Lead; Renovation, Repair, and Painting Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2005-0049; FRL-7755-5]

RIN 2070-AC83

Lead; Renovation, Repair, and Painting Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing new requirements to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint. This action supports the attainment of the Federal government's goal of eliminating childhood lead poisoning by 2010. The proposal would establish requirements for training renovators and dust sampling technicians; certifying renovators, dust sampling technicians, and renovation firms; accrediting providers of renovation and dust sampling technician training; and for renovation work practices. These requirements would apply in “target housing,” defined in section 401 of the Toxic Substances Control Act (TSCA) as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Initially the rule would apply to all renovations for compensation performed in target housing where a child with an increased blood lead level resides, rental target housing built before 1960 and owner-occupied target housing built before 1960, unless, with respect to owner-occupied target housing, the person performing the renovation obtains a statement signed by the owner-occupant that the renovation will occur in the owner's residence and that no child under age 6 resides there. EPA is proposing to phase in the applicability of this proposal to all rental target housing and owner-occupied target housing built in the years 1960 through 1977 where a child under age 6 resides. This proposal is issued under the authority of TSCA section 402(c)(3). EPA is also proposing to allow interested States, Territories, and Indian Tribes the opportunity to apply for and receive authorization to administer and enforce all of the elements of the new renovation provisions.

DATES:

Comments must be received on or before April 10, 2006. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by OMB on or before February 9, 2006.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OPPT-2005-0049, by one of the following methods:

•

Federal eRulemaking Portal: http://www.regulations.gov/

. Follow the on-line instructions for submitting comments.

•

Mail

: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503.

•

Hand Delivery

: OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID number EPA-HQ-OPPT-2005-0049. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions

: Direct your comments to docket ID number EPA-HQ-OPPT-2005-0049. EPA's policy is that all comments received will be included in the public docket without change and may be made available in the on-line docket at

http://www.regulations.gov

, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov, or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket

: All documents in the docket are listed in the docket index at

http://www.regulations.gov/

. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in the online docket at

http://www.regulations.gov/

or in hard copy at the OPPT Docket, EPA Docket Center, EPA West, Rm. B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The EPA Docket Center Reading Room telephone number is (202) 566-1744, and the telephone number for the OPPT Docket, which is located in the EPA Docket Center, is (202) 566-0280.

FOR FURTHER INFORMATION CONTACT:

For general information contact

: Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address:

TSCA-Hotline@epa.gov

.

For technical information contact

: Mike Wilson, National Program Chemicals Division (7404T), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 566-0521; e-mail address:

wilson.mike@epa.gov

.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may be potentially affected by this action if you perform renovations of target housing for compensation or dust sampling. Target housing is defined in section 401 of TSCA as any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling.

Potentially affected entities may include, but are not limited to:

• Building construction (NAICS 236), e.g., single family housing construction, multi-family housing construction, residential remodelers.

• Specialty trade contractors (NAICS 238), e.g., plumbing, heating, and air-conditioning contractors, painting and wall covering contractors, electrical contractors, finish carpentry contractors, drywall and insulation contractors, siding contractors, tile and terrazzo contractors, glass and glazing contractors.

• Real estate (NAICS 531), e.g., lessors of residential buildings and dwellings, residential property managers.

• Other technical and trade schools (NAICS 611519), e.g., training providers.

• Engineering services (NAICS 541330) and building inspection services (NAICS 541350), e.g., dust sampling technicians.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in § 745.82 of the proposed rule. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under

FOR FURTHER INFORMATION CONTACT

.

B. What Should I Consider as I Prepare My Comments for EPA?

1.

Submitting CBI.

Do not submit this information to EPA through EDOCKET, regulations.gov, or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2.

Tips for preparing your comments.

When submitting comments, remember to:

i. Identify the rulemaking by docket ID number and other identifying information (subject heading,

Federal Register

date, and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns, and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity, obscene language, or personal threats.

viii. Make sure to submit your comments by the comment period deadline.

II. Background

A. What Action is the Agency Taking?

EPA is proposing new requirements to reduce the exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint. This action supports the attainment of the Federal government's goal of eliminating childhood lead poisoning by 2010. The proposal would establish requirements for training renovators and dust sampling technicians; certifying renovators, dust sampling technicians, and renovation firms; accrediting providers of renovation and dust sampling technician training; and renovation work practices. These requirements would apply in “target housing,” defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Initially the rule would apply to all renovations for compensation performed in target housing where a child with an increased blood lead level resides; rental target housing built before 1960; and owner-occupied target housing built before 1960, unless the person performing the renovation obtains a statement signed by the owner-occupant that the renovation will occur in the owner's residence and that no child under age 6 resides there. EPA is proposing to phase in the applicability of this proposal to all rental target housing and owner-occupied target housing built in the years 1960 through 1977 where a child under age 6 resides. This proposal is issued under the authority of TSCA section 402(c)(3). EPA is also proposing to allow interested States, Territories, and Indian Tribes the opportunity to apply for, and receive authorization to, administer and enforce all of the elements of the new renovation provisions.

EPA is planning to incorporate the training, certification, and accreditation requirements in this proposal, along with the proposed work practice standards for renovations, into 40 CFR part 745, subpart E. Subpart E currently contains the Pre-Renovation Education Rule requirements. As discussed in Unit IV.B., the requirements in this proposal would apply to renovations currently regulated by the Pre-Renovation Education Rule. As a result, 40 CFR part 745, subpart E would be a logical place to codify these requirements. In order to do so, EPA is proposing to remove some existing sections from this subpart and replace them with new sections.

EPA is proposing to delete 40 CFR 745.84 because it is duplicative. This section provides some details on submitting CBI and how EPA will handle that information. However, comprehensive regulations governing sensitive business information, including CBI under TSCA, are codified in 40 CFR part 2. The regulations in 40 CFR part 2 set forth the procedures for making a claim of confidentiality and describe the rules governing EPA's release of information. Therefore, 40 CFR 745.84 is superfluous. EPA is proposing to delete this section and redesignate existing § 745.85 as § 745.84. EPA is also proposing to amend newly designated § 745.84 so as to place the responsibility for carrying out the information distribution requirements on the firm conducting the renovation rather than the certified renovator.

EPA is also proposing to delete 40 CFR 745.88. This section provides sample pamphlet acknowledgment statements and sample attempted delivery certification statements. These statements may, but are not required to, be used by renovators for the purpose of complying with the recordkeeping requirements of the Pre-Renovation Education Rule. EPA is making available in the docket and on its Web page new sample statements to assist renovation firms in complying with the Pre-Renovation Education Rule as well

as the provisions of this proposal (Ref. 1). More information on the recordkeeping requirements of this proposal can be found in Units III.B. through III.D.

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

These training, certification and accreditation requirements and work practice standards are being proposed pursuant to the authority of TSCA section 402(c)(3), 15 U.S.C. 2682(c)(3), as amended by Title X of the Housing and Community Development Act of 1992, Public Law 102-550 (also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992) (“the Act” or “Title X”) (Ref. 2). The Model State Program and amendments to the regulations on the authorization of State and Tribal programs with respect to renovators and dust sampling technicians are being proposed pursuant to section 404 of TSCA, 15 U.S.C. 2684.

III. Introduction

A. Information on Lead, Health Effects, and History

Lead is a soft, bluish metallic element mined from rock and found in its natural state all over the world. Lead is virtually indestructible, is persistent, and has been known since antiquity for its adaptability in making various useful items. In modern times, it has been used to manufacture many different products, including paint, batteries, pipes, solder, pottery, and gasoline. Through the 1940's, paint manufacturers frequently used lead as a primary ingredient in many oil-based interior and exterior house paints. Usage gradually decreased through the 1950's and 1960's as titanium dioxide replaced lead and as latex paints became more widely available.

According to the Centers for Disease Control, there is no known safe blood lead level (Ref. 3). Health effects associated with exposure to lead and lead compounds include, but are not limited to, neurotoxicity, developmental delays, hypertension, impaired hearing acuity, impaired hemoglobin synthesis, and male reproductive impairment (Refs. 3 and 4). Lead bioaccumulates, and it is difficult to remove from blood and bones. Lead exposure in young children is of particular concern because children absorb lead more readily than adults (Refs. 3 and 4). Children have a higher risk of exposure because of their more frequent hand-to-mouth behavior (Ref. 3). Low levels of lead in a child's bloodstream can interfere with growth and cause cognitive impairment, permanent hearing and visual impairment, and other damage to the brain and nervous system (Refs. 3 and 4). The effects of long-term lead exposure or poisoning in children are well-documented: Higher school failure rates and reductions in lifetime earnings due to permanent loss of intelligence and increased social pathologies (Ref. 3).

In large doses, lead can cause blindness, brain damage, convulsions, and even death. Lead exposure before or during pregnancy can affect fetal development and cause miscarriages, as lead can pass from a pregnant woman's bloodstream to the developing child. There is also some indication that lead exposure contributes to high blood pressure and reproductive and memory problems in adults (Ref. 5). According to EPA's Integrated Risk Information System (IRIS), by comparison to most other environmental toxicants, the degree of uncertainty about the health effects of lead is quite low and it appears that some effects, particularly changes in the levels of certain blood enzymes as well as changes in aspects of children's neurobehavioral development, may occur at blood levels so low as to be essentially without a threshold (Ref. 6).

Paint that contains lead can pose a health threat through various routes of exposure. House dust is the most common exposure pathway through which children are exposed to lead paint hazards. Dust created during normal lead-based paint wear (especially around windows and doors) can create an invisible film over surfaces in a house. Children, particularly younger children, may also ingest lead-based paint chips from flaking walls, windows, and doors. Lead from exterior house paint can flake off or leach into the soil around the outside of a home, contaminating children's play areas. Cleaning and renovation activities may actually increase the threat of lead-based paint exposure by dispersing lead dust particles in the air and over accessible household surfaces. In turn, both adults and children can receive hazardous exposures by inhaling the dust or by ingesting paint-dust during hand-to-mouth activities.

In the last 3 decades of the 20th century, various agencies of the Federal government took independent actions to address lead exposure. In 1978, the Consumer Product Safety Commission (CPSC) banned the use of paint containing more than 0.06% lead by weight on toys, furniture, and interior and exterior surfaces in housing and other buildings and structures used by consumers (Ref. 7). Also in 1978, the Occupational Safety and Health Administration (OSHA) issued regulations to protect general industry workers from lead exposure (Ref. 8). OSHA issued regulations in 1993 to protect construction workers, including abatement workers, from lead exposure (Ref. 9). In 1973, EPA issued regulations designed to gradually reduce the amount of lead in leaded gasoline (Ref. 10). EPA lowered the maximum levels of lead permitted in public water systems in 1991 (Ref. 11). The Centers for Disease Control and Prevention (CDC) set and lowered blood lead “levels of concern” several times, as new studies showed the impact of lead levels on children's health (Ref. 12). (The level of concern is the level where medical and environmental case management activities should be implemented.) The Department of Housing and Urban Development (HUD) began to abate lead hazards in public housing that was being renovated or in structures occupied by a child with elevated blood lead levels. These efforts, and those of State and local agencies and the private sector, reduced the incidence of lead poisoning.

In 1991, the Secretary of the Department of Health and Human Services (HHS) characterized lead poisoning as the “number one environmental threat to the health of children in the United States” (Ref. 13, p. A-3).

Preventing Lead Poisoning in Young Children; A Statement By the Centers For Disease Control and Prevention

, identified lead-based paint as the major source of high-dose lead poisoning in the United States (Ref. 12, pp. 7-10). Although CPSC's ban on high lead levels in residential paint was an important and necessary step in reducing the number of lead-poisoned children, millions of houses still contained old leaded paint.

B. The Federal Lead-based Paint Program.

1.

Title X and the Federal goal.

Primarily in response to this persistent health threat, in 1992 Congress enacted Title X. Congress found that low-level lead poisoning was widespread among American children, affecting, at that time, as many as 3,000,000 children under age 6; that the ingestion of household dust containing lead from deteriorating or abraded lead-based paint was the most common cause of lead poisoning in children; and that the health and development of children living in as many as 3,800,000 American homes was endangered by chipping or peeling lead paint, or excessive amounts of lead-contaminated dust in their homes. Congress determined that the prior Federal response to this crisis was

insufficient and established, in Title X, a national goal of eliminating lead-based paint hazards in housing as expeditiously as possible. Congress decided that the Federal government would take a leadership role in building the infrastructure necessary to achieve this goal.

The stated purposes of Title X are:

• To develop a national strategy to build the infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as possible.

• To reorient the national approach to the presence of lead-based paint in housing to implement, on a priority basis, a broad program to evaluate and reduce lead-based paint hazards in the Nation's housing stock.

• To encourage effective action to prevent childhood lead poisoning by establishing a workable framework for lead-based paint hazard evaluation and reduction and by ending the current confusion over reasonable standards of care.

• To ensure that the existence of lead-based paint hazards is taken into account in the development of Government housing policies and in the sale, rental, and renovation of homes and apartments.

• To mobilize national resources expeditiously, through a partnership among all levels of government and the private sector, to develop the most promising, cost-effective methods for evaluating and reducing lead-based paint hazards.

• To reduce the threat of childhood lead poisoning in housing owned, assisted, or transferred by the Federal Government.

• To educate the public concerning the hazards and sources of lead-based paint poisoning and steps to reduce and eliminate such hazards.

(Ref. 2). To accomplish this ambitious goal, a number of agencies were assigned specific responsibilities under Title X, including HUD, CDC, OSHA, the National Institute for Occupational Safety and Health (NIOSH), and EPA.

The elimination of lead-based paint hazards in the nation's housing remains an important goal for the Federal government. In 1997, President Clinton created the President's Task Force on Environmental Health Risks and Safety Risks to Children in response to increased awareness that children face disproportionate risks from environmental health and safety hazards. Co-chaired by the Secretary of HHS and the Administrator of the EPA, the Task Force consisted of representatives from 16 Federal departments and agencies. The Task Force set a Federal goal of eliminating childhood lead poisoning by the year 2010. This proposed rule is an important component of the Federal strategy for achieving this goal. In October 2001, President Bush extended the work of the Task Force for an additional 18 months beyond its original charter (Ref. 14). Reducing lead poisoning in children was the Task Force's top priority.

