# Lead; Renovation, Repair, and Painting Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-8141 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 22, 2008 - **Citation:** 73 FR 21692 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 745 [EPA-HQ-OPPT-2005-0049; FRL-8355-7] RIN 2070-AC83 Lead; Renovation, Repair, and Painting Program AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is issuing a final rule under the authority of section 402(c)(3) of the Toxic Substances Control Act (TSCA) to address lead-based paint hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing and child-occupied facilities. “Target housing” is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Under this rule, a child-occupied facility is a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may be located in public or commercial buildings or in target housing. This rule establishes requirements for training renovators, other renovation workers, and dust sampling technicians; for certifying renovators, dust sampling technicians, and renovation firms; for accrediting providers of renovation and dust sampling technician training; for renovation work practices; and for recordkeeping. Interested States, Territories, and Indian Tribes may apply for and receive authorization to administer and enforce all of the elements of these new renovation requirements. DATES: This final rule is effective June 23, 2008. ADDRESSES: EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPPT-2005-0049. All documents in the docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to http://www.regulations.gov , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. FOR FURTHER INFORMATION CONTACT: For general information contact : Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address: TSCA-Hotline@epa.gov. For technical information contact : Mike Wilson, National Program Chemicals Division (7404T), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 566-0521; e-mail address: wilson.mike@epa.gov . SUPPLEMENTARY INFORMATION: I. Does this Action Apply to Me? You may be potentially affected by this action if you perform renovations of target housing or child-occupied facilities for compensation or dust sampling. “Target housing” is defined in section 401 of TSCA as any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Under this rule, a child-occupied facility is a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least 2 different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may be located in public or commercial buildings or in target housing. Potentially affected entities may include, but are not limited to: • Building construction (NAICS code 236), e.g., single family housing construction, multi-family housing construction, residential remodelers. • Specialty trade contractors (NAICS code 238), e.g., plumbing, heating, and air-conditioning contractors, painting and wall covering contractors, electrical contractors, finish carpentry contractors, drywall and insulation contractors, siding contractors, tile and terrazzo contractors, glass and glazing contractors. • Real estate (NAICS code 531), e.g., lessors of residential buildings and dwellings, residential property managers. • Child day care services (NAICS code 624410). • Elementary and secondary schools (NAICS code 611110), e.g., elementary schools with kindergarten classrooms. • Other technical and trade schools (NAICS code 611519), e.g., training providers. • Engineering services (NAICS code 541330) and building inspection services (NAICS code 541350), e.g., dust sampling technicians. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit III. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT . II. Background A. What Action is the Agency Taking? EPA is issuing a final rule under the authority of section 402(c)(3) of the Toxic Substances Control Act (TSCA) to address lead-based paint hazards created by renovation, repair, and painting activities (hereinafter also referred to as renovation activities or renovation projects) that disturb lead-based paint in target housing and child-occupied facilities. “Target housing” is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Under this rule, a child-occupied facility is a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may be located in public or commercial buildings or in target housing. This rule establishes requirements for training renovators, other renovation workers, and dust sampling technicians; for certifying renovators, dust sampling technicians, and renovation firms; for accrediting providers of renovation and dust sampling technician training; for renovation work practices; and for recordkeeping. Interested States, Territories, and Indian Tribes may apply for and receive authorization to administer and enforce all of the elements of these new renovation requirements. 1. Information on lead and its health effects . Lead is a soft, bluish metallic chemical element mined from rock and found in its natural state all over the world. Lead is virtually indestructible, is persistent, and has been known since antiquity for its adaptability in making various useful items. In modern times, it has been used to manufacture many different products, including paint, batteries, pipes, solder, pottery, and gasoline. Through the 1940's, paint manufacturers frequently used lead as a primary ingredient in many oil-based interior and exterior house paints. Usage gradually decreased through the 1950's and 1960's as titanium dioxide replaced lead and as latex paints became more widely available. Lead has been demonstrated to exert “a broad array of deleterious effects on multiple organ systems via widely diverse mechanisms of action.” This array of health effects, the evidence for which is comprehensively described in EPA's Air Quality Criteria for Lead document (Ref. 1), includes heme biosynthesis and related functions; neurological development and function; reproduction and physical development; kidney function; cardiovascular function; and immune function. There is also some evidence of lead carcinogenicity, primarily from animal studies, together with limited human evidence of suggestive associations. Of particular interest for present purposes is the delineation of lowest observed effect levels for those lead-induced effects that are most clearly associated with blood lead less 10 μg/dL in children and/or adults and are, therefore, of greatest public health concern (Ref. 1, at 8-60). As evident from the Criteria Document, neurotoxic effects in children and cardiovascular effects in adults are among those best substantiated as occurring at blood-lead concentrations as low as 5 to 10 μg/dL (or possibly lower); and these categories of effects are currently clearly of greatest public health concern. Other newly demonstrated immune and renal system effects among general population groups are also emerging as low-level lead-exposure effects of potential public health concern. (Ref. 1, at 8-60) The overall weight of the available evidence provides clear substantiation of neurocognitive decrements being associated in young children with blood lead concentrations in the range of 5-10 micrograms per deciliter (μg/dL), and possibly somewhat lower. Some newly available analyses appear to show lead effects on the intellectual attainment of preschool and school age children at population mean concurrent blood-lead levels ranging down to as low as 2 to 8 μg/dL. A decline of 6.2 points in full scale IQ for an increase in concurrent blood lead levels from 1 to 10 μg/dL has been estimated, based on a pooled analysis of results derived from seven well-conducted prospective epidemiologic studies (Ref. 1, at E-9). Epidemiologic studies have consistently demonstrated associations between lead exposure and enhanced risk of deleterious cardiovascular outcomes, including increased blood pressure and incidence of hypertension. A meta-analysis of numerous studies estimates that a doubling of blood lead level (e.g., from 5 to 10 μg/dL) is associated with ~1.0 mm Hg increase in systolic blood pressure and ~0.6 mm Hg increase in diastolic pressure. (Ref. 1, at E-10). Both epidemiologic and toxicologic studies have shown that environmentally relevant levels of lead affect many different organ systems (Ref. 1, at E-8). Please see Ref. 1 for further information. The nervous system has long been recognized as a target of lead toxicity, with the developing nervous system affected at lower exposures than the mature system. While blood lead levels in U.S. children ages 1 to 5 years have decreased notably since the late 1970's, newer studies have investigated and reported associations of effects on the neurodevelopment of children at population mean concurrent blood lead levels ranging down to as low as 2 to 8 μg/dL (Ref. 1, at E-9). Functional manifestations of lead neurotoxicity during childhood include sensory, motor, cognitive and behavioral impacts. Investigating associations between lead exposure and behavior, mood, and social conduct of children has been an emerging area of research (see Ref. 1, at 6.2.6). Early studies indicated linkages between lower-level lead toxicity and behavioral problems (e.g., aggression, attentional problems, and hyperactivity) in children. Effects of lead on neurobehavior have been reported with remarkable consistency across numerous studies of various designs, populations studied, and developmental assessment protocols. The negative impact of lead on IQ and other neurobehavioral outcomes persist in most recent studies following adjustment for numerous confounding factors including social class, quality of caregiving, and parental intelligence. Moreover, these effects appear to persist into adolescence and young adulthood. Cognitive effects associated with lead exposures that have been observed in some studies include decrements in intelligence test results, such as the widely used IQ score, and in academic achievement as assessed by various standardized tests as well as by class ranking and graduation rates. Associations between lead exposure and academic achievement observed in the above-noted studies were significant even after adjusting for IQ, suggesting that lead-sensitive neuropsychological processing and learning factors not reflected by global intelligence indices might contribute to reduced performance on academic tasks (Ref. 1, at 8-29). Other cognitive effects observed in studies of children have included effects on attention, executive functions, language, memory, learning and visuospatial processing with attention and executive function effects observed. The evidence for the role of lead in this suite of effects includes experimental animal findings.These animal toxicology findings provide strong biological plausibility in support of the concept that lead may impact one or more of these specific cognitive functions in humans (Ref. 1, at 8-30). Further, lead-induced deficits observed in animal and epidemiological studies, for the most part, have been found to be persistent in the absence of markedly reduced environmental exposures. It is additionally important to note that there may be long-term consequences of such deficits over a lifetime. Studies examining aspects of academic achievement related to lead exposure indicate the association of deficits in academic skills and performance, which in turn lead to enduring and important effects on objective parameters of success in real life (Ref. 1, at 6-76). Lead bioaccumulates, and is only slowly removed, with bone lead serving as a blood lead source for years after exposure and may serve as a significant source of exposure. Bone accounts for more than 90% of the total body burden of lead in adults and 70% in children (Ref. 1, at 4-42). In comparison to adults, bone mineral turns over much more quickly in children as a result of growth. Changes in blood lead concentration in children are thought to parallel more closely to changes in total body burden. Therefore, blood lead concentration is often used in epidemiologic and toxicological studies as an index of exposure and body burden for children. Paint that contains lead can pose a health threat through various routes of exposure. House dust is the most common exposure pathway through which children are exposed to lead-based paint hazards. Dust created during normal lead-based paint wear (especially around windows and doors) can create an invisible film over surfaces in a house. Children, particularly younger children, are at risk for high exposures of lead-based paint dust via hand-to-mouth exposure, and may also ingest lead-based paint chips from flaking paint on walls, windows, and doors. Lead from exterior house paint can flake off or leach into the soil around the outside of a home, contaminating children's play areas. Cleaning and renovation activities may actually increase the threat of lead-based paint exposure by dispersing lead dust particles in the air and over accessible household surfaces. In turn, both adults and children can receive hazardous exposures by inhaling the dust or by ingesting lead-based paint dust during hand-to-mouth activities. 