[Federal Register Volume 59, Number 170 (Friday, September 2, 1994)]
[Proposed Rules]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21578]
[[Page Unknown]]
[Federal Register: September 2, 1994]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 745
Lead; Requirements for Lead-Based Paint Activities; Proposed Rule
Federal Register / Vol. 59, No. 170 / Friday, September 2, 1994 /
Proposed Rules
-----------------------------------------------------------------------
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62128; FRL-4633-9]
RIN 2070-AC64
Lead; Requirements for Lead-based Paint Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing regulations governing lead-based paint
activities to ensure that individuals engaged in such activities are
properly trained; that training programs are accredited; and that
contractors engaged in such activities are certified. This proposed
rule would also establish standards for performing lead-based paint
activities and require that all lead-based paint activities be
performed by certified individuals. When promulgated, the rule would
fulfil the mandate of section 402 (a)(1) of Title IV of the Toxic
Substances Control Act (TSCA). Additionally, as part of this proposed
rule, EPA has, in accordance with section 404(d) of TSCA, developed a
proposed Model State Program. When promulgated, this program may be
adopted by any State that seeks to administer and enforce a State
program under Title IV of TSCA.
DATES: Written comments in response to this proposed rule must be
received on or before November 1, 1994. At a later date, the Agency
will announce the time and place of an informal hearing where oral
comments will be heard.
ADDRESSES: Submit written comments, in triplicate, identified by the
docket number OPPTS-62128, by mail to: TSCA Public Docket Office
(7407), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460. For further
information regarding the submission of comments containing
confidential business information (CBI), see Unit IX. of this preamble.
FOR FURTHER INFORMATION CONTACT: For general information: Susan B.
Hazen, Director, Environmental Assistance Division (7408), Office of
Pollution Prevention and Toxics, Environmental Protection Agency, 401 M
St., SW., Washington, DC 20460, Telephone: 202-554-1404. TDD: 202-554-
0551. For technical questions: Diane Sheridan (202) 260-0961.
SUPPLEMENTARY INFORMATION:
I. Authority
EPA is issuing this proposed rule under the authority of section
402 and 404 of Title IV of the Toxic Substances Control Act (TSCA) (15
U.S.C. 2682 and 2684.). Section 402(a) of TSCA directs EPA to
promulgate regulations governing lead-based paint activities. Section
404(a) of TSCA requires that any State that seeks to administer and
enforce the requirements established by the Agency under section 402 or
406 of TSCA must submit to the Administrator of EPA, in such form as
the Administrator shall require, a request for authorization of such a
program. Section 406 of TSCA requires EPA to publish and from time-to-
time revise, a lead hazard information pamphlet and to publish
regulations requiring the distribution of such pamphlet. The
requirements of section 406 are being developed in a separate
rulemaking.
II. Objective
The objective of this regulation is to address the nation's need
for a qualified and properly trained workforce to assist in the
elimination of hazards associated with lead-based paint. Providing for
this workforce will ensure that individuals and firms will conduct
lead-based paint activities in a way that will safeguard the
environment and protect human health, specifically, the health of
building occupants (especially children under 6 years of age) and the
workers themselves.
To successfully confront the issues associated with lead-based
paint hazards at the national level will require the involvement of
many partners working together. In promulgating this regulation, EPA
will be establishing the framework required to address lead-based paint
hazards. This framework will ultimately provide support for and enhance
activities currently conducted by public health officials.
In addition to a support system for public health officials, a
suitable infrastructure is needed for other mandates of TSCA Title IV.
These mandates include the promulgation of regulations for the
disclosure of lead-based paint hazards in real estate transactions, and
the development of a pamphlet to educate the public on potential
hazards associated with renovation and remodeling activities.
Activities such as these increase public awareness of the hazards of
lead-based paint, resulting in the need for a workable regulatory
infrastructure to respond to the public's concerns.
The Agency recognizes the nation's public health communities as
powerful contributors in support of the program outlined in this
proposed regulation. Through the collective efforts of public health
communities to address childhood lead poisoning in areas such as blood-
lead screening and case management, and EPA, through the identification
and control of lead-based paint hazards, the goal of preventing the
poisoning of children from lead-based paint will be realized
nationwide.
III. Background
On October 28, 1992, the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (``Title X'') became law. The purposes of Title X
include:
1. To develop a national strategy to build the infrastructure
necessary to eliminate lead-based paint hazards in all housing as
expeditiously as possible.
2. To reorient the national approach to the presence of lead-based
paint in housing to implement, on a priority basis, a broad program to
evaluate and reduce lead-based paint hazards in the Nation's housing
stock.
3. To encourage effective action to prevent childhood lead
poisoning by establishing a workable framework for lead-based paint
hazard evaluation and reduction and by ending the current confusion
over reasonable standards of care.
The Residential Lead-Based Paint Hazard Reduction Act of 1992
amended TSCA by adding a new Title IV. Several sections of Title X
direct EPA to promulgate regulations aimed at fulfilling the purposes
of the Title X. These include TSCA section 402, Lead-Based Paint
Activities Training and Certification, which directs EPA to promulgate
a final regulation to govern the training and certification of
individuals engaged in lead-based paint activities, the accreditation
of training programs and standards for conducting lead-based paint
activities; and section 404, Authorized State Programs, which provides
that any State may seek to administer and enforce the requirements
established by the Agency under sections 402 and 406. This proposed
rule addresses both sections 402(a) and 404(d). Rules to address the
requirements of other sections of TSCA Title IV (e.g. sections 403 and
406), are being proposed separately.
Independently, these other sections of TSCA Title IV will support
the overriding objectives of Title X. For example, a required
information dissemination program to inform the public of lead-based
paint hazards in the home has been proposed under section 406. Section
403 health-based standards will be developed and promulgated to provide
the basis for identifying hazardous levels of lead in dust, soil, and
paint. Studies to determine whether renovation and remodelling
activities may pose a lead-based paint hazard, as well as studies to
determine the efficiencies of various abatement technologies are also
being conducted under section 402(c)(2).
Given the interrelated nature of the various sections of TSCA Title
IV, EPA has developed and proposed a subpart A to 40 CFR part 745 which
would serve as a reference point for the terms and provisions common to
each of the regulations to be promulgated under Title IV. Later in this
preamble these other sections of Title IV and their relevance to
today's proposal will be discussed in more detail.
Before it began the development of this proposed rule, EPA
informally met with a broad range of interested parties to solicit
information on the subject of lead-based paint activities training,
accreditation, certification, and standards. In addition, the Agency
received written comments from dozens of individuals, firms,
organizations and States, all of whom have provided their own
perspective on Title X. Additionally, while the Agency continued to
meet informally with interested groups and review written comments, the
Society for Occupational and Environmental Health (SOEH) held a series
of workshops with experts in the worker protection and training arena
as participants. Following the workshops, SOEH drafted and submitted to
the Agency its recommendations for effective worker protection during
lead-based paint activities. The Agency has included the SOEH document
and all other written comments, and written summaries of meetings in
the public docket.
The Agency is grateful to all who took the time to provide
information, ideas, and suggestions. Over the last several months, the
Agency has carefully reviewed and considered all of this input. While
not all points of view were incorporated in the proposed rule, this
proposal reflects many of the thoughts and viewpoints of these
interested parties.
IV. Scope
A. Lead-Based Paint Activities
This proposed regulation deals with the broad category of lead-
based paint activities. The term lead-based paint activities is defined
by section 402(b) of TSCA to mean: (1) In the case of target housing --
risk assessment, inspection, and abatement; and (2) in the case of any
public building constructed before 1978, commercial building, bridge,
or other structure or superstructure -- identification of lead-based
paint and materials containing lead-based paint, deleading, removal of
lead from bridges, and demolition. For the purposes of this definition,
the term ``deleading'' means activities conducted by a person who
offers to eliminate lead-based paint or lead-based paint hazards or to
plan such activities. Abatement, as defined in section 401 of TSCA,
essentially means any set of measures designed to eliminate lead-based
paint hazards permanently. The definition of abatement in the proposed
rule is intended to include activities performed by those individuals,
who by design or intent, perform lead abatement as defined by TSCA
Title IV.
It should be noted that this proposed regulation would not require
any person to abate lead-based paint, or to inspect for the presence of
lead-based paint. Rather, it would establish requirements and
procedures applicable to individuals and firms responsible for making a
determination of the presence of lead-based paint and/or lead-based
paint hazards and identifying control strategies to address these
hazards. If a decision is made to conduct an abatement, this regulation
would provide standards and procedures for conducting the abatement.
Congress, in Title X, has purposefully excluded renovation and
remodeling activities from the regulation's definition of abatement.
Section 402(c)(2) of TSCA requires the Agency to conduct a study to
assist in determining the extent to which persons engaged in specific
renovation and remodeling activities in target housing, pre-1978 public
buildings, and commercial buildings are exposed to lead or create lead
hazards in the conduct of such activities. Section 402(c)(2) requires
that this study be completed by April 28, 1995. Based on the results of
this study and other information collected, the regulation being
proposed today must be amended by October 28, 1996, to apply only to
certain renovation and remodeling activities that - according to the
section 402(c)(2) study and in consultation with labor organizations,
contractors, and experts in lead health effects create a lead-based
paint hazard. As part of today's proposed rule, the Agency is
soliciting any available data that might be helpful in defining the
risks posed to workers and/or building occupants during typical
renovation and remodeling activities. This information will assist the
Agency in the required rule revision. EPA recommends that States that
are currently developing legislation for a State lead program consider
including legislative authority for the future regulation of renovation
and remodeling activities within the scope of the revised EPA
regulations.
Although the scope of this proposed regulation covers abatement
activities as a means of controlling lead-based paint hazards, the
Agency does not wish to suggest that total abatement is the only option
for controlling these hazards. A wide variety of effective hazard
control measures can be utilized. In a particular dwelling, it is
possible that a variety of control strategies (e.g., encapsulation,
enclosure, component replacement) may need to be utilized to address
all of the lead-based paint hazards identified by the risk assessor.
Complete abatement is not always the best or most appropriate response
to address lead-based paint hazards.
B. Homeowners
Title IV of TSCA does not specifically address whether the
regulatory requirements developed for lead abatement contractors under
section 402 are also intended to apply to individual homeowners who
conduct lead-based paint activities within their own dwelling units.
The Agency has decided that its section 402 rules should apply to all
individuals and firms conducting lead-based paint activities in target
housing and other specifically identified categories of buildings and
structures, except persons who perform lead-based paint activities at
residences which they own, unless the residence is occupied by a person
or persons other than the owner or the owner's immediate family while
these activities are being conducted. If the property is occupied by an
individual that is not the owner or the owner's immediate family, any
lead-based paint activity, conducted at that time, must be conducted by
a certified individual.
The very title of section 1021 of the Residential Lead-Based Paint
Hazard Reduction Act of 1992, indicates that the scope and focus of
this section is on training and certification requirements for
contractors, not homeowners. Section 1021 of the 1992 Act added a new
Title IV to TSCA. The new Title IV includes both section 402 (``Lead-
Based Paint Activities Training and Certification'') and 404
(``Authorized State Programs''). Significantly, section 1021 itself is
entitled ``Contractor Training and Certification.''
There is no express requirement in the statute that homeowners
doing lead-based paint activities in their homes must be trained and
certified. Nor is there any such indication in the legislative history.
The section 402(a) requirement that all abatements in target housing be
performed by certified contractors has been interpreted by EPA to mean
that a homeowner who hires a contractor to do abatement in his home
must hire a contractor who is certified. EPA does not interpret this
requirement to mean that uncertified homeowners cannot do their own
abatements. While EPA recognizes it might be possible to draw a
different inference from the above-referenced certified contractor
language of section 402(a) as it stands alone, the Agency believes that
the Congressional focus on regulating contractor activity evidenced by
the reference in section 1021's title to ``contractors'' as well as
certain other language in sections 402(c)(3) and 406(b) requiring
persons who perform renovation of target housing for compensation (e.g.
``contractors'') to provide safety pamphlets to owners and occupants
creates enough ambiguity with respect to Congressional intent that such
an inference need not be drawn.
For example, in section 402(c), as discussed earlier in this
preamble, Congress recognized that more needed to be learned about the
risks from renovation and remodelling activities before subjecting such
activities to regulation. Following the completion, by April 1995, of a
study of the risks created by renovation and remodelling activities,
Congress has required EPA to revise the section 402(a) regulations to
apply them to those renovation and remodeling activities which create
lead hazards. In section 402(c), Congress told EPA what factors to
consider ``[i]n determining which contractors are engaged in such
activities'' and required that, if EPA determines that ``any category
of contractor'' does not require certification, EPA shall publish an
explanation. Again, because of the fact that the Statute specifically
mentions ``contractors'' and not ``homeowners,'' it is EPA's
interpretation of section 402(c)(3) that Congress' focus was on the
need to regulate contractors doing renovation and remodeling
activities, and not homeowners doing renovation and remodeling of their
own homes.
EPA assumes that in writing section 402(c), Congress did not direct
that homeowners ultimately be regulated under section 402(a) because
Congress never intended homeowners doing abatements in their own homes
to be covered by section 402(a) in the first place. Indeed, homeowners
working in their own homes are more likely to be engaged in the sort of
activities described in the definition of ``interim controls,'' which
activities require neither training nor certification.
While EPA recognizes that the universe of potentially regulated
entities is broader than just contractors and homeowners doing their
own abatements, EPA has decided to exclude only the latter category of
individuals from the scope of these regulations. EPA has chosen to
draft this exclusion narrowly because it recognizes the potential
health and environmental hazards that could result from improperly
performed abatements and wants to minimize such hazards. However, EPA
invites comment on the scope of this exclusion as drafted and
specifically on whether other categories of individuals or groups (e.g.
renters abating their own apartments or volunteer organizations that do
renovation work) should also be excluded.
EPA is, however, concerned about the potential exposures to lead
which an untrained and uncertified homeowner may cause to himself/
herself and other family members as a result of work done. As a result
of this concern, EPA strongly encourages States to consider whether
they wish to use their own legal authority to regulate work done by the
homeowner. For example, States may wish to consider the inclusion of
standards for lead-based paint activities in appropriate building
codes. This approach could mirror other State and local regulatory
programs already used to control other work done in homes such as
electrical and plumbing work.
In addition to encouraging States to consider programs with the
authority to regulate homeowners, EPA plans an aggressive awareness
campaign directed at homeowners. This program will include not only the
design and distribution of informational materials, but the Agency also
intends to develop seminars to alert homeowners to the potential
hazards associated with lead-based paint activities.
C. Building Types
In defining lead-based paint activities, section 402(b) of TSCA
categorized target housing singly, and public buildings, commercial
buildings, and superstructures (e.g., bridges and watertowers)
together. Lead-based paint activities conducted in target housing are
identified in 402(b) as risk assessment, inspection, and abatement. For
public buildings, commercial buildings, and superstructures, 402(b)
defines lead-based paint activities as: the identification of lead-
based paint and materials containing lead-based paint; deleading;
removal of lead from bridges; and demolition.
The Agency is proposing to group public building and target housing
activities together as one category, and to group commercial building
and superstructure activities together as a second category.
Target housing is defined in the proposed regulation and in section
1004 of Title X to mean ``any housing constructed prior to 1978 except
housing for the elderly or persons with disabilities (unless any child
who is less than 6 years of age resides or is expected to reside in
such housing for the elderly or persons with disabilities) or any 0-
bedroom dwelling.''
Public buildings are not defined under Title X. EPA is proposing to
define a public building as any building built before 1978, that is
generally open to the public or occupied or visited by children. For
example schools, daycare centers, museums, airports, hospitals, stores,
convention centers, and federal and other government facilities are all
considered to be public buildings. It should be noted that all federal
facilities, regardless of whether they are target housing, public
buildings, commercial building, or steel structures are specifically
covered under this regulation, as directed by TSCA section 408.
EPA is proposing to define a commercial building as any building
used primarily for commercial or industrial activity, which is
generally not open to the public, or occupied or visited by children,
including but not limited to, warehouses, factories, storage
facilities, aircraft hangers, garages, and wholesale distribution
facilities. Under TSCA, section 402(b) the only example of a
superstructure listed is a bridge, but drawing on the common meaning of
superstructure, EPA is proposing to include other structures such as
watertowers, aboveground storage tanks, oil refineries, utility and
other structures.
The Agency's determination to group target housing and public
buildings together is based on two factors. One factor is that the
potential for lead exposure in a public building setting, such as a
museum, school, or daycare center, is similar to the potential for lead
exposure to children in target housing, where families and children
reside. Consequently, EPA is proposing standards for lead-based paint
activities in public buildings that have the same degree of
protectiveness as those for target housing.
The second factor in EPA's decision to propose separate categories
is due to differences in the structural design and building materials
that are commonly used in target housing/public buildings and those
used in commercial buildings/superstructures. For example, the
structural design and building materials (e.g., wallboard, ceiling
tiles, flooring materials, wooden doorways, and window frames) found in
public buildings are often similar to those found in target housing.
Commercial buildings and superstructures, on the other hand, typically
are constructed of metal, such as structural steel.
Work practices for the conduct of lead-based paint activities also
differ for the aforementioned categories. The building materials in
commercial buildings and superstructures require work practices for
deleading activities that are very different than activities associated
with lead abatement in target housing or public buildings. For example,
the deleading of a watertower or industrial warehouse calls for
sophisticated rigging and scaffolding equipment and the erection of
containment structures. These methods are not applicable to the
abatement of lead-based paint in target housing or public buildings.
Given these differences, as well as information supplied by the
professional community on deleading steel structures and commercial
buildings, the Agency believes there is little crossover between
workers practicing in the target housing/public buildings realm and
those in the commercial building/steel structures realm. Rather,
evidence suggests that individuals are either working in the abatement
of target housing and public buildings, or in the deleading of
commercial buildings and steel structures.
In drafting this proposal, the Agency considered information
provided by several professional groups whose members perform work in
commercial buildings and superstructures. Based on this information, it
appears that a broader range of tasks are practiced by fewer categories
of individuals working these structures. Consequently only two
accreditation disciplines (supervisor and worker) have been established
for individuals working in commercial buildings and superstructures.
Therefore, this proposal would establish the following
certification disciplines: inspector technician, inspector/risk
assessor, supervisor, planner/project designer, and worker for target
housing and public buildings; and supervisor and worker for commercial
buildings and superstructures.
EPA is also proposing standards for lead-based paint activities in
three separate categories of facilities. These categories include
target housing, public buildings, and commercial buildings and
superstructures. In target housing, the standards cover inspection,
risk assessment, and lead abatement. The second set of standards, for
public buildings, covers the identification of lead-based paint and
lead-containing materials, risk assessment, abatement, and demolition.
The final set of standards are for identification, deleading, and
demolition in commercial buildings and superstructures.
The Agency is requesting comment on its proposed definition of
public buildings and its proposal to regulate them in a fashion similar
to target housing. Specifically, the Agency is interested in comment on
whether the universe of building types covered under the proposed
definition of public buildings comprise the appropriate range of
building types. Further, the Agency is interested in comment on an
alternative strategy that would decrease the number of public building
types that should be regulated in a fashion similar to target housing.
D. Section 403
As part of the Lead-Based Paint Exposure Reduction Act, sections
402 and 404 represent just two of the many mandates that EPA is working
under to address the issue of lead exposure. Section 403 of TSCA is one
of these other mandates. That section requires that the Agency shall
``. . .promulgate regulations which shall identify. . .lead-based paint
hazards, lead-contaminated dust, and lead-contaminated soil.'' The
section 403 regulations will represent EPA's determination of those
conditions that cause exposure to lead in paint, residential soil, and
dust that would result in adverse human health effects. EPA expects the
findings of this rule will be one of the most widely used tools to
assist persons who will make the decisions on whether and how to reduce
risk from lead-based paint, soil, and dust.
Title IV established the same 18-month deadline for promulgation of
the section 403 rule as for the rules under sections 402 and 404. At
this time, the Agency is still developing its proposed regulation under
section 403. While the 403 rule, when promulgated, will be important
for the lead exposure reduction program, it must be emphasized that it
is essentially a source of guidance for the decisionmaker.
This is in contrast to today's proposed rule under sections 402 and
404, which is an infrastructure and ``how to'' type of rule. When
promulgated, today's proposal will develop an infrastructure of
training, certification, and standards for individuals engaged in lead-
based paint activities. The 403 rule will identify conditions resulting
in adverse human health effects which may be eliminated pursuant to the
standards and requirements contained in the 402 and 404 rule.
When promulgated, the section 403 rule will be an important part of
the federal lead exposure reduction program. However, it should be
noted that the absence of the proposed section 403 rule at this time
does not, in the Agency's opinion, significantly impair the public's
ability to meaningfully comment on today's proposal. This is because
the identification at a later date in the section 403 rule levels of
lead that would result in adverse human health effects, is not expected
to have a significant impact on the development of the standards and
requirements of this proposed regulation.
For example, the procedures established in proposed
Sec. 745.228(b)(4) of the regulatory text for the conduct of dust
sampling as a part of a risk assessment in target housing are not
expected to change as a function of the level established for lead-
contaminated dust under the section 403 rule. Similarly, the number of
course hours needed to properly train a risk assessor would probably
not change due to the establishment of a particular definition of
``lead-based paint hazard'' under the section 403 regulation. In
summary, the Agency believes that the standards and requirements
proposed in the 402 and 404 rules can be evaluated independently of the
definitions to be proposed in the future under section 403.
Recently, the Agency published guidance on residential lead-based
paint, lead-contaminated dust, and lead-contaminated soil. This
guidance is intended to be used to prioritize primary prevention
activities that address hazards from lead in and around residences. EPA
expects that these hazards will be among those that will be identified
when regulations are issued under section 403. The levels and
conditions described in this guidance should be used by decisionmakers'
to identify lead-based paint hazards, sources of lead exposure, and the
need for control actions in residential environments where children may
be present.
V. Accreditation of Training Programs
A. Introduction
Section 402(a)(1) of Title IV of TSCA requires EPA to promulgate
regulations governing lead-based paint activities to ensure, among
other items, that training programs for individuals engaged in lead-
based paint activities are accredited. Section 402(a)(2) states that
these accreditation regulations must contain specific requirements for
the accreditation of lead-based paint activities training programs for
workers, supervisors, inspectors and planners, and other individuals
involved in lead-based paint activities. These requirements must
include, at least: (1) Minimum requirements for the accreditation of
training providers, (2) minimum training curriculum requirements, (3)
minimum training hour requirements, (4) minimum hands-on training
requirements, (5) minimum trainee competency and proficiency
requirements, and (6) minimum requirements for training program quality
control. Proposed Sec. 745.225, Minimum Requirements for the
Accreditation of Training Programs, describes a Federal accreditation
program that EPA believes meets these requirements. Once the final rule
is promulgated, Sec. 745.225 may be used by States, as defined by
section 3 of TSCA as a model for purposes of establishing their own
accreditation and certification programs in the context of applying for
authorization under section 404 of Title IV of TSCA. The procedures for
State program authorization are addressed in subpart Q of the
regulatory text.
B. Framework for Training
Under the proposed Sec. 745.225(a), training programs may be
accredited to offer courses for the following disciplines: Inspector
technician, inspector/risk assessor, supervisor, planner/project
designer, and worker for target housing and public buildings; and
supervisor and worker for commercial buildings and superstructures.
``Discipline'' means a specific type or category of lead-based
paint activity. For example, an ``inspector technician for target
housing and public buildings'' would be a discipline.
The course content, as well as the tasks associated with these job
disciplines, are based principally on the definition of lead-based
paint activities under TSCA, Title IV, as well as numerous comments the
Agency received from practitioners in the field regarding the tasks
associated with lead-based paint activities.
The following represents the categories, and respective roles and
responsibilities for each discipline as proposed in this regulation:
Target Housing and Public Buildings:
Inspector technicians would be responsible for: (1) Conducting an
inspection for lead-based paint in target housing and in public
buildings; (2) completing an inspection report; and (3) taking post-
abatement soil and dust clearance samples.
Inspector/risk assessors would be responsible for all of the same
activities as the inspector technician, as well as: (1) Conducting a
risk assessment and other lead hazard assessment activities (such as
screening a residence for lead hazards) in target housing and in public
buildings; (2) completing a risk assessment report; (3) interpreting
the results of inspections, and assessments; (4) identifying hazard
control strategies to reduce or eliminate lead exposures; and (5)
conducting post-abatement soil and dust clearance sampling and
evaluating the results.
Workers would be responsible for: Conducting abatement activities
in accordance with the procedures and requirements of the pre-abatement
plan.
Supervisors would be responsible for: (1) Ensuring that abatement
activities are conducted in accordance with regulatory requirements;
(2) in projects involving the abatement of less than 10 units,
developing a written pre-abatement plan and an abatement report for
each assigned unit; (3) maintaining accessibility at all times when
abatement activities are being conducted; and (4) ensuring completion
of all abatement activities according to the standards of this
regulation.
Planners/project designers would be responsible for: (1) Designing
abatement projects for target housing buildings with 10 or more units,
and all projects in public buildings; (2) preparation of a pre-
abatement plan for all designed projects.
Commercial Buildings and Steel Structures:
Workers would be responsible for: Conducting deleading activities
in accordance with the procedures and requirements of the deleading
plan.
Supervisors would be responsible for: (1) Ensuring that deleading
activities are conducted in accordance with regulatory requirements;
(2) developing a written deleading plan and a post-abatement report for
each assigned abatement project; (3) maintaining accessibility at all
times when deleading activities are being conducted; (4) ensuring
completion of all deleading activities according to the standards of
this regulation; (5) identifying lead-based paint; and (6) completing
all other reports required under this regulation. In the statute,
activities associated with the inspection and assessment of lead-based
paint are clustered together, and the Agency originally envisioned that
it would develop one job discipline to both inspect for the presence of
lead-based paint and to evaluate or assess any lead hazards.
In comments to the Agency, however, contractors performing work in
large buildings (i.e., apartment complexes, schools, etc.) indicated
that the costs associated with requirements mandating that individuals
conducting inspections also be required to be trained to conduct risk
assessments (as defined by the statute) were overly burdensome. Other
commenters suggested utilizing individuals with less skill, education
and training to simply collect the data needed by a ``risk assessor''
to evaluate lead hazards. Thus, in large settings the work could be
done at a significantly lower cost while not compromising the quality
of either the inspection or risk assessment. Based on these comments,
the Agency is proposing the ``inspector technician'' discipline and the
``inspector/risk assessor'' discipline.
The establishment of two distinct disciplines -- one as an entry
level position, the ``inspector technician,'' who would only conduct
inspections; and another more advanced position, the ``inspector/risk
assessor,'' who would conduct risk assessments, but who also could
conduct inspections -- also will enable individuals to logically
progress in their profession.
To foster this progression, the Agency is proposing to structure
the inspector technician course so that it may be taken as a distinct
course, separate from the inspector/risk assessor course. Upon passage
of the inspector technician course, an individual would be able to
secure certification as an inspector technician. Once certified as an
inspector technician, an individual would be able to gain the work
experience necessary to take the inspector/risk assessor course and to
become certified as an inspector/risk assessor.
On the other hand, individuals that already possess the experience
and/or education requirements to become certified as an inspector/risk
assessor would take the inspector technician training course and the
inspector/risk assessor training course together as one unit. Upon
completion of the unit, individuals would become eligible for
certification as an inspector/risk assessor.
By structuring the two courses in this way, the Agency also has
avoided unnecessary duplication in training courses which individuals
seeking to advance their careers sometimes encounter when taking
additional training for other certifications. The content of the
proposed inspector/risk assessor course supplements the inspector
technician course and would not repeat any of the material from the
inspector technician course.
Another example of this approach can be seen in the supervisor and
planner/project designer training courses. An individual could become
certified as a supervisor for target housing and public buildings or as
a planner/project designer for target housing and public buildings.
However, to become certified as a planner/project designer, an
individual would take the supervisor course and the planner/project
designer course as one unit. Individuals seeking certification as a
supervisor would only take the supervisor course, but could take the
segment on planning/project design at a later date if they chose to
pursue certification as a planner/project designer. Once again, the
planner/project designer course would supplement the supervisor course
and would not repeat any of the material from the supervisor course.
The Agency received comments from a number of interested parties in
reference to the need to avoid duplicative training. In response, the
Agency considered taking a modular approach by specifying a core
curriculum that would be common to all the categories of individuals
conducting lead-based paint activities. However, EPA's review of the
training requirements indicates that the only knowledge and skill
elements common to all the categories are: background information on
lead, health effects, and regulatory background. Because these elements
would only make up one-half day of training, the Agency believes it is
not practical to break out these topics as a separate core curriculum.
Consequently, the Agency has proposed separate courses for each
discipline.
However, the Agency invites specific comments on its chosen
approach and suggestions for outlining a modular approach that could be
practicably implemented. Currently, the regulation requires a minimum
amount of classroom time for each course (e.g. the inspector technician
course shall last a minimum of 24 hours).
Although the Agency feels that the advantages of classroom training
(opportunity for student teacher interaction, the ability of the
training provider to update or customize the course material delivery
at the time of the course) are significant, the Agency also is
interested and requests comment on less traditional educational
methods. These alternative methods could include the use of videotape
or at-home study, for the delivery of the course material.
One such alternative would allow individuals to study course
materials at home, and then spend one or two days at a training program
facility to receive hands-on instruction and to take the course exam.
This alternative would help to reduce travel expenses, may lower
tuition costs, and would reduce the time that a trainee would have to
miss work. The Agency is concerned however that non-classroom oriented
instructional methods may not provide training of a quality equivalent
to classroom instruction. Comments on the impact of quality resulting
from alternative training methods taking into account the requirement
for hands-on training, course test, and third party exam, are
specifically sought as a part of this proposal.
C. Application Process
Proposed Sec. 745.225(a) describes the process a training program
must follow when applying for accreditation from an approving
authority. ``Approving authority'' is defined in this proposed
regulation to mean EPA or in the case of a State or Tribal program
authorized by EPA under this proposal, the appropriate State agency or
Tribal authority; an ``accredited training program'' means a training
program that has been accredited by an approving authority to provide
training for individuals engaged in lead-based paint activities.
The procedures in proposed Sec. 745.225(a) would apply to all
training programs seeking accreditation, regardless of when they began
offering lead training. After the effective date of Sec. 745.225, only
accredited training programs may offer lead-based paint activity
training for individuals seeking certification under proposed
Sec. 745.226.
For a training program to be accredited, the program would have to
submit an application and all of the documents and information listed
in proposed Sec. 745.225(a)(2) to the approving authority. These
documents would be used by the approving authority to determine if the
training program meets the minimum requirements for accreditation of
training programs listed in proposed Sec. 745.225(b). Training programs
also would be required to maintain copies of all documents submitted
with their application.
Documents to be submitted as a part of the application would
include a written statement signed by the training program manager that
clearly demonstrates that the training program meets the requirements
outlined in Sec. 745.225(b). The training manager would be responsible
for ensuring that the training program complies with all requirements
in proposed Sec. 745.225(b).
The training manager must also certify that all of the program's
principal instructor(s) and work practice instructor(s) meet the
specified experience requirements and ensure satisfactory performance
of the program instructors.
Copies of the program's instructor/student manuals and the course
agenda for each course must also be submitted with the application for
accreditation. However, if the training program chooses to utilize EPA-
developed model course materials, they would not be required to submit
these materials, but only to maintain them. This exclusion is not
intended to favor the use of EPA-developed materials, but to minimize
the documentation that a training program must submit, and thus to
minimize the paperwork burden generated by the application process.
Once the training program's application for accreditation is
submitted, the approving authority would have 180 days to approve or
disapprove the application. The approving authority may, at its
discretion, work with training programs to address inadequacies in the
request for accreditation. If a training program's application is
disapproved, the program may reapply at any time. If a training
program's application is approved, a certificate of accreditation would
be sent to the applicant. A training program may offer basic full
length training courses and refresher training courses in as many
disciplines as it chooses, but would be required to seek accreditation
for each discipline. However, a training program cannot apply for
accreditation to teach a refresher course unless it is accredited to
teach the full length basic course. A training program may apply for
accreditation to teach both the full length basic training course and
the refresher training courses simultaneously. Procedures to apply for
accreditation to teach a refresher training course are discussed in
unit V.F. of this preamble.
