# Lead; Clearance and Clearance Testing Requirements for the Renovation, Repair, and Painting Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-10102 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** May 6, 2010 - **Citation:** 75 FR 25038 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 745 [EPA-HQ-OPPT-2005-0049; FRL-8823-5] RIN 2070-AJ57 Lead; Clearance and Clearance Testing Requirements for the Renovation, Repair, and Painting Program AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing several revisions to the 2008 Lead Renovation, Repair, and Painting Program (RRP) rule that established accreditation, training, certification, and recordkeeping requirements as well as work practice standards for persons performing renovations for compensation in most pre-1978 housing and child-occupied facilities. EPA is particularly concerned about dust-lead hazards generated by renovations because of the well-documented toxicity of lead, especially to younger children. This proposal includes additional requirements designed to ensure that lead-based paint hazards generated by renovation work are adequately cleaned after renovation work is finished and before the work areas are re-occupied. Specifically, EPA is proposing to require dust wipe testing after many renovations covered by the RRP rule. For a subset of jobs involving demolition or removal of plaster through destructive means or the disturbance of paint using machines designed to remove paint through high-speed operation, such as power sanders or abrasive blasters, this proposal would also require the renovation firm to demonstrate, through dust wipe testing, that dust-lead levels remaining in the work area are below regulatory levels. DATES: Comments must be received on or before July 6, 2010. ADDRESSES: Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2005-0049, by one of the following methods: • Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • Hand Delivery: OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number EPA-HQ-OPPT-2005-0049. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930. Such deliveries are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-2005-0049. EPA's policy is that all comments received will be included in the docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov, or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. FOR FURTHER INFORMATION CONTACT: For general information contact: Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address: TSCA-Hotline@epa.gov. For technical information contact: Cindy Wheeler, National Program Chemicals Division, Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 566-0484; e-mail address: wheeler.cindy@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 or child-occupied facilities for compensation, dust sampling, or dust testing. You may also be affected by this action if you perform lead-based paint inspections, lead hazard screens, risk assessments or abatements in target housing or child-occupied facilities or if you operate a training program for individuals who perform any of these activities. “Target housing” is defined in section 401 of TSCA as any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Under this rule, a child-occupied facility is a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least 2 different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Potentially-affected entities may include, but are not limited to: • Building construction (NAICS code 236), e.g., single family housing construction, multi-family housing construction, residential remodelers. • Specialty trade contractors (NAICS code 238), e.g., plumbing, heating, and air-conditioning contractors, painting and wall covering contractors, electrical contractors, finish carpentry contractors, drywall and insulation contractors, siding contractors, tile and terrazzo contractors, glass and glazing contractors. • Real estate (NAICS code 531), e.g., lessors of residential buildings and dwellings, residential property managers. • Child day care services (NAICS code 624410). • Elementary and secondary schools (NAICS code 611110), e.g., elementary schools with kindergarten classrooms. • Other technical and trade schools (NAICS code 611519), e.g., training providers. • Engineering services (NAICS code 541330) and building inspection services (NAICS code 541350), e.g., dust sampling technicians. • Lead abatement professionals (NAICS code 562910), e.g., firms and supervisors engaged in lead-based paint activities. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT . B. What should I consider as I prepare my comments for EPA? 1. Submitting CBI. Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for preparing your comments. When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Introduction A. What action is the agency taking? EPA is proposing several revisions to the 2008 Lead Renovation, Repair, and Painting Program (RRP) rule (Ref. 1) that established accreditation, training, certification, and recordkeeping requirements as well as work practice standards for persons performing renovations for compensation in most pre-1978 housing and child-occupied facilities. EPA is particularly concerned about dust-lead hazards generated by renovations because of the well-documented toxicity of lead, especially to younger children. This proposal includes additional requirements designed to ensure that lead-based paint hazards generated by renovation work are adequately cleaned after renovation work is finished and before the areas are re-occupied. Specifically, EPA is proposing to require dust wipe testing after many renovations covered by the RRP rule. For a subset of jobs involving demolition or removal of plaster through destructive means or the disturbance of paint using machines designed to remove paint through high-speed operation, such as power sanders or abrasive blasters, this proposal would also require the renovation firm to demonstrate, through dust wipe testing, that dust-lead levels remaining in the work area are below regulatory levels. EPA is not, however, reopening other aspects of the work practices required by the 2008 RRP rule. EPA is also proposing various minor amendments to the regulations concerning applications for training provider accreditation, amending accreditations, course completion certificates, record keeping, State and Tribal program requirements, and grandfathering (i.e., taking a refresher training in lieu of the initial training). In addition, the proposed amendments intend to clarify that certain requirements apply to the RRP rule as well as the Lead-Based Paint Activities (abatement) regulations, that the prohibitions and restrictions on work practices in the RRP rule apply to the disturbance of any painted surface, that certified renovators need only provide on-the-job training to other renovation workers in the work practices required by the rule, that a certified inspector or risk assessor can act as a dust sampling technician, which hands-on training topics are required for renovator and dust sampling technician courses, and requirements for States and Tribes that apply to become authorized to implement the RRP program. Again, EPA is not reopening for consideration any aspects of the existing regulations, except as provided in today's proposal. B. What is the agency's authority for taking this action? These work practice requirements for dust wipe testing and clearance, training, certification and accreditation requirements, and State, Territorial and Tribal authorization provisions are being promulgated under the authority of sections 402(c)(3), 404, and 407 of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2682(c)(3), 2684, and 2687. C. Background 1. Health effects of lead exposure. This Unit describes some of the more significant health effects of lead exposure and the routes of exposure associated with lead in paint. Much more information is available in the preamble to the 2008 Lead Renovation, Repair, and Painting (RRP) Rule (Ref. 1) and the Air Quality Criteria for Lead document (Ref. 2). Lead has been known throughout the ages for its useful properties, having been commonly used in the production of paint, batteries, pipes, solder, pottery, and gasoline. Lead is also known for its “broad array of deleterious effects on multiple organ systems via widely diverse mechanisms of action.” (Ref. 2) This array of health effects includes heme biosynthesis and related functions; neurological development and function; reproduction and physical development; kidney function; cardiovascular function; and immune function. There is also some evidence of lead carcinogenicity, primarily from animal studies, together with limited human evidence of suggestive associations. Of particular interest to EPA during the RRP rulemaking was the delineation of lowest observed effect levels for those lead-induced effects that are most clearly associated with blood lead levels of less than 10 micrograms per deciliter (μg/dL) in children and adults (Ref. 2, at 8-60). As is evident from the Criteria Document, neurotoxic effects in children and cardiovascular effects in adults are among those best substantiated as occurring at blood-lead concentrations as low as 5 to 10 μg/dL (or possibly lower), so these categories of effects would result in the greatest public health concern. Other newly demonstrated immune and renal system effects among general population groups are also emerging as low-level lead-exposure effects of potential public health concern (Ref. 2, at 8-60). Among the wide variety of health endpoints associated with lead exposures, there is general consensus that the developing nervous system in children is among the, if not the, most sensitive. While blood lead levels in U.S. children have decreased notably since the late 1970s, newer studies have investigated and reported associations of effects on the neurodevelopment of children with these more recent blood lead levels (Ref. 2, chapter 6). Functional manifestations of lead neurotoxicity during childhood include sensory, motor, cognitive, and behavioral impacts. Numerous epidemiological studies have reported neurocognitive, neurobehavioral, sensory, and motor function effects in children with blood lead levels below 10 μg/dL (Ref. 2, sections 6.2 and 8.4. [FN 7. Further, neurological effects in general include behavioral effects, such as delinquent behavior (Ref. 2, sections 6.2.6 and 8.4.2.2), sensory effects, such as those related to hearing and vision (Ref. 2, sections 6.2.7 and 8.4.2.3), and deficits in neuromotor function (Ref. 2, p. 8-36).] As discussed in the Criteria Document, “extensive experimental laboratory animal evidence has been generated that (a) substantiates well the plausibility of the epidemiologic findings observed in human children and adults and (b) expands our understanding of likely mechanisms underlying the neurotoxic effects” (Ref. 2, p. 8-25; section 5.3). Cognitive effects associated with lead exposures that have been observed in epidemiological studies have included decrements in intelligence test results, such as the widely used IQ score, and in academic achievement as assessed by various standardized tests as well as by class ranking and graduation rates (Ref. 2, section 6.2.16 and pp. 8-29 to 8-30). As noted in the Criteria Document with regard to the latter, “Associations between lead exposure and academic achievement observed in the above-noted studies were significant even after adjusting for IQ, suggesting that lead-sensitive neuropsychological processing and learning factors not reflected by global intelligence indices might contribute to reduced performance on academic tasks” (Ref. 2, pp. 8-29 to 8- 30). With regard to potential implications of lead effects on IQ, the Criteria Document recognizes the “critical” distinction between population and individual risk, identifying issues regarding declines in IQ for an individual and for the population. The Criteria Document further states that a “point estimate indicating a modest mean change on a health index at the individual level can have substantial implications at the population level” (Ref. 2, p. 8-77). [FN 8. As an example, the Criteria Document states, “although an increase of a few mm Hg in blood pressure might not be of concern for an individual's well-being, the same increase in the population mean might be associated with substantial increases in the percentages of individuals with values that are sufficiently extreme that they exceed the criteria used to diagnose hypertension” (Ref. 2, p. 8-77).] A downward shift in the mean IQ value is associated with both substantial decreases in percentages achieving very high scores and substantial increases in the percentage of individuals achieving very low scores (Ref. 2, p. 8-81). [FN 9. For example, for a population mean IQ of 100 (and standard deviation of 15), 2.3% of the population would score above 130, but a shift of the population to a mean of 95 results in only 0.99% of the population scoring above 130 (Ref. 2, pp. 8-81 to 8-82).] For an individual functioning in the low IQ range due to the influence of developmental risk factors other than lead, a lead-associated IQ decline of several points might be sufficient to drop that individual into the range associated with increased risk of educational, vocational, and social failure (Ref. 2, p. 8-77). Other cognitive effects observed in studies of children have included effects on attention, executive functions, language, memory, learning, and visuospatial processing (Ref. 2, sections 5.3.5, 6.2.5, and 8.4.2.1), with attention and executive function effects associated with lead exposures indexed by blood lead levels below 10 μg/dL (Ref. 2, section 6.2.5 and pp. 8-30 to 8-31). The evidence for the role of lead in this suite of effects includes experimental animal findings (Ref. 2, section 8.4.2.1; p. 8-31), which provide strong biological plausibility of lead effects on learning ability, memory and attention (Ref. 2, section 5.3.5), as well as associated mechanistic findings. The persistence of such lead-induced effects is described in