45778 federal register /vol. 61, no. 169/thursday, august ... · 8/29/1996 · federal...

45778 Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 745

[OPPTS–62128B; FRL–5389–9]

RIN 2070–AC64

Lead; Requirements for Lead-BasedPaint Activities in Target Housing andChild-Occupied Facilities

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Final rule.

SUMMARY: EPA is finalizing a Federalregulation under section 402 of theToxic Substance Control Act (TSCA) toensure that individuals conducting lead-based paint activities in target housingand child-occupied facilities areproperly trained and certified, thattraining programs providing instructionin such activities are accredited and thatthese activities are conducted accordingto reliable, effective and safe workpractice standards. The Agency is alsofinalizing a Federal regulation undersection 404 of TSCA that will allowStates and Indian Tribes to seekauthorization to administer and enforcethe regulations developed under section402. The goal of this regulation is toensure the availability of a trained andqualified workforce to identify andaddress lead-based paint hazards, and toprotect the general public from exposureto lead hazards.DATES: This document is effectiveAugust 29, 1996. Specific applicabilitydates related to this final rule are asfollows:

States and Indian Tribes seeking EPAauthorization to administer and enforcetheir own lead-based paint activitiesprograms may apply to the Agencystarting October 28, 1996. FollowingEPA authorization, the requirements ofthe State or Tribal program will becomeeffective as specified in such program.

For States and Indian Tribes that donot apply to EPA for and receiveauthorization, EPA will administer andenforce the regulations for lead-basedpaint activities contained in subpart L.The requirements of Subpart L willbegin to apply in non-authorized Statesand Indian Country no later than August31, 1998, as specified below.

In States and Indian Country whereEPA will administer and enforcesubpart L, training programs that seek toprovide lead-based paint activitiestraining courses or refresher coursespursuant to § 745.225 may first apply toEPA for accreditation on or after August31, 1998. Such training programs cannotprovide, offer, or claim to provide

training or refresher training for lead-based paint activities as defined in thissubpart, without acquiring accreditationfrom EPA pursuant to § 745.225 on orafter March 1, 1999.

In EPA-administered States andIndian Country, no individual or firmcan perform, offer, or claim to performlead-based paint activities as defined inthis subpart, without certification fromEPA to conduct such activities pursuantto § 745.226 on or after August 30, 1999.Such individuals or firms may firstapply to EPA for certification pursuantto section 745.226 after March 1, 1999.In EPA-administered States and IndianCountry, after August 30, 1999 all lead-based paint activities, as defined in thissubpart, must be performed pursuant tothe work practice standards containedin § 745.227.ADDRESSEES: Copies of this rule, thepublic comments received on this rule,EPA’s response to those comments andother relevant documents that supportthe rule are available for publicinspection at EPA’s headquarters officeon weekdays, except legal holidays,between the hours of noon and 4 p.m.at the following location: EnvironmentalProtection Agency, TSCA Public DocketOffice (7407), 401 M St., SW.,Washington, DC 20460.FOR FURTHER INFORMATION CONTACT:Susan B. Hazen, Director,Environmental Assistance Division(7408), Office of Pollution Preventionand Toxics, Environmental ProtectionAgency, 401 M St., SW., Washington,DC 20460, Telephone: 202–554–1404.TDD: 202–554–0551, e-mail: [email protected] INFORMATION:Table of ContentsI. Introduction

A. Legal AuthorityB. SummaryC. Background

II. Consultation with StakeholdersIII. Response to Comments on the Scope ofthe Rule

A. Building TypesB. Definition of Lead-Based Paint

Abatement in Target Housing and Child-Occupied FacilitiesIV. Relationship of Sections 402 and 404 toSection 403 of TSCAV. Response to Comments on theAccreditation of Training Programs in TargetHousing and Child-Occupied Facilities

A. Framework for TrainingB. Training Program Accreditation

RequirementsC. Accreditation Application ProcessD. Reaccreditation of Training Programs

and Quality of InstructionVI. Response to Comments on the Trainingand Certification of Individuals

A. Training, Education and/or ExperienceRequirements

B. Passage of the Certification Examination

VII. Framework for Work Practice Standardsfor Conducting Lead-Based Paint Activitiesin Target Housing and Child-OccupiedFacilities

A. IntroductionB. Scope and ApplicabilityC. Use of Guidance and Recordkeeping

RequirementsVIII. Response to Comments on WorkPractice Standards for Conducting Lead-Based Paint Activities in Target Housing andChild-Occupied Facilities

A. Conflict of InterestB. InspectionC. Risk Assessment ActivitiesD. Composite SamplingE. Abatement

IX. State ProgramsA. IntroductionB. Submission of an ApplicationC. State CertificationD. EPA ApprovalE. Model State Program—Guidance to

States and Indian Tribes; EPA ApprovalCriteria

F. Treatment of Tribes as a StateX. Regulatory Assessment Requirements

A. Executive Order 12866B. Regulatory Flexibility ActC. Paperwork Reduction ActD. Unfunded Mandates Reform ActE. Executive Order 12898—

Environmental Justice ConsiderationsXI. Submission to Congress and the GeneralAccounting OfficeXII. Rulemaking RecordXIII. References

I. Introduction

A. Legal Authority

The training, certification andaccreditation requirements and workpractice standards contained in this ruleare being promulgated pursuant tosection 402 of TSCA, 15 U.S.C. 2682, asamended on October 28, 1992. TheModel State Program and regulations onthe authorization of State and Triballead programs are being promulgatedpursuant to section 404 of TSCA, 15U.S.C. 2684.

B. Summary

Today’s final rule is intended toensure that individuals conducting lead-based paint inspections, riskassessments and abatements in targethousing and child-occupied facilitiesare properly trained and certified, andthat training programs providinginstruction in such activities areaccredited. Target housing is defined asany housing constructed prior to 1978,except housing for the elderly orpersons with disabilities, or any 0-bedroom dwelling. A child-occupiedfacility is defined as a building, orportion of a building, constructed priorto 1978, visited by the same child, 6years of age or under, on at least 2different days within any week,

45779Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / Rules and Regulations

provided that each days visit lasts atleast 3 hours, the combined weekly visitlasts at least 6 hours, and the combinedannual 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 aModel State Program (MSP), whichStates and Indian Tribes are encouragedto reference and use as guidance todevelop their own Federally authorizedlead-based paint activities programs.The MSP identifies five key elements—training, accreditation, certification,work practice standards andenforcement—which EPA believes areneeded to promote and develop aqualified and trained workforce able toconduct lead-based paint activitiessafely, effectively and reliably. Theregulations also contain procedures forStates and Indian Tribes to follow whenapplying to EPA for authorization toadminister and enforce a State or Triballead-based paint activities programs.

The MSP will allow States and Indiantribes to manage and administer thesetraining, accreditation and certificationprograms at the State or Tribal level.The Agency believes that programs suchas this, which require among otherthings the certification of individuals,are best administered at the State orTribal level allowing for individualState or Tribal-specific flexibility.

The purpose of these training,accreditation, and certificationrequirements and the work practicestandards in today’s final rule is toensure that lead-based paint abatementprofessionals, including workers,supervisors, inspectors, risk assessors,and project designers, are well-trainedin conducting lead-based paint activitiesin target housing and child occupiedfacilities. The rule will also ensure,through the certification ofprofessionals, that inspections for theidentification of lead-based paint, riskassessments for the evaluation of lead-based paint hazards, and abatements forthe permanent elimination of lead-basedpaint hazards are conducted safely,effectively and reliably. In addition,training providers will be accredited toensure that high quality training forthese professionals is available. TheAgency believes this certification andaccreditation program will allowhomeowners and others to hire a well-qualified work force that is adequatelytrained in the proper procedures forconducting lead-based paint activities.

The work practice standards intoday’s final rule are not intended toregulate all activities that involve ordisturb lead-based paint, but only thosethat are described as an inspection, risk

assessment or abatement by anindividual who offers these services.This rule would not regulate arenovation contractor that incidentallydisturbs lead-based paint or anindividual who samples paint on akitchen cabinet to determine if the paintcontains lead. Today’s final rule wouldcover a contractor who offers to abate ahome of lead-based paint hazards, or aninspector who offers to conduct a lead-based paint inspection in a residentialdwelling.

Regulated Entities. Potentiallyregulated entities are those trainingproviders that would be accredited andthose professionals who would betrained and certified to conduct lead-based paint abatements.

Category Examples of Regu-lated Entities

Lead abatement pro-fessionals

Workers, supervisors,inspectors, risk as-sessors and projectdesigners engagedin lead-based paintactivities

Training providers Firms providing train-ing services inlead-based paintactivities

This table is not intended to beexhaustive, but rather provides a guideof the entities that are likely to beregulated by this action. This table liststhe types of entities that EPA is nowaware could potentially be regulated bythis action. Other types of entities notlisted in this table could also beregulated. To determine whether you oryour business is regulated by thisaction, you should carefully examinethe provisions in part 745 of theregulatory text. If you have anyquestions regarding the applicability ofthis action to a particular entity, consultthe person listed in the FOR FURTHERINFORMATION CONTACT section.

C. Background

On October 28, 1992, the ResidentialLead-Based Paint Hazard Reduction Actof 1992 (Title X) became law. As aresult, the Toxic Substances Control Act(TSCA) was amended to include a newtitle, Title IV, 15 U.S.C. 2681–2692.TSCA Title IV directs EPA topromulgate several regulations,including the lead-based paint activitiestraining, certification, and accreditationrequirements, work practice standardsand the MSP included in today’s finalrule.

The requirements in today’s final rulewere first proposed on September 2,1994 (59 FR 45872) (FRL–4633–9).Several changes have been made to theproposed rule because of commentsreceived by the Agency. Nonetheless,the primary objective of the proposedrule and today’s final rule remains thesame and is consistent with the goalsstated in Title X and the mandatesprescribed in TSCA Title IV.

The primary objective of today’s finalrule is to address the nation’s need fora qualified and properly trainedworkforce to assist in the prevention,detection and elimination of hazardsassociated with lead-based paint. Bypromoting the establishment of thisworkforce through today’s final rule, theAgency will help to ensure thatindividuals and firms conducting lead-based paint activities in target housingand child-occupied facilities will do soin a way that safeguards theenvironment and protects the health ofbuilding occupants, especially childrenaged 6 years and under.

In addition to today’s final rule undersections 402 and 404 of TSCA, EPA isdeveloping other rules as mandated byother sections of TSCA Title IV. Therelationship of today’s final rule to theseother rules is discussed in more detailin Unit IV. of this preamble.

II. Consultation with StakeholdersFollowing the September 2, 1994

publication of the lead-based paintactivities proposal, the Agency met atdifferent times with representativesfrom various State environmental andpublic health agencies. At least threemeetings were held with State andTribal representatives under theauspices of the Forum on State andTribal Toxics Action or FOSTTA.FOSTTA is an organization that servesas a forum for State and Tribal officialsto jointly participate in addressingnational toxics issues, including lead,and to improve communication andcoordination among the States, IndianTribes and EPA. Under FOSTTA, a leadproject has been established to workwith the States and Tribes on lead-related issues. Between 10 and 12 Statesparticipate on the lead project withEPA.

In addition to FOSTTA, the Agencymet on December 5 and 6, 1994, with 93representatives from 49 State health andenvironmental agencies and 12representatives from 10 Indian Tribes.Minutes from the FOSTTA meetings,and the December 1994 meeting are inthe docket for today’s final rule (Ref. 1).

In addition to encouraging States andIndian Tribes to submit writtencomments on the September 2 proposal,


the Agency also held meetings with theStates and Indian Tribes to discuss theircurrent and future roles as co-regulatorsin the area of lead-based paint activities.These meetings, in combination withthe written comments submitted by theStates, helped shape today’s final rule.

III. Response to Comments on the Scopeof the Rule

The comment period for the proposedrule extended from September 2, 1994to December 15, 1994. The Agencyreceived a total of 323 comments andhas reviewed them all. These comments,along with a detailed summary (Ref. 2)and the Response to Public CommentDocument (Ref. 3), a written response tothe issues raised by commenters, can befound in the public docket for today’sfinal rule.

Based on the public comments, theAgency has made several changes to theproposed rule. Two of these changesaffect the scope of the final rule bymodifying the definitions of thebuildings and structures covered.Additionally, the Agency has amendedthe definition of abatement. Thesechanges, and others, are summarizedbelow. For a more detailed discussion ofissues raised by commenters andchanges made to the final rule, readersshould refer to the Response to PublicComment Document.

A. Building TypesOne principal change in the final rule

is the Agency’s decision to delaypromulgation of training andcertification requirements and workpractice standards for individuals andfirms conducting lead-based paintactivities in public buildings (exceptchild-occupied facilities), commercialbuildings, superstructures and bridges.This decision was primarily based onthe need to clarify the ‘‘deleading’’definition contained in the September 2,1994 proposal, and the Agency’s desireto avoid conflict and overlap with thetraining requirements contained in theOccupational Safety and HealthAdministration’s (OSHA) interim finallead standard (29 CFR 1926.62).

Under the September 2, 1994proposal, individuals and firmsconducting deleading activities inpublic and commercial buildings,superstructures and bridges would havebeen subject to EPA training andcertification requirements and workpractice standards and, possibly, theOSHA training requirements containedin OSHA’s interim final lead standard.Under the proposed rule, EPA’sintention was to include OSHA’straining requirements in EPA’s trainingand certification program. However,

commenters noted uncertainty as towhether EPA’s proposed definition of‘‘deleading’’ would have includedprecisely the same activities whichwould trigger the training requirementsunder OSHA’s interim final leadstandard.

Consequently, commenters believedthat EPA’s training and certificationprogram would have imposed OSHAtraining when, in fact, OSHA may notrequire it. Other commenters alsobelieved that OSHA’s trainingrequirements were adequate and thatEPA’s training and certification programwas unnecessary for individuals andfirms conducting ‘‘deleading’’ activitiesin public and commercial buildings,superstructures and bridges.

In its review of the commentsreceived on the deleading definition, theAgency has determined that thedefinition of the term needs to beclarified. At this time, the Agency iscontinuing to review the publiccomments it received on its proposeddefinition, and is examining availabledata for the purposes of developingoptions to establish training andcertification requirements and workpractice standards for individuals andfirms that conduct deleading activitiesin public and commercial buildings,superstructures and bridges. TheAgency is also considering options thatwill eliminate the potential for overlapbetween any training requirements EPAmay propose in the future and OSHAtraining requirements for suchindividuals and firms.

Another related change involves theAgency’s decision to includerequirements for lead-based paintactivities conducted in public buildings(except child-occupied facilities) in thefuture action covering commercialbuildings, superstructures and bridges.Accordingly, today’s final rule does notcover public buildings constructed priorto 1978 (except child-occupiedfacilities).

The Agency is taking this action inresponse to numerous comments thaturged the Agency to focus its efforts onlead-based paint activities conducted inhousing and other facilities frequentedby children. In the September 2, 1994proposed rule, individuals and firmsconducting lead-based paint activities inpublic buildings would have beenrequired to adhere to the sameregulations as in target housing,regardless of whether childrenfrequented the buildings. In theSeptember 2, 1994 proposal, the Agencyspecifically requested comment onwhether all public buildings should besubject to the same regulations and

grouped together in this way with targethousing.

A significant majority of commentersexpressed concern that application ofthese requirements to all publicbuildings, as defined in the September2, 1994 proposal, would have resultedin the expenditure of substantialresources without a comparablereduction in lead-based paint exposuresamong children aged 6 years and under.Under the September 2, 1994 proposal,the Agency broadly defined publicbuildings as ‘‘any building constructedprior to 1978, except target housing,which is generally open to the public oroccupied or visited by children,including but not limited to stores,museums, airport terminals, conventioncenters, office buildings, restaurants,hospitals, and government buildings, aswell as facilities such as schools andday-care centers.’’

In response to those comments thatthe Agency focus its requirements onindividuals and firms conducting lead-based paint activities in buildingsfrequented by children, today’s finalrule establishes a sub-category of publicbuildings named ‘‘child-occupiedfacilities.’’

Today’s final rule defines a child-occupied facility as ‘‘a building, orportion of a building, constructed priorto 1978, visited regularly by the samechild, 6 years of age or under, on at least2 different days within any week(Sunday through Saturday period),provided that each day’s visit lasts atleast 3 hours and the combined weeklyvisit lasts at least 6 hours, and thecombined annual visits last at least 60hours. Child-occupied facilities mayinclude, but are not limited to, day-carecenters, preschools and kindergartenclassrooms.’’

Under today’s final rule, individuals,firms and training providers that eitheroffer training in the performance oflead-based paint activities in child-occupied facilities, or that perform oroffer to perform such activities in child-occupied facilities are subject to thesame requirements as individuals, firmsand training providers involved in targethousing.

The Agency’s decision to define andestablish child-occupied facilities as asub-category of public buildings withrequirements equivalent to those fortarget housing is based on one of the keyobjectives of today’s final rule, which isto prevent and reduce lead exposuresamong young children.

The Agency believes that childrenface potentially equivalent (if notgreater) risks from lead-based painthazards in schools and day-care centersas they do at home. Indeed, some


children spend more time in a particularclassroom or day-care room in a givenday or week than they might spend ina single room in their homes. If thatclassroom contained a lead-based painthazard, the children in it could be atrisk.

The Agency believes section 402(b)provides it with the flexibility necessaryto regulate lead-based paint activities inchild-occupied facilities in the samemanner it regulates those activities intarget housing. Although section402(b)(2) uses terms such as‘‘identification’’ and ‘‘deleading’’instead of ‘‘inspection,’’ ‘‘riskassessment’’ and ‘‘abatement,’’ EPAbelieves that, given the similarity of thepopulation to be protected and thenature of the risk they face, the section402(b)(2) terms can be understood toinclude the same types of lead-basedpaint activities as specified in section402(b)(1). ‘‘Identification’’ of lead-basedpaint under section 402(b)(2) isanalogous to ‘‘inspection’’ under section402(b)(1). ‘‘Deleading’’ under section402(b)(2) is equivalent to ‘‘abatement’’under section 402(b)(1). While there isno direct analog in 402(b)(2) to ‘‘riskassessment,’’ EPA believes such activityis fairly (and necessarily, from a logicalperspective) included within the phrase‘‘activities conducted by a person whoconducts or plans to conduct anelimination of lead-based paint or lead-based paint hazards.’’ (See definitions of‘‘deleading’’ in section 402(b)(2)).

Commenters also supported theAgency’s decision to focus on thosebuildings or portions of buildings wherechildren spend a significant amount oftime, or that children regularly orfrequently use, rather than all publicbuildings. Commenters cited preschoolsand kindergarten classrooms asexamples of the types of buildings thatneeded to be included, like targethousing, in the regulatory programcontained in today’s final rule. By citingsuch facilities as examples, commentersappeared to indicate that the Agencyshould focus on facilities that a 6-yearold child regularly attends, rather thanfacilities that children may visitintermittently or infrequently, such asmuseums, hospitals, grocery stores orairports.

