 
changes to the training program accreditation application process, 
standards for e-learning in accredited training programs, minimum 
enforcement provisions for authorized state and tribal renovation 
programs, and minor revisions to the training and certification 
requirements for renovators. EPA has decided not to promulgate dust 
wipe testing and clearance requirements as proposed. However, EPA is 
promulgating several of the other proposed revisions to the RRP rule, 
including a provision allowing a certified renovator to collect a paint 
chip sample and send it to a recognized laboratory for analysis in lieu 
of using a lead test kit, minor changes to the training program 
accreditation application process, standards for e-learning in 
accredited training programs, minimum enforcement provisions for 
authorized state and tribal renovation programs, and minor revisions to 
the training and certification requirements for renovators. EPA is also 
promulgating clarifications to the requirements for vertical 
containment on exterior renovation projects, the prohibited or 
restricted work practice provisions, and the requirements for high-
efficiency particulate air (HEPA) vacuums. Today's action is EPA's 
final action on all aspects of the May 6, 2010 proposal.

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

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

C. What are the specific provisions of this action?

    1. Clearance and dust wipe testing requirements for renovations. As 
discussed in this unit, EPA has decided not to promulgate clearance and 
dust wipe testing requirements as proposed in May 2010 for certain 
renovations covered by the 2008 Lead Renovation, Repair, and Painting 
(RRP) rule (Ref. 2).
    a. Background. In promulgating the final 2008 RRP rule, EPA 
determined that renovation, repair, and painting activities, when 
performed in the presence of lead-based paint, create lead-based paint 
hazards. Section 402(c)(3) of TSCA directs EPA to revise its 
regulations governing lead-based paint inspections, risk assessments, 
and abatements (the Lead-based Paint Activities Regulations, or 
abatement regulations, Ref. 3) to apply to renovation and remodeling 
activities that create lead-based paint hazards. Accordingly, the 2008 
RRP rule established accreditation, training, certification, and 
recordkeeping requirements as well as work practice standards for 
persons performing renovations for compensation in most pre-1978 
housing and child-occupied facilities. Among other things, the work 
practice standards require renovation firms to follow specific 
requirements for containing the work area, refrain from using certain 
high-dust-generating work practices, and follow a specific cleaning 
protocol, including a step called ``cleaning verification,'' after 
concluding the paint-disturbing tasks involved in a renovation.
    As discussed in the preamble to the 2010 proposal, EPA is 
particularly concerned about dust-lead hazards generated by renovations 
because of the well-documented toxicity of lead, especially to younger 
children. For a more detailed discussion of the health effects of lead 
exposure, refer to information in the 2010 proposal (Ref. 1) and the 
2008 RRP final rule (Ref. 2).
    One of the more difficult issues in the 2008 RRP rulemaking was the 
issue of determining when a renovation work area has been properly 
cleaned and is ready for reoccupancy. After a lead-based paint 
abatement project, EPA's Lead-Based Paint Activities Regulations 
require the abatement contractor to achieve clearance. This means that 
the contractor must demonstrate, through dust wipe testing, that dust 
lead levels remaining in the abatement work area are below the 
clearance levels established in the 2001 rulemaking entitled 
``Identification of Dangerous Levels of Lead'' under section 403 of the 
Toxic Substances Control Act (Ref. 4). Dust wipe samples for clearance 
purposes must be collected by a certified individual and analyzed by an 
entity recognized under the National Lead Laboratory Accreditation 
Program (NLLAP).
    When promulgating the 2008 RRP rule, EPA considered requiring a 
similar process after renovations, but for various reasons, did not do 
so. EPA did not interpret its statutory mandate under TSCA section 
402(c)(3) as simply expanding the scope of the Lead-based Paint 
Activities Regulations to also cover renovation activities. Rather, EPA 
stated, in the final 2008 RRP rule, its belief that Congress intended 
for EPA to make revisions to those existing regulations to adapt them 
to a different set of activities and a very different regulated 
community. In establishing the cleaning element of the work practice 
requirements for renovations, EPA primarily relied on the results of 
two studies, the ``Electrostatic Cloth and Wet Cloth Field Study in 
Residential Housing'' (Ref. 5) and the ``Characterization of Dust Lead 
Levels after Renovation, Repair, and Painting Activities'' (the ``Dust 
Study,'' Ref. 6) to determine that the full suite of RRP work practice 
requirements, including containment, cleaning, and cleaning 
verification, was effective at minimizing exposure to lead-based paint 
hazards created by renovation, repair, and painting activities.
    EPA also considered various other factors as well as issues raised 
by commenters. Among these were the differences between abatement and 
renovation, the costs of dust wipe testing and clearance, the potential 
delay in obtaining results, and the likelihood that renovation firms 
would become liable for pre-existing dust-lead hazards. Abatements have 
only one purpose, to permanently eliminate lead-based paint or lead-
based paint hazards, while renovations are performed for many reasons 
that often have nothing to do with lead-based paint. Concerns about the 
costs of dust wipe testing and clearance were brought to EPA's 
attention during stakeholder input opportunities provided by EPA before 
the proposed RRP rule was issued in 2006 and echoed by commenters on 
the 2006 proposed RRP rule. If EPA had required dust wipe testing and 
clearance after every renovation project, it would have made up a 
significant portion of the cost of smaller projects. In addition, dust 
wipe testing results may not be available for several days. If EPA had 
required traditional abatement-style clearance after renovations, the 
work area would not be able to be re-occupied while waiting for the 
laboratory results.

[[Page 47920]]

Commenters also noted that requiring clearance after renovation jobs 
could, in some instances, result in the renovation firm being held 
responsible for abating all dust-lead hazards, including such hazards 
that may have existed in the area before the renovation commenced.
    Other commenters on the 2006 proposed RRP rule thought that 
renovation work areas ought to be tested and cleared for re-occupancy 
in the same way that abatement work areas are cleared through the 
clearance process, including dust wipe testing. Many commenters 
believed that renovation firms should be required to demonstrate that 
no dust-lead hazards had been left behind in the work area. These 
commenters contended that the only effective way to do this is through 
dust wipe testing and clearance. While EPA understood the issues raised 
by these commenters, and agreed with some of the points that they made, 
EPA remained convinced that the suite of RRP work practices would be 
practical for renovation firms to implement while effectively 
minimizing exposure to dust-lead hazards created by renovations. The 
RRP work practices are, in essence, requirements to ensure that 
renovators undertake traditional renovation activities--e.g., removal 
or modification of existing surfaces, containment and cleanup of dust 
and debris, and ensuring the job site is cleaned up--in a lead-safe 
way. EPA believes the RRP rule effectively minimizes exposure to 
hazards generated by renovation activities without imposing practices 
and disciplines that are outside the scope of traditional renovation 
activities. More information on the comments received and EPA's 
decisions can be found in the preamble to the final 2008 RRP rule (Ref. 
2).
    b. 2010 Proposal. Based on additional stakeholder input received 
after the final rule was issued, and an August 2009 agreement entered 
into with several environmental and children's health advocacy groups 
in settlement of their lawsuit challenging the final 2008 RRP rule, EPA 
agreed to consider whether some of the decisions made in 2008 with 
regard to dust wipe testing and clearance should be modified.
    Accordingly, on May 6, 2010, EPA proposed to require dust wipe 
testing after many renovations covered by the RRP rule (Ref. 1). Under 
the 2010 proposal, dust wipe testing would have been required on 
uncarpeted floors, windowsills, and window troughs in the work area 
after the following types of interior renovations:
     Use of a heat gun at temperatures below 1100 degrees 
Fahrenheit.
     Removal or replacement of window or door frames.
     Scraping 60 ft\2\ or more of painted surfaces.
     Removing more than 40 ft\2\ of trim, molding, cabinets, or 
other fixtures.
    After these renovations, the renovation firm would have been 
required to collect dust wipe samples and have them analyzed for lead 
content by an entity recognized under NLLAP. The renovation firm would 
then have been required to provide these results to the owners and 
occupants of the renovated property.
    For another subset of jobs involving demolition or removal of 
plaster through destructive means or the disturbance of paint using 
machines designed to remove paint through high-speed operation, such as 
power sanders or abrasive blasters, EPA proposed to require the 
renovation firm to achieve clearance. This would have involved a 
demonstration, through dust wipe testing, that dust-lead levels 
remaining on uncarpeted floors, windowsills, and window troughs in the 
work area were below regulatory clearance levels. These clearance 
levels would have been identical to the clearance levels established 
for the lead-based paint abatement program, which are codified at 40 
CFR 745.227(e)(8)(viii), i.e., 40 [mu]g/ft\2\ on floors, 250 [mu]g/
ft\2\ on interior windowsills, and 400 [mu]g/ft\2\ on window troughs, 
based on wipe samples. These additional requirements in the 2010 
proposal were designed to ensure that lead-based paint hazards 
generated by renovation work are adequately cleaned after renovation 
work is finished and before the work areas are re-occupied.
    c. This final rule. Maintaining the distinction between abatement 
and renovation activities has been an important issue throughout the 
rulemaking process for the 2008 RRP rule. As discussed in the preamble 
to the 2008 RRP rule, abatements and renovations are performed by 
different contractors for different purposes, although similar 
activities, such as window replacements, may be involved. 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 
the clearance process. 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. In 
contrast, renovations other than interim controls are performed for 
reasons unrelated to lead-based paint or lead-based paint hazards. 
Renovations may be performed while the property is occupied or 
unoccupied, but occupants do not typically relocate pending the 
completion of the project.
    EPA did not design or intend the RRP rule to address cleanup of 
pre-existing dust-lead hazards. While the cleaning requirements of the 
RRP rule will, in some cases, have the ancillary benefit of removing 
some pre-existing dust-lead hazards, the cleaning requirements were 
designed to effectively clean-up lead-based paint hazards created 
during renovation activities without changing the scope of the 
renovation activity itself. Accordingly, the RRP rule does not require 
cleaning of dust or any other possible lead sources in portions of 
target housing or child-occupied facilities beyond locations in and 
around the work area. Nor does the RRP rule require the replacement of 
carpets in the area of the renovation or the refinishing or sealing of 
uncarpeted floors. The approach in the RRP rule was designed to address 
the lead-based paint hazards created during the renovation while not 
requiring renovation firms to remediate or eliminate hazards beyond the 
scope of the work they were hired to do.
    In addition, EPA has interpreted practicality in implementation to 
be an element of the statutory directive to take into account 
effectiveness and reliability. As discussed in the preamble to the 
final 2008 RRP rule, EPA believes that, given the highly variable 
nature of the regulated community, the work practices required by the 
RRP rule should be simple to understand and easy to use. EPA is 
cognizant of the fact that the RRP rule applies to a range of 
individuals from day laborers to property maintenance staff to master 
craftsmen performing a 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.
    The 2010 proposal for this rule was EPA's attempt to explore 
whether clearance and dust wipe testing requirements should be added to 
the

[[Page 47921]]

RRP rule to provide additional protection for some renovations. EPA's 
intention was to do this without generally holding renovation firms 
responsible for abating pre-existing dust-lead hazards or creating 
requirements that would impair the overall reliability and 
effectiveness of the work practice requirements.
    EPA received over 300 comments on its 2010 proposal. Members of the 
regulated community and other industry commenters were generally 
concerned that EPA had upset the balance it had struck in the 2008 RRP 
rule, arguing that a dust wipe testing or clearance requirement would 
have the effect of holding renovation firms responsible for pre-
existing hazards, whether directly by regulation, in the case of the 
proposed clearance requirements, or indirectly by requiring firms to 
provide information on post-renovation dust lead levels to the property 
owner and occupant. While there was little support for dust wipe 
testing alone, commenters that supported the 2010 proposal generally 
thought that a clearance requirement should be imposed and expanded to 
most, if not all, renovations.
    After carefully weighing the issues at stake and considering the 
concerns raised by commenters, and as explained in greater detail 
below, EPA has concluded that, on balance, the information before the 
Agency does not support imposing a dust wipe testing or clearance 
requirement on renovations. In particular, EPA is convinced that the 
work practices established in the 2008 RRP rule are reliable, 
effective, and safe, and that imposing a dust wipe testing or clearance 
requirement is unwarranted.
    Almost all of the commenters were opposed to the proposed 
provisions requiring only dust wipe testing after certain renovations. 
Members of the regulated community and other industry commenters argued 
that a dust wipe testing requirement would have the effect of holding 
renovation firms responsible for pre-existing hazards, albeit 
indirectly, by requiring firms to provide information on post-
renovation dust lead levels to the property owner and occupant. This 
requirement would also have the effect of adding an element that is not 
generally considered a renovation activity, i.e., taking samples for 
laboratory analysis, and indeed, would have to be performed by a third 
party or only after a renovator received training in a separate and 
distinct discipline--either as a dust wipe sample technician or a lead-
based paint inspector. In addition, many argued that the Dust Study 
generally shows that the RRP work practices are effective at minimizing 
occupant exposure to dust-lead hazards created by renovations, so 
additional dust wipe testing or clearance requirements are unnecessary. 
These commenters noted that this is particularly true for the 
renovations for which EPA proposed to require only dust wipe testing, 
because those renovations were specifically tested in the Dust Study. 
In addition, commenters suggested that the categories of jobs for which 
dust wipe testing or clearance would be required were arbitrary and not 
based on sufficient evidence.
    Some commenters, including several states, also questioned the 
utility and value of dust wipe testing in the absence of a clearance 
requirement. Some were concerned that property owners and occupants 
would not understand the significance of the results of dust wipe 
samples that exceed the clearance standards or what steps they should 
take to protect themselves and their families. One argued that, in the 
absence of standards and required remedial actions, dust wipe testing 
would add expense and time to a renovation project without providing a 
concrete increase in protection for occupants. On the other hand, other 
commenters contended that the feedback provided by numerical dust wipe 
testing results would result in improved cleaning performance on the 
part of renovation firms. Some cited anecdotal evidence of poor 
contractor performance in other programs, such as the abatement 
program, in support of a contention that the RRP rule work practices 
would not be as effective at minimizing dust-lead hazards as they were 
in the Dust Study.
    Additionally, after considering previous interpretations of the 
statutory requirements and the comments received on this specific 
issue, EPA is not convinced that dust wipe testing in the absence of a 
clearance requirement would be a safe, reliable and effective work 
practice within the meaning of TSCA Section 402. As commenters noted, 
provision of dust wipe testing results in the absence of a clearance 
requirement does not by itself reduce the amount of dust generated 
during or left behind following a renovation. Furthermore, dust wipe 
testing results alone are not part of the information that must be 
provided at the pre-renovation stage under Section 406(b) of TSCA, and 
providing this type of information is not typically considered a 
renovation work practice. Again, the dust wipe testing would either 
have to be done by a third party or by a renovator who has taken a 
course and been trained in a completely different discipline.
    EPA believes these commenters raise valid considerations. In 
particular, EPA agrees that the Dust Study demonstrates that with 
respect to these very activities, the suite of RRP work practices 
reliably addressed the hazards created by the renovation. In addition, 
although EPA attempted in its 2010 proposal to distinguish renovation 
activities that it thought warranted the addition of a dust wipe 
testing requirement from those that did not (and from those that 
warranted imposition of a clearance requirement), EPA acknowledges that 
its 2010 proposal lacked a strong basis for drawing these lines--a 
point made by many commenters. While some commenters urged the point 
that dust wipe testing would encourage better cleanup, and provided 
anecdotal support for that view, EPA has no record basis to judge the 
likelihood or frequency of this potential impact. This logic could 
potentially lead to requiring dust wipe testing for all jobs--a 
significant change in the existing rule that EPA is not prepared to 
make without better supporting evidence. Accordingly, upon the 
information before it, the Agency does not believe that a dust testing 
requirement alone is warranted. EPA notes that homeowners can arrange 
to have dust wipe testing done as part of a renovation (or at any time) 
if they would like information about dust-lead levels in their homes. 
EPA also notes that property owners can contractually elect clearance 
testing at the completion of a project. EPA's Web site has a page 
homeowners can use to locate certified lead inspection and abatement 
professionals and accredited training providers in their state (http://www.epa.gov/lead/pubs/locate.htm).
    EPA also proposed to require that renovation firms achieve 
clearance for a subset of jobs involving demolition or removal of 
plaster through destructive means or the disturbance of paint using 
machines designed to remove paint through high-speed operation, such as 
power sanders or abrasive blasters. Nonetheless, EPA remained concerned 
about promulgating a requirement that could make renovation firms 
responsible for pre-existing conditions and fundamentally change the 
scope of the renovation activity itself. Therefore, to avoid making 
renovation firms replace carpets or refinish floors when they were not 
hired to do so, EPA proposed to allow a renovation firm to stop after 
two failed dust wipe tests on a particular surface if the firm was not 
hired to refinish or replace that surface.
    EPA was particularly concerned about these types of jobs because it 
had evidence that the work practices were not effective when machines 
designed

