[Federal Register Volume 76, Number 151 (Friday, August 5, 2011)]
[Rules and Regulations]
[Pages 47918-47946]
[FR Doc No: 2011-19417]

Vol. 76

Friday,

No. 151

August 5, 2011

Part IV

Environmental Protection Agency

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40 CFR Part 745

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

Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Rules
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2005-0049; FRL-8881-8]
RIN 2070-AJ57

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: As part of a settlement of litigation over certain post-
renovation cleaning requirements of the 2008 Lead Renovation, Repair,
and Painting Program (RRP) rule, the EPA agreed to propose a number of
revisions to the 2008 RRP rule that established accreditation,
training, certification, and recordkeeping requirements as well as work
practice standards for persons performing renovations for compensation
in most pre-1978 housing and child-occupied facilities and to
subsequently take final action on the proposed rule by July 15, 2011.
The proposed rule published on May 6, 2010. EPA has decided not to
promulgate dust wipe testing and clearance requirements as proposed.
However, EPA is promulgating several other revisions to the RRP rule,
including a provision allowing a certified renovator to collect a paint
chip sample and send it to a recognized laboratory for analysis in lieu
of using a lead test kit, minor changes to the training program
accreditation application process, standards for e-learning in
accredited training programs, minimum enforcement provisions for
authorized state and tribal renovation programs, and minor revisions to
the training and certification requirements for renovators. EPA is also
promulgating clarifications to the requirements for vertical
containment on exterior renovation projects, the prohibited or
restricted work practice provisions, and the requirements for high-
efficiency particulate air (HEPA) vacuums. Today's action is EPA's
final action on all aspects of the May 6, 2010 proposal.

DATES: This final rule is effective October 4, 2011.

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPPT-2005-0049. All documents in the
docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is
not publicly available, e.g., Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy. Publicly
available docket materials are available in the electronic docket at
http://www.regulations.gov, or, if only available in hard copy, at the
OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/
DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW.,
Washington, DC. The EPA/DC Public Reading Room hours of operation are
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number of the EPA/DC Public Reading Room is
(202) 566-1744, and the telephone number for the OPPT Docket is (202)
566-0280. Hearing- or speech-impaired persons may reach the above
telephone numbers through TTY by calling the toll-free Federal Relay
Service at 1-800-877-8339. Docket visitors are required to show
photographic identification, pass through a metal detector, and sign
the EPA visitor log. All visitor bags are processed through an X-ray
machine and subject to search. Visitors will be provided an EPA/DC
badge that must be visible at all times in the building and returned
upon departure.

FOR FURTHER INFORMATION CONTACT: For technical information contact:
Cindy Wheeler, National Program Chemicals Division (7404T), Office of
Pollution Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202) 566-0484; e-mail address<EMAIL_ADDRESS>    For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; e-mail address<EMAIL_ADDRESS>Hearing- or speech-
impaired persons may reach the above telephone number through TTY by
calling the toll-free Federal Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Does this action apply to me?

    You may be potentially affected by this action if you perform
renovations of target housing or child-occupied facilities for
compensation, dust sampling, or dust testing. You may also be affected
by this action if you perform lead-based paint inspections, lead hazard
screens, risk assessments or abatements in target housing or child-
occupied facilities or if you operate a training program for
individuals who perform any of these activities. ``Target housing'' is
defined in section 401 of TSCA as any housing constructed prior to
1978, except housing for the elderly or persons with disabilities
(unless any child under age 6 resides or is expected to reside in such
housing) or any 0-bedroom dwelling. Under this rule, a child-occupied
facility is a building, or a portion of a building, constructed prior
to 1978, visited regularly by the same child, under 6 years of age, on
at least 2 different days within any week (Sunday through Saturday
period), provided that each day's visit lasts at least 3 hours and the
combined weekly visits last at least 6 hours, and the combined annual
visits last at least 60 hours.
    Potentially-affected entities may include, but are not limited to:
     Building construction (NAICS code 236), e.g., single
family housing construction, multi-family housing construction,
residential remodelers.
     Specialty trade contractors (NAICS code 238), e.g.,
plumbing, heating, and air-conditioning contractors, painting and wall
covering contractors, electrical contractors, finish carpentry
contractors, drywall and insulation contractors, siding contractors,
tile and terrazzo contractors, glass and glazing contractors.
     Real estate (NAICS code 531), e.g., lessors of residential
buildings and dwellings, residential property managers.
     Child day care services (NAICS code 624410).
     Elementary and secondary schools (NAICS code 611110),
e.g., elementary schools with kindergarten classrooms.
     Other technical and trade schools (NAICS code 611519),
e.g., training providers.
     Engineering services (NAICS code 541330) and building
inspection services (NAICS code 541350), e.g., dust sampling
technicians.
     Lead abatement professionals (NAICS code 562910), e.g.,
firms and supervisors engaged in lead-based paint activities.
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. If you have any
questions regarding the applicability of this action to a particular
entity, consult

the technical person listed under FOR FURTHER INFORMATION CONTACT.

II. Background

A. What action is the agency taking?

    On May 6, 2010, EPA proposed a number of revisions to the 2008 Lead
Renovation, Repair, and Painting Program (RRP) rule that established
accreditation, training, certification, and recordkeeping requirements
as well as work practice standards for persons performing renovations
for compensation in most pre-1978 housing and child-occupied facilities
(Ref. 1). Specifically, EPA proposed requirements for dust wipe
testing, clearance, allowing a certified renovator to collect a paint
chip sample and send it to a recognized laboratory for analysis, minor
changes to the training program accreditation application process,
standards for e-learning in accredited training programs, minimum
enforcement provisions for authorized state and tribal renovation
programs, and minor revisions to the training and certification
requirements for renovators. EPA has decided not to promulgate dust
wipe testing and clearance requirements as proposed. However, EPA is
promulgating several of the other proposed revisions to the RRP rule,
including a provision allowing a certified renovator to collect a paint
chip sample and send it to a recognized laboratory for analysis in lieu
of using a lead test kit, minor changes to the training program
accreditation application process, standards for e-learning in
accredited training programs, minimum enforcement provisions for
authorized state and tribal renovation programs, and minor revisions to
the training and certification requirements for renovators. EPA is also
promulgating clarifications to the requirements for vertical
containment on exterior renovation projects, the prohibited or
restricted work practice provisions, and the requirements for high-
efficiency particulate air (HEPA) vacuums. Today's action is EPA's
final action on all aspects of the May 6, 2010 proposal.

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

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

C. What are the specific provisions of this action?

    1. Clearance and dust wipe testing requirements for renovations. As
discussed in this unit, EPA has decided not to promulgate clearance and
dust wipe testing requirements as proposed in May 2010 for certain
renovations covered by the 2008 Lead Renovation, Repair, and Painting
(RRP) rule (Ref. 2).
    a. Background. In promulgating the final 2008 RRP rule, EPA
determined that renovation, repair, and painting activities, when
performed in the presence of lead-based paint, create lead-based paint
hazards. Section 402(c)(3) of TSCA directs EPA to revise its
regulations governing lead-based paint inspections, risk assessments,
and abatements (the Lead-based Paint Activities Regulations, or
abatement regulations, Ref. 3) to apply to renovation and remodeling
activities that create lead-based paint hazards. Accordingly, the 2008
RRP rule established accreditation, training, certification, and
recordkeeping requirements as well as work practice standards for
persons performing renovations for compensation in most pre-1978
housing and child-occupied facilities. Among other things, the work
practice standards require renovation firms to follow specific
requirements for containing the work area, refrain from using certain
high-dust-generating work practices, and follow a specific cleaning
protocol, including a step called ``cleaning verification,'' after
concluding the paint-disturbing tasks involved in a renovation.
    As discussed in the preamble to the 2010 proposal, EPA is
particularly concerned about dust-lead hazards generated by renovations
because of the well-documented toxicity of lead, especially to younger
children. For a more detailed discussion of the health effects of lead
exposure, refer to information in the 2010 proposal (Ref. 1) and the
2008 RRP final rule (Ref. 2).
    One of the more difficult issues in the 2008 RRP rulemaking was the
issue of determining when a renovation work area has been properly
cleaned and is ready for reoccupancy. After a lead-based paint
abatement project, EPA's Lead-Based Paint Activities Regulations
require the abatement contractor to achieve clearance. This means that
the contractor must demonstrate, through dust wipe testing, that dust
lead levels remaining in the abatement work area are below the
clearance levels established in the 2001 rulemaking entitled
``Identification of Dangerous Levels of Lead'' under section 403 of the
Toxic Substances Control Act (Ref. 4). Dust wipe samples for clearance
purposes must be collected by a certified individual and analyzed by an
entity recognized under the National Lead Laboratory Accreditation
Program (NLLAP).
    When promulgating the 2008 RRP rule, EPA considered requiring a
similar process after renovations, but for various reasons, did not do
so. EPA did not interpret its statutory mandate under TSCA section
402(c)(3) as simply expanding the scope of the Lead-based Paint
Activities Regulations to also cover renovation activities. Rather, EPA
stated, in the final 2008 RRP rule, its belief that Congress intended
for EPA to make revisions to those existing regulations to adapt them
to a different set of activities and a very different regulated
community. In establishing the cleaning element of the work practice
requirements for renovations, EPA primarily relied on the results of
two studies, the ``Electrostatic Cloth and Wet Cloth Field Study in
Residential Housing'' (Ref. 5) and the ``Characterization of Dust Lead
Levels after Renovation, Repair, and Painting Activities'' (the ``Dust
Study,'' Ref. 6) to determine that the full suite of RRP work practice
requirements, including containment, cleaning, and cleaning
verification, was effective at minimizing exposure to lead-based paint
hazards created by renovation, repair, and painting activities.
    EPA also considered various other factors as well as issues raised
by commenters. Among these were the differences between abatement and
renovation, the costs of dust wipe testing and clearance, the potential
delay in obtaining results, and the likelihood that renovation firms
would become liable for pre-existing dust-lead hazards. Abatements have
only one purpose, to permanently eliminate lead-based paint or lead-
based paint hazards, while renovations are performed for many reasons
that often have nothing to do with lead-based paint. Concerns about the
costs of dust wipe testing and clearance were brought to EPA's
attention during stakeholder input opportunities provided by EPA before
the proposed RRP rule was issued in 2006 and echoed by commenters on
the 2006 proposed RRP rule. If EPA had required dust wipe testing and
clearance after every renovation project, it would have made up a
significant portion of the cost of smaller projects. In addition, dust
wipe testing results may not be available for several days. If EPA had
required traditional abatement-style clearance after renovations, the
work area would not be able to be re-occupied while waiting for the
laboratory results.