In selecting the 3-hour, 2-day a weektime requirement for its definition of achild-occupied facility, the Agencyconsidered national survey datacompiled by the U.S. Department ofEducation (Ref. 4) and the U.S. Bureauof the Census (Ref. 5). Data from theDepartment of Education and theBureau of the Census indicate thatchildren attending preschool betweenage 3 and age 6 or under will meet for

a minimum of 3 hours a day, 2 days aweek.

Based on this data, the Agency choseto define ‘‘child-occupied’’ facilities asfacilities where a child would spend aminimum of at least 3 hours a day, 2days a week. Relying on the availabledata, the Agency believes its definitionwill cover the vast majority ofpreschools, kindergartens and day-carecenters. Moreover, the decision toexclude child-occupied facilitiesconstructed after 1978 is consistent withthe statutory definition of both targethousing and public buildings, whichexclude both housing and publicbuildings constructed after 1978.

The Agency also sought to includeonly facilities where there is regular orrecurring visitation, over time, by achild, by including a combined annualvisitation minimum of 60 hours. Therationale for this choice was that a likelyminimum recurring visitation schedulefor a child would be a 10-week day-caresession, 2 days per week, 3 hours perday that would be equal to 60 hours.

Today’s final rule requires thatindividuals and firms conducting lead-based paint activities in child-occupiedfacilities meet the same training andcertification requirements as individualsand firms working in target housing.The Agency designed the training andcertification requirements forindividuals and firms working in targethousing primarily to ensure thatabatement professionals are instructedon how to conduct lead-based paintactivities to identify, reduce oreliminate lead-based paint hazards thatmay present risks to children.Consequently, the Agency believes theserequirements are also appropriate forindividuals working in child-occupiedfacilities.

Commenters did not support thedevelopment of a set of work practicestandards for child-occupied facilitiesthat would differ from the work practicestandards in target housing. Nor doesthe Agency have any reason to concludethat a different set of work practicestandards should be developed forchild-occupied facilities. Consequently,the work practice standards for child-occupied facilities do not differ fromthose work practice standardsestablished by this final rule for targethousing.

The proposed rule specificallyexempted from regulation individualswho perform lead-based paint activitieswithin residences which they own,unless the residence is occupied by aperson or persons other than the owneror the owner’s immediate family whilethe activities are being conducted. Themajority of public commenters

supported this exemption and it willremain in the final rule. However, somecommenters expressed concern thathomeowners should not performabatements in their own home wherethere is a child with an elevated bloodlead level. The Agency agrees with thiscomment and has changed the final ruleaccordingly.

B. Definition of Lead-Based PaintAbatement in Target Housing andChild-Occupied Facilities

The Agency received roughly 60comments on its proposed definition oflead-based paint abatement. Indeveloping the proposed rule, theAgency relied on the definition ofabatement contained in section 401 ofTSCA. Section 401(1) of TSCA definesabatement as:

. . .any set of measures designed topermanently eliminate lead-based painthazards in accordance with standardsestablished by the Administrator under thistitle. Such term includes:

(A) the removal of lead-based paint andlead-contaminated dust, the permanentcontainment or encapsulation of lead-basedpaint, the replacement of lead-paintedsurfaces or fixtures, and the removal orcovering of lead-contaminated soil; and

(B) all preparation, cleanup, disposal, andpost-abatement clearance testing activitiesassociated with such measures.

In its September 2, 1994 proposal, theAgency defined ‘‘abatement’’ as follows:

Abatement means any set of measuresdesigned to permanently eliminate lead-based paint hazards in accordance withstandards established by the Administratorunder Title IV of TSCA. Such term includes:

(1) the removal of lead-based paint andlead-contaminated dust, the permanentcontainment or encapsulation of lead-basedpaint, the replacement of lead-paintedsurfaces or fixtures, and the removal orcovering of lead-contaminated soil; and

(2) all preparation, cleanup, disposal, andpost-abatement clearance testing activitiesassociated with such measures.

Abatement shall be presumed in thefollowing circumstances:

(A) projects for which there is a writtencontract stating that an individual or firmwill be conducting activities in or to adwelling unit that will permanentlyeliminate lead-based paint hazards;

(B) projects involving the permanentelimination of lead-based paint or leadcontaminated soil and conducted by firms orindividuals certified in accordance with this§ 745.226 or this regulation; or

(C) projects involving the permanentelimination of lead-based paint or leadcontaminated soil and conducted by firms orindividuals who, through their companyname, promotional literature, or otherwiseadvertise or hold themselves out to be leadabatement professionals.

(3) Abatement does not include renovationand remodeling, or landscaping activities


whose primary intent is not to permanentlyeliminate lead-based paint hazards, but isinstead to repair, restore or remodel a givenstructure or dwelling, even though theseactivities may incidently result in a reductionin lead-based paint hazards.

In response to the proposal,commenters expressed concern that thephrase ‘‘. . .any set of measures. . .’’implied that the Agency assumed thatabatement will always occur throughoutan entire residential dwelling, ratherthan to some subset of components. TheAgency agrees with the commenters andhas clarified its belief that abatementsmay be performed on components ofbuildings, as well as the whole building,by adding the following phrase: ‘‘anymeasure or set of measures designed topermanently eliminate lead-basedpaint’’ to its definition of abatement intoday’s final rule.

In the proposed rule, by way ofclarification, the Agency provided threecircumstances (see (2)(A)(B) and (C)above) in which abatement shall bepresumed. Commenters noted that, asproposed, these illustrativecircumstances may have resulted in theimposition of today’s requirementsupon individuals and firms conductingrenovation and remodeling or othersimilar nonabatement activities.

For example, a renovation andremodeling contractor may also becertified as an abatement supervisor orworker, and may choose to advertisehis/her lead-based paint abatementservices as one specialty his/herbusiness can provide. This should notmean that all renovation or remodelingprojects this contractor works on shouldbe considered abatement for thepurposes of this rule. In response tothese comments, § 745.223(3)(ii) and(3)(iii) of the abatement definition intoday’s final rule identifies activitiesthat are not considered abatements.These include renovation andremodeling activities covered by§ 745.223(4) of the abatement defintionwhich are not specifically designed topermanently eliminate lead-based painthazards, but instead, are designed torepair or remodel a residential dwelling,and interim control activities.

Another issue raised by commenterswas that the Agency’s abatementdefinition focused on the intent of thebuilding owner and the individual orfirm conducting an abatement. Thecommenters suggested that the Agency’sintent-based approach creates aloophole for building owners andcontractors who will escape regulationby calling abatement something else,such as renovation and remodeling. Athird concern was that the definitionrequired abatement activities to result in

the permanent elimination of a lead-based paint hazard, as opposed to atemporary reduction of a hazard.

Although these comments are notwithout merit, EPA has decided tomaintain its proposed abatementdefinition, with some minoradjustments. EPA believes that the clearintent of Congress was to focus thescope of this initial regulation onabatement activities, and to defineabatements as those projects wherethere is a conscious effort on the part ofthe building owner and contractor(‘‘measures designed to’’) topermanently eliminate lead-based painthazards.

In writing its definition of abatement,Congress did not say any set ofmeasures ‘‘which permanentlyeliminate’’ lead-based paint hazards.Nor did it say any set of measures‘‘which have the effect of permanentlyeliminating’’ lead-based paint hazards.Instead, Congress defined abatements asany set of measures ‘‘designed topermanently eliminate’’ lead-basedpaint hazards. Webster’s defines theterm ‘‘design’’ as ‘‘to intend for adefinite purpose.’’ By including thephrase ‘‘designed to’’ in its definition ofabatement, EPA believes that Congresswas specifically directing EPA toregulate as abatements only thoseactivities which are undertaken with thedefinite purpose or intent ofpermanently eliminating lead-basedpaint hazards.

The reason for this focus can be foundin the legislative history thataccompanies Title X. Prior to thepassage of Title X, and even today,abatements were being conducted toreduce or eliminate lead exposure tochildren when in fact they were,because of improper training ortechnique, increasing exposures. Thissituation, in part, prompted Congress todirect the Agency to develop today’sfinal rule regulating abatementactivities.

Other commenters suggested that theAgency’s definition of abatement shouldspecifically include renovation andremodeling, interim controls, operationsand maintenance, and any other activitythat may disturb lead-based paint andcreate a potential hazard.

The definition of abatement in section401(1) of TSCA includes a list ofspecific activities (e.g., removal of lead-based paint, replacement of lead-painted surfaces or fixtures) which areincluded within the definition’s scope.This list is cited by some commenters asindicating that abatement shouldinclude activities, such as renovation,that are not necessarily intended toeliminate lead-based paint hazards.

However, in providing this list,Congress did not intend that it be reador applied in isolation from thepreceding intent-based definitionallanguage. The list provided in section401(1)(A) and (B) merely identifies someof the ‘‘measures’’ that may be taken bya contractor to ‘‘permanently eliminatelead-based paint hazards.’’ EPA believesthat, for any of the measures specifiedin section 401(1)(A) and (B) to beconsidered abatement, they must also beconducted with the intent or ‘‘definitepurpose’’ of permanently eliminatinglead-based paint hazards.

Clearly, Congress recognized thatthese other activities, such as renovationor remodeling, may disturb lead-basedpaint and may result in lead-based painthazards. In response to this concern,Congress directed the Agency, undersection 402(c), to conduct a study todetermine the extent to whichrenovation and remodeling activitiesmay create lead-based paint hazards.Based on the results of this study,section 402(c)(3) of TSCA directs EPA torevise today’s regulations to address thelead-based paint hazards associatedwith renovation and remodeling. Thus,rather than requiring regulations nowfor all non-abatement activities, section402 of TSCA directs EPA to defer suchregulation pending further study todetermine which, if any, renovation andremodeling-type activities create a lead-based paint hazard.

IV. Relationship of Sections 402 and404 to Section 403 of TSCA

Under section 403 of TSCA, EPA isdeveloping a rule that will identifyconditions of lead-based paint, and leadlevels and conditions in residential dustand soil that would result in a hazardto building occupants, especiallychildren age 6 and under. Incombination with the work practicestandards contained in § 745.227 oftoday’s final rule, the Agency expectsthat the levels and conditions identifiedin the TSCA section 403 rule willprovide clear direction on how toidentify, prioritize and respond tohazards from lead in and around targethousing.

Promulgation of the TSCA section 403rule, however, has been delayed untilthe Agency completes variousinformation gathering and assessmentactivities. On January 3, 1996, theUnited States District Court for theNorthern District of New York issued adecree, consented to by EPA and theAtlantic States Legal Foundation(ASLF), that requires EPA to proposethe TSCA section 403 rule by November30, 1996 and to issue a final rule bySeptember 30, 1997 (Ref. 8).


In the interim, the Agency haspublished guidance to assist the publicin identifying lead-based paint hazards,sources of lead exposure, and the needfor control actions in environmentswhere children may be present.

EPA originally issued this guidance ina July 14, 1994 memorandum from LynnR. Goldman, Assistant Administrator forPrevention, Pesticides and ToxicSubstances, to the Agency’s RegionalDivision Directors, entitled ‘‘Guidanceon Residential Lead-Based Paint, Lead-Contaminated Dust, and Lead-Contaminated Soil’’ (the ‘‘section 403Guidance’’). Subsequently, copies of thesection 403 Guidance have beenavailable from the Agency upon request.To further disseminate the section 403Guidance, the Agency published the fulltext of that document in the FederalRegister on September 11, 1995 (60 FR47248) (FRL–4969–6).

In the September 2, 1994 preamble,the Agency provided a lengthydiscussion of the relationship betweenthe section 402/404 regulations and theforthcoming section 403 regulation. TheAgency explained why it believed it wasappropriate to offer the section 402/404rule for public comment, in the absenceof a section 403 regulation (See 59 FR45875).

In response, the Agency receivedseveral public comments. None of thecomments stated that the Agency shouldnot promulgate a final regulation forlead-based paint activities in targethousing without a final section 403 rule.Seven comments were received fromparties with an interest in public andcommercial buildings, superstructuresand bridges, urging the Agency to delaypromulgating a TSCA section 402/404rule covering those types of structuresuntil the section 403 rule has beenpromulgated. As discussed previously,today’s final rule does not address thesebuilding types, and thus thesecomments are not applicable.

Lastly, one commenter stressed theimportance of publishing the TSCAsection 403 rule as quickly as possible,but did not suggest that delaying actionon the TSCA section 402/404 rule wasnecessary.

The Agency understands that withouta final section 403 rule identifying lead-based paint hazards, fullimplementation of today’s final rule willbe difficult. The Agency has addressedthis problem in the ASLF consentdecree, by committing to promulgate afinal rule under section 403 bySeptember 30, 1997, well before subpartL of this rule will become effective inEPA administered States and IndianCountry.

V. Response to Comments on theAccreditation of Training Programs inTarget Housing and Child-OccupiedFacilities

Section 745.225 includes variousrequirements and the applicationprocedures that training programs mustfollow to become accredited by EPA toprovide instruction in the lead-basedpaint activities and work practicestandards described in this rule. Theseprocedures and requirements apply totraining programs that will offer bothbasic and refresher training courses.

Training programs may offer coursesfor one or more of the following fivework disciplines: (1) Inspector, (2) riskassessor, (3) supervisor, (4) abatementworker, and (5) project designer.Minimum curricula requirements foreach of these courses can be found at§ 745.225(d).

The Agency has already developedand released model course curriculamaterials for the inspector, risk assessor,supervisor and abatement workerdisciplines. The Agency is currentlymodifying and updating these materials,and developing a new model course forproject designers, to reflect the coursecurricula contained in § 745.225(d). EPAwill make these materials available priorto August 31, 1998.

The Agency received a variety ofcomments on the work disciplines,training courses and accreditationprocedures in the proposed rule. Amongthe key issues raised were: the numberof work disciplines; the length of thecourses; their traditional classroomapproach; the course curricula; thecourse test and hands-on assessment;instructor qualifications; and theprocedures for applying foraccreditation.

In response to these comments, theAgency has adjusted the proposed rulein several ways. EPA believes these theadjustments will result in a moreflexible accreditation system for bothtraining program providers and forindividuals seeking training andcertification through that system.

A. Framework for Training

Generally, most commenters agreed inprinciple with the tasks andresponsibilities identified by the Agencyunder its five work disciplines:inspector, risk assessor, supervisor,worker, and project designer. On theother hand, commenters were dividedon whether five separate workdisciplines and training courses wereneeded to accomplish the tasks andobjectives associated with inspection,risk assessment and abatement. Ingeneral, commenters were concerned

with the potential for redundancy andoverlap among the proposed fivetraining courses.

Although the final rule retains fivedistinct work disciplines, as originallyproposed, the Agency has made severalchanges to make the courses moremodular in their design, eliminatepotential redundancies in the coursecurricula, and reduce course length.Because of these changes, the Agencybelieves that the market will be betterable to manage and more efficientlyprovide training to individualsresponsible for performing lead-basedpaint inspection, risk assessment andabatement activities.

The Agency has consulted withOSHA to eliminate any redundanciesbetween the course curricula containedin § 745.225(d)(3) and (5) for theabatement supervisor and worker, andthe training program OSHA hasestablished under its interim final leadstandard (29 CFR 1926.62). Based ondiscussions with OSHA and a review ofpublic comments, the Agency hasdecided that the best way to eliminateany redundancies or confusionregarding OSHA training versus EPAtraining is to remove OSHA’s trainingprogram elements from the coursecurricula contained in § 745.225(d)(3)and (5).

As a result, training programs havethe option of offering courses in: (1)OSHA training; (2) EPA training; or (3)both OSHA and EPA training. Onlythose programs that wish to offer EPAtraining would need to apply foraccreditation under this rule.

A key difference between OSHA andEPA training is that OSHA training isprimarily designed to reduce theoccupational exposure to lead forconstruction workers. The OSHAstandard establishes maximum limits ofexposure to lead for all workers covered,including an action level of 30 µg/m3

calculated as an 8–hour time-weightedaverage (TWA). At or above this actionlevel, workers are subject to OSHA’straining requirements, which primarilyinvolve instruction in respirator use,engineering and work practice controlsfor the containment of lead, and OSHA’smedical surveillance program.

In contrast, the primary purpose ofEPA training for abatement workers,supervisors and project designers is toprotect building occupants, particularlychildren ages 6 years and younger, frompotential lead-based paint hazards andexposures both during and after anabatement.

The deletion of OSHA’s trainingprogram elements has helped reduce thelength of the abatement worker coursefrom a proposed 32–hour course


(including 10 hours of hands-oninstruction) to 16 hours (including 8hours of hands-on instruction). TheAgency has also reduced the emphasison providing instruction in basicconstruction techniques and focusedinstead on the practical application ofabatement methods and practices. TheAgency believes providing adequateinstruction on both construction andabatement techniques, even in a 32–hour course, would have been verydifficult, if not impossible.

Furthermore, the final rule hasretained 8 of the 10 hours of hands-oninstruction, as proposed. Commenterswere extremely supportive of the hands-on requirements of the rule, and theAgency believes that hands-on traininghelps trainees to retain the knowledgethey acquire. Incorporating, as it does, 8hours of hands-on training, the Agencybelieves that the 16–hour requirementin the final rule will enable workers toconduct safe, reliable and effectiveabatements.

Another change designed to reducecourse length and eliminate overlap inthe rule is the decision to establish one32–hour course requirement that bothsupervisors and project designers willtake, and to establish an additional 8–hour course supplement that projectdesigners are required to take.

Under the proposed rule, supervisorsand project designers would have beenrequired to take one 40–hour course,and project designers would have beenrequired to take an additional 16–hourcourse supplement. Most of thecomments on the proposal suggestedthat the Agency could combine some ofthe course topics from the two classes.

As in the proposed rule, the Agency’spremise for developing one course forboth supervisors and project designersis the similarity in the jobresponsibilities of these two workdisciplines. Areas where the supervisorand project designer share similarlearning needs are listed in the coursecurriculum at § 745.225(d)(3). Some ofthe course topics (e.g., risk assessment/inspection report interpretation) reflectthe Agency’s decision to insert topicsfrom the proposed project designercourse into that of the final jointsupervisor/project designer course.

For example, the ability to interpretinspection and risk assessment reportsis a skill that both supervisors andproject designers must have, since theyare both responsible for either theoversight of abatement activities or areresponsible for designing abatementplans based on the results of inspectionsand risk assessments.

The course supplement for projectdesigners is intended to provide specific

instruction in designing lead-basedpaint abatement activities in targethousing and child-occupied facilities.Clearly, this 8–hour course cannot trainan individual in all aspects of projectdesign. However, the course willcompliment the education and skillsthat project designers must have (e.g., adegree in engineering or 4 yearsexperience in building construction anddesign) by providing lead-specificdesign instruction.

The Agency also received severalcomments regarding the training forinspectors and risk assessors. Manycommenters requested clarificationabout whether an individual must takeboth the inspector and risk assessorcourse as a part of the process to becomecertified as a risk assessor. The simpleanswer is yes; however, the inspectorand risk assessor courses do notnecessarily have to be taken back-to-back. Training providers have theoption of offering the inspector courseseparate from the risk assessor course,although the provider may choose tooffer the two courses as one unit. Moredetail regarding the certification processfor inspectors and risk assessors isprovided in Unit VI. of this preamble.

