[Federal Register: May 6, 2010 (Volume 75, Number 87)]
[Proposed Rules]
[Page 25037-25073]
[DOCID:fr06my10-21]

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Part II

Environmental Protection Agency

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40 CFR Part 745

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2005-0049; FRL-8823-5]
RIN 2070-AJ57

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing several revisions to the 2008 Lead
Renovation, Repair, and Painting Program (RRP) rule that established
accreditation, training, certification, and recordkeeping requirements
as well as work practice standards for persons performing renovations
for compensation in most pre-1978 housing and child-occupied
facilities. EPA is particularly concerned about dust-lead hazards
generated by renovations because of the well-documented toxicity of
lead, especially to younger children. This proposal includes additional
requirements designed to ensure that lead-based paint hazards generated
by renovation work are adequately cleaned after renovation work is
finished and before the work areas are re-occupied. Specifically, EPA
is proposing to require dust wipe testing after many renovations
covered by the RRP rule. For a subset of jobs involving demolition or
removal of plaster through destructive means or the disturbance of
paint using machines designed to remove paint through high-speed
operation, such as power sanders or abrasive blasters, this proposal
would also require the renovation firm to demonstrate, through dust
wipe testing, that dust-lead levels remaining in the work area are
below regulatory levels.

DATES: Comments must be received on or before July 6, 2010.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2005-0049, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC.
Attention: Docket ID Number EPA-HQ-OPPT-2005-0049. The DCO is open from
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the DCO is<PHONE_NUMBER>. Such deliveries are
only accepted during the DCO's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2005-0049. EPA's policy is that all comments received will be included
in the docket without change and may be made available online at http:/
/www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through regulations.gov or e-mail. The
regulations.gov Web site is an ``anonymous access'' system, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through regulations.gov, your e-mail
address will be automatically captured and included as part of the
comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index
available at http://www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available
electronically at http://www.regulations.gov, or, if only available in
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number of the EPA/DC Public Reading Room
is<PHONE_NUMBER>, 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:<PHONE_NUMBER>; e-mail address: TSCA-
<EMAIL_ADDRESS>    For technical information contact: Cindy Wheeler, National Program
Chemicals Division, Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you perform
renovations of target housing or child-occupied facilities for
compensation, dust sampling, or dust testing. You may also be affected
by this action if you perform lead-based paint inspections, lead hazard
screens, risk assessments or abatements in target housing or child-
occupied facilities or if you operate a training program for
individuals who perform any of these activities. ``Target housing'' is
defined in section 401 of TSCA as any housing constructed prior to
1978, except housing for the elderly or persons with disabilities
(unless any child under age 6 resides or is expected to reside in such
housing) or any 0-bedroom dwelling. Under this rule, a child-occupied
facility is a building, or a portion of a building, constructed prior
to 1978, visited regularly by the same child, under 6 years of age, on
at least 2 different days within any week (Sunday through Saturday
period), provided that each day's visit lasts at least 3 hours and the
combined weekly visits last at least 6 hours, and the combined annual
visits last at least 60 hours. Potentially-affected entities may
include, but are not limited to:
     Building construction (NAICS code 236), e.g., single
family housing

construction, multi-family housing construction, residential
remodelers.
     Specialty trade contractors (NAICS code 238), e.g.,
plumbing, heating, and air-conditioning contractors, painting and wall
covering contractors, electrical contractors, finish carpentry
contractors, drywall and insulation contractors, siding contractors,
tile and terrazzo contractors, glass and glazing contractors.
     Real estate (NAICS code 531), e.g., lessors of residential
buildings and dwellings, residential property managers.
     Child day care services (NAICS code 624410).
     Elementary and secondary schools (NAICS code 611110),
e.g., elementary schools with kindergarten classrooms.
     Other technical and trade schools (NAICS code 611519),
e.g., training providers.
     Engineering services (NAICS code 541330) and building
inspection services (NAICS code 541350), e.g., dust sampling
technicians.
     Lead abatement professionals (NAICS code 562910), e.g.,
firms and supervisors engaged in lead-based paint activities.
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. If you have any
questions regarding the applicability of this action to a particular
entity, consult the technical person listed under FOR FURTHER
INFORMATION CONTACT.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and
then identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments,
remember to:
    i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period
deadline identified.

II. Introduction

A. What action is the agency taking?

    EPA is proposing several revisions to the 2008 Lead Renovation,
Repair, and Painting Program (RRP) rule (Ref. 1) that established
accreditation, training, certification, and recordkeeping requirements
as well as work practice standards for persons performing renovations
for compensation in most pre-1978 housing and child-occupied
facilities. EPA is particularly concerned about dust-lead hazards
generated by renovations because of the well-documented toxicity of
lead, especially to younger children. This proposal includes additional
requirements designed to ensure that lead-based paint hazards generated
by renovation work are adequately cleaned after renovation work is
finished and before the areas are re-occupied. Specifically, EPA is
proposing to require dust wipe testing after many renovations covered
by the RRP rule. For a subset of jobs involving demolition or removal
of plaster through destructive means or the disturbance of paint using
machines designed to remove paint through high-speed operation, such as
power sanders or abrasive blasters, this proposal would also require
the renovation firm to demonstrate, through dust wipe testing, that
dust-lead levels remaining in the work area are below regulatory
levels. EPA is not, however, reopening other aspects of the work
practices required by the 2008 RRP rule.
    EPA is also proposing various minor amendments to the regulations
concerning applications for training provider accreditation, amending
accreditations, course completion certificates, record keeping, State
and Tribal program requirements, and grandfathering (i.e., taking a
refresher training in lieu of the initial training). In addition, the
proposed amendments intend to clarify that certain requirements apply
to the RRP rule as well as the Lead-Based Paint Activities (abatement)
regulations, that the prohibitions and restrictions on work practices
in the RRP rule apply to the disturbance of any painted surface, that
certified renovators need only provide on-the-job training to other
renovation workers in the work practices required by the rule, that a
certified inspector or risk assessor can act as a dust sampling
technician, which hands-on training topics are required for renovator
and dust sampling technician courses, and requirements for States and
Tribes that apply to become authorized to implement the RRP program.
Again, EPA is not reopening for consideration any aspects of the
existing regulations, except as provided in today's proposal.

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

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

C. Background

    1. Health effects of lead exposure. This Unit describes some of the
more significant health effects of lead exposure and the routes of
exposure associated with lead in paint. Much more information is
available in the preamble to the 2008 Lead Renovation, Repair, and
Painting (RRP) Rule (Ref. 1) and the Air Quality Criteria for Lead
document (Ref. 2).
    Lead has been known throughout the ages for its useful properties,
having been commonly used in the production of paint, batteries, pipes,
solder, pottery, and gasoline. Lead is also known for its ``broad array
of deleterious effects on multiple organ systems via widely diverse
mechanisms of action.'' (Ref. 2) This array of health effects includes
heme biosynthesis and related

functions; neurological development and function; reproduction and
physical development; kidney function; cardiovascular function; and
immune function. There is also some evidence of lead carcinogenicity,
primarily from animal studies, together with limited human evidence of
suggestive associations.
    Of particular interest to EPA during the RRP rulemaking was the
delineation of lowest observed effect levels for those lead-induced
effects that are most clearly associated with blood lead levels of less
than 10 micrograms per deciliter ([mu]g/dL) in children and adults
(Ref. 2, at 8-60). As is evident from the Criteria Document, neurotoxic
effects in children and cardiovascular effects in adults are among
those best substantiated as occurring at blood-lead concentrations as
low as 5 to 10 [mu]g/dL (or possibly lower), so these categories of
effects would result in the greatest public health concern. Other newly
demonstrated immune and renal system effects among general population
groups are also emerging as low-level lead-exposure effects of
potential public health concern (Ref. 2, at 8-60).
    Among the wide variety of health endpoints associated with lead
exposures, there is general consensus that the developing nervous
system in children is among the, if not the, most sensitive. While
blood lead levels in U.S. children have decreased notably since the
late 1970s, newer studies have investigated and reported associations
of effects on the neurodevelopment of children with these more recent
blood lead levels (Ref. 2, chapter 6). Functional manifestations of
lead neurotoxicity during childhood include sensory, motor, cognitive,
and behavioral impacts. Numerous epidemiological studies have reported
neurocognitive, neurobehavioral, sensory, and motor function effects in
children with blood lead levels below 10 [mu]g/dL (Ref. 2, sections 6.2
and 8.4. [FN 7. Further, neurological effects in general include
behavioral effects, such as delinquent behavior (Ref. 2, sections 6.2.6
and <IP_ADDRESS>), sensory effects, such as those related to hearing and
vision (Ref. 2, sections 6.2.7 and <IP_ADDRESS>), and deficits in neuromotor
function (Ref. 2, p. 8-36).] As discussed in the Criteria Document,
``extensive experimental laboratory animal evidence has been generated
that (a) substantiates well the plausibility of the epidemiologic
findings observed in human children and adults and (b) expands our
understanding of likely mechanisms underlying the neurotoxic effects''
(Ref. 2, p. 8-25; section 5.3).
    Cognitive effects associated with lead exposures that have been
observed in epidemiological studies have included decrements in
intelligence test results, such as the widely used IQ score, and in
academic achievement as assessed by various standardized tests as well
as by class ranking and graduation rates (Ref. 2, section 6.2.16 and
pp. 8-29 to 8-30). As noted in the Criteria Document with regard to the
latter, ``Associations between lead exposure and academic achievement
observed in the above-noted studies were significant even after
adjusting for IQ, suggesting that lead-sensitive neuropsychological
processing and learning factors not reflected by global intelligence
indices might contribute to reduced performance on academic tasks''
(Ref. 2, pp. 8-29 to 8- 30).
    With regard to potential implications of lead effects on IQ, the
Criteria Document recognizes the ``critical'' distinction between
population and individual risk, identifying issues regarding declines
in IQ for an individual and for the population. The Criteria Document
further states that a ``point estimate indicating a modest mean change
on a health index at the individual level can have substantial
implications at the population level'' (Ref. 2, p. 8-77). [FN 8. As an
example, the Criteria Document states, ``although an increase of a few
mm Hg in blood pressure might not be of concern for an individual's
well-being, the same increase in the population mean might be
associated with substantial increases in the percentages of individuals
with values that are sufficiently extreme that they exceed the criteria
used to diagnose hypertension'' (Ref. 2, p. 8-77).] A downward shift in
the mean IQ value is associated with both substantial decreases in
percentages achieving very high scores and substantial increases in the
percentage of individuals achieving very low scores (Ref. 2, p. 8-81).
[FN 9. For example, for a population mean IQ of 100 (and standard
deviation of 15), 2.3% of the population would score above 130, but a
shift of the population to a mean of 95 results in only 0.99% of the
population scoring above 130 (Ref. 2, pp. 8-81 to 8-82).] For an
individual functioning in the low IQ range due to the influence of
developmental risk factors other than lead, a lead-associated IQ
decline of several points might be sufficient to drop that individual
into the range associated with increased risk of educational,
vocational, and social failure (Ref. 2, p. 8-77).
    Other cognitive effects observed in studies of children have
included effects on attention, executive functions, language, memory,
learning, and visuospatial processing (Ref. 2, sections 5.3.5, 6.2.5,
and <IP_ADDRESS>), with attention and executive function effects associated
with lead exposures indexed by blood lead levels below 10 [mu]g/dL
(Ref. 2, section 6.2.5 and pp. 8-30 to 8-31). The evidence for the role
of lead in this suite of effects includes experimental animal findings
(Ref. 2, section <IP_ADDRESS>; p. 8-31), which provide strong biological
plausibility of lead effects on learning ability, memory and attention
(Ref. 2, section 5.3.5), as well as associated mechanistic findings.
    The persistence of such lead-induced effects is described in the
proposal and the Criteria Document (e.g., Ref. 2, sections 5.3.5,
6.2.11, and 8.5.2). The persistence or irreversibility of such effects
can be the result of damage occurring without adequate repair offsets
or of the persistence of lead in the body (Ref. 2, section 8.5.2). It
is additionally important to note that there may be long-term
consequences of such deficits over a lifetime. Poor academic skills and
achievement can have ``enduring and important effects on objective
parameters of success in real life,'' as well as increased risk of
antisocial and delinquent behavior (Ref. 2, section 6.2.16).
    Multiple epidemiologic studies of lead and child development have
demonstrated inverse associations between blood lead concentrations and
children's IQ and other cognitive-related outcomes at successively
lower lead exposure levels over the past 30 years (Ref. 2, section
6.2.13). For example, the overall weight of the available evidence,
described in the Criteria Document, provides clear substantiation of
neurocognitive decrements being associated in children with mean blood
lead levels in the range of 5 to 10 [mu]g/dL, and some analyses
indicate lead effects on intellectual attainment of children for which
population mean blood lead levels in the analysis ranged from 2 to 8
[mu]g/dL (Ref. 2, sections 6.2, 8.4.2, and <IP_ADDRESS>). Thus, while blood
lead levels in U.S. children have decreased notably since the late
1970s, newer studies have investigated and reported associations of
effects on the neurodevelopment of children with blood lead levels
similar to the more recent, lower blood lead levels (Ref. 2, chapter
6).
    Paint that contains lead can pose a health threat through various
routes of exposure. House dust is the most common exposure pathway
through which children are exposed to lead-based paint hazards. Dust
created during normal lead-based paint wear (especially around windows
and doors)