Childhood lead exposure continues to be a major public health problem among young children in the United States. Most children with blood lead levels in excess of CDC's current level of concern have been exposed to lead in non-intact paint, interior settled dust, and dust and soil in and around deteriorating older housing (Ref. 15). The nature and extent of the problems associated with residential lead-based paint have been thoroughly investigated. Approximately 40% of all U.S. housing units (about 38 million homes) have some lead-based paint. Use of lead-safe work practices during renovation can advance the goal of primary prevention of lead poisoning (Ref. 15).

2.

EPA's lead-based paint program

. Under Title X, EPA is directed to take actions that can be divided into 4 key categories:

• Establishing a training and certification program for persons engaged in lead-based paint activities, accrediting training providers, establishing work practice standards for the safe, reliable, and effective identification and elimination of lead-based paint hazards, and developing a program to address exposure to lead-based paint hazards from renovation and remodeling activities.

• Ensuring that, for most housing constructed before 1978, lead-based paint information flows from sellers to purchasers, from landlords to tenants, and from renovators to owners and occupants.

• Establishing standards for identifying dangerous levels of lead in paint, dust and soil.

• Providing information on lead hazards to the public, including steps that people can take to protect themselves and their families from lead-based paint hazards.

Each of these categories is discussed in more detail in the following sections.

a.

Training and certification, accreditation, and work practice standards.

Title X added a new title to TSCA entitled “Title IV Lead Exposure Reduction.” Most of EPA's responsibilities for addressing lead-based paint hazards can be found in this title, with section 402 being one source of the rulemaking authority to carry out these responsibilities. TSCA section 402(a) directs EPA to promulgate regulations covering lead-based paint activities to ensure persons performing these activities are properly trained, that training programs are accredited, and that contractors performing these activities are certified. These regulations must contain standards for performing lead-based paint activities, taking into account reliability, effectiveness, and safety.

On August 29, 1996, EPA promulgated final regulations under TSCA section 402(a) governing lead-based paint inspections, lead hazard screens, risk assessments, and abatements in target housing (Ref. 16). TSCA section 401 defines “target housing” as any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing for the elderly or persons with disabilities) or any 0-bedroom dwelling. These regulations also apply to “child-occupied facilities,” which are defined at 40 CFR 745.223 as buildings constructed before 1978, or portions of such buildings, where children under age 6 are regularly present.

TSCA section 402 defines lead-based paint activities in target housing as inspections, risk assessments and abatements. The 1996 regulations cover lead-based paint activities in target housing and child-occupied facilities, along with limited screening activities called lead hazard screens. The regulations also established an accreditation program for training providers and a certification program for individuals and firms performing these activities.

Training providers who wish to provide lead-based paint training for the purposes of the Federal lead-based paint program must be accredited by EPA. Implementing regulations at 40 CFR 745.225 describe in detail the requirements for each course of study, how training programs must be operated, and the process for obtaining accreditation. Training programs must have a training manager with experience or education in a construction or environmental field, and a principal instructor with experience or education in a related field and education or experience in teaching adults. Training programs must also have adequate facilities and equipment for delivering the training. To become accredited, an application for accreditation must be submitted to EPA on behalf of the training program. The application must either include the course materials and syllabus, or a statement that EPA model

materials or materials approved by an authorized State or Tribe will be used. The application must also include a description of the facilities and equipment that will be used, a copy of the test blueprint for each course, a description of the activities and procedures that will be used during the hands-on skills portion of each course, a copy of the quality control plan, and the correct amount of fees. If EPA finds that the program meets the regulatory requirements, it will accredit the training program for 4 years. To maintain accreditation, the training program must submit an application and the correct amount of fees every 4 years.

Individuals and firms that perform inspections, lead hazard screens, risk assessments, or abatements in target housing or child-occupied facilities must be certified. Certification requirements and the process for becoming certified are described in 40 CFR 745.226. A firm that wishes to become certified must submit an application, along with the correct amount of fees, attesting that it will use only certified individuals to perform lead-based paint activities and that it will follow the work practice standards in 40 CFR 745.227. An individual who wishes to become certified must take an accredited training course in at least one of the certified disciplines: Inspector, risk assessor, project designer, abatement worker, and abatement supervisor. The risk assessor, project designer, and abatement supervisor disciplines have additional requirements for education or experience in a construction or environmental field. The inspector, risk assessor, and abatement supervisor disciplines also require the applicant to pass a certification examination administered by a third party.

The regulations at 40 CFR part 745, subpart L, also contain work practice standards for performing inspections, lead hazard screens, risk assessments and abatements in target housing and child-occupied facilities. The regulations contain specific requirements for conducting paint sampling during an inspection and specify information that must be gathered and samples that must be taken as part of a lead hazard screen or risk assessment. The requirements for abatements are also set forth in the regulations. When conducting abatements, an occupant protection plan must be prepared by a certified supervisor or project designer; certain work practices such as open-flame burning, machine sanding or abrasive blasting without high-efficiency exhaust control, dry scraping, and heat guns at high settings are prohibited; and a visual inspection and dust clearance sampling must be performed after the abatement is finished to ensure that the area is ready for re-occupancy. Any samples collected during any of these regulated lead-based paint activities must be analyzed by a laboratory recognized by EPA as being capable of analyzing paint chips, dust, and soil for lead. Requirements for inspection, lead hazard screen, risk assessment or abatement reports are also described in this section.

Recognizing the importance of States and Territories in achieving the goal of eliminating lead-based paint hazards in housing, Congress specifically directed EPA to establish a model State program and a process for authorizing States to operate such programs in lieu of the Federal program. Concurrently with the subpart L rulemaking in 1996, EPA codified, at 40 CFR part 745, subpart Q, a model training and certification program and a process for enabling States, Territories, and Tribes to apply for authorization to administer their own lead-based paint activity programs. Providing Indian Tribes with this opportunity is consistent with EPA's Policy for the Administration of Environmental Programs on Indian Reservations (Ref. 17). EPA also provides grants under TSCA section 404 to States, Territories, and Tribes to assist them in developing and administering these programs, as well as programs implementing TSCA section 406(b), discussed in this Unit.

On June 9, 1999, the subpart L regulations were amended to include a fee schedule for training programs seeking EPA accreditation and for individuals and firms seeking EPA certification (Ref. 18). These fees were established as directed by TSCA section 402(a)(3), which requires EPA to recover the cost of administering and enforcing the lead-based paint activities requirements in unauthorized States. The most recent amendment to the subpart L regulations occurred on April 8, 2004, when notification requirements were added to help EPA monitor compliance with the training and certification provisions and the abatement work practice standards (Ref. 19).

As of December 2005, 44 programs comprised of 39 States, 3 Tribes, Puerto Rico, and the District of Columbia were authorized to administer lead-based paint activity programs. In the remaining jurisdictions, where EPA is responsible for administering the subpart L regulations, there were approximately 55 accredited training course providers, 1,300 certified firms, 500 certified inspectors, 1,400 certified risk assessors, 60 certified project designers, 1,000 certified abatement supervisors, and 2,800 certified abatement workers. EPA believes that, in most areas of the country, there is an adequate supply of accredited courses and certified firms and individuals available to meet the demand for lead-based paint services. This is a significant part of the national infrastructure necessary to achieve the goal of eliminating lead-based paint hazards in housing.

In addition, Congress directed EPA, in TSCA section 405, to establish protocols, criteria, and minimum performance standards for analysis of lead in paint, dust, and soil. TSCA section 405 further directed EPA, in consultation with HHS, to develop a program to certify qualified laboratories. The National Lead Laboratory Accreditation Program (NLLAP) provides the public with a list of laboratories that have met EPA requirements and demonstrated the capability to accurately analyze paint chip, dust, or soil samples for lead. All laboratories recognized by NLLAP must pass on-site audits conducted by one of the two accrediting organizations currently participating in NLLAP, the American Industrial Hygiene Association (AIHA), and the American Association for Laboratory Accreditation. Recognized laboratories must also perform successfully on a continuing basis in the Environmental Lead Proficiency Analytical Testing (ELPAT) Program established by NIOSH, AIHA, and EPA.

b.

Lead-based paint information for purchasers, renters, owners, and occupants of target housing.

Another of EPA's responsibilities under Title X is to require that purchasers and tenants of target housing and occupants of target housing undergoing renovation are provided information on lead-based paint and lead-based paint hazards. As directed by TSCA section 406(a), CPSC, HUD, and EPA, in consultation with CDC, jointly developed a lead hazard information pamphlet entitled “Protect Your Family From Lead in Your Home” (“PYF”) (Ref. 20). The availability of this pamphlet was announced on August 1, 1995 (Ref. 21). This pamphlet was designed to be distributed as part of the disclosure requirements of section 1018 of Title X and TSCA section 406(b), to provide home purchasers, renters, owners, and occupants with the information necessary to allow them to make informed choices when selecting housing to buy or rent, or deciding on home renovation projects. The pamphlet

contains information on the health effects of lead, how exposure can occur, and steps that can be taken to reduce or eliminate the risk of exposure during various activities in the home.

Pursuant to the authority provided in section 1018 of Title X, on March 6, 1996, HUD and EPA jointly promulgated regulations requiring persons who are selling or leasing target housing to provide the PYF pamphlet and information on known lead-based paint and lead-based paint hazards in the housing to purchasers and renters (Ref. 22). These joint regulations, codified at 24 CFR part 35, subpart A, and 40 CFR part 745, subpart F, describe in detail the information that must be provided before the contract or lease is signed and require that sellers, landlords, and agents document compliance with the disclosure requirements in the contract to sell or lease the property. Title X does not provide for these requirements to be administered by States or Tribes in lieu of the Federal regulations. Therefore, HUD and EPA are responsible for administering and enforcing these disclosure obligations.

TSCA section 406(b) directs EPA to promulgate regulations requiring persons who perform home renovations for compensation to provide a lead hazard information pamphlet to owners and occupants of target housing being renovated. These regulations, promulgated on June 1, 1998, are codified at 40 CFR part 745, subpart E (Ref. 23). The term “renovation” is defined, at 40 CFR 745.83, as the modification of any existing structure, or portion of a structure, that results in the disturbance of painted surfaces. Lead-based paint abatement projects are specifically excluded, as are small projects that disturb 2 square feet (ft

2

) or less of painted surfaces, emergency projects, and renovations affecting components that have been found to be free of lead-based paint, as that term is defined in the regulations, by a certified inspector or risk assessor. Like the regulations regarding disclosure during sales or leases, these regulations require the renovation firm to document compliance with the requirement to provide the owner and the occupant with the PYF pamphlet. One important difference from the disclosure requirements in section 1018 of Title X is that TSCA section 404 allows States to apply for, and receive authorization to administer, the TSCA section 406(b) requirements. Two States are currently authorized to operate this program.

c.

Standards for lead in paint, dust, and soil

. Another responsibility assigned to EPA by Title X is the development of standards for identifying dangerous levels of lead in paint, dust and soil. These standards, promulgated pursuant to TSCA section 403 on January 5, 2001 and codified at 40 CFR part 745, subpart D, provide various Federal agencies, including HUD, and State, local and Tribal governments with uniform benchmarks on which to base decisions on remedial actions to safeguard children and the public from lead-based paint hazards (Ref. 24). These standards also allow certified inspectors and risk assessors to easily determine whether a particular situation presents a lead-based paint hazard and whether to recommend remedial actions such as lead-based paint abatement, cleaning of dust, or removal of soil. The standards define lead-based paint hazards in target housing and child-occupied facilities as paint-lead, dust-lead, and soil-lead hazards. A paint-lead hazard is defined as any damaged or deteriorated lead-based paint, any chewable lead-based painted surface with evidence of teeth marks, or any lead-based paint on a friction surface if lead dust levels underneath the friction surface exceed the dust-lead hazard standards. A dust-lead hazard is surface dust that contains a mass-per-area concentration of lead equal to or exceeding 40 micrograms per square foot (μg/ft

2

) on floors or 250 μg/ft

2

on interior window sills based on wipe samples. A soil-lead hazard is bare soil that contains total lead equal to or exceeding 400 parts per million (μg/g) in a play area or average of 1,200 parts per million of bare soil in the rest of the yard based on soil samples.

d.

Public outreach and education

. Among other things, TSCA section 405(d) directs EPA, along with the Agency for Toxic Substances and Disease Registry (ATSDR) and HUD, to sponsor public education and outreach activities to increase public awareness of the health effects of lead, the potential for exposures, the importance of screening children for elevated blood lead levels, and measures that can be taken to reduce or eliminate lead-based paint hazards. Accordingly, EPA has worked to provide the public with information and increase public awareness of such matters. To date, these activities have included web site management, development of public outreach strategies, development of partnership agreements, distribution of materials, participation in national conferences and exhibits, and developing hazard information documents (and other media, such as videos), as necessary to implement Title X. EPA has collaborated closely with other Federal agencies and its State, Tribal, and local government partners in developing outreach campaigns targeted for the Women, Infants and Children (WIC) program, Little League Baseball, and Spanish-speaking populations. Recently, EPA worked with the National Head Start Association to develop a lead poisoning prevention campaign entitled “Give Your Child a Chance of a Lifetime.” The campaign consisted of a number of lead awareness documents, including a brochure for parents, fact sheets for Head Start staff, and a curriculum for Head Start teachers. Lead awareness outreach materials were provided to Head Start Centers in New York, Chicago, Philadelphia, Houston, and Los Angeles. The material was also distributed at the National Head Start Association Training Conferences. EPA has also been involved in developing model tool kits of various educational tools to provide to partners, such as slogans and graphic materials for public buses, trains, and mass transit stations.

EPA has used its authority under TSCA section 10 to award grants to Tribes to support Tribal educational outreach and to conduct baseline assessments of Tribal children's existing and potential exposure to lead. In fiscal year 2005, EPA began a new targeted grant program aimed at reducing the incidence of childhood lead poisoning in vulnerable populations (Ref. 25). These grants are providing funding for proven or innovative programs in areas with high rates of childhood lead poisoning, and in areas where rates are unknown but other conditions suggest high rates may exist.