Commenters also noted that requiring clearance after renovation jobs
could, in some instances, result in the renovation firm being held
responsible for abating all dust-lead hazards, including such hazards
that may have existed in the area before the renovation commenced.
    Other commenters on the 2006 proposed RRP rule thought that
renovation work areas ought to be tested and cleared for re-occupancy
in the same way that abatement work areas are cleared through the
clearance process, including dust wipe testing. Many commenters
believed that renovation firms should be required to demonstrate that
no dust-lead hazards had been left behind in the work area. These
commenters contended that the only effective way to do this is through
dust wipe testing and clearance. While EPA understood the issues raised
by these commenters, and agreed with some of the points that they made,
EPA remained convinced that the suite of RRP work practices would be
practical for renovation firms to implement while effectively
minimizing exposure to dust-lead hazards created by renovations. The
RRP work practices are, in essence, requirements to ensure that
renovators undertake traditional renovation activities--e.g., removal
or modification of existing surfaces, containment and cleanup of dust
and debris, and ensuring the job site is cleaned up--in a lead-safe
way. EPA believes the RRP rule effectively minimizes exposure to
hazards generated by renovation activities without imposing practices
and disciplines that are outside the scope of traditional renovation
activities. More information on the comments received and EPA's
decisions can be found in the preamble to the final 2008 RRP rule (Ref.
2).
    b. 2010 Proposal. Based on additional stakeholder input received
after the final rule was issued, and an August 2009 agreement entered
into with several environmental and children's health advocacy groups
in settlement of their lawsuit challenging the final 2008 RRP rule, EPA
agreed to consider whether some of the decisions made in 2008 with
regard to dust wipe testing and clearance should be modified.
    Accordingly, on May 6, 2010, EPA proposed to require dust wipe
testing after many renovations covered by the RRP rule (Ref. 1). Under
the 2010 proposal, dust wipe testing would have been required on
uncarpeted floors, windowsills, and window troughs in the work area
after the following types of interior renovations:
     Use of a heat gun at temperatures below 1100 degrees
Fahrenheit.
     Removal or replacement of window or door frames.
     Scraping 60 ft\2\ or more of painted surfaces.
     Removing more than 40 ft\2\ of trim, molding, cabinets, or
other fixtures.
    After these renovations, the renovation firm would have been
required to collect dust wipe samples and have them analyzed for lead
content by an entity recognized under NLLAP. The renovation firm would
then have been required to provide these results to the owners and
occupants of the renovated property.
    For another subset of jobs involving demolition or removal of
plaster through destructive means or the disturbance of paint using
machines designed to remove paint through high-speed operation, such as
power sanders or abrasive blasters, EPA proposed to require the
renovation firm to achieve clearance. This would have involved a
demonstration, through dust wipe testing, that dust-lead levels
remaining on uncarpeted floors, windowsills, and window troughs in the
work area were below regulatory clearance levels. These clearance
levels would have been identical to the clearance levels established
for the lead-based paint abatement program, which are codified at 40
CFR 745.227(e)(8)(viii), i.e., 40 [mu]g/ft\2\ on floors, 250 [mu]g/
ft\2\ on interior windowsills, and 400 [mu]g/ft\2\ on window troughs,
based on wipe samples. These additional requirements in the 2010
proposal were designed to ensure that lead-based paint hazards
generated by renovation work are adequately cleaned after renovation
work is finished and before the work areas are re-occupied.
    c. This final rule. Maintaining the distinction between abatement
and renovation activities has been an important issue throughout the
rulemaking process for the 2008 RRP rule. As discussed in the preamble
to the 2008 RRP rule, abatements and renovations are performed by
different contractors for different purposes, although similar
activities, such as window replacements, may be involved. Typically,
when an abatement is performed, the housing is either unoccupied or the
occupants are temporarily relocated to lead-safe housing until the
abatement has been demonstrated to have been properly completed through
the clearance process. Carpet in the housing is usually removed as part
of the abatement because it is difficult to demonstrate that it is free
of lead-based paint hazards. Uncarpeted floors that have not been
replaced during the abatement may need to be refinished or sealed in
order to achieve clearance. Abatements have only one purpose--to
permanently eliminate lead-based paint and lead-based paint hazards. In
contrast, renovations other than interim controls are performed for
reasons unrelated to lead-based paint or lead-based paint hazards.
Renovations may be performed while the property is occupied or
unoccupied, but occupants do not typically relocate pending the
completion of the project.
    EPA did not design or intend the RRP rule to address cleanup of
pre-existing dust-lead hazards. While the cleaning requirements of the
RRP rule will, in some cases, have the ancillary benefit of removing
some pre-existing dust-lead hazards, the cleaning requirements were
designed to effectively clean-up lead-based paint hazards created
during renovation activities without changing the scope of the
renovation activity itself. Accordingly, the RRP rule does not require
cleaning of dust or any other possible lead sources in portions of
target housing or child-occupied facilities beyond locations in and
around the work area. Nor does the RRP rule require the replacement of
carpets in the area of the renovation or the refinishing or sealing of
uncarpeted floors. The approach in the RRP rule was designed to address
the lead-based paint hazards created during the renovation while not
requiring renovation firms to remediate or eliminate hazards beyond the
scope of the work they were hired to do.
    In addition, EPA has interpreted practicality in implementation to
be an element of the statutory directive to take into account
effectiveness and reliability. As discussed in the preamble to the
final 2008 RRP rule, EPA believes that, given the highly variable
nature of the regulated community, the work practices required by the
RRP rule should be simple to understand and easy to use. EPA is
cognizant of the fact that the RRP rule applies to a range of
individuals from day laborers to property maintenance staff to master
craftsmen performing a range of activities from simple drywall repair
to window replacement to complete kitchen and bath renovations to
building additions and everything in between. Work practices that are
easy and practical to use are more likely to be followed by all of the
persons who perform renovations, and, therefore, more likely to be
reliable and effective in minimizing exposure to lead-based paint
hazards created by renovation activities.
    The 2010 proposal for this rule was EPA's attempt to explore
whether clearance and dust wipe testing requirements should be added to
the

RRP rule to provide additional protection for some renovations. EPA's
intention was to do this without generally holding renovation firms
responsible for abating pre-existing dust-lead hazards or creating
requirements that would impair the overall reliability and
effectiveness of the work practice requirements.
    EPA received over 300 comments on its 2010 proposal. Members of the
regulated community and other industry commenters were generally
concerned that EPA had upset the balance it had struck in the 2008 RRP
rule, arguing that a dust wipe testing or clearance requirement would
have the effect of holding renovation firms responsible for pre-
existing hazards, whether directly by regulation, in the case of the
proposed clearance requirements, or indirectly by requiring firms to
provide information on post-renovation dust lead levels to the property
owner and occupant. While there was little support for dust wipe
testing alone, commenters that supported the 2010 proposal generally
thought that a clearance requirement should be imposed and expanded to
most, if not all, renovations.
    After carefully weighing the issues at stake and considering the
concerns raised by commenters, and as explained in greater detail
below, EPA has concluded that, on balance, the information before the
Agency does not support imposing a dust wipe testing or clearance
requirement on renovations. In particular, EPA is convinced that the
work practices established in the 2008 RRP rule are reliable,
effective, and safe, and that imposing a dust wipe testing or clearance
requirement is unwarranted.
    Almost all of the commenters were opposed to the proposed
provisions requiring only dust wipe testing after certain renovations.
Members of the regulated community and other industry commenters argued
that a dust wipe testing requirement would have the effect of holding
renovation firms responsible for pre-existing hazards, albeit
indirectly, by requiring firms to provide information on post-
renovation dust lead levels to the property owner and occupant. This
requirement would also have the effect of adding an element that is not
generally considered a renovation activity, i.e., taking samples for
laboratory analysis, and indeed, would have to be performed by a third
party or only after a renovator received training in a separate and
distinct discipline--either as a dust wipe sample technician or a lead-
based paint inspector. In addition, many argued that the Dust Study
generally shows that the RRP work practices are effective at minimizing
occupant exposure to dust-lead hazards created by renovations, so
additional dust wipe testing or clearance requirements are unnecessary.
These commenters noted that this is particularly true for the
renovations for which EPA proposed to require only dust wipe testing,
because those renovations were specifically tested in the Dust Study.
In addition, commenters suggested that the categories of jobs for which
dust wipe testing or clearance would be required were arbitrary and not
based on sufficient evidence.
    Some commenters, including several states, also questioned the
utility and value of dust wipe testing in the absence of a clearance
requirement. Some were concerned that property owners and occupants
would not understand the significance of the results of dust wipe
samples that exceed the clearance standards or what steps they should
take to protect themselves and their families. One argued that, in the
absence of standards and required remedial actions, dust wipe testing
would add expense and time to a renovation project without providing a
concrete increase in protection for occupants. On the other hand, other
commenters contended that the feedback provided by numerical dust wipe
testing results would result in improved cleaning performance on the
part of renovation firms. Some cited anecdotal evidence of poor
contractor performance in other programs, such as the abatement
program, in support of a contention that the RRP rule work practices
would not be as effective at minimizing dust-lead hazards as they were
in the Dust Study.
    Additionally, after considering previous interpretations of the
statutory requirements and the comments received on this specific
issue, EPA is not convinced that dust wipe testing in the absence of a
clearance requirement would be a safe, reliable and effective work
practice within the meaning of TSCA Section 402. As commenters noted,
provision of dust wipe testing results in the absence of a clearance
requirement does not by itself reduce the amount of dust generated
during or left behind following a renovation. Furthermore, dust wipe
testing results alone are not part of the information that must be
provided at the pre-renovation stage under Section 406(b) of TSCA, and
providing this type of information is not typically considered a
renovation work practice. Again, the dust wipe testing would either
have to be done by a third party or by a renovator who has taken a
course and been trained in a completely different discipline.
    EPA believes these commenters raise valid considerations. In
particular, EPA agrees that the Dust Study demonstrates that with
respect to these very activities, the suite of RRP work practices
reliably addressed the hazards created by the renovation. In addition,
although EPA attempted in its 2010 proposal to distinguish renovation
activities that it thought warranted the addition of a dust wipe
testing requirement from those that did not (and from those that
warranted imposition of a clearance requirement), EPA acknowledges that
its 2010 proposal lacked a strong basis for drawing these lines--a
point made by many commenters. While some commenters urged the point
that dust wipe testing would encourage better cleanup, and provided
anecdotal support for that view, EPA has no record basis to judge the
likelihood or frequency of this potential impact. This logic could
potentially lead to requiring dust wipe testing for all jobs--a
significant change in the existing rule that EPA is not prepared to
make without better supporting evidence. Accordingly, upon the
information before it, the Agency does not believe that a dust testing
requirement alone is warranted. EPA notes that homeowners can arrange
to have dust wipe testing done as part of a renovation (or at any time)
if they would like information about dust-lead levels in their homes.
EPA also notes that property owners can contractually elect clearance
testing at the completion of a project. EPA's Web site has a page
homeowners can use to locate certified lead inspection and abatement
professionals and accredited training providers in their state (http://www.epa.gov/lead/pubs/locate.htm).
    EPA also proposed to require that renovation firms achieve
clearance for a subset of jobs involving demolition or removal of
plaster through destructive means or the disturbance of paint using
machines designed to remove paint through high-speed operation, such as
power sanders or abrasive blasters. Nonetheless, EPA remained concerned
about promulgating a requirement that could make renovation firms
responsible for pre-existing conditions and fundamentally change the
scope of the renovation activity itself. Therefore, to avoid making
renovation firms replace carpets or refinish floors when they were not
hired to do so, EPA proposed to allow a renovation firm to stop after
two failed dust wipe tests on a particular surface if the firm was not
hired to refinish or replace that surface.
    EPA was particularly concerned about these types of jobs because it
had evidence that the work practices were not effective when machines
designed