[[Page 47922]]

to remove paint through high speed operation were operated without HEPA 
shrouds and created large quantities of dust. EPA was concerned that 
even if such machines were equipped with HEPA shrouds, the RRP work 
practices may not be effective at minimizing exposure to lead hazards 
created by the renovation. Additionally, EPA stated its belief that 
dust created by the demolition or removal of plaster was similarly 
difficult to clean and therefore the RRP work practices might not be 
effective at minimizing exposure to lead hazards created by the 
renovation.
    With respect to the proposed clearance requirements, commenters 
generally fell into two camps. Commenters who were in ``favor'' of the 
2010 proposal nonetheless generally argued that the proposed clearance 
requirements should be expanded to cover most if not all renovation 
activities because clearance is the only method to ensure that no lead 
hazards remain upon the completion of a renovation job. Commenters who 
opposed any type of clearance requirement argued again that it erased 
the distinction between renovations and abatements and made renovation 
firms responsible for pre-existing conditions. These commenters also 
questioned the relevance of the studies EPA cited in support of its 
2010 proposal to require clearance after renovations involving 
demolition or removal of plaster through destructive means or the 
disturbance of paint using machines designed to remove paint through 
high-speed operation. The cited studies include EPA's Environmental 
Field Sampling Study (EFSS, Ref. 7) and studies examining the 
effectiveness of HEPA exhaust control on power tools (Ref. 8). Many of 
the HEPA exhaust control studies addressed dusts not typically created 
during renovations regulated by the RRP rule, such as crystalline 
silica dust resulting from the grinding of concrete. Others addressed 
surfaces and surface coatings not typically encountered during 
renovations covered by the RRP rule; one involved paint removal from 
automobiles. Notwithstanding EPA's 2010 proposal and requests for 
comment, EPA did not receive any additional information or data with 
respect to the dust or hazards created by these activities. Finally, on 
both sides of the issue, commenters did not favor the proposed 
provision allowing renovation firms to stop after two failed dust wipe 
tests, and, although some alternative suggestions were offered, none 
effectively addressed the competing considerations of occupant 
protection and not expanding the scope of the renovation work.
    EPA recognizes that imposing a clearance requirement would be a 
departure from the balance struck in the RRP rule with respect to the 
distinction between abatement and renovations. Accordingly, in EPA's 
judgment, the Agency should be in a position to conclude with a fair 
amount of certainty that doing so was necessary in light of its 
obligation to promulgate work practices that take into account 
reliability, effectiveness, and safety. Here, EPA acknowledges that it 
does not have data to support its concern that dust created by 
destructive demolition of plaster may be similar in nature to dust 
generated by machines designed to remove paint through high speed 
operation, and thus would have the potential to overwhelm the RRP 
cleaning protocol. EPA also recognizes that the data on the efficiency 
of HEPA is only suggestive that there might be an issue concerning 
these practices. Again, the studies EPA reviewed suggested that HEPA 
exhaust control could reduce the airborne dust levels by 90-95%. As 
commenters pointed out, it is not clear the results of these studies 
are applicable to the home renovation setting, given the differences 
between the surfaces and paints in residential settings and the 
surfaces and paints involved in the studies. Even if the results were 
applicable, there is no direct evidence that the RRP lead safe work 
practices could not reliably address the dust hazards created by the 
use of such power tools. Having received no additional information in 
this regard, EPA has determined that, among other things, the available 
information does not support a clearance requirement. Nevertheless, as 
discussed further in Unit II.C.7. of this preamble, EPA is adding a 
requirement that power tools be operated so that no visible dust or 
release of air occurs outside of the shroud or containment system. This 
requirement will work to mitigate the concerns EPA had with respect to 
the efficiency of power tool dust collection systems and the 
possibility that such tools might overwhelm the containment and 
specialized cleaning protocols of the RRP work practices.
    In an effort to ensure that the proposed clearance requirement 
would not typically result in holding renovation firms responsible for 
abating pre-existing dust-lead hazards, EPA included a provision to 
allow firms to stop the clearance procedure after two failed clearance 
tests on a particular surface unless they had also contracted to 
refinish the surface. Upon further reflection, EPA is concerned about 
the potential ineffectiveness of this effort, because it would likely 
still result in some renovation firms having to clean up pre-existing 
dust-lead hazards. At the same time, the proposed provision would not 
result in the certainty regarding elimination of dust-lead hazards that 
is the defining characteristic of a clearance requirement. In addition, 
the practical effect of such a provision is that the proposed clearance 
requirement would, in fact, often result in a dust wipe testing 
requirement. As such, it raises many of the same issues and concerns 
that ultimately persuaded EPA not to promulgate just dust wipe testing 
requirements.
    Furthermore, as stated above, EPA does not believe the record 
before it strongly supports the line-drawing in its 2010 proposal, 
which would have resulted in a clearance requirement for some 
renovations, a dust wipe testing requirement for others, and no testing 
for the rest of the renovations covered by the RRP rule.
    In revising the abatement regulations to apply to renovations, EPA 
has sought to keep the renovation requirements relatively simple and 
easy to apply, while attaining the overall objective of minimizing 
exposure to dust-lead hazards generated by renovation activities. EPA 
is concerned that the proposed three-tier system would add a level of 
complexity to the rule that is undesirable. While EPA could potentially 
draw different lines in this final rule, or promulgate a requirement 
that all jobs achieve clearance, EPA does not believe it has a strong 
basis to do so.
    The combination of these factors has convinced EPA that imposing a 
clearance requirement is unwarranted. The best evidence that EPA has of 
the effectiveness of the work practice standards is the Dust Study, and 
it demonstrates that overall the full suite of RRP work practices is 
effective at minimizing exposure to dust-lead hazards created by 
renovations. Without more, EPA is unable to conclude that the RRP work 
practice promulgated in 2008 should be significantly altered.
    Additionally, a variety of commenters, including industry 
representatives and some states, suggested that EPA had issued its 2010 
proposal to require dust wipe testing and clearance too soon after 
promulgation of the 2008 RRP rule. At the time that the 2010 proposal 
was issued, full implementation of the 2008 RRP rule had only just 
begun. Commenters contended that renovation firms were still in the 
process of working through how to achieve

[[Page 47923]]

compliance with the rule on a daily basis and that EPA should wait to 
add new requirements until firms were generally comfortable with the 
requirements promulgated in 2008. Commenters also argued that EPA 
should not make a determination that additional requirements are needed 
without first carefully assessing the status and impact of the existing 
RRP rule when fully implemented. EPA agrees with the general principle 
expressed by these commenters--that it is premature to impose 
significant additional work practice requirements for renovations 
already covered by the RRP rule, particularly given the information 
before the Agency. EPA also agrees that many renovation firms are still 
determining what the RRP rule requires from them on renovation 
projects. EPA also acknowledges that there are practical implementation 
issues with promulgating a significant change so soon after thousands 
of renovators have become certified renovators, and have taken the 
required training, which did not include information on the proposed 
dust wipe testing or clearance requirements.
    Some commenters suggested that EPA concentrate on RRP education and 
outreach at this time, rather than on additional requirements. EPA 
agrees that outreach and education on lead poisoning in general, and 
the link between renovations and increased blood lead levels in 
particular, continues to be important. As part of the RRP program's 
Lead-Safe Certified media campaign, EPA developed and made available to 
the public outreach materials aimed at both contractors and consumers. 
The materials include a Public Service Advertising (PSA) advertisement 
aimed at contractors, banners for Web sites, sample articles for 
magazines, newsletters or other publications to help inform contractors 
about the rule, post cards and buck slips to stuff into mailers, as 
well as an informational brochure about the rule for building managers. 
EPA has also developed fact sheets about the RRP rule that hardware or 
paint supply stores can hand out to their customers to inform them of 
the regulatory requirements. All of this information is available to 
the public on EPA's Web site at http://epa.gov/lead/pubs/lscp-press-materials.htm.
    The Agency has also developed outreach materials for consumers in 
order to build demand for lead-safe certified firms among the public. 
The consumer outreach materials include consumer print advertisements, 
PSA radio advertisements in English and Spanish, and a fact sheet about 
the RRP rule that contractors can provide to consumers to inform them 
about the advantages of hiring lead-safe renovation firms. The consumer 
outreach materials are also downloadable from EPA's Web site at http://epa.gov/lead/pubs/lscp-consumers.htm.
    Finally, in an effort to raise awareness of the consequences of 
lead poisoning among parents and pregnant women who live in homes built 
before 1978, the Coalition to End Childhood Lead Poisoning, EPA and HUD 
joined the Ad Council in April 2010 to launch a national multimedia PSA 
campaign. As stated in the PSA campaign press release, the most common 
pathways for lead poisoning are deteriorating lead-based paint (on 
older windows, doors and trim, or walls) or improperly-performed 
renovation, repair and painting activities that cause paint to chip, 
peel, or flake.
    EPA will continue to evaluate and consider additional outreach and 
educational opportunities to improve property owner and occupant 
understanding of dust-lead hazards created by renovations. EPA also 
will continue to monitor implementation of the RRP rule. If future 
information, studies, or data indicate that the existing RRP rule work 
practices are not reliable, safe, and effective, EPA will consider 
whether additional requirements should be proposed.
    2. Elimination of provision allowing clearance in lieu of cleaning 
verification. In the 2010 proposal, EPA proposed to eliminate the 
existing provision that allows renovation firms to skip the cleaning 
verification part of the mandatory cleaning protocol if another 
Federal, State, or local law or regulation, or the contract between the 
renovation firm and the property owner requires the renovation firm to 
use qualified entities to perform dust wipe testing and requires the 
renovation firm to achieve clearance. The rationale for eliminating 
this provision was based on the fact that, as discussed in the preamble 
to the 2010 proposal and the preamble to the 2008 RRP final rule, 
cleaning verification is an integral part of the whole suite of RRP 
work practices. The Dust Study demonstrates that these practices, when 
observed as a whole, are effective at minimizing exposure to dust-lead 
hazards generated by renovations.
    EPA received only a handful of comments on this aspect of the 2010 
proposal. Commenters thought that removing this provision from the RRP 
rule would make the rule inconsistent with the HUD regulations or State 
or local laws. Some believed that requiring both cleaning verification 
and clearance was unnecessarily burdensome, and pointed out that 
persons trained in lead-safe work practices had been achieving 
clearance without cleaning verification for a number of years now. 
While EPA does not agree with all of these assertions, EPA does agree 
that it is unnecessary to require renovation firms who must achieve 
clearance to follow the specific cleaning verification protocol. After 
all, these firms must continue to clean until they achieve the 
clearance standards. As discussed in the preamble to the 2010 Proposal, 
and mentioned by some commenters specifically in reference to this 
provision, contractors who receive the regular feedback provided by a 
clearance requirement have learned how to clean so that they typically 
achieve clearance on the first attempt. Specifically, in its Evaluation 
of the HUD Lead-Based Paint Hazard Control Grant Program (Ref. 10), HUD 
noted that the rate of passing initial clearance was associated with 
repetition of lead hazard control activities. Therefore, EPA is 
retaining the provision that allows the cleaning verification step to 
be skipped if the renovation firm must also achieve clearance. However, 
EPA believes that renovation firms whose projects are subject to 
clearance only as a result of contractual requirements are less likely 
to gain the repetitive experience of cleaning sufficiently so as to 
meet clearance with few cleaning cycles, so EPA encourages property 
owners who include clearance in their renovation contracts to also 
require renovation firms to perform cleaning verification. EPA also 
notes that States and Tribes are free to include both clearance and 
cleaning verification in their laws and regulations.
    3. Paint chip sample collection. In May 2010, EPA proposed to give 
certified renovators another option for determining whether lead-based 
paint is present on components to be affected by a renovation. This 
option would allow certified renovators to collect paint chip samples 
from components to be affected by a renovation instead of using test 
kits to test the paint on the components. The samples would be required 
to be sent to an entity recognized under the NLLAP for analysis. In 
issuing this 2010 proposal, EPA reasoned that it would be easy to teach 
certified renovators to collect paint chip samples in the renovator 
course and this would provide maximum flexibility for certified 
renovators and renovation firms.
    EPA received a number of comments on this part of its 2010 
proposal. Some commenters supported this option

[[Page 47924]]

because they felt that it is easy to properly collect a paint chip 
sample, and they agreed that this would provide additional needed 
flexibility for certified renovators and renovation firms. One 
commenter stated that, as a homeowner, he had been instructed by an 
NLLAP laboratory over the telephone on how to properly collect a paint 
chip sample and forward it to the laboratory for analysis. This 
experience led him to believe that it would be feasible to include in 
the renovator course instruction on how to collect a paint chip sample 
and forward it for analysis. Other commenters did not support this 
aspect of the 2010 proposal because they believe that only certified 
inspectors or risk assessors should be permitted to collect paint chip 
samples or make determinations about the presence or absence of lead-
based paint. Several noted that this would conflict with State laws 
that prohibit anyone other than a certified inspector or risk assessor 
from sampling for lead-based paint. Some commenters expressed concern 
about the length of the renovator course, and the ability to add the 
additional information on paint chip collection, including information 
on chain-of-custody issues and laboratory submission procedures, 
without lengthening the course beyond 8 hours. Others noted that 
renovators are already being taught many of the necessary skills during 
instruction on how to properly use test kits.
    Because renovator training courses are already required to include 
training in how and where to use test kits, and the associated 
recordkeeping requirements, EPA agrees with those commenters who 
believed that it would take very little additional time to also provide 
renovators with specific training in how to collect a chip sample and 
submit it for analysis. The selection of locations to test and the 
recordkeeping requirements would be identical whether test kits or 
paint chip sampling is used, except that the laboratory report would 
also have to be maintained along with the records associated with the 
renovation. EPA also agrees with those commenters who thought that this 
option would provide additional important flexibility. EPA is 
promulgating the proposed option allowing certified renovators to 
collect paint chip samples from painted components that will be 
disturbed by a renovation and submit those samples to an NLLAP-
recognized entity for analysis. EPA will modify the model certified 
renovator training course to add the necessary information on sample 
collection, chain-of-custody, and laboratory submission procedures. One 
commenter wondered how renovators who have already taken the training 
to become certified would learn about this option and how to use it. 
EPA will post the information developed for the renovator training 
course on its Web site. EPA will also e-mail this information to 
certified renovation firms that provided an e-mail address on their 
certification applications. As pointed out by several commenters, paint 
chip sample collection, by itself, is a relatively simple thing to 
learn and EPA believes that certified renovators who have already been 
trained in how to properly use a test kit will be able to learn how to 
properly collect a paint chip sample and submit it to an NLLAP-
recognized entity from the material EPA posts on its Web site.
    At least one commenter pointed out that EPA would also have to 
modify the recordkeeping requirements to accommodate this option and 
include information specific to paint chip sample collection, such as 
component and location tested, identity of the NLLAP entity analyzing 
the samples, and the sample results. Accordingly, EPA is modifying 40 
CFR 745.86(b)(1) to add a new subparagraph (iii) that requires records 
pertaining to paint chip sample collection and analysis, including a 
description of the components that were sampled, and the locations 
sampled, the name and address of the NLLAP-recognized entity performing 
the analysis, and the results for each sample. EPA is also modifying 40 
CFR 745.86(b)(6) to include a certification by the certified renovator 
that, if paint chip samples were collected, that the samples were 
collected from the components in the locations specified, that the 
samples were submitted for analysis to the identified NLLAP-recognized 
entity, and that the sample results were as specified.
    This option does not make certified renovator the equivalent of a 
certified lead-based paint inspector. Certified renovators must still 
test each affected component, they are not permitted to exclude 
components based on similar painting histories or perform random paint 
sampling in multi-unit buildings. Just as with the current provisions 
for test kit use, in those states that do not permit persons other than 
certified inspectors or risk assessors to sample or test for lead-based 
paint, certified renovators will not be able to exercise this option.
    4. Training provider accreditation. In May 2010, EPA proposed a 
number of minor changes to the training provider accreditation 
provisions. EPA received very little public comment on these proposed 
amendments, and EPA is promulgating these amendments as proposed.
    a. Documentation of personnel qualifications. The first of these 
minor amendments involves submission of documentation of training 
program manager and principal instructor qualifications along with 
training provider applications for accreditation. Training providers 
who wish to provide renovator, dust sampling technician, or lead-based 
paint activities training for Federal certification purposes must apply 
for and receive accreditation from EPA. To become accredited, a 
provider must employ a training program manager as well as principal 
instructor(s) who meet certain education, training and work experience 
requirements. The training provider must indicate on its application 
for accreditation that the training program manager and principal 
instructor(s) meet these requirements; however, the 2008 RRP rule did 
not require documentation (e.g., resumes) regarding the qualifications 
of these individuals to be submitted to EPA. The Agency believes it is 
important to review this information when determining whether to 
approve a training provider application. When EPA reviews applications 
for accreditation, it is common for the Agency to request this 
documentation from training providers in order to verify that the 
training program manager and principal instructor(s) have the proper 
qualifications. Requesting this information takes time and can delay 
the review of an application. Therefore, the Agency will now require 
training providers to submit documentation regarding the qualifications 
of the education, training and work experience of training managers and 
principal instructors with their applications for accreditation. Only 
one commenter commented on this provision, expressing general support 
for the change.
    b. Submission of training course materials. EPA is also 
promulgating other proposed changes to the required materials that must 
be submitted along with an accreditation application. EPA received only 
one comment expressing general support for this proposed change. 
Specifically, to become accredited, a training provider must submit a 
copy of its training course materials with its application for 
accreditation for review by the Agency. If a training provider chooses 
to use the model course developed by EPA or a course approved by an 
authorized State or Indian Tribe, then the provider is not