the proposal and the Criteria Document (e.g., Ref. 2, sections 5.3.5, 6.2.11, and 8.5.2). The persistence or irreversibility of such effects can be the result of damage occurring without adequate repair offsets or of the persistence of lead in the body (Ref. 2, section 8.5.2). It is additionally important to note that there may be long-term consequences of such deficits over a lifetime. Poor academic skills and achievement can have “enduring and important effects on objective parameters of success in real life,” as well as increased risk of antisocial and delinquent behavior (Ref. 2, section 6.2.16). Multiple epidemiologic studies of lead and child development have demonstrated inverse associations between blood lead concentrations and children's IQ and other cognitive-related outcomes at successively lower lead exposure levels over the past 30 years (Ref. 2, section 6.2.13). For example, the overall weight of the available evidence, described in the Criteria Document, provides clear substantiation of neurocognitive decrements being associated in children with mean blood lead levels in the range of 5 to 10 μg/dL, and some analyses indicate lead effects on intellectual attainment of children for which population mean blood lead levels in the analysis ranged from 2 to 8 μg/dL (Ref. 2, sections 6.2, 8.4.2, and 8.4.2.6). Thus, while blood lead levels in U.S. children have decreased notably since the late 1970s, newer studies have investigated and reported associations of effects on the neurodevelopment of children with blood lead levels similar to the more recent, lower blood lead levels (Ref. 2, chapter 6). Paint that contains lead can pose a health threat through various routes of exposure. House dust is the most common exposure pathway through which children are exposed to lead-based paint hazards. Dust created during normal lead-based paint wear (especially around windows and doors) can create an invisible film over surfaces in a house. Children, particularly younger children, are at risk for high exposures of lead-based paint dust via hand-to-mouth exposure, and may also ingest lead-based paint chips from flaking paint on walls, windows, and doors. Lead from exterior house paint can flake off or leach into the soil around the outside of a home, contaminating children's play areas. Cleaning and renovation activities may actually increase the threat of lead-based paint exposure by dispersing lead dust particles in the air and over accessible household surfaces. In turn, depending on the levels of lead in the dust, both adults and children can receive hazardous exposures by inhaling the dust or by ingesting lead-based paint dust during hand-to-mouth activities. EPA's Wisconsin Childhood Blood-Lead Study, described more fully in Unit III.C.1.c. of the preamble to the 2006 Proposal, provides ample evidence of a link between renovation activities and elevated blood lead levels in resident children (Ref. 3). This peer-reviewed study concluded that general residential renovation and remodeling is associated with an increased risk of elevated blood lead levels in children and that specific renovation and remodeling activities are also associated with an increase in the risk of elevated blood lead levels in children. In particular, removing paint (using open flame torches, using heat guns, using chemical paint removers, and wet scraping/sanding) and preparing surfaces by sanding or scraping significantly increased the risk of elevated blood lead levels. Three studies from New York support the findings of the Wisconsin Childhood Blood-Lead Study. In 1995, the New York State Department of Health assessed lead exposure among children resulting from home renovation and remodeling in 1993-1994. A review of the health department records of children with blood lead levels equal to or greater than 20 μg/dL identified 320, or 6.9%, with elevated blood lead levels that were attributable to renovation and remodeling (Ref. 4). An update to that study with data from environmental investigations conducted during 2006-2007 in New York State (excluding New York City) identified renovation, repair, and painting activities as the probable source of lead exposure in 14% of 972 children with blood lead levels equal to or exceeding 20 μg/dL (Ref. 5). The authors concluded that children living in housing undergoing renovation, repair, and painting that was built before 1978, and particularly before 1950, when concentrations of lead in paint were higher, are at high risk for elevated blood lead levels. The final study was a case-control study that assessed the association between elevated blood lead levels in children younger than 5 years and renovation or repair activities in homes in New York City (Ref. 6). EPA notes that the authors show that when dust and debris was reported (by respondents via telephone interviews) to be “everywhere” following a renovation, the blood lead levels were significantly higher than children at homes that did not report remodeling work. On the other hand, when the respondent reported either “no visible dust and debris” or that “dust and debris was limited to the work area,” there was no statistically significant effect on blood lead levels relative to homes that did not report remodeling work. Although the study found only a weak and nonsignificant link between a report of any renovation activity and the likelihood that a resident child had an elevated blood-lead level, the link to the likelihood of an elevated blood-lead level was statistically significant for surface preparation by sanding and for renovation work that spreads dust and debris beyond the work area. The researchers noted the consistency of their results with EPA's Wisconsin Childhood Blood-Lead Study (Ref. 6, at 509). Children in minority populations and children whose families are poor have an increased risk of exposure to harmful lead levels (Ref. 7, at e376). Analysis of the National Health and Nutrition Examination Surveys (NHANES) data from 1988 through 2004 shows that the prevalence of blood lead levels equal to or exceeding 10 μg/dL in children aged 1 to 5 years has decreased from 8.6% in 1988-1991 to 1.4% in 1999-2004, which is an 84% decline (Ref. 7, at e377). However, the NHANES data from 1999-2004 indicates that non-Hispanic black children aged 1 to 5 years had higher percentages of blood lead levels equal to or exceeding 10 μg/dL (3.4%) than white children in the same age group (1.2%) (Ref. 7). In addition, among children aged 1 to 5 years over the same period, the geometric mean blood lead level was significantly higher for non-Hispanic blacks (2.8 μg/dL), compared with Mexican Americans (1.9 μg/dL) and non-Hispanic whites (1.7 μg/dL) (Ref. 7, at e377). For children aged 1 to 5 years from families with low income, the geometric mean blood lead level was 2.4 μg/dL (Ref. 7, at e377). Further, the incidences of blood-lead levels greater than 10 μg/dL and greater than or equal to 5 μg/dL were higher for non-Hspanic blacks (14% and 3.4% respectively) than for Mexican Americans (4.7% and 1.2%, respectively) and non-Hispanic whites (4.4% and 1.2%, respectively). (Ref. 7, at e377). The analysis “indicates that residence in older housing, poverty, age, and being non-Hispanic black are still major risk factors for higher lead levels” (Ref. 7, at e376). 2. Prior EPA rulemakings under TSCA Sections 402(a) and 403. TSCA section 402(a) directs EPA to promulgate regulations covering lead-based paint activities, such as abatement, to ensure persons performing these activities are properly trained, that training programs are accredited, and that contractors performing these activities are certified. These regulations must contain standards for performing lead-based paint activities, taking into account reliability, effectiveness, and safety. On August 29, 1996, EPA promulgated final regulations under TSCA section 402(a) that govern lead-based paint inspections, lead hazard screens, risk assessments, and abatements in target housing and child-occupied facilities (also referred to as the Lead-based Paint Activities Regulations) (Ref. 8). These regulations, codified at 40 CFR part 745, subpart L, contain an accreditation program for training providers and training and certification requirements for lead-based paint inspectors, risk assessors, project designers, abatement supervisors, and abatement workers. Work practice standards for lead-based paint activities are included. Pursuant to TSCA section 404, provision was made for interested States, Territories, and Indian Tribes to apply for and receive authorization to administer their own lead-based paint activities programs. The regulations applicable to State, Territorial, and Tribal programs are codified at 40 CFR part 745, subpart Q. The work practice standards for abatements in the Lead-based Paint Activities Regulations are essentially performance standards. They give a trained and certified abatement contractor some discretion in determining how best to ensure that an abatement is performed safely, so long as the contractor can demonstrate that the abatement has been properly completed and that no lead-based paint hazards remain. Certain high dust generating practices are prohibited and contractors are required to prepare occupant protection plans specifically describing the procedures to be followed on each job to protect occupants from exposures to lead-based paint hazards. In most cases, residents relocate until the abatement has been completed. Although these additional procedures are not specified in the regulations, abatement supervisor and worker courses provide comprehensive training in the specialized techniques these individuals can use to contain work areas, remove, enclose, or encapsulate lead-based paint and lead-based paint hazards, and clean up after the job is finished. The regulations are much more detailed in describing the procedures that must be followed to ensure that the abatement has been properly completed and that the work area is ready for re-occupancy. These procedures, typically referred to as “clearance,” must be performed by a certified inspector or risk assessor. First, a visual inspection must be performed to determine whether deteriorated painted surfaces or visible amounts of dust, debris, or residue are still present. If so, these conditions must be eliminated before the clearance procedures may continue. An exterior abatement project is considered complete after a successful visual inspection. Following a successful visual inspection after an interior abatement project, the inspector or risk assessor must collect dust wipe samples from floors, windowsills, and window troughs in the work area and have them analyzed by a laboratory accredited under the National Lead Laboratory Accreditation Program (NLLAP) for dust lead analysis. After the sampling results are received, the inspector or risk assessor must compare them with the established clearance standards for lead in dust. If all of the samples are below the clearance standards, the abatement is complete and the area may be re-occupied. If any samples are above the standards, the components represented by those samples must be re-cleaned and the clearance process must be repeated until all samples are below the clearance standards. For example, if any interior window sills fail clearance, all of the unsampled window sills, as well as the failed window sills, must be recleaned and retested. If the abatement was conducted in multiple dwelling units, and units were selected for random testing, the window sills in the unsampled units would also have to be recleaned and retested. TSCA section 403 directs EPA to promulgate regulations that identify, for the purposes of Title X and Title IV of TSCA, dangerous levels of lead in paint, dust, and soil. These regulations were promulgated on January 5, 2001 and codified at 40 CFR part 745, subpart D (Ref. 9). These hazard standards define lead-based paint hazards in target housing and child-occupied facilities as paint-lead, dust-lead, and soil-lead hazards. A paint-lead hazard is defined as any damaged or deteriorated lead-based paint, any chewable lead-based painted surface with evidence of teeth marks, or any lead-based paint on a friction surface if lead dust levels underneath the friction surface exceed the dust-lead hazard standards. A dust-lead hazard is surface dust that contains a mass-per-area concentration of lead equal to or exceeding 40 micrograms per square foot (μg/ft 2 ) on floors or 250 μg/ft 2 on interior windowsills based on wipe samples. A soil-lead hazard is bare soil that contains total lead equal to or exceeding 400 parts per million (ppm), equivalent to 400 micrograms per gram (μg/g), in a play area or average of 1,200 ppm of bare soil in the rest of the yard based on soil samples. The TSCA section 403 rulemaking also amended the Lead-based Paint Activities Regulations to incorporate new dust-lead clearance standards for abatements. These standards are 40 μg/ft 2 on floors, 250 μg/ft 2 on interior windowsills, and 400 μg/ft 2 on window troughs, based on wipe samples. On August 10, 2009, EPA received a petition requesting that EPA lower the regulatory dust-lead hazard standard and modify the regulatory definition of lead-based paint. After careful consideration, EPA decided to grant the request and accordingly intends to begin the appropriate proceedings. Although EPA granted the request, the Agency did not commit to either a specific rulemaking outcome or a certain date for promulgation of a final rule. EPA's primary reason for granting the request was based on recent epidemiological studies that indicate the current hazard standards are insufficiently protective. The request was granted under section 553(e) of the Administrative Procedures Act (APA). Additionally, because the Secretary of the Department of Housing and Urban Development (HUD) was given the statutory authority to establish a lower level of lead in paint for purposes of the definition of lead-based paint in target housing, EPA plans to work with HUD on this aspect of the request. 