2. Statutory and regulatory background . In 1992, Congress found that low-level lead poisoning was widespread among American children, affecting, at that time, as many as 3,000,000 children under age 6; that the ingestion of household dust containing lead from deteriorating or abraded lead-based paint was the most common cause of lead poisoning in children; and that the health and development of children living in as many as 3,800,000 American homes was endangered by chipping or peeling lead paint, or excessive amounts of lead-contaminated dust in their homes. Congress further determined that the prior Federal response to this threat was insufficient and enacted Title X of the Housing and Community Development Act of 1992, Public Law 102-550 (also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992) (“the Act” or “Title X”). Title X established a national goal of eliminating lead-based paint hazards in housing as expeditiously as possible and provided a leadership role for the Federal government in building the infrastructure necessary to achieve this goal. Subsequently, President Clinton created the President's Task Force on Environmental Health Risks and Safety Risks to Children. Co-chaired by the Secretary of the Department of Health and Human Services (HHS) and the Administrator of EPA, the Task Force consisted of representatives from 16 Federal departments and agencies. The Task Force set a Federal goal of eliminating childhood lead poisoning by the year 2010 (Ref. 2). In October 2001, President Bush extended the work of the Task Force for an additional 18 months beyond its original charter. Reducing lead poisoning in children was the Task Force's top priority. Although more work remains to be done, significant progress has been made towards reducing lead poisoning in children. The estimated percentage of children with blood lead levels above the CDC level of concern declined from 4.4% between 1991 and 1994 to 1.6% between 2003 and 2004. More information on Federal efforts to address lead poisoning, including the responsibilities of EPA and other Federal Agencies under Title X, can be found in Units III.A. and III.B. of the preamble to the 2006 Lead; Renovation, Repair, and Painting Program Proposed Rule (“2006 Proposal”) (Ref. 3). The Act added a new title to TSCA entitled “Title IV-Lead Exposure Reduction.” Most of EPA's responsibilities for addressing lead-based paint hazards can be found in this title, with section 402 of TSCA being one source of the rulemaking authority to carry out these responsibilities. TSCA section 402(a) directs EPA to promulgate regulations covering lead-based paint activities to ensure persons performing these activities are properly trained, that training programs are accredited, and that contractors performing these activities are certified. These regulations must contain standards for performing lead-based paint activities, taking into account reliability, effectiveness, and safety. On August 29, 1996, EPA promulgated final regulations under TSCA section 402(a) that govern lead-based paint inspections, lead hazard screens, risk assessments, and abatements in target housing and child-occupied facilities (also referred to as the Lead-based Paint Activities Regulations). These regulations, codified at 40 CFR part 745, subpart L, contain an accreditation program for training providers and training and certification requirements for lead-based paint inspectors, risk assessors, project designers, abatement supervisors, and abatement workers. Work practice standards for lead-based paint activities are included. Pursuant to TSCA section 404, provision was made for interested States, Territories, and Indian Tribes to apply for and receive authorization to administer their own lead-based paint activities programs. On June 9, 1999, the Lead-based Paint Activities Regulations were amended to include a fee schedule for training programs seeking EPA accreditation and for individuals and firms seeking EPA certification (Ref. 5). These fees were established as directed by TSCA section 402(a)(3), which requires EPA to recover the cost of administering and enforcing the lead-based paint activities requirements in unauthorized States. The most recent amendment to the Lead-based Paint Activities Regulations occurred on April 8, 2004, when notification requirements were added to help EPA monitor compliance with the training and certification provisions and the abatement work practice standards (Ref. 5). Another of EPA's responsibilities under Title X is to require that purchasers and tenants of target housing and occupants of target housing undergoing renovation are provided information on lead-based paint and lead-based paint hazards. As directed by TSCA section 406(a), the Consumer Products Safety Commission (CPSC), the Department of Housing and Urban Development (HUD), and EPA, in consultation with the Centers for Disease Control and Prevention (CDC), jointly developed a lead hazard information pamphlet entitled Protect Your Family From Lead in Your Home (“PYF”) (Ref. 7). This pamphlet was designed to be distributed as part of the disclosure requirements of section 1018 of Title X and TSCA section 406(b), to provide home purchasers, renters, owners, and occupants with the information necessary to allow them to make informed choices when selecting housing to buy or rent, or deciding on home renovation projects. The pamphlet contains information on the health effects of lead, how exposure can occur, and steps that can be taken to reduce or eliminate the risk of exposure during various activities in the home. TSCA section 406(b) directs EPA to promulgate regulations requiring persons who perform renovations for compensation in target housing to provide a lead hazard information pamphlet to owners and occupants of the home being renovated. These regulations, promulgated on June 1, 1998, are codified at 40 CFR part 745, subpart E (Ref. 8). The term “renovation” is not defined in the statute, but the regulation, at 40 CFR 745.83, defines a “renovation” as the modification of any existing structure, or portion of a structure, that results in the disturbance of painted surfaces. The regulations specifically exclude lead-based paint abatement projects as well as small projects that disturb 2 square feet or less of painted surface per component, emergency projects, and renovations affecting components that have been found to be free of lead-based paint, as that term is defined in the regulations, by a certified inspector or risk assessor. These regulations require the renovation firm to document compliance with the requirement to provide the owner and the occupant with the PYF pamphlet. TSCA section 404 also allows States to apply for, and receive authorization to administer, the TSCA section 406(b) requirements. TSCA section 403 directs EPA to promulgate regulations that identify, for the purposes of Title X and Title IV of TSCA, dangerous levels of lead in paint, dust, and soil. These regulations were promulgated on January 5, 2001, and codified at 40 CFR part 745, subpart D (Ref. 9). These hazard standards define lead-based paint hazards in target housing and child-occupied facilities as paint-lead, dust-lead, and soil-lead hazards. A paint-lead hazard is defined as any damaged or deteriorated lead-based paint, any chewable lead-based painted surface with evidence of teeth marks, or any lead-based paint on a friction surface if lead dust levels underneath the friction surface exceed the dust-lead hazard standards. A dust-lead hazard is surface dust that contains a mass-per-area concentration of lead equal to or exceeding 40 micrograms per square foot (μg/ft 2 ) on floors or 250 μg/ft 2 on interior windowsills based on wipe samples. A soil-lead hazard is bare soil that contains total lead equal to or exceeding 400 parts per million (ppm) in a play area or average of 1,200 ppm of bare soil in the rest of the yard based on soil samples. TSCA section 402(c) addresses renovation and remodeling. For the stated purpose of reducing the risk of exposure to lead in connection with renovation and remodeling activities, section 402(c)(1) of TSCA requires EPA to promulgate and disseminate guidelines for the conduct of such activities that may create a risk of exposure to dangerous levels of lead. In response to this statutory directive, EPA developed the guidance document entitled Reducing Lead Hazards when Remodeling Your Home in consultation with industry and trade groups (Ref. 10). This document has been widely disseminated to renovation and remodeling stakeholders through the National Lead Information Center, EPA Regions, and EPA's State and Tribal partners and is available at http://www.epa.gov/lead/pubs/rrpamph.pdf . TSCA section 402(c)(2) directs EPA to study the extent to which persons engaged in various types of renovation and remodeling activities are exposed to lead during such activities or create a lead-based paint hazard regularly or occasionally. EPA conducted this study in four phases. Phase I, the Environmental Field Sampling Study (Ref. 11), evaluated the amount of leaded dust released by the following activities: • Paint removal by abrasive sanding. • Removal of large structures, including demolition of interior plaster walls. • Window replacement. • Carpet removal. • HVAC repair or replacement, including duct work. • Repairs resulting in isolated small surface disruptions, including drilling and sawing into wood and plaster. Phase II, the Worker Characterization and Blood Lead Study (Ref. 12), involved collecting data on blood lead and renovation and remodeling activities from workers. Phase III, the Wisconsin Childhood Blood-Lead Study (Ref. 13.), was a retrospective study focused on assessing the relationship between renovation and remodeling activities and children's blood-lead levels. Phase IV, the Worker Characterization and Blood-Lead Study of R&R Workers Who Specialize in Renovations of Old or Historic Homes (Ref. 14), was similar to Phase II, but focused on individuals who worked primarily in old historic buildings. More information on the results of these peer-reviewed studies can be found in Unit III.C.1. of the preamble to the 2006 Proposal. 3. Summary of 2006 Proposal . TSCA section 402(c)(3) directs EPA to revise the Lead-based Paint Activities Regulations to apply to renovation or remodeling activities that create lead-based paint hazards. In the 2006 Proposal, EPA proposed to conclude that any renovation activity that disturbs lead-based paint can create significant amounts of leaded dust, that most activities created lead-based paint hazards, and that some activities can be reasonably anticipated to create lead-based paint hazards. Accordingly, on January 10, 2006, EPA issued a Notice of Proposed Rulemaking covering renovation performed for compensation in target housing (Ref. 3). The 2006 Proposal contained requirements designed to address lead-based paint hazards created by renovation, repair, and painting activities that disturb lead-based paint. The 2006 Proposal included requirements for training renovators, other renovation workers, and dust sampling technicians; for certifying renovators, dust sampling technicians, and renovation firms; for accrediting providers of renovation and dust sampling technician training; for renovation work practices; and for recordkeeping. The 2006 Proposal would have made the rule effective in two stages. Initially, the rule would have applied to all renovations for compensation performed in target housing where a child with an increased blood lead level resided and rental target housing built before 1960. The rule would also have applied to owner-occupied target housing built before 1960, unless the person performing the renovation obtained a statement signed by the owner-occupant that the renovation would occur in the owner's residence and that no child under age 6 resided there. As proposed, the rule would take effect 1 year later in all rental target housing built between 1960 and 1978 and owner-occupied target housing built between 1960 and 1978. EPA also proposed to allow interested States, Territories, and Indian Tribes the opportunity to apply for and receive authorization to administer and enforce all of the elements of the new renovation provisions. 4. Summary of 2007 Supplemental Proposal . EPA received approximately 250 comments on its 2006 Proposal. These comments came from a wide variety of commenters, including State and local governments, industry groups, advocacy groups, renovation contractors, training providers, and individuals. A significant number of these commenters observed that the proposal did not cover buildings where children under age 6 spend a great deal of time, such as day care centers and schools. Commenters noted that the risk posed to children from lead-based paint hazards in schools and day care centers is likely to be equal to, if not greater than, the risk posed from these hazards at home. These commenters suggested that EPA expand its proposal to include such places, and several suggested that EPA use the existing definition of “child-occupied facility” in 40 CFR 745.223 to define the expanded scope of coverage. EPA felt that these comments had merit, and, because adding child-occupied facilities was beyond the scope of the 2006 Proposal, an expansion of the 2006 Proposal was necessary to give this issue full and fair consideration. Accordingly, on June 5, 2007, EPA issued a Supplemental Notice of Proposed Rulemaking (2007 Supplemental Proposal) to add child-occupied facilities to the universe of buildings covered by the 2006 Proposal (Ref. 15). EPA proposed to use the definition of “child-occupied facility” from 40 CFR 745.223 with some modifications to make it consistent with the statutory focus on children under age 6 and to better describe the applicability of the term in target housing and in public or commercial buildings. The 2007 Supplemental Proposal would apply all of the accreditation, training, certification, work practice, and recordkeeping requirements to renovations in child-occupied facilities in the same way that the requirements would apply to renovations in target housing. In addition, EPA proposed to extend the lead hazard information distribution requirements of the Pre-Renovation Education Rule, 40 CFR part 745, subpart E, to renovations in child-occupied facilities. Specifically, EPA proposed that persons performing renovations in child-occupied facilities in public or commercial buildings would have to provide a lead hazard information pamphlet to the owner of the building and to the proprietor of the child-occupied facility. In addition, general information about the renovation would have to be provided to parents and guardians of children under age 6 using the child-occupied facility. The 2007 Supplemental Proposal further provided that a lead hazard information pamphlet would have to be provided to parents and guardians or made available upon request. EPA received 12 comments on its 2007 Supplemental Proposal. 5. 