[[Page 47925]]

currently required to submit the course materials with its application. 
Instead, the training provider indicates on its application that it 
will use the EPA model course or a course approved by an authorized 
State or Indian Tribe. Authorized States and Indian Tribes can have 
renovation or abatement programs that are significantly different from 
the EPA-administered program which would be reflected in their approved 
course materials. In these instances, a training course approved by the 
State or Indian Tribe may not be sufficient for the purposes of 
training someone on the requirements of the Federal program.
    Accordingly, the Agency proposed to require training providers who 
apply to EPA for accreditation and wish to use a course approved by an 
authorized State or Indian Tribe to submit the course materials for EPA 
review. EPA reasoned that this will give the Agency the opportunity to 
identify and address any significant differences between the 
requirements of EPA and the authorized program that may appear in the 
course so the Agency can ensure that EPA-accredited training providers 
are using appropriate course materials.
    EPA is promulgating this provision as proposed. This provision only 
applies to those training providers who wish to use a training course 
approved by an authorized State or Indian Tribe that is different from 
the EPA model training course. Training providers wishing to use the 
EPA model courses need not submit those materials with their 
applications.
    c. Role of principal instructor. EPA is promulgating a proposed 
minor amendment involving a clarification of the role of principal 
instructors in teaching courses. The regulation, at 40 CFR 
745.225(c)(3), states that principal instructors are responsible for 
the organization of their courses and oversight of the teaching of all 
course material. The regulations also define ``principal instructor'' 
as ``the individual who has the primary responsibility for organizing 
and teaching a particular course.'' Nonetheless, the rule also allows 
training program managers to designate experts in a particular field 
(e.g., doctors or lawyers) as guest instructors, on an as needed basis, 
to teach discrete portions of the course. EPA interprets these 
provisions to require a principal instructor to be present and 
primarily responsible for teaching the course, although guest 
instructors may be used to teach some portion(s) of the course. 
Principal instructors are also responsible for the quality of the 
instruction delivered by the guest instructors. To ensure that the 
regulation is clear on this point, EPA proposed to amend 40 CFR 
745.225(c)(3) to state that principal instructor(s) are primarily 
responsible for teaching the course materials and must be present to 
provide instruction (or oversight of portions of the course taught by 
guest instructors) for the course for which he has been designated the 
principal instructor. EPA received two comments on this provision, both 
supported the change, and one specifically stated a belief that having 
principal instructors present while guest lecturers teach would improve 
the content of many courses. EPA agrees with these commenters and EPA 
is promulgating this provision as proposed.
    d. Application amendments. EPA is promulgating as proposed another 
minor amendment involving a specific provision requiring training 
providers to amend their accreditation application whenever there is a 
change to the information presented in their most recent accreditation 
or re-accreditation application. The RRP rule includes requirements for 
amending the certification of a renovation firm. Firms must submit an 
amendment within 90 days of the date that a change occurs to 
information in its most recent application for certification or re-
certification. Examples of amendments include a change in the firm's 
name without transfer of ownership, or a change of address or other 
contact information. To amend its certification, a firm must submit an 
application, noting on the form that it was submitted as an amendment. 
The firm must complete the sections of the application pertaining to 
the new information, and sign and date the form. EPA has interpreted 
the training provider accreditation regulations to require accredited 
training providers to submit amended applications whenever there is a 
change to the information provided in the training provider's most 
recent application for accreditation or re-accreditation, including 
information regarding the training manager and any principal 
instructor(s) teaching courses offered by the training provider. 
However, the existing regulations do not specify a time limit for 
submitting an amendment, so EPA proposed to require training providers 
to submit amendments within 90 days of the date a change occurs to 
information in each provider's most recent application. As proposed, if 
the training provider does not amend its most recent accreditation 
application within the 90-day time period, it must stop providing 
training until the accreditation application is amended. EPA also 
proposed to approve or disapprove amendments for a new training 
manager, any new or additional principal instructors, or any new 
permanent training location within 30 days of the date EPA receives the 
amendment. This 30-day time period will give EPA time to check the 
qualifications of the training manager(s) or principal instructor(s) 
before the training manager begins managing or the principal instructor 
begins teaching a course. This 30-day time period also gives EPA time 
to verify the suitability of a new permanent training location by 
visiting the location. As proposed, the training provider would not be 
permitted to provide training under the new training manager or offer 
courses taught by any new principal instructor(s) or at the new 
training location until EPA either approves the amendment or 30 days 
has passed. EPA also proposed to clarify that no fee will be charged 
for accreditation application or certification amendments. EPA received 
no comments on this proposed amendment.
    Because qualified training managers and principal instructors are 
critical to ensuring effective training, it is important for EPA to 
have the ability to review their qualifications before they begin to 
provide training. If unqualified individuals provide training, it could 
be very difficult to determine whether the trainees received adequate 
training and resolve any concerns over the quality of the training. 
Requiring retraining would not only inconvenience the training 
provider, it would also be burdensome for the trainees themselves. 
Therefore, EPA is promulgating the 30-day review period for new 
training managers and principal instructors as proposed, with several 
modifications. The first relates to the calculation of the 30-day 
review period. EPA is clarifying that the 30-day period begins upon 
submission of a complete application for amendment. Thus, if the 
amendment involves a new training manager or principal instructor, the 
training provider must fill out the section of the application that 
identifies the training provider and the sections that pertain to the 
new training manager or principal instructor, sign the application, and 
include the individual's qualifications along with the application for 
amendment. If the application does not include these items, then the 
30-day review period would not begin until the missing information is 
submitted.
    In addition, in further reviewing this proposed provision, EPA has 
decided that additional flexibility would be beneficial for training 
providers. If the training provider wishes to use a

[[Page 47926]]

training manager or principal instructor who has already been reviewed 
by EPA as part of a successful application for training provider 
accreditation under 40 CFR 745.225, whether for that training provider 
or another, the training provider may do so on an interim basis without 
delay. The training manager or principal instructor must still meet the 
qualifications for the position as described in 40 CFR 745.225(c)(1)-
(2). If, within 30 days of the date that the training provider begins 
using such an individual as a new training manager or principal 
instructor, EPA determines that the individual should not be used in 
such a capacity, EPA will provide written notice to the training 
provider. The training provider must stop providing training under the 
new training manager or principal instructor upon receipt of written 
notice from EPA.
    With respect to new permanent training locations, EPA is also 
concerned that a poor choice of location could negatively affect the 
quality of training. For example, if a location is chosen that does not 
have a suitable surface for performing cleaning verification, trainees 
would be unable to experience actually doing, during the hands-on 
portion of the course, something that will be an important part of 
their responsibilities as certified renovators. However, EPA believes 
that the choice of training location does not, in most cases, have as 
big of an impact on the quality of training as the training manager or 
the principal instructor. During the accreditation process for new 
training providers, it has been EPA's practice to review the 
qualifications for each and every training manager and principal 
instructor named on an application. In contrast, where a training 
provider has identified multiple permanent training locations in its 
application, EPA has chosen to visit a sample of locations, rather than 
each and every location. In addition, EPA has been approving traveling 
training providers based on the criteria that the providers will use to 
select a training location, a demonstration of the hands-on training, 
and an examination of the equipment the providers plan to use in 
training. Therefore, EPA will allow training providers to use new 
permanent training locations on an interim basis for 30 days. If, 
during that 30 days, EPA determines that the location is not adequate, 
the training provider must stop using that location upon written notice 
from EPA.
    e. Hands-on training requirements. Another minor amendment involves 
the topics for which hands-on training is required in the renovator and 
dust sampling technician courses. The regulations at 40 CFR 745.225 
includes requirements and procedures that training programs must follow 
to become accredited in order to provide instruction in lead-based 
paint courses. Minimum requirements for training curricula are found in 
this section, which lists course topics that must be included in the 
different training courses with an indication of the topics that 
require hands-on instruction. However, EPA inadvertently omitted 
indicating which course topics required hands-on training for the 
renovator and dust sampling technician disciplines. Accordingly, EPA 
proposed to identify in 40 CFR 745.225(d) which topics in the renovator 
and dust sampling technician courses require hands-on training. In 
further clarification, EPA also proposed to add a sentence to 40 CFR 
745.225(e)(2) stating that refresher courses for all disciplines except 
project designer must include a hands-on component.
    EPA received several comments on this aspect of the 2010 proposal. 
Two commenters supported the proposed topics for hands-on training for 
renovators and dust sampling technicians. Another commenter wondered 
why report preparation would be a required hands-on topic for dust 
sampling technicians when it has never been a hands-on topic for the 
other disciplines that must prepare reports. While it is true that 
hands-on training in report preparation is not required for most lead 
training disciplines, it is required for the inspector discipline. 
Thus, certified inspectors and certified risk assessors, who must 
successfully complete both the inspector course and the risk assessor 
course, receive hands-on training in report preparation. EPA believes 
that report preparation for dust sampling technicians is likewise 
important enough to warrant hands-on training in how to do it properly. 
Accordingly, EPA is finalizing the required hands-on training topics as 
proposed. Renovator trainees must receive hands-on training in using 
test kits, renovation methods that minimize creation of dust and lead-
based paint hazards, containment and cleanup methods, and cleaning 
verification. Dust sampling technician trainees must receive hands-on 
training in dust sampling methodologies and report preparation.
    EPA received two comments specifically on the proposed addition of 
a statement that all refresher training courses, with the exception of 
the project designer refresher course, must include hands-on training. 
One commenter was an environmental advocacy group, the other an 
industry trade association. Neither commenter supported this aspect of 
the 2010 proposal; they thought that requiring hands-on training for 
renovator refresher courses would limit the availability of refresher 
training and increase costs unnecessarily. Both commenters thought that 
enough information could probably be conveyed in a distance learning or 
e-learning setting to warrant dispensing with the hands-on requirement 
for renovator courses. The environmental advocacy group pointed out 
that EPA's current model refresher training course for renovators 
contains two required hands-on skill sets--test kit usage and cleaning 
verification. This commenter felt that this was appropriate, given that 
previously-trained individuals are still taking advantage of the 
``grandfathering'' provision that allows them to successfully complete 
an accredited renovator refresher course to become certified 
renovators. Those individuals would not have had previous training in 
those two skills, so hands-on training would be necessary. However, 
once the grandfathering provision is no longer available, as discussed 
later in this section of the preamble, all certified renovators would 
have had hands-on training in these skills. While EPA agrees with this 
commenter that, for now, it is particularly important for renovator 
refresher courses to include hands-on training in test kit use and in 
cleaning verification, EPA disagrees that hands-on refresher training 
is unnecessary. A hands-on component for refresher courses will help 
ensure that certified renovators remain competent in the skills needed 
to comply with the RRP rule, including test kit use, containment, and 
cleaning (including cleaning verification). Therefore, EPA is 
finalizing the proposed amendment to 40 CFR 745.225(e)(2) that 
specifically states that hands-on training is required for all 
refresher courses except project designer. EPA plans to re-evaluate the 
renovator refresher course after the grandfathering provision sunsets, 
but before the currently-certified renovators are due for refresher 
training. At that time, EPA will consider whether hands-on training is 
still necessary and appropriate for renovator refresher training.
    f. E-learning. As stated in the 2010 proposal, Web-based training 
and other types of alternative training delivery are permitted under 
both the Lead-based Paint Activities Regulations and the RRP rule. An 
EPA model on-line

[[Page 47927]]

renovator course that may be used to deliver the classroom portion of 
the renovator course is available. While such alternative training 
delivery options cannot be used to deliver required hands-on training, 
EPA encourages training providers to make use of such options where 
appropriate to increase access to training and make it more affordable. 
Web-based training courses are considered separate courses and a 
separate application fee is required for each.
    EPA's model electronic training course contains certain basic 
administration and delivery requirements. These include assigning a 
unique identifier to each student, to allow the training provider to 
track student course progress and completion. In addition, there are 
knowledge checks for each chapter, which must be completed before the 
student can go on to the next chapter, and a final test for the 
electronic learning portion which consists of at least 20 questions. 
Finally, students must be able to save or print an uneditable copy of a 
record showing completion of the electronic learning portion of the 
course. In May 2010, EPA proposed to incorporate these requirements 
into 40 CFR 745.225 to ensure that all training providers wishing to 
use electronic learning for the classroom portions of lead-based paint 
courses are aware of these requirements and plan their course 
development accordingly. EPA requested comment on a variety of topics, 
including the number of questions in the course test and the score 
required to pass.
    EPA received several comments on this aspect of the 2010 proposal. 
Some commenters were concerned with verifying the identity of persons 
logging into e-learning courses. Several noted that, because it is 
impossible to verify with certainty the identity of persons completing 
online training, an in-person final course test is necessary to ensure 
that the trainee is adequately trained. In this final rule, EPA is 
amending 40 CFR 745.225(c)(6) to explicitly require e-learning training 
providers to assign a unique identifier to each student in order to 
track the student's progress through the course. EPA believes that this 
requirement, along with the existing requirement that the trainee 
participate in the hands-on training and take the final course test in 
person, will provide reasonable assurance that the same person has 
completed all of the portions of the course. In response to these 
commenters, EPA is modifying the regulations to specifically state that 
e-learning or other alternative delivery methods cannot be used for the 
hands-on training, the final course test, or the proficiency test, if 
one is given.
    Commenters also expressed concern that the EPA model online course 
could be completed in as little as one hour, which could mean that a 
person could become a certified renovator with only 3 hours of 
training. EPA disagrees with these commenters. The current model course 
posted on the EPA Web site is not a functioning course and does not 
contain the background learning management system (LMS) which tracks 
the student's progress and requires satisfactory completion of the 
knowledge checks and the final test. Therefore, the time it takes to 
page through the model course is not representative of the time it 
would take to successfully complete an accredited e-learning course. 
Assuming that 2 training hours are spent on hands-on training, 40 CFR 
745.225(c)(6)(vi) requires a minimum of six 50 minute training hours or 
5 hours of classroom time for renovators. This requirement applies 
equally to traditional classroom settings as well as to e-learning 
courses offered for accreditation. While EPA realizes that renovator 
trainees will not all proceed through an e-learning course at the same 
pace, an e-learning course offered for accreditation must be generally 
designed so that an average trainee takes approximately 5 hours to 
proceed through the course, including all of the knowledge checks and 
the course test.
    One commenter thought that EPA's proposed requirement of an 80% 
minimum passing score on the course test for the online course was too 
restrictive. Another commenter disagreed, reasoning that an 80% minimum 
passing score was reasonable but that a 100% passing score would be too 
restrictive, because it would likely result in students being penalized 
for poorly-worded questions or alternate interpretations, regardless of 
the state of the student's knowledge. This commenter thought that it 
was appropriate to have a higher passing score requirement for the e-
learning portion of a training course, because the student would have 
an opportunity to review the material and retake the test. EPA agrees 
with the second commenter. The 80% minimum passing score is intended to 
demonstrate mastery of the subject and lower scores do not achieve this 
goal. If students do not pass the test, they must review the material 
and try again. To ensure that, just as in conventional testing, 
students using electronic means to take the test do not receive 
feedback on their answers until after they complete and submit the 
test, the electronic testing provision at 40 CFR 745.225(c)(6)(viii)(D) 
explicitly prohibits such interim feedback, a feature contained in some 
Web sites.
    One commenter suggested that EPA consider separately accrediting 
entities that provide online training and entities that provide hands-
on training. The commenter argued that developing an online course is a 
capital-intensive project that requires a large number of trainees to 
recover the costs, so relatively few entities are likely to undertake 
online course development. In contrast, the commenter stated that the 
delivery of hands-on training must be more local and mobile, it 
requires a smaller capital investment, and each entity may have 
relatively few trainees. EPA recognizes that this may be the case, at 
least for now, while EPA is administering the RRP program in most 
States. However, this may change as more States become authorized and 
impose requirements for training that may differ from the EPA 
requirements. In any event, as the commenter notes, EPA has developed a 
streamlined process to allow accredited training providers to add an e-
learning component to their accreditation by using an already developed 
and accredited online course. This allows accredited training providers 
to offer online training without having to make a large capital outlay 
to develop a course. EPA continues to believe that the training 
provider who issues the final course completion certificate to a 
trainee, thus conferring certified renovator status on the trainee, 
must be responsible for ensuring that the student has completed all of 
the required training. EPA does not offer partial accreditations, or 
accreditation for a portion of a course.
    On a related topic, this commenter thought that it would be 
burdensome to require the hands-on training provider to maintain 
records of the specific times each student logged in to the online 
portion of the course, each student's progress, and completion data. 
The commenter believed that, in the case where the online provider and 
the hands-on provider are separate entities, working under a 
contractual agreement to present an entire training course, it would be 
relatively easy for the online provider to maintain the records. In 
contrast, the commenter thought that it would be much more burdensome 
for EPA to require that the hands-on provider download or otherwise 
take possession of these records. EPA disagrees with this commenter, 
because EPA believes that the amount of data associated with this 
particular requirement for each trainee is not substantial. However, if 
a particular

[[Page 47928]]

accredited training provider felt otherwise, the provider could 
contract with the provider of the online training to store the records. 
Although the accredited training provider would remain ultimately 
responsible for being able to produce those records, as long as the 
training provider is able to produce them in response to a request from 
EPA, EPA would consider the training provider in compliance with the 
recordkeeping requirements.
    One commenter provided a number of specific comments on EPA's 
proposed requirements for e-learning courses. First, the commenter 
thought that the requirement for knowledge checks for each module of 
the course was too inflexible, and that it could be difficult to 
determine what a module is for purposes of knowledge checks. The 
commenter suggested that EPA instead require periodic knowledge checks. 
EPA agrees with this comment and is promulgating a requirement for 
periodic knowledge checks equivalent to the number and content of the 
knowledge checks contained in EPA's model course. This would be 16-24 
knowledge checks over the entire course. This commenter also thought 
that the requirement that a student be able to generate an uneditable 
copy of an e-learning course completion certificate too stringent. The 
commenter pointed out that almost anyone reasonably familiar with 
computers could alter a secure PDF, image, or word processing file 
through the print function. EPA will add language to the proposed 
provision at 40 CFR 745.225(c)(6)(viii)(E) to clarify that EPA merely 
meant that the certificate must not be susceptible to easy editing. A 
secure PDF file would comply with these requirements. Allowing students 
to generate and print the course completion certificate provides them 
with reasonable certainty that they have completed the e-learning 
portion of the course before attempting the hands-on portion. EPA 
recommends that accredited training providers verify through other 
means, such as the e-learning progress records, that each student who 
completes the hands-on training has also completed the online portion 
of the course before training providers issue the final course 
completion certificate.
    g. Combined refresher courses. In the 2010 proposal, EPA requested 
comment on whether training providers should be allowed to provide a 
combined Abatement Worker/Renovator refresher course or a combined 
Abatement Supervisor/Renovator refresher course or both. After the 2008 
RRP rule was promulgated, EPA received input from the regulated 
community and others indicating that many abatement contractors are 
likely to also become certified renovation firms. If this is the case, 
it would be advantageous for such firms to be able to send their 
employees to combined refreshers so that the employees would more 
readily be able to keep up their dual certifications. EPA requested 
comment on the likelihood that this will be the case, and, if combined 
refreshers are desirable, whether the different certification time 
periods for individual abatement certification (3 years) and individual 
renovator certification (5 years) should be harmonized and, if so, how. 
EPA received two comments on this topic; both commenters supported the 
idea of combined refresher courses and thought they would provide 
increased flexibility for industry. One commenter thought that the 
certification time periods should be harmonized to 3 years for all 
disciplines because the commenter believed that 5 years was too long to 
go without a refresher. The other commenter did not think that 
harmonization was necessary, because the abatement worker or supervisor 
would just take the combined refresher every 3 years to meet the 
shorter certification periods in the Lead-based Paint Activities Rule. 
EPA agrees with these commenters that combined refresher courses may be 
beneficial. While the current regulations permit training providers to 
offer refresher courses sequentially, e.g., a 4-hour renovator course 
on the afternoon of one day, followed by an 8-hour worker course the 
next day, taking the courses sequentially would result in some 
duplication of training topics for persons certified as both renovators 
and abatement workers. On the other hand, EPA is not certain that 
appropriate refresher topics for both disciplines could be covered in a 
single 8-hour day. EPA plans to evaluate the content of its supervisor, 
worker, and renovator refresher courses to determine what an 
appropriate combined course length might be. Depending on the results 
of this evaluation, EPA will consider amending these regulations to 
establish course length requirements for combined refresher courses.
    h. Recordkeeping. Another amendment proposed in May 2010 involves 
recordkeeping requirements for training providers. Previously, training 
providers were required to keep training records for 3 years and 6 
months. This length of time was chosen because of the length of 
individual certification periods for lead-based paint activities, which 
can be as long as 3 years and 6 months including interim certification. 
However, the renovator and dust sampling technician certification 
periods are 5 years, with no interim certification. Therefore, in order 
to ensure that the training records from the previous training course 
are available for certified renovators and dust sampling technicians 
taking refresher courses, EPA proposed to increase the recordkeeping 
period applicable to these disciplines to 5 years. EPA received two 
comments on this aspect of the 2010 proposal, both commenters thought 
that the recordkeeping requirements for all disciplines should be 
increased to 5 years. These commenters thought it would be less 
confusing for training providers if there was one period applicable to 
all. One commenter pointed out that EPA had extended the certification 
period for renovators trained before April 22, 2010 to July 1, 2015, so 
the training records for those trainees ought to be kept for as long as 
their certification lasts. This commenter suggested that EPA require 
training records to be kept for 5 years or until the expiration of 
certification resulting from the training, whichever is longer. While 
EPA agrees that it may be easier for training providers to keep records 
for the same length of time regardless of the discipline, EPA does not 
believe that it is necessary to make this a requirement. Training 
providers who prefer to have one single recordkeeping process can 
always choose to maintain their records for 5 years across the board. 
Therefore, EPA is promulgating the increased recordkeeping requirement 
for providers of accredited renovator and dust sampling technician 
training as proposed. EPA also agrees with the commenter who suggested 
that there be a longer recordkeeping requirement for renovator training 
courses offered before April 22, 2010. Accordingly, EPA is also 
promulgating a requirement that records for renovator training courses 
completed before April 22, 2010 must be kept until July 1, 2015.
    i. Trainee photographs. EPA also proposed certain minimum standards 
for the trainee photographs that must appear on renovator and dust 
sampling technician course completion certificates. Accredited training 
programs are required to issue a course completion certificate for each 
person who passes a training course. A variety of information is 
required to be on the certificate including the name of the course, the 
name and address of the student, and contact information for the 
training program. Course certificates for renovators or dust sampling 
technicians must include a photograph of the