An additional change to the rule is theallowance for alternative trainingmethods, including supplemental at-home study programs. The Agencyspecifically requested comment on theuse of at-home study materials andother alternative training methods in itsSeptember 2, 1994 proposal. Most of thecomments received on this issuesupported the use of alternative trainingmethods in lieu of classroominstruction, with certain restrictions.

Commenters opposed to the use ofalternative training methods generallyexpressed reservations regarding thequality of such methods and the needfor the teacher/student interactionafforded in the classroom.

Based on a review of these comments,the final rule permits the use ofalternative training techniques (e.g.,video training, computer-based training)as a supplement to the hands-on skillsassessment or as a substitute for thelecture portion of the training courserequirements outlined in § 745.225(d).The Agency agrees with commenterswho note that alternative trainingprograms, such as at-home study, canresult in the effective transfer ofinformation, if certain restrictions areimplemented to ensure the quality ofthese programs.

To ensure the quality of suchalternative programs, the final rulerequires training providers who opt touse alternative techniques to submit allmaterials as specified under

§ 745.225(b)(1) as a part of theirapplication for accreditation. Thesematerials include copies of the courseagenda, and student and instructormanuals.

The accreditation of alternativetraining programs will be based onEPA’s review of the training materialssubmitted under § 745.225(b)(1),including the course agenda andmanuals. In its review, the Agency willconsider on a case-by-case basis theprovisions made by a training programto ensure the quality of its coursematerials. Based on that review, theAgency may accredit programs offeringalternative training and instructionalmethods.

In addition, § 745.225(c)(6) of the finalrule also requires all training programs,including those using alternativetraining methods, to meet the minimumhourly requirements for hands-onactivities in their training courses.Under § 745.225(c)(7), all trainingprograms are also required to administera course test and conduct a hands-onskills assessment or a proficiency test asdiscussed below.

One specific example of alternativetraining/testing techniques that the rulementions is the use of a proficiency testin lieu of a hands-on assessment andcourse test. A course that offers aproficiency test would consist primarilyof an evaluation of the effectiveness andreliability of a student’s ability toconduct a particular lead-based paintactivity. The proficiency test must alsocover all of the topics and skillsaddressed in a particular course. Forinstance, a proficiency-based course ininspection could involve a mix oflecture material with studentsconducting a mock inspection in aresidential dwelling with known lead-based paint concentrations. The studentwould be evaluated on the accuracy ofthe results of their inspection.

One other issue raised by commenterswas the lack of detail on specificactivities for the ‘‘hands-on’’ componentof a course. The Agency has nothowever, modified the final rule tospecify activities that training programsmust use for the hands-on component oftheir courses. The Agency still believesthat qualified training programs shouldbe able, without additional regulation,to develop specific hands-on activitiesbased on their knowledge of lead-basedpaint activities and the industry.Furthermore, the Agency notes that, asthe technologies for conducting lead-based paint activities develop, the focusof the elements of hands-on trainingwill change. The course topics requiredto have a hands-on component are


marked with an asterisk in § 745.225(d)of the regulatory text.

B. Training Program AccreditationRequirements

1. General comments. The Agencyreceived a significant number ofcomments on the qualificationsproposed for instructors. Additionally,commenters requested clarification onwhether the Agency requires trainingproviders to offer courses forindividuals who do not speak English,or who have low readingcomprehension. Other commentersasked the Agency to clarify or changespecific aspects of the proposedaccreditation process.

For example, several commentersrequested clarification on the number ofinstructors that a training program mustemploy to become accredited. Somecommenters thought that under theSeptember 2, 1994 proposal, a trainingprogram would be required to employ aminimum of three individuals to obtainaccreditation: a training manager, aprincipal instructor and a work practiceinstructor. Other commentersinterpreted the proposed rule to meanthat at a minimum only oneindividual—the training manager—wasrequired to staff a training program.

On this same topic, some commenterscriticized the proposal for setting up an‘‘exclusive’’ training system. Theybelieved that the proposed experience,education and other qualifications forthe training manager, and principal andwork practice instructors wereexcessive. These commenters stated thatthe proposed qualifications wereunnecessary, and that they wouldprevent competent and talentedinstructors from offering training inlead-based paint activities. Under thefinal rule, one person may be employedas both the training manager and theprincipal instructor, if the individualpossesses the qualifications listed at§ 745.225(c)(1) and (2).

Furthermore, the Agency observesthat the final rule no longer includeswork experience or educationalprerequisites for work practiceinstructors, but instead allows trainingprograms to employ guest work practiceinstructors, who may provide eitherlecture or hands-on instruction in acourse.

Some commenters urged the Agencyto stipulate specific qualifications forguest instructors, or to limit the amountof time a guest instructor may beemployed by a training program. Thefinal rule does not, however, set suchlimits. The Agency believes that itwould be too difficult to regulate thequalifications of the many kinds of

inter-disciplinary guest instructors thata training program might want toemploy, given that their backgroundsand credentials will vary significantly.For example, physicians, certifiedabatement supervisors, lawyers, housingofficials and other professionals couldpossibly be employed as guestinstructors. Given the diversity ineducation, training and experienceamong these professionals, the Agencydoes not believe that establishingspecific qualifications is either possibleor useful and the final rule leaves thatdetermination to the training manager.

In terms of setting a limit on theamount of time that a guest instructormay be used, the Agency has placed theresponsibility for ensuring the quality ofa training course on the trainingmanager. The Agency believes that thedecision for determining how muchtime a guest instructor should be usedis a decision best made by the trainingmanager, in consultation with theprincipal instructor.

Additionally, the Agency notes thatthe training manager ultimately isresponsible for ensuring the quality ofinstruction, and that it is in the bestinterest of a training manager to accountfor the capabilities and experience ofthe principal instructors.

Lastly, the Agency notes that today’sfinal rule does not require trainingproviders to offer courses forindividuals who do not speak English orwho have a low reading comprehension.The Agency believes that trainingproviders should be given the flexibilityto offer special courses for suchindividuals, depending on demand.However, the Agency does recommendthat training providers make specialprovisions to accommodate the needs ofindividuals who cannot speak English,or who have a low readingcomprehension.

2. Prerequisites—training manager. Inaddition to these changes, today’s finalrule more clearly describes theprerequisites for the training manager.

For example, under the proposed rulethe qualifications required for a trainingmanager were flexible and intended toaccommodate a broad range of workexperience and educationalbackgrounds. Specifically, the proposalwould have required that trainingmanagers, at a minimum, possess eithersome training or education in teachingadults. In addition, the proposal wouldhave required that training managerspossess experience or education in oneof three additional areas, specifically:(1) A bachelor’s or graduate degree inbuilding construction technology,engineering, industrial hygiene, safety,or public health, or (2) 4 years of

experience managing an occupationalhealth and safety program, or (3) anadditional 2 years of experienceteaching adults.

The final rule has been revised,however, to require training managers tomeet any one of the four prerequisitesnow listed at § 745.225(c)(1). Asdiscussed later in this section of thepreamble, the prerequisites contained inthe final rule are different from thoseproposed and include the addition of afourth alternative prerequisite under§ 745.225(c)(1)(iv).

Additionally, the final rule no longercontains the requirement that alltraining managers possess eithertraining or education in teaching adults.The Agency’s decision to eliminate thetraining or educational requirement inadult education was based on its reviewof several comments. These commentssuggested that, although training orexperience in adult education may bevaluable, it should not be required of alltraining managers, given that theprimary function of the trainingmanager is to administer and manage atraining program—not necessarily toinstruct adults. The Agency agrees withthese comments, but notes that the finalrule maintains the 2 years of experiencein adult education as one of the fourprerequisites that can now be used toqualify an individual as a trainingmanager.

The decision to retain the 2 years ofexperience in adult education as one ofthe four available prerequisites forqualifying training managers is based onseveral factors. The most importantfactor is the Agency’s desire toaccommodate the broad range of workexperience and educationalbackgrounds that training managers andinstructors may bring to their work. Thisapproach, which most commenterswidely supported, has been retainedand further extended under§ 745.225(c)(1) of the final rule.

For instance, in addition torecognizing bachelor or graduate leveldegrees in building construction,engineering, industrial hygiene, safetyor public health, the final rule alsowould permit individuals who possessa degree in business administration oreducation to assume the responsibilitiesof a training program manager.

Although these experiences maydiffer from one another, the Agencybelieves that an individual caneffectively utilize them to ensure thedevelopment of a quality trainingprogram. Furthermore, the Agency’s rolein the accreditation process also willcontribute to the development andestablishment of quality lead-basedpaint activities training programs.


3. Prerequisites—principalinstructors. The final rule also providesa great deal of flexibility in recognizingthe work experience and educationalbackgrounds of principal instructors.For example, instead of specificallylisting the type of training, experienceor education in teaching adults that aprincipal instructor must possess—ashad been proposed—the final rule nowrequires only that a principal instructorpossess demonstrated experience inteaching adults. This change is based onnumerous comments that objected to thespecificity in the proposed rule,particularly the requirement thatprincipal instructors do one of thefollowing: (1) Complete a 40-hour train-the-trainer course, or (2) obtain a degreein adult education, or (3) possess at least2 years of experience in teachingworkers/adults.

Most of the comments on thisrequirement stated that a 40–hour train-the-trainer course was too long and/orthat the educational degree or 2–yearwork experience requirement wasexcessive. Other commenters requestedclarification on what constituted 2 yearsof work experience, and noted that a40–hour train-the-trainer course was notavailable for the purposes of qualifyingprincipal instructors.

Based on its review of this proposedrequirement and in response to thesecomments, the Agency revised the finalrule to require that principal instructorspossess demonstrated experience,education or training in teachingworkers/adults, as well as a minimum of16 hours in lead-specific training.Commenters on the proposal also statedthat requiring principal instructors tohave 2 years experience in theconstruction industry would limit thenumber of qualified instructors. Inresponse, the Agency now requires thatprincipal instructors possessdemonstrated experience, education ortraining in lead or asbestos abatement,painting, carpentry, renovation,remodeling, occupational safety andhealth or industrial hygiene.

Although the term ‘‘demonstrated’’ isvery broad, the Agency believes that thefinal rule should accommodate the widerange of experiences that principalinstructors may have acquired inteaching adults. This requirement willallow an instructor to demonstrate,through a variety of materials—officialacademic transcripts, resumes, letters ofreference, certificates from trainingcourses—that they possess the skills orexperience necessary to provideeffective instruction. This approach ispreferable to attempting to develop anexhaustive list of work experiences oracademic degrees, that will invariably

omit an unthought-of, but relevant, jobtitle.

C. Accreditation Application ProcessThe Agency received a variety of

comments on the process of applying foraccreditation. Some commentersindicated that the Agency should haverequired more documentation as a partof the application process, while othercommenters felt that fewer documentsand less information were needed tocomplete an application package.

The information and materials to besubmitted by training programs as a partof the application process are specifiedat § 745.225(b)(1) in today’s final rule.With some minor exceptions, asdescribed below, EPA has retained mostof the information and documentationrequested from the proposed rule.

For example, the Agency will nolonger require that training programssubmit examples of course completioncertificates, since it is unlikely thatreceipt of such copies will help preventfraud or misrepresentation of suchcertificates.

As a matter of clarification, a fewcommenters thought that the proposedrule would have required that trainingprograms submit to EPA thedocumentation listed at § 745.225(c)(4),as proof of the qualifications of itsinstructors. Under the final rule, theAgency has now clarified that it doesnot require these documents as part ofthe application process foraccreditation. Rather, they are to beretained at the training site and must bemade available to the Agency in theevent of an inspection, audit or anenforcement action.

Comments also were received askingthe Agency to specify the facilities andtype of equipment needed to deliverquality training, and clarification onwhether training programs shouldsubmit separate descriptions of facilitiesand equipment when conducting off-sitetraining.

In its review of these requests, theAgency believes that some commentersfelt EPA should assist the trainingcommunity in establishing a floor forthe type of equipment investments thata training facility should make. EPAdisagrees that it should play a directrole as a part of the regulatory processin these matters. The Agency alsobelieves it is not necessary to specify thefacilities, type of equipment and otherrelated details that training programsshould employ as a part of their routineoperations.

Rather, the Agency believes thattraining providers should review thecourse curriculum requirementscontained in § 745.225(d) of the final

rule, and, if possible, obtain copies of orinformation on the model coursecurricula developed by the Agency. Thistype of information should assist indetermining the type of equipment andother materials that will be needed toprovide instruction in lead-based paintactivities.

Other commenters asked the Agencyto specify the content of a course testblueprint and the activities that shouldbe included as a part of the hands-onassessment. The test blueprint shouldoutline the training objectives of thecourse. Presumably, these objectiveswill be the basis for developing coursetest questions, and providers shouldindicate that. The Agency does notbelieve it needs to further clarify, forqualified training providers, whatactivities constitute hands-on training.Training providers should be able todevelop suitable hands-on exercises tomeet the accreditation requirementsgiven the direction provided in the rule.

Several comments were received onthe Agency’s requirement that, in orderto provide refresher training courses inone or more disciplines, a trainingprogram must either simultaneouslyapply for accreditation to teach thecorresponding full length course(s) oralready be accredited to teach thecorresponding course. Among thecomments received on this requirement,a small majority favored it.

Despite this support, the Agency haseliminated this requirement for severalreasons. One is that the Agencyrecognizes that under the grandfatheringprovisions contained in § 745.226(d)there is likely to be a high level ofdemand for refresher training, once§ 745.225 becomes effective. Therefore,the Agency believes that maximizing theopportunities for providers to offerrefresher training courses will benecessary to assist the trainingcommunity in meeting the demand forthese courses. Under § 745.225(e),training programs will be required tolink the instruction and testing providedin a refresher training course with thecourse topics contained in § 745.225(d),as appropriate. This will help ensureconsistency between EPA’s full-lengthand refresher training curricula.Furthermore, the policy of permittingtraining programs to offer refresher-onlytraining—without a precondition ofoffering full-length courses—isconsistent with other Agency directivesand policies issued under the AsbestosHazard Emergency Response Act of1986.


D. Re-accreditation of TrainingPrograms and Quality of Instruction

Section 745.225(f) containsrequirements to ensure the continuedavailability of quality training byrequiring training providers to apply forre-accreditation every 4 years. Thereaccreditation process is very similar tothe initial application process.

Commenters were generallysupportive of the requirements for re-accrediting training providers, althougha few commenters suggested thattraining providers should be re-accredited more frequently than every 3years. They reasoned that re-accreditation is necessary more thanonce every 3 years because of rapidtechnological changes in the lead-basedpaint activities field and the need toensure that training courses provideinstruction in the most currenttechnology.

The Agency disagrees with thiscomment. Under the accreditationprogram established by today’s finalrule, EPA will maintain a list ofaccredited training programs. When atechnological advance or othersignificant information develops thatEPA believes would benefit the lead-based paint activities trainingcommunity, EPA will provide thisinformation to the accredited trainingproviders. The Agency believes thatkeeping training providers informed ofrecent advances in technology allowstraining providers to be re-accreditedevery 4 years.

Some commenters expressed concernthat the rule would not ensure that atraining program would continue tooffer the same quality of instruction inthe years after initial accreditation.Further, these commenters wereconcerned that the proposed re-accreditation requirements did not fullyaddress this issue. In response, theAgency has changed the final rule torequire that training providers include adescription of changes to trainingfacilities or equipment since their lastapplication was approved. Thisdescription should only includechanges that would adversely affect theability of students to learn. An exampleof such a change would be the loss offacilities to be used for hands-oninstruction.

In order to further improve the qualityof instruction, the Agency is exploringthe possibility of providing pass/faildata from the third-party certificationexam to training providers for theirstudents. This information can be usedby the provider to adjust theircurriculum or instruction over time to

maintain an acceptable (as determinedby the provider) pass rate.

VI. Response to Comments on theTraining and Certification ofIndividuals

Today’s final rule recognizes fivework disciplines: inspector, riskassessor, supervisor, abatement worker,and project designer. Trainingrequirements and certificationprocedures for individuals workingwithin these disciplines are establishedunder § 745.226 of this rule. Theseinclude specific training, educationand/or experience requirements and, forthe inspector, risk assessor andsupervisor disciplines, passage of acertification examination.

In response to comments, the Agencyhas simplified the titles for some of thework disciplines: the ‘‘inspectortechnician’’ is now called the‘‘inspector’’; the ‘‘inspector/riskassessor’’ is simply the ‘‘risk assessor’’;and the ‘‘project designer/planner’’ isnow the ‘‘project designer.’’

Under today’s final rule, certifiedindividuals may only perform lead-based paint activities in the followingwork disciplines:

Certified inspectors may performinspection and abatement clearanceactivities as described in § 745.227(b)and (e)(8) and (e)(9);

Certified risk assessors may performinspection, abatement clearance, lead-hazard screen or risk assessmentactivities, as described in § 745.227(b),(c), (d), and (e)(8) and (e)(9); and

Certified supervisors, abatementworkers and project designers mayperform abatement activities asdescribed in § 745.227(e).

The final rule also does not limit ordefine the circumstances under which aproject designer must be used. In theproposal, the Agency would haverequired the use of a project designer onall abatement projects of 10 residentialdwellings or more. The Agency isconcerned that such a requirementwould be too inflexible and would notaccount for the varying complexity ofabatement projects. The Agency did notfind compelling support amongcommenters for this provision, and ithas been eliminated. The Agency willprovide training and certification forindividuals who seek to offer abatementproject design services, but it is thebuilding owner who must decide if aproject designer is needed on aparticular project.

Another change to the final rule is theextension of the recertification intervalfrom the 3 years proposed to 5 years, forindividuals who have passed aproficiency test as part of their training.

(See the discussion of proficiencytraining in Unit V. of this preamble).The rationale for this change is thatsuch an individual will havedemonstrated a high level of proficiencyin the field in which they are certified,and thus it is presumed that they wouldrequire less frequent re-training.

Comments on the training andcertification requirements forindividuals working in the lead-basedpaint activities field focused on two keyareas: the applicability of specificeducation and experience prerequisitesas a part of the certification process; andthe use of an examination in thecertification process.

A. Training, Education and/orExperience Requirements

In general, commenters agreed withthe proposed rule’s five designated workdisciplines and the lead-based paintactivities associated with each, withsome minor exceptions. A key issueraised by commenters, however, was theAgency’s establishment of specificeducation and/or experiencerequirements.

Although the Agency neitherproposed nor requested commentspecifically on the possibility ofexempting any industry or group ofprofessionals from either part or all ofits proposed training and certificationrequirements, several requests werereceived for such exemptions.Commenters submitted requests forsome type of exemption for thefollowing professions, among others:certified industrial hygienists,professional engineers, licensedarchitects, toxicologists, codeenforcement officials, safetyprofessionals, nurses, social workersand environmental professionals, and‘‘experienced’’ State and local healthofficials.

