expects that movable surfaces, such as tables and desks, will be moved
from the work area before work begins. Therefore, EPA has modified the
rule to require cleaning verification on all countertops in the work
area.
    v. Reliability of cleaning verification. EPA received comments
prior to the 2007 request for comments on the proposed work practices
in light of the Dust Study. Those pre-Dust Study comments are
summarized here. Commenters questioned whether cleaning verification
had been demonstrated to be valid, reliable, effective, or efficient in
establishing that the work area had been adequately cleaned or that the
clearance standards were met. Some commenters contended that the
cleaning verification method showed promise, but should be subjected to
additional testing, including field trials, to demonstrate its
effectiveness when used by certified renovators. Commenters on the 2006
Proposal observed that the cleaning verification protocol was supported
by a single study that was conducted under conditions unlike those
presented by the typical renovation. Specifically, a commenter noted
that most of the housing units studied had undergone some form of
abatement that would likely have reduced dust levels and the study used
professional inspectors or other highly trained individuals to collect
the samples according to

specified protocols. The commenter was concerned that a renovator with
no experience with sample collection and little training could
replicate the work of the professionals used in the study. The
commenter pointed out that the study avoided testing the procedure on
rough surfaces, a condition that will frequently occur in real world
applications, and used a different set of wipe protocols than actually
utilized by the EPA in the 2006 Proposal. Another commenter on the 2006
Proposal noted that cleaning verification had never been employed in a
real-world practical setting. In addition, some of these commenters
contended that the cleaning verification protocol was too complicated
or too confusing to follow.
    A number of commenters who provided comments in response to EPA's
request for comments on the proposed work practices in light of the
Dust Study quoted 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 of these 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, while not asked to comment on the efficacy of the
cleaning verification, contended that in the Dust Study cleaning
verification did not provide sufficiently reliable results, leading to
an inaccurate assessment of cleaning efficiency.
    EPA disagrees with these commenters. The Dust Study did provide a
real-world practical setting in which to assess the use of cleaning
verification. Local renovation contractors performed actual renovations
for each experiment in the study. The contractors performed cleaning
verification on floors of wood, vinyl, or tile, in good, fair, or poor
condition. The Dust Study used the protocols that were consistent with
those in the 2006 Proposal. While the Dust Study was not designed
specifically to assess cleaning verification, it did assess the
effectiveness of cleaning verification both when it was used as part of
the proposed rule work practices and as a separate step after the other
experiments which did not follow all the proposed work practices. Each
experiment included a cleaning verification step. The contractors were
instructed in how to perform cleaning verification. They independently
determined whether particular cloths matched or were lighter than the
cleaning verification card. In most renovations not involving the
practices that EPA is prohibiting in this rule, i.e., power planing
(power sanding) and high temperature heat guns, cleaning verification
in combination with the other 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. Cleaning
verification, as well as the other components of the work practices
being finalized today were not effective when high dust generation
practices such as power planing (including power sanding) and high
temperature heat guns were used. These practices, as well as torching,
are being prohibited in this rulemaking. Thus, EPA, in its
determination on the effectiveness of cleaning verification, is
focusing on the results of the experiments in the Dust Study that did
not involve these prohibited practices.
    Of the 10 experiments in which the proposed rule practices were
used and in which the practices being prohibited in this final rule
were not used, all final 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). In fact, four experiments resulted in levels that were less
than 10 [mu]g/ft\2\, three resulted in levels less than 30 [mu]g/ft\2\,
and three resulted in levels that were approximately 40 [mu]g/ft\2\
(all were well within the level of uncertainty for this value). In four
of the experiments, at least one floor area failed verification on the
first wet disposable cleaning cloth, all passed on the second wet
cloth. In one of the experiments, a windowsill failed the first wet
cloth, but passed the second. These results were seen on floors in a
variety of conditions, including good, fair and poor conditions. As a
general case, in the other experiments that did not follow all the
proposed work practices, the use of cleaning verification after
cleaning (both baseline cleaning and cleaning following the proposed
work practices) reduced, often significantly, the amount of lead dust
remaining.
    EPA agrees with commenters that cleaning verification should not be
used for clearance. However, while cleaning verification is not
clearance testing, as described above the use of cleaning verification
consistently resulted in levels of lead-based paint dust at or below
the hazard standard Also, the use of cleaning verification consistently
resulted in lower levels of lead-based paint dust than remained after
all types of cleaning studied when only followed by visual inspection.
There is sufficient consistency in the data to support the use of
cleaning verification as an effective component of the work practices
being finalized today.
    In response to the comment that the Disposable Cleaning Cloth Study
used professional inspectors or other highly trained individuals
following specified protocols, EPA intends to include cleaning
verification in its training course for renovators and will use the
results of the Dust Study and the Agency's observations on the
experience of the contractors in the study in its development of this
course.
    vi. Subjectivity of cleaning verification. Many commenters objected
to the ``white glove'' standard as inherently subjective, and doubted
whether it would be protective. The commenters were concerned that the
effectiveness of cleaning verification relies upon a renovation
worker'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. One commenter contended that, based on its experience as a
sub-contractor to EPA on the Disposable Cleaning Cloth Study, making
the visual pass/fail determination can be quite subjective and open to
interpretation. The commenter believes that it may be unrealistic to
expect that renovation workers will consistently make the proper
decision using the proposed verification card. Some commenters
speculated that the renovator's accuracy in comparing the cleaning
cloth to the verification card could depend on factors such as the
renovator's visual acuity, the lighting in the room, or simply
differences in judgment among renovators. Another commenter 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 agrees that 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, this does not necessarily mean that the comparison is suspect.
As previously stated, the Dust Study represents 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 participant in the Dust Study
expressed concern about the subjectivity of the test, the fact remains
that cleaning verification was successfully performed by the renovation
contractors in all of the experiments involving the work practices
being finalized in this final rule (excluding those involving power
planing (power sanding) and high temperature heat guns) and 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.
These cleaning verifications were conducted by various persons in
various light conditions and on various surface conditions. Further,
EPA notes that cleaning verification is not simply qualitative
clearance. Unlike the sampling for dust clearance testing, the cleaning
verification involves a cleaning component. The act of doing the
cleaning verification has been shown to lower, often significantly, the
dust lead levels. Finally, in the development of its training course
for contractors, EPA plans to use its data on the contractors' use of
cleaning verification in the Dust Study, including their use of the
cleaning verification cards.
    vii. Cost of cleaning verification. Some commenters were concerned
that the cleaning verification protocols are too impractical,
burdensome, or time-consuming for many contractors to perform. However,
the Dust Study found that cleaning verification only took, on average,
slightly less than 13 minutes for experiments where the proposed rule
requirements were followed. EPA's Final Economic Analysis estimates
that the average cost of cleaning verification ranges from less than
$10 to $30 in residences, and in public and commercial building COFs it
ranges from less than $10 to less than $50.
    viii. Availability of cleaning verification card. One commenter
asked about the availability of the cleaning verification card,
specifically, who would produce them, where would they be available,
and how often do they need to be replaced. EPA intends to produce the
cleaning verification cards and to make them available at accredited
renovator training courses and upon request from the National Lead
Information Center.
    ix. Third-parties. Several commenters argued that a third party
should perform cleaning verification (or visual inspection, in the case
of exterior jobs) rather than the certified renovator. Commenters saw a
conflict of interest, since by performing the cleaning verification the
certified renovator is evaluating the effectiveness of his or her own
work. Some thought the subjective nature of the method left it open to
misinterpretation or fraud. Commenters were concerned that given the
competitive pressures of the renovation industry and lack of
independent oversight, it was not realistic to expect all renovators to
follow the cleaning verification protocol in good faith. Others worried
that a renovator might feel pressured to produce a passing result,
perhaps to the point of recording false results. One commenter stated
that those who would not comply with the cleaning procedure are
unlikely to comply with cleaning verification.
    Again, as described above, EPA addressed potential conflicts-of-
interest in its lead-based paint program in the preamble to the final
Lead-based Paint Activities Regulations. That discussion outlined two
reasons for not requiring that inspections or risk assessments,
abatements, and post-abatement clearance testing all be performed by
different entities. The first was the cost savings and convenience of
being able to hire just one firm to perform all necessary lead-based
paint activities. The second was the potential regional scarcity of
firms to perform the work. EPA believes that these considerations may
be equally applicable to renovations, and perhaps more compelling,
given the objective of keeping this rule simple and relatively
inexpensive. EPA is concerned that a requirement that contractors
engage a third party for every renovation job will add undue
complication and expense to home renovations, and that it could delay
completion of renovation jobs. There are estimated to be 8.4 million
renovation events annually. Moreover, as stated above, it is not
uncommon for regulated entities to make determinations relating to
their regulated status. Thus, after weighing these competing
considerations, EPA has decided to take an approach that is consistent
with the approach taken in the 402(a) Lead-based Paint Activities
Regulation and not require third party visual inspections, testing, or
cleaning verification.
    x. Relationship between cleaning verification and the regulatory
lead-based paint hazard standards. Some commenters contend that
cleaning verification is not protective because it was designed to pass
based on the regulatory hazard standard for floors. These commenters
contend that this level is too high to be protective and that
continuing to use this level is unwarranted given more recent data that
demonstrates that lead causes neurocognitive effects at levels much
lower than 10 [mu]g/dL, the current CDC blood lead level of concern
which was used in establishing the regulatory hazard standards.
    EPA interprets the statutory directive to take into account safety
when promulgating work practice standards as meaning that such work
practice standards should be established in relation to lead-based
paint hazards--as identified pursuant to TSCA section 403. There is no
level of lead exposure that can yet be clearly identified, with
confidence, as clearly not being associated with potentially increased
risk of deleterious health effects. EPA does not believe the intent of
Congress was to require elimination of all possible risk arising from a
renovation, nor is EPA aware of a method that could reliably and
effectively accomplish this. Given that the hazard standards are the
trigger for regulation under section 402(c)(3) and that they are set
through rulemaking, EPA has concluded that it makes most sense to use
the same standards as the target level for safe work practices.
Otherwise, the potential is created for a scheme under which any
renovation activities found not to create hazards are not regulated at
all, whereas renovation activities found to create hazards trigger
requirements designed to leave the renovation site cleaner than the
unregulated renovations. Given the Congressional intent that the
section 403 hazard standards apply for purposes of subchapter IV of
TSCA, EPA is applying them as the target level for safe work practices,
which include the cleaning verification process, in this rule.
    8. Consistency with HUD. Several commenters recommended that EPA
adopt HUD's clearance requirement for activities other than abatement,
which some commenters noted has been successfully implemented in
projects in federally assisted housing. One pointed out that renovators
have accepted HUD's clearance testing protocol, and implementing the
``white glove'' method will cause confusion in the industry and give
contractors a reason for not following lead-safe work practices. A
commenter recommended that EPA adopt HUD's standard for exterior
clearance of visual inspection of the work area and a soil test.
Commenters expressed concern that the final rule could undermine more
stringent State