to remove paint through high speed operation were operated without HEPA
shrouds and created large quantities of dust. EPA was concerned that
even if such machines were equipped with HEPA shrouds, the RRP work
practices may not be effective at minimizing exposure to lead hazards
created by the renovation. Additionally, EPA stated its belief that
dust created by the demolition or removal of plaster was similarly
difficult to clean and therefore the RRP work practices might not be
effective at minimizing exposure to lead hazards created by the
renovation.
    With respect to the proposed clearance requirements, commenters
generally fell into two camps. Commenters who were in ``favor'' of the
2010 proposal nonetheless generally argued that the proposed clearance
requirements should be expanded to cover most if not all renovation
activities because clearance is the only method to ensure that no lead
hazards remain upon the completion of a renovation job. Commenters who
opposed any type of clearance requirement argued again that it erased
the distinction between renovations and abatements and made renovation
firms responsible for pre-existing conditions. These commenters also
questioned the relevance of the studies EPA cited in support of its
2010 proposal to require clearance after renovations involving
demolition or removal of plaster through destructive means or the
disturbance of paint using machines designed to remove paint through
high-speed operation. The cited studies include EPA's Environmental
Field Sampling Study (EFSS, Ref. 7) and studies examining the
effectiveness of HEPA exhaust control on power tools (Ref. 8). Many of
the HEPA exhaust control studies addressed dusts not typically created
during renovations regulated by the RRP rule, such as crystalline
silica dust resulting from the grinding of concrete. Others addressed
surfaces and surface coatings not typically encountered during
renovations covered by the RRP rule; one involved paint removal from
automobiles. Notwithstanding EPA's 2010 proposal and requests for
comment, EPA did not receive any additional information or data with
respect to the dust or hazards created by these activities. Finally, on
both sides of the issue, commenters did not favor the proposed
provision allowing renovation firms to stop after two failed dust wipe
tests, and, although some alternative suggestions were offered, none
effectively addressed the competing considerations of occupant
protection and not expanding the scope of the renovation work.
    EPA recognizes that imposing a clearance requirement would be a
departure from the balance struck in the RRP rule with respect to the
distinction between abatement and renovations. Accordingly, in EPA's
judgment, the Agency should be in a position to conclude with a fair
amount of certainty that doing so was necessary in light of its
obligation to promulgate work practices that take into account
reliability, effectiveness, and safety. Here, EPA acknowledges that it
does not have data to support its concern that dust created by
destructive demolition of plaster may be similar in nature to dust
generated by machines designed to remove paint through high speed
operation, and thus would have the potential to overwhelm the RRP
cleaning protocol. EPA also recognizes that the data on the efficiency
of HEPA is only suggestive that there might be an issue concerning
these practices. Again, the studies EPA reviewed suggested that HEPA
exhaust control could reduce the airborne dust levels by 90-95%. As
commenters pointed out, it is not clear the results of these studies
are applicable to the home renovation setting, given the differences
between the surfaces and paints in residential settings and the
surfaces and paints involved in the studies. Even if the results were
applicable, there is no direct evidence that the RRP lead safe work
practices could not reliably address the dust hazards created by the
use of such power tools. Having received no additional information in
this regard, EPA has determined that, among other things, the available
information does not support a clearance requirement. Nevertheless, as
discussed further in Unit II.C.7. of this preamble, EPA is adding a
requirement that power tools be operated so that no visible dust or
release of air occurs outside of the shroud or containment system. This
requirement will work to mitigate the concerns EPA had with respect to
the efficiency of power tool dust collection systems and the
possibility that such tools might overwhelm the containment and
specialized cleaning protocols of the RRP work practices.
    In an effort to ensure that the proposed clearance requirement
would not typically result in holding renovation firms responsible for
abating pre-existing dust-lead hazards, EPA included a provision to
allow firms to stop the clearance procedure after two failed clearance
tests on a particular surface unless they had also contracted to
refinish the surface. Upon further reflection, EPA is concerned about
the potential ineffectiveness of this effort, because it would likely
still result in some renovation firms having to clean up pre-existing
dust-lead hazards. At the same time, the proposed provision would not
result in the certainty regarding elimination of dust-lead hazards that
is the defining characteristic of a clearance requirement. In addition,
the practical effect of such a provision is that the proposed clearance
requirement would, in fact, often result in a dust wipe testing
requirement. As such, it raises many of the same issues and concerns
that ultimately persuaded EPA not to promulgate just dust wipe testing
requirements.
    Furthermore, as stated above, EPA does not believe the record
before it strongly supports the line-drawing in its 2010 proposal,
which would have resulted in a clearance requirement for some
renovations, a dust wipe testing requirement for others, and no testing
for the rest of the renovations covered by the RRP rule.
    In revising the abatement regulations to apply to renovations, EPA
has sought to keep the renovation requirements relatively simple and
easy to apply, while attaining the overall objective of minimizing
exposure to dust-lead hazards generated by renovation activities. EPA
is concerned that the proposed three-tier system would add a level of
complexity to the rule that is undesirable. While EPA could potentially
draw different lines in this final rule, or promulgate a requirement
that all jobs achieve clearance, EPA does not believe it has a strong
basis to do so.
    The combination of these factors has convinced EPA that imposing a
clearance requirement is unwarranted. The best evidence that EPA has of
the effectiveness of the work practice standards is the Dust Study, and
it demonstrates that overall the full suite of RRP work practices is
effective at minimizing exposure to dust-lead hazards created by
renovations. Without more, EPA is unable to conclude that the RRP work
practice promulgated in 2008 should be significantly altered.
    Additionally, a variety of commenters, including industry
representatives and some states, suggested that EPA had issued its 2010
proposal to require dust wipe testing and clearance too soon after
promulgation of the 2008 RRP rule. At the time that the 2010 proposal
was issued, full implementation of the 2008 RRP rule had only just
begun. Commenters contended that renovation firms were still in the
process of working through how to achieve

compliance with the rule on a daily basis and that EPA should wait to
add new requirements until firms were generally comfortable with the
requirements promulgated in 2008. Commenters also argued that EPA
should not make a determination that additional requirements are needed
without first carefully assessing the status and impact of the existing
RRP rule when fully implemented. EPA agrees with the general principle
expressed by these commenters--that it is premature to impose
significant additional work practice requirements for renovations
already covered by the RRP rule, particularly given the information
before the Agency. EPA also agrees that many renovation firms are still
determining what the RRP rule requires from them on renovation
projects. EPA also acknowledges that there are practical implementation
issues with promulgating a significant change so soon after thousands
of renovators have become certified renovators, and have taken the
required training, which did not include information on the proposed
dust wipe testing or clearance requirements.
    Some commenters suggested that EPA concentrate on RRP education and
outreach at this time, rather than on additional requirements. EPA
agrees that outreach and education on lead poisoning in general, and
the link between renovations and increased blood lead levels in
particular, continues to be important. As part of the RRP program's
Lead-Safe Certified media campaign, EPA developed and made available to
the public outreach materials aimed at both contractors and consumers.
The materials include a Public Service Advertising (PSA) advertisement
aimed at contractors, banners for Web sites, sample articles for
magazines, newsletters or other publications to help inform contractors
about the rule, post cards and buck slips to stuff into mailers, as
well as an informational brochure about the rule for building managers.
EPA has also developed fact sheets about the RRP rule that hardware or
paint supply stores can hand out to their customers to inform them of
the regulatory requirements. All of this information is available to
the public on EPA's Web site at http://epa.gov/lead/pubs/lscp-press-materials.htm.
    The Agency has also developed outreach materials for consumers in
order to build demand for lead-safe certified firms among the public.
The consumer outreach materials include consumer print advertisements,
PSA radio advertisements in English and Spanish, and a fact sheet about
the RRP rule that contractors can provide to consumers to inform them
about the advantages of hiring lead-safe renovation firms. The consumer
outreach materials are also downloadable from EPA's Web site at http://epa.gov/lead/pubs/lscp-consumers.htm.
    Finally, in an effort to raise awareness of the consequences of
lead poisoning among parents and pregnant women who live in homes built
before 1978, the Coalition to End Childhood Lead Poisoning, EPA and HUD
joined the Ad Council in April 2010 to launch a national multimedia PSA
campaign. As stated in the PSA campaign press release, the most common
pathways for lead poisoning are deteriorating lead-based paint (on
older windows, doors and trim, or walls) or improperly-performed
renovation, repair and painting activities that cause paint to chip,
peel, or flake.
    EPA will continue to evaluate and consider additional outreach and
educational opportunities to improve property owner and occupant
understanding of dust-lead hazards created by renovations. EPA also
will continue to monitor implementation of the RRP rule. If future
information, studies, or data indicate that the existing RRP rule work
practices are not reliable, safe, and effective, EPA will consider
whether additional requirements should be proposed.
    2. Elimination of provision allowing clearance in lieu of cleaning
verification. In the 2010 proposal, EPA proposed to eliminate the
existing provision that allows renovation firms to skip the cleaning
verification part of the mandatory cleaning protocol if another
Federal, State, or local law or regulation, or the contract between the
renovation firm and the property owner requires the renovation firm to
use qualified entities to perform dust wipe testing and requires the
renovation firm to achieve clearance. The rationale for eliminating
this provision was based on the fact that, as discussed in the preamble
to the 2010 proposal and the preamble to the 2008 RRP final rule,
cleaning verification is an integral part of the whole suite of RRP
work practices. The Dust Study demonstrates that these practices, when
observed as a whole, are effective at minimizing exposure to dust-lead
hazards generated by renovations.
    EPA received only a handful of comments on this aspect of the 2010
proposal. Commenters thought that removing this provision from the RRP
rule would make the rule inconsistent with the HUD regulations or State
or local laws. Some believed that requiring both cleaning verification
and clearance was unnecessarily burdensome, and pointed out that
persons trained in lead-safe work practices had been achieving
clearance without cleaning verification for a number of years now.
While EPA does not agree with all of these assertions, EPA does agree
that it is unnecessary to require renovation firms who must achieve
clearance to follow the specific cleaning verification protocol. After
all, these firms must continue to clean until they achieve the
clearance standards. As discussed in the preamble to the 2010 Proposal,
and mentioned by some commenters specifically in reference to this
provision, contractors who receive the regular feedback provided by a
clearance requirement have learned how to clean so that they typically
achieve clearance on the first attempt. Specifically, in its Evaluation
of the HUD Lead-Based Paint Hazard Control Grant Program (Ref. 10), HUD
noted that the rate of passing initial clearance was associated with
repetition of lead hazard control activities. Therefore, EPA is
retaining the provision that allows the cleaning verification step to
be skipped if the renovation firm must also achieve clearance. However,
EPA believes that renovation firms whose projects are subject to
clearance only as a result of contractual requirements are less likely
to gain the repetitive experience of cleaning sufficiently so as to
meet clearance with few cleaning cycles, so EPA encourages property
owners who include clearance in their renovation contracts to also
require renovation firms to perform cleaning verification. EPA also
notes that States and Tribes are free to include both clearance and
cleaning verification in their laws and regulations.
    3. Paint chip sample collection. In May 2010, EPA proposed to give
certified renovators another option for determining whether lead-based
paint is present on components to be affected by a renovation. This
option would allow certified renovators to collect paint chip samples
from components to be affected by a renovation instead of using test
kits to test the paint on the components. The samples would be required
to be sent to an entity recognized under the NLLAP for analysis. In
issuing this 2010 proposal, EPA reasoned that it would be easy to teach
certified renovators to collect paint chip samples in the renovator
course and this would provide maximum flexibility for certified
renovators and renovation firms.
    EPA received a number of comments on this part of its 2010
proposal. Some commenters supported this option