3. The 2008 Renovation, Repair, and Painting Rule. TSCA section 402(c) addresses renovation and remodeling. Specifically, TSCA section 402(c)(2) directs EPA to study the extent to which persons engaged in various types of renovation and remodeling activities are exposed to lead during such activities or create a lead-based paint hazard regularly or occasionally. EPA conducted this study in four phases. Phase I, the Environmental Field Sampling Study (EFSS) (Ref. 10), evaluated the amount of leaded dust released by the following activities: • Paint removal by abrasive sanding. • Removal of large structures, including demolition of interior plaster walls. • Window replacement. • Carpet removal. • HVAC repair or replacement, including duct work. • Repairs resulting in isolated small surface disruptions, including drilling and sawing into wood and plaster. Phase II, the Worker Characterization and Blood Lead Study (Ref. 11), involved collecting data on blood lead and renovation and remodeling activities from workers. Phase III, the Wisconsin Childhood Blood Lead Study (Ref. 3), was a retrospective study focused on assessing the relationship between renovation and remodeling activities and children's blood-lead levels. Phase IV, the Worker Characterization and Blood-Lead Study of R&R Workers Who Specialize in Renovations of Old or Historic Homes (Ref. 12), was similar to Phase II, but focused on individuals who worked primarily in old historic buildings. More information on the results of these peer-reviewed studies can be found in Unit III.C.1. of the preamble to the 2006 Lead; Renovation, Repair, and Painting Program Proposed Rule (“2006 Proposal”) (Ref. 13). TSCA section 402(c)(3) further directs EPA to revise the Lead-based Paint Activities Regulations to apply to renovation or remodeling activities that create lead-based paint hazards. Accordingly, EPA issued the 2006 Proposal, proposing to conclude that any renovation activity that disturbs lead-based paint can create significant amounts of leaded dust, that most activities created lead-based paint hazards, and that some activities can be reasonably anticipated to create lead-based paint hazards (Ref. 13). This proposed finding was largely based on the results of the studies conducted under TSCA section 402(c)(2). After the 2006 Proposal was issued, EPA conducted a field study (Characterization of Dust Lead Levels after Renovation, Repair, and Painting Activities) (the “Dust Study”) to better characterize dust lead levels resulting from various renovation, repair, and painting activities (Ref. 14). This study, completed in January, 2007, was designed to compare environmental lead levels at appropriate stages after various types of renovation, repair, and painting preparation activities were performed on the interiors and exteriors of target housing units and child- occupied facilities. The renovation activities were conducted by local professional renovation firms, using personnel who received lead safe work practices training. The activities conducted represented a range of activities that would have been permitted under the 2006 Proposal, including work practices that are restricted or prohibited under the final RRP rule. Of particular interest was the impact of using specific work practices that renovation firms would be required to use under the proposed rule, such as the use of plastic to contain the work area and a multi-step cleaning protocol, as opposed to more typical work practices. The final RRP rule was published in the Federal Register issue of April 22, 2008 (Ref. 1). The final RRP rule, codified in 40 CFR part 745, subparts E, L, and Q, addresses lead-based paint hazards created by renovation, repair, and painting activities that disturb painted surfaces in target housing and child-occupied facilities. “Target housing” is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Under the final RRP rule, a child-occupied facility is a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may be located in public or commercial buildings or in target housing. In the final RRP rule, EPA issued its determination that renovation, repair, and painting activities that disturb lead-based paint create lead-based paint hazards. This finding was based on evidence from the TSCA section 402(c)(2) study and the Dust Study that all such activities in the presence of lead-based paint create lead-based paint hazards. Having made this finding, TSCA section 402(c)(3) then directs EPA to revise the Lead-based Paint Activities regulations to apply to such renovations. In the final RRP rule, EPA did not interpret its statutory mandate to require application of the existing TSCA section 402(a) regulations to renovations without change. EPA stated its belief that Congress, by using the word “revise,” and creating a separate subsection of the statute for renovation, intended that EPA make revisions to those existing regulations to adapt them to a different set of actions and a very different regulated community. As discussed in the preamble to the final RRP rule, there are significant differences between renovations and abatements (Ref. 1). For example, performing abatement is a highly specialized skill that workers and supervisors must learn in accredited training courses. However, painters, plumbers and carpenters already know how to perform renovation work, so accredited renovator training courses are designed to teach renovators how to incorporate principles of lead safety into their typical work. Accordingly, the rule did not merely expand the scope of the current abatement requirements to cover renovation and remodeling activities. Instead, EPA considered the elements of the existing abatement regulations and revised them as necessary to craft a rule that is practical for renovation, remodeling and painting businesses and their customers, taking into account reliability, effectiveness, and safety as directed by TSCA section 402(a). The final RRP rule establishes requirements for training renovators, other renovation workers, and dust sampling technicians; for certifying renovators, dust sampling technicians, and renovation firms; for accrediting providers of renovation and dust sampling technician training; for renovation work practices; and for recordkeeping. Interested States, Territories, and Indian Tribes may apply for and receive authorization to administer and enforce all of the elements of these new renovation requirements. The final RRP rule created two new training disciplines in the field of lead-based paint: renovator and dust sampling technician. Persons who successfully complete renovator training from an accredited renovation training provider are certified renovators. Certified renovators are responsible for ensuring that renovations to which they are assigned are performed in compliance with the work practice requirements set out in 40 CFR 745.85. Persons who successfully complete dust sampling technician training from an accredited training provider are certified dust sampling technicians. Certified dust sampling technicians may be called upon to collect dust wipe samples after renovation activities have been completed. While the training disciplines, the work practice standards, and the recordkeeping requirements of the final RRP rule differ from those established in the lead-based paint activities regulations, EPA determined that the accreditation requirements imposed on persons providing lead-based paint activities training would also be effective for persons providing renovation training. Therefore, the final RRP rule amended 40 CFR 745.225 to cover persons who provide or wish to provide renovation training for the purposes of the final RRP rule. As amended, 40 CFR 745.225 requires training providers who wish to provide lead-based paint activities or renovation training for the purposes of the EPA's lead-based paint programs to be accredited by EPA. The requirements for each course of study are described in detail at 40 CFR 745.225 as are the operational requirements for training programs and the process for obtaining accreditation. Under the final RRP rule, covered renovations in target housing and child-occupied facilities must be performed by certified renovation firms. A certified firm must ensure that persons who perform renovations on behalf of the firm are properly trained and that the work practice requirements are followed. Renovations must be performed or directed by certified renovators, who are also responsible for compliance with the RRP rule's requirements. The final RRP rule contains a number of work practice requirements that must be followed for every covered renovation. These requirements pertain to warning signs and work area containment, the restriction or prohibition of certain practices ( e.g., high heat gun, torch, power sanding, power planing), waste handling, cleaning, and post-renovation cleaning verification. In contrast, the RRP rule did not apply the same performance standard of an abatement-style clearance requirement to demonstrate that lead-based paint hazards created by the renovation have been eliminated. Instead, the RRP rule sets forth the steps that must be taken to isolate and contain the work area before work begins and the cleaning protocol that must be followed after the renovation has been completed. A final step in the process for interior renovations is cleaning verification. After the RRP rule's specific cleaning protocol has been followed, a visual inspection for visible dust and debris is performed. If no dust or debris is found, a certified renovator must wipe the interior windowsills and uncarpeted floors with wet disposable cleaning cloths and compare each to a cleaning verification card developed and distributed by EPA. If the cloth matches or is lighter than the image on the card, the surface represented by the cloth has passed the post-renovation cleaning verification. If the cloth is darker than the image on the card, the surface represented by the cloth must be re-cleaned and then wiped with a new wet cloth, which is then compared to the cleaning verification card. If the cloth is still darker than the image on the card, the surface must be allowed to dry for at least an hour. At that time, the surface is wiped with a dry electrostatic cleaning cloth, which completes the cleaning verification process for that surface. When all surfaces in the work area have completed cleaning verification, the renovation has been completed and the work area may be re-occupied. Shortly after the final RRP rule was promulgated, several petitions were filed challenging the rule. These petitions were consolidated in the Circuit Court of Appeals for the District of Columbia Circuit. On August 26, 2009, EPA signed an agreement with the environmental and children's health advocacy groups in settlement of their petitions. In this agreement EPA committed to propose several changes to the RRP rule, including the changes discussed in this notice. Throughout this notice, EPA will use several different terms to describe the proposed requirements. EPA will use the term “dust wipe testing” to mean collecting wipe samples of dust on floors and windowsills and in window troughs, analyzing the samples for lead content, and reporting the results of the analysis to the owners and occupants of the building being renovated. Although the term “dust wipe sampling” was used in the settlement agreement to describe these activities, EPA is using “dust wipe testing” in this notice to signal that sample analysis may be performed off-site in a traditional laboratory setting or on-site by a portable laboratory, so long as the entity performing the analysis is accredited or recognized by the National Lead Laboratory Accreditation Program (NLLAP). In this notice, EPA will use the term “dust wipe sampling” to refer to the specific activity of collecting the wipe samples, not to the analysis or reporting of results. EPA will use the term “clearance” to mean demonstrating, through dust wipe testing, that the floors, windowsills, and window troughs in the renovation work area are below the regulatory clearance standards that have been established for the abatement program and codified at 40 CFR 745.227(e)(8). This includes re-cleaning where necessary to achieve the clearance standards. III. Provisions of This Proposal A. Dust Wipe Testing and Clearance 1. Background. One of the most significant issues arising out of the RRP rulemaking was the issue of how to determine whether a renovation had been properly completed. The Lead-based Paint Activities Rule requires clearance to be achieved in an abatement work area before the abatement is considered complete. As previously discussed, the abatement clearance process involves a visual inspection, dust wipe sampling of floors, windowsills, and window troughs in the work area, analysis by an NLLAP-accredited laboratory, and comparison of the results to the clearance standards. If the sample results are below the clearance standards, clearance has been achieved and the work area may be re-occupied. If the sample results are at or above the standards, the work area must be re-cleaned and the clearance process must begin again. For this reason, abatement projects often include coating floors with a sealant. According to the U.S. Department of Housing and Urban Development's “Guidelines For the Evaluation and Control of Lead-Based Paint Hazards in Housing” (HUD Guidelines), the purpose of sealing floors is not to trap leaded dust underneath the sealant, but to provide a surface that can be cleaned effectively by the resident (Ref. 15). Although achieving clearance is not the main reason for sealing floors, the process typically results in a surface than can achieve clearance and be kept clean by the resident. This is a sensible approach for abatements, because the goal of abatement is to permanently eliminate lead-based paint and lead-based paint hazards. The clearance process ensures that no lead-based paint or lead-based paint hazards remain in the work area. However, EPA recognized that there are many differences between renovations and abatements. As discussed