and local standards, and asked EPA to make clear that more stringent
state and local requirements for clearance would apply despite the lack
of mandatory clearance in the final rule.
    This final regulation does not supersede more stringent or
different requirements for interim control projects or renovations
regulated by HUD, the States, or local jurisdictions. Renovation firms
are still responsible for complying with all applicable Federal, State,
or local laws when conducting renovations. In some cases, this may mean
that dust clearance testing must be performed at the conclusion of a
renovation rather than cleaning verification. EPA believes that
renovation firms will be able to integrate these new requirements into
their existing business practices with very little difficulty.
    EPA also notes that the scope of the housing covered by HUD is
different than the scope covered by this final rule. As noted by the
commenter, HUD covers activities in projects in federally assisted
housing. The occupancy patterns, including turn-over, will be different
than in the general population covered by this final rule. While there
is some overlap, there are substantial differences. Thus, EPA believes
that total consistency with HUD is not needed.
    9. Optional use of clearance. In the 2006 Proposal, EPA proposed to
allow optional dust clearance sampling at the completion of renovation
activities instead of the post-renovation cleaning verification
described in Sec.  745.85(b). Some commenters agreed that the decision
whether to perform clearance at the conclusion of the job should be
left to the homeowner. One commenter asked EPA to require that, if a
resident arranged for clearance testing and found lead hazards, the
contractor would have to re-clean to the resident's satisfaction.
    As discussed, dust clearance sampling and cleaning verification are
not surrogates and EPA is not requiring renovation firms to perform an
abatement, i.e., eliminate all lead-based paint hazards, as part of a
renovation. The Dust Study demonstrated that cleaning verification is
quite often needed to minimize exposure to dust-lead hazards created
during renovations. EPA is concerned that if dust clearance sampling
were allowed instead of cleaning verification, without an accompanying
requirement that the renovation firm re-clean until clearance is
achieved, the rule would actually be less protective because the
surfaces in the work area could be left less clean than if cleaning
verification were performed.
    In response to these comments, EPA has further considered the issue
and decided to allow dust clearance sampling instead of cleaning
verification only in certain limited situations. EPA agrees with the
commenters that, if the rule were to allow clearance sampling instead
of verification, EPA would have to require the renovator to achieve
clearance, otherwise, there would be no check on whether the renovation
had been safely performed. HUD's Lead Safe Housing Rule requires
clearance to be achieved in many situations, as do several States. For
example, the State of New Jersey requires dust clearance sampling and
clearance in certain situations in multi-unit rental housing.As noted
in Unit III.G. of this preamble, States, Territories, and Tribes may
choose to have as protective as or more protective requirements than
this final rule. One example of a more protective requirement would be
a requirement to perform dust clearance testing and achieve clearance
after renovations. Another example may be requiring that trained
renovation workers demonstrate achievement of clearance levels by other
cleaning verification methods, such as using newer technologies. If a
firm can demonstrate, for example, using data obtained in the field,
that it regularly meets the clearance standards without using the EPA
specified approach but rather by using newer technology or alternative
methods, a State may request that EPA evaluate such a provision as
being as protective as or more protective than the methods described in
this final rule.
    Therefore, in situations where the contract between the renovation
firm and the property owner or another regulation, such as HUD's Lead-
Safe Housing Rule or a state regulation, requires dust clearance
sampling by a properly qualified person and requires the certified
renovator or a worker under the direction of the certified renovator to
re-clean until clearance is achieved, EPA will allow the renovation
firm to use both dust clearance testing and clearance instead of the
cleaning verification step.
    Property owners in other situations may still choose to perform
dust testing at any time, such as after a renovation, including
cleaning verification, has been completed. EPA recommends that property
owners who choose to have dust testing performed use certified dust
sampling professionals such as inspectors, risk assessors, or dust
sampling technicians. EPA also recommends that property owners who wish
to have dust testing performed after a renovation reach an agreement
with the renovation firm up front as to what will happen based on the
results of the dust testing, such as whether additional cleaning will
be performed if the surfaces do not achieve the clearance standards in
40 CFR 745.227(e)(8)(viii).

F. Recordkeeping for Renovation Firms

    1. Recordkeeping--a. Pre-renovation education. 40 CFR 745.86
already requires that persons performing renovations in target housing
document compliance with the lead hazard information distribution
provisions of the Pre-Renovation Education Rule. Consistent with the
2006 Proposal, this final rule deletes existing 40 CFR 745.88 because
it contains only sample acknowledgment statements for the purpose of
documenting compliance with the information distribution requirements
and is thus unnecessary. EPA received no comments on this proposed
deletion. In addition, EPA received no substantive comments on the
sample acknowledgment form provided with the proposed rule. New sample
acknowledgment forms incorporating language consistent with this final
rule and reflecting commenter editorial suggestions are available on
EPA's website at http://www.epa.gov/lead and from the National Lead
Information Center at 1-(800)-424-LEAD (5323).
    In addition, as proposed in the 2006 Proposal, EPA has modified
paragraph (a) of 40 CFR 745.86 to make compliance with the
recordkeeping requirements the responsibility of the renovation firm,
not the certified renovator. Although, as discussed below, this final
rule requires the certified renovator assigned to a renovation to
certify compliance with the work practice requirements for that
renovation, the renovation firm may choose to delegate other tasks
associated with recordkeeping requirements to someone other than a
certified renovator. For example, this rule does not require a
certified renovator to distribute lead hazard information to owners and
occupants before a renovation, nor does it require a certified
renovator to obtain the necessary acknowledgment statements or
certified mail receipts. The renovation firm may decide that it is more
efficient to have someone other than the certified renovator perform
these tasks.
    As described in Unit III.B.2. of this preamble, this final rule
expands the information distribution requirements to renovations in
child-occupied facilities. In proposing this expansion, the 2007
Supplemental Proposal included

associated recordkeeping requirements for firms performing renovations
in child-occupied facilities. Although EPA did receive comments on
extending the information distribution requirements to child-occupied
facilities, none of these comments specifically addressed the
recordkeeping provisions themselves. EPA has determined that the
recordkeeping requirements are an important part of monitoring
compliance with and ensuring the effectiveness of the information
distribution provisions of this rule. Therefore, this final rule
retains the existing recordkeeping requirements for pre-renovation lead
hazard information distribution in target housing and extends those
recordkeeping requirements to renovations in child-occupied facilities.
Firms performing renovations in target housing or child-occupied
facilities must obtain and retain signed and dated acknowledgements of
receipt of the lead hazard information from building owners or a
certificate of mailing for such information. In addition, renovation
firms must obtain and retain signed and dated acknowledgments of
receipt from the occupant (the resident of the housing unit being
renovated or the proprietor of the child-occupied facility) or
certificates of mailing for such information, or the firm must prepare
a certification that documents the attempts made to provide this
information to the occupants. For renovations in common areas in target
housing, the firm must also document the steps taken to provide
information to the tenants with access to the common area being
renovated. Finally, firms performing renovations in child-occupied
facilities must take steps to provide information to the parents and
guardians of children under age 6 using the facility. Firms may do this
by either mailing each parent or guardian the lead hazard information
pamphlet and a general description of the renovation or by posting
informational signs where parents and guardians are likely to see them.
Informational signs must be accompanied by a posted copy of the
pamphlet or information on how to obtain the pamphlet at no charge to
interested parents or guardians. The firm's activities with respect to
parents and guardians must also be documented.
    b. Documentation of compliance with other regulatory provisions.
This final rule provides for a number of exceptions. Unit III.A.3. of
this preamble describes an exception for renovations in owner-occupied
target housing that is neither the residence of a child under age 6 or
apregnant woman, nor a child-occupied facility. In order for a
renovation to be eligible for this exception, the renovation firm must
obtain a signed statement from the owner of the housing to the effect
that he or she is the owner of the housing to be renovated, that he or
she resides in the housing to be renovated, that no child under 6 or no
pregnant woman resides there, that the housing is not a child-occupied
facility, and that the owner acknowledges that the work practices to be
used during the renovation will not necessarily include all of the work
practices contained in EPA's renovation, repair, and painting rule.
Consistent with the 2006 Proposal and the 2007 Supplemental Proposal,
this final rule requires renovation firms to maintain this signed
statement, which must include the address of the housing being
renovated, for 3 years after the completion of the renovation. Again,
although EPA received comments on the merits of this exception, no
comments were directed specifically to the recordkeeping requirement.
EPA has determined that the recordkeeping requirement is necessary to
allow EPA to monitor compliance with the terms of this exception.
    This final rule also requires firms performing renovations to
retain documentation of compliance with the work practices and other
requirements of the rule. Specifically, the firm must document that a
certified renovator was assigned to the project, that the certified
renovator provided on-the-job training for workers used on the project,
that the certified renovator performed or directed workers who
performed the tasks required by this final rule, and that the certified
renovator performed the post-renovation cleaning verification. This
documentation must include a copy of the certified renovator's training
certificate. Finally, the documentation must include a certification by
the certified renovator that the work practices were followed with
narration as applicable. The certification must include the specific
information listed in Sec.  745.86(b)(7). The firm must keep this
information for 3 years after the completion of the renovation.
    The 2006 Proposal also included a requirement that renovation firms
maintain documentation of compliance with the renovator and worker
training requirements and the work practice requirements. This
documentation would have had to include signed and dated descriptions
of how activities performed by the certified renovator were conducted
in compliance with the proposed requirements. To demonstrate how these
recordkeeping requirements might be met, EPA prepared and placed into
the docket a draft recordkeeping checklist.
    EPA received many comments on the substance of these recordkeeping
requirements and on the draft recordkeeping checklist. Some commenters
thought that the purpose of the recordkeeping requirement should be to
provide important information to consumers or to serve as part of the
record of whether a particular structure was lead-safe. Some, but not
all of these commenters suggested that there was no need for the
renovation firm to retain the records it prepares. Rather, the records
should be given to the owners and occupants of the building either
before or after the renovation. However, as proposed, the recordkeeping
requirement served two purposes. The first is to allow EPA or an
authorized State to review a renovation firm's compliance with the
substantive requirements of the regulation through reviewing the
records maintained for all of the renovation jobs the firm has done.
The second is to remind a renovation firm what it must do to comply.
EPA envisioned that renovation firms would use the recordkeeping
requirements and checklist as an aid to make sure that they have done
everything that they are required to do for a particular renovation.
For these two purposes, there is no substitute for recordkeeping by
renovation firms.
    However, EPA agrees with those commenters that felt that the
recordkeeping requirements were vague, particularly in light of the
draft recordkeeping checklist itself and the amount of time that EPA
estimated it would take a renovation firm to complete the checklist.
Many commenters said that it was unclear how much detail EPA would be
looking for in descriptions of how the firm complied with the various
work practices, and some noted that an extensive narrative would
contribute no more to compliance or enforcement than a box checked to
indicate that the requirements had been complied with.
    In response to these commenters, EPA has revised that draft
recordkeeping checklist to be more in the nature of a checklist, with a
certification that the representations on the form are true and
correct. Narrative information is still required where necessary, such
as an identification of the brand of test kits used, the locations
where they were used, and the results. EPA has also revised the
regulatory text to describe the specific information that must be
provided and the specific items for which a certification of compliance
is