D. Minimum Requirements for the Accreditation of Training Programs
For a training program to obtain accreditation for any of the
courses, the program would have to demonstrate it meets the
requirements detailed in proposed Sec. 745.225(b). The proposed
requirements have been developed to ensure that all accredited training
programs are offering similar high quality training courses, regardless
of where the training programs are located.
The training program would have to employ a qualified training
manager, principal instructor(s), and work practice instructor(s) and
would have the necessary facilities to teach both the lecture and
hands-on portion of the course(s) for which the program would be
seeking accreditation. Proposed Sec. 745.225(b)(1), (b)(2), and (b)(3)
lists the education and experience requirements that the Agency
believes training managers, principal instructors, and work practice
instructors would have to possess to ensure that training is conducted
properly. Documents that would serve as a proof of these educational
requirements are identified in proposed Sec. 745.225(b)(5). The Agency
invites specific comment on the educational and work experience
requirements it is proposing for training program managers and course
instructors.
The training manager is responsible for the overall quality of the
training program from the qualifications of the instructors to the
adequacy of the training facility. They are responsible for certifying,
in the program application, that the program meets all of the
accreditation requirements of this regulation, and for maintaining the
program at that level.
The principal instructor is responsible for the organization,
delivery and oversight of all course materials. In this capacity the
principal instructor has the flexibility to bring in experts (e.g.
doctors or lawyers) to teach selected portions of the training course
(e.g., health effects of lead or regulatory requirements). These
experts, termed ``guest instructors,'' might not be professional
trainers or practitioners in the lead-based paint activities arena, but
must maintain specialized knowledge of a particular course topic.
As a part of the educational requirements for training managers,
and principal and work practice instructors, the Agency has proposed a
40-hour train-the-trainer course. The Agency chose 40 hours based on
comments it has received from a number of interested parties. On the
other hand, several parties have expressed concern to the Agency that
40 hours is an extensive period of time for a train-the-trainer course.
Comments on this issue are invited, as well as the submission of
supplemental information on the utility of a 40-hour course.
Proposed Sec. 745.225(c) of the regulatory text lists the minimum
curriculum requirements for each course. The minimum requirements are a
list of topics that would be covered in each of the courses, as well as
the specified skill areas where hands-on training would occur. There
would be minimum curriculum requirements for inspector technicians,
inspector/risk assessors, supervisors, planner/project designers, and
workers in target housing and public buildings; and supervisors and
workers in commercial buildings and superstructures. The training
programs would also provide instruction in the standards in proposed
Sec. 745.228 for conducting lead-based paint activities. The course
topics that must include a hands-on exercise are noted in the proposed
rule with an asterisk.
Each training program's course would have to meet or exceed the
appropriate minimum total training hour and hands-on training
requirements as stated in proposed Sec. 745.225(b)(7) of the regulatory
text. The hands-on training hours are included in the total number of
training hours. The total training hours and hands-on training hour
requirements were developed by the Agency based on its experience in
developing other training programs for asbestos, pesticides, and radon.
In defining the total training hour requirements, the Agency also
considered information it has received from the EPA-sponsored Regional
Lead Training Centers, private training providers, and other
university-based training providers, labor organizations, and other
interested parties. The Agency is requesting that individuals who have
data that would support alternative minimum training hour requirements
submit that information during the comment period for consideration.
To ensure trainee competency and proficiency, the accredited
training program would have to administer a course test at the end of
the course and conduct a hands-on skills assessment. The hands-on
skills assessment would be an evaluation of the effectiveness of the
hands-on training which should test the ability of the trainees to
demonstrate satisfactory performance of all the specified work
practices and procedures described in proposed Sec. 745.225(c). Both
the hands-on assessment and the course test would have to be
successfully completed to pass the course.
To ensure the quality of the training programs, programs would have
to develop, implement, and maintain a quality control plan and submit
the plan to the approving authority for consideration. The quality
control plan should be developed so as to maintain and improve the
quality of the training program over time. The plan would address
procedures for periodic revision of training materials and the course
test to reflect innovations in the field, and procedures to
periodically review instructor competency.
An example of why the provisions for quality control and periodic
revision of course materials are important is seen in the inspector/
risk assessor course. The procedures outlined in proposed
Sec. 745.228(b) and (e) of the regulatory text are critical for the
conduct of risk assessments in target housing and public buildings.
However, risk assessment, or determining the nature or severity of a
lead-based paint hazard is an evolving field where technologies are
advancing at rapid pace. The skills needed for assessing lead-based
paint hazards would be addressed in the inspector/risk assessor course,
so provisions for quality control and the periodic revision of course
materials to include state-of-the-art advances are of the utmost
importance to ensure professional competence.
E. Course Test
Proposed Sec. 745.225(b)(8) outlines the requirements for the
course test that would be administered by training programs at the
completion of each course. The course test would be representative of
the topics taught in the course. Although the Agency expects most
training providers to develop and administer a written course test, EPA
is requesting comment on the need to make special provisions for
individuals who cannot read English, or who have a low reading
comprehension. For example, training providers may want to develop a
course test in a foreign language, or to administer the test orally.
Regardless of how it is administered, training participants would
be required to pass the course test by answering correctly at least 70
percent of the test questions. Upon successfully passing the course
test and the hands-on assessment, individuals would receive a course
completion certificate. Passage of the course test and hands-on
assessment would demonstrate that the trainee has been properly
trained.
F. Minimum Requirements for the Accreditation of Refresher Training
Programs
Proposed Sec. 745.225(d) outlines the minimum requirements that
would be required for the accreditation of refresher training programs.
These requirements would ensure that all accredited training programs
would offer similar high quality refresher training courses.
Refresher training would address the following topics: An overview
of key safety practices; an update on current laws and regulations
(Federal, State, and local); and an update on new technologies. The
course would be a minimum of 7 training hours and would include a
course test to be administered at the end of the course.
The minimum course requirements for a refresher training course
would serve to update an individual's knowledge and skills so they can
effectively and safely continue to practice in the field.
In addition to its application, a training program seeking
accreditation to teach a refresher course(s) would submit to the
approving authority the materials to be used for the course. This
information would be submitted for each discipline for which the
program will be seeking accreditation. The approving authority would
have 45 days to approve or disapprove the request for accreditation and
to issue a certificate of accreditation. The approving authority may,
at its discretion, work with training programs to address inadequacies
identified in the request for accreditation. If a training program's
application is disapproved, the program would be able to reapply at any
time.
A training program may offer refresher training courses in as many
disciplines as it chooses, but would be required to seek accreditation
for each discipline. However, a training program cannot apply for
accreditation to teach a refresher course unless it is accredited to
teach the full length basic course. A training program may apply for
accreditation to teach both refresher training courses and full length
basic training courses simultaneously. Procedures to apply for
accreditation to teach a full length basic training course are
discussed in paragraph C of this Unit in the preamble.
G. Re-accreditation of Training Programs
To ensure that accredited training programs continue to offer high
quality training, the Agency has proposed requirements at
Sec. 745.225(e) for the re-accreditation of training programs. An
accredited training program would have to be re-accredited every 3
years by the approving authority. To qualify for this re-accreditation,
an audit of the training program by the approving authority may be
performed at the approving authority's discretion.
The application for re-accreditation shall include a list of
courses for which the training program is applying to teach and a
description of any changes or updates to the training facility or
equipment.
In addition to the application, the training program manager would
sign a statement certifying that: (1) The course materials meet the
applicable curricula requirements in proposed Sec. 745.225(c); (2) the
training manager, principal instructors, and work practice instructors
meet the qualifications in proposed Sec. 745.225(b)(1), (b)(2), and
(b)(3); (3) the training program complies at all times with all
requirements in proposed Sec. 745.225(b); (4) the quality control
program meets the requirements described in proposed
Sec. 745.225(b)(11); and (5) that the recordkeeping requirements in
proposed Sec. 745.225(h) are being followed.
The training program would submit an application for re-
accreditation at least 180 days prior to expiration of its existing
accreditation. If a training program does not submit its application
for re-accreditation in time, EPA would not be able to guarantee that
the application would be processed before the applicant's accreditation
expires.
H. Suspension, Revocation, and Modification of Accredited Training
Programs
Proposed Sec. 745.225(f) contains the procedures that the approving
authority would follow to suspend, revoke, or modify a training
program's accreditation. The approving authority may, generally after
notice and opportunity for a hearing, suspend, revoke, or modify a
training program's accreditation if a training program or its training
manager, or other supervisor has committed any of the acts identified
in proposed Sec. 745.225(f).
I. Procedures for Suspension, Revocation, and Modification of Training
Program Accreditation
Proposed Sec. 745.225(g) of the regulatory text describes the
procedures that the approving authority would follow if it decides to
suspend, revoke, or modify the accreditation of a training program.
These include procedures for notifying the program; for conducting the
hearing, if requested; and for immediate action to suspend the
accreditation of any program.
J. Training Program Recordkeeping and Reporting Requirements
Proposed Sec. 745.225(h) of the regulatory text outlines the
recordkeeping and reporting requirements for accredited training
programs. The recordkeeping requirements would ensure that the
approving authority could obtain the information necessary to audit
programs and ensure that approved training programs are in compliance
with all applicable standards.
The training program would maintain, and make available to the
approving authority, if requested, all documents submitted to the
approving authority as listed in proposed Sec. 745.225(a)(ii). In
addition the training program would maintain all documents specified in
proposed Sec. 745.225(b)(5) that demonstrate the qualifications of the
training manager, principal instructors, and work practice instructors.
Student files also would be maintained and would contain at a minimum,
the results of the student's hands-on skills assessment and course
test, and a copy of their course completion certificate. The training
program would retain these records for a minimum of 3 years and 6
months at the location and address specified on the training program
accreditation application. Training programs would notify the approving
authority 30 days prior to relocating its business or transferring the
records.
K. Training and Other Regulatory Requirements Applicable to Lead-Based
Paint Abatement Professionals Under the Resource Conservation and
Recovery Act (RCRA)
In addition to the training and recordkeeping requirements of this
proposed rule, there are other regulations that may apply to
individuals engaged in lead-based paint activities. Some lead-based
paint activities may result in the generation of hazardous waste as
defined under the Resource Conservation and Recovery Act (RCRA). For
convenience, this paragraph includes references to the Code of Federal
Regulations (CFR) for applicable RCRA hazardous waste generator
requirements (see 40 CFR part 262), as well as references to training
and recordkeeping requirements. References to training and
recordkeeping requirements are specified as needed in the following
discussion.
1. Training requirements. Individuals involved in projects that
generate more than 100 kilograms/month of hazardous waste must be
instructed in hazardous waste determination and management procedures
relevant to their job descriptions.
There are also RCRA training requirements cited in 40 CFR 265.16
which are applicable to both large quantity generators of hazardous
waste (more than 1,000 kilograms/month of hazardous waste are
generated) and operators of the RCRA treatment, storage, and disposal
facilities. Small quantity generators (more than 100 kilograms/month
but less than 1,000 kilograms/month of hazardous waste are generated)
must comply with the training requirements in 40 CFR 262.34(d).
Individuals engaged in lead-based paint activities must be familiar
with the requirements cited in 40 CFR 265.16(b), (c), and (d)(1)
through (d)(4) and follow them when handling lead-based paint abatement
waste.
2. Maintaining training records. RCRA requires that training
records cited in 40 CFR 265.16(d)(1) through (d)(4) be maintained by
hazardous waste generators to show that a generator of hazardous waste
who generates greater than 1,000 kilograms/month of hazardous waste
(see 40 CFR 261.3 and 261.10 through 35) has completed the RCRA
training requirements. The abatement workers' RCRA training records
must be maintained on-site where abatement work will be performed.
VI. Certification of Individuals and Firms Engaged in Lead-Based
Paint Activities
A. Introduction
Section 402(a)(1) of Title IV of TSCA requires EPA to promulgate
regulations to ensure, among other items, that contractors engaged
inlead-based paint activities are certified. EPA interprets this
requirement to apply to individuals, as well as firms, engaged in lead-
based paint activities.
The term ``certified contractor,'' as defined in section 1004 of
Title X, includes (1) a contractor, inspector or supervisor who has
completed a training program certified by EPA and who has met any other
requirements for certification established by EPA or who has been
certified by any State through a program which has been found by EPA to
be at least as protective as the Federal certification program; and (2)
workers and designers who have fully met training requirements
established by EPA or an approved State program.
Accordingly, EPA has determined that an individual performing lead-
based paint activities as an inspector, supervisor, worker or designer
is subject to regulations as a ``certified contractor'' pursuant to
section 402. Although ``risk assessor'' was not expressly listed in the
definition of ``certified contractor'' in section 1004 of Title X, the
function of a risk assessor -- to prepare a risk assessment -- is
defined as a lead-based paint activity under TSCA Title IV, section
402(b). Consequently the Agency is proposing to define a risk assessor
as a ``contractor'' in the same way that inspectors and supervisors are
defined as contractors.
At the same time the Agency recognizes that the term ``contractor''
may also be used to describe a firm or a company, rather than an
individual. Consequently, the Agency is proposing regulations governing
the activities of firms, as well as individuals engaged in lead-based
paint activities.
Proposed Sec. 745.226(f) of the regulatory text identifies the
requirements firms would need to meet to obtain certification. Under
these requirements a firm engaged in lead-based paint activities would
submit to the approving authority a letter certifying that the firm
will only employ certified employees to conduct lead-based paint
activities and that the firm will adhere to the standards and
recordkeeping requirements in proposed Sec. 745.228.
To ensure that individuals are adequately trained and certified the
Agency has developed two distinct training and certification programs.
One of the programs has been designed for individuals engaged in lead-
based paint activities as workers and project planners/designers. The
other program has been designed for individuals engaged in lead-based
paint activities as inspectors, supervisors and risk assessors. These
certification programs are discussed in detail in units VI.B. and C. of
this preamble.
Based on comments received during the development of this proposed
rule, the Agency is proposing the use of a national certification exam
to be included as a part of the certification process for inspector
technicians, inspector/risk assessors and supervisors. The national
exam is included in the certification requirements described in
Sec. 745.226(b) for inspector technicians, inspector/risk assessors and
supervisors.
The Agency believes that the administration of a certification exam
would significantly contribute to the Agency's efforts to ensure that
individuals are adequately trained and would encourage a nationally
consistent approach to the development of a trained and certified
workforce. Options for the development of a national exam and the
purpose of the exam are discussed in more detail later in units VI.D.
and E. of this preamble.
Proposed Sec. 745.226 of the regulatory text has also been
developed as a model for States to use when establishing their own
certification programs in the context of applying for authorization
under section 404 of Title IV of TSCA.
Although this proposed rule specifies certification requirements as
well as standards for all individuals engaged in lead-based paint
activities, it does not contain a requirement that particular
activities be undertaken in any specific sequence. For example, there
will be no requirement to conduct an inspection if, due to the
availability of historical information, lead-based paint is presumed to
exist and a decision to abate without an inspection has been made.
Under such circumstances, the abatement may proceed using certified
individuals without the conduct of a prior inspection.
Only certified individuals may conduct the lead-based paint
activities defined in this proposed regulation. If a homeowner decides
to have an inspection (as defined by this proposed regulation)
conducted, the individual providing the inspection service must be
certified. However, any lead related work that does not meet the
definition of a lead-based paint activity, as identified in section
402(b)(1) and (2) and as defined by this regulation, need not be
conducted by a certified individual. For instance, during a kitchen
remodelling project a homeowner may decide to have the paint on only
one wall in the kitchen tested for lead, by a non-certified individual
or firm because such limited testing is not an ``inspection'' as that
term is defined by the regulation. However, no individual or firm may
perform or even offer to perform any lead-based activity, e.g.
inspection, risk assessment, or abatement, as defined in this part,
unless certified according to the procedures found at proposed
Sec. 745.226.
B. Inspector Technician, Inspector/Risk Assessor, or Supervisor
Certification
Individuals wishing to become certified by the approving authority
as an inspector technician, an inspector/risk assessor, or a supervisor
would have to: (1) Successfully complete the appropriate training
course offered by an accredited training program and secure a course
completion certificate; (2) meet the appropriate experience and/or
education requirements and; (3) pass the certification examination
recognized by the approving authority.
To be eligible to take the certification examination, an individual
would first have to present the required training course completion
certificate and documentation of the appropriate education/experience
prerequisites to an official of the examination administering body.
Documents that would be recognized as proof of these prerequisites are
listed in proposed Sec. 745.226(b).
Experience and/or education requirements are proposed in the
regulatory text for inspector/risk assessors for target housing and
public buildings, supervisors for target housing and public buildings,
and supervisors for commercial buildings and superstructures. There are
no experience and/or education requirements proposed for inspector
technicians because the EPA believes that this would present an
unnecessary barrier to entry into this field.
Many interested parties commented that the work experience and
educational qualifications of inspector/risk assessors and supervisors
should be substitutable. Therefore, the Agency, in proposing education/
experience requirements, took into account its experience in developing
training programs in the past (e.g., asbestos) and comments provided by
a number of interested parties, such as the Regional Lead Training
Centers, labor organizations, advocacy organizations, and trade
organizations. Based on information received, the experience and
education requirements for inspector/risk assessors and supervisors
were developed by the Agency in an effort to allow individuals to
substitute qualifying experience for education and visa versa. These
requirements were developed to avoid excluding individuals whose
experience might warrant qualification to become certified but who
would not qualify on the basis of the education requirements alone.
Proposed Sec. 745.226(b)(1) of the regulatorytext describes the
education/experience requirements for inspector/risk assessors and
supervisors.
The Agency specifically requests comment on the education and/or
experience requirements it is proposing for inspector/risk assessors
and supervisors, and its decision not to propose any education and/or
experience requirements for inspector technicians. It also is seeking
comment on the administration of a national certification examination
as discussed in units VI.D. and E. of this preamble.
C. Worker and Planner/Project Designer Certification
Individuals wishing to become certified as workers in target
housing and public buildings or commercial buildings and
superstructures or planner/project designers in target housing and
public buildings would have to successfully complete and receive a
course completion certificate in the appropriate discipline from an
accredited training program. There are no experience and/or education
prerequisites for workers or planner/project designers, nor would these
job disciplines be required to take a national certification
examination. This decision is based on EPA's understanding of the
definition of ``certified contractor'' in section 1004 of Title X,
which only requires training as a precondition to certification for
workers and planner/project designers.
The training course completion certificate issued to a worker or
planner/project designer would serve as an interim training certificate
for 6 months. Within 6 months the individual would submit a valid copy
of their course completion certificate to the approving authority. The
approving authority would then issue a final certification to each
worker and project designer. This certification would be valid for 3
years. An individual would have to be re-certified by the approving
authority before the certification expires. Training programs may wish
to assist trainees in notifying the approving authority of their
eligibility for certification.
D. Certification Examination
Proposed Sec. 745.226(b) of the regulatory text describes the
certification requirements for inspector technicians, inspector/risk
assessors, and supervisors. Under these requirements, an individual
would successfully complete the appropriate training course and secure
the course completion certificate, and meet the appropriate education/
experience requirements. After obtaining a course completion
certificate and meeting these requirements, an individual would be
ready to take the certification examination.
The certification examination is a key component of the Agency's
certification program, especially for inspector technicians, inspector/
risk assessors, and supervisors. While there would be a required test
at the end of each training course, the certification examination would
serve as a neutral or third party examination of the applicant's
proficiency in the appropriate training discipline. A neutral or third
party would administer the examination in such a way that the validity
and security of the examination are maintained. The examination would
serve to ensure that each individual who will be certified under this
program would have a common level of knowledge and understanding in
their particular discipline. It is the Agency's belief that
administration of a neutral or third party examination would encourage
States to enter into reciprocal certification arrangements with other
States nationwide.
The examination itself would not be developed as part of this
proposed regulation, but would be developed separately under the
auspices of EPA, according to guidelines discussed in paragraph E of
this Unit in the preamble.
It is anticipated that the approving authority may not always be
able to offer the certification examination immediately after an
individual has received their course completion certificate. To allow
individuals to begin work, the course completion certificate would also
serve as an interim certification until evidence of successfully
passing the next available certification examination is provided. This
interim certification would be valid for up to 6 months. If an
individual did not pass the certification examination and receive their
certificate within this 6-month period, the individual would have to
retake the appropriate course before reapplying for certification from
the approving authority.
After passing the certification examination and meeting the
education/experience prerequisites, an individual would be issued a
certificate by the approving authority. This certification would be
valid for 3 years. There would be separate certification examinations
offered for each discipline.
EPA is examining various options for the development and
administration of the certification examination. One option is for EPA
or a State to work with a competent independent organization to develop
and/or administer the certification examinations based on the
guidelines discussed below. A second option is to have authorized State
programs develop and administer their own certification examinations
according to the Certification Examination Guidelines. A third option
is for EPA to develop and/or administer the certification examinations.
Comment is invited on these options and on the feasibility of an
independent organization administering the examination. The goal of the
certification examination process is to give each State the flexibility
it desires in fashioning its certification program, while at the same
time ensuring a consistent national level of competence in the lead-
based paint activities workforce.
E. Certification Examination Criterion
The following are criterion that, although not a part of this
proposed rule, EPA expects will be followed when developing the
certification examination:
1. Subject matter experts (SMEs) will be consulted throughout the
development and early evaluation process.
2. This consultation will be done using oral interviews and written
questionnaires devised by the SMEs in concert with testing development
professionals. A job or task analysis will be performed for each
discipline. This analysis will be used in the development of the
initial test questions and the overall development of the topical
format of the examinations, including the amount or percentage of
questions for each topic covered on a particular examination.
3. A readability analysis of the test questions will be performed.
Based on this evaluation, changes will be made as necessary in the
construction of the test questions.
4. Complete psychometric evaluation techniques will be utilized in
the initial construction of the tests.
5. A cut score workshop will be conducted to review each question
in the item bank (or test bank). The SME's shall be used to evaluate
each question. They would establish a level of difficulty for each
question, as well as the percentage of each topic to be covered on the
test. Based on their knowledge of the industry, the SMEs will provide
an estimate of the number of candidates who would successfully complete
each question. Once these items have been established, an appropriate,
industry accepted procedure will be used to set a minimum passing (or
``cut'') score for each examination.
6. Continuous psychometric evaluation of the test questions will be
used. The test questions will be periodically revised and updated
through the collection of statistics regarding the performance of
candidates on each question.
EPA recognizes that States may wish to impose additional testing
requirements on candidates. This practice is acceptable as long as the
test questions used by a State do not duplicate the topics covered in
the standardized certification examination, but rather are specific to
State laws, regulations, and work practice requirements.
F. Certification Based on Prior Training
EPA is aware that when the regulation becomes effective, there will
be many individuals who have, over the past several years, already
received training and have been working in the lead-based paint
abatement field. While many of these individuals may not believe that
any additional training will be necessary, the Agency has a
responsibility to ensure that individuals engaged in lead-based paint
activities are properly trained. The Agency does not, however, wish to
unnecessarily burden individuals, some of whom already have years of
experience in this field.
Recognizing this situation, the Agency has proposed at
Sec. 745.226(d) a procedure for certifying some of these individuals
under a reduced set of requirements. Anyone who has received lead-based
paint activities training between October 1, 1990, and the effective
date of the rule may be eligible for certification under these proposed
procedures. To become eligible for certification based on prior
training, all individuals would have to show proof of training received
after October 1, 1990, and that such training included a curricula
similar to the requirements in Sec. 745.225(c).
Inspector/risk assessors, and supervisors would also have to
document that they meet the education and/or experience requirements
listed in proposed Sec. 745.226(b)(1). These individuals would also
have to successfully complete a refresher training course and pass the
national certification examination for the appropriate discipline.
Workers and planner/project designers seeking certification under
these procedures would have to successfully complete a refresher
training course.
In considering grandfathering, the Agency invites comment on what
criteria should be used to compare prior training with the training
described in proposed Sec. 745.225(c). The Agency believes that some
evaluation of the adequacy of previous training will be necessary to
ensure that individuals are properly trained.
The Agency has chosen the date of October 1, 1990, as the proposed
cutoff for prior training because this is the date the Department of
Housing and Urban Development's (HUD) ``Interim Guidelines for Hazard
Identification and Abatement of Lead-Based Paint in Public and Indian
Housing'' were issued. These guidelines were the most comprehensive and
accurate information on lead-based paint inspection and abatement
issued up to that time. EPA believes that after October 1, 1990, the
HUD guidelines were widely distributed to training programs and that
many individuals received training based on these guidelines. The
Agency requests specific comment on using the HUD Guidelines as a
rationale and the October 1, 1990 date as the cutoff point for allowing
certification based on prior training.
As of July 1994, 3,245 copies of the guidelines and 231 copies of
EPA's lead inspector training course, based substantially on the HUD
Guidelines, have been sold. Additionally, as of September 1993, 306
copies of EPA's model lead abatement training course for supervisors
and contractors, also substantially based on the HUD guidelines, had
been sold. All of these materials were sold to the general public
through the HUD contractor-operated distribution center, HUD User.
Since the establishment of EPA-supported Regional Lead Training
Centers (RLTC) in March 1992, the Centers have trained approximately
2,000 individuals in the Supervisor/Contractor Course (Ref. 8) and
approximately 2,200 individuals have received training in the RLTC's
lead inspector training course (Ref. 9). The RLTCs use EPA's model
courses as the basis for their training classes. Again, EPA's model
courses draw substantially from the HUD Guidelines.
Under the proposed rules, individuals would have up to 6 months
after the effective date of proposed Sec. 745.225 to apply for
certification under these prior training procedures. After that date,
all individuals wishing to obtain certification would do so under the
process outlined in proposed Sec. 745.226(b) and (c) of the regulatory
text. The Agency recognizes that 6 months after Sec. 745.225 becomes
effective may not seem like an adequate amount of time to apply for
certification under the reduced set of requirements detailed in
proposed Sec. 745.226(d). However, when it is considered that proposed
Sec. 745.225 does not become effective until 2 years and 6 months after
the rule (in its entirety) is issued or ``effective,'' the Agency
believes that individuals will have plenty of time to prepare to apply
for certification under the procedures in Sec. 745.226(d). The Agency
requests comment on the procedures it is proposing for a prior
certification.
G. Re-certification
The Agency is aware that the lead-based paint activities field is
evolving quickly in both inspection and abatement technology. Given
this, under the proposed rule, refresher training would be required
every 3 years. This requirement would be enforced by mandating that all
certified individuals be recertified every 3 years. The Agency has
chosen 3 years as the amount of time for re-certification for several
reasons. EPA believes re-certification of individuals every 1 or 2
years would be too burdensome. But, it also believes that waiting
longer than 3 years would not allow individuals to receive timely
updates on innovations and technological advances in the lead
inspection and abatement field or on new regulatory requirements.
To become re-certified, an individual would successfully complete
an accredited 1-day refresher training course specific to the
discipline in which the individual seeks to be recertified through an
accredited training program; pass the refresher course test, and submit
a refresher course completion certificate to the approving authority.
H. Suspension, Revocation, and Modification of Certification of
Individuals Engaged in Lead-Based Paint Activities
Pursuant to section 402(a) of TSCA, the approving authority would
be able to, after notice and opportunity for a hearing, suspend,
revoke, or modify an individual's certification if an individual has
committed any one of the acts listed in Sec. 745.226(g) of the proposed
regulatory text. In addition, the approving authority would be able to
suspend, revoke, or modify the certification of individuals who have
been subject to a final order imposing a civil penalty or a criminal
conviction for engaging in a prohibited act under section 15 or section
409 of TSCA.
Furthermore, any individual who either: (1) Obtained certification
through fraudulent representation or means, or (2) obtained
certification from a training program that is not accredited to offer
training is not considered certified for purposes of TSCA Title IV. It
would be considered a violation of TSCA, as well as any other
applicable provision of law, for any such individual to conduct any
lead-based paint activities requiring certification.
I. Certification of Firms Engaged in Lead-Based Paint Activities
Proposed Sec. 745.226(f) of the regulatory text outlines procedures
for the certification of firms. All firms acting as contractors or
conducting lead-based paint activities would have to be certified by
the approving authority. To become certified, a firm would submit a
letter to the approving authority certifying that the firm will only
employ certified employees to conduct lead-based paint activities and
that the firm will follow the standards and recordkeeping requirements
in proposed Sec. 745.228.
The Agency believes the certification of firms is necessary to
ensure the use of a certified workforce and compliance with
recordkeeping requirements. A certified firm would present the
approving authority with a more manageable point of contact for
administration and enforcement, as opposed to the Agency attempting to
monitor the activities of every worker involved in lead-based paint
activities. Additionally, the provisions for the identification of
qualified firms would provide a source of information for the public to
identify firms qualified to conduct lead-based paint activities in
target housing, public and commercial buildings, and superstructures.
Additionally, the required certification mechanism would also provide
the Agency with a mechanism for notifying contractors of new
technologies and regulatory requirements in an effective and timely
manner. A certified firm would follow the recordkeeping standards
outlined in Sec. 745.228 of the proposed regulatory text.
J. Suspension, Revocation, and Modification of Certification of Firms
Engaged in Lead-Based Paint Activities
The approving authority would be able to, after notice and
opportunity for hearing, suspend, revoke, or modify a firm's
certificate if a firm has committed any of the acts listed in
Sec. 745.226(h) of the proposed regulatory text. In addition, the
approving authority may suspend, revoke, or modify the certification of
firms that have been subject to a final order imposing a civil penalty
or a criminal conviction for engaging in a prohibited act under section
15 or section 409 of TSCA.
Furthermore any firm which either: (1) Obtained certification
through fraudulent representation or means, or (2) fails to obtain a
certificate from the approving Authority is not certified for purposes
of TSCA Title IV. It shall be considered a violation of TSCA as well as
any other applicable provision of law, for any such firm to conduct any
lead-based paint activities requiring certification.
K. Procedures for Suspension, Revocation, or Modification of
Certification of Individuals or Firms
Proposed Sec. 745.226(h) outlines the procedures to be followed if
the approving authority decides to suspend, revoke or modify the
certification of any individual or firm. These include procedures for
the notification of the individual or firm; the conduct of the hearing,
if requested; and the procedures for immediate action to suspend the
certification of any individual or firm.
VII. Standards for Conducting Lead-Based Paint Activities
A. Introduction
Section 402(b) of TSCA requires EPA to develop training and
certification requirements for individuals and contractors engaged in
lead-based paint activities. The statute also states that such
regulations shall contain standards for performing lead-based paint
activities, taking into account reliability, effectiveness, and safety.
In this proposed rule, EPA has divided the standards for lead-based
paint activities into three separate categories with lead
identification and control disciplines specified for each category.
These categories include target housing, public buildings, and
commercial buildings and superstructures. In target housing, the
standards cover inspection, risk assessment, and lead abatement. The
second set of standards, for public buildings, covers the
identification of lead-based paint and lead-containing materials, risk
assessment, abatement, and demolition. The final set of standards are
for identification, deleading, and demolition in commercial buildings
and superstructures.
Although this proposed rule specifies certification requirements as
well as standards for all individuals engaged in lead-based paint
activities, it does not contain a requirement that particular
activities be undertaken in any specific sequence. There will be no
requirement to conduct an inspection if, due to the availability of
historical information, lead-based paint is presumed to exist and a
decision to abate without an inspection has been made. Under such
circumstances, the abatement may proceed using certified individuals
without the conduct of a prior inspection.
B. Background Documents
The statutory timeframe for developing final standards for
conducting lead-based paint activities under section 402(a) did not
allow sufficient time to conduct extensive new studies and develop
entirely new standards for the broad range of lead-based paint
activities as defined in this proposed rule. However, the Agency was
able to draw on a body of existing information and research in the
development of these standards. In addition, during the development of
this proposal, the Agency received written input from a broad range of
individuals and groups who are currently working in the fields that
conduct lead-based paint activities.
One example of such resource material is the Interim HUD Lead-Based
Paint Guidelines. The Guidelines, published in 1990, is a comprehensive
document that covers all aspects of lead-based paint inspection and
abatement activities. The Guidelines provided an invaluable starting
point for the development of EPA's inspection, risk assessment, and
abatement standards. The Guidelines are the only nationally recognized
blueprint for conducting safe and effective abatement in target
housing. While State and regional requirements exist for methodologies
for some lead-based paint activities, no other set of guidelines has
been used as extensively as the HUD Guidelines.