[[Page 47929]]

student, but the regulation does not include size requirements or other 
specifications for the photograph. Since publishing the 2008 RRP rule, 
the Agency has been asked if there is a minimum size for the 
photograph. EPA believes that it would be beneficial to have minimum 
standards for the photograph in order to ensure that the person in the 
photograph is recognizable. EPA proposed to require that the 
photographs on course completion certificates be an accurate and 
recognizable image of the trainee and at least one square inch in size. 
EPA also requested comments on whether the image quality requirements 
should be more specific, e.g., more quantitative. EPA received several 
comments on this provision. Commenters generally supported the proposed 
requirements, but did not favor additional requirements, such as 
quantitative requirements for image quality, as they were concerned 
about the burden associated with such additional requirements. EPA 
agrees with these commenters that the proposed requirements are 
sufficient. Therefore, EPA is promulgating the image quality 
requirements as proposed.
    j. Clarifying changes to 40 CFR 745.225. Finally, as stated 
previously, 40 CFR 745.225 includes requirements and procedures that 
training programs must follow to become accredited in order to provide 
instruction in renovator, dust sampling technician, and lead-based 
paint activities courses. The final 2008 RRP rule amended Sec.  745.225 
to cover persons who provide or wish to provide renovator or dust 
sampling technician training for the purposes of the RRP rule. There 
are some instances where the regulations do not specifically mention 
the renovator or dust sampling technician courses even though the 
regulations apply to those courses. For example, 40 CFR 745.225(c)(14) 
explains the requirements which a training provider must follow when 
submitting notification to EPA after the completion of a training. 
However, the conforming changes, i.e., to replace ``lead-based paint 
activities courses'' with ``renovator, dust sampling technician, and 
lead-based paint activities courses,'' were not made to every 
subparagraph even though all the requirements of that section apply to 
those courses. Consequently, EPA proposed to clarify that the 
requirements in 40 CFR 745.225 apply to renovator and dust sampling 
technician courses in addition to lead-based paint activities courses. 
EPA received one comment offering general support for these proposed 
revisions. EPA is promulgating these revisions as proposed.
    5. State and Tribal program authorization. Under the RRP rule, 
interested States, Territories, and Indian Tribes may apply for, and 
receive authorization to administer and enforce all of the elements of 
the RRP program. In May 2010, EPA proposed several changes to the State 
and Tribal program authorization regulations. The first was a 
clarification that State and Tribal programs do not need to include 
requirements for the accreditation of dust sampling technicians if they 
require dust sampling to be performed only by a certified inspector or 
risk assessor. EPA received only one comment relating to this proposed 
revision, and that commenter thought that EPA should require States and 
Tribes to allow dust sampling technicians to collect samples. However, 
EPA does not have the authority to prohibit States and Tribes from 
having a more stringent program than the EPA's, e.g., requiring more 
training for persons collecting dust wipe samples than EPA requires. It 
would not make sense for EPA to require States and Tribes to establish 
the dust sampling technician discipline if those trainees would not be 
allowed to perform any duties under State or Tribal law. Therefore, EPA 
is promulgating this change to the text of the regulation as proposed.
    Along these same lines, EPA proposed to add a provision requiring 
State or Tribal programs to have procedures and requirements for on-
the-job training of renovation workers who do not receive accredited 
training. EPA neglected to include such a provision in the 2008 RRP 
Rule. As with the dust sampling technician discipline, State and Tribal 
programs are only required to have these provisions if they permit on-
the-job training for renovation workers. If, for example, a State or 
Tribal program only allows certified renovators to perform renovation 
activities within a regulated renovation work area, then no provisions 
for on-the-job training would be required for that State or Tribal 
program. EPA received one comment generally supporting this change. EPA 
is promulgating this revision as proposed.
    EPA also proposed to amend the State and Tribal program 
requirements to clarify that both individuals and firms must receive 
certification. Only one comment was received on this topic, pointing 
out that EPA's proposed regulatory text at 40 CFR 745.326(e)(1) did not 
accomplish that objective. EPA agrees with this commenter, and has 
revised the regulatory text throughout this section accordingly to 
ensure that EPA's requirements are clear. EPA requires both renovators 
and renovation firms to be certified. A renovator becomes certified by 
successfully completing an accredited renovator training class. A 
renovation firm becomes certified by submitting an application to EPA, 
attesting that it and its employees will follow the work practice 
standards at 40 CFR 745.85 for conducting renovations, and paying a 
certification fee. EPA believes that, in order for a State or Tribal 
program to be at least as protective as EPA's program, the State or 
Tribal program must, at a minimum, require formal certification for 
renovation firms. States and Tribes may, but are not required to, 
formally certify renovators. The certified renovation firm is 
responsible not only for the behavior of its certified renovators but 
also for the other workers that have been trained by the certified 
renovators. Thus, the renovation firm is ultimately responsible for the 
proper performance of the renovation. Requiring formal certification 
for renovation firms facilitates compliance monitoring and enforcement 
for EPA as well as for State and Tribal programs. A program that only 
required formal certification for individual renovators and not firms 
would not be as protective.
    In addition, as pointed out by several State commenters, EPA 
inadvertently included the wrong provisions in the proposed regulatory 
text for revising authorized State and Tribal programs to conform to 
revisions to the 2008 RRP rule. The existing provisions at 40 CFR 
745.326(f) give authorized State and Tribal programs 2 years from the 
effective date of any EPA revisions to the 2008 RRP rule to demonstrate 
that the State or Tribal program meets the requirements of the revised 
2008 RRP rule. This 2 year period is also afforded to States and Tribes 
that submit applications for authorization before the effective date of 
any EPA revisions. EPA did not intend to make any changes to this 
provision and States and Tribes still have 2 years to make changes to 
their programs necessitated by revisions to the Federal RRP program.
    Finally, EPA proposed to require that, in order to be authorized 
for any of the lead-based paint programs, State or Tribal programs 
demonstrate that: (1) The State or Tribe is able to sue to obtain 
penalties, (2) civil and criminal penalties of at least $10,000 are 
assessable for each instance of violation, (3) if violations are 
continuous, the penalties are assessable up to the maximum amount for 
each day of violation, and (4) the burden of proof and degree of 
knowledge or intent of the

[[Page 47930]]

respondent is no greater than it is for EPA under TSCA. EPA also 
requested comment on what criteria States or Tribes should consider in 
assessing penalties and whether the $10,000 minimum penalty authority 
level should be periodically adjusted for inflation. As discussed in 
the preamble to the proposed rule, in choosing the proposed minimum 
penalty authority of $10,000 per violation per day, EPA looked to other 
programs that States and Tribes may be authorized to administer. Some 
of these programs have minimum penalty authority requirements for State 
and Tribal programs and some do not. For example, under the Clean Air 
Act (CAA) implementing regulations at 40 CFR 70.11(a)(3) and the 
Resource Conservation and Recovery Act (RCRA) implementing regulations 
at 40 CFR 271.16(a)(3), State programs must have the authority to 
assess civil and criminal fines of at least $10,000 per day per 
violation. Other programs have established lower minimum penalty 
authority requirements. The implementing regulations for the Safe 
Drinking Water Act (SDWA) require State programs to have the authority 
to impose a penalty of at least $1,000 per day per violation on public 
water systems serving a population of more than 10,000 individuals. 
Some EPA programs have set no minimum penalty authority requirements 
for States and Tribes; these programs include the Asbestos Hazard 
Emergency Response Act program and the State pesticide applicator 
certification program under the Federal Insecticide, Fungicide, and 
Rodenticide Act.
    EPA received a number of comments on this provision. Six State 
commenters opposed the proposed provisions. Several argued that their 
legislatures had already created the authority to establish an RRP 
program, but the maximum penalty amount was less than $10,000. Five 
States described their existing penalty authorities--one already has a 
minimum penalty authority of $10,000, one has $5,000, and the other 
three have $1,000. These States did not believe that they would be able 
to increase the maximum penalty authority, because it was comparable to 
other programs administered by the State, or that it would take several 
years to get an increase through the legislature, during which time EPA 
would have to administer the program in their jurisdictions. At least 
two already-authorized State RRP programs pointed out that they had 
been authorized with maximum penalty authorities of less than $10,000. 
One State noted that it could assess penalties of up to $750 or $1,000 
under its EPA-authorized RRP program, the other's maximum RRP penalty 
authority ranged from $1,00 to $1,000. One of these States also noted 
that it had been effectively enforcing the Lead-based Paint Activities 
Program and the Pre-Renovation Education Program for years now, and the 
State did not believe that an increase in its maximum penalty authority 
would improve the effectiveness of its programs in any way. Another 
State commented that it has penalty authority of $10,000, but that 
limit is for each enforcement case, not per violation per day. Some of 
the State commenters also noted that most enforcement actions in an RRP 
program would be against very small companies or individuals, and 
penalties of less than $10,000 per violation per day would still be 
very effective deterrents for such entities.
    Two environmental advocacy groups supported EPA's proposed minimum 
penalty authority of $10,000, arguing that substantial penalties are 
necessary to get the attention of the regulated community and 
meaningful enforcement is critical to the rule's success at protecting 
individuals from exposures to dangerous levels of lead.
    EPA agrees with these commenters on the importance of an effective 
enforcement program. Strong enforcement of the lead-based paint 
regulations by authorized State and Tribal programs is critical to 
ensuring the safety of the occupants of target housing and child 
occupied facilities undergoing lead abatement, renovation, repair or 
painting. However, EPA also agrees with those States that argued that 
most of the enforcement actions in authorized lead-based paint programs 
would be against very small entities. Although small entities also 
violate the CAA and RCRA, it is likely that the regulated community in 
the lead-based paint programs consists of smaller entities than the 
other programs for which EPA has established minimum penalty 
authorities. Therefore, EPA is establishing a minimum penalty authority 
for State and Tribal programs of $5,000. Because it is especially 
important to deter multiple violations and continuing violations, this 
final rule retains the ``per violation, per day'' requirement.
    In response to the related requests for comment, State commenters 
did not favor adding a mechanism for adjusting these minimum penalty 
authorities for inflation. One environmental advocacy group supported 
the idea, but thought that it should not be a barrier to State and 
Tribal program authorization. EPA agrees with these commenters and no 
mechanism for adjusting these minimums for inflation is included in 
this final rule.
    Commenters suggested a number of factors that should be considered 
by States and Tribes when imposing penalties for violations of their 
authorized programs. Several favored enforcement history and risk, but 
not to the extent of treating first-time offenders too lightly. A 
handful of commenters argued that size of business, and ability to stay 
in business should not be considered, because small companies can cause 
as much harm as large companies. EPA believes that States and Tribes 
may legitimately consider any of the factors that EPA typically 
considers, such as nature, circumstances, and extent of the violation, 
the culpability of the violator, history of prior violations, ability 
to pay or continue in business, voluntary disclosure, and attitude of 
the violator. However, EPA will not require States and Tribes to 
consider any of these factors.
    Finally, EPA received no comments on the proposed addition of an 
explicit requirement that States and Tribes have the ability to sue 
violators to collect penalties and that the burden of proof for 
enforcement be no more rigorous than the EPA standard under TSCA. EPA 
believes that these two elements are important elements of an effective 
enforcement program. Therefore, EPA is promulgating these additional 
requirements as proposed.
    6. Vertical containment. EPA's 2010 proposal included more specific 
language on vertical containment requirements for exterior projects. As 
proposed, the rule would specifically state that vertical containment 
is required for exterior renovation projects that are covered by the 
rule and that affect painted surfaces within 10 feet of the property 
line. In such cases, vertical containment is necessary to ensure that 
adjacent buildings or properties are not contaminated by leaded dust or 
debris generated by the renovation. EPA's Dust Study demonstrates that 
leaded dust and debris from exterior renovations can be found 10 feet 
away from activities disturbing leaded paint, even if no prohibited or 
restricted practices are used. For example, in an experiment involving 
the dry scraping of paint from a single story garage, significant dust-
lead levels were detected on collection trays at distances from 9 to 11 
feet from the scraping activity (Ref. 6, page 6-25). These levels 
ranged from 7,500 [mu]g/ft\2\ to more than 16,500 [mu]g/ft\2\. The RRP 
rule, at 40 CFR 745.85(a)(2), requires renovation firms to isolate the 
work area so that no dust or debris leaves the work area while the 
renovation is being

[[Page 47931]]

performed. The rule further states, at 40 CFR 745.85(a)(2)(ii)(D), 
that, 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 migrate to adjacent properties. EPA knows 
of no work practice other than a system of vertical containment or 
equivalent extra precautions in containing the work area that would 
universally and effectively prevent the migration of dust and debris 
from renovations performed within 10 feet of the property line to 
adjacent properties.
    EPA also proposed to clarify, in the regulatory text itself, that 
windy conditions may also necessitate the use of vertical containment 
to prevent contamination of other buildings, other areas of the 
property, or adjacent buildings or properties. Specific mention of 
windy conditions was made in the preamble to the final 2008 RRP rule, 
although it was not included in the regulatory text. Nevertheless, EPA 
expects atmospheric conditions to be one of several factors that 
renovation firms consider when designing containment systems. Other 
factors would include the height of the building and the paint 
disturbance and the type of renovation activity planned. EPA thought 
that specifically including windy conditions as a factor to consider 
when designing an effective containment system would serve as an 
important reminder for renovation firms. Including the mention of windy 
conditions in the proposed regulatory text did not mean that vertical 
containment would be required for any particular renovations. The 2010 
proposal also included a definition of the term ``containment'' in 
order to clarify what is meant by the term. The proposed definition was 
based on the definition of ``Worksite preparation level'' from the 
Department of Housing and Urban Development's ``Guidelines for the 
Evaluation and Control of Lead-Based Paint Hazards in Housing'' (HUD 
Guidelines, Ref. 11). The proposed definition included additional 
information on what constitutes vertical containment.
    Some commenters supported the proposed revisions to the vertical 
containment requirements. One thought that contamination of neighboring 
properties is a common and serious problem. Other commenters did not 
support the proposed revisions. These commenters thought that the 
proposed revisions were too inflexible and unnecessary. EPA disagrees 
with these commenters. As discussed, the Dust Study shows that dust and 
debris from exterior renovations travels at least 10 feet from the 
activity. The RRP rule requires the ground to be covered with plastic 
sheeting or other impermeable material extending 10 feet beyond the 
surfaces being renovated or a sufficient distance to collect falling 
paint debris, whichever is greater, unless prevented by the property 
line. In the absence of a system of vertical containment or equivalent 
extra precautions in containing the work area, EPA knows of no work 
practice that would universally and effectively ensure that adjacent 
properties are not contaminated when work disturbs lead-based paint 
within 10 feet of the property line. One commenter thought that it 
should be sufficient to require the renovation firm to inform the 
neighbors to keep their windows and doors closed while the renovation 
is ongoing. While this might prevent leaded dust from drifting into the 
interiors of adjacent buildings, it does not address contamination of 
the neighboring porches, balconies, or yards. This does not meet the 
standard already present in the RRP rule, that dust and debris not be 
permitted to leave the work area while the renovation is ongoing. EPA 
is also concerned about the ability of renovation firms to affect the 
behavior of neighbors whose homes are not being renovated.
    Several commenters expressed concern about the safety of workers 
and vertical containment. One argued that OSHA has said that vertical 
containment is not required in situations where worker safety would be 
compromised, such as in windy conditions. EPA agrees that erecting 
extensive scaffolding to support a large vertical containment system in 
some windy conditions may be unsafe for workers. If such a vertical 
containment system would be necessary to ensure containment of the dust 
generated by a particular renovation, EPA knows of no alternative but 
to reschedule the renovation for a more clement day. The HUD Guidelines 
state that exterior renovation work should not be conducted when the 
wind speed is greater than 20 miles per hour (Ref. 11). The Guidelines 
also state that work must cease and cleanup be completed before rain 
begins. EPA has not imposed these specific requirements, but renovation 
firms should consider this guidance when deciding how to proceed.
    Other commenters were concerned about the additional costs that the 
revisions to the vertical containment provisions would impose on 
renovations and the potential negative impact on affordable housing and 
weatherization programs. EPA agrees that it is more expensive to 
conduct exterior renovations with vertical containment than without. In 
EPA's economic analysis for the 2008 RRP rule, EPA addressed those 
situations where the renovation firm must take extra precautions to 
effectively contain dust and debris, including work areas in close 
proximity to other buildings, work areas that abut a property line, and 
windy conditions. The 2008 economic analysis specifically notes that it 
is sometimes necessary to erect a system of vertical containment to 
prevent paint dust and debris from contaminating the ground or any 
object beyond the work area. To account for these situations, EPA 
estimated that approximately 2% of exterior jobs would use exterior 
containment, and the incremental cost of vertical containment varies 
from $330 per wall to $1,640 per wall, depending on the size of the 
job. Thus, EPA has already accounted for the additional costs incurred 
for using vertical containment systems on renovations performed within 
10 feet of the property line.
    Because EPA does not know of any effective alternatives to the 
vertical containment requirement for exterior renovations performed 
within 10 feet of the property line, EPA is promulgating a requirement 
that vertical containment or equivalent extra precautions in containing 
the work area be used on exterior renovations performed within 10 feet 
of the property line. This requirement is intended to provide 
flexibility for certified renovators to design effective containment 
systems based on the renovation activity and the work site. To ensure 
that renovation firms understand that the requirement refers to a wide 
variety of effective work area containment systems, EPA is including 
the phrase ``or equivalent extra precautions in containing the work 
area'' in this requirement. Effective work area containment can span a 
range from simple barriers to more extensive scaffolding, depending on 
the size of the job and other relevant factors. Complex vertical 
containment systems with extensive scaffolding are often not necessary 
to effectively contain the dust generated by a renovation. An example 
of a simple barrier system, on a job requiring hand scraping within a 
few feet of the ground and within a few feet of the property line, 
would be laying plastic or other impermeable material on the ground 
between the paint-disturbing activity and the property line, anchoring 
it to the house, and then extending the material up and over the fence 
at the property line. A slightly more extensive containment approach