because they felt that it is easy to properly collect a paint chip
sample, and they agreed that this would provide additional needed
flexibility for certified renovators and renovation firms. One
commenter stated that, as a homeowner, he had been instructed by an
NLLAP laboratory over the telephone on how to properly collect a paint
chip sample and forward it to the laboratory for analysis. This
experience led him to believe that it would be feasible to include in
the renovator course instruction on how to collect a paint chip sample
and forward it for analysis. Other commenters did not support this
aspect of the 2010 proposal because they believe that only certified
inspectors or risk assessors should be permitted to collect paint chip
samples or make determinations about the presence or absence of lead-
based paint. Several noted that this would conflict with State laws
that prohibit anyone other than a certified inspector or risk assessor
from sampling for lead-based paint. Some commenters expressed concern
about the length of the renovator course, and the ability to add the
additional information on paint chip collection, including information
on chain-of-custody issues and laboratory submission procedures,
without lengthening the course beyond 8 hours. Others noted that
renovators are already being taught many of the necessary skills during
instruction on how to properly use test kits.
    Because renovator training courses are already required to include
training in how and where to use test kits, and the associated
recordkeeping requirements, EPA agrees with those commenters who
believed that it would take very little additional time to also provide
renovators with specific training in how to collect a chip sample and
submit it for analysis. The selection of locations to test and the
recordkeeping requirements would be identical whether test kits or
paint chip sampling is used, except that the laboratory report would
also have to be maintained along with the records associated with the
renovation. EPA also agrees with those commenters who thought that this
option would provide additional important flexibility. EPA is
promulgating the proposed option allowing certified renovators to
collect paint chip samples from painted components that will be
disturbed by a renovation and submit those samples to an NLLAP-
recognized entity for analysis. EPA will modify the model certified
renovator training course to add the necessary information on sample
collection, chain-of-custody, and laboratory submission procedures. One
commenter wondered how renovators who have already taken the training
to become certified would learn about this option and how to use it.
EPA will post the information developed for the renovator training
course on its Web site. EPA will also e-mail this information to
certified renovation firms that provided an e-mail address on their
certification applications. As pointed out by several commenters, paint
chip sample collection, by itself, is a relatively simple thing to
learn and EPA believes that certified renovators who have already been
trained in how to properly use a test kit will be able to learn how to
properly collect a paint chip sample and submit it to an NLLAP-
recognized entity from the material EPA posts on its Web site.
    At least one commenter pointed out that EPA would also have to
modify the recordkeeping requirements to accommodate this option and
include information specific to paint chip sample collection, such as
component and location tested, identity of the NLLAP entity analyzing
the samples, and the sample results. Accordingly, EPA is modifying 40
CFR 745.86(b)(1) to add a new subparagraph (iii) that requires records
pertaining to paint chip sample collection and analysis, including a
description of the components that were sampled, and the locations
sampled, the name and address of the NLLAP-recognized entity performing
the analysis, and the results for each sample. EPA is also modifying 40
CFR 745.86(b)(6) to include a certification by the certified renovator
that, if paint chip samples were collected, that the samples were
collected from the components in the locations specified, that the
samples were submitted for analysis to the identified NLLAP-recognized
entity, and that the sample results were as specified.
    This option does not make certified renovator the equivalent of a
certified lead-based paint inspector. Certified renovators must still
test each affected component, they are not permitted to exclude
components based on similar painting histories or perform random paint
sampling in multi-unit buildings. Just as with the current provisions
for test kit use, in those states that do not permit persons other than
certified inspectors or risk assessors to sample or test for lead-based
paint, certified renovators will not be able to exercise this option.
    4. Training provider accreditation. In May 2010, EPA proposed a
number of minor changes to the training provider accreditation
provisions. EPA received very little public comment on these proposed
amendments, and EPA is promulgating these amendments as proposed.
    a. Documentation of personnel qualifications. The first of these
minor amendments involves submission of documentation of training
program manager and principal instructor qualifications along with
training provider applications for accreditation. Training providers
who wish to provide renovator, dust sampling technician, or lead-based
paint activities training for Federal certification purposes must apply
for and receive accreditation from EPA. To become accredited, a
provider must employ a training program manager as well as principal
instructor(s) who meet certain education, training and work experience
requirements. The training provider must indicate on its application
for accreditation that the training program manager and principal
instructor(s) meet these requirements; however, the 2008 RRP rule did
not require documentation (e.g., resumes) regarding the qualifications
of these individuals to be submitted to EPA. The Agency believes it is
important to review this information when determining whether to
approve a training provider application. When EPA reviews applications
for accreditation, it is common for the Agency to request this
documentation from training providers in order to verify that the
training program manager and principal instructor(s) have the proper
qualifications. Requesting this information takes time and can delay
the review of an application. Therefore, the Agency will now require
training providers to submit documentation regarding the qualifications
of the education, training and work experience of training managers and
principal instructors with their applications for accreditation. Only
one commenter commented on this provision, expressing general support
for the change.
    b. Submission of training course materials. EPA is also
promulgating other proposed changes to the required materials that must
be submitted along with an accreditation application. EPA received only
one comment expressing general support for this proposed change.
Specifically, to become accredited, a training provider must submit a
copy of its training course materials with its application for
accreditation for review by the Agency. If a training provider chooses
to use the model course developed by EPA or a course approved by an
authorized State or Indian Tribe, then the provider is not

currently required to submit the course materials with its application.
Instead, the training provider indicates on its application that it
will use the EPA model course or a course approved by an authorized
State or Indian Tribe. Authorized States and Indian Tribes can have
renovation or abatement programs that are significantly different from
the EPA-administered program which would be reflected in their approved
course materials. In these instances, a training course approved by the
State or Indian Tribe may not be sufficient for the purposes of
training someone on the requirements of the Federal program.
    Accordingly, the Agency proposed to require training providers who
apply to EPA for accreditation and wish to use a course approved by an
authorized State or Indian Tribe to submit the course materials for EPA
review. EPA reasoned that this will give the Agency the opportunity to
identify and address any significant differences between the
requirements of EPA and the authorized program that may appear in the
course so the Agency can ensure that EPA-accredited training providers
are using appropriate course materials.
    EPA is promulgating this provision as proposed. This provision only
applies to those training providers who wish to use a training course
approved by an authorized State or Indian Tribe that is different from
the EPA model training course. Training providers wishing to use the
EPA model courses need not submit those materials with their
applications.
    c. Role of principal instructor. EPA is promulgating a proposed
minor amendment involving a clarification of the role of principal
instructors in teaching courses. The regulation, at 40 CFR
745.225(c)(3), states that principal instructors are responsible for
the organization of their courses and oversight of the teaching of all
course material. The regulations also define ``principal instructor''
as ``the individual who has the primary responsibility for organizing
and teaching a particular course.'' Nonetheless, the rule also allows
training program managers to designate experts in a particular field
(e.g., doctors or lawyers) as guest instructors, on an as needed basis,
to teach discrete portions of the course. EPA interprets these
provisions to require a principal instructor to be present and
primarily responsible for teaching the course, although guest
instructors may be used to teach some portion(s) of the course.
Principal instructors are also responsible for the quality of the
instruction delivered by the guest instructors. To ensure that the
regulation is clear on this point, EPA proposed to amend 40 CFR
745.225(c)(3) to state that principal instructor(s) are primarily
responsible for teaching the course materials and must be present to
provide instruction (or oversight of portions of the course taught by
guest instructors) for the course for which he has been designated the
principal instructor. EPA received two comments on this provision, both
supported the change, and one specifically stated a belief that having
principal instructors present while guest lecturers teach would improve
the content of many courses. EPA agrees with these commenters and EPA
is promulgating this provision as proposed.
    d. Application amendments. EPA is promulgating as proposed another
minor amendment involving a specific provision requiring training
providers to amend their accreditation application whenever there is a
change to the information presented in their most recent accreditation
or re-accreditation application. The RRP rule includes requirements for
amending the certification of a renovation firm. Firms must submit an
amendment within 90 days of the date that a change occurs to
information in its most recent application for certification or re-
certification. Examples of amendments include a change in the firm's
name without transfer of ownership, or a change of address or other
contact information. To amend its certification, a firm must submit an
application, noting on the form that it was submitted as an amendment.
The firm must complete the sections of the application pertaining to
the new information, and sign and date the form. EPA has interpreted
the training provider accreditation regulations to require accredited
training providers to submit amended applications whenever there is a
change to the information provided in the training provider's most
recent application for accreditation or re-accreditation, including
information regarding the training manager and any principal
instructor(s) teaching courses offered by the training provider.
However, the existing regulations do not specify a time limit for
submitting an amendment, so EPA proposed to require training providers
to submit amendments within 90 days of the date a change occurs to
information in each provider's most recent application. As proposed, if
the training provider does not amend its most recent accreditation
application within the 90-day time period, it must stop providing
training until the accreditation application is amended. EPA also
proposed to approve or disapprove amendments for a new training
manager, any new or additional principal instructors, or any new
permanent training location within 30 days of the date EPA receives the
amendment. This 30-day time period will give EPA time to check the
qualifications of the training manager(s) or principal instructor(s)
before the training manager begins managing or the principal instructor
begins teaching a course. This 30-day time period also gives EPA time
to verify the suitability of a new permanent training location by
visiting the location. As proposed, the training provider would not be
permitted to provide training under the new training manager or offer
courses taught by any new principal instructor(s) or at the new
training location until EPA either approves the amendment or 30 days
has passed. EPA also proposed to clarify that no fee will be charged
for accreditation application or certification amendments. EPA received
no comments on this proposed amendment.
    Because qualified training managers and principal instructors are
critical to ensuring effective training, it is important for EPA to
have the ability to review their qualifications before they begin to
provide training. If unqualified individuals provide training, it could
be very difficult to determine whether the trainees received adequate
training and resolve any concerns over the quality of the training.
Requiring retraining would not only inconvenience the training
provider, it would also be burdensome for the trainees themselves.
Therefore, EPA is promulgating the 30-day review period for new
training managers and principal instructors as proposed, with several
modifications. The first relates to the calculation of the 30-day
review period. EPA is clarifying that the 30-day period begins upon
submission of a complete application for amendment. Thus, if the
amendment involves a new training manager or principal instructor, the
training provider must fill out the section of the application that
identifies the training provider and the sections that pertain to the
new training manager or principal instructor, sign the application, and
include the individual's qualifications along with the application for
amendment. If the application does not include these items, then the
30-day review period would not begin until the missing information is
submitted.
    In addition, in further reviewing this proposed provision, EPA has
decided that additional flexibility would be beneficial for training
providers. If the training provider wishes to use a