Section 1017 of Title X requires that HUD issue new guidelines for
risk assessment, inspection, interim controls, and abatement. These
guidelines will be entitled Guidelines for the Evaluation and Reduction
of Lead-Based Paint Hazards in Housing. Leading experts in the field of
lead-based paint inspection, risk assessment, and abatement have been
consulted by HUD in developing these new guidelines, including lead-
based paint abatement trainers and abatement professionals, as well as
government officials from the National Institute of Occupational Safety
and Health (NIOSH), the Centers for Disease Control and Prevention
(CDCP), EPA and HUD.
Since the development of the revised guidelines paralleled the
development of this proposed rule, the Agency was able to consult with
HUD throughout the rule development process in an attempt to achieve
consistency between the two documents. The Agency will, when it is
available, include a copy of the new HUD guidelines in the public
docket for this proposed rule.
C. Inspection for Target Housing
The objective of an inspection is to determine, and then report,
the existence of lead-based paint in residential dwellings through a
surface-by-surface investigation. The data collection and reporting
standards specified in Sec. 745.228(a) must be followed when conducting
an inspection. Because the data collection and reporting standards are
crucial to the accuracy of an inspection, an inspection may only be
conducted by an individual certified as either an inspector technician
or an inspector/risk assessor. An inspection is, by definition,
intended to provide a comprehensive inventory of all lead-based paint
in a dwelling unit. Consistent with this definition, the inspection
report will provide a detailed evaluation of the presence of lead in
all paint within the unit.
EPA is proposing to define a unit as a room, or connected group of
rooms, used or intended to be used by a single tenant or owner. Section
745.228(a)(2)(ii) of the proposed regulatory text states that component
surfaces with distinct painting histories in every unit must be tested.
This effectively means that every unique component within a room that
has a painted surface that has been deemed to have such a painting
history by the inspector technician or inspector/risk assessor, would
have to be tested.
The requirement that every unique painted surface be tested is
consistent with the Title X definition of an inspection involving a
``surface-by-surface investigation.'' An inspection is intended to
provide detailed information on the presence of lead in all paint in a
dwelling unit, and the procedures in this proposed standard are
intended to provide a framework to obtain this information.
The inspection standards reflect the Agency's preliminary decision
not to provide detailed instruction on how to perform specific lead-
based paint identification tasks, for instance, taking a paint chip
sample or operating an XRF instrument, but instead to assure that
analysis information is obtained and maintained as part of the
recordkeeping requirements. Because the actual methods and techniques
used to determine the presence of lead-based paint (the test methods)
are constantly evolving, and improvements in technology are expected to
continue, the standards contained in this proposed rule do not specify
the technology to be utilized for analysis, but do require documented
methodologies which incorporate adequate quality control procedures.
Examples of analytical technologies capable of lead-based paint
testing include field portable XRF and, laboratory analysis of paint
chip samples by atomic absorption spectroscopy (AAS) and inductively
coupled plasma atomic emission spectroscopy (ICP). EPA does not intend,
in this regulation, to specify in detail the procedures for the
analysis of paint for lead content. The new HUD guidelines, provide
comprehensive guidance on both XRF sampling, and laboratory analytical
methods, and the procedures in the guidelines should be followed when
conducting lead-based paint testing. The Agency is considering the need
for promulgating detailed regulatory requirements for lead-based paint
testing and requests comment on the need for such an enforceable
testing regulation.
The proposed standards do require that any environmental laboratory
analysis to determine the lead content in paint, dust, and soil, be
done by only those laboratories recognized by the Agency as being
capable of performing these activities.
X-ray fluorescence (XRF) spectroscopy is widely used as a field
inspection devise. The accumulated experience in use of XRF instruments
has provided anecdotal evidence that they are subject to unexplained
variances in performance. To date, there has been little comprehensive
evaluation of the performance of XRFs under actual field conditions.
Because of the questions raised concerning XRFs performance, EPA is
conducting a field study of lead-based paint measurement technology.
Results of this study will be used to shape lead-based paint testing
guidelines which will be reflected in the new HUD guidelines and
disseminated as guidance.
While methodologies for determining the presence of lead-based
paint may vary, the inspection standards would require that the
inspector technician or inspector/risk assessor prepare an inspection
report that would detail the findings of their inspection and the
methods used during the inspection. The inspector technician or
inspector/risk assessor would have to adhere to the reporting
requirements listed in proposed Sec. 745.228(a)(6) of the regulatory
text. Accurate completion of the report would be the enforceable
component of the inspection standards.
The inspection report would serve as a guide for the inspector
technician or inspector/risk assessor to ensure that all of the
necessary information will be obtained during an inspection. An example
of an inspection report can be found in the HUD guidelines.
An inspection report would have to be completed for each unit
inspected. Upon completion of the testing, an inspection report would
be written and would include all information required in
Sec. 745.228(a)(6) of the proposed regulatory text. The inspection
report would be retained by the owner of the residence or building and
the certified firm that conducted the inspection for a period of 3
years. Section 1018 of the Residential Lead-Based Paint Hazard
Reduction Act of 1992 requires that by October 1994, the Agency and HUD
develop a regulation for the disclosure of lead-based paint hazards in
target housing which will be offered for sale or lease. The inspection
report would be subject to the disclosure and recordkeeping
requirements of the section 1018 regulation.
D. Risk Assessment for Target Housing
The Federal government's commonly held definition of risk
assessment defines the health effects of exposure to hazardous
materials to individuals or populations by conducting a hazard
identification, a dose-response assessment, an exposure assessment, and
a risk characterization (Risk Assessment in the Federal Government:
Managing the Process, National Academy Press) (Ref. 1). This form of
risk assessment focuses on a quantitative analysis of risk to human
health and does not recommend options for the management of the risk.
Risk assessment as defined by TSCA Title IV, differs from this
traditional concept in that the inspector/risk assessor is relied upon
to not only identify lead-based paint hazards, but to also recommend
options for the management of these hazards.
Section 401(16) of TSCA provides that the objective of a risk
assessment is to determine, and then report the existence, nature,
severity, and location of lead-based paint hazards in residential
dwellings through an on-site investigation. This definition is based on
the risk assessment protocols developed by HUD and the Housing
Authority Risk Retention Group (HUD/HARRG) as mandated by amendments to
the Housing and Community Development Act of 1987, the Lead-Based Paint
Poisoning Prevention Act (Pub. L. 100-242).
Under the proposed rule, a risk assessment, including the risk
assessment report, may only be conducted by an individual certified as
an inspector/risk assessor. However, an inspector technician may,
assist a certified inspector/risk assessor by taking paint, soil, and
dust samples.
The Agency views the role of the inspector/risk assessor as pivotal
in reducing risks associated with lead-based paint. The certified
inspector/risk assessor will be a trained specialist equipped with the
requisite professional credentials needed to evaluate risks associated
with lead-based paint. The Agency envisions that a certified inspector/
risk assessor would be qualified to make a competent, and rational
assessment of the location and severity of lead-based paint hazards.
The procedures outlined in proposed Sec. 745.228(b) of the regulatory
text provide a framework for the collection of risk assessment data.
These procedures were developed on the premise that the background and
required training of a professional inspector/risk assessor would
enable the inspector/risk assessor to identify risks associated with
lead-based paint hazards and to develop options for actions to
eliminate hazards. The required training would, through the
accreditation process outlined in this regulation, include the best
scientific information available on characterizing hazardous levels of
lead in paint, soil, and dust.
As stated earlier in this preamble, the Agency is currently
developing criteria pursuant to section 403 of TSCA for the
identification of lead hazards in soil, dust, and paint to facilitate
the risk assessment decision making process. When promulgated, the
determinations made under the section 403 regulation, and associated
guidance, will be widely disseminated by the Agency, and will be a
required element of the training course curricula under this
regulation.
The standards in this regulation are intended to apply to
individual residential dwelling units, whether in multi-unit
residential dwelling or in single-family housing. The procedures for
determining which units are to be assessed within a multiunit dwelling
are not included in these standards. This decision should be made by
the building owner or housing authority in consultation with the
inspector/risk assessor.
The first step of a risk assessment is to have the risk assessor
survey the unit or dwelling to evaluate its overall condition. In
buildings built after 1960 in relatively good condition where the
probability of finding lead-based paint hazards is low, a comprehensive
risk assessment may be unnecessary. To avoid the cost of conducting a
comprehensive risk assessment, an owner of these dwellings may wish to
have the risk assessor conduct a lead hazard screen before initiating
the complete risk assessment. According to the HUD guidelines, such a
screen employs more limited sampling and more sensitive hazard
identification criteria. In general a screen involves determining
overall paint condition in a unit, taking limited dust samples from
floors and exterior window sills, and soil samples from bare soil. A
detailed discussion of how to conduct a screen and the criteria used to
evaluate the results of a screen can be found in the HUD guidelines. If
a unit fails this screen, EPA recommends that a risk assessment, as
described in proposed Sec. 745.228(b)(2) through (b)(9) of the
regulatory text, be conducted. Failure of the screen indicates that
lead hazards may be present and that a more thorough risk assessment is
warranted to definitively identify the lead hazards within the unit.
At this point the risk assessor would review any background
information as described in proposed Sec. 745.228(b)(2). This data will
contain useful information regarding the physical characteristics of
the unit and residential use patterns within the unit. This information
includes the age of the building or if there are children under age 6
living in the unit, as well as information on any known lead-related
health problems of any occupant of the dwelling unit. Further, the risk
assessor would obtain any other available information that would
characterize occupant use patterns that may generate or contribute to
lead-based paint hazards. Examples of this information could include
family hobbies that involve lead, the location of a commonly used
entryway or commonly opened windows. The inspector/risk assessor should
also obtain, if available, any previous test results or inspections
regarding lead-based paint or other assessments for lead-related
hazards. This information may prove valuable in determining the
presence of lead-based paint without having to re-sample areas of the
unit. However, the inspector/risk assessor must evaluate the quality
and the reliability of any previous test results. Past inspections may
not conform to current standards of care, possibly resulting in an
incorrect determination of the location of lead-based paint.
The next step in a risk assessment is to conduct a closer visual
inspection of the condition of the painted surfaces within the unit.
Any paint found to be deteriorated should be tested by an inspector
technician or the inspector/risk assessor according to the procedures
found in the inspection portion of the proposed standards. The
inspector/risk assessor should also test any surfaces that they
determine may be a source of lead dust or lead-based chips. These
include friction and impact surfaces such as door and window frames, or
painted surfaces accessible to children such as window sills or stair
treads.
Dust samples should be collected within each selected unit
according in parts of the living area where children are most likely to
come into contact with dust. These areas include bedrooms, family
rooms, and kitchens. In general, any area that children frequent in the
dwelling should be evaluated for lead-contaminated dust. The HUD
guidelines as well as the currently available EPA model inspector
course provide detailed guidance and instruction in the collection of
dust samples in residential dwellings.
Finally, randomly selected soil samples should be collected by an
inspector technician or inspector/risk assessor and analyzed in order
to adequately characterize the lead concentrations in exterior play
areas, areas containing bare soil, and along the dripline or foundation
area of a unit.
All dust, soil, and where appropriate, paint samples should be sent
to a laboratory that is fully recognized by EPA as being capable of
performing these activities.
As with an inspection, the data collected as part of a risk
assessment would be documented in an assessment report. Proposed
Sec. 745.228(b)(8) of the regulatory text describes all items required
to be included in the risk assessment report.
Pursuant to section 401(16) of TSCA, a risk assessment may include
``other activity as may be appropriate.'' Based on this language, the
Agency is proposing that the risk assessment report should, as a final
step, identify lead hazard control strategies to address all identified
lead-based paint hazards. A justification for each hazard control
strategy identified must also be provided. The inspector/risk assessor
should also prioritize each of the hazard control actions based on the
immediacy of the hazard, and recommend a schedule to the building owner
for addressing hazards. Clearly the most hazardous conditions (e.g.
badly deteriorated lead-based paint) within a unit should be addressed
as soon as possible, and before other control actions are taken.
The risk assessment report is to be maintained by the owner of the
residence or building, as well as the certified individual or firm that
conducted the assessment for at least three years. This information
would also be subject to the disclosure and recordkeeping requirements
of the regulation developed under section 1018 of Title X.
E. Abatement for Target Housing
Abatement is defined by section 401(1) of TSCA as ``any set of
measures designed to permanently eliminate lead-based paint hazards.''
The term, as defined, includes the removal of lead-based paint and
lead-contaminated dust, the permanent containment or encapsulation of
lead-based paint, the replacement of lead-painted surfaces or fixtures,
and the removal or covering of lead-contaminated soil. In addition, it
includes all preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures. By
definition, abatement is limited to those activities that are designed
to permanently eliminate lead-based paint hazards.
Abatement does not include renovation and remodeling, or
landscaping activities, whose primary intent is not to permanently
eliminate lead-based paint hazards, but is instead to repair, restore,
or remodel a given structure or dwelling, even though these activities
may incidently result in a reduction in lead-based paint hazards.
For the purposes of this regulation, the Agency will presume
abatement to occur in the following circumstances:
(1) Projects for which there is a written contract stating that an
individual or firm will be conducting activities on or in a dwelling
unit that will permanently eliminate lead-based paint hazards;
(2) Projects involving the permanent elimination of lead-based
paint or lead-contaminated soil conducted by firms or individuals
certified in accordance with this regulation; or
(3) Projects involving the permanent elimination of a lead-based
paint hazard or lead-contaminated soil conducted by firms or
individuals who, through their company name, promotional literature, or
otherwise, advertise or hold themselves out to be lead abatement
professionals. The definition of abatement includes the phrase
``permanent containment or encapsulation.'' Encapsulation is defined as
a process that makes lead-based paint inaccessible, by providing a
barrier between the lead-based paint and the environment. This barrier
is formed using a liquid applied coating or an adhesively bonded
material. The primary means of attachment for an encapsulant is bonding
of the product to the surface either by itself or through the use of an
adhesive.
The Agency recognizes the fact that all encapsulant's will degrade
over time, so therefore, no encapsulant is truly permanent.
Nevertheless, the Agency would consider an encapsulant to be
``permanent'' within the meaning of TSCA Title IV if the encapsulant is
periodically monitored and maintained over the lifetime of the surface.
The Agency is soliciting comment on the proposed requirement for the
periodic monitoring of encapsulants.
The permanent containment of lead-based paint would be achieved
through the use of a mechanical enclosure system. The enclosure should
be a rigid, durable barrier that is mechanically attached to the
building component, with all edges and seams sealed with caulk or other
sealant to provide a dust-tight system.
As defined in this proposal, an abatement would have to be
conducted by persons certified by the appropriate approving authority
as a worker or supervisor. Every abatement project would require a
supervisor assigned to it who has been certified by the appropriate
approving authority. The supervisor, if not on-site, would have to be
available by phone and able to physically be present at the work-site
within 2 hours. This supervisor, as well as the certified firm they
work for, would be responsible for ensuring that all abatement
activities in target housing are completed according to the standards
outlined in this proposed rule.
Regarding project designer/planners, the Agency is including in
proposed Sec. 745.228(c)(7) of the regulatory text, a requirement that
they prepare a written pre-abatement plan for projects involving the
abatement of 10 or more units, since the size of these operations may
require a level of expertise not required in single-family, or smaller
multi-unit projects. The Agency is requesting comment on the proposed
requirement that a project designer/planner must be utilized to design
abatement projects for units numbering 10 or more. The Agency has also
considered this size distinction in development of its Interim Final
Regulations to amend the Asbestos Hazard Emergency Response Act's
(AHERA) Asbestos Model Accreditation Plan to include public buildings.
A pre-abatement plan is to be completed by the supervisor or
project designer/planner as appropriate for the size of the work
project. This plan would follow the standards for worker, environmental
and occupant protection as outlined in this proposed rule. Because
there may be a potential conflict of interest between those who conduct
the inspection/risk assessment and those who actually do the abatement,
it is recommended that the plan contain a statement that the persons or
firm engaged in the inspection and/or risk assessment of a unit should
not perform lead abatement activities in that same unit. This type of
conflict may arise if inspector/risk assessors are in a position to
receive a financial benefit by recommending that an abatement be
conducted.
To protect the health of building occupants, the rule as proposed
would require that an occupancy protection plan be developed by the
supervisor or planner/project designer. This plan should address what
measures would be taken during the abatement to protect the building
occupants, and what method of verification would be utilized to
document this protection. In development of the plan, certain factors
should be taken into consideration, for example, the length of
abatement, remaining access to facilities and exits, and total area
involved. In plans which require the relocation of occupants, samples
would be collected, analyzed, and clearance levels met according to
proposed Sec. 745.228(c)(9) before re-occupancy.
An abatement project typically involves one or more of the
following techniques: Building component replacement, the use of
physical enclosure systems, or on-site or off-site paint removal from
building components. It is the responsibility of the abatement
supervisor, with possible input from the risk assessor, to determine
the most appropriate course of action to eliminate identified lead
hazards.
Section 745.228(c)(6) of the proposed rule would require that the
supervisor of an abatement job submit a pre-abatement notification to
EPA or the approving authority, for their information, prior to the
commencement of the abatement. In the case of an authorized State
program, States may develop their own notification procedures as part
of the State program. This requirement has been included to assist with
targeting enforcement efforts.
The Agency wants to protect against lead abatement related risks to
workers, the environment, and any individuals who may remain in a unit
during abatement. The Agency believes that the Occupational Safety and
Health Administration's (OSHA) May 4, 1994 Interim Final Rule, Lead
Exposure in Construction, will adequately protect all workers engaged
in lead-based paint abatement. The Agency is currently working closely
with OSHA to ensure that workers employed by State and local
governments, and therefore not covered by the OSHA regulation, will be
covered under this proposed regulation in States without OSHA-approved
State plans.
In its interim rule, OSHA reduced the permissible exposure limit
(PEL) from 200 g/m3 as an 8-hour time weighted average
(TWA) to an 8-hour TWA of 50 g/m3. The OSHA interim rule
also includes a list of three categories of tasks that are commonly
known to produce exposures above the PEL. The performance of the tasks
within these categories automatically triggers basic protective
provisions that mandate the use of particular types of respiratory
protection unless air monitoring is conducted to determine that
protection is not required.
Although not currently part of this proposed regulation, the Agency
is considering prohibiting certain work practices, due to the potential
risk of lead contamination posed by these practices to workers and/or
the environment. The following work practices are being considered for
prohibition during the abatement of lead-based paint in target housing:
i. Open flame burning of painted surfaces.
ii. Dry scraping or sanding of painted surfaces.
iii. The use of heat guns on painted surfaces for abatement without
proper protection.
These practices have been singled out because of the potential risk
of exposure to lead-contaminated dust and toxic fumes. The Agency is
seeking comments and/or data related to exposure to lead-contaminated
dust and fumes from these or other abatement work practices.
Following the completion of an abatement, post-abatement soil and
dust clearance testing would have to be conducted by a certified
inspector technician or an inspector/risk assessor according to the
procedures in proposed Sec. 745.228(c)(9) for dust sampling, and
proposed Sec. 745.086(c)(10) for soil sampling. Exterior dust and soil
clearance levels would also have to be evaluated after the lead-based
paint abatement of exterior walls.
The inspector/risk assessor would evaluate the results of the
clearance testing to determine if the clearance levels have been met.
It is also recommended that there be no economic relationship between
the inspector technician or inspector/risk assessor and persons engaged
in abatement due to conflict-of-interest concerns. The Agency is
interested in comments on the burden of requiring that the clearance
determination being made by the inspector/risk assessor, as opposed to
the abatement supervisor.
The inspector/risk assessor should compare the residual lead dust
level (as determined by the laboratory analysis) from each dust sample
with the clearance levels for lead in dust on floors, window sills,
window wells, and exterior surfaces, as established in the HUD
Guidelines for the Evaluation and Controls of Lead-Based Paint Hazards
in Housing. The Agency may in the future establish clearance levels
pursuant to section 403 of TSCA, and if so, then these levels will be
applicable.
If a unit fails clearance testing, the unit will be recleaned
followed by repeating clearance procedures. In addition, the hazard
control strategy may need to be reexamined and appropriately adjusted
or improved if clearance levels continually fail to meet prescribed
levels.
The potential for soil contamination, following exterior lead-based
paint abatement activities, is also a concern of the Agency. The
proposed approach to dealing with this problem is the comparison of
pre- and post-abatement soil lead levels to determine what soil lead
level should be achieved for clearance following an abatement. The
testing protocol for soil in proposed Sec. 745.228(c)(10) includes the
sampling of soil from the dripline and foundation areas as well as any
children's play areas. To determine if post-abatement soil lead levels
(using the above-mentioned sampling methods) have increased at a
statically significant level, the Agency is proposing that a
statistical analysis, such as a paired student T-test be used. If the
soil lead levels increase at the 95 percent confidence limit, then the
soil must be remediated back to the pre-abatement lead level, or the
soil must be abated following the standards in proposed
Sec. 745.228(j). If there is no significant increase at the 95 percent
confidence limit, then no remediation or abatement is necessary.
Reports and recordkeeping play an essential role in tracking and
monitoring the effectiveness and safety of lead-based paint hazard
abatement in target housing. The certified supervisor is responsible
for completing the abatement report as described in proposed
Sec. 745.228(c)(12).
Records would be maintained by the building owner and the persons
conducting the abatement activity for at least 3 years. These records
will be subject to the disclosure and recordkeeping requirements
promulgated under section 1018 of Title X.
The proposed soil abatement procedures in Sec. 745.228(j) of the
regulatory text would require the removal of soil to a depth determined
by the inspector/risk assessor and replacement of contaminated soil
with non-contaminated soil. If contaminated soil is to be replaced with
non-contaminated soil, the inspector/risk assessor will determine the
source of soil that is to be used as a replacement. Since most soil has
naturally occurring background levels of lead, replacement soil should
contain levels that are not hazardous to human health or the
environment. The Agency feels that the inspector/risk assessor has the
experience necessary to chose an appropriate source of replacement
soil.
As an alternative to removal and possible replacement, the
contaminated soil shall be permanently covered. Examples of a permanent
covering include pavement or concrete. Grass or other landscaping
material are not considered permanent covering.
A written abatement report would also be prepared by the supervisor
or planner/project designer, (depending on the size of the project)
that provides a written description of the abatement and presents the
results of the clearance testing. The abatement report would also be
subject to the disclosure and recordkeeping requirements of the
regulation developed under section 1018 of Title X.
F. Management of Waste From Target Housing Lead Abatement Activity
The Resource Conservation and Recovery Act (RCRA) establishes a
comprehensive Federal program to regulate the handling of solid wastes
under 42 U.S.C. sections 6901-6992k. RCRA Subtitle C creates a cradle-
to-grave regulatory structure for the treatment, storage, and disposal
of hazardous waste (42 U.S.C. sections 6921-6939b). RCRA Subtitle D
governs the disposal of nonhazardous solid waste (42 U.S.C. sections
6941-6969a). The RCRA regulatory structure requires generators to
determine whether their solid wastes are hazardous wastes regulated
under RCRA Subtitle C. EPA has promulgated a rule under RCRA which sets
forth criteria for determining whether certain solid wastes or debris
are hazardous wastes. One of the characteristics of hazardous wastes is
toxicity. To determine if a solid waste is a toxicity characteristic
hazardous waste, it should be tested for its toxicity characteristic
pursuant to 40 CFR 261.24. The Toxicity Characteristic (TC) regulatory
limit for lead is 5 parts per million in the leachate from the test
protocol.
When abating lead paint, different types of solid waste are
generated which may be subject to RCRA hazardous waste regulations. EPA
is concerned that the application of RCRA hazardous waste regulations
to these wastes may unnecessarily hamper lead abatement. The Agency
wishes to minimize potential regulatory impediments thus facilitating
lead paint abatement in residences where children and other individuals
may be at risk. EPA is currently evaluating options for modifying RCRA
regulations so that lead abatement proceeds expeditiously while
ensuring safe and effective management and disposal of abatement
wastes. Under a separate rulemaking, EPA plans to issue a proposal
addressing lead abatement wastes.
G. Identification of Lead-Based Paint in Public Buildings
Sections 745.228 (a)(1) through (a)(7)(i) of the regulatory text
proposes standards that would be used for the identification of lead-
based paint in public buildings. Because children make up a significant
number of the occupants in target housing and public buildings, which
include day-care centers, schools, museums, and churches, these
standards are the same as those proposed for target housing. A second
reason for utilizing the same standards is the similarity of building
and structural components in target housing and public buildings.
Although many public buildings contain structural steel components,
such as steel frames, these are covered for fire protection and
cosmetic reasons with materials that are similar to those used in
target housing. Given the similarity of materials presenting exposure
risks to occupants, EPA believes that persons seeking to identify lead-
based paint in public buildings can use the same inspection methods
(such as XRF analysis) as those used in target housing.
Under proposed Sec. 745.228 (d)(2), all information collected from
the identification of lead-based paint would have to be maintained by
the owner of the public building tested for a period of not less than 3
years.
H. Risk Assessment for Public Buildings
In addition to the structural similarities between public buildings
and target housing, a high probability exists in certain public
buildings (e.g., day care centers and schools), as in target housing,
that children will be present and potentially exposed to lead-based
paint hazards. Although, TSCA Title IV does not expressly require EPA
to establish a risk assessment standard for public buildings, the
Agency has decided for public health reasons to propose such a standard
in this regulation. The Agency believes that regulating the conduct of
a risk assessment in public buildings is implied in the definition of
``deleading'' in section 402(b), which includes planning of lead
elimination activities. The Agency believes that without a proper risk
assessment, there is no assurance that effective abatements can be
conducted in public buildings.
The objective of a risk assessment is to determine the existence,
nature, severity, and location of lead-based paint hazards and identify
appropriate hazard reduction steps. Given the structural similarities
between target housing and public buildings, this proposed regulation
provides similar protocols to those required for conducting risk
assessments in target housing. The Agency is specifically requesting
comment on this proposed approach.
Under proposed Sec. 745.228(e)(2), records would have to be
maintained by the building owner and persons conducting the abatement
and all information collected must be maintained by the owner of the
building tested for a period of not less than 3 years.
I. Abatement in Public Buildings
The proposed standards in Sec. 745.228(c)(1) through (c)(9)(iv)(D)
and (c)(11) through (c)(16) of the regulatory text would also be
applicable to abatement in public buildings as defined by this proposed
rule. Section 402(b) of TSCA identifies abatement-like activities
associated with public buildings using the term ``deleading.'' Because
both terms are defined in Title IV in terms of the ``elimination'' of
lead-based paint hazards, for purposes of this proposed regulation, the
Agency is treating the two terms, ``abatement'' and ``deleading,'' as
if they were synonymous. The Agency believes that abatement activities
in public buildings and methods of measuring protection for their
workers, occupants, and the environment should be similar to those for
target housing.
Under proposed Sec. 745.228(f)(2), records would have to be
maintained by the building owner and persons conducting the abatement
and all information collected must be maintained by the owner of the
building tested for a period of not less than 3 years.
Management of waste from lead-based paint abatement activities in
public buildings, including schools and day-care centers, is another
area of concern to EPA. Wastes generated from lead-based paint
activities (e.g., abatement and deleading) are currently, depending
upon the results of the TC analysis, covered by RCRA hazardous waste
regulations. As discussed in unit VIII.F. of this preamble, EPA is
evaluating options for modifying existing RCRA regulations to eliminate
potential impediments to lead abatement, while ensuring safe and
effective management and disposal of such wastes.
J. Demolition in Public and Commercial Buildings and Superstructures
Under Sec. 745.228(g)(1), the certified supervisor would be
required to collect any historical information on the uses of lead-
based paint in a building or superstructure that would be demolished.
The proposed standards for demolition are applicable only when the
deleading of components prior to destruction of the facility occurs. If
deleading is conducted as a part of the demolition activity, the
standards under Sec. 745.228(i)(1) through (7) are applicable.
Additionally, the conduct of lead-based paint activities would
require a hazardous waste determination pursuant to 40 CFR 262.11 prior
to demolition. All demolition waste would be treated in accordance with
RCRA.
K. Identification of Lead-Based Paint in Commercial Buildings and
Superstructures
The proposed standards in Sec. 745.228(h)(1) through (h)(4) of the
regulatory text describe the standards for the identification of lead-
based paint on steel superstructures and commercial buildings.
Based on information received from professional organizations that
are involved in steel structure deleading activities, EPA believes: (1)
That maintenance and painting records are available more often in a
commercial setting than in target housing or public buildings; (2) that
processes for lead identification in commercial buildings would be more
similar to those used in superstructures than to those used in target
housing because unenclosed metal components are a primary architectural
feature of commercial buildings such as warehouses; and (3) the purpose
of identifying lead is inherently different in commercial and
superstructure settings from that in target housing settings. Unlike
target housing, the purpose of identifying lead hazards in commercial
and superstructure settings is not to remove the lead-based paint
because it may pose a hazard to occupants. Instead, the purpose is to
identify a potential hazard to workers doing building or structural
maintenance, and the environment.
Paint (lead paint included) removed from components in commercial
buildings and superstructures, is generally removed as part of routine
maintenance on those components. The supervisor should determine if
lead-based paint exists prior to starting work to minimize exposures to
workers. Given the toxicity of lead, sampling to determine the presence
of lead-based paint is commonly practiced prior to maintenance work on
superstructures and in commercial settings.
These identification practices include obtaining relevant,
available historical information on the use of lead-based paint for a
structure or building. Previous project specifications or inspection
reports may provide the necessary information. If the use of lead-based
paint cannot be conclusively ruled-out, limited sampling would be
conducted by a certified supervisor according to proposed
Sec. 745.228(h)(2).
Since the Federal Highway Administration (FHWA) ban on the use of
lead-based paint on bridges in 1980, many States have required the use
of lead substitutes for primary coatings on bridges. Given this
requirement, the frequency with which bridges are repainted raises some
fundamental questions about recordkeeping requirements. The Agency is
proposing that all information collected from the identification of
lead-based paint on steel structures such as bridges, would be
maintained by the owner of the structure tested until such a time that
the structure, or portion of the structure is to be repainted. This
proposed requirement is based on the variable frequency with which
steel structures are generally repainted and maintained. The Agency is
requesting comment on this requirement to maintain records.
L. Deleading of Lead-Based Paint in Commercial Buildings and
Superstructures
The proposed standards for deleading of commercial buildings and
superstructures are found in Sec. 745.228(i)(1) through (i)(8) of the
regulatory text. Given the similarities between superstructures and
commercial buildings described earlier, the Agency believes that
deleading activities and methods of ensuring the protection of workers,
occupants and/or individuals within the vicinity, and the environment
should also be similar to those used for superstructures.
A deleading plan would have to be completed by a certified
supervisor prior to initiating deleading activities. This plan would
address worker protection, as well as environmental protection issues.
The Agency is concerned about the risk to workers and the
environment due to deleading activities in commercial buildings and
steel structures. As with all other abatement and deleading activities,
the Agency is relying on the May 4, 1994 Interim Final OSHA rule, Lead
Exposure in Construction. For a more complete discussion of these
standards see the OSHA requirements at 29 CFR part 1926.
The Agency is also considering prohibiting open flame burning of
painted surfaces; the dry scraping or sanding of painted surfaces; and
the use of heat guns on painted surfaces for deleading on
superstructures and commercial buildings because of the potential risk
of lead contamination to workers and/or the environment posed by these
practices. The Agency is interested in comments on whether it should
prohibit these practices.
Waste generated when abating commercial buildings and
superstructures may be subject to RCRA Subtitle C hazardous waste
regulations and should be handled accordingly.
Recordkeeping requirements for deleading in commercial buildings or
on superstructures with lead-based paint are proposed in
Sec. 745.228(i)(6). The report described in Sec. 745.228(i)(6) shall be
maintained by the owner or oversight agency until such a time that the
structure, or portion of the structure is to be repainted.
The removal of lead-based paint in commercial buildings and
superstructures, could potentially affect water quality through two
routes. The first route is by non-point source contamination, e.g.,
lead-contaminated dust that is deposited as a result of deleading
activities is transported overland to waterbodies through stormwater
runoff. The second route is by point source discharge, e.g., a direct
deposition of lead-based paint or dust to a waterbody, or from
channelized stormwater runoff.
Non-point source contamination may be controlled through compliance
with RCRA (40 CFR 3004(d) and 268.35(a)), which includes settled dust
and debris from deleading activities. RCRA 40 CFR 268.35(a) prohibits
the land disposal of waste which exceed the toxic characteristic
regulatory limit for lead. In addition, guidance issued by EPA pursuant
to the Coastal Zone Act Re-authorization Amendments (CZARA) section
6217(g) identifies a management measure for the operation and
maintenance of roads, highways, and bridges in coastal States to
incorporate requirements for pollution prevention procedures to reduce
pollutant loadings to surface waters.