Among the comments in support ofexemptions, proposals ranged fromblanket exemptions to, more commonly,various forms of partial exemptions. Atleast one commenter provided analternative training course deemed moresuitable to its members than the courseproposed by EPA. This commenter alsorequested that the Agency recognizevarious levels of competency among themembers of its organization, andsuggested a tiered approach forexempting individuals from particulartraining requirements to address thoselevels of competency.

Although most of the commenterswere seeking an exemption from thetraining and certification requirementsfor the risk assessor discipline, othersimilar requests were sought for the


supervisor, project designer andinspector disciplines.

Commenters representing varioustrade organizations based their reasonsfor seeking a training exemption on thelevel of education and/or experiencetheir professional members alreadypossess. In some instances, commentersalso referenced an existing certificationprocess that their members mustundergo and implied that thiscertification process equaled orexceeded the certification processproposed by the Agency for lead-basedpaint professionals.

In general, the Agency agrees that thebasic work experience and/oreducational requirements of manynationally recognized certificationprograms either meet or exceed theexperience and/or educationalprerequisites contained in today’s finalrule under § 745.226(b) and (c). Severalof these certification programs arecovered by § 745.226(b)(1)(iii)(B)(3) ofthe rule, including programs sponsoredby the American Board of IndustrialHygiene, the National Society ofProfessional Engineers and the Board ofCertified Safety Professionals.Additionally, members of otherorganizations who possess theminimum work experience and/oreducational requirements contained in§ 745.226(b) or (c) also may qualify tobecome certified under today’s finalrule.

However, the Agency disagrees thatwork experience and/or educationalprerequisites alone ought to besufficient for the purposes of certifyingindividuals to conduct lead-based paintactivities. Further, the Agency does notbelieve that the certification programsidentified by commenters adequatelyaddress and specifically providetraining in the identification, evaluationand abatement of lead-based paint andits associated hazards. Notably, none ofthe commenters provided the Agencywith evidence of a currently availabletraining course and/or module thatexpressly addresses lead-based paintactivities as part of their professionalcertification process. Furthermore,commenters did not present evidencethat their certification programsincluded hands-on instruction in theconduct of lead-based paint activities,which is a critical element of thetraining courses in today’s final rule.

Therefore, although the certificationrequirements contained in § 745.226(b)and (c) recognize a broad range of workexperiences and educationalbackgrounds as the first step inqualifying to become an inspector, riskassessor, supervisor, project designer orabatement worker, the final rule does

not provide for any training exemptions.A primary reason is that the lead-basedpaint activities field is a new field, andthat a majority of the individualsentering it—despite their expertise insimilar fields—may not possess eitherdirect experience, or an education thathas focused on the identification andelimination of lead-based paint hazards.Consequently, the Agency believes that,in most cases, individuals entering thelead-based paint activities field willneed specialized training. The Agency iswilling to work with professionalorganizations and other groups thatwant to develop training courses fortheir members that meet EPA’saccreditation requirements.

However, the Agency is aware thatthere are individuals and groups whohave been working in the lead-basedpaint activities field prior to thepromulgation of today’s final rule.These individuals need to reference§ 745.226(d) of the final rule whichcontains the Agency’s criteria forrecognizing the work experience,education and training, or on-the-jobtraining that individuals may havereceived prior to the effective date of§ 745.225.

If an individual determines that he orshe meets the requirements contained in§ 745.226(d), the individual may applyfor certification under the reduced set ofrequirements and within the limitationscontained in that section. Under theserequirements, qualified individuals arerequired to successfully complete arefresher training course specific to thecertification they are seeking, and ifrequired under § 745.226(b), to pass acertification examination.

In addition to the broad issue ofexemptions, comments also werereceived on various educational andexperience requirements specific to theinspector, risk assessor and supervisordisciplines. Under the proposed rule,the Agency had opted not to imposeeducational and experiencerequirements for either the abatementworker or project designer. This wasdue primarily to language in Title X,section 1004(3)(B)’s definition of‘‘certified contractor’’ as it pertains tothese two disciplines.

However, based on overwhelmingsupport among commenters, today’sfinal rule adds educational andexperience requirements for the projectdesigners, though not for workers. Theserequirements are contained in§ 745.226(c)(1)(ii)(B), and include either:(1) A bachelor’s degree in engineering,architecture, or a related profession and1 year of experience in buildingconstruction and design or a relatedfield; or (2) 4 years of experience in

building construction and design or arelated field.

The basis for this requirement isEPA’s belief, as reflected by a majorityof commenters, that a project designershould have significant workexperience, or a professional degree andsome experience, in building design, ora related field, such as architecture orcivil engineering.

Although the support was not nearlyas broad or consistent, commenters alsoasked for modifications to the educationand experience requirements for theinspector and risk assessor disciplines.Specifically, some commenterssuggested that the Agency require thatan inspector possess at least a highschool diploma or equivalent to obtaincertification. The Agency declined toinclude this requirement as a part of thecertification process for inspectors, inpart, based on its desire to provideindividuals with an entry level positioninto the lead-based paint activities field.In response to comments that a highschool degree or equivalent is needed toensure a minimum level of competencyamong inspectors, the Agency believesthat its training requirements and thecertification examination will ensure anacceptable level of competency.

In the case of education and/orexperience requirements for riskassessors, the proposed rule has beenmodified at § 745.226(b)(1)(iii)(B) toclarify the various mixes of educationand experience that are acceptable forcertification as a risk assessor. Asdiscussed in the proposed rule, theeducational and experiencerequirements for risk assessors areextremely important, given the pivotalrole of a risk assessor in evaluating andpresenting options to reduce lead-basedpaint hazards. The certified risk assessormust be qualified to make a competent,and rational assessment of the locationand severity of any lead-based painthazards. Based on that role, the Agencyhas developed work experience and/oreducational prerequisites, which incombination with the training containedin § 745.225(d)(1) and (2) and the workpractice standards contained in§ 745.227(b), (c), (d) and (e), will enablethe risk assessor to identify risksassociated with lead-based painthazards and to develop options toeliminate those hazards.

These credentials are very similar tothose contained in the proposed rulewith the exception that certifiedindustrial hygienists, professionalengineers, registered architects andother professionals listed under§ 745.226(b)(1)(iii)(B)(3) are not requiredto possess 1 year of experience beforebecoming trained as risk assessors. The


decision to eliminate the 1 year ofexperience was based on the Agency’sreview of comments and the fact thatmany professional certificationprograms already incorporate variouswork experience prerequisites, which insome cases are comparable to theprerequisites listed in the proposed rule.

For example, to register as aprofessional engineer, an individual isrequired to possess a 4–year degree, and4 years of progressive experience onengineering projects. The program forcertified safety professionals alsoincludes a 4–year degree and the 4–yearwork experience requirement.

Furthermore, the Agency notes thatthe academic training of theseprofessionals also may cover subjectsrelating to building design,construction, environmentalremediation and other areas relevant tolead-based activities.

The Agency also notes that it does notnecessarily view the alternative workexperience and/or educationalprerequisites listed under§ 745.226(b)(1)(iii)(B) for risk assessors;§ 745.226(b)(1)(iii)(C) for supervisors;and § 745.226(c)(1)(ii)(B) for projectdesigners as necessarily equivalent.Rather, as was the case in establishingexperience and/or educationalprerequisites for training programmanagers and principal instructors, theAgency’s intention is to recognize abroad range of relevant qualificationsthat individuals entering the lead-basedpaint activities field are likely topossess.

For example, the experience andeducation of a certified industrialhygienist who has worked in thechemical industry may be very differentfrom that of a professional engineer whohas worked in building construction.However, the Agency believes that boththese individuals can be trained as riskassessors.

B. Passage of the CertificationExamination

In addition to training requirementsand educational and experiencerequirements, individuals seeking tobecome certified as inspectors, riskassessors and supervisors are requiredto pass a certification examination, inaddition to a course examination. Thepurpose of the certification examinationis twofold.

One reason for the examination is toensure that each individual certifiedunder today’s regulations will possess aminimum, acceptable level ofknowledge and understanding of thetasks and responsibilities associatedwith the relevant work discipline. Othermajor functions of the certification

examination are to provide a universaltool to measure an individual’sknowledge, and to encourage States orTribes to enter reciprocal certificationarrangements with other States orTribes.

Comments on the utility of acertification examination were generallysupportive. Commenters understood thefunction of the examination and agreedto it in principle. Nonetheless,commenters, particularly Statecommenters, stressed that EPAincorporate security and quality controlmeasures to ensure the integrity of theexamination. Additionally, Statesindicated that they did not necessarilywant to adopt EPA’s certificationexamination, but might want to developtheir own examination or use the EPAexamination and add a State specificcomponent.

In response, outside the regulatoryframework of this rule, the Agency hasbeen working closely with the States todevelop a certification examination. Ingeneral, the goal of the certificationexamination process is to give eachState the flexibility it desires to fashionits certification program, while at thesame time ensure a consistent nationallevel of competence in the lead-basedpaint activities workforce. As currentlydesigned, the exam will includeprovisions to maintain the security ofthe item bank of questions.

VII. Framework for Work PracticeStandards for Conducting Lead-BasedPaint Activities in Target Housing andChild-Occupied Facilities

A. Introduction

Section 745.227 establishes standardsfor conducting three lead-based paintactivities: inspection, risk assessmentand abatement. In addition, § 745.227provides requirements for conductingthree related tasks that may beperformed as either single tasks or as apart of an inspection, risk assessment orabatement. These three tasks are: a leadhazard screen, laboratory analysis, andcomposite dust sampling. Section745.227 also establishes certainrecordkeeping requirements. Thissection of the rule also establishes thedates by which compliance with thesestandards and procedures is required.

The standards and procedures forconducting the lead-based paintactivities contained in § 745.227 arebeing issued under authority of TSCAsection 402(a), which directs EPA toissue such standards, taking intoaccount reliability, effectiveness andsafety.

B. Scope and Applicability

Under today’s final rule, the standardsfor lead-based paint activities containedin § 745.227 apply only in targethousing and child-occupied facilities.Standards for lead-based paint activitiesconducted in steel structures and publicand commercial buildings, which hadbeen proposed on September 2, 1994,will be addressed after further Agencyreview. A discussion of the Agency’sdecision to address steel structures andpublic and commercial buildingsoutside this rulemaking is presented inUnit II.A. of this preamble.

Another important feature of thestandards contained in § 745.227 is thatthey do not mandate circumstancesunder which any particular lead-basedpaint activity must be performed.Instead the decision to, for exampleconduct an inspection, is left to thebuilding owner.

Additionally, the Agency is preparinga rule under TSCA section 403 that willidentify conditions of lead-based paintand lead levels and conditions inresidential soil and dust that wouldresult in a hazard to building occupants.Although the TSCA section 403 rule hasnot yet been proposed, Agency guidanceon this subject was issued July 14, 1994,and is discussed in detail in Unit IV. ofthis preamble. The section 403Guidance also includesrecommendations on actions that can betaken in response to conditions of lead-based paint and lead levels andconditions in residential soil and dust.

Until the final section 403 rule ispromulgated, the Agency recommendsthat individuals and firms refer to thesection 403 Guidance for assistance inidentifying the presence of a lead-basedpaint hazard and deciding whether toconduct lead-based paint activities.

The primary purpose of the standardsin today’s final rule is to providecertified individuals and firms with aset of minimum requirements to befollowed when conducting inspection,risk assessment or abatement activities.These requirements are primarilyprocedural in nature: for inspection, riskassessment and abatement activities, thestandards specify the steps that EPAbelieves must be taken to conduct thoseactivities safely, effectively and reliably.For abatement activities, the standardsalso place restrictions on certaintechniques used to eliminate lead-basedpaint.

C. Use of Guidance and RecordkeepingRequirements

Today’s final rule does not prescribedetailed work practices that should befollowed for each unique situation in


which lead-based paint activities maybe conducted. For that level of detail,individuals should consult Federal andState guidance that provides specificinstruction on how to conductinspection, risk assessment andabatement activities. These guidancedocuments include: the U.S.Department of Housing and UrbanDevelopment’s Guidelines for theControl of Lead-Based Paint Hazards inHousing (HUD Guidelines) (Ref. 6), thesection 403 Guidance, EPA’s ResidentialSampling for Lead: Protocols for Dustand Soil Sampling (Ref. 7), and anyadditional guidance issued by States orIndian Tribes that have been authorizedby EPA under § 745.324 of this rule.While not regulatory requirements,these documents are recommended bythe Agency because they providereliable and effective information onthis subject. Additionally, trainingcourses that have been accredited byEPA or an EPA-authorized State or Tribewill provide detailed instruction oninspection, risk assessment andabatement standards andmethodologies.

To complement the existing guidancedocuments, the Agency is currentlypreparing a technical guidancedocument as a companion to this rule.The Agency will distribute thisguidance document to accreditedtraining providers, the lead-based paintactivities contracting community, andState and local governments, prior to thedate that compliance with § 745.225 ofthis rule is required.

In its decision to recommendguidance as an adjunct to therequirements at § 745.227, the Agencycarefully considered several factors,including enforcement issues andcomments received from the public onthis approach.

With regard to enforcement, many ofthe work practice standards containedin § 745.227 of today’s final rule, suchas sampling methodologies and visualinspection techniques, refer to guidance.As a result, the Agency recognizes thatthere are questions about the extent towhich it will be able to take anenforcement action against individualswho choose not to use the variousguidance recommended by EPA.Nonetheless, the Agency has manyreasons for deciding to reference anddevelop guidance as a supplement tothis rule, rather than to promulgate rigidwork practice standards.

The September 2, 1994 proposalspecifically requested comments on theuse of guidance as a supplement to therule’s basic regulatory requirements. Ingeneral, the majority of commenterssupport the use of guidance as a

supplement to the regulatoryrequirements contained in § 745.227. Insome cases, commenters directlyexpressed their support, whereas inother cases, commenters expressedneither support nor opposition. Overall,the Agency believes that commentersaccepted its proposed approach ofreferring to guidance.

The Agency believes there are severalreasons to recommend guidance ratherthan to establish detailed national workpractice standards for the purposes ofproviding instruction on how toconduct specific lead-based paintactivities.

First, as discussed in the September1994 proposed rule, the Agency drewfrom a large body of existinginformation and research, and the inputfrom a broad range of individuals andgroups, to develop its proposedregulatory standards for lead-basedpaint activities. Based on thatinformation and input, the standardsproposed in September included strictreporting requirements anddocumentation of the quality controlmeasures and methodologies employedwhen conducting inspection, riskassessment and abatement activities.These reporting and documentationrequirements remain a criticalcomponent of the standards establishedby today’s final rule. In combinationwith the rule’s basic work practicestandards, training, certification andaccreditation requirements, thereporting/documentation activities willhelp to ensure the effectiveness of thestandards and facilitate the use ofguidance.

A second reason for relying on non-regulatory guidance instead of rule-based standards is the number ofdifferences that can be found in thestructure, design and occupant usepatterns of the residential dwellings andchild-occupied facilities covered by thisrule. For example, under the standardsfor conducting a risk assessment at§ 745.227(d)(4), a risk assessor isrequired to collect dust samples inrooms where children aged 6 years andunder are most likely to come intocontact with dust. The rule does notprescribe precisely which rooms or howmany samples to collect, because therisk assessor needs to consider site-specific variables to determine whichrooms should be sampled and thenumber of samples that should be takenfrom each room. These variablesinclude: the size and number of roomsin the building; interior design elementsin a building and differences indesignated play areas for a child; thelocation of windows and doors; thecondition of door frames, window

troughs and stools; and occupant usepatterns.

As a specific example, in a smallresidential dwelling, a child may nothave a separate playroom, but may playin selected areas of one room or more,such as a corner in a living room ordining room, or may have a bedroomthat doubles as a playroom. On the otherhand, in a large residential dwelling, achild may have a separate playroom andbedroom, and certain areas in a livingroom or family room for play activity.Furthermore, a child’s pattern of use ina residential dwelling can varyconsiderably, and that pattern may onlybe possible to determine through aninterview with a guardian.

Based on these and other variablesthat may be encountered whenconducting a risk assessment,inspection or abatement, the Agencybelieves that to try to anticipate andattempt to list all circumstances thatmay be encountered would make theregulation overly prescriptive and rigid.However, by establishing minimumrequirements and basic procedures forconducting inspection, risk assessmentand abatement activities, the Agency issetting a safe, reliable and effectivebaseline of steps for certifiedindividuals and firms to follow to makesound decisions based on site-specificconditions.

A third reason for the Agency’sdecision to avoid being overlyprescriptive is the state of technologywithin the lead-based paint activitiesfield. Although there has been progressin the development of new technologiesto support specific lead-based paintidentification techniques and abatementmethods, the Agency recognizes that thefield is advancing and that thetechnologies and methods that will helpdefine it are still evolving.

Consequently, the standardscontained in today’s final rule do notspecify that certain technologies ormethods be utilized for sampling andanalysis. Additionally, the rule does notprescribe any specific methods ortechnologies for conducting anabatement, although it does restrictcertain work practices known to poserisks to building occupants, workers andthe environment.

As had been proposed, today’s finalrule relies on the use of documentedmethodologies that incorporateadequate quality control measures.These methodologies and measures areavailable in existing Federal and Stateguidance documents, and will be taughtat accredited training programs.

Although not overly detailed orprescriptive, EPA believes that the workpractice standards contained in today’s


final rule under § 745.227 provide abaseline, which in combination with thetraining, certification and accreditationrequirements contained in §§ 745.225and 745.226, will ensure that lead-basedpaint activities are conducted reliably,safely and effectively.

VIII. Response to Comments on WorkPractice Standards for ConductingLead-Based Paint Activities in TargetHousing and Child-Occupied Facilities

A. Conflict of Interest

In its September 2, 1994 proposal,EPA requested comment on whether topreclude individuals or firmsconducting abatement activities fromperforming inspection and riskassessment activities, and fromperforming clearance proceduresfollowing an abatement. Although manypublic commenters supported arequirement that inspection, riskassessment and clearance procedures beconducted by individuals and firmsindependent of the individuals andfirms conducting abatements, today’sfinal rule does not include such arequirement.

The Agency agrees with othercommenters—those who did notsupport a conflict-of-interestrequirement—that the potentialconvenience and cost savings of hiringone firm, as opposed to two or threefirms, should not be denied to propertyowners. The Agency also notes thatthere may be instances in which, due toa regional scarcity of lead-based paintprofessionals, it may be cost prohibitiveor logistically difficult for a buildingowner to hire two different companies.

Nonetheless, the Agency believes thatparties involved in lead-based paintactivities should avoid situations ofpotential conflict of interest. Throughvarious public education and outreachprograms, sponsored by both public andprivate organizations including EPA, theAgency believes that over time, thepublic’s awareness and understandingof the options available for identifyingand managing lead-based paint hazardswill improve. With this knowledge,property owners and building occupantswill be able to determine the value ofhiring more than one firm to assist inevaluating, controlling or eliminatinglead-based paint hazards.