required. The regulatory text at 40 CFR 745.86(b)(7) now contains a
list of work practice elements that must be certified as having been
performed. In response to two commenters that suggested that the only
person truly capable of certifying that the lead-safe work practices
were followed on a particular job would be the certified renovator
assigned to that job, EPA is requiring the certification to be
completed by the certified renovator assigned to the renovation. EPA
has determined that a review of the records maintained by renovation
firms will be an effective method of determining whether a particular
firm is generally complying with the regulations or not.
    2. Notification to EPA. In the 2006 Proposal, EPA requested comment
on, but did not propose, a requirement that renovation firms notify EPA
before beginning a covered renovation project. Most commenters
supported a notification requirement, arguing notifications would
provide information to EPA about where renovation activities will be
occuring, so EPA could inspect ongoing renovation projects for
compliance with the requirements of this rule. These commenters stated
that EPA would be unable to enforce the requirements of the rule
without a notification provision. Some commenters also suggested that
the act of informing EPA of their activities provides a powerful
incentive for renovation firms to comply. Other commenters observed
that prior notification for every covered renovation would be too
burdensome for the regulated community and for the Agency. Some of
these commenters suggested that notifications only be required for
renovations involving high-risk methods, housing where a child under
age 6 or a pregnant woman resides, or renovations involving multiple
rooms in a housing unit.
    This final rule does not include a prior notification requirement.
EPA disagrees with the notion that there is no way to enforce this
regulation without a prior notification requirement. As stated above in
the discussion on recordkeeping, EPA believes that a review of a
renovation firm's records will demonstrate whether or not a renovation
firm generally complies with the regulations. In addition, as at least
one commenter noted, many renovations require a building permit from
the local permitting authority. EPA can work with the local authorities
to identify inspection targets. EPA can also follow up on tips and
complaints.
    EPA agrees with those commenters that believe that prior
notification for every project is simply too burdensome for the
regulated community and for the Agency. If the streamlined, telephone-
based system recommended by some of the commenters were implemented, it
would reduce the initial burden on the renovation firms. However, EPA
would still have to process millions of such notifications annually,
and the collective burden on renovation firms and the government would
be considerable. Rather than require millions of notifications
annually, the great majority of which would never be reviewed, EPA
prefers to use other methods for targeting renovation projects for
inspections.
    An initially attractive option considered by EPA was a prior
notification requirement for a subset of covered renovation projects.
This option could potentially reduce the notifications received to a
manageable level, while preserving the benefits of a prior notification
requirement, but EPA was unable to develop appropriate criteria for
defining which renovations would require prior notification. EPA
considered requiring prior notification for renovations using certain
high-risk practices, the practices prohibited by the HUD Lead Safe
Housing Rule and EPA's Lead-based Paint Activities Regulations.
However, EPA ultimately decided, as described in Unit III.E.6. of this
preamble, to prohibit most of those practices for covered renovations.
Requiring prior notifications only for renovations in housing where a
child under age 6 resides and in child-occupied facilities would not
significantly reduce the notifications that would be required. EPA
determined that a prior notification requirement tied to project size
would not be feasible or effective, because the hazard potential from a
renovation job is a combination of the size of the project and the
activity being performed.
    With regard to the compliance mindset mentioned by some commenters,
EPA believes that the recordkeeping requirements are a less burdensome
way to achieve the same goal. In fact, a prior notification requirement
could lead to EPA targeting for inspection those persons who are most
likely to be making an effort to comply with the substantive
requirements of the regulation. The person who would not bother to
comply with the substantive provisions of this rule would most likely
avoid filing a prior notification to EPA before beginning a covered
renovation, repair, or painting project. These persons are more likely
to be performing renovations in a non-compliant manner than are persons
who have complied with a prior notification requirement and told EPA
where to find them.
    EPA has therefore determined that a prior notification requirement
is not an effective or efficient means of facilitating the monitoring
of compliance with this regulation. States, Territories, and Tribes
developing their own renovation, repair, and painting programs may come
to a different conclusion. These jurisdictions are free to establish
prior notification schemes that make sense for their community.

G. State, Territorial, and Tribal Programs

    1. In general. Because of the enormous number of renovation
activities that occur in this country on an annual basis, EPA welcomes
the help of its State, Territorial, and Tribal partners to ensure that
these renovations are performed by trained persons in accordance with
this final rule. This final rule establishes, in accordance with TSCA
section 404 and EPA's Policy for the Administration of Environmental
Programs on Indian Reservations (Ref. 46), requirements for the
authorization of State, Territorial, and Tribal renovation, repair, and
painting programs. The process for obtaining authorization to operate
these programs in lieu of the Federal program is the same process used
to authorize State, Territorial, and Tribal lead-Based Paint Activity
or Pre-Renovation Education programs found in 40 CFR part 745, subpart
Q.
    Interested States, Territories, and Indian Tribes may apply for,
and receive authorization to, administer and enforce all of the
elements of the new subpart E, as amended. States, Territories and
Tribes may choose to administer and enforce just the existing
requirements of subpart E, the pre-renovation education elements, or
all of the requirements of the proposed subpart E, as amended. The 2006
Proposal and the 2007 Supplemental Proposal would not have provided for
the authorization of State, Territorial, or Tribal programs that
include only the training, certification, accreditation, and work
practice requirements for renovation, repair, and painting programs and
not the pre-renovation education provisions of subpart E. EPA proposed
this approach because the Agency believes that the pre-renovation
education provisions are an integral part of ensuring that consumers
have the information they need to make informed decisions about
renovation practices in their homes and other buildings. In addition,
consistent with the proposals, this final rule encourage renovation
firms to use the existing pamphlet acknowledgment

process to provide owner-occupants of target housing with the
opportunity to opt out of the training, certification, and work
practice requirements of the rule if they reside in the housing to be
renovated, there is no child under age 6 orpregnant woman in residence,
the housing does not otherwise meet the definition of child-occupied
facility, and the owner acknowledges that the work practices to be used
during the renovation will not necessarily include all of the lead-safe
work practices contained in EPA's renovation, repair, and painting
rule.
    One State commenter disagreed with EPA's proposed approach and
requested that EPA authorize State, Territorial or Tribal programs that
incorporate only the training, certification, accreditation, and work
practices of this final rule because TSCA section 404 allows states to
administer and enforce the standards, regulations, or other
requirements established under TSCA section 402 or TSCA section 406 or
both. EPA agrees with this commenter's reading of TSCA. Therefore, this
final rule provides for the authorization of State, Territorial, or
Tribal programs that include either the pre-renovation education
requirements of 40 CFR part 745, subpart E, or the training,
certification, accreditation and work practice requirements of this
rule, or both.
    States, Territories, and Tribes that wish to administer and enforce
the pre-renovation education provisions of subpart E, as amended, must
include both target housing and child-occupied facilities within the
scope of their program. Similarly, States, Territories, and Tribes that
are also interested in obtaining authorization to administer and
enforce the training, certification, accreditation, work practice, and
recordkeeping elements of subpart E, as amended, must include both
target housing and child-occupied facilities within the scope of their
program. States with existing authorized pre-renovation education
programs are required to demonstrate that they have modified their
programs to include child-occupied facilities. These States must
provide this demonstration no later than the first report submitted
pursuant to 40 CFR 745.324(h) on or after April 22, 2009.
    2. Process. The authorization process currently codified at 40 CFR
part 745, subpart Q, will be used for the purpose of authorizing State,
Territorial, and Tribal renovation, repair, and painting programs.
States, Territories, and Tribes seeking authority for their programs
must obtain public input, then submit an application to EPA.
Applications must contain a number of items, including a description of
the State, Territorial, or Tribal program, copies of all applicable
statutes, regulations, and standards, and a certification by the State
Attorney General, Tribal Counsel, or an equivalent official, that the
applicable legislation and regulations provide adequate legal authority
to administer and enforce the program. The program description must
demonstrate that the State, Territorial, or Tribal program is at least
as protective as the Federal program. In this case, the Federal program
consists of the requirements for training, certification, and
accreditation and the work practice standards of this final rule.
    One commenter suggested that EPA require States with a currently
authorized TSCA 402(a) lead-based paint activities program to submit
only an amended application for incorporating the TSCA section
402(c)(3) renovation, repair, and painting program requirements since
many of the required documents would be the same as those submitted for
the original TSCA 402(a) application. Furthermore, the commenter
recommended that a letter from the State agency identified in the
original 402(a) authorization application with a synopsis detailing how
the State proposes to administer and enforce the renovation, repair,
and painting program serve as an amended application. EPA has
determined that a new application for authorization for the renovation,
repair, and painting program is necessary because there may be a
different State agency or consortia of agencies implementing and
enforcing this program, a long time may have elapsed since most States
submitted their TSCA section 402(a) program application, and many of
the requirements within the elements of the renovation, repair, and
painting program differ from their counterparts in the lead-based paint
activities program.
    To be eligible for authorization to administer and enforce the
training, certification, accreditation, and work practice requirements
of this final rule, State, Territorial, and Tribal renovation programs
must contain certain minimum elements, e.g., work practice standards
and procedures and requirements for the certification of individuals
and/or firms, that are very similar to the existing minimum elements
specified in 40 CFR 745.326(a) for lead-based paint activities
programs. In order to be authorized, State, Territorial, or Tribal
programs must have procedures and requirements for the accreditation of
training programs, which can be as simple as procedures for accepting
training provided by an EPA-accredited provider, or a provider
accredited by another authorized State, Territorial, or Tribal program.
Procedures and requirements for the certification of renovators are
also necessary. At a minimum, these must include a requirement that
certified renovators have taken accredited training, and procedures and
requirements for re-certification. State, Territorial, and Tribal
programs applying for authorization must also include work practice
standards for renovations that ensure that renovations are conducted
only by certified renovation firms and the renovations are conducted
using work practices at least as protective as those of the Federal
program. As is the current practice with lead-based paint activities,
EPA will not require State, Territorial, or Tribal programs to certify
both firms and individuals that perform renovations. States,
Territories and Tribes may choose to certify either firms or
individuals, so long as the individuals that perform the duties of
renovators are required to take accredited training.
    3. Implementation. In order to provide interested States,
Territories and Tribes time to develop, or begin developing renovation,
repair, and painting programs in accordance with this rule, EPA will
not begin to actively implement the Federal program until April 22,
2009, at which time EPA will begin accepting applications for training
program accreditation. Several commenters thought 1 year would be
adequate for the purpose of allowing States, Territories, and Tribes to
develop their own programs, while others expressed concern that 1 year
would not be enough time to get these programs developed and
authorized. Most commenters who expressed an opinion on this topic
generally agreed that an implementation delay is necessary. Reasons
given in support of a delay were conservation of State financial and
administrative resources and the fact that some States have had
difficulties in retraining contractors to new State-specific
requirements after the contractors had become accustomed to working
under the Federal program. In contrast, some commenters argued that, in
light of the 2010 goal, no delay whatsoever was warranted. This final
rule retains the 1 year implementation delay set forth in the 2006
Proposal. EPA has determined that this period of time represents an
appropriate balance between the need to implement this rule quickly and
concerns over potential duplication of effort and additional