TSCA section 405(e) further directs EPA to establish, in connection with HUD, CDC, other Federal agencies, and State and local governments, a clearinghouse for information on lead-based paint and a hotline for the public to use for questions and requests for information on lead-based paint. This clearinghouse, the National Lead Information Center, handles approximately 50,000 calls per year, and disseminates up to 500,000 documents per year to the public.

3.

Lead-based paint programs at other Federal agencies

. In addition to EPA, other Federal agencies have important roles in achieving the goals of reducing or eliminating lead-based paint hazards in housing, as well as the national goal of eliminating childhood lead poisoning by 2010. Other agencies specifically assigned tasks in Title X include HUD, CDC, and OSHA.

The Federal agencies have long realized that they must work together to develop and implement Federal strategies for addressing lead-based

paint hazards in order to be efficient and effective. In 1989, HUD and EPA formed an inter-agency task force to work through issues associated with lead-based paint abatement. The Federal Interagency Lead Based Paint Task Force has remained active throughout the years and continues to meet on a quarterly basis. Participating agencies include the Department of Defense, the Veterans Administration, the National Institute of Standards and Technology (NIST), the U.S. Public Health Service, the National Aeronautics and Space Administration (NASA), the United States Department of Agriculture (USDA), the Government Accountability Office (GAO), the National Institute for Environmental Health Sciences (NIEHS), ATSDR, CDC, CPSC, NIOSH, OSHA, HUD, and EPA. This Task Force serves as an important forum for coordinating the strategic plans of the Federal agencies who have responsibilities under Title X or who have responsibilities for maintaining and disposing of property that may contain lead-based paint.

Title X assigned certain responsibilities to HUD. One of HUD's functions is the administration of the Lead-Based Paint Hazard Control Grant Program established by the Act. This program provides grants of $1 million to $3 million to State and local governments for control of lead-based paint hazards in privately-owned, low-income owner-occupied and rental housing that is not receiving federal assistance. These grants are also designed to stimulate the development of a trained and certified hazard evaluation and control industry. Evaluation and hazard control work funded by the program must be conducted by either contractors who are certified by EPA or an EPA-approved State or Tribal program, or by contractors trained in lead-safe work practices, in the case of interim controls. Through these requirements, HUD hopes to create infrastructure that will last beyond the life of the grant. In awarding grants, HUD promotes the use of cost-effective approaches to hazard control that can be replicated across the nation. Since 1993, approximately $971 million has been awarded to over 200 local and State jurisdictions across the country. The work approved to date will lead to the control of lead-based paint hazards in more than 70,000 homes where young children reside or are expected to reside. Other HUD lead grant programs include the Lead Hazard Reduction Demonstration program, the Lead Elimination Action Program (LEAP), the Lead Outreach program and the Lead Technical Studies program.

HUD was also given regulatory authority over some aspects of lead-based paint hazard control. As noted previously, on March 6, 1996, HUD and EPA jointly promulgated regulations requiring the disclosure of lead-based paint information during sale or lease transactions involving target housing. The HUD disclosure regulations are codified at 24 CFR part 35, subpart A. Subparts B through R of 24 CFR part 35 are known as the “Lead Safe Housing Rule,” initially promulgated on September 15, 1999, and updated in June 2004 (Ref. 26). This rule was designed to protect young children from lead-based paint hazards in target housing that is being sold by the Federal government or receives financial assistance from the government. The requirements generally depend upon the level of assistance being provided, and may include such things as inspections, risk assessments, abatement, paint stabilization, or interim controls, which are temporary measures to reduce potential exposure to lead-based paint hazards. The emphasis is on reducing lead-based paint hazards, so, after paint is disturbed, a visual assessment for surface dust, debris, and residue and dust clearance testing is required to ensure that no dust lead hazards were created or left in the work area or, for rehabilitation projects of moderate or substantial scope, in the entire housing unit. More information on the Lead Safe Housing Rule is available on the HUD website at

http://www.hud.gov/offices/lead/leadsaferule/index.cfm

or by calling (202) 755-1785, extension 104.

Section 1017 of Title X required HUD to issue “guidelines for the conduct of federally supported work involving risk assessments, inspections, interim controls, and abatement of lead-based paint hazards.” In response to this directive, HUD completed the

Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (Guidelines)

, in June 1995 (Ref. 27). The

Guidelines

provide detailed, comprehensive, technical information on how to identify lead-based paint hazards in housing and how to control such hazards safely and efficiently.

Other core activities of HUD's lead-based paint program include providing technical assistance to housing authorities, nonprofit housing providers, local and State agencies, other Federal agencies, housing developers, inspectors, real estate professionals, contractors and financiers, and public health authorities; evaluating the hazard reduction methods used in the grant program to measure their effectiveness, cost and safety; and maintaining a community outreach program in coordination with the other Federal agencies involved in lead-based paint hazard reduction.

CDC also provides significant funding for the prevention of childhood lead poisoning. CDC provides funding to support State, city and county programs in the areas of primary prevention, case management and screening, surveillance, strategic partnerships, and program evaluation. Since 2002, CDC has recommended that a blood lead level of 10 micrograms per deciliter (μg/dL) be used as a threshold for individual intervention (Ref. 28). Additional CDC recommendations address the type and intensity of individual intervention strategies that should be undertaken, depending upon the child's blood lead level. These strategies range from nutritional and educational interventions, along with more frequent testing, for a child with a blood lead level of 10-14 μg/dL, to medical and environmental interventions for children with blood lead levels above 45 μg/dL (Ref. 28). CDC has established a national surveillance system for children with elevated blood lead levels. In addition, CDC works with HUD and EPA to coordinate outreach and education campaigns.

OSHA is another agency with regulatory authority under Title X. As directed by the Act, OSHA promulgated an interim final standard on May 4, 1993, which regulates lead exposures in the construction industry (Ref. 9). This standard, codified at 29 CFR 1926.62, limits worker exposures to 50 micrograms of lead per cubic meter of air averaged over an 8-hour workday. Employers must use a combination of engineering controls and work practices to reduce employee exposure as much as possible, using appropriate respiratory protection where necessary to achieve the exposure limit. Employees must receive training on the health effects of lead and how to limit exposure through proper work practices and personal protective equipment. Exposure monitoring and medical monitoring, including blood lead testing, are also required. This standard remains in effect and OSHA retains the authority to protect workers from occupational exposure to lead.

Many Federal agencies have been working to reduce or eliminate lead-based paint hazards in housing and to end childhood lead poisoning. EPA, HUD, and other Federal agencies have been working for many years on the problem of lead-based paint hazards that can be created during renovation

and remodeling activities in housing. This rulemaking is an important component of the Federal strategy for eliminating childhood lead poisoning.

C. EPA Activities Related to This Rulemaking.

TSCA section 402(c) addresses renovation and remodeling. For the stated purpose of reducing the risk of exposure to lead in connection with renovation and remodeling activities, section 402(c)(1) requires EPA to promulgate and disseminate guidelines for the conduct of such activities which may create a risk of exposure to dangerous levels of lead. In response to this statutory directive, EPA developed the guidance document entitled

Reducing Lead Hazards when Remodeling Your Home

in consultation with industry and trade groups (Ref. 29). This document has been widely disseminated to renovation and remodeling stakeholders through the National Lead Information Center, EPA Regions, and EPA's State and Tribal partners and is available at

www.epa.gov/lead/rrpamph.pdf

.

TSCA section 402(c)(2) directs EPA to study the extent to which persons engaged in various types of renovation and remodeling activities are exposed to lead during such activities or create a lead-based paint hazard regularly or occasionally. The terms “renovation” and “remodeling” are not defined by the statute. For assistance in selecting the activities to be studied, and in otherwise defining the scope of this study, EPA consulted with persons from national committees, major trade industries, Federal and State governmental agencies, academia, and medical institutions who were involved in lead research and policy making. After receiving individual input from these consultations and a meeting in April 1993, with a number of the contacted individuals, EPA identified the following 11 categories of renovation and remodeling activities with the potential for resulting in exposure to lead:

• Paint removal.

• Surface preparation.

• Removal of large structures (demolition).

• Window replacement.

• Enclosure of exterior painted surfaces (i.e., siding).

• Carpet or other floor covering removal.

• Wallpaper removal.

• HVAC (central heating system) repair or replacement including duct work.

• Repairs or additions resulting in isolated small surface disruptions.

• Exterior soil disruption.

• Major renovation projects involving multiple target activities.

1.

Renovation and remodeling study.

The study itself was conducted in 4 phases; each phase was peer reviewed and the results of the peer reviews are discussed in the study reports (Refs. 30, 31, 32, and 37). The approach and conclusions for each phase are summarized in this Unit.

a.

Phase I.

The approach taken for Phase I,

Environmental Field Sampling Study

(Ref. 30), involved a series of case studies and included data collection efforts for the following target activities:

• Paint removal by abrasive sanding.

• Removal of large structures, including demolition of interior plaster walls.

• Window replacement.

• Carpet removal.

• HVAC repair or replacement, including duct work.

• Repairs resulting in isolated small surface disruptions, including drilling and sawing into wood and plaster.

Exterior siding, wallpaper removal, and exterior soil disruption were excluded because the study design team and the individuals consulted in the information-gathering phase generally considered these target activities to be of secondary importance. The last category, repairs resulting in isolated small surface disruptions, was represented by drilling holes and sawing into wood and plaster covered with lead-based paint.

After the completion of each activity, dust samples were collected within one foot of where the activity occurred and approximately 5 to 6 feet away from the location of the activity. Samples were collected in a manner that excluded any contribution of pre-existing leaded dust at the sample location (Ref. 30). With the exception of carpet removal and drilling into plaster, the results from the samples taken within one foot of the activity indicated that these activities produce lead loadings on the floor that exceed the TSCA section 403 hazard standards of 40 μg/ft

2

for lead in dust. EPA has already determined that loadings exceeding this level can cause adverse health effects. In the case of paint removal, the estimated average lead loading in a 6 foot by one foot area extending away from the activity was 42,900 μg/ft

2

, or greater than 1,000 times the TSCA section 403 dust-lead hazard standard. For paint removal, window replacement, HVAC work, demolition of interior plaster walls, and sawing into wood, the samples taken 6 feet away from the activity also indicated lead loadings at levels well in excess of the TSCA section 403 standard.

This phase of the study also examined the effectiveness of two popular cleaning methods, broom sweeping and shop-vacuuming, for removing settled lead-dust. Although these data indicate that standard broom sweeping or shop-vacuuming can remove a high percentage of the dust (up to 99%), lead loadings nevertheless remained consistently above the TSCA section 403 standard. In addition, the data show that standard cleanup techniques sometimes disperse lead dust throughout the work area, thereby increasing lead levels in areas more distant from the work area. Accordingly, EPA has concluded that standard broom sweeping or shop-vacuuming are not reliable or effective methods for removing lead-based paint hazards created by typical renovation and remodeling activities.

Worker air-monitoring samples, indicating the degree of worker inhalation exposure, were also collected during this phase of the study. These data suggest that some renovation and remodeling activities could result in worker exposure that exceeds OSHA's permissible exposure limit (PEL) for lead of 50 μg/m

3

. OSHA's PEL is based on an 8-hour time-weighted average (TWA), which is an average exposure over one 8-hour shift. This study measured only average exposures over the duration of a particular activity, which would be equivalent to an 8-hour TWA for a worker only if it is assumed that the monitored activity is performed for 8 hours in a day. However, the worker exposure data generated in this study indicate that some exposures are likely to be so high that conducting the activity for only a short time would result in an 8-hour TWA that exceeds the OSHA PEL. For example, worker exposures monitored during power sanding and sawing into wood were so high that it is estimated that 45 minutes of performing these activities would result in an exposure that exceeded the PEL.

b.

Phase II.

Phase II of the study,

Worker Characterization and Blood-Lead Study

, continued to address worker exposure (Ref. 31). This phase involved collecting data on blood samples and questionnaires from 585 renovation and remodeling workers from Philadelphia and St. Louis. The questionnaire focused on demographic and background information such as work history, work habits, and hobbies. Questionnaire data also indicated that few renovation and remodeling professionals were using respirators or high energy particulate air (HEPA) vacuums. Blood samples were collected from 581 of the 585 workers. Of these

samples, 9.1% were above 10 μg/dL, 1.2% were above 25 μg/dL, and one worker had a blood-lead concentration greater than 40 μg/dL. The geometric mean blood-lead concentration for all workers was 4.5 μg/dL. A statistical model was developed and fit to the data that included effects for variables potentially related to lead exposure, such as the age of a worker's home; type of work usually performed by the worker; and the amount of renovation and remodeling activity conducted recently and over the worker's career. There were significant differences among the worker groups. Drywall workers and painters had the highest predicted blood-lead concentrations, and floor layers had the lowest. In addition, there was a statistically significant correlation between the number of days worked in pre-1950 buildings in the past month and increases in blood-lead concentrations for general renovation and remodeling work, paint removal, and cleanup, although the estimated increase was very small, less than 1 μg/dL for all activities (Ref. 38).

c.

Phase III.

Phase III of the study,

Wisconsin Childhood Blood-Lead Study

, was a retrospective study focused on assessing the relationship between renovation and remodeling activities and children's blood-lead levels (Ref. 32). This study demonstrated that general residential renovation and remodeling is associated with an increased risk of elevated blood lead levels (EBLs) in children and that specific renovation and remodeling activities are also associated with an increase in the risk of EBLs in children. In particular, removing paint (using open flame torches, using heat guns, using chemical paint removers, and wet scraping/sanding) and preparing surfaces by sanding or scraping significantly increased the risk of EBLs. Overall, these results agree with those from earlier phases of the renovation and remodeling study--renovation and remodeling activities that disturb lead-based paint increase the risk of exposure to occupants. Additionally, children living in a residence while renovation and remodeling was conducted were 30% more likely to have EBLs than children who did not live in a residence during the time renovation and remodeling was conducted.