Furthermore, to assist buildingowners and other individuals or firmsthat may contract for the services of alead-based paint contractor, EPArecommends that inspectors, riskassessors and other lead-based paintactivities contractors disclose anypotential conflicting financial interest in

the reports that they prepare pursuant to§ 745.227(h).

B. InspectionThe objective of an inspection is to

determine, and then report on, theexistence of lead-based paint through asurface-by-surface investigation of aresidential dwelling or child-occupiedfacility. As such, an inspection involvesidentifying the presence of lead in paint.An inspection does not include takingdust or soil samples. An inspectionmust be conducted by either a certifiedinspector or a certified risk assessor, andmust include the provision of a reportexplaining the results of theinvestigation.

The inspection standards contained in§ 745.227(b) reflect the Agency’sdecision not to provide detailedregulatory requirements on how toperform specific lead-based paintidentification tasks, such as taking apaint chip sample or using an X-rayfluorescence (XRF) device. In the finalrule, the Agency also has removedspecific requirements to use the HUDGuidelines when collecting paint chipsamples or when using an XRF deviceto test for the presence of lead-basedpaint.

Instead, the Agency requires that alead-based paint inspection beconducted using documentedmethodologies and adequate qualitycontrol measures. These documentedmethodologies are defined as methodsor protocols used to sample for thepresence of lead in paint, dust, and soil.Documented methodologies that areappropriate for the purposes of thissection may be found in: (1) The HUDGuidelines; the EPA Guidance onResidential Lead-Based Paint, Lead-Contaminated Dust, and Lead-Contaminated Soil (60 FR 47248); theEPA’s Residential Sampling for Lead:Protocols for Dust and Soil Samplingand other EPA sampling guidance; and(2) Regulations, guidance, methods orprotocols issued by States and IndianTribes that have been authorized under§ 745.324. Additionally thesemethodologies will be included inEPA’s technical guidance on lead-basedpaint activities.

Although commenters generallysupported this approach, at least threeresponses suggested that the Agencyprovide detailed regulations for lead-based paint testing. However, one ofthese commenters indicated thatguidance may be an acceptableapproach for establishing testingprotocols. These commenters wereconcerned about the enforcement issuesassociated with the rule’s dependenceon documented methodologies, which

to date have only been issued by HUD,EPA and various State agencies,primarily as guidance.

However, other commenters did notobject to the Agency’s use ofdocumented methodologies, providedthat records are kept as part of theinspection, and that such methodologiesare acknowledged as documentedmethodologies by EPA through futureguidance or regulations. As discussed,the Agency is currently preparing atechnical guidance document forconducting lead-based paint activities.Additionally, it is possible that theAgency may amend the regulation withmore detailed standards in the future, ifthere is a need to do so.

One reason commenters suggestedthat the Agency not require certaininspection techniques is that suchrequirements often have the effect ofdiscouraging the development ofemerging or new technologies. Forexample, the Agency currently does notrecommend that chemical test kits beused for lead-based paint testing (Ref.8). However, EPA recognizes that atsome point in the future, test kittechnology is likely to be improved sothat the kits can provide reliable testresults. At that time, the Agency will beable to recommend chemical test kits fortesting for the presence of lead in paint.

Two other key issues raised bycommenters were: (1) Potentiallimitations of the proposed proceduresfor conducting an inspection, assumingthat an inspection involves theinvestigation for lead-based paintthroughout an entire residentialdwelling or child-occupied facility,rather than a ‘‘partial inspection’’ of justone or more rooms in a residentialdwelling or child-occupied facility; and(2) the standard contained in§ 745.227(b)(2), which requires thetesting of all components of a residentialdwelling or child-occupied facility witha ‘‘distinct painting history,’’ yet allowsinspectors not to test those componentsdetermined by the inspector or riskassessor as having been replaced after1978.

1. Partial inspections. The Agencyrecognizes that there may be a demandfor lead-based paint identificationservices that do not involve a surface-by-surface investigation for the presenceof lead-based paint throughout an entireresidential dwelling or child-occupiedfacility. For example, a homeowner mayonly be interested in determining if leadis present in the paint in a child’sbedroom, not necessarily the entireresidential dwelling. In this instance, itis unlikely that the homeowner willwant to pay for an inspection, asdefined under today’s regulations.


Although not required, the Agencyrecommends that a certified inspector orrisk assessor be used in cases, such asthese, where an individual or firmbelieves it is only necessary to conducta ‘‘partial inspection’’ of a property.

More specifically, in response tocommenters on this issue, the Agencybelieves that the definition of aninspection, which under § 745.227(b)requires that testing for lead-based painttake place throughout an entireresidential dwelling or child-occupiedfacility, is appropriate for severalreasons.

One reason is that the statutorydefinition of an inspection in section401(7) of TSCA calls for a ‘‘surface-by-surface investigation to determine thepresence of lead-based paint and theprovision of a report explaining theresults of the investigation.’’ Asdiscussed in the September 2, 1994proposal, the Agency believes that aninspection is intended to provide acomprehensive inventory of all lead-based paint in a residential dwelling orchild-occupied facility. As such, theAgency acknowledges, that the value ofa lead-based paint inspection mayappeal only to those individualsinterested in getting a complete reporton painted components in a residentialdwelling or child-occupied facility.Although it is difficult to predict, theAgency believes that such a report maybe of value to property owners ormanagers of large multi-familydwellings and child-occupied facilitiesand home buyers.

Furthermore, the Agency notes that itsinspection requirements are consistentwith general trends in the housingmarket, particularly in federally-ownedhousing or housing receiving federalassistance. That is, inspections are beingconducted to ensure that buildingowners are informed of the presence oflead-based paint throughout aresidential dwelling or child-occupiedfacility, not just one or two rooms.

Lastly, the Agency believes that byestablishing requirements only for‘‘whole house’’ inspections it will helpensure that the information needed todetermine whether lead-based paint ispresent in a residential dwelling orchild-occupied facility is accuratelypresented. Again, the Agency recognizesthat an inspection, as defined undertoday’s final rule, may not provide avalue to all persons. Nonetheless, theAgency believes that by requiring thatan inspection be conducted throughouta residential dwelling or child-occupiedfacility it will ensure that a personcontracting for the inspection willobtain accurate and reliable informationregarding the presence of lead-based

paint throughout a residential dwellingand child-occupied facility.

2. Distinct painting history. On theissue of inspecting and sampling allcomponents sharing a distinct paintinghistory, except those componentsreplaced after 1978, there are severalpoints that commenters raised. First,some commenters suggested that theproposed requirement to take onesample per component in every roomand one sample per exterior componentwith a distinct painting history wasoverly burdensome in that it requiredtaking an excessive number of samples.The assumption of these commenterswas that an inspection requires thateach and every painted componentthroughout a residential dwelling had tobe individually tested. The Agencywould like to clarify that an inspectiondoes not necessarily require that a largenumber of paint samples be taken.

To clarify this point, the Agencydirects commenters to carefully reviewthe definitions of ‘‘component’’ and‘‘distinct painting history’’ as containedin § 745.223 of today’s final rule.According to these definitions, in aroom with four walls painted at thesame time with the same paint, only onepaint sample would need to be taken tocharacterize the lead content of thepaint on the walls. This is because,although each wall can be considered aseparate ‘‘component,’’ the walls sharethe same distinct painting history. Onthe other hand, if there were windowframes in the room that had beenpainted with a different paint than thewalls (for example a semi-gloss insteadof a flat), two samples would need to betaken, one from the walls and one fromthe windows. As this exampledemonstrates, the Agency does notbelieve that an inspection will involveexcessive sampling.

In contrast, other commentersdisagreed with these requirements foran inspection, suggesting that theywould result in insufficient numbers ofsamples. Based on the definition of‘‘distinct painting history,’’ thesecommenters interpreted the proposal tomean that if all rooms in a residentialdwelling had been painted recently withthe same paint and in the same color(for example, a white latex paint), itwould be possible for an inspector totake only one paint sample from thehome.

In response, the Agency notes that inthis case it would be clear to aninspector that trim, doors, and windowsare usually painted with a differentpaint type. Determining the distinctpaint history of such componentsinvolves not just an examination of thevisible top coat, but the unique layers of

paint beneath the surface. A visibleexamination of these paint layers iseasily accomplished by making adiscrete incision into the paintedsurface.

C. Risk Assessment ActivitiesTSCA section 401(16) provides that

the objective of a risk assessment is todetermine, and then report, theexistence, nature, severity, and locationof lead-based paint hazards inresidential dwellings through an on-siteinvestigation. The definition alsoidentifies specific activities that will beemployed when conducting a riskassessment, including: (1) The gatheringof information regarding the age andhistory of the housing and occupancy bychildren aged 6 years and under, (2)visual inspection, (3) limited wipesampling or other environmentalsampling techniques, (4) other activityas may be appropriate, and (5) theprovision of a report explaining theresults of the investigation. Thisdefinition of risk assessment serves asthe basis for the standards andprocedures associated with a riskassessment contained in § 745.227(d).

The risk assessment procedures intoday’s final rule, as in the proposal,require the risk assessor to make arecommendation of lead hazard controlstrategies to address all lead-based painthazards identified as a result of the riskassessment. This activity was notenumerated in the statutory definition,but was added pursuant to TSCAsection 401(16), which stated that a riskassessment may include ‘‘otheractivities’’ as may be appropriate.

The Agency’s reason for adding thisrequirement was to ensure that theindividual or firm hiring or contractingfor the services of a risk assessor wasprovided with some reliable guidanceon how to respond to the results of arisk assessment.

1. Lead hazard screen. Pursuant toTSCA section 401(16), a risk assessmentmay include ‘‘other activities’’ as maybe appropriate. Based on this language,today’s final rule also includes the ‘‘leadhazard screen,’’ as a risk assessmentactivity. The requirements for the screenare contained in § 745.227(c). Thereason for including a lead hazardscreen in the proposal and today’s finalrule is to, where appropriate, avoid thecosts of conducting a comprehensiverisk assessment, particularly in well-maintained housing and child-occupiedfacilities constructed after 1960, or inhousing and child-occupied facilitiesconsidered unlikely to have significantlead paint, dust or soil hazards.

The Agency received two commentson the addition of a lead hazard screen


as a risk assessment activity; onecommenter noted that the Agencyneeded to list more explicitly standardsfor conducting a lead hazard screen.

The commenters also agreed that thelead hazard screen should focus ondetermining the absence of a lead-basedpaint hazard, rather than the presence ofsuch a hazard and the risks it may poseto building occupants. In response,today’s final rule includes specificprocedures and standards forconducting a lead hazard screen in§ 745.227(c). Furthermore, because thelead hazard screen employs highlysensitive evaluation criteria and limitedsampling, the Agency believes that thesestandards will provide the risk assessorwith a basis for determining the absenceof lead-based paint hazards.

If any one of the dust samplescollected during a lead hazard screencontains a lead level greater than one-half of the applicable clearance level forthe tested component, or if any sampledpaint is found to be lead-based paint,that is an indication, but not arequirement, that the residentialdwelling should undergo a full riskassessment. As discussed subsequentlyin this preamble, clearance levels forspecific components can be found in theHUD Guidelines and in EPA’s section403 Guidance, as well as in several Stateguidance documents.

Clearance levels are used as the basisfor determining whether a lead-basedpaint abatement has been successfullycompleted and that a residentialdwelling or child-occupied facility maybe re-occupied (if building occupantswere relocated during an abatement).Currently, under the section 403Guidance, clearance levels for dust alsoserve as the levels for determining thepresence of lead-contaminated dust,which may pose a lead-based painthazard. A standard for the lead hazardscreen of one-half of the applicableclearance levels is extremely stringent.As such, the Agency believes that a dustsample containing less than that level isa reliable indicator that there are nolead-based paint hazards. The workpractice standards and evaluationcriteria for a lead hazard screencontained in § 745.227(c) are modeledafter the HUD Guidelinesrecommendations for conducting a leadhazard screen.

As discussed previously in thepreamble, the Agency recommends thatthe lead hazard screen be used primarilyin well-maintained homes constructedafter 1960. According to HUD, it isestimated that approximately 37 millionprivately owned homes and 428,000public housing units, or roughly 90percent of the nation’s housing stock

built prior to 1960, contain lead-basedpaint. Generally, if maintenance hasbeen deferred on these homes, there isa high probability for the presence ofsome deteriorated lead-based paint and/or lead-contaminated dust.

Consequently, the value and any costsavings that may be achieved byconducting a lead hazard screen inpoorly maintained, pre-1960 homes,rather than a full risk assessment, maynot be realized. For instance, in a pre-1960 home with several componentsthat have deteriorated paint, in practice,just as many deteriorated paint surfaceswill be tested for a lead hazard screenas for a risk assessment. However, whenconducting the lead hazard screen, arisk assessor is not required to attemptto determine whether those surfacespose a lead-based paint hazard.

In fact, homeowners and buildingowners may decide that a lead hazardscreen would merely add time and costto the evaluation process in propertiesthat would more likely benefit from arisk assessment. These benefits includea comprehensive report, not only on theexistence of lead-based paint hazards,but also on the nature, severity, andlocation of those hazards. Furthermore,the risk assessment also would provideoptions on how to reduce or eliminatethe lead-based paint hazards.

Other standards and activitiesrequired as a part of the lead hazardscreen in § 745.227(c) include: (1) Thecollection of background informationregarding the physical characteristics ofthe residential dwelling or child-occupied facility and occupant usepatterns that may cause lead-based paintexposure to one or more children age 6years and under, (2) a visual inspection,(3) the sampling of components withdeteriorated paint with a distinctpainting history in poor condition, (4)the collection of a minimum of twocomposite dust samples (one for floorsand one for windows), and (5) thepreparation of a report on the results ofthe screen. Specifically, § 745.227(c)requires that in a residential dwellingtwo composite samples be taken—onefrom the floors and one from thewindows in rooms where one or morechildren, age 6 and under, are mostlikely to come into contact with dust.Additionally, in multi-family dwellingsand child-occupied facilities, compositedust samples are to be taken from anycommon areas where one or morechildren age 6 years and under arelikely to come into contact with dust.

2. Risk assessment. In addition to therequirements of a lead hazard screen,the standards for a risk assessmentcontained in § 745.227(d)(3) alsoinvolve the collection and review of

background information regarding thephysical characteristics of a building,and the occupant use patterns that maypose a lead-based paint hazard tochildren aged 6 years and under. Morethan two dust samples and soil samplesalso may be required under§ 745.227(d)(4), (5), (6) and (7),respectively. Lastly, the risk assessmentreport must include options forreducing and/or eliminating lead-basedpaint hazards.

The requirements contained in§ 745.227(d) of today’s final rule differfrom those proposed in September 1994in that they reflect the Agency’sdecision to reduce the detail andspecificity of the rule. However, basedon the documentation andrecordkeeping requirements for a riskassessment, and the rule’s training,certification and accreditationrequirements, the Agency believes thatthe standards contained in today’s finalrule will promote reliable, safe andeffective risk assessments.

For example, the proposed rulespecified several items of information tobe collected as background informationduring a risk assessment, including theage of the building and any additionsbeing evaluated, copies of any previousinspection reports, and a schematic siteplan of the building. In its review of thecomments on the proposed rule, theAgency noted that many of theserequirements would be met during thepreparation of a risk assessment report.For instance, among the items to bepresented in a risk assessment report, ascontained in § 745.227(d)(10) are: thedate of construction of the building,data collected as a result of any previousinspection or other analyses available tothe risk assessor, and the specificlocations of any identified lead-basedpaint hazards or potential hazards.

In eliminating specific instructionsregarding the background information tobe collected, the Agency believes thatthe standards for conducting a riskassessment have been simplifiedwithout diminishing the reliability,safety, and effectiveness of thosestandards. This is because today’s finalrule has eliminated the duplicativereporting requirements included in theSeptember 2, 1994 proposal by requiringthat the information only be containedin the risk assessment report.

In addition to these changes, theAgency has slightly modified§ 745.227(d)(10)(xviii), which requires arisk assessor to provide options foreliminating and/or reducing lead-basedpaint hazards in the risk assessmentreport. Under the proposed rule, the riskassessor would have been required toprovide not only options, but to


recommend one option over anotherand to include a rationale orjustification for his or her selectedoption. The final rule no longer requiresthe risk assessor to recommend oneoption over another, provided therecommended options are all presentedin the risk assessment report.

These changes were largely based oncomments urging the Agency to allowthe individual or firm contracting forthe risk assessment to select from theoptions presented in the report.Although the Agency does notnecessarily believe that the proposedrequirements would have forced abuilding owner to select the optionrecommended by a risk assessor, theAgency is willing to provide buildingowners with more flexibility inreviewing risk assessment reports andselecting among remediation options.

In response to comments on thelatitude a risk assessor is given indetermining dust sampling locationsand the extent of paint deterioration, theAgency believes, as discussed in UnitVI.A. of this preamble, that because therisk assessor will be a trained specialistequipped with the requisite professionaljudgement needed to evaluate lead-based paint hazards, added specificity isunnecessary in the rule. The Agencyalso stresses that due to majordifferences in the structure, design andcondition, and occupant use patterns ofvarious buildings, it is best not toidentify specific room locations, e.g.,kitchen, playroom, bedroom, for thepurposes of sampling dust. Instead, theregulations in § 745.227(d)(4), (d)(5),and (d)(6) require that dust samples becollected in rooms and areas whereyoung children are most likely to comeinto contact with dust.

Similarly, the final rule clarifies thatonly deteriorated paint with a distinctpaint history found to be in poorcondition shall be sampled for thepresence of lead. ‘‘Paint in poorcondition’’ is defined in today’s finalrule as more than 10 square feet ofdeteriorated paint on exteriorcomponents with large surface areas; ormore than 2 square feet of deterioratedpaint on interior components with largesurface areas (e.g., walls, ceilings, floors,doors); or interior or exteriorcomponents with small surface areas(window sills, baseboards, soffits, trim)on which more than 10 percent of thetotal surface area of the component isdeteriorated. This determination is to bemade by the risk assessor based on adocumented methodology such as theHUD Guidelines.

As discussed earlier in Unit VII.C. ofthis preamble, such locations includethe playrooms and bedrooms of

children, kitchens, and living rooms, aswell as common areas associated with aresidential dwelling or child-occupiedfacility.

The Agency also reiterates thatdetailed instruction on where and howto sample dust is included in the HUDGuidelines, existing EPA guidance andvarious State regulations and guidancedocuments, and that these instructionswill be taught in accredited trainingprograms and included in future Agencyguidance.

Lastly, the Agency has clarified thestandards for collecting soil samplescontained in § 745.227(d)(7) such thatsamples need only to be taken fromexterior play areas and dripline/foundation areas where bare soil ispresent. This requirement is in keepingwith the statutory definition of lead-contaminated soil, which basically isthe same definition used in today’s finalrule. As defined in § 745.223, lead-contaminated soil means bare soil onresidential real property and on theproperty of a child-occupied facility thatcontains lead at or in excess of levelsdetermined to be hazardous asidentified by the EPA Administratorpursuant to TSCA section 403.Guidance on how to collect bare soilsamples is provided in EPA’sResidential Sampling for Lead:Protocols for Dust and Soil Samplingdocument and the HUD Guidelines.