training manager or principal instructor who has already been reviewed
by EPA as part of a successful application for training provider
accreditation under 40 CFR 745.225, whether for that training provider
or another, the training provider may do so on an interim basis without
delay. The training manager or principal instructor must still meet the
qualifications for the position as described in 40 CFR 745.225(c)(1)-
(2). If, within 30 days of the date that the training provider begins
using such an individual as a new training manager or principal
instructor, EPA determines that the individual should not be used in
such a capacity, EPA will provide written notice to the training
provider. The training provider must stop providing training under the
new training manager or principal instructor upon receipt of written
notice from EPA.
    With respect to new permanent training locations, EPA is also
concerned that a poor choice of location could negatively affect the
quality of training. For example, if a location is chosen that does not
have a suitable surface for performing cleaning verification, trainees
would be unable to experience actually doing, during the hands-on
portion of the course, something that will be an important part of
their responsibilities as certified renovators. However, EPA believes
that the choice of training location does not, in most cases, have as
big of an impact on the quality of training as the training manager or
the principal instructor. During the accreditation process for new
training providers, it has been EPA's practice to review the
qualifications for each and every training manager and principal
instructor named on an application. In contrast, where a training
provider has identified multiple permanent training locations in its
application, EPA has chosen to visit a sample of locations, rather than
each and every location. In addition, EPA has been approving traveling
training providers based on the criteria that the providers will use to
select a training location, a demonstration of the hands-on training,
and an examination of the equipment the providers plan to use in
training. Therefore, EPA will allow training providers to use new
permanent training locations on an interim basis for 30 days. If,
during that 30 days, EPA determines that the location is not adequate,
the training provider must stop using that location upon written notice
from EPA.
    e. Hands-on training requirements. Another minor amendment involves
the topics for which hands-on training is required in the renovator and
dust sampling technician courses. The regulations at 40 CFR 745.225
includes requirements and procedures that training programs must follow
to become accredited in order to provide instruction in lead-based
paint courses. Minimum requirements for training curricula are found in
this section, which lists course topics that must be included in the
different training courses with an indication of the topics that
require hands-on instruction. However, EPA inadvertently omitted
indicating which course topics required hands-on training for the
renovator and dust sampling technician disciplines. Accordingly, EPA
proposed to identify in 40 CFR 745.225(d) which topics in the renovator
and dust sampling technician courses require hands-on training. In
further clarification, EPA also proposed to add a sentence to 40 CFR
745.225(e)(2) stating that refresher courses for all disciplines except
project designer must include a hands-on component.
    EPA received several comments on this aspect of the 2010 proposal.
Two commenters supported the proposed topics for hands-on training for
renovators and dust sampling technicians. Another commenter wondered
why report preparation would be a required hands-on topic for dust
sampling technicians when it has never been a hands-on topic for the
other disciplines that must prepare reports. While it is true that
hands-on training in report preparation is not required for most lead
training disciplines, it is required for the inspector discipline.
Thus, certified inspectors and certified risk assessors, who must
successfully complete both the inspector course and the risk assessor
course, receive hands-on training in report preparation. EPA believes
that report preparation for dust sampling technicians is likewise
important enough to warrant hands-on training in how to do it properly.
Accordingly, EPA is finalizing the required hands-on training topics as
proposed. Renovator trainees must receive hands-on training in using
test kits, renovation methods that minimize creation of dust and lead-
based paint hazards, containment and cleanup methods, and cleaning
verification. Dust sampling technician trainees must receive hands-on
training in dust sampling methodologies and report preparation.
    EPA received two comments specifically on the proposed addition of
a statement that all refresher training courses, with the exception of
the project designer refresher course, must include hands-on training.
One commenter was an environmental advocacy group, the other an
industry trade association. Neither commenter supported this aspect of
the 2010 proposal; they thought that requiring hands-on training for
renovator refresher courses would limit the availability of refresher
training and increase costs unnecessarily. Both commenters thought that
enough information could probably be conveyed in a distance learning or
e-learning setting to warrant dispensing with the hands-on requirement
for renovator courses. The environmental advocacy group pointed out
that EPA's current model refresher training course for renovators
contains two required hands-on skill sets--test kit usage and cleaning
verification. This commenter felt that this was appropriate, given that
previously-trained individuals are still taking advantage of the
``grandfathering'' provision that allows them to successfully complete
an accredited renovator refresher course to become certified
renovators. Those individuals would not have had previous training in
those two skills, so hands-on training would be necessary. However,
once the grandfathering provision is no longer available, as discussed
later in this section of the preamble, all certified renovators would
have had hands-on training in these skills. While EPA agrees with this
commenter that, for now, it is particularly important for renovator
refresher courses to include hands-on training in test kit use and in
cleaning verification, EPA disagrees that hands-on refresher training
is unnecessary. A hands-on component for refresher courses will help
ensure that certified renovators remain competent in the skills needed
to comply with the RRP rule, including test kit use, containment, and
cleaning (including cleaning verification). Therefore, EPA is
finalizing the proposed amendment to 40 CFR 745.225(e)(2) that
specifically states that hands-on training is required for all
refresher courses except project designer. EPA plans to re-evaluate the
renovator refresher course after the grandfathering provision sunsets,
but before the currently-certified renovators are due for refresher
training. At that time, EPA will consider whether hands-on training is
still necessary and appropriate for renovator refresher training.
    f. E-learning. As stated in the 2010 proposal, Web-based training
and other types of alternative training delivery are permitted under
both the Lead-based Paint Activities Regulations and the RRP rule. An
EPA model on-line

renovator course that may be used to deliver the classroom portion of
the renovator course is available. While such alternative training
delivery options cannot be used to deliver required hands-on training,
EPA encourages training providers to make use of such options where
appropriate to increase access to training and make it more affordable.
Web-based training courses are considered separate courses and a
separate application fee is required for each.
    EPA's model electronic training course contains certain basic
administration and delivery requirements. These include assigning a
unique identifier to each student, to allow the training provider to
track student course progress and completion. In addition, there are
knowledge checks for each chapter, which must be completed before the
student can go on to the next chapter, and a final test for the
electronic learning portion which consists of at least 20 questions.
Finally, students must be able to save or print an uneditable copy of a
record showing completion of the electronic learning portion of the
course. In May 2010, EPA proposed to incorporate these requirements
into 40 CFR 745.225 to ensure that all training providers wishing to
use electronic learning for the classroom portions of lead-based paint
courses are aware of these requirements and plan their course
development accordingly. EPA requested comment on a variety of topics,
including the number of questions in the course test and the score
required to pass.
    EPA received several comments on this aspect of the 2010 proposal.
Some commenters were concerned with verifying the identity of persons
logging into e-learning courses. Several noted that, because it is
impossible to verify with certainty the identity of persons completing
online training, an in-person final course test is necessary to ensure
that the trainee is adequately trained. In this final rule, EPA is
amending 40 CFR 745.225(c)(6) to explicitly require e-learning training
providers to assign a unique identifier to each student in order to
track the student's progress through the course. EPA believes that this
requirement, along with the existing requirement that the trainee
participate in the hands-on training and take the final course test in
person, will provide reasonable assurance that the same person has
completed all of the portions of the course. In response to these
commenters, EPA is modifying the regulations to specifically state that
e-learning or other alternative delivery methods cannot be used for the
hands-on training, the final course test, or the proficiency test, if
one is given.
    Commenters also expressed concern that the EPA model online course
could be completed in as little as one hour, which could mean that a
person could become a certified renovator with only 3 hours of
training. EPA disagrees with these commenters. The current model course
posted on the EPA Web site is not a functioning course and does not
contain the background learning management system (LMS) which tracks
the student's progress and requires satisfactory completion of the
knowledge checks and the final test. Therefore, the time it takes to
page through the model course is not representative of the time it
would take to successfully complete an accredited e-learning course.
Assuming that 2 training hours are spent on hands-on training, 40 CFR
745.225(c)(6)(vi) requires a minimum of six 50 minute training hours or
5 hours of classroom time for renovators. This requirement applies
equally to traditional classroom settings as well as to e-learning
courses offered for accreditation. While EPA realizes that renovator
trainees will not all proceed through an e-learning course at the same
pace, an e-learning course offered for accreditation must be generally
designed so that an average trainee takes approximately 5 hours to
proceed through the course, including all of the knowledge checks and
the course test.
    One commenter thought that EPA's proposed requirement of an 80%
minimum passing score on the course test for the online course was too
restrictive. Another commenter disagreed, reasoning that an 80% minimum
passing score was reasonable but that a 100% passing score would be too
restrictive, because it would likely result in students being penalized
for poorly-worded questions or alternate interpretations, regardless of
the state of the student's knowledge. This commenter thought that it
was appropriate to have a higher passing score requirement for the e-
learning portion of a training course, because the student would have
an opportunity to review the material and retake the test. EPA agrees
with the second commenter. The 80% minimum passing score is intended to
demonstrate mastery of the subject and lower scores do not achieve this
goal. If students do not pass the test, they must review the material
and try again. To ensure that, just as in conventional testing,
students using electronic means to take the test do not receive
feedback on their answers until after they complete and submit the
test, the electronic testing provision at 40 CFR 745.225(c)(6)(viii)(D)
explicitly prohibits such interim feedback, a feature contained in some
Web sites.
    One commenter suggested that EPA consider separately accrediting
entities that provide online training and entities that provide hands-
on training. The commenter argued that developing an online course is a
capital-intensive project that requires a large number of trainees to
recover the costs, so relatively few entities are likely to undertake
online course development. In contrast, the commenter stated that the
delivery of hands-on training must be more local and mobile, it
requires a smaller capital investment, and each entity may have
relatively few trainees. EPA recognizes that this may be the case, at
least for now, while EPA is administering the RRP program in most
States. However, this may change as more States become authorized and
impose requirements for training that may differ from the EPA
requirements. In any event, as the commenter notes, EPA has developed a
streamlined process to allow accredited training providers to add an e-
learning component to their accreditation by using an already developed
and accredited online course. This allows accredited training providers
to offer online training without having to make a large capital outlay
to develop a course. EPA continues to believe that the training
provider who issues the final course completion certificate to a
trainee, thus conferring certified renovator status on the trainee,
must be responsible for ensuring that the student has completed all of
the required training. EPA does not offer partial accreditations, or
accreditation for a portion of a course.
    On a related topic, this commenter thought that it would be
burdensome to require the hands-on training provider to maintain
records of the specific times each student logged in to the online
portion of the course, each student's progress, and completion data.
The commenter believed that, in the case where the online provider and
the hands-on provider are separate entities, working under a
contractual agreement to present an entire training course, it would be
relatively easy for the online provider to maintain the records. In
contrast, the commenter thought that it would be much more burdensome
for EPA to require that the hands-on provider download or otherwise
take possession of these records. EPA disagrees with this commenter,
because EPA believes that the amount of data associated with this
particular requirement for each trainee is not substantial. However, if
a particular

accredited training provider felt otherwise, the provider could
contract with the provider of the online training to store the records.
Although the accredited training provider would remain ultimately
responsible for being able to produce those records, as long as the
training provider is able to produce them in response to a request from
EPA, EPA would consider the training provider in compliance with the
recordkeeping requirements.
    One commenter provided a number of specific comments on EPA's
proposed requirements for e-learning courses. First, the commenter
thought that the requirement for knowledge checks for each module of
the course was too inflexible, and that it could be difficult to
determine what a module is for purposes of knowledge checks. The
commenter suggested that EPA instead require periodic knowledge checks.
EPA agrees with this comment and is promulgating a requirement for
periodic knowledge checks equivalent to the number and content of the
knowledge checks contained in EPA's model course. This would be 16-24
knowledge checks over the entire course. This commenter also thought
that the requirement that a student be able to generate an uneditable
copy of an e-learning course completion certificate too stringent. The
commenter pointed out that almost anyone reasonably familiar with
computers could alter a secure PDF, image, or word processing file
through the print function. EPA will add language to the proposed
provision at 40 CFR 745.225(c)(6)(viii)(E) to clarify that EPA merely
meant that the certificate must not be susceptible to easy editing. A
secure PDF file would comply with these requirements. Allowing students
to generate and print the course completion certificate provides them
with reasonable certainty that they have completed the e-learning
portion of the course before attempting the hands-on portion. EPA
recommends that accredited training providers verify through other
means, such as the e-learning progress records, that each student who
completes the hands-on training has also completed the online portion
of the course before training providers issue the final course
completion certificate.
    g. Combined refresher courses. In the 2010 proposal, EPA requested
comment on whether training providers should be allowed to provide a
combined Abatement Worker/Renovator refresher course or a combined
Abatement Supervisor/Renovator refresher course or both. After the 2008
RRP rule was promulgated, EPA received input from the regulated
community and others indicating that many abatement contractors are
likely to also become certified renovation firms. If this is the case,
it would be advantageous for such firms to be able to send their
employees to combined refreshers so that the employees would more
readily be able to keep up their dual certifications. EPA requested
comment on the likelihood that this will be the case, and, if combined
refreshers are desirable, whether the different certification time
periods for individual abatement certification (3 years) and individual
renovator certification (5 years) should be harmonized and, if so, how.
EPA received two comments on this topic; both commenters supported the
idea of combined refresher courses and thought they would provide
increased flexibility for industry. One commenter thought that the
certification time periods should be harmonized to 3 years for all
disciplines because the commenter believed that 5 years was too long to
go without a refresher. The other commenter did not think that
harmonization was necessary, because the abatement worker or supervisor
would just take the combined refresher every 3 years to meet the
shorter certification periods in the Lead-based Paint Activities Rule.
EPA agrees with these commenters that combined refresher courses may be
beneficial. While the current regulations permit training providers to
offer refresher courses sequentially, e.g., a 4-hour renovator course
on the afternoon of one day, followed by an 8-hour worker course the
next day, taking the courses sequentially would result in some
duplication of training topics for persons certified as both renovators
and abatement workers. On the other hand, EPA is not certain that
appropriate refresher topics for both disciplines could be covered in a
single 8-hour day. EPA plans to evaluate the content of its supervisor,
worker, and renovator refresher courses to determine what an
appropriate combined course length might be. Depending on the results
of this evaluation, EPA will consider amending these regulations to
establish course length requirements for combined refresher courses.
    h. Recordkeeping. Another amendment proposed in May 2010 involves
recordkeeping requirements for training providers. Previously, training
providers were required to keep training records for 3 years and 6
months. This length of time was chosen because of the length of
individual certification periods for lead-based paint activities, which
can be as long as 3 years and 6 months including interim certification.
However, the renovator and dust sampling technician certification
periods are 5 years, with no interim certification. Therefore, in order
to ensure that the training records from the previous training course
are available for certified renovators and dust sampling technicians
taking refresher courses, EPA proposed to increase the recordkeeping
period applicable to these disciplines to 5 years. EPA received two
comments on this aspect of the 2010 proposal, both commenters thought
that the recordkeeping requirements for all disciplines should be
increased to 5 years. These commenters thought it would be less
confusing for training providers if there was one period applicable to
all. One commenter pointed out that EPA had extended the certification
period for renovators trained before April 22, 2010 to July 1, 2015, so
the training records for those trainees ought to be kept for as long as
their certification lasts. This commenter suggested that EPA require
training records to be kept for 5 years or until the expiration of
certification resulting from the training, whichever is longer. While
EPA agrees that it may be easier for training providers to keep records
for the same length of time regardless of the discipline, EPA does not
believe that it is necessary to make this a requirement. Training
providers who prefer to have one single recordkeeping process can
always choose to maintain their records for 5 years across the board.
Therefore, EPA is promulgating the increased recordkeeping requirement
for providers of accredited renovator and dust sampling technician
training as proposed. EPA also agrees with the commenter who suggested
that there be a longer recordkeeping requirement for renovator training
courses offered before April 22, 2010. Accordingly, EPA is also
promulgating a requirement that records for renovator training courses
completed before April 22, 2010 must be kept until July 1, 2015.
    i. Trainee photographs. EPA also proposed certain minimum standards
for the trainee photographs that must appear on renovator and dust
sampling technician course completion certificates. Accredited training
programs are required to issue a course completion certificate for each
person who passes a training course. A variety of information is
required to be on the certificate including the name of the course, the
name and address of the student, and contact information for the
training program. Course certificates for renovators or dust sampling
technicians must include a photograph of the