During the Small Business Advocacy Review Panel process discussed in greater detail in Unit VIII.C.6., questions were raised in connection with this phase of the study (Ref. 33). Specifically, it was noted that the effect shown in this phase of the study was somewhat ambiguous in that several confounding factors may have contributed to the blood lead levels. In addition, this phase yielded several surprising results, including evidence of an increased risk of elevated blood lead levels in homes that were built after 1978, the date lead-based paint was banned, although the report did offer several explanations for this result. While the study identified a correlation between renovation and remodeling activities and elevated blood lead levels in children, the Panel report states that there was no statistically significant increased risk of elevated blood lead levels (possibly because of the small sample size) when the study focuses solely on work performed by apartment building owners, apartment building staff or professional contractors. The Panel recommended that EPA undertake additional analysis of the data from this phase of the study to determine if a child was more likely to have an elevated blood lead level if the renovation and remodeling was performed by a relative or friend than if performed by a professional contractor or building management staff (those subject to the rule). The results of EPA's additional analysis, which focused on the relationship between who performs renovation and remodeling activities and the odds of an elevated blood lead level occurring in a resident child, have been placed in the docket (Ref. 34). In homes where renovation and remodeling activities had been performed, the analysis indicated the following ordering of the five possible responses to the question of who performed the renovation and remodeling, in order of highest to lowest risk of increased odds of an elevated blood lead level:

• Relative or friend not in household.

• Paid professional.

• Owner or building superintendent.

• Head of household or spouse.

• Other person in household.

As discussed in the report from Phase III of the study, some possible confounders were investigated, including the surface preparation methods, and the size of the renovation jobs undertaken, but no obvious solution was discovered.

However, several studies corroborate the findings of the Phase III study. In 1995, the New York State Department of Health assessed lead exposure among children resulting from home renovation and remodeling in 1993-1994. A review of the health department records of children with blood lead levels equal to or greater than 20 μg/dL identified 320, or 6.9%, with elevated blood lead levels that were attributable to renovation and remodeling (Ref. 35). In addition, a case-control study assessed the association between elevated blood lead levels in children younger than 5 and renovation or repair activities in homes in New York City. A statistically significant correlation between renovation and repair work that involved preparing an interior surface for painting, and work that spreads dust and debris throughout the home, increased the risk of elevated blood lead levels for children in the study population. Researchers noted that the consistency of their results with EPA's Phase III study lends credibility to the conclusion that home renovation or repair work involving interior paint preparation constributes to a nontrivial proportion of elevated blood lead levels in children (Ref. 36, at 509).

d.

Phase IV.

Phase IV of the study,

Worker Characterization and Blood-Lead Study of R&R Workers Who Specialize in Renovations of Old or Historic Homes

, was an extension of Phase II (Ref. 37). Where Phase II examined lead exposure among a general population of renovation and remodeling professionals, Phase IV focused on individuals who worked primarily in old historic buildings. Phase IV explored lead exposure in 161 professional renovation and remodeling workers and 82 homeowners who worked extensively in old houses. Each study participant provided a blood sample for analysis and completed a detailed questionnaire identical to the one used in Phase II.

The results of Phase IV demonstrate that individuals who regularly work in potentially high lead exposure settings, i.e., old houses, do have a higher probability of an elevated blood-lead level than the general population of renovation and remodeling professionals measured in Phase II. Among these high-risk workers, 3 out of 161 had blood-lead concentrations above 40 μg/dL. Out of 82 homeowners who performed renovation and remodeling activities while residing in their own historic or pre-1940 home, 4 had blood-lead concentrations above 25 μg/dL. The geometric mean blood-lead level for professionals was significantly greater than for homeowners. Preparation for painting and/or sanding of painted surfaces were the activities most consistently associated with elevated blood-lead levels among study participants.

After evaluating the findings from all 4 phases of the study, EPA concluded that the long-term exposure faced by the occupants should be the most important consideration in determining the need for worker training and certification. EPA is particularly concerned with the

results from Phase I and Phase III. The Phase I results indicate that, where lead-based paint is present, activities that are routinely performed as part of renovation and remodeling activities can create significant amounts of leaded dust, which, if not effectively contained and cleaned up, could pose hazards to the occupants. Phase III corroborated this finding by identifying a statistically significant link between activities that are routinely performed as part of renovation and remodeling projects and an increased risk of an elevated blood lead level in children.

Finally, TSCA section 402(c)(3) directs EPA to revise the regulations under TSCA section 402(a) to apply the regulations to renovation or remodeling activities that create lead-based paint hazards. In determining which contractors are engaged in such activities, EPA must use the results of its renovation and remodeling study and consult with representatives of labor organizations, lead-based paint activities contractors, persons engaged in remodeling and renovation, and experts in lead health effects. If EPA determines that a particular category of contractors engaged in renovation or remodeling need not be certified, EPA must publish an explanation of the basis for that determination.

2.

Public consultation.

EPA began the consultation process required by TSCA section 402(c)(3) with two public meetings. Participants included representatives from renovation, remodeling and painting contractors, national contractor associations, apartment management companies, realtors, labor organizations, training providers, lead poisoning prevention advocacy groups, other Federal agencies and States. The meetings were held on December 7, 1998 and on March 8, 1999. EPA presented the results of its renovation and remodeling study at the first meeting. The remainder of that meeting and all of the second meeting involved discussion of various aspects of the existing abatement regulations and how they might fit into a renovation and remodeling rule. Topics discussed included applicability, accreditation of training providers, certification of individuals, and work practice standards (setup, occupant protection, clean-up, clearance, and restricted practices). Transcripts of these meetings have been placed in the public docket for this action (Refs. 39 and 40).

In addition, on November 23, 1999, EPA's Small Business Advocacy Chairperson convened a Small Business Advocacy Review Panel under section 609(b) of the Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). In addition to the chairperson, the Panel consisted of the Director of EPA's Office of Pollution Prevention and Toxics, the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB), and the Chief Counsel for Advocacy of the Small Business Administration (SBA).

Before beginning pre-panel discussions with OMB and SBA, EPA held three conference calls with potential Small Entity Representatives (SERs) to obtain feedback on the options and alternatives for a renovation and remodeling regulation. The Review Panel held an outreach meeting with Small Entity Representatives (SERs) on December 3, 1999. Eleven SERs, representing small painting, decorating, finishing, remodeling and renovation contractors, as well as multi-family housing owners and training providers, and four trade association representatives participated in the meeting. The Panel solicited comments from the SERs on the options presented by EPA, as well as EPA's cost estimates for these options. Several SERs submitted written comments to EPA following this meeting. More information on the Review Panel Process, including the recommendations of the panel, can be found in Unit VIII.C. The Panel's report, along with background information provided to panel members and SERs, has been placed in the public docket for this action (Ref. 33).

EPA also held a 2-day meeting with its State partners to discuss lead-based paint program issues. Most of the time on the agenda for this meeting, held in September 2000, was devoted to discussing how the existing abatement regulations might be modified to apply to renovation and remodeling projects. A summary of this meeting has been placed in the public docket for this action (Ref. 41).

In May 2003, EPA hosted a series of conference calls to discuss additional issues related to renovation and remodeling. Two calls were held with State and local government agency representatives as well as a State legislator. Two separate calls included representatives from renovation and remodeling contractors and contractor associations, realtors and realtor associations, and apartment owner and manager associations. These calls focused on the relationship between lead-based paint hazard evaluation and control activities and renovations. Summaries of these calls have been placed in the public docket for this action (Refs. 42, 43, 44, and 45).

EPA has co-sponsored several national lead conferences, at which the Agency met with representatives of State and Tribal governments to discuss renovation issues, among other issues. Examples include:

• June 2000, EPA 4th National Lead Conference - Washington, DC.

• December 2000, National Lead Grantee Conference (HUD/CDC/EPA) - Atlanta, GA.

• May 2001, EPA 5th National Lead Conference - New Orleans, LA.

• June 2003, EPA 6th National Lead Conference - San Antonio, TX.

• June 2004, National Lead and Healthy Homes Grantee Conference (HUD/CDC/EPA) - Orlando, FL.

IV. Proposed Requirements for Renovation Activities

A. TSCA Section 402(c)(3) Determination

As discussed in Unit III.B., TSCA section 402(a) directs EPA to promulgate regulations to ensure that persons who perform lead-based paint activities are properly trained through accredited training programs and that contractors performing these activities are certified. The regulations must also contain work practice standards for lead-based paint activities, taking into account reliability, effectiveness, and safety. Regulations governing lead-based paint activities in target housing and child-occupied facilities were promulgated in 1996 and codified at 40 CFR part 745, subpart L. TSCA section 402(c)(3) directs EPA to revise these regulations to apply to renovation or remodeling activities that create lead-based paint hazards.

As discussed previously, the renovation and remodeling study conducted under TSCA section 402(c) found that the following renovation and remodeling activities, when conducted where lead-based paint is present, generated lead loadings on floors that exceeded the TSCA section 403 dust-lead hazard standard:

• Paint removal by abrasive sanding.

• Window replacement.

• HVAC duct work.

• Demolition of interior plaster walls.

• Drilling into wood.

• Sawing into wood.

• Sawing into plaster.

Because these activities cause lead dust to be deposited on floors in excess of the dust-lead hazard standard for floors, EPA proposes to conclude that these activities create lead-based paint hazards. In addition, based on the results of the Phase I study, EPA

proposes to conclude that drilling into plaster, where lead-based paint is present, can reasonably be anticipated to create lead-based paint hazards. Moreover, EPA believes that certain cleanup methods are not effective or reliable in reducing the lead levels below the hazard standard.

These proposed conclusions are supported by the results of other phases of the renovation and remodeling study. Phase III,

Wisconsin Childhood Blood-lead Study

, found that children who live in homes where renovation and remodeling activities were performed within the past year are 30% more likely to have a blood lead-level that equals or exceeds 10 μg/dL, the level of concern established by CDC, than children living in homes where no such activity has taken place recently.

Phases II and IV of the study, which evaluated worker exposures from renovation and remodeling activities, provide additional documentation of the significant and direct relationship between blood-lead levels and the conduct of certain renovation and remodeling activities. Phase II found a statistically significant association between increased blood lead levels and the number of days spent performing general renovation and remodeling activities, paint removal, and cleanup in pre-1950 buildings in the past month. Phase IV of the study found that persons performing renovation and remodeling activities in old historic buildings are more likely to have elevated blood-lead levels than persons in the general population of renovation and remodeling workers.

Based on the results of Phases I through IV of the renovation and remodeling study, EPA proposes to conclude that any renovation activity that disturbs lead-based paint can create significant amounts of leaded dust. EPA reaches this proposed conclusion because the study examined renovation activities on a variety of components using a variety of tools and methods, and discovered that each activity that disturbed lead-based paint caused lead dust in amounts that created or could reasonably be anticipated to create lead-based paint hazards. EPA believes that the activities studied are representative of the paint-disturbing activities that typically occur during renovations. EPA requests comment on its proposed conclusions drawn from the Phase I through IV studies, as well as on the studies themselves. EPA also invites commenters to submit or identify peer-reviewed studies and data, of which EPA may not be aware, that assess the results of exposure to renovation, repair and painting activities in housing or other facilities that may contain lead-based paint.

EPA is therefore proposing to revise existing regulations to extend training, certification, and work practice requirements to certain renovation and remodeling projects in target housing. It is not EPA's intention to merely expand the scope of the current abatement requirements to cover renovation and remodeling activities. Rather, EPA has carefully considered the elements of the existing abatement regulations and revised them as necessary to craft a proposal that is practical for renovation and remodeling businesses and their customers, while taking into account reliability, effectiveness, and safety as directed by TSCA section 402(a).

In addition, EPA is considering whether some or all of these proposed provisions should be incorporated into the abatement regulations. In particular, the Agency is requesting comment about allowing the use of the workplace practices in this proposal in lieu of the prohibition of certain workplace practices in the abatement regulations. Also, the Agency is requesting comment about allowing cleaning verification in lieu of clearance testing in the abatement regulations. If the Agency were to change the abatement regulations, it could incorporate the regulatory language in this proposal (i.e., allow abatement firms the option of following the workplace practice standards in the proposed 40 CFR 745.85(a) in lieu of the workplace practice standards in the abatement rule, and allow abatement firms the option of following the cleaning verification procedure in the proposed 40 CFR 745.85(b) in lieu of the clearance testing requirements) in the abatement rule. Comments are invited on whether changes should be proposed to the abatement regulations and, if so, the nature of these changes.

EPA also requests comment on potential unintended consequences of this proposal. For example, the costs of this proposed rule, which renovation firms are likely to pass on to consumers in whole or in part, may cause some homeowners to perform some renovation projects themselves rather than hire a professional. More information on the costs and benefits of this proposal can be found in Unit VIII.A. EPA has made a concerted effort to keep the costs as low as possible, while still providing adequate protection against lead-based paint hazards created by renovation activities. Homeowners who choose to perform their own renovation projects are not likely to have taken formal training in lead-safe work practices, so they may not be familiar with the methods they should use to prevent lead exposures for themselves and their children. However, in the absence of this proposed regulation, EPA believes that most contractors and building management staff will not receive formal training in lead-safe work practices either. In addition, building owners may choose to defer maintenance as a result of the increased renovation costs attributable to this proposal. EPA requests comment on the likelihood that there will be more do-it-yourself renovation projects or deferred maintenance, and information or data on what that might mean in terms of health impacts, as well as other potential consequences of this proposal.

B. Scope of Proposed Regulation

1.

Housing units that would be covered

. EPA is proposing to amend the existing regulations at 40 CFR part 745, subpart E, that implement TSCA section 406(b) to add training and certification requirements, as well as work practice standards, for certain renovations performed for compensation in target housing. The proposed amendments would apply to renovations performed within housing units as well as renovations performed in common areas in multi-unit housing. The TSCA section 406(b) regulations, also referred to as the Pre-Renovation Education Rule, currently require persons performing renovations for compensation in all target housing to provide owners and occupants with a lead hazard information pamphlet that discusses lead-based paint and lead-based paint hazards. In delineating the scope of today's proposal, EPA is using many of the definitions and exemptions used in the Pre-Renovation Education Rule. For example, the term “target housing” is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. EPA is not proposing to modify this definition in any way.