Removal of lead-containing materials from steel bridges has
resulted in inadvertent discharges of lead compounds that exceeded
State water quality criteria, and showed the potential for long-term
environmental impacts based on sediment sampling (``Long Term
Environmental Evaluation of Paint Residue and Blast Cleaning Abrasives
from the Middle River Bridge Repainting Project,'' California State
Department of Transportation, 1982). Existing federal regulations on
steel structural projects are being applied on a site-specific basis.
However, differences between States' water quality standards and
subsequent implementation of those standards indicates a need for a
consistent water quality policy with respect to discharges of lead into
waterways during removal of lead-containing materials from steel
structures. This is of particular importance due to the number of
contractors who work in multiple State jurisdictions, as well as the
occurrence of bridge structures which span interstate waters.
Under the Clean Water Act's (CWA) National Pollution Discharge
Elimination System (NPDES) program and interpretive case law, paint
removal devices used on bridges/superstructures, such as wet and dry
abrasive blasters, high pressure waterjet blasters, and sponge-jet
blasters, may constitute point sources. Therefore, the CWA mandates
that NPDES permit applications must be submitted to either EPA or
States approved to administer the NPDES program prior to any discharge
[40 CFR 122.21(c)]. Of course, if there is no discharge or potential
discharge to waters of the U.S., no NPDES permit is required.
Individual sources are required to obtain permits, but EPA believes
that general permits may be an appropriate mechanism to cover bridge
stripping and painting discharges. According to 40 CFR 122.28
(a)(2)(ii), the sources covered in a general permit must involve the
same types of operations, discharge the same types of wastes, require
the same operating conditions, require similar monitoring, and be more
appropriately controlled under a general permit than under individual
permits. General permits reduce the administrative burden on both the
permitting agency and the permittee.
EPA requests comment on the best technologies available to avoid or
eliminate releases of lead to the air, land, or water, and studies
showing the amounts of releases that occur with those technologies. EPA
can then suggest operating conditions or discharge limits which may be
appropriate for general permits.
M. Applicability of RCRA to Lead-Based Paint Wastes from Public and
Commercial Buildings and Superstructures
Waste generated by the lead-based paint abatement contractors when
removing lead paint from public and commercial buildings and
superstructures may be subject to RCRA Subtitle C hazardous waste
regulations. The Toxicity Characteristic (TC) regulatory limit for lead
is 5 parts per million in a leachate derived by utilizing the Toxic
Characteristic Leaching Protocol (TCLP). The lead-based paint waste
generator must determine if the waste generated is hazardous by either
testing a representative sample of the waste in accordance with 40 CFR
part 261 subpart C, or an equivalent method approved pursuant to 40 CFR
260.21, or by applying knowledge of the hazard characteristic of the
waste in light of the materials or process used. If the representative
test sample exceeds the TC regulatory limit, the waste must be managed
as a RCRA hazardous waste, and the contractor would be a hazardous
waste generator and must, therefore, comply with 40 CFR part 262
requirements. In addition, the training requirements for generators of
lead-based paint waste as discussed in this preamble are applicable.
EPA has different requirements for generators of different
quantities of hazardous waste. For example, the regulations
conditionally exempt small quantity generators of 100 kg or less
hazardous waste per calendar month, but it is very unlikely that waste
generated during the deleading or abatement work on larger buildings
and superstructures would generate less than 100 kg. Therefore, many of
these contractors would be classified as ordinary generators and
therefore would be subject to 40 CFR parts 262 through 266, 268, and
270 requirements.
If the lead-based paint waste is determined to be a hazardous waste
and is captured, it could be managed on-site, most likely through
storage or treatment. This can be technically more challenging and may
require a hazardous waste treatment permit pursuant to 40 CFR part 270.
One notable exception is the generator. Under this exception, a
generator may treat lead-contaminated waste or lead-contaminated debris
in containers or tanks in compliance with part 265, subparts I and J,
and within the accumulation time limit of 90 days as specified in 40
CFR 262.34 (see 51 FR 10168, March 24, 1986). On August 18, 1992, EPA
promulgated the Land Disposal Restrictions (LDR) for hazardous debris
(57 FR 37194). In that rulemaking, hazardous debris is defined as solid
waste with particle size 60 mm or larger. Therefore, paint chips, paint
dust, and sludge's would not be considered hazardous debris. As part of
that rulemaking, the Agency promulgated standards for a new hazardous
waste management unit known as a containment building (40 CFR parts 264
and 265, Subpart DD), which may also be used to treat waste at the
generator facility without a permit, provided the waste is not held
longer than 90 days.
If hazardous debris is captured, hazardous debris treatment
technologies that may be used include abrasive blasting, grinding or
planing, vibratory finishing, high pressure steam, or water spraying to
meet the performance standard referred to as the ``clean debris
surface.'' Other treatment technologies include macroencapsulation or
sealing (surfacial treatment) or microencapsulation (solidifying with
portland cement or lime). Microencapsulation could be done in tanks or
containers. Hazardous debris is subject to compliance under the LDR
treatment standards. Many States are currently authorized to implement
LDR requirements pertaining to lead-based paint activities under the
Hazardous and Solid Waste Amendments of 1984.
N. Applicability of RCRA to Lead-Contaminated Soil Near Public and
Commercial Buildings and Superstructures
It is possible that, when performing lead-based paint activities
(e.g., HEPA vacuum removal or sand blasting of lead paint) on public
and commercial buildings, lead paint chips or lead dust hazardous under
the TCLP would be released and would either fall on the soil underneath
or blown down wind before reaching the ground. This constitutes
``illegal disposal'' of characteristic hazardous waste and is
prohibited under RCRA sections 3004 and 3008. Therefore, individuals
engaged in lead-based paint activities must take appropriate
precautions to contain lead dust releases during sand blasting or when
conducting activities that could potentially release significant
quantities of paint dust leading to its deposition on the soil near
public and commercial buildings or superstructures.
If the lead-based paint that is being removed exhibits the
characteristic of toxicity for lead when conducting the abatement or
deleading, it would be necessary to take steps to prevent deposition on
land by capturing lead-contaminated dust and debris. If the abatement
of deleading work resulting in land contamination is done without a
RCRA TSD permit, then this deposition would be inferred as ``illegal
disposal.'' When conducting lead-based paint activities, therefore, it
would be necessary to take steps to minimize ``illegal disposal'' by
capturing lead paint dust.
There are two issues of concern for the Agency with regard to the
enforcement of RCRA provisions for illegal disposal. These issues
involve the possible impacts on worker protection and how compliance
can be achieved given existing abatement and deleading technologies.
Comments are requested on achievable methods to protect both the
environment and workers in light of existing abatement and deleading
technology.
VIII. State Programs
A. Introduction
This unit is comprised of two parts: (1) Procedures for States and
Indian Tribes to follow in order to obtain authorization from EPA to
administer and enforce a lead-based paint activities program, and (2) a
model program that will serve as an archetype for these State and
Tribal programs.
Section 404(a) of Title IV of TSCA provides that any State which
seeks to administer and enforce the standards, regulations, or other
requirements established under section 402 or 406 may submit an
application to the Administrator for approval of such program. Section
404(b) states that the Administrator may approve such an application
only after finding that the State program is at least as protective of
human health and the environment as the Federal program established
according to the mandate of section 402 or 406 of TSCA and that it
provides adequate enforcement. The procedures for submitting a State
application are found in proposed Sec. 745.325 of the regulatory text
and are discussed in more detail below.
Section 404(d), directs the Agency to promulgate a model State
program which may be adopted by any State which seeks to administer and
enforce such a program. Given that section 404(a) requires that an
authorized State program be at least as protective as the Federal
program, the Agency expects that a State program seeking authorization,
would resemble, in significant respects, the Federal program, and
further, that the regulations found at proposed Secs. 745.225 through
745.237 would serve as an appropriate model for such a State program.
Therefore, the Agency is at this time proposing these regulations as
the model program for the regulations developed under section 402(a) of
TSCA. The regulations for section 406 of TSCA can be found at 40 CFR
745 subpart E.
Proposed Sec. 745.225 of the regulatory text contains procedures
for the accreditation of training programs for lead-based paint
activities. Proposed Sec. 745.226 would establish procedures for the
certification of individuals engaged in lead-based paint activities,
and proposed Sec. 745.228 would establish standards for conducting
these activities.
B. Submission of State Application
Any State which seeks to administer and enforce the requirements of
this proposed regulation or the regulation developed under section 406
of TSCA would have to submit an application to the Administrator
according to the procedures contained in proposed Sec. 745.325. No
other political subdivision (e.g. cities, towns, counties, etc.) other
than States, as defined by section 3 of TSCA, and Indian Tribes, are
eligible for authorization under this program. Following notice and an
opportunity for a public hearing, EPA would approve a State application
within 180 days, if EPA finds that the State program is at least as
protective of human health and the environment as the Federal program,
and it provides adequate enforcement.
Before developing an application for authorization, a State would
publicly disseminate a notice of intent to seek such authorization and
provide an opportunity for public hearing. A State application would
contain a copy of the regulations and/or legislation establishing the
State program, the name of the State agency that will administer and
enforce the program, as well as information on the resources that the
State intends to devote to the program, and an assurance that the State
has or will have the legal authority necessary to carry out the
program.
Pursuant to section 404(a) of TSCA, at the time of submitting such
an application, the State may also certify to the Administrator that
the State program meets the requirements of section 404(b)(1) and
404(b)(2) of TSCA. If this certification, or certificate of compliance,
is contained in a State's application, the State program shall be
deemed to be authorized by EPA, until such time as the Administrator
withdraws the authorization. This certification would take the form of
a letter from the Governor or Attorney General to the Administrator,
and would include detailed written justification for concluding that
the State's program is at least as protective as the Federal program.
If the application does not contain such certification, the State
program would be considered authorized only after the Administrator
approves the State application.
EPA invites States to submit their authorization applications at
any time after the effective date of the rule.
1. EPA approval. Within 180 days following submission of the
application, the Administrator would approve or disapprove the
application.
In the case of a State that provides a certificate of compliance,
the program would be immediately deemed approved. In the case of a
State application which does not contain a certification of compliance,
the Administrator would approve a State program only if, after notice
and after opportunity for public hearing, the Administrator finds that:
i. The State program is at least as protective of human health and
the environment as the Federal program contained in Secs. 745.225
through 745.237 of the proposed regulatory text, or in subpart E
``Residential Property Renovation,'' has been proposed in the Federal
Register separately from this regulation.
ii. The State program provides adequate enforcement.
The Agency would notify the State in writing of the Administrator's
decision. Upon authorization of a State program it would be unlawful,
for any person to violate or fail or refuse to comply with any
requirements of such program.
The decision criteria above give the Agency reasonably broad
latitude in approving or disapproving State programs. Specifically, EPA
interprets the standard ``. . .at least as protective as. . .'' to mean
that a State program need not be identical to, or administered and
enforced in a manner identical to, the Federal program. The Agency
expects to receive applications for State programs that will differ in
some respects from the Federal program. The Agency will make every
attempt to accommodate these differences while following the statutory
requirement of ensuring that every State program be at least as
protective as the Federal program.
Upon notification of authorization, the designated State agency
within that State would be considered the approving authority for
purposes of training program accreditation, certification of
individuals, and enforcement of this program.
If a State does not have a State program authorized under this
section and in effect by the date which is 2 years after promulgation
of this proposed regulation, the Administrator would, by such date,
establish the Federal program under subpart Q, or subpart E, as
appropriate.
The Agency has received a number of comments from State
representatives presenting concerns related to their potential
inability to introduce legislation and promulgate regulations for an
entire training, certification, and accreditation program that would
cover target housing, public and commercial buildings, and
superstructures within the TSCA Title IV timelines. The Agency
understands these concerns and is committed to devising a program that
would promote State adoption of the program.
If a State does not have an approved program within 2 years, the
Agency would be required to establish a Federal program in that State.
However, it was the intent of Congress, and is the policy of the Agency
to encourage States to administer and enforce this program at the State
level. The Agency is seeking comment on how to best achieve this goal
within the 2-year time frame mandated by TSCA while ensuring that all
lead-based paint activities will be adequately regulated.
Additionally, the Agency has received comment that there may be a
need for Federal enforcement programs to be in place even before State
programs are enacted and authorized. It has been noted to the Agency
that there may be the potential for egregious or widespread releases of
lead-containing materials by ``unregulated'' abatement actions during
the interim before State programs become effective. The Agency is
confident that such situations can be effectively addressed through the
application of a combination of existing Federal, State and local
statutes and regulations. However, the Agency seeks comment on whether
some or all of the requirements of the Federal program should be made
immediately effective following promulgation of the final rule, pending
authorization of State programs.
2. Withdrawal of authorization. As required by section 404(c) of
TSCA, if a State is not administering and enforcing its authorized
program in compliance with the standards, regulations, and other
requirements of Title IV of TSCA, including section 404(b)(1) and
(b)(2), the Agency would so notify the State and, if corrective action
is not completed within a reasonable time, not to exceed 180 days, the
Administrator would withdraw authorization of such program and
establish a Federal program pursuant to Title IV of TSCA. Procedures
for withdrawal of authorization can be found at proposed
Sec. 745.325(h) of the regulatory text.
C. Model State Program
Section 404(d) of TSCA, directs the Agency to promulgate a model
State program which may be adopted by any State which seeks to
administer and enforce a lead-based paint activities program. Given
that section 404(a) requires that an authorized State program be at
least as protective as the Federal program, the Agency expects that a
State program seeking authorization, would resemble, in significant
respects, the Federal program. Therefore, the entire Federal program
for lead-based paint activities found at proposed Secs. 745.225 through
745.237 is being proposed as the Model State Program.
Section 745.225 of the proposed regulatory text contains procedures
and minimum requirements for the accreditation of lead-based paint
activities training programs for workers, supervisors, inspectors and
planners, and other individuals involved in lead-based paint
activities. These requirements include: (1) Minimum requirements for
the accreditation of training providers, (2) minimum training
curriculum requirements, (3) minimum training hour requirements, (4)
minimum hands-on training requirements, (5) minimum trainee competency
and proficiency requirements, and (6) minimum requirements for training
program quality control.
Proposed Sec. 745.226 contains procedures and requirements for the
certification of individuals engaged in the following activities:
target housing and public building inspector technicians, inspector/
risk assessors, supervisors, planner/project designers, and workers;
and commercial building and superstructure supervisors and workers.
These procedures include specific training and, when appropriate,
experience/education prerequisites that individuals seeking
certification would have. Additionally, this section specifies
requirements for the certification of firms involved in inspection and
abatement activities.
Proposed Sec. 745.228 contains standards for conducting these
activities. The standards for lead-based paint activities are divided
into three separate categories: target housing, public buildings, and
commercial buildings and steel structures. In target housing, the
standards cover inspection, risk assessment, and lead abatement. The
second set of standards, for public buildings, cover the inspection,
risk assessment, abatement, and demolition. The final set of standards
are for industrial settings. These include activities such as
identification, deleading, and demolition for commercial buildings and
superstructures.
The Agency hopes that this model will be especially useful to the
many States that do not currently have an existing lead-based paint
activities program. The Agency believes that adoption of this program
would effectively reduce the risks of lead-based paint activities.
However, the State program need not duplicate the Federal program in
order to receive authorization from EPA. A State may choose to develop
its own program, and it would be authorized if it is as protective as
the Federal program.
1. Major program elements When developing a lead-based paint
activities program, a State may choose to use the Federal program as a
specific model or it may develop its own program. For States that
choose not to use the Federal program as a specific model, the Agency
has identified several major program elements below that a State
program must have if it seeks to receive authorization from the Agency
to administer and enforce the program.
To administer and enforce such a program successfully, a State must
develop the appropriate infrastructure. A State program must establish
a State agency or agencies, or designate an existing State agency or
agencies to implement, administer, and enforce the State program. Given
the scope of the program, it is likely that more than one State agency
would be involved in the implementation and enforcement of this
program. States are required to identify one State agency or
organization within a State (the primary agency) that would serve to
coordinate the activities of these agencies. States are also encouraged
to, whenever possible, utilize existing State and local certification
and accreditation programs and procedures.
The State program would require the certification of individuals
and firms engaged in lead-based paint activities. The program would
establish training requirements for individuals engaged in lead-based
paint activities. The training component of a State's program would
require that training be provided by an accredited training program.
Proposed Sec. 745.226 details the certification program developed by
the Agency which may be adopted by a State, or it may be used as a
model for States developing their own certification program.
The State program would contain regulations or procedures for the
accreditation of training programs. The regulations or procedures would
contain the following: (1) Minimum requirements for the accreditation
of training programs; (2) minimum training curriculum requirements; (3)
minimum training hour requirements; (4) minimum hands-on training
requirements; (5) minimum trainee competency and proficiency
requirements; and (6) minimum requirements for training program quality
control. The State accreditation program would contain the minimum
requirements of the accreditation program found at proposed
Sec. 745.225 of the regulatory text.
The State agency would establish standards for performing lead-
based paint activities, taking into account reliability, effectiveness,
and safety. The Federal program at proposed Sec. 745.228 would
establish specific standards for performing these activities which a
State program may choose to adopt. A State may also develop its own
standards for some or all of these activities, as long as they are
judged by EPA to be at least as protective as the Federal standards.
For instance, at proposed Sec. 745.228(b), the Agency has developed
procedures for conducting a risk assessment in target housing. The goal
of a risk assessment is to determine and report the existence, nature,
severity, and location of lead-based paint hazards in residential
dwellings. Proposed Sec. 745.228(b) specifically describes a method of
conducting such an assessment, and a State may choose to adopt this
standard. A State may also develop its own procedures that achieve the
same goal. This is the case for all of the standards in this
regulation. In general, the Agency has developed specific standards
that States may choose to adopt, or they may utilize their own
standards, as long as they are at least as protective as the EPA
standards.
The State agency or agencies would provide for the enforcement of
the State certification and accreditation program, and establish
suitable sanctions for those who fail to comply with the program
requirements. This element of a State's program is essential because
one of the Agency's two decision criteria for approval of State
programs is the adequacy of the State's enforcement program. Before
promulgation of the final regulation, the Agency anticipates developing
a compliance and inspection strategy that would facilitate State
implementation and provide guidance in determining that the State
programs provide adequate enforcement. The State agency or agencies
must have the authority to charge certification and accreditation fees.
Section 402(a)(3) of TSCA states that:
The Administrator (or the State in the case of an authorized
State program) shall impose a fee on:
(1) persons operating training programs accredited under this
title; and
(2) lead-based paint activities contractors certified in
accordance with [section 402(a)] paragraph (1).
The fees shall be established at such a level as is necessary to
cover the costs of administering and enforcing the standards and
regulations under this section [section 402] which are applicable to
such programs and contractors. The fee shall not be imposed on any
State, local government, or nonprofit training program. The
Administrator (or the State in the case of an authorized State
program) may waive the fee for lead-based paint activities
contractors under subparagraph A) for the purposes of training their
own employees.
EPA will determine what fees it will impose pursuant to section 402
(a)(3) before the Agency begins to enforce and administer the Federal
program in any State.
2. Reciprocity. EPA strongly encourages each State to establish
reciprocal arrangements with other States with authorized State
programs. Such arrangements might address cooperation in certification
determinations, the review and accreditation of training programs,
candidate testing and examination administration, curriculum
development, policy formulation, compliance monitoring, or the exchange
of information and data. The benefits to be derived from these
arrangements include a potential cost-savings from the reduction of
duplicative activity and attainment of a more professional workforce as
States are able to refine and improve the effectiveness of their
programs based upon the experience and methods of other States.
There are several elements of the EPA training and accreditation
program at proposed Secs. 745.225 through 745.226 that are intended to
facilitate interstate reciprocity. The first, and most critical, is the
certification examination. The examination would serve to ensure that
each individual who is certified under this program has a minimum level
of knowledge in his or her particular discipline. At the same time, the
certification examination development procedures would allow a State
the flexibility to either adopt a ``standardized'' examination, or
develop its own examination according to ``standardized'' guidelines.
As an additional element to facilitate interstate reciprocity, the
Agency has proposed relatively specific minimum curriculum
requirements. A third element is the inclusion of a refresher training
course in the Federal program. Successful completion of a State
accredited refresher course may serve as an ideal requirement for
individuals seeking a reciprocal certification in another State.
D. Indian Lands
This proposal also addresses implementation of sections 402 and/or
406 of TSCA on Indian lands. For the most part, implementation of
section 402 and 404 would be primarily a State responsibility. EPA
would enforce a Federal program only if it does not approve a State
program or if it finds that a State program is inadequate. While
Congress did not specifically address implementation of Title IV on
Indian lands, EPA has determined that proper lead abatement is as
important for Indian Tribes as for anyone else. Accordingly, EPA has
decided to treat Indian Tribes as if they were States for the purpose
of administering and enforcing lead programs under sections 402 and
404.
1. Authority. States generally are precluded from enforcing their
civil regulatory programs on Indian Reservations, absent an explicit
Congressional authorization or State-Tribal agreement to do so.
California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 and
n.18 (1987). Furthermore, Congress has not created an explicit role for
Tribes or the appropriate Indian Governing Body to implement Title IV,
as it has done under most other major environmental statutes amended
since 1986 (Safe Drinking Water Act, CERCLA, Clean Water Act, Clear Air
Act). The term Indian Governing Body is used throughout this proposal
to mean the governing body of the Tribe, band or group of Indians
subject to the jurisdiction of the U.S. and recognized by the U.S. as
possessing powers of self government.
There exist three principal options for effectively ensuring
comprehensive implementation of Title IV on Indian Reservations: (1)
Allow Tribes to apply for approval of section 402 or 406 programs in
the same manner as States under this proposal; (2) make determinations
on a case-by-case basis whether the State has adequate authority to
ensure compliance with section 402 or 406 on Indian Reservations; and
(3) make a blanket determination that States lack the authority to
implement their programs on Indian Reservations and that EPA would
enforce sections 402 or 406 directly on Indian Reservations in light of
this determination.
EPA believes that the preferred approach would be to use a
combination of options 1 and 2. Under this approach a State may
propose, as part of its program approval application, to ensure section
402 or 406 compliance on Indian Reservations. The State would have to
demonstrate adequate authority to ensure compliance with section 402 or
406 on the Indian Reservations. The burden the State would meet to
demonstrate its authority to regulate on Indian Reservations is a high
one, however. This type of demonstration of State authority over Indian
Reservations is allowed, for instance, under regulations for the
Underground Injection Control (UIC) Program of the Safe Drinking Water
Act as well as several other EPA programs. 40 CFR 125.24(b). See e.g.,
45 FR 33378 (1980); 53 FR 43080 (1988).
In the alternative, an Indian Governing Body could apply for
authorization to run a section 402 or 406 program in the same manner as
a State pursuant to the procedures specified in this proposal. Where it
does not do so, EPA would enforce section 402 or 406 directly. Allowing
for Tribal assumption of the section 402 or 406 program is consistent
with EPA's Indian Policy and existing practice for other environmental
programs.
EPA believes that adequate authority exists under TSCA to allow
Tribes to apply for and receive authorization to run Title IV programs.
EPA's interpretation of TSCA is governed by the principles of Chevron.
USA v. NRDC, 467 U.S. 837 (1984). Where Congress has not explicitly
stated its intent in adopting a statutory provision, the Agency charged
with implementing that statute may adopt any interpretation which, in
the Agency's expert judgment, is reasonable in light of the goals and
purposes of the statute as a whole. Id. at 844. EPA believes that
Interpreting TSCA to allow Tribes to apply for program authorization
satisfies the Chevron test.
While some tribes may entirely develop their own lead programs,
other tribes may look to existing programs as a starting point. Today's
action does not require tribes to develop lead programs wholly from
scratch. For example, a tribe could negotiate a cooperative agreement
with an adjoining State to jointly plan and administer lead programs
that are appropriately tailored to individual reservation conditions
and tribal policies. Such an agreement would be subject to the review
and approval of EPA.
Another possible option includes incorporating standards from an
adjacent State as the tribe's own, with appropriate revisions that
adapt the State standards to reservation conditions and tribal
policies. Such adaptations would build on State experience and
expertise and might represent quicker and less costly ways to establish
tribal programs than developing tribal programs independently. This
technique of utilizing small-scaled adaptations of State programs would
allow tribes to build experience and expertise that could later be used
to revise existing programs, if appropriate.
Smaller tribes may also wish to form consortiums or create inter-
tribal agencies as ways to develop the necessary expertise to
administer lead programs in a cost-effective way. Aside from any formal
arrangements between tribes and States, EPA notes that the objective of
this proposed rule is to provide for the safe, effective, and reliable
abatement of lead-based paint hazards. Therefore, EPA encourages all
affected sovereigns to work cooperatively in informal capacities to
protect the public health and welfare from the serious health and
welfare effects associated with lead-based paint hazards.
Consistent with EPA's interpretation of the application of Title IV
to Indian lands, the proposed regulations would permit the Agency to
make grants to Indian Governing Bodies and States to implement
authorized Section 402 and 406 programs.
EPA specifically invites comment on its interpretation of the
implementation of section 402 or 406 of TSCA on Indian lands.
E. Effective Dates
State programs may seek authorization of their programs pursuant to
subpart Q effective date of promulgation of the final rule. Subpart L
of part 745 shall apply in any State that does not have an authorized
program under subpart Q, effective 2 years after promulgation of the
final rule. In such States: (1) Training providers shall not provide,
or claim to provide training for certification without accreditation
from the Agency pursuant to Sec. 745.225 after 2 years and 180 days
after promulgation of the final rule; (2) No person shall engage in
lead-based paint activities without certification from the Agency,
pursuant to Sec. 745.226 after 3 years after promulgation of the final
rule; and (3) All lead-based paint activities shall be performed
pursuant to the standards contained in Sec. 745.228 after promulgation
of the final rule. These dates should allow training providers
sufficient time to receive accreditation, and for individuals to then
receive training from an accredited training program and obtain
certification. The Agency felt that because the standards in this
regulation are being taught in the training courses, the standards
should only be enforced after individuals have received training and
obtain certification. Upon promulgation, the Agency will assess the
number of programs that it must administer. If the demand for
accreditation and certification is expected to greatly exceed the
Agency's capability to approve training providers and certify
individuals, the enforcement deadlines may be revised following
appropriate public notice.
The timelines for implementation of the various requirements of
this regulation should serve as a model for State program development,
and States are encouraged to adopt these intervals.
F. Regulatory Assessment
1. Introduction. EPA has prepared a Regulatory Impact Analysis
(RIA) in conjunction with this proposed rule. Ideally, when conducting
an RIA, a benefit-cost analysis which measures all marginal benefits
and costs of the regulation should be performed. Although it was
possible to estimate the incremental costs, it was not possible to
estimate incremental benefits. Data limitations prevented a complete
estimate of incremental benefits: The absence of the necessary dose-
response functions precluded the estimation of certain benefit
categories (e.g., adult residential benefits and ecological benefits),
and knowledge of certain impacts (e.g., blood-lead levels with and
without training) did not allow for the estimation of the incremental
benefits associated with this proposed rule. Therefore, an alternative
approach was employed whereby total measured benefits (i.e., benefits
that have been identified and quantified) of the regulation abatements
were estimated to provide a perspective on the magnitude of the
benefits against which to assess the possibility of net benefits.
The major findings contained in the RIA are presented in this brief
summary, organized into five sections appearing below: Cost of
Regulatory Action; Benefits of Regulatory Action; Benefit-Cost
Analysis; Uncertainties and Sensitivity Analysis; and Impacts of the
Proposed Rule. The complete document, ``Title X Sections 402 and 404
Regulatory Impact Analysis,'' is available for inspection in the public
docket.
Title X, the Residential Lead-Based Paint Hazard Reduction Act of
1992, amended TSCA by adding Title IV. The purposes of Title X included
a desire to develop a national strategy to build the infrastructure
necessary to eliminate lead-based paint hazards in all housing as
expeditiously as possible. Further, the Title X sought to encourage
effective action to prevent childhood lead poisoning by establishing a
workable framework for lead-based paint hazard evaluation and reduction
and by ending the current confusion over reasonable standards of care.
Section 402, Lead-Based Paint Activities Training and
Certification, is only one of the initiatives under TSCA Title IV aimed
at fulfilling these goals. EPA is currently developing or has developed
other portions of this overall lead hazard reduction program. For
example, a required information dissemination program to inform the
public of lead-based paint hazards in the home during renovation has
been proposed under section 406. A regulation developed under section
1018 of Title X will soon be proposed and would require the
distribution of this pamphlet at the time of real estate transfer,
would require the disclosure of any known lead-based paint hazards and
would allow the purchaser of real estate a 10-day period to conduct a
risk assessment of the property. Benefits of these actions flow from
providing information describing lead hazards to home owners renovating
homes, home buyers, and renters. Costs of these actions include
preparing and disseminating information.
Section 403 of TSCA requires that the Agency shall ``. .
.promulgate regulations which shall identify. . .lead-based paint
hazards, lead-contaminated dust, and lead-contaminated soil.'' The
section 403 regulations will represent EPA's determination of those
conditions that cause exposure to lead in paint, residential soil and
dust that would result in adverse human health effects. Benefits and
costs accrue from the abatement of the identified lead-based hazards,
and lead-contaminated dust and soil.
Although each of these initiatives have positive and negative
impacts associated with them, the following narrative focuses on those
impacts resulting from the implementation of sections 402 and 404.
2. Cost of regulatory action. The total estimated incremental costs
associated with this proposed rule are presented in Table 1. Cost
estimates are presented for two different abatement scenarios to
present a range of possible costs: (1) Assuming abatement occurs
whenever X-ray Florescence (XRF) Analysis indicates a lead in paint
level of greater than 1 (XRF 1) and 500 parts per million
(ppm) or more lead in soil (Scenario 1); and (2) assuming abatement
occurs whenever X-ray Florescence Analysis indicates a lead in paint
level of greater than 6 (XRF 6) for paint and 2,000 ppm or
more lead in soil (Scenario 2).
Lead-based paint activities take place in target housing, as well
as in public buildings constructed before 1978, commercial buildings,
and steel structures. Maintenance of steel structures such as bridges,
water tanks, and electrical towers may also involve activities affected
by the proposed rules. Estimates of the costs of performing lead-based
paint activities pursuant to the proposed standards were based on a
number of factors, including the number of lead-related inspections,
risk assessments, and abatement activities and the unit costs
associated with such activities.
The incremental costs estimated to be incurred in association with
the proposed rule have been grouped into three categories: (a) Costs
resulting from the imposition of the standards for conducting lead-
based paint activities; (b) costs resulting from the training and
certifying of individuals engaged in lead-based paint activities; and
(c) costs of establishing and operating State or Federal programs to
administer and enforce the standards, regulations, or other
requirements established under this proposed rule. For each of these
three categories of costs, total incremental costs were estimated
separately for the first year following promulgation (1994), and the
present value for a 50-year stream of costs discounted at 3 percent. (A
50-year stream was used because it was thought to provide a reasonable
estimate of the average life of a home, and a period beyond which
discounted costs would have little impact on total costs).
Under Scenario 1, total first-year incremental costs were estimated
to be approximately $1.4 billion, while total incremental costs,
discounted at 3 percent over 50 years, were estimated to be $10.6
billion. Under Scenario 2, total first year incremental costs were
estimated at $.8 billion and total incremental costs, discounted at 3
percent over 50 years, were estimated at $6.2 billion. As may be
discerned from Table 1, by comparing cost estimates for the two
scenarios presented, total costs decrease as abatement cut-offs
increase (paint and soil lead concentrations), since fewer structures
and less soil would be abated.
As demonstrated in the accompanying RIA, the standards for
conducting lead-based paint activities are the main source of costs,
accounting for approximately 80 percent of the total incremental costs
under both scenarios, due largely to identification and inspection
requirements and soil abatement. Under Scenario 1, the incremental cost
of public building identification is the greatest expenditure,
accounting for 27 percent of the total incremental costs in the first
year of implementation and approximately 23 percent of the $10.6
billion total incremental cost. Under Scenario 2, public building
identification is again the greatest expenditure accounting for 47
percent of total incremental costs in the first year of implementation
and approximately 39 percent of the $6.2 billion total incremental cost
discounted over 50 years. The public building identification costs
associated with the nonresidential sector are high due to the assumed
high level of activity in this sector during the first 3 years of rule
implementation.