can create an invisible film over surfaces in a house. Children,
particularly younger children, are at risk for high exposures of lead-
based paint dust via hand-to-mouth exposure, and may also ingest lead-
based paint chips from flaking paint on walls, windows, and doors. Lead
from exterior house paint can flake off or leach into the soil around
the outside of a home, contaminating children's play areas. Cleaning
and renovation activities may actually increase the threat of lead-
based paint exposure by dispersing lead dust particles in the air and
over accessible household surfaces. In turn, depending on the levels of
lead in the dust, both adults and children can receive hazardous
exposures by inhaling the dust or by ingesting lead-based paint dust
during hand-to-mouth activities.
    EPA's Wisconsin Childhood Blood-Lead Study, described more fully in
Unit III.C.1.c. of the preamble to the 2006 Proposal, provides ample
evidence of a link between renovation activities and elevated blood
lead levels in resident children (Ref. 3). This peer-reviewed study
concluded that general residential renovation and remodeling is
associated with an increased risk of elevated blood lead levels in
children and that specific renovation and remodeling activities are
also associated with an increase in the risk of elevated blood lead
levels in children. In particular, removing paint (using open flame
torches, using heat guns, using chemical paint removers, and wet
scraping/sanding) and preparing surfaces by sanding or scraping
significantly increased the risk of elevated blood lead levels.
    Three studies from New York support the findings of the Wisconsin
Childhood Blood-Lead Study. In 1995, the New York State Department of
Health assessed lead exposure among children resulting from home
renovation and remodeling in 1993-1994. A review of the health
department records of children with blood lead levels equal to or
greater than 20 [mu]g/dL identified 320, or 6.9%, with elevated blood
lead levels that were attributable to renovation and remodeling (Ref.
4). An update to that study with data from environmental investigations
conducted during 2006-2007 in New York State (excluding New York City)
identified renovation, repair, and painting activities as the probable
source of lead exposure in 14% of 972 children with blood lead levels
equal to or exceeding 20 [mu]g/dL (Ref. 5). The authors concluded that
children living in housing undergoing renovation, repair, and painting
that was built before 1978, and particularly before 1950, when
concentrations of lead in paint were higher, are at high risk for
elevated blood lead levels. The final study was a case-control study
that assessed the association between elevated blood lead levels in
children younger than 5 years and renovation or repair activities in
homes in New York City (Ref. 6). EPA notes that the authors show that
when dust and debris was reported (by respondents via telephone
interviews) to be ``everywhere'' following a renovation, the blood lead
levels were significantly higher than children at homes that did not
report remodeling work. On the other hand, when the respondent reported
either ``no visible dust and debris'' or that ``dust and debris was
limited to the work area,'' there was no statistically significant
effect on blood lead levels relative to homes that did not report
remodeling work. Although the study found only a weak and
nonsignificant link between a report of any renovation activity and the
likelihood that a resident child had an elevated blood-lead level, the
link to the likelihood of an elevated blood-lead level was
statistically significant for surface preparation by sanding and for
renovation work that spreads dust and debris beyond the work area. The
researchers noted the consistency of their results with EPA's Wisconsin
Childhood Blood-Lead Study (Ref. 6, at 509).
    Children in minority populations and children whose families are
poor have an increased risk of exposure to harmful lead levels (Ref. 7,
at e376). Analysis of the National Health and Nutrition Examination
Surveys (NHANES) data from 1988 through 2004 shows that the prevalence
of blood lead levels equal to or exceeding 10 [mu]g/dL in children aged
1 to 5 years has decreased from 8.6% in 1988-1991 to 1.4% in 1999-2004,
which is an 84% decline (Ref. 7, at e377). However, the NHANES data
from 1999-2004 indicates that non-Hispanic black children aged 1 to 5
years had higher percentages of blood lead levels equal to or exceeding
10 [mu]g/dL (3.4%) than white children in the same age group (1.2%)
(Ref. 7). In addition, among children aged 1 to 5 years over the same
period, the geometric mean blood lead level was significantly higher
for non-Hispanic blacks (2.8 [mu]g/dL), compared with Mexican Americans
(1.9 [mu]g/dL) and non-Hispanic whites (1.7 [mu]g/dL) (Ref. 7, at
e377). For children aged 1 to 5 years from families with low income,
the geometric mean blood lead level was 2.4 [mu]g/dL (Ref. 7, at e377).
Further, the incidences of blood-lead levels greater than 10 [mu]g/dL
and greater than or equal to 5 [mu]g/dL were higher for non-Hspanic
blacks (14% and 3.4% respectively) than for Mexican Americans (4.7% and
1.2%, respectively) and non-Hispanic whites (4.4% and 1.2%,
respectively). (Ref. 7, at e377). The analysis ``indicates that
residence in older housing, poverty, age, and being non-Hispanic black
are still major risk factors for higher lead levels'' (Ref. 7, at
e376).
    2. Prior EPA rulemakings under TSCA Sections 402(a) and 403. TSCA
section 402(a) directs EPA to promulgate regulations covering lead-
based paint activities, such as abatement, to ensure persons performing
these activities are properly trained, that training programs are
accredited, and that contractors performing these activities are
certified. These regulations must contain standards for performing
lead-based paint activities, taking into account reliability,
effectiveness, and safety. On August 29, 1996, EPA promulgated final
regulations under TSCA section 402(a) that govern lead-based paint
inspections, lead hazard screens, risk assessments, and abatements in
target housing and child-occupied facilities (also referred to as the
Lead-based Paint Activities Regulations) (Ref. 8). These regulations,
codified at 40 CFR part 745, subpart L, contain an accreditation
program for training providers and training and certification
requirements for lead-based paint inspectors, risk assessors, project
designers, abatement supervisors, and abatement workers. Work practice
standards for lead-based paint activities are included. Pursuant to
TSCA section 404, provision was made for interested States,
Territories, and Indian Tribes to apply for and receive authorization
to administer their own lead-based paint activities programs. The
regulations applicable to State, Territorial, and Tribal programs are
codified at 40 CFR part 745, subpart Q.
    The work practice standards for abatements in the Lead-based Paint
Activities Regulations are essentially performance standards. They give
a trained and certified abatement contractor some discretion in
determining how best to ensure that an abatement is performed safely,
so long as the contractor can demonstrate that the abatement has been
properly completed and that no lead-based paint hazards remain. Certain
high dust generating practices are prohibited and contractors are
required to prepare occupant protection plans specifically describing
the procedures to be followed on each job to protect occupants from
exposures to lead-based paint hazards. In most cases, residents
relocate until the abatement has been

completed. Although these additional procedures are not specified in
the regulations, abatement supervisor and worker courses provide
comprehensive training in the specialized techniques these individuals
can use to contain work areas, remove, enclose, or encapsulate lead-
based paint and lead-based paint hazards, and clean up after the job is
finished. The regulations are much more detailed in describing the
procedures that must be followed to ensure that the abatement has been
properly completed and that the work area is ready for re-occupancy.
These procedures, typically referred to as ``clearance,'' must be
performed by a certified inspector or risk assessor. First, a visual
inspection must be performed to determine whether deteriorated painted
surfaces or visible amounts of dust, debris, or residue are still
present. If so, these conditions must be eliminated before the
clearance procedures may continue. An exterior abatement project is
considered complete after a successful visual inspection. Following a
successful visual inspection after an interior abatement project, the
inspector or risk assessor must collect dust wipe samples from floors,
windowsills, and window troughs in the work area and have them analyzed
by a laboratory accredited under the National Lead Laboratory
Accreditation Program (NLLAP) for dust lead analysis. After the
sampling results are received, the inspector or risk assessor must
compare them with the established clearance standards for lead in dust.
If all of the samples are below the clearance standards, the abatement
is complete and the area may be re-occupied. If any samples are above
the standards, the components represented by those samples must be re-
cleaned and the clearance process must be repeated until all samples
are below the clearance standards. For example, if any interior window
sills fail clearance, all of the unsampled window sills, as well as the
failed window sills, must be recleaned and retested. If the abatement
was conducted in multiple dwelling units, and units were selected for
random testing, the window sills in the unsampled units would also have
to be recleaned and retested.
    TSCA section 403 directs EPA to promulgate regulations that
identify, for the purposes of Title X and Title IV of TSCA, dangerous
levels of lead in paint, dust, and soil. These regulations were
promulgated on January 5, 2001 and codified at 40 CFR part 745, subpart
D (Ref. 9). These hazard standards define lead-based paint hazards in
target housing and child-occupied facilities as paint-lead, dust-lead,
and soil-lead hazards. A paint-lead hazard is defined as any damaged or
deteriorated lead-based paint, any chewable lead-based painted surface
with evidence of teeth marks, or any lead-based paint on a friction
surface if lead dust levels underneath the friction surface exceed the
dust-lead hazard standards. A dust-lead hazard is surface dust that
contains a mass-per-area concentration of lead equal to or exceeding 40
micrograms per square foot ([mu]g/ft\2\) on floors or 250 [mu]g/ft\2\
on interior windowsills based on wipe samples. A soil-lead hazard is
bare soil that contains total lead equal to or exceeding 400 parts per
million (ppm), equivalent to 400 micrograms per gram ([mu]g/g), in a
play area or average of 1,200 ppm of bare soil in the rest of the yard
based on soil samples.
    The TSCA section 403 rulemaking also amended the Lead-based Paint
Activities Regulations to incorporate new dust-lead clearance standards
for abatements. These standards are 40 [mu]g/ft\2\ on floors, 250
[mu]g/ft\2\ on interior windowsills, and 400 [mu]g/ft\2\ on window
troughs, based on wipe samples.
    On August 10, 2009, EPA received a petition requesting that EPA
lower the regulatory dust-lead hazard standard and modify the
regulatory definition of lead-based paint. After careful consideration,
EPA decided to grant the request and accordingly intends to begin the
appropriate proceedings. Although EPA granted the request, the Agency
did not commit to either a specific rulemaking outcome or a certain
date for promulgation of a final rule. EPA's primary reason for
granting the request was based on recent epidemiological studies that
indicate the current hazard standards are insufficiently protective.
The request was granted under section 553(e) of the Administrative
Procedures Act (APA). Additionally, because the Secretary of the
Department of Housing and Urban Development (HUD) was given the
statutory authority to establish a lower level of lead in paint for
purposes of the definition of lead-based paint in target housing, EPA
plans to work with HUD on this aspect of the request.
    3. The 2008 Renovation, Repair, and Painting Rule. TSCA section
402(c) addresses renovation and remodeling. Specifically, TSCA section
402(c)(2) directs EPA to study the extent to which persons engaged in
various types of renovation and remodeling activities are exposed to
lead during such activities or create a lead-based paint hazard
regularly or occasionally. EPA conducted this study in four phases.
Phase I, the Environmental Field Sampling Study (EFSS) (Ref. 10),
evaluated the amount of leaded dust released by the following
activities:
     Paint removal by abrasive sanding.
     Removal of large structures, including demolition of
interior plaster walls.
     Window replacement.
     Carpet removal.
     HVAC repair or replacement, including duct work.
     Repairs resulting in isolated small surface disruptions,
including drilling and sawing into wood and plaster.

