[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45778-45830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21954]
[[Page 45777]]
_______________________________________________________________________
Part XI
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 745
Lead; Requirements for Lead-Based Paint Activities in Target Housing
and Child-Occupied Facilities; Final Rule
Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 /
Rules and Regulations
[[Page 45778]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62128B; FRL-5389-9]
RIN 2070-AC64
Lead; Requirements for Lead-Based Paint Activities in Target
Housing and Child-Occupied Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing a Federal regulation under section 402 of
the Toxic Substance Control Act (TSCA) to ensure that individuals
conducting lead-based paint activities in target housing and child-
occupied facilities are properly trained and certified, that training
programs providing instruction in such activities are accredited and
that these activities are conducted according to reliable, effective
and safe work practice standards. The Agency is also finalizing a
Federal regulation under section 404 of TSCA that will allow States and
Indian Tribes to seek authorization to administer and enforce the
regulations developed under section 402. The goal of this regulation is
to ensure the availability of a trained and qualified workforce to
identify and address lead-based paint hazards, and to protect the
general public from exposure to lead hazards.
DATES: This document is effective August 29, 1996. Specific
applicability dates related to this final rule are as follows:
States and Indian Tribes seeking EPA authorization to administer
and enforce their own lead-based paint activities programs may apply to
the Agency starting October 28, 1996. Following EPA authorization, the
requirements of the State or Tribal program will become effective as
specified in such program.
For States and Indian Tribes that do not apply to EPA for and
receive authorization, EPA will administer and enforce the regulations
for lead-based paint activities contained in subpart L. The
requirements of Subpart L will begin to apply in non-authorized States
and Indian Country no later than August 31, 1998, as specified below.
In States and Indian Country where EPA will administer and enforce
subpart L, training programs that seek to provide lead-based paint
activities training courses or refresher courses pursuant to
Sec. 745.225 may first apply to EPA for accreditation on or after
August 31, 1998. Such training programs cannot provide, offer, or claim
to provide training or refresher training for lead-based paint
activities as defined in this subpart, without acquiring accreditation
from EPA pursuant to Sec. 745.225 on or after March 1, 1999.
In EPA-administered States and Indian Country, no individual or
firm can perform, offer, or claim to perform lead-based paint
activities as defined in this subpart, without certification from EPA
to conduct such activities pursuant to Sec. 745.226 on or after August
30, 1999. Such individuals or firms may first apply to EPA for
certification pursuant to section 745.226 after March 1, 1999. In EPA-
administered States and Indian Country, after August 30, 1999 all lead-
based paint activities, as defined in this subpart, must be performed
pursuant to the work practice standards contained in Sec. 745.227.
ADDRESSEES: Copies of this rule, the public comments received on this
rule, EPA's response to those comments and other relevant documents
that support the rule are available for public inspection at EPA's
headquarters office on weekdays, except legal holidays, between the
hours of noon and 4 p.m. at the following location: Environmental
Protection Agency, TSCA Public Docket Office (7407), 401 M St., SW.,
Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: 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, e-
mail: TSCA-Hotline@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Legal Authority
B. Summary
C. Background
II. Consultation with Stakeholders
III. Response to Comments on the Scope of the Rule
A. Building Types
B. Definition of Lead-Based Paint Abatement in Target Housing
and Child-Occupied Facilities
IV. Relationship of Sections 402 and 404 to Section 403 of TSCA
V. Response to Comments on the Accreditation of Training Programs in
Target Housing and Child-Occupied Facilities
A. Framework for Training
B. Training Program Accreditation Requirements
C. Accreditation Application Process
D. Reaccreditation of Training Programs and Quality of
Instruction
VI. Response to Comments on the Training and Certification of
Individuals
A. Training, Education and/or Experience Requirements
B. Passage of the Certification Examination
VII. Framework for Work Practice Standards for Conducting Lead-Based
Paint Activities in Target Housing and Child-Occupied Facilities
A. Introduction
B. Scope and Applicability
C. Use of Guidance and Recordkeeping Requirements
VIII. Response to Comments on Work Practice Standards for Conducting
Lead-Based Paint Activities in Target Housing and Child-Occupied
Facilities
A. Conflict of Interest
B. Inspection
C. Risk Assessment Activities
D. Composite Sampling
E. Abatement
IX. State Programs
A. Introduction
B. Submission of an Application
C. State Certification
D. EPA Approval
E. Model State Program--Guidance to States and Indian Tribes;
EPA Approval Criteria
F. Treatment of Tribes as a State
X. Regulatory Assessment Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Executive Order 12898--Environmental Justice Considerations
XI. Submission to Congress and the General Accounting Office
XII. Rulemaking Record
XIII. References
I. Introduction
A. Legal Authority
The training, certification and accreditation requirements and work
practice standards contained in this rule are being promulgated
pursuant to section 402 of TSCA, 15 U.S.C. 2682, as amended on October
28, 1992. The Model State Program and regulations on the authorization
of State and Tribal lead programs are being promulgated pursuant to
section 404 of TSCA, 15 U.S.C. 2684.
B. Summary
Today's final rule is intended to ensure that individuals
conducting lead-based paint inspections, risk assessments and
abatements in target housing and child-occupied facilities are properly
trained and certified, and that training programs providing instruction
in such activities are accredited. Target housing is defined as any
housing constructed prior to 1978, except housing for the elderly or
persons with disabilities, or any 0-bedroom dwelling. A child-occupied
facility is defined as a building, or portion of a building,
constructed prior to 1978, visited by the same child, 6 years of age or
under, on at least 2 different days within any week,
[[Page 45779]]
provided that each days visit lasts at least 3 hours, the combined
weekly visit lasts at least 6 hours, and the combined annual visits
last at least 60 hours. Child-occupied facilities may include, but are
not limited to, day-care centers, preschools and kindergarten
classrooms.
In addition, the regulations contain a Model State Program (MSP),
which States and Indian Tribes are encouraged to reference and use as
guidance to develop their own Federally authorized lead-based paint
activities programs. The MSP identifies five key elements--training,
accreditation, certification, work practice standards and enforcement--
which EPA believes are needed to promote and develop a qualified and
trained workforce able to conduct lead-based paint activities safely,
effectively and reliably. The regulations also contain procedures for
States and Indian Tribes to follow when applying to EPA for
authorization to administer and enforce a State or Tribal lead-based
paint activities programs.
The MSP will allow States and Indian tribes to manage and
administer these training, accreditation and certification programs at
the State or Tribal level. The Agency believes that programs such as
this, which require among other things the certification of
individuals, are best administered at the State or Tribal level
allowing for individual State or Tribal-specific flexibility.
The purpose of these training, accreditation, and certification
requirements and the work practice standards in today's final rule is
to ensure that lead-based paint abatement professionals, including
workers, supervisors, inspectors, risk assessors, and project
designers, are well-trained in conducting lead-based paint activities
in target housing and child occupied facilities. The rule will also
ensure, through the certification of professionals, that inspections
for the identification of lead-based paint, risk assessments for the
evaluation of lead-based paint hazards, and abatements for the
permanent elimination of lead-based paint hazards are conducted safely,
effectively and reliably. In addition, training providers will be
accredited to ensure that high quality training for these professionals
is available. The Agency believes this certification and accreditation
program will allow homeowners and others to hire a well-qualified work
force that is adequately trained in the proper procedures for
conducting lead-based paint activities.
The work practice standards in today's final rule are not intended
to regulate all activities that involve or disturb lead-based paint,
but only those that are described as an inspection, risk assessment or
abatement by an individual who offers these services. This rule would
not regulate a renovation contractor that incidentally disturbs lead-
based paint or an individual who samples paint on a kitchen cabinet to
determine if the paint contains lead. Today's final rule would cover a
contractor who offers to abate a home of lead-based paint hazards, or
an inspector who offers to conduct a lead-based paint inspection in a
residential dwelling.
Regulated Entities. Potentially regulated entities are those
training providers that would be accredited and those professionals who
would be trained and certified to conduct lead-based paint abatements.
------------------------------------------------------------------------
Examples of Regulated
Category Entities
------------------------------------------------------------------------
Lead abatement professionals Workers, supervisors,
inspectors, risk assessors
and project designers
engaged in lead-based paint
activities
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Training providers Firms providing training
services in lead-based
paint activities
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide of the entities that are likely to be regulated by this action.
This table lists the types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
listed in this table could also be regulated. To determine whether you
or your business is regulated by this action, you should carefully
examine the provisions in part 745 of the regulatory text. If you have
any questions regarding the applicability of this action to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.
C. Background
On October 28, 1992, the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (Title X) became law. As a result, the Toxic
Substances Control Act (TSCA) was amended to include a new title, Title
IV, 15 U.S.C. 2681-2692. TSCA Title IV directs EPA to promulgate
several regulations, including the lead-based paint activities
training, certification, and accreditation requirements, work practice
standards and the MSP included in today's final rule.
The requirements in today's final rule were first proposed on
September 2, 1994 (59 FR 45872) (FRL-4633-9). Several changes have been
made to the proposed rule because of comments received by the Agency.
Nonetheless, the primary objective of the proposed rule and today's
final rule remains the same and is consistent with the goals stated in
Title X and the mandates prescribed in TSCA Title IV.
The primary objective of today's final rule is to address the
nation's need for a qualified and properly trained workforce to assist
in the prevention, detection and elimination of hazards associated with
lead-based paint. By promoting the establishment of this workforce
through today's final rule, the Agency will help to ensure that
individuals and firms conducting lead-based paint activities in target
housing and child-occupied facilities will do so in a way that
safeguards the environment and protects the health of building
occupants, especially children aged 6 years and under.
In addition to today's final rule under sections 402 and 404 of
TSCA, EPA is developing other rules as mandated by other sections of
TSCA Title IV. The relationship of today's final rule to these other
rules is discussed in more detail in Unit IV. of this preamble.
II. Consultation with Stakeholders
Following the September 2, 1994 publication of the lead-based paint
activities proposal, the Agency met at different times with
representatives from various State environmental and public health
agencies. At least three meetings were held with State and Tribal
representatives under the auspices of the Forum on State and Tribal
Toxics Action or FOSTTA. FOSTTA is an organization that serves as a
forum for State and Tribal officials to jointly participate in
addressing national toxics issues, including lead, and to improve
communication and coordination among the States, Indian Tribes and EPA.
Under FOSTTA, a lead project has been established to work with the
States and Tribes on lead-related issues. Between 10 and 12 States
participate on the lead project with EPA.
In addition to FOSTTA, the Agency met on December 5 and 6, 1994,
with 93 representatives from 49 State health and environmental agencies
and 12 representatives from 10 Indian Tribes. Minutes from the FOSTTA
meetings, and the December 1994 meeting are in the docket for today's
final rule (Ref. 1).
In addition to encouraging States and Indian Tribes to submit
written comments on the September 2 proposal,
[[Page 45780]]
the Agency also held meetings with the States and Indian Tribes to
discuss their current and future roles as co-regulators in the area of
lead-based paint activities. These meetings, in combination with the
written comments submitted by the States, helped shape today's final
rule.
III. Response to Comments on the Scope of the Rule
The comment period for the proposed rule extended from September 2,
1994 to December 15, 1994. The Agency received a total of 323 comments
and has reviewed them all. These comments, along with a detailed
summary (Ref. 2) and the Response to Public Comment Document (Ref. 3),
a written response to the issues raised by commenters, can be found in
the public docket for today's final rule.
Based on the public comments, the Agency has made several changes
to the proposed rule. Two of these changes affect the scope of the
final rule by modifying the definitions of the buildings and structures
covered. Additionally, the Agency has amended the definition of
abatement. These changes, and others, are summarized below. For a more
detailed discussion of issues raised by commenters and changes made to
the final rule, readers should refer to the Response to Public Comment
Document.
A. Building Types
One principal change in the final rule is the Agency's decision to
delay promulgation of training and certification requirements and work
practice standards for individuals and firms conducting lead-based
paint activities in public buildings (except child-occupied
facilities), commercial buildings, superstructures and bridges. This
decision was primarily based on the need to clarify the ``deleading''
definition contained in the September 2, 1994 proposal, and the
Agency's desire to avoid conflict and overlap with the training
requirements contained in the Occupational Safety and Health
Administration's (OSHA) interim final lead standard (29 CFR 1926.62).
Under the September 2, 1994 proposal, individuals and firms
conducting deleading activities in public and commercial buildings,
superstructures and bridges would have been subject to EPA training and
certification requirements and work practice standards and, possibly,
the OSHA training requirements contained in OSHA's interim final lead
standard. Under the proposed rule, EPA's intention was to include
OSHA's training requirements in EPA's training and certification
program. However, commenters noted uncertainty as to whether EPA's
proposed definition of ``deleading'' would have included precisely the
same activities which would trigger the training requirements under
OSHA's interim final lead standard.
Consequently, commenters believed that EPA's training and
certification program would have imposed OSHA training when, in fact,
OSHA may not require it. Other commenters also believed that OSHA's
training requirements were adequate and that EPA's training and
certification program was unnecessary for individuals and firms
conducting ``deleading'' activities in public and commercial buildings,
superstructures and bridges.
In its review of the comments received on the deleading definition,
the Agency has determined that the definition of the term needs to be
clarified. At this time, the Agency is continuing to review the public
comments it received on its proposed definition, and is examining
available data for the purposes of developing options to establish
training and certification requirements and work practice standards for
individuals and firms that conduct deleading activities in public and
commercial buildings, superstructures and bridges. The Agency is also
considering options that will eliminate the potential for overlap
between any training requirements EPA may propose in the future and
OSHA training requirements for such individuals and firms.
Another related change involves the Agency's decision to include
requirements for lead-based paint activities conducted in public
buildings (except child-occupied facilities) in the future action
covering commercial buildings, superstructures and bridges.
Accordingly, today's final rule does not cover public buildings
constructed prior to 1978 (except child-occupied facilities).
The Agency is taking this action in response to numerous comments
that urged the Agency to focus its efforts on lead-based paint
activities conducted in housing and other facilities frequented by
children. In the September 2, 1994 proposed rule, individuals and firms
conducting lead-based paint activities in public buildings would have
been required to adhere to the same regulations as in target housing,
regardless of whether children frequented the buildings. In the
September 2, 1994 proposal, the Agency specifically requested comment
on whether all public buildings should be subject to the same
regulations and grouped together in this way with target housing.
A significant majority of commenters expressed concern that
application of these requirements to all public buildings, as defined
in the September 2, 1994 proposal, would have resulted in the
expenditure of substantial resources without a comparable reduction in
lead-based paint exposures among children aged 6 years and under. Under
the September 2, 1994 proposal, the Agency broadly defined public
buildings as ``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 stores, museums, airport
terminals, convention centers, office buildings, restaurants,
hospitals, and government buildings, as well as facilities such as
schools and day-care centers.''
In response to those comments that the Agency focus its
requirements on individuals and firms conducting lead-based paint
activities in buildings frequented by children, today's final rule
establishes a sub-category of public buildings named ``child-occupied
facilities.''
Today's final rule defines a child-occupied facility as ``a
building, or portion of a building, constructed prior to 1978, visited
regularly by the same child, 6 years of age or under, on at least 2
different days within any week (Sunday through Saturday period),
provided that each day's visit lasts at least 3 hours and the combined
weekly visit lasts at least 6 hours, and the combined annual visits
last at least 60 hours. Child-occupied facilities may include, but are
not limited to, day-care centers, preschools and kindergarten
classrooms.''
Under today's final rule, individuals, firms and training providers
that either offer training in the performance of lead-based paint
activities in child-occupied facilities, or that perform or offer to
perform such activities in child-occupied facilities are subject to the
same requirements as individuals, firms and training providers involved
in target housing.
The Agency's decision to define and establish child-occupied
facilities as a sub-category of public buildings with requirements
equivalent to those for target housing is based on one of the key
objectives of today's final rule, which is to prevent and reduce lead
exposures among young children.
The Agency believes that children face potentially equivalent (if
not greater) risks from lead-based paint hazards in schools and day-
care centers as they do at home. Indeed, some
[[Page 45781]]
children spend more time in a particular classroom or day-care room in
a given day or week than they might spend in a single room in their
homes. If that classroom contained a lead-based paint hazard, the
children in it could be at risk.
The Agency believes section 402(b) provides it with the flexibility
necessary to regulate lead-based paint activities in child-occupied
facilities in the same manner it regulates those activities in target
housing. Although section 402(b)(2) uses terms such as
``identification'' and ``deleading'' instead of ``inspection,'' ``risk
assessment'' and ``abatement,'' EPA believes that, given the similarity
of the population to be protected and the nature of the risk they face,
the section 402(b)(2) terms can be understood to include the same types
of lead-based paint activities as specified in section 402(b)(1).
``Identification'' of lead-based paint under section 402(b)(2) is
analogous to ``inspection'' under section 402(b)(1). ``Deleading''
under section 402(b)(2) is equivalent to ``abatement'' under section
402(b)(1). While there is no direct analog in 402(b)(2) to ``risk
assessment,'' EPA believes such activity is fairly (and necessarily,
from a logical perspective) included within the phrase ``activities
conducted by a person who conducts or plans to conduct an elimination
of lead-based paint or lead-based paint hazards.'' (See definitions of
``deleading'' in section 402(b)(2)).
Commenters also supported the Agency's decision to focus on those
buildings or portions of buildings where children spend a significant
amount of time, or that children regularly or frequently use, rather
than all public buildings. Commenters cited preschools and kindergarten
classrooms as examples of the types of buildings that needed to be
included, like target housing, in the regulatory program contained in
today's final rule. By citing such facilities as examples, commenters
appeared to indicate that the Agency should focus on facilities that a
6-year old child regularly attends, rather than facilities that
children may visit intermittently or infrequently, such as museums,
hospitals, grocery stores or airports.
In selecting the 3-hour, 2-day a week time requirement for its
definition of a child-occupied facility, the Agency considered national
survey data compiled by the U.S. Department of Education (Ref. 4) and
the U.S. Bureau of the Census (Ref. 5). Data from the Department of
Education and the Bureau of the Census indicate that children attending
preschool between age 3 and age 6 or under will meet for a minimum of 3
hours a day, 2 days a week.
Based on this data, the Agency chose to define ``child-occupied''
facilities as facilities where a child would spend a minimum of at
least 3 hours a day, 2 days a week. Relying on the available data, the
Agency believes its definition will cover the vast majority of
preschools, kindergartens and day-care centers. Moreover, the decision
to exclude child-occupied facilities constructed after 1978 is
consistent with the statutory definition of both target housing and
public buildings, which exclude both housing and public buildings
constructed after 1978.
The Agency also sought to include only facilities where there is
regular or recurring visitation, over time, by a child, by including a
combined annual visitation minimum of 60 hours. The rationale for this
choice was that a likely minimum recurring visitation schedule for a
child would be a 10-week day-care session, 2 days per week, 3 hours per
day that would be equal to 60 hours.
Today's final rule requires that individuals and firms conducting
lead-based paint activities in child-occupied facilities meet the same
training and certification requirements as individuals and firms
working in target housing. The Agency designed the training and
certification requirements for individuals and firms working in target
housing primarily to ensure that abatement professionals are instructed
on how to conduct lead-based paint activities to identify, reduce or
eliminate lead-based paint hazards that may present risks to children.
Consequently, the Agency believes these requirements are also
appropriate for individuals working in child-occupied facilities.
Commenters did not support the development of a set of work
practice standards for child-occupied facilities that would differ from
the work practice standards in target housing. Nor does the Agency have
any reason to conclude that a different set of work practice standards
should be developed for child-occupied facilities. Consequently, the
work practice standards for child-occupied facilities do not differ
from those work practice standards established by this final rule for
target housing.
The proposed rule specifically exempted from regulation individuals
who perform lead-based paint 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 the activities are
being conducted. The majority of public commenters supported this
exemption and it will remain in the final rule. However, some
commenters expressed concern that homeowners should not perform
abatements in their own home where there is a child with an elevated
blood lead level. The Agency agrees with this comment and has changed
the final rule accordingly.
B. Definition of Lead-Based Paint Abatement in Target Housing and
Child-Occupied Facilities
The Agency received roughly 60 comments on its proposed definition
of lead-based paint abatement. In developing the proposed rule, the
Agency relied on the definition of abatement contained in section 401
of TSCA. Section 401(1) of TSCA defines abatement as:
. . .any set of measures designed to permanently eliminate lead-
based paint hazards in accordance with standards established by the
Administrator under this title. Such term includes:
(A) 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; and
(B) all preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures.
In its September 2, 1994 proposal, the Agency defined ``abatement''
as follows:
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; and
(2) all preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures.
Abatement shall be presumed in the following circumstances:
(A) 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;
(B) projects involving the permanent elimination of lead-based
paint or lead contaminated soil and conducted by firms or
individuals certified in accordance with this Sec. 745.226 or this
regulation; or
(C) 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
[[Page 45782]]
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.
In response to the proposal, commenters expressed concern that the
phrase ``. . .any set of measures. . .'' implied that the Agency
assumed that abatement will always occur throughout an entire
residential dwelling, rather than to some subset of components. The
Agency agrees with the commenters and has clarified its belief that
abatements may be performed on components of buildings, as well as the
whole building, by adding the following phrase: ``any measure or set of
measures designed to permanently eliminate lead-based paint'' to its
definition of abatement in today's final rule.
In the proposed rule, by way of clarification, the Agency provided
three circumstances (see (2)(A)(B) and (C) above) in which abatement
shall be presumed. Commenters noted that, as proposed, these
illustrative circumstances may have resulted in the imposition of
today's requirements upon individuals and firms conducting renovation
and remodeling or other similar nonabatement activities.
For example, a renovation and remodeling contractor may also be
certified as an abatement supervisor or worker, and may choose to
advertise his/her lead-based paint abatement services as one specialty
his/her business can provide. This should not mean that all renovation
or remodeling projects this contractor works on should be considered
abatement for the purposes of this rule. In response to these comments,
Sec. 745.223(3)(ii) and (3)(iii) of the abatement definition in today's
final rule identifies activities that are not considered abatements.
These include renovation and remodeling activities covered by
Sec. 745.223(4) of the abatement defintion which are not specifically
designed to permanently eliminate lead-based paint hazards, but
instead, are designed to repair or remodel a residential dwelling, and
interim control activities.
Another issue raised by commenters was that the Agency's abatement
definition focused on the intent of the building owner and the
individual or firm conducting an abatement. The commenters suggested
that the Agency's intent-based approach creates a loophole for building
owners and contractors who will escape regulation by calling abatement
something else, such as renovation and remodeling. A third concern was
that the definition required abatement activities to result in the
permanent elimination of a lead-based paint hazard, as opposed to a
temporary reduction of a hazard.
Although these comments are not without merit, EPA has decided to
maintain its proposed abatement definition, with some minor
adjustments. EPA believes that the clear intent of Congress was to
focus the scope of this initial regulation on abatement activities, and
to define abatements as those projects where there is a conscious
effort on the part of the building owner and contractor (``measures
designed to'') to permanently eliminate lead-based paint hazards.
In writing its definition of abatement, Congress did not say any
set of measures ``which permanently eliminate'' lead-based paint
hazards. Nor did it say any set of measures ``which have the effect of
permanently eliminating'' lead-based paint hazards. Instead, Congress
defined abatements as any set of measures ``designed to permanently
eliminate'' lead-based paint hazards. Webster's defines the term
``design'' as ``to intend for a definite purpose.'' By including the
phrase ``designed to'' in its definition of abatement, EPA believes
that Congress was specifically directing EPA to regulate as abatements
only those activities which are undertaken with the definite purpose or
intent of permanently eliminating lead-based paint hazards.
The reason for this focus can be found in the legislative history
that accompanies Title X. Prior to the passage of Title X, and even
today, abatements were being conducted to reduce or eliminate lead
exposure to children when in fact they were, because of improper
training or technique, increasing exposures. This situation, in part,
prompted Congress to direct the Agency to develop today's final rule
regulating abatement activities.
Other commenters suggested that the Agency's definition of
abatement should specifically include renovation and remodeling,
interim controls, operations and maintenance, and any other activity
that may disturb lead-based paint and create a potential hazard.
The definition of abatement in section 401(1) of TSCA includes a
list of specific activities (e.g., removal of lead-based paint,
replacement of lead-painted surfaces or fixtures) which are included
within the definition's scope. This list is cited by some commenters as
indicating that abatement should include activities, such as
renovation, that are not necessarily intended to eliminate lead-based
paint hazards. However, in providing this list, Congress did not intend
that it be read or applied in isolation from the preceding intent-based
definitional language. The list provided in section 401(1)(A) and (B)
merely identifies some of the ``measures'' that may be taken by a
contractor to ``permanently eliminate lead-based paint hazards.'' EPA
believes that, for any of the measures specified in section 401(1)(A)
and (B) to be considered abatement, they must also be conducted with
the intent or ``definite purpose'' of permanently eliminating lead-
based paint hazards.
Clearly, Congress recognized that these other activities, such as
renovation or remodeling, may disturb lead-based paint and may result
in lead-based paint hazards. In response to this concern, Congress
directed the Agency, under section 402(c), to conduct a study to
determine the extent to which renovation and remodeling activities may
create lead-based paint hazards. Based on the results of this study,
section 402(c)(3) of TSCA directs EPA to revise today's regulations to
address the lead-based paint hazards associated with renovation and
remodeling. Thus, rather than requiring regulations now for all non-
abatement activities, section 402 of TSCA directs EPA to defer such
regulation pending further study to determine which, if any, renovation
and remodeling-type activities create a lead-based paint hazard.
IV. Relationship of Sections 402 and 404 to Section 403 of TSCA
Under section 403 of TSCA, EPA is developing a rule that will
identify conditions of lead-based paint, and lead levels and conditions
in residential dust and soil that would result in a hazard to building
occupants, especially children age 6 and under. In combination with the
work practice standards contained in Sec. 745.227 of today's final
rule, the Agency expects that the levels and conditions identified in
the TSCA section 403 rule will provide clear direction on how to
identify, prioritize and respond to hazards from lead in and around
target housing.
Promulgation of the TSCA section 403 rule, however, has been
delayed until the Agency completes various information gathering and
assessment activities. On January 3, 1996, the United States District
Court for the Northern District of New York issued a decree, consented
to by EPA and the Atlantic States Legal Foundation (ASLF), that
requires EPA to propose the TSCA section 403 rule by November 30, 1996
and to issue a final rule by September 30, 1997 (Ref. 8).
[[Page 45783]]
In the interim, the Agency has published guidance to assist the
public in identifying lead-based paint hazards, sources of lead
exposure, and the need for control actions in environments where
children may be present.
EPA originally issued this guidance in a July 14, 1994 memorandum
from Lynn R. Goldman, Assistant Administrator for Prevention,
Pesticides and Toxic Substances, to the Agency's Regional Division
Directors, entitled ``Guidance on Residential Lead-Based Paint, Lead-
Contaminated Dust, and Lead-Contaminated Soil'' (the ``section 403
Guidance''). Subsequently, copies of the section 403 Guidance have been
available from the Agency upon request. To further disseminate the
section 403 Guidance, the Agency published the full text of that
document in the Federal Register on September 11, 1995 (60 FR 47248)
(FRL-4969-6).
In the September 2, 1994 preamble, the Agency provided a lengthy
discussion of the relationship between the section 402/404 regulations
and the forthcoming section 403 regulation. The Agency explained why it
believed it was appropriate to offer the section 402/404 rule for
public comment, in the absence of a section 403 regulation (See 59 FR
45875).
In response, the Agency received several public comments. None of
the comments stated that the Agency should not promulgate a final
regulation for lead-based paint activities in target housing without a
final section 403 rule. Seven comments were received from parties with
an interest in public and commercial buildings, superstructures and
bridges, urging the Agency to delay promulgating a TSCA section 402/404
rule covering those types of structures until the section 403 rule has
been promulgated. As discussed previously, today's final rule does not
address these building types, and thus these comments are not
applicable.
Lastly, one commenter stressed the importance of publishing the
TSCA section 403 rule as quickly as possible, but did not suggest that
delaying action on the TSCA section 402/404 rule was necessary.
The Agency understands that without a final section 403 rule
identifying lead-based paint hazards, full implementation of today's
final rule will be difficult. The Agency has addressed this problem in
the ASLF consent decree, by committing to promulgate a final rule under
section 403 by September 30, 1997, well before subpart L of this rule
will become effective in EPA administered States and Indian Country.
V. Response to Comments on the Accreditation of Training Programs
in Target Housing and Child-Occupied Facilities
Section 745.225 includes various requirements and the application
procedures that training programs must follow to become accredited by
EPA to provide instruction in the lead-based paint activities and work
practice standards described in this rule. These procedures and
requirements apply to training programs that will offer both basic and
refresher training courses.
Training programs may offer courses for one or more of the
following five work disciplines: (1) Inspector, (2) risk assessor, (3)
supervisor, (4) abatement worker, and (5) project designer. Minimum
curricula requirements for each of these courses can be found at
Sec. 745.225(d).
The Agency has already developed and released model course
curricula materials for the inspector, risk assessor, supervisor and
abatement worker disciplines. The Agency is currently modifying and
updating these materials, and developing a new model course for project
designers, to reflect the course curricula contained in
Sec. 745.225(d). EPA will make these materials available prior to
August 31, 1998.
The Agency received a variety of comments on the work disciplines,
training courses and accreditation procedures in the proposed rule.
Among the key issues raised were: the number of work disciplines; the
length of the courses; their traditional classroom approach; the course
curricula; the course test and hands-on assessment; instructor
qualifications; and the procedures for applying for accreditation.
In response to these comments, the Agency has adjusted the proposed
rule in several ways. EPA believes these the adjustments will result in
a more flexible accreditation system for both training program
providers and for individuals seeking training and certification
through that system.
A. Framework for Training
Generally, most commenters agreed in principle with the tasks and
responsibilities identified by the Agency under its five work
disciplines: inspector, risk assessor, supervisor, worker, and project
designer. On the other hand, commenters were divided on whether five
separate work disciplines and training courses were needed to
accomplish the tasks and objectives associated with inspection, risk
assessment and abatement. In general, commenters were concerned with
the potential for redundancy and overlap among the proposed five
training courses.
Although the final rule retains five distinct work disciplines, as
originally proposed, the Agency has made several changes to make the
courses more modular in their design, eliminate potential redundancies
in the course curricula, and reduce course length. Because of these
changes, the Agency believes that the market will be better able to
manage and more efficiently provide training to individuals responsible
for performing lead-based paint inspection, risk assessment and
abatement activities.
The Agency has consulted with OSHA to eliminate any redundancies
between the course curricula contained in Sec. 745.225(d)(3) and (5)
for the abatement supervisor and worker, and the training program OSHA
has established under its interim final lead standard (29 CFR 1926.62).
Based on discussions with OSHA and a review of public comments, the
Agency has decided that the best way to eliminate any redundancies or
confusion regarding OSHA training versus EPA training is to remove
OSHA's training program elements from the course curricula contained in
Sec. 745.225(d)(3) and (5).
As a result, training programs have the option of offering courses
in: (1) OSHA training; (2) EPA training; or (3) both OSHA and EPA
training. Only those programs that wish to offer EPA training would
need to apply for accreditation under this rule.
A key difference between OSHA and EPA training is that OSHA
training is primarily designed to reduce the occupational exposure to
lead for construction workers. The OSHA standard establishes maximum
limits of exposure to lead for all workers covered, including an action
level of 30 g/m3 calculated as an 8-hour time-weighted
average (TWA). At or above this action level, workers are subject to
OSHA's training requirements, which primarily involve instruction in
respirator use, engineering and work practice controls for the
containment of lead, and OSHA's medical surveillance program.
In contrast, the primary purpose of EPA training for abatement
workers, supervisors and project designers is to protect building
occupants, particularly children ages 6 years and younger, from
potential lead-based paint hazards and exposures both during and after
an abatement.
The deletion of OSHA's training program elements has helped reduce
the length of the abatement worker course from a proposed 32-hour
course
[[Page 45784]]
(including 10 hours of hands-on instruction) to 16 hours (including 8
hours of hands-on instruction). The Agency has also reduced the
emphasis on providing instruction in basic construction techniques and
focused instead on the practical application of abatement methods and
practices. The Agency believes providing adequate instruction on both
construction and abatement techniques, even in a 32-hour course, would
have been very difficult, if not impossible.
Furthermore, the final rule has retained 8 of the 10 hours of
hands-on instruction, as proposed. Commenters were extremely supportive
of the hands-on requirements of the rule, and the Agency believes that
hands-on training helps trainees to retain the knowledge they acquire.
Incorporating, as it does, 8 hours of hands-on training, the Agency
believes that the 16-hour requirement in the final rule will enable
workers to conduct safe, reliable and effective abatements.
Another change designed to reduce course length and eliminate
overlap in the rule is the decision to establish one 32-hour course
requirement that both supervisors and project designers will take, and
to establish an additional 8-hour course supplement that project
designers are required to take.
Under the proposed rule, supervisors and project designers would
have been required to take one 40-hour course, and project designers
would have been required to take an additional 16-hour course
supplement. Most of the comments on the proposal suggested that the
Agency could combine some of the course topics from the two classes.
As in the proposed rule, the Agency's premise for developing one
course for both supervisors and project designers is the similarity in
the job responsibilities of these two work disciplines. Areas where the
supervisor and project designer share similar learning needs are listed
in the course curriculum at Sec. 745.225(d)(3). Some of the course
topics (e.g., risk assessment/inspection report interpretation) reflect
the Agency's decision to insert topics from the proposed project
designer course into that of the final joint supervisor/project
designer course.
For example, the ability to interpret inspection and risk
assessment reports is a skill that both supervisors and project
designers must have, since they are both responsible for either the
oversight of abatement activities or are responsible for designing
abatement plans based on the results of inspections and risk
assessments.
The course supplement for project designers is intended to provide
specific instruction in designing lead-based paint abatement activities
in target housing and child-occupied facilities. Clearly, this 8-hour
course cannot train an individual in all aspects of project design.
However, the course will compliment the education and skills that
project designers must have (e.g., a degree in engineering or 4 years
experience in building construction and design) by providing lead-
specific design instruction.
The Agency also received several comments regarding the training
for inspectors and risk assessors. Many commenters requested
clarification about whether an individual must take both the inspector
and risk assessor course as a part of the process to become certified
as a risk assessor. The simple answer is yes; however, the inspector
and risk assessor courses do not necessarily have to be taken back-to-
back. Training providers have the option of offering the inspector
course separate from the risk assessor course, although the provider
may choose to offer the two courses as one unit. More detail regarding
the certification process for inspectors and risk assessors is provided
in Unit VI. of this preamble.
An additional change to the rule is the allowance for alternative
training methods, including supplemental at-home study programs. The
Agency specifically requested comment on the use of at-home study
materials and other alternative training methods in its September 2,
1994 proposal. Most of the comments received on this issue supported
the use of alternative training methods in lieu of classroom
instruction, with certain restrictions.
Commenters opposed to the use of alternative training methods
generally expressed reservations regarding the quality of such methods
and the need for the teacher/student interaction afforded in the
classroom.
Based on a review of these comments, the final rule permits the use
of alternative training techniques (e.g., video training, computer-
based training) as a supplement to the hands-on skills assessment or as
a substitute for the lecture portion of the training course
requirements outlined in Sec. 745.225(d). The Agency agrees with
commenters who note that alternative training programs, such as at-home
study, can result in the effective transfer of information, if certain
restrictions are implemented to ensure the quality of these programs.