2007 Notice of Data Availability . After the 2006 proposal, two new studies assessing hazards associated with renovation activities were completed. On March 16, 2007, EPA announced the availability of these new studies in the docket for this rulemaking (Ref. 16). EPA requested comment on how these studies might inform provisions of the final rule. EPA received nearly 100 comments in response to its notice. Comments specifically on the studies are discussed below. Comments on how the studies might affect the final rule are discussed along with the provisions of the final rule in Unit III.E. of this preamble. a. Characterization of Dust Lead Levels after Renovation, Repair, and Painting Activities. EPA conducted a field study (Characterization of Dust Lead Levels after Renovation, Repair, and Painting Activities) (the “Dust Study”) to characterize dust lead levels resulting from various renovation, repair, and painting activities (Ref. 17). This study, completed in January 2007, was designed to compare environmental lead levels at appropriate stages after various types of renovation, repair, and painting preparation activities were performed on the interiors and exteriors of target housing units and child-occupied facilities. All of the jobs disturbed more than 2 square feet of lead-based paint, so they would not have been eligible for the minor maintenance exception from the 2006 Proposal. The renovation activities were conducted by local professional renovation firms, using personnel who received lead safe work practices training using the curriculum developed by EPA and HUD, “Lead Safety for Remodeling, Repair, and Painting” (Ref. 18). The activities conducted represented a range of activities that would be permitted under the 2006 Proposal, including work practices that are restricted or prohibited for abatements under 40 CFR 745.227(e)(6). Of particular interest was the impact of using specific work practices that renovation firms would be required to use under the proposed rule, such as the use of plastic to contain the work area and a multi-step cleaning protocol, as opposed to more typical work practices. The design of the Dust Study was peer-reviewed by experts in fields related to the study. They reviewed the design and quality assurance plan independently and provided written comments to EPA. The results of this peer-review are summarized in Unit 2 of the Dust Study report (Ref. 17). In addition, the record of this peer-review, which includes the comments from the reviewers and EPA's responses, has been placed into the public docket for this action. In the Dust Study, 12 different interior and 12 different exterior renovation activities were performed at 7 vacant target housing units in Columbus, Ohio, and 8 vacant target housing units (including four apartments) in Pittsburgh, Pennsylvania. Three different interior and three different exterior renovation activities were conducted at a building representing a child-occupied facility, a vacant school in Columbus. The presence of lead-based paint was confirmed by laboratory analysis before a building was assigned a particular renovation activity or set of activities. Before interior renovation activities were performed, the floors and windowsills in the work area and adjacent rooms were cleaned. In most cases, pre-work cleaning resulted in dust lead levels on floors of less than 10 µg/ft 2 ; nearly all floors were less than 40 µg/ft 2 before work started. Most windowsills that would be used for later sampling were cleaned to dust lead levels less than 250 µg/ft 2 . In the few cases where that level was not achieved on a windowsill needed for sampling, dust collection trays were used. Interior renovation activities included the following jobs: • Making cut-outs in the walls. • Replacing a window from the inside. • Removing paint with a high temperature (greater than 1100 degrees Fahrenheit) heat gun. • Removing paint with a low temperature (less than 1100 degrees Fahrenheit) heat gun. • Removing paint by dry scraping. • Removing kitchen cabinets. • Removing paint with a power planer. To illustrate the impact of the containment plastic and the specialized cleaning and cleaning verification protocol that would be required by the 2006 Proposal, each activity was performed a minimum of four times: • With the plastic containment described in the 2006 Proposal followed by the cleaning protocol described in the proposal. • With the plastic containment described in the 2006 Proposal followed by dry sweeping and vacuuming with a shop vacuum. • With no plastic containment followed by the cleaning protocol described in the 2006 Proposal. • With no plastic containment followed by dry sweeping and vacuuming with a shop vacuum. Dust samples were collected after the renovation work was completed, after cleaning, and after cleaning verification. If a building was being used again for the same job under different work practices, or for a completely different job, the unit was recleaned and retested prior to starting the next job. All buildings were cleaned and tested after the last job. Geometric mean post-work, pre-cleaning floor dust lead levels in the work room were as follows (in µg/ft 2 ): • Cut-outs--422. • Kitchen cabinet removal--958. • Low temperature heat gun--2,080. • Dry scraping--2,686. • Window replacement--3,993. • High temperature heat gun--7,737. • Power planing--32,644. Power planing is an activity very similar to power sanding in which a machine that operates at high speed generating large quantities of dust is used. Where baseline practices, i.e., no containment, dry sweeping, and vacuuming with a shop vacuum, were used, the geometric mean post-job floor dust lead levels in the work room were as follows (in µg/ft 2 ): • Cut-outs--22. • Kitchen cabinet removal--58. • Low temperature heat gun--41. • Dry scraping--66. • Window replacement--135. • High temperature heat gun--445. • Power planing--450. The package of proposed rule requirements, i.e., containment, specialized cleaning, and cleaning verification, resulted in the lowest geometric mean dust lead levels in the work room at the end of a job. These results were as follows (in µg/ft 2 ): • Cut-outs--5. • Kitchen cabinet removal--12. • Low temperature heat gun--24. • Dry scraping--30. • Window replacement--33. • High temperature heat gun--36. • Power planing--148. Windowsill sample results were similar; the geometric mean dust lead levels after renovation activities performed in accordance with the proposed rule exceeded 250 µg/ft 2 only where power planing or a high temperature heat gun were used. When baseline practices were used, the geometric mean dust lead levels on the windowsills exceeded 250 µg/ft 2 for kitchen cabinet removal, window replacement, high temperature heat gun use, and power planing. Exterior renovation activities performed as part of the study included the following: • Replacing a door and doorway. • Replacing fascia boards, soffits, and other trim. • Removing paint with a high temperature (greater than 1100 degrees Fahrenheit) heat gun. • Removing paint with a low temperature (less than 1100 degrees Fahrenheit) heat gun. • Removing paint by dry scraping. • Removing paint with a needle gun. • Removing paint with power sanding or grinding. • Removing paint with a torch or open flame. For the exterior jobs, plastic sheeting was placed on the ground to catch the debris and dust from the job, in accordance with the requirements of the proposed rule. Additional plastic sheeting was laid out beneath and beyond the “proposed rule” plastic. Trays to collect dust and debris were placed on top of and underneath the “proposed rule” plastic. Trays were also placed just outside of the “proposed rule” plastic to assess how far the dust was spreading. A vertical containment, as high as the work zone, was erected at the end of the additional plastic. The use of the “proposed rule” plastic as a ground covering captured large amounts of leaded dust. For all job types except removing paint with a torch, there was a substantial difference between the amount of lead captured by the “proposed rule” plastic and the amount under the “proposed rule” plastic. Including both bulk debris and dust, geometric mean lead levels in exterior samples from the collection trays on top of the “proposed rule” plastic ranged from a low of 60,662 µg/ft 2 for the door replacement activity to a high of 7,216,358 µg/ft 2 for removing paint with a high temperature heat gun. Geometric mean lead levels from the collection trays under the “proposed rule” plastic ranged from a low of 32 µg/ft 2 for door replacement to 8,565 µg/ft 2 for removing paint with a torch. This regulatory action was supported by the Dust Study discussed above. Therefore, EPA conducted a peer review in accordance with OMB's Final Information Quality Bulletin for Peer Review. EPA requested this review from the Clean Air Scientific Advisory Committee (CASAC) Lead Review Panel. The CASAC, which is comprised of seven members appointed by the EPA Administrator, was established under the Clean Air Act as an independent scientific advisory committee. The CASAC's comments on the Dust Study, along with EPA's responses, have been placed into the public docket for this action. More information on the CASAC consultation process, along with background documents, is available on EPA's website at http://www.epa.gov/lead/pubs/casac.htm . According to the peer review report, the CASAC Panel found . . .that the [Dust Study] was reasonably well-designed, considering the complexity of the problem, and that the report provided information not available from any other source. The study indicated that the rule cleaning procedures reduced the residual lead (Pb) remaining after a renovation more than did the baseline cleaning procedures. Another positive aspect of the Dust Study was that it described deviations from the protocol when they occurred. The CASAC Panel also contended that the limited data from residential housing units and child-occupied facilities included in the Dust Study, most likely do not represent a statistically valid sample of housing at the national level. They noted that there are aspects of the study that would underestimate the levels of lead-loadings while other aspects of the study would overestimate the loadings. EPA agrees that the Dust Study is not nationally representative of all housing. EPA notes that there are several reasons why this is the case, including the fact that all of the housing studied was built during 1925 or earlier, and a large number of the floors were in poor condition. A major purpose of the Dust Study was to assess the proposed work practices. A statistically valid sample of housing at the national level is not needed to assess the work practices. If anything, the Dust Study is conservative with respect to the age of housing because it studied older houses and therefore is appropriate for assessing the effectiveness of the work practices. In addition to the Dust Study which directly supported this regulatory action, several other studies are discussed throughout the preamble which may or may not have been peer reviewed. b. Lead-Safe Work Practices Survey Project. The National Association of Home Builders (NAHB) conducted a survey that assessed renovation and remodeling activities to measure levels of lead dust generated by home improvement contractors (Ref. 19). The stated objective of this survey, completed in November 2006, was to measure the amount of lead dust generated during typical renovation and remodeling activities and assess whether routine renovation and remodeling activities increased lead dust levels in the work area and on the property. The activities evaluated during the survey were selected in consultation with remodeling contractors. NAHB believes that these activities represent the most common jobs performed by renovation and remodeling firms. The renovations were performed by professional renovation and remodeling contractors from each of the communities where the properties were located. All of the workers who participated in this project had previously attended and successfully completed the EPA/HUD curriculum for Lead Safety for Remodeling, Repair, & Painting . According to the NAHB survey, an EPA-certified lead-based paint inspector confirmed the presence of lead-based paint in all of the properties considered for this survey. Previous inspection reports were consulted if the inspections conformed to the HUD Guidelines for lead-based paint inspections. Properties used in this survey included a single family home in Illinois, two single-family homes and a duplex in Connecticut, and an apartment above a storefront in Wisconsin. The NAHB survey evaluated the following activities: • Wall and ceiling removal (demolition). • Wall and ceiling modification. • Window and door removal and/or replacement (no sanding). • Window and door alteration (no sanding). • Sanding on windows and doors. • Kitchen or bath cabinet removal. • Baseboard and stair removal. • Surface preparation (sanding). • Sawing into wood and plaster. Activities were performed in one of three ways: Using the work practices presented in the EPA/HUD curriculum, using modified work practices (one or more of the dust control or cleanup methods discussed in the EPA/HUD curriculum), or routine renovation practices. Area air samples were collected before, during and after the work activity. Personal breathing zone air samples were collected during the work activity. Dust wipe samples were collected before work started and after final clean-up. Dust wipe samples were routinely collected from floors near the work activity and in some cases collected from a windowsill and/or window well. In comparing the mean dust lead levels before the activities with the mean dust lead levels after the activities, the NAHB concluded that the renovation activities surveyed did not create new lead dust hazards overall. However, even after clean-up was conducted, over half of the 60 individual renovation activities studied resulted in an increase in dust lead levels on at least one surface. In most cases, the increase was considerably greater than the regulatory dust-lead hazard standard for that surface. 