Phase II, the Worker Characterization and Blood Lead Study (Ref. 11),
involved collecting data on blood lead and renovation and remodeling
activities from workers. Phase III, the Wisconsin Childhood Blood Lead
Study (Ref. 3), was a retrospective study focused on assessing the
relationship between renovation and remodeling activities and
children's blood-lead levels. Phase IV, the Worker Characterization and
Blood-Lead Study of R&R Workers Who Specialize in Renovations of Old or
Historic Homes (Ref. 12), was similar to Phase II, but focused on
individuals who worked primarily in old historic buildings. More
information on the results of these peer-reviewed studies can be found
in Unit III.C.1. of the preamble to the 2006 Lead; Renovation, Repair,
and Painting Program Proposed Rule (``2006 Proposal'') (Ref. 13).
    TSCA section 402(c)(3) further directs EPA to revise the Lead-based
Paint Activities Regulations to apply to renovation or remodeling
activities that create lead-based paint hazards. Accordingly, EPA
issued the 2006 Proposal, proposing to conclude that any renovation
activity that disturbs lead-based paint can create significant amounts
of leaded dust, that most activities created lead-based paint hazards,
and that some activities can be reasonably anticipated to create lead-
based paint hazards (Ref. 13). This proposed finding was largely based
on the results of the studies conducted under TSCA section 402(c)(2).
    After the 2006 Proposal was issued, EPA conducted a field study
(Characterization of Dust Lead Levels after Renovation, Repair, and
Painting Activities) (the ``Dust Study'') to better characterize dust
lead levels resulting from various renovation, repair, and painting
activities (Ref. 14). This study, completed in January, 2007, was
designed to compare environmental lead levels at appropriate stages
after various types of renovation, repair, and painting preparation
activities were performed on the interiors and exteriors of target
housing units and child-

occupied facilities. The renovation activities were conducted by local
professional renovation firms, using personnel who received lead safe
work practices training. The activities conducted represented a range
of activities that would have been permitted under the 2006 Proposal,
including work practices that are restricted or prohibited under the
final RRP rule. Of particular interest was the impact of using specific
work practices that renovation firms would be required to use under the
proposed rule, such as the use of plastic to contain the work area and
a multi-step cleaning protocol, as opposed to more typical work
practices.
    The final RRP rule was published in the Federal Register issue of
April 22, 2008 (Ref. 1). The final RRP rule, codified in 40 CFR part
745, subparts E, L, and Q, addresses lead-based paint hazards created
by renovation, repair, and painting activities that disturb painted
surfaces in target housing and child-occupied facilities. ``Target
housing'' is defined in TSCA section 401 as any housing constructed
before 1978, except housing for the elderly or persons with
disabilities (unless any child under age 6 resides or is expected to
reside in such housing) or any 0-bedroom dwelling. Under the final RRP
rule, a child-occupied facility is a building, or a portion of a
building, constructed prior to 1978, visited regularly by the same
child, under 6 years of age, on at least two different days within any
week (Sunday through Saturday period), provided that each day's visit
lasts at least 3 hours and the combined weekly visits last at least 6
hours, and the combined annual visits last at least 60 hours. Child-
occupied facilities may be located in public or commercial buildings or
in target housing.
    In the final RRP rule, EPA issued its determination that
renovation, repair, and painting activities that disturb lead-based
paint create lead-based paint hazards. This finding was based on
evidence from the TSCA section 402(c)(2) study and the Dust Study that
all such activities in the presence of lead-based paint create lead-
based paint hazards. Having made this finding, TSCA section 402(c)(3)
then directs EPA to revise the Lead-based Paint Activities regulations
to apply to such renovations. In the final RRP rule, EPA did not
interpret its statutory mandate to require application of the existing
TSCA section 402(a) regulations to renovations without change. EPA
stated its belief that Congress, by using the word ``revise,'' and
creating a separate subsection of the statute for renovation, intended
that EPA make revisions to those existing regulations to adapt them to
a different set of actions and a very different regulated community. As
discussed in the preamble to the final RRP rule, there are significant
differences between renovations and abatements (Ref. 1). For example,
performing abatement is a highly specialized skill that workers and
supervisors must learn in accredited training courses. However,
painters, plumbers and carpenters already know how to perform
renovation work, so accredited renovator training courses are designed
to teach renovators how to incorporate principles of lead safety into
their typical work. Accordingly, the rule did not merely expand the
scope of the current abatement requirements to cover renovation and
remodeling activities. Instead, EPA considered the elements of the
existing abatement regulations and revised them as necessary to craft a
rule that is practical for renovation, remodeling and painting
businesses and their customers, taking into account reliability,
effectiveness, and safety as directed by TSCA section 402(a).
    The final RRP rule establishes requirements for training
renovators, other renovation workers, and dust sampling technicians;
for certifying renovators, dust sampling technicians, and renovation
firms; for accrediting providers of renovation and dust sampling
technician training; for renovation work practices; and for
recordkeeping. Interested States, Territories, and Indian Tribes may
apply for and receive authorization to administer and enforce all of
the elements of these new renovation requirements.
    The final RRP rule created two new training disciplines in the
field of lead-based paint: renovator and dust sampling technician.
Persons who successfully complete renovator training from an accredited
renovation training provider are certified renovators. Certified
renovators are responsible for ensuring that renovations to which they
are assigned are performed in compliance with the work practice
requirements set out in 40 CFR 745.85. Persons who successfully
complete dust sampling technician training from an accredited training
provider are certified dust sampling technicians. Certified dust
sampling technicians may be called upon to collect dust wipe samples
after renovation activities have been completed. While the training
disciplines, the work practice standards, and the recordkeeping
requirements of the final RRP rule differ from those established in the
lead-based paint activities regulations, EPA determined that the
accreditation requirements imposed on persons providing lead-based
paint activities training would also be effective for persons providing
renovation training. Therefore, the final RRP rule amended 40 CFR
745.225 to cover persons who provide or wish to provide renovation
training for the purposes of the final RRP rule.
    As amended, 40 CFR 745.225 requires training providers who wish to
provide lead-based paint activities or renovation training for the
purposes of the EPA's lead-based paint programs to be accredited by
EPA. The requirements for each course of study are described in detail
at 40 CFR 745.225 as are the operational requirements for training
programs and the process for obtaining accreditation.
    Under the final RRP rule, covered renovations in target housing and
child-occupied facilities must be performed by certified renovation
firms. A certified firm must ensure that persons who perform
renovations on behalf of the firm are properly trained and that the
work practice requirements are followed. Renovations must be performed
or directed by certified renovators, who are also responsible for
compliance with the RRP rule's requirements. The final RRP rule
contains a number of work practice requirements that must be followed
for every covered renovation. These requirements pertain to warning
signs and work area containment, the restriction or prohibition of
certain practices (e.g., high heat gun, torch, power sanding, power
planing), waste handling, cleaning, and post-renovation cleaning
verification. In contrast, the RRP rule did not apply the same
performance standard of an abatement-style clearance requirement to
demonstrate that lead-based paint hazards created by the renovation
have been eliminated. Instead, the RRP rule sets forth the steps that
must be taken to isolate and contain the work area before work begins
and the cleaning protocol that must be followed after the renovation
has been completed.
    A final step in the process for interior renovations is cleaning
verification. After the RRP rule's specific cleaning protocol has been
followed, a visual inspection for visible dust and debris is performed.
If no dust or debris is found, a certified renovator must wipe the
interior windowsills and uncarpeted floors with wet disposable cleaning
cloths and compare each to a cleaning verification card developed and
distributed by EPA. If the cloth matches or is lighter than the image
on the card, the surface represented by the cloth has passed the post-
renovation cleaning

verification. If the cloth is darker than the image on the card, the
surface represented by the cloth must be re-cleaned and then wiped with
a new wet cloth, which is then compared to the cleaning verification
card. If the cloth is still darker than the image on the card, the
surface must be allowed to dry for at least an hour. At that time, the
surface is wiped with a dry electrostatic cleaning cloth, which
completes the cleaning verification process for that surface. When all
surfaces in the work area have completed cleaning verification, the
renovation has been completed and the work area may be re-occupied.
    Shortly after the final RRP rule was promulgated, several petitions
were filed challenging the rule. These petitions were consolidated in
the Circuit Court of Appeals for the District of Columbia Circuit. On
August 26, 2009, EPA signed an agreement with the environmental and
children's health advocacy groups in settlement of their petitions. In
this agreement EPA committed to propose several changes to the RRP
rule, including the changes discussed in this notice.
    Throughout this notice, EPA will use several different terms to
describe the proposed requirements. EPA will use the term ``dust wipe
testing'' to mean collecting wipe samples of dust on floors and
windowsills and in window troughs, analyzing the samples for lead
content, and reporting the results of the analysis to the owners and
occupants of the building being renovated. Although the term ``dust
wipe sampling'' was used in the settlement agreement to describe these
activities, EPA is using ``dust wipe testing'' in this notice to signal
that sample analysis may be performed off-site in a traditional
laboratory setting or on-site by a portable laboratory, so long as the
entity performing the analysis is accredited or recognized by the
National Lead Laboratory Accreditation Program (NLLAP). In this notice,
EPA will use the term ``dust wipe sampling'' to refer to the specific
activity of collecting the wipe samples, not to the analysis or
reporting of results. EPA will use the term ``clearance'' to mean
demonstrating, through dust wipe testing, that the floors, windowsills,
and window troughs in the renovation work area are below the regulatory
clearance standards that have been established for the abatement
program and codified at 40 CFR 745.227(e)(8). This includes re-cleaning
where necessary to achieve the clearance standards.