To ensure the quality of such alternative programs, the final rule
requires training providers who opt to use alternative techniques to
submit all materials as specified under Sec. 745.225(b)(1) as a part of
their application for accreditation. These materials include copies of
the course agenda, and student and instructor manuals.
The accreditation of alternative training programs will be based on
EPA's review of the training materials submitted under
Sec. 745.225(b)(1), including the course agenda and manuals. In its
review, the Agency will consider on a case-by-case basis the provisions
made by a training program to ensure the quality of its course
materials. Based on that review, the Agency may accredit programs
offering alternative training and instructional methods.
In addition, Sec. 745.225(c)(6) of the final rule also requires all
training programs, including those using alternative training methods,
to meet the minimum hourly requirements for hands-on activities in
their training courses. Under Sec. 745.225(c)(7), all training programs
are also required to administer a course test and conduct a hands-on
skills assessment or a proficiency test as discussed below.
One specific example of alternative training/testing techniques
that the rule mentions is the use of a proficiency test in lieu of a
hands-on assessment and course test. A course that offers a proficiency
test would consist primarily of an evaluation of the effectiveness and
reliability of a student's ability to conduct a particular lead-based
paint activity. The proficiency test must also cover all of the topics
and skills addressed in a particular course. For instance, a
proficiency-based course in inspection could involve a mix of lecture
material with students conducting a mock inspection in a residential
dwelling with known lead-based paint concentrations. The student would
be evaluated on the accuracy of the results of their inspection.
One other issue raised by commenters was the lack of detail on
specific activities for the ``hands-on'' component of a course. The
Agency has not however, modified the final rule to specify activities
that training programs must use for the hands-on component of their
courses. The Agency still believes that qualified training programs
should be able, without additional regulation, to develop specific
hands-on activities based on their knowledge of lead-based paint
activities and the industry. Furthermore, the Agency notes that, as the
technologies for conducting lead-based paint activities develop, the
focus of the elements of hands-on training will change. The course
topics required to have a hands-on component are
[[Page 45785]]
marked with an asterisk in Sec. 745.225(d) of the regulatory text.
B. Training Program Accreditation Requirements
1. General comments. The Agency received a significant number of
comments on the qualifications proposed for instructors. Additionally,
commenters requested clarification on whether the Agency requires
training providers to offer courses for individuals who do not speak
English, or who have low reading comprehension. Other commenters asked
the Agency to clarify or change specific aspects of the proposed
accreditation process.
For example, several commenters requested clarification on the
number of instructors that a training program must employ to become
accredited. Some commenters thought that under the September 2, 1994
proposal, a training program would be required to employ a minimum of
three individuals to obtain accreditation: a training manager, a
principal instructor and a work practice instructor. Other commenters
interpreted the proposed rule to mean that at a minimum only one
individual--the training manager--was required to staff a training
program.
On this same topic, some commenters criticized the proposal for
setting up an ``exclusive'' training system. They believed that the
proposed experience, education and other qualifications for the
training manager, and principal and work practice instructors were
excessive. These commenters stated that the proposed qualifications
were unnecessary, and that they would prevent competent and talented
instructors from offering training in lead-based paint activities.
Under the final rule, one person may be employed as both the training
manager and the principal instructor, if the individual possesses the
qualifications listed at Sec. 745.225(c)(1) and (2).
Furthermore, the Agency observes that the final rule no longer
includes work experience or educational prerequisites for work practice
instructors, but instead allows training programs to employ guest work
practice instructors, who may provide either lecture or hands-on
instruction in a course.
Some commenters urged the Agency to stipulate specific
qualifications for guest instructors, or to limit the amount of time a
guest instructor may be employed by a training program. The final rule
does not, however, set such limits. The Agency believes that it would
be too difficult to regulate the qualifications of the many kinds of
inter-disciplinary guest instructors that a training program might want
to employ, given that their backgrounds and credentials will vary
significantly. For example, physicians, certified abatement
supervisors, lawyers, housing officials and other professionals could
possibly be employed as guest instructors. Given the diversity in
education, training and experience among these professionals, the
Agency does not believe that establishing specific qualifications is
either possible or useful and the final rule leaves that determination
to the training manager.
In terms of setting a limit on the amount of time that a guest
instructor may be used, the Agency has placed the responsibility for
ensuring the quality of a training course on the training manager. The
Agency believes that the decision for determining how much time a guest
instructor should be used is a decision best made by the training
manager, in consultation with the principal instructor.
Additionally, the Agency notes that the training manager ultimately
is responsible for ensuring the quality of instruction, and that it is
in the best interest of a training manager to account for the
capabilities and experience of the principal instructors.
Lastly, the Agency notes that today's final rule does not require
training providers to offer courses for individuals who do not speak
English or who have a low reading comprehension. The Agency believes
that training providers should be given the flexibility to offer
special courses for such individuals, depending on demand. However, the
Agency does recommend that training providers make special provisions
to accommodate the needs of individuals who cannot speak English, or
who have a low reading comprehension.
2. Prerequisites--training manager. In addition to these changes,
today's final rule more clearly describes the prerequisites for the
training manager.
For example, under the proposed rule the qualifications required
for a training manager were flexible and intended to accommodate a
broad range of work experience and educational backgrounds.
Specifically, the proposal would have required that training managers,
at a minimum, possess either some training or education in teaching
adults. In addition, the proposal would have required that training
managers possess experience or education in one of three additional
areas, specifically: (1) A bachelor's or graduate degree in building
construction technology, engineering, industrial hygiene, safety, or
public health, or (2) 4 years of experience managing an occupational
health and safety program, or (3) an additional 2 years of experience
teaching adults.
The final rule has been revised, however, to require training
managers to meet any one of the four prerequisites now listed at
Sec. 745.225(c)(1). As discussed later in this section of the preamble,
the prerequisites contained in the final rule are different from those
proposed and include the addition of a fourth alternative prerequisite
under Sec. 745.225(c)(1)(iv).
Additionally, the final rule no longer contains the requirement
that all training managers possess either training or education in
teaching adults. The Agency's decision to eliminate the training or
educational requirement in adult education was based on its review of
several comments. These comments suggested that, although training or
experience in adult education may be valuable, it should not be
required of all training managers, given that the primary function of
the training manager is to administer and manage a training program--
not necessarily to instruct adults. The Agency agrees with these
comments, but notes that the final rule maintains the 2 years of
experience in adult education as one of the four prerequisites that can
now be used to qualify an individual as a training manager.
The decision to retain the 2 years of experience in adult education
as one of the four available prerequisites for qualifying training
managers is based on several factors. The most important factor is the
Agency's desire to accommodate the broad range of work experience and
educational backgrounds that training managers and instructors may
bring to their work. This approach, which most commenters widely
supported, has been retained and further extended under
Sec. 745.225(c)(1) of the final rule.
For instance, in addition to recognizing bachelor or graduate level
degrees in building construction, engineering, industrial hygiene,
safety or public health, the final rule also would permit individuals
who possess a degree in business administration or education to assume
the responsibilities of a training program manager.
Although these experiences may differ from one another, the Agency
believes that an individual can effectively utilize them to ensure the
development of a quality training program. Furthermore, the Agency's
role in the accreditation process also will contribute to the
development and establishment of quality lead-based paint activities
training programs.
[[Page 45786]]
3. Prerequisites--principal instructors. The final rule also
provides a great deal of flexibility in recognizing the work experience
and educational backgrounds of principal instructors. For example,
instead of specifically listing the type of training, experience or
education in teaching adults that a principal instructor must possess--
as had been proposed--the final rule now requires only that a principal
instructor possess demonstrated experience in teaching adults. This
change is based on numerous comments that objected to the specificity
in the proposed rule, particularly the requirement that principal
instructors do one of the following: (1) Complete a 40-hour train-the-
trainer course, or (2) obtain a degree in adult education, or (3)
possess at least 2 years of experience in teaching workers/adults.
Most of the comments on this requirement stated that a 40-hour
train-the-trainer course was too long and/or that the educational
degree or 2-year work experience requirement was excessive. Other
commenters requested clarification on what constituted 2 years of work
experience, and noted that a 40-hour train-the-trainer course was not
available for the purposes of qualifying principal instructors.
Based on its review of this proposed requirement and in response to
these comments, the Agency revised the final rule to require that
principal instructors possess demonstrated experience, education or
training in teaching workers/adults, as well as a minimum of 16 hours
in lead-specific training. Commenters on the proposal also stated that
requiring principal instructors to have 2 years experience in the
construction industry would limit the number of qualified instructors.
In response, the Agency now requires that principal instructors possess
demonstrated experience, education or training in lead or asbestos
abatement, painting, carpentry, renovation, remodeling, occupational
safety and health or industrial hygiene.
Although the term ``demonstrated'' is very broad, the Agency
believes that the final rule should accommodate the wide range of
experiences that principal instructors may have acquired in teaching
adults. This requirement will allow an instructor to demonstrate,
through a variety of materials--official academic transcripts, resumes,
letters of reference, certificates from training courses--that they
possess the skills or experience necessary to provide effective
instruction. This approach is preferable to attempting to develop an
exhaustive list of work experiences or academic degrees, that will
invariably omit an unthought-of, but relevant, job title.
C. Accreditation Application Process
The Agency received a variety of comments on the process of
applying for accreditation. Some commenters indicated that the Agency
should have required more documentation as a part of the application
process, while other commenters felt that fewer documents and less
information were needed to complete an application package.
The information and materials to be submitted by training programs
as a part of the application process are specified at
Sec. 745.225(b)(1) in today's final rule. With some minor exceptions,
as described below, EPA has retained most of the information and
documentation requested from the proposed rule.
For example, the Agency will no longer require that training
programs submit examples of course completion certificates, since it is
unlikely that receipt of such copies will help prevent fraud or
misrepresentation of such certificates.
As a matter of clarification, a few commenters thought that the
proposed rule would have required that training programs submit to EPA
the documentation listed at Sec. 745.225(c)(4), as proof of the
qualifications of its instructors. Under the final rule, the Agency has
now clarified that it does not require these documents as part of the
application process for accreditation. Rather, they are to be retained
at the training site and must be made available to the Agency in the
event of an inspection, audit or an enforcement action.
Comments also were received asking the Agency to specify the
facilities and type of equipment needed to deliver quality training,
and clarification on whether training programs should submit separate
descriptions of facilities and equipment when conducting off-site
training.
In its review of these requests, the Agency believes that some
commenters felt EPA should assist the training community in
establishing a floor for the type of equipment investments that a
training facility should make. EPA disagrees that it should play a
direct role as a part of the regulatory process in these matters. The
Agency also believes it is not necessary to specify the facilities,
type of equipment and other related details that training programs
should employ as a part of their routine operations.
Rather, the Agency believes that training providers should review
the course curriculum requirements contained in Sec. 745.225(d) of the
final rule, and, if possible, obtain copies of or information on the
model course curricula developed by the Agency. This type of
information should assist in determining the type of equipment and
other materials that will be needed to provide instruction in lead-
based paint activities.
Other commenters asked the Agency to specify the content of a
course test blueprint and the activities that should be included as a
part of the hands-on assessment. The test blueprint should outline the
training objectives of the course. Presumably, these objectives will be
the basis for developing course test questions, and providers should
indicate that. The Agency does not believe it needs to further clarify,
for qualified training providers, what activities constitute hands-on
training. Training providers should be able to develop suitable hands-
on exercises to meet the accreditation requirements given the direction
provided in the rule.
Several comments were received on the Agency's requirement that, in
order to provide refresher training courses in one or more disciplines,
a training program must either simultaneously apply for accreditation
to teach the corresponding full length course(s) or already be
accredited to teach the corresponding course. Among the comments
received on this requirement, a small majority favored it.
Despite this support, the Agency has eliminated this requirement
for several reasons. One is that the Agency recognizes that under the
grandfathering provisions contained in Sec. 745.226(d) there is likely
to be a high level of demand for refresher training, once Sec. 745.225
becomes effective. Therefore, the Agency believes that maximizing the
opportunities for providers to offer refresher training courses will be
necessary to assist the training community in meeting the demand for
these courses. Under Sec. 745.225(e), training programs will be
required to link the instruction and testing provided in a refresher
training course with the course topics contained in Sec. 745.225(d), as
appropriate. This will help ensure consistency between EPA's full-
length and refresher training curricula. Furthermore, the policy of
permitting training programs to offer refresher-only training--without
a precondition of offering full-length courses--is consistent with
other Agency directives and policies issued under the Asbestos Hazard
Emergency Response Act of 1986.
[[Page 45787]]
D. Re-accreditation of Training Programs and Quality of Instruction
Section 745.225(f) contains requirements to ensure the continued
availability of quality training by requiring training providers to
apply for re-accreditation every 4 years. The reaccreditation process
is very similar to the initial application process.
Commenters were generally supportive of the requirements for re-
accrediting training providers, although a few commenters suggested
that training providers should be re-accredited more frequently than
every 3 years. They reasoned that re-accreditation is necessary more
than once every 3 years because of rapid technological changes in the
lead-based paint activities field and the need to ensure that training
courses provide instruction in the most current technology.
The Agency disagrees with this comment. Under the accreditation
program established by today's final rule, EPA will maintain a list of
accredited training programs. When a technological advance or other
significant information develops that EPA believes would benefit the
lead-based paint activities training community, EPA will provide this
information to the accredited training providers. The Agency believes
that keeping training providers informed of recent advances in
technology allows training providers to be re-accredited every 4 years.
Some commenters expressed concern that the rule would not ensure
that a training program would continue to offer the same quality of
instruction in the years after initial accreditation. Further, these
commenters were concerned that the proposed re-accreditation
requirements did not fully address this issue. In response, the Agency
has changed the final rule to require that training providers include a
description of changes to training facilities or equipment since their
last application was approved. This description should only include
changes that would adversely affect the ability of students to learn.
An example of such a change would be the loss of facilities to be used
for hands-on instruction.
In order to further improve the quality of instruction, the Agency
is exploring the possibility of providing pass/fail data from the
third-party certification exam to training providers for their
students. This information can be used by the provider to adjust their
curriculum or instruction over time to maintain an acceptable (as
determined by the provider) pass rate.
VI. Response to Comments on the Training and Certification of
Individuals
Today's final rule recognizes five work disciplines: inspector,
risk assessor, supervisor, abatement worker, and project designer.
Training requirements and certification procedures for individuals
working within these disciplines are established under Sec. 745.226 of
this rule. These include specific training, education and/or experience
requirements and, for the inspector, risk assessor and supervisor
disciplines, passage of a certification examination.
In response to comments, the Agency has simplified the titles for
some of the work disciplines: the ``inspector technician'' is now
called the ``inspector''; the ``inspector/risk assessor'' is simply the
``risk assessor''; and the ``project designer/planner'' is now the
``project designer.''
Under today's final rule, certified individuals may only perform
lead-based paint activities in the following work disciplines:
Certified inspectors may perform inspection and abatement clearance
activities as described in Sec. 745.227(b) and (e)(8) and (e)(9);
Certified risk assessors may perform inspection, abatement
clearance, lead-hazard screen or risk assessment activities, as
described in Sec. 745.227(b), (c), (d), and (e)(8) and (e)(9); and
Certified supervisors, abatement workers and project designers may
perform abatement activities as described in Sec. 745.227(e).
The final rule also does not limit or define the circumstances
under which a project designer must be used. In the proposal, the
Agency would have required the use of a project designer on all
abatement projects of 10 residential dwellings or more. The Agency is
concerned that such a requirement would be too inflexible and would not
account for the varying complexity of abatement projects. The Agency
did not find compelling support among commenters for this provision,
and it has been eliminated. The Agency will provide training and
certification for individuals who seek to offer abatement project
design services, but it is the building owner who must decide if a
project designer is needed on a particular project.
Another change to the final rule is the extension of the
recertification interval from the 3 years proposed to 5 years, for
individuals who have passed a proficiency test as part of their
training. (See the discussion of proficiency training in Unit V. of
this preamble). The rationale for this change is that such an
individual will have demonstrated a high level of proficiency in the
field in which they are certified, and thus it is presumed that they
would require less frequent re-training.
Comments on the training and certification requirements for
individuals working in the lead-based paint activities field focused on
two key areas: the applicability of specific education and experience
prerequisites as a part of the certification process; and the use of an
examination in the certification process.
A. Training, Education and/or Experience Requirements
In general, commenters agreed with the proposed rule's five
designated work disciplines and the lead-based paint activities
associated with each, with some minor exceptions. A key issue raised by
commenters, however, was the Agency's establishment of specific
education and/or experience requirements.
Although the Agency neither proposed nor requested comment
specifically on the possibility of exempting any industry or group of
professionals from either part or all of its proposed training and
certification requirements, several requests were received for such
exemptions. Commenters submitted requests for some type of exemption
for the following professions, among others: certified industrial
hygienists, professional engineers, licensed architects, toxicologists,
code enforcement officials, safety professionals, nurses, social
workers and environmental professionals, and ``experienced'' State and
local health officials.
Among the comments in support of exemptions, proposals ranged from
blanket exemptions to, more commonly, various forms of partial
exemptions. At least one commenter provided an alternative training
course deemed more suitable to its members than the course proposed by
EPA. This commenter also requested that the Agency recognize various
levels of competency among the members of its organization, and
suggested a tiered approach for exempting individuals from particular
training requirements to address those levels of competency.
Although most of the commenters were seeking an exemption from the
training and certification requirements for the risk assessor
discipline, other similar requests were sought for the
[[Page 45788]]
supervisor, project designer and inspector disciplines.
Commenters representing various trade organizations based their
reasons for seeking a training exemption on the level of education and/
or experience their professional members already possess. In some
instances, commenters also referenced an existing certification process
that their members must undergo and implied that this certification
process equaled or exceeded the certification process proposed by the
Agency for lead-based paint professionals.
In general, the Agency agrees that the basic work experience and/or
educational requirements of many nationally recognized certification
programs either meet or exceed the experience and/or educational
prerequisites contained in today's final rule under Sec. 745.226(b) and
(c). Several of these certification programs are covered by
Sec. 745.226(b)(1)(iii)(B)(3) of the rule, including programs sponsored
by the American Board of Industrial Hygiene, the National Society of
Professional Engineers and the Board of Certified Safety Professionals.
Additionally, members of other organizations who possess the minimum
work experience and/or educational requirements contained in
Sec. 745.226(b) or (c) also may qualify to become certified under
today's final rule.
However, the Agency disagrees that work experience and/or
educational prerequisites alone ought to be sufficient for the purposes
of certifying individuals to conduct lead-based paint activities.
Further, the Agency does not believe that the certification programs
identified by commenters adequately address and specifically provide
training in the identification, evaluation and abatement of lead-based
paint and its associated hazards. Notably, none of the commenters
provided the Agency with evidence of a currently available training
course and/or module that expressly addresses lead-based paint
activities as part of their professional certification process.
Furthermore, commenters did not present evidence that their
certification programs included hands-on instruction in the conduct of
lead-based paint activities, which is a critical element of the
training courses in today's final rule.
Therefore, although the certification requirements contained in
Sec. 745.226(b) and (c) recognize a broad range of work experiences and
educational backgrounds as the first step in qualifying to become an
inspector, risk assessor, supervisor, project designer or abatement
worker, the final rule does not provide for any training exemptions. A
primary reason is that the lead-based paint activities field is a new
field, and that a majority of the individuals entering it--despite
their expertise in similar fields--may not possess either direct
experience, or an education that has focused on the identification and
elimination of lead-based paint hazards. Consequently, the Agency
believes that, in most cases, individuals entering the lead-based paint
activities field will need specialized training. The Agency is willing
to work with professional organizations and other groups that want to
develop training courses for their members that meet EPA's
accreditation requirements.
However, the Agency is aware that there are individuals and groups
who have been working in the lead-based paint activities field prior to
the promulgation of today's final rule. These individuals need to
reference Sec. 745.226(d) of the final rule which contains the Agency's
criteria for recognizing the work experience, education and training,
or on-the-job training that individuals may have received prior to the
effective date of Sec. 745.225.
If an individual determines that he or she meets the requirements
contained in Sec. 745.226(d), the individual may apply for
certification under the reduced set of requirements and within the
limitations contained in that section. Under these requirements,
qualified individuals are required to successfully complete a refresher
training course specific to the certification they are seeking, and if
required under Sec. 745.226(b), to pass a certification examination.
In addition to the broad issue of exemptions, comments also were
received on various educational and experience requirements specific to
the inspector, risk assessor and supervisor disciplines. Under the
proposed rule, the Agency had opted not to impose educational and
experience requirements for either the abatement worker or project
designer. This was due primarily to language in Title X, section
1004(3)(B)'s definition of ``certified contractor'' as it pertains to
these two disciplines.
However, based on overwhelming support among commenters, today's
final rule adds educational and experience requirements for the project
designers, though not for workers. These requirements are contained in
Sec. 745.226(c)(1)(ii)(B), and include either: (1) A bachelor's degree
in engineering, architecture, or a related profession and 1 year of
experience in building construction and design or a related field; or
(2) 4 years of experience in building construction and design or a
related field.
The basis for this requirement is EPA's belief, as reflected by a
majority of commenters, that a project designer should have significant
work experience, or a professional degree and some experience, in
building design, or a related field, such as architecture or civil
engineering.
Although the support was not nearly as broad or consistent,
commenters also asked for modifications to the education and experience
requirements for the inspector and risk assessor disciplines.
Specifically, some commenters suggested that the Agency require that an
inspector possess at least a high school diploma or equivalent to
obtain certification. The Agency declined to include this requirement
as a part of the certification process for inspectors, in part, based
on its desire to provide individuals with an entry level position into
the lead-based paint activities field. In response to comments that a
high school degree or equivalent is needed to ensure a minimum level of
competency among inspectors, the Agency believes that its training
requirements and the certification examination will ensure an
acceptable level of competency.
In the case of education and/or experience requirements for risk
assessors, the proposed rule has been modified at
Sec. 745.226(b)(1)(iii)(B) to clarify the various mixes of education
and experience that are acceptable for certification as a risk
assessor. As discussed in the proposed rule, the educational and
experience requirements for risk assessors are extremely important,
given the pivotal role of a risk assessor in evaluating and presenting
options to reduce lead-based paint hazards. The certified risk assessor
must be qualified to make a competent, and rational assessment of the
location and severity of any lead-based paint hazards. Based on that
role, the Agency has developed work experience and/or educational
prerequisites, which in combination with the training contained in
Sec. 745.225(d)(1) and (2) and the work practice standards contained in
Sec. 745.227(b), (c), (d) and (e), will enable the risk assessor to
identify risks associated with lead-based paint hazards and to develop
options to eliminate those hazards.
These credentials are very similar to those contained in the
proposed rule with the exception that certified industrial hygienists,
professional engineers, registered architects and other professionals
listed under Sec. 745.226(b)(1)(iii)(B)(3) are not required to possess
1 year of experience before becoming trained as risk assessors. The
[[Page 45789]]
decision to eliminate the 1 year of experience was based on the
Agency's review of comments and the fact that many professional
certification programs already incorporate various work experience
prerequisites, which in some cases are comparable to the prerequisites
listed in the proposed rule.
For example, to register as a professional engineer, an individual
is required to possess a 4-year degree, and 4 years of progressive
experience on engineering projects. The program for certified safety
professionals also includes a 4-year degree and the 4-year work
experience requirement.
Furthermore, the Agency notes that the academic training of these
professionals also may cover subjects relating to building design,
construction, environmental remediation and other areas relevant to
lead-based activities.
The Agency also notes that it does not necessarily view the
alternative work experience and/or educational prerequisites listed
under Sec. 745.226(b)(1)(iii)(B) for risk assessors;
Sec. 745.226(b)(1)(iii)(C) for supervisors; and
Sec. 745.226(c)(1)(ii)(B) for project designers as necessarily
equivalent. Rather, as was the case in establishing experience and/or
educational prerequisites for training program managers and principal
instructors, the Agency's intention is to recognize a broad range of
relevant qualifications that individuals entering the lead-based paint
activities field are likely to possess.
For example, the experience and education of a certified industrial
hygienist who has worked in the chemical industry may be very different
from that of a professional engineer who has worked in building
construction. However, the Agency believes that both these individuals
can be trained as risk assessors.
B. Passage of the Certification Examination
In addition to training requirements and educational and experience
requirements, individuals seeking to become certified as inspectors,
risk assessors and supervisors are required to pass a certification
examination, in addition to a course examination. The purpose of the
certification examination is twofold.
One reason for the examination is to ensure that each individual
certified under today's regulations will possess a minimum, acceptable
level of knowledge and understanding of the tasks and responsibilities
associated with the relevant work discipline. Other major functions of
the certification examination are to provide a universal tool to
measure an individual's knowledge, and to encourage States or Tribes to
enter reciprocal certification arrangements with other States or
Tribes.
Comments on the utility of a certification examination were
generally supportive. Commenters understood the function of the
examination and agreed to it in principle. Nonetheless, commenters,
particularly State commenters, stressed that EPA incorporate security
and quality control measures to ensure the integrity of the
examination. Additionally, States indicated that they did not
necessarily want to adopt EPA's certification examination, but might
want to develop their own examination or use the EPA examination and
add a State specific component.
In response, outside the regulatory framework of this rule, the
Agency has been working closely with the States to develop a
certification examination. In general, the goal of the certification
examination process is to give each State the flexibility it desires to
fashion its certification program, while at the same time ensure a
consistent national level of competence in the lead-based paint
activities workforce. As currently designed, the exam will include
provisions to maintain the security of the item bank of questions.
VII. Framework for Work Practice Standards for Conducting Lead-
Based Paint Activities in Target Housing and Child-Occupied
Facilities
A. Introduction
Section 745.227 establishes standards for conducting three lead-
based paint activities: inspection, risk assessment and abatement. In
addition, Sec. 745.227 provides requirements for conducting three
related tasks that may be performed as either single tasks or as a part
of an inspection, risk assessment or abatement. These three tasks are:
a lead hazard screen, laboratory analysis, and composite dust sampling.
Section 745.227 also establishes certain recordkeeping requirements.
This section of the rule also establishes the dates by which compliance
with these standards and procedures is required.
The standards and procedures for conducting the lead-based paint
activities contained in Sec. 745.227 are being issued under authority
of TSCA section 402(a), which directs EPA to issue such standards,
taking into account reliability, effectiveness and safety.
B. Scope and Applicability
Under today's final rule, the standards for lead-based paint
activities contained in Sec. 745.227 apply only in target housing and
child-occupied facilities. Standards for lead-based paint activities
conducted in steel structures and public and commercial buildings,
which had been proposed on September 2, 1994, will be addressed after
further Agency review. A discussion of the Agency's decision to address
steel structures and public and commercial buildings outside this
rulemaking is presented in Unit II.A. of this preamble.
Another important feature of the standards contained in
Sec. 745.227 is that they do not mandate circumstances under which any
particular lead-based paint activity must be performed. Instead the
decision to, for example conduct an inspection, is left to the building
owner.
Additionally, the Agency is preparing a rule under TSCA section 403
that will identify conditions of lead-based paint and lead levels and
conditions in residential soil and dust that would result in a hazard
to building occupants. Although the TSCA section 403 rule has not yet
been proposed, Agency guidance on this subject was issued July 14,
1994, and is discussed in detail in Unit IV. of this preamble. The
section 403 Guidance also includes recommendations on actions that can
be taken in response to conditions of lead-based paint and lead levels
and conditions in residential soil and dust.
Until the final section 403 rule is promulgated, the Agency
recommends that individuals and firms refer to the section 403 Guidance
for assistance in identifying the presence of a lead-based paint hazard
and deciding whether to conduct lead-based paint activities.
The primary purpose of the standards in today's final rule is to
provide certified individuals and firms with a set of minimum
requirements to be followed when conducting inspection, risk assessment
or abatement activities. These requirements are primarily procedural in
nature: for inspection, risk assessment and abatement activities, the
standards specify the steps that EPA believes must be taken to conduct
those activities safely, effectively and reliably. For abatement
activities, the standards also place restrictions on certain techniques
used to eliminate lead-based paint.
C. Use of Guidance and Recordkeeping Requirements
Today's final rule does not prescribe detailed work practices that
should be followed for each unique situation in
[[Page 45790]]
which lead-based paint activities may be conducted. For that level of
detail, individuals should consult Federal and State guidance that
provides specific instruction on how to conduct inspection, risk
assessment and abatement activities. These guidance documents include:
the U.S. Department of Housing and Urban Development's Guidelines for
the Control of Lead-Based Paint Hazards in Housing (HUD Guidelines)
(Ref. 6), the section 403 Guidance, EPA's Residential Sampling for
Lead: Protocols for Dust and Soil Sampling (Ref. 7), and any additional
guidance issued by States or Indian Tribes that have been authorized by
EPA under Sec. 745.324 of this rule. While not regulatory requirements,
these documents are recommended by the Agency because they provide
reliable and effective information on this subject. Additionally,
training courses that have been accredited by EPA or an EPA-authorized
State or Tribe will provide detailed instruction on inspection, risk
assessment and abatement standards and methodologies.
To complement the existing guidance documents, the Agency is
currently preparing a technical guidance document as a companion to
this rule. The Agency will distribute this guidance document to
accredited training providers, the lead-based paint activities
contracting community, and State and local governments, prior to the
date that compliance with Sec. 745.225 of this rule is required.
In its decision to recommend guidance as an adjunct to the
requirements at Sec. 745.227, the Agency carefully considered several
factors, including enforcement issues and comments received from the
public on this approach.
With regard to enforcement, many of the work practice standards
contained in Sec. 745.227 of today's final rule, such as sampling
methodologies and visual inspection techniques, refer to guidance. As a
result, the Agency recognizes that there are questions about the extent
to which it will be able to take an enforcement action against
individuals who choose not to use the various guidance recommended by
EPA. Nonetheless, the Agency has many reasons for deciding to reference
and develop guidance as a supplement to this rule, rather than to
promulgate rigid work practice standards.
The September 2, 1994 proposal specifically requested comments on
the use of guidance as a supplement to the rule's basic regulatory
requirements. In general, the majority of commenters support the use of
guidance as a supplement to the regulatory requirements contained in
Sec. 745.227. In some cases, commenters directly expressed their
support, whereas in other cases, commenters expressed neither support
nor opposition. Overall, the Agency believes that commenters accepted
its proposed approach of referring to guidance.
The Agency believes there are several reasons to recommend guidance
rather than to establish detailed national work practice standards
for the purposes of providing instruction on how to conduct specific
lead-based paint activities.
First, as discussed in the September 1994 proposed rule, the Agency
drew from a large body of existing information and research, and the
input from a broad range of individuals and groups, to develop its
proposed regulatory standards for lead-based paint activities. Based on
that information and input, the standards proposed in September
included strict reporting requirements and documentation of the quality
control measures and methodologies employed when conducting inspection,
risk assessment and abatement activities. These reporting and
documentation requirements remain a critical component of the standards
established by today's final rule. In combination with the rule's basic
work practice standards, training, certification and accreditation
requirements, the reporting/documentation activities will help to
ensure the effectiveness of the standards and facilitate the use of
guidance.
A second reason for relying on non-regulatory guidance instead of
rule-based standards is the number of differences that can be found in
the structure, design and occupant use patterns of the residential
dwellings and child-occupied facilities covered by this rule. For
example, under the standards for conducting a risk assessment at
Sec. 745.227(d)(4), a risk assessor is required to collect dust samples
in rooms where children aged 6 years and under are most likely to come
into contact with dust. The rule does not prescribe precisely which
rooms or how many samples to collect, because the risk assessor needs
to consider site-specific variables to determine which rooms should be
sampled and the number of samples that should be taken from each room.
These variables include: the size and number of rooms in the building;
interior design elements in a building and differences in designated
play areas for a child; the location of windows and doors; the
condition of door frames, window troughs and stools; and occupant use
patterns.
As a specific example, in a small residential dwelling, a child may
not have a separate playroom, but may play in selected areas of one
room or more, such as a corner in a living room or dining room, or may
have a bedroom that doubles as a playroom. On the other hand, in a
large residential dwelling, a child may have a separate playroom and
bedroom, and certain areas in a living room or family room for play
activity. Furthermore, a child's pattern of use in a residential
dwelling can vary considerably, and that pattern may only be possible
to determine through an interview with a guardian.
Based on these and other variables that may be encountered when
conducting a risk assessment, inspection or abatement, the Agency
believes that to try to anticipate and attempt to list all
circumstances that may be encountered would make the regulation overly
prescriptive and rigid. However, by establishing minimum requirements
and basic procedures for conducting inspection, risk assessment and
abatement activities, the Agency is setting a safe, reliable and
effective baseline of steps for certified individuals and firms to
follow to make sound decisions based on site-specific conditions.
A third reason for the Agency's decision to avoid being overly
prescriptive is the state of technology within the lead-based paint
activities field. Although there has been progress in the development
of new technologies to support specific lead-based paint identification
techniques and abatement methods, the Agency recognizes that the field
is advancing and that the technologies and methods that will help
define it are still evolving.
Consequently, the standards contained in today's final rule do not
specify that certain technologies or methods be utilized for sampling
and analysis. Additionally, the rule does not prescribe any specific
methods or technologies for conducting an abatement, although it does
restrict certain work practices known to pose risks to building
occupants, workers and the environment.
As had been proposed, today's final rule relies on the use of
documented methodologies that incorporate adequate quality control
measures. These methodologies and measures are available in existing
Federal and State guidance documents, and will be taught at accredited
training programs.
Although not overly detailed or prescriptive, EPA believes that the
work practice standards contained in today's
[[Page 45791]]
final rule under Sec. 745.227 provide a baseline, which in combination
with the training, certification and accreditation requirements
contained in Secs. 745.225 and 745.226, will ensure that lead-based
paint activities are conducted reliably, safely and effectively.
VIII. Response to Comments on Work Practice Standards for
Conducting Lead-Based Paint Activities in Target Housing and Child-
Occupied Facilities
A. Conflict of Interest
In its September 2, 1994 proposal, EPA requested comment on whether
to preclude individuals or firms conducting abatement activities from
performing inspection and risk assessment activities, and from
performing clearance procedures following an abatement. Although many
public commenters supported a requirement that inspection, risk
assessment and clearance procedures be conducted by individuals and
firms independent of the individuals and firms conducting abatements,
today's final rule does not include such a requirement.
The Agency agrees with other commenters--those who did not support
a conflict-of-interest requirement--that the potential convenience and
cost savings of hiring one firm, as opposed to two or three firms,
should not be denied to property owners. The Agency also notes that
there may be instances in which, due to a regional scarcity of lead-
based paint professionals, it may be cost prohibitive or logistically
difficult for a building owner to hire two different companies.
Nonetheless, the Agency believes that parties involved in lead-
based paint activities should avoid situations of potential conflict of
interest. Through various public education and outreach programs,
sponsored by both public and private organizations including EPA, the
Agency believes that over time, the public's awareness and
understanding of the options available for identifying and managing
lead-based paint hazards will improve. With this knowledge, property
owners and building occupants will be able to determine the value of
hiring more than one firm to assist in evaluating, controlling or
eliminating lead-based paint hazards.
Furthermore, to assist building owners and other individuals or
firms that may contract for the services of a lead-based paint
contractor, EPA recommends that inspectors, risk assessors and other
lead-based paint activities contractors disclose any potential
conflicting financial interest in the reports that they prepare
pursuant to Sec. 745.227(h).
B. Inspection
The objective of an inspection is to determine, and then report on,
the existence of lead-based paint through a surface-by-surface
investigation of a residential dwelling or child-occupied facility. As
such, an inspection involves identifying the presence of lead in paint.