in the preamble to the final RRP rule, renovations are different from abatements in intent, implementation, type of workforce, funding, and goal (Ref. 1). One of the biggest challenges that faced EPA in revising the TSCA section 402(a) Lead-based Paint Activities Regulations was how to effectively bridge the differences between abatement and renovation and remodeling while acknowledging that many of the activities employed in both (e.g., window replacement) are the same and generate the same amount of dust. Abatements are generally performed in three circumstances. First, abatements may be performed in the residences of children who have been found to have elevated blood lead levels. Second, abatements are performed in certain housing receiving financial assistance from HUD when required by HUD's Lead-Safe Housing Rule, codified at 24 CFR part 35 (see §§ 35.630 and 35.930(d)). Third, state and local laws and regulations may require abatements in certain situations associated with rental housing, or when abatement orders have been issued when resident young children, typically under age 6, have blood lead levels at or above specified values. Typically, when an abatement is performed, the housing is either unoccupied or the occupants are temporarily relocated to lead-safe housing until the abatement has been demonstrated to have been properly completed through dust clearance testing. Carpet in the housing is usually removed as part of the abatement because it is harder to clean. Uncarpeted floors that have not been replaced during the abatement may need to be refinished or sealed in order to achieve clearance. Abatements have only one purpose—to permanently eliminate lead-based paint or lead-based paint hazards. On the other hand, renovations are performed for myriad reasons that may have nothing to do with lead-based paint. Renovations involve activities designed to update, maintain, or modify all or part of a building. Renovations may be performed while the property is occupied or unoccupied. If the renovation is performed while the property is occupied, the occupants do not typically relocate pending the completion of the project. EPA also recognized that dust wipe testing and clearance as required after abatements can be expensive. The costs can be attributed to two major factors: the cost of trained personnel to collect the samples and the cost of the laboratory analysis. EPA preliminarily estimated the cost of three dust wipe samples to be $160 to collect and analyze (Ref. 13). If EPA had required dust wipe testing and clearance after every renovation project, it would have made up a significant portion of the cost of smaller projects. In addition, laboratory results may not be available for several days. If EPA had required traditional abatement-style clearance after renovations, the work area would not be able to be re-occupied while waiting for the laboratory results. In addition, EPA was also concerned that requiring clearance after every renovation job could, in some instances, result in the renovation firm being held responsible for abating all dust-lead hazards, including such hazards that may have existed in the area before the renovation commenced. During the stakeholder input opportunities provided by EPA before issuing the 2006 Proposal, contractors suggested that, if post-renovation dust wipe testing were required, the contractors would have to protect themselves by collecting pre-renovation dust wipe samples, to ensure that they would not be held liable for pre-existing hazards. To address these various concerns, EPA began looking for an alternative to dust wipe testing and clearance that would be quick, inexpensive, reliable, and easy to perform. EPA conducted a series of studies using commercially available disposable cleaning cloths to determine whether variations of a “white glove” test could serve as an effective alternative to clearance. Based on the favorable final report of these studies, entitled “Electrostatic Cloth and Wet Cloth Field Study in Residential Housing” (Disposable Cleaning Cloth Study) (Ref. 16), EPA's 2006 Proposal included a cleaning verification protocol using wet and dry disposable cleaning cloths. Unlike the earlier Disposable Cleaning Cloth Study, the Dust Study was not designed specifically to evaluate the cleaning verification in isolation from the rest of the work practices. However, the Dust Study did serve as a valuable field test of the cleaning verification protocol. The Dust Study involved actual renovations performed by local renovation contractors who received instruction in how to perform cleaning verification using wet and dry disposable cleaning cloths and then were left alone to determine whether the cleaning cloths matched or were lighter than the cleaning verification card developed by the EPA. In order to maximize the information collected about cleaning verification in the Dust Study, cleaning verification was conducted after each experiment, not just those experiments that were being conducted in accordance with the proposed rule requirements for containment and cleaning. EPA received numerous comments on this aspect of the RRP rulemaking. While some commenters supported the proposed work practices, including cleaning verification, many others thought that renovation work areas ought to be tested and cleared for re-occupancy in the same way that abatement work areas are cleared through the clearance process, including dust wipe testing. Many commenters believed that renovation firms should be required to demonstrate that no dust-lead hazards had been left behind in the work area. These commenters contended that the only reliable, safe, and effective way to do this was through dust wipe testing and clearance. These commenters contended that the unreliability of cleaning verification made it an unsuitable substitute for dust wipe testing and clearance. They pointed to the sentence in the conclusion section of EPA's Dust Study that states that the cleaning verification protocol was not always accurate in identifying the presence of levels above EPA standards for floors and sills. Some commenters also noted the Dust Study report's discussion of factors that affected the effectiveness of cleaning verification, such as floor condition, contractor performance, job type, and dust particle characteristics. One commenter observed that while all interior experiments resulted in final passed cleaning cloths for all floor zones and for all windowsills, nearly half of the experiments in the study ended with average work room floor lead levels above EPA's dust-lead hazard standard for floors of 40 µg/ft 2 . The Clean Air Scientific Advisory Committee, who was asked to review the underlying analysis for the estimation of the effect of the RRP rule on children's blood lead levels, stated that in the Dust Study cleaning verification did not provide sufficiently reliable results, leading to an inaccurate assessment of cleaning efficiency. EPA agreed with the commenters who argued that cleaning verification was not a suitable substitute for dust wipe testing and clearance. EPA noted in the preamble to the final RRP rule that even though the Disposable Cleaning Cloth Study showed that the cleaning verification cloths that reached “white glove” were approximately 91% to 97% likely to be below the regulatory hazard standard, EPA believes the greater variability seen in the Dust Study, particularly in the experiments where the complete suite of proposed work practices were not used, does not support the characterization of cleaning verification as a direct substitute for clearance testing. Cleaning verification, in itself, is not a substitute for quantitative dust wipe testing. However, EPA continues to believe that the Dust Study supports the validity of cleaning verification as an effective component of the RRP rule's work practices. The cleaning and feedback aspects of cleaning verification are important to its contribution to the effectiveness of the work practices (Ref. 1). In the Dust Study, for renovations not involving practices restricted or prohibited by the final RRP rule, cleaning verification in combination with the other required work practices were effective at reducing dust lead levels on surfaces to or below the dust-lead hazard standards, regardless of the condition of the floor. Of the 10 experiments performed in compliance with the RRP rule's work practices, final average lead-based paint dust levels were at or below the regulatory hazard standard (taking into account the accepted level of uncertainty, i.e., within plus or minus 20%, which is the performance criteria for the National Lead Laboratory Accreditation Program). For the experiments not performed according to the RRP rule's work practices, the use of cleaning verification after cleaning reduced, often significantly, the amount of lead dust remaining. EPA determined that there is sufficient consistency in the Dust Study data to support the use of cleaning verification as an effective component of the RRP rule's work practices. Commenters also expressed concern about the subjectivity of the cleaning verification process. They noted that the effectiveness of cleaning verification relies upon the certified renovator's understanding and application of the protocol, ability to define the floor sampling area or areas, and use of the cleaning verification card to determine whether a surface has been adequately cleaned. Some commenters speculated that the certified renovator's accuracy in comparing the cleaning cloth to the verification card could depend on factors such as his or her visual acuity, the lighting in the room, or simply differences in judgment among certified renovators. The issue of a person ( i.e., the certified renovator on the project) verifying cleaning of a project that he or she has worked on also raised concerns about actual or potential conflict of interest, which might, even unconsciously, affect the person's judgment. One thought that the lack of corrections for surface conditions, the experience of the person conducting the visual assessment, or pre-existing conditions might bias the results of testing. EPA agreed that the visual comparison of a cleaning cloth to a cleaning verification card has an element of subjectivity because the visual comparison of cloth to card requires some exercise of judgment on the part of the person doing the comparing. However, EPA did not agree that this necessarily makes the comparison suspect. The Dust Study represented a real-world test of the ability of renovators to learn how to do cleaning verification and to apply it in the field. Although one Dust Study participant expressed concern about subjectivity, cleaning verification was successfully performed by the renovation contractors in all of the experiments performed in compliance with the work practices in the final RRP rule. In addition, cleaning verification was predictive of whether renovators had cleaned-up the lead-based paint hazards created during the renovation activity to the dust-lead standard, particularly when the proposed work practices were used. The cleaning verifications performed during the Dust Study were conducted by various persons in various lighting conditions and on various surface conditions. Other commenters did not support dust wipe testing and clearance. One reason cited by these commenters was the cost of dust wipe testing, especially if required to be performed by independent certified inspectors or risk assessors. Some also contended that dust clearance testing is time consuming and an obstacle to completing the renovation job. One commenter noted that a major component of the cost of performing clearance is due to the fact that the portion of the premises affected by the renovation would have to remain unoccupied. Another commenter noted that it is not uncommon for the abatement clearance process to be conducted up to three times on a home to make sure that lead levels are sufficiently low. Again, commenters expressed the concern that a requirement for dust wipe testing and clearance would have the effect of holding renovation firms responsible for pre-existing dust-lead hazards. Based on the weight of the evidence in the rulemaking record, primarily from the Disposable Cleaning Cloth Study and the Dust Study, EPA determined that, once certain high dust generating practices were prohibited or restricted, the full suite of work practice requirements, including containment, cleaning, and cleaning verification, was effective at minimizing exposure to lead-based paint hazards created by renovation, repair, and painting activities. At the same time, EPA recognizes that cleaning verification is an imperfect check on whether the dust-lead hazard standard has been achieved. Among other things, as commenters pointed out, there is an element of subjectivity to cleaning verification, which is not present in dust wipe testing. In the final RRP rule, EPA gave significant weight to the cost, timing, and liability concerns expressed by commenters. In balancing the various considerations, EPA concluded that cleaning verification, as part of the full suite of work practices, was an appropriate check on the effectiveness of the work practices. EPA has continued to balance these considerations in today's proposal, but has preliminarily concluded that, for certain jobs, the additional benefits of dust wipe testing, and in some cases clearance, warrant imposing these additional requirements. 