[[Page 47932]]

could involve the use of a triangular eave/soffit ``lean-to'' system. 
In this system, plastic or other impermeable material could be spread 
out on the ground 5-10 feet out from the exterior side wall, depending 
upon the available space. The same impermeable material could be 
attached to the eave or soffit area at the roofline, and held away from 
the building by an extension ladder temporarily fastened to where the 
wall meets the eave or soffit. The material would then be fastened and 
sealed onto the ground cover. A variation of this system would involve 
draping the plastic or impermeable material over a frame consisting of 
commercially-available tension rods or strong painter's extension 
tubes. Effective containment could also consist of plastic or other 
impermeable material draped from outriggers, or framework secured to 
the roofline, taped to the sides of the building to surround the work 
area, and fastened and sealed to the ground cover. Yet another 
containment system could involve a rigid box-like framework, 
constructed out of commercially-available tension rods or painter's 
extension tubes, wrapped in impermeable sheeting and anchored to the 
ground cover and the sides of the building. EPA believes that these 
measures, in most cases, should be sufficient to contain dust and 
debris where extra containment measures are needed, such as work that 
creates large amounts of dust or work performed within 10 feet of the 
property line.
    EPA realizes that it may be costly or impracticable to deploy an 
elaborate vertical containment system, for example, in high rise multi-
story buildings. The Agency, furthermore does not wish to create 
hazardous situations for workers that would outweigh the benefit of 
capturing the dust with scaffolding-based vertical containment systems. 
EPA believes that equally effective systems may exist. Thus, EPA added 
language indicating that ``equivalent extra precautions in containing 
the work area'' will also satisfy the requirement to contain dust on 
the worksite of exterior renovations performed within 10 feet of the 
property line.
    EPA continues to believe that it is important to remind renovation 
firms that there may be other situations where vertical containment or 
equivalent extra precautions in containing the work area would be 
required in order to prevent dust and debris from leaving the work 
area. However, because some commenters appeared to believe that EPA's 
mention of windy conditions amounted to a requirement to use vertical 
containment in windy conditions, EPA is deleting the phrase ``such as 
in windy conditions.'' The complete provision, as promulgated, reads: 
``If the renovation will affect surfaces within 10 feet of the property 
line, the renovation firm must erect vertical containment or equivalent 
extra precautions in containing the work area to ensure that dust and 
debris from the renovation does not contaminate adjacent buildings or 
migrate to adjacent properties. Vertical containment or equivalent 
extra precautions in containing the work area may also be necessary in 
other situations in order to prevent contamination of other buildings, 
other areas of the property, or adjacent buildings or properties.'' EPA 
wishes to encourage innovation in designing effective containment 
systems or measures, so EPA will consider any information or data made 
available to it that could be used to determine the equivalence of 
extra containment precautions in containing the work area. For example, 
the Department of Energy (DOE) suggested that an equivalent containment 
system could involve the use of a trough-like system beneath the paint-
disturbing work. The trough would consist of polyethylene and tubing 
fabricated in a U-shape configuration, extending 1 to 2 feet from the 
exterior side of the building. According to DOE, the bottom of the 
trough could be weighted down with scrap lumber and sprayed with water 
enabling it to capture the falling dust and debris. DOE suggested that 
this trough, especially if combined with dust minimization techniques 
such as wet methods, the use of dust-capturing shrouds, and HEPA 
vacuums, would be equally effective at containing dust and debris as 
vertical containment. EPA cannot determine that the trough, by itself, 
provides effective containment of dust and debris, but will be 
examining this in the future. Similarly, DOE suggested that another 
possible method for the dust that is generated during an exterior 
renovation to be captured could involve the use of a shroud attached to 
a power tool with a HEPA vacuum, also attached to the shroud, where the 
dust and debris is captured right at the source--thereby not allowing 
it to fall onto polyethylene, workers clothing, equipment, and tools. 
EPA seeks data or other information upon which to evaluate that the 
following are effective at containing dust and debris: the trough in 
combination with dust minimization techniques; the use of a shroud 
attached to a power tool with a HEPA vacuum; or other alternative 
methods. EPA will review and issue guidance as appropriate. EPA intends 
to work collaboratively with DOE and HUD and other agencies and 
stakeholders as appropriate to develop further guidance on equivalent 
extra precautions in containing the work area.
    In addition, since promulgation of the 2008 RRP rule, EPA has 
received several inquiries from the regulated community on the rule's 
containment provisions. In particular, EPA has been asked to address 
the problem of obstacles that prevent renovation firms from using 6 
feet of plastic sheeting or other impermeable material on interior 
floors or 10 feet of material on the ground. EPA believes that the 
proper use of vertical containment measures may be a more effective 
method for containing the work area than use of traditional floor or 
ground containment alone, especially where obstacles prevent or make it 
impractical to install floor or ground containment to the extent 
required by the RRP rule. Therefore, EPA is amending the containment 
provisions for both interior and exterior renovations to permit 
renovation firms to erect vertical containment closer to the renovation 
activity than the minimum floor or ground containment distance 
specified in the RRP rule to give renovation firms more flexibility in 
designing effective containment strategies for particular work sites. 
For exterior renovations, this amendment would allow a renovation firm 
to construct vertical containment less than 10 feet from the renovation 
activity. If a renovation firm chooses to take advantage of this 
provision, the ground containment may extend less than 10 feet, 
stopping just outside the edge of the vertical containment, as long as 
the distance is sufficient to contain all dust and debris during the 
renovation and post-renovation cleanup. For example, a renovation firm 
erects an exterior vertical containment system consisting of a rigid 
box-like framework wrapped in impermeable plastic sheeting and anchored 
to the ground and home. If this containment system is erected 5 feet 
from the side of the home, and placed on top of ground containment, 
such containment should effectively limit the travel of dust and debris 
to the interior of the enclosure. Under the amended containment 
provisions, the renovation firm would not be required to extend plastic 
sheeting or other impermeable material another 5 feet beyond the 
vertical containment system in order to meet the 10 foot minimum ground 
containment requirement promulgated in the 2008 RRP rule.
    EPA is also providing increased flexibility for renovation firms by 
allowing firms the option to use vertical containment measures in 
combination

[[Page 47933]]

with reduced floor containment on interior renovations. However, to 
qualify for reduced floor containment requirements, vertical 
containment systems for interior renovations must consist of 
impermeable barriers that extend from the floor to the ceiling and are 
tightly sealed at joints with the floor, ceiling and walls (e.g. 
through the use of tape, foam or other means which create tight seals), 
thus effectively creating a separate enclosure. This type of vertical 
containment acts as the functional equivalent of a wall for purposes of 
defining the work area and, if the vertical containment meets these 
criteria, the floor containment measures may stop at the edge of the 
vertical barrier. However, unlike permanent walls, vertical containment 
barriers are subject to all containment cleaning requirements including 
misting, inward folding, sealing, and proper disposal following the 
renovation. A firm must also thoroughly clean an additional two feet 
beyond the vertically-contained work area. Finally, during ingress or 
egress from the vertical enclosure, a firm must take precaution to 
ensure that dust and debris on personnel, tools, and other items do not 
escape the work area.
    Upon further consideration of the proposed definition of 
containment, particularly in light of the comments received on the 
proposed vertical containment requirements, EPA has determined that a 
broader definition of containment is unnecessary, and may even be 
confusing, but a definition of vertical containment would help to 
clarify the vertical containment requirements. In addition, EPA 
believes that there may be confusion among the regulated community and 
other stakeholders about what EPA means when it uses the term 
``vertical containment.'' As previously discussed, vertical containment 
can span the range from simple barriers to box-like structures to more 
extensive scaffolding. Accordingly, EPA is promulgating a definition of 
``vertical containment'' that is similar to the last sentence of the 
proposed definition of ``containment.'' Vertical containment is defined 
as a vertical barrier consisting of plastic sheeting or other 
impermeable material over scaffolding or a rigid frame, or an 
equivalent system of containing the work area. The definition further 
states that vertical containment is required for some exterior 
renovations but it may be used on any renovation. EPA encourages 
members of the regulated community, or other stakeholders, who have 
questions on the work area containment requirements or any other aspect 
of the RRP rule to consult the Frequent Question database accessible 
from EPA's primary lead Web page at http://www.epa.gov/lead or contact 
the National Lead Information Center by calling 1(800) 424-LEAD [5323]. 
Hearing- or speech-impaired persons may reach the National Lead 
Information Center through TTY by calling the toll-free Federal Relay 
Service at 1-800-877-8339.
    7. Prohibited or restricted practices. In May 2010, EPA proposed to 
make a number of minor revisions to clarify the prohibitions and 
restrictions on work practices in 40 CFR 745.85(a)(3). The first was a 
clarification that these prohibitions and restrictions, e.g., the 
prohibition on open flame burning or torching, apply to all painted 
surfaces, not just surfaces where the presence of lead-based paint has 
been confirmed. The term ``lead-based paint'' was incorrectly and 
inadvertently used in this subparagraph, making it inconsistent with 
the rest of the RRP rule, which applies in the presence of known lead-
based paint as well as paint that has not been tested for lead content. 
Accordingly, EPA proposed to replace the term ``lead-based paint'' with 
``painted surfaces'' in this subparagraph. Of course, if the painted 
surface has been tested and found to be free of lead-based paint, the 
prohibitions and restrictions on work practices in the final RRP rule 
do not apply. Commenters generally supported this revision, although 
two commenters noted that EPA uses the term ``painted surfaces'' 
throughout the RRP rule and it is unclear whether this refers just to 
paint or to other surface coatings as well. These commenters noted that 
the definition of ``lead-based paint'' includes paint and other surface 
coatings but there is no definition of the term ``painted surfaces.'' 
These commenters observed that other surface coatings, such as varnish, 
can contain significant amounts of lead. The commenters suggested that 
EPA address this issue throughout the RRP rule. EPA agrees with these 
commenters. In using the term ``painted surfaces,'' EPA has always 
meant component surfaces that are covered in whole or in part with a 
coating that could be lead-based paint. The term was designed to 
encompass situations where the surface is covered with lead-based paint 
as defined by the regulation as well as situations where the lead 
content of the surface coating had not been determined. EPA never 
intended to exclude varnishes or other surface coatings from the 
coverage of the RRP rule. In fact, the applicability section of the RRP 
rule, 40 CFR 745.82, limits the exclusions for testing to those 
situations where the components to be disturbed by a renovation have 
been demonstrated to be free of paint and other surface coatings that 
contain lead at levels equal to or exceeding the regulatory threshold. 
Therefore, EPA is promulgating this revision as proposed and EPA is 
also adding a clarifying definition of ``painted surface'' to 40 CFR 
745.83. This definition states that painted surface means a component 
surface covered in whole or in part with paint or other surface 
coatings.
    In addition, EPA proposed to clarify that the restriction in this 
section on the use of machines that remove paint through high speed 
operation applies anywhere painted surfaces are being disturbed by such 
machines; the restriction is not limited to situations where all of the 
paint is removed by such machines. EPA received no comments 
specifically on this proposed revision, although the comments on the 
general issue of paint including other surface coatings are also 
applicable here. EPA is promulgating this revision as proposed, with 
the addition of the phrase ``or other surface coatings'' after the term 
``paint,'' because EPA never intended to create a loophole that would 
allow someone to remove some or most of the paint or other surface 
coating from a component without complying with the restriction.
    Finally, EPA proposed to clarify what was meant by HEPA exhaust 
control. In order to better express what is required when machines 
designed to remove paint through high speed operation are used, EPA 
consulted the Occupational Safety and Health Administration's Technical 
Manual (Ref. 12). The use of shrouded tools to remove lead-based paint 
is discussed in Chapter 3 of Section V, entitled ``Controlling Lead 
Exposures in the Construction Industry: Engineering and Work Practice 
Controls.'' Using language from this reference, EPA proposed to amend 
40 CFR 745.85(a)(3)(ii) to read, ``The use of machines designed to 
remove paint through high speed operation such as sanding, grinding, 
power planing, needle gun, abrasive blasting, or sandblasting, is 
prohibited on painted surfaces unless such machines are used shrouded 
and equipped with a HEPA vacuum attachment to collect dust and debris 
at the point of generation.'' EPA received several comments on this 
topic. The commenters generally supported the change, but two thought 
that there should be a performance standard included in the provision, 
a visible standard that warns the workers that the shroud or 
containment system is not working properly. EPA agrees with these 
commenters. Another

[[Page 47934]]

commenter thought that the term ``shrouded'' in the proposed revision 
would make the RRP rule more stringent than the requirements applicable 
to abatement contractors. After consulting the abatement chapter of the 
HUD Guidelines, EPA has determined that the proposed language could 
potentially be read to exclude one of the two types of sanders 
described by HUD as appropriate for abatement work because they provide 
HEPA exhaust control. Accordingly, EPA is promulgating the revision as 
proposed, except that the regulatory language will read ``* * * unless 
such machines have shrouds or containment systems and are equipped with 
a HEPA vacuum attachment to collect dust and debris at the point of 
generation. Machines must be operated so that no visible dust or 
release of air occurs outside the shroud or containment system.''
    8. HEPA vacuums. In May 2010, EPA proposed to clarify that vacuums 
qualifying as HEPA vacuums for the purposes of this rule must be 
operated and maintained in accordance with the manufacturer's 
instructions in order to continue to qualify as HEPA vacuums. This 
includes following the manufacturer's filter change interval 
recommendations. EPA also proposed to clarify that the standard for 
HEPA filters, that they be capable of capturing particles of 0.3 
microns with 99.97% efficiency, means that the filters must have a 
Minimum Efficiency Reporting Value (MERV) of 17 or greater. At the 
time, EPA also recommended that renovation firms have information from 
the manufacturer that the particular model of vacuum that the 
renovation firm intends to use, or the vacuum's HEPA filter, has been 
tested in accordance with an applicable test method, such as ASTM 
F1471-09, ``Standard Test Method for Air Cleaning Performance of a 
High-Efficiency Particulate Air-Filter System,'' and has been 
determined to meet this standard (Ref. 13).
    EPA received a number of comments on these proposed revisions. 
Commenters specifically addressing the requirement that vacuums be 
operated in accordance with the manufacturer's instructions, including 
filter change interval recommendations, were in general agreement with 
the requirement. Other commenters expressed a general concern that 
these revisions would prohibit the use of consumer-grade HEPA vacuums 
that renovation firms had recently purchased to comply with the RRP 
rule. Some argued that the proposed language regarding the MERV was too 
stringent, given industry practice for high-efficiency vacuums. One 
commenter cited research they had done on the efficiency of HEPA 
vacuums to argue that the HEPA vacuums used in EPA's Dust Study would 
not have met the MERV standard proposed by EPA. However, the commenter 
did not provide sufficient information to support this assertion. 
Several commenters echoed comments EPA received during the rulemaking 
process for the 2008 RRP rule, arguing that HEPA vacuums are too 
expensive and are not necessary. Other commenters believed that 
additional requirements should be added, such as a requirement to field 
test the efficiency of the vacuums on a regular basis or after filter 
changes.
    EPA continues to believe that HEPA vacuums are a necessary part of 
the required RRP work practices. In addition, the OSHA Lead in 
Construction standard requires the use of HEPA vacuums whenever vacuums 
are used. However, EPA also understands the concerns of those 
commenters who had already purchased HEPA vacuums for purposes of the 
RRP rule as well as those others who thought that the proposed MERV 
value of 17 would be too stringent. In balancing these concerns, EPA 
has decided to promulgate the requirement that HEPA vacuums be operated 
in accordance with manufacturer's instructions, but not the requirement 
that compliant vacuums be rated at a MERV value of 17 or higher.
    In addition, in response to EPA's recommendation that renovation 
firms obtain information from the manufacturer that the efficiency of 
their particular model of HEPA vacuum or HEPA filter has been tested in 
accordance with an applicable test method, some commenters noted that 
this information may not be readily available to renovation firms. 
These commenters suggested that EPA maintain a list of HEPA vacuums 
that have been tested and found to meet the HEPA vacuum requirements.
    9. On-the-job training. EPA's 2010 proposal included a 
clarification regarding the required elements of on-the-job training 
provided by renovators. Specifically, EPA proposed to clarify that the 
RRP rule requires certified renovators to train other renovation 
workers in only the work practices required by the RRP rule that the 
workers will be using in performing their assigned tasks. As discussed 
in the 2010 proposal, EPA did not intend to require training in any 
other subjects, such as how to paint or how to connect pipes. EPA is 
promulgating the clarification as proposed and amending 40 CFR 
745.90(b)(2) and (b)(4) to refer specifically to the work practice 
requirements in 40 CFR 745.85(a). Two comments were received on this 
proposed clarification, both commenters expressed support for the 
change.
    10. Grandfathering. Under the final 2008 RRP rule, individuals who 
successfully completed an accredited abatement worker or supervisor 
course, and individuals who successfully completed the HUD, EPA, or the 
joint EPA/HUD model renovation training courses may take an accredited 
refresher renovation training course in lieu of the initial renovation 
training to become a certified renovator. In addition, individuals who 
have successfully completed an accredited lead-based paint inspector or 
risk assessor course, but are not currently certified in the 
discipline, may take an accredited refresher dust sampling technician 
course in lieu of the initial training to become a certified dust 
sampling technician. As discussed in the 2010 proposal, EPA 
inadvertently failed to include in the 2008 RRP rule a time limit for 
taking the refresher in lieu of the initial course. Many of the 
commenters who addressed the issue of grandfathering in the 2008 RRP 
rulemaking contended that there should be restrictions based on how 
much time elapsed since the training was taken. In addition, under the 
lead-based paint activities regulations at 40 CFR 745.226, EPA allowed 
a similar grandfathering provision but only for a limited time. 
Accordingly, EPA proposed to set a limit on when an individual can take 
advantage of the grandfathering provision under the RRP rule. The 
preamble to the 2010 proposal stated that the limit would be July 31, 
2011, such that renovators and dust sampling technicians who take the 
appropriate prerequisite course before that date would be permitted to 
take an accredited refresher training course in lieu of the initial 
training. EPA received three comments on this provision. One commenter 
helpfully pointed out that, while the preamble said that the limit 
would be July 31, 2011, the proposed regulatory text said that it would 
be April 22, 2011. The three commenters supported the limit of July 31, 
2011, one noting that EPA should not continue to encourage renovators 
to take lead-safe work practices courses that do not meet the 
requirements for certified renovator training. EPA generally agrees 
with these commenters and is promulgating a provision that allows 
renovators and dust sampling technicians who take the appropriate 
prerequisite course before the effective date of this rule to take an