An inspection does not include taking dust or soil samples. An
inspection must be conducted by either a certified inspector or a
certified risk assessor, and must include the provision of a report
explaining the results of the investigation.
The inspection standards contained in Sec. 745.227(b) reflect the
Agency's decision not to provide detailed regulatory requirements on
how to perform specific lead-based paint identification tasks, such as
taking a paint chip sample or using an X-ray fluorescence (XRF) device.
In the final rule, the Agency also has removed specific requirements to
use the HUD Guidelines when collecting paint chip samples or when using
an XRF device to test for the presence of lead-based paint.
Instead, the Agency requires that a lead-based paint inspection be
conducted using documented methodologies and adequate quality control
measures. These documented methodologies are defined as methods or
protocols used to sample for the presence of lead in paint, dust, and
soil. Documented methodologies that are appropriate for the purposes of
this section may be found in: (1) The HUD Guidelines; the EPA Guidance
on Residential Lead-Based Paint, Lead-Contaminated Dust, and Lead-
Contaminated Soil (60 FR 47248); the EPA's Residential Sampling for
Lead: Protocols for Dust and Soil Sampling and other EPA sampling
guidance; and (2) Regulations, guidance, methods or protocols issued by
States and Indian Tribes that have been authorized under Sec. 745.324.
Additionally these methodologies will be included in EPA's technical
guidance on lead-based paint activities.
Although commenters generally supported this approach, at least
three responses suggested that the Agency provide detailed regulations
for lead-based paint testing. However, one of these commenters
indicated that guidance may be an acceptable approach for establishing
testing protocols. These commenters were concerned about the
enforcement issues associated with the rule's dependence on documented
methodologies, which to date have only been issued by HUD, EPA and
various State agencies, primarily as guidance.
However, other commenters did not object to the Agency's use of
documented methodologies, provided that records are kept as part of the
inspection, and that such methodologies are acknowledged as documented
methodologies by EPA through future guidance or regulations. As
discussed, the Agency is currently preparing a technical guidance
document for conducting lead-based paint activities. Additionally, it
is possible that the Agency may amend the regulation with more detailed
standards in the future, if there is a need to do so.
One reason commenters suggested that the Agency not require certain
inspection techniques is that such requirements often have the effect
of discouraging the development of emerging or new technologies. For
example, the Agency currently does not recommend that chemical test
kits be used for lead-based paint testing (Ref. 8). However, EPA
recognizes that at some point in the future, test kit technology is
likely to be improved so that the kits can provide reliable test
results. At that time, the Agency will be able to recommend chemical
test kits for testing for the presence of lead in paint.
Two other key issues raised by commenters were: (1) Potential
limitations of the proposed procedures for conducting an inspection,
assuming that an inspection involves the investigation for lead-based
paint throughout an entire residential dwelling or child-occupied
facility, rather than a ``partial inspection'' of just one or more
rooms in a residential dwelling or child-occupied facility; and (2) the
standard contained in Sec. 745.227(b)(2), which requires the testing of
all components of a residential dwelling or child-occupied facility
with a ``distinct painting history,'' yet allows inspectors not to test
those components determined by the inspector or risk assessor as having
been replaced after 1978.
1. Partial inspections. The Agency recognizes that there may be a
demand for lead-based paint identification services that do not involve
a surface-by-surface investigation for the presence of lead-based paint
throughout an entire residential dwelling or child-occupied facility.
For example, a homeowner may only be interested in determining if lead
is present in the paint in a child's bedroom, not necessarily the
entire residential dwelling. In this instance, it is unlikely that the
homeowner will want to pay for an inspection, as defined under today's
regulations.
[[Page 45792]]
Although not required, the Agency recommends that a certified inspector
or risk assessor be used in cases, such as these, where an individual
or firm believes it is only necessary to conduct a ``partial
inspection'' of a property.
More specifically, in response to commenters on this issue, the
Agency believes that the definition of an inspection, which under
Sec. 745.227(b) requires that testing for lead-based paint take place
throughout an entire residential dwelling or child-occupied facility,
is appropriate for several reasons.
One reason is that the statutory definition of an inspection in
section 401(7) of TSCA calls for a ``surface-by-surface investigation
to determine the presence of lead-based paint and the provision of a
report explaining the results of the investigation.'' As discussed in
the September 2, 1994 proposal, the Agency believes that an inspection
is intended to provide a comprehensive inventory of all lead-based
paint in a residential dwelling or child-occupied facility. As such,
the Agency acknowledges, that the value of a lead-based paint
inspection may appeal only to those individuals interested in getting a
complete report on painted components in a residential dwelling or
child-occupied facility. Although it is difficult to predict, the
Agency believes that such a report may be of value to property owners
or managers of large multi-family dwellings and child-occupied
facilities and home buyers.
Furthermore, the Agency notes that its inspection requirements are
consistent with general trends in the housing market, particularly in
federally-owned housing or housing receiving federal assistance. That
is, inspections are being conducted to ensure that building owners are
informed of the presence of lead-based paint throughout a residential
dwelling or child-occupied facility, not just one or two rooms.
Lastly, the Agency believes that by establishing requirements only
for ``whole house'' inspections it will help ensure that the
information needed to determine whether lead-based paint is present in
a residential dwelling or child-occupied facility is accurately
presented. Again, the Agency recognizes that an inspection, as defined
under today's final rule, may not provide a value to all persons.
Nonetheless, the Agency believes that by requiring that an inspection
be conducted throughout a residential dwelling or child-occupied
facility it will ensure that a person contracting for the inspection
will obtain accurate and reliable information regarding the presence of
lead-based paint throughout a residential dwelling and child-occupied
facility.
2. Distinct painting history. On the issue of inspecting and
sampling all components sharing a distinct painting history, except
those components replaced after 1978, there are several points that
commenters raised. First, some commenters suggested that the proposed
requirement to take one sample per component in every room and one
sample per exterior component with a distinct painting history was
overly burdensome in that it required taking an excessive number of
samples. The assumption of these commenters was that an inspection
requires that each and every painted component throughout a residential
dwelling had to be individually tested. The Agency would like to
clarify that an inspection does not necessarily require that a large
number of paint samples be taken.
To clarify this point, the Agency directs commenters to carefully
review the definitions of ``component'' and ``distinct painting
history'' as contained in Sec. 745.223 of today's final rule. According
to these definitions, in a room with four walls painted at the same
time with the same paint, only one paint sample would need to be taken
to characterize the lead content of the paint on the walls. This is
because, although each wall can be considered a separate ``component,''
the walls share the same distinct painting history. On the other hand,
if there were window frames in the room that had been painted with a
different paint than the walls (for example a semi-gloss instead of a
flat), two samples would need to be taken, one from the walls and one
from the windows. As this example demonstrates, the Agency does not
believe that an inspection will involve excessive sampling.
In contrast, other commenters disagreed with these requirements for
an inspection, suggesting that they would result in insufficient
numbers of samples. Based on the definition of ``distinct painting
history,'' these commenters interpreted the proposal to mean that if
all rooms in a residential dwelling had been painted recently with the
same paint and in the same color (for example, a white latex paint), it
would be possible for an inspector to take only one paint sample from
the home.
In response, the Agency notes that in this case it would be clear
to an inspector that trim, doors, and windows are usually painted with
a different paint type. Determining the distinct paint history of such
components involves not just an examination of the visible top coat,
but the unique layers of paint beneath the surface. A visible
examination of these paint layers is easily accomplished by making a
discrete incision into the painted surface.
C. Risk Assessment Activities
TSCA section 401(16) 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. The definition also
identifies specific activities that will be employed when conducting a
risk assessment, including: (1) The gathering of information regarding
the age and history of the housing and occupancy by children aged 6
years and under, (2) visual inspection, (3) limited wipe sampling or
other environmental sampling techniques, (4) other activity as may be
appropriate, and (5) the provision of a report explaining the results
of the investigation. This definition of risk assessment serves as the
basis for the standards and procedures associated with a risk
assessment contained in Sec. 745.227(d).
The risk assessment procedures in today's final rule, as in the
proposal, require the risk assessor to make a recommendation of lead
hazard control strategies to address all lead-based paint hazards
identified as a result of the risk assessment. This activity was not
enumerated in the statutory definition, but was added pursuant to TSCA
section 401(16), which stated that a risk assessment may include
``other activities'' as may be appropriate.
The Agency's reason for adding this requirement was to ensure that
the individual or firm hiring or contracting for the services of a risk
assessor was provided with some reliable guidance on how to respond to
the results of a risk assessment.
1. Lead hazard screen. Pursuant to TSCA section 401(16), a risk
assessment may include ``other activities'' as may be appropriate.
Based on this language, today's final rule also includes the ``lead
hazard screen,'' as a risk assessment activity. The requirements for
the screen are contained in Sec. 745.227(c). The reason for including a
lead hazard screen in the proposal and today's final rule is to, where
appropriate, avoid the costs of conducting a comprehensive risk
assessment, particularly in well-maintained housing and child-occupied
facilities constructed after 1960, or in housing and child-occupied
facilities considered unlikely to have significant lead paint, dust or
soil hazards.
The Agency received two comments on the addition of a lead hazard
screen
[[Page 45793]]
as a risk assessment activity; one commenter noted that the Agency
needed to list more explicitly standards for conducting a lead hazard
screen.
The commenters also agreed that the lead hazard screen should focus
on determining the absence of a lead-based paint hazard, rather than
the presence of such a hazard and the risks it may pose to building
occupants. In response, today's final rule includes specific procedures
and standards for conducting a lead hazard screen in Sec. 745.227(c).
Furthermore, because the lead hazard screen employs highly sensitive
evaluation criteria and limited sampling, the Agency believes that
these standards will provide the risk assessor with a basis for
determining the absence of lead-based paint hazards.
If any one of the dust samples collected during a lead hazard
screen contains a lead level greater than one-half of the applicable
clearance level for the tested component, or if any sampled paint is
found to be lead-based paint, that is an indication, but not a
requirement, that the residential dwelling should undergo a full risk
assessment. As discussed subsequently in this preamble, clearance
levels for specific components can be found in the HUD Guidelines and
in EPA's section 403 Guidance, as well as in several State guidance
documents.
Clearance levels are used as the basis for determining whether a
lead-based paint abatement has been successfully completed and that a
residential dwelling or child-occupied facility may be re-occupied (if
building occupants were relocated during an abatement). Currently,
under the section 403 Guidance, clearance levels for dust also serve as
the levels for determining the presence of lead-contaminated dust,
which may pose a lead-based paint hazard. A standard for the lead
hazard screen of one-half of the applicable clearance levels is
extremely stringent. As such, the Agency believes that a dust sample
containing less than that level is a reliable indicator that there are
no lead-based paint hazards. The work practice standards and evaluation
criteria for a lead hazard screen contained in Sec. 745.227(c) are
modeled after the HUD Guidelines recommendations for conducting a lead
hazard screen.
As discussed previously in the preamble, the Agency recommends that
the lead hazard screen be used primarily in well-maintained homes
constructed after 1960. According to HUD, it is estimated that
approximately 37 million privately owned homes and 428,000 public
housing units, or roughly 90 percent of the nation's housing stock
built prior to 1960, contain lead-based paint. Generally, if
maintenance has been deferred on these homes, there is a high
probability for the presence of some deteriorated lead-based paint and/
or lead-contaminated dust.
Consequently, the value and any cost savings that may be achieved
by conducting a lead hazard screen in poorly maintained, pre-1960
homes, rather than a full risk assessment, may not be realized. For
instance, in a pre-1960 home with several components that have
deteriorated paint, in practice, just as many deteriorated paint
surfaces will be tested for a lead hazard screen as for a risk
assessment. However, when conducting the lead hazard screen, a risk
assessor is not required to attempt to determine whether those surfaces
pose a lead-based paint hazard.
In fact, homeowners and building owners may decide that a lead
hazard screen would merely add time and cost to the evaluation process
in properties that would more likely benefit from a risk assessment.
These benefits include a comprehensive report, not only on the
existence of lead-based paint hazards, but also on the nature,
severity, and location of those hazards. Furthermore, the risk
assessment also would provide options on how to reduce or eliminate the
lead-based paint hazards.
Other standards and activities required as a part of the lead
hazard screen in Sec. 745.227(c) include: (1) The collection of
background information regarding the physical characteristics of the
residential dwelling or child-occupied facility and occupant use
patterns that may cause lead-based paint exposure to one or more
children age 6 years and under, (2) a visual inspection, (3) the
sampling of components with deteriorated paint with a distinct painting
history in poor condition, (4) the collection of a minimum of two
composite dust samples (one for floors and one for windows), and (5)
the preparation of a report on the results of the screen. Specifically,
Sec. 745.227(c) requires that in a residential dwelling two composite
samples be taken--one from the floors and one from the windows in rooms
where one or more children, age 6 and under, are most likely to come
into contact with dust. Additionally, in multi-family dwellings and
child-occupied facilities, composite dust samples are to be taken from
any common areas where one or more children age 6 years and under are
likely to come into contact with dust.
2. Risk assessment. In addition to the requirements of a lead
hazard screen, the standards for a risk assessment contained in
Sec. 745.227(d)(3) also involve the collection and review of background
information regarding the physical characteristics of a building, and
the occupant use patterns that may pose a lead-based paint hazard to
children aged 6 years and under. More than two dust samples and soil
samples also may be required under Sec. 745.227(d)(4), (5), (6) and
(7), respectively. Lastly, the risk assessment report must include
options for reducing and/or eliminating lead-based paint hazards.
The requirements contained in Sec. 745.227(d) of today's final rule
differ from those proposed in September 1994 in that they reflect the
Agency's decision to reduce the detail and specificity of the rule.
However, based on the documentation and recordkeeping requirements for
a risk assessment, and the rule's training, certification and
accreditation requirements, the Agency believes that the standards
contained in today's final rule will promote reliable, safe and
effective risk assessments.
For example, the proposed rule specified several items of
information to be collected as background information during a risk
assessment, including the age of the building and any additions being
evaluated, copies of any previous inspection reports, and a schematic
site plan of the building. In its review of the comments on the
proposed rule, the Agency noted that many of these requirements would
be met during the preparation of a risk assessment report. For
instance, among the items to be presented in a risk assessment report,
as contained in Sec. 745.227(d)(10) are: the date of construction of
the building, data collected as a result of any previous inspection or
other analyses available to the risk assessor, and the specific
locations of any identified lead-based paint hazards or potential
hazards.
In eliminating specific instructions regarding the background
information to be collected, the Agency believes that the standards for
conducting a risk assessment have been simplified without diminishing
the reliability, safety, and effectiveness of those standards. This is
because today's final rule has eliminated the duplicative reporting
requirements included in the September 2, 1994 proposal by requiring
that the information only be contained in the risk assessment report.
In addition to these changes, the Agency has slightly modified
Sec. 745.227(d)(10)(xviii), which requires a risk assessor to provide
options for eliminating and/or reducing lead-based paint hazards in the
risk assessment report. Under the proposed rule, the risk assessor
would have been required to provide not only options, but to
[[Page 45794]]
recommend one option over another and to include a rationale or
justification for his or her selected option. The final rule no longer
requires the risk assessor to recommend one option over another,
provided the recommended options are all presented in the risk
assessment report.
These changes were largely based on comments urging the Agency to
allow the individual or firm contracting for the risk assessment to
select from the options presented in the report. Although the Agency
does not necessarily believe that the proposed requirements would have
forced a building owner to select the option recommended by a risk
assessor, the Agency is willing to provide building owners with more
flexibility in reviewing risk assessment reports and selecting among
remediation options.
In response to comments on the latitude a risk assessor is given in
determining dust sampling locations and the extent of paint
deterioration, the Agency believes, as discussed in Unit VI.A. of this
preamble, that because the risk assessor will be a trained specialist
equipped with the requisite professional judgement needed to evaluate
lead-based paint hazards, added specificity is unnecessary in the rule.
The Agency also stresses that due to major differences in the
structure, design and condition, and occupant use patterns of various
buildings, it is best not to identify specific room locations, e.g.,
kitchen, playroom, bedroom, for the purposes of sampling dust. Instead,
the regulations in Sec. 745.227(d)(4), (d)(5), and (d)(6) require that
dust samples be collected in rooms and areas where young children are
most likely to come into contact with dust.
Similarly, the final rule clarifies that only deteriorated paint
with a distinct paint history found to be in poor condition shall be
sampled for the presence of lead. ``Paint in poor condition'' is
defined in today's final rule as more than 10 square feet of
deteriorated paint on exterior components with large surface areas; or
more than 2 square feet of deteriorated paint on interior components
with large surface areas (e.g., walls, ceilings, floors, doors); or
interior or exterior components with small surface areas (window sills,
baseboards, soffits, trim) on which more than 10 percent of the total
surface area of the component is deteriorated. This determination is to
be made by the risk assessor based on a documented methodology such as
the HUD Guidelines.
As discussed earlier in Unit VII.C. of this preamble, such
locations include the playrooms and bedrooms of children, kitchens, and
living rooms, as well as common areas associated with a residential
dwelling or child-occupied facility.
The Agency also reiterates that detailed instruction on where and
how to sample dust is included in the HUD Guidelines, existing EPA
guidance and various State regulations and guidance documents, and that
these instructions will be taught in accredited training programs and
included in future Agency guidance.
Lastly, the Agency has clarified the standards for collecting soil
samples contained in Sec. 745.227(d)(7) such that samples need only to
be taken from exterior play areas and dripline/foundation areas where
bare soil is present. This requirement is in keeping with the statutory
definition of lead-contaminated soil, which basically is the same
definition used in today's final rule. As defined in Sec. 745.223,
lead-contaminated soil means bare soil on residential real property and
on the property of a child-occupied facility that contains lead at or
in excess of levels determined to be hazardous as identified by the EPA
Administrator pursuant to TSCA section 403. Guidance on how to collect
bare soil samples is provided in EPA's Residential Sampling for Lead:
Protocols for Dust and Soil Sampling document and the HUD Guidelines.
D. Composite Sampling
Under today's final rule, composite dust and soil sampling is
expressly permitted for the purposes of conducting a lead hazard
screen, risk assessment, or clearance following an abatement.
This change from the September 2, 1994 proposal is based on
comments the Agency received in support of composite sampling for dust
and soil, as well as limited evidence supporting the use of composite
dust and soil sampling to determine the presence of lead in dust and
soil. The Agency also believes that composite sampling is useful
because it provides a means for ``averaging'' the potential for
exposure to lead-based paint hazards in a residential dwelling or
child-occupied facility. Furthermore, the Agency is permitting use of
the technique due to laboratory cost savings generated by sampling
analysis.
However, it is important that the individual who is receiving the
results of a composite understand their limitations and can correctly
interpret the results of a composite sample. A brief discussion of this
subject can be found in this section, and a thorough discussion of this
issue is contained in the HUD guidelines, and will be presented in the
risk assessor and supervisor course.
Specific instruction on the taking of composite dust and soil
samples is provided in the HUD Guidelines. The technique essentially
involves combining several subsamples from the same types of components
into one sample for analysis. A composite dust sample is different from
a single-surface sample because it combines at least two dust samples
from more than one sampling area into one sample.
Pursuant to Sec. 745.227(g) of today's final rule, composite dust
samples must consist of at least two subsamples. At this time the
Agency recommends that a composite sample consist of no more than four
subsamples, unless the laboratory contracted to analyze the composite
sample agrees to accept a sample consisting of more than four
subsamples. This recommendation is based on current limitations in the
laboratory analysis of composite samples consisting of more than four
subsamples (i.e., using available technology, composite samples that
combine more than four subsamples are difficult to properly analyze).
However, because some EPA-recognized laboratories are acquiring the
ability to analyze composite samples consisting of more than four
subsamples, the final rule does not explicitly restrict a composite
sample from containing more than four subsamples.
Pursuant to Sec. 745.227(g) of today's final rule, composite dust
samples shall not consist of subsamples from more than one type of
component. For example, subsamples from four uncarpeted floors from
four rooms may be combined into one composite sample. However, in these
same four rooms, the rule prohibits two subsamples from windows in two
of the rooms from being composited with two subsamples from floors in
the other two rooms.
This restriction is due to the varying levels of lead that may be
present on different components, and the potential hazard that a
component may present. For example, dust samples from floors generally
tend to indicate a lower level of contamination, while the frequency of
contamination is generally higher in windows. Consequently, the
interpretation of the results from a composite sample consisting of
subsamples from different components would not adequately characterize
the location of the hazard.
One of the primary benefits derived from composite sampling is
lower sampling costs due to fewer laboratory analyses. Lead levels
generally vary
[[Page 45795]]
significantly from one component to another, and a single surface
sample from one component alone (i.e. from one area of a floor in a
room to another of the same floor) may not represent the potential for
exposure. Composite sampling provides a means to determine potential
exposures to lead-based paint hazards by obtaining a wide cross-section
of possible exposure pathways.
However, composite sampling may yield laboratory results that are
not as informative as single-surface sampling. For example, dust
samples from the floors of three rooms might be composited where only
one of the floors contains lead-contaminated dust higher than the
clearance level contained in the section 403 Guidance for uncarpeted
floors of 100 g/ft2. This might cause the composited sample to
fail clearance. On the other hand, if three single-surface floor dust
samples were taken for clearance testing, the laboratory analyses would
have precisely indicated which one of the three rooms exceeded the
clearance level, and the inspector or risk assessor would know exactly
which room needed to be recleaned and retested.
Because of these limitations, it is imperative that a risk
assessor, inspector, or supervisor understands and correctly interprets
composite samples.
E. Abatement
As discussed in Unit III.B. of this preamble, the issue that
received the most comment associated with abatement was the proposed
definition of abatement. The Agency's response to those comments is
discussed in that unit of the preamble.
In addition to these comments, other comments on a number of the
work practice standards, procedures and restrictions proposed for
various abatement activities were received. These comments principally
addressed the following issues: (1) ``Prohibited'' or restricted
abatement work practices; (2) encapsulation; (3) the development of a
pre-abatement plan; (4) clearance requirements following both interior
and exterior abatements; (5) soil abatement; and (6) management of
waste from lead abatement activities.
The Agency's response to these comments and changes that have been
made to the corresponding standards for abatement are discussed below.
1. ``Prohibited practices.'' In the preamble of the proposed rule,
the Agency indicated that it was considering banning certain abatement
work practices in target housing, due to the potential risk of lead
contamination posed to workers and/or the environment. The practices
singled out by the Agency included:
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.
Additionally, the Agency specifically requested comments and/or
data related to exposure to lead-contaminated dust and fumes from these
and other abatement work practices.
In response, an overwhelming majority of commenters on this issue
urged the Agency to expressly ban the use of open-flame burning or
torching on painted surfaces in target housing and child-occupied
facilities, and to specifically restrict--not necessarily to ban--the
other practices listed above, to reduce the risks they pose.
Furthermore, commenters also requested that the Agency set restrictions
on the use of machine sanding or grinding, abrasive blasting or
sandblasting, and hydroblasting and high-pressure washing techniques in
target housing and child-occupied facilities. Commenters also provided
a number of references to studies to document their recommendations to
the Agency.
The restrictions proposed by commenters generally were consistent
with the HUD Guidelines, and have been the subject of several studies
which support the restrictions in today's final rule. A review of these
studies has been prepared by EPA titled A Review of Studies Addressing
Lead Abatement Effectiveness (Ref. 9).
An important point related to restricting the abatement practices
contained in Sec. 745.227(e)(6) is that the public comments supporting
such restrictions were expressly directed at target housing and other
buildings, such as child-occupied facilities, where young children
routinely and frequently spend time. In response, the Agency stresses
that the restrictions on abatement practices contained in today's final
rule apply only to target housing and child-occupied facilities.
In contrast, other commenters were opposed to prohibiting or
restricting similar ``deleading'' activities, in public and commercial
buildings, superstructures and bridges.
In public and commercial buildings, superstructures and bridges,
most commenters were generally satisfied with existing OSHA regulations
for the purposes of protecting the health and safety of workers.
Concerns were, however, voiced over the lack of cost-effective work
practice alternatives to open-flame burning, machine sanding or
grinding, and abrasive blasting for removing lead-based paint from
public and commercial buildings, superstructures and bridges. In
response to these comments, the Agency will further review options for
addressing lead-based paint activities conducted in public and
commercial buildings, and superstructures and bridges.
On the other hand, commenters who favored restricting certain work
practices in target housing and child-occupied facilities indicated
that although OSHA regulations may protect workers, they are not
designed to protect building occupants, especially children aged 6
years and under, from lead-based paint hazards that may be generated
during an abatement. As discussed previously, these commenters also
indicated that by restricting certain work practices, rather than
banning them altogether, lead-contaminated dust and fumes could be
effectively controlled. Furthermore, these commenters suggested that in
some instances safer work practice alternatives are available.
Based on these comments and a review of studies referenced above,
today's final rule in Sec. 745.227(e)(6) imposes certain restrictions
on selected work practices when conducted during an abatement in target
housing and child-occupied facilities. Today's final rule also bans the
use of open flame burning and torching when conducting abatements in
target housing and child-occupied facilities.
These restrictions include the operation of a heat gun at a
temperature above 1100 degrees Fahrenheit, due to the release of lead
dust and fumes and the potential hazards posed to building occupants,
particularly children aged 6 years and under. This restriction is
supported by two studies that found significant problems with lead-
based paint when volatilized by heat guns and propane torches operating
above this temperature. These problems included large increases in the
blood lead levels of children in homes where heat guns and torches were
used at temperatures in excess of 1100 degrees Fahrenheit during
abatement (Refs. 11 and 12).
The rule also restricts the use of machine sanding or grinding,
abrasive blasting and sandblasting as abatement work practices, unless
they are conducted using a High-Efficiency Particulate Air (HEPA)
exhaust control which removes particles of 0.3 microns or larger from
air at 99.97 percent or greater efficiency. Although studies indicate
that the effectiveness of HEPA attachments has been limited in
containing dust releases in the past, commenters indicate that recent
[[Page 45796]]
technology has improved performance. Consequently, if HEPA attachments
meet or exceed the performance standard above, the Agency believes they
can serve as a tool for ensuring that abatement activities involving
the use of machine sanding or grinding, abrasive blasting and
sandblasting are conducted safely, reliably and effectively.
Dry scraping and sanding are permitted under today's final rule
only around electrical outlets, or when treating defective paint spots
totaling no more than 2 square feet in any one interior room, or
totaling no more than 20 square feet on exterior surfaces. These
restrictions are based on high levels of dust generated by dry scraping
and sanding, and the availability of techniques, such as wet spraying
or the use of a heat gun below 1100 degrees Fahrenheit, to control dust
generation. Additionally the restrictions placed on dry scraping
provide allowances for convenience and safety when abating relatively
small defective paint spots and areas around electrical outlets.
In regard to the establishment of restrictions for hydroblasting
and high-pressure washing, the Agency does not have enough data to
demonstrate that these practices may pose a lead-based paint hazard in
target housing or child-occupied facilities. Nor is there sufficient
data to support specific restrictions on how to effectively control or
limit these practices to reduce any hazards they might pose.
Consequently, the rule does not establish restrictions for
hydroblasting and high-pressure washing. However, the Agency recommends
that controls be used to contain any debris or wastewater that may be
generated when hydroblasting and high-pressure washing are employed as
abatement techniques.
2. Encapsulation. As discussed in the September 2, 1994 proposed
rule, the definition of abatement includes the phrase ``permanent
containment or encapsulation.'' This phrase is part of the statutory
definition of abatement under Title IV section 401, and it has been
retained as part of the abatement definition in Sec. 745.223 of today's
final rule.
In the preamble of the proposed rule, however, the Agency also
pointed out that all encapsulant will degrade over time, so therefore,
no encapsulant is truly permanent. Consequently, the Agency requested
comment on whether to include a periodic monitoring requirement when an
encapsulant is used to abate lead-based paint.
The majority of commenters generally supported some kind of
monitoring requirement, but were divided as to whether EPA should
regulate such a requirement given that encapsulation technologies are
still evolving. Although some commenters encouraged the Agency to
include specific monitoring requirements (e.g., once every 6 months, 1
year, 3 years, etc.), others suggested that the Agency develop
standards for encapsulant products and/or require that manufacturers
provide guarantees regarding the durability and longevity of an
encapsulant product. Other commenters requested that the Agency specify
who is responsible for monitoring an encapsulant--either the building
owner or a third party.
In response to these and other related issues raised by commenters,
today's final rule does not specify a particular monitoring
requirement, nor does it establish any other specific standards for the
use of encapsulants. This decision is based primarily on the
development of existing encapsulant technologies and ongoing voluntary
efforts within the encapsulant industry to develop performance-based
standards for encapsulants.
Three American Society of Testing and Materials (ASTM) standards, E
1795 (``Standard Specification for Non-Reinforced Liquid Coating
Encapsulation Products for Leaded Paint in Buildings''), E 1797
(``Standard Specification for Reinforced Liquid Coating Encapsulation
Products for Leaded Paint in Buildings''), and E 1796 (``Standard Guide
for Selection and Use of Liquid Coating Encapsulation Products for
Leaded Paint in Buildings'') were approved in March 1996. The three
standards were developed by a voluntary consensus-building process that
included representatives from EPA, other Federal agencies, and a wide
range of interests across the lead abatement industry. The standards
cover what is considered by ASTM to be the minimum set of material
performance requirements for these products, as well as guidance on how
to select, apply, evaluate, and maintain the products under normal use
conditions. The standards acknowledge that users (e.g., risk assessors,
abatement supervisors) should evaluate their individual situation to
assess whether additional requirements are needed to adequately protect
the surface.
EPA endorses these standards and recommends their use, but has
chosen not to require them as part of the work practice standards in
this rule. EPA is confident that most States and local jurisdictions
will evaluate these standards for their appropriateness for the
conditions under which they will be expected to perform and specify
additional performance requirements as needed. The standards will also
be discussed in training course materials for risk assessors and
abatement workers and supervisors.
3. Pre-abatement plan. In the proposed rule, the standards for
conducting an abatement would have required the development of a ``pre-
abatement plan'' for all abatement projects. Under the proposed rule
the pre-abatement plan would have included the following: (1)
Information regarding measures taken to protect workers; (2) measures
taken to comply with existing Federal, State and local environmental
regulations; and (3) an occupant protection plan. In its review of the
comments on the pre-abatement plan, and of the occupant protection plan
itself, the Agency has decided that the primary purpose of the occupant
protection plan is to help ensure that building occupants are protected
from potential lead-based paint exposures during an abatement.
This determination is based on comments that suggested the Agency
minimize any overlap with existing Federal regulations. For example, if
an abatement project resulted in the generation of a hazardous waste,
commenters noted that the contractor and/or building owner may already
be subject to certain reporting requirements under the Resource
Conservation and Recovery Act (RCRA). These commenters argued that it
would be duplicative and burdensome to resubmit its RCRA reports to EPA
under a TSCA law. A similar rationale applies to the proposed provision
of information regarding measures taken to protect workers. This
proposed requirement would be duplicative of OSHA provisions to protect
workers.
The Agency agrees with commenters on this point, and has removed
parts 1 and 2 of the pre-abatement plan from today's rulemaking.
Consequently, the only remaining part of the pre-abatement plan is the
``occupant protection plan,'' which in today's final rule replaces the
proposed pre-abatement plan.
4. Clearance procedures. Comments received on the clearance
procedures contained in the proposed rule indicated a need to clarify
the dust sampling requirements associated with clearance. Commenters
were confused regarding the number of dust samples that needed to be
collected and the locations within a residential dwelling or child-
occupied facility that needed to be sampled as a part of the clearance
procedures contained in the September 2, 1994 proposal.
Several commenters also suggested that the proposed rule required
too many samples, which they believed
[[Page 45797]]
would add to the costs of an abatement without necessarily providing
better information regarding the efficacy of an abatement. They urged
the Agency to reduce the number of samples to be taken for the purposes
of clearance following an abatement; some commenters suggested that
composite sampling be employed to reduce the required number of
clearance samples. And virtually all commenters agreed that the
proposed 24-hour waiting period was too long to wait to conduct
clearance sampling following an abatement.
In response to these comments, the clearance procedures contained
in today's final rule have been presented more clearly and concisely.
For example, commenters indicated that in the proposed rule it was not
clear whether additional dust clearance samples were required following
an abatement project that used containment, as opposed to an abatement
that did not use containment. In today's final rule,
Sec. 745.227(e)(8)(v)(A) clearly indicates the number of dust samples
that are to be taken following an abatement that employs containment.
These include one sample from the floor, and one from the window (if
available) in the rooms within the containment area. Additionally, the
rule requires that one sample will be taken from the floor outside the
containment area.
On the other hand, Sec. 745.227(e)(8)(v)(B) clarifies that, if
containment was not employed as a part of the abatement, two dust
samples will be taken from rooms in the residential dwelling or child-
occupied facility where the abatement was conducted.
The final rule also limits the number of rooms that are required to
be sampled as part of clearance to four. Clearance inspectors are free
to sample more than four rooms, but todays rule establishes a minimum
of four rooms that must be sampled. The rooms shall be selected
according to documented methodologies. The current HUD guidelines, one
such documented methodology, recommend that the rooms be selected based
on where most of the dust-generating work was done.
The rationale for this change is that given similar abatement
techniques, and more importantly, similar post-abatement cleanup, if
the four selected rooms pass clearance, then the other rooms will also
likely pass.
Based on comments, the final rule, under Sec. 745.227(e)(8)(iii),
now requires a minimum 1-hour waiting period following the completion
of post-abatement clean-up activities prior to the collection of dust
samples for the purposes of clearance. The 1-hour waiting period is
consistent with the HUD Guidelines and other State regulations and
guidance on the appropriate amount of time needed prior to conducting
clearance following an abatement. Supporting rationale in the HUD
Guidelines have shown that 1-hour is sufficient time for airborne lead
particles to fall on to horizontal surfaces and be collected (Ref. 12).
In regard to a reduction in the number of samples that will be
taken as a part of clearance following an abatement, the final rule
permits the use of composite sampling. Composite sampling should assist
in reducing the number of samples that need to be taken as a part of
clearance. As discussed in this Unit of the preamble in paragraph D,
the Agency believes that composite sampling can be a reliable, safe and
effective alternative to single surface sampling.
Sampling requirements also have been reduced when clearance is
conducted following an exterior abatement. Again, several comments were
received on clearance requirements following an exterior abatement
suggesting that the proposed rule required too many samples. For
example, the proposed rule would have required soil samples to be taken
prior to an exterior abatement project, so that any lead levels found
in the pre-abatement samples could be compared with post-abatement soil
samples to determine if there was any contamination resulting from the
exterior abatement.
The Agency agrees with commenters on this point, and has removed
the requirement to take pre-abatement soil samples and the requirement
to take soil samples following an exterior abatement. Rather, the final
rule requires a visual inspection to determine the presence of any
paint chips along the dripline or next to the foundation below any
exterior surface abated. If paint chips are present, they must be
removed and properly disposed. The Agency is allowing the individual or
firm conducting the exterior abatement to determine the need to conduct
any soil sampling, based on liability concerns the individual or firm
may have based on potential claims that the actions of the abatement
workers/supervisors caused soil contamination.
In general, the Agency believes that today's final rule more
clearly articulates the number of samples that must be taken as a part
of clearance testing following either an interior or exterior
abatement. Through composite sampling, the rule also permits a
reduction in the number of analyses to be done. In addition,
Sec. 745.227(f) of today's final rule requires that all samples must be
sent to EPA-recognized laboratories, which will help ensure the
reliability of sampling results.