Training costs were estimated to be approximately 17 percent of
total discounted costs for each of the scenarios. Factors affecting the
potential magnitude of training costs are frequency and duration of
training, as well as the number of potential trainees and associated
productivity losses.
With regard to State program costs, EPA found the one-time start-up
costs to be the dominant factor. Owing to such start-up costs, total
first-year costs were estimated to be much larger than costs for any
subsequent year. In developing its total cost estimates for State
programs, EPA assumed all States would establish such programs. While
nothing in Title IV requires States to seek authorization, the costs of
EPA administration and enforcement were judged to be comparable to
State costs; thus, for the purposes of this analysis, this assumption
is believed to provide a reasonable representation of costs
attributable to section 404.
3. Benefits of regulatory action. To most accurately estimate the
benefits associated with this proposed rule, all private and social
advantages of the proposed rule's requirements would need to be
identified and quantified. In particular, the incremental risk
reduction brought about by conducting lead-based paint activities using
trained and certified individuals and complying with the standards
would need to be measured and valued as incremental benefits. Such risk
reduction would be the result of reduced lead exposure to residents of
target housing; to occupants of and visitors to public and commercial
buildings; to risk assessors, inspectors, and abatement workers; to
individuals in close proximity to lead-related activities; and to the
environment.
The total measured benefits (i.e., benefits that have been
identified and quantified) associated with complete residential
abatement, include intelligence effects on infants and children,
reductions in neonatal mortality due to decreased exposure to pregnant
residents, and benefits to workers of avoidance of the very high blood
lead levels associated with occupational exposure. (EPA also considered
benefits resulting from reduced exposure to adult residents. The
results of these preliminary calculations are included in the
sensitivity analysis below.)
Total measured benefits estimated in this manner overstate actual
benefits associated with the incremental improvement imparted by the
training, certification, and standards outlined in the proposal. EPA
believes, however, that these total measured benefit estimates when
compared to the incremental cost are sufficient to provide the basis
for an informed decision. EPA requests comment, in light of the data
limitations, on the value of this approach in evaluating the potential
effectiveness of this regulation. Further, the Agency requests the
submission of any available data that would facilitate the development
of incremental benefit values for the requirements of this regulation
as well as incremental benefits and costs of alternative regulatory
requirements.
The results of this approach are presented in Table 2. The
estimated discounted total measured benefits over 50 years range from a
low of $11.8 billion (abatement Scenario 2) up to $21.6 billion
(abatement Scenario 1). The largest category of benefits accrue in
association with children's intelligence effects, with an expected 50-
year benefit of $11 billion to $19 billion, depending on the abatement
scenario. Benefits realized in association with reductions in neonatal
mortality were estimated to range between $.8 billion and $2.6 billion,
while benefits to workers were estimated at $2.1 to $5.1 million, over
50 years. In addition, benefits to non-residential abatement workers
were estimated at $34 to $49 million.
4. Benefit-cost analysis. As shown in Table 3, total measured
benefits are approximately double the incremental costs--the estimated
incremental costs of the regulation under Scenario 2, discounted at 3
percent and summed over 50 years, is estimated to be $6.2 billion, and
the estimated total measured benefits of the regulation, discounted at
3 percent and summed over 50 years, are $11.8 billion.
Given that the incremental costs associated with the nonresidential
sector amount to nearly 58 percent of all costs attributable to the
rule and that the data limitations so severely restrict the benefit
estimations for the nonresidential sector, the base case analysis also
compares total measured benefits and incremental costs on a per
residential abatement basis to gain additional insight to the impacts
of the proposed regulation. In an effort to minimize the impact of the
above limitations on the assessment of net benefits, an additional
comparison was made between benchmark total measured benefits and
incremental costs for a single residential abatement. As shown in Table
4, if only a small portion of estimated total measured benefits, say 15
to 20 percent are attributable to the proposed rule, it is possible for
the incremental benefits to equal or exceed the incremental costs for
paint abatement activities in the residential housing sector.
A similar comparison is not possible for the nonresidential sector
because data limitations preclude benefit estimates for this sector.
This is not to imply that the benefits resulting from nonresidential
abatements are insignificant. All the benefit categories believed to
result from public and commercial and steel structure deleading are
identified in Table 3. Available information regarding the scope of
activity (and presented in the uncertainties section below) would
suggest that substantial benefits are likely to exist in the form of
other worker benefits, benefits to nearby residents, and ecological
benefits.
The estimate of the benefits would increase if all the omitted
health and ecological effects were included. Even when restricted to
the limited coverage of the effects of lead paint exposure that are
included in this analysis, it is possible that the measured benefits
associated with sections 402 and 404 will exceed the costs of the
regulations. The measured benefits of complete abatements are more than
six times the incremental costs for Abatement Scenario 2. Thus if the
sections 402 and 404 rules increase the measured benefits of
residential abatements (using current industrial practices) by as
little as 18 percent, the benefits would exceed the costs of the
regulation. A benefits analysis that included the significant omitted
benefit categories would indicate that an even smaller percentage
increase in the benefits of current abatement practices would be
sufficient to cover the costs of the regulation.
5. Uncertainties and sensitivity analysis uncertainties. The
development of the estimated costs for this proposed rule relied on
three steps: The determination of ``common'' practices, a comparison of
these practices to the requirements of the rule, and an estimation of
the cost of the additional or incremental activities. While there is a
general uncertainty about all the estimates, this approach may have
resulted in an overestimate of the costs. In the case of the number of
samples to be tested, the analysis included costs for the full number
of tests required under the regulation. Inspectors are already taking
some samples, although some may not take as many as the regulations
will require. Lacking information on the typical number of samples
tested, the analysis included the costs for all the tests. Likewise,
interviews with industry representatives indicated that very few soil
abatements were currently taking place. Therefore, the analysis
estimated the rate of soil abatements under the regulation based on
estimates of household radon abatement. Since radon abatements are less
expensive than soil abatements, this assumption may have resulted in an
overestimate of the number of soil abatements and thus an overestimate
of both benefits and costs. Both these issues are examined by the
sensitivity analysis below.
The development of the benefit estimates was also limited by
numerous factors. It was not possible to include several potentially
major sources of health benefits at this time. Some of the major
omitted benefits include:
All benefits to adult residents.
All benefits to building occupants.
All benefits to workers with blood lead levels below 50
g/dL.
All benefits to residents near steel structure deleadings.
All ecological benefits.
All of the benefits in three of the five major categories, and part of
the benefits to workers, result from changes affecting abatements and
deleading of public and commercial buildings and steel structures. As a
result, the underestimation of benefits has its greatest effect on the
evaluation of the proposed rule's affect on nonresidential lead-based
paint activities.
The magnitude of some of these omitted benefits can be approximated
by examining the extent of the likely exposure and the nature of the
resulting adverse effects. In the case of benefits to occupants of
public and commercial buildings, the potentially exposed population is
very large. Over one-third of public buildings built before 1980
(approximately 900,000 buildings) have lead-based paint at an XRF
reading of 1 or greater. In addition, about 27 percent of commercial
buildings (approximately 415,000 buildings) have lead-based paint at an
XRF reading of 1 or greater. An equal percentage (nearly 150,000) of
industrial buildings also have lead-based paint at that level.
Currently, these buildings result in over one-half million deleadings
per year. While the length of time of exposure for each individual
building occupant may be short, the number of exposed individuals is
great, resulting in potentially substantial population risks from
improperly performed abatements. In addition, inadequate inspection
and/or risk assessments could result in much longer-term exposures if
lead risks are not identified and abated.
Since the deleading of steel structures mainly occurs out-of-doors,
there is a significant potential of exposure to the surrounding
environment if deleading is not conducted properly. Currently, there
are approximately 725,000 highway and railroad bridges, 30,000 water
tanks, 75,000 petroleum and liquefied natural gas tanks, and 133,000
electrical transmission towers with lead-based paint that need
repainting, and about 128,000 underground storage tanks with lead-based
coatings that need removal and demolition. While this analysis has not
estimated the number of people living in proximity to these structures,
the large number of structures combined with the fact that many are
located in urban areas means that substantial numbers of people and
large areas of ecosystems could be exposed to lead.
In addition to adverse human health effects, lead can impose
substantial adverse effects on ecosystems. Although lead occurs
naturally in the environment, it plays no known beneficial role in
biological processes. In fact, lead is a natural toxicant that affects
a broad spectrum of species and persists in the environment. Elevated
ambient lead levels that are bioavailable can seriously disrupt
population and ecosystem dynamics. As a result, lead is considered a
particularly hazardous ecotoxicant. While deleading of steel structures
is likely to have the greatest impact on ecosystems, improperly
performed abatements in other nonresidential and residential buildings
can also introduce lead into the general environment.
In addition to omitting benefits to occupants of nonresidential
buildings, benefits to residents near steel structures, and ecological
benefits, the estimates presented in the RIA may underestimate benefits
because of the assumption made concerning which residential units will
be abated. The analysis assumes that all the housing stock with XRF
and/or soil-lead levels greater than the scenario levels are eligible
candidates for abatement, and that housing units receiving abatements
are twice as likely to have young children and newborns as the housing
stock in general. This second assumption captures the increased concern
about lead hazards and children, and the increased benefits that would
accrue to households with young children. The increased concern will
likely result in increased abatement rates among housing units with
children. However, there are no data currently available on which to
base an estimate of this increased likelihood of abatement, and the
estimate used may be low. A low estimate will result in an
underestimate of the average residential unit benefits. (Likewise, a
high estimate will result in an overestimate of the average residential
unit benefits.) In addition, if the likelihood of abatement increases
with the level of lead present in the home, which is very likely, the
average per unit benefits of residential abatement will increase
correspondingly.
Data limitations have prevented the estimation of the relevant
abatement demand and cost functions which are necessary for accurately
estimating the aggregate benefits and costs of the proposed rule.
Adoption of the rule will impact variables that affect both the demand
and supply functions. For instance, in theory, the increase in
abatement costs resulting from training, accreditation, and standards
required by section 402 will be reflected in an upward shift of the
supply function, increasing prices and resulting in a decreased demand.
However, it is reasonable to expect countervailing forces to exist. If
people perceive that abatements performed by trained and certified
contractors are a better quality service than currently available, the
demand for the improved abatements may increase.
In addition to demand shifts as a result of section 402,
informational sections of Title IV and Title X such as sections 405,
406, and 1018, respectively, will likely stimulate demand for
abatements further. These actions provide information and education to
consumers about the inherent dangers of lead.
The net effect of these countervailing forces is difficult to
predict with the limited information available. Data limitations have
also prevented an assessment of how the quantity of lead-based paint
activities may change with alternative regulatory options. Therefore,
EPA has been unable to estimate the effect of more (or less)
precriptive approaches relative to the proposal on the quantity of
lead-based paint activities. The Agency solicits comments and
suggestions about data sources or methods that may help in assessing
the incremental benefits and costs of alternative approaches.
In order to deal with this issue, it is assumed that the demand for
deleading in Massachusetts can provide a proxy for estimating national
demand after the regulation is in place. This is deemed appropriate
since the training, accreditation, and performance requirements (thus
costs) for the established Massachusetts' program are similar to that
of the proposed rule. To the extent that residential abatements are
mandatory in Massachusetts when elevated-blood-lead (EBL) children are
identified, the adoption of Massachusetts' abatement rates will result
in an overestimation of the number of national residential abatements.
However, it is felt that overestimation will be minimal for the
following two reasons: information from the Massachusetts' Department
of Health indicates that only 10 to 20 percent of the residential
abatements are a result of the presence of EBL children, and because it
is likely that other States will also adopt a mandatory abatement
provision for EBL children.
EPA knows of no other State programs that may provide additional
insights to the expected impacts on demand resulting from the
implementation of the proposed rule and, therefore, solicits public
comment on the existence of State programs and relevant information
germane to this issue.
6. Sensitivity analysis. Six sets of sensitivity analyses were
conducted. Two sets affecting only the costs are alternative costs of
standards, resulting from alternative estimates of unit costs or
alternative assumptions of the number of events; and, alternative
training costs, resulting from alternative definitions of training
requirements. There are two sets of sensitivity analyses that affect
the benefits while leaving the costs unchanged. These two analyses
explore alternative levels of benefits to adult residents of units
abated and alternative value of a statistical life. And finally, there
are two sets of analyses that affect both the costs and the benefits.
These use an alternative discount rate, and assume alternative levels
of abatement activity. The impacts of these variables on the estimated
costs and benefits are presented in Tables 5 and 6, respectively.
The greatest affects on the estimated benefits and costs are
associated with the assumptions concerning choice of discount rate and
the rate at which soil abatements will occur. Since the benefits
resulting from the proposed regulation will not occur simultaneously
with the costs, it is necessary to compare streams of costs with the
resulting streams of benefits. This is done by discounting future costs
and benefits and summing the discounted values. Two alternative
approaches were investigated: using 7 percent in place of 3 percent to
reflect an alternative social rate of time preference, and using a two-
stage procedure that allows for the use of two different discount
rates: marginal rate of return on capital (7 percent) for annualizing
the capital costs; and a social rate of time preference (3 percent) for
discounting the stream of annualized costs and benefits. The
distinction between these two approaches rests with whether the source
of funds for lead-based paint activities are displacing investment or
consumption.
Simply discounting the stream of costs by 7 percent decreases the
total 50-year cost estimate by 27 percent. At the same time, increasing
the discount rate to 7 percent substantially decreases the estimated
benefits more than the cost, because many of the benefits will occur
further in the future. There are potentially two separate effects of
changing the discount rate. First, the benefits per abatement decrease
for all the quantified benefit categories except for workers benefits
and the present value of the 50-year benefits decreases for all the
benefit categories (including workers). The combination of these two
effects decreases the present value of the 50-year benefit stream by 87
percent. Consequently, the choice of discount rate affects benefits to
a much greater extent than it does costs.
The results of the two-stage discounting procedure are very
sensitive to the amortization period (the length of time capital is
diverted from investments). Given the uncertainties about the
appropriate amortization period, 50-year discounted costs were not
calculated. However, as demonstrated in the literature the two-stage
results will fall between the single discount rates of 3 and 7 percent
used in these analyses.
One of the most important elements used in estimating the benefits
is the willingness to pay to avoid a unit reduction in the risk of
death, also referred to as the value of a statistical life. The value
of a statistical life directly enters the calculations of the benefits
of the avoided neonatal mortality, adult resident hypertension related
benefits (when included), and worker benefits. The results presented in
base case are calculated using a value of $5.3 million per statistical
life. The standard deviation of these values is $3.8 million. A useful
range of alternative values for sensitivity analysis is mean value
minus one standard deviation, and the mean value plus one standard
deviation. The range of alternative values of a statistical life is
therefore $1.8 million to $9.1 million. Use of this range will have a
significant effect on neonatal mortality benefits. However, the
alternative values do not alter the overall benefit estimates greatly;
the present value of benefits per abatement and of total benefits (over
50 years, discounted at 3 percent) changes by plus or minus 5 percent.
The primary analysis relies on Massachusetts and OSHA data to
estimate most of the levels of abatement activity, in terms of the
number of inspections, and abatements/deleading, under the proposed
regulation. The Massachusetts and OSHA data provide little information
regarding the number of soil abatements. For estimates of rates of soil
abatement, therefore, the analysis relies on information on rates of
radon abatement. The primary analysis assumes a similar response rate
to the presence of lead in soil as to the presence of radon in soil. In
other words, 20 percent of the soil inspections that determine the
presence of lead result in a soil abatement.
The sensitivity analysis assumes two alternative abatement rates
(84 and 10 percent) which reflect likely response rate extremes. For
target housing, the lead paint abatement rate was 84 percent. If
individuals respond to the presence of lead in the soil similarly to
interior lead paint, then the soil abatement rate also will be 84
percent. The 10 percent alternative is examined because based on the
radon abatement experience, the 20 percent abatement rate used in the
primary analysis may be too high.
Changing the level of soil abatement activities will affect
training, standards, and state costs at an 84 percent abatement rate,
the total cost of the regulation will increase by 26 percent, with
standards costs increasing 32 percent. Using a 10 percent abatement
rate the total costs will decrease by only 4.5 percent.
Changing the level of soil abatement activities also changes the
estimated benefits. The per-abatement benefits do not change from
performing an interior-only, soil-only, or combined paint and soil
abatement. However, the average per-abatement benefits change when the
number of soil (and paint and soil combined) abatements change. At an
84 percent abatement rate, the total measured benefits will increase 30
percent; and using a 10 percent abatement rate will result in a 5
percent decrease in total measured benefits.
7. Impacts of the proposed rule. In assessing impacts of the
proposed rule, EPA focussed on the potential of the rule to affect
international trade and to impact technological innovation. The
distributional consequences of regulation (environmental equity) were
also investigated. (Small business impacts, assessed pursuant to the
Regulatory Flexibility Act of 1980, were also assessed. The results of
this analysis are presented in unit X. of this preamble.)
With regard to international trade impacts, EPA examined the
affected industries to determine whether the extent of foreign trade
merited a detailed examination of potential impacts. Since the
industries directly affected by this proposed rule are service
industries, marketable goods would not be produced for trade. The
reduction in lead-based paint hazards expected is achieved through the
identification and abatement of lead-based paint structures in the
United States and, therefore, will have no implications for
international trade. Thus, EPA concludes that there is no appreciable
international trade in these services.
In assessing the proposed rule's potential impacts on innovative
activity, EPA believes that certain requirements are likely to
encourage innovation, while others may be a hinderance. For example, an
area where innovation might be encouraged is in the case of testing to
determine the presence of lead. The standards require that the presence
of lead be determined by a test that produces discrete measures. While
this proposed rule does not prescribe or prohibit any particular
practice, it does require that certain results be achieved. Thus, in
setting criteria for new approaches in this case, the proposed rule
does not eliminate the potential for innovation by requiring the use of
any particular method, such as XRF.
The key factor in EPA's investigation into the distributional
impacts of the proposed rule was the distribution of lead-based paint
in the nation's housing stock. Lead-based paint is more common in
older, low-cost housing units in the Northeast and Midwest. Because
such housing units tend to be occupied by households at or below the
poverty level, including a disproportionate share of African-Americans,
these subpopulations are exposed to relatively more risks than other
subpopulations. While these sub-populations would be likely to receive
a greater portion of the overall risk reduction benefits of the rule,
the fact that most abatements are voluntary suggests that wealthier
households will be more likely to proceed with abatements.
Unfortunately, data are not available to permit estimates to be made of
the demand for abatement given differing household income levels; thus,
the distribution of benefits and costs across geographic and
demographic lines were not estimated.
Table 1.--Summary of Estimate of the Total Cost
Scenario 1: XRF 1 for Paint and 500 ppm or More for Soil
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Discounted 50-yr. Cost (3%)
Cost First Year Cost (1994) ($millions) ($millions) Percentage of Total Cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Training 501 1,878 18%
Standards 830 8,439 80%
State Program Administration 36 259 2%
Total for XRF 1, 500 ppm 1,367 10,576 100%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 2: XRF 6 for Paint and 2,000 ppm or More for Soil
--------------------------------------------------------------------------------------------------------------------------------------------------------
Training 222 1,053 17%
Standards 557 4,952 80%
State Program Administration 24 184 3%
Total for XRF 6, 2,000 ppm 803 6,190 100%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source ``Title X Sections 402 and 404 Regulatory Impact
Analysis,'' U.S. EPA, Office of Pollution Prevention and Toxics,
Regulatory Impacts Branch.
Table 2.--Summary of Total Measured Benefits
Scenario 1: XRF 1, Soil Lead Content 500 ppm
----------------------------------------------------------------------------------------------------------------
Benefit Category Total Benefits, First Year (Millions) Present Value, 50 Years (Millions)
----------------------------------------------------------------------------------------------------------------
Children** $836.5 $18,975
Neonatal
Mortality** $115.8 $2,605
Workers Involved
in Abatement $0.2 $5.1
All Other Workers $4.9 $49
Total Benefits*** $957.5 $21,635
----------------------------------------------------------------------------------------------------------------
Scenario 2: XRF 6, Soil Lead Content 2,000 ppm
----------------------------------------------------------------------------------------------------------------
Children** $494.0 $10,968
Neonatal
Mortality** $36.4 $804
Workers Involved
in Abatement $0.10 $2.1
All Other Workers $2.6 $34.0
Total Benefits*** $533.2 $11,808
----------------------------------------------------------------------------------------------------------------
**Benefits of complete abatements, not just incremental benefits
from this rule
***Combination of incremental and complete abatement benefits
Table 3.--Estimated Total Benefits and Incremental Costs over 50 Years
Scenario 2 (XRF6, Soil2,000 ppm)--3 percent discount rate
----------------------------------------------------------------------------------------------------------------
Total Measured Benefits from Abatements (except where Incremental Costs Due to Regulation
noted) -----------------------------------------------------
-----------------------------------------------------------
Benefit Category Present Value Cost Category Present Value
----------------------------------------------------------------------------------------------------------------
Residential Abatements
----------------------------------------------------------------------------------------------------------------
Infant and Children $11.0 Billion Training Cost $91 Million
Intelligence Effects --
Total
Other Infant & Children Not Measured State Program Cost $54 Million
Neurological Effects --
Total
Neonatal Mortality--Total $804 Million Standards Cost $1.7 Billion
Adult Hypertension--Total Not Measured
Other Adult Health Benefits Likely Substantial*
Workers (PbB > 50 g/ $2 Million
Dl)--Increment due to
Regulation
Other Worker Benefits Likely Substantial*
Ecological Benefits Not Measured
----------------------------------------------------------------------------------------------------------------
Percent Value of 50 Year $11.77 Billion Percent Value of 50 Year $1.8 Billion
Stream--Residential Stream--Residential
----------------------------------------------------------------------------------------------------------------
Public and Commercial Building and Steel Structure Deleading
----------------------------------------------------------------------------------------------------------------
Workers (PbB > 50 g/ All Deleading $34 Million Training Cost $963 Million
Dl)--Increment Due to
Regulation
Other Worker Benefits Likely Substantial* State Program Cost $129 Million
Building Occupants Not Measured
Benefits to Nearby Residents Likely Substantial* Standards Cost $3.3 Billion
Ecological Benefits Likely Substantial*
Present Value of 50 Year Likely Substantial* Present Value of 50 Year $4.4 Billion
Stream Non-Residential Stream Non-Residential
----------------------------------------------------------------------------------------------------------------
Total Present Value (Sum of Residential and Non-Residential Structures): Quantifiable Benefits and Costs
----------------------------------------------------------------------------------------------------------------
All Structure Types--50 Year $11.81 Billion + Substantial All Structure Types--50 $6.2 Billion
Stream Unquantifiable Benefits Year Stream
----------------------------------------------------------------------------------------------------------------
*Benefits are presumed to be substantial, but cannot be
estimated due to lack of quantified information on the incremental
reductions in human and ecosystem exposure.
Table 4.--Comparison of Residential Incremental Costs Due to Proposed Rule to Total Measured Residential
Benefits, Per Residential Unit Abated
Scenario 1 (XRF1, Soil500 ppm)
Residential Abatements
----------------------------------------------------------------------------------------------------------------
Total Measured Benefits from Complete Abatements (except Incremental Costs Due to Regulation
where noted) -----------------------------------------------------
-----------------------------------------------------------
Estimated Value Per Cost Category Estimated Cost Per
Benefit Category Abatement Abatement
----------------------------------------------------------------------------------------------------------------
Infant and Children $8,271 Training Cost $94
Intelligence Effects--Total
Other Infant & Children Not Measured State Program Cost $52
Neurological Effects--Total
Neonatal Mortality--Total $1,133 Standards Cost $1,763
Adult Hypertension--Total Not Measured
Other Adult Health Effects Not Measured
Workers (PbB > 50 / $2.22
Dl)--Increment due to
regulation
Other Worker Effects Not Measured
----------------------------------------------------------------------------------------------------------------
Total $9,406 Total $1,909
----------------------------------------------------------------------------------------------------------------
Scenario 2 (XRF6, Soil2,000 ppm)
Residential Abatements
----------------------------------------------------------------------------------------------------------------
Infant and Children $15,482 Training Cost $123
Intelligence Effects--Total
Other Infant & Children Not Measured State Program Cost $88
Neurological Effects--Total
Neonatal Mortality--Total $1,133 Standards Cost $2,303
Adult Hypertension--Total Not Measured
Other Adult Health Effects Not Measured
Workers (PbB > 50 g/ $2.74
Dl)--Increment Due to
Regulation
Other Worker Effects Not Measured
----------------------------------------------------------------------------------------------------------------
Total $16,618 Total $2,514
----------------------------------------------------------------------------------------------------------------
Table 5.--Sensitivity of Cost Estimates to Variations in the Value of Key Variables
----------------------------------------------------------------------------------------------------------------
Total Discounted Costs ($billion)
Variation in Key Variable -------------------------------------------------- %Change from Primary
Primary Analysis Sensitivity Analysis Analysis
----------------------------------------------------------------------------------------------------------------
Reduce Lab Fees by 15% $6.19 $5.85 -5.4%
Increase Lab Fees by 15% $6.19 $6.53 +5.4%
Reduce Amount of Hands-on Training
Time by One Half $6.19 $6.18 -0.2%
Use 7% Discount Rate $6.19 $4.51 -27.1%
Reduce Soil Abatement Rate by One
Half (to 10%) $6.19 $5.91 -4.5%
Increase Soil Abatement Rate 4.2
Times (to 84%) $6.19 $7.80 +26.0%
----------------------------------------------------------------------------------------------------------------
Table 6.--Sensitivity of Cost Estimates to Variations in the Value of Key Variables
----------------------------------------------------------------------------------------------------------------
Total Discounted Benefits ($billion)
Variation in Key Variable -------------------------------------------------- %Change from Primary
Primary Analysis Sensitivity Analysis Analysis
----------------------------------------------------------------------------------------------------------------
Reduce Value of a Statistical Life to
$1.4 Million $11.8 $11.2 -5%
Increase Value of Statistical Life to
$9.1 Million $11.8 $12.4 +5%
Include Benefits to Adult Residents,
Assuming 2.13 g/D1 Change
in Blood Lead $11.8 $31.2 +164%
Include Benefits to Adult Residents,
Assuming 0.1 /D1 Change in
Blood Lead $11.8 $12.8 +8%
Use 7% Discount Rate $11.8 $1.5 -87%
Reduce Soil abatement Rate by One
Half (to 10%) $11.8 $11.2 -5%
Increase Soil Abatement Rate 4.2
Times (to 84%) $11.8 $15.3 +30%
----------------------------------------------------------------------------------------------------------------
G. Enforcement
Section 409 of TSCA makes it unlawful to fail or refuse to comply
with any provision of a rule promulgated under Title IV of TSCA.
Therefore, failure to comply with any provisions of the final rule
would be a violation of TSCA. In addition, section 15 of TSCA makes it
unlawful for any person to fail or refuse to permit entry or inspection
as required by section 11 of TSCA.
Violators may be subject to both civil and criminal liability.
Under the penalty provision of section 16 of TSCA, any person who
violates section 15 or 409 is subject to a civil penalty of up to
$25,000 for each violation. Each day a violation continues may
constitute a separate violation. Knowing or willful violations of any
provision of the final rule could lead to the imposition of criminal
fines of up to $25,000 and imprisonment for up to 1 year for each
violation. In addition, other remedies are available to EPA under
sections 7 and 17 of TSCA, such as seeking an injunction to restrain
violations of the rule and seizing any imminently hazardous chemical
substance. Section 15 and 16 of TSCA apply to ``any person'' who
violates various provisions of TSCA. EPA may, at its discretion,
proceed against individuals as well as companies or Federal facilities.
In particular, EPA may proceed against individuals who report false or
misleading information or cause it to be reported.
H. Business Confidentiality
Pursuant to section 14 of TSCA, a person may assert a claim of
business confidentiality for any public comments submitted to EPA in
connection with the proposed rule. Any person who submits a public
comment for which a claim of confidentiality has been made must also
submit a nonconfidential version. Any claim of confidentiality must
accompany the information when it is submitted to EPA. Persons may
claim information in comments confidential by circling, bracketing, or
underlining it, and marking it with ``CONFIDENTIAL'' or some other
appropriate designation. EPA will disclose information subject to a
claim of business confidentiality only to the extent permitted by
section 14 of TSCA and 40 CFR part 2, subpart B. If a person does not
assert a claim of confidentiality for information in comments at the
time it is submitted to EPA, EPA will make the information public
without further notice to that person by placing the comments in the
public docket for this rulemaking.
I. Hearing Procedures
EPA will hold an informal hearing at a time and place announced at
a later date in the Federal Register. Any informal hearing will be
conducted in accordance with EPA's ``Procedures for Conducting
Rulemaking Under Section 6 of the Toxic Substances Control Act'' (40
CFR part 750). Persons or organizations desiring to participate in the
informal hearing must file a written request to participate. The
written request to participate must be sent to the Environmental
Assistance Division at the address listed under FOR FURTHER INFORMATION
CONTACT. The written request to participate must include: (1) A brief
statement of the interest of the person or organization in the
proceeding; (2) a brief outline of the points to be addressed; (3) an
estimate of the time required; and (4) if the request comes from an
organization, a non-binding list of the persons to take part in the
presentation. Organizations are requested to bring with them, to the
extent possible, employees with individual expertise in and
responsibility for each of the areas to be addressed.
J. Official Rulemaking Record
EPA has established a record for this rulemaking (docket control
number OPPTS-62128). A public version of the record, without any
information claimed as confidential business information, is available
in the TSCA Nonconfidential Information Center (NCIC) from 12 noon to 4
p.m., Monday through Friday, except legal holidays. The TSCA NCIC is
located at EPA headquarters, in Rm. NE-B607, 401 M St., SW.,
Washington, DC. 20460.
The rulemaking record contains information considered by EPA in
developing this proposed rule. The record includes: (1) All Federal
Register notices, (2) relevant support documents, (3) reports, (4)
memoranda and letters, and (5) hearing transcripts responses to
comments, and other documents related to this rulemaking.
The following is a list of documents which the Agency relied upon
while developing this proposed regulation and can be found in the
docket. Other documents, not listed here, such as those submitted with
written comments from interested parties, are contained in the TSCA
Docket office as well. The drafts of proposed rules submitted by the
Administrator to the Office of Management and Budget for any
interagency review process prior to proposal of the rule will also be
contained in the public docket. The drafts of the final rule submitted
for OMB review before promulgation will also be placed into the public
docket.
(1) Committee on the Institutional Means for Assessment of Risks to
Public Health - Commission on Life Sciences - National Research
Council. 1983. Risk Assessment in the Federal Government: Managing the
Process. National Academy Press, Washington D.C.
(2) DOL, OSHA. 1993. Lead Exposure in Construction; Interim Final
Rule. May 4, 1993. 29 CFR Part 1926.
(3) HUD, Office of Public and Indian Housing, 1990. Lead-Based
Paint: Interim Guidelines for Hazard Identification and Abatement in
Public and Indian Housing. (September, 1990, pages 87,89, A14-111
revised May 1991).
(4) HUD, Office of Policy Development and Research, 1991. The HUD
Lead-Based Paint Abatement Demonstration (FHA). (August 1991).
(5) HUD, Office of Public and Indian Housing. 1992. Lead-Based
Paint Risk Assessment Protocol. (September 1992).
(6) SOEH, (Society for Occupational and Environmental Health).
Protective Work Practices for Lead-Based Paint Abatement. Draft for
Final Review.
(7) State of California [Sacramento], Department of Transportation.
1982. Long-Term Environmental Evaluation of Paint Residue and Blast
Cleaning Abrasives from the Middle River Bridge Repainting Project.
(July 1982).
(8) USEPA. 1992. EPA Model Lead Abatement Training Course for
Supervisors and Contractors: Instructor Manual. (July 1992).
(9) USEPA. 1993. Lead Inspector Training - Model Training Course
Curriculum: Instructor Manual. (March 1993).
(10) USEPA, OPPT, CMD, TPB. 1992. Applicability of RCRA Disposal
Requirements to Lead-Based Paint Abatement Wastes: Final Report.
(October 1992).
(11) USEPA, OPPTS. 1993. Residential Sampling for Lead: Draft
Protocols for Lead Dust and Soil Sampling (June 23, 1993).