III. Provisions of This Proposal

A. Dust Wipe Testing and Clearance

    1. Background. One of the most significant issues arising out of
the RRP rulemaking was the issue of how to determine whether a
renovation had been properly completed. The Lead-based Paint Activities
Rule requires clearance to be achieved in an abatement work area before
the abatement is considered complete. As previously discussed, the
abatement clearance process involves a visual inspection, dust wipe
sampling of floors, windowsills, and window troughs in the work area,
analysis by an NLLAP-accredited laboratory, and comparison of the
results to the clearance standards. If the sample results are below the
clearance standards, clearance has been achieved and the work area may
be re-occupied. If the sample results are at or above the standards,
the work area must be re-cleaned and the clearance process must begin
again. For this reason, abatement projects often include coating floors
with a sealant. According to the U.S. Department of Housing and Urban
Development's ``Guidelines For the Evaluation and Control of Lead-Based
Paint Hazards in Housing'' (HUD Guidelines), the purpose of sealing
floors is not to trap leaded dust underneath the sealant, but to
provide a surface that can be cleaned effectively by the resident (Ref.
15). Although achieving clearance is not the main reason for sealing
floors, the process typically results in a surface than can achieve
clearance and be kept clean by the resident. This is a sensible
approach for abatements, because the goal of abatement is to
permanently eliminate lead-based paint and lead-based paint hazards.
The clearance process ensures that no lead-based paint or lead-based
paint hazards remain in the work area.
    However, EPA recognized that there are many differences between
renovations and abatements. As discussed in the preamble to the final
RRP rule, renovations are different from abatements in intent,
implementation, type of workforce, funding, and goal (Ref. 1). One of
the biggest challenges that faced EPA in revising the TSCA section
402(a) Lead-based Paint Activities Regulations was how to effectively
bridge the differences between abatement and renovation and remodeling
while acknowledging that many of the activities employed in both (e.g.,
window replacement) are the same and generate the same amount of dust.
Abatements are generally performed in three circumstances. First,
abatements may be performed in the residences of children who have been
found to have elevated blood lead levels. Second, abatements are
performed in certain housing receiving financial assistance from HUD
when required by HUD's Lead-Safe Housing Rule, codified at 24 CFR part
35 (see Sec. Sec.  35.630 and 35.930(d)). Third, state and local laws
and regulations may require abatements in certain situations associated
with rental housing, or when abatement orders have been issued when
resident young children, typically under age 6, have blood lead levels
at or above specified values. Typically, when an abatement is
performed, the housing is either unoccupied or the occupants are
temporarily relocated to lead-safe housing until the abatement has been
demonstrated to have been properly completed through dust clearance
testing. Carpet in the housing is usually removed as part of the
abatement because it is harder to clean. Uncarpeted floors that have
not been replaced during the abatement may need to be refinished or
sealed in order to achieve clearance. Abatements have only one
purpose--to permanently eliminate lead-based paint or lead-based paint
hazards.
    On the other hand, renovations are performed for myriad reasons
that may have nothing to do with lead-based paint. Renovations involve
activities designed to update, maintain, or modify all or part of a
building. Renovations may be performed while the property is occupied
or unoccupied. If the renovation is performed while the property is
occupied, the occupants do not typically relocate pending the
completion of the project.
    EPA also recognized that dust wipe testing and clearance as
required after abatements can be expensive. The costs can be attributed
to two major factors: the cost of trained personnel to collect the
samples and the cost of the laboratory analysis. EPA preliminarily
estimated the cost of three dust wipe samples to be $160 to collect and
analyze (Ref. 13). If EPA had required dust wipe testing and clearance
after every renovation project, it would have made up a significant
portion of the cost of smaller projects. In addition, laboratory
results may not be available for several days. If EPA had required
traditional abatement-style clearance after renovations, the work area
would not be able to be re-occupied while waiting for the laboratory
results.
    In addition, EPA was also concerned that requiring clearance after
every renovation job could, in some instances, result in the renovation
firm being held responsible for abating all dust-lead hazards,
including such hazards that

may have existed in the area before the renovation commenced. During
the stakeholder input opportunities provided by EPA before issuing the
2006 Proposal, contractors suggested that, if post-renovation dust wipe
testing were required, the contractors would have to protect themselves
by collecting pre-renovation dust wipe samples, to ensure that they
would not be held liable for pre-existing hazards.
    To address these various concerns, EPA began looking for an
alternative to dust wipe testing and clearance that would be quick,
inexpensive, reliable, and easy to perform. EPA conducted a series of
studies using commercially available disposable cleaning cloths to
determine whether variations of a ``white glove'' test could serve as
an effective alternative to clearance. Based on the favorable final
report of these studies, entitled ``Electrostatic Cloth and Wet Cloth
Field Study in Residential Housing'' (Disposable Cleaning Cloth Study)
(Ref. 16), EPA's 2006 Proposal included a cleaning verification
protocol using wet and dry disposable cleaning cloths.
    Unlike the earlier Disposable Cleaning Cloth Study, the Dust Study
was not designed specifically to evaluate the cleaning verification in
isolation from the rest of the work practices. However, the Dust Study
did serve as a valuable field test of the cleaning verification
protocol. The Dust Study involved actual renovations performed by local
renovation contractors who received instruction in how to perform
cleaning verification using wet and dry disposable cleaning cloths and
then were left alone to determine whether the cleaning cloths matched
or were lighter than the cleaning verification card developed by the
EPA. In order to maximize the information collected about cleaning
verification in the Dust Study, cleaning verification was conducted
after each experiment, not just those experiments that were being
conducted in accordance with the proposed rule requirements for
containment and cleaning.
    EPA received numerous comments on this aspect of the RRP
rulemaking. While some commenters supported the proposed work
practices, including cleaning verification, many others thought that
renovation work areas ought to be tested and cleared for re-occupancy
in the same way that abatement work areas are cleared through the
clearance process, including dust wipe testing. Many commenters
believed that renovation firms should be required to demonstrate that
no dust-lead hazards had been left behind in the work area. These
commenters contended that the only reliable, safe, and effective way to
do this was through dust wipe testing and clearance.
    These commenters contended that the unreliability of cleaning
verification made it an unsuitable substitute for dust wipe testing and
clearance. They pointed to the sentence in the conclusion section of
EPA's Dust Study that states that the cleaning verification protocol
was not always accurate in identifying the presence of levels above EPA
standards for floors and sills. Some commenters also noted the Dust
Study report's discussion of factors that affected the effectiveness of
cleaning verification, such as floor condition, contractor performance,
job type, and dust particle characteristics. One commenter observed
that while all interior experiments resulted in final passed cleaning
cloths for all floor zones and for all windowsills, nearly half of the
experiments in the study ended with average work room floor lead levels
above EPA's dust-lead hazard standard for floors of 40 [micro]g/ft\2\.
The Clean Air Scientific Advisory Committee, who was asked to review
the underlying analysis for the estimation of the effect of the RRP
rule on children's blood lead levels, stated that in the Dust Study
cleaning verification did not provide sufficiently reliable results,
leading to an inaccurate assessment of cleaning efficiency.
    EPA agreed with the commenters who argued that cleaning
verification was not a suitable substitute for dust wipe testing and
clearance. EPA noted in the preamble to the final RRP rule that even
though the Disposable Cleaning Cloth Study showed that the cleaning
verification cloths that reached ``white glove'' were approximately 91%
to 97% likely to be below the regulatory hazard standard, EPA believes
the greater variability seen in the Dust Study, particularly in the
experiments where the complete suite of proposed work practices were
not used, does not support the characterization of cleaning
verification as a direct substitute for clearance testing. Cleaning
verification, in itself, is not a substitute for quantitative dust wipe
testing. However, EPA continues to believe that the Dust Study supports
the validity of cleaning verification as an effective component of the
RRP rule's work practices. The cleaning and feedback aspects of
cleaning verification are important to its contribution to the
effectiveness of the work practices (Ref. 1).
    In the Dust Study, for renovations not involving practices
restricted or prohibited by the final RRP rule, cleaning verification
in combination with the other required work practices were effective at
reducing dust lead levels on surfaces to or below the dust-lead hazard
standards, regardless of the condition of the floor. Of the 10
experiments performed in compliance with the RRP rule's work practices,
final average lead-based paint dust levels were at or below the
regulatory hazard standard (taking into account the accepted level of
uncertainty, i.e., within plus or minus 20%, which is the performance
criteria for the National Lead Laboratory Accreditation Program). For
the experiments not performed according to the RRP rule's work
practices, the use of cleaning verification after cleaning reduced,
often significantly, the amount of lead dust remaining. EPA determined
that there is sufficient consistency in the Dust Study data to support
the use of cleaning verification as an effective component of the RRP
rule's work practices.
    Commenters also expressed concern about the subjectivity of the
cleaning verification process. They noted that the effectiveness of
cleaning verification relies upon the certified renovator's
understanding and application of the protocol, ability to define the
floor sampling area or areas, and use of the cleaning verification card
to determine whether a surface has been adequately cleaned. Some
commenters speculated that the certified renovator's accuracy in
comparing the cleaning cloth to the verification card could depend on
factors such as his or her visual acuity, the lighting in the room, or
simply differences in judgment among certified renovators. The issue of
a person (i.e., the certified renovator on the project) verifying
cleaning of a project that he or she has worked on also raised concerns
about actual or potential conflict of interest, which might, even
unconsciously, affect the person's judgment. One thought that the lack
of corrections for surface conditions, the experience of the person
conducting the visual assessment, or pre-existing conditions might bias
the results of testing.
    EPA agreed that the visual comparison of a cleaning cloth to a
cleaning verification card has an element of subjectivity because the
visual comparison of cloth to card requires some exercise of judgment
on the part of the person doing the comparing. However, EPA did not
agree that this necessarily makes the comparison suspect. The Dust
Study represented a real-world test of the ability of renovators to
learn how to do cleaning verification and to apply it in the field.
Although one Dust Study participant expressed concern about
subjectivity, cleaning verification was

successfully performed by the renovation contractors in all of the
experiments performed in compliance with the work practices in the
final RRP rule. In addition, cleaning verification was predictive of
whether renovators had cleaned-up the lead-based paint hazards created
during the renovation activity to the dust-lead standard, particularly
when the proposed work practices were used. The cleaning verifications
performed during the Dust Study were conducted by various persons in
various lighting conditions and on various surface conditions.
    Other commenters did not support dust wipe testing and clearance.
One reason cited by these commenters was the cost of dust wipe testing,
especially if required to be performed by independent certified
inspectors or risk assessors. Some also contended that dust clearance
testing is time consuming and an obstacle to completing the renovation
job. One commenter noted that a major component of the cost of
performing clearance is due to the fact that the portion of the
premises affected by the renovation would have to remain unoccupied.
Another commenter noted that it is not uncommon for the abatement
clearance process to be conducted up to three times on a home to make
sure that lead levels are sufficiently low. Again, commenters expressed
the concern that a requirement for dust wipe testing and clearance
would have the effect of holding renovation firms responsible for pre-
existing dust-lead hazards.
    Based on the weight of the evidence in the rulemaking record,
primarily from the Disposable Cleaning Cloth Study and the Dust Study,
EPA determined that, once certain high dust generating practices were
prohibited or restricted, the full suite of work practice requirements,
including containment, cleaning, and cleaning verification, was
effective at minimizing exposure to lead-based paint hazards created by
renovation, repair, and painting activities. At the same time, EPA
recognizes that cleaning verification is an imperfect check on whether
the dust-lead hazard standard has been achieved. Among other things, as
commenters pointed out, there is an element of subjectivity to cleaning
verification, which is not present in dust wipe testing.
    In the final RRP rule, EPA gave significant weight to the cost,
timing, and liability concerns expressed by commenters. In balancing
the various considerations, EPA concluded that cleaning verification,
as part of the full suite of work practices, was an appropriate check
on the effectiveness of the work practices. EPA has continued to
balance these considerations in today's proposal, but has preliminarily
concluded that, for certain jobs, the additional benefits of dust wipe
testing, and in some cases clearance, warrant imposing these additional
requirements.
    2. Proposed requirements for dust wipe testing after certain
renovations. This proposal contains dust wipe testing requirements for
many renovations. In most of these situations, the renovation firm will
only be required to provide the dust wipe testing results to the
building owners and occupants. However, as discussed more fully in Unit
III.A.3. of this preamble below, after two types of renovations, this
proposal would also require renovation firms to achieve clearance.
    EPA has evaluated the value of the information that would be
available to renovation firms and building owners and occupants through
such testing. EPA expects two kinds of benefits to flow from proposed
dust wipe testing requirements. The first are the direct benefits of
the information to the owners and occupants, the pure value of the
information on dust lead levels remaining in the renovation work area,
including leaded dust that may have been generated during the
renovation activity. For building owners and occupants, this
information is likely to improve their understanding and awareness of
dust-lead hazards. It will also greatly improve their ability to make
further risk management decisions. This information is particularly
critical where dust lead levels approach or exceed the regulatory
hazard standards. One commenter on the 2008 RRP rule described the
value of dust wipe testing results in this way: ``Because the white
glove test does not provide a numeric result, a family is given limited
information from which to make informed decisions and worse yet, may be
given a false sense of security.'' (Ref. 17) The commenter then argued
that, ``although the federal floor dust standard is set at 40 [mu]g/
ft\2\, there is sufficient evidence to suggest that floors well below
this standard may endanger children. Property owners and residents
should be provided quantitative information so they can choose what
actions to take based on those levels.'' The commenter believed that in
instances where floor dust wipe test results are just below the EPA
regulatory standard, the owners or occupants may want to undertake
additional cleaning. The value of this information has new significance
in light of recent epidemiological studies that indicate the current
lead-based hazard standards are insufficiently protective.
    In addition, in enacting the Residential Lead-based Paint Hazard
Reduction Act of 1992, Congress recognized that there is a value in
providing information to property owners and occupants. Section 1018 of
the Act requires the disclosure of information on lead-based paint and
lead-based paint hazards to purchasers and tenants of target housing.
Even if no specific information on the housing to be sold or rented is
available, the seller or landlord must provide a lead hazard
information pamphlet to the purchaser or tenant. Similarly, TSCA
section 406(b) requires renovators or their firms to provide a lead
hazard information pamphlet to the owners and occupants of target
housing before beginning a renovation in the housing. The information
provided by dust wipe testing after renovations is a different and more
targeted benefit, i.e., a more accurate check on whether the hazard
standard has been met at completion of the job, but it is in line with
the broader statutory emphasis on disclosure of information related to
possible lead-based paint hazards. This information is beneficial in
the same way that disclosure of known lead-based paint and lead-based
paint hazards is beneficial to purchasers and tenants under Section
1018.
    The other benefits that EPA expects to flow from a dust wipe
testing requirement are the benefits that may result from changed
behavior on the part of renovation firms. EPA believes that dust wipe
testing results will also provide valuable feedback to renovation firms
on how well they are cleaning up after renovations. In its Evaluation
of the HUD Lead-Based Paint Hazard Control Grant Program (Ref. 18), HUD
noted that the rate of passing initial clearance was associated with
repetition of lead hazard control activities. As renovation firms
become more familiar with the performance requirements for cleaning on
projects covered by the RRP rule, their projects are more likely to
require fewer cleaning cycles.
    It is also likely that having to provide to owners and occupants
the specific dust lead levels contained in dust wipe testing results
will increase renovation firm cleaning efficiency. Renovation firms
will be incentivized to lower the dust lead levels remaining after
renovation jobs, even if the levels are at or near the regulatory
standards. In particular, firms that might otherwise be inclined to be
less than thorough in the use of the disposable cleaning cloths in
order to avoid darkening the cloths will be incentivized to perform
cleaning