student, but the regulation does not include size requirements or other
specifications for the photograph. Since publishing the 2008 RRP rule,
the Agency has been asked if there is a minimum size for the
photograph. EPA believes that it would be beneficial to have minimum
standards for the photograph in order to ensure that the person in the
photograph is recognizable. EPA proposed to require that the
photographs on course completion certificates be an accurate and
recognizable image of the trainee and at least one square inch in size.
EPA also requested comments on whether the image quality requirements
should be more specific, e.g., more quantitative. EPA received several
comments on this provision. Commenters generally supported the proposed
requirements, but did not favor additional requirements, such as
quantitative requirements for image quality, as they were concerned
about the burden associated with such additional requirements. EPA
agrees with these commenters that the proposed requirements are
sufficient. Therefore, EPA is promulgating the image quality
requirements as proposed.
    j. Clarifying changes to 40 CFR 745.225. Finally, as stated
previously, 40 CFR 745.225 includes requirements and procedures that
training programs must follow to become accredited in order to provide
instruction in renovator, dust sampling technician, and lead-based
paint activities courses. The final 2008 RRP rule amended Sec.  745.225
to cover persons who provide or wish to provide renovator or dust
sampling technician training for the purposes of the RRP rule. There
are some instances where the regulations do not specifically mention
the renovator or dust sampling technician courses even though the
regulations apply to those courses. For example, 40 CFR 745.225(c)(14)
explains the requirements which a training provider must follow when
submitting notification to EPA after the completion of a training.
However, the conforming changes, i.e., to replace ``lead-based paint
activities courses'' with ``renovator, dust sampling technician, and
lead-based paint activities courses,'' were not made to every
subparagraph even though all the requirements of that section apply to
those courses. Consequently, EPA proposed to clarify that the
requirements in 40 CFR 745.225 apply to renovator and dust sampling
technician courses in addition to lead-based paint activities courses.
EPA received one comment offering general support for these proposed
revisions. EPA is promulgating these revisions as proposed.
    5. State and Tribal program authorization. Under the RRP rule,
interested States, Territories, and Indian Tribes may apply for, and
receive authorization to administer and enforce all of the elements of
the RRP program. In May 2010, EPA proposed several changes to the State
and Tribal program authorization regulations. The first was a
clarification that State and Tribal programs do not need to include
requirements for the accreditation of dust sampling technicians if they
require dust sampling to be performed only by a certified inspector or
risk assessor. EPA received only one comment relating to this proposed
revision, and that commenter thought that EPA should require States and
Tribes to allow dust sampling technicians to collect samples. However,
EPA does not have the authority to prohibit States and Tribes from
having a more stringent program than the EPA's, e.g., requiring more
training for persons collecting dust wipe samples than EPA requires. It
would not make sense for EPA to require States and Tribes to establish
the dust sampling technician discipline if those trainees would not be
allowed to perform any duties under State or Tribal law. Therefore, EPA
is promulgating this change to the text of the regulation as proposed.
    Along these same lines, EPA proposed to add a provision requiring
State or Tribal programs to have procedures and requirements for on-
the-job training of renovation workers who do not receive accredited
training. EPA neglected to include such a provision in the 2008 RRP
Rule. As with the dust sampling technician discipline, State and Tribal
programs are only required to have these provisions if they permit on-
the-job training for renovation workers. If, for example, a State or
Tribal program only allows certified renovators to perform renovation
activities within a regulated renovation work area, then no provisions
for on-the-job training would be required for that State or Tribal
program. EPA received one comment generally supporting this change. EPA
is promulgating this revision as proposed.
    EPA also proposed to amend the State and Tribal program
requirements to clarify that both individuals and firms must receive
certification. Only one comment was received on this topic, pointing
out that EPA's proposed regulatory text at 40 CFR 745.326(e)(1) did not
accomplish that objective. EPA agrees with this commenter, and has
revised the regulatory text throughout this section accordingly to
ensure that EPA's requirements are clear. EPA requires both renovators
and renovation firms to be certified. A renovator becomes certified by
successfully completing an accredited renovator training class. A
renovation firm becomes certified by submitting an application to EPA,
attesting that it and its employees will follow the work practice
standards at 40 CFR 745.85 for conducting renovations, and paying a
certification fee. EPA believes that, in order for a State or Tribal
program to be at least as protective as EPA's program, the State or
Tribal program must, at a minimum, require formal certification for
renovation firms. States and Tribes may, but are not required to,
formally certify renovators. The certified renovation firm is
responsible not only for the behavior of its certified renovators but
also for the other workers that have been trained by the certified
renovators. Thus, the renovation firm is ultimately responsible for the
proper performance of the renovation. Requiring formal certification
for renovation firms facilitates compliance monitoring and enforcement
for EPA as well as for State and Tribal programs. A program that only
required formal certification for individual renovators and not firms
would not be as protective.
    In addition, as pointed out by several State commenters, EPA
inadvertently included the wrong provisions in the proposed regulatory
text for revising authorized State and Tribal programs to conform to
revisions to the 2008 RRP rule. The existing provisions at 40 CFR
745.326(f) give authorized State and Tribal programs 2 years from the
effective date of any EPA revisions to the 2008 RRP rule to demonstrate
that the State or Tribal program meets the requirements of the revised
2008 RRP rule. This 2 year period is also afforded to States and Tribes
that submit applications for authorization before the effective date of
any EPA revisions. EPA did not intend to make any changes to this
provision and States and Tribes still have 2 years to make changes to
their programs necessitated by revisions to the Federal RRP program.
    Finally, EPA proposed to require that, in order to be authorized
for any of the lead-based paint programs, State or Tribal programs
demonstrate that: (1) The State or Tribe is able to sue to obtain
penalties, (2) civil and criminal penalties of at least $10,000 are
assessable for each instance of violation, (3) if violations are
continuous, the penalties are assessable up to the maximum amount for
each day of violation, and (4) the burden of proof and degree of
knowledge or intent of the

respondent is no greater than it is for EPA under TSCA. EPA also
requested comment on what criteria States or Tribes should consider in
assessing penalties and whether the $10,000 minimum penalty authority
level should be periodically adjusted for inflation. As discussed in
the preamble to the proposed rule, in choosing the proposed minimum
penalty authority of $10,000 per violation per day, EPA looked to other
programs that States and Tribes may be authorized to administer. Some
of these programs have minimum penalty authority requirements for State
and Tribal programs and some do not. For example, under the Clean Air
Act (CAA) implementing regulations at 40 CFR 70.11(a)(3) and the
Resource Conservation and Recovery Act (RCRA) implementing regulations
at 40 CFR 271.16(a)(3), State programs must have the authority to
assess civil and criminal fines of at least $10,000 per day per
violation. Other programs have established lower minimum penalty
authority requirements. The implementing regulations for the Safe
Drinking Water Act (SDWA) require State programs to have the authority
to impose a penalty of at least $1,000 per day per violation on public
water systems serving a population of more than 10,000 individuals.
Some EPA programs have set no minimum penalty authority requirements
for States and Tribes; these programs include the Asbestos Hazard
Emergency Response Act program and the State pesticide applicator
certification program under the Federal Insecticide, Fungicide, and
Rodenticide Act.
    EPA received a number of comments on this provision. Six State
commenters opposed the proposed provisions. Several argued that their
legislatures had already created the authority to establish an RRP
program, but the maximum penalty amount was less than $10,000. Five
States described their existing penalty authorities--one already has a
minimum penalty authority of $10,000, one has $5,000, and the other
three have $1,000. These States did not believe that they would be able
to increase the maximum penalty authority, because it was comparable to
other programs administered by the State, or that it would take several
years to get an increase through the legislature, during which time EPA
would have to administer the program in their jurisdictions. At least
two already-authorized State RRP programs pointed out that they had
been authorized with maximum penalty authorities of less than $10,000.
One State noted that it could assess penalties of up to $750 or $1,000
under its EPA-authorized RRP program, the other's maximum RRP penalty
authority ranged from $1,00 to $1,000. One of these States also noted
that it had been effectively enforcing the Lead-based Paint Activities
Program and the Pre-Renovation Education Program for years now, and the
State did not believe that an increase in its maximum penalty authority
would improve the effectiveness of its programs in any way. Another
State commented that it has penalty authority of $10,000, but that
limit is for each enforcement case, not per violation per day. Some of
the State commenters also noted that most enforcement actions in an RRP
program would be against very small companies or individuals, and
penalties of less than $10,000 per violation per day would still be
very effective deterrents for such entities.
    Two environmental advocacy groups supported EPA's proposed minimum
penalty authority of $10,000, arguing that substantial penalties are
necessary to get the attention of the regulated community and
meaningful enforcement is critical to the rule's success at protecting
individuals from exposures to dangerous levels of lead.
    EPA agrees with these commenters on the importance of an effective
enforcement program. Strong enforcement of the lead-based paint
regulations by authorized State and Tribal programs is critical to
ensuring the safety of the occupants of target housing and child
occupied facilities undergoing lead abatement, renovation, repair or
painting. However, EPA also agrees with those States that argued that
most of the enforcement actions in authorized lead-based paint programs
would be against very small entities. Although small entities also
violate the CAA and RCRA, it is likely that the regulated community in
the lead-based paint programs consists of smaller entities than the
other programs for which EPA has established minimum penalty
authorities. Therefore, EPA is establishing a minimum penalty authority
for State and Tribal programs of $5,000. Because it is especially
important to deter multiple violations and continuing violations, this
final rule retains the ``per violation, per day'' requirement.
    In response to the related requests for comment, State commenters
did not favor adding a mechanism for adjusting these minimum penalty
authorities for inflation. One environmental advocacy group supported
the idea, but thought that it should not be a barrier to State and
Tribal program authorization. EPA agrees with these commenters and no
mechanism for adjusting these minimums for inflation is included in
this final rule.
    Commenters suggested a number of factors that should be considered
by States and Tribes when imposing penalties for violations of their
authorized programs. Several favored enforcement history and risk, but
not to the extent of treating first-time offenders too lightly. A
handful of commenters argued that size of business, and ability to stay
in business should not be considered, because small companies can cause
as much harm as large companies. EPA believes that States and Tribes
may legitimately consider any of the factors that EPA typically
considers, such as nature, circumstances, and extent of the violation,
the culpability of the violator, history of prior violations, ability
to pay or continue in business, voluntary disclosure, and attitude of
the violator. However, EPA will not require States and Tribes to
consider any of these factors.
    Finally, EPA received no comments on the proposed addition of an
explicit requirement that States and Tribes have the ability to sue
violators to collect penalties and that the burden of proof for
enforcement be no more rigorous than the EPA standard under TSCA. EPA
believes that these two elements are important elements of an effective
enforcement program. Therefore, EPA is promulgating these additional
requirements as proposed.
    6. Vertical containment. EPA's 2010 proposal included more specific
language on vertical containment requirements for exterior projects. As
proposed, the rule would specifically state that vertical containment
is required for exterior renovation projects that are covered by the
rule and that affect painted surfaces within 10 feet of the property
line. In such cases, vertical containment is necessary to ensure that
adjacent buildings or properties are not contaminated by leaded dust or
debris generated by the renovation. EPA's Dust Study demonstrates that
leaded dust and debris from exterior renovations can be found 10 feet
away from activities disturbing leaded paint, even if no prohibited or
restricted practices are used. For example, in an experiment involving
the dry scraping of paint from a single story garage, significant dust-
lead levels were detected on collection trays at distances from 9 to 11
feet from the scraping activity (Ref. 6, page 6-25). These levels
ranged from 7,500 [mu]g/ft\2\ to more than 16,500 [mu]g/ft\2\. The RRP
rule, at 40 CFR 745.85(a)(2), requires renovation firms to isolate the
work area so that no dust or debris leaves the work area while the
renovation is being