IX. Regulatory Assessment Requirements
A. Executive Order 12866
Under E.O. 12866, (58 FR 51735, October 4, 1993), the Agency must
determine whether regulatory action is ``significant'' and therefore
subject to review by the Office of Management and Budget (OMB) and the
requirements of the Executive Order. Under section 3(f), the order
defines ``a significant regulatory action'' as an action that is likely
to result in a rule (1) having an annual effect on the economy of $100
million or more, or adversely and materially affecting a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities
(also referred to as ``economically significant''); (2) creating
serious inconsistency or otherwise interfering with an action taken or
planned by another agency; (3) materially altering the budgetary
impacts of entitlement, grants, user fees, or loan programs; or (4)
raising novel legal or policy issues arising out of legal mandates, the
Presidents priorities, or the principles set forth in this Executive
Order.
Pursuant to the terms of this Executive Order, it has been
determined that this rule is a ``significant regulatory action''
because it will have an annual effect on the economy of over $100
million annually. As such, this action was submitted to OMB for review,
and any comments or changes made in response to OMB suggestions or
recommendations, have been documented in the public record.
B. Regulatory Flexibility Act
(1). Introduction. The Regulatory Flexibility Act of 1980 (RFA)
requires regulators to analyze impacts on small entities. EPA conducted
such an analysis, including it as part of the RIA. Based on this
analysis of available data, EPA preliminarily concludes that the
proposed rule should not place undue burden on small business. The
analysis is summarized below.
(2). Impacts on Small Businesses. EPA assessed potential impacts,
both absolute and relative burden, on small abatement firms in the
construction industry. To examine the potential impacts of the proposed
rule on small abatement establishments, compliance costs as a
percentage of operating costs were estimated for both small and large
firms and then compared to determine if small firms are more adversely
impacted than large firms.
The compliance costs consist of two components: (1) Licensing and
training costs for workers and supervisors, as well as licensing costs
for firms, and (2) incremental costs of performance standards for
abatement procedures. These two components coincide with the two
decision points faced by firms interested in performing lead-based
paint abatement work (including soil abatement). In order to be a
``player'' in this industry, a firm must be licensed and its employees
must be trained and certified. It is likely that a firm will incur
these expenses in anticipation of work, based on its assessment of the
future demand for such services, its competition, and the price it will
be able to charge. Therefore, the firm may incur the costs with no
opportunity to recoup them, thus decreasing its profits.
The second set of costs, those resulting from performance
standards, are of a different nature. The firms that do lead abatement
work also perform similar work in settings that do not involve lead and
are not affected by the proposed rule. These costs occur at the second
decision point. They will be incurred by a firm only if it chooses to
undertake a given lead-based paint job. In each case, the firm can
determine the impact of the performance standards on its sales and
profit levels. If the impact will be undesirable (e.g., decrease profit
levels), the firm can decline the work. In this voluntary setting, the
performance standards will not have an impact on the profits of small
businesses. Likewise, owners of property will incur the performance
standards costs only if abatements are in their benefit.
A comparison of incremental training and licensing costs to the
estimated operating costs for an average small firm, for each SIC group
involved with lead abatement, is shown in Table 7 below. These SIC
groups cover abatements in residential, public, commercial, and
industrial buildings, as well as steel structure abatement and
deleading. Assuming that none of the training and licensing costs are
shifted forward in the form of higher prices, the ratio of compliance
costs to operating costs for small establishments range between 1.2 and
3.2 percent. Cost ratios are similarly estimated for large
establishments in Table 8 below. For large firms, the ratios tend to be
slightly lower, ranging from1.0 to 2.3 percent. For both large and
small establishments, the largest cost ratio occurs for SIC 1721,
painting contractors. However, for these firms, a large non-lead paint
market is available. In all cases, compliance costs equal a small
percentage of operating costs.
While this shifting of costs will alleviate the burden on abatement
and deleading firms, the incremental costs of the regulations may
affect residential and commercial building owners. Consistent with the
arguments presented above, under this proposed rule abatement is a
voluntary action. As such, a landlord is unlikely to undertake an
abatement unless he or she is able to pass the cost on to his or her
tenants or otherwise recoup the costs in terms of higher property
values. EPA is concerned about the possibility that landlords of
marginally profitable property, under the threat of civil suits may
chose the alternative of abandoning the property rather than incur the
cost of abatement. EPA solicits comments providing data or methods any
such effects on the removal target housing from the market.
An alternative indicator which demonstrates potential impacts on
small abatement firms focuses on profitability. EPA subtracted
estimated establishment compliance costs from average profits per
establishment to determine post-compliance profits. This calculation
was also performed separately for small and large establishments for
the same SIC codes identified above assuming Scenario 1 (See Tables 9
and 10 below). The estimated average adjusted profits for small
establishments in two of the nine affected industry sectors become
negative. One of these sectors, Miscellaneous Trade Contractors, was
assumed as the most likely to perform a high frequency of very costly
soil abatement projects; thus, compliance costs exceeded profits by
more than a factor of 10. For 3 other sectors, compliance costs
represented more than 50 percent of abatement establishment profits.
For large firms, the results of this calculation indicated the typical
large firm to remain profitable in all sectors. Thus, based on the
profitability indicator size of deleading firms entering the abatement
industry may be impacted by this proposed rule.
These calculations on profits assume all costs were absorbed by
affected firms. This is more reasonable in the short run than in the
long run. EPA does not have the necessary information to ascertain the
cost pass through rate and resulting impacts on individual firms in the
short run. Also, the analysis was constrained to use SIC data that are
from a set of firms that may be different from firms complying with
this proposed rule and, therefore, the financial information may not be
representative of potential abatement firms. EPA solicits comments on
available data to estimate these impacts.
The two indicators presented above were selected to present the
likely bounds of the impacts associated with the proposed rule. The
actual impact will likely lie somewhere between these extremes.
The comparison of impacts on small and large training providers was
not performed for two reasons. Except for the RLTCs, most training
providers are small, so there would be no differential effect based on
size of the firm. In addition, it is likely that the training providers
will pass the additional costs on to their trainees. Since the changes
will be required by Federal regulations, they will apply to all
training providers. Second, there will be heightened concern about
lead-based paint hazards and thus a greater willingness to pay for
trained personnel who will presumably provide higher quality services.
In fact, these regulations are likely to create a market for training
services and thus will be beneficial to small businesses.
Table 7.--Impacts on Operating Costs for Small Establishments By SIC Code
Scenario 2 (XRF6, Soil2,000 ppm)
----------------------------------------------------------------------------------------------------------------
Operating Costs Per Compliance Costs Per Compliance Cost/Operating
SIC Codes Establishment Establishment Costs
----------------------------------------------------------------------------------------------------------------
1541 Industrial
Buildings and
Warehouses $475,390 $6,641 1.4%
1542 Other
Nonresidential
Buildings 418,475 6,867 1.6%
1611 Highway and Street
Construction
Contractors 543,130 6,533 1.2%
1622 Bridge, Tunnel and
Elevated Highway
Contractors 646,332 9,206 1.4%
1721 Painting
Contractors 142,568 4,508 3.2%
1751 Carpentry Work
Contractors 170,404 4,341 2.6%
1791 Structural Steel
Erection Contractors 384,631 7,870 2.1%
1795 Wrecking and
Demolition 299,717 6,199 2.1%
1799 Misc. Trade
Contractors, NEC 241,250 5,530 2.3%
----------------------------------------------------------------------------------------------------------------
Source: ``Title X Sections 402 and 404 Regulatory Impact
Analysis,'' U.S. EPA, Office of Pollution Prevention and Toxics,
Regulatory Impacts Branch.
Table 8.--Impacts on Operating Costs for Large Establishments By SIC Code
Scenario 2 (XRF6, Soil2,000 ppm)
----------------------------------------------------------------------------------------------------------------
Operating Costs Per Compliance Costs Per Compliance Cost/Operating
SIC Codes Establishment Establishment Costs
----------------------------------------------------------------------------------------------------------------
1541 Industrial
Buildings and
Warehouses $5,294,916 $71,424 1.4%
1542 Other
Nonresidential
Buildings 4,773,679 65,550 1.4%
1611 Highway and Street
Construction
Contractors 6,840,501 68,730 1.0%
1622 Bridge, Tunnel and
Elevated Highway
Contractors 6,754,332 87,379 1.3%
1721 Painting
Contractors 1,894,301 43,797 2.3%
1751 Carpentry Work
Contractors 1,103,563 22,702 2.1%
1791 Structural Steel
Erection Contractors 3,090,078 59,044 1.9%
1795 Wrecking and
Demolition 3,043,743 60,056 2.0%
1799 Misc. Trade
Contractors, NEC 2,354,724 48,346 2.1%
----------------------------------------------------------------------------------------------------------------
Source: ``Title X Sections 402 and 404 Regulatory Impact
Analysis,'' U.S. EPA, Office of Pollution Prevention and Toxics,
Regulatory Impacts Branch.
Table 9.--Statistics of Small Establishments By SIC Code
(XRF1, Soil500 ppm)
--------------------------------------------------------------------------------------------------------------------------------------------------------
No. of Constr. EPA Costs EPA
Constr. Payroll/ Total Sales Profits per of Initial Incremental Profits Minus
SIC Codes Wkrs. Per Estab. per Estab. Estab. Training & Costs of Total Costs Costs per
Estab.* ($000) Licensing* Standards Estab.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1541 4.1 $89 $494,683 $19,293 $7,123 $9,365 $16,488 $2,805
1542 3.9 75 436,366 17,891 6,796 2,710 9,506 8,385
1611 3.7 102 568,128 24,998 7,075 140 7,215 17,783
1622 5.3 133 671,863 25,531 9,807 1,579 11,386 14,145
1721 2.5 45 153,961 11,393 4,842 7,201 12,043 (650)
1751 2.4 44 182,837 12,433 4,581 2,773 7,354 5,079
1791 4.5 100 409,182 24,551 8,369 349 8,718 15,833
1795 3.5 68 318,171 18,454 6,142 1,542 7,684 10,770
1799 3.1 54 258,298 17,048 5,488 306,911 312,399 (295,351)*
*1:2 Supervisor:Worker Ratio
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: ``Title X Sections 402 and 404 Regulatory Impact
Analysis,'' U.S. EPA, Office of Pollution Prevention and Toxics,
Regulatory Impacts Branch and CONSAD (1993).
Table 10.--Statistics of Large Establishments By SIC Code
(XRF1, Soil500 ppm)
--------------------------------------------------------------------------------------------------------------------------------------------------------
No. of Constr. EPA Costs EPA
Const. Payroll Per Total Sales Profits Per of Initial Incremental Profits Minus
SIC Codes Wrks. Per Estab. Per Estab. Estab. Training & Costs of Total Costs Costs Per
Estab. ($000) Licensing* Standards Estab.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1541 54.2 $1,335 $5,567,735 $272,819 $75,788 $8,500 $84,288 $188,531
1542 45.1 1,035 5,030,220 256,541 63,292 2,763 6,055 190,486
1611 47.3 1,418 7,253,978 413,477 73,932 142 74,074 339,403
1622 60.2 1,559 7,102,347 348,015 94,170 1,597 95,767 252,248
1721 31.1 743 2,081,649 187,348 46,338 7,285 53,623 133,725
1751 16.0 341 1,190,467 86,904 24,011 2,957 26,968 59,936
1791 40.6 1,122 3,393,413 303,335 63,543 344 63,887 239,448
1795 41.3 797 3,279,895 236,152 58,080 1,505 59,585 176,567
1799 33.2 663 2,565,059 210,335 46,767 5,250 52,017 158,318
* 1:3 Supervisor:Worker Ratio
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: ``Title X Sections 402 and 404 Regulatory Impact
Analysis,'' U.S. EPA, Office of Pollution Prevention and Toxics,
Regulatory Impacts Branch and CONSAD (1993) and CONSAD (1993).
C. Paperwork Reduction Act
The Information Collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 15 USC 2682 and 15 USC 2688) and a copy may be obtained from
Sandy Farmer, Information Policy Branch, (2136) EPA, 401 M st., SW
Washington DC 20460, or by calling (202) 260-2740.
This collection of information has an estimated reporting burden
averaging 2.67 hours per response while the estimated recordkeeping
burden was estimated to be 0.32 hours per response. These estimates
include time to review instructions, search existing data sources,
gather and maintain the data needed, and complete the collection
information.
Send comments regarding the burden estimate, or any other aspect of
this collection of information including suggestions for reducing this
burden to Chief, Information Policy Branch, (2136) EPA 401 M St., S.W.,
Washington, DC 20460, marked ``Attention: Desk Officer for EPA.'' The
final rule will respond to OMB or public comments on the information
collection requirements contained in this proposal.
This regulation includes a number of reporting and record keeping
requirements, which are designed to help EPA verify compliance with the
rule after it is promulgated. This analysis identifies the reporting
and record keeping requirements specified in the proposed rule and
estimates the burden and cost that these requirements will impose.
This regulation will add to the reporting and recordkeeping burden
for three entities: states, training providers, and lead inspection and
abatement firms. Where applicable, burden numbers were based on those
developed for the Asbestos Model Accreditation Plan (MAP)(U.S. EPA,
1993b). In all other cases, burden numbers were estimated.
Reporting burdens presented are classified into two groups: initial
and annual. The burden associated with the start-up efforts of states,
training providers, and lead inspection and abatement firms are
referred to as the initial burden. For the purpose of this analysis,
all of these efforts are assumed to be completed during 1994, the first
year of the rule. The burden associated with reporting requirements
that will be required on an annual basis are referred to as the annual
burden and are presented based on the projected activity level for
1994. Initial and annual estimates are combined to project the burden
and costs that will be imposed during the first year of the rule, while
the annual costs alone serve as an estimate of the burden level
expected during the second year (and subsequent years) of the rule.
The first and second year burden estimates for all entities subject
to reporting requirements under this rule, were estimated to two
abatement scenarios of XRF1, soil-lead500 ppm,
and for XRF6, soil-lead 2,000 ppm. With regard to
the first abatement scenario, during the initial year of the rule the
burden is projected to be 11.4 million hours and $228.8 million.
Assuming all entities seeking accreditation and certification are in
place during the first year of the rule, the burden estimate
associatedwith the second year (and all subsequent years) is projected
to be 10.8 million hours and $217.6 million. At XRF6, soil-
lead2000 ppm, the total burden for the initial year is
estimated to be 6.2 million hours and $126.1 million. For the second
year, and subsequent years, the total burden is 6.1 million hours and
$120.9 million.
The majority of the burden, for both abatement scenarios, falls on
lead abatement firms and is driven by the reporting requirements
associated with on-site lead-based paint activities. Because this
burden is driven by the number of lead-based paint projects, it is
expected to decline substantially in subsequent years.
The total annual recordkeeping costs for the XRF 1 and
soil-lead 500 ppm represent the worst-case scenario due to
the number of events that occur. Total annual costs are estimated to be
approximately $1.3 million.
List of Subjects in 40 CFR Part 745
Environmental protection, Abatement, Housing renovation, Lead,
Lead-based paint, Reporting and recordkeeping requirements.
Dated: August 18, 1994.
Carol M. Browner,
Administrator.
Therefore, it is proposed that proposed 40 CFR part 745 be amended
as follows:
1. The authority citation for proposed part 745 would continue to
read as follows:
Authority: 15 U.S.C. 2605, 2607, and 2681-2692.
2. By adding subparts L and Q to read as follows:
Subpart L--Lead-Based Paint Activities
Sec.
745.220 Scope and applicability.
745.223 Definitions.
745.225 Accreditation of training programs.
745.226 Certification of individuals and firms engaged in lead-
based paint activities.
745.228 Standards for conducting lead-based paint activities.
745.230 Lead-based paint activities requirements.
745.235 Enforcement.
745.237 Inspections.
745.239 Effective dates.
* * * * *
Subpart Q--State Programs
745.320 Scope and purpose.
745.323 Definitions.
745.325 Authorization of State Programs.
745.327 Authorization of Indian Tribal Programs.
745.330 Grants.
745.339 Effective dates.
Subpart L--Lead-based Paint Activities
Sec. 745.220 Scope and applicability.
This subpart contains procedures and requirements for the
accreditation of lead-based paint activities training programs,
procedures and requirements for the certification of individuals and
firms engaged in lead-based paint activities, and standards for
performing such activities. This subpart also contains requirements
that all lead-based paint activities shall be performed by certified
individuals. This subpart is applicable to all individuals and firms
who are engaged in lead-based paint activities as defined in
Sec. 745.223, except persons who perform these activities within
residences which they own, unless the residence is occupied by a person
or persons other than the owner or the owner's immediate family while
these activities are being conducted. This subpart is applicable only
in those states or Indian Reservations that do not have an authorized
state program pursuant to Sec. 745.325 or Sec. 745.327 respectively of
Subpart Q of this part. Each department, agency, and instrumentality of
the executive, legislative, and judicial branches of the Federal
Government having jurisdiction over any property or facility or engaged
in any activity resulting, or which may result, in a lead-based paint
hazard, and each officer, agent, or employee thereof, shall be subject
to, and comply with all Federal, State, interstate, and local
requirements, both substantive and procedural, including the
requirements of this subpart regarding lead-based paint, lead-based
paint activities, and lead-based paint hazards.
Sec. 745.223 Definitions.
For purposes of this subpart, the definitions of Sec. 745.3 apply.
In addition, the following definitions apply:
Abatement means any set of measures designed to permanently
eliminate lead-based paint hazards in accordance with standards
established by the Administrator under Title IV of TSCA. Such term
includes:
(1) The removal of lead-based paint and lead-contaminated dust, the
permanent containment or encapsulation of lead-based paint, the
replacement of lead-painted surfaces or fixtures, and the removal or
covering of lead-contaminated soil.
(2) All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures. Abatement
shall be presumed in the following circumstances:
(i) Projects for which there is a written contract stating that an
individual or firm will be conducting activities in or to a dwelling
unit that will permanently eliminate lead-based paint hazards.
(ii) Projects involving the permanent elimination of lead-based
paint or lead contaminated soil and conducted by firms or individuals
certified in accordance with Sec. 745.226.
(iii) Projects involving the permanent elimination of lead-based
paint or lead-contaminated soil and conducted by firms or individuals
who, through their company name, promotional literature, or otherwise
advertise or hold themselves out to be lead abatement professionals.
(3) Abatement does not include renovation and remodeling, or
landscaping activities whose primary intent is not to permanently
eliminate lead-based paint hazards, but is instead to repair, restore,
or remodel a given structure or dwelling, even though these activities
may incidently result in a reduction in lead-based paint hazards.
Accredited training program means a training program that has been
accredited by an approving authority to provide training for
individuals engaged in lead-based paint activities.
Approving authority means the U.S. Environmental Protection Agency
or, in the case of a state or tribal program authorized by EPA under
subpart Q of this part, the appropriate State agency or Tribal
authority.
Area means a portion of a unit such as a room, closet, pantry,
hall, or portion of a room (such as the dining area of a kitchen/dining
room).
Available means reachable by telephone, either directly or through
a pager or answering service, at all times when abatement activities
are being conducted and able to be present at the work site in no more
than 2 hours.
Certified contractor means a contractor, inspector, or supervisor
who has completed a training program certified by the appropriate
Federal agency and has met any other requirements for certification or
licensure established by such agency or who has been certified by any
State through a program which has been found by such Federal agency to
be at least as protective as the Federal certification program; and
workers or designers who have fully met training requirements
established by the appropriate Federal agency.
Certified firm means a company, partnership, corporation, sole
proprietorship, association, or other business entity, which has
submitted a letter signed by the owner to the approving authority
stating that:
(1) All its employees or subcontractors performing lead-based paint
activities have each individually received the required training and
certification from the appropriate approving authority.
(2) The certified firm and its employees or subcontractors will
perform lead-based paint activities in accordance with all applicable
local, State and Federal standards, including all applicable
recordkeeping requirements.
(3) A certified supervisor will be assigned and available to all
the firm's abatement, deleading, and demolition projects.
Certified inspector/risk assessor for target housing and public
buildings means an individual who has been trained by an accredited
training program and certified by an approving authority to act as an
inspector and risk assessor for target housing and public buildings.
Certified inspector technician for target housing and public
buildings means an individual who has been trained by an accredited
training program and certified by an approving authority to perform
inspections in target housing and public buildings solely for the
purpose of determining the presence of lead-based paint through the use
of on-site testing, such as XRF analyzers, and the collection of
samples for laboratory analysis, and to perform inspections for the
presence of lead-based paint, as well as sampling for lead in dust and
soil for the purposes of abatement cleanup, waste disposal, and
clearance testing.
Certified lead worker for commercial buildings and superstructures
means an individual who has been trained by an accredited training
program and certified by an approving authority to perform deleading,
lead removal, and demolition activities on commercial buildings and
superstructures.
Certified lead worker for target housing and public buildings means
an individual who has completed training from an accredited training
program and has been certified by an approving authority to perform
abatement activities in target housing and public buildings.
Certified planner/project designer for target housing and public
buildings means an individual who has been trained by an accredited
training program and certified by an approving authority to plan and
design abatement projects in target housing and public buildings.
Certified supervisor for commercial buildings and superstructures
means an individual who has been trained by an accredited training
program and certified by an approving authority to supervise lead-based
paint activities and to identify the presence of lead-based paint or
other lead-based surface coatings in commercial buildings and on
superstructures. The supervisor is also responsible for the planning
and oversight of lead-based paint activities associated with commercial
buildings and superstructures.
Certified supervisor for target housing and public buildings means
an individual who has been trained by an accredited training program
and certified by an approving authority to supervise and conduct
abatements in target housing and public buildings.
Commercial building means any building used primarily for
commercial or industrial activity, which is generally not open to the
public, or occupied or visited by children, including but not limited
to, warehouses, factories, storage facilities, aircraft hangers,
garages, and wholesale distribution facilities.
Common area means a portion of a building generally accessible to
all residents/users including, but not limited to, hallways, stairways,
laundry and recreational rooms, playgrounds, community centers, and
boundary fences.
Component or building component means specific design or structural
elements or fixtures of a building or residential dwelling which are
distinguished from each other by form, function, and location. These
include, but are not limited to interior components such as: ceilings,
crown molding, walls, chair rails, doors, door trim, floors, fireplace,
radiators and other heating units, shelves, shelf supports, stair
treads, stair risers, stair stringers, newel posts, railing caps,
balustrades, windows and trim, including sashes, window heads, jambs,
sills, and stools, built-in cabinets, columns, beams, bathroom
vanities, counter tops and air conditioners; and exterior components
such as: painted roofing, chimneys, flashing, gutters and downspouts,
ceilings, soffits, facias, rake boards, corner-boards, bulkheads, doors
and door trim, fences, floors, joists, lattice work, railings and
railing caps, siding, handrails, stair risers and treads, stair
stringers, columns, balustrades, window sills, casings, sashes and
wells, and air conditioners.
Course test blue print means written documentation of the
proportion of course test questions devoted to each major topic in the
course curriculum.
Deleading means activities conducted by a person who offers to
eliminate lead-based paint or lead-based paint hazards or to plan such
activities in commercial buildings, bridges, or other structures or
superstructures.
Demolition means the act of pulling down or destroying any building
or structure.
Deteriorated paint means paint which is cracking, flaking,
chipping, or peeling from a building component.
Discipline means one of the specific types or categories of lead-
based paint activity enumerated in this subpart for which individuals
may receive training from accredited programs and become certified by
approving authorities. For example, ``lead worker in commercial
buildings and superstructures'' is a discipline.
Distinct painting history means the record of application, over
time, of paint or other surface coatings to a component of a building
structure.
Encapsulation is a process that makes lead-based paint
inaccessible, by providing a barrier between the lead-based paint and
the environment, with this barrier being formed using a liquid applied
coating or an adhesively bonded material, and with the primary means of
attachment is by the bonding of the product to the surface either by
itself of through the use of an adhesive.
Firm means any company, partnership, corporation, sole
proprietorship, association, or other business entity.
Hands-on assessment means an evaluation which tests the trainees'
ability to perform specified work practices and procedures
satisfactorily.
Hazardous waste means any waste as defined in 40 CFR 261.3.
Historical records means documentation which identifies the
material make-up (including brand, color type, lead content) and dates
of application of paint and other surface coatings used in target
housing, public and commercial buildings, and superstructures.
Inspection means a surface-by-surface investigation for the
presence of lead-based paint conducted by a certified inspector
technician or inspector/risk assessor according to the procedures in
Sec. 745.228(a).
Interim certification means the status of an individual who has
successfully completed the appropriate training course in a discipline
from an accredited training program, but has not yet received formal
certification in that discipline from an approving authority. Interim
certifications expire 6 months following the completion of the training
course.
Interim controls means a set of measures designed to reduce
temporarily human exposure or likely exposure to lead-based paint
hazards, including specialized cleaning, repairs, maintenance,
painting, temporary containment, ongoing monitoring of lead-based paint
hazards or potential hazards, and the establishment and operation of
management and resident education programs.
Lead-based paint activities means (1) in the case of target
housing, risk assessment, inspection, and abatement; and (2) in the
case of any public building constructed before 1978, commercial
building, bridge, or other structure or superstructure, identification
of lead-based paint and materials containing lead-based paint,
deleading, removal of lead from bridges, and demolition.
Lead-contaminated soil means bare soil on residential real property
that contains lead at or in excess of the levels determined to be
hazardous by an inspector/risk assessor certified under this
regulation.
Living area means areas of a target housing unit most often
frequented by children under the age of 6, including, but not limited
to living rooms, kitchen areas, dens, play rooms, and children
bedrooms.
Personal protection equipment (PPE) means specialized clothing and
equipment including, but not limited to respirators, masks, gloves,
designed to protect workers against chemical and physical hazards.
Principal instructor means the individual who has the primary
responsibility for organizing and delivering a particular course.
Public building means any building constructed prior to 1978,
except target housing, which is generally open to the public or
occupied or visited by children, including but not limited to, schools,
daycare centers, museums, airport terminals, hospitals, stores,
restaurants, office buildings, convention centers, and government
buildings.
Recognized laboratory means any environmental laboratory recognized
by the Agency as being capable of performing an analysis for lead
compounds in paint, soil, and dust.
Residential dwelling means (1) a single-family dwelling, including
attached structures such as porches and stoops; or (2) a single-family
dwelling unit in a structure that contains more than one separate
residential dwelling unit, which is used or occupied, or intended to be
used or occupied, in whole or in part, as the home or residence of one
or more persons.
Risk assessment means an on-site investigation conducted by a
certified inspector/risk assessor according to the procedures at
Sec. 745.228(b) to determine the existence, nature, severity, and
location of lead-based paint hazards and the provision to the property
owner/occupant of a report explaining the results of the investigation
and providing options for reducing lead-based paint hazards with a
rationale for those options.
Room means an enclosed or semi-enclosed living space within a unit
or dwelling unit.
Student T-test is a statistical analysis used to determine if the
difference between pre- and post-abatement soil lead levels are
significantly different from each other. A confidence limit of 95
percent is used to establish statistical significance.
Superstructure means a large steel or other industrial structure
including, but not limited to bridges or water towers which may contain
lead-based paint.
Training curriculum means an established set of course topics that
provide specialized knowledge and skills that must be taught in an
accredited training program for a particular discipline.
Training hour means the number of hours spent in training
activities in an accredited training program, including, but not
limited to, hours devoted to lecture, learning activities, small group
activities, demonstrations, evaluations, and/or hands-on experience.
Training manager means the individual responsible for administering
a training program and monitoring the performance of the principal
instructors, work practice instructors, and guest instructors.
Train-the-trainer course means a 40-hour (or longer) course of
study which provides instruction in the planning and teaching of adult
education courses.
Unit means a room or connected group of rooms used or intended to
be used by a single tenant or owner.
Visual inspection for clearance testing means the visual
examination of the abatement site following an abatement action for
evidence that the abatement has been successfully completed, as
indicated by the absence of visible residue, dust and debris.
Visual inspection for risk assessment means the visual examination
of a unit to locate the existence of deteriorating paint.
Window sill means the portion of the horizontal window ledge that
protrudes into the interior of the room, adjacent to the window sash
when the window is closed.
Window stool means the flat, horizontal molding fitted over the
window sill, on the window interior, between jambs, which comes in
contact with the bottom of the rail of the lower operating sash and the
window sill.
Window well means the portion of the horizontal widow sill that
receives the window sash when the window is closed; often located
between the storm window and the interior window sash.
Work practice instructor means the individual(s) who are
responsible for teaching particular skills in a specific course.
Sec. 745.225 Accreditation of training programs.
(a) Application process. For the purposes of certification,
approving authorities shall only recognize training and refresher
training received from an accredited training program. The following
are procedures a training program shall follow to receive accreditation
from an approving authority.
(1) A training program may seek accreditation to offer courses in
any of the following disciplines -- target housing and public
buildings: inspector technicians, inspector/risk assessors,
supervisors, planner/project designers, and workers; commercial
buildings and superstructures: supervisors and workers. The training
program may also seek accreditation to offer refresher courses for each
of the course disciplines.
(2) A training program seeking accreditation shall submit to the
approving authority a written application containing the following
information:
(i) The training program's name, address, and telephone number.
(ii) A list of courses for which it is applying for accreditation.
(iii) A statement, signed by the training program manager, which
certifies that the training program meets the minimum requirements
established in paragraph (b) of this section.
(iv) A signed statement by the training program manager certifying
that each instructor meets the qualifications described in paragraph
(b)(1), (b)(2), or (b)(3) of this section, as well as a list of the
topics/skill areas to be taught by each instructor.
(v) Either:
(A) A statement signed by the training manager, which certifies
that the program will use, if available, EPA developed model training
materials; or
(B) A copy of the student manuals and instructor manuals to be used
for each course; and
(C) A copy of the course agenda, which includes the time allocation
for each course topic.
(vi) A copy of the test blueprint, which describes the proportion
of course test questions devoted to each major course topic.
(vii) A description of the facilities and equipment available for
lecture and hands-on training.
(viii) A description of the procedures for conducting the
assessment of hands-on skills.
(ix) A copy of the quality control plan as described in paragraph
(b)(10) of this section.
(x) An example of numbered certificates, as described in paragraph
(b)(9) of this section, to be issued to students who successfully
complete the training program.
(3) The approving authority shall approve or disapprove a request
for accreditation within 180 days of receiving an application from a
training program. In the case of approval, a certificate of
accreditation shall be sent to the applicant. In the case of
disapproval, a letter describing the reasons for disapproval shall be
sent to the applicant. Prior to disapproval, the approving authority
may, at its discretion, work with training programs to address
inadequacies in the application for accreditation. The approving
authority may also request additional materials retained under
paragraph (h) of this section. If a training program's application is
disapproved, the program may reapply for accreditation at any time.
(4) A training program may offer courses or refresher courses in as
many training disciplines as it chooses, but shall seek accreditation
for each discipline. A training program may seek accreditation for
additional disciplines at any time as long as the program can
demonstrate that it meets the minimum requirements of paragraph (b) of
this section.
(b) Minimum requirements for the accreditation of training
programs. For a training program to obtain accreditation from an
approving authority to teach lead-based paint activities, the program
shall demonstrate, through its application materials, that it meets the
following minimum requirements for each discipline for which the
program is seeking accreditation:
(1) The training program shall employ a training manager who:
(i) Has at least 2 years classroom experience in teaching workers/
adults; or
(ii) Has a bachelor's or graduate level degree in building
construction technology, engineering, industrial hygiene, safety, or
public health; or
(iii) Has 4 years experience in managing an occupational health and
safety training program that specialized in environmental hazards; and
(iv) Has completed a 40-hour train-the-trainer course that provides
instruction in the planning and teaching of any adult education course;
or has obtained a bachelor's or graduate level degree in adult
education from an accredited college or university.
(2) The training program shall employ a qualified principal
instructor for each course who:
(i) Has completed a 40-hour train-the-trainer course, or has
obtained a degree in adult education from an accredited college or
university, or has at least 2 years of classroom experience in teaching
workers/adults.
(ii) Has successfully completed at least 24 hours of any lead-
specific training.
(iii) Has 2 years of experience in the construction trade,
including, but not limited to, lead or asbestos abatement, painting,
carpentry, or renovation and remodeling.
(3) The training program shall employ qualified work practice
instructors who are responsible for teaching particular skills in a
specific course and who:
(i) Have met all of the requirements listed in paragraph (b)(2) of
this section.