Notably, under Sec. 745.223 the final rule provides a definition
for clearance levels and includes references to the section 403
Guidance, the HUD Guidelines and other guidance for specific numeric
values. As discussed in the September 2, 1994 proposed rule, it is
possible that numeric values for clearance will be a part of the final
section 403 rulemaking, depending on the comments received on this
matter under the section 403 proposal. Until numeric values are
established for clearance through the regulatory process, certified
individuals and firms, training providers and other persons should
reference the guidance documents listed in the definition of clearance
levels (contained in Sec. 745.223) for numeric limits for clearance.
5. Soil abatement. Commenters requested clarification on various
procedures proposed for soil abatement. Included among the items raised
by commenters were: clarification as to whether the proposed soil
abatement procedures applied only to target housing and child-occupied
facilities, or to public and commercial buildings, superstructures and
bridges, as well; requests that the Agency stipulate a lead level in
soil to be used to determine when soil abatement must occur; and
clarification as to whether both bare and covered soil should be
abated.
In response, it should be clear under today's final rule that the
procedures put forward for soil abatement under Sec. 745.227(e)(7)
apply only to target housing and child-occupied facilities. Regulations
for the management of lead-contaminated soil at industrial sites
currently are provided under RCRA and Superfund.
On the need for a specific lead level to determine when soil
abatement is needed, the Agency refers commenters to its section 403
Guidance document. In the section 403 Guidance, Agency recommendations
are provided for response activities to lead-contaminated soil based on
a range of lead levels. These response actions also take into account
whether the contaminated area under consideration is used by children.
For example, in the section 403 Guidance, interim control
activities are recommended as a means to reduce possible lead exposures
if lead levels in bare soil range between 400 and 5,000 parts per
million (ppm) and if the area of concern is expected to be used by
children. Such areas could include
[[Page 45798]]
residential backyards, and day-care and school yards. Appropriate
interim control activities could include planting ground cover or
shrubbery to reduce exposure to bare soil, moving play equipment away
from contaminated bare soil, or restricting access through posting,
fencing or other actions.
As discussed in the section 403 Guidance, however, the decision on
whether interim controls or an abatement action is appropriate depends
on several variables. For example, although the section 403 Guidance
does not recommend soil abatement until lead levels in soil exceed
5,000 ppm, it is possible that a risk assessor may recommend abatement
at a lower level. For instance, in a situation in which the blood lead
levels of children that use an area under consideration for abatement
are high and the risk assessor has determined that the soil may be the
primary source of exposure, the risk assessor would consider presenting
options that include soil abatement.
As discussed throughout this preamble, the Agency does not believe
it is able, at this time, to effectively identify, list and regulate
all the variables that may influence decisions on how to respond to
lead-based paint hazards. Furthermore, today's final rule does not
provide a specific lead level in soil for use as an abatement trigger.
Rather, the Agency refers decision makers in this arena to the section
403 Guidance, which also shall be taught in accredited training
courses.
In terms of conducting soil abatement, comments were received that
requested clarification of the definition of permanent covering. In the
proposed rule, the permanent covering of contaminated soil was listed
as a soil abatement option. In today's final rule, soil abatements must
be conducted in one of two ways: If soil is removed, the lead-
contaminated soil shall be replaced with soil that is not lead-
contaminated; or if soil is not removed, the lead-contaminated soil
shall be permanently covered. In response to commenters, the final rule
also defines permanently covered soil as soil which has been separated
from human contact by the placement of a barrier consisting of solid,
relatively impermeable materials, such as pavement or concrete. Grass,
mulch, and other landscaping materials are not considered permanent
covering.
Commenters also requested clarification as to whether any amount of
newly added soil could represent a permanent covering. In response, the
Agency has concluded that at this time, there is insufficient
information to determine the amount or type of soil covering that would
protect human health from the risk of exposure to lead contaminated
soil. However, but the Agency believes that some depth of soil of a
given type may provide adequate protection. The Agency is seeking
information on this subject and will address this in the section 403
regulation as part of the discussion on lead-contaminated soil.
6. Management of waste from lead abatement activity. Lead-based
paint abatement generates different types of solid waste, including
paint chips, architectural components, and contaminated clothing, which
may be subject to hazardous waste treatment, storage, and disposal
regulations under RCRA Subtitle C (40 CFR part 261). RCRA establishes a
comprehensive Federal program for the management of solid and hazardous
wastes.
The training requirements in today's final rule for workers,
supervisors and project planners include training in the proper
management of wastes generated during abatement activity. These
requirements will encourage compliance with RCRA during the conduct of
such activities.
Management of architectural component debris waste was a particular
concern of some commenters on the proposed rule. Comments indicated
that RCRA Subtitle C waste sampling and testing requirements are
impractical for debris, and that the costs associated with managing
debris as hazardous waste are impeding progress in reducing lead-based
paint hazards. The Agency wishes to minimize potential regulatory
impediments to conducting and financing lead-based paint abatements.
Thus, EPA intends to issue a separate rulemaking specifically
addressing the disposal of architectural debris waste from lead-based
paint abatements. Until the Agency promulgates such a rule, the
requirements of RCRA continue to apply to lead abatement waste.
One important RCRA issue is the identification of the party deemed
the generator of a waste, particularly in the context of contractual
relationships such as those for lead-based paint activities. RCRA
defines a generator in 40 CFR 260.10 as ``any person, by site, whose
act or process produces hazardous waste identified or listed in [40 CFR
part 261] or whose act first causes a hazardous waste to become subject
to regulation.'' In the proposal (59 FR 45890), EPA stated that
contractors for lead-based paint activities (as opposed to building
owners) are the generators of abatement waste and are therefore the
parties responsible for RCRA compliance. EPA received a number of
comments requesting a clarification and reconsideration of this issue.
EPA wishes to clarify that the property owner and the abatement
contractor are co-generators of waste from lead-based paint activities,
as both parties contribute to its generation. Under co-generator
status, one party might manage the disposal of the waste (for example,
the building owner might request that a contractor handle this task),
but both parties remain legally responsible for proper disposal of the
waste and for RCRA compliance. The Agency discussed cogenerator status
in more detail in an FR notice issued on October 30, 1980 (45 FR
72026).
IX. State Programs
A. Introduction
This unit contains two parts: (1) A discussion of procedures for
States and eligible Indian Tribes, including eligible Alaskan Native
Villages, to obtain authorization from EPA to administer and enforce
(a) a lead-based paint activities program and/or (b) a pre-renovation
notification program; and (2) a description of a model program that
will serve as a blueprint for these State and Tribal programs.
Section 404(a) of TSCA provides that any State that seeks to
administer and enforce the standards, regulations, or other
requirements established under sections 402 (lead-based paint
activities) or 406 (pre-renovation notification) may submit an
application to the Administrator for approval of such a program. As
discussed, today's final rule contains the regulations established
pursuant to section 402(a). The Agency has not, at this time,
promulgated final regulations under section 406. States may begin to
apply for program authorization of a pre-renovation once the final
section 406 regulation is promulgated.
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 mandates of TSCA section 402 or 406 and
that it provides adequate enforcement. The procedures for submitting an
application are found in Sec. 745.324 of this regulation and are
discussed in more detail below. The Agency is developing an Application
Guidance Document that it will distribute, to give additional guidance
on how to develop and submit an application for program authorization.
Section 404(d) directs the Agency to promulgate a model State
program, which any State that seeks approval to
[[Page 45799]]
administer and enforce may adopt. In response to this mandate, the
Agency has promulgated, at Secs. 745.325, 745.326, and 745.327 minimum
requirements and enforcement provisions that a State or Tribal program
must have to receive authorization from the Agency to administer a
lead-based paint activities program (Sec. 745.325) and/or a pre-
renovation notification program (Sec. 745.326). These requirements are
discussed in more detail in Unit IX.E. of this preamble.
No political subdivisions (e.g., cities, towns, counties, etc.)
other than States, as defined by TSCA section 3, and Indian Tribes (see
discussion in Unit IX.F. of this preamble), are eligible for
authorization under this program.
B. Submission of an Application
Before developing an application for authorization, a State or
Indian Tribe must publicly distribute a notice of intent to seek such
authorization and provide an opportunity for a public hearing. The
State or Indian Tribe is free to conduct this hearing and provide an
opportunity for comment in any manner it chooses. Upon completion of
the final application that reflects this public participation, the
State or Indian Tribe shall submit the application to the appropriate
EPA Regional Office.
As described at Sec. 745.324(a), an application for program
authorization must include the following elements: a transmittal letter
from the Governor or Tribal Chairperson (or equivalent official); a
summary of the State or Tribal program; a description and analysis of
the program; an Attorney General's or Tribal equivalent's statement
attesting to the adequacy of the State's or Indian Tribe's program
authority; and copies of all applicable State or Tribal statutes,
regulations, standards and other materials that provide the State or
Indian Tribe with the authority to administer and enforce a lead-based
paint program.
1. Program description. A program application must contain
information, specified in Sec. 745.324(b), that describes the program.
The program description is the portion of the application that the
State or Indian Tribe will use to characterize the elements of their
program. The Agency will use this information to make an approval or
disapproval decision on a State or Indian Tribe's application. The
program description contains five distinct sections. In the first
(Sec. 745.324(b)(1)), the State or Indian Tribe must list the name of
the State or Tribal agency that will administer and enforce the
program, and if there will be more than one agency administering or
enforcing the program, describe the relationship between or among these
agencies.
Second, the State or Indian Tribe must, in the application,
demonstrate that the program meets the requirements of Sec. 745.325 or
745.326 or both. These elements represent the minimum authorities that
a State or Tribal program must have to be considered for program
authorization. These elements are discussed in greater detail in Unit
IX.E.1. and IX.E.2. of this preamble.
Third, the application must provide an analysis of the entire State
or Tribal program that describes any dissimilarity from the Federal
program in subpart L ``Requirements for Lead-Based Paint Activities,''
or regulations developed pursuant to TSCA section 406. The analysis
should address each element of a State or Tribal program: for a lead-
based paint activities training and certification program, those
elements found at Sec. 745.325(a) (i.e., accreditation of training
programs, certification of individuals, and work practice standards for
the conduct of lead-based paint activities); and for a pre-renovation
notification program, those elements found at Sec. 745.326(a) (i.e.,
distribution of lead hazard information and a lead hazard information
pamphlet).
The analysis must then explain why, considering these differences,
the State or Tribal program is at least as protective as the respective
Federal program. The Agency is inclined to give deference to a State or
Indian Tribes determination that its program is sufficiently protective
and appropriate for their State or Indian Tribe. The Agency will use
this analysis, along with its own comparison, to evaluate the
protectiveness of the State or Tribal program. This issue is discussed
in more detail in Unit IX.E. of this preamble discussion.
Fourth, the State's or Indian Tribe's application must demonstrate
that the program meets the requirements of Sec. 745.327. These elements
represent the enforcement elements that a program must have to receive
authorization. This section of the application is discussed in more
detail in Unit IX.E.3. of this preamble.
In addition to the above, the program description for an Indian
Tribe must also include a map, legal description, or other information
that will identify the geographical extent of the territory over which
the Indian Tribe exercises its jurisdiction. The Indian Tribe shall
also include a demonstration that it is: (1) Recognized by the
Secretary of the Interior; (2) has an existing government exercising
substantial governmental duties and powers; (3) has adequate civil
regulatory jurisdiction over the subject matter and entities regulated;
and (4) is reasonably expected to be capable of administering the
Federal program for which it is seeking authorization.
If the Administrator has previously determined that an Indian Tribe
has met these prerequisites for another EPA program authorization, then
the Indian Tribe need provide only that additional information unique
to its lead-based paint program. The rationale for requiring the tribe
to provide this information is discussed in detail in Unit IX.F. of
this preamble.
2. Attorney General's statement. The State or Indian Tribe must
provide an assurance that the State or Indian Tribe has the legal
authority necessary to administer and enforce the program. The State or
Tribal Attorney General (or equivalent Tribal official) must sign this
statement. (See discussion in Unit IX.F. of this preamble for specific
Tribal program requirements).
3. Public availability of application. Section 404(b) of TSCA
requires the Agency to provide notice and an opportunity for public
hearing on a State or Tribal application for authorization.
Accordingly, the Agency will publish in the Federal Register, a notice
announcing the receipt of a State's or Tribe's application, a summary
of the State or Tribal program, the location of copies of the
application available for public review, and the dates and times that
the application will be available for public review. Individuals may at
that time submit a request to the Agency for a public hearing on the
State or Tribal application. It should be noted that this opportunity
for public hearing is separate and distinct from the public comment,
discussed in part B. of this unit of the preamble, that the State or
Indian Tribe must seek before preparing an application for program
approval (Sec. 745.324(a)(2)).
C. State Certification
Pursuant to section 404(a), at the time of submitting an
application for program authorization, a State may also certify to the
Administrator that the State program meets the requirements of TSCA
section 404(b)(1) and 404(b)(2).
If this certification is contained in a State application, the
program is deemed authorized, until the Administrator disapproves the
program's application or withdraws the program's authorization. This
certification must be contained in a letter from the Governor or the
Attorney General, to the Administrator, and must reference the program
analysis
[[Page 45800]]
contained in the program description portion of the application as the
basis for concluding that the State program is at least as protective
as the Federal program and provides for adequate enforcement.
This provision is not available to Indian Tribes because Indian
Tribes must first demonstrate to the Agency that they meet the criteria
at Sec. 745.324(b)(4) for Treatment as a State (``TAS''). Although
Indian Tribes may be able to demonstrate that they have been approved
for ``Treatment as a State'' for any other environmental program
(satisfying two of the four TAS criteria), the Agency must make a
separate determination that an Indian Tribe has adequate jurisdictional
authority and administrative and programmatic capability regarding its
lead program before it can determine that the Tribe should be treated
as a State. These criteria are discussed in greater detail in Unit
IX.F. of this preamble.
As stated at Sec. 745.324(d)(3), if the application does not
contain such certification, the State's program will be considered
authorized only after the Administrator approves the State application.
EPA encourages both States and Indian Tribes to submit their
authorization applications as soon as possible after October 28, 1996.
Because the Agency anticipates needing the full 180 days to properly
review and act on an application, States and Indian Tribes are strongly
encouraged to submit a completed application before March 2, 1998.
D. EPA Approval
Within 180 days following receipt of a complete State or Tribal
application, the Administrator will approve or disapprove the
application. The Administrator will approve a program only if, after
notice and opportunity for public hearing, the Administrator finds
that:
(1) The program is at least as protective of human health and the
environment as the Federal program contained in subpart L or in
regulations developed pursuant to TSCA section 406; and
(2) The program provides adequate enforcement of the appropriate
State or Tribal regulations.
The Agency will notify the State or Indian Tribe in writing of the
Administrator's decision. As described in Sec. 745.324(c), upon
authorization of a State or Tribal program, it will be unlawful under
TSCA section 15 and section 409, for any person to violate, fail or
refuse to comply with any requirements of such a program.
The Agency believes that section 404 and the decision criteria
above give it reasonably broad latitude in approving or disapproving
State and Tribal programs. EPA interprets the section 404(b) standard
``. . . at least as protective as . . .'' to mean that a program need
not be identical to, or administered in a manner identical to, the
Federal program for that program to be authorized. Indeed, the Agency
expects to receive applications for State and Tribal programs that will
differ in some respects from the Federal program established in this
rulemaking. This is unavoidable (and even desirable) given the
differences that undoubtedly exist between lead-based paint problems
and approaches to dealing with them at the State and Tribal level. The
Agency will make every attempt to accommodate these differences while
following the statutory requirement of ensuring that every State or
Tribal program is at least as protective as the Federal program.
1. Establishment of the Federal program. If a State or Indian Tribe
does not have a program authorized under this rule and in effect by the
August 31, 1998, the Administrator will, by such date, establish the
Federal program under subpart L, or regulations developed pursuant to
TSCA section 406, as appropriate in that State or Indian Country.
2. Withdrawal of authorization. As required by section 404(c) of
TSCA, if a State or Indian Tribe is not administering and enforcing its
authorized program according to the standards, regulations, and other
requirements of TSCA Title IV, including section 404(b)(1) and (b)(2),
the Agency will so notify the State or Indian Tribe. If corrective
action is not completed within a reasonable time, not to exceed 180
days, the Administrator shall withdraw authorization of such program
and establish a Federal program pursuant to TSCA Title IV in that State
or Tribal land. Procedures for withdrawal of authorization can be found
in Sec. 745.324(i).
E. Model State Program--Guidance to States and Indian Tribes; EPA
Approval Criteria
TSCA section 404(d) directs the Agency to promulgate a MSP that may
be adopted by any State or Indian Tribe that seeks to administer and
enforce a lead-based paint activities program. As interpreted by EPA,
this model is intended to serve two purposes. First, the model is
intended to give States and Tribes guidance as to the contents of a
program that they could develop to receive program authorization from
EPA. Second, the model is also intended to provide overall guidance to
States that have not, until this point, developed legislation or
regulations for a training and certification or a pre-renovation
notification program.
In the proposed rule, the Agency offered the entire Federal program
as a model. The Agency stated that, because section 404(a) requires
that an authorized State or Tribal program be at least as protective as
the Federal program, a State or Tribal program seeking authorization
should resemble, in significant respects, the Federal program.
Therefore, the entire Federal program for lead-based paint activities
was offered as a model for States and Indian Tribes to use in
developing their own programs.
Many commenters, however, stated that the proposal did not
articulate in sufficient detail the specific elements a program must
have to be authorized by EPA. Some commenters also believed that, as
written, the proposal implied that a State or Tribal program must be
identical to the Federal program. The Agency did not intend to give
this impression, and in developing a separate model program has
attempted to clarify what is expected of a State or Tribal program
applying for authorization.
Other commenters stated that the Agency should develop a model
program that would dictate all requirements that must be in a State or
Tribal program. These commenters expressed the belief that, because the
Agency is required to evaluate the protectiveness of a State or Tribal
program compared to the Federal program, the Agency should specify all
elements of a State or Tribal program or require that a State or Tribe
adopt the entire Federal program. Commenters believed this approach
would alleviate any uncertainty regarding the interpretation of the
statutory phrase ``. . . at least as protective as . . .'' The Agency
has rejected this approach because it would not allow the flexibility
that EPA believes is necessary for the effective administration of this
program at the State or Tribal level.
In response to comments the Agency has modified the final rule in
two significant ways. First, the Agency has developed a set of minimum
programmatic elements (Secs. 745.325 and 745.326 and discussed in
sections 1 and 2 of this Unit of the Preamble) that a State or Tribal
program must have to receive authorization from the Agency. This
section was developed in response to commenters who requested specific
direction from the Agency on the
[[Page 45801]]
elements that must be contained in a State or Tribal program seeking
authorization. The requirements at Secs. 745.325 and 745.326 represent
the elements EPA believes a State or Tribal program must have to
successfully administer a lead-based paint training and certification
or a pre-renovation notification program. These elements are discussed
in more detail later in this Unit of the preamble.
Second, as required by Title X, a State or Tribal program must also
be found, by the Agency, to be at least as protective as the Federal
program. In today's final rule a State or Indian Tribe is required to
develop and submit an analysis of their entire program that describes
the program in comparison to the Federal program. This analysis should
highlight the differences between the two programs and should provide
an explanation why the State or Indian Tribe believes that these
differences do not make their program any less protective than the
Federal program. The analysis can focus on each of the program elements
(e.g., procedures for the accreditation of training providers) and
explain why the program element, as a whole, is at least as protective
(or not) as the equivalent element in the Federal program.
Alternatively, the analysis can focus on the State or Tribal
program as a whole, explaining why the entire State or Tribal program
is at least as protective as the Federal program. This approach allows
a State or Tribe to design a program that may fall short of the Federal
program in one element, but would exceed it for another element.
Either approach allows a State or Indian Tribe to diverge as
necessary and appropriate from the specific elements of the Federal
program. The critical factor is that, on balance, a State or Tribal
program element will be as protective as the corresponding Federal
element. For example, a State training program may require fewer
initial training hours for a particular discipline than the Federal
program, but it would surpass the Federal program in requiring annual
refresher training for certification. The State could argue that, on
balance, this system is as protective as the Federal program. In this
example, the specific State requirements diverge from the Federal
program, but the State has concluded that it achieves the same result--
properly trained lead-based paint professionals.
In reviewing State or Tribal applications, the Agency will employ
this method of analysis as it examines the entire State or Tribal
program and compares it with the entire Federal program. The State's or
Tribe's own analysis will facilitate EPA review of a State or Tribal
program, but more importantly it will allow each State and Indian Tribe
to fully describe and explain to EPA their program and the success they
believe it will have in meeting the goals of Title X.
The Agency anticipates that each State or Indian Tribe will develop
a program that will best serve the needs of both consumers and lead-
based paint professionals in that State or Indian Tribe. The Federal
program should serve as a model for States or Indian Tribes as they
develop or refine their own programs.
1. Program elements: lead-based paint activities requirements. At
Sec. 745.325, the Agency has promulgated specific program elements
representing the minimum programmatic requirements that a State or
Tribal program must contain to receive authorization from the Agency to
administer and enforce this program.
Section 745.325(a) requires that a State or Indian Tribe seeking
authorization must have the regulatory authority to require the
training and certification of individuals engaged in lead-based paint
activities. The State or Tribal regulations must also establish work
practice standards for the conduct of these activities.
As discussed previously in Unit IV. of this preamble, the Agency
has not, at this time, promulgated a regulation pursuant to section 403
of TSCA. When final, that rule will identify hazardous conditions of
lead-based paint and levels of lead and conditions in soil and dust
that would result in a hazard to building occupants. Accordingly, the
Agency has not established specific lead-based paint hazard values or
standards (or post-abatement clearance levels) that a State or Indian
Tribe must have in order to receive program authorization. However, a
State or Indian Tribe is required to develop and implement its own
post-abatement clearance requirements.
The Agency believes the lack of section 403 standards will not
adversely affect its ability to evaluate the protectiveness of State or
Tribal programs. Hazard levels are only one component of an overall
lead-based paint activities program, and the presence of a State or
Tribal hazard level for lead in dust or soil will not, by itself,
guarantee the effective detection and remediation of lead-based paint
hazards. Other factors such as quality of training and competency of
the workforce are of equal or greater importance to the overall success
of a State or Tribal program.
Thus, the Agency believes that it can adequately evaluate the
protectiveness of State or Tribal programs without Federal standards
identifying hazardous levels of lead in paint, soil and dust.
The remainder of Sec. 745.325 describes requirements that a State
or Tribal certification and accreditation program must also contain.
Incorporation of these elements into a State or Tribal program will be
a significant factor in the Agency's evaluation of the protectiveness
of a State or Tribal program.
The Agency has included, in the next two sections of this preamble,
a discussion of the goals and objectives that the Agency considered
when developing its requirements for the Federal program. The Agency
believes that each State and Indian Tribe should also consider these
goals and objectives as it develops or refines its own program in
response to this regulation. While not regulatory requirements, they
should provide States and Indian Tribes an insight into the factors
that the Agency will consider when it evaluates their programs.
a. Accreditation of training programs. Pursuant to Sec. 745.325(b),
the State or Tribal program must contain either regulations or
procedures for the accreditation of training programs, or procedures or
regulations, for the acceptance of training offered by an accredited
training provider in a State or Tribe authorized by EPA.
If the State or Tribe chooses to develop an accreditation program,
the regulations or procedures must contain the following: (1) Training
curriculum requirements, (2) training hour requirements, (3) hands-on
training requirements, (4) trainee competency and proficiency
requirements, and (5) requirements for training program quality
control. The State or Tribal regulations must also establish procedures
for the re-accreditation of training programs, and procedures for the
oversight and control of training program activities.
A State or Tribal program for training program accreditation should
achieve three objectives: (1) Establish common elements in which
certified contractors must be trained, (2) provide training that
enhances the knowledge and expertise of contractors, and (3) allow the
State or Indian Tribe to suspend, revoke or modify the accreditation of
training providers who offer substandard training or who violate the
requirements of the State or Tribal accreditation program.
Alternatively, the State or Tribe can, for the purposes of
certification, accept training offered by an accredited
[[Page 45802]]
training provider in a State or Tribe authorized by EPA. This approach
may appeal to a smaller State or Tribe that would like to have a
certification program that would oversee the conduct of lead-based
paint activities, but, because of low demand, are unwilling to
establish an accreditation program for training providers. Under this
approach, the State's or Tribe's certification program would accept
training offered at an accredited training provider in any State or
Tribe authorized by EPA.
b. Certification of individuals. Section 745.325(c) describes the
requirements for the certification of individuals that a State or
Tribal program must have to be considered at least as protective as the
Federal program. The State or Tribal program must require that
certified contractors are properly trained and are conducting lead-
based paint activities in a way that meets the work practice standards
established by the State or Indian Tribe. The State or Tribal
regulations or procedures must also establish procedures for the re-
certification and the possible suspension, revocation or modification
of certificates. In general, the State's or Indian Tribe's
certification program should be designed so that a State or Indian
Tribe can oversee the conduct of contractors engaged in lead-based
paint activities to ensure that they are conducting their activities
according to all applicable regulations.
The State or Tribal program must also establish requirements for
the administration of a third-party certification exam. The exam should
serve as a confirmation of the individual's retention and understanding
of the information taught in an accredited training course. (The exam
may also provide insight into the relative quality of accredited
training providers.) Such an exam should be administered to applicants
after completion of an accredited training program. The exam should be
tailored to a particular work discipline and must not be offered by an
accredited training provider. The Agency is currently developing an
item bank of test questions that EPA will make available to States and
Indian Tribes to use, if they choose, as their third-party exam.
c. Work practice standards for lead-based paint activities. The
State or Tribal agency must establish work practice standards for
performing lead-based paint activities, taking into account
reliability, effectiveness, and safety. In Sec. 745.325(d), the Agency
has established minimum requirements for three lead-based paint
activities: inspection, risk assessment, and abatement. In a future
rulemaking, the Agency will address the need for work practice
standards for the remaining lead-based paint activities, e.g.,
deleading, identification of lead-based paint and demolition in public
buildings, commercial buildings, bridges and superstructures.
All of the work practice standards or regulations that a State or
Indian Tribe develops for the conduct of lead-based paint activities
must require that these activities, if conducted, be conducted by
certified individuals. The work practice standards and regulations that
a State or Indian Tribe adopts for the conduct of inspections must
ensure that an inspection accurately identifies and reports the
presence or absence of lead-based paint within the interior or on the
exterior of a residential dwelling. A State's or Indian Tribe's work
practice standards or regulations for the conduct of risk assessments
must ensure that a risk assessment accurately identifies and reports on
the existence, nature, severity and location of lead-based paint
hazards, as defined by the State or Indian Tribe, within a residential
dwelling or on the dwelling's property.
A State's or Indian Tribe's work practice standards or regulations
for the conduct of abatement must ensure that abatements are conducted
in a way that permanently eliminates lead-based paint hazards, and does
not increase the hazards of lead-based paint to building occupants. The
State or Tribal work practice standards or regulations must also
include requirements for post-abatement clearance sampling.
Additionally, the State or Indian Tribe must adopt or develop a lead-
in-dust post-abatement clearance standard.
As described at Sec. 745.325(a)(6), a State or Indian Tribe must
develop the appropriate infrastructure to administer and enforce such a
program successfully. A State or Indian Tribe must establish a State or
Tribal agency or agencies (or designate an existing agency or agencies)
to implement, administer, and enforce the program. Given the scope of
the program, it is likely that more than one State or Tribal agency
will be involved in the implementation and enforcement of this program.
States and Indian Tribes are required to identify one agency or
organization within a State or Indian Tribe (the primary agency) that
will serve to coordinate the activities of these agencies. States and
Indian Tribes are also encouraged to, whenever possible, utilize
existing certification and accreditation programs and procedures.
2. Program elements--pre-renovation notification. At Sec. 745.326,
the Agency has promulgated specific program elements that specify
minimum procedures and elements that a State or Tribal program must
contain to receive authorization from the Agency to administer and
enforce this program. Section 406(a) directs the Agency to develop and
publish a lead hazard information pamphlet. Section 406(b) directs the
Agency to develop a regulation to ensure that individuals engaged in
performing renovation activities for compensation in target housing
provide a lead hazard information pamphlet to the owner and occupant of
such housing prior to commencing the renovation activity. These Federal
regulations will be promulgated as final at 40 CFR part 745.
Section 745.326 requires that a State or Indian Tribe seeking
authorization must, at a minimum, promulgate regulations that will
achieve the objectives of the statutory mandate. The State or Tribal
program must contain regulations or procedures that require the
following: (1) Procedures and requirements for distribution of a lead
hazard information pamphlet before the renovations (for compensation in
target housing) commence; (2) an approved lead hazard information
pamphlet meeting the requirements of TSCA section 406 as approved by
EPA; and (3) provisions for the adequate enforcement of compliance with
the above program.
Section 745.326(b) describes the requirements for distribution of
the lead information that a State or Indian Tribe must have to be
considered at least as protective as the Federal program. EPA believes
State or Tribal programs should contain clear standards for identifying
home improvement activities that trigger the pamphlet distribution
requirements. It should also contain acceptable procedures for
distributing the lead hazard information to the owners and the
occupants of such housing before the actual renovation activity begins.
At Sec. 745.326(c), the Agency has established minimum requirements
for the distribution of lead hazard information. The State or Indian
Tribe may either: (1) Distribute the lead hazard information pamphlet
developed by EPA (under section 406(a) of TSCA) titled, ``Protect Your
Family From Lead in Your Home,'' or (2) distribute an alternative
pamphlet or package of lead hazard information that has been submitted
by the State or Tribe and approved by EPA for use in that State or
Tribe. Any pamphlet or package of information submitted for approval
must contain the content and design elements as Congressionally
mandated by TSCA section 406(a).
[[Page 45803]]
In addition to the content requirements laid out in section 406(a),
EPA believes that some additional discussion of Federal priority
information may help States who seek to develop alternate pamphlets. In
order to educate the public about lead-based paint hazards in the home,
the pamphlet should provide citizens with clear and understandable
information regarding the health risks associated with exposure to lead
hazards, especially the risks to children less than 6 years of age,
pregnant women, and women of childbearing age. In light of the exposure
prevention goals of the overall Federal lead hazard reduction program,
EPA believes that State pamphlets should also include a thorough
discussion regarding measures that can be taken to reduce or avoid
exposure to lead hazards from paint, dust, and soil in residential
areas.
Since renovations may disturb lead and create hazards, it is
essential that renovators and occupants of these homes be encouraged to
take special precautions to reduce or avoid exposure during
renovations. By providing a reference section including Federal, State,
and local sources of assistance, citizens will be able to find
certified contractors and information about inspections, risk
assessments, interim controls, and abatement procedures available in
their areas.
Nevertheless, the Agency recognizes the need for flexibility in the
amount of detail to be included in a State's or Indian Tribe's
information pamphlet, due to specific needs of each State or Indian
Tribe. In covering all of the elements, States or Indian Tribes may
determine the breadth of coverage of each element as they deem
necessary. For example, the Agency recognizes that it may be infeasible
to list all Federal, State, and local agencies in a reference section.
Rather, States and Indian Tribes should focus on providing the main
sources of access to that information. In general, more emphasis should
be placed on the risks and exposure prevention recommendations.
Furthermore, the Agency recommends that: (1) The information be written
at no higher than a ninth-grade reading level; and (2) appropriate
layout and type size be used to maximize readability and ensure that
the information can be utilized by as wide an audience as possible.
3. Program elements--enforcement provisions. As previously
discussed, the Agency is required to determine if a State or Tribal
program will provide for the adequate enforcement of its regulations.
Many commenters expressed concern that the proposed rule did not
provide clear guidance as to how the Agency would interpret this
phrase. Further, the Agency realizes that it has not provided a
benchmark or model for States and Indian Tribes to follow as they
develop the compliance and enforcement portions of their lead-based
paint programs. As discussed previously, the proposed and final Federal
regulations developed pursuant to sections 402(a) and 406 will serve as
an example that States and Indian Tribes can use as they develop their
own programs. These regulations also help in defining the scope of the
terms ``. . . at least as protective as. . . .''
Because there is not a comparable Federal enforcement program to
emulate, and in response to the concerns of the commenters seeking more
guidance on this issue, the Agency has developed, at Sec. 745.327(b),
(c) and (d), requirements that a State or Tribal lead-based paint
compliance and enforcement program must meet in order to receive
authorization. The Agency believes that a State or Indian Tribe that
develops an enforcement program based on these requirements would
provide adequate enforcement as that term is used in TSCA section
404(b)(2).
These requirements were developed based on the Agency's experience
evaluating and approving other State and Tribal compliance and
enforcement programs, as well as the Agency's experience in enforcing
its own regulations. Further, the Agency's own compliance and
enforcement program for these lead-based paint regulations will contain
the elements described at Sec. 745.327.
Section 745.327(b) describes the required standards, regulations
and authorities that a State or Tribal program must have. Section
745.327(c) describes specific performance elements that a State or
Tribal program must have. Section 745.327(d) describes the required
summary of progress and performance that a State or Indian Tribe must
agree to submit.
Because these elements are required of a State or Indian Tribe and
will require some time to fully implement and develop, the Agency is
providing for a phase-in of a State or Tribal lead-based compliance and
enforcement program.
This phase-in is achieved by allowing States or Indian Tribes to
seek either interim or final approval of the enforcement and compliance
portion of their lead-based paint program. Either type of approval is
sufficient for a State or Tribal program to receive authorization,
provided the other portions of its program are judged at least as
protective as the Federal program. A State or Indian Tribe that
receives interim approval for its lead-based paint compliance and
enforcement program must seek and receive final approval within 3 years
of the date of receiving EPA's interim approval. One hundred and eighty
days prior to that date, a State or Indian Tribe must apply to EPA for
final approval of the compliance and enforcement program portion of a
State or Tribal lead-based paint program. Final approval will be given
to any State or Indian Tribe which has in place all of the elements of
Sec. 745.327(b), (c), and (d). If final approval is not received within
3 years, the Agency will initiate the process to withdraw the State's
or Indian Tribe's authorization.
Interim approval of the compliance and enforcement program portion
of the State or Tribal lead-based paint program can be granted by EPA
once only, and will expire no later than 3 years from the date of EPA's
interim approval. In order to be considered adequate for purposes of
obtaining interim approval for the compliance and enforcement program
portion of a State or Tribal lead-based paint program, a State or
Indian Tribe must include the following elements in its application for
program authorization. The State or Indian Tribe must certify it has
the legal authority and ability to immediately implement the elements
at Sec. 745.327(b). This certification shall include a statement that
the State or Indian Tribe, during the interim approval period, will
carry out a level of compliance monitoring and enforcement necessary to
ensure that the State or Indian Tribe addresses any significant risks
posed by noncompliance with lead-based paint requirements.
The State or Indian Tribe must also present a plan with time frames
identified for implementing in the field all of the elements described
at Sec. 745.327(c) within 3 years from the date of interim approval. A
statement of resources must be included in the State or Tribal plan,
which identifies the resources the State or Indian Tribe intends to
devote to the administration of its lead-based paint compliance and
enforcement program.