6. Statutory finding and regulatory approach — TSCA section 402(c)(3) determination. TSCA section 402(c)(3) directs EPA to revise the regulations issued under TSCA section 402(a), the Lead-based Paint Activities Regulations, to apply to renovation or remodeling activities that create lead-based paint hazards. EPA finds that renovation, repair, and painting activities that disturb lead-based paint create lead-based paint hazards. This finding is based upon EPA's Environmental Field Sampling Study and corroborated by the Dust Study and the NAHB survey (Refs. 11, 17, and 19). In the 2006 Proposal, EPA proposed to conclude that any renovation activity that disturbs lead-based paint can create significant amounts of leaded dust, that most activities created lead-based paint hazards, and that some activities can be reasonably anticipated to create lead-based paint hazards. EPA's proposed conclusions were based upon the results of the Environmental Field Sampling Study, which examined, on a variety of components using a variety of tools and methods, activities that EPA had determined were representative of the paint-disturbing activities that typically occur during renovations. The activities were: • Paint removal by abrasive sanding. • Window replacement. • HVAC duct work. • Demolition of interior plaster walls. • Drilling into wood. • Drilling into plaster. • Sawing into wood. • Sawing into plaster. Specifically, EPA proposed to conclude that all of the activities studied in the Environmental Field Sampling Study, with the exception of drilling into plaster, can create lead-based paint hazards. With respect to drilling into plaster, where lead-based paint is present, EPA proposed to conclude that this activity can reasonably be anticipated to create lead-based paint hazards. The Environmental Field Sampling Study found that, with the exception of drilling into plaster, all renovation and remodeling activities, when conducted where lead-based paint is present, generated lead loadings on floors at a distance of 5 to 6 feet from the activity that exceeded EPA's dust-lead hazard standard of 40 µg/ft 2 . However, upon further review, it is apparent that the study also found that drilling into plaster created dust lead levels in the immediate vicinity of the activity that exceeded the dust-lead hazard standard. Thus, all the activities studied did in fact create lead-based paint hazards. The 2006 Proposal cited the other phases of the TSCA section 402(c)(2) renovation and remodeling study to support EPA's proposed determination that any renovation, remodeling, or painting activity that disturbs lead-based paint can be reasonably anticipated to create lead-based paint hazards. Phase III, the Wisconsin Childhood Blood-Lead Study, found that children who live in homes where renovation and remodeling activities were performed within the past year are 30% more likely to have a blood lead-level that equals or exceeds 10 μg/dL, the level of concern established by CDC, than children living in homes where no such activity has taken place recently. Phases II and IV of the study, which evaluated worker exposures from renovation and remodeling activities, provide additional documentation of the significant and direct relationship between blood-lead levels and the conduct of certain renovation and remodeling activities. Phase II found a statistically significant association between increased blood lead levels and the number of days spent performing general renovation and remodeling activities, paint removal, and cleanup in pre-1950 buildings in the past month. Phase IV of the study found that persons performing renovation and remodeling activities in old historic buildings are more likely to have elevated blood lead levels than persons in the general population of renovation and remodeling workers. In light of EPA's proposed determination, the 2006 Proposal included revisions to the existing Lead-based Paint Activities Regulations to extend them to renovation, remodeling, and painting activities in target housing, with certain exceptions. In proposing to extend these regulations to renovation, remodeling, and painting activities in child-occupied facilities, the 2007 Supplemental Proposal incorporated the proposed TSCA section 402(c)(3) determination. Since the 2006 Proposal, EPA conducted the Dust Study and NAHB submitted the results of their survey. The results of the Dust Study confirm that renovation and remodeling activities that disturb lead-based paint create lead-based paint hazards. The Dust Study evaluated a number of common renovation activities, including replacing windows, removing kitchen cabinets, cutting into walls, and removing paint by high and low temperature heat guns, power tools, and dry scraping. The geometric mean post-work dust lead levels on work room floors ranged from a low of 422 µg/ft 2 , or 10 times the dust-lead hazard standard for floors, for cut-outs, to a high of 32,644 µg/ft 2 for power planing. Thus, all of the activities evaluated in the Dust Study created floor dust lead levels that exceeded 40 µg/ft 2 , one of the measures that, in 40 CFR 745.65, defines a lead-based paint hazard. It is more difficult to evaluate the effect of disturbing lead-based paint in the NAHB Survey, since the survey did not involve collecting samples after work had been performed but before the post-renovation cleaning had begun. Nevertheless, even after post-renovation cleaning using a variety of methods, in more than half of the 60 experiments performed in this survey, the post-cleaning dust wipe sample results for at least one surface showed an increase greater than the TSCA section 403 hazard standard over pre-work levels. These experiments showing increased dust lead levels cover the range of activities evaluated in the NAHB Survey. Therefore, in this action, EPA is issuing its determination that renovation, repair, and painting activities that disturb lead-based paint create lead-based paint hazards. Because the evidence shows that all such activities in the presence of lead-based paint create lead-based paint hazards, EPA is modifying its proposed finding, which distinguished between activities that create lead-based paint hazards and those that can reasonably be anticipated to create lead-based paint hazards, and instead concludes that renovation activities that disturb lead-based paint create lead-based paint hazards. Indeed, no commenter submitted data indicating that any renovation, repair, or painting activity should be exempt from regulation because it does not create lead-based paint hazards. EPA received a large number of comments on this proposed finding. Many expressed support for EPA's determination that any renovation, repair, or painting activity that disturbs lead-based paint creates lead-based paint hazards. Some commenters, while expressing their support for this determination, also opined that the regulatory dust-lead hazard standards for floors and windowsills are too high. These commenters argued that recent scientific evidence shows that children experience adverse health effects at lower blood lead levels than previously thought, and since EPA's regulatory dust-lead hazard standards were set with reference to a blood lead level of 10 μg/dL, the CDC level of concern, the dust-lead hazard standards must be lowered. EPA agrees that recent studies demonstrate that neurocognitive effects occur at blood lead levels below the current CDC level of concern. In fact, EPA's most recent Air Quality Criteria for Lead document, issued in October, 2006, describes several epidemiologic studies published in the last 5 years that observed significant lead-induced IQ decrements in children with some effects observed at blood lead levels of 5 μg/dL and lower (Ref. 1). The document also notes that other recent studies observed significant associations at low blood-lead levels for other neurotoxicity endpoints in addition to IQ, such as arithmetic and reading scores, attentional behavior, and neuromotive function. However, EPA is not addressing the appropriateness of the existing dust-lead hazard standards in this rulemaking. The original hazard standards were set through a separate rulemaking process under TSCA section 403 that allowed for input from all of the parties that would be affected by the standards. Furthermore, EPA is concerned that a full review of the available evidence and other considerations affecting the hazard standards as part of this rulemaking would result in a significant delay in promulgating training, certification, and work practice standards for renovation activities. EPA did not propose to modify the TSCA section 403 hazard standard levels in this rulemaking and has not undertaken the significant analyses that would need to be performed in order to establish different standards. Accordingly, EPA is not able, in this final rule, to modify the regulatory hazard standard. In any event, since EPA finds that renovation activities that disturb lead-based paint create lead-paint hazards, lowering the hazard standard would not affect EPA's finding. Some commenters objected to EPA's proposed determination that renovation, repair, or painting activities that disturb lead-based paint create lead-based paint hazards. Some commenters interpreted EPA's statutory authority to regulate renovation and remodeling under TSCA section 402(c)(3) as being limited to those renovation and remodeling activities for which EPA can prove a link between the activity and the blood lead action level established by CDC for public health intervention. These commenters contend that the failure to prove such a link means that renovation and remodeling activities do not create lead-based paint hazards. This interpretation is not supported by the plain language of the statute. TSCA section 402(c)(3) requires EPA to regulate renovation and remodeling activities that create lead-based paint hazards. The term “lead-based paint hazard” is defined in TSCA section 401 as “any condition that causes exposure to lead from lead-contaminated dust . . . that would result in adverse human health effects as established by the Administrator under this subchapter.” TSCA section 403 directs EPA to promulgate regulations which “identify, for purposes of this subchapter and the Residential Lead-Based Paint Hazard Reduction Act of 1992, lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil.” The TSCA section 403 regulations define dust-lead hazards as levels that equal or exceed 40 µg/ft 2 of lead on floors or 250 µg/ft 2 of lead on interior windowsills. Therefore, EPA interprets TSCA as directing it to regulate renovation and remodeling activities if such activities create dust lead levels that exceed the standards for dust-lead hazards established under TSCA section 403. Again, the Environmental Field Sampling Study, the Dust Study, and the NAHB survey all demonstrate that renovation and remodeling activities that disturb lead-based paint create dust lead levels that exceed the hazard standards in 40 CFR 745.65. EPA also interprets the scientific evidence for a link between renovations and the CDC blood lead action level differently than do these commenters. EPA's Wisconsin Childhood Blood-Lead Study, described more fully in Unit III.C.1.c. of the preamble to the 2006 Proposal, provides ample evidence of a link between renovation activities and elevated blood lead levels in resident children (Ref. 13). This peer-reviewed study concluded that general residential renovation and remodeling is associated with an increased risk of elevated blood lead levels in children and that specific renovation and remodeling activities are also associated with an increase in the risk of elevated blood lead levels in children. In particular, removing paint (using open flame torches, using heat guns, using chemical paint removers, and wet scraping/sanding) and preparing surfaces by sanding or scraping significantly increased the risk of elevated blood lead levels. Some of the commenters on this rule focused on Table 3-13 in the study report and cited that as evidence that work performed by paid professional renovators does not create a statistically significant risk of an elevated blood-lead level in a resident child.EPA agrees that this table, which presents the results of analyses using one of the sets of models used to interpret study data, indicates that, with respect to the persons performing the work, the only statistically significant result associated with increased risk of elevated blood lead levels was work performed by a relative or friend not in the household. Work performed by professional renovators was associated with an increased risk of an elevated blood lead level, but the association was not statistically significant. As explained more fully in a memorandum summarizing additional analyses of the data from this study (Ref. 20), this table does not indicate that professional contractors were not responsible for creating lead exposure hazards. Rather, it indicates that renovation activities performed by professional contractors are no more or less hazardous than renovation activities performed by most of the other categories of persons identified in the survey responses collected as part of the study. It is also important to note that, while these commenters focus on a blood-lead level of 10 μg/dL as a threshold, this level is not and has not been considered by CDC or EPA as a threshold for adverse effects. One commenter also dismissed the two studies from New York that EPA cited as supporting the findings of the Wisconsin Childhood Blood-Lead Study. In 1995, the New York State Department of Health assessed lead exposure among children resulting from home renovation and remodeling in 1993-1994. A review of the health department records of children with blood lead levels equal to or greater than 20 μg/dL identified 320, or 6.9%, with elevated blood lead levels that were attributable to renovation and remodeling (Ref. 21). The commenter noted that this study suffered from a number of limitations, including the fact that it was not a case-control study; i.e., the group of children with elevated blood lead levels attributed to renovation and remodeling was not compared with a similar group of households that had not undergone renovation during the period. EPA agrees that this is an important limitation of this study. However, with respect to the other limitations noted by this commenter, the authors of the report felt that most of these limitations would likely result in an underestimation of the burden of lead exposure associated with renovation and remodeling. The other study cited by EPA as supporting the Wisconsin Childhood Blood-Lead Study conclusions was a case-control study that assessed the association between