(ii) Have had 1 additional year of experience in a relevant
construction trade, including but not limited to, lead or asbestos
abatement, painting, carpentry, or renovation and remodeling.
(4) The training program shall, for each course offered, designate
a principal instructor. Principal instructors are responsible for the
organization of the course and oversight of the teaching of all course
material. Additional instructors shall be designated as either work
practice instructors or guest instructors.
(5) The following documents shall be recognized by approving
authorities as proof that training managers, principal instructors, and
work practice instructors meet the relevant educational, work
experience, and training requirements specifically listed in paragraphs
(b)(1), (b)(2), and (b)(3) of this section:
(i) Official academic transcripts as proof of meeting the
educational requirements.
(ii) Resumes, letters of reference, lead certification in another
State, or documentation of work experience as proof of meeting the work
experience requirements.
(iii) Certificates from train-the-trainer courses and lead-specific
training courses as proof of meeting the training requirements.
(6) The training program shall provide adequate facilities for
lecture and hands-on training and assessment. This includes providing
training equipment that reflects current work practices, and
maintaining or updating the equipment and facilities as needed.
(7) The training program shall provide training courses that meet
the following training hour requirements:
(i) The inspector technician course for target housing and public
buildings shall last a minimum of 24 training hours, with a minimum of
8 hours devoted to hands-on training.
(ii) The inspector/risk assessor course for target housing and
public buildings shall last a minimum of 40 training hours [inspector
technician (24 hours) plus inspector/risk assessor (16 hours) equals a
total of 40 hours], with a minimum of 8 hours devoted to hands-on
training which includes site visits.
(iii) The supervisor course for target housing and public buildings
shall last a minimum of 40 training hours, with a minimum of 8 hours
devoted to hands-on training.
(iv) The planner/project designer course for target housing and
public buildings shall last a minimum of 56 training hours [supervisor
course (40 hours) plus planner/project designer course (16 hours)
equals a total of 56 hours], with a minimum of 4 hours devoted to
hands-on training which include site visits.
(v) The lead abatement worker course for target housing and public
buildings shall last a minimum of 32 training hours, with a minimum of
10 hours devoted to hands-on training.
(vi) The supervisor course for commercial buildings and
superstructures shall last a minimum of 32 training hours, with a
minimum of 8 hours devoted to hands-on training.
(vii) The lead worker course for commercial buildings and
superstructures shall last a minimum of 32 training hours, with a
minimum of 10 hours devoted to hands-on training.
(8) For each course it offers, the training program shall conduct a
course test at the completion of each course and a hands-on skills
assessment. The hands-on assessment and the course test will be used to
evaluate trainee competency and proficiency. The hands-on assessment
and a course test must be successfully completed for an individual to
pass any course.
(i) The hands-on skills assessment is an evaluation of the
effectiveness of the hands-on training which shall test the ability of
the trainees to demonstrate satisfactory performance of work practices
and procedures specified in paragraph (c) of this section, as well as
any other skills demonstrated in the course. The training manager is
responsible for maintaining the validity and integrity of the
assessment to ensure that it accurately evaluates the trainee's
performance of these work practices and procedures.
(ii) The course test is an evaluation of the overall effectiveness
of the training which shall test the trainee's knowledge and retention
of the topics covered during the course. Seventy percent shall be
considered the passing score on the course test. The training manager
is responsible for maintaining the validity and integrity of the course
to ensure that it accurately evaluates the trainee's knowledge and
retention of the course topics.
(iii) The course test shall be developed in accordance with the
test blueprint submitted with the training accreditation application.
(9) Training programs shall issue unique course completion
certificates to each individual who successfully completes the course
requirements. The course completion certificate shall include:
(i) A unique certificate number.
(ii) The name, a unique identification number, and address of the
individual.
(iii) The name of the particular course that the individual
completed.
(iv) Dates of course completion/test passage.
(v) Expiration date of interim certification, which shall be 6
months from the date of course completion.
(vi) Name, address, and telephone number of the training program.
(vii) A certified statement signed by the training manager which
certifies that the training received complies with the requirements of
this subpart. The statement must read as follows:
Under civil and criminal penalties of law for the making or
submission of false or fraudulent statements or representations (18
U.S.C. 1001 and 15 U.S.C. 2615), I certify that this training
complies with all applicable requirements of Title IV of TSCA, 40
CFR part 745, and any other applicable Federal, state, or local
requirements.
(10) The training manager shall develop and implement a quality
control plan. The plan shall be used to maintain or improve the quality
of the training program over time. This plan shall contain at least the
following elements:
(i) Procedures for periodic revision of training materials and
course test to reflect innovations in the field.
(ii) Procedures for the training manager's annual review of
instructor competency.
(11) Training programs shall offer courses which teach the
standards for conducting lead-based paint activities contained in
Sec. 745.228, and other such standards adopted by the EPA, or the
authorized state from which the program received accreditation.
(12) The training manager shall be responsible for ensuring that
the training program complies at all times with all of the requirements
in paragraph (b) of this section.
(c) Minimum training curricula requirements. To be accredited,
training programs must ensure that their courses of study for the
various lead-based paint activities disciplines cover the following
subject areas. Listed requirements ending in an asterisk (*) indicate
areas that require hands-on experience as an integral component of the
course.
(1) Target housing and public buildings - inspector technician.
(i) Background information on lead.
(ii) Health effects of lead.
(iii) Regulatory review. This entails a discussion of applicable
Federal, state and local regulations that pertain to lead-based paint.
(iv) Roles and responsibility of lead-based paint inspector.
(v) Lead-based paint inspection methods.*
(vi) Dust and soil sampling methodologies.*
(vii) Formulation and implementation of the final inspection
report.*
(2) Target housing and public buildings- inspector/risk assessors.
(i) All information taught in the inspector technician course as
listed in paragraph (c)(1) of this section.
(ii) Background information to perform risk assessment.
(iii) Visual inspection.*
(iv) Risk assessment report form.*
(v) Sampling and inspection guidelines.*
(vi) Sampling for other sources of lead exposure.
(vii) Interpretation of sampling results.
(viii) Preparation of final report.*
(ix) Recommendations to abate or reduce lead-based paint hazards
including instruction on when interim controls are appropriate.
(x) Development of an interim control plan.
(xi) Recordkeeping.
(xii) Identification of the lead-based paint hazards, lead-
contaminated dust, and lead-contaminated soil.
(3) Target housing and public building - supervisor.
(i) Background information on lead.
(ii) Regulatory background, Federal, state and local.
(iii) Legal and insurance issues relating to lead-based paint
abatement.
(iv) Development of pre-abatement work plan.*
(v) Hazard recognition and control.*
(vi) Respiratory protection and protective clothing.*
(vii) Employee information and training.
(viii) Project management.
(ix) Contract specifications.
(x) Supervisory techniques.
(xi) Lead paint abatement or lead hazard reduction including
prohibited methods.*
(xii) Interior dust abatement/clean-up or lead hazard reduction.*
(xiii) Soil and exterior dust abatement or lead hazard reduction.*
(xiv) Soil, dust, and air sampling.
(xv) Clearance standards and testing.
(xvi) Waste disposal.
(xvii) Community relations process.
(xviii) Cost estimation.
(xix) Recordkeeping.
(4) Target housing and public buildings - planner/project designer.
(i) All information taught in the supervisor course as listed in
paragraph (c)(3) of this section.
(ii) Risk assessment/inspection report interpretation.*
(iii) Worker protection/worker safety.
(iv) Environmental safety.
(v) The following information on project design.*
(A) Integration with modernization projects.
(B) Design abatement or lead hazard reduction strategy.
(C) Cost estimation.
(D) Construction techniques.
(vi) Abatement and other lead hazard reduction methods.
(vii) Operations and maintenance planning.
(viii) Clean-up.
(ix) Clearance testing.*
(x) Waste disposal.
(xi) Insurance and liability.
(5) Target housing and public buildings - lead abatement worker.
(i) Background information and health effects of lead.
(ii) Sources of environmental lead contamination (paint, surface
dust and soil, water, air, food, other).
(iii) Regulatory background, Federal, state and local.
(iv) Hazard recognition and control.*
(v) Respiratory protection.*
(vi) Personal hygiene.*
(vii) Lead-based paint abatement and lead hazard reduction
methods.*
(viii) Interior dust abatement methods/clean-up or lead hazard
reduction.*
(ix) Soil and exterior dust abatement methods or lead hazard
reduction.*
(x) Waste disposal.*
(6) Commercial buildings and superstructures - supervisor.
(i) Background information on lead.
(ii) Sources of environmental lead contamination (paint, surface
dust and soil, water, air, food, other).
(iii) Regulatory background, Federal, state and local.
(iv) Health effects.
(v) Identification of lead-based paint.*
(A) Historical information.
(B) Limited sampling procedures.
(C) Laboratory analysis.
(vi) Development of deleading work plan.*
(vii) Medical monitoring.
(viii) Respiratory protection.*
(ix) Work preparation procedures.*
(x) Clean up/waste disposal.
(xi) Exposure monitoring.
(xii) Environmental monitoring.*
(A) Soil, dust, and air sampling.
(B) [Reserved]
(xiii) Recordkeeping.
(xiv) Other safety and health hazards.
(xv) Paint removal operations pertaining to superstructures and
commercial buildings, including:
(A) Power tools.
(B) Abrasive blasting.
(xvi) Welding, burning and torch cutting.
(xvii) Mechanical disturbance of lead.
(7) Commercial buildings and superstructures - lead workers.
(i) Background information on lead.
(ii) Regulatory review.
(iii) Health effects.
(iv) Medical monitoring.
(v) Control methods.*
(vi) Respiratory protection.*
(vii) Work preparation procedures.*
(viii) Personal hygiene.*
(ix) Clean up/waste disposal.*
(x) Exposure monitoring.
(xi) Recordkeeping.
(xii) Other safety and health hazards.
(xiii) Paint removal operations.
(A) Power tools and miscellaneous.
(B) Abrasive blasting.
(xiv) Welding, burning, and torch cutting.
(xv) Mechanical disturbance of lead.
(d) Minimum requirements for the accreditation of refresher
training programs. (1) Training programs may seek accreditation to
offer a refresher course for any course discipline for which they
already have received accreditation or for which they are concurrently
applying for accreditation. Training programs will not receive
accreditation for a refresher course if they do not also receive
accreditation for the corresponding course discipline.
(2) An accredited refresher training course shall address the
following topics:
(i) An overview of key safety practices.
(ii) An update on current laws and regulations.
(iii) An update on current technologies related to lead-based paint
activities.
(3) The course must include at least 7 training hours.
(4) Each student shall be required to pass a course test that
covers all of the topics contained in the course. Passing students
shall be provided with a course completion certificate.
(5) A training program seeking refresher course accreditation shall
submit to the approving authority the following:
(i) The training program's name, address, and telephone number.
(ii) A list of courses for which it is applying for accreditation.
(iii) A copy of student manuals and instructor notebooks for the
course.
(6) If a training program applies for accreditation of a refresher
course concurrently with accreditation of the corresponding training
course, the approving authority shall use the approval procedure
described in paragraph (a)(4) of this section.
(7) If an application for refresher training authorization is
received apart from an application for accreditation as described in
paragraph (a)(4) of this section, the approving authority shall approve
or disapprove a request for accreditation within 45 days of receiving
the application. In the case of approval, a certificate of
accreditation shall be sent to the applicant. In the case of
disapproval, a letter describing the reasons for disapproval shall be
sent to the applicant. The approving authority may, at its discretion,
work with training programs to address inadequacies in the application
for accreditation. If a training program's application is disapproved,
the program may reapply at any time.
(8) A training program may offer as many refresher training courses
as it chooses, but shall seek accreditation for each course. A training
program may seek accreditation for additional refresher training
courses at any time.
(e) Re-accreditation of training programs. (1) If a training
program meets the requirements of this section, the training program
shall be re-accredited. Unless re-accredited, a training program's
accreditation shall expire 3 years after the date of issuance.
(2) A training program seeking re-accreditation shall submit an
application to the approving authority no later than 180 days before
its accreditation expires. If a training program does not submit its
application for re-accreditation by that date, the approving authority
cannot guarantee the application will be reviewed and acted upon before
the end of the 3-year period.
(3) The training program's application for re-accreditation shall
contain:
(i) The training program's name, address, and telephone number.
(ii) A list of courses for which it is applying for re-
accreditation.
(iii) A description of any changes or updates to the training
facility or equipment.
(iv) The certified statement as described in paragraph (e)(4) of
this section below.
(4) The training program's application for re-accreditation shall
contain a statement signed by the training program manager which
certifies that:
(i) The course materials, for each course, meet the requirements in
paragraphs (c)(1) through (c)(7) of this section, as appropriate.
(ii) The training manager, principal instructors, and work practice
instructors meet the qualifications in paragraphs (b)(1), (b)(2), and
(b)(3) of this section.
(iii) The training program manager complies at all times with all
requirements in paragraph (b) of this section.
(iv) The quality control program meets the requirements in
paragraph (b)(11) of this section.
(v) The recordkeeping and reporting requirements of paragraph (h)
of this section will be followed.
(5) An audit may be performed by the approving authority to verify
the certified statement and the contents of the application.
(f) Suspension, revocation, and modification of accredited training
programs. (1) The approving authority may after notice and an
opportunity for hearing, suspend, revoke, or modify training program
accreditation if a training program, training manager, or other person
with supervisory authority over the training program, has:
(i) Misrepresented the contents of a training course to the
approving authority and/or the student population.
(ii) Failed to submit required information or notifications in a
timely manner.
(iii) Failed to maintain required records.
(iv) Falsified accreditation records, instructor qualifications, or
other accreditation information.
(v) Failed to comply with the training standards and requirements
in this section.
(vi) Failed to comply with Federal, State, or local lead-based
paint statutes or regulations.
(2) In addition to an administrative or judicial finding of
violation, execution of a consent agreement in settlement of an
enforcement action constitutes, for purposes of this section, evidence
of a failure to comply with relevant statutes or regulations.
(3) Training programs shall permit representatives of the approving
authority to attend any training course, for the purpose of evaluation
or monitoring of the course, without charge to the approving authority.
(g) Procedures for suspension, revocation, or modification of
training program accreditation. (1) When an approving authority decides
to suspend, revoke, or modify the accreditation of a training program,
it shall notify the affected entity in writing of the following:
(i) The grounds upon which the suspension or withdrawal is based.
(ii) The commencement date and duration of the suspension,
revocation, or modification.
(iii) Actions, if any, which the affected entity may take to avoid
suspension, revocation, or modification, or to receive accreditation in
the future.
(iv) Any additional conditions which the approving authority may
impose.
(v) The opportunity and method for requesting a hearing prior to
final approving authority action to suspend, revoke, or modify
accreditation.
(2) If a hearing is requested by the accredited training program
pursuant to paragraph (g)(1) of this section, the approving authority
shall:
(i) Prior to the hearing, notify the affected entity of those
assertions of law and fact upon which the action to suspend, revoke, or
modify is based.
(ii) Provide the affected entity an opportunity to offer written
statements in response to those assertions of law and facts, and any
other explanations, comments, and arguments it deems relevant to the
proposed action.
(iii) Provide the affected entity such other procedural
opportunities as the approving authority may deem appropriate to ensure
a fair and impartial hearing.
(iv) Appoint an official of the approving authority as Presiding
Officer to conduct the hearing. No person shall serve as Presiding
Officer if he or she has had any prior connection with the specific
case.
(3) The Presiding Officer appointed pursuant to paragraph (g)(iv)
of this section shall:
(i) Conduct a fair, orderly, and impartial hearing, within 90 days
of the request for a hearing.
(ii) Consider all relevant evidence, explanation, comment, and
argument submitted pursuant to paragraph (g)(2) of this section.
(iii) Notify the affected entity in writing within 90 days of
completion of the hearing of his or her decision and order. Such an
order is a final agency action subject to judicial review.
(4) If the approving authority determines that the public health,
interest, or welfare warrants immediate action to suspend the
accreditation of any training program prior to the opportunity for a
hearing, it shall:
(i) Notify the affected entity of its intent to immediately suspend
training program accreditation for the reasons listed in paragraph
(f)(1) of this section. If a suspension, revocation, or modification
notice has not previously been issued pursuant to paragraph (g)(1) of
this section, it shall be issued at the same time the emergency
suspension notice is issued.
(ii) Notify the affected entity in writing of the grounds upon
which the immediate suspension is based and why it is necessary to
suspend the entity's accreditation before an opportunity for a
suspension, revocation, or modification hearing.
(iii) Notify the affected entity of the commencement date and
duration of the immediate suspension.
(iv) Notify the affected entity of its right to request a hearing
on the immediate suspension within 15 days of the suspension taking
place and the procedures for the conduct of such a hearing.
(5) Any notice, decision, or order issued by the approving
authority under this section, and any documents filed by an accredited
training program in a hearing under this section, shall be available to
the public, except as otherwise provided by section 14 of TSCA or by
part 2 of this title. Any such hearing at which oral testimony is
presented shall be open to the public, except that the Presiding
Officer may exclude the public to the extent necessary to allow
presentation of information which may be entitled to confidential
treatment under section 14 of TSCA or part 2 of this title.
(6) The public shall be notified of the suspension, revocation, or
modification of training program accreditation through appropriate
mechanisms developed by the authority.
(7) The approving authority shall maintain a list of parties whose
accreditation has been suspended, revoked, or modified. This list shall
be made available to the public upon request.
(h) Training program recordkeeping requirements. (1) Accredited
training programs shall maintain, and make available to the approving
authority if requested, the following records:
(i) All documents specified in paragraph (b)(5) of this section
that demonstrate the qualifications listed in paragraphs (b)(1),
(b)(2), and (b)(3) of this section of the training manager, principal
instructors, and work practice instructors.
(ii) Current curriculum/course materials, and documents reflecting
any changes made to these materials.
(iii) The course test blueprint.
(iv) Information on how the hands-on assessment is conducted
including, but not limited to, who conducts the assessment, how the
skills are graded, what facilities are used, and the pass/fail rate.
(v) The quality control plan as described in paragraph (b)(10) of
this section.
(vi) Results of the student's hands-on skills assessments and
course tests, and a copy of each student's course completion
certificate.
(vii) Any other material not listed in (h)(1)(i) through (h)(1)(vi)
of this paragraph that was submitted to the approving authority as part
of the program's application for accreditation.
(2) The training program shall retain these records at the location
(i.e., address) specified on the training program accreditation
application for a minimum of 3 years 6 months.
(3) The training program shall notify the approving authority 30
days prior to relocating its business or transferring the records.
Sec. 745.226 Certification of individuals and firms engaged in lead-
based paint activities.
(a) Certification of individuals. (1) Following the submission of
an application meeting all the requirements of this section and a
determination by the approving authority that an individual has met all
applicable requirements to perform lead-based paint activities, the
approving authority shall certify the applicant in one or more of the
following disciplines:
(i) Target housing and public buildings - inspector technician,
inspector/risk assessor, supervisor, planner/project designer, or lead
abatement worker.
(ii) Commercial buildings and superstructures - supervisor or lead
worker.
(2) Certified individuals conducting lead-based paint activities
shall comply with the standards for performing lead-based paint
activities in Sec. 745.228.
(3) It shall be considered a violation of TSCA, as well as any
other applicable State or local law or regulation, for an individual to
conduct any of the lead-based paint activities described in
Sec. 745.228 of this proposal unless that individual has received the
appropriate certification pursuant to the requirements specified in
paragraphs (b) and (c) of this section.
(b) Inspector technician, inspector/risk assessor or supervisor.
(1) To become certified as an inspector technician, inspector/risk
assessor or supervisor, an individual shall:
(i) Successfully complete and receive a course completion
certificate from an accredited training program for the appropriate
discipline.
(ii) Meet or exceed the following additional experience and/or
education requirements:
(A) Inspector technicians in target housing and public buildings:
(1) No additional experience and/or education requirements.
(2) [Reserved]
(B) Inspector/risk assessors in target housing and public
buildings:
(1) One year experience in a related field (e.g., lead, asbestos,
or environmental remediation work), or 25 inspections over at least a
3-month period as a certified lead inspector technician, and one of the
following:
(i) Bachelor's degree and 1-year experience in a related field.
(ii) Certification as an industrial hygienist, an engineer, a
registered architect, or an environmentally related scientific field,
such as an environmental scientist.
(iii) A high school diploma (or equivalent), plus at least 2 years
of experience in a related field.
(2) [Reserved]
(C) Supervisor in target housing and public buildings:
(1) One-year experience as a lead abatement worker.
(2) At least 2 years experience in a related field or in the
building trades.
(D) Supervisor in commercial buildings and superstructures:
(1) At least 2 years industrial painting field experience.
(2) At least 90 days field supervisory or management experience in
hazardous paint removal within the previous 24 months.
(3) Work experience that demonstrates knowledge of current,
relevant safety practices that have been accepted by the EPA for
deleading operations.
(4) Work experience that demonstrates knowledge of current waste
handling procedures for wastes derived from deleading operations.
(5) Work experience that demonstrates knowledge of environmental
monitoring during deleading operations.
(iii) Pass the certification examination offered by the approving
authority. The certification examination must be administered in such a
way that the validity and security of the certification examination are
maintained.
(2) The following documents shall be recognized by the approving
authority as proof of meeting the requirements listed in this
paragraph:
(i) Official academic transcripts as proof of meeting the
educational requirements.
(ii) Resumes, letters of reference, certification in another state,
documentation of work experience, or copies of inspection reports as
proof of meeting the work experience requirements.
(iii) Certificates from lead-specific or other related training
courses as proof of meeting the training requirements.
(iv) A signed, certification by the applicant that he/she meets the
qualifications described in this paragraph.
(3) In order to take the certification examination for a particular
discipline, an individual shall submit the following: a course
completion certificate for that discipline from an accredited training
program; the required documentation of education and/or experience
prerequisites as described in paragraph (b)(2) of this section; and
photographic proof of identity to the appropriate official of the
certification examination administering body.
(4) The course completion certificate shall serve as interim
certification for an individual who seeks to apply for certification
until the next available opportunity to take the certification
examination. Interim certification shall expire after 6 months. The
approving authority shall offer separate certification examinations for
the inspector technician for target housing and public buildings,
inspector/risk assessor for target housing and public buildings,
supervisor for target housing and public buildings, and the supervisor
for commercial buildings and superstructures discipline.
(5) After passing the certification exam and meeting the
appropriate training, education and/or experience prerequisites, an
individual shall be issued a certificate by the approving authority.
Certification shall be valid for 3 years.
(6) If an individual does not pass the certification exam and
receive a certificate within 6 months of receiving his/her course
completion certificate, the individual must retake the appropriate
course from an accredited training program before reapplying for
certification from the approving authority.
(c) Worker and planner/project designer. (1) An individual wishing
to become certified as a worker in target housing and public buildings
or commercial buildings and superstructures or as a planner/project
designer in target housing and public buildings shall successfully
complete a training course for the appropriate discipline offered by an
accredited training program.
(2) Workers and planner/project designers shall be certified on an
interim basis following course completion until they apply for and
receive their certification from the approving authority. To receive
certification from the approving authority, individuals shall submit a
valid copy of their course completion certificate within 30 days of
completing the course. The course completion certificate shall serve as
interim certification until certification from the approving authority
is received, but shall be valid for no more than 6 months from the date
of course completion.
(3) Upon receipt of the valid course completion certificate, the
approving authority shall issue a certification to each worker or
planner/project designer. This certification shall be valid for 3
years. To maintain certification, an individual must be re-certified as
described in paragraph (e) of this section by the approving authority
before the certification expires.
(d) Certification based on prior training. (1) Any individual who
received lead-based paint activities training between October 1, 1990,
and [the effective date of this section] shall be eligible for
certification by the approving authority under the following
alternative procedures:
(i) Applicants for the disciplines of inspector technician (target
housing and public buildings), inspector/risk assessor (target housing
and public buildings), and supervisor (target housing and public
buildings, or commercial buildings and steel structures) must:
(A) Show proof and date of the successful completion of training or
on the job training equivalent to that specified in Sec. 745.225 for a
lead inspector, risk assessor, or supervisor.
(B) Demonstrate that the applicant meets the education and/or
experience requirements in paragraph (b)(1)(ii) of this section.
(C) Successfully complete an accredited refresher training course
for the appropriate discipline.
(D) Pass a certification exam for that discipline administered by
the approving authority.
(ii) Applicants for the disciplines of worker (target housing and
public buildings, or commercial buildings and superstructures) and
planner/project designer (target housing and public buildings) must:
(A) Show proof and date of the successful completion of worker
training equivalent to that specified in Sec. 745.225.
(B) Successfully complete an accredited refresher training course.
(2) Individuals have until [6 months after the effective date of
Sec. 745.225] to apply for certification under the above procedures.
After that date, all individuals wishing to obtain certification must
do so through the procedures described in paragraph (c) of this
section.
(e) Re-certification. (1) To maintain certification, all certified
individuals, must be re-certified by the approving authority every 3
years.
(2) To become re-certified an individual shall submit a valid copy
of the refresher course completion certificate to the approving
authority.
(f) Certification of firms. (1) All firms engaged in or offering to
perform lead-based paint activities must be certified by the
appropriate approving authority.
(2) A firm seeking certification shall submit to the approving
authority a letter certifying that the firm will only employ certified
employees to conduct lead-based paint activities, and that the firm
will follow the standards for conducting lead-based paint activities in
Sec. 745.228.
(3) From the date of receiving the certification application, the
approving authority shall have 90 days to approve or disapprove the
firm's request for certification. In the case of approval, a
certificate shall be sent by the 90th day. In the case of disapproval,
a letter describing the reason for disapproval shall be sent by the
90th day.
(4) The firm shall maintain all records pursuant to the
requirements in Sec. 745.228.
(g) Suspension, revocation, and modification of certifications of
individuals engaged in lead-based paint activities. (1) The approving
authority may, after notice and opportunity for hearing, suspend,
revoke, or modify an individual's certification if an individual has:
(i) Performed work requiring certification at a job site without
having copies of initial and currently valid, original certificates
available at the job site for inspection.
(ii) Permitted the duplication or use of the individual's own
certificate by another.
(iii) Performed work for which appropriate certification has not
been received from the approving authority.
(iv) Been subject to a final order imposing a civil penalty or a
criminal conviction for engaging in a prohibited act under section 15
or 409 of TSCA.
(2) In addition to the situations listed in paragraph (g)(1) of
this section, the approving authority may suspend, revoke, or modify
the certification of individuals who have failed to comply with
Federal, State, or local lead-based paint statutes or regulations. In
addition to an administrative or judicial finding of violation, for
purposes of this section, execution of a consent agreement in
settlement of an enforcement action constitutes evidence of a failure
to comply with relevant statutes or regulations.
(3) Any individual who performs any of the following acts shall be
deemed to have committed a violation of TSCA, as well as any other
applicable Federal, State, or local law or regulation:
(i) Obtained certification through fraudulent representation of
training or exam documents.
(ii) Obtained training documentation through fraudulent means.
(iii) Gained admission to and completed education through
fraudulent representation of initial or previous education
documentation.
(iv) Obtained certification through fraudulent representation of
certification requirements such as education, training, professional
registration, or experience.
(v) Obtained training from a training program that is not
accredited to offer training for the particular discipline from the
approving authority.
(h) Suspension, revocation and modification of certifications of
firms engaged in lead-based paint activities. (1) The approving
authority may, after notice and opportunity for hearing, suspend,
revoke, or modify a firm's certification if a firm has:
(i) Performed work requiring certification at a job site with
individuals who are not certified.
(ii) Failed to maintain required records.
(iii) Performed work for which appropriate certification has not
been received from the approving authority; or
(iv) Failed to comply with the standards established in
Sec. 745.228.
(2) In addition to the situations listed in paragraph (h)(1) of
this section, the approving authority may suspend, revoke, or modify
the certification of firms that have failed to comply with Federal,
State, or local lead-based paint statutes or regulations. In addition
to an administrative or judicial finding of violation, for purposes of
this section, execution of a consent agreement in settlement of an
enforcement action constitutes evidence of a failure to comply with
relevant statutes or regulations.
(3) Any firm that performs any of the following acts shall be
deemed to have committed a violation of TSCA, as well as any other
applicable Federal, State, or local law or regulation:
(i) Obtained certification through fraudulent representation.
(ii) Failed to obtain a certificate from the approving authority
and performed work requiring certification at a job site.
(4) In addition, the approving authority may suspend, revoke, or
modify the certification of firms who have been subject to a final
order imposing a civil penalty or a criminal conviction for engaging in
a prohibited act under section 15 or 409 of TSCA. It shall be a
prohibited act under section 15 or 409 of TSCA, as well as any other
applicable provision of law, for a firm that fraudulently obtains
certification, to engage in any lead-based paint activities requiring
certification.
(i) Procedures for suspension, revocation, or modification of the
certification of individuals or firms. (1) If the approving authority
decides to suspend, revoke, or modify the certification of any
individual or firm, it shall notify the affected entity in writing of
the following:
(i) The grounds upon which the suspension, revocation, or
modification is based.
(ii) The commencement date and duration of the suspension,
revocation, or modification.
(iii) Actions, if any, which the affected entity may take to avoid
suspension, revocation, or modification or to receive certification in
the future.
(iv) Any additional conditions which the approving authority may
impose.
(v) The opportunity and method for requesting a hearing prior to
final approving authority action to suspend, revoke, or modify
certification.
(2) If a hearing is requested by the certified individual or firm,
the approving authority shall:
(i) Prior to the hearing, notify the affected entity of those
assertions of law and fact upon which the action to suspend, revoke, or
modify is based.
(ii) Provide the affected entity an opportunity to offer written
statements in response to those assertion of law and fact, and any
other explanations, comments, and arguments it deems relevant to the
proposed action.
(iii) Provide the affected entity such other procedural
opportunities as the approving authority may deem appropriate to ensure
a fair and impartial hearing.
(iv) Appoint an official of the approving authority as Presiding
Officer to conduct the hearing. No person shall serve as Presiding
Officer if he or she has had any prior connection with the specific
case.
(3) The Presiding Officer appointed pursuant to paragraph (i)(2) of
this section shall:
(i) Conduct a fair, orderly, and impartial hearing within 90 days
of the request for a hearing.
(ii) Consider all relevant evidence, explanation, comment, and
argument submitted pursuant to paragraph (i)(2) of this section.
(iii) Notify the affected entity in writing within 90 days of
completion of the hearing of his or her decision and order. Such an
order is a final approving authority action subject to judicial review.
(4) If the approving authority determines that the public health,
interest, or welfare warrants immediate action to suspend the
certification of any individual or firm prior to the opportunity for a
hearing, it shall:
(i) Notify the affected entity of its intent to immediately suspend
certification for the reasons listed in paragraph (h)(1) of this
section. If a suspension, revocation, or modification notice has not
previously been issued, it shall be issued at the same time the
immediate suspension notice is issued.
(ii) Notify the affected entity in writing of the grounds upon
which the immediate suspension is based and why it is necessary to
suspend the entity's accreditation before an opportunity for a hearing
to suspend, revoke, or modify the individual's or firm's certification.
(iii) Notify the affected entity of the commencement date and
duration of the immediate suspension.
(iv) Notify the affected entity of its right to request a hearing
on the immediate suspension within 15 days of the suspension taking
place and the procedures for the conduct of such a hearing.
(5) Any notice, decision, or order issued by the approving
authority under this section, and any documents filed by a certified
individual or firm in a hearing under this section, shall be available
to the public, except as otherwise provided by section 14 of TSCA or by
part 2 of this title. Any such hearing at which oral testimony is
presented shall be open to the public, except that the Presiding
Officer may exclude the public to the extent necessary to allow
presentation of information which may be entitled to confidential
treatment under section 14 of TSCA or part 2 of this title.
(j) Effective date. (1) Training providers shall not provide, or
claim to provide training for certification without accreditation from
the Agency pursuant to Sec. 745.225 after [Insert date 2 years and 180
days after publication of the final rule].
(2) No person shall engage in lead-based paint activities without
certification from the Agency, pursuant to Sec. 745.226 after [Insert
date 3 years after publication of the final rule].
Sec. 745.228 Standards for conducting lead-based paint activities.
(a) Inspection in target housing. An inspection is a surface-by-
surface investigation for the presence of lead-based paint conducted by
a certified inspector technician or inspector/risk assessor according
to the procedures in this paragraph.
(1) An inspection shall be conducted only by persons certified by
the appropriate approving authority as an inspector technician or
inspector/risk assessor.