2. Proposed requirements for dust wipe testing after certain renovations. This proposal contains dust wipe testing requirements for many renovations. In most of these situations, the renovation firm will only be required to provide the dust wipe testing results to the building owners and occupants. However, as discussed more fully in Unit III.A.3. of this preamble below, after two types of renovations, this proposal would also require renovation firms to achieve clearance. EPA has evaluated the value of the information that would be available to renovation firms and building owners and occupants through such testing. EPA expects two kinds of benefits to flow from proposed dust wipe testing requirements. The first are the direct benefits of the information to the owners and occupants, the pure value of the information on dust lead levels remaining in the renovation work area, including leaded dust that may have been generated during the renovation activity. For building owners and occupants, this information is likely to improve their understanding and awareness of dust-lead hazards. It will also greatly improve their ability to make further risk management decisions. This information is particularly critical where dust lead levels approach or exceed the regulatory hazard standards. One commenter on the 2008 RRP rule described the value of dust wipe testing results in this way: “Because the white glove test does not provide a numeric result, a family is given limited information from which to make informed decisions and worse yet, may be given a false sense of security.” (Ref. 17) The commenter then argued that, “although the federal floor dust standard is set at 40 μg/ft 2 , there is sufficient evidence to suggest that floors well below this standard may endanger children. Property owners and residents should be provided quantitative information so they can choose what actions to take based on those levels.” The commenter believed that in instances where floor dust wipe test results are just below the EPA regulatory standard, the owners or occupants may want to undertake additional cleaning. The value of this information has new significance in light of recent epidemiological studies that indicate the current lead-based hazard standards are insufficiently protective. In addition, in enacting the Residential Lead-based Paint Hazard Reduction Act of 1992, Congress recognized that there is a value in providing information to property owners and occupants. Section 1018 of the Act requires the disclosure of information on lead-based paint and lead-based paint hazards to purchasers and tenants of target housing. Even if no specific information on the housing to be sold or rented is available, the seller or landlord must provide a lead hazard information pamphlet to the purchaser or tenant. Similarly, TSCA section 406(b) requires renovators or their firms to provide a lead hazard information pamphlet to the owners and occupants of target housing before beginning a renovation in the housing. The information provided by dust wipe testing after renovations is a different and more targeted benefit, i.e., a more accurate check on whether the hazard standard has been met at completion of the job, but it is in line with the broader statutory emphasis on disclosure of information related to possible lead-based paint hazards. This information is beneficial in the same way that disclosure of known lead-based paint and lead-based paint hazards is beneficial to purchasers and tenants under Section 1018. The other benefits that EPA expects to flow from a dust wipe testing requirement are the benefits that may result from changed behavior on the part of renovation firms. EPA believes that dust wipe testing results will also provide valuable feedback to renovation firms on how well they are cleaning up after renovations. In its Evaluation of the HUD Lead-Based Paint Hazard Control Grant Program (Ref. 18), HUD noted that the rate of passing initial clearance was associated with repetition of lead hazard control activities. As renovation firms become more familiar with the performance requirements for cleaning on projects covered by the RRP rule, their projects are more likely to require fewer cleaning cycles. It is also likely that having to provide to owners and occupants the specific dust lead levels contained in dust wipe testing results will increase renovation firm cleaning efficiency. Renovation firms will be incentivized to lower the dust lead levels remaining after renovation jobs, even if the levels are at or near the regulatory standards. In particular, firms that might otherwise be inclined to be less than thorough in the use of the disposable cleaning cloths in order to avoid darkening the cloths will be incentivized to perform cleaning verification thoroughly. Because proper cleanup plays such a vital role in the minimization of dust-lead hazards created by renovations, providing information on dust lead levels remaining after renovations to building owners and occupants will serve as an incentive for firms to perform post-renovation cleaning efficiently, thoroughly, and correctly so that the benefits of the RRP rule may be fully realized. EPA is therefore proposing to require that dust wipe testing be performed after many renovation jobs. EPA has determined that dust wipe testing results will provide a valuable check on the performance of cleaning verification and the other work practices for most of the paint-disturbing renovations covered by the Dust Study (Ref. 14). In reviewing the data from the Dust Study, EPA believes that, of the jobs performed in the Dust Study, the additional safeguard of dust wipe testing is warranted where the floor dust-lead levels changed markedly from pre-work to post-cleaning to post-cleaning verifications. The only jobs where this did not occur were the renovations involving cut-outs, which also created significantly less dust than most other renovations. Accordingly, today's proposal would require dust wipe testing on uncarpeted floors, windowsills, and window troughs in the work area after the following types of interior renovations: • Use of a heat gun at temperatures below 1100 degrees Fahrenheit. • Removal or replacement of window or door frames. • Scraping 60 ft 2 or more of painted surfaces. • Removing more than 40 ft 2 of trim, molding, cabinets, or other fixtures. These jobs represent all of the experiments conducted in the Dust Study other than those involving cut-outs or practices prohibited or restricted by the final RRP rule. The experiments labeled “kitchen gut” in the Dust Study mostly involved the removal of kitchen cabinets and kitchen fixtures. The scraping experiments involved the scraping of approximately 60 ft 2 or more of lead-based paint, so EPA is proposing to limit the dust wipe testing requirement to renovations during which at least that much painted surface is scraped. EPA requests comment, information, or data on whether the threshold for dust wipe testing after renovations involving scraping should be lowered to 6 ft 2 , which is the minor maintenance threshold, or to some other number. Likewise, the trim and molding removal experiments all involved the removal of more than 40 ft 2 of trim or molding, so EPA is proposing to limit the dust wipe testing requirement to renovations during which at least that much trim or molding is removed. EPA also requests comment, information, or data on whether the threshold for dust wipe testing after trim, molding, cabinet, or fixture removal should be lowered. EPA acknowledges that the benefits identified above of dust wipe testing would apply for these smaller jobs, as well as the larger jobs covered by today's proposal. At the same time, in order to ensure a program that is practical for renovation activities, EPA has tried in this proposal to maintain some proportionality between the complexity and cost of the proposed requirements on one hand, and the size and cost of the renovation job on the other. EPA wishes to clarify that the size thresholds for scraping painted surfaces and removing trim, molding, cabinets, or other fixtures would be calculated on a per-job basis. This is in contrast to the minor repair and maintenance exception, which is calculated on a per-room basis for interior projects. EPA is also requesting comment on whether dust wipe testing should be required in situations where a surface fails the cleaning verification process twice, i.e., when the second wet disposable cleaning cloth is darker than the cleaning verification card. In that case, the surface must be allowed to dry for at least an hour, after which the certified renovator must wipe the surface with a dry electrostatic cleaning cloth. In the Dust Study, only four surfaces failed cleaning verification twice, representing two of the sixty experiments. In one experiment involving cut-outs, a vinyl floor in poor condition failed cleaning verification twice. The average dust-lead level on the floor after the second wet disposable cleaning cloth was 61.5 µg/ft 2 , and after the dry electrostatic cleaning cloth, the level was 57.2 µg/ft 2 . However, this floor was in such poor condition that after two pre-cleanings, the cleanings done before any experiments were conducted, the floor dust lead levels were still 95 µg/ft 2 . Thus, the floor was cleaner than when it started, even though it failed cleaning verification twice. In the other experiment, a kitchen gut performed on a tile floor in fair condition, three floor sections failed the second cleaning verification. After the second wet disposable cleaning cloth, the average dust lead levels on two of the three failed sections were less than 10 µg/ft 2 , while the other was significantly higher at 150 µg/ft 2 . Nevertheless, after the dry electrostatic cleaning cloth wipe, the dust lead levels for all floor sections averaged 41.4 µg/ft 2 , which is within the accepted level of uncertainty, i.e., within plus or minus 20%, for the National Lead Laboratory Accreditation Program (NLLAP). The dust wipe testing would have to be performed in a manner similar to the abatement clearance sampling requirements at 40 CFR 745.227(e)(8). After the cleaning required by 40 CFR 745.85(a)(5) has been performed, a certified inspector, certified risk assessor, or certified dust sampling technician would be required to perform a visual inspection to ensure that the work area is free of visible dust, debris or residue. EPA is proposing to require this second visual inspection, in addition to the one performed by the certified renovator before cleaning verification, because, in many cases, the person performing the dust wipe testing will not be the same person who performed the cleaning verification. In addition, there may be a delay between the completion of cleaning verification and the beginning of dust wipe testing. EPA believes that the requirement for a visual inspection immediately prior to dust wipe testing will give the certified inspector, risk assessor, or dust sampling technician a means to address any concerns they may have as to the cleanliness of the work area. The locations for dust wipe samples would be dependent on the number of rooms, hallways, or stairwells within the work area. If there is more than 1 room, hallway, or stairwell within the work area, the following samples would have to be collected: • 1 windowsill sample, 1 window trough sample, and 1 floor sample within each room, hallway, or stairwell (no more than 4 rooms, hallways, or stairwells need be sampled). • 1 floor sample adjacent to the work area, but not in an area that has been cleaned. If the work area is a single room, hallway, or stairwell, or a smaller area, the following samples would have to be collected: • 1 windowsill sample, 1 window trough sample, and 1 floor sample. • 1 floor sample adjacent to the work area, but not in an area that has been cleaned. If there are no uncarpeted floors in the work area, then no floor samples would need to be collected. The same would be true for windows and windowsill or trough samples. Dust wipe samples would be collected in accordance with the protocol in “Residential Sampling for Lead: Protocols for Dust and Soil Sampling” (Ref. 19). HUD's Lead Safe Housing Rule, at 24 CFR 35.1340(g), requires the sample adjacent to the work area to be collected within 5 feet of the work area in an area that is connected to the work area. This specifically precludes samples from being collected from rooms separated from the work area by a solid wall. EPA requests comment on whether these provisions should be incorporated into this rulemaking. EPA also requests comment on whether this protocol is sufficient to determine dust lead levels remaining on floors, windowsills, and window troughs. This protocol has been used for more than a decade in clearance examinations after lead abatements and HUD interim lead hazard control work. However, one test per surface may not always be enough to accurately characterize the dust lead levels over the entire surface. While the physical variability of dust loadings and lead concentrations across a room has not been thoroughly investigated, several studies including EPA's EFSS have found high variability in side-by-side samples collected before and after various activities (Ref. 10). EPA requests comment on whether more tests should be required, and, if so, what protocol should be followed in determining the number and location of additional tests. For example, one option would be to follow the ASTM International “Standard Practice for Clearance Examinations Following Lead Hazard Reduction Activities in Dwellings, and Other Child-Occupied Facilities.” This document says that for rooms that exceed 500 ft 2 , the floor should be divided into two or more equal parts of 500 ft 2 or less and a sample collected in each part (Ref. 20). EPA requests comment on whether the provision for random clearance sampling in multi-unit buildings in the Lead-based Paint Activities regulations at 40 CFR 745.227(e)(9) should be incorporated into this regulation. This would permit random testing of individual housing units after renovations affecting multiple individual housing units in a multi-family dwelling with similarly constructed and maintained residences. Consistent with 40 CFR 745.227(e)(9), to take advantage of this provision, the certified renovators and other trained persons who renovate or clean the individual housing units would not know in advance which units would be selected for random testing. In addition, the dust wipe testing would have to be performed by a certified inspector or certified risk assessor and the number of residential units selected for dust wipe testing would have to be sufficient to provide a 