Lead; Clearance and Clearance Testing Requirements for the Renovation, Repair, and Painting Program, 25038-25073 [2010-10102]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 87 (Thursday, May 6, 2010)]
[Proposed Rules]
[Pages 25038-25073]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10102]



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Part II





Environmental Protection Agency





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40 CFR Part 745



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

Federal Register / Vol. 75, No. 87 / Thursday, May 6, 2010 / Proposed 
Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2005-0049, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA 
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. 
Attention: Docket ID Number EPA-HQ-OPPT-2005-0049. The DCO is open from 
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the DCO is (202) 564-8930. Such deliveries are 
only accepted during the DCO's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2005-0049. EPA's policy is that all comments received will be included 
in the docket without change and may be made available online at https://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through regulations.gov or e-mail. The 
regulations.gov Web site is an ``anonymous access'' system, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through regulations.gov, your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index 
available at https://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available 
electronically at https://www.regulations.gov, or, if only available in 
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA 
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution 
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of 
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number of the EPA/DC Public Reading Room 
is (202) 566-1744, and the telephone number for the OPPT Docket is 
(202) 566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: TSCA-Hotline@epa.gov.
    For technical information contact: Cindy Wheeler, National Program 
Chemicals Division, Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (202) 566-0484; e-mail 
address: wheeler.cindy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

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

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

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

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

II. Introduction

A. What action is the agency taking?

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

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

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

C. Background

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

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functions; neurological development and function; reproduction and 
physical development; kidney function; cardiovascular function; and 
immune function. There is also some evidence of lead carcinogenicity, 
primarily from animal studies, together with limited human evidence of 
suggestive associations.
    Of particular interest to EPA during the RRP rulemaking was the 
delineation of lowest observed effect levels for those lead-induced 
effects that are most clearly associated with blood lead levels of less 
than 10 micrograms per deciliter ([mu]g/dL) in children and adults 
(Ref. 2, at 8-60). As is evident from the Criteria Document, neurotoxic 
effects in children and cardiovascular effects in adults are among 
those best substantiated as occurring at blood-lead concentrations as 
low as 5 to 10 [mu]g/dL (or possibly lower), so these categories of 
effects would result in the greatest public health concern. Other newly 
demonstrated immune and renal system effects among general population 
groups are also emerging as low-level lead-exposure effects of 
potential public health concern (Ref. 2, at 8-60).
    Among the wide variety of health endpoints associated with lead 
exposures, there is general consensus that the developing nervous 
system in children is among the, if not the, most sensitive. While 
blood lead levels in U.S. children have decreased notably since the 
late 1970s, newer studies have investigated and reported associations 
of effects on the neurodevelopment of children with these more recent 
blood lead levels (Ref. 2, chapter 6). Functional manifestations of 
lead neurotoxicity during childhood include sensory, motor, cognitive, 
and behavioral impacts. Numerous epidemiological studies have reported 
neurocognitive, neurobehavioral, sensory, and motor function effects in 
children with blood lead levels below 10 [mu]g/dL (Ref. 2, sections 6.2 
and 8.4. [FN 7. Further, neurological effects in general include 
behavioral effects, such as delinquent behavior (Ref. 2, sections 6.2.6 
and 8.4.2.2), sensory effects, such as those related to hearing and 
vision (Ref. 2, sections 6.2.7 and 8.4.2.3), and deficits in neuromotor 
function (Ref. 2, p. 8-36).] As discussed in the Criteria Document, 
``extensive experimental laboratory animal evidence has been generated 
that (a) substantiates well the plausibility of the epidemiologic 
findings observed in human children and adults and (b) expands our 
understanding of likely mechanisms underlying the neurotoxic effects'' 
(Ref. 2, p. 8-25; section 5.3).
    Cognitive effects associated with lead exposures that have been 
observed in epidemiological studies have included decrements in 
intelligence test results, such as the widely used IQ score, and in 
academic achievement as assessed by various standardized tests as well 
as by class ranking and graduation rates (Ref. 2, section 6.2.16 and 
pp. 8-29 to 8-30). As noted in the Criteria Document with regard to the 
latter, ``Associations between lead exposure and academic achievement 
observed in the above-noted studies were significant even after 
adjusting for IQ, suggesting that lead-sensitive neuropsychological 
processing and learning factors not reflected by global intelligence 
indices might contribute to reduced performance on academic tasks'' 
(Ref. 2, pp. 8-29 to 8- 30).
    With regard to potential implications of lead effects on IQ, the 
Criteria Document recognizes the ``critical'' distinction between 
population and individual risk, identifying issues regarding declines 
in IQ for an individual and for the population. The Criteria Document 
further states that a ``point estimate indicating a modest mean change 
on a health index at the individual level can have substantial 
implications at the population level'' (Ref. 2, p. 8-77). [FN 8. As an 
example, the Criteria Document states, ``although an increase of a few 
mm Hg in blood pressure might not be of concern for an individual's 
well-being, the same increase in the population mean might be 
associated with substantial increases in the percentages of individuals 
with values that are sufficiently extreme that they exceed the criteria 
used to diagnose hypertension'' (Ref. 2, p. 8-77).] A downward shift in 
the mean IQ value is associated with both substantial decreases in 
percentages achieving very high scores and substantial increases in the 
percentage of individuals achieving very low scores (Ref. 2, p. 8-81). 
[FN 9. For example, for a population mean IQ of 100 (and standard 
deviation of 15), 2.3% of the population would score above 130, but a 
shift of the population to a mean of 95 results in only 0.99% of the 
population scoring above 130 (Ref. 2, pp. 8-81 to 8-82).] For an 
individual functioning in the low IQ range due to the influence of 
developmental risk factors other than lead, a lead-associated IQ 
decline of several points might be sufficient to drop that individual 
into the range associated with increased risk of educational, 
vocational, and social failure (Ref. 2, p. 8-77).
    Other cognitive effects observed in studies of children have 
included effects on attention, executive functions, language, memory, 
learning, and visuospatial processing (Ref. 2, sections 5.3.5, 6.2.5, 
and 8.4.2.1), with attention and executive function effects associated 
with lead exposures indexed by blood lead levels below 10 [mu]g/dL 
(Ref. 2, section 6.2.5 and pp. 8-30 to 8-31). The evidence for the role 
of lead in this suite of effects includes experimental animal findings 
(Ref. 2, section 8.4.2.1; p. 8-31), which provide strong biological 
plausibility of lead effects on learning ability, memory and attention 
(Ref. 2, section 5.3.5), as well as associated mechanistic findings.
    The persistence of such lead-induced effects is described in the 
proposal and the Criteria Document (e.g., Ref. 2, sections 5.3.5, 
6.2.11, and 8.5.2). The persistence or irreversibility of such effects 
can be the result of damage occurring without adequate repair offsets 
or of the persistence of lead in the body (Ref. 2, section 8.5.2). It 
is additionally important to note that there may be long-term 
consequences of such deficits over a lifetime. Poor academic skills and 
achievement can have ``enduring and important effects on objective 
parameters of success in real life,'' as well as increased risk of 
antisocial and delinquent behavior (Ref. 2, section 6.2.16).
    Multiple epidemiologic studies of lead and child development have 
demonstrated inverse associations between blood lead concentrations and 
children's IQ and other cognitive-related outcomes at successively 
lower lead exposure levels over the past 30 years (Ref. 2, section 
6.2.13). For example, the overall weight of the available evidence, 
described in the Criteria Document, provides clear substantiation of 
neurocognitive decrements being associated in children with mean blood 
lead levels in the range of 5 to 10 [mu]g/dL, and some analyses 
indicate lead effects on intellectual attainment of children for which 
population mean blood lead levels in the analysis ranged from 2 to 8 
[mu]g/dL (Ref. 2, sections 6.2, 8.4.2, and 8.4.2.6). Thus, while blood 
lead levels in U.S. children have decreased notably since the late 
1970s, newer studies have investigated and reported associations of 
effects on the neurodevelopment of children with blood lead levels 
similar to the more recent, lower blood lead levels (Ref. 2, chapter 
6).
    Paint that contains lead can pose a health threat through various 
routes of exposure. House dust is the most common exposure pathway 
through which children are exposed to lead-based paint hazards. Dust 
created during normal lead-based paint wear (especially around windows 
and doors)