D. Composite SamplingUnder today’s final rule, composite

dust and soil sampling is expresslypermitted for the purposes ofconducting a lead hazard screen, riskassessment, or clearance following anabatement.

This change from the September 2,1994 proposal is based on comments theAgency received in support ofcomposite sampling for dust and soil, aswell as limited evidence supporting theuse of composite dust and soil samplingto determine the presence of lead indust and soil. The Agency also believesthat composite sampling is usefulbecause it provides a means for‘‘averaging’’ the potential for exposureto lead-based paint hazards in aresidential dwelling or child-occupiedfacility. Furthermore, the Agency ispermitting use of the technique due tolaboratory cost savings generated bysampling analysis.

However, it is important that theindividual who is receiving the resultsof a composite understand theirlimitations and can correctly interpretthe results of a composite sample. Abrief discussion of this subject can befound in this section, and a thoroughdiscussion of this issue is contained in

the HUD guidelines, and will bepresented in the risk assessor andsupervisor course.

Specific instruction on the taking ofcomposite dust and soil samples isprovided in the HUD Guidelines. Thetechnique essentially involvescombining several subsamples from thesame types of components into onesample for analysis. A composite dustsample is different from a single-surfacesample because it combines at least twodust samples from more than onesampling area into one sample.

Pursuant to § 745.227(g) of today’sfinal rule, composite dust samples mustconsist of at least two subsamples. Atthis time the Agency recommends thata composite sample consist of no morethan four subsamples, unless thelaboratory contracted to analyze thecomposite sample agrees to accept asample consisting of more than foursubsamples. This recommendation isbased on current limitations in thelaboratory analysis of compositesamples consisting of more than foursubsamples (i.e., using availabletechnology, composite samples thatcombine more than four subsamples aredifficult to properly analyze). However,because some EPA-recognizedlaboratories are acquiring the ability toanalyze composite samples consisting ofmore than four subsamples, the finalrule does not explicitly restrict acomposite sample from containing morethan four subsamples.

Pursuant to § 745.227(g) of today’sfinal rule, composite dust samples shallnot consist of subsamples from morethan one type of component. Forexample, subsamples from fouruncarpeted floors from four rooms maybe combined into one compositesample. However, in these same fourrooms, the rule prohibits twosubsamples from windows in two of therooms from being composited with twosubsamples from floors in the other tworooms.

This restriction is due to the varyinglevels of lead that may be present ondifferent components, and the potentialhazard that a component may present.For example, dust samples from floorsgenerally tend to indicate a lower levelof contamination, while the frequencyof contamination is generally higher inwindows. Consequently, theinterpretation of the results from acomposite sample consisting ofsubsamples from different componentswould not adequately characterize thelocation of the hazard.

One of the primary benefits derivedfrom composite sampling is lowersampling costs due to fewer laboratoryanalyses. Lead levels generally vary


significantly from one component toanother, and a single surface samplefrom one component alone (i.e. fromone area of a floor in a room to anotherof the same floor) may not represent thepotential for exposure. Compositesampling provides a means to determinepotential exposures to lead-based painthazards by obtaining a wide cross-section of possible exposure pathways.

However, composite sampling mayyield laboratory results that are not asinformative as single-surface sampling.For example, dust samples from thefloors of three rooms might becomposited where only one of the floorscontains lead-contaminated dust higherthan the clearance level contained in thesection 403 Guidance for uncarpetedfloors of 100 µg/ft2. This might causethe composited sample to fail clearance.On the other hand, if three single-surface floor dust samples were takenfor clearance testing, the laboratoryanalyses would have precisely indicatedwhich one of the three rooms exceededthe clearance level, and the inspector orrisk assessor would know exactly whichroom needed to be recleaned andretested.

Because of these limitations, it isimperative that a risk assessor,inspector, or supervisor understandsand correctly interprets compositesamples.

E. AbatementAs discussed in Unit III.B. of this

preamble, the issue that received themost comment associated withabatement was the proposed definitionof abatement. The Agency’s response tothose comments is discussed in thatunit of the preamble.

In addition to these comments, othercomments on a number of the workpractice standards, procedures andrestrictions proposed for variousabatement activities were received.These comments principally addressedthe following issues: (1) ‘‘Prohibited’’ orrestricted abatement work practices; (2)encapsulation; (3) the development of apre-abatement plan; (4) clearancerequirements following both interiorand exterior abatements; (5) soilabatement; and (6) management of wastefrom lead abatement activities.

The Agency’s response to thesecomments and changes that have beenmade to the corresponding standards forabatement are discussed below.

1. ‘‘Prohibited practices.’’ In thepreamble of the proposed rule, theAgency indicated that it wasconsidering banning certain abatementwork practices in target housing, due tothe potential risk of lead contaminationposed to workers and/or the

environment. The practices singled outby the Agency included:

i. Open-flame burning of paintedsurfaces.

ii. Dry scraping or sanding of paintedsurfaces.

iii. The use of heat guns on paintedsurfaces for abatement without properprotection.

Additionally, the Agency specificallyrequested comments and/or data relatedto exposure to lead-contaminated dustand fumes from these and otherabatement work practices.

In response, an overwhelmingmajority of commenters on this issueurged the Agency to expressly ban theuse of open-flame burning or torchingon painted surfaces in target housingand child-occupied facilities, and tospecifically restrict—not necessarily toban—the other practices listed above, toreduce the risks they pose. Furthermore,commenters also requested that theAgency set restrictions on the use ofmachine sanding or grinding, abrasiveblasting or sandblasting, andhydroblasting and high-pressurewashing techniques in target housingand child-occupied facilities.Commenters also provided a number ofreferences to studies to document theirrecommendations to the Agency.

The restrictions proposed bycommenters generally were consistentwith the HUD Guidelines, and havebeen the subject of several studieswhich support the restrictions in today’sfinal rule. A review of these studies hasbeen prepared by EPA titled A Reviewof Studies Addressing Lead AbatementEffectiveness (Ref. 9).

An important point related torestricting the abatement practicescontained in § 745.227(e)(6) is that thepublic comments supporting suchrestrictions were expressly directed attarget housing and other buildings, suchas child-occupied facilities, whereyoung children routinely and frequentlyspend time. In response, the Agencystresses that the restrictions onabatement practices contained intoday’s final rule apply only to targethousing and child-occupied facilities.

In contrast, other commenters wereopposed to prohibiting or restrictingsimilar ‘‘deleading’’ activities, in publicand commercial buildings,superstructures and bridges.

In public and commercial buildings,superstructures and bridges, mostcommenters were generally satisfiedwith existing OSHA regulations for thepurposes of protecting the health andsafety of workers. Concerns were,however, voiced over the lack of cost-effective work practice alternatives toopen-flame burning, machine sanding or

grinding, and abrasive blasting forremoving lead-based paint from publicand commercial buildings,superstructures and bridges. In responseto these comments, the Agency willfurther review options for addressinglead-based paint activities conducted inpublic and commercial buildings, andsuperstructures and bridges.

On the other hand, commenters whofavored restricting certain workpractices in target housing and child-occupied facilities indicated thatalthough OSHA regulations may protectworkers, they are not designed toprotect building occupants, especiallychildren aged 6 years and under, fromlead-based paint hazards that may begenerated during an abatement. Asdiscussed previously, these commentersalso indicated that by restricting certainwork practices, rather than banningthem altogether, lead-contaminated dustand fumes could be effectivelycontrolled. Furthermore, thesecommenters suggested that in someinstances safer work practicealternatives are available.

Based on these comments and areview of studies referenced above,today’s final rule in § 745.227(e)(6)imposes certain restrictions on selectedwork practices when conducted duringan abatement in target housing andchild-occupied facilities. Today’s finalrule also bans the use of open flameburning and torching when conductingabatements in target housing and child-occupied facilities.

These restrictions include theoperation of a heat gun at a temperatureabove 1100 degrees Fahrenheit, due tothe release of lead dust and fumes andthe potential hazards posed to buildingoccupants, particularly children aged 6years and under. This restriction issupported by two studies that foundsignificant problems with lead-basedpaint when volatilized by heat guns andpropane torches operating above thistemperature. These problems includedlarge increases in the blood lead levelsof children in homes where heat gunsand torches were used at temperaturesin excess of 1100 degrees Fahrenheitduring abatement (Refs. 11 and 12).

The rule also restricts the use ofmachine sanding or grinding, abrasiveblasting and sandblasting as abatementwork practices, unless they areconducted using a High-EfficiencyParticulate Air (HEPA) exhaust controlwhich removes particles of 0.3 micronsor larger from air at 99.97 percent orgreater efficiency. Although studiesindicate that the effectiveness of HEPAattachments has been limited incontaining dust releases in the past,commenters indicate that recent


technology has improved performance.Consequently, if HEPA attachmentsmeet or exceed the performancestandard above, the Agency believesthey can serve as a tool for ensuring thatabatement activities involving the use ofmachine sanding or grinding, abrasiveblasting and sandblasting are conductedsafely, reliably and effectively.

Dry scraping and sanding arepermitted under today’s final rule onlyaround electrical outlets, or whentreating defective paint spots totaling nomore than 2 square feet in any oneinterior room, or totaling no more than20 square feet on exterior surfaces.These restrictions are based on highlevels of dust generated by dry scrapingand sanding, and the availability oftechniques, such as wet spraying or theuse of a heat gun below 1100 degreesFahrenheit, to control dust generation.Additionally the restrictions placed ondry scraping provide allowances forconvenience and safety when abatingrelatively small defective paint spotsand areas around electrical outlets.

In regard to the establishment ofrestrictions for hydroblasting and high-pressure washing, the Agency does nothave enough data to demonstrate thatthese practices may pose a lead-basedpaint hazard in target housing or child-occupied facilities. Nor is theresufficient data to support specificrestrictions on how to effectively controlor limit these practices to reduce anyhazards they might pose. Consequently,the rule does not establish restrictionsfor hydroblasting and high-pressurewashing. However, the Agencyrecommends that controls be used tocontain any debris or wastewater thatmay be generated when hydroblastingand high-pressure washing areemployed as abatement techniques.

2. Encapsulation. As discussed in theSeptember 2, 1994 proposed rule, thedefinition of abatement includes thephrase ‘‘permanent containment orencapsulation.’’ This phrase is part ofthe statutory definition of abatementunder Title IV section 401, and it hasbeen retained as part of the abatementdefinition in § 745.223 of today’s finalrule.

In the preamble of the proposed rule,however, the Agency also pointed outthat all encapsulant will degrade overtime, so therefore, no encapsulant istruly permanent. Consequently, theAgency requested comment on whetherto include a periodic monitoringrequirement when an encapsulant isused to abate lead-based paint.

The majority of commenters generallysupported some kind of monitoringrequirement, but were divided as towhether EPA should regulate such a

requirement given that encapsulationtechnologies are still evolving. Althoughsome commenters encouraged theAgency to include specific monitoringrequirements (e.g., once every 6 months,1 year, 3 years, etc.), others suggestedthat the Agency develop standards forencapsulant products and/or requirethat manufacturers provide guaranteesregarding the durability and longevity ofan encapsulant product. Othercommenters requested that the Agencyspecify who is responsible formonitoring an encapsulant—either thebuilding owner or a third party.

In response to these and other relatedissues raised by commenters, today’sfinal rule does not specify a particularmonitoring requirement, nor does itestablish any other specific standardsfor the use of encapsulants. Thisdecision is based primarily on thedevelopment of existing encapsulanttechnologies and ongoing voluntaryefforts within the encapsulant industryto develop performance-based standardsfor encapsulants.

Three American Society of Testingand Materials (ASTM) standards, E 1795(‘‘Standard Specification for Non-Reinforced Liquid CoatingEncapsulation Products for LeadedPaint in Buildings’’), E 1797 (‘‘StandardSpecification for Reinforced LiquidCoating Encapsulation Products forLeaded Paint in Buildings’’), and E 1796(‘‘Standard Guide for Selection and Useof Liquid Coating EncapsulationProducts for Leaded Paint inBuildings’’) were approved in March1996. The three standards weredeveloped by a voluntary consensus-building process that includedrepresentatives from EPA, other Federalagencies, and a wide range of interestsacross the lead abatement industry. Thestandards cover what is considered byASTM to be the minimum set ofmaterial performance requirements forthese products, as well as guidance onhow to select, apply, evaluate, andmaintain the products under normal useconditions. The standards acknowledgethat users (e.g., risk assessors, abatementsupervisors) should evaluate theirindividual situation to assess whetheradditional requirements are needed toadequately protect the surface.

EPA endorses these standards andrecommends their use, but has chosennot to require them as part of the workpractice standards in this rule. EPA isconfident that most States and localjurisdictions will evaluate thesestandards for their appropriateness forthe conditions under which they will beexpected to perform and specifyadditional performance requirements asneeded. The standards will also be

discussed in training course materialsfor risk assessors and abatement workersand supervisors.

3. Pre-abatement plan. In theproposed rule, the standards forconducting an abatement would haverequired the development of a ‘‘pre-abatement plan’’ for all abatementprojects. Under the proposed rule thepre-abatement plan would haveincluded the following: (1) Informationregarding measures taken to protectworkers; (2) measures taken to complywith existing Federal, State and localenvironmental regulations; and (3) anoccupant protection plan. In its reviewof the comments on the pre-abatementplan, and of the occupant protectionplan itself, the Agency has decided thatthe primary purpose of the occupantprotection plan is to help ensure thatbuilding occupants are protected frompotential lead-based paint exposuresduring an abatement.

This determination is based oncomments that suggested the Agencyminimize any overlap with existingFederal regulations. For example, if anabatement project resulted in thegeneration of a hazardous waste,commenters noted that the contractorand/or building owner may already besubject to certain reporting requirementsunder the Resource Conservation andRecovery Act (RCRA). Thesecommenters argued that it would beduplicative and burdensome to resubmitits RCRA reports to EPA under a TSCAlaw. A similar rationale applies to theproposed provision of informationregarding measures taken to protectworkers. This proposed requirementwould be duplicative of OSHAprovisions to protect workers.

The Agency agrees with commenterson this point, and has removed parts 1and 2 of the pre-abatement plan fromtoday’s rulemaking. Consequently, theonly remaining part of the pre-abatement plan is the ‘‘occupantprotection plan,’’ which in today’s finalrule replaces the proposed pre-abatement plan.

4. Clearance procedures. Commentsreceived on the clearance procedurescontained in the proposed ruleindicated a need to clarify the dustsampling requirements associated withclearance. Commenters were confusedregarding the number of dust samplesthat needed to be collected and thelocations within a residential dwellingor child-occupied facility that needed tobe sampled as a part of the clearanceprocedures contained in the September2, 1994 proposal.

Several commenters also suggestedthat the proposed rule required toomany samples, which they believed


would add to the costs of an abatementwithout necessarily providing betterinformation regarding the efficacy of anabatement. They urged the Agency toreduce the number of samples to betaken for the purposes of clearancefollowing an abatement; somecommenters suggested that compositesampling be employed to reduce therequired number of clearance samples.And virtually all commenters agreedthat the proposed 24-hour waitingperiod was too long to wait to conductclearance sampling following anabatement.

In response to these comments, theclearance procedures contained intoday’s final rule have been presentedmore clearly and concisely. Forexample, commenters indicated that inthe proposed rule it was not clearwhether additional dust clearancesamples were required following anabatement project that usedcontainment, as opposed to anabatement that did not use containment.In today’s final rule,§ 745.227(e)(8)(v)(A) clearly indicatesthe number of dust samples that are tobe taken following an abatement thatemploys containment. These includeone sample from the floor, and one fromthe window (if available) in the roomswithin the containment area.Additionally, the rule requires that onesample will be taken from the flooroutside the containment area.

On the other hand,§ 745.227(e)(8)(v)(B) clarifies that, ifcontainment was not employed as a partof the abatement, two dust samples willbe taken from rooms in the residentialdwelling or child-occupied facilitywhere the abatement was conducted.

The final rule also limits the numberof rooms that are required to be sampledas part of clearance to four. Clearanceinspectors are free to sample more thanfour rooms, but todays rule establishesa minimum of four rooms that must besampled. The rooms shall be selectedaccording to documentedmethodologies. The current HUDguidelines, one such documentedmethodology, recommend that therooms be selected based on where mostof the dust-generating work was done.

The rationale for this change is thatgiven similar abatement techniques, andmore importantly, similar post-abatement cleanup, if the four selectedrooms pass clearance, then the otherrooms will also likely pass.

Based on comments, the final rule,under § 745.227(e)(8)(iii), now requiresa minimum 1-hour waiting periodfollowing the completion of post-abatement clean-up activities prior tothe collection of dust samples for the

purposes of clearance. The 1-hourwaiting period is consistent with theHUD Guidelines and other Stateregulations and guidance on theappropriate amount of time neededprior to conducting clearance followingan abatement. Supporting rationale inthe HUD Guidelines have shown that 1-hour is sufficient time for airborne leadparticles to fall on to horizontal surfacesand be collected (Ref. 12).

In regard to a reduction in the numberof samples that will be taken as a partof clearance following an abatement, thefinal rule permits the use of compositesampling. Composite sampling shouldassist in reducing the number ofsamples that need to be taken as a partof clearance. As discussed in this Unitof the preamble in paragraph D, theAgency believes that compositesampling can be a reliable, safe andeffective alternative to single surfacesampling.

Sampling requirements also havebeen reduced when clearance isconducted following an exteriorabatement. Again, several commentswere received on clearancerequirements following an exteriorabatement suggesting that the proposedrule required too many samples. Forexample, the proposed rule would haverequired soil samples to be taken priorto an exterior abatement project, so thatany lead levels found in the pre-abatement samples could be comparedwith post-abatement soil samples todetermine if there was anycontamination resulting from theexterior abatement.

The Agency agrees with commenterson this point, and has removed therequirement to take pre-abatement soilsamples and the requirement to take soilsamples following an exteriorabatement. Rather, the final rulerequires a visual inspection todetermine the presence of any paintchips along the dripline or next to thefoundation below any exterior surfaceabated. If paint chips are present, theymust be removed and properlydisposed. The Agency is allowing theindividual or firm conducting theexterior abatement to determine theneed to conduct any soil sampling,based on liability concerns theindividual or firm may have based onpotential claims that the actions of theabatement workers/supervisors causedsoil contamination.

In general, the Agency believes thattoday’s final rule more clearlyarticulates the number of samples thatmust be taken as a part of clearancetesting following either an interior orexterior abatement. Through compositesampling, the rule also permits a

reduction in the number of analyses tobe done. In addition, § 745.227(f) oftoday’s final rule requires that allsamples must be sent to EPA-recognizedlaboratories, which will help ensure thereliability of sampling results.