elevated blood lead levels in children younger than 5 years and renovation or repair activities in homes in New York City (Ref. 22).EPA notes that the authors show that when dust and debris was reported (by respondents via telephone interviews) to be “everywhere” following a renovation, the blood lead levels were significantly higher than children at homes that did not report remodeling work. On the other hand, when the respondent reported either “no visible dust and debris” or that “dust and debris was limited to the work area,” there was no statistically significant effect on blood lead levels relative to homes that did not report remodeling work. Although the study found only a weak and nonsignificant link between a report of any renovation activity and the likelihood that a resident child had an elevated blood-lead level, the link to the likelihood of an elevated blood-lead level was statistically significant for surface preparation by sanding and for renovation work that spreads dust and debris beyond the work area. The researchers noted the consistency of their results with EPA's Wisconsin Childhood Blood-Lead Study (Ref. 13, at 509). EPA notes that this confirms that keeping visible dust and debris contained to the work area is important for limiting children exposures to lead dust, rather than providing substantial arguments for the effectiveness of visual inspection. In sum, EPA's finding that renovation and remodeling activities create lead-based paint hazards is not dependent upon establishing a correlation between such activities and elevated blood lead levels. Rather, it rests on the fact that, as demonstrated by EPA's Environmental Field Sampling Study, EPA's Dust Study, and by the NAHB Survey, such activities create lead-based paint hazards as defined by EPA regulations. Moreover, EPA disagrees that there is no scientific support for establishing a relationship between elevated blood lead levels in children and renovation activities. While EPA interprets these studies as supporting such a relationship and believes these studies further support its finding, it is not a determinative factor. b. EPA's approach to this final rule . Given EPA's determination that renovation, repair, and painting activities that disturb lead-based paint create lead-based paint hazards, TSCA section 402(c)(3) directs EPA to revise the Lead-based Paint Activities Regulations to apply to these activities. EPA does not interpret its statutory mandate to require EPA to apply the existing TSCA section 402(a) regulations to renovations without change. By using the word “revise,” and creating a separate subsection of the statute for renovation, EPA believes that Congress intended that EPA make revisions to those existing regulations to adapt them to a very different regulated community. As discussed below, there are significant differences between renovations and abatements. Accordingly, this final rule does not merely expand the scope of the current abatement requirements to cover renovation and remodeling activities. Rather, EPA has carefully considered the elements of the existing abatement regulations and revised them as necessary to craft a rule that is practical for renovation, remodeling and painting businesses and their customers, taking into account reliability, effectiveness, and safety as directed by TSCA section 402(a). Specifically, the Agency concludes that the training, containment, cleaning, and cleaning verification requirements in this final rule rule achieve the goal of minimizing exposure to lead-based paint hazards created during renovation, remodeling and painting activities, taking into account reliability, effectiveness, and safety. In taking safety into account, EPA looked to the statutory directive to regulate renovation activities that create lead-based paint hazards. Although there is no known level of lead exposure that is safe, EPA does not believe the intent of Congress was to require elimination of all possible risk arising from a renovation. Nor does TSCA explicitly require EPA to eliminate all possible risk from lead, nor would it be feasible to do so since lead is a component of the earth. Rather, it directs EPA to regulate renovation and remodeling activities that create lead-based paint hazards. Given that the trigger for regulating renovation and remodeling activities is the creation of lead-based paint hazards--which EPA has identified in a separate rulemaking pursuant to TSCA section 403--EPA believes taking safety into account in this context is best interpreted with reference to those promulgated hazard standards. If taking safety into account required a more stringent standard, as suggested by some commenters, the potential would be created for a scheme under which any renovation activities found not to create hazards are not regulated at all, whereas renovation activities found to create hazards trigger requirements designed to leave the renovation site cleaner than the unregulated renovations. EPA's interpretation is supported by the broad Congressional intent that the section 403 hazard standards apply for purposes of subchapter IV of TSCA. It is also consistent with EPA's approach in its abatement regulations, which require post-abatement cleaning to dust-lead clearance levels that are numerically equal to the TSCA section 403 hazard standards levels. It would be anomalous to impose a more stringent safety standard in the renovation context than in the abatement context, where the express purpose of the regulated activities is to abate lead-based paint hazards. Therefore, in taking into account safety, this final rule regulates renovation and remodeling activities relative to the TSCA section 403 hazard standard, with the purpose of minimizing exposure to such hazards created during renovation and remodeling activities. Additionally, EPA has interpreted practicality in implementation to be an element of the statutory directive to take into account effectiveness and reliability. In particular, EPA believes that given the highly variable nature of the regulated community, the work practices required by this rule should be simple to understand and easy to use. EPA is very aware that this regulation will apply to a whole range of individuals from day laborers to property maintenance staff to master craftsmen performing a whole range of activities from simple drywall repair to window replacement to complete kitchen and bath renovations to building additions and everything in between. Work practices that are easy and practical to use are more likely to be followed by all of the persons who perform renovations, and, therefore, more likely to be reliable and effective in minimizing exposure to lead-based paint hazards created by renovation activities. One of the biggest challenges facing EPA in revising the TSCA section 402(a) Lead-based Paint Activities Regulations is how to effectively bridge the differences between abatement and renovation and remodeling while acknowledging that many of the dust generating activities are the same. Abatements are generally performed in three circumstances. First, an abatement may be performed in the residence of a child who has been found to have an elevated blood lead level. Second, abatements are performed in housing receiving HUD financial assistance when required by HUD's Lead-Safe Housing Rule. Third, state and local laws and regulations may require abatements in certain situations associated with rental housing. Typically, when an abatement is performed, the housing is either unoccupied or the occupants are temporarily relocated to lead-safe housing until the abatement has been demonstrated to have been properly completed through dust clearance testing. Carpet in the housing is usually removed as part of the abatement because it is difficult to demonstrate that it is free of lead-based paint hazards. Uncarpeted floors that have not been replaced during the abatement may need to be refinished or sealed in order to achieve clearance. Abatements have only one purpose--to permanently eliminate lead-based paint and lead-based paint hazards. On the other hand, renovations are performed for a myriad of reasons, most having nothing to do with lead-based paint. Renovations involve activities designed to update, maintain, or modify all or part of a building. Renovations may be performed while the property is occupied or unoccupied. If the renovation is performed while the property is occupied, the occupants do not typically relocate pending the completion of the project. Further, performing abatement is a highly specialized skill that workers and supervisors must learn in training courses accredited by EPA or authorized States, Territories, and Tribes. In contrast, EPA is not interested in teaching persons how to be painters, plumbers, or carpenters. Rather, EPA's objective is to ensure that persons who already know how to perform renovations perform their typical work in a lead-safe manner. Nevertheless, as pointed out by some commenters, abatement and renovation have some things in common. For example, as noted by one commenter, window replacement may be performed as part of an abatement to remove the lead-based paint and lead-based paint hazards on the existing window, or it may be performed as part of a renovation designed to improve the energy efficiency of the building. In many cases, the window replacement as abatement and the window replacement as renovation will generate the same amount of leaded dust. Another consideration is that while renovation activities undoubtedly create lead-based paint hazards, without results from dust wipe samples collected immediately before the renovation commences, there is no way to tell what portion of the lead dust remaining on the surface was contributed by the renovation. In addition, as a practical matter, once dust-lead hazards commingle with pre-existing hazards, there is no functional way to distinguish between those created by the renovation activity and any pre-existing dust-lead hazards. However, the Dust Study shows that the combination of training, containment, cleaning and cleaning verification required by this rule is effective at reducing dust lead levels below the dust-lead hazard standard. While the requirements of this rule will, in some cases, have the ancillary benefit of removing some pre-existing dust-lead hazards, these requirements are designed to effectively clean-up the lead-based paint hazards created during renovation activities without changing the scope of the renovation activity itself. The intent of this final rule is not to require cleanup of pre-existing contamination. For example, the rule does not require cleaning of dust or any other possible lead sources in portions of target housing or child-occupied facilities beyond the location in and around the work area. Nor does this rule require the replacement of carpets in the area of the renovation or the refinishing or sealing of uncarpeted floors. The approach in this final rule is designed to address the lead-based paint hazards created during the renovation while not requiring renovators to remediate or eliminate hazards that are beyond the scope of the work they were hired to do. In addition, EPA has made a concerted effort to keep the costs and burdens associated with this rule as low as possible, while still providing adequate protection against lead-based paint hazards created by renovation activities. Indeed, as part of this rulemaking EPA has, as directed by TSCA section 2(c), considered the environmental, economic, and social impact of this rule. Nonetheless, many commenters expressed concerns over the potential unintended consequences of this rulemaking. These commenters argued that a too-burdensome rule will result in more renovations by noncompliant renovators, and more do-it-yourself renovations, both of which are likely to be more hazardous than renovations by certified professional renovation firms using certified renovators who follow the work practice requirements of the rule. These commenters were also concerned about deferred property maintenance which can be hazardous for many reasons, including lead-based paint issues. For example, one commenter pointed out that a renovation project that replaces old lead-based paint covered windows with new ones that have no lead-based paint may, as a by-product, reduce lead hazards, and the rule should not work to discourage this activity. On the other hand, one commenter argued that increased do-it-yourself activity is an unlikely byproduct of this rule because consumers are not only opting to hire or not hire contractors based on factors such as cost, convenience, and perceived quality, but, even more importantly, their own proclivity towards performing renovation work. According to the commenter, the fact that the work practices required by this rule may result in slight cost increases is unlikely to motivate homeowners to perform their own renovations. This commenter also felt that the sooner that protective approaches become the accepted standard of care for renovation work by contractors receiving compensation, the sooner do-it-yourselfers and the do-it-yourself literature and training supports will adopt the same protective approaches. It is difficult to determine with any amount of certainty whether this final rule will have unintended consequences. However, EPA agrees that it is important to minimize disincentives for using certified renovation firms who follow the work practices required by this rule. EPA also agrees that practicality is an important consideration. Given the relatively low estimated overall average per-job cost of this final rule, which is $35, and the relatively easy-to-use work practices required by this final rule, EPA does not expect the incremental costs associated with this rule to be a determinative factor for consumers. However, that relatively low cost has resulted in part from EPA's efforts to contain the costs of this rule in order to avoid creating disincentives to using certified renovation firms, and EPA has viewed the comments received with those considerations in mind. With respect to the comment regarding the standard of care for do-it-yourselfers, EPA also plans to conduct an outreach and education campaign aimed at encouraging