(2) When conducting an inspection, the following locations shall be
tested for the presence of lead-based paint:
(i) All component surfaces with visible distinct painting histories
in every room, of every residential dwelling chosen for inspection, as
well as all exterior components with distinct painting histories of
every residential dwelling chosen for testing, except those components
that are known to the inspector technician or inspector risk assessor
to have been replaced after 1980.
(ii) All components with distinct visible painting histories in
every common area, except those components that are known to the
inspector technician or inspector risk assessor to have been replaced
after 1980.
(3) Testing for the presence of lead-based paint shall be conducted
by documented methodologies which incorporate adequate quality control
procedures.
(4) If testing of paint chip samples is being conducted utilizing
laboratory analysis:
(i) Paint chips should be collected according to the procedures
found in the HUD Guidelines for the Evaluation and Control of Lead-
Based Paint Hazards in Housing unless EPA issues regulations on this
subject pursuant to section 402 of TSCA.
(ii) All samples shall be sent for analysis to a laboratory
recognized by EPA as being capable of performing these activities.
(5) If using X-Ray Fluorescence Spectroscopy (XRF) to test for the
presence of lead-based paint, XRF should be used according to the
procedures found in the HUD Guidelines for the Evaluation and Control
of Lead-Based Paint Hazards in Housing unless EPA issue regulations on
this subject pursuant to section 402.
(6) The following information shall be recorded in a written
inspection report by an inspector technician or inspector/risk assessor
when conducting an inspection:
(i) Date of inspection.
(ii) Address of buildings and units.
(iii) Date of construction of buildings and units.
(iv) Unit numbers (if applicable).
(v) Name, address, and telephone number of the owner of buildings
and units.
(vi) Name and signature of certified inspector technician and
inspector/risk assessor conducting testing, including certification or
license numbers.
(vii) Name, address, and telephone number of the certified firm
employing each inspector technician or inspector/risk assessor.
(viii) Name, address, and telephone number of each recognized
laboratory conducting an analysis of collected samples.
(ix) Each testing device and/or sampling procedure employed, and if
used, the serial number of any XRF device.
(x) Precise locations of all components and surfaces on components
tested/sampled.
(xi) All data collected using on-site testing devices.
(xii) A list of all tested surfaces (components) found, either
through on-site testing or laboratory analysis, to contain lead-based
paint, as defined in Sec. 745.3, and those surfaces that did not
contain lead-based paint.
(xiii) Any recommendation by an inspector technician or inspector/
risk assessor regarding the need for additional testing or a risk
assessment.
(7)(i) Reports and plans required under paragraph (a)(6) of this
section shall be maintained by the owner of the residence or building,
and the certified firm that conducted the inspection for no less than 3
years.
(ii) This information is subject to the disclosure requirements
developed under section 1018 of the Residential Lead-Based Paint Hazard
Reduction Act of 1992 in subpart E, ``Residential Property
Renovation.''
(b) Risk assessment in target housing. A risk assessment is an on-
site investigation conducted according to the procedures in this
paragraph by a certified inspector/risk assessor to determine the
existence, nature, severity, and location of lead-based paint hazards
and the provision to the property owner/occupant of a report explaining
the results of the investigation and providing options for reducing
lead-based paint hazards with a rationale for those options.
(1) Any risk assessment, or other lead hazard assessment activity
shall be conducted only by persons certified by the appropriate
approving authority as an inspector/risk assessor.
(2) Background information regarding the physical characteristics
of the unit and residential use patterns shall be collected, and shall
include the following information:
(i) A schematic site plan showing each room within the/every unit,
its use and the number of children under age 6 currently residing in
the unit.
(ii) The age of the structure and any additions thereto.
(iii) A copy of any previous test results or inspections regarding
lead-based paint or other assessments for lead-related hazards.
(iv) A description of any lead-related health problems for either
children or adults in the residence, provided such information is made
available to the inspector/risk assessor by the residents.
(v) Other available information that the risk assessor determines
is necessary to characterize occupant use patterns that may generate or
contribute to lead-based paint hazards.
(3) A visual inspection to determine the condition of all painted
surfaces shall be completed by the inspector/risk assessor.
(4) Dust samples shall be collected within each selected unit
according to the following procedures by an inspector/technician or the
inspector/risk assessor:
(i) Parts of the living area where children are most likely to come
into contact with dust as determined by the risk assessor shall be
sampled.
(ii) The samples shall be sent for analysis to a laboratory
recognized by EPA as being capable of performing these activities.
(5) Where applicable, dust samples shall be collected by an
inspector/technician or inspector/risk assessor in the following common
areas:
(i) In buildings three floors or less, collect samples from common
areas adjacent to the sampled unit. Additional samples shall be
collected in the following common areas:
(A) Entry area of building.
(B) First level landing above the ground floor.
(ii) In buildings containing four floors or more, collect samples
from floor and window sills of common areas (if present).
(iii) The samples shall be sent for analysis to a laboratory
recognized by EPA as being capable of performing these activities.
(6) Any paint found to be deteriorated, or any other area that the
inspector/risk assessor, in their professional opinion, shall be tested
by an inspector/technician or the inspector/risk assessor according to
the procedures found in paragraph (a)(4) of this section and, if
applicable, paragraph (a)(5) or (a)(6) of this section in order to
determine lead concentrations.
(7) Randomly selected soil samples shall be collected by an
inspector/technician or inspector/risk assessor and analyzed in order
to adequately characterize the lead concentrations in the following
areas:
(i) Exterior play areas.
(ii) Areas containing bare soil.
(iii) Dripline/foundation areas.
(iv) The samples shall be sent for analysis to a laboratory
recognized by EPA as being capable of performing these activities.
(8) The following information shall be recorded in a risk
assessment report by a certified inspector/risk assessor when
conducting a risk assessment for lead-based paint hazards in target
housing:
(i) Date of assessment.
(ii) Address of residences and buildings.
(iii) Date of construction of residences and buildings.
(iv) Unit numbers (if applicable).
(v) Name, address, and telephone number of the owner of residences
and buildings.
(vi) Name of each occupant of the residences and buildings at the
time of assessment (if applicable).
(vii) Name and signature of certified inspector/risk assessor
conducting the assessment, including their certification or license
number.
(viii) Name, address, and telephone number of the certified firm
employing each inspector/risk assessor.
(ix) Name, address, and telephone number of each recognized
laboratory conducting analysis of collected samples.
(x) Any background information collected.
(xi) Results of the visual inspection.
(xii) Testing method and sampling procedure for paint analysis
employed.
(xiii) Precise locations of all painted surfaces (components)
tested for the presence of lead-based paint.
(xiv) All data collected from on-site testing.
(xv) All results of laboratory analysis on collected paint, soil,
and dust samples.
(xvi) Any other sampling results.
(xvii) An evaluation, to the extent that they are utilized as part
of the hazard determination, of the adequacy of any previous
inspections or analyses of the presence of lead-based paint, or other
assessments of lead related hazards.
(xviii) A detailed description of recommended control strategies
for reducing lead-based paint hazards and justification for the
strategy selected, the locations where the recommended actions should
take place, and a suggested prioritization for taking each action,
based on the immediacy of the hazard.
(9) Reports and plans required under paragraphs (b)(2) and (b)(8)
of this section shall be maintained by the owner of the residence or
building, and the certified individual or firm that conducted the risk
assessment for no less than 3 years. This information is also subject
to the disclosure requirements under section 1018 of the Residential
Lead-Based Paint Hazard Reduction Act of 1992 in subpart E of this
part, ``Residential Property Renovation.''
(c) Abatement in target housing. (1) Abatement means any set of
measures designed to permanently eliminate lead-based paint hazards in
accordance with the standards established by the Administrator in this
section. Such term includes:
(i) The removal of lead-based paint and lead-contaminated dust, the
permanent containment or encapsulation of lead-based paint, the
replacement of lead-painted surfaces or fixtures, and the removal or
covering of lead- contaminated soil.
(ii) All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures.
(2) Abatement shall be presumed in the following circumstances:
(i) Projects for which there is a written contract stating that an
individual or firm will be conducting activities in or to a dwelling
unit that will permanently eliminate lead-based paint hazards.
(ii) Projects involving the permanent elimination of lead-based
paint or lead-contaminated soil and conducted by firms or individuals
certified in accordance with this part.
(iii) Projects involving the permanent elimination of lead-based
paint or lead-contaminated soil and conducted by firms or individuals
who, through their company name, promotional literature, or otherwise,
advertise or hold themselves out to be lead abatement professionals.
(3) An abatement shall be conducted only by an individual certified
by the appropriate approving authority as a worker or supervisor.
(4) A supervisor, certified by the appropriate approving authority,
shall be assigned to each abatement project and available by phone and
able to be present physically at the worksite within 2 hours of when
abatement activities are being conducted.
(5) The certified abatement project supervisor, and the certified
firm employing that supervisor are responsible for ensuring completion
of all abatement activities conducted in target housing according to
the standards of this section and all other Federal, State and local
regulations.
(6) Notification of the commencement of lead-based paint abatement
activities must be presented, for their information, to the approving
authority, according to the procedures established by the approving
authority, prior to the commencement of abatement activities.
(7) A written pre-abatement plan shall be developed for lead
abatement firms by a certified planner project designer (or by a
supervisor for projects with less than 10 units to be abated), and
shall contain the following elements:
(i) Measures taken to ensure worker protection which are consistent
with all Federal, State, and local regulations; hazard recognition and
control procedures; and information and training to be provided to
abatement workers.
(ii) Measures taken to ensure compliance with all Federal, State,
and local environmental regulations.
(iii) An occupant protection program, unique to each unit and
developed prior to the abatement, that describes the measures that will
be taken during the abatement to protect the building occupants, the
method of verification that will be utilized to document this
protection, and contains the following:
(A) In plans which require the relocation of occupants, post-
abatement dust clearance levels must be met as described in paragraph
(c)(9) of this section, before re-occupancy.
(B) Duration of abatement activities.
(C) Access to facilities and exits.
(D) Total area involved.
(E) Specifications for the use of containment.
(8) If any exterior abatement of lead-based paint is planned, pre-
abatement composite soil samples, consisting of at least four sub-
samples shall be taken next to the foundation or from the dripline
below any exterior surface to be abated, unless this information is
available from a current risk assessment.
(i) The samples shall be sent for analysis to a laboratory
recognized by EPA as being capable of performing these activities.
(ii) [Reserved]
(9) The following post-abatement clearance procedures for units
that have been abated shall be performed by a certified inspector/risk
assessor:
(i) Following an abatement, a visual inspection shall be performed
by the inspector technician or inspector/risk assessor to determine if
there are any deteriorated surfaces or visible amounts of dust. If
deteriorated surfaces or visible amounts of dust are present these
conditions must be corrected and recleaned prior to the continuation of
the clearance procedures.
(ii) Surface dust samples shall be taken no sooner than 24 hours
after completion of final post abatement clean-up activities.
(iii) All dust samples shall be sent for analysis to a laboratory
recognized by EPA as being capable of performing these activities.
(iv) The following locations shall be sampled for lead containing
dust by an certified inspector technician or inspector/risk assessor:
(A) After removing lead-based paint from components throughout a
unit, three dust samples shall be taken from each area in every unit
abated. One sample shall be taken from one window sill, one window
well, and one floor of each area, if available.
(B) After removing lead-based paint from components in a portion of
the unit, procedures in paragraph (c)(9)(iv)(A) of this section shall
be followed and one sample from outside the containment area (within 10
feet) shall be taken.
(C) Following a complete replacement or encapsulation of surfaces
coated with lead-based paint, samples shall be taken from each area in
every unit abated. One sample each shall be collected from window
wells, window sills, and floors.
(D) Following a partial replacement or encapsulation of surfaces
coated with lead-based paint, the procedure stated in paragraph
(c)(9)(iv)(C) of this section shall be followed and one sample from
outside the work area (within 10 feet) shall be taken.
(E) Following an exterior abatement, at least one sample shall be
taken from an adjacent horizontal surface in the outdoor living area,
including but not limited to, a patio, deck, porch, or stoop.
(v) In each area within an individual unit, the inspector/risk
assessor shall compare the residual lead dust level (as determined by
the laboratory analysis) from each dust sample with the clearance
levels for lead in dust on floors, window sills, window wells, and
exterior surfaces, as established in the HUD Guidelines for the
Evaluation and Controls of Lead-Based Paint Hazards in Housing, unless
superseded by any clearance levels that the Agency may establish
pursuant to section 403 of TSCA. If any of the area's residual dust
levels exceed these clearance levels, the area shall be cleaned again
and retested until the clearance levels are met. If the dust levels
continue to exceed the clearance levels, alternate hazard control
strategies should be considered for use. Until all applicable clearance
levels for lead in dust are met, the area shall not be cleared for re-
occupancy.
(vi) Once all residual lead levels for an area meet or fall below
the clearance levels for lead in dust, and there is no deteriorated
paint or visible dust present, the area shall be cleared for re-
occupancy by the certified inspector/risk assessor.
(10) The following procedures for determining whether soil
clearance lead levels have been met shall be performed by a certified
inspector/technician or inspector/risk assessor:
(i) Composite soil samples consisting of at least four subsamples
shall be taken after all exterior abatement work from the dripline or
next to the foundation below any exterior surface abated.
(ii) Samples shall be sent for analysis to a laboratory recognized
by EPA as being capable of performing these activities.
(iii) A statistical analysis, such as, but not limited to, a paired
student T-test shall be used to determine if the post-abatement soil
lead level had increased at a statistically significant level
(significant at the 95 percent confidence limit) from the pre-abatement
soil lead level following exterior abatement activities.
(iv) If soil lead levels do not show a statistically significant
increase in lead concentrations based on a statistical analysis at the
95 percent confidence limit after abatement, no remediation is
required.
(v) If the soil lead levels do show a statistically significant
increase, above any applicable Federal or State standard for lead in
residential soil, based on the statistical analysis at the 95 percent
confidence limit, the measured level of lead in the soil shall be
remediated back to the pre-abatement level or abatement of the soil
shall be conducted according to the standards in paragraph (j) of this
section.
(11) All waste from abatement projects shall be disposed in
accordance with the requirements of the Resource Conservation and
Recovery Act and any other applicable Federal, State and local laws and
regulations.
(12) The following information shall be recorded in a written
report by the certified supervisor when conducting abatement for lead-
based paint hazards in target housing:
(i) Start and completion dates of abatement.
(ii) The name and address of each certified firm conducting the
abatements, and the name of each supervisor assigned to the abatement
project.
(iii) The name and address and signature of each certified
inspector/risk assessor or inspector technician conducting clearance
sampling and the date of clearance testing.
(iv) The results of clearance testing, the name of each recognized
laboratory that conducted the analyses, and the name and signature of
the person conducting the analysis.
(v) A detailed written description of the abatement, including
abatement methods used, locations of rooms and/or components where
abatement occurred, and reason for selecting particular abatement
methods for each component.
(vi) Information on the storage, transport and disposal of any
hazardous waste generated during the abatement.
(13) The certified firm conducting an abatement shall notify the
approving authority prior to beginning any abatement project according
to notification procedures developed by the approving authority.
(14) Reports required under paragraphs (c)(7) and (c)(12) of this
section shall be maintained by the building owner and certified firm
conducting the abatement activity for no less than 3 years and are
subject to the disclosure requirements mandated under section 1018 of
the Residential Lead-Based Paint Hazard Reduction Act of 1992 in
subpart E of this part, ``Residential Property Renovation.''
(d) Identification of lead-based paint in public buildings. (1) The
procedures, requirements and standards in paragraphs (a)(1) through
(a)(7)(i) of this section shall be followed when identifying lead-based
paint and materials containing lead-based paint in public buildings.
(2) All information collected from the identification of lead-based
paint in public buildings as described in paragraph (d)(1) of this
section shall be maintained by the owner of the building and certified
firm responsible for the inspection for not less than 3 years.
(e) Risk assessment for public buildings. (1) The standards in
paragraphs (b)(1) through (b)(3) and (b)(4)(ii) as well as (b)(6)
through (b)(9) (if applicable) of this section shall be followed when
conducting a risk assessment in public buildings.
(2) All information collected from the risk assessment in public
buildings as described in paragraph (e)(1) of this section shall be
maintained by the owner of the building and certified firm responsible
for the risk assessment for not less than 3 years.
(f) Abatement in public buildings. (1) The standards in paragraphs
(c)(1) through (c)(9)(iv)(D) and (c)(11) through (c)(16) of this
section shall be followed when abating a public building.
(2) Reports required under paragraph (e)(1) of this section shall
be maintained by the building owner and certified firm conducting the
abatement activity for a period of not less than 3 years.
(g) Demolition in public and commercial buildings and
superstructures. The following standards shall be followed when
conducting demolition in public and commercial buildings and steel
structures:
(1) A certified supervisor shall, through a review of available
documents, obtain any relevant historical information on use of lead-
based paint on the building.
(2) Whenever deleading is conducted as part of a demolition, such
as welding, burning, or torch cutting of lead-based paint, the
standards and procedures prescribed in paragraphs (i)(1) through (i)(7)
of this section shall be followed.
(h) Standards for the identification of lead-based paint in
commercial buildings and superstructures. The following standards shall
be followed when conducting lead-based paint identification in
commercial buildings and superstructures:
(1) A certified supervisor shall, through a review of available
documents, obtain any relevant historical information on use of lead-
based paint on the building.
(2) If the presence of lead-based paint cannot be established as
specified in paragraph (h)(1) of this section for a portion of the
structure or the entire structure, a visual inspection and limited
sampling shall be conducted at a rate of one sample per 1,000 square
feet of surface with a distinct painting history, including any
distinct finish color and maintenance painting, within the areas that
the historical review was not conclusive.
(3) All samples shall be sent for analysis to a laboratory
recognized by EPA as being capable of performing these activities.
(4) The following information shall be recorded in a written report
by the certified supervisor when conducting lead identification
activities:
(i) Date of identification activity.
(ii) Name and signature of each person making the identification.
(iii) Determinations of existence of lead-based paint based on the
results of testing.
(iv) The name and address of each recognized laboratory doing paint
analysis, date of analysis, results of analysis, and name and signature
of the person performing the analysis.
(5) Reports required under paragraph (h)(3) of this section shall
be maintained by the owner or operator of such structure or building
until such time that the structure or portion of the structure that was
involved in the identification is repainted.
(i) Deleading of lead-based paint in commercial buildings and
superstructures. The following standards shall be followed when
deleading or removing lead-based paint in commercial buildings or on
superstructures:
(1) Deleading shall only be conducted by persons certified by the
appropriate approving authority as a worker or supervisor.
(2) A supervisor, certified by the appropriate approving authority,
shall be assigned to the deleading project and available at all times
when deleading activities are being conducted.
(3) The supervisor, certified for deleading on superstructures and
commercial buildings by the appropriate approving authority, and the
certified firm are responsible for ensuring completion of all deleading
activities conducted on superstructures according to the standards of
this section.
(4) A written deleading plan shall be prepared by a certified
supervisor and shall contain the following elements:
(i) Measures taken to ensure worker protection which are consistent
with all Federal, State, and local regulations; hazard recognition and
control procedures; and information and training to be provided to
deleading workers.
(ii) Measures taken to ensure compliance with all Federal, State,
and local environmental regulations.
(5) All waste shall be disposed of in accordance with the
appropriate requirements of the Resource Conservation and Recovery Act
and any applicable Federal, State, or local requirements.
(6) A report containing the following information shall be
maintained by a certified firm when conducting deleading activities on
superstructures:
(i) Start and completion dates of deleading.
(ii) Names and addresses, as well as signature of each supervisor
of the deleading and, their certification number(s).
(iii) The name and address of each certified firm and recognized
laboratory doing any analysis, date of analysis, and name and signature
of each person performing the analysis.
(iv) A detailed written description of the deleading, methods used.
(v) Identification of storage and disposal sites of all hazardous
waste.
(7) The standards in paragraphs (i)(1) through (i)(7) of this
section shall also be followed during deleading of lead-based paint on
commercial buildings, as defined by Sec. 745.223.
(8) Reports required under paragraph (i)(7) of this section shall
be maintained by the owner or oversight agency of such structure until
that structure or portion of that structure is repainted.
(j) Soil abatement procedures. The following standards shall be
followed when conducting the abatement of lead-contaminated soil:
(1) Abatement shall only be conducted by persons certified by the
appropriate approving authority as a worker or supervisor.
(2) A supervisor, certified by the appropriate approving authority,
shall be assigned to the abatement project and available at all times
when abatement activities are being conducted.
(3) The abatement supervisor, certified by the appropriate
approving authority, and the certified firm are responsible for
ensuring that all soil abatement activities are conducted according to
the standards of this section.
(4) Soil abatement shall be conducted in one of the following ways.
(i) If soil removal is to be conducted, the lead-contaminated soil
shall be removed to a depth determined by the inspector/risk assessor,
until such time that the Agency promulgates a regulation pursuant to
section 403 of TSCA defining lead-contaminated soil.
(ii) If, after removal, the soil is to be replaced, the soil shall
be replaced with non-contaminated soil, to prevent any recontamination
that would pose a lead hazard.
(iii) No replacement of soil.
(iv) The contaminated soil shall be permanently covered.
(5) Soil abatement shall be conducted in a way that minimizes the
likelihood that significant amounts of lead contaminated soil and dust
will be blown from the site or carried away by water run-off.
(6) The following information shall be recorded in a written report
by a certified firm when conducting soil abatement:
(i) Start and completion dates of abatement.
(ii) Names and addresses, as well as signature of each supervisor
of the abatement and, their certification numbers.
(iii) The name and address of each certified firm and recognized
laboratory doing any analysis, date of analysis, and the name and
signature of each person performing the analysis.
(iv) The results of clearance and/or monitoring analysis conducted
by recognized laboratories.
(v) A detailed written description of the abatement, including
abatement methods used, locations of abatement, and reason for
selecting each abatement method.
(vi) Identification of storage and disposal sites of all hazardous
waste.
(7) Notification of the commencement of soil abatement must be
presented, for their information, to the approving authority, according
to the procedures established by the approving authority, prior to the
commencement of abatement activities.
(8) Reports required under paragraph (j)(6) of this section shall
be maintained by the owner or oversight agency of the site where soil
abatement occurred and the certified individual or firm which performed
the abatement for not less than 3 years.
(k) Effective date. All lead-based paint activities shall be
performed pursuant to the standards contained in Sec. 745.228 after
[Insert date 3 years after publication of the final rule].
Sec. 745.230 Lead-based paint activities requirements.
Lead-based paint activities, as defined in this part, shall only be
conducted according to the procedures and standards contained in
Sec. 745.228 of this subpart, or according to procedures and standards
adopted by States or Tribes authorized by the Administrator. No
individual or firm may perform or offer to perform any lead-based
activity as defined in this part, unless certified according to the
procedures at Sec. 745.226.
Sec. 745.235 Enforcement.
(a) Failure or refusal to comply with any requirement of
Sec. 745.225, 745.226, 745.228, or 745.230 is a violation of section 15
of TSCA (15 U.S.C. 2614).
(b) Failure or refusal to establish and maintain records or to
permit access to or copying of records, as required by Sec. 745.225,
745.226, or 745.228, is a violation of section 15 of TSCA (15 U.S.C.
2614).
(c) Failure or refusal to permit entry or inspection as required by
Sec. 745.237 and section 11 of TSCA (15 U.S.C. 2610) is a violation of
section 15 of TSCA (15 U.S.C. 2614).
(d) Violators are subject to civil and criminal sanctions pursuant
to section 16 of TSCA (15 U.S.C. 2615) for each violation.
Sec. 745.237 Inspections.
EPA may conduct reasonable inspections pursuant to the provisions
of section 11 of TSCA (15 U.S.C. 2610) to ensure compliance with this
part.
Sec. 745.239 Effective dates.
Subpart E of this part shall apply in any State that does not have
an authorized program under subpart Q of this part, effective [Insert
date 2 years after publication of the final rule]. In such States:
(a) Training providers shall not provide, or claim to provide
training for certification without accreditation from the Agency
pursuant to Sec. 745.225 after [Insert date 2 years and 180 days after
publication of the final rule].
(b) No person shall engage in lead-based paint activities without
certification from the Agency, pursuant to Sec. 745.230 after [Insert
date 3 years after publication of the final rule].
(c) All lead-based paint activities shall be performed pursuant to
the standards contained in Sec. 745.228 after [Insert date 3 years
after publication of the final rule].
* * * * *
Subpart Q--State Programs
Sec. 745.320 Scope and purpose.
The procedures established in this subpart must be followed by
States that seek to administer and enforce the standards, regulations,
or other requirements established under section 402 or 406 or both of
the Toxic Substances Control Act.
Sec. 745.323 Definitions.
For purposes of this subpart, the definitions in Secs. 745.3 and
745.223, and the following definitions apply:
Indian governing body means the governing body of any tribe, band,
or group of Indians subject to the jurisdiction of the United States
and recognized by the United States as possessing power of self-
government.
Indian reservation means any federally-recognized reservation
established by Treaty, Agreement, Executive Order, or Act of Congress.
Sec. 745.325 Authorization of State programs.
(a) Submission of State application. (1) Any State which seeks
authorization from EPA to administer and enforce the provisions in
subpart L of this part for section 402(a) of TSCA or the provisions of
subpart E of this part for section 406 of TSCA, shall submit an
application to the Administrator in accordance with the procedures of
this paragraph (a).
(2) Before developing an application for authorization, a State
must disseminate a public notice of intent to seek such authorization
and provide an opportunity for public hearing.
(3) A State application shall be sent with three complete copies to
the Administrator and shall include:
(i)(A) A copy of all existing or proposed State statutes and/or
regulations relating to the State's lead-based paint activities
program, including any State standards for conducting lead-based paint
activities.
(B) Copies of any State laws and regulations relating to the
following: provisions for assessing criminal and/or civil penalties,
and denying, suspending, and revoking certifications and accreditation;
provisions for right-of-entry at reasonable times, including a
mechanism to address refusals; and provisions to require recordkeeping
and reporting.
(ii)(A) The name of the State agency that is or will be responsible
for administering and enforcing the State program, the names and job
titles of responsible officials in that agency, and addresses and phone
numbers where the officials can be contacted.
(B) In the event that more than one agency is or will be
responsible for administering and enforcing the State program, the
State must designate a primary agency to oversee and coordinate
administration and enforcement of the State program and serve as the
primary contact with EPA.
(C) In the event that more than one agency is or will be
responsible for administering and enforcing the State program, the
following information must be provided: A description of the functions
to be performed by each agency, and how the program will be coordinated
by the primary agency to ensure consistency and effective
administration of the lead-based paint training accreditation and
certification program within the State.
(iii) A discussion of any special situations, problems, and needs
pertaining to the application accompanied by an explanation of how the
State intends to handle them.
(iv) A description of the resources that the State intends to
devote to the administration and enforcement of the State programs.
(v) A written statement by the Governor or the Attorney General
that the state has the legal authority necessary to adequately
administer and enforce a State program under this subpart.
(vi) Provisions to encourage voluntary compliance with State and
Federal regulations.
(b) State certification. (1) At the time of submitting an
application, the State may also certify to the Administrator that the
State programs meet the requirements contained in paragraphs (c)(1)(i)
and (c)(1)(ii) of this section.
(2) If this certification is contained in a State's application,
the State programs shall be deemed to be authorized by EPA, until such
time as the Administrator disapproves the program or withdraws the
authorization.
(3) If the application does not contain such certification, the
State program will be authorized only after the Administrator
authorizes the programs in accordance with paragraph (c) of this
section.
(4) This certification must take the form of a letter from the
Governor to the Administrator.
(c) EPA approval. (1) Within 180 days of receipt of a complete
State application, the Administrator shall authorize the state programs
or disapprove the application. The Administrator may authorize the
State programs, after the opportunity for a public hearing, only if the
Administrator finds that:
(i)(A) In the case of an application to authorize the State to
administer and enforce the provisions in subpart L of this part for
section 402(a) of TSCA, the State program is at least as protective of
human health and the environment as the Federal program under subpart L
of this part; and/or
(B) In the case of an application to authorize the State to
administer and enforce the provisions for section 406 of TSCA, the
State program is at least as protective of human health and the
environment as the Federal program under subpart L of this part; and
(ii) The State program provides adequate enforcement.
(2) EPA shall notify the State of the Administrator's decision to
authorize the State programs or disapprove the State's application.
Upon authorization of a State program, it shall be a violation of
Federal law for any person to fail or refuse to comply with any
requirements of such program.
(3) If the State applies for authorization of State programs under
both subparts L and E of this part, EPA may authorized one program and
disapprove the other.
(d) Approving authority. (1) Upon notification of authorization,
the designated State agencies will be deemed the approving authorities
for purposes of administering and enforcing the State program.
(2) If a State does not have a State program to administer and
enforce section 402 of TSCA or section 406 or TSCA, authorized under
this section and in effect by the date which is 2 years after
promulgation of this regulation, the Administrator shall, by such date,
establish and enforce, a Federal program in such State, under subpart L
or section 406 of TSCA, as appropriate.
(e) Modifications. When any substantial change is made in the
administration or enforcement of a State program, a responsible
official in the primary agency shall submit written notification of
such changes to EPA.
(f) Oversight. EPA may periodically evaluate the adequacy of a
State's implementation and enforcement of its authorized programs.
(g) Reports. The primary agency in each State that has an
authorized program shall submit a written report to the Regional
Administrator for the Region in which the State is located at least
once every 12 months which includes the following information:
(1) A summary of the State's implementation and enforcement
activities during the last reporting period, including a list of all
enforcement actions taken.
(2) Any changes in the content, administration or enforcement of
the State program implemented during the last reporting period.
(3) Other reports as may be required by EPA to carry out effective
oversight of a State program.
(h) Withdrawal of authorization. (1) If EPA concludes that a State
is not administering and enforcing an authorized program in compliance
with the standards, regulations, and other requirements of Title IV of
TSCA and this part, the Administrator shall notify the primary agency
in the State in writing and indicate EPA's intent to withdraw
authorization of the State program.
(2) The notice will:
(i) Identify the program aspects that EPA believes are inadequate
and provide a factual basis for such findings.
(ii) Include copies of relevant documents.
(iii) Provide an opportunity for the State to respond either in
writing or at a meeting with appropriate EPA officials.
(3) EPA may request that an informal conference be held between
appropriate State and EPA officials.
(4) Prior to issuance of a withdrawal, a State may request that EPA
hold a public hearing. At this hearing, EPA, the State, and or the
public may present facts bearing on whether the State's authorization
should be withdrawn.
(5) If EPA finds, on the basis of information submitted by the
State or at the conference that deficiencies did not exist or were
corrected by the State, EPA may withdraw its notice of intent to
rescind authorization.
(6) Where EPA finds that deficiencies in the State program exist, a
plan to correct the deficiencies shall be jointly prepared by the State
and EPA. The plan shall describe the deficiencies found in the State
program, specify the steps the State has taken or will take to remedy
the deficiencies, and establish a schedule, no longer than 180 days,
for each remedial action to be initiated.
(7) If no hearing is requested within 60 days of issuance of the
Notice of Intent to Rescind, and an agreement is not reached within 180
days after the Agency determines that a State is not in compliance with
the Federal program, the Agency shall issue an order withdrawing the
State's authorization.
Sec. 745.327 Authorization of Indian Tribal Programs.
(a) On Indian Reservations, the appropriate Indian Governing Body
may seek to administer and enforce the provisions in subpart L of this
part for section 402(a) of TSCA or the provisions of subpart E of this
part for section 406 of TSCA, in lieu of the Federal program.
(b) If the Indian Governing Body seeks to develop, administer, and
enforce these provisions, it shall follow the procedures in
Sec. 745.325 to receive authorization from EPA to do so.
(c) Nothing in this section is intended either to confer or deny
jurisdiction to the States over Indian Reservations not already
conferred or denied under other laws or treaties.
Sec. 745.330 Grants.
The Administrator or his designate, may make grants to States and
Indian Governing Bodies under section 404(g) of TSCA to develop and
carry out programs authorized pursuant to Secs. 745.325 and 745.327.
Sec. 745.339 Effective dates.
State and Tribal programs may seek authorization of their programs
pursuant to Subpart Q effective [Insert date of publication of the
final rule].
[FR Doc. 94-21578 Filed 9-1-94; 8:45 am]
BILLING CODE 6560-50-F