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

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

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

[[Page 25043]]

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

[[Page 25044]]

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

III. Provisions of This Proposal

A. Dust Wipe Testing and Clearance

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

[[Page 25045]]

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

[[Page 25046]]

successfully performed by the renovation contractors in all of the 
experiments performed in compliance with the work practices in the 
final RRP rule. In addition, cleaning verification was predictive of 
whether renovators had cleaned-up the lead-based paint hazards created 
during the renovation activity to the dust-lead standard, particularly 
when the proposed work practices were used. The cleaning verifications 
performed during the Dust Study were conducted by various persons in 
various lighting conditions and on various surface conditions.
    Other commenters did not support dust wipe testing and clearance. 
One reason cited by these commenters was the cost of dust wipe testing, 
especially if required to be performed by independent certified 
inspectors or risk assessors. Some also contended that dust clearance 
testing is time consuming and an obstacle to completing the renovation 
job. One commenter noted that a major component of the cost of 
performing clearance is due to the fact that the portion of the 
premises affected by the renovation would have to remain unoccupied. 
Another commenter noted that it is not uncommon for the abatement 
clearance process to be conducted up to three times on a home to make 
sure that lead levels are sufficiently low. Again, commenters expressed 
the concern that a requirement for dust wipe testing and clearance 
would have the effect of holding renovation firms responsible for pre-
existing dust-lead hazards.
    Based on the weight of the evidence in the rulemaking record, 
primarily from the Disposable Cleaning Cloth Study and the Dust Study, 
EPA determined that, once certain high dust generating practices were 
prohibited or restricted, the full suite of work practice requirements, 
including containment, cleaning, and cleaning verification, was 
effective at minimizing exposure to lead-based paint hazards created by 
renovation, repair, and painting activities. At the same time, EPA 
recognizes that cleaning verification is an imperfect check on whether 
the dust-lead hazard standard has been achieved. Among other things, as 
commenters pointed out, there is an element of subjectivity to cleaning 
verification, which is not present in dust wipe testing.
    In the final RRP rule, EPA gave significant weight to the cost, 
timing, and liability concerns expressed by commenters. In balancing 
the various considerations, EPA concluded that cleaning verification, 
as part of the full suite of work practices, was an appropriate check 
on the effectiveness of the work practices. EPA has continued to 
balance these considerations in today's proposal, but has preliminarily 
concluded that, for certain jobs, the additional benefits of dust wipe 
testing, and in some cases clearance, warrant imposing these additional 
requirements.
    2. Proposed requirements for dust wipe testing after certain 
renovations. This proposal contains dust wipe testing requirements for 
many renovations. In most of these