verification thoroughly. Because proper cleanup plays such a vital role
in the minimization of dust-lead hazards created by renovations,
providing information on dust lead levels remaining after renovations
to building owners and occupants will serve as an incentive for firms
to perform post-renovation cleaning efficiently, thoroughly, and
correctly so that the benefits of the RRP rule may be fully realized.
    EPA is therefore proposing to require that dust wipe testing be
performed after many renovation jobs. EPA has determined that dust wipe
testing results will provide a valuable check on the performance of
cleaning verification and the other work practices for most of the
paint-disturbing renovations covered by the Dust Study (Ref. 14). In
reviewing the data from the Dust Study, EPA believes that, of the jobs
performed in the Dust Study, the additional safeguard of dust wipe
testing is warranted where the floor dust-lead levels changed markedly
from pre-work to post-cleaning to post-cleaning verifications. The only
jobs where this did not occur were the renovations involving cut-outs,
which also created significantly less dust than most other renovations.
    Accordingly, today's proposal would require dust wipe testing on
uncarpeted floors, windowsills, and window troughs in the work area
after the following types of interior renovations:
     Use of a heat gun at temperatures below 1100 degrees
Fahrenheit.
     Removal or replacement of window or door frames.
     Scraping 60 ft\2\ or more of painted surfaces.
     Removing more than 40 ft\2\ of trim, molding, cabinets, or
other fixtures.
    These jobs represent all of the experiments conducted in the Dust
Study other than those involving cut-outs or practices prohibited or
restricted by the final RRP rule. The experiments labeled ``kitchen
gut'' in the Dust Study mostly involved the removal of kitchen cabinets
and kitchen fixtures. The scraping experiments involved the scraping of
approximately 60 ft\2\ or more of lead-based paint, so EPA is proposing
to limit the dust wipe testing requirement to renovations during which
at least that much painted surface is scraped. EPA requests comment,
information, or data on whether the threshold for dust wipe testing
after renovations involving scraping should be lowered to 6 ft\2\,
which is the minor maintenance threshold, or to some other number.
Likewise, the trim and molding removal experiments all involved the
removal of more than 40 ft\2\ of trim or molding, so EPA is proposing
to limit the dust wipe testing requirement to renovations during which
at least that much trim or molding is removed. EPA also requests
comment, information, or data on whether the threshold for dust wipe
testing after trim, molding, cabinet, or fixture removal should be
lowered. EPA acknowledges that the benefits identified above of dust
wipe testing would apply for these smaller jobs, as well as the larger
jobs covered by today's proposal. At the same time, in order to ensure
a program that is practical for renovation activities, EPA has tried in
this proposal to maintain some proportionality between the complexity
and cost of the proposed requirements on one hand, and the size and
cost of the renovation job on the other.
    EPA wishes to clarify that the size thresholds for scraping painted
surfaces and removing trim, molding, cabinets, or other fixtures would
be calculated on a per-job basis. This is in contrast to the minor
repair and maintenance exception, which is calculated on a per-room
basis for interior projects.
    EPA is also requesting comment on whether dust wipe testing should
be required in situations where a surface fails the cleaning
verification process twice, i.e., when the second wet disposable
cleaning cloth is darker than the cleaning verification card. In that
case, the surface must be allowed to dry for at least an hour, after
which the certified renovator must wipe the surface with a dry
electrostatic cleaning cloth. In the Dust Study, only four surfaces
failed cleaning verification twice, representing two of the sixty
experiments. In one experiment involving cut-outs, a vinyl floor in
poor condition failed cleaning verification twice. The average dust-
lead level on the floor after the second wet disposable cleaning cloth
was 61.5 [micro]g/ft\2\, and after the dry electrostatic cleaning
cloth, the level was 57.2 [micro]g/ft\2\. However, this floor was in
such poor condition that after two pre-cleanings, the cleanings done
before any experiments were conducted, the floor dust lead levels were
still 95 [micro]g/ft\2\. Thus, the floor was cleaner than when it
started, even though it failed cleaning verification twice. In the
other experiment, a kitchen gut performed on a tile floor in fair
condition, three floor sections failed the second cleaning
verification. After the second wet disposable cleaning cloth, the
average dust lead levels on two of the three failed sections were less
than 10 [micro]g/ft\2\, while the other was significantly higher at 150
[micro]g/ft\2\. Nevertheless, after the dry electrostatic cleaning
cloth wipe, the dust lead levels for all floor sections averaged 41.4
[micro]g/ft\2\, which is within the accepted level of uncertainty,
i.e., within plus or minus 20%, for the National Lead Laboratory
Accreditation Program (NLLAP).
    The dust wipe testing would have to be performed in a manner
similar to the abatement clearance sampling requirements at 40 CFR
745.227(e)(8). After the cleaning required by 40 CFR 745.85(a)(5) has
been performed, a certified inspector, certified risk assessor, or
certified dust sampling technician would be required to perform a
visual inspection to ensure that the work area is free of visible dust,
debris or residue. EPA is proposing to require this second visual
inspection, in addition to the one performed by the certified renovator
before cleaning verification, because, in many cases, the person
performing the dust wipe testing will not be the same person who
performed the cleaning verification. In addition, there may be a delay
between the completion of cleaning verification and the beginning of
dust wipe testing. EPA believes that the requirement for a visual
inspection immediately prior to dust wipe testing will give the
certified inspector, risk assessor, or dust sampling technician a means
to address any concerns they may have as to the cleanliness of the work
area. The locations for dust wipe samples would be dependent on the
number of rooms, hallways, or stairwells within the work area. If there
is more than 1 room, hallway, or stairwell within the work area, the
following samples would have to be collected:
     1 windowsill sample, 1 window trough sample, and 1 floor
sample within each room, hallway, or stairwell (no more than 4 rooms,
hallways, or stairwells need be sampled).
     1 floor sample adjacent to the work area, but not in an
area that has been cleaned.

If the work area is a single room, hallway, or stairwell, or a smaller
area, the following samples would have to be collected:
     1 windowsill sample, 1 window trough sample, and 1 floor
sample.
     1 floor sample adjacent to the work area, but not in an
area that has been cleaned.

If there are no uncarpeted floors in the work area, then no floor
samples would need to be collected. The same would be true for windows
and windowsill or trough samples. Dust wipe samples would be collected
in accordance with the protocol in ``Residential Sampling for Lead:
Protocols for Dust and Soil Sampling'' (Ref. 19).
    HUD's Lead Safe Housing Rule, at 24 CFR 35.1340(g), requires the
sample

adjacent to the work area to be collected within 5 feet of the work
area in an area that is connected to the work area. This specifically
precludes samples from being collected from rooms separated from the
work area by a solid wall. EPA requests comment on whether these
provisions should be incorporated into this rulemaking.
    EPA also requests comment on whether this protocol is sufficient to
determine dust lead levels remaining on floors, windowsills, and window
troughs. This protocol has been used for more than a decade in
clearance examinations after lead abatements and HUD interim lead
hazard control work. However, one test per surface may not always be
enough to accurately characterize the dust lead levels over the entire
surface. While the physical variability of dust loadings and lead
concentrations across a room has not been thoroughly investigated,
several studies including EPA's EFSS have found high variability in
side-by-side samples collected before and after various activities
(Ref. 10). EPA requests comment on whether more tests should be
required, and, if so, what protocol should be followed in determining
the number and location of additional tests. For example, one option
would be to follow the ASTM International ``Standard Practice for
Clearance Examinations Following Lead Hazard Reduction Activities in
Dwellings, and Other Child-Occupied Facilities.'' This document says
that for rooms that exceed 500 ft \2\, the floor should be divided into
two or more equal parts of 500 ft \2\ or less and a sample collected in
each part (Ref. 20).
    EPA requests comment on whether the provision for random clearance
sampling in multi-unit buildings in the Lead-based Paint Activities
regulations at 40 CFR 745.227(e)(9) should be incorporated into this
regulation. This would permit random testing of individual housing
units after renovations affecting multiple individual housing units in
a multi-family dwelling with similarly constructed and maintained
residences. Consistent with 40 CFR 745.227(e)(9), to take advantage of
this provision, the certified renovators and other trained persons who
renovate or clean the individual housing units would not know in
advance which units would be selected for random testing. In addition,
the dust wipe testing would have to be performed by a certified
inspector or certified risk assessor and the number of residential
units selected for dust wipe testing would have to be sufficient to
provide a 95 percent level of confidence such that, if clearance were
required, no more than 5 percent or 50 of the residential units
(whichever is smaller) in the randomly-sampled population would exceed
the applicable clearance levels. This is the standard for random
clearance sampling after abatement projects and this particular
requirement would be designed to allow certified inspectors and
certified risk assessors to use the training they have already received
on random clearance sampling after abatement projects to decide which
units to test after a renovation in a multi-family dwelling.
    Although random dust wipe testing has the potential to reduce costs
for a large multi-unit renovation project, it may not be appropriate
for this rule, given that an important purpose for the proposed dust
wipe testing requirements is the provision of information to building
owners and occupants. However, random sampling is already accepted by
EPA and HUD for disclosure of information on lead-based paint
inspections, risk assessments and abatement clearances under the
Disclosure Rule (Ref. 21), and for notification after activities other
than abatement under HUD's Lead Safe Housing Rule at 24 CFR 35.125(b)
and 35.1340(b)(2)(i). EPA also requests comment on whether a random
sampling provision should be incorporated, but limited to situations
where the HUD rule applies or to situations where the housing is
completely vacant, e.g., an entire apartment building is vacant and
being renovated.
    In addition, the current requirements for dust sampling technician
courses do not include random sampling, so dust sampling technicians
would not be able to select the units and locations for random dust
wipe testing. Dust sampling technicians could perform the actual
sampling or testing, so long as the locations for testing were selected
by a certified inspector or risk assessor. EPA requests comment on
whether EPA should modify the dust sampling technician course
requirements to include random testing in multi-family buildings so
that dust sampling technicians would be able to select units randomly
as do certified inspectors and certified risk assessors. EPA also
requests comment on whether this could be done and still allow the
course to be taught within a single 8-hour day.
    Dust wipe testing results would have to be provided by an entity
accredited or recognized under the NLLAP. EPA established the NLLAP in
accordance with TSCA section 405(b) to assure the public that
analytical laboratories recognized by the EPA have demonstrated that
they are capable of accurately analyzing for lead in paint chip, dust,
and soil samples. In January 2008, the Agency announced in the Federal
Register changes to NLLAP that expand the opportunity to participate in
the NLLAP to all lead testing service providers (Ref. 22). These
providers include:
     Fixed-site operations that perform analytical lead testing
at a permanent location under controlled environmental conditions;
     Mobile facilities, or transportable, self-contained
operations that can perform analytical lead testing under controlled
environmental conditions; and
     Field sampling and measurement organizations (FSMOs), or
operations that perform on-site sampling and lead testing using
portable testing technologies.