95 percent level of confidence such that, if clearance were required, no more than 5 percent or 50 of the residential units (whichever is smaller) in the randomly-sampled population would exceed the applicable clearance levels. This is the standard for random clearance sampling after abatement projects and this particular requirement would be designed to allow certified inspectors and certified risk assessors to use the training they have already received on random clearance sampling after abatement projects to decide which units to test after a renovation in a multi-family dwelling. Although random dust wipe testing has the potential to reduce costs for a large multi-unit renovation project, it may not be appropriate for this rule, given that an important purpose for the proposed dust wipe testing requirements is the provision of information to building owners and occupants. However, random sampling is already accepted by EPA and HUD for disclosure of information on lead-based paint inspections, risk assessments and abatement clearances under the Disclosure Rule (Ref. 21), and for notification after activities other than abatement under HUD's Lead Safe Housing Rule at 24 CFR 35.125(b) and 35.1340(b)(2)(i). EPA also requests comment on whether a random sampling provision should be incorporated, but limited to situations where the HUD rule applies or to situations where the housing is completely vacant, e.g., an entire apartment building is vacant and being renovated. In addition, the current requirements for dust sampling technician courses do not include random sampling, so dust sampling technicians would not be able to select the units and locations for random dust wipe testing. Dust sampling technicians could perform the actual sampling or testing, so long as the locations for testing were selected by a certified inspector or risk assessor. EPA requests comment on whether EPA should modify the dust sampling technician course requirements to include random testing in multi-family buildings so that dust sampling technicians would be able to select units randomly as do certified inspectors and certified risk assessors. EPA also requests comment on whether this could be done and still allow the course to be taught within a single 8-hour day. Dust wipe testing results would have to be provided by an entity accredited or recognized under the NLLAP. EPA established the NLLAP in accordance with TSCA section 405(b) to assure the public that analytical laboratories recognized by the EPA have demonstrated that they are capable of accurately analyzing for lead in paint chip, dust, and soil samples. In January 2008, the Agency announced in the Federal Register changes to NLLAP that expand the opportunity to participate in the NLLAP to all lead testing service providers (Ref. 22). These providers include: • Fixed-site operations that perform analytical lead testing at a permanent location under controlled environmental conditions; • Mobile facilities, or transportable, self-contained operations that can perform analytical lead testing under controlled environmental conditions; and • Field sampling and measurement organizations (FSMOs), or operations that perform on-site sampling and lead testing using portable testing technologies. Portable testing technologies that might be employed by FSMOs, once accredited or recognized, include devices such as an x-ray fluorescence (XRF) analyzer, an anodic stripping voltammetry (ASV) analyzer, or any other portable technology that has been shown to accurately and verifiably measure lead content in dust, paint chip, or soil. EPA believes these NLLAP changes remove barriers and provide a process so that all types of lead testing service providers may participate in the NLLAP. This can make the NLLAP more efficient and cost-effective while maintaining the high standard of quality, science and technology for those who purchase analytical services related to lead hazard identification and control. The ability for portable dust testing technologies to become accredited under NLLAP is particularly relevant to this rulemaking, because EPA believes that this will make dust wipe testing less expensive and time-consuming. EPA requests comment on additional technologies that may be available for sampling or testing for lead in dust. EPA is seeking information on what technologies are available, along with information on the research or evaluations that may have been conducted on these technologies. EPA is also interested in research or other information on technologies that show promise for commercial development. Persons performing visual inspections, collecting dust wipe samples, or analyzing dust wipe samples would not be required to be third parties independent of the firm performing the renovation. This is consistent with the final RRP rule and EPA's abatement regulations. EPA has historically not required independent third parties to perform testing for two reasons. The first is the cost savings and convenience of being able to hire just one firm to perform all necessary lead-based paint activities. The second is the potential regional scarcity of firms to perform the work. As discussed in the preamble to the final RRP rule, these considerations are also likely to be applicable to the renovation sector (Ref. 1, at 21711). EPA does recommend, however, that the renovation firm comply with the HUD's prohibition against the same person performing both the renovation activity and the clearance process. ( See 24 CFR 35.1340(f)). EPA requests comment on whether EPA should impose the same prohibition or a similar prohibition with perhaps an exception for single person firms. Under this proposal, dust wipe testing would be performed after cleaning verification, not instead of it. Cleaning verification is useful because it combines fine cleaning properties with feedback to the certified renovator on the effectiveness of the post-renovation cleaning process. As discussed in the preamble to the final RRP rule, the Dust Study demonstrated that cleaning verification is quite often needed to minimize exposure to dust-lead hazards created during renovations (Ref. 1, at 21744). In 4 of the 10 experiments performed in accordance with the final RRP rule requirements for containment, cleaning, and cleaning verification, the average post-cleaning floor dust lead levels were above the clearance standards. In those experiments, cleaning verification was needed to reduce average dust lead levels below the standards. In addition, dust wipe testing only tests part of the surface, and, as discussed above, leaded dust may not be distributed uniformly over the entire surface. In contrast, cleaning verification provides feedback on cleaning effectiveness over the entire surface so variability in distribution presents fewer challenges. EPA remains concerned that if dust wipe testing were allowed instead of cleaning verification, without an accompanying requirement that the renovation firm re-clean until clearance is achieved, the RRP rule would actually be less protective because the surfaces in the work area could be left less clean than if cleaning verification were performed. Accordingly, dust wipe testing would be performed after cleaning verification has been performed in accordance with the existing protocol. After the dust wipe samples have been collected, the renovation would be considered complete, the warning signs could be removed, and the work area could be re-occupied. Re-occupancy would not have to wait until the results of the testing were available. However, because re-occupancy can occur immediately after the dust wipe samples are collected, it is important to ensure that the results of the dust wipe testing be communicated to owners and occupants as soon as practicable. Accordingly, this proposal requires the certified inspector, certified risk assessor, or certified dust sampling technician to prepare a dust wipe testing report and provide it to the renovation firm within 3 days of the date that the results are obtained. If the dust wipe testing results are to be determined by a fixed-site laboratory, the samples would have to be sent to the laboratory within 1 business day of the date that they are collected. The dust wipe testing report would include the name and signature of each certified person collecting the samples or performing the testing, the name and address of each certified firm employing the person(s) conducting the sampling or testing, the start and completion dates of the renovation, a brief written description of the renovation, the results of the visual inspection, a detailed written description of the specific sampling or testing locations or a detailed drawing that clearly identifies the location of each sample or test, the name of the NLLAP-recognized entity analyzing the results, the results of each sample or test, and the clearance standard that is applicable to each sample or test. EPA does not expect long, involved narrative descriptions in these reports. The results of the visual inspection could be as simple as “no dust, debris, or residue was visible in the work area,” while the brief written description of the renovation could be as simple as “replaced all of the windows in the upstairs bedrooms.” The report should be organized and presented in such a way that the recipients of the report will be able to easily understand the information presented. The report must be a single document, with clearly-identifiable attachments, such as analytical reports from NLLAP laboratories, where appropriate. If a significant number of tests are involved, the certified individual preparing the report should incorporate an executive summary presenting the overall results, with particular attention given to those results that exceeded the applicable clearance standards. The renovation firm would be required to provide this report to the owner of renovated target housing or child-occupied facilities within 3 days of the date that the renovation firm receives the report. The renovation firm would also have to provide the report within 3 days of receipt to the occupants of individual housing units that have been renovated, if the housing units are not owner-occupied. Similarly, the report would have to be provided within 3 days to the proprietor of renovated child-occupied facilities if they are not operated by the building owner. If the renovation firm has chosen to notify each individual housing unit affected by a renovation in a common area of target housing, or each parent or guardian of a child under age 6 using a renovated child-occupied facility, the renovation firm would also have to provide these persons with the dust wipe testing report within 3 days of the date that the renovation firm receives the report. In cases where the renovation firm has chosen to post signs to notify tenants affected by common area renovations, or parents and guardians of children under age 6 using a child-occupied facility, the renovation firm would have to provide the dust wipe testing report upon request. EPA requests comment on whether the renovation firm should be required to provide the dust wipe testing report to the building owner and occupants with the final invoice or within 3 days of the date that the report is received, whichever is earlier. 3. Clearance. For two types of renovations that can create large amounts of difficult-to-clean dust, EPA remains concerned about the possibility that dust lead levels remaining, even after cleaning verification, may substantially exceed the clearance standards. These are renovations that disturb paint using machines designed to remove paint through high speed operation, such as power sanders or abrasive blasting, when equipped with high-efficiency particulate air (HEPA) exhaust controls and the demolition, or removal, through destructive means, of plaster and lath walls, ceilings or other building components. If renovation firms choose to utilize these methods, EPA is also proposing to require that renovation firms demonstrate, through dust wipe testing, that they have met the clearance standards before the renovation will be considered completed. EPA's Dust Study demonstrated that machines that remove paint through high-speed operation, in the absence of HEPA exhaust control, create enormous amounts of leaded dust that is particularly difficult to clean up. In the Dust Study, the geometric mean post-work floor dust lead levels after experiments involving power planing were 201,902 μg/ft 2 . That was the only type of power tool experiment done indoors during the Dust Study. However, two additional high speed tool experiments were done on exteriors, power sanding and needle gun. In these cases, using the Dust Study results from the surface of the plastic containment required by the rule, the geometric mean post-work floor dust lead levels that could be expected from work done using these types of tools without HEPA exhaust control are 591,491 μg/ft 2 for power sanding, and 195,372 μg/ft 2 for the needle gun. In the Dust Study, the work practices required by the final RRP rule, containment, specialized cleaning, and cleaning verification, were, in most cases, unable to reduce the dust lead levels remaining on the work area floors after power planing to anything close to the clearance standard of 40 μg/ft 2 . Accordingly, EPA banned the use of machines that remove lead-based paint through high speed operation without HEPA exhaust control. EPA did not perform any experiments in the Dust Study with power tools equipped with HEPA exhaust control. However, EPA has subsequently reviewed 14 published studies that examined the effectiveness of HEPA exhaust control on power tools (Ref. 23). These 14 studies reported reductions in airborne dust levels ranging from 70 to 99 percent. However, most studies (9) reported reductions in airborne dust levels between 90 and 95 percent. Applying a 90 to 95 percent reduction to the post-work dust lead levels generated by the power tools in the Dust Study results in dust-lead levels of 20,190 μg/ft 2 to 10,095 μg/ft 2 for door planing, 59,149 μg/ft 2 to 