performed. The rule further states, at 40 CFR 745.85(a)(2)(ii)(D),
that, in certain situations, the renovation firm must take extra
precautions in containing the work area to ensure that dust and debris
from the renovation does not migrate to adjacent properties. EPA knows
of no work practice other than a system of vertical containment or
equivalent extra precautions in containing the work area that would
universally and effectively prevent the migration of dust and debris
from renovations performed within 10 feet of the property line to
adjacent properties.
    EPA also proposed to clarify, in the regulatory text itself, that
windy conditions may also necessitate the use of vertical containment
to prevent contamination of other buildings, other areas of the
property, or adjacent buildings or properties. Specific mention of
windy conditions was made in the preamble to the final 2008 RRP rule,
although it was not included in the regulatory text. Nevertheless, EPA
expects atmospheric conditions to be one of several factors that
renovation firms consider when designing containment systems. Other
factors would include the height of the building and the paint
disturbance and the type of renovation activity planned. EPA thought
that specifically including windy conditions as a factor to consider
when designing an effective containment system would serve as an
important reminder for renovation firms. Including the mention of windy
conditions in the proposed regulatory text did not mean that vertical
containment would be required for any particular renovations. The 2010
proposal also included a definition of the term ``containment'' in
order to clarify what is meant by the term. The proposed definition was
based on the definition of ``Worksite preparation level'' from the
Department of Housing and Urban Development's ``Guidelines for the
Evaluation and Control of Lead-Based Paint Hazards in Housing'' (HUD
Guidelines, Ref. 11). The proposed definition included additional
information on what constitutes vertical containment.
    Some commenters supported the proposed revisions to the vertical
containment requirements. One thought that contamination of neighboring
properties is a common and serious problem. Other commenters did not
support the proposed revisions. These commenters thought that the
proposed revisions were too inflexible and unnecessary. EPA disagrees
with these commenters. As discussed, the Dust Study shows that dust and
debris from exterior renovations travels at least 10 feet from the
activity. The RRP rule requires the ground to be covered with plastic
sheeting or other impermeable material extending 10 feet beyond the
surfaces being renovated or a sufficient distance to collect falling
paint debris, whichever is greater, unless prevented by the property
line. In the absence of a system of vertical containment or equivalent
extra precautions in containing the work area, EPA knows of no work
practice that would universally and effectively ensure that adjacent
properties are not contaminated when work disturbs lead-based paint
within 10 feet of the property line. One commenter thought that it
should be sufficient to require the renovation firm to inform the
neighbors to keep their windows and doors closed while the renovation
is ongoing. While this might prevent leaded dust from drifting into the
interiors of adjacent buildings, it does not address contamination of
the neighboring porches, balconies, or yards. This does not meet the
standard already present in the RRP rule, that dust and debris not be
permitted to leave the work area while the renovation is ongoing. EPA
is also concerned about the ability of renovation firms to affect the
behavior of neighbors whose homes are not being renovated.
    Several commenters expressed concern about the safety of workers
and vertical containment. One argued that OSHA has said that vertical
containment is not required in situations where worker safety would be
compromised, such as in windy conditions. EPA agrees that erecting
extensive scaffolding to support a large vertical containment system in
some windy conditions may be unsafe for workers. If such a vertical
containment system would be necessary to ensure containment of the dust
generated by a particular renovation, EPA knows of no alternative but
to reschedule the renovation for a more clement day. The HUD Guidelines
state that exterior renovation work should not be conducted when the
wind speed is greater than 20 miles per hour (Ref. 11). The Guidelines
also state that work must cease and cleanup be completed before rain
begins. EPA has not imposed these specific requirements, but renovation
firms should consider this guidance when deciding how to proceed.
    Other commenters were concerned about the additional costs that the
revisions to the vertical containment provisions would impose on
renovations and the potential negative impact on affordable housing and
weatherization programs. EPA agrees that it is more expensive to
conduct exterior renovations with vertical containment than without. In
EPA's economic analysis for the 2008 RRP rule, EPA addressed those
situations where the renovation firm must take extra precautions to
effectively contain dust and debris, including work areas in close
proximity to other buildings, work areas that abut a property line, and
windy conditions. The 2008 economic analysis specifically notes that it
is sometimes necessary to erect a system of vertical containment to
prevent paint dust and debris from contaminating the ground or any
object beyond the work area. To account for these situations, EPA
estimated that approximately 2% of exterior jobs would use exterior
containment, and the incremental cost of vertical containment varies
from $330 per wall to $1,640 per wall, depending on the size of the
job. Thus, EPA has already accounted for the additional costs incurred
for using vertical containment systems on renovations performed within
10 feet of the property line.
    Because EPA does not know of any effective alternatives to the
vertical containment requirement for exterior renovations performed
within 10 feet of the property line, EPA is promulgating a requirement
that vertical containment or equivalent extra precautions in containing
the work area be used on exterior renovations performed within 10 feet
of the property line. This requirement is intended to provide
flexibility for certified renovators to design effective containment
systems based on the renovation activity and the work site. To ensure
that renovation firms understand that the requirement refers to a wide
variety of effective work area containment systems, EPA is including
the phrase ``or equivalent extra precautions in containing the work
area'' in this requirement. Effective work area containment can span a
range from simple barriers to more extensive scaffolding, depending on
the size of the job and other relevant factors. Complex vertical
containment systems with extensive scaffolding are often not necessary
to effectively contain the dust generated by a renovation. An example
of a simple barrier system, on a job requiring hand scraping within a
few feet of the ground and within a few feet of the property line,
would be laying plastic or other impermeable material on the ground
between the paint-disturbing activity and the property line, anchoring
it to the house, and then extending the material up and over the fence
at the property line. A slightly more extensive containment approach

could involve the use of a triangular eave/soffit ``lean-to'' system.
In this system, plastic or other impermeable material could be spread
out on the ground 5-10 feet out from the exterior side wall, depending
upon the available space. The same impermeable material could be
attached to the eave or soffit area at the roofline, and held away from
the building by an extension ladder temporarily fastened to where the
wall meets the eave or soffit. The material would then be fastened and
sealed onto the ground cover. A variation of this system would involve
draping the plastic or impermeable material over a frame consisting of
commercially-available tension rods or strong painter's extension
tubes. Effective containment could also consist of plastic or other
impermeable material draped from outriggers, or framework secured to
the roofline, taped to the sides of the building to surround the work
area, and fastened and sealed to the ground cover. Yet another
containment system could involve a rigid box-like framework,
constructed out of commercially-available tension rods or painter's
extension tubes, wrapped in impermeable sheeting and anchored to the
ground cover and the sides of the building. EPA believes that these
measures, in most cases, should be sufficient to contain dust and
debris where extra containment measures are needed, such as work that
creates large amounts of dust or work performed within 10 feet of the
property line.
    EPA realizes that it may be costly or impracticable to deploy an
elaborate vertical containment system, for example, in high rise multi-
story buildings. The Agency, furthermore does not wish to create
hazardous situations for workers that would outweigh the benefit of
capturing the dust with scaffolding-based vertical containment systems.
EPA believes that equally effective systems may exist. Thus, EPA added
language indicating that ``equivalent extra precautions in containing
the work area'' will also satisfy the requirement to contain dust on
the worksite of exterior renovations performed within 10 feet of the
property line.
    EPA continues to believe that it is important to remind renovation
firms that there may be other situations where vertical containment or
equivalent extra precautions in containing the work area would be
required in order to prevent dust and debris from leaving the work
area. However, because some commenters appeared to believe that EPA's
mention of windy conditions amounted to a requirement to use vertical
containment in windy conditions, EPA is deleting the phrase ``such as
in windy conditions.'' The complete provision, as promulgated, reads:
``If the renovation will affect surfaces within 10 feet of the property
line, the renovation firm must erect vertical containment or equivalent
extra precautions in containing the work area to ensure that dust and
debris from the renovation does not contaminate adjacent buildings or
migrate to adjacent properties. Vertical containment or equivalent
extra precautions in containing the work area may also be necessary in
other situations in order to prevent contamination of other buildings,
other areas of the property, or adjacent buildings or properties.'' EPA
wishes to encourage innovation in designing effective containment
systems or measures, so EPA will consider any information or data made
available to it that could be used to determine the equivalence of
extra containment precautions in containing the work area. For example,
the Department of Energy (DOE) suggested that an equivalent containment
system could involve the use of a trough-like system beneath the paint-
disturbing work. The trough would consist of polyethylene and tubing
fabricated in a U-shape configuration, extending 1 to 2 feet from the
exterior side of the building. According to DOE, the bottom of the
trough could be weighted down with scrap lumber and sprayed with water
enabling it to capture the falling dust and debris. DOE suggested that
this trough, especially if combined with dust minimization techniques
such as wet methods, the use of dust-capturing shrouds, and HEPA
vacuums, would be equally effective at containing dust and debris as
vertical containment. EPA cannot determine that the trough, by itself,
provides effective containment of dust and debris, but will be
examining this in the future. Similarly, DOE suggested that another
possible method for the dust that is generated during an exterior
renovation to be captured could involve the use of a shroud attached to
a power tool with a HEPA vacuum, also attached to the shroud, where the
dust and debris is captured right at the source--thereby not allowing
it to fall onto polyethylene, workers clothing, equipment, and tools.
EPA seeks data or other information upon which to evaluate that the
following are effective at containing dust and debris: the trough in
combination with dust minimization techniques; the use of a shroud
attached to a power tool with a HEPA vacuum; or other alternative
methods. EPA will review and issue guidance as appropriate. EPA intends
to work collaboratively with DOE and HUD and other agencies and
stakeholders as appropriate to develop further guidance on equivalent
extra precautions in containing the work area.
    In addition, since promulgation of the 2008 RRP rule, EPA has
received several inquiries from the regulated community on the rule's
containment provisions. In particular, EPA has been asked to address
the problem of obstacles that prevent renovation firms from using 6
feet of plastic sheeting or other impermeable material on interior
floors or 10 feet of material on the ground. EPA believes that the
proper use of vertical containment measures may be a more effective
method for containing the work area than use of traditional floor or
ground containment alone, especially where obstacles prevent or make it
impractical to install floor or ground containment to the extent
required by the RRP rule. Therefore, EPA is amending the containment
provisions for both interior and exterior renovations to permit
renovation firms to erect vertical containment closer to the renovation
activity than the minimum floor or ground containment distance
specified in the RRP rule to give renovation firms more flexibility in
designing effective containment strategies for particular work sites.
For exterior renovations, this amendment would allow a renovation firm
to construct vertical containment less than 10 feet from the renovation
activity. If a renovation firm chooses to take advantage of this
provision, the ground containment may extend less than 10 feet,
stopping just outside the edge of the vertical containment, as long as
the distance is sufficient to contain all dust and debris during the
renovation and post-renovation cleanup. For example, a renovation firm
erects an exterior vertical containment system consisting of a rigid
box-like framework wrapped in impermeable plastic sheeting and anchored
to the ground and home. If this containment system is erected 5 feet
from the side of the home, and placed on top of ground containment,
such containment should effectively limit the travel of dust and debris
to the interior of the enclosure. Under the amended containment
provisions, the renovation firm would not be required to extend plastic
sheeting or other impermeable material another 5 feet beyond the
vertical containment system in order to meet the 10 foot minimum ground
containment requirement promulgated in the 2008 RRP rule.
    EPA is also providing increased flexibility for renovation firms by
allowing firms the option to use vertical containment measures in
combination