Portable testing technologies that might be employed by FSMOs, once
accredited or recognized, include devices such as an x-ray fluorescence
(XRF) analyzer, an anodic stripping voltammetry (ASV) analyzer, or any
other portable technology that has been shown to accurately and
verifiably measure lead content in dust, paint chip, or soil. EPA
believes these NLLAP changes remove barriers and provide a process so
that all types of lead testing service providers may participate in the
NLLAP. This can make the NLLAP more efficient and cost-effective while
maintaining the high standard of quality, science and technology for
those who purchase analytical services related to lead hazard
identification and control. The ability for portable dust testing
technologies to become accredited under NLLAP is particularly relevant
to this rulemaking, because EPA believes that this will make dust wipe
testing less expensive and time-consuming.
    EPA requests comment on additional technologies that may be
available for sampling or testing for lead in dust. EPA is seeking
information on what technologies are available, along with information
on the research or evaluations that may have been conducted on these
technologies. EPA is also interested in research or other information
on technologies that show promise for commercial development.
    Persons performing visual inspections, collecting dust wipe
samples, or analyzing dust wipe samples would not be required to be
third parties independent of the firm performing the renovation. This
is consistent with the final RRP rule and EPA's abatement regulations.
EPA has historically not required independent

third parties to perform testing for two reasons. The first is the cost
savings and convenience of being able to hire just one firm to perform
all necessary lead-based paint activities. The second is the potential
regional scarcity of firms to perform the work. As discussed in the
preamble to the final RRP rule, these considerations are also likely to
be applicable to the renovation sector (Ref. 1, at 21711). EPA does
recommend, however, that the renovation firm comply with the HUD's
prohibition against the same person performing both the renovation
activity and the clearance process. (See 24 CFR 35.1340(f)). EPA
requests comment on whether EPA should impose the same prohibition or a
similar prohibition with perhaps an exception for single person firms.
    Under this proposal, dust wipe testing would be performed after
cleaning verification, not instead of it. Cleaning verification is
useful because it combines fine cleaning properties with feedback to
the certified renovator on the effectiveness of the post-renovation
cleaning process. As discussed in the preamble to the final RRP rule,
the Dust Study demonstrated that cleaning verification is quite often
needed to minimize exposure to dust-lead hazards created during
renovations (Ref. 1, at 21744). In 4 of the 10 experiments performed in
accordance with the final RRP rule requirements for containment,
cleaning, and cleaning verification, the average post-cleaning floor
dust lead levels were above the clearance standards. In those
experiments, cleaning verification was needed to reduce average dust
lead levels below the standards. In addition, dust wipe testing only
tests part of the surface, and, as discussed above, leaded dust may not
be distributed uniformly over the entire surface. In contrast, cleaning
verification provides feedback on cleaning effectiveness over the
entire surface so variability in distribution presents fewer
challenges. EPA remains concerned that if dust wipe testing were
allowed instead of cleaning verification, without an accompanying
requirement that the renovation firm re-clean until clearance is
achieved, the RRP rule would actually be less protective because the
surfaces in the work area could be left less clean than if cleaning
verification were performed. Accordingly, dust wipe testing would be
performed after cleaning verification has been performed in accordance
with the existing protocol. After the dust wipe samples have been
collected, the renovation would be considered complete, the warning
signs could be removed, and the work area could be re-occupied. Re-
occupancy would not have to wait until the results of the testing were
available.
    However, because re-occupancy can occur immediately after the dust
wipe samples are collected, it is important to ensure that the results
of the dust wipe testing be communicated to owners and occupants as
soon as practicable. Accordingly, this proposal requires the certified
inspector, certified risk assessor, or certified dust sampling
technician to prepare a dust wipe testing report and provide it to the
renovation firm within 3 days of the date that the results are
obtained. If the dust wipe testing results are to be determined by a
fixed-site laboratory, the samples would have to be sent to the
laboratory within 1 business day of the date that they are collected.
The dust wipe testing report would include the name and signature of
each certified person collecting the samples or performing the testing,
the name and address of each certified firm employing the person(s)
conducting the sampling or testing, the start and completion dates of
the renovation, a brief written description of the renovation, the
results of the visual inspection, a detailed written description of the
specific sampling or testing locations or a detailed drawing that
clearly identifies the location of each sample or test, the name of the
NLLAP-recognized entity analyzing the results, the results of each
sample or test, and the clearance standard that is applicable to each
sample or test. EPA does not expect long, involved narrative
descriptions in these reports. The results of the visual inspection
could be as simple as ``no dust, debris, or residue was visible in the
work area,'' while the brief written description of the renovation
could be as simple as ``replaced all of the windows in the upstairs
bedrooms.'' The report should be organized and presented in such a way
that the recipients of the report will be able to easily understand the
information presented. The report must be a single document, with
clearly-identifiable attachments, such as analytical reports from NLLAP
laboratories, where appropriate. If a significant number of tests are
involved, the certified individual preparing the report should
incorporate an executive summary presenting the overall results, with
particular attention given to those results that exceeded the
applicable clearance standards.
    The renovation firm would be required to provide this report to the
owner of renovated target housing or child-occupied facilities within 3
days of the date that the renovation firm receives the report. The
renovation firm would also have to provide the report within 3 days of
receipt to the occupants of individual housing units that have been
renovated, if the housing units are not owner-occupied. Similarly, the
report would have to be provided within 3 days to the proprietor of
renovated child-occupied facilities if they are not operated by the
building owner. If the renovation firm has chosen to notify each
individual housing unit affected by a renovation in a common area of
target housing, or each parent or guardian of a child under age 6 using
a renovated child-occupied facility, the renovation firm would also
have to provide these persons with the dust wipe testing report within
3 days of the date that the renovation firm receives the report. In
cases where the renovation firm has chosen to post signs to notify
tenants affected by common area renovations, or parents and guardians
of children under age 6 using a child-occupied facility, the renovation
firm would have to provide the dust wipe testing report upon request.
EPA requests comment on whether the renovation firm should be required
to provide the dust wipe testing report to the building owner and
occupants with the final invoice or within 3 days of the date that the
report is received, whichever is earlier.
    3. Clearance. For two types of renovations that can create large
amounts of difficult-to-clean dust, EPA remains concerned about the
possibility that dust lead levels remaining, even after cleaning
verification, may substantially exceed the clearance standards. These
are renovations that disturb paint using machines designed to remove
paint through high speed operation, such as power sanders or abrasive
blasting, when equipped with high-efficiency particulate air (HEPA)
exhaust controls and the demolition, or removal, through destructive
means, of plaster and lath walls, ceilings or other building
components. If renovation firms choose to utilize these methods, EPA is
also proposing to require that renovation firms demonstrate, through
dust wipe testing, that they have met the clearance standards before
the renovation will be considered completed.
    EPA's Dust Study demonstrated that machines that remove paint
through high-speed operation, in the absence of HEPA exhaust control,
create enormous amounts of leaded dust that is particularly difficult
to clean up. In the Dust Study, the geometric mean post-work floor dust
lead levels after experiments involving power planing