[[Page 47935]]

accredited refresher training course in lieu of the initial training.
    EPA also proposed a clarification regarding the grandfathering 
provision as it applies to the dust sampling technician discipline. 
Individuals who successfully complete an accredited lead-based paint 
inspector or risk assessor course, but are not currently certified in 
the discipline, may take an accredited refresher dust sampling 
technician course in lieu of the initial training before the effective 
date of this rule to become a certified dust sampling technician. 
Inspectors and risk assessors who are certified by EPA or an authorized 
state program are qualified to perform dust sampling as part of lead 
hazard screens, risk assessments, or abatements as well as for other 
purposes, such as post-renovation dust sampling. Therefore, it would be 
unnecessary for a certified inspector or risk assessor to seek 
certification as a dust sampling technician. The 2008 RRP rule explains 
who is eligible to take the refresher dust sampling technician course 
in lieu of the initial training. However, the regulations as 
promulgated did not explicitly say that a certified inspector or risk 
assessor may perform dust sampling. In order to clarify the intent of 
the regulation, EPA proposed to amend 40 CFR 745.90(a)(3) to 
specifically state that a certified inspector or risk assessor may act 
as a dust sampling technician. EPA is promulgating this provision as 
proposed. One comment was received on this topic expressing general 
support for the amendment.

III. References

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

1. U.S. Environmental Protection Agency (EPA). Lead; Clearance and 
Clearance Testing Requirements for the Renovation, Repair, and 
Painting Program; Proposed Rule. Federal Register (75 FR 25038, May 
6, 2010) (FRL-8823-5).
2. EPA. Lead; Renovation, Repair, and Painting Program; Final Rule. 
Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7).
3. EPA. Lead; Requirements for Lead-based Paint Activities; Final 
Rule. Federal Register (61 FR 45778), August 29, 1996) (FRL-5389-9).
4. EPA. Lead; Identification of Dangerous Levels of Lead; Final 
Rule. Federal Register (66 FR 1206, January 5, 2001) (FRL-6763-5).
5. EPA. Electrostatic Cloth and Wet Cloth Field Study in Residential 
Housing (September 2005).
6. EPA. Characterization of Dust Lead Levels After Renovation, 
Repair, and Painting Activities. (November 13, 2007).
7. EPA. Lead Exposure Associated With Renovation and Remodeling 
Activities: Phase I, Environmental Field Sampling Study (EPA 747-R-
96-007, May 1997).
8. EPA. Reviewed Studies Pertaining to HEPA Shroud Effectiveness. 
(2009).
9. EPA. 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).
10. U.S. Department of Housing and Urban Development (HUD). 
Evaluation of the HUD Lead-Based Paint Hazard Control Grant Program: 
Final Report. May 1, 2004.
11. HUD. Guidelines for the Evaluation and Control of Lead-Based 
Paint Hazards in Housing (June 1995).
12. U.S. Department of Labor, Occupational Safety and Health 
Administration (OSHA). Technical Manual TED 01-00-015 [TED 1-0.15A]. 
Revised June 24, 2008.
13. ASTM International. Standard Test Method for Air Cleaning 
Performance of a High-Efficiency Particulate Air-Filter System 
(F1471-09).
14. EPA. OPPT. ``Discussion of Potential Costs and Benefits 
Associated with the Clearance and Clearance Testing Requirements for 
the Renovation, Repair, and Painting Program Final Rule'' (July 
2011).
15. EPA. OPPT. ``Economic Analysis for the TSCA Lead Renovation, 
Repair, and Painting Program Opt-out and Recordkeeping Final Rule 
for Target Housing and Child-Occupied Facilities'' (April 2010).
16. EPA. Final Clearance Rule ICR Addendum for the rulemaking 
entitled Lead; Clearance and Clearance Testing Requirements for the 
Renovation, Repair, and Painting Program; Final Rule. (July 2011).
17. EPA. Report of the Small Business Advocacy Review Panel on the 
Lead-based Paint Certification and Training; Renovation and 
Remodeling Requirements. (March 3, 2000).
18. EPA. Lead; Renovation, Repair, and Painting Program; Proposed 
Rule. Federal Register (71 FR 1588, January 10, 2006) (FRL-7755-5).

IV. Statutory and Executive Order Reviews

A. Regulatory Planning and Review

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this action is a ``significant 
regulatory action.'' Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under Executive Orders 
12866 and 13563, entitled Improving Regulation and Regulatory Review 
(76 FR 3821, January 21, 2011), and any changes made in response to OMB 
recommendations have been documented in the docket for this action.
    In addition, EPA prepared a document discussing the potential costs 
and benefits associated with this final rule. This document, entitled 
``Discussion of Potential Costs and Benefits Associated with the 
Clearance and Clearance Testing Requirements for the Renovation, 
Repair, and Painting Program Final Rule'' (Ref. 14), is available in 
the docket for this action and is briefly summarized here.
    For the most part, the amendments to the RRP rule contained in this 
final rule impose only minimal incremental costs. For example, the 
requirement for training course providers to submit copies of personnel 
qualifications along with their applications will result in providers 
making copies of and submitting with their application 2-4 additional 
pieces of paper that they are already required to have in their 
possession before submitting the application. The requirement to submit 
copies of State training course materials, if used, could add 
significantly to the size of the training provider's application. 
However, EPA believes that it will be a rare occurrence for training 
providers to use State-approved training course materials, when EPA 
model training course materials are readily available. Likewise, the 
provision allowing certified renovators to collect paint chip samples 
in lieu of using test kits adds no additional costs, because certified 
renovators are not required to take this step in addition to existing 
activities--it is an added option from which they may choose. 
Similarly, the minimum enforcement provisions and other requirements 
for State and Tribal programs imposes no costs because States and 
Tribes are not required to have authorized programs, nor are they 
required to revise their programs to incorporate EPA revisions. While 
EPA is requiring specific recordkeeping for training providers who wish 
to provide e-learning courses, e-learning courses are not required from 
any training

[[Page 47936]]

provider. In addition, EPA believes that the recordkeeping requirements 
for e-learning courses are comparable to, and no more burdensome than, 
the ordinary recordkeeping already required for courses provided in 
traditional formats.
    Many of the amendments are merely clarifications of existing 
regulatory language and implementation of policy and impose no 
additional costs. Examples of these amendments include the 
clarifications on the role of the principal instructor in an accredited 
training program, the requirement that the trainee photograph on a 
course completion certificate be an accurate representation of the 
trainee and no smaller than one square inch, and the clarification that 
certified renovators are only required to provide on-the-job training 
in the RRP work practices to other renovation workers.
    With respect to the vertical containment requirements of this final 
rule, EPA has already accounted for the costs of those requirements. In 
EPA's economic analysis for the 2008 RRP rule, EPA addressed those 
situations where the renovation firm must take extra precautions to 
effectively contain dust and debris, including work areas in close 
proximity to other buildings, work areas that abut a property line, and 
windy conditions. The 2008 economic analysis specifically notes that it 
is sometimes necessary to erect a system of vertical containment to 
prevent paint dust and debris from contaminating the ground or any 
object beyond the work area. To account for these situations, EPA 
estimated that approximately 2% of exterior jobs would use exterior 
containment, and the incremental cost of vertical containment varies 
from $330 per wall to $1,640 per wall, depending on the size of the 
job. Thus, EPA has already accounted for the additional costs incurred 
for using vertical containment systems on renovations performed within 
10 feet of the property line.
    This final rule extends the recordkeeping requirement for providers 
of certified renovator and certified dust sampling technician training 
from 3 years and 6 months to 5 years in general and slightly more than 
5 years for training providers who offered accredited courses in these 
disciplines before April 22, 2010. The recordkeeping extension does not 
affect recordkeeping requirements associated with obtaining and 
maintaining accreditation. This extension only affects those records 
pertaining to training courses, specifically notifications. Pro-rating 
the recordkeeping cost estimates from EPA's economic analysis for the 
Opt-Out and Recordkeeping Final Rule, also published in the Federal 
Register on May 6, 2010 (Ref. 15), shows that the recordkeeping burden 
for courses provided during the first year the rule was effective 
increases from $43.68 to $61.88 per training provider. For courses 
provided in subsequent years, the recordkeeping burden per training 
provider increases from $4.80 to $6.80. These estimates are for the 
entire 5 years that the records would have to be kept. For the 2008 RRP 
rule, EPA estimated that there would be approximately 1.4 million 
children under the age of 6 and 5.4 million adults who would be 
affected by having their exposure to lead dust minimized due to the 
rule. The analysis for the 2010 final Opt-Out rule estimated that an 
additional 5.2 million older children and adults would be affected by 
reduced lead exposure due to the rule.

B. Paperwork Burdens

    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 (PRA), 44 U.S.C. 3501 et seq. 
EPA has prepared an Information Collection Request (ICR) document to 
amend an existing ICR that is approved under OMB Control No. 2070-0155 
(EPA ICR No. 1715). The ICR amendment, entitled ``ICR Addendum for 
Final Rule entitled ``Lead; Clearance and Clearance Testing 
Requirements for the Renovation, Repair, and Painting Program; Final 
Rule (RIN 2070-AJ57)'' and identified under EPA ICR No. 2381.02, has 
been placed in the docket for this rule (Ref. 16).
    This regulatory action contains only two amendments to the approved 
existing information collection: Amendments to the requirement for the 
training provider to submit documentation of training manager and 
principal instructor qualifications; and a requirement for providers of 
renovator and dust sampling technician training to maintain training 
records for these courses for 5 years, rather than 3 years and 6 
months. These requirements add only negligible paperwork burden hours 
to the existing burden estimate.
    EPA previously estimated for the final 2008 RRP rule (Ref. 9) and 
the final Opt-out rule (Ref. 15) that 170 training providers would be 
accredited to provide renovator training. These training providers will 
now have to submit an additional 2-4 photocopies along with their 
applications for accreditation. EPA estimates that each photocopy costs 
$0.09 to generate, for a maximum of $0.36 additional cost for training 
providers with one training manager and one principal instructor. Each 
of these 170 training providers is also required to provide training 
course notifications under the existing RRP rule. These notifications 
will now have to be kept for 5 years instead of 3 years and 6 months. 
EPA has also estimated that each of these training providers would 
offer on average a total of 86 renovator or dust sampling technician 
courses in the first year, and 20 per year thereafter. This would 
require a total of 182 single-page notifications in the first year, and 
42 each year thereafter.
    Under PRA, burden is defined at 5 CFR 1320.3(b) and 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. 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 40 CFR chapter I, 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, as 
applicable.

C. Small Entity Impacts

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
5 U.S.C. 601 et seq., the Agency hereby certifies that this final rule 
will not have a significant adverse 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 final rule on small entities, small 
entity is defined in accordance with RFA section 601 as:
    1. A small business as defined by the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201.
    2. A small governmental jurisdiction that is a government of a 
city, county, town, school district, or special district with a 
population of less than 50,000.
    3. A small organization that is any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    The small entities directly regulated by this final rule are 
providers of lead-based paint related training, renovation firms, 
individuals who perform renovations, and any small governmental 
jurisdictions or not-for-profit enterprises that provide lead-based 
paint training or renovation services. As discussed previously, EPA

[[Page 47937]]

has decided not to promulgate the clearance and clearance testing 
requirements, and is instead promulgating minor amendments to the 
requirements for lead-based paint training providers and renovation 
firms that will have only negligible adverse impacts on any small 
entities.
    In addition, RFA states that agencies ``may consider a series of 
closely related rules as one rule for the purposes of [an IRFA]'' in 
order to avoid ``duplicative action.'' 5 U.S.C. 605(c). This rulemaking 
is closely related to the 2008 RRP rule. Indeed, the proposed rule 
addressed one of the major issues in the 2008 rulemaking and some of 
the provisions finalized in the 2008 RRP rule. Accordingly, EPA was not 
required to complete a regulatory flexibility analysis for this 
rulemaking. Nonetheless, EPA exercised its discretion to complete an 
Initial Regulatory Flexibility Analysis (IRFA) for the 2010 proposal 
(see 75 FR 25038). The IRFA considered the potential adverse economic 
impacts of the 2010 proposed rule on affected small entities, primarily 
those related to the proposed clearance and clearance testing 
requirements. The proposed provisions analyzed for purposes of the IRFA 
are not part of this final rule.
    Moreover, as discussed in the 2010 proposed rule in more detail, 
the Small Business Advocacy Review (SBAR) Panel that was conducted in 
connection with the 2006 RRP proposal is equally applicable to this 
closely related amendment to the 2008 RRP rule. The SBAR Panel 
discussed all major aspects of the 2006 proposal to regulate renovation 
and remodeling activities, including issues related to ensuring that 
proper cleanup occurs after renovation activities. As a part of the 
panel process, EPA ``collect[ed] advice and recommendations'' from 
several Small Entity Representatives (SERs) on the 2006 proposal to 
regulate renovation and remodeling activities. 5 U.S.C. 609(b). The 
SBAR Panel report, entitled Report of the Small Business Advocacy 
Review Panel on The Lead-base Painting; Certification and Training; 
Renovation and Remodeling Requirements (March 3, 2000), expressly 
addressed containment and dust clearance testing requirements (Ref. 
18). Thus, the primary issues considered in this rulemaking are wholly 
within the scope of the issues EPA considered as part of the 2008 RRP 
rule and were within the scope of the issues considered by the SBAR 
Panel. Reconvening the RRP Panel for the 2010 proposed rule would be 
procedurally duplicative and unnecessary.

D. Unfunded Mandates

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
This rule includes only minor amendments to the requirements for 
providers of lead-based paint training and for renovation firms. Thus, 
this rule is not subject to the requirements of sections 202 or 205 of 
the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538).
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. Small governments 
are only regulated by this action to the extent that they engage in 
providing lead-based paint training or renovation services.

E. Federalism

    Pursuant to Executive Order 13132, entitled Federalism (64 FR 
43255, August 10, 1999), EPA has determined that this final 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 final rule. Nevertheless, in the spirit of the 
objectives of this Executive Order, and consistent with EPA policy to 
promote communications between the Agency and State and local 
governments, EPA consulted with representatives of State and local 
governments during the rulemaking process for the 2008 RRP rule. These 
consultations are as described in the preamble to the 2006 RRP proposed 
rule (Ref. 18).

F. Indian Tribal Government 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 final 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 Executive Order. Thus, Executive Order 13175 does not 
apply to this final rule. Although Executive Order 13175 does not apply 
to this final rule, EPA consulted with Tribal officials and others by 
discussing potential renovation regulatory options at several national 
lead program meetings hosted by EPA and other interested Federal 
agencies.

G. Protection of Children

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997) does not apply to this final rule because it is not an 
``economically significant regulatory action'' as defined by Executive 
Order 12866. While the environmental health or safety risk addressed by 
the 2008 RRP rule does have a disproportionate effect on children, this 
final rule makes only minor changes in the administrative requirements 
for accredited training providers and includes minor amendments to the 
requirements for renovation firms.
    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 proposed 
RRP rule (Ref. 18). The primary purpose of the final 2008 RRP 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 the final 2008 RRP rule, 
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 RRP rule. These children are projected to receive 
considerable benefits due to the RRP rule. In addition, older children 
will also benefit from the protections afforded by the RRP rule.

H. Effect on Energy Supply, Distribution, or Use

    This final 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.

[[Page 47938]]

I. Technical Standards

    This regulatory action does not involve any technical standards 
that would require Agency consideration of voluntary consensus 
standards pursuant to section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272 note. Section 12(d) 
of NTTAA 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, business practices) that are developed or adopted 
by voluntary consensus standards bodies. NTTAA requires EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.

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.
    While EPA has not assessed the potential impact of this final rule 
on minority and low-income populations, EPA did assess the potential 
impact of the final 2008 RRP rule as a whole. As a result of the final 
2008 RRP rule assessment, contained in the economic analysis for the 
final 2008 RRP rule, EPA has determined that the RRP 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 (Ref. 9).

V. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report to each House of the Congress and 
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. 
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

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: July 15, 2011.
Lisa P. Jackson,
Administrator.

    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. In Sec.  745.82, add a new paragraph (a)(3) to read as follows.


Sec.  745.82  Applicability.

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

0
3. In Sec.  745.83, revise the definition of ``HEPA vacuum'' and add 
the definition ``Painted surface'' and the definition ``Vertical 
containment'' in alphabetical order to read as follows:


Sec.  745.83  Definitions.