Finally, the State or Indian Tribe must agree to submit to EPA the
Summary on Progress and Performance of lead-based paint compliance and
enforcement activities as described at Sec. 745.327(d) and discussed
below. This report must be submitted by the primary agency for each
State or Indian Tribe that has an authorized program to EPA beginning
12 months after the date of program authorization. Each authorized
program
[[Page 45804]]
shall submit the report to the EPA Regional Administrator for the
Region in which the State or Indian Tribe is located. The report shall
be submitted at least once every 12 months for the first 3 years after
program approval. As long as these reports indicate that the authorized
program is successful, the reporting interval will automatically be
extended to every 2 years. If the subsequent reports demonstrate
problems with implementation, EPA will require a return to annual
reporting in order to assist the State or Indian Tribe in resolving the
problems. These programs will return to biannual reporting after
demonstration of successful program implementation.
Final approval of the compliance and enforcement program portion of
a State or Tribal lead-based paint program can be granted by EPA either
as part of a State's or Indian Tribe's initial application (described
at Sec. 745.324(a)) or, for States or Indian Tribes which previously
received interim approval as discussed above (described at
Sec. 745.327(a)(1)), through a separate application.
In order for the compliance and enforcement program to be
considered adequate for final approval as a result of the State's or
Indian Tribe's initial application, the State or Indian Tribe must
certify it has the legal authority and ability to immediately implement
both the elements at Sec. 745.327(b) and 745.327(c).
The State or Indian Tribe must also submit a statement of resources
which identifies the resources the State or Indian Tribe intends to
devote to the administration of its lead-based paint compliance and
enforcement program. Finally, the State or Indian Tribe must agree to
submit to EPA the Summary on Progress and Performance of lead-based
paint compliance and enforcement activities as described at
Sec. 745.327(d).
States or Indian Tribes with interim approval must submit to the
Agency 180 days before their interim approval expires, a separate
application addressing only the compliance and enforcement program
portion of their program. The State or Indian Tribe must in this
application certify that it has the legal authority and ability to
immediately implement the elements at Sec. 745.327(b) and (c).
The application must include a statement of resources which
identifies the resources a State or Indian Tribe intends to devote to
the administration of its lead-based paint compliance and enforcement
program. The State or Indian Tribe must also agree to submit to EPA the
Summary on Progress and Performance of lead-based paint compliance and
enforcement activities as described at Sec. 745.327(d). To the extent
not previously submitted through the initial application described at
Sec. 745.324(a), States or Indian Tribes must submit copies of all
applicable State or Tribal statutes, regulations, standards and other
material that provide the State or Indian Tribe with authority to
administer and enforce the lead-based paint compliance and enforcement
program, and copies of the polices, certifications, plans, reports, and
any other documents that demonstrate that the program meets the
requirements established at Sec. 745.327.
The remainder of this preamble section describes in more detail the
elements at Sec. 745.327(b), (c) and(d). Section 745.327(b) ``Adequate
Standards, Regulations, and Authority'' requires that a State or Tribal
program must have the elements discussed below.
1. Lead-based paint activities and requirements. Lead-based paint
programs must demonstrate establishment of lead-based paint
requirements for those acts described under TSCA sections 402(a) and/or
406 and regulations developed pursuant to those regulations.
2. Authority to enter. Officials must be able to enter, through
consent, warrant, or other authority, premises or facilities where
violations may occur for purposes of conducting inspections.
3. Flexible remedies. Lead-based paint programs must provide for a
diverse and flexible array of enforcement remedies, which must be
reflected in an enforcement response policy. The lead-based paint
program should be able to select from among the available alternatives,
an enforcement remedy that is particularly suited to the gravity of the
violation, taking into account potential or actual risk, including:
(1) Warning letters, or notices of noncompliance, or notices of
violation, or the equivalent;
(2) Administrative or civil actions (e.g., accreditation or
certification suspension, revocation or modification, and/or
administrative or civil penalty assessment); and
(3) Authority to apply criminal sanctions or other criminal
authority using existing State or Tribal laws, as applicable.
The Agency understands that Indian Tribes may have certain
restrictions on their ability to levy criminal sanctions. This
limitation will not necessarily have a negative impact on an Indian
Tribe's ability to receive program authorization. The Indian Tribe
should, however, explain in its application the nature and extent of
any limitation on its ability to levy criminal sanctions.
Federal law bars Indian Tribes from trying criminally or punishing
non-Indians in the absence of express authority in a treaty or statute
to the contrary. Oliphant v. Suquamish Indian Tribe, 435 U.S.
191(1978). In addition, the Indian Civil Rights Act prohibits any
Indian court or Tribunal from imposing for any one offense a criminal
penalty greater than $5,000 on Indians within its jurisdiction (25
U.S.C. section 1302(7)).
The Agency realizes that requiring Indian Tribes to demonstrate the
same criminal authority as States would affectively prohibit any Indian
Tribe from obtaining program authorization. The Agency, in part F of
this unit of the preamble, provides that Indian Tribes are not required
to exercise comprehensive criminal enforcement jurisdiction as a
condition for lead-based paint activities program authorization. Under
this rule, Indian Tribes are required to provide for the timely and
appropriate referral of criminal enforcement matters to the EPA
Regional Administrator when Tribal enforcement authority does not exist
or is not sufficient (e.g., those concerning non-Indians or violations
meriting penalties over $5,000). This section also requires that such
procedures be established in a formal Memorandum of Agreement with the
Regional Administrator. This approach is the same that the Agency has
taken in the context of Tribal programs under the Safe Drinking Water
Act and the Clean Water Act.
It should be noted that, as in authorized States, EPA has the
authority to take enforcement action if an authorized Indian Tribe did
not (or could not) take such action or did not enforce adequately
(e.g., did not or could not impose a sufficient penalty). EPA
emphasizes that this referral mechanism is available only in those
cases where the limitations on Tribal enforcement arises under Federal
law.
The Memorandum of Agreement will be executed by the Indian Tribe's
counterpart to the State Director (e.g., the Director of Tribal
Environmental Office, Program or Agency). The Memorandum of Agreement
must include a provision for the timely and appropriate referral to the
Regional Administrator for those criminal enforcement matters where
that Indian Tribe does not have the authority (e.g., those addressing
criminal violations by non-Indian or violations meriting penalties over
$5,000). The Agreement must also identify any enforcement agreements
that may exist between the Indian Tribe and any State.
[[Page 45805]]
Section 745.327(c) ``Performance Elements'' for a lead-based paint
compliance and enforcement program requires that a State or Tribal
program include the following elements:
a. Training. Lead-based paint compliance and enforcement programs
must, at a minimum, implement a process for training inspection
personnel and ensuring that they have well-trained enforcement
inspectors. Inspectors must successfully demonstrate knowledge of the
requirements of the particular discipline (e.g., abatement supervisor,
and/or abatement worker, and/or lead-based paint inspector, and/or risk
assessor, and/or project planner) for which they have compliance
monitoring or enforcement responsibilities. For example, for State
compliance/enforcement inspectors, completion of the applicable
accredited training course would successfully demonstrate knowledge of
these requirements. Instruction should take the form of both hands-on
or on-the-job training and the use of prepared training materials.
b. Compliance assistance. Lead-based paint compliance and
enforcement programs must provide compliance assistance to the public
and the regulated community to facilitate awareness and understanding
of and compliance with the State or Indian Tribes lead-based paint
program(s).
c. Sampling techniques. Lead-based paint compliance and enforcement
programs must have in place the technological capability to ensure
compliance with the lead-based paint program requirements.
d. Tracking tips and complaints. The lead-based paint compliance
and enforcement program must demonstrate the ability to process and
react to tips and complaints or other information indicating a
violation. EPA expects that the ability to process and react to tips
and complaints would, as appropriate, include:
(1) A method for funneling complaints to a central organizational
unit for review;
(2) A logging system to record the receipt of the complaint and to
track the stages of the follow-up investigation;
(3) A mechanism for referring the complaint to the appropriate
investigative personnel;
(4) A system for allowing a determination of the status of the case
and ensuring correction of any violations; and
(5) A procedure for notifying citizens of the ultimate disposition
of their complaints.
e. Targeting inspections. Lead-based paint compliance and
enforcement programs must demonstrate the ability to target inspections
to ensure compliance with the lead-based paint program requirements.
f. Follow-up to inspection reports. Lead-based paint compliance and
enforcement programs must demonstrate the ability to reasonably, and in
a timely manner, process and follow-up on inspection reports and other
information generated through enforcement-related activities associated
with a lead-based paint program. The State or Indian Tribe must be in a
position to ensure correction of violations, and, as appropriate,
effectively develop and issue enforcement remedies/responses in follow-
up to the identification of violations.
g. Compliance monitoring and enforcement. A lead-based paint
compliance and enforcement program must demonstrate that it is in a
position to implement a compliance and enforcement program. Such a
compliance monitoring and enforcement program must ensure correction of
violations, and encompass either planned and/or responsive lead hazard
reduction inspections and development/issuance of State or Tribal
enforcement responses which are appropriate to the violations.
Section 745.327(d) ``Summary on Progress and Performance'' requires
the State or Indian Tribe to submit a report which summarizes the
results of implementing the State's or Indian Tribe's lead-based paint
compliance and enforcement program, including a summary of the scope of
the regulated community within the State or Indian Tribe (which would
include the number of individuals and firms certified in lead-based
activities and the number of training programs accredited), the
inspections conducted, enforcement actions taken, compliance assistance
provided, and the level of resources committed by the State or Indian
Tribe to these activities and any other lead-based paint administrative
and compliance/enforcement activities.
The report should describe any significant changes in the
enforcement of the State or Tribal lead hazard reduction program
implemented during the last reporting period. The report should also
summarize the results of the State's or Indian Tribe's implementation
activities and what the State or Indian Tribe discovered, in general,
with regard to lead-based paint compliance and enforcement in the State
or Indian Tribe as a result of these activities during the period
covered by the report. The report should also describe how any measures
of success were achieved, and directly assess the impact of compliance/
enforcement activities on reducing threats to public health.
4. Reciprocity. EPA strongly encourages each State or Indian Tribe
to establish reciprocal arrangements with other States and/or Indian
Tribes with authorized 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-saving from
the reduction of duplicative activity and attainment of a more
professional workforce as States and Tribes can refine and improve the
effectiveness of their programs based upon the experience and methods
of other States and Tribes.
Several elements of the EPA accreditation and certification
programs in Sec. 745.225 through 745.226 are intended to facilitate
reciprocity. One of the most critical elements is the certification
examination. The examination will serve to ensure that each individual
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 (previously outlined in this
preamble), will allow a State or Indian Tribe the flexibility to either
adopt a ``standardized'' examination, or develop its own examination
according to ``standardized'' guidelines. A second element is the
inclusion of a refresher training course in the Federal program.
Successful completion of a State or Tribal accredited refresher course
may serve as an ideal requirement for individuals seeking a reciprocal
certification in another State or Tribe.
F. Treatment of Tribes as a State
Today, EPA is also providing Federally recognized Indian Tribes the
opportunity to apply for and receive lead-based paint program
authorization similar to that available to States. Providing Indian
Tribes with this opportunity is consistent with EPA's Policy for the
Administration of Environmental Programs on Indian Reservations. This
policy, formally adopted in 1984 and reaffirmed on March 14, 1994 by
the Administrator, ``. . . views Tribal Governments as the appropriate
non-Federal parties for making decisions and carrying out program
responsibilities affecting Indian reservations, their environments, and
[[Page 45806]]
the health and welfare of the reservation populace.''
A major goal of EPA's Indian Policy is to eliminate all statutory
and regulatory barriers to Tribal administration of Federal
environmental programs. Today's final rule represents another step in
the Agency's continuing commitment toward achieving this goal. However,
EPA recognizes, that some eligible Indian Tribes may choose not to
apply for program authorization. Despite the choice made, the Agency
remains committed to providing technical assistance and training when
possible to Tribal entities as they work to resolve their lead-based
paint management concerns.
EPA believes that adequate authority exists under TSCA to allow
Indian Tribes to seek lead-based paint program authorization. EPA's
interpretation of TSCA is governed by the principles of Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, 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. 844. Interpreting TSCA to allow Indian Tribes to apply for
program authorization satisfies the Chevron test.
TSCA does not explicitly define a role for Indian Tribes under
Sections 402 or 404 and reflects an undeniable ambiguity in
Congressional intent. Indian Tribes are not subject to State law except
in very limited circumstances. See, California v. Cabazon Band of
Mission Indians, 480 U.S. 202 (1987). Indian Tribes are sovereign
governments. See Worcester v. Georgia, 31 U.S. (10 Pet.) 515 (1832);
and United States v. Mazurie, 419 U.S. 544, 557-58 (1975). There is no
indication in the legislative history that Congress intended to
abrogate any sovereign Tribal authority by denying Indian Tribes the
opportunity to apply for authorization to run lead-based paint programs
on Tribal lands or subjecting Indian Tribes to State law for TSCA
purposes. Moreover, it is a well-established principle of statutory
construction that Federal statutes which are ambiguous as to whether
they abridge Tribal powers of self-government must generally be
construed in favor of retaining Tribal rights. F. Cohen, Handbook of
Federal Indian Law, 224 (1982); See, e.g., Ramah Navajo School Board v.
Bureau of Revenue, 458 U.S. 832, 846 (1982).
Failure to authorize Tribal lead-based paint programs would deny
Indian Tribes the option currently available to States to administer
their programs in lieu of the Federal program. With this rule, however,
regulated lead-based paint activities in Indian country could be under
the jurisdiction of the closest sovereign with program and enforcement
authority, the Indian Tribe, rather than the Federal government.
Extending the ability to receive program authorization to Indian Tribes
is consistent with the general principles of Federal Indian law and the
Agency's Indian Policy, which states that environmental programs (e.g.,
TSCA Section 402/404) in Indian country will be implemented to the
maximum extent possible by Tribal governments. Thus, EPA believes that
allowing Indian Tribes to apply for program authorization reflects the
sovereign authority of Indian Tribes under Federal law.
In the case of other environmental statutes (e.g., the Clean Water
Act), EPA has worked to revise them to define explicitly the role for
Indian Tribes under these programs. Yet, EPA also has stepped in on at
least two occasions to allow Indian Tribes to seek program approval
despite the lack of an explicit Congressional mandate. Most recently,
EPA recognized Indian Tribes as the appropriate authority under the
Emergency Planning and Community Right-to-Know Act (EPCRA), despite
silence on the Tribal role under EPCRA (55 FR 30632; July 26, 1990).
EPA reasoned that since EPCRA has no Federal role to back-up State
planning activities, failure to recognize Indian Tribes as the
authority under EPCRA would leave gaps in emergency planning on Indian
lands. (54 FR 13000; March 29, 1989).
EPA filled a similar statutory gap much earlier as well, even
before development of its formal Indian Policy. In 1974, EPA
promulgated regulations which authorized Indian Tribes to redesignate
the level of air quality applicable to Indian Lands under the
Prevention of Significant Deterioration (PSD) program of the Clean Air
Act in the same manner that States could redesignate for other lands.
See Nance v. EPA (upholding regulations). EPA promulgated this
regulation despite the fact that the Clean Air Act at that time made no
reference whatsoever to Indian Tribes or their status under the Act.
One court already has recognized the reasonableness of EPA's
actions in filling such regulatory gaps on Indian lands. In Nance, the
U.S. Court of Appeals for the Ninth Circuit affirmed EPA's PSD
redesignation regulations described in the previous paragraph. The
Court found that EPA could reasonably interpret the Clean Air Act to
allow for Tribal redesignation, rather than allowing the States to
exercise that authority or exempting Indian lands from the
redesignation process. 745 F.2d 713. The Court noted that EPA's rule
was reasonable in light of the general existence of Tribal sovereignty
over activities on Indian Lands. Id. 714.
Today's final rule is analogous to the rule upheld in Nance. EPA is
proposing to fill a gap in jurisdiction on Indian lands. As with the
redesignation program, approving Tribal lead-based paint activities
programs ensures that the Federal government is not the entity
exercising authority that Congress intended to be exercised at a more
local level. Furthermore, the case law supporting EPA's interpretation
is even stronger today than at the time of the Nance decision. First,
the Supreme Court has reaffirmed EPA's authority to develop reasonable
controlling interpretations of environmental statutes. Chevron, supra.
Second, the Supreme Court has emphasized since Nance that Indian Tribes
may regulate activities on Indian Lands, including those of non-
Indians, where the conduct directly threatens the health and safety of
the Indian Tribe or its members. Montana v. United States, 450 U.S.
544, 565 (1981).
In the case of lead-based paint, EPA believes that improperly
conducted activities could directly threaten human health (including
that of Tribal members) and the environment (including Indian lands).
Indian Tribes are likely to be able to assert regulatory authority over
activities conducted on Indian lands to protect these interests. Thus,
as in Nance, EPA believes that allowing Indian Tribes to apply for
program authorization reflects the sovereign authority of Indian Tribes
under Federal law.
To have its lead-based paint program authorized by EPA under
today's final rule, an Indian Tribe would have to have adequate
authority over the regulated activities. The jurisdiction of Indian
Tribes clearly extends ``over both their members and their territory.''
United States v. Mazurie, 419 U.S. 544, 557 (1975). However, Indian
reservations may include lands owned in fee by nonmembers. ``Fee
lands'' are privately owned by non-members and title to the lands can
be transferred without restriction. The extent of Tribal authority to
regulate activities by non-Tribal members on fee lands depends on
whether those activities threaten or have a direct effect on the
political integrity, the economic security, or the health or welfare of
the Indian Tribe. Montana v. U.S., 450 U.S. 544. 565-66 (1981).
[[Page 45807]]
The Supreme Court in several post--Montana cases has explored
several criteria to assure that the impacts upon Indian Tribes of the
activities of non-Indians on fee land, under the Montana test, are more
than de minimis. To date, however, the Court has not agreed in a case
on point on any one reformulation of the test. In response to this
uncertainty, the Agency will apply, as an operating rule, a formulation
of the Montana standard that will expect a showing that the potential
impacts of regulated activities of non-members on the Indian Tribe are
serious and substantial. See 56 FR 64876, 64878; December, 12, 1991.
EPA will, thus, require that an Indian Tribe seeking lead-based
paint program authorization over activities of non-members on fee lands
demonstrate jurisdiction, i.e., make a showing that the potential
impacts on Indian Tribes from lead-based paint activities of non-
members on fee lands are serious and substantial. The choice of an
Agency operating rule containing this standard is taken solely as a
matter of prudence in light of judicial uncertainty and does not
reflect an Agency endorsement of that standard per se. See 56 FR 64878.
Whether an Indian Tribe has jurisdiction over activities by non-members
on fee lands, will be determined case-by-case, based on factual
findings. The determination as to whether the required effect is
present in a particular case depends on the circumstances and will
likely vary from Indian Tribe to Indian Tribe. The Agency believes,
however, that the activities regulated under the various environmental
statutes, including TSCA, generally have the potential for direct
impacts on human health and welfare that are serious and substantial.
See 56 FR 64878.
The process that the Agency will use for Indian Tribes to
demonstrate their authority over non-members on fee lands includes a
submission of a statement pursuant to Sec. 745.324(c) explaining the
legal basis for the Indian Tribes' regulatory authority. However, EPA
will also rely on its generalized findings regarding the relationship
of lead-based paint activities and related hazards to Tribal health and
welfare. Thus, the Tribal submission will need to make a showing of
facts that there are or may be activities regulated under TSCA Title IV
by non-members on fee lands within the territory for which the Indian
Tribe is seeking authorization, and that the Indian Tribe or Tribal
members could be subject to exposure to lead-based paint hazards from
such activities through, e.g., dust, soil, air, and/or direct contact.
The Indian Tribe must explicitly assert and demonstrate jurisdiction,
i.e., it should make a showing that lead-based paint activities
conducted by non-members on fee lands could have direct impacts on the
health and welfare of the Indian Tribe and its members that are serious
and substantial. Appropriate governmental entities (e.g., an adjacent
Indian Tribe or State) will have an opportunity to comment on the
Indian Tribe's jurisdictional assertions during the public comment
period prior to EPA's action on the Indian Tribe's application.
The Agency recognizes that jurisdictional disputes between Indian
Tribes and States can be complex and difficult and that it will, in
some circumstances, be forced to address such disputes by attempting to
work with the parties in a mediative fashion. However, EPA's ultimate
responsibility is protection of human health and the environment. In
view of the mobility of environmental problems, and the interdependence
of various jurisdictions, it is imperative that all affected sovereigns
work cooperatively for environmental protection.
Under the Clean Water Act (CWA), the Safe Drinking Water Act
(SDWA), the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) and the Clean Air Act (CAA), Congress has
specified certain criteria by which EPA is to determine whether an
Indian Tribe may be treated in the same manner as a State. These
criteria generally require that the Indian Tribe (1) Be recognized by
the Secretary of the Interior; (2) have an existing government
exercising substantial governmental duties and powers; (3) have
adequate civil regulatory jurisdiction over the subject matter and
entities to be regulated; and (4) be reasonably expected to be capable
of administering the Federal environmental program for which it is
seeking approval.
As discussed below, EPA is requiring Indian Tribes seeking program
authorization and grants under TSCA section 404 to demonstrate in the
Program Description that they meet the four criteria listed above. The
process EPA is proposing for Indian Tribes to make this showing,
however, generally is not an onerous one. The Agency has simplified its
process for determining Tribal eligibility to administer environmental
programs under several other environmental statutes. See 59 FR 64339
(December 14, 1994) (``Treatment as a State (TAS) Simplification
Rule''). The proposed process for determining eligibility for TSCA
Section 404 programs parallels the simplification rule. Generally, the
fact that an Indian Tribe has met the recognition or governmental
function requirement under another environmental statute allowing for
Tribal assumption of environmental programs (e.g., the Clean Water Act,
Safe Drinking Water Act, Clean Air Act) will establish that it meets
those particular requirements for purposes of TSCA Section 404
authorization. To facilitate review of Tribal applications, EPA
requests that the Indian Tribe demonstrate that it has been approved
for ``TAS'' (under the old ``TAS'' process) or been deemed eligible to
receive authorization (under the simplified process) for any other
program.
If an Indian Tribe has not received ``TAS'' approval or been deemed
eligible to receive authorization, the Indian Tribe must demonstrate,
pursuant to Sec. 745.324(b)(5)(ii), that it meets the recognition and
governmental function criteria described above. A discussion on how to
make these showings can be found at 59 FR 64339 (December 14, 1994).
EPA believes, on the other hand, that the Agency must make a
separate determination that an Indian Tribe has adequate jurisdictional
authority and administrative and programmatic capability before it
approves each Tribal lead-based paint program.
In particular, if the Indian Tribe is asserting jurisdiction over
lead-based paint activities conducted by non-members on fee lands, it
must explicitly show, in its submission, that the activities of non-
members on fee lands regarding lead-based paint could have serious and
substantial effects on the health and welfare of the Indian Tribe.
Copies of all documents, such as treaties, constitutions, bylaws,
charters, executive orders, codes, ordinances, and/or resolutions which
support the Indian Tribe's assertions of jurisdiction must also be
included. EPA will review this documentation and any comments given
during the public comment period, and then will make a determination
whether there has been an adequate demonstration of Tribal jurisdiction
over Tribal, and if asserted, non-member activities on fee lands within
the boundaries of the reservations.
Finally, capability is a determination that will be made on a case-
by-case basis. Ordinarily, the information provided in the application
for program approval submitted by an Indian Tribe or State, will be
sufficient. Nevertheless, EPA may request, in individual cases, that
the Indian Tribe provide a narrative statement or other documents
showing that the Indian Tribe is capable of
[[Page 45808]]
administering the program for which it is seeking approval. See 59 FR
64341.
Consistent with the simplification rule, no prequalification
process will be required for Indian Tribes to obtain program approval
for the lead-based paint program. EPA will evaluate whether Indian
Tribes have met the four eligibility criteria listed above during the
program approval process.
Today's final rule also authorizes grants to eligible tribes as
well as States under TSCA section 404(g). Under the statutory scheme,
section 404(g) grants are specifically designed to aid in developing
and implementing authorized TSCA lead-based paint activities programs.
Given the Agency's interpretation that TSCA section 404 is properly
read to allow EPA to authorize qualifying Tribes to administer a lead-
based paint program in lieu of the Federal program, it follows that
these Tribes should also be eligible to receive grant funding under
TSCA section 404(g) to ``develop and carry out authorized programs . .
. .'' The Agency's interpretation is consistent with well established
statutory construction that ambiguous statutes should be construed in
favor of Tribes. See, e.g., Ramah Navajo School Board v. Bureau of
Revenue, 458 U.S. 832, 846 (1982); see also, F. Cohen, Handbook of
Federal Indian Law, 224-225 (1982).
X. Regulatory Assessment Requirements
A. Executive Order 12866
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
it has been determined that this is a ``significant regulatory action''
because this regulation may raise novel legal or policy issues arising
out of the initial implementation of the new legal mandates. As such,
this action was submitted to the Office of Management and Budget (OMB)
for review. Any comments or changes made during that review have been
documented in the public record.
In addition, as specified by the Executive Order, the Agency has
prepared a regulatory impact analysis (RIA) of the economic impacts
associated with this regulation. The complete RIA document, titled TSCA
Title IV Sections 402(a) and 404: Target Housing and Child-Occupied
Facilities Final Rule Regulatory Impact Analysis, has been included in
the public record for this regulation and is available for inspection
in the TSCA public docket office. The central issue in the analysis is
to identify, quantify and value the private and social benefits and
costs of requiring that all lead-based paint abatement activities be
performed by certified personnel trained by an accredited program, and
that all lead-based paint activities meet certain minimum work practice
standards. In attempting to conduct such an analysis, EPA encountered
several difficulties related to the availability of data associated
with the activity-specific costs and the benefits attributable to
having trained and accredited personnel conduct the activities in
accordance with specific standards. Using available information, the
resulting analysis was issued with the proposed rule and any comments
received were considered in the development of the final rule, as well
as in the development of the corresponding final RIA. The following is
a brief summary of the final RIA:
1. Costs of regulatory action. Cost estimates for performing lead-
based paint activities pursuant to today's final rule are based on the
number of inspections, lead hazard screens, risk assessments, and
abatement activities and the unit costs associated with performing such
activities. The first-year costs are estimated to be $31 million. Since
the benefits and costs of this regulation occur at different times
during the 50-year analysis period, EPA estimated their present value
by discounting them. The selection of a discount rate has a direct
bearing on the analysis, because cost and benefit estimates are
sensitive to variations in the discount rate. As such, learned opinions
vary on which discount rate should be used in certain circumstances. In
this analysis, EPA uses a 3% discount rate for the core analysis and a
7% discount rate in the sensitivity analysis. Using a 3% discount rate,
the present value of the costs over the 50-year time period total
$1.114 billion. At a 7% discount rate, total costs fall to $530
million.
Total costs of compliance with work practice standards are
estimated at $637 million and account for 57% of the discounted costs.
The work practice standard costs are the main source of costs, due
primarily to the cost of following these standards when conducting risk
assessments and abatements in target housing and child-occupied
facilities.
Certain assumptions that are a result of data limitations affect
the estimates of the incremental costs of the rule. The analysis
assumes current practices and training rates make up the baseline to be
compared to the changes that will result from the rule provisions. This
analysis accounts for the fact that lead-based paint activities are
presently occurring, but does not account for the potential increase in
such activities over time as a result of EPA regulations implementing
other portions of Title X, resulting in greater costs. However, under
these circumstances the attendant benefits would also be greater. Also,
current training rate estimates assume that on average, lead-based
paint activities do not provide full-time employment. If lead-based
paint activities do constitute full-time employment, then fewer people
will require training.
2. Benefits of regulatory action. The objective of the benefit
analysis is to identify the benefits attributable to the regulation,
which in this case are the incremental benefits associated with
sections 402(a) and 404 or the value of any incremental risk reduction
brought about by performing these activities using trained labor that
complies with the work practice standards, which are also contained in
the rule. These benefits consist of the value to consumers of being
able to purchase lead-based paint activities services of more reliable
quality. As a result of the reduced uncertainty about the quality of
such services, more inspections, lead hazard screens, risk assessments,
and abatements will be performed. In addition, the average quality of
the services that are performed will rise as the low-quality lead-based
paint activities are curtailed or eliminated by the accreditation,
training, certification and work-practice standard requirements. The
quantification and valuation of these benefits--the ability to purchase
a service of more reliable quality and the improvement in quality--
would require information about the distribution of quality of lead-
based paint activities that building owners may purchase if this rule
were promulgated, and in its absence. Due to data limitations, it was
not possible to estimate the benefits of the rule. Total benefits of
abatement, however, were estimated. The number of quantifiable and
monetizable benefit categories in the analysis of abatement benefits is
limited because dose-response functions necessary to assess the
potential impacts of lead-based paint hazard reductions on human health
and the environment are not available, and knowledge of national blood-
lead levels pre- and post-implementation of sections 402(a) and 404 is
also unavailable.
The second-year total measurable benefits of abatement are
estimated at $625 million. Total measurable benefits of abatement,
discounted over a 50-year period at 3% percent are estimated at $16.1
billion, and discounted at 7% over the same time period are estimated
at $1.55 billion. These benefits accrue from reductions of negative
impacts on
[[Page 45809]]
children's intelligence, with an estimated present value of total
measured benefits of abatement equal to $16.1 billion ($13.1 billion in
target housing and $3 billion in child-occupied facilities).
In addition to the measured benefits of abatement in the base
analysis, which focuses on protection of children age 6 years or
younger, other qualitative benefit categories exist. These categories
include:
(1) Neonatal mortality;
(2) Adult resident health effects such as hypertension, coronary
heart disease and stroke;
(3) Infant/child neurological effects;
(4) Occupational health effects such as hypertension, coronary
heart disease, and stroke; and
(5) Environmental risk reductions.
With the exception of (1) and (2), it is not possible to value
these benefits due to data limitations. The contributions of these two
benefit categories are estimated and included in the sensitivity
analysis below. Were the values of these additional benefit categories
included in the primary analysis, the measured benefits of the rule
could be as much as $54 billion when discounted at 3% over 50 years.
3. Benefit-cost comparison. The purpose of this Regulatory Impact
Analysis (RIA) was to analyze the benefits, costs, and economic impacts
of the final rule implementing sections 402(a)/404. As discussed in the
RIA, there are benefits to society associated with the reduction of
lead-based paint hazards in general and there are also benefits
associated with the establishment of certification programs for
ensuring that only trained individuals perform the lead-based paint
activities. Although there is insufficient data to allow for a
quantification of those benefits, EPA believes that the analysis it
conducted with regard to the benefits from reducing lead-based paint
hazards indicates that sections 402(a)/404 provide a vehicle that will
aid in the realization of those benefits and that the costs of this
rule are reasonable in light of the potential magnitude of those
benefits, quantified or not.
It is important to point out that while the total costs of the rule
are comprehensively quantified, benefits of abatement are only
partially quantified. If benefits to adult residents of target housing,
lead-based paint abatement workers, individuals who live, work, or
travel near abatement activities, and the environment were included,
the benefits of the rule would be increased substantially. Estimates
for possible benefits to two groups of potential beneficiaries (workers
and adult residents of target housing) are provided in the sensitivity
analysis discussion below.
4. Sensitivity analysis. Six sets of sensitivity analyses examine
the effects on key categories of the benefits of abatements and cost
categories. Two sets affected the costs: alternative work practice
standard costs (resulting from alternative estimates of likely soil
abatement practices) and alternative training costs (resulting from
alternative assumptions of likely workload). In addition, varying
assumptions of changes in blood-lead levels attributable to the rule
provide estimated potential benefits for neonatal mortality, adult
residents of abated units and workers. Finally, an alternative discount
rate of 7%, which affects both the estimated costs and benefits of the
rule, is applied.
Use of an alternate discount rate and inclusion of adult resident
benefits had the greatest impact on benefits and costs. Simply
discounting the stream of costs by 7% decreases the present value of
the 50-year incremental cost estimate by 52%. Correspondingly, the use
of the 7% discount rate decreases the present value of the 50-year
benefit stream by 90%. Incorporation of adult resident benefits
increases total benefits by $17.9 billion per 0.1 g/dL change
in blood lead when discounted at 3% over 50 years, without impacting
the costs.
5. Response to comments on the RIA. The Agency received comments on
the RIA from 16 parties. The comments are in five major categories:
types of structures covered by the rule, estimation of benefits,
estimation of costs, analytic assumptions, and factors left out of the
analysis. In several cases, the rule and/or the analysis were revised
to respond to these comments. In other cases, the Agency determined
that the rule and analysis were appropriate. The comments and responses
are summarized here.
Comments on the types of structures covered address the impacts of
the rule on public and commercial buildings and steel structures. The
Agency plans to develop separate regulations affecting public and
commercial buildings and steel structures, and comments will be
addressed at that time.
Several commenters stated that EPA had overestimated the benefits
of the rule. While it is not possible to isolate the incremental
benefits resulting from the rule, estimating the total value of certain
categories of benefits due to properly performed abatements provides a
useful benchmark against which to compare the incremental costs of the
rule. This is especially true since poorly performed activities can
result in further exposures and thus negative benefits. The RIA benefit
estimates rely on IQ-related benefits to children age 6 years and
younger; neonatal and adult hypertension benefits which are also
assumed to result from the proposed rule are presented in the
sensitivity analysis. The benefit estimates include the benefits
derived from the reductions in lead-contaminated dust that occur with a
lead-based paint abatement.
On the cost side of the analysis, some commenters argued that the
costs were overestimated, while others that costs were underestimated.
In response to comments that costs were overestimated, the Agency notes
that the estimates were conservative. In response to the comments, the
costs were underestimated; the Agency notes that the estimated costs
are incremental not total. The per unit costs are estimated by
comparing current industry practices to those required under the rule,
identifying the additional actions the rule would impose, and
calculating the costs of these actions. The current analysis accounts
for the fact that some households will choose to skip the inspection
step and start the process with a lead hazard screen or risk
assessment. Changes were also made in the regulations governing soil
abatements and the analysis of these costs. The Agency has reviewed the
analysis and determined that costs are not underestimated.
A few of the comments challenged various analytic assumptions or
approaches. Some argued that EPA's Integrated Exposure Uptake
Biokinetic (IEUBK) Model should not be used in estimating the benefits.
The Agency believes the use of this model to be appropriate; the Agency
currently uses it for risk assessments at sites covered under the
Superfund program and the Resource Conservation and Recovery Act. Other
comments challenged the discount rate used in the analysis and the
handling of productivity growth. The analysis is performed in real, as
opposed to nominal, terms and thus it is not necessary to adjust for
inflation. The 3% discount rate is consistent with other environmental
regulations; the effects of using a higher rate are presented in the
sensitivity analysis.
Several comments asserted that the analysis had not accounted for
important factors. This is not the case. The final RIA includes the
effect of OSHA rules, which was one factor noted by commenters. The
impact of the rule on the demand for lead-based paint activities is
modeled using data from Massachusetts, where similar regulations have
been in effect for a few years. Attempts to uncover other
[[Page 45810]]
sources of data have been unsuccessful. In addition, the analysis now
uses a single definition of lead-based paint hazards (paint with lead
content of 1 mg/cm2 and in deteriorated condition or good
condition on friction surfaces).
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
the Agency considered whether today's regulatory action will have a
significant economic impact on a substantial number of small entities.
Based on the Agency's analysis, EPA determined that this action is
likely to have a modest adverse economic impact on a substantial number
of small entities. EPA conducted a regulatory flexibility analysis for
the rule, the results of which are summarized in today's preamble and
discussed in detail in supporting documents in the rulemaking record.