were 201,902 [mu]g/ft\2\. That was the only type of power tool
experiment done indoors during the Dust Study. However, two additional
high speed tool experiments were done on exteriors, power sanding and
needle gun. In these cases, using the Dust Study results from the
surface of the plastic containment required by the rule, the geometric
mean post-work floor dust lead levels that could be expected from work
done using these types of tools without HEPA exhaust control are
591,491 [mu]g/ft\2\ for power sanding, and 195,372 [mu]g/ft\2\ for the
needle gun.
    In the Dust Study, the work practices required by the final RRP
rule, containment, specialized cleaning, and cleaning verification,
were, in most cases, unable to reduce the dust lead levels remaining on
the work area floors after power planing to anything close to the
clearance standard of 40 [mu]g/ft\2\. Accordingly, EPA banned the use
of machines that remove lead-based paint through high speed operation
without HEPA exhaust control.
    EPA did not perform any experiments in the Dust Study with power
tools equipped with HEPA exhaust control. However, EPA has subsequently
reviewed 14 published studies that examined the effectiveness of HEPA
exhaust control on power tools (Ref. 23). These 14 studies reported
reductions in airborne dust levels ranging from 70 to 99 percent.
However, most studies (9) reported reductions in airborne dust levels
between 90 and 95 percent. Applying a 90 to 95 percent reduction to the
post-work dust lead levels generated by the power tools in the Dust
Study results in dust-lead levels of 20,190 [mu]g/ft\2\ to 10,095
[mu]g/ft\2\ for door planing, 59,149 [mu]g/ft\2\ to 29,575 [mu]g/ft\2\
for power sanding, and 19,537 [mu]g/ft\2\ to 9,769 [mu]g/ft\2\ for
needle gun use. It is likely that the work practices required by the
final RRP rule will be unable to reduce these levels to anything
approximating the clearance level of 40 [mu]g/ft\2\ at the end of the
job because of the quantity of the dust generated and the particular
characteristics of this dust that make it hard to clean up.
    In addition, in order to achieve 90 to 95 percent effectiveness,
the HEPA exhaust control must be maintained properly and used
correctly. Any lapse in either maintenance or use could result in much
higher dust lead levels remaining after a renovation. For example, when
sanding a mantle, if the renovation worker moves half of the sander off
the edge of the mantle, the HEPA exhaust control will not be operating
at maximum collection efficiency. The same problem would occur any time
that the entire sander is not in contact with the surface, such as when
sanding a curved surface.
    With respect to the demolition of plaster, EPA did not perform any
experiments involving that kind of renovation activity in the Dust
Study. However, demolition of several different plaster walls was
studied in the EFSS. The EFSS measured worker exposures by personal air
monitoring, and estimated occupant exposures by dust wipe sampling.
Dust wipe sampling in the EFSS was done from stainless steel dustfall
collectors placed at various locations adjacent to and at varying
distances from the activity. The estimated lead loading over a 6 ft\2\
area resulting from the demolition of a plaster wall was 19,500 [mu]g,
the highest loading for any of the typical activities studied. However,
according to the EFSS, no collectors were placed adjacent to demolition
activities ``due to the large amount of debris.'' (Ref. 10, at 9-10)
EPA was able to determine the functional relationship between settled
dust and distance for the demolition activity, but the relationship
``does not take into account the amount of lead that settles at a
location directly adjacent to the activity. Since the settled dust
samples associated with the demolition were all located at a distance
from the activity space, the estimated 6-foot by 1-foot gradient lead
loading in the demolition activity is interpreted as being the amount
of lead found in the 6-foot by 1-foot region that was airborne in dust
and smaller particles, rather than the total amount of lead
disturbed.'' (Ref. 10, at 9-10)
    In the EFSS, EPA also reviewed data on plaster wall demolition
available from OSHA (Ref. 10). The study monitored the demolition of
interior plaster walls and ceilings in a home using hammers and claw-
bars. This study involved only personal air monitoring, not settled
dust sampling. The geometric mean worker exposure for the demolition
activities studied by the EFSS was 107 [mu]g/m\3\, while the geometric
mean worker exposure for the OSHA study was 166 [mu]g/m\3\. Because of
the length of time involved in demolishing a plaster wall, both of
these activities are likely to substantially exceed the OSHA
permissible exposure limit of 50 [mu]g/m\3\ as an 8-hour time-weighted
average.
    These studies demonstrate that plaster wall demolition creates
large amounts of lead-contaminated dust. EPA also believes that this
dust is particularly difficult to clean up, because of the qualities of
plaster and the way in which such demolition is typically done through
destructive means such as sledgehammers. The dust created by this
activity is likely to consist of very fine particles. EPA is concerned
that, like the dust produced by machines that remove paint through high
speed operation, the large quantities of dust created by plaster wall
demolition will overwhelm the containment, specialized cleaning, and
cleaning verification processes and result in renovation work areas
being re-occupied with lead-based paint hazards created by the
renovation still in place.
    Given these concerns, EPA is proposing to require renovation firms
to follow a clearance process similar to that performed after abatement
projects after renovations involving the disturbance of paint using
machines designed to remove paint through high speed operation or the
demolition, or removal, through destructive means, of more than 6 ft\2\
of plaster and lath building component. After the cleaning required by
40 CFR 745.85(a)(5) and the cleaning verification required by 40 CFR
745.85(b)(1), dust wipe testing would have to be performed in exactly
the same way that it would be required after the renovations discussed
in Unit III.A.2. of this preamble. If any of the test results equal or
exceed the regulatory clearance standards in 40 CFR 745.85(b)(4), the
renovation firm would be required to re-clean the surfaces represented
by those tests in accordance with 40 CFR 745.85(a)(5)(ii). Those
surfaces would have to be re-tested, and the results compared to the
clearance standards.
    With respect to plaster removal, the clearance requirement would
apply only to walls, ceilings constructed of plaster and lath, not
gypsum drywall finished with plaster. The experiments performed and
reviewed in the EFSS involved plaster and lath walls, not drywall. In
this country, interior walls were commonly constructed of plaster and
lath until the 1950's, when drywall began to replace the lath and
plaster construction method. Again, this clearance requirement would
only apply to plaster removal done through destructive means, such as
sledgehammers.
    This proposal would not allow renovation firms to skip the cleaning
verification step when they are required to perform clearance. The Dust
Study demonstrates that cleaning verification is an important part of
the cleaning process. Of the 10 experiments completed in the Dust Study
in accordance with the final RRP rule requirements, 4 required the
additional cleaning provided by cleaning verification to reach an
average floor dust lead level below 40 [mu]g/ft\2\ (Ref. 14).

The additional cleaning resulting from cleaning verification was
particularly dramatic in the window replacement experiments, where the
dust lead levels on the floor were cut nearly in half by cleaning
verification. EPA is specifically requesting comment on cleaning
verification requirements for surfaces that fail clearance due to high
dust wipe test results. While the Dust Study shows that cleaning
verification is a very effective cleaning method, EPA recognizes that
there is a cost associated with multiple cleaning verification passes
over a surface, particularly if the surface fails the wet disposable
cleaning cloth phase and must be allowed to dry for an hour before
using a dry electrostatic disposable cleaning cloth. Although not
specifically studied, the Dust Study suggests that it would be unlikely
for a surface that had been cleaned and had gone through the cleaning
verification process to fail another round of cleaning verification.
Sixty interior experiments were performed in the Dust Study; only 3
work room floors failed all rounds of cleaning verification. Two of
those were performed using only baseline work practices, no containment
or specialized cleaning, on a vinyl floor in poor condition that EPA's
contractor had difficulty pre-cleaning to below 40 [mu]g/ft\2\ before
beginning the study. The third was on a tile floor in fair condition,
with plastic containment but no specialized cleaning. In addition, of
the 4 experiments in the Dust Study performed in accordance with the
final RRP rule that needed cleaning verification to reduce average
floor dust lead levels below 40 [mu]g/ft\2\, failed cleaning
verification cloths were only seen in 1. The reductions in dust lead
levels seen in the window replacement experiments occurred after only 1
pass with a wet disposable cleaning cloth. In light of these results,
this proposal would require surfaces failing clearance due to high dust
wipe test results to be recleaned in accordance with the RRP rule, HEPA
vacuuming followed by wet wiping or mopping, followed by one round of
cleaning verification using a wet disposable cleaning cloth. This cloth
would not have to be compared to the cleaning verification card, the
renovation firm could conduct additional dust wipe testing for
clearance purposes on the surface as soon as it has dried.
    EPA is also proposing to eliminate the existing provision that
allows renovation firms to perform clearance in lieu of cleaning
verification when another Federal, State, or local law or regulation,
or the contract between the renovation firm and the property owner,
requires the renovation firm to use qualified entities to perform dust
wipe testing and requires the renovation firm to achieve clearance.
Because cleaning verification has been shown to be such an important
part of the post-renovation cleaning process, and because that
provision would be inconsistent with this proposal, EPA believes that
it should be eliminated. Rather, this proposal would require cleaning
verification to be performed in the same way it would have to be
performed after jobs involving demolition or removal of plaster through
destructive means or the disturbance of paint using machines designed
to remove paint through high-speed operation.
    The renovation would not be considered complete, and the warning
signs would have to remain in place, until the renovation firm can
demonstrate through a dust wipe testing report that it has met the
clearance standards. The certified inspector, certified risk assessor,
or certified dust sampling technician performing the sampling or
testing would be required to prepare a clearance report. The clearance
report would include the start and completion dates of the renovation;
a brief written description of the renovation; the name and address of
each certified firm employing each certified inspector, certified risk
assessor, or certified dust sampling technician performing the
clearance procedures; the name and signature of each certified
inspector, certified risk assessor, or certified dust sampling
technician performing the clearance procedures and the dates that the
clearance procedures were performed; the results of the visual
inspection; a detailed written description of the specific sampling or
testing locations or a detailed drawing that clearly identifies the
location of each sample or test; the results for each dust wipe sample
or test; whether or not clearance was achieved; and the name of each
recognized entity that conducted the analyses. As with the dust testing
report, EPA does not expect long, involved narrative descriptions in
these reports. The results of the visual inspection could be as simple
as ``no dust, debris, or residue was visible in the work area,'' while
the brief written description of the renovation could be as simple as
``replaced all of the windows in the upstairs bedrooms.'' However, the
report should be organized and presented in such a way that the
recipients of the report will be able to easily understand the
information presented. The report must be a single document, with
clearly-identifiable attachments, such as analytical reports from NLLAP
laboratories, where appropriate. If a significant number of tests are
involved, the certified individual preparing the report should
incorporate an executive summary presenting the overall results, with
particular attention to those results that exceeded the applicable
clearance standards.
    The certified inspector, certified risk assessor, or certified dust
sampling technician would be required to provide a copy of this report
to the renovation firm within 3 days of the date that the dust wipe
testing results are obtained. If the dust wipe testing results are to
be determined by a fixed-site laboratory, the samples would have to be
sent to the laboratory within 1 business day of the date that they are
collected. The renovation firm would be required to provide this report
to the owner of renovated target housing or child-occupied facilities
within 3 days of the date that the renovation firm receives the report.
The renovation firm would also have to provide the report within 3 days
of receipt to the occupants of individual housing units that have been
renovated, if the housing units are not owner-occupied. Similarly, the
report would have to be provided within 3 days to the proprietor of
renovated child-occupied facilities if they are not operated by the
building owner. If the renovation firm has chosen to notify each
individual housing unit affected by a renovation in a common area of
target housing, or each parent or guardian of a child under age 6 using
a renovated child-occupied facility, the renovation firm would also
have to provide these persons with the dust wipe testing report within
3 days of the date that the renovation firm receives the results. In
cases where the renovation firm has chosen to post signs to notify
tenants affected by common area renovations, or parents and guardians
of children under age 6 using a child-occupied facility, the renovation
firm would have to provide the dust wipe testing report when requested.
    In most cases, renovation firms will be able to avoid using the
work practices that would require clearance afterwards. Sanding or
scraping could be done by hand instead of by power tool. Many plaster
removal jobs can be performed by using non-destructive means such as
saws and pry-bars to remove sections of plaster and lath wall. At the
same time, EPA also understands that renovation firms may encounter
floors, windowsills, and window troughs that are in such poor condition
that clearance may not be possible. As