EPA is proposing to make the requirements contained in this proposal effective in two major stages. In the first stage, the proposed requirements would apply to renovation projects performed for compensation in:

• All target housing where the firm performing the renovation obtains information indicating that a child under age 6 resides there, if the child has a blood-lead level greater than or equal to 10 μg/dL or a State or local government level of concern, if lower, or the firm does not provide the owners and occupants with the opportunity to

inform the firm that a child under age 6 with such a blood-lead level resides there;

• All owner-occupied target housing built before 1960, unless the firm performing the renovation obtains a statement signed by the owner that the renovation will occur in the owner's residence and no child under age 6 resides there; and

• All rental target housing built before 1960.

The second stage would extend the proposed requirements to:

• All owner-occupied target housing, unless the firm performing the renovation obtains a statement signed by the owner that the renovation will occur in the owner's residence and no child under age 6 resides there; and

• All rental target housing.

The second stage would take effect 1 year after the first stage takes effect.

For each stage, the requirements of the rule would only apply to those renovations that meet the proposed definition of renovation discussed in Unit IV.B.3. and do not qualify for the exceptions discussed in Unit IV.B.4.

The purpose of this regulation is to prevent the creation of new lead-based paint hazards from renovation activities in housing where children under age 6 reside. To achieve the goal of eliminating childhood lead poisoning by 2010, it is important to focus society's resources on the activities that have the greatest impact on the population at greatest risk.

According to the

National Survey of Lead and Allergens in Housing

, 24% of the housing constructed between 1960 and 1978 contains lead-based paint (Ref. 46). In contrast, 69% of the housing constructed between 1940 and 1959, and 87% of the housing constructed before 1940 contains lead-based paint. The results of this survey indicate that there is a much greater likelihood of disturbing lead-based paint during a renovation that occurs in a home built before 1960 than in a home built after that date. EPA seeks comment on these facts and how these facts should affect the regulatory requirements under TSCA section 402(c)(3), which requires EPA to apply regulations issued under section 402(a) to renovations in target housing that create lead-based paint hazards.

Although most homes built between 1960 and 1978 do not contain lead-based paint, EPA remains concerned about the risks presented to those children under age 6 who reside in one of the homes that does. Therefore, EPA is proposing to phase in coverage of those homes after 1 year. As discussed in more detail in this Unit, EPA believes that during this phase in period it will be possible to develop test kits that are able to identify more accurately those homes that do not contain lead-based paint at regulated levels.

As discussed in Unit IV.B.4.a., EPA is proposing to exempt renovations that affect only components that have been determined to be free of paint or other surface coatings that contain lead equal to or in excess of 1.0 mg/cm

2

or 0.5% by weight. In addition to a determination by a certified inspector or risk assessor, EPA is also proposing to allow the use of EPA-recognized test kits to determine whether the components to be affected are free of regulated lead-based paint. Accurate test kits represent a relatively simple and inexpensive way to identify where lead-based paint is present and assist homeowners and renovation firms in determining where lead-safe work practices should be followed.

Research on the use of these kits for testing lead in paint has been published by NIST (Ref. 47). The research to date shows that, in general, there are test kits currently available which, when used by a trained professional, can reliably determine that regulated lead-based paint is not present by virtue of a negative result, but which cannot reliably determine that regulated lead-based paint is present. These kits typically are sensitive to lead at levels below the Federal standards that define lead-based paint, and therefore are prone to a large number of false positive results (i.e., a positive result when regulated lead-based paint is, in fact, not present). The NIST research found that false positive rates range from 42% to 78%.

These false positive rates mean that the currently-available test kits are not an effective means of identifying the 76% of homes built between 1960 and 1978 that do not contain regulated lead-based paint. EPA believes that the sensitivity of test kits could be adjusted for paint testing so that the results from the kits reliably correspond to one of the two Federal standards for lead-based paint, 1.0 mg/cm

2

and 0.5% by weight. EPA also believes that this can be accomplished in the near future and is planning to conduct research to further the development of test kits that accurately identify both the presence and absence of lead in paint at levels that exceed the Federal standards. EPA's goals for this research are to develop a kit that can reliably be used by a person with minimal training, is inexpensive (under $2 per test), provides results within an hour, and is demonstrated to have a false positive rate of no more than 10% and a false negative rate at 1.0 mg/cm

2

or 0.5% by weight of less than 5%. This research effort is consistent with one of the stated purposes of Title X, “to mobilize national resources expeditiously, through a partnership among all levels of government and the private sector, to develop the most promising, cost-effective methods for evaluating and reducing lead-based paint hazards.”

EPA is confident that improved test kits meeting EPA's research goals can be available within the next 3 years. Based on the proposed effective dates for the initial stage of this rule, discussed in greater detail in Unit VI., the improved test kits should be available within 1 year after the initial stage of the rule becomes effective in all jurisdictions. EPA is therefore proposing to extend the requirements of this proposal to rental housing built between 1960 and 1978, as well as owner-occupied homes built between 1960 and 1978 where a child under age 6 resides, 1 year after the requirements become effective for such homes built before 1960. This staged approach will initially address the renovations that present the greatest risks to children under age 6, i.e., the renovations that are most likely to disturb lead-based paint, while allowing additional time for the development of improved test kits before phasing in the applicability of the rule to newer rental target housing and newer owner-occupied target housing where children under age 6 reside.

It is EPA's expectation that the improved test kits will be available before the effective date of the requirements that apply to rental housing built between 1960 and 1978, as well as owner-occupied homes built between 1960 and 1978 where a child under age 6 resides. If it appears that these improved test kits will not be available by that effective date, EPA will consider delaying the effective date for the requirements that apply to rental housing built between 1960 and 1978, as well as owner-occupied homes built between 1960 and 1978 where a child under age 6 resides. EPA requests comment on whether EPA should wait to finalize the proposed second stage of this regulation until the new kits are commercially available nationwide. Waiting would ensure that the improved test kits are available before renovation firms must comply with the training, certification, and work practice requirements of this proposal for renovations in housing that is more likely than not to be free of regulated lead-based paint. The proposed rule, by allowing the use of test kits in pre-1960 housing to determine the absence of lead-based paint, provides an incentive

for improved test kits. In addition, an established deadline for coverage of homes built between 1960 and 1978 provides an even greater incentive for the private sector to pursue improved test kits.

Although EPA is proposing to extend the effective date for housing built between 1960 and 1978 for an additional year, EPA remains concerned about children under age 6 residing in these homes if the children have increased blood lead levels. In many cases where a blood level in excess of the applicable level of concern has been identified, intervention by State and local public health officials should ensure that further exposure to lead is minimized. However, to prevent the possibility that an unregulated renovation activity will contribute to continuing exposures to lead for children with increased blood lead levels, EPA is proposing to include in the first stage of this proposal all target housing built before 1978 where a child under age 6 with a blood lead level that equals or exceeds the CDC level of concern, or a lower State or local government level of concern, resides. (As is discussed in Unit IV.B.4., renovations that only affected components that had been determined to be lead-based paint free would be exempt from the requirements of this proposal.)

The existing Pre-Renovation Education Rule requires renovators to inform owners and occupants of target housing of the potential risks from renovation projects by providing them with the PYF pamphlet. Persons performing renovations covered by the existing regulations must already either obtain a signed acknowledgment from the owner indicating that the pamphlet has been received, or a certificate of mailing indicating that the pamphlet was mailed at least 7 days before the renovation. EPA has developed a sample acknowledgment form that renovators could use not only to record the owner's receipt of the lead hazard information pamphlet, but to obtain additional information on the housing to be renovated and its residents (Ref. 1). This would enable renovation firms to satisfy their current obligations under the Pre-Renovation Education Rule and assist them in complying the requirements of this proposal. EPA seeks comment on this sample from, a copy of which is available in the docket for this proposed rule and on the Agency's Web page.

a.

Target housing constructed between 1960 and 1978 where a child under age 6 with an increased blood lead level resides

. As discussed in this Unit of the preamble, EPA is proposing that this rule take effect in two major stages. EPA is proposing that the first stage include renovations performed for compensation in target housing constructed between 1960 and 1978 where a child under age 6 with a blood lead level that equals or exceeds the CDC level of concern (10 μg/dL), or a lower State or local government level of concern, resides. For the purposes of this proposal, children reside in the primary residences of their custodial parents, foster parents, and legal guardians. In addition, this proposal considers housing where a child lives and sleeps most of the time as the child's residence, even if this housing is not the residence of the child's legal custodians. This means that a child may have more than one residence, but it will ensure that the primary residences of all children under age 6 are covered by either stage one or stage two of this proposal, if they reside in target housing.

EPA recognizes that the renovation firm is not likely to have access to information on the blood lead levels of resident children. Therefore, EPA is proposing to require only that the renovation firm offer the owners and occupants of target housing built between 1960 and 1978 the opportunity to inform the firm that a child under age 6 with a blood lead level that equals or exceeds 10 μg/dL, or any lower State or local government level of concern, resides in the housing to be renovated. This opportunity could be as simple as a statement on the form used to acknowledge receipt of the information pamphlet, or, if the pamphlet is mailed, a note included in the mailing asking the recipient to inform the renovation firm if a child under age 6 with a blood lead level that equals or exceeds 10 μg/dL, or any lower State or local government level of concern, is in residence. Tenant notifications required for renovations in common areas could include a similar note. EPA's sample acknowledgment form incorporates a statement to this effect (Ref. 1).

EPA will not require the renovation firm to presume that a child under age 6 with a blood lead level that equals or exceeds 10 μg/dL, or any lower State or local government level of concern, resides in housing to be renovated, if the renovation firm does not receive any information from the owner or occupant. EPA requests comment on how a renovation firm could obtain this information if it is unable to obtain a signed statement from the owner.

b.

Owner-occupied target housing where a child under age 6 resides

. EPA is also proposing to include, in the first stage of this rulemaking, renovation projects performed for compensation in all owner-occupied target housing built before 1960, unless the firm performing the renovation obtains a statement signed by the owner that the renovation will occur in the owner's residence and that the housing is not the primary residence of a child under age 6. The primary residences of children under age 6 living in target housing constructed between 1960 and 1978 would be covered in the second stage of this proposed regulation.

The sample acknowledgment form developed by EPA will assist renovation firms in obtaining a written statement from owner-occupants as to whether a child under age 6 resides in the housing to be renovated (Ref. 1). In many cases, EPA anticipates that the presence of this statement on the form will prompt a discussion between the homeowner and the renovation firm on the information in the lead hazard information pamphlet as well as the lead-safe work practices that would be required by this proposal. A homeowner without children under age 6 in residence who subsequently chooses not to have the renovation firm follow lead-safe work practices will be making an informed decision in these circumstances.

If the renovator is unable to obtain an acknowledgment form from the owner-occupant, and instead meets the requirements of the Pre-Renovation Education Rule by a certificate of mailing indicating that the pamphlet was mailed at least 7 days before the renovation, the renovator would have to assume that a child under age 6 resided in the housing to be renovated and would have to perform the renovation in accordance with the applicable work practice standards of this proposal.

Subsequent purchasers of the housing will also be able to make informed decisions as a result of the regulations promulgated under section 1018 of Title X and codified at 24 CFR part 35, subpart A, and 40 CFR part 745, subpart F. These regulations, briefly summarized in Unit III.B.2.b., would not ordinarily require a seller, in the absence of specific knowledge of lead-based paint or lead-based paint hazards, to disclose information about renovation projects to a purchaser. However, the informational pamphlet that the seller must provide includes information about potential lead-based paint hazards on residential property and recommends that purchasers obtain a lead-based paint inspection or risk assessment on property they are interested in buying. A risk assessment would identify any dust-lead hazards on the property, whether created by a

renovation performed without lead-safe work practices or some other activity.

c.

Rental target housing.

Also in the first stage of this rulemaking, the proposed requirements would apply to all rental target housing built before 1960, regardless of whether a child under age 6 resides there. The second stage would extend the requirements to all rental target housing.

The proposal would apply to target housing that is currently being rented, as well as target housing being offered for rent and target housing that the owner intends to offer for rent. Renovations to prepare target housing for the rental market would have to be performed in accordance with this proposal. Unlike in owner-occupied housing, occupants who are tenants have far less control over renovation projects in their housing than occupants who are owners. EPA believes that, in most cases, the owner of housing, or the owner's agent, enters into contracts for renovation services, not the tenant. The owner has control over who performs the project and how it is conducted. In addition, renovations in rental housing often occur between tenants, when the housing is vacant and it is not known whether the next tenants will include a child under age 6. Therefore, requiring proper training and work practices in rental housing is necessary to protect the tenant occupants. Finally, applying the requirements of this proposal only to rental housing where children under age 6 reside could foster discrimination in the rental market against families with children under age 6. Although it is not the preferred option, EPA requests comment on whether this proposal should apply only to rental target housing where children under age 6 reside.

This proposal avoids placing responsibility on the renovation firm for determining whether a child under age 6 resides in a particular housing unit; the renovation firm would be responsible, however, for determining whether the housing unit is rental target housing. EPA considered holding the renovation firm responsible for making both determinations. However, it may be very difficult in many situations for the renovation firm to find objective proof that a child under age 6 does or does not reside in a particular housing unit. Because this proposal does not cover, for example, the residences of relatives that provide occasional care for a child, the mere presence of toys or other signs indicating the presence of a child under age 6 would not be a sufficient basis for deciding that the requirements of this proposal apply.

In contrast, EPA does not believe that determining whether housing is rental target housing presents the same level of difficulty for renovators. Contractors are already responsible, under the TSCA section 402(a) regulations at 40 CFR part 745, subpart L, as well as under the Pre-Renovation Education Rule, for determining whether a unit of housing is target housing. This involves determining whether the housing was built before 1978 and whether it is housing for the elderly or housing for persons with disabilities. EPA believes that, in many cases, it is obvious to the renovation firm that housing is target housing, and it will be relatively easy to determine that the housing is rental housing. Multi-unit buildings or multi-building complexes are likely to be rental housing, unless the name of the property includes the words “condominium” or “co-operative.” In any event, the renovation firm remains ultimately responsible for making this determination. It should be noted that, during the first stage of this proposed rule, the renovation firm would be responsible for determining whether the housing was built before 1960.