homeowners and other building owners to follow work practices while performing renovations or hire a certified renovation firm to do so. 7. Summary of the final rule . This section summarizes the final rule in general terms. For more information, consult Unit III. below, which describes each provision in detail, discusses any changes from the proposal, and reviews the comments received. a. Definitions and scope. This final rule applies to renovations for compensation in target housing and child-occupied facilities. TSCA section 401 defines “target housing” as any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing for the elderly or persons with disabilities) or any 0-bedroom dwelling. This rule contains the following definition of “child-occupied facility”: Child-occupied facility” means a building, or portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may include, but are not limited to, day care centers, preschools and kindergarten classrooms. Child-occupied facilities may be located in target housing or in public or commercial buildings. With respect to common areas in public or commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only those common areas that are routinely used by children under age 6, such as restrooms and cafeterias. Common areas that children under age 6 only pass through, such as hallways, stairways, and garages are not included. In addition, with respect to exteriors of public or commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only the exterior sides of the building that are immediately adjacent to the child-occupied facility or the common areas routinely used by children under age 6. TSCA does not define the terms “renovation” or “remodeling,” but this final rule builds upon the definition of “renovation” already established by the regulations promulgated under TSCA section 406(b). This rule defines “renovation” as follows: “Renovation” means the modification of any existing structure, or portion thereof, that results in the disturbance of painted surfaces, unless that activity is performed as part of an abatement as defined by this part (40 CFR 745.223). The term renovation includes (but is not limited to): The removal, modification or repair of painted surfaces or painted components (e.g., modification of painted doors, surface restoration, window repair, surface preparation activity (such as sanding, scraping, or other such activities that may generate paint dust)); the removal of building components (e.g., walls, ceilings, plumbing, windows); weatherization projects (e.g., cutting holes in painted surfaces to install blown-in insulation or to gain access to attics, planing thresholds to install weather-stripping), and interim controls that disturb painted surfaces. A renovation performed for the purpose of converting a building, or part of a building, into target housing or a child-occupied facility is a renovation under this subpart. The term renovation does not include minor repair and maintenance activities. This final rule excludes some of the same projects that are excluded by the TSCA section 406(b) regulations, such as lead-based paint abatement projects and renovations affecting components that have been found to be free of lead-based paint. To be eligible for the latter exception, the components must be determined to be free of lead-based paint by a certified inspector or risk assessor, or by a certified renovator using an EPA-approved test kit. Emergency projects would continue to be exempt from the lead hazard information distribution requirements, but the clean-up after the project must meet the requirements of this regulation, and compliance with the training, certification, warning sign, and containment requirements of this regulation is required to the extent practicable. Minor maintenance projects that disturb no more than 6 square feet of painted surface per room for interiors or no more than 20 square feet of painted surface for exteriors are also exempt, so long as no work practices prohibited or restricted by this final rule are used, the renovation does not involve window replacement and there is no demolition of painted areas. Finally, this regulation contains an exception for renovations in owner-occupied target housing where no child under age 6 or pregnant woman resides, so long as the housing does not meet the definition of “child-occupied facility.” To claim this exception, the renovation firm must obtain, before beginning the renovation, a signed statement from the owner of the housing that states that the person signing is the owner of the housing to be renovated, that he or she resides there, that no child under age 6 or pregnant woman resides there, that the housing is not a child-occupied facility, and that the owner understands that the renovation firm will not be required to use the work practices contained in this rule. b. Pre-Renovation Education Rule. As described in greater detail in a separate notice published elsewhere in today's Federal Register , EPA has developed a new renovation-specific lead hazard information pamphlet intended for use in fulfilling the requirements of the Pre-Renovation Education Rule, 40 CFR part 745, subpart E. This final rule requires firms performing renovations for compensation in target housing and child-occupied facilities to distribute this new pamphlet before beginning renovations to the owners and occupants of target housing, owners of public or commercial buildings that contain a child-occupied facility, and the proprietor of the child-occupied facility, if different, and to provide general information on the renovation and the pamphlet to, or make it available to, parents or guardians of children under age 6 using the child-occupied facility. This can be accomplished by mailing or hand-delivering the general information on the renovation and the pamphlet to the parents and guardians or by posting informational signs containing general information on the renovation in areas where the signs can be seen by the parents or guardians of the children frequenting the child-occupied facility. The signs must be accompanied by a posted copy of the pamphlet or information on how interested parents or guardians can review a copy of the pamphlet or obtain a copy from the renovation firm at no cost to the parents or guardians. For renovations in the common areas of multi-unit target housing, similar notification options are available to firms. They must provide tenants with general information regarding the nature of the renovation by mail, by hand-delivery, or by posting signs, and must also make this new pamphlet available upon request. Firms must maintain documentation of compliance with these requirements. c. Training, accreditation, and certification. This final rule contains training requirements leading to certification for “renovators”--individuals who perform and direct renovation activities—and “dust sampling technicians”--individuals who perform dust sampling not in connection with an abatement. Requirements for each of these courses of study are described in detail, and a hands-on component is required. Training providers who wish to provide training to renovators and dust sampling technicians for Federal certification purposes must apply for and receive accreditation from EPA following the same procedures that training providers who offer lead-based paint activities training now use to become accredited by EPA. Providers of renovation training must follow the same requirements for program operation as training providers who offer lead-based paint activities training. For example, renovation training programs must have adequate facilities and equipment for delivering the training, a training manager with experience or education in a construction or environmental field, and a principal instructor with experience or education in a related field and education or experience in teaching adults. To become accredited to provide training for renovators and dust sampling technicians, a provider must submit an application for accreditation to EPA. The application must include the following items: • The course materials and syllabus, or a statement that EPA model materials or materials approved by an authorized State or Tribe will be used. • A description of the facilities and equipment that will be used. • A copy of the test blueprint for each course. • A description of the activities and procedures that will be used during the hands-on skills portion of each course. • A copy of the quality control plan. • The correct amount of fees. Training programs that submit a complete application and meet the requirements for faculty, facilities, equipment, and course and test content will be accredited for 4 years. To maintain accreditation, the training program must submit an application and the correct amount of fees every 4 years. EPA is not establishing the required fees in this rulemaking. EPA intends to publish a proposed fee schedule for public comment shortly. Accredited renovation training programs must also comply with the existing notification and recordkeeping requirements for lead-based paint activities training programs at 40 CFR 745.225(c)(13) and 40 CFR 745.225(i), respectively, by notifying EPA before and after providing renovation training and by maintaining records of course materials, course test blueprints, information on how hands-on training is delivered, and the results of the students' skills assessments and course tests. Each renovation project covered by this final rule must be performed and/or directed by an individual who has become a certified renovator by successfully completing renovator training from an accredited training provider. The certified renovator is responsible for ensuring compliance with the work practice standards of this final regulation. The certified renovator must perform or direct certain critical tasks during the renovation, such as posting warning signs, establishing containment of the work area, and cleaning the work area after the renovation. These and other renovation activities may be performed by workers who have been provided on-the-job training in these activities by a certified renovator. However, the certified renovator must be physically present at the work site while signs are being posted, containment is being established, and the work area is being cleaned after the renovation to ensure that these tasks are performed correctly. Although the certified renovator is not required to be on-site at all times, while the renovation project is ongoing, a certified renovator must nonetheless regularly direct the work being performed by other workers to ensure that the work practices are being followed. When a certified renovator is not physically present at the work site, the workers must be able to contact the renovator immediately by telephone or other mechanism. In addition, the certified renovator must perform the post-renovation cleaning verification. This task may not be delegated to workers with on-the-job training. To maintain certification, a renovator must successfully complete an accredited renovator refresher training course every 5 years. Renovations must be performed by certified firms. The certification requirements for renovation firms are identical to the certification requirements for firms that perform lead-based paint activities, except that renovation firm certification lasts for 5 years instead of 3 years.A firm that wishes to become certified to perform renovations must submit an application, along with the correct amount of fees, attesting that it will assign a certified renovator to each renovation that it performs, that it will use only certified or properly trained individuals to perform renovations, and that it will follow the work practice standards and recordkeeping requirements in this regulation. EPA will certify any firm that meets these requirements unless EPA determines that the environmental compliance history of the firm, its principals, or its key employees demonstrates an unwillingness or inability to maintain compliance with environmental statutes or regulations. To maintain certification, the firm must submit an application and the correct amount of fees every 5 years. As noted above, EPA will establish the required fees in a subsequent rulemaking. d. Work practice standards. This final rule contains a number of work practice requirements that must be followed for every covered renovation in target housing and child-occupied facilities. These requirements pertain to warning signs and work area containment, the restriction or prohibition of certain practices (e.g., high heat gun, torch, power sanding, power planing), waste handling, cleaning, and post-renovation cleaning verification. The firm must ensure compliance with these work practices. Although the certified renovator is not required to be on-site at all times, while the renovation project is ongoing, a certified renovator must nonetheless regularly direct the work being performed by other workers to ensure that the work practices are being followed. When a certified renovator is not physically present at the work site, the workers must be able to contact the renovator immediately by telephone or other mechanism. i. Warning signs and work area containment. Before beginning a covered renovation, the certified renovator or a worker under the direction of the certified renovator must post signs outside the area to be renovated warning occupants and others not involved in the renovation to remain clear of the area. In addition, the certified renovator or a worker under the direction of the certified renovator must also contain the work area so that dust or debris does not leave the area while the work is being performed. At a minimum, containment for interior projects must include: • Removing or covering all objects in the work area with plastic or other impermeable material. • Closing and covering all forced air HVAC ducts in the work area with plastic or other impermeable material. • Closing all windows in the work area. • Closing and sealing all doors in the work area with plastic or other impermeable material. • Covering the floor surface, including installed carpet, with taped-down plastic sheeting or other impermeable material in the work area 6 