29,575 μg/ft 2 for power sanding, and 19,537 μg/ft 2 to 9,769 μg/ft 2 for needle gun use. It is likely that the work practices required by the final RRP rule will be unable to reduce these levels to anything approximating the clearance level of 40 μg/ft 2 at the end of the job because of the quantity of the dust generated and the particular characteristics of this dust that make it hard to clean up. In addition, in order to achieve 90 to 95 percent effectiveness, the HEPA exhaust control must be maintained properly and used correctly. Any lapse in either maintenance or use could result in much higher dust lead levels remaining after a renovation. For example, when sanding a mantle, if the renovation worker moves half of the sander off the edge of the mantle, the HEPA exhaust control will not be operating at maximum collection efficiency. The same problem would occur any time that the entire sander is not in contact with the surface, such as when sanding a curved surface. With respect to the demolition of plaster, EPA did not perform any experiments involving that kind of renovation activity in the Dust Study. However, demolition of several different plaster walls was studied in the EFSS. The EFSS measured worker exposures by personal air monitoring, and estimated occupant exposures by dust wipe sampling. Dust wipe sampling in the EFSS was done from stainless steel dustfall collectors placed at various locations adjacent to and at varying distances from the activity. The estimated lead loading over a 6 ft 2 area resulting from the demolition of a plaster wall was 19,500 μg, the highest loading for any of the typical activities studied. However, according to the EFSS, no collectors were placed adjacent to demolition activities “due to the large amount of debris.” (Ref. 10, at 9-10) EPA was able to determine the functional relationship between settled dust and distance for the demolition activity, but the relationship “does not take into account the amount of lead that settles at a location directly adjacent to the activity. Since the settled dust samples associated with the demolition were all located at a distance from the activity space, the estimated 6-foot by 1-foot gradient lead loading in the demolition activity is interpreted as being the amount of lead found in the 6-foot by 1-foot region that was airborne in dust and smaller particles, rather than the total amount of lead disturbed.” (Ref. 10, at 9-10) In the EFSS, EPA also reviewed data on plaster wall demolition available from OSHA (Ref. 10). The study monitored the demolition of interior plaster walls and ceilings in a home using hammers and claw-bars. This study involved only personal air monitoring, not settled dust sampling. The geometric mean worker exposure for the demolition activities studied by the EFSS was 107 μg/m 3 , while the geometric mean worker exposure for the OSHA study was 166 μg/m 3 . Because of the length of time involved in demolishing a plaster wall, both of these activities are likely to substantially exceed the OSHA permissible exposure limit of 50 μg/m 3 as an 8-hour time-weighted average. These studies demonstrate that plaster wall demolition creates large amounts of lead-contaminated dust. EPA also believes that this dust is particularly difficult to clean up, because of the qualities of plaster and the way in which such demolition is typically done through destructive means such as sledgehammers. The dust created by this activity is likely to consist of very fine particles. EPA is concerned that, like the dust produced by machines that remove paint through high speed operation, the large quantities of dust created by plaster wall demolition will overwhelm the containment, specialized cleaning, and cleaning verification processes and result in renovation work areas being re-occupied with lead-based paint hazards created by the renovation still in place. Given these concerns, EPA is proposing to require renovation firms to follow a clearance process similar to that performed after abatement projects after renovations involving the disturbance of paint using machines designed to remove paint through high speed operation or the demolition, or removal, through destructive means, of more than 6 ft 2 of plaster and lath building component. After the cleaning required by 40 CFR 745.85(a)(5) and the cleaning verification required by 40 CFR 745.85(b)(1), dust wipe testing would have to be performed in exactly the same way that it would be required after the renovations discussed in Unit III.A.2. of this preamble. If any of the test results equal or exceed the regulatory clearance standards in 40 CFR 745.85(b)(4), the renovation firm would be required to re-clean the surfaces represented by those tests in accordance with 40 CFR 745.85(a)(5)(ii). Those surfaces would have to be re-tested, and the results compared to the clearance standards. With respect to plaster removal, the clearance requirement would apply only to walls, ceilings constructed of plaster and lath, not gypsum drywall finished with plaster. The experiments performed and reviewed in the EFSS involved plaster and lath walls, not drywall. In this country, interior walls were commonly constructed of plaster and lath until the 1950's, when drywall began to replace the lath and plaster construction method. Again, this clearance requirement would only apply to plaster removal done through destructive means, such as sledgehammers. This proposal would not allow renovation firms to skip the cleaning verification step when they are required to perform clearance. The Dust Study demonstrates that cleaning verification is an important part of the cleaning process. Of the 10 experiments completed in the Dust Study in accordance with the final RRP rule requirements, 4 required the additional cleaning provided by cleaning verification to reach an average floor dust lead level below 40 μg/ft 2 (Ref. 14). The additional cleaning resulting from cleaning verification was particularly dramatic in the window replacement experiments, where the dust lead levels on the floor were cut nearly in half by cleaning verification. EPA is specifically requesting comment on cleaning verification requirements for surfaces that fail clearance due to high dust wipe test results. While the Dust Study shows that cleaning verification is a very effective cleaning method, EPA recognizes that there is a cost associated with multiple cleaning verification passes over a surface, particularly if the surface fails the wet disposable cleaning cloth phase and must be allowed to dry for an hour before using a dry electrostatic disposable cleaning cloth. Although not specifically studied, the Dust Study suggests that it would be unlikely for a surface that had been cleaned and had gone through the cleaning verification process to fail another round of cleaning verification. Sixty interior experiments were performed in the Dust Study; only 3 work room floors failed all rounds of cleaning verification. Two of those were performed using only baseline work practices, no containment or specialized cleaning, on a vinyl floor in poor condition that EPA's contractor had difficulty pre-cleaning to below 40 μg/ft 2 before beginning the study. The third was on a tile floor in fair condition, with plastic containment but no specialized cleaning. In addition, of the 4 experiments in the Dust Study performed in accordance with the final RRP rule that needed cleaning verification to reduce average floor dust lead levels below 40 μg/ft 2 , failed cleaning verification cloths were only seen in 1. The reductions in dust lead levels seen in the window replacement experiments occurred after only 1 pass with a wet disposable cleaning cloth. In light of these results, this proposal would require surfaces failing clearance due to high dust wipe test results to be recleaned in accordance with the RRP rule, HEPA vacuuming followed by wet wiping or mopping, followed by one round of cleaning verification using a wet disposable cleaning cloth. This cloth would not have to be compared to the cleaning verification card, the renovation firm could conduct additional dust wipe testing for clearance purposes on the surface as soon as it has dried. EPA is also proposing to eliminate the existing provision that allows renovation firms to perform clearance in lieu of cleaning verification when another Federal, State, or local law or regulation, or the contract between the renovation firm and the property owner, requires the renovation firm to use qualified entities to perform dust wipe testing and requires the renovation firm to achieve clearance. Because cleaning verification has been shown to be such an important part of the post-renovation cleaning process, and because that provision would be inconsistent with this proposal, EPA believes that it should be eliminated. Rather, this proposal would require cleaning verification to be performed in the same way it would have to be performed after jobs involving demolition or removal of plaster through destructive means or the disturbance of paint using machines designed to remove paint through high-speed operation. The renovation would not be considered complete, and the warning signs would have to remain in place, until the renovation firm can demonstrate through a dust wipe testing report that it has met the clearance standards. The certified inspector, certified risk assessor, or certified dust sampling technician performing the sampling or testing would be required to prepare a clearance report. The clearance report would include the start and completion dates of the renovation; a brief written description of the renovation; the name and address of each certified firm employing each certified inspector, certified risk assessor, or certified dust sampling technician performing the clearance procedures; the name and signature of each certified inspector, certified risk assessor, or certified dust sampling technician performing the clearance procedures and the dates that the clearance procedures were performed; the results of the visual inspection; a detailed written description of the specific sampling or testing locations or a detailed drawing that clearly identifies the location of each sample or test; the results for each dust wipe sample or test; whether or not clearance was achieved; and the name of each recognized entity that conducted the analyses. As with the dust testing report, EPA does not expect long, involved narrative descriptions in these reports. The results of the visual inspection could be as simple as “no dust, debris, or residue was visible in the work area,” while the brief written description of the renovation could be as simple as “replaced all of the windows in the upstairs bedrooms.” However, the report should be organized and presented in such a way that the recipients of the report will be able to easily understand the information presented. The report must be a single document, with clearly-identifiable attachments, such as analytical reports from NLLAP laboratories, where appropriate. If a significant number of tests are involved, the certified individual preparing the report should incorporate an executive summary presenting the overall results, with particular attention to those results that exceeded the applicable clearance standards. The certified inspector, certified risk assessor, or certified dust sampling technician would be required to provide a copy of this report to the renovation firm within 3 days of the date that the dust wipe testing results are obtained. If the dust wipe testing results are to be determined by a fixed-site laboratory, the samples would have to be sent to the laboratory within 1 business day of the date that they are collected. The renovation firm would be required to provide this report to the owner of renovated target housing or child-occupied facilities within 3 days of the date that the renovation firm receives the report. The renovation firm would also have to provide the report within 3 days of receipt to the occupants of individual housing units that have been renovated, if the housing units are not owner-occupied. Similarly, the report would have to be provided within 3 days to the proprietor of renovated child-occupied facilities if they are not operated by the building owner. If the renovation firm has chosen to notify each individual housing unit affected by a renovation in a common area of target housing, or each parent or guardian of a child under age 6 using a renovated child-occupied facility, the renovation firm would also have to provide these persons with the dust wipe testing report within 3 days of the date that the renovation firm receives the results. In cases where the renovation firm has chosen to post signs to notify tenants affected by common area renovations, or parents and guardians of children under age 6 using a child-occupied facility, the renovation firm would have to provide the dust wipe testing report when requested. In most cases, renovation firms will be able to avoid using the work practices that would require clearance afterwards. Sanding or scraping could be done by hand instead of by power tool. Many plaster removal jobs can be performed by using non-destructive means such as saws and pry-bars to remove sections of plaster and lath wall. At the same time, EPA also understands that renovation firms may encounter floors, windowsills, and window troughs that are in such poor condition that clearance may not be possible. As discussed previously, the HUD Guidelines recommend using a sealant on floors if necessary to achieve clearance (Ref. 15). The Guidelines suggest that, if any surface fails two clearance tests, the “property owner should consider additional hazard control measures and/or further sealing of the surface” (Ref. 15, at 15-10). EPA's own experience with the Dust Study confirms that surface condition may be a problem, at least in some instances. After several encounters with work room floors that could not be cleaned to the clearance standards in preparation for a new experiment, the Dust Study contractors began using a sealant