costs incurred by the regulated community if EPA begins accrediting
training providers and certifying firms in jurisdictions that are also
working towards implementing their own programs. States, Territories,
and Tribes may begin the authorization process at any time after the
effective date of this final rule, even after the Federal program has
been implemented in their jurisdiction.
    Some commenters were concerned about the effect of this rule on
existing State programs. Several commenters asked EPA to expressly
state that this rule does not pre-empt existing State programs and that
State programs that are more stringent than the Federal program will be
eligible for authorization. One commenter noted that the number of
houses with lead contaminated paint is disproportionately distributed
throughout the U.S. This commenter pointed out that this apparent
disparity supports the need for State control of lead programs and for
EPA to practice ``regulatory restraint.'' According to this commenter,
this ``regulatory restraint'' will allow States with more severe lead
paint problems to impose stricter standards and requirements regarding
certification and work practices without imposing unnecessary burdens
on States with less severe problems.
    This final rule does not preempt existing programs that address
renovations. However, to the extent that these programs are less
protective than the requirements of this final rule, the requirements
of this final rule will apply. To be eligible for authorization, State,
Territorial, and Tribal programs need not exactly duplicate the Federal
program contained in this final rule, but they must still meet the
requirement of TSCA section 404 that they be ``at least as protective
as'' the Federal program. It would be difficult for the Agency to
describe specific requirements that would make a program more or less
``protective.'' EPA will review each program application separately
against the protections provided by this final rule.
    Several commenters expressed concern regarding the uniformity and
consistency of State programs. Some recommended that EPA take States'
concerns into account, but guarantee uniformity of State programs by
prohibiting States from arbitrarily deviating from program elements.
Others noted that if there are uniform regulations for approved
training courses for State certification, there should be reciprocity
between States since many people work in multiple States. One commenter
suggested that, in an effort to promote consistency, States institute a
lead-safety test that renovators must pass prior to receiving permits
to conduct work. Several commenters noted that a lack of reciprocity
between States and/or duplicative or divergent certification
requirements will add an unnecessary burden and level of complexity for
renovation and remodeling firms, especially those working in multi-
State areas. One commenter argued that this could lead to a problem in
maintaining certifications similar to the problem the commenter
believes exists in maintaining lead-based paint inspector, risk
assessor, and other certifications associated with TSCA section 402
abatements. One suggested that EPA should exert control over the right
to refuse approval of State programs unless they provide for
reciprocity with the Federal program and programs of other
jurisdictions approved by EPA.
    The standard of EPA review for State, Territorial, and Tribal
programs under TSCA section 404 is that they be ``at least as
protective'' as the Federal program. In addition, TSCA section 404 (e)
reserves the right of States and their political subdivisions to impose
requirements that are more stringent than the Federal program. EPA
interprets this to mean that EPA cannot compel States, Territories, and
Tribes to adopt programs identical to the Federal program or to
establish reciprocity provisions. However, EPA continues to encourage
States, Territories, and Tribes that may be considering establishing
their own renovation programs to keep reciprocity in mind as they move
forward. The benefits to be derived from reciprocity arrangements with
the Federal program and other authorized jurisdictions include
potential cost-savings from reducing duplicative activity and the
development of a professional renovation workforce more quickly, thus
providing maximum flexibility to State, Territorial, or Tribal
residents. In addition, the Agency encourages States, Territories and
Tribes to consider the use of existing certification and accreditation
procedures as they develop their programs. These existing programs need
not be limited to lead-based paint. For example, a State may choose to
add lead-safe renovation requirements to their existing contractor
licensing programs.

H. Effective Date and Implementation Dates

    This final rule is effective on June 23, 2008. This final rule will
be implemented according to the following schedule:
    1. As of June 23, 2008.
    a. States, Territories, and Tribes may begin applying for
authorization to administer and enforce their own renovation, repair,
and painting programs. EPA will begin authorizing States, Territories,
and Tribes as soon as it receives their complete applications.
    b. No training program may provide, offer, or claim to provide
training or refresher training for EPA certification as a renovator or
a dust sampling technician without accreditation from EPA under 40 CFR
745.225.
    2. As of April 22, 2009. Training programs for renovators or dust
sampling technicians may begin applying for accreditation under 40 CFR
745.225. EPA will begin accrediting training programs as soon as it
receives complete applications from training providers. Individuals who
wish to become certified renovators or dust sampling technicians may
begin taking accredited training as soon as it is available.
    3. As of October 22, 2009. Renovation firms may begin applying for
certification under 40 CFR 745.89. EPA will begin certifying renovation
firms as soon as it receives their complete applications.
    4. As of April 22, 2010. The rule will be fully implemented.
    a. No firm may perform, offer, or claim to perform renovations
without certification from EPA under 40 CFR 745.89 in target housing or
child-occupied facilities, unless, in the case of owner-occupied target
housing, the firm has obtained a statement signed by the owner that the
renovation will occur in the owner's residence, no child under age 6
resides there, the housing is not a child-occupied facility, and the
owner acknowledges that the work practices to be used during the
renovation will not necessarily include all of the lead-safe work
practices contained in EPA's renovation, repair, and painting rule.
    b. All renovations must be directed by renovators certified in
accordance with 40 CFR 745.90(a) and performed by certified renovators
or individuals trained in accordance with 40 CFR 745.90(b)(2) in target
housing or child-occupied facilities, unless, in the case of owner-
occupied target housing, the firm performing the renovation has
obtained a statement signed by the owner that the renovation will occur
in the owner's residence, no child under age 6 resides there, the
housing is not a child-occupied facility, and the owner acknowledges
that the work practices to be used during the renovation will not
necessarily include all of the lead-safe work practices contained in
EPA's renovation, repair, and painting rule.

    c. All renovations must be performed in accordance with the work
practice standards in 40 CFR 745.85 and the associated recordkeeping
requirements in 40 CFR 745.86(b)(6) and (b)(7) in target housing or
child-occupied facilities, unless, in the case of owner-occupied target
housing, the firm performing the renovation has obtained a statement
signed by the owner that the renovation will occur in the owner's
residence, no child under age 6 resides there, the housing is not a
child-occupied facility, and the owner acknowledges that the work
practices to be used during the renovation will not necessarily include
all of the lead-safe work practices contained in EPA's renovation,
repair, and painting rule.
    With respect to the new renovation-specific pamphlet and the
requirements of the Pre-Renovation Education Rule, as of the effective
date of the rule June 23, 2008, renovators or renovation firms
performing renovations in States and Indian Tribal areas without an
authorized Pre-Renovation Education Rule program may provide owners and
occupants with either of the following EPA pamphlets: Protect Your
Family From Lead in Your Home; or Renovate Right: Important Lead Hazard
Information for Families, Child Care Providers and Schools. As of
December 22, 2008, Renovate Right: Important Lead Hazard Information
for Families, Child Care Providers and Schools must be used
exclusively.

IV. References

    The following is a list of the documents that are specifically
referenced in this final rule and placed in the public docket that was
established under Docket ID number EPA-HQ-OPPT-2005-0049. For
information on accessing the docket, refer to the ADDRESSES unit at the
beginning of this document.
    1. U.S. Environmental Protection Agency (USEPA). Air Quality
Criteria for Lead (September 29, 2006).
    2. President's Task Force on Environmental Health Risks and Safety
Risks to Children. Eliminating Childhood Lead Poisoning: A Federal
Strategy Targeting Lead Paint Hazards (February 2000).
    3. USEPA. Lead; Renovation, Repair, and Painting Program; Proposed
Rule. Federal Register (71 FR 1588, January 10, 2006).
    4. USEPA. Lead; Requirements for Lead-based Paint Activities; Final
Rule. Federal Register (61 FR 45778, August 29, 1996).
    5. USEPA. Lead; Fees for Accreditation of Training Programs and
Certification of Lead-based Paint Activities Contractors; Final Rule.
Federal Register (64 FR 31091, June 9, 1999).
    6. USEPA. Lead; Notification Requirements for Lead-Based Paint
Abatement Activities and Training; Final Rule. Federal Register (69 FR
18489, April 8, 2004).
    7. USEPA, Consumer Product Safety Commission (CPSC), U.S.
Department of Housing and Urban Development (HUD). Protect Your Family
From Lead in Your Home (EPA 747-K-99-001, June 2003).
    8. USEPA. Lead; Requirements for Hazard Education Before Renovation
of Target Housing; Final Rule. Federal Register (63 FR 29907, June 1,
1998).
    9. USEPA. Lead; Identification of Dangerous Levels of Lead; Final
Rule. Federal Register (66 FR 1206, January 5, 2001).
    10. USEPA. Reducing Lead Hazards When Remodeling Your Home (EPA747-
K-97-001, September 1997).
    11. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase I, Environmental Field Sampling Study (EPA 747-R-96-
007, May 1997).
    12. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase II, Worker Characterization and Blood-Lead Study (EPA
747-R-96-006, May 1997).
    13. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase III, Wisconsin Childhood Blood-Lead Study (EPA 747-R-
99-002, March 1999).
    14. USEPA. Lead Exposure Associated With Renovation and Remodeling
Activities: Phase IV, Worker Characterization and Blood-Lead Study of
R&R Workers Who Specialize in Renovation of Old or Historic Homes (EPA
747-R-99-001, March 1999).
    15. USEPA. Lead; Renovation, Repair, and Painting Program;
Supplemental Notice of Proposed Rulemaking. Federal Register (72 FR
31022, June 5, 2007).
    16. USEPA. Lead; Renovation, Repair, and Painting Program; Notice
of Availability. Federal Register (72 FR 12582, March 16, 2007).
    17. USEPA. Characterization of Dust Lead Levels After Renovation,
Repair, And Painting Activities. (November 13, 2007).
    18. USEPA. Lead Safety for Remodeling, Repair, And Painting. Joint
EPA/HUD Renovation Training Curriculum (EPA 747-B-03-001/2, July 2003).
    19. National Association of Home Builders (NAHB). Lead Safe Work
Practices Survey Project Report. Prepared by Atrium Environmental
Health and Safety Services (November 9, 2006).
    20. McMillan Associates. Response to SBREFA Panel Recommendations
for Further Analysis of Existing Phase III Data (August 6, 2001).
    21. U.S. Department of Health and Human Services (HHS), U.S. Public
Health Service (PHS), CDC. Children with Elevated Blood Lead Levels
Attributed to Home Renovation and Remolding Activities--New York, 1993-
1994. Morbidity and Mortality Weekly Report (45(51); 1120-1123, January
3, 1997).
    22. Reissman, Dori B., Thomas D. Matte, Karen L. Gurnite, Rachel B.
Kaufmann, and Jessica Leighton. ``Is Home Renovation or Repair a Risk
Factor for Exposure to Lead Among Children Residing in New York City?''
Journal of Urban Health: Bulletin of the New York Academy of Medicine.
Vol. 79, No. 4, 502-511, (December 2005).
    23. USEPA. Lead; Requirements for Lead-based Paint Activities;
Proposed Rule. Federal Register (59 FR 45872, September 2, 1994).
    24. USEPA. Office of Pollution Prevention and Toxics (OPPT)
``Economic Analysis for the TSCA Lead Renovation, Repair, and Painting
Program Final Rule for Target Housing and Child-Occupied Facilities''
(March 2008).
    25. S. Rep. 102-332, P.L. 102-550, Housing and Community
Development Act of 1992 (July 23, 1992).
    26. National Institute of Standards and Technology (NIST). Spot
Test Kits for Detecting Lead in Household Paint, a Laboratory
Evaluation (NISTIR 6398, May 2000).
    27. HUD. National Survey of Lead and Allergens in Housing, Volume
I: Analysis of Lead Hazards, Final Report, Revision 7.1. (October 31,
2002).
    28. ASTM International. Standard Practice for Evaluating the
Performance Characteristics of Qualitative Chemical Spot Test Kits for
Lead in Paint (E 1828-01).
    29. USEPA. Lead-Based Paint Pre-Renovation Education Rule;
Interpretive Guidance, Part I (May 28, 1999).
    30. USEPA and HUD. Lead; Requirements for Disclosure of Information
Concerning Lead-Based Paint in Housing; Final Rule. Federal Register
(61 FR 9064, March 6, 1996).
    31. USEPA, HUD. Renovate Right: Important Lead Hazard Information
for Families, Child Care Providers and Schools. (March 2008).
    32. USEPA. Lead-Based Paint Pre-Renovation Education Rule;
Interpretive Guidance, Part II (October 15, 1999).