discussed previously, the HUD Guidelines recommend using a sealant on
floors if necessary to achieve clearance (Ref. 15). The Guidelines
suggest that, if any surface fails two clearance tests, the ``property
owner should consider additional hazard control measures and/or further
sealing of the surface'' (Ref. 15, at 15-10). EPA's own experience with
the Dust Study confirms that surface condition may be a problem, at
least in some instances. After several encounters with work room floors
that could not be cleaned to the clearance standards in preparation for
a new experiment, the Dust Study contractors began using a sealant
before testing floors in preparation for beginning work (Ref. 24). When
this occurred with windowsills, the contractors used dust collection
trays instead of the sill surface for sampling.
    Various studies have shown that dust lead levels on surfaces are
directly correlated with the condition of the surface. That is, a
surface, such as a floor, in poor condition tends to have higher dust
lead levels than a floor in fair to good condition. An evaluation of
the HUD Lead-Based Paint Hazard Control Grant Program found that the
``effect of the condition of the wiped surface at clearance was
significant in all analyses. The surfaces in better condition at
clearance had lower clearance dust lead loadings and lower failure
rates'' (Ref. 18, at 7-20). EPA's Dust Study also found that floors in
poor condition had higher dust lead levels across the post-work, post-
cleaning, and post-cleaning verification sampling stages than floors in
better condition, although this could have been due to higher-intensity
work (Ref. 14, at 6-14). EPA requests comment on whether this
correlation should affect clearance or dust wipe testing requirements,
and if, so, in what way. EPA is interested in suggestions on how to
address the fact that some floors will be more difficult to clean than
others.
    In particular, EPA has wrestled with the issue of how to reconcile
a clearance requirement when floors are in such poor condition that
achieving clearance would require the renovation firm to expand the
scope of the original job to include additional remedial action such as
refinishing the floor. In part, this situation raises the concern that
renovation firms might be required to remediate lead hazards that
existed prior to the renovation. To address the situation where
achieving lead levels below the lead hazard standards would require
expanding the scope of the renovation job, EPA is proposing an
exception to the requirement to achieve clearance. Specifically, EPA
proposes to allow renovation firms to stop after the second failed
clearance test, regardless of the result, if the renovation firm did
not agree to refinish the surface that is failing clearance as part of
the renovation contract. For example, if a renovation firm is hired to
remove plaster and lath wall sections that partially separate a living
and dining room, and repaint the walls (including the windows) in both
rooms, then the renovation firm would be required to ensure that the
windowsills in the work area achieve clearance, no matter how many
times the sills must be re-cleaned and re-tested. However, if the
renovation firm was not hired to refinish the floor, the renovation
firm would only have to re-clean and re-test the floor once if it
failed clearance the first time, no matter what the second dust wipe
testing result is. EPA believes that such a provision is necessary,
given that renovation firms may encounter floors, windowsills, and
window troughs that are in such poor condition that clearance may not
be possible.
    EPA is also requesting comment on whether renovation firms ought to
be allowed to perform pre-renovation dust wipe testing on surfaces in
the work area that are in poor condition to help demonstrate that they
are not leaving behind dust-lead hazards that they created. In this
option, the renovation firm would only have to demonstrate that, for
surfaces in poor condition in the work area, the dust-lead levels on
these surfaces (which could be windowsills and/or floors) after the
renovation are no higher than 150 [mu]g/ft\2\. This would ensure that
renovation firms are not unduly held accountable for pre-existing lead-
based paint hazards. EPA believes that 150 [mu]g/ft\2\ is an
appropriate upper limit, given that EPA's contractor was able to clean
all of the floors encountered in the buildings used for the Dust Study
to this level or below (Ref. 14). EPA requests comment on whether there
is an appropriate alternate upper limit that should be considered and
the available data to support this alternate limit. Any pre-renovation
testing option would also include a requirement to provide both the
pre-renovation dust wipe testing report as well as the post-renovation
report to the building owners and occupants. As part of its
consideration, EPA requests comment on how ``poor condition'' should be
defined for this approach.
    EPA believes that window troughs are particularly likely to harbor
pre-existing dust lead levels at or above the clearance standards. They
are also particularly likely to be difficult to clean. Therefore, EPA
is requesting comment on whether EPA should allow renovation firms to
close windows in the work area that are not being worked on and cover
them with taped-down plastic or other impermeable material to avoid the
requirement to ensure that the window troughs achieve clearance
standards. EPA would still require renovation firms to test both the
sills and troughs of closed and covered windows, and report the results
to the building owners and occupants, but firms would only need to
ensure that the sills achieve the clearance standards.
    EPA is also requesting comment on whether clearance should be
required in other situations. In particular, EPA is interested in
comment on whether clearance should be required after any of the
activities for which EPA is proposing a dust wipe testing requirement.
EPA is also interested in comment on whether clearance should be
required in rental properties after renovations for which EPA is
proposing a dust wipe testing requirement, especially if the renovation
firm has been informed that the renovation is being performed to remedy
a violation of federal, state, or local laws or regulations or to
comply with a federal, state, or local government order, such as an
order to correct building code violations, or an abatement order in
response to an elevated blood lead level. In this case, EPA is also
interested in comment on whether EPA should require renovation firms to
affirmatively ask whether the work is being performed to remedy a
violation or comply with an order, and whether renovation firms should
provide this information to owners and occupants after the renovation.
Finally, EPA requests comment on whether dust wipe testing or clearance
should be required in any other situations not discussed specifically
in this proposal, including situations where a surface has failed
cleaning verification twice.
    4. Additional requests for comment on dust wipe testing or
clearance.
    EPA is seeking comment on whether there are other regulatory
options for dust wipe testing or clearance that maximize the potential
benefits by targeting those activities that are most likely to exceed
the clearance standards. For example, should different size thresholds
be used for some or all of the renovations affected by this proposal?
As discussed, the proposed thresholds for dust wipe testing are taken
from the Dust Study. Does the data from the Dust Study, or data from
another source, support larger thresholds for some or all of these
jobs? Although EPA is concerned about potential confusion

with the definition of minor maintenance and repair, does the data from
the Dust Study support applying these proposed thresholds on a per-room
basis?
    Another potential option would be to apply dust wipe testing or
clearance requirements only in homes where pregnant women or children
under age 6 reside or in any building that meets the definition of
child-occupied facility. EPA requests comment on this option, which
does target particularly vulnerable populations but provides no
protections for older children, adults and family pets.
    EPA also requests comment on whether dust wipe testing should only
be required when a surface fails the first round of cleaning
verification, and, if dust wipe testing is done, whether the second
round of cleaning verification should then be performed. In the Dust
Study, if a surface failed the first round of cleaning verification, no
dust wipe samples were collected before the surface was cleaned and
cleaning verification performed again (Ref. 14). This occurred in 17 of
the 60 interior experiments performed. Three of those surfaces also
failed the second round of cleaning verification. In each of those 3
cases, at least one surface was also demonstrated to be above the
regulatory clearance standards by dust wipe testing. Since no dust wipe
samples were collected after the first round of cleaning verification,
it is not possible to determine, for certain, what additional
reductions in dust lead levels were attributable to the second round of
cleaning verification. However, some insight is provided by the
reductions in dust lead levels made by the first round of cleaning
verification. In many of the experiments that passed the first round of
cleaning verification, the cleaning verification step resulted in
significant dust lead reductions between the samples taken post-
cleaning and the samples taken post-cleaning verification. Thus, the
Dust Study demonstrates that the cleaning verification protocol in the
2008 RRP rule is an integral part of the cleaning regimen. Because the
second round of cleaning verification likely contributes significantly
to the total reduction in dust lead levels attributable to cleaning
verification, EPA continues to believe that the second round of
cleaning verification is a necessary step in the process, regardless of
whether dust wipe samples are collected or not.
    Another possible regulatory option would be to require clearance
for renovations involving the demolition of plaster or the use of high-
speed machines designed to remove paint, or a larger set of renovation
types, or smaller renovation size thresholds, and not require dust wipe
testing in the absence of a clearance requirement. EPA requests comment
on these options and suggestions for other regulatory options that may
be less burdensome but still justifiable based on the available data.

B. Test Kits for Lead in Paint

    EPA has worked with test kit vendors to develop kits that can more
accurately identify the presence of regulated lead-based paint. Through
its Environmental Technology Verification (ETV) program, EPA is
currently reviewing five test kits that have been submitted by vendors.
More information on this process can be found at http://www.epa.gov/
lead/pubs/testkit.htm#recognize.
    EPA is also proposing to give certified renovators another option
for determining whether lead-based paint is present on components to be
affected by a renovation. This proposal would permit certified
renovators to collect paint chip samples from components to be affected
by a renovation instead of using test kits to test the paint on the
components. When utilizing this option, the certified renovator would
be required to send the samples to a recognized NLLAP laboratory.
Because renovator training courses are already required to include
training in how and where to use test kits, EPA believes that it would
take very little additional time to also provide renovators with
training in how to collect a chip sample such that all paint layers are
present with a minimal amount of substrate included in the sample, and
how to submit these samples to an NLLAP laboratory for analysis. Such
an option would not make a certified renovator the equivalent of a
certified lead-based paint inspector. Certified renovators would still
have to test each affected component, they would not be permitted to
exclude components based on similar painting histories or perform
random paint sampling in multi-unit buildings. EPA is proposing to
allow certified renovators to collect paint chip samples instead of
using test kits in order to provide maximum flexibility for certified
renovators and renovation firms.

C. Training Provider Accreditation

    Training providers who wish to provide renovator, dust sampling
technician, or lead-based paint activities training for Federal
certification purposes must apply for and receive accreditation from
EPA. To become accredited, a provider must employ a training program
manager as well as principal instructor(s) who meet certain education,
training and work experience requirements. The training provider must
indicate on its application for accreditation that the training program
manager and principal instructor(s) meet these requirements; however,
currently, no documentation (e.g., resumes) regarding the
qualifications of these individuals must be submitted to EPA. The
Agency believes it is important to review this information when
determining whether to approve a training provider application. When
EPA reviews applications for accreditation, it is common for the Agency
to request this documentation from training providers in order to
verify that the training program manager and principal instructor(s)
have the proper qualifications. Requesting this information takes time
and can delay the review of an application. Therefore, the Agency is
proposing to require that training providers submit documentation
regarding the qualifications of the education, training and work
experience of training managers and principal instructors with their
applications for accreditation.
    EPA is also proposing to clarify the role of principal instructors
in teaching courses. The current regulation, at 40 CFR 745.227(c)(3),
states that principal instructors are responsible for the organization
of their courses and oversight of the teaching of all course material.
The regulations also define ``principal instructor'' as ``the
individual who has the primary responsibility for organizing and
teaching a particular course.'' Nonetheless, the rule also allows
training program managers to designate experts in a particular field
(e.g., doctors or lawyers) as guest instructors, on an as needed basis,
to teach discrete portions of the course. EPA interprets these
provisions to require a principal instructor to be present and
primarily responsible for teaching the course, although guest
instructors may be used to teach some portion(s) of the course.
Principal instructors are also responsible for the quality of the
instruction delivered by the guest instructors. To ensure that the
regulation is clear on this point, EPA is proposing to amend 40 CFR
745.227(c)(3) to state that principal instructor(s) are primarily
responsible for teaching the course materials and must be present to
provide instruction (or oversight of portions of the course taught by
guest instructors) for the course for which he has been designated the
principal instructor.
    The final RRP rule included requirements for amending the
certification of a renovation firm. Firms must submit an amendment
within 90

days of the date that a change occurs to information in its most recent
application for certification or re-certification. Examples of
amendments include a change in the firm's name without transfer of
ownership, or a change of address or other contact information. To
amend its certification, a firm must submit an application, noting on
the form that it was submitted as an amendment. The firm must complete
the sections of the application pertaining to the new information, and
sign and date the form. EPA has interpreted the training provider
accreditation regulations to require accredited training providers to
submit amended applications whenever there is a change to the
information provided in the training provider's most recent application
for accreditation or re-accreditation, including information regarding
the training manager and any principal instructor(s) teaching courses
offered by the training provider. However, the existing regulations do
not specify a time limit for submitting an amendment. Therefore, the
Agency is proposing to require training providers to submit amendments
within 90 days of the date a change occurs to information in each
provider's most recent application. If the training provider does not
amend its most recent accreditation application within the 90-day time
period, it must stop providing training until the accreditation
application is amended. The Agency is also proposing to approve or
disapprove amendments for a new training manager, any new or additional
principal instructors, or any new permanent training location within 30
days of the date EPA receives the amendment. This 30-day time period
will give EPA sufficient time to check the qualifications of the
training manager(s) or principal instructor(s) before the training
manager begins managing or the principal instructor begins teaching a
course. This 30-day time period would also give EPA sufficient time to
verify the suitability of a new permanent training location by visiting
the location. The training provider would not be permitted to provide
training under the new training manager or offer courses taught by any
new principal instructor(s) or at the new training location until EPA
either approves the amendment or 30 days has passed. Finally, this
proposal would also clarify that no fee will be charged for
accreditation application or certification amendments.
    To become accredited, a training provider must submit a copy of its
training course materials with its application for accreditation for
review by the Agency. If a training provider chooses to use the model
course developed by EPA or a course approved by an authorized State or
Indian Tribe, then it is not currently required to submit the course
materials with its application. Instead the training provider indicates
on its application that it will use the EPA model course or a course
approved by an authorized State or Indian Tribe. Authorized States and
Indian Tribes can have renovation or abatement programs that are
significantly different from the EPA-administered program which would
be reflected in their approved course materials. In these instances, a
training course approved by the State or Indian Tribe may not be
sufficient for the purposes of training someone on the requirements of
the federal program. Therefore, the Agency is proposing to require
training providers who apply to EPA for accreditation and wish to use a
course approved by an authorized State or Indian Tribe to submit the
course materials for EPA review. This will give the Agency the
opportunity to identify and address any significant differences between
the requirements of EPA and the authorized program that may appear in
the course so the Agency can ensure that EPA-accredited training
providers are using appropriate course materials. Training providers
wishing to use the EPA model courses would not be required to submit
those materials with their applications.
    As a matter of clarification, Web-based training and other types of
alternative training delivery are permitted. In fact, EPA has developed
a model on-line renovator course that could be used to deliver the
classroom portion of the renovator course. While such alternative
training delivery options cannot be used to deliver required hands-on