EPA requests comment on whether renovation firms should be able to assume that no child under age 6 resides in owner-occupied housing. The identification of the residences of children under age 6 could be addressed in the same way that EPA is proposing to address children with increased blood lead levels during the first phase of the rule's applicability, discussed in Unit IV.B.1.a. If the renovation firm determined that the renovation activities would occur in owner- occupied housing, the firm could offer the owner-occupant the opportunity to inform the firm that a child under age 6 resides in the housing. If the owner-occupant did not provide the firm with any information on children in residence, the firm could assume that no child under age 6 resided in the housing, and the provisions of this proposal would not apply. EPA does not prefer this approach because children under age 6 could be put at risk unintentionally through mis-directed mail, or a misunderstanding on the part of the owner-occupant as to the information sought by the renovation firm.

d.

Owner-occupied multi-unit housing.

With respect to condominiums and cooperatives, EPA requests comment on whether to require that all renovations conducted in the common areas, such as hallways or stairways, of multi-unit buildings, as well as renovations conducted on the exteriors of such buildings, be conducted in accordance with the proposed training, certification and work practice requirements, regardless of whether the individual units are owner-occupied. Currently, the proposal would allow all the owners of such multi-unit owner-occupied buildings to certify that no children under age 6 reside in the individual units, in which case renovators would not be required to comply with the proposed work practice standards in common areas. However, it is likely to be very difficult, if not impossible, to secure the signatures of all of the owners of the individual units, attesting to the fact that no child under age 6 resides in any of the units of the building. If all of the owners do not so attest, renovations in common areas would have to be conducted in accordance with this proposal. The signatures of the building managers would not be sufficient, because there may be children in residence that are unknown to the building managers.

e.

Owner-occupied target housing where a pregnant woman resides.

EPA also requests comment on the appropriateness of applying the provisions of this rule to owner-occupied target housing where an expectant mother resides, in addition to owner-occupied housing where a child under age 6 resides. If this option were included in the rule, and no children under age 6 resided in the housing to be renovated, the renovation firm would not be required to use the work practices in this proposal unless the renovation firm collected a statement from the owner-occupant indicating that a woman residing in the housing was pregnant or thought she might be pregnant. Fetuses exposed to lead in the womb may be born prematurely and have lower birth weights. In addition, the transplacental transfer of lead in humans is well documented, and infants are generally born with a lead body burden reflecting that of the mother (Ref. 4). Therefore, covering the residences of pregnant women under this regulation would provide additional protection for vulnerable populations. However, owner-occupants, including expectant mothers, will be receiving a lead hazard information pamphlet under the Pre-Renovation Education Rule that will enable them to make educated choices about renovation activities in their residences.

2.

Other options considered.

EPA considered a range of other alternatives to defining the universe of housing that would be covered by this regulation. The primary alternative EPA considered was a single-staged regulation that would cover all renovations in rental

target housing and owner-occupied target housing where a child under age 6 resides. This option is not preferred at this time. As discussed in this section, EPA is proposing to phase in coverage of housing built between 1960 and 1978 to allow time to develop an accurate, but simple and inexpensive, means for determining whether the affected components in a particular housing unit built within this time frame are free of regulated lead-based paint (the determination whether a component is lead-based paint free is discussed more fully in Unit IV.B.4.a.). EPA solicits comment on this option.

EPA also considered a single-staged regulation that would cover all renovations in rental target housing built before 1960 and owner-occupied target housing built before 1960 where a child under age 6 resides. This option is not preferred at this time because 24% of the target housing built between 1960 and 1978 contains lead-based paint. A regulation that excludes those homes would not cover the residents of those homes, particularly the children residing in those homes, from potential lead-based paint hazards created by renovation activities. It should be noted that the Phase I study, which demonstrated lead dust loadings from renovation activities in target housing, did not differentiate housing by age. The measured lead loadings in that study represent an average. In the

National Survey of Lead and Allergens in Housing

(Ref. 46), a paint lead loading exceeding 10 mg/cm

2

was detected in 3% of the homes constructed between 1960 and 1978, compared to 14% of the homes constructed between 1940 and 1959, and 55% of the homes constructed before 1940. Further analysis of the data found that, although there were fewer homes built between 1960 and 1978 that contained lead-based paint, the average lead concentration of paint on windows and on exterior walls, doors, and trim was higher in housing built between 1960 and 1978 than in housing built between 1950 and 1960 (Ref. 48). EPA's preferred option takes into account the fact that most target housing built between 1960 and 1978 does not contain lead-based paint by phasing in coverage of those homes after improved test kits are expected to be available. EPA requests comment on the option of limiting this proposal to housing built before 1960, and on other options tied to the age of the housing and the likelihood that the housing contains lead-based paint.

EPA also considered proposing a rule limited to the provision of information and certification, training, and accreditation requirements. The rationale for such a limited rule would be that individuals, if provided information on the health effects of lead exposure and renovation work practices that minimize leaded dust creation and release, would be able to choose whether or not to request that a firm performing a renovation use lead-safe work practices. Individuals wishing to employ a renovation firm that would use lead-safe work practices would be assured by the certification, training, and accreditation provisions that a firm certified by EPA would employ persons trained in the use of lead-safe work practices. This is not the preferred option because EPA believes that a voluntary program of lead-safe work practice compliance would not provide sufficient protection from lead-based paint hazards created by renovation activities. Nevertheless, the Agency invites comment on this option.

Finally, EPA considered covering all renovations in target housing without providing an exclusion for target housing where children under age 6 do not reside. A child under age 6 may spend a significant amount of time in housing that is not his or her primary residence, for example, in the home of a babysitter. In addition, a child that moved into housing shortly after a renovation performed without lead-safe work practices took place would be exposed to lead dust from the renovation. This is not the preferred option at this time because the proposed option provides a more focused targeting of resources on the population most at risk. EPA specifically requests comment on applying the requirements of this proposal without the exclusion for target housing where children under age 6 do not reside.

3.

Activities that would be covered

. This proposal, like the Pre- Renovation Education Rule, would only apply to persons who perform renovations for compensation. This includes owners of rental property and their employees, as well as paid employees of home improvement companies, residential property management companies, State and local government agencies, and non-profits. With regard to the renovation activities that would be covered by this regulation, EPA is proposing to cover the same universe of activities that is already regulated under the Pre-Renovation Education Rule--essentially, activities that modify an existing structure and that result in the disturbance of painted surfaces. All types of repair, remodeling, modernization, and weatherization projects would be covered, including projects performed as part of another Federal, State, or local program, if the projects meet the definition of “renovation” codified in 40 CFR 745.83. The regulated community has had years of experience in applying this definition, as well as the applicability provisions in 40 CFR 745.82.

EPA considered and requested public comment on various approaches to defining the term “renovation” for the Pre-Renovation Education Rule, including options modeled on a definition in the TSCA asbestos regulations, the construction tasks identified by OSHA in its Lead in Construction Standard, and by the use of Standard Industrial Codes (SIC codes) as a means of defining the subject universe (Ref. 49). The majority of the public comments EPA received in response to its proposal involved the definition of this term. In response to the public comments, EPA crafted a definition that borrows from other sources but focuses on the activities of greatest concern to EPA, activities that disturb lead-based paint (Ref. 23). This definition also covers virtually all of the activities in the renovation and remodeling study that created lead-based paint hazards. Conversely, EPA does not believe that this definition is overbroad, i.e., it does not capture a significant number of renovation activities that are not capable of creating lead-based paint hazards. All of the activities monitored in EPA's renovation and remodeling study which involved the disturbance of lead-based paint created or could reasonably be anticipated to create lead-based paint hazards. The study evaluated common renovation activities likely to disturb lead-based paint, including demolition of structures containing lead-based paint, removal of fixtures containing lead-based paint (window replacement), sawing and drilling into materials containing lead-based paint, and sanding lead-based paint. Because all of these activities are capable of creating lead-based paint hazards, a definition of “renovation” that is primarily based on the disturbance of lead-based paint is well-tailored to regulate the activities of concern.

As noted previously, the Phase I study excluded exterior siding installation, wallpaper removal, and exterior soil disruption because the study design team and the individuals consulted in the information-gathering phase generally considered these target activities to be of secondary importance. EPA has no quantitative information on the lead dust loadings generated during such activities in target housing. However, to the extent that these activities disturb paint, these activities would be covered by this proposal.

Conversely, the Phase I study did include HVAC duct work, but it is possible that, in some cases, this work would not involve the disturbance of paint, and would, therefore, not be covered by this proposal. EPA requests comment on whether exterior siding projects, wallpaper removal, and exterior soil disruption or other activities should be excluded from this proposal or whether HVAC duct work should be specifically included. EPA is particularly interested in any data regarding the lead loadings generated by these activities that would support their exclusion or inclusion, and other activities that should be considered in the same manner.

The panel convened by EPA pursuant to the Regulatory Flexibility Act recommended that the Agency consider exempting certain specialty contractors (e.g., plumbing, electrical) from the rule. More information on this panel and its recommendations can be found in Unit VIII.C.6.e. EPA is not proposing to exempt such work

per se

, but requests comment on whether any category of specialty contractor should be excluded from this proposal, along with data that would support the exclusion of a particular category of contractor.

In some circumstances, a renovation, as that term is defined in this proposal, may constitute only a portion of a larger residential renovation and remodeling project. The certification, training, and work practice elements of this proposal would only be applicable during the portion of a project that involves the disturbance of painted surfaces. For example, adding a room to an existing home may require the demolition of an existing wall to provide access to the room. In this case, the only portion of the project that involves disturbing painted surfaces may be the demolition of the existing wall. A certified firm and a certified individual would be needed to establish the required work area, demolish the wall, perform the required clean-up, and verify that the area has been properly cleaned. If the remainder of the project, the construction of the new room, does not involve the disturbance of existing painted surfaces, then the requirements of this proposal would not apply to that portion of the project. Painters who disturb a large area of painted surface with surface preparation activities, such as sanding, would be performing a regulated renovation under this proposal. Merely painting prepared surfaces does not generally disturb existing paint, so a painter who prepares surfaces by sanding and then paints the prepared surfaces would be able to choose whether to perform required cleaning and cleaning verification activities before or after the prepared surface is painted.

4.

Exceptions

—a.

Components free of regulated lead-based paint.

EPA is proposing to continue to exempt renovations that only affect painted components that have been determined, by a certified inspector or risk assessor, to be free of paint or other surface coatings that contain lead equal to or in excess of 1.0 mg/cm

2

or 0.5% by weight. This determination may be made as part of a lead-based paint inspection of an entire housing unit or building, or on a component-by-component basis.

EPA is also proposing to exempt renovations that only affect painted components that have been demonstrated to be free of regulated lead-based paint through the use of an EPA-recognized test kit by a certified renovator. EPA intends to recognize those test kits that have a very low probability of false negative responses, because an incorrect negative result may lead to the creation of lead-based paint hazards through uncontrolled renovation activities. More specifically, for paint containing lead at or above the regulated level, 1.0 mg/cm

2

or 0.5% by weight, EPA intends to recognize kits that have a demonstrated probability (with 95% confidence) of a negative response less than or equal to 5% of the time. In addition, as soon as the improved test kits discussed in Unit IV.B.1. are generally available, EPA intends to recognize only those test kits that have a demonstrated probability of a false positive response of no more than 10% to lead in paint at levels below the regulated level. EPA believes that limiting recognition to kits that result in a relatively-low rate of false positives would benefit the consumer by reducing the number of times that the training and work practice requirements of this regulation are followed in the absence of regulated lead-based paint. These performance parameters would have to be validated by a laboratory independent of the kit manufacturer, using ASTM International's E1828, Standard Practice for Evaluating the Performance Characteristics of Qualitative Chemical Spot Test Kits for Lead in Paint (Ref. 50) or an equivalent validation method. The instructions for use of any particular kit would have to conform to the results of the validation, and the certified renovator must follow the manufacturer's instructions when using the kit. EPA requests comment on whether these standards are reasonably achievable and sufficiently protective. EPA is also soliciting suggestions on how to conduct the kit recognition process.

As required by the Pre-Renovation Education Rule, if the renovation firm relies on a determination by a certified inspector or risk assessor that affected components are free of paint or other surface coatings that contain lead equal to or in excess of 1.0 mg/cm

2

or 0.5% by weight, the renovation firm must obtain a copy of the written determination before the renovation begins and keep it for no less than 3 years from the date the renovation is completed. If a test kit is used, the renovation firm must keep records documenting the use of the kit, including the name of the kit, who used the kit, and the results, for no less than 3 years from the completion date of the renovation.

To assist renovation firms in determining whether a particular project is eligible for this exception, EPA is proposing to incorporate, in 40 CFR 745.83, the definition of the term “component or building component” from 40 CFR 745.223.

b.

Minor maintenance.

This regulation would also retain the Pre- Renovation Education Rule exception in 40 CFR 745.82(a)(1) for minor maintenance activities that disturb 2 ft

2

or less of painted surface per component. As discussed in the preamble to the final Pre-Renovation Education Rule, this exception was primarily designed as a means for distinguishing between renovation activities and routine maintenance activities (Ref. 23, p. 29911). Because this exception for small surface area disturbances has acted as a surrogate for routine maintenance activities in the Pre-Renovation Education Rule, EPA is proposing to apply this exception to the requirements of this regulation.

The stakeholders participating in the various meetings EPA has held on renovation issues have had varying opinions of this exception. In general, property owners and managers favored this exception because it would remove routine, minor maintenance activities from the scope of the rule. Renovation firms thought it would have little impact on the jobs that they typically do. Advocacy organizations did not favor this exception because small projects can also create lead-based paint hazards. EPA requests additional comment on the appropriateness of this exception as a surrogate for routine building maintenance activities, and suggestions for alternate or additional surrogates.