    33. USEPA. Lead Sampling Technician Course (EPA 747-B-00-002, July
2000).
    34. HUD. Guidelines for the Evaluation and Control of Lead-Based
Paint Hazards in Housing (June 1995).
    35. USEPA. Lead Dust Minimization Work Practices for Renovation,
Remodeling and Repainting; Draft Technical Manual (September 29, 1998).
    36. National Institute for Occupational Safety and Health (NIOSH).
Health Hazard Evaluation; Rhode Island Department of Health; HETA 96-
0200-2799 (June 2000).
    37. USEPA. Electrostatic Cloth and Wet Cloth Field Study in
Residential Housing (September 2005).
    38. United States Department of Energy. Office of Health, Safety
and Security. http://www.hss.energy.gov/csa/csp/hepa.
    39. Occupational Safety and Health Administration (OSHA),
Department of Labor (DOL). Regulatory Flexibility Act Review of the
Occupational Safety Standard for Lead in Construction Labor (72 FR
54826, September 27, 2007).
    40. Rich, David Q. George G. Rhoads, Lih-Ming Yiin, Junfeng Zhang,
Zhipeng Bai, John L. Adgate, Peter J. Ashley, and Paul J. Lioy.
``Comparison of Home Lead Dust Reduction Techniques on Hard Surfaces:
the New Jersey Assessment of Cleaning Techniques Trial.'' Environmental
Health Perspectives 110(9): 889-893 (September 2002).
    41. HUD. Evaluation of Household Vacuum Cleaners in the Removal of
Settled Lead Dust from Hard Surface Floors. (December 27, 2002, revised
February 2006).
    42. Lih-Ming Yiin, George G. Rhoads, David Q. Rich, Junfeng Zhang,
Zhipeng Bai, John L. Adgate, Peter J. Ashley, and Paul J. Lioy.
``Comparison of Techniques to Reduce Residential Lead Dust on Carpet
and Upholstery: the New Jersey Assessment of Cleaning Techniques
Trial.'' Environmental Health Perspectives 110(12): 1233-1237.
(December 2002).
    43. Canadian Mortgage and Housing Corporation (CMHC).
``Effectiveness of Clean up Techniques for Leaded Paint Dust.'' (1992).
    44. USEPA. A Comparison of Post-Renovation and Remodeling Surface
Cleaning Techniques. Prepared by Clemson Environmental Technologies
Laboratory (December 14, 2001)
    45. CMHC. ``Evaluation of the Cleanup of Lead Paint Dust In
Houses.'' Prepared by Pinchin Environmental Consultants (1995).
    46. USEPA. EPA Policy for the Administration of Environmental
Programs on Indian Reservations (November 8, 1984).
    47. USEPA. ICR Final Rule Addendum for rulemaking entitled ``Lead;
Renovation, Repair, and Painting Program; Final Rule'' (March 2008).
    48 USEPA. Report of the Small Business Advocacy Review Panel on the
Lead-based Paint Certification and Training; Renovation and Remodeling
Requirements (March 3, 2000).
    49. Final Regulatory Flexibility Analysis for the Lead; Renovation,
Repair, and Painting Program; Final Rule (March 2008).
    50. ASTM International. Standard Practice for Clearance
Examinations Following Lead Hazard Reduction Activities in Single-
Family Dwellings and Child-Occupied Facilities (E 2271-05).
    51. ASTM International. Standard Guide for Evaluation, Management,
and Control of Lead Hazards in Facilities (E 2052-99).

V. Statutory and Executive Order Reviews

A. Executive Order 12866

    Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), it has been determined that this
rule is a ``significant regulatory action'' under section 3(f)(1) of
the Executive Order because EPA estimates that it will have an annual
effect on the economy of $100 million or more. Accordingly, this action
was submitted to the Office of Management and Budget (OMB) for review
under Executive Order 12866 and any changes made based on OMB
recommendations have been documented in the public docket for this
rulemaking as required by section 6(a)(3)(E) of the Executive Order.
    In addition, EPA has prepared an analysis of the potential costs
and benefits associated with this rulemaking. This analysis is
contained in the Economic Analysis (Ref. 24), which is available in the
docket for this action and is briefly summarized here.
    1. Types of facilities. This rule applies to an estimated 37.8
million pre-1978 facilities. Of these, approximately 37.7 million
facilities are located in target housing, either in rental housing,
owner-occupied housing where a child under age 6 resides, or owner-
occupied housing where no child under age 6 resides but that otherwise
meets the definition of a child-occupied facility. Approximately
100,000 facilities are child-occupied facilities in pre-1978 public or
commercial buildings.
    2. Options evaluated. EPA considered a variety of options for
addressing the risks presented by renovation, repair, and painting
actions where lead-based paint is present. The Economic Analysis
analyzed several different options for the scope of the rule, which
would limit the coverage of the rule's substantive provisions depending
on when the facility was built (such as pre-1960 or pre-1978), and
whether or not there are children under the age of 6 or a pregnant
woman residing in owner-occupied housing. In some options, coverage of
the rule was phased in over time. EPA also considered different options
for work practices, such as containment, cleaning, and cleaning
verification.
    3. Number of events and individuals affected. In the first year
that all of the rule requirements will be in effect, there will be an
estimated 8.4 million renovation, repair, and painting events where
lead-safe work practices will be used due to the rule. As a result,
there will be approximately 1.4 million children under the age of 6 who
will be affected by having their exposure to lead dust minimized due to
the rule. There will also be about 5.4 million adults who will be
affected. After improved test kits for determining whether a painted
surface contains lead-based paint become available (which is assumed in
the analysis to occur by the second year of the rule), the number of
renovation, repair, and painting events using lead-safe work practices
is expected to drop to 4.4 million events per year. No change in the
number of exposures avoided due to the rule is expected because the
improved test kit will more accurately identify paint without lead,
thus reducing the number of events unnecessarily using the required
work practices.
    4. Benefits. The Economic Analysis describes the estimated benefits
of the rulemaking in qualitative and quantitative terms. Benefits
result from the prevention of adverse health effects attributable to
lead exposure. These health effects include impaired cognitive function
in children and several illnesses in children and adults. EPA estimated
the benefits of avoided incidence of IQ loss due to reduced lead
exposure to children under the age of 6. There are not sufficient data
at this time to develop dose-response functions for other health
effects in children or for pregnant women. The benefits of avoided
exposure to adults were not quantified due to uncertainties about the
exposure of adults to lead in dust from renovation, repair, and
painting activities in these facilities.
    The rule is estimated to result in quantified benefits of
approximately $700 million to $1,700 million in the first year. The 50-
year annualized benefits provide a measure of the

steady-state benefits. The quantified IQ benefits to children are
expected to be approximately $700 million to $1,700 million per year
when annualized using a 3% discount rate, and $700 million to $1,800
million per year when using a 7% discount rate. The estimated benefits
for the other scope options range from approximately $300 million to
$1,700 million using a 3% discount rate and from $300 million to $1,800
million using a 7% discount rate. The benefits from prohibiting certain
paint preparation and removal practices in renovations requiring lead-
safe work practices under the rule are estimated to be $400 million to
$900 million per year using a 3% discount rate. There are additional
unquantified benefits, including other avoided health effects in
children and adults.
    5. Costs. The Economic Analysis estimates the costs of complying
with the rule. Costs may be incurred by contractors that perform
renovation, repair, and painting work for compensation, landlords that
use their own staff to perform renovation, repair, and painting work in
leased buildings; and child-occupied facilities that use their own
staff to perform renovation, repair, and painting work.
    The rule is estimated to result in a total cost of approximately
$800 million in the first year that all of the rule requirements will
be in effect. The cost is estimated to drop to approximately $400
million per year in the second year when the improved test kits are
assumed to become available. The 50-year annualized costs provide a
measure of the steady-state cost. Annualized costs of the rule are
estimated to be approximately $400 million per year using either a 3%
discount rate or a 7% discount rate. Annualized costs for the other
scope options range from approximately $300 million to approximately
$700 million per year using a 3% discount rate and $400 million to $700
million per year using a 7% discount rate. The cost of prohibiting
certain paint preparation and removal practices is estimated to cost
less than $10 million per year using either a 3% or a 7% discount rate
    6. Net benefits. Net benefits are the difference between benefits
and costs. The rule is estimated to result in net benefits of--$50
million to $1,000 million in the first year, based on children's IQ
benefits alone. The 50-year annualized net benefits for the rule based
on children's benefits are estimated to be $300 million to $1,300
million per year using either a 3% or a 7% discount rate. The
annualized net benefits for the other scope options range from
approximately--$50 million to $1,300 million per year using either a 3%
or a 7% discount rate. The net benefits of prohibiting certain paint
preparation and removal practices for renovations requiring lead-safe
work practices are estimated to be approximately $400 million to $900
million per year using either a 3% or a 7% discount rate. There are
additional unquantified benefits, including other avoided health
effects in children and adults that are not included in the net
benefits estimates.
    It is important to note that the EPA analysis generates certain
results that seem to indicate that more stringent control options yield
smaller improvements reducing the risks of elevated blood lead levels
in children than do less stringent control options. For example, the
analysis estimates that using only containment of dust and debris
generated during a RRP activity yields higher benefits than using all
of the rule's work practices (containment, specialized cleaning, and
cleaning verification). This is the opposite of what one might expect
and of what is observed in the Dust Study for the 10 experiments that
used the proposed rule cleaning and containment, since the benefits
analysis implies that the combination of rule-style containment with
rule-style cleaning and verification would result in more exposure than
when such containment is combined with conventional cleaning. This is
inconsistent with the Dust Study which shows that the largest decreases
were observed in the 10 experiments where this final rule's practices
of containment, specialized cleaning, and cleaning verification were
used. Therefore, the anomalous results are likely to be artifacts of
sparse underlying data and modeling assumptions. Although EPA
summarizes some of the potential causes of these unexpected results in
the Economic Analysis, at this time EPA is unclear as to precisely what
is leading to these unexpected results. Because EPA has not determined
why the benefits analyses contain anomalous results, EPA has limited
confidence in the estimated benefits. EPA does not view the results as
being sufficiently robust to represent the difference in magnitude of
the benefits across regulatory alternatives. Nevertheless, EPA is
confident that there are positive benefits.