Notably, under § 745.223 the finalrule provides a definition for clearancelevels and includes references to thesection 403 Guidance, the HUDGuidelines and other guidance forspecific numeric values. As discussed inthe September 2, 1994 proposed rule, itis possible that numeric values forclearance will be a part of the finalsection 403 rulemaking, depending onthe comments received on this matterunder the section 403 proposal. Untilnumeric values are established forclearance through the regulatoryprocess, certified individuals and firms,training providers and other personsshould reference the guidancedocuments listed in the definition ofclearance levels (contained in § 745.223)for numeric limits for clearance.

5. Soil abatement. Commentersrequested clarification on variousprocedures proposed for soil abatement.Included among the items raised bycommenters were: clarification as towhether the proposed soil abatementprocedures applied only to targethousing and child-occupied facilities, orto public and commercial buildings,superstructures and bridges, as well;requests that the Agency stipulate a leadlevel in soil to be used to determinewhen soil abatement must occur; andclarification as to whether both bare andcovered soil should be abated.

In response, it should be clear undertoday’s final rule that the proceduresput forward for soil abatement under§ 745.227(e)(7) apply only to targethousing and child-occupied facilities.Regulations for the management of lead-contaminated soil at industrial sitescurrently are provided under RCRA andSuperfund.

On the need for a specific lead levelto determine when soil abatement isneeded, the Agency refers commentersto its section 403 Guidance document.In the section 403 Guidance, Agencyrecommendations are provided forresponse activities to lead-contaminatedsoil based on a range of lead levels.These response actions also take intoaccount whether the contaminated areaunder consideration is used by children.

For example, in the section 403Guidance, interim control activities arerecommended as a means to reducepossible lead exposures if lead levels inbare soil range between 400 and 5,000parts per million (ppm) and if the areaof concern is expected to be used bychildren. Such areas could include


residential backyards, and day-care andschool yards. Appropriate interimcontrol activities could include plantingground cover or shrubbery to reduceexposure to bare soil, moving playequipment away from contaminatedbare soil, or restricting access throughposting, fencing or other actions.

As discussed in the section 403Guidance, however, the decision onwhether interim controls or anabatement action is appropriate dependson several variables. For example,although the section 403 Guidance doesnot recommend soil abatement untillead levels in soil exceed 5,000 ppm, itis possible that a risk assessor mayrecommend abatement at a lower level.For instance, in a situation in which theblood lead levels of children that use anarea under consideration for abatementare high and the risk assessor hasdetermined that the soil may be theprimary source of exposure, the riskassessor would consider presentingoptions that include soil abatement.

As discussed throughout thispreamble, the Agency does not believeit is able, at this time, to effectivelyidentify, list and regulate all thevariables that may influence decisionson how to respond to lead-based painthazards. Furthermore, today’s final ruledoes not provide a specific lead level insoil for use as an abatement trigger.Rather, the Agency refers decisionmakers in this arena to the section 403Guidance, which also shall be taught inaccredited training courses.

In terms of conducting soil abatement,comments were received that requestedclarification of the definition ofpermanent covering. In the proposedrule, the permanent covering ofcontaminated soil was listed as a soilabatement option. In today’s final rule,soil abatements must be conducted inone of two ways: If soil is removed, thelead-contaminated soil shall be replacedwith soil that is not lead-contaminated;or if soil is not removed, the lead-contaminated soil shall be permanentlycovered. In response to commenters, thefinal rule also defines permanentlycovered soil as soil which has beenseparated from human contact by theplacement of a barrier consisting ofsolid, relatively impermeable materials,such as pavement or concrete. Grass,mulch, and other landscaping materialsare not considered permanent covering.

Commenters also requestedclarification as to whether any amountof newly added soil could represent apermanent covering. In response, theAgency has concluded that at this time,there is insufficient information todetermine the amount or type of soilcovering that would protect human

health from the risk of exposure to leadcontaminated soil. However, but theAgency believes that some depth of soilof a given type may provide adequateprotection. The Agency is seekinginformation on this subject and willaddress this in the section 403regulation as part of the discussion onlead-contaminated soil.

6. Management of waste from leadabatement activity. Lead-based paintabatement generates different types ofsolid waste, including paint chips,architectural components, andcontaminated clothing, which may besubject to hazardous waste treatment,storage, and disposal regulations underRCRA Subtitle C (40 CFR part 261).RCRA establishes a comprehensiveFederal program for the management ofsolid and hazardous wastes.

The training requirements in today’sfinal rule for workers, supervisors andproject planners include training in theproper management of wastes generatedduring abatement activity. Theserequirements will encouragecompliance with RCRA during theconduct of such activities.

Management of architecturalcomponent debris waste was aparticular concern of some commenterson the proposed rule. Commentsindicated that RCRA Subtitle C wastesampling and testing requirements areimpractical for debris, and that the costsassociated with managing debris ashazardous waste are impeding progressin reducing lead-based paint hazards.The Agency wishes to minimizepotential regulatory impediments toconducting and financing lead-basedpaint abatements. Thus, EPA intends toissue a separate rulemaking specificallyaddressing the disposal of architecturaldebris waste from lead-based paintabatements. Until the Agencypromulgates such a rule, therequirements of RCRA continue to applyto lead abatement waste.

One important RCRA issue is theidentification of the party deemed thegenerator of a waste, particularly in thecontext of contractual relationshipssuch as those for lead-based paintactivities. RCRA defines a generator in40 CFR 260.10 as ‘‘any person, by site,whose act or process produceshazardous waste identified or listed in[40 CFR part 261] or whose act firstcauses a hazardous waste to becomesubject to regulation.’’ In the proposal(59 FR 45890), EPA stated thatcontractors for lead-based paintactivities (as opposed to buildingowners) are the generators of abatementwaste and are therefore the partiesresponsible for RCRA compliance. EPAreceived a number of comments

requesting a clarification andreconsideration of this issue.

EPA wishes to clarify that theproperty owner and the abatementcontractor are co-generators of wastefrom lead-based paint activities, as bothparties contribute to its generation.Under co-generator status, one partymight manage the disposal of the waste(for example, the building owner mightrequest that a contractor handle thistask), but both parties remain legallyresponsible for proper disposal of thewaste and for RCRA compliance. TheAgency discussed cogenerator status inmore detail in an FR notice issued onOctober 30, 1980 (45 FR 72026).

IX. State Programs

A. Introduction

This unit contains two parts: (1) Adiscussion of procedures for States andeligible Indian Tribes, including eligibleAlaskan Native Villages, to obtainauthorization from EPA to administerand enforce (a) a lead-based paintactivities program and/or (b) a pre-renovation notification program; and (2)a description of a model program thatwill serve as a blueprint for these Stateand Tribal programs.

Section 404(a) of TSCA provides thatany State that seeks to administer andenforce the standards, regulations, orother requirements established undersections 402 (lead-based paint activities)or 406 (pre-renovation notification) maysubmit an application to theAdministrator for approval of such aprogram. As discussed, today’s finalrule contains the regulations establishedpursuant to section 402(a). The Agencyhas not, at this time, promulgated finalregulations under section 406. Statesmay begin to apply for programauthorization of a pre-renovation oncethe final section 406 regulation ispromulgated.

Section 404(b) states that theAdministrator may approve such anapplication only after finding that theState Program is at least as protective ofhuman health and the environment asthe Federal program establishedaccording to the mandates of TSCAsection 402 or 406 and that it providesadequate enforcement. The proceduresfor submitting an application are foundin § 745.324 of this regulation and arediscussed in more detail below. TheAgency is developing an ApplicationGuidance Document that it willdistribute, to give additional guidanceon how to develop and submit anapplication for program authorization.

Section 404(d) directs the Agency topromulgate a model State program,which any State that seeks approval to


administer and enforce may adopt. Inresponse to this mandate, the Agencyhas promulgated, at §§ 745.325, 745.326,and 745.327 minimum requirementsand enforcement provisions that a Stateor Tribal program must have to receiveauthorization from the Agency toadminister a lead-based paint activitiesprogram (§ 745.325) and/or a pre-renovation notification program(§ 745.326). These requirements arediscussed in more detail in Unit IX.E. ofthis preamble.

No political subdivisions (e.g., cities,towns, counties, etc.) other than States,as defined by TSCA section 3, andIndian Tribes (see discussion in UnitIX.F. of this preamble), are eligible forauthorization under this program.

B. Submission of an ApplicationBefore developing an application for

authorization, a State or Indian Tribemust publicly distribute a notice ofintent to seek such authorization andprovide an opportunity for a publichearing. The State or Indian Tribe is freeto conduct this hearing and provide anopportunity for comment in any mannerit chooses. Upon completion of the finalapplication that reflects this publicparticipation, the State or Indian Tribeshall submit the application to theappropriate EPA Regional Office.

As described at § 745.324(a), anapplication for program authorizationmust include the following elements: atransmittal letter from the Governor orTribal Chairperson (or equivalentofficial); a summary of the State orTribal program; a description andanalysis of the program; an AttorneyGeneral’s or Tribal equivalent’sstatement attesting to the adequacy ofthe State’s or Indian Tribe’s programauthority; and copies of all applicableState or Tribal statutes, regulations,standards and other materials thatprovide the State or Indian Tribe withthe authority to administer and enforcea lead-based paint program.

1. Program description. A programapplication must contain information,specified in § 745.324(b), that describesthe program. The program description isthe portion of the application that theState or Indian Tribe will use tocharacterize the elements of theirprogram. The Agency will use thisinformation to make an approval ordisapproval decision on a State orIndian Tribe’s application. The programdescription contains five distinctsections. In the first (§ 745.324(b)(1)),the State or Indian Tribe must list thename of the State or Tribal agency thatwill administer and enforce theprogram, and if there will be more thanone agency administering or enforcing

the program, describe the relationshipbetween or among these agencies.

Second, the State or Indian Tribemust, in the application, demonstratethat the program meets the requirementsof § 745.325 or 745.326 or both. Theseelements represent the minimumauthorities that a State or Tribalprogram must have to be considered forprogram authorization. These elementsare discussed in greater detail in UnitIX.E.1. and IX.E.2. of this preamble.

Third, the application must providean analysis of the entire State or Tribalprogram that describes any dissimilarityfrom the Federal program in subpart L‘‘Requirements for Lead-Based PaintActivities,’’ or regulations developedpursuant to TSCA section 406. Theanalysis should address each element ofa State or Tribal program: for a lead-based paint activities training andcertification program, those elementsfound at § 745.325(a) (i.e., accreditationof training programs, certification ofindividuals, and work practicestandards for the conduct of lead-basedpaint activities); and for a pre-renovation notification program, thoseelements found at § 745.326(a) (i.e.,distribution of lead hazard informationand a lead hazard informationpamphlet).

The analysis must then explain why,considering these differences, the Stateor Tribal program is at least asprotective as the respective Federalprogram. The Agency is inclined to givedeference to a State or Indian Tribesdetermination that its program issufficiently protective and appropriatefor their State or Indian Tribe. TheAgency will use this analysis, alongwith its own comparison, to evaluatethe protectiveness of the State or Tribalprogram. This issue is discussed inmore detail in Unit IX.E. of thispreamble discussion.

Fourth, the State’s or Indian Tribe’sapplication must demonstrate that theprogram meets the requirements of§ 745.327. These elements represent theenforcement elements that a programmust have to receive authorization. Thissection of the application is discussedin more detail in Unit IX.E.3. of thispreamble.

In addition to the above, the programdescription for an Indian Tribe mustalso include a map, legal description, orother information that will identify thegeographical extent of the territory overwhich the Indian Tribe exercises itsjurisdiction. The Indian Tribe shall alsoinclude a demonstration that it is: (1)Recognized by the Secretary of theInterior; (2) has an existing governmentexercising substantial governmentalduties and powers; (3) has adequate

civil regulatory jurisdiction over thesubject matter and entities regulated;and (4) is reasonably expected to becapable of administering the Federalprogram for which it is seekingauthorization.

If the Administrator has previouslydetermined that an Indian Tribe has metthese prerequisites for another EPAprogram authorization, then the IndianTribe need provide only that additionalinformation unique to its lead-basedpaint program. The rationale forrequiring the tribe to provide thisinformation is discussed in detail inUnit IX.F. of this preamble.

2. Attorney General’s statement. TheState or Indian Tribe must provide anassurance that the State or Indian Tribehas the legal authority necessary toadminister and enforce the program.The State or Tribal Attorney General (orequivalent Tribal official) must sign thisstatement. (See discussion in Unit IX.F.of this preamble for specific Tribalprogram requirements).

3. Public availability of application.Section 404(b) of TSCA requires theAgency to provide notice and anopportunity for public hearing on aState or Tribal application forauthorization. Accordingly, the Agencywill publish in the Federal Register, anotice announcing the receipt of aState’s or Tribe’s application, asummary of the State or Tribal program,the location of copies of the applicationavailable for public review, and thedates and times that the application willbe available for public review.Individuals may at that time submit arequest to the Agency for a publichearing on the State or Tribalapplication. It should be noted that thisopportunity for public hearing isseparate and distinct from the publiccomment, discussed in part B. of thisunit of the preamble, that the State orIndian Tribe must seek before preparingan application for program approval(§ 745.324(a)(2)).

C. State CertificationPursuant to section 404(a), at the time

of submitting an application for programauthorization, a State may also certify tothe Administrator that the State programmeets the requirements of TSCA section404(b)(1) and 404(b)(2).

If this certification is contained in aState application, the program isdeemed authorized, until theAdministrator disapproves theprogram’s application or withdraws theprogram’s authorization. Thiscertification must be contained in aletter from the Governor or the AttorneyGeneral, to the Administrator, and mustreference the program analysis


contained in the program descriptionportion of the application as the basisfor concluding that the State program isat least as protective as the Federalprogram and provides for adequateenforcement.

This provision is not available toIndian Tribes because Indian Tribesmust first demonstrate to the Agencythat they meet the criteria at§ 745.324(b)(4) for Treatment as a State(‘‘TAS’’). Although Indian Tribes maybe able to demonstrate that they havebeen approved for ‘‘Treatment as aState’’ for any other environmentalprogram (satisfying two of the four TAScriteria), the Agency must make aseparate determination that an IndianTribe has adequate jurisdictionalauthority and administrative andprogrammatic capability regarding itslead program before it can determinethat the Tribe should be treated as aState. These criteria are discussed ingreater detail in Unit IX.F. of thispreamble.

As stated at § 745.324(d)(3), if theapplication does not contain suchcertification, the State’s program will beconsidered authorized only after theAdministrator approves the Stateapplication.

EPA encourages both States andIndian Tribes to submit theirauthorization applications as soon aspossible after October 28, 1996. Becausethe Agency anticipates needing the full180 days to properly review and act onan application, States and Indian Tribesare strongly encouraged to submit acompleted application before March 2,1998.

D. EPA Approval

Within 180 days following receipt ofa complete State or Tribal application,the Administrator will approve ordisapprove the application. TheAdministrator will approve a programonly if, after notice and opportunity forpublic hearing, the Administrator findsthat:

(1) The program is at least asprotective of human health and theenvironment as the Federal programcontained in subpart L or in regulationsdeveloped pursuant to TSCA section406; and

(2) The program provides adequateenforcement of the appropriate State orTribal regulations.

The Agency will notify the State orIndian Tribe in writing of theAdministrator’s decision. As describedin § 745.324(c), upon authorization of aState or Tribal program, it will beunlawful under TSCA section 15 andsection 409, for any person to violate,

fail or refuse to comply with anyrequirements of such a program.

The Agency believes that section 404and the decision criteria above give itreasonably broad latitude in approvingor disapproving State and Tribalprograms. EPA interprets the section404(b) standard ‘‘. . . at least asprotective as . . .’’ to mean that aprogram need not be identical to, oradministered in a manner identical to,the Federal program for that program tobe authorized. Indeed, the Agencyexpects to receive applications for Stateand Tribal programs that will differ insome respects from the Federal programestablished in this rulemaking. This isunavoidable (and even desirable) giventhe differences that undoubtedly existbetween lead-based paint problems andapproaches to dealing with them at theState and Tribal level. The Agency willmake every attempt to accommodatethese differences while following thestatutory requirement of ensuring thatevery State or Tribal program is at leastas protective as the Federal program.

1. Establishment of the Federalprogram. If a State or Indian Tribe doesnot have a program authorized underthis rule and in effect by the August 31,1998, the Administrator will, by suchdate, establish the Federal programunder subpart L, or regulationsdeveloped pursuant to TSCA section406, as appropriate in that State orIndian Country.

2. Withdrawal of authorization. Asrequired by section 404(c) of TSCA, if aState or Indian Tribe is notadministering and enforcing itsauthorized program according to thestandards, regulations, and otherrequirements of TSCA Title IV,including section 404(b)(1) and (b)(2),the Agency will so notify the State orIndian Tribe. If corrective action is notcompleted within a reasonable time, notto exceed 180 days, the Administratorshall withdraw authorization of suchprogram and establish a Federalprogram pursuant to TSCA Title IV inthat State or Tribal land. Procedures forwithdrawal of authorization can befound in § 745.324(i).

E. Model State Program—Guidance toStates and Indian Tribes; EPA ApprovalCriteria

TSCA section 404(d) directs theAgency to promulgate a MSP that maybe adopted by any State or Indian Tribethat seeks to administer and enforce alead-based paint activities program. Asinterpreted by EPA, this model isintended to serve two purposes. First,the model is intended to give States andTribes guidance as to the contents of aprogram that they could develop to

receive program authorization fromEPA. Second, the model is also intendedto provide overall guidance to Statesthat have not, until this point,developed legislation or regulations fora training and certification or a pre-renovation notification program.

In the proposed rule, the Agencyoffered the entire Federal program as amodel. The Agency stated that, becausesection 404(a) requires that anauthorized State or Tribal program be atleast as protective as the Federalprogram, a State or Tribal programseeking authorization should resemble,in significant respects, the Federalprogram. Therefore, the entire Federalprogram for lead-based paint activitieswas offered as a model for States andIndian Tribes to use in developing theirown programs.

Many commenters, however, statedthat the proposal did not articulate insufficient detail the specific elements aprogram must have to be authorized byEPA. Some commenters also believedthat, as written, the proposal impliedthat a State or Tribal program must beidentical to the Federal program. TheAgency did not intend to give thisimpression, and in developing aseparate model program has attemptedto clarify what is expected of a State orTribal program applying forauthorization.

Other commenters stated that theAgency should develop a modelprogram that would dictate allrequirements that must be in a State orTribal program. These commentersexpressed the belief that, because theAgency is required to evaluate theprotectiveness of a State or Tribalprogram compared to the Federalprogram, the Agency should specify allelements of a State or Tribal program orrequire that a State or Tribe adopt theentire Federal program. Commentersbelieved this approach would alleviateany uncertainty regarding theinterpretation of the statutory phrase ‘‘.. . at least as protective as . . .’’ TheAgency has rejected this approachbecause it would not allow theflexibility that EPA believes is necessaryfor the effective administration of thisprogram at the State or Tribal level.