In light of that analysis and public comments received, the Agency took
numerous steps to minimize any adverse impact associated with the final
rule, with particular emphasis on reducing any potential adverse impact
on small entities. For example, in the final rule, the Agency reduced
the recordkeeping requirements associated with the work practice
standards, and reduced the length of the abatement worker course.
Previous sections of the preamble to this final rule include
discussions summarizing the need for and objective of this rule,
responses to the significant comments received on the proposed rule,
and a summary of the analysis of small entity impacts. In addition, a
Response to Public Comment Document presents EPA's detailed response to
all the significant comments received on the proposal (including the
initial regulatory flexibility analysis prepared for the proposed
rule); and a Regulatory Impact Analysis (RIA) includes a complete
description of the small entities potentially impacted, the projected
requirements that small entities might be subject to, a summary of the
changes made to the proposed rule which minimize the burden in the
final rule, and an analysis of the projected impacts on small entities.
These documents are available in the public docket supporting this
rulemaking.
The following is a brief summary of EPA's analysis of the potential
economic impacts on small entities. Basically, section 402(a) does not
require or mandate the abatement of lead-based paint, nor require that
any particular enterprise participate in the abatement of lead-based
paint. However, section 402(a) does require that if an abatement is
voluntarily conducted, certain training requirements and work practices
must be followed. The costs of required training, certification, and
work practice standards may create competitive differences that could
result in unfair burdening of small firms. This analysis estimates both
the absolute and the relative burden on small and large businesses.
The section 402(a) compliance costs consist of two components that
may impact small businesses: (1) Accreditation and training costs for
workers and supervisors, as well as certification costs for firms, and
(2) incremental costs of work practice 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 participate in this industry, a
firm must be certified and its employees must be trained and certified.
Firms 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. If the market demand does not meet
these expectations, the firm may not recoup these costs, thus
decreasing its profits.
The costs resulting from work practice standards are of a different
nature. Firms that perform lead-based paint activities often perform
similar work in settings that do not involve lead and are not affected
by this rule. Occurring at the second decision point, work practice
standards costs will be incurred by a firm only if it chooses to
undertake a given lead-based paint job. In each situation, the firm can
assess the impact of the work practice standards on its sales and
profit levels. If the impact is adverse (i.e., results in profit levels
below those available for other work), the firm has the option to
decline the work. Most firms that perform lead-based paint activities
are also active in the non-lead-based paint markets. In this voluntary
setting, the work practice standards will not have an adverse impact on
the profits of businesses because these firms can focus, instead, on
the non-lead-based paint business. Therefore, no estimates of work
practice standards burden were made. Likewise, owners of property will
incur the work practice standards costs only if they determine that an
abatement is to their benefit.
To determine the impact of the training and certification
requirements on large and small businesses, the ratios of compliance
costs to annual sales were calculated. By using first-year training
costs, the largest impacts were estimated (a worst-case scenario).
Impacts on firms in subsequent years would be significantly smaller
because the demand for training in later years would decrease from the
first year ``start up'' levels. Incremental certification and training
costs per establishment were calculated by multiplying the average
number of workers per establishment by the per person certification and
training costs. Training costs vary by discipline and certification
fees of $60 per individual and $350 per firm were estimated. While it
is likely that firms will be able to pass some or all of the training
and certification costs on to their customers in the form of higher
prices, this analysis investigates the worst case in which the firm
must absorb all the costs.
Assuming that none of the training and certification costs are
shifted forward in the form of higher prices, the ratios of compliance
costs to annual sales for small establishments range between 0.6 and
3.2%. For large firms, the ratios tend to be slightly lower, ranging
from 0.6 and 1%. In the case of both large and small establishments,
the largest cost ratio occurs for Standard Industrial Code 8743,
testing laboratories.
As discussed above, firms are likely to pass these costs on to
their customers in the form of higher prices because the regulations
apply to all firms involved in lead-based paint activities. Therefore,
the ratios tend to overestimate the impacts. Since training and
licensing costs are a small percent of annual sales, and these
percentages are only slightly higher for small businesses than for
large ones, the impact of this regulation on small businesses will be
small, as is the differential between impacts on large and small
businesses.
While this shifting of costs will alleviate the burden on abatement
firms, the incremental costs of the regulations may affect building
owners. Consistent with the arguments presented above, under this rule
abatement is a voluntary action. As such, property owners are unlikely
to undertake an abatement unless they are able to pass the cost on to
tenants or otherwise recoup the costs in terms of higher property
values. Where abatements are mandated under a State law or local
ordinance, however, the costs of this rule may have an adverse impact
on landlords. While abandonment could possibly be the result, existing
information indicates that this is unlikely. Therefore, analyses of
potential impacts on property owners or tenants were not performed.
The comparison of impacts on small and large training providers was
not performed for two reasons. First, except for the Regional Lead
Training Centers
[[Page 45811]]
(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 training providers will pass the additional costs on to
their trainees. This impact is analyzed above under the assumption that
firms undertaking lead-based paint activities will bear these costs.
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 may be beneficial to small businesses.
C. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(EPA ICR No. 1715.02) and a copy may be obtained from Sandy Farmer,
OPPE Regulatory Information Division; U.S. Environmental Protection
Agency (2136); 401 M St., SW.; Washington, DC 20460; by calling (202)
260-2740; or by e-mail from ``farmer.sandy@epamail.epa.gov.'' The
information requirements are not effective until OMB approves them.
Under today's final rule, four entities may be affected by new
information collection and reporting requirements. These entities are:
(1) States and Indian Tribes; (2) training program providers; (3)
individuals engaged in lead-based paint activities; and (4) firms
engaged in lead-based paint activities.
Importantly, States and Indian Tribes have the option of choosing
to seek authorization to administer lead-based paint activities
programs under TSCA section 404; thus the information collection and
recordkeeping requirements are voluntary activities for these entities.
In those States and Indian Tribes that do not seek program
authorization, however, it is assumed that EPA will administer a lead-
based paint activities program.
Likewise, individuals and firms that engage in lead-based paint
activities, as well as training providers delivering training in such
activities also have the option of providing these services. Thus, for
those individuals and firms that choose to provide instruction or to
contract their services for the purposes of conducting lead-based paint
activities, the information collection and recordkeeping requirements
also are voluntary.
Nonetheless, it must be noted that the information collection and
recordkeeping requirements contained in the rule become mandatory once
an entity chooses to administer a program; provide instruction; or
contract its services in the lead-based paint activities field. The
Agency notes that the rule's information collection and recordkeeping
requirements have been designed so as to assist the Agency in meeting
the core objectives of section 402(a) and section 404 of TSCA Title IV.
These objectives are to ensure the integrity of an accreditation
program for training providers; enable individuals and firms to become
certified; and substantiate that programs administered by States and
Indian Tribes are as protective as EPA's federal program. The Agency
believes that the information collection and recordkeeping requirements
generated by the rule are balanced in that they will permit the Agency
to achieve the statutory objectives of TSCA Title IV without imposing
an undue burden on those entities that choose to become involved in the
lead-based paint activities field. The projected burden for these
entities is summarized below.
For the purposes of this discussion, the term ``burden'' refers to
the total time, effort, or financial resources expended by persons to
generate, maintain, retain, or disclose or provide information to or
for a Federal agency. This includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.
The average burden per training provider for the first effective
year of the rule is estimated to be 28.3 hours with a cost per training
provider of $681.40, and lesser burden in subsequent years. The
estimated burden for the first effective year of the rule for the total
number of training providers is 5,667 hours at a cost of $136,279.
The estimated, average burden per firm or contractor (individuals
may be employed as firms or contractors) engaging in lead-based paint
activities is 115.7 hours with a cost of $2,473, with lesser burden in
subsequent years. For the total number of firms performing lead-based
paint activities the burden is estimated to be 326,724 hours at a cost
of $6,985,059.
The estimated, average burden per individual seeking certification
to engage in lead-based paint activities depends on the length of the
required training, plus 1 additional hour. For the total of
individuals, the first effective year burden is 407,448 hours at a cost
of $16,092,230 with lesser burden in subsequent years.
The first effective year burden per State or Indian Tribe depends
on whether the entity must put legislation into place before
implementing a regulatory program. For States or Indian Tribes that
assume legislative and regulatory development the burden is 1,715
hours; for those States or Indian Tribes that need only to acquire
program authorization the burden is 138 hours. The total burden for
States and Indian Tribes in the first effective year is 48,713 hours at
a cost of $959,534, with lesser burden in subsequent years. For EPA the
estimated burden in the first effective year of the rule is 5,940 hours
at a cost of $197,285.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Send comments on the burden estimates and any suggested methods for
minimizing respondent burden, including through the use of automated
collection techniques to the Director, OPPE Regulatory Information
Division; U.S. Environmental Protection Agency (2136); 401 M St., SW.;
Washington, DC 20460; and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th St., NW.,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
Include the ICR number in any correspondence.
D. Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4), EPA has determined that this regulatory action does
not contain any ``Federal mandates,'' as described in the Act, for the
States, local, or Tribal governments or the private sector because the
rule implements mandates specifically and explicitly set forth by the
Congress in TSCA section 402(a) and section 404 without the exercise of
any political discretion by EPA.
In any event, EPA has determined that this action does not result
in the expenditure of $100 million or more by
[[Page 45812]]
any State, local or tribal governments, or by anyone in the private
sector. The costs associated with this action are described as required
by Executive Order 12866 in section A of this Unit in the preamble.
As specified by Executive Order 12875 (58 FR 58093, October 28,
1993), titled Enhancing the Intergovernmental Partnership, the Agency
has sought input from State, local and tribal government
representatives throughout the development of this rule. EPA
anticipates that these governments will play a critical role in the
implementation of a national lead-based paint activities training and
certification program. Consequently, the Agency felt that their input
and participation were needed to ensure the success of the program.
Specifically, before it began the development of today's final
rule, EPA informally met with a broad range of interested parties,
including State, local and tribal governments to solicit information on
the subject of lead-based paint activities training, accreditation,
certification and standards. Communication and input from the States
also was actively sought as the Agency developed a proposed rule, and
after the proposed rule was published for public comment on September
2, 1994.
During the public comment period, at least three meetings were held
with State representatives under the auspices of the ``Forum on State
and Tribal Toxics Action'' or ``FOSTTA.'' FOSTTA is an organization
that serves as a forum for State and Tribal officials to jointly
participate in addressing national toxics issues, including lead. Under
FOSTTA, a ``lead project'' has been formed to work with the States and
tribes on lead-related issues. In addition to meetings with FOSTTA
representatives, the Agency met on December 5 and 6, 1994, with 93
State representatives from 49 State health and environmental agencies.
Twelve representatives from 10 tribes also participated in the December
meeting. Furthermore, the Agency received written comments from 83
State and local agencies representing 49 States.
The input received from State, Tribal and local agencies has been
very useful in the final development of today's final rule. The Agency
believes that this input has helped produce an efficient rule that will
support the development of a workforce qualified to reduce and
eliminate lead-based paint and its associated hazards. By working with
the States, Tribes and local agencies, EPA also has initiated
preliminary discussions intended to facilitate cooperation and program
reciprocity.
E. Executive Order 12898--Environmental Justice Considerations
Pursuant to Executive Order 12898 (59 FR 7629, February 16, 1994),
the Agency has considered environmental justice related issues with
regard to the potential impacts of this action on the environmental and
health conditions in low-income and minority communities. This
examination shows that existing lead-based paint hazards are a risk to
all segments of the population living in pre-1978 housing. However,
literature indicates that some segments of our society are at
relatively greater risk than others.
Although the baseline risks from lead-based paint fall
disproportionately on poorer sub-populations, it may be more likely
that abatements will take place in residential dwellings occupied by
mid- to upper-level income households. Abatements will be voluntary,
and wealthier households are more likely to have the financial
resources to abate an existing problem in their home, or to avoid lead-
based paint hazards by not moving into a residential dwelling with
lead-based paint. Even though a national strategy of eliminating lead-
based paint hazards targets a problem affecting a greater share of poor
households and minorities, the impact of income on the ability to
undertake voluntary abatements may result in a more inequitable
distribution of the risks in the future.
In response to this situation, several Federal agencies have
established grant programs that will provide financial support to
reduce the prevalence of lead poisoning among disadvantaged children.
The EPA also has several information initiatives designed to educate
the public, with a particular emphasis on this socio-economic group, of
the dangers of lead.
XI. Submission to Congress and the General Accounting Office
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2)
of the Administrative Procedure Act. Pursuant to 5 U.S.C. 801
(a)(1)(A), EPA submitted this action to the U.S. Senate, the U.S. House
of Representatives and the Comptroller General of the General
Accounting Office prior to its publication in today's Federal Register.
XII. Rulemaking Record
EPA has established a record for this rulemaking (docket control
number OPPTS-62128B). A public version of the record, without any
information claimed as confidential business information, is available
in the TSCA Public Docket Office, from 12 noon to 4 p.m., Monday
through Friday, except legal holidays. The TSCA Public Docket Office is
located at EPA headquarters, in Rm. G102, 401 M St., SW., Washington,
DC. 20460.
The rulemaking record contains information considered by EPA in
developing this final 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.
Unit XIII. of this preamble contains the list of documents which
the Agency relied upon while developing today's regulation and can be
found in the docket. Other documents, not listed there, such as those
submitted with written comments from interested parties, are contained
in the TSCA Docket office as well. A draft of today's final rule
submitted by the Administrator to the OMB for an interagency review
process prior to publication of the rule is also contained in the
public docket.
XIII. References
(1) Minutes from the December 5 and 6, 1994 National Lead
Conference; and minutes from Forum on State and Tribal Toxics Action
(FOSTTA) meetings from 1994 and 1995.
(2) Lead; Requirements for Lead-Based Paint Activities; Proposed
Rule; Summary of Public Comments; prepared by the Office of Pollution
Prevention and Toxics, (January 31, 1995).
(3) Lead; Requirements for Lead-Based Paint Activities; Proposed
Rule; Response to Public Comment Document; prepared by the Office of
Pollution Prevention and Toxics, (August 1, 1996).
(4) Mathematica Policy Research, Inc. 1990. Profile of Child care
Settings; and U.S. Department of Education, National Center for
Education Statistics. 1993. Fast Response Survey, Kindergarten Teacher
Survey on Student Readiness.
(5) U. S. Census Bureau, School Enrollment Supplement. 1994.
Current Population Survey. (October 1994).
(6) U.S. Department of Housing and Urban Development (HUD), Office
of Lead-Based Paint Abatement and Poisoning Prevention. 1995.
Guidelines for the Evaluation and Control of Lead-Based Paint Hazards
in Housing. (June 1995).
(7) USEPA. 1995. Residential Sampling for Lead: Protocols for Dust
and Soil Sampling. (EPA 747-R-95-001, March 1995).
[[Page 45813]]
(8) USEPA. 1995. A Field Test of Lead-Based Paint Testing
Technologies: Summary Report. (EPA 747-R-95-002a, May 1995).
(9) USEPA. 1995. A Review of Studies Addressing Lead Abatement
Effectiveness. (EPA 747-R-95-006, June 1995).
(10) Amitai, Y. Brown, M.J., Graef, J.W., and Cosgrove, E. 1991.
``Residential Deleading: Effects on the Blood Lead Levels of Lead-
Poisoned Children.'' Pediatrics. 88(5):893-897.
(11) Farfel, M.R. and Chisolm, J.J. Jr. 1990. ``Health and
Environmental Outcomes of Traditional and Modified Practices for
Abatement of Residential Lead-Based Paint.'' American Journal of Public
Health. 80(10):1240-1245.
(12) HUD, Office of Lead-Based Paint Abatement and Poisoning
Prevention. 1995. HUD Guidelines Appendix 11-1 ``One-Hour Waiting
Period Rationale for Clearance Sampling.'' (June 1995).
List of Subjects in 40 CFR Part 745
Environmental protection, Hazardous substances, Lead, Recordkeeping
and reporting requirements.
Dated: August 21, 1996.
Carol M. Browner,
Administrator.
Therefore, 40 CFR part 745 is amended as follows:
PART 745--[AMENDED]
1. The authority citation for part 745 is revised to read as
follows:
Authority: 15 U.S.C. 2605, 2607, and 2681-2692.
2. By adding new subparts L and Q and reserving subparts G-K and M-
P to read as follows:
Subparts G-K [Reserved]
Subpart L--Lead-Based Paint Activities
Sec.
745.220 Scope and applicability.
745.223 Definitions.
745.225 Accreditation of training programs: target housing and
child-occupied facilities.
745.226 Certification of individuals and firms engaged in lead-
based paint activities: target housing and child-occupied
facilities.
745.227 Work practice standards for conducting lead-based paint
activities: target housing and child-occupied facilities.
745.228 Accreditation of training programs: public and
commercial buildings, bridges and superstructures [Reserved].
745.229 Certification of individuals and firms engaged in lead-
based paint activities: public and commercial buildings, bridges and
superstructures [Reserved].
745.230 Work practice standards for conducting lead-based paint
activities: public and commercial buildings, bridges and
superstructures [Reserved].
745.233 Lead-based paint activities requirements.
745.235 Enforcement.
745.237 Inspections.
745.239 Effective dates.
Subparts M-P [Reserved]
Subpart Q--State and Indian Tribal Programs
Sec.
745.320 Scope and purpose.
745.323 Definitions.
745.324 Authorization of State and Indian Tribal programs.
745.325 Lead-based paint activities: State and Indian Tribal
program requirements.
745.326 Pre-renovation notification: State and Indian Tribal
program requirements.
745.327 State or Indian Tribal lead-based paint compliance and
enforcement programs.
745.328 Authorization of Indian Tribal programs.
745.330 Grants.
745.339 Effective dates.
Subparts G-K [Reserved]
Subpart L--Lead-Based Paint Activities
Sec. 745.220 Scope and applicability.
(a) 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 work practice
standards for performing such activities. This subpart also requires
that, except as discussed below, all lead-based paint activities, as
defined in this subpart, be performed by certified individuals and
firms.
(b) This subpart applies 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 residential
dwellings that they own, unless the residential dwelling is occupied by
a person or persons other than the owner or the owner's immediate
family while these activities are being performed, or a child residing
in the building has been identified as having an elevated blood lead
level. This subpart applies only in those States or Indian Country that
do not have an authorized State or Tribal program pursuant to
Sec. 745.324 of subpart Q.
(c) 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.
(d) While this subpart establishes specific requirements for
performing lead-based paint activities should they be undertaken,
nothing in this subpart requires that the owner or occupant undertake
any particular lead-based paint activity.
Sec. 745.223 Definitions.
The definitions in subpart A apply to this subpart. In addition,
the following definitions apply.
Abatement means any measure or set of measures designed to
permanently eliminate lead-based paint hazards. Abatement includes, but
is not limited to:
(1) The removal of lead-based paint and lead-contaminated dust, the
permanent enclosure or encapsulation of lead-based paint, the
replacement of lead-painted surfaces or fixtures, and the removal or
covering of lead-contaminated soil; and
(2) All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures.
(3) Specifically, abatement includes, but is not limited to:
(i) Projects for which there is a written contract or other
documentation, which provides that an individual or firm will be
conducting activities in or to a residential dwelling or child-occupied
facility that:
(A) Shall result in the permanent elimination of lead-based paint
hazards; or
(B) Are designed to permanently eliminate lead-based paint hazards
and are described in paragraphs (1) and (2) of this definition.
(ii) Projects resulting in the permanent elimination of lead-based
paint hazards, conducted by firms or individuals certified in
accordance with Sec. 745.226, unless such projects are covered by
paragraph (4) of this definition;
(iii) Projects resulting in the permanent elimination of lead-based
paint hazards, conducted by firms or individuals who, through their
company name or promotional literature, represent, advertise, or hold
themselves out to be in the business of performing lead-based paint
activities as identified and defined by this section, unless such
projects are covered by paragraph (4) of this definition; or
(iv) Projects resulting in the permanent elimination of lead-based
paint hazards, that are conducted in
[[Page 45814]]
response to State or local abatement orders.
(4) Abatement does not include renovation, remodeling, landscaping
or other activities, when such activities are not designed to
permanently eliminate lead-based paint hazards, but, instead, are
designed to repair, restore, or remodel a given structure or dwelling,
even though these activities may incidentally result in a reduction or
elimination of lead-based paint hazards. Furthermore, abatement does
not include interim controls, operations and maintenance activities, or
other measures and activities designed to temporarily, but not
permanently, reduce lead-based paint hazards.
Accredited training program means a training program that has been
accredited by EPA pursuant to Sec. 745.225 to provide training for
individuals engaged in lead-based paint activities.
Adequate quality control means a plan or design which ensures the
authenticity, integrity, and accuracy of samples, including dust, soil,
and paint chip or paint film samples. Adequate quality control also
includes provisions for representative sampling.
Certified firm means a company, partnership, corporation, sole
proprietorship, association, or other business entity that performs
lead-based paint activities to which EPA has issued a certificate of
approval pursuant to Sec. 745.226(f).
Certified inspector means an individual who has been trained by an
accredited training program, as defined by this section, and certified
by EPA pursuant to Sec. 745.226 to conduct inspections. A certified
inspector also samples for the presence of lead in dust and soil for
the purposes of abatement clearance testing.
Certified abatement worker means an individual who has been trained
by an accredited training program, as defined by this section, and
certified by EPA pursuant to Sec. 745.226 to perform abatements.
Certified project designer means an individual who has been trained
by an accredited training program, as defined by this section, and
certified by EPA pursuant to Sec. 745.226 to prepare abatement project
designs, occupant protection plans, and abatement reports.
Certified risk assessor means an individual who has been trained by
an accredited training program, as defined by this section, and
certified by EPA pursuant to Sec. 745.226 to conduct risk assessments.
A risk assessor also samples for the presence of lead in dust and soil
for the purposes of abatement clearance testing.
Certified supervisor means an individual who has been trained by an
accredited training program, as defined by this section, and certified
by EPA pursuant to Sec. 745.226 to supervise and conduct abatements,
and to prepare occupant protection plans and abatement reports.
Child-occupied facility means a building, or portion of a building,
constructed prior to 1978, visited regularly by the same child, 6 years
of age or under, on at least two different days within any week (Sunday
through Saturday period), provided that each day's visit lasts at least
3 hours and the combined weekly visit lasts at least 6 hours, and the
combined annual visits last at least 60 hours. Child-occupied
facilities may include, but are not limited to, day-care centers,
preschools and kindergarten classrooms.
Clearance levels are values that indicate the maximum amount of
lead permitted in dust on a surface following completion of an
abatement activity.
Common area means a portion of a building that is generally
accessible to all occupants. Such an area may include, but is not
limited to, hallways, stairways, laundry and recreational rooms,
playgrounds, community centers, garages, and boundary fences.
Component or building component means specific design or structural
elements or fixtures of a building, residential dwelling, or child-
occupied facility that 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, fireplaces, 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 or stools and troughs), 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, fascias,
rake boards, cornerboards, 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 or stools and troughs, casings, sashes and
wells, and air conditioners.
Containment means a process to protect workers and the environment
by controlling exposures to the lead-contaminated dust and debris
created during an abatement.
Course agenda means an outline of the key topics to be covered
during a training course, including the time allotted to teach each
topic.
Course test means an evaluation of the overall effectiveness of the
training which shall test the trainees' knowledge and retention of the
topics covered during the course.
Course test blue print means written documentation identifying the
proportion of course test questions devoted to each major topic in the
course curriculum.
Deteriorated paint means paint that is cracking, flaking, chipping,
peeling, or otherwise separating from the substrate of a building
component.
Discipline means one of the specific types or categories of lead-
based paint activities identified in this subpart for which individuals
may receive training from accredited programs and become certified by
EPA. For example, ``abatement worker'' is a discipline.
Distinct painting history means the application history, as
indicated by its visual appearance or a record of application, over
time, of paint or other surface coatings to a component or room.
Documented methodologies are methods or protocols used to sample
for the presence of lead in paint, dust, and soil.
Elevated blood lead level (EBL) means an excessive absorption of
lead that is a confirmed concentration of lead in whole blood of 20
g/dl (micrograms of lead per deciliter of whole blood) for a
single venous test or of 15-19 g/dl in two consecutive tests
taken 3 to 4 months apart.
Encapsulant means a substance that forms a barrier between lead-
based paint and the environment using a liquid-applied coating (with or
without reinforcement materials) or an adhesively bonded covering
material.
Encapsulation means the application of an encapsulant.
Enclosure means the use of rigid, durable construction materials
that are mechanically fastened to the substrate in order to act as a
barrier between lead-based paint and the environment.
Guest instructor means an individual designated by the training
program manager or principal instructor to provide instruction specific
to the lecture, hands-on activities, or work practice components of a
course.
Hands-on skills assessment means an evaluation which tests the
trainees' ability to satisfactorily perform the work practices and
procedures identified in Sec. 745.225(d), as well as any other skill
taught in a training course.
Hazardous waste means any waste as defined in 40 CFR 261.3.
[[Page 45815]]
Inspection means a surface-by-surface investigation to determine
the presence of lead-based paint and the provision of a report
explaining the results of the investigation.
Interim certification means the status of an individual who has
successfully completed the appropriate training course in a discipline
from an accredited training program, as defined by this section, but
has not yet received formal certification in that discipline from EPA
pursuant to Sec. 745.226. Interim certifications expire 6 months after
the completion of the training course, and is equivalent to a
certificate for the 6-month period.
Interim controls means a set of measures designed to temporarily
reduce 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 means paint or other surface coatings that contain
lead equal to or in excess of 1.0 milligrams per square centimeter or
more than 0.5 percent by weight.
Lead-based paint activities means, in the case of target housing
and child-occupied facilities, inspection, risk assessment, and
abatement, as defined in this subpart.
Lead-based paint hazard means any condition that causes exposure to
lead from lead-contaminated dust, lead-contaminated soil, or lead-
contaminated paint that is deteriorated or present in accessible
surfaces, friction surfaces, or impact surfaces that would result in
adverse human health effects as identified by the Administrator
pursuant to TSCA section 403.
Lead-contaminated dust means surface dust in residential dwellings,
or child-occupied facilities that contains an area or mass
concentration of lead at or in excess of levels identified by the
Administrator pursuant to TSCA section 403.
Lead-contaminated soil means bare soil on residential real property
and on the property of a child-occupied facility that contains lead at
or in excess of levels identified by the Administrator pursuant to TSCA
section 403.
Lead-hazard screen is a limited risk assessment activity that
involves limited paint and dust sampling as described in
Sec. 745.227(c).
Living area means any area of a residential dwelling used by one or
more children age 6 and under, including, but not limited to, living
rooms, kitchen areas, dens, play rooms, and children's bedrooms.
Multi-family dwelling means 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.
Paint in poor condition means more than 10 square feet of
deteriorated paint on exterior components with large surface areas; or
more than 2 square feet of deteriorated paint on interior components
with large surface areas (e.g., walls, ceilings, floors, doors); or
more than 10 percent of the total surface area of the component is
deteriorated on interior or exterior components with small surface
areas (window sills, baseboards, soffits, trim).
Permanently covered soil means soil which has been separated from
human contact by the placement of a barrier consisting of solid,
relatively impermeable materials, such as pavement or concrete. Grass,
mulch, and other landscaping materials are not considered permanent
covering.
Person means any natural or judicial person including any
individual, corporation, partnership, or association; any Indian Tribe,
State, or political subdivision thereof; any interstate body; and any
department, agency, or instrumentality of the Federal government.
Principal instructor means the individual who has the primary
responsibility for organizing and teaching a particular course.
Recognized laboratory means an environmental laboratory recognized
by EPA pursuant to TSCA section 405(b) as being capable of performing
an analysis for lead compounds in paint, soil, and dust.
Reduction means measures designed to reduce or eliminate human
exposure to lead-based paint hazards through methods including interim
controls and abatement.
Residential dwelling means (1) a detached single family dwelling
unit, 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 (1) an on-site investigation to determine the
existence, nature, severity, and location of lead-based paint hazards,
and (2) the provision of a report by the individual or the firm
conducting the risk assessment, explaining the results of the
investigation and options for reducing lead-based paint hazards.
Target housing means any housing constructed prior to 1978, except
housing for the elderly or persons with disabilities (unless any one or
more children age 6 years or under resides or is expected to reside in
such housing for the elderly or persons with disabilities) or any 0-
bedroom dwelling.
Training curriculum means an established set of course topics for
instruction in an accredited training program for a particular
discipline designed to provide specialized knowledge and skills.
Training hour means at least 50 minutes of actual learning,
including, but not limited to, time 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 principal
instructors and guest instructors.
Visual inspection for clearance testing means the visual
examination of a residential dwelling or a child-occupied facility
following an abatement to determine whether or not the abatement has
been successfully completed.
Visual inspection for risk assessment means the visual examination
of a residential dwelling or a child-occupied facility to determine the
existence of deteriorated lead-based paint or other potential sources
of lead-based paint hazards.
Sec. 745.225 Accreditation of training programs: target housing and
child-occupied facilities.
(a) Scope. (1) A training program may seek accreditation to offer
lead-based paint activities courses in any of the following
disciplines: inspector, risk assessor, supervisor, project designer,
and abatement worker. A training program may also seek accreditation to
offer refresher courses for each of the above listed disciplines.
(2) Training programs may first apply to EPA for accreditation of
their lead-based paint activities courses or refresher courses pursuant
to this section on or after August 31, 1998.
(3) A training program shall not provide, offer, or claim to
provide EPA-accredited lead-based paint activities courses without
applying for and receiving accreditation from EPA as required under
paragraph (b) of this section on or after March 1, 1999.
(b) Application process. The following are procedures a training
program shall follow to receive EPA
[[Page 45816]]
accreditation to offer lead-based paint activities courses:
(1) A training program seeking accreditation shall submit a written
application to EPA 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 certifying
that the training program meets the requirements established in
paragraph (c) of this section. If a training program uses EPA-
recommended model training materials, or training materials approved by
a State or Indian Tribe that has been authorized by EPA under subpart Q
of this part, the training program manager shall include a statement
certifying that, as well.
(iv) If a training program does not use EPA-recommended model
training materials or training materials approved by an authorized
State or Indian Tribe, its application for accreditation shall also
include:
(A) A copy of the student and instructor manuals, or other
materials to be used for each course.
(B) A copy of the course agenda for each course.
(v) All training programs shall include in their application for
accreditation the following:
(A) A description of the facilities and equipment to be used for
lecture and hands-on training.
(B) A copy of the course test blueprint for each course.
(C) A description of the activities and procedures that will be
used for conducting the assessment of hands-on skills for each course.
(D) A copy of the quality control plan as described in paragraph
(c)(9) of this section.
(2) If a training program meets the requirements in paragraph (c)
of this section, then EPA shall approve the application for
accreditation no more than 180 days after receiving a complete
application from the 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, EPA may, at its
discretion, work with the applicant to address inadequacies in the
application for accreditation. EPA may also request additional
materials retained by the training program under paragraph (i) of this
section. If a training program's application is disapproved, the
program may reapply for accreditation at any time.
(3) A training program may apply for accreditation to offer courses
or refresher courses in as many disciplines as it chooses. A training
program may seek accreditation for additional courses at any time as
long as the program can demonstrate that it meets the requirements of
this section.
(c) Requirements for the accreditation of training programs. For a
training program to obtain accreditation from EPA to offer lead-based
paint activities courses, the program shall meet the following
requirements:
(1) The training program shall employ a training manager who has:
(i) At least 2 years of experience, education, or training in
teaching workers or adults; or
(ii) A bachelor's or graduate degree in building construction
technology, engineering, industrial hygiene, safety, public health,
education, business administration or program management or a related
field; or
(iii) Two years of experience in managing a training program
specializing in environmental hazards; and
(iv) Demonstrated experience, education, or training in the
construction industry including: lead or asbestos abatement, painting,
carpentry, renovation, remodeling, occupational safety and health, or
industrial hygiene.
(2) The training manager shall designate a qualified principal
instructor for each course who has:
(i) Demonstrated experience, education, or training in teaching
workers or adults; and
(ii) Successfully completed at least 16 hours of any EPA-accredited
or EPA-authorized State or Tribal-accredited lead-specific training;
and
(iii) Demonstrated experience, education, or training in lead or
asbestos abatement, painting, carpentry, renovation, remodeling,
occupational safety and health, or industrial hygiene.
(3) The principal instructor shall be responsible for the
organization of the course and oversight of the teaching of all course
material. The training manager may designate guest instructors as
needed to provide instruction specific to the lecture, hands-on
activities, or work practice components of a course.
(4) The following documents shall be recognized by EPA as evidence
that training managers and principal instructors have the education,
work experience, training requirements or demonstrated experience,
specifically listed in paragraphs (c)(1) and (c)(2) of this section.
This documentation need not be submitted with the accreditation
application, but, if not submitted, shall be retained by the training
program as required by the recordkeeping requirements contained in
paragraph (i) of this section. Those documents include the following:
(i) Official academic transcripts or diploma as evidence of meeting
the education requirements.
(ii) Resumes, letters of reference, or documentation of work
experience, as evidence of meeting the work experience requirements.
(iii) Certificates from train-the-trainer courses and lead-specific
training courses, as evidence of meeting the training requirements.
(5) The training program shall ensure the availability of, and
provide adequate facilities for, the delivery of the lecture, course
test, hands-on training, and assessment activities. This includes
providing training equipment that reflects current work practices and
maintaining or updating the equipment and facilities as needed.
(6) To become accredited in the following disciplines, the training
program shall provide training courses that meet the following training
hour requirements:
(i) The inspector course shall last a minimum of 24 training hours,
with a minimum of 8 hours devoted to hands-on training activities. The
minimum curriculum requirements for the inspector course are contained
in paragraph (d)(1) of this section.
(ii) The risk assessor course shall last a minimum of 16 training
hours, with a minimum of 4 hours devoted to hands-on training
activities. The minimum curriculum requirements for the risk assessor
course are contained in paragraph (d)(2) of this section.
(iii) The supervisor course shall last a minimum of 32 training
hours, with a minimum of 8 hours devoted to hands-on activities. The
minimum curriculum requirements for the supervisor course are contained
in paragraph (d)(3) of this section.
(iv) The project designer course shall last a minimum of 8 training
hours. The minimum curriculum requirements for the project designer
course are contained in paragraph (d)(4) of this section.
(v) The abatement worker course shall last a minimum of 16 training
hours, with a minimum of 8 hours devoted to hands-on training
activities. The minimum curriculum requirements for the abatement
worker course are contained in paragraph (d)(5) of this section.
(7) For each course offered, the training program shall conduct
either a course test at the completion of the course, and if
applicable, a hands-on
[[Page 45817]]
skills assessment, or in the alternative, a proficiency test for that
discipline. Each individual must successfully complete the hands-on
skills assessment and receive a passing score on the course test to
pass any course, or successfully complete a proficiency test.
(i) The training manager is responsible for maintaining the
validity and integrity of the hands-on skills assessment or profiency
test to ensure that it accurately evaluates the trainees' performance
of the work practices and procedures associated with the course topics
contained in paragraph (d) of this section.
(ii) The training manager is responsible for maintaining the
validity and integrity of the course test to ensure that it accurately
evaluates the trainees' 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.
(8) The training program shall issue unique course completion
certificates to each individual who passes the training course. The
course completion certificate shall include:
(i) The name, a unique identification number, and address of the
individual.
(ii) The name of the particular course that the individual
completed.
(iii) Dates of course completion/test passage.
(iv) Expiration date of interim certification, which shall be 6
months from the date of course completion.
(v) The name, address, and telephone number of the training
program.