B. Paperwork Reduction Act

    The information collection requirements contained in this rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document prepared by EPA, an
amendment to an existing ICR and referred to as the ICR Final Rule
Addendum (EPA ICR No. 1715.10, OMB Control Number 2070-0155) has been
placed in the public docket for this rule (Ref. 47). The information
collection requirements are not enforceable until OMB approves them.
    The new information collection activities contained in this rule
are designed to assist the Agency in meeting the core objectives of
TSCA section 402, including ensuring the integrity of accreditation
programs for training providers, providing for the certification of
renovators, and determining whether work practice standards are being
followed. EPA has carefully tailored the recordkeeping requirements so
they will permit the Agency to achieve statutory objectives without
imposing an undue burden on those firms that choose to be involved in
renovation, repair, and painting activities.
    Burden under the Paperwork Reduction Act means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, disclose or provide information to or for a Federal
agency. This includes the time needed to review instructions; develop,
acquire, install, and utilize technology and systems for the purposes
of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
    Under this rule, the new information collection requirements may
affect training providers and firms that perform renovation, repair, or
painting for compensation. Although these firms have the option of
choosing to engage in the covered activities, once a firm chooses to do
so, the information collection activities contained in this rule become
mandatory for that firm.
    The ICR document provides a detailed presentation of the estimated
burden and costs for 3 years of the program. The aggregate burden
varies by year due to changes in the number of firms that will seek
certification each year. The burden and cost to training providers and
firms engaged in renovation, repair, and painting activities is
summarized below.
    It is estimated that approximately 170 training providers will
incur burden to

notify EPA (or an authorizing State, Tribe, or Territory) before and
after training courses. The average burden for training provider
notifications is estimated at 20 to 100 hours per year, depending on
the number of training courses provided. Total training provider burden
is estimated to average 9,000 hours per year. There are approximately
211,000 firms estimated to become certified to engage in renovation,
repair, or painting activities. The average certification burden is
estimated to be 3.5 hours per firm in the year a firm is initially
certified, and 0.5 hours in years that it is re-certified (which occurs
every 5 years). Firms must also distribute lead hazard information to
the owners and occupants of public or commercial buildings that contain
child-occupied facilities and in target housing containing child-
occupied facilities. Finally, firms must keep records of the work they
perform; this recordkeeping is estimated to average approximately 5
hours per year per firm. Total burden for these certified firms is
estimated to average 1,373,000 hours per year. Total respondent burden
during the period covered by the ICR is estimated to average
approximately 1,382,000 hours per year.
    There are also government costs to administer the program. States,
Tribes, and Territories are allowed, but are under no obligation, to
apply for and receive authorization to administer these requirements.
EPA will directly administer programs for States, Tribes, and
Territories that do not become authorized. Because the number of
States, Tribes, and Territories that will become authorized is not
known, administrative costs are estimated assuming that EPA will
administer the program everywhere. To the extent that other government
entities become authorized, EPA's administrative costs will be lower.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations codified in Chapter 40 of the CFR, after appearing in the
preamble of the final rule, are listed in 40 CFR part 9, are displayed
either by publication in the Federal Register or by other appropriate
means, such as on the related collection instrument or form, if
applicable. When this ICR is approved by OMB, the Agency will publish a
technical amendment to 40 CFR part 9 in the Federal Register to display
the OMB control number for the approved information collection
requirements contained in this final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small
entities, small entity is defined in accordance with section 601 of the
RFA as: (1) A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
    Pursuant to section 603 of the RFA, EPA prepared an initial
regulatory flexibility analysis (IRFA) for the proposed rule and
convened a Small Business Advocacy Review Panel to obtain advice and
recommendations of representatives of the regulated small entities. A
summary of the IRFA, a description of the Panel process, and a summary
of the Panel's recommendations can be found in Unit VIII.C. of the
preamble to the 2006 Proposal (Ref. 3). A detailed discussion of the
Panel's advice and recommendations is found in the Panel Report (Ref.
48).
    As required by section 604 of the RFA, we also prepared a final
regulatory flexibility analysis (FRFA) for this final rule. The FRFA
addresses the issues raised by public comments on the IRFA, which was
part of the proposal of this rule. The FRFA is available for review in
the docket and is summarized below (Ref. 49).
    1. Legal basis and objectives for the rule. As discussed in Unit
II.A. of this preamble, TSCA section 402(c)(2) directs EPA to study the
extent to which persons engaged in renovation, repair, and painting
activities are exposed to lead or create lead-based paint hazards
regularly or occasionally. After concluding this study, TSCA section
402(c)(3) further directs EPA to revise its Lead-based Paint Activities
Regulations under TSCA section 402(a) to apply to renovation or
remodeling activities that create lead-based paint hazards. Because
EPA's study found that activities commonly performed during renovation
and remodeling create lead-based paint hazards, EPA is revising the
TSCA section 402(a) regulatory scheme to apply to individuals and firms
engaged in renovation, repair, and painting activities. In so doing,
EPA has also taken into consideration the environmental, economic, and
social impact of this final rule as provided in TSCA section 2(c). The
primary objective of the rule is to minimize exposure to lead-based
paint hazards created during renovation, repair, and painting
activities in housing where children under age 6 reside and in housing
where a pregnant woman resides and in housing or other buildings
frequented by children under age 6.
    2. Potentially affected small entities. Small entities include
small businesses, small organizations, and small governmental
jurisdictions. The small entities that are potentially directly
regulated by this rule include: small businesses (including contractors
and property owners and managers); small nonprofits (certain day care
centers and private schools); and small governments (school districts).
    In determining the number of small businesses affected by the rule,
the Agency applied U.S. Economic Census data to the SBA's definition of
small business. However, applying the U.S. Economic Census data
requires either under or overestimating the number of small businesses
affected by the rule. For example, for many construction
establishments, the SBA defines small businesses as having revenues of
less than $13 million. With respect to those establishments, the U.S.
Economic Census data groups all establishments with revenues of $10
million or more into one revenue bracket. On the one hand, using data
for the entire industry would overestimate the number of small
businesses affected by the rule and would defeat the purpose of
estimating impacts on small business. It would also underestimate the
rule's impact on small businesses because the impacts would be
calculated using the revenues of large businesses in addition to small
businesses. On the other hand, applying the closest, albeit lower,
revenue bracket would underestimate the number of small businesses
affected by the rule while at the same time overestimating the impacts.
Similar issues arose in estimating the fraction of property owners and
managers that are small businesses. EPA has concluded that a

substantial number of small businesses will be affected by the rule.
Consequently, EPA has chosen to be more conservative in estimating the
cost impacts of the rule by using the closest, albeit lower, revenue
bracket for which Census data is available. For other sectors
(nonprofits operating day care centers or private schools), EPA assumed
that all affected firms are small, which may overestimate the number of
small entities affected by the rule.
    The vast majority of entities in the industries affected by this
rule are small. Using EPA's estimates, the renovation, repair, and
painting program will affect an average of approximately 189,000 small
entities.
    3. Potential economic impacts on small entities. EPA evaluated two
factors in its analysis of the rule's requirements on small entities,
the number of firms that would experience the impact, and the size of
the impact. Average annual compliance costs as a percentage of average
annual revenues were used to assess the potential average impacts of
the rule on small businesses and small governments. This ratio is a
good measure of entities' ability to afford the costs attributable to a
regulatory requirement, because comparing compliance costs to revenues
provides a reasonable indication of the magnitude of the regulatory
burden relative to a commonly available measure of economic activity.
Where regulatory costs represent a small fraction of a typical entity's
revenues, the financial impacts of the regulation on such entities may
be considered as not significant. For non-profit organizations, impacts
were measured by comparing rule costs to annual expenditures. When
expenditure data were not available, however, revenue information was
used as a proxy for expenditures. It is appropriate to calculate the
impact ratios using annualized costs, because these costs are more
representative of the continuing costs entities face to comply with the
rule.
    EPA estimates that there are an average of 189,000 small entities
that would be affected by the renovation, repair, and painting
activities program. Of these, there are an estimated 165,000 small
businesses with an average impact of 0.7%, 17,000 small non-profits
with an average impact of 0.1%, and 6,000 small governments with an
average impact of 0.004%. These estimates are based on an average cost
of approximately $35 per renovation.
    4. Relevant Federal rules. The requirements in this rulemaking will
fit within an existing framework of other Federal regulations that
address lead-based paint. The Pre-Renovation Education Rule, discussed
in Unit II.A.2. of this preamble, requires renovators to distribute a
lead hazard information pamphlet to owners and occupants before
conducting a renovation in target housing. This rule has been carefully
crafted to harmonize with the existing pre-renovation education
requirements.
    Disposal of waste from renovation projects that would be regulated
by this rule is covered by the Resource Conservation and Recovery Act
(RCRA) regulations for solid waste. This rule does not contain specific
requirements for the disposal of waste from renovations.
    HUD has extensive regulations that address the conduct of interim
controls, as well as other lead-based paint activities, in federally
assisted housing. Some of HUD's interim controls are regulated under
this rule as renovations, depending upon whether the particular interim
control measure disturbs more than the threshold amount of paint. In
most cases, the HUD regulations are comparable to, or more stringent
than this rule. In general, persons performing HUD-regulated interim
controls must have taken a course in lead-safe work practices, which is
also a requirement of this rule. However, this rule does not require
dust clearance testing, a process required by HUD after interim control
activities that disturb more than a minimal amount of lead-based paint.
    Finally, OSHA's Lead Exposure in Construction standard covers
potential worker exposures to lead during many construction activities,
including renovation, repair, and painting activities. Although this
standard may cover many of the same projects as this final rule, the
requirements themselves do not overlap. The OSHA rule addresses the
protection of the worker, this EPA rule principally addresses the
protection of the building occupants, particularly children under age 6
and pregnant women.
    5. Skills needed for compliance. This rule establishes requirements
for training renovators, other renovation workers, and dust sampling
technicians; certifying renovators, dust sampling technicians, and
entities engaged in renovation, repair, and painting activities;
accrediting providers of renovation and dust sampling technician
training; and for renovation work practices. Renovators and dust
sampling technicians would have to take a course to learn the proper
techniques for accomplishing the tasks they will perform during
renovations. These courses are intended to provide them with the
information they would need to comply with the rule based on the skills
they already have. Renovators would then provide on-the-job training in
work practices to any other renovation workers used on a particular
renovation. They would also need to document the work they have done
during renovations. This does not require any special skills.
Renovation firms would be required to apply for certification to
perform renovations; this process does not require any special skills
other than the ability to complete the application. Training providers
must be knowledgeable about delivering technical training. Training
providers would be required to apply for accreditation to offer
renovator and dust sampling technician courses. They would also be
required to provide prior notification of such courses and provide
information on the students trained after each such course. Completing
the accreditation application and providing the required notification
information does not require any special skills.
    6. Small Business Advocacy Review Panel. Since the earliest stages
of planning for this regulation under section 402(c)(3) of TSCA, EPA
has been concerned with potential small entity impacts. EPA conducted
outreach to small entities, and, in 1999, convened a Small Business
Advocacy Review (SBAR) Panel to obtain advice and recommendations of
representatives of the small entities that would potentially be subject
to this regulation's requirements. At that time, EPA was planning an
initial regulation that would apply to renovations in target housing,
with requirements for public and commercial building renovations,
including child-occupied facility renovations, to follow at a later
date. The small entity representatives (SERs) chosen for consultation
reflect that initial emphasis. They included maintenance and renovation
contractors, painting and decorating contractors, multi-family housing
owners and operators, training providers/consultants, and
representatives from several national contractor associations, the
National Multi-Housing Council, and the National Association of Home
Builders. After considering the existing Lead-based Paint Activities
Regulations, and taking into account preliminary stakeholder feedback,
EPA identified eight key elements of a potential renovation and
remodeling regulation for the SBAR Panel's consideration. These
elements were:
     Applicability and scope.
     Firm certification.