Although EPA believes that increasing the size of the exception from 2 ft

2

to 5 or 10 ft

2

would reduce the number of renovations covered by this proposed rule, EPA does not have enough

information to estimate the number of renovations that would be affected by such a change. EPA is concerned that increasing the size of the exception, particularly for interior projects, would reduce the protections against lead-based paint hazards offered by this proposal. In addition, increasing the exception size would make this proposal inconsistent with the Pre-Renovation Education Rule and likely cause confusion among the regulated community, because renovation firms have been implementing the 2 ft

2

exception for a number of years.

Finally, HUD's Lead Safe Housing Rule, at 20 CFR 35.1350(d), includes “

de minimis

” levels of 2 ft

2

per room for interior projects and 20 ft

2

on exterior surfaces. If less than this amount of painted surface is disturbed, HUD's lead-safe work practice requirements do not apply. EPA's lead-based paint abatement regulations also use these as small project exceptions, at 40 CFR 745.65(d). EPA requests comment on incorporating these size limitations into this proposal and is particularly interested in any data regarding the number of renovations that would be affected by a change in the mirror maintenance exception and any data that would support a change in this exception.

c.

Emergency projects

. EPA is proposing to retain the emergency project exception of the existing Pre-Renovation Education Rule. Under that exception, renovators are not required to provide a lead hazard information pamphlet to owners and occupants of target housing that is undergoing emergency renovation operations. In general, stakeholders participating in EPA's renovation meetings favored an exception for emergency projects. This proposal would retain that exception, but would require that the emergency renovation operations be performed in compliance with the work practice standards to the extent practicable.

EPA is proposing to modify the language of the exception to clarify that interim control projects performed on an expedited basis in response to an elevated blood lead level finding in a resident child qualify for the emergency project exemption from the Pre-Renovation Education Rule requirements. The term “interim controls,” defined in 40 CFR 745.83 of the proposal, means measures designed to temporarily reduce exposure to lead-based paint hazards. Some interim control projects, such as the repair of damaged areas of paint, are renovations as defined in 40 CFR 745.83, and are subject to the Pre-Renovation Education Rule and would also be covered by this proposed regulation. Others, such as specialized cleaning, may not involve the disturbance of paint, and would therefore not be covered by either regulation.

EPA is concerned that local public health organizations may be delayed in responding to a lead-poisoned child if the owner of the building where the child resides is not available to acknowledge receipt of the PYF pamphlet before an interim control project begins. The Pre- Renovation Education Rule allows persons performing renovations to mail a copy of the pamphlet to the owner, but the mailing must occur at least 7 days before the project begins. Exempting these types of projects from the Pre-Renovation Education Rule would enable public health organizations to begin responding to an elevated blood-lead level immediately, without significantly affecting the flow of information to the population at risk. Organizations that intervene in these cases typically provide a great deal of lead-based paint hazard information to the family of the lead-poisoned child. EPA is proposing to limit this provision of the emergency project exception to interim control projects that are performed as a direct response to a lead-poisoned child. EPA requests comment on whether a time limit should be placed on projects qualifying for this exception, whether only projects performed within a certain amount of time after a lead-poisoned child has been identified should be exempt, and, if so, what period of time would be adequate for these purposes.

EPA also understands that there may be emergency situations where compliance with the training, certification, and work practice requirements of this proposal is not practicable. In general, the proposed phase-in period for the regulatory requirements proposed in § 745.81 should be more than sufficient to allow enough persons to be trained and certified to provide an adequate supply of certified entities available for emergency renovation operations. An important reason for creating the emergency exception to the Pre-Renovation Education Rule was to allow property managers to respond quickly to problems such as a broken water pipe in an apartment even if the occupant is away from the premises. EPA anticipates that most property management companies who do their own maintenance will find it advantageous to have a trained and certified renovator on staff to perform renovations, so there should be no reason why these entities would not be able to comply with the training and certification requirements on all renovations. Likewise, EPA knows of no reason why firms performing emergency renovation operations would not be able to follow the clean-up procedures specified in this proposal after emergency repairs have been made. In fact, in the vast majority of cases, persons performing emergency renovation projects should be able to comply with all of the work practice requirements of this proposal. However, because there may be situations where it is not feasible to post warning signs or contain the work area before responding to the emergency, EPA is proposing to add a statement to the section describing this exemption to make it clear that the work practice requirements, the recordkeeping requirements, and the training and certification requirements in proposed §§ 745.85, 745.86, 745.89, and 745.90 apply to the extent practicable.

C. Training, Certification, and Accreditation

Under the regulations at 40 CFR part 745, subpart L, both individuals and firms that perform lead-based paint inspections, lead hazard screens, risk assessments, and abatements must be certified by EPA. EPA is proposing a similar, but not identical, regulatory scheme for individuals and firms that perform renovations.

EPA is proposing to require that all renovations regulated by this rule be performed by a firm certified to perform renovations and directed by a certified renovator. Although not required by the proposed rule, if dust sampling were performed, it would also have to be performed by a certified dust sampling technician, inspector, or risk assessor on behalf of a certified firm. In order to become a certified renovator, a person would have to either possess certification as a lead-based paint abatement supervisor or worker, or take an accredited renovator course. In order to perform dust sampling, a person would have to possess certification as a lead-based paint inspector or risk assessor, or take an accredited dust sampling technician course. Certification based on a dust sampling technician course would qualify the individual to conduct dust sampling as part of a renovation, but not as part of a lead-based paint activity under 40 CFR part 745, subpart L. EPA renovator or dust sampling technician certification would allow the certified individual to perform renovations or dust sampling in any State or Indian Tribal area that does not have a renovation program authorized under 40 CFR part 745,

subpart Q. Each of these requirements is discussed in greater detail in the following sections.

1.

Firms

—a.

Firm responsibilities

. Proposed § 745.89(d) describes the responsibilities of firms performing renovations or dust sampling. These firms must ensure that all persons performing renovation activities on behalf of the firm are either certified renovators or have been trained and are directed by a certified renovator in accordance with proposed § 745.90. Firms must also ensure that all persons performing dust sampling on behalf of the firm are certified as either risk assessors, inspectors, or dust sampling technicians. The firm is responsible for assigning a certified renovator to each renovation performed by the firm and ensuring that the certified renovator discharges all of the responsibilities identified in proposed § 745.90. The firm is also responsible for ensuring that all renovations performed by the firm are performed in accordance with the work practice standards in proposed § 745.85. Finally, EPA is proposing to amend § 745.86 to require a firm to retain and make available to EPA all records necessary to demonstrate compliance with the provisions of this proposal. These records would have to include copies of training certificates for certified renovators and dust sampling technicians used on projects, along with signed and dated descriptions of how worker training activities, sign posting, work area containment, waste handling, cleaning, and post-renovation cleaning verification or clearance were conducted in compliance with this subpart. These descriptions must include a certification by the record preparer that the descriptions are complete and accurate. To assist firms in complying with these recordkeeping requirements, EPA has developed a simple form that firms could use to ensure that they are maintaining all of the necessary records (Ref. 51). Use of this form would not be mandatory, firms could keep the required records in any manner that they choose. EPA requests comment on the utility and practicality of the sample recordkeeping form, which EPA would make available on its internet site and from the National Lead Information Center. EPA also requests comment on the recordkeeping requirements in general, as well as information on the business records typically kept by renovation firms that could be used to demonstrate compliance with the training, certification, and work practice requirements of this proposal.

When multiple contractors are involved in a renovation, any contractor who disturbs, or whose employees disturb, paint in excess of the minor projects exception would be responsible for compliance with all of the requirements of the Pre-Renovation Education Rule and this proposal. In this situation, renovation firms may find it advantageous to decide among themselves which firm will be responsible for providing pre-renovation education to the owners and occupants, which firm will establish containment, and which firm will perform the post-renovation cleaning and cleaning verification. For example, a general contractor may be hired to conduct a multi-faceted project involving the large-scale disturbance of paint, which the general contractor then divides up among several subcontractors. In this situation, having the general contractor discharge the obligations of the Pre-Renovation Education Rule is likely to be the most efficient approach, since this only needs to be done once. The general contractor can then provide the subcontractors with copies of the signed acknowledgment form or proof of mailing. With regard to containment, the general contractor may decide that it is most cost-effective to establish one large work area for the entire project. In this case, from the time that containment is established until post-renovation cleaning verification occurs, all general contractor and subcontractor personnel performing renovation tasks within the work area would have to be certified renovators or trained and directed by certified renovators in accordance with this proposal. In addition, these personnel would be responsible for ensuring the integrity of the containment barriers. The cleaning and post-renovation cleaning verification could be performed by any properly qualified individuals, without regard to whether they are employees of the general contractor or a subcontractor. However, all contractors involved in the disturbance of lead-based paint, or who perform work within the work area established for the containment of lead dust and debris, would be responsible for compliance with this proposal, regardless of any agreements the contractors may have made among themselves.

EPA considered requiring renovation firms to provide notification to EPA before commencing a renovation activity, in the same way that abatement firms are currently required by 40 CFR 745.227(e)(4) to notify EPA before commencing an abatement. This is not the preferred option at this time because EPA believes that it would be unduly burdensome for renovation firms, given the large number of renovations that EPA estimates would be subject to this proposed regulation annually. In addition, the processing of notifications would require a significant resource commitment on EPA's part. However, notification could improve EPA's ability to monitor compliance with work practice requirements while renovations are ongoing. EPA requests comment on whether notifications should be required for all renovation projects, or whether they should be required for a subset of regulated renovations, such as large-scale projects, projects in rental properties, or projects in housing built before 1940. Suggestions for how these categories could be identified are also requested. In addition, EPA requests comment on whether a notification requirement should be phased in over time, to allow the regulated community and EPA to evaluate the effectiveness and the feasibility of such a requirement.

b.

Initial certification.

Firms that perform renovations covered by this proposal would have to be certified by EPA. EPA is proposing to add a definition of “firm” to 40 CFR 745.83 to make it clear that this term includes persons in business for themselves, i.e., sole proprietorships, as well as Federal, State, Tribal, and local governmental agencies, and nonprofit organizations. Firms covered by this proposal include firms that typically perform renovations, such as building contractors or home improvement contractors, as well as property management companies or owners of multi-family housing performing property maintenance activities that include renovations within the scope of this proposal.

EPA is proposing to use a process for certifying firms to perform renovations that is similar to the process currently used to certify firms to perform lead-based paint activities, such as inspections or abatements, that are regulated by 40 CFR part 745, subpart L. This proposal provides information about the certification and re-certification process, establishes procedures for amending and transferring certifications, and identifies clear deadlines.

Under proposed § 745.89(a), a firm wishing to become certified to perform renovations would submit a complete “Application for Firms,” signed by an authorized agent of the firm, along with the correct certification fee. EPA intends to establish firm certification fees in a separate rulemaking.

Proposed § 745.89(a) also sets out EPA's possible responses to a firm certification application and gives the reasons why EPA would choose a

particular response. Under this proposal, EPA would approve a firm's initial application within 90 days of receipt if it is complete, including the proper amount of fees, and if EPA determines that the environmental compliance history of the firm, its principals, or its key employees does not show an unwillingness or inability to comply with applicable environmental statutes or regulations. If the application is approved, EPA proposes to follow the current practice under 40 CFR part 745, subpart L, of establishing the firm's certification expiration date at 3 years from the date of EPA's approval. EPA certification would allow the firm to perform renovations covered by this section in any State or Indian Tribal area that does not have a renovation program authorized under 40 CFR part 745, subpart Q. If the application was incomplete, EPA would notify the firm within 90 days of receipt that its application was incomplete, and ask the firm to supplement its application within 30 days. If the firm did not supplement its application within that period of time, or if EPA's check into the compliance history of the firm revealed an unwillingness or inability to comply with environmental statutes or regulations, EPA would not approve the application and would provide the applicant with the reasons for not approving the application. EPA would not refund the application fees. A firm could reapply for certification at any time by filing a new, complete application that included the correct amount of fees.

c.

Re-certification.

Under proposed § 745.89(b), a certified firm would maintain its certification by submitting a complete and timely “Application for Firms,” noting that it is an application for re-certification, and paying the required re-certification fee. With regard to the timeliness of the application for re-certification, EPA is proposing that if a complete application, including the proper fee, is postmarked 90 days or more before the date the firm's current certification expires, the application would be considered timely and sufficient, and the firm's existing certification would remain in effect until its expiration date or until EPA had made a final decision to approve the re-certification application, or not, whichever occurred later. If the firm submitted a complete re-certification application fewer than 90 days before the date the firm's current certification expired, EPA might be able to process the application and re-certify the applicant before the expiration date, but this would not be guaranteed. If EPA did not approve the re-certification application before the existing application expired, the firm's certification would expire and the firm would not be able to conduct renovations until EPA approved its re- certification application. In any case, the firm's new certification expiration date would be 3 years from the date the existing certification expired.

If the firm submitted an incomplete application for re-certification, and EPA had not received all of the required information and fees before the date the firm's current certification expired, or if the firm did not submit its application until after its certification expired, EPA would not approve the firm's re-certification application. The firm could not cure any deficiencies in its application package by postmarking missing information or fees by its certification expiration date. All required information and fees would have to be in EPA's possession as of the expiration date for EPA to approve the application. If EPA did not approve the application, the Agency would provide the applicant with the reasons for not approving the re-certification application. Any fees submitted by the applicant would not be refunded, but the firm could submit a new application for certification, along with the correct amount of fees, at any time.

As with initial applications, this proposal includes a description of the actions EPA may take in response to an application for re-certification and the reasons why EPA would take a particular action. This section is identical to the proposed process for initial applications, except that EPA will not require an incomplete application to be supplemented within 30 days of the date EPA requests additional information or fees. In the re-certification context, as described in the preceding paragraph, the firm must make its application complete by the date that its current certification expires. There is no compelling reason to establish another deadline for making an incomplete application complete.

d.