(9) The training manager shall develop and implement a quality
control plan. The plan shall be used to maintain and 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 the
course test to reflect innovations in the field.
(ii) Procedures for the training manager's annual review of
principal instructor competency.
(10) The training program shall offer courses which teach the work
practice standards for conducting lead-based paint activities contained
in Sec. 745.227, and other standards developed by EPA pursuant to Title
IV of TSCA. These standards shall be taught in the appropriate courses
to provide trainees with the knowledge needed to perform the lead-based
paint activities they are responsible for conducting.
(11) The training manager shall be responsible for ensuring that
the training program complies at all times with all of the requirements
in this section.
(12) The training manager shall allow EPA to audit the training
program to verify the contents of the application for accreditation as
described in paragraph (b) of this section.
(d) Minimum training curriculum requirements. To become accredited
to offer lead-based paint courses instruction in the specific
disciplines listed below, training programs must ensure that their
courses of study include, at a minimum, the following course topics.
Requirements ending in an asterisk (*) indicate areas that require
hands-on activities as an integral component of the course.
(1) Inspector. (i) Role and responsibilities of an inspector.
(ii) Background information on lead and its adverse health effects.
(iii) Background information on Federal, State, and local
regulations and guidance that pertains to lead-based paint and lead-
based paint activities.
(iv) Lead-based paint inspection methods, including selection of
rooms and components for sampling or testing.*
(v) Paint, dust, and soil sampling methodologies.*
(vi) Clearance standards and testing, including random sampling.*
(vii) Preparation of the final inspection report.*
(viii) Recordkeeping.
(2) Risk assessor. (i) Role and responsibilities of a risk
assessor.
(ii) Collection of background information to perform a risk
assessment.
(iii) Sources of environmental lead contamination such as paint,
surface dust and soil, water, air, packaging, and food.
(iv) Visual inspection for the purposes of identifying potential
sources of lead-based paint hazards.*
(v) Lead hazard screen protocol.
(vi) Sampling for other sources of lead exposure.*
(vii) Interpretation of lead-based paint and other lead sampling
results, including all applicable State or Federal guidance or
regulations pertaining to lead-based paint hazards.*
(viii) Development of hazard control options, the role of interim
controls, and operations and maintenance activities to reduce lead-
based paint hazards.
(ix) Preparation of a final risk assessment report.
(3) Supervisor. (i) Role and responsibilities of a supervisor.
(ii) Background information on lead and its adverse health effects.
(iii) Background information on Federal, State, and local
regulations and guidance that pertain to lead-based paint abatement.
(iv) Liability and insurance issues relating to lead-based paint
abatement.
(v) Risk assessment and inspection report interpretation.*
(vi) Development and implementation of an occupant protection plan
and abatement report.
(vii) Lead-based paint hazard recognition and control.*
(viii) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices.*
(ix) Interior dust abatement/cleanup or lead-based paint hazard
control and reduction methods.*
(x) Soil and exterior dust abatement or lead-based paint hazard
control and reduction methods.*
(xi) Clearance standards and testing.
(xii) Cleanup and waste disposal.
(xiii) Recordkeeping.
(4) Project designer. (i) Role and responsibilities of a project
designer.
(ii) Development and implementation of an occupant protection plan
for large scale abatement projects.
(iii) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices for large-scale
abatement projects.
(iv) Interior dust abatement/cleanup or lead hazard control and
reduction methods for large-scale abatement projects.
(v) Clearance standards and testing for large scale abatement
projects.
(vi) Integration of lead-based paint abatement methods with
modernization and rehabilitation projects for large scale abatement
projects.
(5) Abatement worker. (i) Role and responsibilities of an abatement
worker.
(ii) Background information on lead and its adverse health effects.
(iii) Background information on Federal, State and local
regulations and guidance that pertain to lead-based paint abatement.
(iv) Lead-based paint hazard recognition and control.*
(v) Lead-based paint abatement and lead-based paint hazard
reduction methods, including restricted practices.*
(vi) Interior dust abatement methods/cleanup or lead-based paint
hazard reduction.*
(vii) Soil and exterior dust abatement methods or lead-based paint
hazard reduction.*
(e) Requirements for the accreditation of refresher training
programs. A training program may seek accreditation to offer refresher
training courses in any of the following disciplines: inspector, risk
assessor, supervisor, project
[[Page 45818]]
designer, and abatement worker. To obtain EPA accreditation to offer
refresher training, a training program must meet the following minimum
requirements:
(1) Each refresher course shall review the curriculum topics of the
full-length courses listed under paragraph (d) of this section, as
appropriate. In addition, to become accredited to offer refresher
training courses, training programs shall ensure that their courses of
study include, at a minimum, the following:
(i) An overview of current safety practices relating to lead-based
paint activities in general, as well as specific information pertaining
to the appropriate discipline.
(ii) Current laws and regulations relating to lead-based paint
activities in general, as well as specific information pertaining to
the appropriate discipline.
(iii) Current technologies relating to lead-based paint activities
in general, as well as specific information pertaining to the
appropriate discipline.
(2) Each refresher course, except for the project designer course,
shall last a minimum of 8 training hours. The project designer
refresher course shall last a minimum of 4 training hours.
(3) For each course offered, the training program shall conduct a
hands-on assessment (if applicable), and at the completion of the
course, a course test.
(4) A training program may apply for accreditation of a refresher
course concurrently with its application for accreditation of the
corresponding training course as described in paragraph (b) of this
section. If so, EPA shall use the approval procedure described in
paragraph (b) of this section. In addition, the minimum requirements
contained in paragraphs (c) (except for the requirements in paragraph
(c)(6)), and (e)(1), (e)(2) and (e)(3) of this section shall also
apply.
(5) A training program seeking accreditation to offer refresher
training courses only shall submit a written application to EPA
containing the following information:
(i) The refresher 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 certifying
that the refresher training program meets the minimum requirements
established in paragraph (c) of this section, except for the
requirements in paragraph (c)(6) of this section. If a training program
uses EPA-developed model training materials, or training materials
approved by a State or Indian Tribe that has been authorized by EPA
under Sec. 745.324 to develop its refresher training course materials,
the training manager shall include a statement certifying that, as
well.
(iv) If the refresher training course materials are not based on
EPA-developed model training materials or training materials approved
by an authorized State or Indian Tribe, the training program's
application for accreditation shall include:
(A) A copy of the student and instructor manuals to be used for
each course.
(B) A copy of the course agenda for each course.
(v) All refresher training programs shall include in their
application for accreditation the following:
(A) A description of the facilities and equipment to be used for
lecture and hands-on training.
(B) A copy of the course test blueprint for each course.
(C) A description of the activities and procedures that will be
used for conducting the assessment of hands-on skills for each course
(if applicable).
(D) A copy of the quality control plan as described in paragraph
(c)(9) of this section.
(vi) The requirements in paragraphs (c)(1) through (c)(5), and
(c)(7) through (c)(12) of this section apply to refresher training
providers.
(vii) If a refresher training program meets the requirements listed
in this paragraph, then EPA shall approve the application for
accreditation no more than 180 days after receiving a complete
application from the refresher 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,
EPA may, at its discretion, work with the applicant to address
inadequacies in the application for accreditation. EPA may also request
additional materials retained by the refresher training program under
paragraph (i) of this section. If a refresher training program's
application is disapproved, the program may reapply for accreditation
at any time.
(f) Re-accreditation of training programs. (1) Unless re-
accredited, a training program's accreditation (including refresher
training accreditation) shall expire 4 years after the date of
issuance. If a training program meets the requirements of this section,
the training program shall be re-accredited.
(2) A training program seeking re-accreditation shall submit an
application to EPA no later than 180 days before its accreditation
expires. If a training program does not submit its application for re-
accreditation by that date, EPA cannot guarantee that the program will
be re-accredited before the end of the accreditation 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 to the training facility,
equipment or course materials since its last application was approved
that adversely affects the students ability to learn.
(iv) A statement signed by the program manager stating:
(A) That the training program complies at all times with all
requirements in paragraphs (c) and (e) of this section, as applicable;
and
(B) The recordkeeping and reporting requirements of paragraph (i)
of this section shall be followed.
(4) Upon request, the training program shall allow EPA to audit the
training program to verify the contents of the application for re-
accreditation as described in paragraph (f)(3) of this section.
(g) Suspension, revocation, and modification of accredited training
programs. (1) EPA may, after notice and an opportunity for hearing,
suspend, revoke, or modify training program accreditation (including
refresher training 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 EPA 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-related information or documentation.
(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.
(vii) Made false or misleading statements to EPA in its application
for accreditation or re-accreditation which EPA relied upon in
approving the application.
(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
[[Page 45819]]
failure to comply with relevant statutes or regulations.
(h) Procedures for suspension, revocation or modification of
training program accreditation. (1) Prior to taking action to suspend,
revoke, or modify the accreditation of a training program, EPA shall
notify the affected entity in writing of the following:
(i) The legal and factual basis for the suspension, revocation, or
modification.
(ii) The anticipated 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) The opportunity and method for requesting a hearing prior to
final EPA action to suspend, revoke or modify accreditation.
(v) Any additional information, as appropriate, which EPA may
provide.
(2) If a hearing is requested by the accredited training program,
EPA shall:
(i) Provide the affected entity an opportunity to offer written
statements in response to EPA's assertions of the legal and factual
basis for its proposed action, and any other explanations, comments,
and arguments it deems relevant to the proposed action.
(ii) Provide the affected entity such other procedural
opportunities as EPA may deem appropriate to ensure a fair and
impartial hearing.
(iii) Appoint an official of EPA 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 matter.
(3) The Presiding Officer appointed pursuant to paragraph (h)(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.
(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 which may be subject to judicial review.
(4) If EPA 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
(g)(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 for the
immediate suspension 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 anticipated 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 EPA under this
section, any transcripts or other verbatim record of oral testimony,
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,
modification or reinstatement of a training program's accreditation
through appropriate mechanisms.
(7) EPA shall maintain a list of parties whose accreditation has
been suspended, revoked, modified or reinstated.
(i) Training program recordkeeping requirements. (1) Accredited
training programs shall maintain, and make available to EPA, upon
request, the following records:
(i) All documents specified in paragraph (c)(4) of this section
that demonstrate the qualifications listed in paragraphs (c)(1) and
(c)(2) of this section of the training manager and principal
instructors.
(ii) Current curriculum/course materials and documents reflecting
any changes made to these materials.
(iii) The course test blueprint.
(iv) Information regarding how the hands-on assessment is conducted
including, but not limited to:
(A) Who conducts the assessment.
(B) How the skills are graded.
(C) What facilities are used.
(D) The pass/fail rate.
(v) The quality control plan as described in paragraph (c)(9) of
this section.
(vi) Results of the students' hands-on skills assessments and
course tests, and a record of each student's course completion
certificate.
(vii) Any other material not listed above in paragraphs (i)(1)(i)
through (i)(1)(vi) of this section that was submitted to EPA as part of
the program's application for accreditation.
(2) The training program shall retain these records at the address
specified on the training program accreditation application (or as
modified in accordance with paragraph (i)(3) of this section for a
minimum of 3 years and 6 months.
(3) The training program shall notify EPA in writing within 30 days
of changing the address specified on its training program accreditation
application or transferring the records from that address.
Sec. 745.226 Certification of individuals and firms engaged in lead-
based paint activities: target housing and child-occupied facilities.
(a) Certification of individuals. (1) Individuals seeking
certification by EPA to engage in lead-based paint activities must
either:
(i) Submit to EPA an application demonstrating that they meet the
requirements established in paragraphs (b) or (c) of this section for
the particular discipline for which certification is sought; or
(ii) Submit to EPA an application with a copy of a valid lead-based
paint activities certification (or equivalent) from a State or Tribal
program that has been authorized by EPA pursuant to subpart Q of this
part.
(2) Individuals may first apply to EPA for certification to engage
in lead-based paint activities pursuant to this section on or after
March 1, 1999.
(3) Following the submission of an application demonstrating that
all the requirements of this section have been meet, EPA shall certify
an applicant as an inspector, risk assessor, supervisor, project
designer, or abatement worker, as appropriate.
(4) Upon receiving EPA certification, individuals conducting lead-
based paint activities shall comply with the work practice standards
for performing the appropriate lead-based paint activities as
established in Sec. 745.227.
(5) It shall be a violation of TSCA for an individual to conduct
any of the lead-based paint activities described in Sec. 745.227 after
August 30, 1999, if that individual has not been certified by EPA
pursuant to this section to do so.
(b) Inspector, risk assessor or supervisor. (1) To become certified
by EPA as an inspector, risk assessor, or
[[Page 45820]]
supervisor, pursuant to paragraph (a)(1)(i) of this section, an
individual must:
(i) Successfully complete an accredited course in the appropriate
discipline and receive a course completion certificate from an
accredited training program.
(ii) Pass the certification exam in the appropriate discipline
offered by EPA; and,
(iii) Meet or exceed the following experience and/or education
requirements:
(A) Inspectors. (1) No additional experience and/or education
requirements.
(2) [Reserved]
(B) Risk assessors. (1) Successful completion of an accredited
training course for inspectors; and
(2) Bachelor's degree and 1 year of experience in a related field
(e.g., lead, asbestos, environmental remediation work, or
construction), or an Associates degree and 2 years experience in a
related field (e.g., lead, asbestos, environmental remediation work, or
construction); or
(3) Certification as an industrial hygienist, professional
engineer, registered architect and/or certification in a related
engineering/health/environmental field (e.g., safety professional,
environmental scientist); or
(4) A high school diploma (or equivalent), and at least 3 years of
experience in a related field (e.g., lead, asbestos, environmental
remediation work or construction).
(C) Supervisor: (1) One year of experience as a certified lead-
based paint abatement worker; or
(2) At least 2 years of experience in a related field (e.g., lead,
asbestos, or environmental remediation work) or in the building trades.
(2) The following documents shall be recognized by EPA as evidence
of meeting the requirements listed in (b)(2)(iii) of this paragraph:
(i) Official academic transcripts or diploma, as evidence of
meeting the education requirements.
(ii) Resumes, letters of reference, or documentation of work
experience, as evidence of meeting the work experience requirements.
(iii) Course completion certificates from lead-specific or other
related training courses, issued by accredited training programs, as
evidence of meeting the training requirements.
(3) In order to take the certification examination for a particular
discipline an individual must:
(i) Successfully complete an accredited course in the appropriate
discipline and receive a course completion certificate from an
accredited training program.
(ii) Meet or exceed the education and/or experience requirements in
paragraph (b)(1)(iii) of this section.
(4) The course completion certificate shall serve as interim
certification for an individual until the next available opportunity to
take the certification exam. Such interim certification shall expire 6
months after issuance.
(5) After passing the appropriate certification exam and submitting
an application demonstrating that he/she meets the appropriate
training, education, and/or experience prerequisites described in
paragraph (b)(1) of this section, an individual shall be issued a
certificate by EPA. To maintain certification, an individual must be
re-certified as described in paragraph (e) of this section.
(6) An individual may take the certification exam no more than
three times within 6 months of receiving a course completion
certificate.
(7) 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 EPA.
(c) Abatement worker and project designer. (1) To become certified
by EPA as an abatement worker or project designer, pursuant to
paragraph (a)(1)(i) of this section, an individual must:
(i) Successfully complete an accredited course in the appropriate
discipline and receive a course completion certificate from an
accredited training program.
(ii) Meet or exceed the following additional experience and/or
education requirements:
(A) Abatement workers. (1) No additional experience and/or
education requirements.
(2) [Reserved]
(B) Project designers. (1) Successful completion of an accredited
training course for supervisors.
(2) Bachelor's degree in engineering, architecture, or a related
profession, and 1 year of experience in building construction and
design or a related field; or
(3) Four years of experience in building construction and design or
a related field.
(2) The following documents shall be recognized by EPA as evidence
of meeting the requirements listed in this paragraph:
(i) Official academic transcripts or diploma, as evidence of
meeting the education requirements.
(ii) Resumes, letters of reference, or documentation of work
experience, as evidence of meeting the work experience requirements.
(iii) Course completion certificates from lead-specific or other
related training courses, issued by accredited training programs, as
evidence of meeting the training requirements.
(3) The course completion certificate shall serve as an interim
certification until certification from EPA is received, but shall be
valid for no more than 6 months from the date of completion.
(4) After successfully completing the appropriate training courses
and meeting any other qualifications described in paragraph (c)(1) of
this section, an individual shall be issued a certificate from EPA. To
maintain certification, an individual must be re-certified as described
in paragraph (e) of this section.
(d) Certification based on prior training. (1) Any individual who
received training in a lead-based paint activity between October 1,
1990, and March 1, 1999 shall be eligible for certification by EPA
under the alternative procedures contained in this paragraph.
Individuals who have received lead-based paint activities training at
an EPA-authorized State or Tribal accredited training program shall
also be eligible for certification by EPA under the following
alternative procedures:
(i) Applicants for certification as an inspector, risk assessor, or
supervisor shall:
(A) Demonstrate that the applicant has successfully completed
training or on-the-job training in the conduct of a lead-based paint
activity.
(B) Demonstrate that the applicant meets or exceeds the education
and/or experience requirements in paragraph (b)(1)(iii) of this
section.
(C) Successfully complete an accredited refresher training course
for the appropriate discipline.
(D) Pass a certification exam administered by EPA for the
appropriate discipline.
(ii) Applicants for certification as an abatement worker or project
designer shall:
(A) Demonstrate that the applicant has successfully completed
training or on-the-job training in the conduct of a lead-based paint
activity.
(B) Demonstrate that the applicant meets the education and/or
experience requirements in paragraphs (c)(1) of this section; and
[[Page 45821]]
(C) Successfully complete an accredited refresher training course
for the appropriate discipline.
(2) Individuals shall have until August 30, 1999 to apply to EPA
for certification under the above procedures. After that date, all
individuals wishing to obtain certification must do so through the
procedures described in paragraph (a), and paragraph (b) or (c) of this
section, according to the discipline for which certification is sought.
(e) Re-certification. (1) To maintain certification in a particular
discipline, a certified individual shall apply to and be re-certified
by EPA in that discipline by EPA either:
(i) Every 3 years if the individual completed a training course
with a course test and hands-on assessment; or
(ii) every 5 years if the individual completed a training course
with a proficiency test.
(2) An individual shall be re-certified if the individual
successfully completes the appropriate accredited refresher training
course and submits a valid copy of the appropriate refresher course
completion certificate.
(f) Certification of firms. (1) All firms which perform or offer to
perform any of the lead-based paint activities described in
Sec. 745.227 after August 30, 1999 shall be certified by EPA.
(2) A firm seeking certification shall submit to EPA a letter
attesting that the firm shall only employ appropriately certified
employees to conduct lead-based paint activities, and that the firm and
its employees shall follow the work practice standards in Sec. 745.227
for conducting lead-based paint activities.
(3) From the date of receiving the firm's letter requesting
certification, EPA shall have 90 days to approve or disapprove the
firm's request for certification. Within that time, EPA shall respond
with either a certificate of approval or a letter describing the
reasons for a disapproval.
(4) The firm shall maintain all records pursuant to the
requirements in Sec. 745.227.
(5) Firms may first apply to EPA for certification to engage in
lead-based paint activities pursuant to this section on or after March
1, 1999.
(g) Suspension, revocation, and modification of certifications of
individuals engaged in lead-based paint activities. (1) EPA may, after
notice and opportunity for hearing, suspend, revoke, or modify an
individual's certification if an individual has:
(i) Obtained training documentation through fraudulent means.
(ii) Gained admission to and completed an accredited training
program through misrepresentation of admission requirements.
(iii) Obtained certification through misrepresentation of
certification requirements or related documents dealing with education,
training, professional registration, or experience.
(iv) Performed work requiring certification at a job site without
having proof of certification.
(v) Permitted the duplication or use of the individual's own
certificate by another.
(vi) Performed work for which certification is required, but for
which appropriate certification has not been received.
(vii) Failed to comply with the appropriate work practice standards
for lead-based paint activities at Sec. 745.227.
(viii) 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, for purposes of this section only, execution of a consent
agreement in settlement of an enforcement action constitutes evidence
of a failure to comply with relevant statutes or regulations.
(h) Suspension, revocation, and modification of certifications of
firms engaged in lead-based paint activities. (1) EPA 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 comply with the work practice standards established
in Sec. 745.227.
(iii) Misrepresented facts in its letter of application for
certification to EPA.
(iv) Failed to maintain required records.
(v) 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, for purposes of this section only, execution of a consent
agreement in settlement of an enforcement action constitutes evidence
of a failure to comply with relevant statutes or regulations.
(i) Procedures for suspension, revocation, or modification of the
certification of individuals or firms.
(1) If EPA 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 legal and factual basis for the suspension, revocation, or
modification.
(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) The opportunity and method for requesting a hearing prior to
final EPA action to suspend, revoke, or modify certification.
(v) Any additional information, as appropriate, which EPA may
provide.
(2) If a hearing is requested by the certified individual or firm,
EPA shall:
(i) Provide the affected entity an opportunity to offer written
statements in response to EPA's assertion of the legal and factual
basis and any other explanations, comments, and arguments it deems
relevant to the proposed action.
(ii) Provide the affected entity such other procedural
opportunities as EPA may deem appropriate to ensure a fair and
impartial hearing.
(iii) Appoint an official of EPA 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 matter.
(3) The Presiding Officer 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; and
(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 EPA action subject to judicial review.
(4) If EPA 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
[[Page 45822]]
procedures for the conduct of such a hearing.
(5) Any notice, decision, or order issued by EPA under this
section, transcript or other verbatim record of oral testimony, 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.
Sec. 745.227 Work practice standards for conducting lead-based paint
activities: target housing and child-occupied facilities.
(a) Effective date, applicability, and terms. (1) Beginning on
March 1, 1999, all lead-based paint activities shall be performed
pursuant to the work practice standards contained in this section.
(2) When performing any lead-based paint activity described by the
certified individual as an inspection, lead-hazard screen, risk
assessment or abatement, a certified individual must perform that
activity in compliance with the appropriate requirements below.
(3) Documented methodologies that are appropriate for this section
are found in the following: The U.S. Department of Housing and Urban
Development (HUD) Guidelines for the Evaluation and Control of Lead-
Based Paint Hazards in Housing; the EPA Guidance on Residential Lead-
Based Paint, Lead-Contaminated Dust, and Lead-Contaminated Soil; the
EPA Residential Sampling for Lead: Protocols for Dust and Soil Sampling
(EPA report number 7474-R-95-001); Regulations, guidance, methods or
protocols issued by States and Indian Tribes that have been authorized
by EPA; and other equivalent methods and quidelines.
(4) Clearance levels are appropriate for the purposes of this
section may be found in the EPA Guidance on Residential Lead-Based
Paint, Lead-Contaminated Dust, and Lead Contaminiated Soil or other
equivalent guidelines.
(b) Inspection. (1) An inspection shall be conducted only by a
person certified by EPA as an inspector or risk assessor and, if
conducted, must be conducted according to the procedures in this
paragraph.
(2) When conducting an inspection, the following locations shall be
selected according to documented methodologies and tested for the
presence of lead-based paint:
(i) In a residential dwelling and child-occupied facility, each
component with a distinct painting history and each exterior component
with a distinct painting history shall be tested for lead-based paint,
except those components that the inspector or risk assessor determines
to have been replaced after 1978, or to not contain lead-based paint;
and
(ii) In a multi-family dwelling or child-occupied facility, each
component with a distinct painting history in every common area, except
those components that the inspector or risk assessor determines to have
been replaced after 1978, or to not contain lead-based paint.
(3) Paint shall be sampled in the following manner: (i) The
analysis of paint to determine the presence of lead shall be conducted
using documented methodologies which incorporate adequate quality
control procedures; and/or
(ii) All collected paint chip samples shall be analyzed according
to paragraph (f) of this section to determine if they contain
detectable levels of lead that can be quantified numerically.
(4) The certified inspector or risk assessor shall prepare an
inspection report which shall include the following information:
(i) Date of each inspection.
(ii) Address of building.
(iii) Date of construction.
(iv) Apartment numbers (if applicable).
(v) Name, address, and telephone number of the owner or owners of
each residential dwelling or child-occupied facility.
(vi) Name, signature, and certification number of each certified
inspector and/or risk assessor conducting testing.
(vii) Name, address, and telephone number of the certified firm
employing each inspector and/or risk assessor, if applicable.
(viii) Each testing method and device and/or sampling procedure
employed for paint analysis, including quality control data and, if
used, the serial number of any x-ray fluorescence (XRF) device.
(ix) Specific locations of each painted component tested for the
presence of lead-based paint.
(x) The results of the inspection expressed in terms appropriate to
the sampling method used.
(c) Lead hazard screen. (1) A lead hazard screen shall be conducted
only by a person certified by EPA as a risk assessor.
(2) If conducted, a lead hazard screen shall be conducted as
follows:
(i) Background information regarding the physical characteristics
of the residential dwelling or child-occupied facility and occupant use
patterns that may cause lead-based paint exposure to one or more
children age 6 years and under shall be collected.
(ii) A visual inspection of the residential dwelling or child-
occupied facility shall be conducted to:
(A) Determine if any deteriorated paint is present, and
(B) Locate at least two dust sampling locations.
(iii) If deteriorated paint is present, each surface with
deteriorated paint, which is determined, using documented
methodologies, to be in poor condition and to have a distinct painting
history, shall be tested for the presence of lead.
(iv) In residential dwellings, two composite dust samples shall be
collected, one from the floors and the other from the windows, in
rooms, hallways or stairwells where one or more children, age 6 and
under, are most likely to come in contact with dust.
(v) In multi-family dwellings and child-occupied facilities, in
addition to the floor and window samples required in paragraph
(c)(1)(iii) of this section, the risk assessor shall also collect
composite dust samples from common areas where one or more children,
age 6 and under, are most likely to come into contact with dust.
(3) Dust samples shall be collected and analyzed in the following
manner:
(i) All dust samples shall be taken using documented methodologies
that incorporate adequate quality control procedures.
(ii) All collected dust samples shall be analyzed according to
paragraph (f) of this section to determine if they contain detectable
levels of lead that can be quantified numerically.
(4) Paint shall be sampled in the following manner: (i) The
analysis of paint to determine the presence of lead shall be conducted
using documented methodologies which incorporate adequate quality
control procedures; and/or
(ii) All collected paint chip samples shall be analyzed according
to paragraph (f) of this section to determine if they contain
detectable levels of lead that can be quantified numerically.
(5) The risk assessor shall prepare a lead hazard screen report,
which shall include the following information:
(i) The information required in a risk assessment report as
specified in paragraph (d) of this section, including
[[Page 45823]]
paragraphs (d)(11)(i) through (d)(11)(xiv), and excluding paragraphs
(d)(11)(xv) through (d)(11)(xviii) of this section. Additionally, any
background information collected pursuant to paragraph (c)(2)(i) of
this section shall be included in the risk assessment report; and
(ii) Recommendations, if warranted, for a follow-up risk
assessment, and as appropriate, any further actions.
(d) Risk assessment. (1) A risk assessment shall be conducted only
by a person certified by EPA as a risk assessor and, if conducted, must
be conducted according to the procedures in this paragraph.
(2) A visual inspection for risk assessment of the residential
dwelling or child-occupied facility shall be undertaken to locate the
existence of deteriorated paint, assess the extent and causes of the
deterioration, and other potential lead-based paint hazards.
(3) Background information regarding the physical characteristics
of the residential dwelling or child-occupied facility and occupant use
patterns that may cause lead-based paint exposure to one or more
children age 6 years and under shall be collected.
(4) Each surface with deteriorated paint, which is determined,
using documented methodologies, to be in poor condition and to have a
distinct painting history, shall be tested for the presence of lead.
Each other surface determined, using documented methodologies, to be a
potential lead-based paint hazard and having a distinct painting
history, shall also be tested for the presence of lead.
(5) In residential dwellings, dust samples (either composite or
single-surface samples) from the window and floor shall be collected in
all living areas where one or more children, age 6 and under, are most
likely to come into contact with dust.
(6) For multi-family dwellings and child-occupied facilities, the
samples required in paragraph (d)(4) of this section shall be taken. In
addition, window and floor dust samples (either composite or single-
surface samples) shall be collected in the following locations:
(i) Common areas adjacent to the sampled residential dwelling or
child-occupied facility; and
(ii) Other common areas in the building where the risk assessor
determines that one or more children, age 6 and under, are likely to
come into contact with dust.
(7) For child-occupied facilities, window and floor dust samples
(either composite or single-surface samples) shall be collected in each
room, hallway or stairwell utilized by one or more children, age 6 and
under, and in other common areas in the child-occupied facility where
the risk assessor determines one or more children, age 6 and under, are
likely to come into contact with dust.
(8) Soil samples shall be collected and analyzed for lead
concentrations in the following locations:
(i) Exterior play areas where bare soil is present; and
(ii) Dripline/foundation areas where bare soil is present.
(9) Any paint, dust, or soil sampling or testing shall be conducted
using documented methodologies that incorporate adequate quality
control procedures.
(10) Any collected paint chip, dust, or soil samples shall be
analyzed according to paragraph (f) of this section to determine if
they contain detectable levels of lead that can be quantified
numerically.
(11) The certified risk assessor shall prepare a risk assessment
report which shall include the following information:
(i) Date of assessment.
(ii) Address of each building.
(iii) Date of construction of buildings.
(iv) Apartment number (if applicable).
(v) Name, address, and telephone number of each owner of each
building.
(vi) Name, signature, and certification of the certified risk
assessor conducting the assessment.
(vii) Name, address, and telephone number of the certified firm
employing each certified risk assessor if applicable.
(viii) Name, address, and telephone number of each recognized
laboratory conducting analysis of collected samples.
(ix) Results of the visual inspection.
(x) Testing method and sampling procedure for paint analysis
employed.
(xi) Specific locations of each painted component tested for the
presence of lead.
(xii) All data collected from on-site testing, including quality
control data and, if used, the serial number of any XRF device.
(xiii) All results of laboratory analysis on collected paint, soil,
and dust samples.
(xiv) Any other sampling results.
(xv) Any background information collected pursuant to paragraph
(d)(3) of this section.
(xvi) To the extent that they are used as part of the lead-based
paint hazard determination, the results of any previous inspections or
analyses for the presence of lead-based paint, or other assessments of
lead-based paint-related hazards.
(xvii) A description of the location, type, and severity of
identified lead-based paint hazards and any other potential lead
hazards.
(xviii) A description of interim controls and/or abatement options
for each identified lead-based paint hazard and a suggested
prioritization for addressing each hazard. If the use of an encapsulant
or enclosure is recommended, the report shall recommend a maintenance
and monitoring schedule for the encapsulant or enclosure.
(e) Abatement. (1) An abatement shall be conducted only by an
individual certified by EPA, and if conducted, shall be conducted
according to the procedures in this paragraph.
(2) A certified supervisor is required for each abatement project
and shall be onsite during all work site preparation and during the
post-abatement cleanup of work areas. At all other times when abatement
activities are being conducted, the certified supervisor shall be
onsite or available by telephone, pager or answering service, and able
to be present at the work site in no more than 2 hours.
(3) The certified supervisor and the certified firm employing that
supervisor shall ensure that all abatement activities are conducted
according to the requirements of this section and all other Federal,
State and local requirements.
(4) Notification of the commencement of lead-based paint abatement
activities in a residential dwelling or child-occupied facility or as a
result of a Federal, State, or local order shall be given to EPA prior
to the commencement of abatement activities. The procedure for this
notification will be developed by EPA prior to August 31, 1998.
(5) A written occupant protection plan shall be developed for all
abatement projects and shall be prepared according to the following
procedures:
(i) The occupant protection plan shall be unique to each
residential dwelling or child-occupied facility and be developed prior
to the abatement. The occupant protection plan shall describe the
measures and management procedures that will be taken during the
abatement to protect the building occupants from exposure to any lead-
based paint hazards.
(ii) A certified supervisor or project designer shall prepare the
occupant protection plan.
(6) The work practices listed below shall be restricted during an
abatement as follows:
(i) Open-flame burning or torching of lead-based paint is
prohibited;
[[Page 45824]]
(ii) Machine sanding or grinding or abrasive blasting or
sandblasting of lead-based paint is prohibited unless used with High
Efficiency Particulate Air (HEPA) exhaust control which removes
particles of 0.3 microns or larger from the air at 99.97 percent or
greater efficiency;
(iii) Dry scraping of lead-based paint is permitted only in
conjunction with heat guns or around electrical outlets or when
treating defective paint spots totaling no more than 2 square feet in
any one room, hallway or stairwell or totaling no more than 20 square
feet on exterior surfaces; and
(iv) Operating a heat gun on lead-based paint is permitted only at
temperatures below 1100 degrees Fahrenheit.
(7) If conducted, soil abatement shall be conducted in one of the
following ways:
(i) If soil is removed, the lead-contaminated soil shall be
replaced with soil that is not lead-contaminated; or
(ii) If soil is not removed, the lead-contaminated soil shall be
permanently covered, as defined in Sec. 745.223.
(8) The following post-abatement clearance procedures shall be
performed only by a certified inspector or risk assessor:
(i) Following an abatement, a visual inspection shall be performed
to determine if deteriorated painted surfaces and/or visible amounts of
dust, debris or residue are still present. If deteriorated painted
surfaces or visible amounts of dust, debris or residue are present,
these conditions must be eliminated prior to the continuation of the
clearance procedures.
(ii) Following the visual inspection and any post-abatement cleanup
required by paragraph (e)(8)(i) of this section, clearance sampling for
lead-contaminated dust shall be conducted. Clearance sampling may be
conducted by employing single-surface sampling or composite sampling
techniques.
(iii) Dust samples for clearance purposes shall be taken using
documented methodologies that incorporate adequate quality control
procedures.
(iv) Dust samples for clearance purposes shall be taken a minimum
of 1 hour after completion of final post-abatement cleanup activities.
(v) The following post-abatement clearance activities shall be
conducted as appropriate based upon the extent or manner of abatement
activities conducted in or to the residential dwelling or child-
occupied facility:
(A) After conducting an abatement with containment between abated
and unabated areas, one dust sample shall be taken from one window (if
available) and one dust sample shall be taken from the floor of no less
than four rooms, hallways or stairwells within the containment area. In
addition, one dust sample shall be taken from the floor outside the
containment area. If there are less than four rooms, hallways or
stairwells within the containment area, then all rooms, hallways or
stairwells shall be sampled.
(B) After conducting an abatement with no containment, two dust
samples shall be taken from no less than four rooms, hallways or
stairwells in the residential dwelling or child-occupied facility. One
dust sample shall be taken from one window (if available) and one dust
sample shall be taken from the floor of each room, hallway or stairwell
selected. If there are less than four rooms, hallways or stairwells
within the residential dwelling or child-occupied facility then all
rooms, hallways or stairwells shall be sampled.
(C) Following an exterior paint abatement, a visible inspection
shall be conducted. All horizontal surfaces in the outdoor living area
closest to the abated surface shall be found to be cleaned of visible
dust and debris. In addition, a visual inspection shall be conducted to
determine the presence of paint chips on the dripline or next to the
foundation below any exterior surface abated. If paint chips are
present, they must be removed from the site and properly disposed of,
according to all applicable Federal, State and local requirements.
(vi) The rooms, hallways or stairwells selected for sampling shall
be selected according to documented methodologies.