     Individual training and certification.
     Accreditation of training courses.
     Work practice standards.
     Prohibited practices.
     Exterior clearance.
     Interior clearance.
    EPA also developed several options for each of these key elements.
Although the scope and applicability options specifically presented to
the SBAR Panel covered only target housing, background information
presented to the SERs and to the SBAR Panel members shows that EPA was
also considering a regulation covering child-occupied facilities. The
2007 Supplemental Proposal (Ref. 15) extended the potentially regulated
universe to include child-occupied facilities. When the 2007
Supplemental Proposal was issued, EPA conducted a targeted mailing
campaign to specifically solicit input on the rule from child-occupied
facilities, such as child care providers and kindergartens, in public
or commercial buildings. More information on the SBAR Panel, its
recommendations, and how EPA implemented them in the development of the
program, is provided in Unit VIII.C.6. of the preamble to the 2006
Proposal (Ref. 3).
    7. Alternatives considered. The following is a discussion of
significant alternatives to the rule, originated by EPA or by
commenters, that could affect the economic impacts of the rule on small
entities. These alternatives would have applied to both small and large
entities, but, given the large number of small entities in the
industry, these alternatives would primarily affect small entities. For
the reasons described below, these alternatives are not consistent with
the objectives of the rule.
    a. Applicability and scope. EPA considered a number of options for
the scope and applicability of the rule: include all pre-1978 housing,
all pre-1978 rental housing, all pre-1960 housing, and all pre-1960
rental housing. Although the scope and applicability options
specifically presented to the SBAR Panel covered only target housing,
background information presented to the SERs and to the SBAR Panel
members shows that EPA was also considering a regulation covering
child-occupied facilities.
    The SBAR Panel recommended that EPA request public comment in the
proposal on the option of limiting the housing stock affected by the
rule to that constructed prior to 1960, as well as the option of
covering all pre-1978 housing and other options that may help to reduce
costs while achieving the protection of public health. EPA asked for
comment in the proposed rule on alternative scope options, including an
option limited to buildings constructed prior to 1960. After
considering the public comments, EPA has determined that limiting the
rule to exclude buildings constructed on or after 1960 is not
consistent with the stated objectives of the rule, in part because this
would not protect children under the age of 6 and pregnant women.
    b. Staged approach. EPA proposed a staged approach that would
initially address renovations in pre-1960 target housing and child-
occupied facilities, or where a child had an increased blood-lead
level. EPA requested comment about whether to delay implementation for
post-1960 target housing and child-occupied facilities for 1 year. Most
commenters objected to the phased implementation, expressing concerns
about adding complexity to implementation and about potential exposures
to children in buildings built between 1960 and 1978 during the first
year. After reviewing the comments, EPA determined the reduced burdens
of a staged approach did not outweigh the complexity that it added to
implementation.
    c. Exclude categories of contractors or renovation activities. EPA
requested comment on whether to exclude any categories of specialty
contractors and whether certain renovation activities should be
specifically included or excluded. In response, no commenter offered
any data to show that any category of contractor or type of renovation
activity should be exempt because they do not create lead-based paint
hazards. All of the renovation activities in the Dust Study and the
other studies in the record for the rule created lead-based paint
hazards. EPA determined that it had no basis on which to exempt any
category of contractor or type of renovation. However, some small jobs
will be exempt from the requirements of the rule under the minor
maintenance exception.
    d. Prohibited practices. The current abatement regulations in 40
CFR part 745, subpart L prohibit the following work practices during
abatement projects: Open-flame burning or torching, machine sanding or
grinding, abrasive blasting or sandblasting, dry scraping of large
areas, and operating a heat gun in excess of 1100 degrees Fahrenheit.
EPA presented four options to the SBAR Panel on this topic: prohibit
these practices during renovations; allow dry scraping and exterior
flame-burning or torching; allow dry scraping and interior and exterior
flame-burning or torching; or allow all of these practices. The SBAR
Panel recognized industry concerns over the feasibility of prohibiting
these practices, especially when no cost-effective alternatives exist.
The SBAR Panel was also concerned about the potential risks associated
with these practices, but noted that reasonable training, performance,
containment, and clean-up requirements may adequately address these
risks.
    EPA followed the SBAR Panel's recommendation and requested public
comment on the cost, benefit, and feasibility of prohibiting certain
work practices. In response to its request for comment in the proposed
rule, the Agency received information on techniques including benign
strippers, steam stripping, closed planing with vacuums, infrared
removal, and chemical stripping. Therefore, EPA believes that there are
cost-effective alternatives to these prohibited or restricted
practices. In addition, the Dust Study (Characterization of Dust Lead
Levels after Renovation, Repair, and Painting Activities) found that
most practices prohibited or restricted under EPA's Lead-based Paint
Activities Regulations produce large quantities of lead dust, and that
the use of the proposed work practices were not effective at containing
or removing dust-lead hazards from the work area.
    EPA has concluded that these practices should be prohibited or
restricted during renovation, repair, and painting activities that
disturb lead-based paint because the work practices in the rule are not
effective at containing the spread of leaded dust when these practices
are used, or at cleaning up lead-based paint hazards created by these
practices. Thus, the work practices are not effective at minimizing
exposure to lead-based paint hazards created during renovation
activities when these activities are used.
    e. HEPA vacuums. The proposed rule required the use of a HEPA
vacuum as part of the work practice standards for renovation
activities. One commenter stated that EPA did not have sufficient
evidence showing that HEPA vacuums are significantly better at removing
lead dust than non-HEPA vacuums. EPA has determined that the weight of
the evidence provided by the studies it reviewed demonstrates that the
HEPA vacuums consistently removed significant quantities of lead-based
paint dust and reduced lead loadings to lower levels then did other
vacuums. While there may be some vacuums cleaners that are as effective
as HEPA vacuums, EPA has not been able to define quantitatively the
specific attributes of

those vacuums. That is, EPA is not able to identify what criteria
should be used to identify vacuums that are equivalent to HEPA vacuums
in performance. Thus, EPA does not believe that it can identify in the
final rule what types of vacuums can be used as substitutes for HEPA-
vacuums. Therefore, EPA has not adopted this alternative.
    f. Visual inspection in lieu of cleaning verification. EPA
requested comment on whether cleaning verification is necessary given
the cleaning required by the rule. Some commenters contended that a
visual inspection following cleaning after a renovation is sufficient
to ensure the lead-based paint dust generated by a renovation has been
sufficiently cleaned-up. EPA disagrees with those commenters who
requested that the work practices in the final rule not include any
verification beyond visual inspection. The weight of the evidence
clearly demonstrates that visual inspection following cleaning after a
renovation is insufficient at detecting dust-lead hazards, even at
levels significantly above the regulatory hazard standards. Further,
EPA disagrees with the implication that easily visible paint chips and
splinters are necessarily the primary materials generated during a
renovation. EPA studies, including the Dust Study, show that renovation
activities generate dust as well as chips and splinters. Therefore, EPA
has not adopted this alternative.
    8. Significant issues raised by comments on the Initial Regulatory
Flexibility Analysis. A commenter requested that the plumbing-heating-
cooling industry be exempted from the rule, claiming that the rule is
impractical for the industry. The commenter did not provide any
supporting data as to why the rule is impractical for the plumbing-
heating-cooling industry, or any data indicating that renovations
conducted by plumbing, heating, or cooling contractors do not create
lead hazards. By contrast, the Dust Study indicated that cutting open
drywall (an activity often performed by plumbing, heating, and cooling
contractors) can create a lead hazard. Therefore, EPA believes that
plumbing, heating, and cooling contractors who disturb more than an
exempt amount of lead-based paint can create lead hazards. EPA does not
believe that there is a factual basis for exempting this, or any other,
industry from the rule.
    Another commenter stated that EPA's proposed rule gave little
deference to HUD's rules, and thus is inconsistent with the Regulatory
Flexibility Act's requirements to fit new rules within the framework of
existing Federal regulations. The commenter stated that EPA's rule
needed to give greater deference to the framework established in HUD's
rules (especially HUD's requirements for independent clearance
examinations and its prohibition of dangerous work practices), and to
clearly explain how the Renovation, Repair and Painting Rule will
interface with HUD's rules to avoid confusion.
    Regarding HUD's requirements for independent clearance
examinations, EPA's final rule clarifies that dust clearance sampling
is allowed in lieu of post-renovation cleaning verification in cases
where another Federal, State, Territorial, Tribal, or local regulation
requires dust clearance testing and requires the renovation firm to
clean the work area until it passes clearance. This would apply to HUD-
regulated renovations. Regarding the prohibition of dangerous work
practices, EPA's final rule prohibits the use of the following work
practices during regulated renovations: Open flame burning or torching
of lead-based paint; the use of machines that remove lead-based paint
through high speed operation such as sanding, grinding, power planing,
needle gun, abrasive blasting, or sandblasting unless such machines are
used with HEPA exhaust control; and operating a heat gun above 1100
degrees Fahrenheit. EPA believes that the provisions in the final rule
provide an appropriate measure of consistency with other regulatory
programs (including HUD's), and will cause minimal disruption for
renovation firms.
    One commenter contended that EPA said that ``[n]one of the housing
authorities identified in section 8.2.1 as operating public housing
that does not receive HUD funding qualifies as a small government under
the Regulatory Flexibility Act.'' According to the commenter, public
housing authorities are government entities, and hundreds of them are
located in and are part of communities with a population of less than
50,000.
    EPA's small entity analysis was not claiming that no small
governments operate housing authorities, but that they would not be
significantly impacted by the rule. EPA's reasoning was as follows:
     The only public housing authorities that EPA could
identify that do not receive HUD funds are operated by Massachusetts,
New York, Hawaii, Connecticut, and New York City.
     Massachusetts, New York, Hawaii, Connecticut, and New York
City have populations over 50,000 and thus do not qualify as small
governments.
     To the best of EPA's knowledge, governments with
populations under 50,000 that operate public housing authorities all
receive HUD funds.
     Public housing that receives funding from HUD already must
comply with HUD regulations regarding lead paint and so are not likely
to incur significant additional costs due to this rule.
The commenter has offered no factual information to dispute this
reasoning. Therefore, the Agency believes its conclusions regarding
public housing authorities operated by small governments were
appropriate.
    A commenter stated that the proposed rule will have a significant
impact on small businesses, and that EPA's own economic analysis of
this rule finds that residential property managers and lessors of
residential real estate will bear the largest share of costs in
association with the rule. EPA disagrees with the commenter's claim
that residential property managers and lessors of residential real
estate will bear the largest share of costs in association with the
rule. EPA analyzed small business impacts by estimating the average
cost impact ratio for each industry, calculated as the average annual
compliance cost as a percentage of average annual revenues. The average
cost impact ratio for lessors of real estate is below the average cost
impact ratio for all small businesses under the rule. And while the
average cost impact ratio for residential property managers is above
the average cost impact for all small businesses under the rule, small
residential property managers make up approximately 3% of the small
entities impacted by the rule. Therefore, it is not accurate to claim
that residential property managers and lessors of residential real
estate will bear the largest share of costs in association with the
rule.
    Another commenter stated that given the lack of evidence showing
that HEPA vacuums are significantly better at removing lead dust from
floors, and because HEPA vacuums are significantly more costly than
non-HEPA units, EPA should modify its proposed rule to allow cleanup
with either a HEPA or non-HEPA vacuum. According to the commenter,
doing so would reduce the cost to small entities in the renovation and
lead mitigation businesses without compromising the level of lead dust
clearance achieved by the standard.
    EPA disagrees that it should modify its proposed rule to allow
cleanup with a non-HEPA vacuum. EPA has determined that the weight of
the evidence provided by various studies

demonstrate that the HEPA vacuums consistently removed significant
quantities of lead-based paint dust and reduced lead loadings to lower
levels then did other vacuums. While there may be some vacuums that are
as effective as HEPA vacuums, EPA has not been able to define
quantitatively the specific attributes of those vacuums. That is, EPA
is not able to identify what criteria should be used to identify
vacuums that are equivalent to HEPA vacuums in performance. Thus, EPA
does not believe that it can identify what types of vacuums can be used
as substitutes for HEPA-vacuums. EPA also notes that non-HEPA vacuums
that perform as well as HEPA vacuums may not be less expensive than
HEPA vacuums. For these reasons, EPA has determined that modifying its
proposed rule to allow cleanup with non-HEPA vacuums would compromise
the level of lead dust clearance achieved by the standard, and might
not result in meaningful cost reductions.
    As required by section 212 of SBREFA, EPA also is preparing a Small
Entity Compliance Guide to help small entities comply with this rule.
Before the date that this rule's requirements take effect for training
providers, renovation firms, and renovators, the guide will be
available on EPA's website at http://www.epa.gov/lead or from the
National Lead Information Center by calling 1-800-424-LEAD (5323).