feet beyond the perimeter of surfaces undergoing renovation or a sufficient distance to contain the dust, whichever is greater. Doors within the work area that will be used while the job is being performed must be covered with plastic sheeting or other impermeable material in a manner that allows workers to pass through while confining dust and debris to the work area. In addition, all personnel, tools, and other items, including the exterior of containers of waste, must be free of dust and debris when leaving the work area. There are several ways of accomplishing this. For example, tacky mats may be put down immediately adjacent to the plastic sheeting covering the work area floor to remove dust and debris from the bottom of the workers' shoes as they leave the work area, workers may remove their shoe covers (booties) as they leave the work area, and clothing and materials may be wet-wiped and/or HEPA-vacuumed before they are removed from the work area. At a minimum, containment for exterior projects must include: • Covering the ground with plastic sheeting or other disposable impermeable material extending 10 feet beyond the perimeter of surfaces undergoing renovation or a sufficient distance to collect falling paint debris, whichever is greater, unless the property line prevents 10 feet of such ground covering. • Closing all doors and windows within 20 feet of the outside of the work area on the same floor as the renovation and closing all doors and windows on the floors below that area. In certain situations, such as where other buildings are in close proximity to the work area, when conditions are windy, or where the work area abuts a property line, the certified renovator or a worker under the direction of the certified renovator performing the renovation may have to take extra precautions to prevent dust and debris from leaving the work area as required by the regulation. This may include erecting a system of vertical containment designed to prevent dust and debris from migrating to adjacent property or contaminating the ground, other buildings, or any object beyond the work area. In addition, doors within the work area that will be used while the job is being performed must be covered with plastic sheeting or other impermeable material in a manner that allows workers to pass through while confining dust and debris to the work area. ii. Waste management. The certified renovator or a worker trained and directed by a certified renovator must, at the conclusion of each work day, store any collected lead-based paint waste from renovation activities under containment, in an enclosure, or behind a barrier that prevents release of dust and debris and prevents access to the waste. In addition, the certified renovator or a worker under the direction of the certified renovator transporting lead-based paint waste from a work site must contain the waste to prevent identifiable releases. With regard to the lead-based paint waste generated by renovations in housing units, Unit IV.D.2. of the preamble to the 2006 Proposal describes how a clarification of the hazardous waste exclusion in 40 CFR 261.4(b)(1) means that residential lead-based paint waste may be disposed of in municipal solid waste landfill units, as long as the waste is generated during abatement or renovation and remodeling activities in households. Also discussed in the preamble to the 2006 Proposal is a subsequent amendment to the waste regulations promulgated under the Resource Conservation and Recovery Act (RCRA) that allows construction and demolition (C&D) landfills to accept residential lead-based paint waste. iii. Cleaning. This final rule contains a number of specific cleaning steps that the certified renovator or a worker under the direction of the certified renovator must follow after performing a covered renovation. Upon completion of renovation activities, all paint chips and debris must be picked up. Protective sheeting must be misted and folded dirty side inward. Sheeting used to isolate the work area from other areas must remain in place until after the cleaning and removal of other sheeting; this sheeting must be misted and removed last. Removed sheeting must either be folded and taped shut to seal or sealed in heavy-duty bags and disposed of as waste. After the sheeting has been removed from the work area, the entire area must be cleaned, including the adjacent surfaces that are within 2 feet of the work area. The walls, starting from the ceiling and working down to the floor, must be vacuumed with a HEPA vacuum or wiped with a damp cloth. This final rule requires that all remaining surfaces and objects in the work area, including floors, furniture and fixtures, be thoroughly vacuumed with a HEPA-equipped vacuum. When cleaning carpets, the HEPA vacuum must be equipped with a beater bar to aid in dislodging and collecting deep dust and lead from carpets. Where feasible, floor surfaces underneath area rugs must also be thoroughly vacuumed with a HEPA vacuum. After vacuuming, all surfaces and objects in the work area, except for walls and carpeted or upholstered surfaces, must be wiped with a damp cloth. Uncarpeted floors must be thoroughly mopped using a 2-bucket mopping method that keeps the wash water separate from the rinse water, or using a wet mopping system with disposable absorbent cleaning pads and a built-in mechanism for distributing or spraying cleaning solution from a reservoir onto a floor. For cleaning following an exterior renovation, this final rule requires all paint chips and debris to be picked up. Protective sheeting must be misted and folded dirty side inward. Removed sheeting must be either folded and taped shut to seal or sealed in heavy-duty bags and disposed of as waste. iv. Post-renovation cleaning verification. This final rule requires a certified renovator to perform a visual inspection of the work area after the cleaning steps outlined in the previous subsection. This visual inspection is for the purpose of determining whether dust, debris, or other residue is present in the work area. If dust, debris, or other residue remains in the work area, the dust, debris, or other residue must be removed by re-cleaning and another visual inspection must be performed. When an exterior work area passes the visual inspection, the renovation has been properly completed and the warning signs may be removed. When an interior work area passes the visual inspection, an additional cleaning verification step is required. A certified renovator assigned to the renovation project must use disposable cleaning cloths to wipe the windowsills, countertops, and uncarpeted floors in the work area. These cloths must then be compared to a cleaning verification card. For each cloth that matches or is lighter than the cleaning verification card, the corresponding windowsill, countertop, or floor area is considered to have passed the post-renovation cleaning verification. In contrast to the 2006 Proposal, this final rule limits this requirement to two wet cloths and one dry cloth. After the first dry cloth, that surface will be considered to have passed post-renovation cleaning verification. When all windowsills, countertops, and floor areas in the work area have passed post-renovation cleaning verification, the warning signs may be removed. More information on the post-renovation cleaning verification procedure and the underlying studies can be found in Unit IV.E. of the preamble to the 2006 Proposal and in Unit III.E.7. of this preamble. In contrast to the 2006 Proposal, this final rule does not allow dust clearance sampling in lieu of post-renovation cleaning verification, except in cases where the contract between the renovation firm and the property owner or another Federal, State, Territorial, Tribal, or local regulation requires dust clearance sampling by a certified sampling professional and requires the renovation firm to clean the work area until it passes clearance. e. State, Territorial, and Tribal programs. This final rule also contains provisions for interested States, Territories, and Tribes to apply for and receive authorization to administer their own renovation, repair and painting programs in lieu of the proposed regulation. States, Territories and Tribes may choose to administer and enforce just the existing requirements of subpart E, the pre-renovation education elements, the training, certification, accreditation, work practice, and recordkeeping requirements of this final rule, or both. EPA will use the same process used for lead-based paint activities programs, along with proposed specific renovation program elements, to authorize State, Territorial, and Tribal programs. States, Territories, and Tribes seeking authority to administer and enforce renovation programs must obtain public input and then submit an application to EPA. Applications must contain a number of items, including a description of the State, Territorial, or Tribal program, copies of all applicable statutes, regulations, and standards, and a certification by the State Attorney General, Tribal Counsel, or an equivalent official, that the applicable legislation and regulations provide adequate legal authority to administer and enforce the program. The program description must demonstrate that the State, Territorial, or Tribal program is at least as protective as the Federal program and that it provides for adequate enforcement. To be eligible for authorization to administer and enforce renovation programs, State, Territorial, and Tribal renovation programs must contain certain minimum elements that are very similar to the minimum elements required for lead-based paint activities programs. In order to be authorized, State, Territorial, or Tribal programs must have procedures and requirements for the accreditation of training programs, the training of renovators, and the certification of renovators or renovation firms. At a minimum, the program requirements must include accredited training for renovators and procedures and requirements for re-certification. State, Territorial, and Tribal programs applying for authorization are also required to include work practice standards for renovations that ensure that renovations are conducted only by certified renovators or renovation firms and that renovations are conducted using work practices at least as protective as those of the Federal program. B. What is the Agency's Authority for Taking this Action? These training, certification and accreditation requirements; State, Territorial, and Tribal authorization provisions; and work practice standards are being promulgated under the authority of TSCA sections 402(c)(3), 404, 406, and 407, 15 U.S.C. 2682(c)(3), 2684, 2686, and 2687, and in a manner that is consistent with TSCA section 2(c), 15 U.S.C. 2601(c). III. Provisions of this Final Rule This unit describes the specific provisions of the final regulation and discusses the major comments received. A. Scope of the Final Rule EPA is amending the existing regulations at 40 CFR part 745, subpart E (the “Pre-Renovation Education Rule”), that implement TSCA section 406(b) to add training and certification requirements, as well as work practice standards, for certain renovation, repair, and painting projects performed for compensation in target housing and in child-occupied facilities. 1. Buildings covered —a. Target housing . The requirements of this final rule apply to renovations performed for compensation within and on the exteriors of target housing units, including renovations performed for compensation in common areas, such as hallways, stairways, and laundry and recreational rooms, in multi-unit target housing. The term “target housing” is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. Several commenters were concerned about the exclusion of 0-bedroom dwellings from the definition of “target housing.” These commenters noted that this effectively excludes a significant subset of housing where children live, particularly studio or efficiency apartments and certain low-income housing such as single-room occupancy hotels. One commenter stated that, in his city, at least 400 families with more than 700 children live in single-room occupancy hotels, and these hotels constitute some of oldest housing in their city. Other commenters were concerned about the exclusion of housing for the elderly (or persons with disabilities) unless any child under age 6 resides or is expected to reside in such housing. These commenters suggested that EPA not exempt such housing because children may be present for a substantial amount of time. One commenter noted that, because some children spend 40 or more hours per week at their grandparents' home, eliminating housing for the elderly from the rule would place an inordinate number of young children at risk. Another commenter observed that unless the building is reserved for elderly residents only, the likelihood of children living in a multi-unit building and being exposed to lead hazards in common areas is high. EPA understands and shares the concerns of these commenters. However, these exclusions were established by Congress in Title X. The exclusions and limitations in the exclusions appear consistent with a focus on housing where children under age 6 reside. Nonetheless, EPA does wish to point out that this regulation and other existing TSCA regulations cover activities in common areas that are accessible to residents of target housing units. Thus, renovations in common areas in a building built before 1978 that contains both housing units reserved for the elderly and regular housing units would be covered by this rule. In addition, as described more fully in Unit III.G. of this preamble, States, Territories and Tribes may choose to develop and implement their own lead renovation, repair, and painting programs. Such programs may be more stringent than this Federal regulation and could, therefore, cover 0-bedroom dwellings or housing for the elderly. Finally, one commenter questioned the existing definition of “multi-family housing” in 40 CFR 745.83, which defines the term as a “housing property consisting of more than four dwelling units.” The commenter referred to the definition of “multi-family dwelling” in 40 CFR 745.223 which does not limit the term to a specific number