with reduced floor containment on interior renovations. However, to
qualify for reduced floor containment requirements, vertical
containment systems for interior renovations must consist of
impermeable barriers that extend from the floor to the ceiling and are
tightly sealed at joints with the floor, ceiling and walls (e.g.
through the use of tape, foam or other means which create tight seals),
thus effectively creating a separate enclosure. This type of vertical
containment acts as the functional equivalent of a wall for purposes of
defining the work area and, if the vertical containment meets these
criteria, the floor containment measures may stop at the edge of the
vertical barrier. However, unlike permanent walls, vertical containment
barriers are subject to all containment cleaning requirements including
misting, inward folding, sealing, and proper disposal following the
renovation. A firm must also thoroughly clean an additional two feet
beyond the vertically-contained work area. Finally, during ingress or
egress from the vertical enclosure, a firm must take precaution to
ensure that dust and debris on personnel, tools, and other items do not
escape the work area.
    Upon further consideration of the proposed definition of
containment, particularly in light of the comments received on the
proposed vertical containment requirements, EPA has determined that a
broader definition of containment is unnecessary, and may even be
confusing, but a definition of vertical containment would help to
clarify the vertical containment requirements. In addition, EPA
believes that there may be confusion among the regulated community and
other stakeholders about what EPA means when it uses the term
``vertical containment.'' As previously discussed, vertical containment
can span the range from simple barriers to box-like structures to more
extensive scaffolding. Accordingly, EPA is promulgating a definition of
``vertical containment'' that is similar to the last sentence of the
proposed definition of ``containment.'' Vertical containment is defined
as a vertical barrier consisting of plastic sheeting or other
impermeable material over scaffolding or a rigid frame, or an
equivalent system of containing the work area. The definition further
states that vertical containment is required for some exterior
renovations but it may be used on any renovation. EPA encourages
members of the regulated community, or other stakeholders, who have
questions on the work area containment requirements or any other aspect
of the RRP rule to consult the Frequent Question database accessible
from EPA's primary lead Web page at http://www.epa.gov/lead or contact
the National Lead Information Center by calling 1(800) 424-LEAD [5323].
Hearing- or speech-impaired persons may reach the National Lead
Information Center through TTY by calling the toll-free Federal Relay
Service at 1-800-877-8339.
    7. Prohibited or restricted practices. In May 2010, EPA proposed to
make a number of minor revisions to clarify the prohibitions and
restrictions on work practices in 40 CFR 745.85(a)(3). The first was a
clarification that these prohibitions and restrictions, e.g., the
prohibition on open flame burning or torching, apply to all painted
surfaces, not just surfaces where the presence of lead-based paint has
been confirmed. The term ``lead-based paint'' was incorrectly and
inadvertently used in this subparagraph, making it inconsistent with
the rest of the RRP rule, which applies in the presence of known lead-
based paint as well as paint that has not been tested for lead content.
Accordingly, EPA proposed to replace the term ``lead-based paint'' with
``painted surfaces'' in this subparagraph. Of course, if the painted
surface has been tested and found to be free of lead-based paint, the
prohibitions and restrictions on work practices in the final RRP rule
do not apply. Commenters generally supported this revision, although
two commenters noted that EPA uses the term ``painted surfaces''
throughout the RRP rule and it is unclear whether this refers just to
paint or to other surface coatings as well. These commenters noted that
the definition of ``lead-based paint'' includes paint and other surface
coatings but there is no definition of the term ``painted surfaces.''
These commenters observed that other surface coatings, such as varnish,
can contain significant amounts of lead. The commenters suggested that
EPA address this issue throughout the RRP rule. EPA agrees with these
commenters. In using the term ``painted surfaces,'' EPA has always
meant component surfaces that are covered in whole or in part with a
coating that could be lead-based paint. The term was designed to
encompass situations where the surface is covered with lead-based paint
as defined by the regulation as well as situations where the lead
content of the surface coating had not been determined. EPA never
intended to exclude varnishes or other surface coatings from the
coverage of the RRP rule. In fact, the applicability section of the RRP
rule, 40 CFR 745.82, limits the exclusions for testing to those
situations where the components to be disturbed by a renovation have
been demonstrated to be free of paint and other surface coatings that
contain lead at levels equal to or exceeding the regulatory threshold.
Therefore, EPA is promulgating this revision as proposed and EPA is
also adding a clarifying definition of ``painted surface'' to 40 CFR
745.83. This definition states that painted surface means a component
surface covered in whole or in part with paint or other surface
coatings.
    In addition, EPA proposed to clarify that the restriction in this
section on the use of machines that remove paint through high speed
operation applies anywhere painted surfaces are being disturbed by such
machines; the restriction is not limited to situations where all of the
paint is removed by such machines. EPA received no comments
specifically on this proposed revision, although the comments on the
general issue of paint including other surface coatings are also
applicable here. EPA is promulgating this revision as proposed, with
the addition of the phrase ``or other surface coatings'' after the term
``paint,'' because EPA never intended to create a loophole that would
allow someone to remove some or most of the paint or other surface
coating from a component without complying with the restriction.
    Finally, EPA proposed to clarify what was meant by HEPA exhaust
control. In order to better express what is required when machines
designed to remove paint through high speed operation are used, EPA
consulted the Occupational Safety and Health Administration's Technical
Manual (Ref. 12). The use of shrouded tools to remove lead-based paint
is discussed in Chapter 3 of Section V, entitled ``Controlling Lead
Exposures in the Construction Industry: Engineering and Work Practice
Controls.'' Using language from this reference, EPA proposed to amend
40 CFR 745.85(a)(3)(ii) to read, ``The use of machines designed to
remove paint through high speed operation such as sanding, grinding,
power planing, needle gun, abrasive blasting, or sandblasting, is
prohibited on painted surfaces unless such machines are used shrouded
and equipped with a HEPA vacuum attachment to collect dust and debris
at the point of generation.'' EPA received several comments on this
topic. The commenters generally supported the change, but two thought
that there should be a performance standard included in the provision,
a visible standard that warns the workers that the shroud or
containment system is not working properly. EPA agrees with these
commenters. Another

commenter thought that the term ``shrouded'' in the proposed revision
would make the RRP rule more stringent than the requirements applicable
to abatement contractors. After consulting the abatement chapter of the
HUD Guidelines, EPA has determined that the proposed language could
potentially be read to exclude one of the two types of sanders
described by HUD as appropriate for abatement work because they provide
HEPA exhaust control. Accordingly, EPA is promulgating the revision as
proposed, except that the regulatory language will read ``* * * unless
such machines have shrouds or containment systems and are equipped with
a HEPA vacuum attachment to collect dust and debris at the point of
generation. Machines must be operated so that no visible dust or
release of air occurs outside the shroud or containment system.''
    8. HEPA vacuums. In May 2010, EPA proposed to clarify that vacuums
qualifying as HEPA vacuums for the purposes of this rule must be
operated and maintained in accordance with the manufacturer's
instructions in order to continue to qualify as HEPA vacuums. This
includes following the manufacturer's filter change interval
recommendations. EPA also proposed to clarify that the standard for
HEPA filters, that they be capable of capturing particles of 0.3
microns with 99.97% efficiency, means that the filters must have a
Minimum Efficiency Reporting Value (MERV) of 17 or greater. At the
time, EPA also recommended that renovation firms have information from
the manufacturer that the particular model of vacuum that the
renovation firm intends to use, or the vacuum's HEPA filter, has been
tested in accordance with an applicable test method, such as ASTM
F1471-09, ``Standard Test Method for Air Cleaning Performance of a
High-Efficiency Particulate Air-Filter System,'' and has been
determined to meet this standard (Ref. 13).
    EPA received a number of comments on these proposed revisions.
Commenters specifically addressing the requirement that vacuums be
operated in accordance with the manufacturer's instructions, including
filter change interval recommendations, were in general agreement with
the requirement. Other commenters expressed a general concern that
these revisions would prohibit the use of consumer-grade HEPA vacuums
that renovation firms had recently purchased to comply with the RRP
rule. Some argued that the proposed language regarding the MERV was too
stringent, given industry practice for high-efficiency vacuums. One
commenter cited research they had done on the efficiency of HEPA
vacuums to argue that the HEPA vacuums used in EPA's Dust Study would
not have met the MERV standard proposed by EPA. However, the commenter
did not provide sufficient information to support this assertion.
Several commenters echoed comments EPA received during the rulemaking
process for the 2008 RRP rule, arguing that HEPA vacuums are too
expensive and are not necessary. Other commenters believed that
additional requirements should be added, such as a requirement to field
test the efficiency of the vacuums on a regular basis or after filter
changes.
    EPA continues to believe that HEPA vacuums are a necessary part of
the required RRP work practices. In addition, the OSHA Lead in
Construction standard requires the use of HEPA vacuums whenever vacuums
are used. However, EPA also understands the concerns of those
commenters who had already purchased HEPA vacuums for purposes of the
RRP rule as well as those others who thought that the proposed MERV
value of 17 would be too stringent. In balancing these concerns, EPA
has decided to promulgate the requirement that HEPA vacuums be operated
in accordance with manufacturer's instructions, but not the requirement
that compliant vacuums be rated at a MERV value of 17 or higher.
    In addition, in response to EPA's recommendation that renovation
firms obtain information from the manufacturer that the efficiency of
their particular model of HEPA vacuum or HEPA filter has been tested in
accordance with an applicable test method, some commenters noted that
this information may not be readily available to renovation firms.
These commenters suggested that EPA maintain a list of HEPA vacuums
that have been tested and found to meet the HEPA vacuum requirements.
    9. On-the-job training. EPA's 2010 proposal included a
clarification regarding the required elements of on-the-job training
provided by renovators. Specifically, EPA proposed to clarify that the
RRP rule requires certified renovators to train other renovation
workers in only the work practices required by the RRP rule that the
workers will be using in performing their assigned tasks. As discussed
in the 2010 proposal, EPA did not intend to require training in any
other subjects, such as how to paint or how to connect pipes. EPA is
promulgating the clarification as proposed and amending 40 CFR
745.90(b)(2) and (b)(4) to refer specifically to the work practice