(vii) The certified inspector or risk assessor shall compare the
residual lead level (as determined by the laboratory analysis) from
each dust sample with applicable clearance levels for lead in dust on
floors and windows. If the residual lead levels in a dust sample exceed
the clearance levels, all the components represented by the failed
sample shall be recleaned and retested until clearance levels are met.
(9) In a multi-family dwelling with similarly constructed and
maintained residential dwellings, random sampling for the purposes of
clearance may be conducted provided:
(i) The certified individuals who abate or clean the residential
dwellings do not know which residential dwelling will be selected for
the random sample.
(ii) A sufficient number of residential dwellings are selected for
dust sampling to provide a 95 percent level of confidence that no more
than 5 percent or 50 of the residential dwellings (whichever is
smaller) in the randomly sampled population exceed the appropriate
clearance levels.
(iii) The randomly selected residential dwellings shall be sampled
and evaluated for clearance according to the procedures found in
paragraph (e)(8) of this section.
(10) An abatement report shall be prepared by a certified
supervisor or project designer. The abatement report shall include the
following information:
(i) Start and completion dates of abatement.
(ii) The name and address of each certified firm conducting the
abatement and the name of each supervisor assigned to the abatement
project.
(iii) The occupant protection plan prepared pursuant to paragraph
(e)(5) of this section.
(iv) The name, address, and signature of each certified risk
assessor or inspector conducting clearance sampling and the date of
clearance testing.
(v) The results of clearance testing and all soil analyses (if
applicable) and the name of each recognized laboratory that conducted
the analyses.
(vi) A detailed written description of the abatement, including
abatement methods used, locations of rooms and/or components where
abatement occurred, reason for selecting particular abatement methods
for each component, and any suggested monitoring of encapsulants or
enclosures.
(f) Collection and laboratory analysis of samples. Any paint chip,
dust, or soil samples collected pursuant to the work practice standards
contained in this section shall be:
(1) Collected by persons certified by EPA as an inspector or risk
assessor; and
(2) Analyzed by a laboratory recognized by EPA pursuant to section
405(b) of TSCA as being capable of performing analyses for lead
compounds in paint chip, dust, and soil samples.
(g) Composite dust sampling. Composite dust sampling may only be
conducted in the situations specified in paragraphs (c) through (e) of
this section. If such sampling is conducted, the following conditions
shall apply:
(1) Composite dust samples shall consist of at least two
subsamples;
(2) Every component that is being tested shall be included in the
sampling; and
(3) Composite dust samples shall not consist of subsamples from
more than one type of component.
(h) Recordkeeping. All reports or plans required in this section
shall be maintained by the certified firm or individual who prepared
the report for
[[Page 45825]]
no fewer than 3 years. The certified firm or individual also shall
provide copies of these reports to the building owner who contracted
for its services.
Sec. 745.228 Accreditation of training programs: public and
commercial buildings, bridges and superstructures [Reserved].
Sec. 745.229 Certification of individuals and firms engaged in lead-
based paint activities: public and commercial buildings, bridges and
superstructures [Reserved].
Sec. 745.230 Work practice standards for conducting lead-based paint
activities: public and commercial buildings, bridges and
superstructures [Reserved].
Sec. 745.233 Lead-based paint activities requirements.
Lead-based paint activities, as defined in this part, shall only be
conducted according to the procedures and work practice standards
contained in Sec. 745.227 of this subpart. No individual or firm may
offer to perform or perform any lead-based paint activity as defined in
this part, unless certified to perform that activity according to the
procedures in Sec. 745.226.
Sec. 745.235 Enforcement.
(a) Failure or refusal to comply with any requirement of
Secs. 745.225, 745.226, 745.227, or 745.233 is a prohibited act under
sections 15 and 409 of TSCA (15 U.S.C. 2614, 2689).
(b) Failure or refusal to establish, maintain, provide, copy, or
permit access to records or reports as required by Secs. 745.225,
745.226, or 745.227 is a prohibited act under sections 15 and 409 of
TSCA (15 U.S.C. 2614, 2689).
(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 prohibited
act under sections 15 and 409 of TSCA (15 U.S.C. 2614, 2689).
(d) In addition to the above, any individual or firm that performs
any of the following acts shall be deemed to have committed a
prohibited act under sections 15 and 409 of TSCA (15 U.S.C. 2614,
2689). These include the following:
(i) Obtaining certification through fraudulent representation;
(ii) Failing to obtain certification from EPA and performing work
requiring certification at a job site; or
(iii) Fraudulently obtaining certification and engaging in any
lead-based paint activities requiring certification.
(e) 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
subpart.
Sec. 745.239 Effective dates.
This subpart L shall apply in any State or Indian Country that does
not have an authorized program under subpart Q, effective August 31,
1998. In such States or Indian Country:
(a) Training programs shall not provide, offer or claim to provide
training or refresher training for certification without accreditation
from EPA pursuant to Sec. 745.225 on or after March 1, 1999.
(b) No individual or firm shall perform, offer, or claim to perform
lead-based paint activities, as defined in this subpart, without
certification from EPA to conduct such activities pursuant to
Sec. 745.226 on or after August 30, 1999.
(c) All lead-based paint activities shall be performed pursuant to
the work practice standards contained in Sec. 745.227 on or after
August 30, 1999.
Subparts M-P [Reserved]
Subpart Q--State and Indian Tribal Programs
Sec. 745.320 Scope and purpose.
(a) This subpart establishes the requirements that State or Tribal
programs must meet for authorization by the Administrator to administer
and enforce the standards, regulations, or other requirements
established under TSCA section 402 and/or section 406 and establishes
the procedures EPA will follow in approving, revising, and withdrawing
approval of State or Tribal programs.
(b) For State or Tribal lead-based paint training and certification
programs, a State or Indian Tribe may seek authorization to administer
and enforce Secs. 745.225, 745.226, and 745.227. The provisions of
Secs. 745.220, 745.223, 745.233, 745.235, 745.237, and 745.239 shall be
applicable for the purposes of such program authorization.
(c) For State or Tribal pre-renovation notification programs, a
State or Indian Tribe may seek authorization to administer and enforce
regulations developed pursuant to TSCA section 406.
(d) A State or Indian Tribe applying for program authorization may
seek either interim approval or final approval of the compliance and
enforcement portion of the State or Tribal lead-based paint program
pursuant to the procedures at Sec. 745.327(a).
(e) State or Tribal submissions for program authorization shall
comply with the procedures set out in this subpart.
(f) Any State or Tribal program approved by the Administrator under
this subpart shall at all times comply with the requirements of this
subpart.
(g) In many cases States will lack authority to regulate activities
in Indian Country. This lack of authority does not impair a State's
ability to obtain full program authorization in accordance with this
subpart. EPA will administer the program in Indian Country if neither
the State nor Indian Tribe has been granted program authorization by
EPA.
Sec. 745.323 Definitions.
The definitions in subpart A apply to this subpart. In addition,
the definitions in Sec. 745.223 and the following definitions apply:
Indian Country means (1) all land within the limits of any American
Indian reservation under the jurisdiction of the U.S. government,
notwithstanding the issuance of any patent, and including rights-of-way
running throughout the reservation; (2) all dependent Indian
communities within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether within
or outside the limits of a State; and (3) all Indian allotments, the
Indian titles which have not been extinguished, including rights-of-way
running through the same.
Indian Tribe means any Indian Tribe, band, nation, or community
recognized by the Secretary of the Interior and exercising substantial
governmental duties and powers.
Sec. 745.324 Authorization of State or Tribal programs.
(a) Application content and procedures. (1) Any State or Indian
Tribe that seeks authorization from EPA to administer and enforce any
provisions of subpart L of this part under section 402(a) of TSCA or
the provisions of regulations developed under 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 or
Indian Tribe shall disseminate a public notice of intent to seek such
authorization and provide an opportunity for a public hearing.
(3) A State or Tribal application shall include:
(i) A transmittal letter from the State Governor or Tribal
Chairperson (or equivalent official) requesting program approval.
(ii) A summary of the State or Tribal program. This summary will be
used to
[[Page 45826]]
provide notice to residents of the State or Tribe.
(iii) A description of the State or Tribal program in accordance
with paragraph (b) of this section.
(iv) An Attorney General's or Tribal Counsel's (or equivalent)
statement in accordance with paragraph (c) of this section.
(v) Copies of all applicable State or Tribal statutes, regulations,
standards, and other materials that provide the State or Indian Tribe
with the authority to administer and enforce a lead-based paint
program.
(4) After submitting an application, the Agency will publish a
Federal Register notice that contains an announcement of the receipt of
the State or Tribal application, the summary of the program as provided
by the State or Tribe, and a request for public comments to be mailed
to the appropriate EPA Regional Office. This comment period shall last
for no less than 45 days. EPA will consider these comments during its
review of the State or Tribal application.
(5) Within 60 days of submission of a State or Tribal application,
EPA will, if requested, conduct a public hearing in each State or
Indian Country seeking program authorization and will consider all
comments submitted at that hearing during the review of the State or
Tribal application.
(b) Program description. A State or Indian Tribe seeking to
administer and enforce a program under this subpart must submit a
description of the program. The description of the State or Tribal
program must include:
(1)(i) The name of the State or Tribal agency that is or will be
responsible for administering and enforcing the program, the name of
the official in that agency designated as the point of contact with
EPA, and addresses and phone numbers where this official can be
contacted.
(ii) Where more than one agency is or will be responsible for
administering and enforcing the program, the State or Indian Tribe must
designate a primary agency to oversee and coordinate administration and
enforcement of the program and serve as the primary contact with EPA.
(iii) In the event that more than one agency is or will be
responsible for administering and enforcing the program, the
application must also include a description of the functions to be
performed by each agency. The desciption shall explain 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 or Indian
Tribe.
(2) To demonstrate that the State or Tribal program is at least as
protective as the Federal program, fulfilling the criteria in paragraph
(e)(2)(i) of this section, the State or Tribal application must
include:
(i) A description of the program that demonstrates that the program
contains all of the elements specified in Sec. 745.325, Sec. 745.326,
or both; and
(ii) An analysis of the State or Tribal program that compares the
program to the Federal program in subpart L of this part, regulations
developed pursuant to TSCA section 406, or both. This analysis shall
demonstrate how the program is, in the State's or Indian Tribe's
assessment, at least as protective as the elements in the Federal
program at subpart L of this part, regulations developed pursuant to
TSCA section 406, or both. EPA will use this analysis to evaluate the
protectiveness of the State or Tribal program in making its
determination pursuant to paragraph (e)(2)(i) of this section.
(3) To demonstrate that the State or Tribal program provides
adequate enforcement, fulfilling the criteria in paragraph (e)(2)(ii)
of this section, the State or Tribal application must include a
description of the State or Tribal lead-based paint compliance and
enforcement program that demonstrates that the program contains all of
the elements specified at Sec. 745.327. This description shall include
copies of all policies, certifications, plans, reports, and other
materials that demonstrate that the State or Tribal program contains
all of the elements specified at Sec. 745.327.
(4)(i) The program description for an Indian Tribe shall also
include a map, legal description, or other information sufficient to
identify the geographical extent of the territory over which the Indian
Tribe exercises jurisdiction.
(ii) The program description for an Indian Tribe shall also include
a demonstration that the Indian Tribe:
(A) Is recognized by the Secretary of the Interior.
(B) has an existing government exercising substantial governmental
duties and powers.
(C) has adequate civil regulatory jurisdiction (as shown in the
Tribal legal certification in paragraph (c)(2) of this section) over
the subject matter and entities regulated.
(D) is reasonably expected to be capable of administering the
Federal program for which it is seeking authorization.
(iii) If the Administrator has previously determined that an Indian
Tribe has met the prerequisites in paragraphs (b)(4)(ii)(A) and (B) of
this section for another EPA program, the Indian Tribe need provide
only that information unique to the lead-based paint program required
by paragraphs (b)(4)(ii)(C) and (D) of this section.
(c) Attorney General's statement. (1) A State or Indian Tribe must
submit a written statement signed by the Attorney General or Tribal
Counsel (or equivalent) certifying that the laws and regulations of the
State or Indian Tribe provide adequate legal authority to administer
and enforce the State or Tribal program. This statement shall include
citations to the specific statutes and regulations providing that legal
authority.
(2) The Tribal legal certification (the equivalent to the Attorney
General's statement) may also be submitted and signed by an independent
attorney retained by the Indian Tribe for representation in matters
before EPA or the courts pertaining to the Indian Tribe's program. The
certification shall include an assertion that the attorney has the
authority to represent the Indian Tribe with respect to the Indian
Tribe's authorization application.
(3) If a State application seeks approval of its program to operate
in Indian Country, the required legal certification shall include an
analysis of the applicant's authority to implement its provisions in
Indian Country. The applicant shall include a map delineating the area
over which it seeks to operate the program.
(d) Program certification. (1) At the time of submitting an
application, a State may also certify to the Administrator that the
State program meets the requirements contained in paragraphs (e)(2)(i)
and (e)(2)(ii) of this section.
(2) If this certification is contained in a State's application,
the program shall be deemed to be authorized by EPA until such time as
the Administrator disapproves the program application or withdraws the
program authorization. A program shall not be deemed authorized
pursuant to this subpart to the extent that jurisdiction is asserted
over Indian Country, including non-member fee lands within an Indian
reservation.
(3) If the application does not contain such certification, the
State program will be authorized only after the Administrator
authorizes the program in accordance with paragraph (e) of this
section.
(4) This certification shall take the form of a letter from the
Governor or the Attorney General to the Administrator. The
certification shall reference the program analysis in paragraph (b)(3)
of
[[Page 45827]]
this section as the basis for concluding that the State program is at
least as protective as the Federal program, and provides adequate
enforcement.
(e) EPA approval. (1) EPA will fully review and consider all
portions of a State or Tribal application.
(2) Within 180 days of receipt of a complete State or Tribal
application, the Administrator shall either authorize the program or
disapprove the application. The Administrator shall authorize the
program, after notice and the opportunity for public comment and a
public hearing, only if the Administrator finds that:
(i)(A) In the case of an application to authorize the State or
Indian Tribe to administer and enforce the provisions of subpart L of
this part, the State or Tribal program is at least as protective of
human health and the environment as the corresponding Federal program
under subpart L of this part; and/or
(B) In the case of an application to authorize the State or Indian
Tribe to administer and enforce the regulations developed pursuant to
TSCA section 406, the State or Tribal program is at least as protective
of human health and the environment as the Federal regulations
developed pursuant to TSCA section 406.
(ii) The State or Tribal program provides adequate enforcement.
(3) EPA shall notify in writing the State or Indian Tribe of the
Administrator's decision to authorize the State or Tribal program or
disapprove the State's or Indian Tribe's application.
(4) If the State or Indian Tribe applies for authorization of State
or Tribal programs under both subpart L and regulations developed
pursuant to TSCA section 406, EPA may, as appropriate, authorize one
program and disapprove the other.
(f) EPA administration and enforcement. (1) If a State or Indian
Tribe does not have an authorized program to administer and enforce
subpart L of this part in effect by August 31, 1998, the Administrator
shall, by such date, establish and enforce the provisions of subpart L
of this part as the Federal program for that State or Indian Country.
(2) If a State or Indian Tribe does not have an authorized program
to administer and enforce regulations developed pursuant to TSCA
section 406 in effect by August 31, 1998, the Administrator shall, by
such date, establish and enforce the provisions of regulations
developed pursuant to TSCA section 406 as the Federal program for that
State or Indian Country.
(3) Upon authorization of a State or Tribal program, pursuant to
paragraph (d) or (e) of this section, it shall be an unlawful act under
sections 15 and 409 of TSCA for any person to fail or refuse to comply
with any requirements of such program.
(g) Oversight. EPA shall periodically evaluate the adequacy of a
State's or Indian Tribe's implementation and enforcement of its
authorized programs.
(h) Reports. Beginning 12 months after the date of program
authorization, the primary agency for each State or Indian Tribe that
has an authorized program shall submit a written report to the EPA
Regional Administrator for the Region in which the State or Indian
Tribe is located. This report shall be submitted at least once every 12
months for the first 3 years after program authorization. If these
reports demonstrate successful program implementation, the Agency will
automatically extend the reporting interval to every 2 years. If the
subsequent reports demonstrate problems with implementation, EPA will
require a return to annual reporting until the reports demonstrate
successful program implementation, at which time the Agency will extend
the reporting interval to every 2 years.
The report shall include the following information:
(1) Any significant changes in the content or administration of the
State or Tribal program implemented since the previous reporting
period; and
(2) All information regarding the lead-based paint enforcement and
compliance activities listed at Sec. 745.327(d) ``Summary on Progress
and Performance.''
(i) Withdrawal of authorization. (1) If EPA concludes that a State
or Indian Tribe is not administering and enforcing an authorized
program in compliance with the standards, regulations, and other
requirements of sections 401 through 412 of TSCA and this subpart, the
Administrator shall notify the primary agency for the State or Indian
Tribe in writing and indicate EPA's intent to withdraw authorization of
the program.
(2) The Notice of Intent to Withdraw shall:
(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 or Indian Tribe to
respond either in writing or at a meeting with appropriate EPA
officials.
(3) EPA may request that an informal conference be held between
representatives of the State or Indian Tribe and EPA officials.
(4) Prior to issuance of a withdrawal, a State or Indian Tribe may
request that EPA hold a public hearing. At this hearing, EPA, the State
or Indian Tribe, and the public may present facts bearing on whether
the State's or Indian Tribe's authorization should be withdrawn.
(5) If EPA finds that deficiencies warranting withdrawal did not
exist or were corrected by the State or Indian Tribe, EPA may rescind
its Notice of Intent to Withdraw authorization.
(6) Where EPA finds that deficiencies in the State or Tribal
program exist that warrant withdrawal, an agreement to correct the
deficiencies shall be jointly prepared by the State or Indian Tribe and
EPA. The agreement shall describe the deficiencies found in the
program, specify the steps the State or Indian Tribe 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 the State or Indian Tribe does not respond within 60 days of
issuance of the Notice of Intent to Withdraw or an agreement is not
reached within 180 days after EPA determines that a State or Indian
Tribe is not in compliance with the Federal program, the Agency shall
issue an order withdrawing the State's or Indian Tribe's authorization.
(8) By the date of such order, the Administrator shall establish
and enforce the provisions of subpart L of this part or regulations
developed pursuant to TSCA section 406, or both, as the Federal program
for that State or Indian Country.
Sec. 745.325 Lead-based paint activities: State and Tribal program
requirements.
(a) Program elements. To receive authorization from EPA, a State or
Tribal program must contain at least the following program elements for
lead-based paint activities:
(1) Procedures and requirements for the accreditation of lead-based
paint activities training programs.
(2) Procedures and requirements for the certification of
individuals engaged in lead-based paint activities.
(3) Work practice standards for the conduct of lead-based paint
activities.
(4) Requirements that all lead-based paint activities be conducted
by appropriately certified contractors.
(5) Development of the appropriate infrastructure or government
capacity to effectively carry out a State or Tribal program.
(b) Accreditation of training programs. The State or Indian Tribe
must have either:
[[Page 45828]]
(1) Procedures and requirements for the accreditation of training
programs that establish:
(i) Requirements for the accreditation of training programs,
including but not limited to:
(A) Training curriculum requirements.
(B) Training hour requirements.
(C) Hands-on training requirements.
(D) Trainee competency and proficiency requirements.
(E) Requirements for training program quality control.
(ii) Procedures for the re-accreditation of training programs.
(iii) Procedures for the oversight of training programs.
(iv) Procedures for the suspension, revocation, or modification of
training program accreditations; or
(2) Procedures or regulations, for the purposes of certification,
for the acceptance of training offered by an accredited training
provider in a State or Tribe authorized by EPA.
(c) Certification of individuals. The State or Indian Tribe must
have requirements for the certification of individuals that:
(1) Ensure that certified individuals:
(i) Are trained by an accredited training program; and
(ii) Possess appropriate education or experience qualifications for
certification.
(2) Establish procedures for re-certification.
(3) Require the conduct of lead-based paint activities in
accordance with work practice standards established by the State or
Indian Tribe.
(4) Establish procedures for the suspension, revocation, or
modification of certifications.
(5) Establish requirements and procedures for the administration of
a third-party certification exam.
(d) Work practice standards for the conduct of lead-based paint
activities. The State or Indian Tribe must have requirements or
standards that ensure that lead-based paint activities are conducted
reliably, effectively, and safely. At a minimum the State's or Indian
Tribe's work practice standards for conducting inspections, risk
assessments, and abatements must contain the requirements specified in
paragraphs (d)(1), (d)(2), and (d)(3) of this section.
(1) The work practice standards for the inspection for the presence
of lead-based paint must require that:
(i) Inspections are conducted only by individuals certified by the
appropriate State or Tribal authority to conduct inspections.
(ii) Inspections are conducted in a way that identifies the
presence of lead-based paint on painted surfaces within the interior or
on the exterior of a residential dwelling or child-occupied facility.
(iii) Inspections are conducted in a way that uses documented
methodologies that incorporate adequate quality control procedures.
(iv) A report is developed that clearly documents the results of
the inspection.
(v) Records are retained by the certified inspector or the firm.
(2) The work practice standards for risk assessment must require
that:
(i) Risk assessments are conducted only by individuals certified by
the appropriate State or Tribal authority to conduct risk assessments.
(ii) Risk assessments are conducted in a way that identifies and
reports the presence of lead-based paint hazards.
(iii) Risk assessments consist of, at least:
(A) An assessment, including a visual inspection, of the physical
characteristics of the residential dwelling or child-occupied facility;
and
(B) Environmental sampling for lead in paint, dust, and soil.
(iv) The risk assessor develops a report that clearly presents the
results of the assessment and recommendations for the control or
elimination of all identified hazards.
(v) The certified risk assessor or the firm retains the appropriate
records.
(3) The work practice standards for abatement must require that:
(i) Abatements are conducted only by individuals certified by the
appropriate State or Tribal authority to conduct or supervise
abatements.
(ii) Abatements permanently eliminate lead-based paint hazards and
are conducted in a way that does not increase the hazards of lead-based
paint to the occupants of the dwelling or child-occupied facility.
(iii) Abatements include post-abatement lead in dust clearance
sampling and conformance with clearance levels established or adopted
by the State or Indian Tribe.
(iv) The abatement contractor develops a report that describes
areas of the residential dwelling or child-occupied facility abated and
the techniques employed.
(v) The certified abatement contractor or the firm retains
appropriate records.
Sec. 745.326 Pre-renovation notification: State and Tribal program
requirements.
(a) Program elements. To receive authorization from EPA, a State or
Tribal program must contain the following program elements for
renovation disclosure:
(1) Procedures and requirements for the distribution of lead hazard
information to owners and occupants of target housing before
renovations for compensation; and
(2) An approved lead hazard information pamphlet meeting the
requirements of section 406 of TSCA, as determined by EPA. EPA will
provide States or Tribes with guidance on what is necessary for a State
or Tribal pamphlet approval application.
(b) Program to distribute lead information. To be considered at
least as protective as the Federal requirements for pre-renovation
distribution of information, the State or Indian Tribe must have
procedures and requirements that establish:
(1) Clear standards for identifying home improvement activities
that trigger the pamphlet distribution requirements; and
(2) Procedures for distributing the lead hazard information to
owners and occupants of the housing prior to renovation activities.
(c) Distribution of acceptable lead hazard information. To be
considered at least as protective as the Federal requirements for the
distribution of a lead hazard information pamphlet, the State or Indian
Tribe must either:
(1) Distribute the lead hazard information pamphlet developed by
EPA under section 406(a) of TSCA, titled Protect Your Family from Lead
in Your Home; or
(2) Distribute an alternate pamphlet or package of lead hazard
information that has been submitted by the State or Tribe, reviewed by
EPA, and approved by EPA for use in that State or Tribe. Such
information must meet the content requirements prescribed by section
406(a) of TSCA, and be in a format that is readable to the diverse
audience of housing owners and occupants in that State or Tribe.
Sec. 745.327 State or Indian Tribal lead-based paint compliance and
enforcement programs.
(a) Approval of compliance and enforcement programs. A State or
Indian Tribe seeking authorization of a lead-based paint program can
apply for and receive either interim or final approval of the
compliance and enforcement program portion of its lead-based paint
program. Indian Tribes are not required to exercise criminal
enforcement jurisdiction as a condition for program authorization.
(1) Interim approval. Interim approval of the compliance and
enforcement program portion of the State or Tribal lead-based paint
program may be granted by EPA only once, and subject to a specific
expiration date.
[[Page 45829]]
(i) To be considered adequate for purposes of obtaining interim
approval for the compliance and enforcement program portion of a State
or Tribal lead-based paint program, a State or Indian Tribe must, in
its application described at Sec. 745.324(a):
(A) Demonstrate it has the legal authority and ability to
immediately implement the elements in paragraph (b) of this section.
This demonstration shall include a statement that the State or Indian
Tribe, during the interim approval period, shall carry out a level of
compliance monitoring and enforcement necessary to ensure that the
State or Indian Tribe addresses any significant risks posed by
noncompliance with lead-based paint activity requirements.
(B) Present a plan with time frames identified for implementing in
the field each element in paragraph (c) of this section. All elements
of paragraph (c) of this section must be fully implemented no later
than 3 years from the date of EPA's interim approval of the compliance
and enforcement program portion of a State or Tribal lead-based paint
program. A statement of resources must be included in the State or
Tribal plan which identifies what resources the State or Indian Tribe
intends to devote to the administration of its lead-based paint
compliance and enforcement program.
(C) Agree to submit to EPA the Summary on Progress and Performance
of lead-based paint compliance and enforcement activities as described
at paragraph (d) of this section.
(ii) Any interim approval granted by EPA for the compliance and
enforcement program portion of a State or Tribal lead-based paint
program will expire no later than 3 years from the date of EPA's
interim approval. One hundred and eighty days prior to this expiration
date, a State or Indian Tribe shall apply to EPA for final approval of
the compliance and enforcement program portion of a State or Tribal
lead-based paint program. Final approval shall be given to any State or
Indian Tribe which has in place all of the elements of paragraphs (b),
(c), and (d) of this section. If a State or Indian Tribe does not
receive final approval for the compliance and enforcement program
portion of a State or Tribal lead-based paint program by the date 3
years after the date of EPA's interim approval, the Administrator
shall, by such date, initiate the process to withdraw the State or
Indian Tribe's authorization pursuant to Sec. 745.324(i).
(2) Final approval. Final approval of the compliance and
enforcement program portion of a State or Tribal lead-based paint
program can be granted by EPA either through the application process
described at Sec. 745.324(a), or, for States or Indian Tribes which
previously received interim approval as described in paragraph (a)(1)
of this section, through a separate application addressing only the
compliance and enforcement program portion of a State or Tribal lead-
based paint program.
(i) For the compliance and enforcement program to be considered
adequate for final approval through the application described at
Sec. 745.324(a), a State or Indian Tribe must, in its application:
(A) Demonstrate it has the legal authority and ability to
immediately implement the elements in paragraphs (b) and (c) of this
section.
(B) Submit a statement of resources which identifies what resources
the State or Indian Tribe intends to devote to the administration of
its lead-based paint compliance and enforcement program.
(C) Agree to submit to EPA the Summary on Progress and Performance
of lead-based paint compliance and enforcement activities as described
at paragraph (d) of this section.
(ii) For States or Indian Tribes which previously received interim
approval as described in paragraph (a)(1) of this section, in order for
the State or Tribal compliance and enforcement program to be considered
adequate for final approval through a separate application addressing
only the compliance and enforcement program portion of a State or
Tribal lead-based paint program, a State or Indian Tribe must, in its
application:
(A) Demonstrate that it has the legal authority and ability to
immediately implement the elements in paragraphs (b) and (c) of this
section.
(B) Submit a statement which identifies the resources the State or
Indian Tribe intends to devote to the administration of its lead-based
paint compliance and enforcement program.
(C) Agree to submit to EPA the Summary on Progress and Performance
of lead-based paint compliance and enforcement activities as described
at paragraph (d) of this section.
(D) To the extent not previously submitted through the application
described at Sec. 745.324(a), submit copies of all applicable State or
Tribal statutes, regulations, standards, and other material that
provide the State or Indian Tribe with authority to administer and
enforce the lead-based paint compliance and enforcement program, and
copies of the policies, certifications, plans, reports, and any other
documents that demonstrate that the program meets the requirements
established in paragraphs (b) and (c) of this section.
(b) Standards, regulations, and authority. The standards,
regulations, and authority described in paragraphs (b)(1) through
(b)(4) of this section are part of the required elements for the
compliance and enforcement portion of a State or Tribal lead-based
paint program.
(1) Lead-based paint activities and requirements. State or Tribal
lead-based paint compliance and enforcement programs will be considered
adequate if the State or Indian Tribe demonstrates, in its application
at Sec. 745.324(a), that it has established a lead-based paint program
containing the following requirements:
(i) Accreditation of training programs as described at
Sec. 745.325(b).
(ii) Certification of individuals engaged in lead-based paint
activities as described at Sec. 745.325(c).
(iii) Standards for the conduct of lead-based paint activities as
described at Sec. 745.325(d); and, as appropriate,
(iv) Requirements that regulate the conduct of pre-renovation
notification activities as described at Sec. 745.326.
(2) Authority to enter. State or Tribal officials must be able to
enter, through consent, warrant, or other authority, premises or
facilities where lead-based paint activities violations may occur for
purposes of conducting inspections.
(i) State or Tribal officials must be able to enter premises or
facilities where those engaged in training for lead-based paint
activities conduct business.
(ii) For the purposes of enforcing a pre-renovation notification
program, State or Tribal officials must be able to enter a renovator's
place of business.
(iii) State or Tribal officials must have authority to take samples
and review records as part of the lead-based paint activities
inspection process.
(3) Flexible remedies. A State or Tribal lead-based paint
compliance and enforcement program must provide for a diverse and
flexible array of enforcement remedies. At a minimum, the remedies that
must be reflected in an enforcement response policy must include the
following:
(i) Warning letters, Notices of Noncompliance, Notices of
Violation, or the equivalent;
(ii) Administrative or civil actions, including penalty authority
(e.g., accreditation or certification suspension, revocation, or
modification); and
(iii) Authority to apply criminal sanctions or other criminal
authority using existing State or Tribal laws, as applicable.
[[Page 45830]]
(4) Adequate resources. An application must include a statement
that identifies the resources that will be devoted by the State or
Indian Tribe to the administration of the State or Tribal lead-based
paint compliance and enforcement program. This statement must address
fiscal and personnel resources that will be devoted to the program.
(c) Performance elements. The performance elements described in
paragraphs (c)(1) through (c)(7) of this section are part of the
required elements for the compliance and enforcement program portion of
a State or Tribal lead-based paint program.
(1) Training. A State or Tribal lead-based paint compliance and
enforcement program must implement a process for training enforcement
and inspection personnel and ensure that enforcement personnel and
inspectors are well trained. Enforcement personnel must understand case
development procedures and the maintenance of proper case files.
Inspectors must successfully demonstrate knowledge of the requirements
of the particular discipline (e.g., abatement supervisor, and/or
abatement worker, and/or lead-based paint inspector, and/or risk
assessor, and/or project designer) for which they have compliance
monitoring and enforcement responsibilities. Inspectors must also be
trained in violation discovery, methods of obtaining consent, evidence
gathering, preservation of evidence and chain-of-custody, and sampling
procedures. A State or Tribal lead-based paint compliance and
enforcement program must also implement a process for the continuing
education of enforcement and inspection personnel.
(2) Compliance assistance. A State or Tribal lead-based paint
compliance and enforcement program must provide compliance assistance
to the public and the regulated community to facilitate awareness and
understanding of and compliance with State or Tribal requirements
governing the conduct of lead-based paint activities. The type and
nature of this assistance can be defined by the State or Indian Tribe
to achieve this goal.
(3) Sampling techniques. A State or Tribal lead-based paint
compliance and enforcement program must have the technological
capability to ensure compliance with the lead-based paint program
requirements. A State or Tribal application for approval of a lead-
based paint program must show that the State or Indian Tribe is
technologically capable of conducting a lead-based paint compliance and
enforcement program. The State or Tribal program must have access to
the facilities and equipment necessary to perform sampling and
laboratory analysis as needed. This laboratory facility must be a
recognized laboratory as defined at Sec. 745.223, or the State or
Tribal program must implement a quality assurance program that ensures
appropriate quality of laboratory personnel and protects the integrity
of analytical data.
(4) Tracking tips and complaints. A State or Tribal lead-based
paint compliance and enforcement program must demonstrate the ability
to process and react to tips and complaints or other information
indicating a violation.
(5) Targeting inspections. A State or Tribal lead-based paint
compliance and enforcement program must demonstrate the ability to
target inspections to ensure compliance with the lead-based paint
program requirements. Such targeting must include a method for
obtaining and using notifications of commencement of abatement
activities.
(6) Follow up to inspection reports. A State or Tribal lead-based
paint compliance and enforcement program must demonstrate the ability
to reasonably, and in a timely manner, process and follow-up on
inspection reports and other information generated through enforcement-
related activities associated with a lead-based paint program. The
State or Tribal program must be in a position to ensure correction of
violations and, as appropriate, effectively develop and issue
enforcement remedies/responses to follow up on the identification of
violations.
(7) Compliance monitoring and enforcement. A State or Tribal lead-
based paint compliance and enforcement program must demonstrate, in its
application for approval, that it is in a position to implement a
compliance monitoring and enforcement program. Such a compliance
monitoring and enforcement program must ensure correction of
violations, and encompass either planned and/or responsive lead-based
paint compliance inspections and development/issuance of State or
Tribal enforcement responses which are appropriate to the violations.
(d) Summary on Progress and Performance. The Summary on Progress
and Performance described below is part of the required elements for
the compliance and enforcement program portion of a State or Tribal
lead-based paint program. A State or Tribal lead-based paint compliance
and enforcement program must submit to the appropriate EPA Regional
Administrator a report which summarizes the results of implementing the
State or Tribal lead-based paint compliance and enforcement program,
including a summary of the scope of the regulated community within the
State or Indian Tribe (which would include the number of individuals
and firms certified in lead-based paint activities and the number of
training programs accredited), the inspections conducted, enforcement
actions taken, compliance assistance provided, and the level of
resources committed by the State or Indian Tribe to these activities.
The report shall be submitted according to the requirements at
Sec. 745.324(h).
(e) Memorandum of Agreement. An Indian Tribe that obtains program
approval must establish a Memorandum of Agreement with the Regional
Administrator. The Memorandum of Agreement shall be executed by the
Indian Tribe's counterpart to the State Director (e.g., the Director of
Tribal Environmental Office, Program or Agency). The Memorandum of
Agreement must include provisions for the timely and appropriate
referral to the Regional Administrator for those criminal enforcement
matters where that Indian Tribe does not have the authority (e.g.,
those addressing criminal violations by non-Indians or violations
meriting penalties over $5,000). The Agreement must also identify any
enforcement agreements that may exist between the Indian Tribe and any
State.
Sec. 745.330 Grants.
The Administrator, or a designated equivalent, may make grants to
States and Indian Tribes, that meet the requirements of
Sec. 745.324(e)(2)(i) and (e)(2)(ii), under section 404(g) of TSCA to
develop and carry out programs authorized pursuant to this subpart.
Grants made under this section are subject to the requirements of 40
CFR part 31.
Sec. 745.339 Effective dates.
States and Indian Tribes may seek authorization to administer and
enforce subpart L pursuant to this subpart effective October 28, 1996.
[FR Doc. 96-21954 Filed 8-28-96; 8:45 am]
BILLING CODE 6560-50-F