* * * * *
    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 capturing 
particulates 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. HEPA 
vacuums must be operated and maintained in accordance with the 
manufacturer's instructions.
* * * * *
    Painted surface means a component surface covered in whole or in 
part with paint or other surface coatings.
* * * * *
    Vertical containment means a vertical barrier consisting of plastic 
sheeting or other impermeable material over scaffolding or a rigid 
frame, or an equivalent system of containing the work area. Vertical 
containment is required for some exterior renovations but it may be 
used on any renovation.
* * * * *

0
4. Section 745.85 is amended as follows:
0
a. Revise paragraphs (a)(2)(i)(D) and (a)(2)(ii)(C) and (D);
0
b. Revise paragraph (a)(3);
    The revisions read as follows:


Sec.  745.85  Work practice standards.

    (a) * * *
    (2) * * *
    (i) * * *
    (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. Floor 
containment measures may stop at the edge of the vertical barrier when 
using a vertical containment system consisting of impermeable barriers 
that extend from the floor to the ceiling and are tightly sealed at 
joints with the floor, ceiling and walls.
* * * * *
    (ii) * * *
    (C) Cover 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. Ground containment measures may stop at the 
edge of the vertical barrier when using a vertical containment system.
    (D) If the renovation will affect surfaces within 10 feet of the 
property

[[Page 47939]]

line, the renovation firm must erect vertical containment or equivalent 
extra precautions in containing the work area to ensure that dust and 
debris from the renovation does not contaminate adjacent buildings or 
migrate to adjacent properties. Vertical containment or equivalent 
extra precautions in containing the work area may also be necessary in 
other situations in order to prevent contamination of other buildings, 
other areas of the property, or adjacent buildings or properties.
    (3) Prohibited and restricted practices. The work practices listed 
below are prohibited or restricted during a renovation as follows:
    (i) Open-flame burning or torching of painted surfaces is 
prohibited.
    (ii) The use of machines designed to remove paint or other surface 
coatings through high speed operation such as sanding, grinding, power 
planing, needle gun, abrasive blasting, or sandblasting, is prohibited 
on painted surfaces unless such machines have shrouds or containment 
systems and are equipped with a HEPA vacuum attachment to collect dust 
and debris at the point of generation. Machines must be operated so 
that no visible dust or release of air occurs outside the shroud or 
containment system.
    (iii) Operating a heat gun on painted surfaces is permitted only at 
temperatures below 1,100 degrees Fahrenheit.
* * * * *

0
5. Section 745.86 is amended as follows:
    a. Add paragraph (b)(1)(iii).
    b. Redesignate paragraphs (b)(6)(iv) through (vii) as paragraphs 
(b)(6)(v) through (viii), respectively.
    c. Add new paragraph (b)(6)(iv).
    The additions and revisions read as follows:


Sec.  745.86  Recordkeeping and reporting requirements.

* * * * *
    (b) * * *
    (1) * * *
    (iii) Records prepared by a certified renovator after collecting 
paint chip samples, including a description of the components that were 
tested including their locations, the name and address of the NLLAP-
recognized entity performing the analysis, and the results for each 
sample.
* * * * *
    (6) * * *
    (iv) If paint chip samples were collected, that the samples were 
collected at the specified locations, that the specified NLLAP-
recognized laboratory analyzed the samples, and that the results were 
as specified.
* * * * *
0
6. Section 745.90 is amended as follows:
0
a. Revise paragraphs (a)(2) and (a)(3).
0
b. Revise paragraphs (b)(2), (b)(4), and (b)(8).


Sec.  745.90  Renovator certification and dust sampling technician 
certification.

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

0
7. In Sec.  745.92, add paragraph (b)(3) to read as follows:


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

* * * * *
    (b) * * *
    (3) Accreditation or certification amendments. No fee will be 
charged for accreditation or certification amendments.
* * * * *

0
8. Revise Sec.  745.225 to read as follows:


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

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

[[Page 47940]]

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

[[Page 47941]]

hands-on training activities. The minimum curriculum requirements for 
the abatement worker course are contained in paragraph (d)(5) of this 
section.
    (vi) The renovator course must last a minimum of 8 training hours, 
with a minimum of 2 hours devoted to hands-on training activities. The 
minimum curriculum requirements for the renovator course are contained 
in paragraph (d)(6) of this section.
    (vii) The dust sampling technician course must last a minimum of 8 
training hours, with a minimum of 2 hours devoted to hands-on training 
activities. The minimum curriculum requirements for the dust sampling 
technician course are contained in paragraph (d)(7) of this section.
    (viii) Electronic learning and other alternative course delivery 
methods are permitted for the classroom portion of renovator, dust 
sampling technician, or lead-based paint activities courses but not the 
hands-on portion of these courses, or for final course tests or 
proficiency tests described in paragraph (c)(7) of this section. 
Electronic learning courses must comply with the following 
requirements:
    (A) A unique identifier must be assigned to each student for them 
to use to launch and re-launch the course.
    (B) The training provider must track each student's course log-ins, 
launches, progress, and completion, and maintain these records in 
accordance with paragraph (i) of this section.
    (C) The course must include periodic knowledge checks equivalent to 
the number and content of the knowledge checks contained in EPA's model 
course, but at least 16 over the entire course. The knowledge checks 
must be successfully completed before the student can go on to the next 
module.
    (D) There must be a test of at least 20 questions at the end of the 
electronic learning portion of the course, of which 80% must be 
answered correctly by the student for successful completion of the 
electronic learning portion of the course. The test must be designed so 
that students to do not receive feedback on their test answers until 
after they have completed and submitted the test.
    (E) Each student must be able to save or print a copy of an 
electronic learning course completion certificate. The electronic 
certificate must not be susceptible to easy editing.
    (7) For each course offered, the training program shall conduct 
either a course test at the completion of the course, and if 
applicable, a hands-on skills assessment, or in the alternative, a 
proficiency test for that discipline. Each student must successfully 
complete the hands-on skills assessment and receive a passing score on 
the course test to pass any course, or successfully complete a 
proficiency test.
    (i) The training manager is responsible for maintaining the 
validity and integrity of the hands-on skills assessment or proficiency 
test to ensure that it accurately evaluates the trainees' performance 
of the work practices and procedures associated with the course topics 
contained in paragraph (d) of this section.
    (ii) The training manager is responsible for maintaining the 
validity and integrity of the course test to ensure that it accurately 
evaluates the trainees' knowledge and retention of the course topics.
    (iii) The course test shall be developed in accordance with the 
test blueprint submitted with the training accreditation application.
    (8) The training program shall issue unique course completion 
certificates to each individual who passes the training course. The 
course completion certificate shall include:
    (i) The name, a unique identification number, and address of the 
individual.
    (ii) The name of the particular course that the individual 
completed.
    (iii) Dates of course completion/test passage.
    (iv) For initial inspector, risk assessor, project designer, 
supervisor, or abatement worker course completion certificates, the 
expiration date of interim certification, which is 6 months from the 
date of course completion.
    (v) The name, address, and telephone number of the training 
program.
    (vi) The language in which the course was taught.
    (vii) For renovator and dust sampling technician course completion 
certificates, a photograph of the individual. The photograph must be an 
accurate and recognizable image of the individual. As reproduced on the 
certificate, the photograph must not be smaller than 1 square inch.
    (9) The training manager shall develop and implement a quality 
control plan. The plan shall be used to maintain and improve the 
quality of the training program over time. This plan shall contain at 
least the following elements:
    (i) Procedures for periodic revision of training materials and the 
course test to reflect innovations in the field.
    (ii) Procedures for the training manager's annual review of 
principal instructor competency.
    (10) Courses offered by the training program must teach the work 
practice standards contained in Sec.  745.85 or Sec.  745.227, as 
applicable, in such a manner that trainees are provided with the 
knowledge needed to perform the renovations or lead-based paint 
activities they will be responsible for conducting.
    (11) The training manager shall be responsible for ensuring that 
the training program complies at all times with all of the requirements 
in this section.
    (12) The training manager shall allow EPA to audit the training 
program to verify the contents of the application for accreditation as 
described in paragraph (b) of this section.
    (13) The training manager must provide notification of renovator, 
dust sampling technician, or lead-based paint activities courses 
offered.
    (i) The training manager must provide EPA with notification of all 
renovator, dust sampling technician, or lead-based paint activities 
courses offered. The original notification must be received by EPA at 
least 7 business days prior to the start date of any renovator, dust 
sampling technician, or lead-based paint activities course.
    (ii) The training manager must provide EPA updated notification 
when renovator, dust sampling technician, or lead-based paint 
activities courses will begin on a date other than the start date 
specified in the original notification, as follows:
    (A) For renovator, dust sampling technician, or lead-based paint 
activities courses beginning prior to the start date provided to EPA, 
an updated notification must be received by EPA at least 7 business 
days before the new start date.
    (B) For renovator, dust sampling technician, or lead-based paint 
activities courses beginning after the start date provided to EPA, an 
updated notification must be received by EPA at least 2 business days 
before the start date provided to EPA.
    (iii) The training manager must update EPA of any change in 
location of renovator, dust sampling technician, or lead-based paint 
activities courses at least 7 business days prior to the start date 
provided to EPA.
    (iv) The training manager must update EPA regarding any course 
cancellations, or any other change to the original notification. 
Updated notifications must be received by EPA at least 2 business days 
prior to the start date provided to EPA.
    (v) Each notification, including updates, must include the 
following:
    (A) Notification type (original, update, cancellation).
    (B) Training program name, EPA accreditation number, address, and 
telephone number.

[[Page 47942]]

    (C) Course discipline, type (initial/refresher), and the language 
in which instruction will be given.
    (D) Date(s) and time(s) of training.
    (E) Training location(s) telephone number, and address.
    (F) Principal instructor's name.
    (G) Training manager's name and signature.
    (vi) Notification must be accomplished using any of the following 
methods: Written notification, or electronically using the Agency's 
Central Data Exchange (CDX). Written notification of lead-based paint 
activities course schedules can be accomplished by using either the 
sample form titled ``Lead-Based Paint Training Notification'' or a 
similar form containing the information required in paragraph 
(c)(13)(v) of this section. All written notifications must be delivered 
to EPA by U.S. Postal Service, fax, commercial delivery service, or 
hand delivery (persons submitting notification by U.S. Postal Service 
are reminded that they should allow 3 additional business days for 
delivery in order to ensure that EPA receives the notification by the 
required date). Instructions and sample forms can be obtained from the 
NLIC at 1-800-424-LEAD(5323), or on the Internet at  http://www.epa.gov/lead. Hearing- or speech-impaired persons may reach the 
above telephone number through TTY by calling the toll-free Federal 
Relay Service at 1-800-877-8339.
    (vii) Renovator, dust sampling technician, or lead-based paint 
activities courses must not begin on a date, or at a location other 
than that specified in the original notification unless an updated 
notification identifying a new start date or location is submitted, in 
which case the course must begin on the new start date and/or location 
specified in the updated notification.
    (viii) No training program shall provide renovator, dust sampling 
technician, or lead-based paint activities courses without first 
notifying EPA of such activities in accordance with the requirements of 
this paragraph.
    (14) The training manager must provide notification following 
completion of renovator, dust sampling technician, or lead-based paint 
activities courses.
    (i) The training manager must provide EPA notification after the 
completion of any lead-based paint activities course. This notice must 
be received by EPA no later than 10 business days following course 
completion.
    (ii) The notification must include the following:
    (A) Training program name, EPA accreditation number, address, and 
telephone number.
    (B) Course discipline and type (initial/refresher).
    (C) Date(s) of training.
    (D) The following information for each student who took the course:
    (1) Name.
    (2) Address.
    (3) Date of birth.
    (4) Course completion certificate number.
    (5) Course test score.
    (6) For renovator or dust sampling technician courses, a digital 
photograph of the student.
    (E) Training manager's name and signature.
    (iii) Notification must be accomplished using any of the following 
methods: Written notification, or electronically using the Agency's 
Central Data Exchange (CDX). Written notification following renovator, 
dust sampling technician, or lead-based paint activities training 
courses can be accomplished by using either the sample form titled 
``Lead-Based Paint Training Course Follow-up'' or a similar form 
containing the information required in paragraph (c)(14)(ii) of this 
section. All written notifications must be delivered to EPA by U.S. 
Postal Service, fax, commercial delivery service, or hand delivery 
(persons submitting notification by U.S. Postal Service are reminded 
that they should allow 3 additional business days for delivery in order 
to ensure that EPA receives the notification by the required date). 
Instructions and sample forms can be obtained from the NLIC at 1-800-
424-LEAD (5323), or on the Internet at http://www.epa.gov/lead.
    (d) Minimum training curriculum requirements. To become accredited 
to offer lead-based paint courses in the specific disciplines listed in 
this paragraph, training programs must ensure that their courses of 
study include, at a minimum, the following course topics.
    (1) Inspector. Instruction in the topics described in paragraphs 
(d)(1)(iv), (v), (vi), and (vii) of this section must be included in 
the hands-on portion of the course.
    (i) Role and responsibilities of an inspector.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local 
regulations and guidance that pertains to lead-based paint and lead- 
based paint activities.
    (iv) Lead-based paint inspection methods, including selection of 
rooms and components for sampling or testing.
    (v) Paint, dust, and soil sampling methodologies.
    (vi) Clearance standards and testing, including random sampling.
    (vii) Preparation of the final inspection report.
    (viii) Recordkeeping.
    (2) Risk assessor. Instruction in the topics described in 
paragraphs (d)(2)(iv), (vi), and (vii) of this section must be included 
in the hands-on portion of the course.
    (i) Role and responsibilities of a risk assessor.
    (ii) Collection of background information to perform a risk 
assessment.
    (iii) Sources of environmental lead contamination such as paint, 
surface dust and soil, water, air, packaging, and food.
    (iv) Visual inspection for the purposes of identifying potential 
sources of lead-based paint hazards.
    (v) Lead hazard screen protocol.
    (vi) Sampling for other sources of lead exposure.
    (vii) Interpretation of lead-based paint and other lead sampling 
results, including all applicable Federal or State guidance or 
regulations pertaining to lead-based paint hazards.
    (viii) Development of hazard control options, the role of interim 
controls, and operations and maintenance activities to reduce lead-
based paint hazards.
    (ix) Preparation of a final risk assessment report.
    (3) Supervisor. Instruction in the topics described in paragraphs 
(d)(3)(v), (vii), (viii), (ix), and (x) of this section must be 
included in the hands-on portion of the course.
    (i) Role and responsibilities of a supervisor.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local 
regulations and guidance that pertain to lead-based paint abatement.
    (iv) Liability and insurance issues relating to lead-based paint 
abatement.
    (v) Risk assessment and inspection report interpretation.
    (vi) Development and implementation of an occupant protection plan 
and abatement report.
    (vii) Lead-based paint hazard recognition and control.
    (viii) Lead-based paint abatement and lead-based paint hazard 
reduction methods, including restricted practices.
    (ix) Interior dust abatement/cleanup or lead-based paint hazard 
control and reduction methods.
    (x) Soil and exterior dust abatement or lead-based paint hazard 
control and reduction methods.

[[Page 47943]]

    (xi) Clearance standards and testing.
    (xii) Cleanup and waste disposal.
    (xiii) Recordkeeping.
    (4) Project designer. (i) Role and responsibilities of a project 
designer.
    (ii) Development and implementation of an occupant protection plan 
for large-scale abatement projects.
    (iii) Lead-based paint abatement and lead-based paint hazard 
reduction methods, including restricted practices for large-scale 
abatement projects.
    (iv) Interior dust abatement/cleanup or lead hazard control and 
reduction methods for large-scale abatement projects.
    (v) Clearance standards and testing for large scale abatement 
projects.
    (vi) Integration of lead-based paint abatement methods with 
modernization and rehabilitation projects for large scale abatement 
projects.
    (5) Abatement worker. Instruction in the topics described in 
paragraphs (d)(5)(iv), (v), (vi), and (vii) of this section must be 
included in the hands-on portion of the course.
    (i) Role and responsibilities of an abatement worker.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State and local 
regulations and guidance that pertain to lead-based paint abatement.
    (iv) Lead-based paint hazard recognition and control.
    (v) Lead-based paint abatement and lead-based paint hazard 
reduction methods, including restricted practices.
    (vi) Interior dust abatement methods/cleanup or lead-based paint 
hazard reduction.
    (vii) Soil and exterior dust abatement methods or lead-based paint 
hazard reduction.
    (6) Renovator. Instruction in the topics described in paragraphs 
(d)(6)(iv), (vi), (vii), and (viii) of this section must be included in 
the hands-on portion of the course.
    (i) Role and responsibility of a renovator.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on EPA, HUD, OSHA, and other Federal, 
State, and local regulations and guidance that pertains to lead-based 
paint and renovation activities.
    (iv) Procedures for using acceptable test kits to determine whether 
paint is lead-based paint.
    (v) Procedures for collecting a paint chip sample and sending it to 
a laboratory recognized by EPA under section 405(b) of TSCA.
    (vi) Renovation methods to minimize the creation of dust and lead-
based paint hazards.
    (vii) Interior and exterior containment and cleanup methods.
    (viii) Methods to ensure that the renovation has been properly 
completed, including cleaning verification and clearance testing.
    (ix) Waste handling and disposal.
    (x) Providing on-the-job training to other workers.
    (xi) Record preparation.
    (7) Dust sampling technician. Instruction in the topics described 
in paragraphs (d)(6)(iv) and (vi) of this section must be included in 
the hands-on portion of the course.
    (i) Role and responsibility of a dust sampling technician.
    (ii) Background information on lead and its adverse health effects.
    (iii) Background information on Federal, State, and local 
regulations and guidance that pertains to lead-based paint and 
renovation activities.
    (iv) Dust sampling methodologies.
    (v) Clearance standards and testing.
    (vi) Report preparation.
    (e) Requirements for the accreditation of refresher training 
programs. A training program may seek accreditation to offer refresher 
training courses in any of the following disciplines: Inspector, risk 
assessor, supervisor, project designer, abatement worker, renovator, 
and dust sampling technician. To obtain EPA accreditation to offer 
refresher training, a training program must meet the following minimum 
requirements:
    (1) Each refresher course shall review the curriculum topics of the 
full-length courses listed under paragraph (d) of this section, as 
appropriate. In addition, to become accredited to offer refresher 
training courses, training programs shall ensure that their courses of 
study include, at a minimum, the following:
    (i) An overview of current safety practices relating to lead-based 
paint in general, as well as specific information pertaining to the 
appropriate discipline.
    (ii) Current laws and regulations relating to lead-based paint in 
general, as well as specific information pertaining to the appropriate 
discipline.
    (iii) Current technologies relating to lead-based paint in general, 
as well as specific information pertaining to the appropriate 
discipline.
    (2) Refresher courses for inspector, risk assessor, supervisor, and 
abatement worker must last a minimum of 8 training hours. Refresher 
courses for project designer, renovator, and dust sampling technician 
must last a minimum of 4 training hours. Refresher courses for all 
disciplines except project designer must include a hands-on component.
    (3) Except for project designer courses, for all other courses 
offered, the training program shall conduct a hands-on assessment, and 
at the completion of the course, a course test.
    (4) A training program may apply for accreditation of a refresher 
course concurrently with its application for accreditation of the 
corresponding training course as described in paragraph (b) of this 
section. If so, EPA shall use the approval procedure described in 
paragraph (b) of this section. In addition, the minimum requirements 
contained in paragraphs (c)(1) through (c)(5) and (c)(7) through 
(c)(14), and (e)(1),through (e)(3) of this section shall also apply.
    (5) A training program seeking accreditation to offer refresher 
training courses only shall submit a written application to EPA 
containing the following information:
    (i) The refresher training program's name, address, and telephone 
number.
    (ii) A list of courses for which it is applying for accreditation.
    (iii) The name and documentation of the qualifications of the 
training program manager.
    (iv) The name(s) and documentation of the qualifications of the 
principal instructor(s).
    (v) A statement signed by the training program manager certifying 
that the refresher training program meets the minimum requirements 
established in paragraph (c) of this section, except for the 
requirements in paragraph (c)(6) of this section. If a training program 
uses EPA-developed model training materials, or training materials 
approved by a State or Indian Tribe that has been authorized by EPA 
under Sec.  745.324 to develop its refresher training course materials, 
the training manager shall include a statement certifying that, as 
well.
    (vi) If the refresher training course materials are not based on 
EPA-developed model training materials, the training program's 
application for accreditation shall include:
    (A) A copy of the student and instructor manuals to be used for 
each course.
    (B) A copy of the course agenda for each course.
    (vii) All refresher training programs shall include in their 
application for accreditation the following:
    (A) A description of the facilities and equipment to be used for 
lecture and hands-on training.
    (B) A copy of the course test blueprint for each course.
    (C) A description of the activities and procedures that will be 
used for conducting the assessment of hands-on skills for each course 
(if applicable).