of units, and questioned why smaller multi-family housing such as duplexes should not be included in the definition in 40 CFR 745.83. This commenter and others contended that it is important to cover common areas, including building exteriors, in all multi-unit target housing. In response to these commenters, EPA is deleting the definition of “multi-family housing” from 40 CFR 745.83 because the term is not used in this final rule. This final rule covers renovations in common areas, including building exteriors, of multi-unit buildings regardless of the number of units contained in the building. In addition, the deletion of this definition will also make it clear that the existing Pre-Renovation Education Rule provisions also apply to the same renovations covered by this final rule. b. Child-occupied facilities . The certification, training, recordkeeping, and work practice standards of this final rule also apply to renovations for compensation in child-occupied facilities. As discussed in the preamble to the 2007 Supplemental Proposal, numerous commenters on the 2006 Proposal requested that EPA cover child-occupied facilities under this regulation and suggested that EPA use the existing definition of “child-occupied facility” in 40 CFR 745.223. In response, the 2007 Supplemental Proposal included a definition of “child-occupied facility” that was based upon the existing definition, with modifications to make it consistent with the provisions of the 2006 Proposal. EPA also proposed to modify the definition to clarify, for child-occupied facilities located in public or commercial buildings, which portions of the building would be considered part of the child-occupied facility for purposes of this rulemaking. EPA received several comments suggesting modifications to the proposed definition, but (with the exception of one small clarification) EPA is retaining the proposed definition for the reasons discussed below. The final rule's definition of “child-occupied facility” is as follows: “Child-occupied facility” means a building, or portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least 2 different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may include, but are not limited to, day care centers, preschools and kindergarten classrooms. Child-occupied facilities may be located in target housing or in public or commercial buildings. With respect to common areas in public or commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only those common areas that are routinely used by children under age 6, such as restrooms and cafeterias. Common areas that children under age 6 only pass through, such as hallways, stairways, and garages are not included. In addition, with respect to exteriors of public or commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only the exterior sides of the building that are immediately adjacent to the child-occupied facility or the common areas routinely used by children under age 6. EPA added the introductory clauses “with respect to common areas” and “with respect to exteriors of” to the sentences describing the applicability of the rule to common areas and exteriors of public or commercial buildings because EPA was concerned that people would be confused about the area defined by the term “child-occupied facility” in those situations. Most of the commenters on the 2007 Supplemental Proposal expressed support for including child-occupied facilities within the universe of buildings covered by this rulemaking. Several commenters requested that EPA provide a more clear definition of public buildings that contain child-occupied facilities or additional examples of such facilities. However, EPA is not aware of additional examples that could be included in the definition to make the applicability of this rule clearer. One commenter believed that a definition based upon the amount of time a child spends at a facility would be unworkable. EPA disagrees with the comment that a time-based definition of child-occupied facility is unworkable. A time-based definition has been a part of the Lead-based Paint Activities Program under TSCA section 402(a) for more than 10 years and EPA is not aware of any significant implementation difficulties. As initially proposed in 1994, the Lead-based Paint Activities Regulations under TSCA section 402(a) would have contained one set of requirements for the training and certification of contractors and the accreditation of training programs, as well as specific work practice standards that would have applied to lead-based paint activities conducted in target housing and public buildings (Ref. 23). A different set of requirements would have applied to lead-based paint activities conducted in commercial buildings and on bridges and other structures. The 1994 proposal would have defined public buildings to include all buildings generally open to the public or occupied or visited by children, such as stores, museums, airports, offices, restaurants, hospitals, and government buildings, as well as schools and day care centers. During the comment period, a significant majority of commenters expressed the concern that applying these regulations to activities in all of the buildings that EPA would consider public would result in significant costs without a comparable reduction in lead-based paint exposures for children under age 6, the population most vulnerable to lead exposures. Many of these commenters recommended that EPA focus its attention on buildings that are frequented by children, rather than on buildings that may be briefly visited by children. In response to these comments, EPA established, in the final rule, a subset of the buildings EPA had intended to define as public. This subset, called “child-occupied facilities,” was delineated in terms of the frequency and duration of visits by children (Ref. 4). These primarily consist of public buildings where young children receive care or instruction on a regular basis, such as child care centers and kindergarten classrooms. The Agency's decision to define child-occupied facilities as a sub-category of public buildings was based on one of the key objectives of the Lead-based Paint Activities Regulations, which was to prevent lead exposures among young children. The Agency reasoned that children face an equal, if not greater, risk from lead-based paint hazards in schools and day care centers as they do at home. Indeed, EPA was concerned that children could spend more time in a particular classroom or day care room in a given day or week than they might spend in a single room in their homes. With respect to the type of building covered, this regulation will operate in much the same way as the Lead-based Paint Activities Regulations. In most cases, office buildings without child care facilities, museums, stores, airports, and restaurants will not be covered by this rule. Although there may be large numbers of children present at any given time in these kinds of buildings, individual children are not likely to be there often enough and long enough to qualify the building as a child-occupied facility. Some commenters appeared to be confused about whether the definition of “child-occupied facility” covers housing where informal or unpaid care is provided, such as the homes of relatives and neighbors. Whether or not a building is a child-occupied facility does not depend upon whether the owner or operator of the child-occupied facility is somehow compensated for the child's presence. Indeed, the first sentence of the definition makes this clear in stating that a child-occupied facility is a “building, or portion of a building, constructed prior to 1978, visited regularly by the same child . . .” The word “visited” is very broad, it includes visits to a relative's house or a neighbor's house as well as visits to a child-care facility or school. Except in owner-occupied target housing, as discussed below, the firm performing the renovation is responsible for determining whether a building is a child-occupied facility. This can be accomplished in any number of ways. A stand-alone child care center is likely to have a name that suggests that it provides child care, and the center's status as a child-occupied facility should be obvious upon entering the center. Child care centers in office buildings are likely to have informational signs posted and the centers are likely to be identified in the building directory. Elementary schools are likely to have kindergarten classrooms. The renovation firm should inquire about the presence of a child-occupied facility when contracting to perform renovation services in a public or commercial building. However, a statement by the building owner or manager that there is no child-occupied facility in the building may not be relied upon in the face of evidence to the contrary. Several commenters felt that EPA had inappropriately limited the space encompassed by a child-occupied facility in a public or commercial building. These commenters thought that EPA should follow the approach used for common areas in multi-family housing. Under this approach, the rule would cover renovations for compensation in all areas normally accessible to the children using the child-occupied facility. However, children under age 6 are likely to spend less time in the hallways and stairways of public or commercial buildings than they do in common areas in the buildings where they live. It is also likely that children under age 6 walking to and from a child care center in an office building, or to and from a classroom in a school building, will be closely supervised and will not be permitted to walk through active renovation work sites. Although some exposure is possible in these areas, they are more akin to general public and commercial buildings that children may enter but where they are not expected to spend significant amounts of time than to the exposures associated with child-occupied facilities, and EPA's hazard standards are applicable to residents and residential-type settings. In addition, EPA is concerned that application of this final rule to all common areas of public or commercial buildings that may house a child-occupied facility in a small portion of the building would likely result in minimal benefit to the children at a potentially large cost. c. Other public or commercial buildings . A number of commenters noted that TSCA section 402(c)(3) directs EPA to address renovation or remodeling activities that create lead-based paint hazards not only in target housing, but also in public buildings constructed before 1978, and commercial buildings. Most of these commenters, commenting on the 2006 Proposal, expressed the greatest concern over EPA's failure to address buildings where young children spend significant amounts of time, or child-occupied facilities. However, a handful of commenters argued that EPA also needed to address other public and commercial buildings under the renovation, repair, and painting program. TSCA section 402(c)(3) provides authority for EPA to regulate renovation or remodeling activities that create lead-based paint hazards. EPA has, by regulation under TSCA section 403, identified lead-based paint hazards for purposes of Title IV. These hazard standards were developed by evaluating exposure patterns and hazard information for young children and taking into account costs and benefits. They are only applicable in target housing and child-occupied facilities, places where young children are likely to be present for significant periods of time. Although EPA realizes that lead exposure for older children and adults can result in adverse health effects, effects which are discussed in chapter 5 of the Final Economic Analysis for the Lead Renovation, Repair, and Painting Program (“Final Economic Analysis”) (Ref. 24), EPA has not evaluated the exposure and hazard information for these groups in the same way that it has for young children. EPA has not evaluated the potential adverse health effects and associated them with a specific level of surface dust that will result in a blood lead level in an older child or an adult that is likely to cause a particular adverse effect. Nor has EPA evaluated the potential health effects to young children from the less frequent exposures that might arise in public and commercial buildings that are not child-occupied facilities. At this time, EPA does not have sufficient information with which to conclude that renovation and remodeling activities in buildings not frequented by young children, e.g., public or commercial buildings that are not child-occupied facilities, create lead-based paint hazards because EPA's TSCA section 403 hazard standards only apply to target housing and child-occupied facilities. EPA has no hazard standards to apply in other situations. Thus, this rule, like the Lead-based Paint Activities Regulations, only applies in target housing and child-occupied facilities. 2. Activities covered —a. Renovations for compensation. This rule, like the Pre-Renovation Education Rule, only applies to persons who perform renovations for compensation. As discussed in the preamble to the 2007 Supplemental Proposal, for the purposes of this regulation, compensation includes pay for work performed, such as that paid to contractors and subcontractors; wages, such as those paid to employees of contractors, building owners, property management companies, child-occupied facility operators, State and local government agencies, and non-profits; and rent for target housing or public or commercial building space. Although the owner of rental property may not be compensated for maintenance and repair work at the time that the work is performed, tenants generally pay rent for the right to occupy rental space as well as for maintenance services in that space. Thus, renovations performed by renovation contractors and their employees in target housing or child-occupied facilities are covered, as are renovations by owners of rental target housing or child-occupied facilities, if the child-occupied facility leases space. Renovations in target housing or in child-occupied facilities are covered if they are performed by employees of the renovation [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%3AE8-8141. Public record. Not legal advice.