Amendments

. Proposed § 745.89(c) would require that a firm amend its certification within 45 days whenever a change occurred to information included in the firm's most recent application. If the firm failed to amend its certification within 45 days of the date the change occurred, the firm would not be authorized to perform renovations until its certification was amended. Examples of amendments include a change in the firm's name without transfer of ownership, or a change of address or other contact information. To amend its certification, a firm would be required to submit an application, noting on the form that it was submitted as an amendment. The firm would be required to complete the sections of the application pertaining to the new information, and sign and date the form. The amendment would have to include the correct amount of fees. Amending a certification would not affect the validity of the existing certification or extend the certification expiration date. EPA would issue the firm a new certificate if necessary to reflect information included in the amendment. Firm certifications are not transferable--if the firm is sold, the new owner must submit a new initial application for certification in accordance with § 745.89(a).

e.

Suspension, revocation, or modification of certification

. EPA is also proposing, in § 745.91, procedures for suspending, revoking, or modifying a firm's certification. These procedures are identical to the current procedures in place for suspending, revoking, or modifying the certification of a firm that is certified to perform lead-based paint activities.

2.

Individuals

—a.

Renovators and workers.

EPA is proposing to establish a new individual certification discipline for renovators. All renovation activities covered by this proposal would have to be performed by certified renovators, or by persons who have received on-the-job training in lead-safe work practices from certified renovators. The certified renovator assigned to a renovation would be responsible for ensuring that the renovation is performed in compliance with the work practice requirements of this proposal.

Under the proposal, a certified renovator must:

• Perform the post-renovation cleaning verification described in proposed § 745.85(b).

• Perform or direct uncertified workers who perform all of the work practices described in proposed § 745.85(a).

• Provide training to uncertified workers on the lead-safe work practices they will be using in performing their assigned tasks, how to isolate the work area and maintain the integrity of the containment barriers, and how to avoid spreading lead contamination beyond the work area.

• Be physically present at the work site when the signs required by proposed § 745.85(a)(1) are posted, while the work area containment required by proposed § 745.85(a)(2) is being established, and while the work area cleaning required by proposed § 745.85(a)(4) is performed.

• Regularly direct the work being performed by uncertified persons to ensure that lead-safe work practices are being followed, the integrity of the containment barriers is maintained, and dust or debris is not spread beyond the work area.

• Be available, either on-site or by telephone, at all times that renovations are being conducted.

• Have with them at the work site copies of their initial course completion certificate and their most recent refresher course completion certificate.

In order to use the term “renovator” to cover the new proposed certified discipline, EPA is proposing to revise the definition of the term in 40 CFR 745.83 to describe what a renovator is and how a renovator becomes certified. EPA is also proposing to modify the existing Pre-Renovation Education Rule requirements to replace the word “renovator” with a reference to the firm performing the renovation wherever the term appears. This is not intended to change the requirements of the Pre-Renovation Education Rule in any significant way. The effect of this change is to make it clear that any person associated with the firm performing the renovation, not necessarily the certified renovator, may handle the firm's pre-renovation education responsibilities.

This proposal would not require everyone involved in performing a regulated renovation project to be a certified renovator. To allow maximum flexibility for firms undertaking these projects, EPA is proposing to allow these firms to use uncertified workers to perform renovation activities as long as they receive on-the-job training in lead-safe work practices from a certified renovator. This training must include instruction in the specific lead-safe work practices that these workers will be responsible for performing. To ensure that renovations are performed safely, this proposal would require a certified renovator to be at the work site during critical phases of the renovation activity to perform or direct uncertified workers who perform tasks directly related to protecting homeowners and occupants from the hazards of lead dust. These tasks include posting warning signs, containing the work area, and cleaning the work site. The proposed post-renovation cleaning verification requirements would have to be performed by a certified renovator, they could not be delegated to an uncertified worker.

In addition, while the renovation project is ongoing, a certified renovator would have to be present at the work site on a regular basis in order to ensure that the uncertified workers are observing lead-safe work practices and maintaining the integrity of the systems employed to contain lead dust. When a certified renovator is not physically present at the work site, the uncertified workers must be able to contact the renovator immediately by telephone or other mechanism. Because these workers would be allowed to work without formal training in protecting children and other building occupants (OSHA requires these workers, like all construction workers, to receive training in protecting themselves and other workers from job hazards including lead), EPA believes that the kind of limited supervision envisioned by OSHA's competent person requirements or the EPA regulations pertaining to lead-based paint abatement supervisors is not sufficient in this situation. A walk around the job site once every shift is not enough to ensure that the uncertified workers are following lead-safe work practices at all times.

EPA realizes that there may be other ways to achieve the goal of maximizing flexibility for renovation firms while ensuring that all persons involved in performing renovations have sufficient training and oversight to perform their tasks in a safe manner. An option EPA considered was a requirement that a certified renovator be physically present at the work site at all times while regulated renovation activities are ongoing. EPA believes that this approach would provide less flexibility for renovation firms, but requests comment on whether that is actually the case, and whether this approach would significantly improve the quality of the work performed by uncertified workers.

Another way to provide flexibility for firms would be to prohibit certified renovators from being assigned to more than one job at a time, while not specifying when a certified renovator must be present during renovations, except that only a certified renovator would be permitted to perform the post-renovation cleaning verification step. EPA requests comment on whether this approach would provide flexibility and decrease costs for renovation firms without also decreasing the amount of protection provided by these proposed regulations. Regardless of the approach used, EPA anticipates that most renovation contractors and property management companies will find that they achieve maximum efficiency and flexibility by qualifying all of their permanent employees who perform renovations as certified renovators.

EPA considered an individual certification scheme similar to that established for lead-based paint abatement activities, with a certified supervisor and certified workers. EPA does not prefer this option primarily because of the differences between renovation projects and abatement projects. All abatement projects have the same purpose--to permanently eliminate lead-based paint hazards. Renovation projects that involve the disturbance of paint are performed for many different reasons, using many different techniques. As a result, the training required by EPA for renovators is necessarily limited to the common elements of interest to EPA, which are the methods that a renovator can use to limit the creation of lead dust, prevent it from spreading to other parts of the dwelling, and properly clean it up afterwards. The containment and clean-up methods that would be required by this regulation are easy to understand and simple to use. A certified renovator who has received accredited training in these subjects should be able to communicate the principles of lead-safe renovation to others with very little difficulty. In addition, during the SBREFA panel process, discussed in greater detail in Unit VIII.C., the regulated community expressed concern over training requirements, given the level of employee turnover in the industry. Requiring certified renovators, but allowing firms to use uncertified workers where necessary, is an attempt to address this concern while still ensuring that everyone who performs regulated renovations understands how to follow lead-safe work practices.

b.

Dust sampling technicians.

In 1999, in order to make accurate dust testing for lead more available and affordable, Congress provided EPA with funding for the development of a 1-day dust sampling technician course. Congress also encouraged the Agency to promote the recognition of this discipline. EPA completed the development of the course, entitled “Lead Sampling Technician Training Course,” in July of 2000. This course provides instruction on how to conduct a visual assessment for deteriorated paint, collect samples for lead dust, and interpret sample results.

As discussed in Unit IV.E., some renovators or homeowners may choose to perform dust clearance testing at the completion of renovation activities instead of the post-renovation cleaning process that EPA is proposing. Dust clearance testing after abatements must be performed by a certified inspector or risk assessor in accordance with the procedures set forth in 40 CFR 745.227(e)(8). If dust clearance testing is to be performed after a renovation, it would also have to be performed as

directed in § 745.227(e)(8), but EPA is also proposing to allow certified dust sampling technicians to perform the testing. This proposal includes training and certification requirements for the dust sampling technician discipline to help ensure the quality of initial training, provide for periodic refresher training to keep dust sampling technicians up to date regarding current regulatory and technical protocols, and assist the public in the identification of qualified individuals. Dust sampling technicians would not be subject to any additional education or experience requirements beyond completion of an accredited dust sampling technician course, nor would they be required to pass a third-party certification examination. As with the other certified disciplines, dust sampling technicians would be required to obtain re-certification every 3 years.

EPA has determined that accredited dust sampling technicians would be qualified to perform the work described in this Unit for renovations because the training curriculum provides clearance sampling instruction that is equivalent to that presented in inspector and risk assessor courses, in terms of time and quality.

A certified dust sampling technician is responsible for collecting dust samples, sending them to an EPA-recognized laboratory, and comparing the results to the clearance levels in accordance with 40 CFR 745.227(e)(8). The certified dust sampling technician must also have with them at the work site copies of their initial course completion certificate and their most recent refresher course completion certificate.

c.

Initial certification.

Proposed § 745.90 addresses renovator and dust sampling technician certification. To become a certified renovator, a person would have to successfully complete a renovator course that has been accredited by EPA or by a State, Territorial, or Tribal program authorized by EPA under 40 CFR part 745, subpart Q. The renovator course accreditation requirements are based on the joint EPA-HUD model curriculum entitled

Lead Safety for Remodeling, Repair, & Painting

. More information on the development of this curriculum and the accreditation of renovator and dust sampling technician courses can be found in Unit IV.D. The renovator course primarily covers how to isolate and contain renovation projects so that leaded dust does not escape, how to minimize the creation of leaded dust, and how to properly clean up after a renovation project so that lead-based paint hazards are not left behind. EPA is not proposing to require additional education or work experience of persons wishing to become certified renovators.

To become a certified dust sampling technician, a person would have to successfully complete a dust sampling technician training course that has been accredited either by EPA or by a State, Territorial, or Tribal program authorized by EPA under 40 CFR part 745, subpart Q. The dust sampling technician course primarily covers dust sampling methodologies and clearance standards and testing. EPA is not proposing to require additional education or work experience of persons wishing to become certified dust sampling technicians.

EPA renovator certification would allow the certified individual to perform renovations covered by this section in any State or Indian Tribal area that does not have a renovation program authorized under 40 CFR part 745, subpart Q. EPA dust sampling technician certification would allow the certified individual to perform dust sampling covered by this section in any State or Indian Tribal area that does not have a renovation program authorized under 40 CFR part 745, subpart Q.

Because EPA is not proposing any additional education or work experience requirements, or a third-party examination similar to that taken by inspector, risk assessor, or supervisor candidates, EPA believes that there is little value in requiring candidates to apply to EPA to receive their renovator or dust sampling technician certification. Currently, the only certified discipline without prerequisites in education or experience, or a third-party examination, is the abatement worker. When candidates for worker certification apply to EPA, EPA verifies that the copy of the training course certificate submitted with the application is from an accredited training provider. Without requiring renovators or dust sampling technicians to apply to EPA for certification, under this proposal EPA would still receive course completion information from course providers. With this information, under the proposal EPA would be able to check to see if a particular course completion certificate holder appeared on a course completion list submitted by the training course provider identified on the certificate. When EPA inspects a renovation job for compliance with these proposed regulations, EPA will have the ability to verify, to the same extent, the validity of a course completion certificate held by a renovator or dust sampling technician at that job. Therefore, EPA is proposing that a course completion certificate from an accredited training provider serve as a renovator's or dust sampling technician's certification. To facilitate compliance monitoring, EPA would require a certified renovator or dust sampling technician to have a copy of the course completion certificate at the job site.

EPA also considered alternatives such as requiring renovator and dust sampling technician candidates to apply to EPA for certification, following the same procedures established for worker certification in 40 CFR 745.226. EPA also considered requiring a third-party examination for persons wishing to become certified renovator or dust sampling technicians. A third-party examination would be an additional check on the adequacy of the training courses being offered, as well as an independent assessment of how well a particular candidate retained the information presented. On the other hand, a third-party examination would significantly increase the burden of administration and the expense of complying with these proposed regulations. EPA requests comment on these options, as well as EPA's assessment of the costs and burdens of these options.

d.

Re-certification

. EPA is proposing to require that renovators and dust sampling technicians who wish to remain certified take refresher training every 3 years. This is consistent with the existing re-certification interval for firms and for certified individuals under 40 CFR 745.226. In addition, EPA is proposing to require that the refresher training course be half the length of the initial course. This is also consistent with current practice for certified individuals performing lead-based paint activities. If an individual does not take a refresher course within 3 years of the date he or she completed the initial course or the previous refresher course, that individual's certification will expire on that date and that individual may no longer serve as a certified renovator or dust sampling technician on a renovation project regulated by this proposal. There would be no grace period. To become certified again, the individual would have to take another initial training course.

EPA also considered an alternative of requiring certified renovators to re-take the initial renovator course every 3 years. The primary advantage to such an approach is that, eventually, renovator course attendees would be a combination of experienced renovators and persons new to the field. This would allow the experienced persons to share helpful tips and lessons learned

with others and could have a positive impact on the overall quality of the training delivered. On the other hand, longer training requirements mean increased costs for the regulated community. In addition, with the preferred option, certified renovators would always be permitted to substitute an initial renovator course for a refresher course to allow maximum flexibility, particularly if for some reason the person was unable to attend a refresher course. EPA requests comment on this option on whether 3 years is an appropriate interval for refresher training, and whether refresher training should be required at all.

e.

Individuals certified to perform lead-based paint activities.

EPA is also proposing to allow individuals who are or who become certified lead-based paint abatement supervisors or workers to act as certified renovators. These persons would have to possess a current and valid certification from EPA or an EPA-authorized State, Territorial, or Tribal lead-based paint program. EPA has determined that the training taken by candidates for supervisor or worker certification meets or exceeds the proposed training requirements for renovators with respect to many of the requirements of this proposal. Both disciplines must receive training in lead-based paint hazard recognition and control, as well as dust abatement and clean-up. However, the proposed post-renovation cleaning verification process, discussed in Unit IV.E., and the use of test kits for paint testing is not currently being taught in abatement supervisor or worker courses. EPA plans to develop guidance documents on these processes, and amend the model curriculum to cover them. EPA requests comment on whether an effective guidance document would be sufficient to familiarize abatement supervisors and workers with performing post-renovation cleaning verification and using paint test kits, or whether another approach, such as requiring certified supervisors or workers to take a renovator refresher course, would allow the regulated community to make use of the workforce already trained in lead-based paint hazard control, while ensuring that this workforce understands how to perform the post-renovation cleaning verification requirements and use test kits to test for lead-based paint.

Persons who are or who become certified lead-based paint inspectors or risk assessors based on a certification issued either by EPA under 40 CFR 745.226 or by an authorized State or Tribal p

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