[[Page 47944]]

    (D) A copy of the quality control plan as described in paragraph 
(c)(9) of this section.
    (viii) The requirements in paragraphs (c)(1) through (c)(5), and 
(c)(7) through (c)(14) of this section apply to refresher training 
providers.
    (ix) If a refresher training program meets the requirements listed 
in this paragraph, then EPA shall approve the application for 
accreditation no more than 180 days after receiving a complete 
application from the refresher training program. In the case of 
approval, a certificate of accreditation shall be sent to the 
applicant. In the case of disapproval, a letter describing the reasons 
for disapproval shall be sent to the applicant. Prior to disapproval, 
EPA may, at its discretion, work with the applicant to address 
inadequacies in the application for accreditation. EPA may also request 
additional materials retained by the refresher training program under 
paragraph (i) of this section. If a refresher training program's 
application is disapproved, the program may reapply for accreditation 
at any time.
    (f) Re-accreditation of training programs. (1) Unless re-
accredited, a training program's accreditation, including refresher 
training accreditation, shall expire 4 years after the date of 
issuance. If a training program meets the requirements of this section, 
the training program shall be reaccredited.
    (2) A training program seeking re-accreditation shall submit an 
application to EPA no later than 180 days before its accreditation 
expires. If a training program does not submit its application for re-
accreditation by that date, EPA cannot guarantee that the program will 
be re-accredited before the end of the accreditation period.
    (3) The training program's application for re-accreditation shall 
contain:
    (i) The training program's name, address, and telephone number.
    (ii) A list of courses for which it is applying for re-
accreditation.
    (iii) The name and qualifications of the training program manager.
    (iv) The name(s) and qualifications of the principal instructor(s).
    (v) A description of any changes to the training facility, 
equipment or course materials since its last application was approved 
that adversely affects the students' ability to learn.
    (vi) A statement signed by the program manager stating:
    (A) That the training program complies at all times with all 
requirements in paragraphs (c) and (e) of this section, as applicable; 
and
    (B) The recordkeeping and reporting requirements of paragraph (i) 
of this section shall be followed.
    (vii) A payment of appropriate fees in accordance with Sec.  
745.238.
    (4) Upon request, the training program shall allow EPA to audit the 
training program to verify the contents of the application for re-
accreditation as described in paragraph (f)(3) of this section.
    (g) Suspension, revocation, and modification of accredited training 
programs. (1) EPA may, after notice and an opportunity for hearing, 
suspend, revoke, or modify training program accreditation, including 
refresher training accreditation, if a training program, training 
manager, or other person with supervisory authority over the training 
program has:
    (i) Misrepresented the contents of a training course to EPA and/or 
the student population.
    (ii) Failed to submit required information or notifications in a 
timely manner.
    (iii) Failed to maintain required records.
    (iv) Falsified accreditation records, instructor qualifications, or 
other accreditation-related information or documentation.
    (v) Failed to comply with the training standards and requirements 
in this section.
    (vi) Failed to comply with Federal, State, or local lead-based 
paint statutes or regulations.
    (vii) Made false or misleading statements to EPA in its application 
for accreditation or re-accreditation which EPA relied upon in 
approving the application.
    (2) In addition to an administrative or judicial finding of 
violation, execution of a consent agreement in settlement of an 
enforcement action constitutes, for purposes of this section, evidence 
of a failure to comply with relevant statutes or regulations.
    (h) Procedures for suspension, revocation or modification of 
training program accreditation. (1) Prior to taking action to suspend, 
revoke, or modify the accreditation of a training program, EPA shall 
notify the affected entity in writing of the following:
    (i) The legal and factual basis for the suspension, revocation, or 
modification.
    (ii) The anticipated commencement date and duration of the 
suspension, revocation, or modification.
    (iii) Actions, if any, which the affected entity may take to avoid 
suspension, revocation, or modification, or to receive accreditation in 
the future.
    (iv) The opportunity and method for requesting a hearing prior to 
final EPA action to suspend, revoke or modify accreditation.
    (v) Any additional information, as appropriate, which EPA may 
provide.
    (2) If a hearing is requested by the accredited training program, 
EPA shall:
    (i) Provide the affected entity an opportunity to offer written 
statements in response to EPA's assertions of the legal and factual 
basis for its proposed action, and any other explanations, comments, 
and arguments it deems relevant to the proposed action.
    (ii) Provide the affected entity such other procedural 
opportunities as EPA may deem appropriate to ensure a fair and 
impartial hearing.
    (iii) Appoint an official of EPA as Presiding Officer to conduct 
the hearing. No person shall serve as Presiding Officer if he or she 
has had any prior connection with the specific matter.
    (3) The Presiding Officer appointed pursuant to paragraph (h)(2) of 
this section shall:
    (i) Conduct a fair, orderly, and impartial hearing within 90 days 
of the request for a hearing.
    (ii) Consider all relevant evidence, explanation, comment, and 
argument submitted.
    (iii) Notify the affected entity in writing within 90 days of 
completion of the hearing of his or her decision and order. Such an 
order is a final agency action which may be subject to judicial review.
    (4) If EPA determines that the public health, interest, or welfare 
warrants immediate action to suspend the accreditation of any training 
program prior to the opportunity for a hearing, it shall:
    (i) Notify the affected entity of its intent to immediately suspend 
training program accreditation for the reasons listed in paragraph 
(g)(1) of this section. If a suspension, revocation, or modification 
notice has not previously been issued pursuant to paragraph (g)(1) of 
this section, it shall be issued at the same time the emergency 
suspension notice is issued.
    (ii) Notify the affected entity in writing of the grounds for the 
immediate suspension and why it is necessary to suspend the entity's 
accreditation before an opportunity for a suspension, revocation or 
modification hearing.
    (iii) Notify the affected entity of the anticipated commencement 
date and duration of the immediate suspension.
    (iv) Notify the affected entity of its right to request a hearing 
on the immediate suspension within 15 days of the suspension taking 
place and the procedures for the conduct of such a hearing.

[[Page 47945]]

    (5) Any notice, decision, or order issued by EPA under this 
section, any transcripts or other verbatim record of oral testimony, 
and any documents filed by an accredited training program in a hearing 
under this section shall be available to the public, except as 
otherwise provided by section 14 of TSCA or by 40 CFR part 2. Any such 
hearing at which oral testimony is presented shall be open to the 
public, except that the Presiding Officer may exclude the public to the 
extent necessary to allow presentation of information which may be 
entitled to confidential treatment under section 14 of TSCA or 40 CFR 
part 2.
    (6) The public shall be notified of the suspension, revocation, 
modification or reinstatement of a training program's accreditation 
through appropriate mechanisms.
    (7) EPA shall maintain a list of parties whose accreditation has 
been suspended, revoked, modified or reinstated.
    (i) Training program recordkeeping requirements. (1) Accredited 
training programs shall maintain, and make available to EPA, upon 
request, the following records:
    (i) All documents specified in paragraph (c)(4) of this section 
that demonstrate the qualifications listed in paragraphs (c)(1) and 
(c)(2) of this section of the training manager and principal 
instructors.
    (ii) Current curriculum/course materials and documents reflecting 
any changes made to these materials.
    (iii) The course test blueprint.
    (iv) Information regarding how the hands-on assessment is conducted 
including, but not limited to:
    (A) Who conducts the assessment.
    (B) How the skills are graded.
    (C) What facilities are used.
    (D) The pass/fail rate.
    (v) The quality control plan as described in paragraph (c)(9) of 
this section.
    (vi) Results of the students' hands-on skills assessments and 
course tests, and a record of each student's course completion 
certificate.
    (vii) Any other material not listed in paragraphs (i)(1)(i) through 
(i)(1)(vi) of this section that was submitted to EPA as part of the 
program's application for accreditation.
    (viii) For renovator refresher and dust sampling technician 
refresher courses, a copy of each trainee's prior course completion 
certificate showing that each trainee was eligible to take the 
refresher course.
    (ix) For course modules delivered in an electronic format, a record 
of each student's log-ins, launches, progress, and completion, and a 
copy of the electronic learning completion certificate for each 
student.
    (2) The training program must retain records pertaining to 
renovator, dust sampling technician and lead-based paint activities 
courses at the address specified on the training program accreditation 
application (or as modified in accordance with paragraph (i)(3) of this 
section) for the following minimum periods:
    (i) Records pertaining to lead-based paint activities courses must 
be retained for a minimum of 3 years and 6 months.
    (ii) Records pertaining to renovator or dust sampling technician 
courses offered before April 22, 2010 must be retained until July 1, 
2015.
    (iii) Records pertaining to renovator or dust sampling technician 
courses offered on or after April 22, 2010 must be retained for a 
minimum of 5 years.
    (3) The training program shall notify EPA in writing within 30 days 
of changing the address specified on its training program accreditation 
application or transferring the records from that address.
    (j) Amendment of accreditation. (1) A training program must amend 
its accreditation within 90 days of the date a change occurs to 
information included in the program's most recent application. If the 
training program fails to amend its accreditation within 90 days of the 
date the change occurs, the program may not provide renovator, dust 
sampling technician, or lead-based paint activities training until its 
accreditation is amended.
    (2) To amend an accreditation, a training program must submit a 
completed ``Accreditation Application for Training Providers,'' signed 
by an authorized agent of the training provider, noting on the form 
that it is submitted as an amendment and indicating the information 
that has changed.
    (3) Training managers, principal instructors, permanent training 
locations. If the amendment includes a new training program manager, 
any new or additional principal instructor(s), or any new permanent 
training location(s), the training provider is not permitted to provide 
training under the new training manager or offer courses taught by any 
new principal instructor(s) or at the new training location(s) until 
EPA either approves the amendment or 30 days have elapsed, whichever 
occurs earlier. Except:
    (i) If the amendment includes a new training program manager or new 
or additional principal instructor that was identified in a training 
provider accreditation application that EPA has already approved under 
this section, the training provider may begin to provide training under 
the new training manager or offer courses taught by the new principal 
instructor on an interim basis as soon as the provider submits the 
amendment to EPA. The training provider may continue to provide 
training under the new training manager or offer courses taught by the 
new principal instructor if EPA approves the amendment or if EPA does 
not disapprove the amendment within 30 days.
    (ii) If the amendment includes a new permanent training location, 
the training provider may begin to provide training at the new 
permanent training location on an interim basis as soon as the provider 
submits the amendment to EPA. The training provider may continue to 
provide training at the new permanent training location if EPA approves 
the amendment or if EPA does not disapprove the amendment within 30 
days.


0
9. In Sec.  745.238, add paragraph (c)(5) to read as follows:


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

* * * * *
    (c) * * *
    (5) Accreditation amendment fees. No fee will be charged for 
accreditation amendments.
* * * * *

0
10. In Sec.  745.326, revise paragraphs (a)(2)(i), (a)(2)(ii), (d), 
(e)(1), and (e)(3) to read as follows:


Sec.  745.326  Renovation: State and Tribal program requirements.

    (a) * * *
    (2) * * *
    (i) Procedures and requirements for the accreditation of renovation 
and dust sampling technician training programs. A State and Tribal 
program is not required to include procedures and requirements for the 
dust sampling technician training discipline if the State or Tribal 
program requires dust sampling to be performed by a certified lead-
based paint inspector or risk assessor.
    (ii) Procedures and requirements for accredited initial and 
refresher training for renovators and dust sampling technicians and on-
the-job training for other individuals who perform renovations.
* * * * *
    (d) Certification of individuals and/or renovation firms. To be 
considered at least as protective as the Federal program, the State or 
Tribal program must:

[[Page 47946]]

    (1) Establish procedures and requirements that ensure that 
individuals who perform or direct renovations are properly trained. 
These procedures and requirements must include:
    (i) A requirement that renovations be performed and directed by at 
least one individual who has been trained by an accredited training 
program.
    (ii) Procedures and requirements for accredited refresher training 
for these individuals.
    (iii) Procedures and requirements for individuals who have received 
accredited training to provide on-the-job training for those 
individuals who perform renovations but do not receive accredited 
training. A State and Tribal program is not required to include 
procedures and requirements for on-the-job training for renovation 
workers if the State or Tribal program requires accredited initial and 
refresher training for all persons who perform renovations.
    (2) Establish procedures and requirements for the formal 
certification and re-certification of renovation firms.
    (3) Establish procedures for the suspension, revocation, or 
modification of certifications.
    (e) * * *
    (1) Renovations must be conducted only by certified renovation 
firms, using trained individuals.
* * * * *
    (3) Certified individuals and/or renovation firms must retain 
appropriate records.
* * * * *

0
11. In Sec.  745.327, revise paragraphs (b)(1), (b)(2), (b)(3), and 
(c)(2) to read as follows:


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

* * * * *
    (b) * * *
    (1) Lead-based paint activities or renovation requirements. State 
or Tribal lead-based paint compliance and enforcement programs will be 
considered adequate if the State or Indian Tribe demonstrates, in its 
application at Sec.  745.324(b)(2), that it has established a lead-
based paint program that contains all of the elements specified in 
Sec.  745.325 or Sec.  745.326, or both, as applicable.
    (2) Authority to enter. State or Tribal officials must be able to 
enter, through consent, warrant, or other authority, premises or 
facilities where lead-based paint violations may occur for purposes of 
conducting inspections.
    (i) State or Tribal officials must be able to enter premises or 
facilities where those engaged in training for lead-based paint 
activities or renovations conduct business.
    (ii) For the purposes of enforcing a renovation program, State or 
Tribal officials must be able to enter a firm's place of business or 
work site.
    (iii) State or Tribal officials must have authority to take samples 
and review records as part of the lead-based paint inspection process.
    (3) Flexible remedies. A State or Tribal lead-based paint 
compliance and enforcement program must provide for a diverse and 
flexible array of enforcement statutory and regulatory authorities and 
remedies. At a minimum, these authorities and remedies, which must also 
be reflected in an enforcement response policy, must include the 
following:
    (i) The authority to issue warning letters, Notices of 
Noncompliance, Notices of Violation, or the equivalent;
    (ii) The authority to assess administrative or civil fines, 
including a maximum penalty authority for any violation in an amount no 
less than $5,000 per violation per day;
    (iii) The authority to assess the maximum penalties or fines for 
each instance of violation and, if the violation is continuous, the 
authority to assess penalties or fines up to the maximum amount for 
each day of violation, with all penalties assessed or collected being 
appropriate for the violation after consideration of factors as the 
State or Tribe determine to be relevant, including the size or 
viability of the business, enforcement history, risks to human health 
or the environment posed by the violation, and other similar factors;
    (iv) The authority to commence an administrative proceeding or to 
sue in courts of competent jurisdiction to recover penalties;
    (v) The authority to suspend, revoke, or modify the accreditation 
of any training provider or the certification of any individual or 
firm;
    (vi) The authority to commence an administrative proceeding or to 
sue in courts of competent jurisdiction to enjoin any threatened or 
continuing violation of any program requirement, without the necessity 
of a prior suspension or revocation of a trainer's accreditation or a 
firm's or individual's certification;
    (vii) The authority to apply criminal sanctions, including 
recovering fines; and
    (viii) The authority to enforce its authorized program using a 
burden of proof standard, including the degree of knowledge or intent 
of the respondent that is no greater than it is for EPA under TSCA.
* * * * *
    (c) * * *
    (2) Compliance assistance. A State or Tribal lead-based paint 
compliance and enforcement program must provide compliance assistance 
to the public and the regulated community to facilitate awareness and 
understanding of and compliance with State or Tribal requirements 
governing the conduct of lead-based paint activities or renovations. 
The type and nature of this assistance can be defined by the State or 
Indian Tribe to achieve this goal.
* * * * *
[FR Doc. 2011-19417 Filed 8-4-11; 8:45 am]
BILLING CODE 6560-50-P