before testing floors in preparation for beginning work (Ref. 24). When this occurred with windowsills, the contractors used dust collection trays instead of the sill surface for sampling. Various studies have shown that dust lead levels on surfaces are directly correlated with the condition of the surface. That is, a surface, such as a floor, in poor condition tends to have higher dust lead levels than a floor in fair to good condition. An evaluation of the HUD Lead-Based Paint Hazard Control Grant Program found that the “effect of the condition of the wiped surface at clearance was significant in all analyses. The surfaces in better condition at clearance had lower clearance dust lead loadings and lower failure rates” (Ref. 18, at 7-20). EPA's Dust Study also found that floors in poor condition had higher dust lead levels across the post-work, post-cleaning, and post-cleaning verification sampling stages than floors in better condition, although this could have been due to higher-intensity work (Ref. 14, at 6-14). EPA requests comment on whether this correlation should affect clearance or dust wipe testing requirements, and if, so, in what way. EPA is interested in suggestions on how to address the fact that some floors will be more difficult to clean than others. In particular, EPA has wrestled with the issue of how to reconcile a clearance requirement when floors are in such poor condition that achieving clearance would require the renovation firm to expand the scope of the original job to include additional remedial action such as refinishing the floor. In part, this situation raises the concern that renovation firms might be required to remediate lead hazards that existed prior to the renovation. To address the situation where achieving lead levels below the lead hazard standards would require expanding the scope of the renovation job, EPA is proposing an exception to the requirement to achieve clearance. Specifically, EPA proposes to allow renovation firms to stop after the second failed clearance test, regardless of the result, if the renovation firm did not agree to refinish the surface that is failing clearance as part of the renovation contract. For example, if a renovation firm is hired to remove plaster and lath wall sections that partially separate a living and dining room, and repaint the walls (including the windows) in both rooms, then the renovation firm would be required to ensure that the windowsills in the work area achieve clearance, no matter how many times the sills must be re-cleaned and re-tested. However, if the renovation firm was not hired to refinish the floor, the renovation firm would only have to re-clean and re-test the floor once if it failed clearance the first time, no matter what the second dust wipe testing result is. EPA believes that such a provision is necessary, given that renovation firms may encounter floors, windowsills, and window troughs that are in such poor condition that clearance may not be possible. EPA is also requesting comment on whether renovation firms ought to be allowed to perform pre-renovation dust wipe testing on surfaces in the work area that are in poor condition to help demonstrate that they are not leaving behind dust-lead hazards that they created. In this option, the renovation firm would only have to demonstrate that, for surfaces in poor condition in the work area, the dust-lead levels on these surfaces (which could be windowsills and/or floors) after the renovation are no higher than 150 μg/ft 2 . This would ensure that renovation firms are not unduly held accountable for pre-existing lead-based paint hazards. EPA believes that 150 μg/ft 2 is an appropriate upper limit, given that EPA's contractor was able to clean all of the floors encountered in the buildings used for the Dust Study to this level or below (Ref. 14). EPA requests comment on whether there is an appropriate alternate upper limit that should be considered and the available data to support this alternate limit. Any pre-renovation testing option would also include a requirement to provide both the pre-renovation dust wipe testing report as well as the post-renovation report to the building owners and occupants. As part of its consideration, EPA requests comment on how “poor condition” should be defined for this approach. EPA believes that window troughs are particularly likely to harbor pre-existing dust lead levels at or above the clearance standards. They are also particularly likely to be difficult to clean. Therefore, EPA is requesting comment on whether EPA should allow renovation firms to close windows in the work area that are not being worked on and cover them with taped-down plastic or other impermeable material to avoid the requirement to ensure that the window troughs achieve clearance standards. EPA would still require renovation firms to test both the sills and troughs of closed and covered windows, and report the results to the building owners and occupants, but firms would only need to ensure that the sills achieve the clearance standards. EPA is also requesting comment on whether clearance should be required in other situations. In particular, EPA is interested in comment on whether clearance should be required after any of the activities for which EPA is proposing a dust wipe testing requirement. EPA is also interested in comment on whether clearance should be required in rental properties after renovations for which EPA is proposing a dust wipe testing requirement, especially if the renovation firm has been informed that the renovation is being performed to remedy a violation of federal, state, or local laws or regulations or to comply with a federal, state, or local government order, such as an order to correct building code violations, or an abatement order in response to an elevated blood lead level. In this case, EPA is also interested in comment on whether EPA should require renovation firms to affirmatively ask whether the work is being performed to remedy a violation or comply with an order, and whether renovation firms should provide this information to owners and occupants after the renovation. Finally, EPA requests comment on whether dust wipe testing or clearance should be required in any other situations not discussed specifically in this proposal, including situations where a surface has failed cleaning verification twice. 4. Additional requests for comment on dust wipe testing or clearance. EPA is seeking comment on whether there are other regulatory options for dust wipe testing or clearance that maximize the potential benefits by targeting those activities that are most likely to exceed the clearance standards. For example, should different size thresholds be used for some or all of the renovations affected by this proposal? As discussed, the proposed thresholds for dust wipe testing are taken from the Dust Study. Does the data from the Dust Study, or data from another source, support larger thresholds for some or all of these jobs? Although EPA is concerned about potential confusion with the definition of minor maintenance and repair, does the data from the Dust Study support applying these proposed thresholds on a per-room basis? Another potential option would be to apply dust wipe testing or clearance requirements only in homes where pregnant women or children under age 6 reside or in any building that meets the definition of child-occupied facility. EPA requests comment on this option, which does target particularly vulnerable populations but provides no protections for older children, adults and family pets. EPA also requests comment on whether dust wipe testing should only be required when a surface fails the first round of cleaning verification, and, if dust wipe testing is done, whether the second round of cleaning verification should then be performed. In the Dust Study, if a surface failed the first round of cleaning verification, no dust wipe samples were collected before the surface was cleaned and cleaning verification performed again (Ref. 14). This occurred in 17 of the 60 interior experiments performed. Three of those surfaces also failed the second round of cleaning verification. In each of those 3 cases, at least one surface was also demonstrated to be above the regulatory clearance standards by dust wipe testing. Since no dust wipe samples were collected after the first round of cleaning verification, it is not possible to determine, for certain, what additional reductions in dust lead levels were attributable to the second round of cleaning verification. However, some insight is provided by the reductions in dust lead levels made by the first round of cleaning verification. In many of the experiments that passed the first round of cleaning verification, the cleaning verification step resulted in significant dust lead reductions between the samples taken post-cleaning and the samples taken post-cleaning verification. Thus, the Dust Study demonstrates that the cleaning verification protocol in the 2008 RRP rule is an integral part of the cleaning regimen. Because the second round of cleaning verification likely contributes significantly to the total reduction in dust lead levels attributable to cleaning verification, EPA continues to believe that the second round of cleaning verification is a necessary step in the process, regardless of whether dust wipe samples are collected or not. Another possible regulatory option would be to require clearance for renovations involving the demolition of plaster or the use of high-speed machines designed to remove paint, or a larger set of renovation types, or smaller renovation size thresholds, and not require dust wipe testing in the absence of a clearance requirement. EPA requests comment on these options and suggestions for other regulatory options that may be less burdensome but still justifiable based on the available data. B. Test Kits for Lead in Paint EPA has worked with test kit vendors to develop kits that can more accurately identify the presence of regulated lead-based paint. Through its Environmental Technology Verification (ETV) program, EPA is currently reviewing five test kits that have been submitted by vendors. More information on this process can be found at http://www.epa.gov/lead/pubs/testkit.htm#recognize. EPA is also proposing to give certified renovators another option for determining whether lead-based paint is present on components to be affected by a renovation. This proposal would permit certified renovators to collect paint chip samples from components to be affected by a renovation instead of using test kits to test the paint on the components. When utilizing this option, the certified renovator would be required to send the samples to a recognized NLLAP laboratory. Because renovator training courses are already required to include training in how and where to use test kits, EPA believes that it would take very little additional time to also provide renovators with training in how to collect a chip sample such that all paint layers are present with a minimal amount of substrate included in the sample, and how to submit these samples to an NLLAP laboratory for analysis. Such an option would not make a certified renovator the equivalent of a certified lead-based paint inspector. Certified renovators would still have to test each affected component, they would not be permitted to exclude components based on similar painting histories or perform random paint sampling in multi-unit buildings. EPA is proposing to allow certified renovators to collect paint chip samples instead of using test kits in order to provide maximum flexibility for certified renovators and renovation firms. C. Training Provider Accreditation Training providers who wish to provide renovator, dust sampling technician, or lead-based paint activities training for Federal certification purposes must apply for and receive accreditation from EPA. To become accredited, a provider must employ a training program manager as well as principal instructor(s) who meet certain education, training and work experience requirements. The training provider must indicate on its application for accreditation that the training program manager and principal instructor(s) meet these requirements; however, currently, no documentation ( e.g., resumes) regarding the qualifications of these individuals must be submitted to EPA. The Agency believes it is important to review this information when determining whether to approve a training provider application. When EPA reviews applications for accreditation, it is common for the Agency to request this documentation from training providers in order to verify that the training program manager and principal instructor(s) have the proper qualifications. Requesting this information takes time and can delay the review of an application. Therefore, the Agency is proposing to require that training providers submit documentation regarding the qualifications of the education, training and work experience of training managers and principal instructors with their applications for accreditation. EPA is also proposing to clarify the role of principal instructors in teaching courses. The current regulation, at 40 CFR 745.227(c)(3), states that principal instructors are responsible for the organization of their courses and oversight of the teaching of all course material. The regulations also define “principal instructor” as “the individual who has the primary responsibility for organizing and teaching a particular course.” Nonetheless, the rule also allows training program managers to designate experts in a particular field ( e.g., doctors or lawyers) as guest instructors, on an as needed basis, to teach discrete portions of the course. EPA interprets these provisions to require a principal instructor to be present and primarily responsible for teaching the course, although guest instructors may be used to teach some portion(s) of the course. Principal instructors are also responsible for the quality of the instruction [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-10102. Public record. Not legal advice.