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    Under UMRA Title II, EPA has determined that this rule contains a
Federal mandate that may result in expenditures that exceed the
inflation-adjusted UMRA threshold of $100 million by the private sector
in any 1 year, but it will not result in such expenditures by State,
local, and Tribal governments in the aggregate. Accordingly, EPA has
prepared a written statement under section 202 of UMRA which has been
placed in the public docket for this rulemaking and is summarized here.
    1. Authorizing legislation. This rule is issued under the authority
of TSCA sections 402(c)(3), 404, 406, and 407, 15 U.S.C. 2682(c)(3),
2684, 2686, and 2687.
    2. Cost-benefit analysis. EPA has prepared an analysis of the costs
and benefits associated with this rulemaking, a copy of which is
available in the docket for this rulemaking (Ref. 24). The Economic
Analysis presents the costs of the rule as well as various regulatory
options and is summarized in Unit III.A. of this preamble.EPA has
estimated that the total annualized costs of this rulemaking are
approximately $400 million per year using either a 3% or a 7% discount
rate,and that benefits are approximately $700 to $1,700 million per
year using a 3% discount rate and $700 to $1,800 million per year using
a 7% discount.
    3. State, local, and Tribal government input. EPA has sought input
from State, local and Tribal government representatives throughout the
development of the renovation, repair, and painting program. EPA's
experience in administering the existing lead-based paint activities
program under TSCA section 402(a) suggests that these governments will
play a critical role in the successful implementation of a national
program to reduce exposures to lead-based paint hazards associated with
renovation, repair, and painting activities. Consequently, as discussed
in Unit III.C.2. of the preamble to the 2006 Proposal (Ref. 3), the
Agency has met with State, local, and Tribal government officials on
numerous occasions to discuss renovation issues.
    4. Least burdensome option. EPA considered a wide variety of
options for addressing the risks presented by renovation activities
where lead-based paint is present. As part of the development of the
renovation, repair, and painting program, EPA has considered different
options for the scope of the rule, various combinations of training and
certification requirements for individuals who perform renovations,
various combinations of work practice requirements, and various methods
for ensuring that no lead-based paint hazards are left behind by
persons performing renovations. The Economic Analysis analyzed several
different options for the scope of the rule. Additional information on
the options considered is available in Unit VIII.C.6. of the preamble
for the 2006 Proposal (Ref. 3), and in the Economic Analysis (Ref. 24).
EPA has determined that the preferred option is the least burdensome
option available that achieves the primary objective of this rule,
which is to minimize exposure to lead-based paint hazards created
during renovation, repair, and painting activities in housing where
children under age 6 reside and where a pregnant woman resides and in
housing or other buildings frequented by children under age 6.
    This rule does not contain a significant Federal intergovernmental
mandate as described by section 203 of UMRA. Based on the definition of
``small government jurisdiction'' in RFA section 601, no State
governments can be considered small. Small Territorial or Tribal
governments may apply for authorization to administer and enforce this
program, which would entail costs, but these small jurisdictions are
under no obligation to do so.
    EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments operate schools that are child-occupied
facilities. EPA generally measures a significant impact under UMRA as
being expenditures, in the aggregate, of more than 1% of small
government revenues in any 1 year. As explained in Unit III.C.3., the
rule is expected to result in small government impacts well under 1% of
revenues. So EPA has determined that the rule does not significantly
affect small governments. Nor does the rule uniquely affect small
governments, as the rule is not targeted

at small governments, does not primarily affect small governments, and
does not impose a different burden on small governments than on other
entities that operate child-occupied facilities.

E. Federalism

    Pursuant to Executive Order 13132, entitled Federalism (64 FR
43255, August 10, 1999), EPA has determined that this rule does not
have ``federalism implications,'' because it will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. Thus, Executive Order 13132 does not apply to
this rule. States would be able to apply for, and receive authorization
to administer these requirements, but would be under no obligation to
do so. In the absence of a State authorization, EPA will administer
these requirements. Nevertheless, in the spirit of the objectives of
this Executive Order, and consistent with EPA policy to promote
communications between the Agency and State and local governments, EPA
has consulted with representatives of State and local governments in
developing the renovation, repair, and painting program. These
consultations are as described in the preamble to the 2006 Proposal
(Ref. 3).

F. Tribal Implications

    As required by Executive Order 13175, entitled Consultation and
Coordination with Indian Tribal Governments (59 FR 22951, November 9,
2000), EPA has determined that this rule does not have tribal
implications because it will not have substantial direct effects on
tribal governments, on the relationship between the Federal government
and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes, as
specified in the Order. Tribes would be able to apply for, and receive
authorization to administer these requirements on Tribal lands, but
Tribes would be under no obligation to do so. In the absence of a
Tribal authorization, EPA will administer these requirements. While
Tribes may operate child-occupied facilities covered by the rule such
as kindergartens, pre-kindergartens, and day care facilities, EPA has
determined that this rule would not have substantial direct effects on
the Tribal governments that operate these facilities.
    Thus, Executive Order 13175 does not apply to this rule. Although
Executive Order 13175 does not apply to this rule, EPA consulted with
Tribal officials and others by discussing potential renovation
regulatory options for the renovation, repair, and painting program at
several national lead program meetings hosted by EPA and other
interested Federal agencies.

G. Children's Health Protection

    Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997) applies to this rule because it is an ``economically significant
regulatory action'' as defined by Executive Order 12866, and because
the environmental health or safety risk addressed by this action may
have a disproportionate effect on children. Accordingly, EPA has
evaluated the environmental health or safety effects of renovation,
repair, and painting projects on children. Various aspects of this
evaluation are discussed in the preamble to the 2006 Proposal (Ref. 3).
    The primary purpose of this rule is to minimize exposure to lead-
based paint hazards created during renovation, repair, and painting
activities in housing where children under age 6 reside and in housing
or other buildings frequented by children under age 6. In the absence
of this regulation, adequate work practices are not likely to be
employed during renovation, repair, and painting activities. EPA's
analysis indicates that there will be approximately 1.4 million
children under age 6 affected by the rule. These children are projected
to receive considerable benefits due to this regulation.

H. Energy Effects

    This rule is not a ``significant energy action'' as defined in
Executive Order 13211, entitled Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355,
May 22, 2001) because it is not likely to have any adverse effect on
the supply, distribution, or use of energy.

I. Technology Standards

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. In
the 2006 Proposal, EPA proposed to adopt a number of work practice
requirements that could be considered technical standards for
performing renovation projects in residences that contain lead-based
paint. As discussed in Unit VIII.I. of the 2006 Proposal, EPA
identified two potentially applicable voluntary consensus standards
(Ref. 3 at 1626). ASTM International (formerly the American Society for
Testing and Materials) has developed two potentially applicable
documents: Standard Practice for Clearance Examinations Following Lead
Hazard Reduction Activities in Single-Family Dwellings and Child-
Occupied Facilities (Ref. 50), and ``Standard Guide for Evaluation,
Management, and Control of Lead Hazards in Facilities'' (Ref. 51). With
respect to the first document, EPA did not propose to require
traditional clearance examinations, including dust sampling, following
renovation projects. However, EPA did propose to require that a visual
inspection for dust, debris, and residue be conducted after cleaning
and before post-renovation cleaning verification is performed. The
first ASTM document does contain information on conducting a visual
inspection before collecting dust clearance samples. The second ASTM
document is a comprehensive guide to identifying and controlling lead-
based paint hazards. Some of the information in this document is
relevant to the work practices required by the rule. Each of these ASTM
documents represents state-of-the-art knowledge regarding the
performance of these particular aspects of lead-based paint hazard
evaluation and control practices and EPA continues to recommend the use
of these documents where appropriate. However, because each of these
documents is extremely detailed and encompasses many circumstances
beyond the scope of this rulemaking, EPA determined that it would be
impractical to incorporate these voluntary consensus standards into the
rule.
    In addition, this final rule contains performance standards and a
process for recognizing test kits that may be used by certified
renovators to determine whether components to be affected by a
renovation contain lead-based paint.

EPA will recognize those kits that meet certain performance standards
for limited false positives and negatives. EPA will also recognize only
those kits that have been properly validated by a laboratory
independent of the kit manufacturer. For most kits, this will mean
participating in EPA's Environmental Technology Verification (ETV)
program. With stakeholder input, EPA is adapting a volunary consensus
standard, ASTM's ``Standard Practice for Evaluating the Performance
Characteristics of Qualitative Chemical Spot Test Kits for Lead in
Paint'' (Ref. 28), for use as a testing protocol to determine whether a
particular kit has met the performance standards established in this
final rule.

J. Environmental Justice

    Executive Order 12898, entitled Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994) establishes federal
executive policy on environmental justice. Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
    EPA has assessed the potential impact of this rule on minority and
low-income populations. The results of this assessment are presented in
the Economic Analysis, which is available in the public docket for this
rulemaking (Ref. 24). As a result of this assessment, the Agency has
determined that this final rule will not have disproportionately high
and adverse human health or environmental effects on minority or low-
income populations because it increases the level of environmental
protection for all affected populations without having any
disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population.

VI. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This rule is effective June 23, 2008.

List of Subjects in 40 CFR Part 745

    Environmental protection, Child-occupied facility, Housing
renovation, Lead, Lead-based paint, Renovation, Reporting and
recordkeeping requirements.

    Dated: March 31, 2008,
Steven L. Johnson,
Administrator.

0
 Therefore, 40 CFR chapter I is amended as follows:

PART 745--[AMENDED]

0
1. The authority citation for part 745 continues to read as follows:

    Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.

0
2. Section 745.80 is revised to read as follows:

Sec.  745.80  Purpose.

    This subpart contains regulations developed under sections 402 and
406 of the Toxic Substances Control Act (15 U.S.C. 2682 and 2686) and
applies to all renovations performed for compensation in target housing
and child-occupied facilities. The purpose of this subpart is to ensure
the following:
    (a) Owners and occupants of target housing and child-occupied
facilities receive information on lead-based paint hazards before these
renovations begin; and
    (b) Individuals performing renovations regulated in accordance
withSec.  745.82 are properly trained; renovators and firms performing
these renovations are certified; and the work practices in Sec.  745.85
are followed during these renovations.
0
3. Section 745.81 is revised to read as follows:

Sec.  745.81  Effective dates.

    (a) Training, certification and accreditation requirements and work
practice standards. The training, certification and accreditation
requirements and work practice standards in this subpart are applicable
in any State or Indian Tribal area that does not have a renovation
program that is authorized under subpart Q of this part. The training,
certification and accreditation requirements and work practice
standards in this subpart will become effective as follows:
    (1) Training programs. Effective June 23, 2008, no training program
may provide, offer, or claim to provide training or refresher training
for EPA certification as a renovator or a dust sampling technician
without accreditation from EPA under Sec.  745.225. Training programs
may apply for accreditation under Sec.  745.225 beginning April 22,
2009.
    (2) Firms. (i) Firms may apply for certification under Sec.  745.89
beginning October 22, 2009.
    (ii) On or after April 22, 2010, no firm may perform, offer, or
claim to perform renovations without certification from EPA under Sec.
745.89 in target housing or child-occupied facilities, unless the
renovation qualifies for one of the exceptions identified in Sec.
745.82(a) or (c).
    (3) Individuals. On or after April 22, 2010, all renovations must
be directed by renovators certified in accordance with Sec.  745.90(a)
and performed by certified renovators or individuals trained in
accordance with Sec.  745.90(b)(2) in target housing or child-occupied
facilities, unless the renovation qualifies for one of the exceptions
identified in Sec.  745.82(a) or (c).