In response to comments the Agencyhas modified the final rule in twosignificant ways. First, the Agency hasdeveloped a set of minimumprogrammatic elements (§§ 745.325 and745.326 and discussed in sections 1 and2 of this Unit of the Preamble) that aState or Tribal program must have toreceive authorization from the Agency.This section was developed in responseto commenters who requested specificdirection from the Agency on the


elements that must be contained in aState or Tribal program seekingauthorization. The requirements at§§ 745.325 and 745.326 represent theelements EPA believes a State or Tribalprogram must have to successfullyadminister a lead-based paint trainingand certification or a pre-renovationnotification program. These elementsare discussed in more detail later in thisUnit of the preamble.

Second, as required by Title X, a Stateor Tribal program must also be found,by the Agency, to be at least asprotective as the Federal program. Intoday’s final rule a State or Indian Tribeis required to develop and submit ananalysis of their entire program thatdescribes the program in comparison tothe Federal program. This analysisshould highlight the differencesbetween the two programs and shouldprovide an explanation why the State orIndian Tribe believes that thesedifferences do not make their programany less protective than the Federalprogram. The analysis can focus on eachof the program elements (e.g.,procedures for the accreditation oftraining providers) and explain why theprogram element, as a whole, is at leastas protective (or not) as the equivalentelement in the Federal program.

Alternatively, the analysis can focuson the State or Tribal program as awhole, explaining why the entire Stateor Tribal program is at least asprotective as the Federal program. Thisapproach allows a State or Tribe todesign a program that may fall short ofthe Federal program in one element, butwould exceed it for another element.

Either approach allows a State orIndian Tribe to diverge as necessary andappropriate from the specific elementsof the Federal program. The criticalfactor is that, on balance, a State orTribal program element will be asprotective as the corresponding Federalelement. For example, a State trainingprogram may require fewer initialtraining hours for a particular disciplinethan the Federal program, but it wouldsurpass the Federal program inrequiring annual refresher training forcertification. The State could argue that,on balance, this system is as protectiveas the Federal program. In this example,the specific State requirements divergefrom the Federal program, but the Statehas concluded that it achieves the sameresult—properly trained lead-basedpaint professionals.

In reviewing State or Tribalapplications, the Agency will employthis method of analysis as it examinesthe entire State or Tribal program andcompares it with the entire Federalprogram. The State’s or Tribe’s own

analysis will facilitate EPA review of aState or Tribal program, but moreimportantly it will allow each State andIndian Tribe to fully describe andexplain to EPA their program and thesuccess they believe it will have inmeeting the goals of Title X.

The Agency anticipates that eachState or Indian Tribe will develop aprogram that will best serve the needsof both consumers and lead-based paintprofessionals in that State or IndianTribe. The Federal program shouldserve as a model for States or IndianTribes as they develop or refine theirown programs.

1. Program elements: lead-based paintactivities requirements. At § 745.325,the Agency has promulgated specificprogram elements representing theminimum programmatic requirementsthat a State or Tribal program mustcontain to receive authorization fromthe Agency to administer and enforcethis program.

Section 745.325(a) requires that aState or Indian Tribe seekingauthorization must have the regulatoryauthority to require the training andcertification of individuals engaged inlead-based paint activities. The State orTribal regulations must also establishwork practice standards for the conductof these activities.

As discussed previously in Unit IV. ofthis preamble, the Agency has not, atthis time, promulgated a regulationpursuant to section 403 of TSCA. Whenfinal, that rule will identify hazardousconditions of lead-based paint andlevels of lead and conditions in soil anddust that would result in a hazard tobuilding occupants. Accordingly, theAgency has not established specificlead-based paint hazard values orstandards (or post-abatement clearancelevels) that a State or Indian Tribe musthave in order to receive programauthorization. However, a State orIndian Tribe is required to develop andimplement its own post-abatementclearance requirements.

The Agency believes the lack ofsection 403 standards will not adverselyaffect its ability to evaluate theprotectiveness of State or Tribalprograms. Hazard levels are only onecomponent of an overall lead-basedpaint activities program, and thepresence of a State or Tribal hazardlevel for lead in dust or soil will not, byitself, guarantee the effective detectionand remediation of lead-based painthazards. Other factors such as quality oftraining and competency of theworkforce are of equal or greaterimportance to the overall success of aState or Tribal program.

Thus, the Agency believes that it canadequately evaluate the protectivenessof State or Tribal programs withoutFederal standards identifying hazardouslevels of lead in paint, soil and dust.

The remainder of § 745.325 describesrequirements that a State or Tribalcertification and accreditation programmust also contain. Incorporation ofthese elements into a State or Tribalprogram will be a significant factor inthe Agency’s evaluation of theprotectiveness of a State or Tribalprogram.

The Agency has included, in the nexttwo sections of this preamble, adiscussion of the goals and objectivesthat the Agency considered whendeveloping its requirements for theFederal program. The Agency believesthat each State and Indian Tribe shouldalso consider these goals and objectivesas it develops or refines its own programin response to this regulation. While notregulatory requirements, they shouldprovide States and Indian Tribes aninsight into the factors that the Agencywill consider when it evaluates theirprograms.

a. Accreditation of training programs.Pursuant to § 745.325(b), the State orTribal program must contain eitherregulations or procedures for theaccreditation of training programs, orprocedures or regulations, for theacceptance of training offered by anaccredited training provider in a State orTribe authorized by EPA.

If the State or Tribe chooses todevelop an accreditation program, theregulations or procedures must containthe following: (1) Training curriculumrequirements, (2) training hourrequirements, (3) hands-on trainingrequirements, (4) trainee competencyand proficiency requirements, and (5)requirements for training programquality control. The State or Tribalregulations must also establishprocedures for the re-accreditation oftraining programs, and procedures forthe oversight and control of trainingprogram activities.

A State or Tribal program for trainingprogram accreditation should achievethree objectives: (1) Establish commonelements in which certified contractorsmust be trained, (2) provide trainingthat enhances the knowledge andexpertise of contractors, and (3) allowthe State or Indian Tribe to suspend,revoke or modify the accreditation oftraining providers who offersubstandard training or who violate therequirements of the State or Tribalaccreditation program.

Alternatively, the State or Tribe can,for the purposes of certification, accepttraining offered by an accredited


training provider in a State or Tribeauthorized by EPA. This approach mayappeal to a smaller State or Tribe thatwould like to have a certificationprogram that would oversee the conductof lead-based paint activities, but,because of low demand, are unwilling toestablish an accreditation program fortraining providers. Under this approach,the State’s or Tribe’s certificationprogram would accept training offeredat an accredited training provider in anyState or Tribe authorized by EPA.

b. Certification of individuals. Section745.325(c) describes the requirementsfor the certification of individuals thata State or Tribal program must have tobe considered at least as protective asthe Federal program. The State or Tribalprogram must require that certifiedcontractors are properly trained and areconducting lead-based paint activities ina way that meets the work practicestandards established by the State orIndian Tribe. The State or Tribalregulations or procedures must alsoestablish procedures for the re-certification and the possiblesuspension, revocation or modificationof certificates. In general, the State’s orIndian Tribe’s certification programshould be designed so that a State orIndian Tribe can oversee the conduct ofcontractors engaged in lead-based paintactivities to ensure that they areconducting their activities according toall applicable regulations.

The State or Tribal program must alsoestablish requirements for theadministration of a third-partycertification exam. The exam shouldserve as a confirmation of theindividual’s retention andunderstanding of the information taughtin an accredited training course. (Theexam may also provide insight into therelative quality of accredited trainingproviders.) Such an exam should beadministered to applicants aftercompletion of an accredited trainingprogram. The exam should be tailored toa particular work discipline and mustnot be offered by an accredited trainingprovider. The Agency is currentlydeveloping an item bank of testquestions that EPA will make availableto States and Indian Tribes to use, ifthey choose, as their third-party exam.

c. Work practice standards for lead-based paint activities. The State orTribal agency must establish workpractice standards for performing lead-based paint activities, taking intoaccount reliability, effectiveness, andsafety. In § 745.325(d), the Agency hasestablished minimum requirements forthree lead-based paint activities:inspection, risk assessment, andabatement. In a future rulemaking, the

Agency will address the need for workpractice standards for the remaininglead-based paint activities, e.g.,deleading, identification of lead-basedpaint and demolition in publicbuildings, commercial buildings,bridges and superstructures.

All of the work practice standards orregulations that a State or Indian Tribedevelops for the conduct of lead-basedpaint activities must require that theseactivities, if conducted, be conducted bycertified individuals. The work practicestandards and regulations that a State orIndian Tribe adopts for the conduct ofinspections must ensure that aninspection accurately identifies andreports the presence or absence of lead-based paint within the interior or on theexterior of a residential dwelling. AState’s or Indian Tribe’s work practicestandards or regulations for the conductof risk assessments must ensure that arisk assessment accurately identifiesand reports on the existence, nature,severity and location of lead-based painthazards, as defined by the State orIndian Tribe, within a residentialdwelling or on the dwelling’s property.

A State’s or Indian Tribe’s workpractice standards or regulations for theconduct of abatement must ensure thatabatements are conducted in a way thatpermanently eliminates lead-basedpaint hazards, and does not increase thehazards of lead-based paint to buildingoccupants. The State or Tribal workpractice standards or regulations mustalso include requirements for post-abatement clearance sampling.Additionally, the State or Indian Tribemust adopt or develop a lead-in-dustpost-abatement clearance standard.

As described at § 745.325(a)(6), a Stateor Indian Tribe must develop theappropriate infrastructure to administerand enforce such a programsuccessfully. A State or Indian Tribemust establish a State or Tribal agencyor agencies (or designate an existingagency or agencies) to implement,administer, and enforce the program.Given the scope of the program, it islikely that more than one State or Tribalagency will be involved in theimplementation and enforcement of thisprogram. States and Indian Tribes arerequired to identify one agency ororganization within a State or IndianTribe (the primary agency) that willserve to coordinate the activities ofthese agencies. States and Indian Tribesare also encouraged to, wheneverpossible, utilize existing certificationand accreditation programs andprocedures.

2. Program elements—pre-renovationnotification. At § 745.326, the Agencyhas promulgated specific program

elements that specify minimumprocedures and elements that a State orTribal program must contain to receiveauthorization from the Agency toadminister and enforce this program.Section 406(a) directs the Agency todevelop and publish a lead hazardinformation pamphlet. Section 406(b)directs the Agency to develop aregulation to ensure that individualsengaged in performing renovationactivities for compensation in targethousing provide a lead hazardinformation pamphlet to the owner andoccupant of such housing prior tocommencing the renovation activity.These Federal regulations will bepromulgated as final at 40 CFR part 745.

Section 745.326 requires that a Stateor Indian Tribe seeking authorizationmust, at a minimum, promulgateregulations that will achieve theobjectives of the statutory mandate. TheState or Tribal program must containregulations or procedures that requirethe following: (1) Procedures andrequirements for distribution of a leadhazard information pamphlet before therenovations (for compensation in targethousing) commence; (2) an approvedlead hazard information pamphletmeeting the requirements of TSCAsection 406 as approved by EPA; and (3)provisions for the adequate enforcementof compliance with the above program.

Section 745.326(b) describes therequirements for distribution of the leadinformation that a State or Indian Tribemust have to be considered at least asprotective as the Federal program. EPAbelieves State or Tribal programs shouldcontain clear standards for identifyinghome improvement activities thattrigger the pamphlet distributionrequirements. It should also containacceptable procedures for distributingthe lead hazard information to theowners and the occupants of suchhousing before the actual renovationactivity begins.

At § 745.326(c), the Agency hasestablished minimum requirements forthe distribution of lead hazardinformation. The State or Indian Tribemay either: (1) Distribute the leadhazard information pamphlet developedby EPA (under section 406(a) of TSCA)titled, ‘‘Protect Your Family From Leadin Your Home,’’ or (2) distribute analternative pamphlet or package of leadhazard information that has beensubmitted by the State or Tribe andapproved by EPA for use in that Stateor Tribe. Any pamphlet or package ofinformation submitted for approvalmust contain the content and designelements as Congressionally mandatedby TSCA section 406(a).


In addition to the contentrequirements laid out in section 406(a),EPA believes that some additionaldiscussion of Federal priorityinformation may help States who seekto develop alternate pamphlets. In orderto educate the public about lead-basedpaint hazards in the home, the pamphletshould provide citizens with clear andunderstandable information regardingthe health risks associated withexposure to lead hazards, especially therisks to children less than 6 years of age,pregnant women, and women ofchildbearing age. In light of theexposure prevention goals of the overallFederal lead hazard reduction program,EPA believes that State pamphletsshould also include a thoroughdiscussion regarding measures that canbe taken to reduce or avoid exposure tolead hazards from paint, dust, and soilin residential areas.

Since renovations may disturb leadand create hazards, it is essential thatrenovators and occupants of thesehomes be encouraged to take specialprecautions to reduce or avoid exposureduring renovations. By providing areference section including Federal,State, and local sources of assistance,citizens will be able to find certifiedcontractors and information aboutinspections, risk assessments, interimcontrols, and abatement proceduresavailable in their areas.

Nevertheless, the Agency recognizesthe need for flexibility in the amount ofdetail to be included in a State’s orIndian Tribe’s information pamphlet,due to specific needs of each State orIndian Tribe. In covering all of theelements, States or Indian Tribes maydetermine the breadth of coverage ofeach element as they deem necessary.For example, the Agency recognizes thatit may be infeasible to list all Federal,State, and local agencies in a referencesection. Rather, States and Indian Tribesshould focus on providing the mainsources of access to that information. Ingeneral, more emphasis should beplaced on the risks and exposureprevention recommendations.Furthermore, the Agency recommendsthat: (1) The information be written atno higher than a ninth-grade readinglevel; and (2) appropriate layout andtype size be used to maximizereadability and ensure that theinformation can be utilized by as widean audience as possible.

3. Program elements—enforcementprovisions. As previously discussed, theAgency is required to determine if aState or Tribal program will provide forthe adequate enforcement of itsregulations. Many commentersexpressed concern that the proposed

rule did not provide clear guidance asto how the Agency would interpret thisphrase. Further, the Agency realizes thatit has not provided a benchmark ormodel for States and Indian Tribes tofollow as they develop the complianceand enforcement portions of their lead-based paint programs. As discussedpreviously, the proposed and finalFederal regulations developed pursuantto sections 402(a) and 406 will serve asan example that States and IndianTribes can use as they develop theirown programs. These regulations alsohelp in defining the scope of the terms‘‘. . . at least as protective as. . . .’’

Because there is not a comparableFederal enforcement program toemulate, and in response to theconcerns of the commenters seekingmore guidance on this issue, the Agencyhas developed, at § 745.327(b), (c) and(d), requirements that a State or Triballead-based paint compliance andenforcement program must meet inorder to receive authorization. TheAgency believes that a State or IndianTribe that develops an enforcementprogram based on these requirementswould provide adequate enforcement asthat term is used in TSCA section404(b)(2).

These requirements were developedbased on the Agency’s experienceevaluating and approving other Stateand Tribal compliance and enforcementprograms, as well as the Agency’sexperience in enforcing its ownregulations. Further, the Agency’s owncompliance and enforcement programfor these lead-based paint regulationswill contain the elements described at§ 745.327.

Section 745.327(b) describes therequired standards, regulations andauthorities that a State or Tribalprogram must have. Section 745.327(c)describes specific performance elementsthat a State or Tribal program musthave. Section 745.327(d) describes therequired summary of progress andperformance that a State or Indian Tribemust agree to submit.

Because these elements are requiredof a State or Indian Tribe and willrequire some time to fully implementand develop, the Agency is providingfor a phase-in of a State or Tribal lead-based compliance and enforcementprogram.

This phase-in is achieved by allowingStates or Indian Tribes to seek eitherinterim or final approval of theenforcement and compliance portion oftheir lead-based paint program. Eithertype of approval is sufficient for a Stateor Tribal program to receiveauthorization, provided the otherportions of its program are judged at

least as protective as the Federalprogram. A State or Indian Tribe thatreceives interim approval for its lead-based paint compliance andenforcement program must seek andreceive final approval within 3 years ofthe date of receiving EPA’s interimapproval. One hundred and eighty daysprior to that date, a State or Indian Tribemust apply to EPA for final approval ofthe compliance and enforcementprogram portion of a State or Triballead-based paint program. Finalapproval will be given to any State orIndian Tribe which has in place all ofthe elements of § 745.327(b), (c), and (d).If final approval is not received within3 years, the Agency will initiate theprocess to withdraw the State’s orIndian Tribe’s authorization.

Interim approval of the complianceand enforcement program portion of theState or Tribal lead-based paint programcan be granted by EPA once only, andwill expire no later than 3 years fromthe date of EPA’s interim approval. Inorder to be considered adequate forpurposes of obtaining interim approvalfor the compliance and enforcementprogram portion of a State or Triballead-based paint program, a State orIndian Tribe must include the followingelements in its application for programauthorization. The State or Indian Tribemust certify it has the legal authorityand ability to immediately implementthe elements at § 745.327(b). Thiscertification shall include a statementthat the State or Indian Tribe, during theinterim approval period, will carry outa level of compliance monitoring andenforcement necessary to ensure thatthe State or Indian Tribe addresses anysignificant risks posed bynoncompliance with lead-based paintrequirements.

The State or Indian Tribe must alsopresent a plan with time framesidentified for implementing in the fieldall of the elements described at§ 745.327(c) within 3 years from thedate of interim approval. A statement ofresources must be included in the Stateor Tribal plan, which identifies theresources the State or Indian Tribeintends to devote to the administrationof its lead-based paint compliance andenforcement program.

Finally, the State or Indian Tribe mustagree to submit to EPA the Summary onProgress and Performance of lead-basedpaint compliance and enforcementactivities as described at § 745.327(d)and discussed below. This report mustbe submitted by the primary agency foreach State or Indian Tribe that has anauthorized program to EPA beginning12 months after the date of programauthorization. Each authorized program


shall submit the report to the EPARegional Administrator for the Regionin which the State or Indian Tribe islocated. The report shall be submitted atleast once every 12 months for the first3 years after program approval. As longas these reports indicate that theauthorized program is successful, thereporting interval will automatically beextended to every 2 years. If thesubsequent reports demonstrateproblems with implementation, EPAwill require a return to annual reportingin order to assist the State or IndianTribe in resolving the problems. Theseprograms will return to biannualreporting after demonstration ofsuccessful program implementation.

Final approval of the compliance andenforcement program portion of a Stateor Tribal lead-based paint program canbe granted by EPA either as part of aState’s or Indian Tribe’s initialapplication (described at § 745.324(a))or, for States or Indian Tribes whichpreviously received interim approval asdiscussed above (described at§ 745.327(a)(1)), through a separateapplication.

In order for the compliance andenforcement program to be consideredadequate for final approval as a result ofthe State’s or Indian Tribe’s initialapplication, the State or Indian Tribemust certify it has the legal authorityand ability to immediately implementboth the elements at § 745.327(b) and745.327(c).

The State or Indian Tribe must alsosubmit a statement of resources whichidentifies the resources the State orIndian Tribe intends to devote to theadministration of its lead-based paintcompliance and enforcement program.Finally, the State or Indian Tribe mustagree to submit to EPA the Summary onProgress and Performance of lead-basedpaint compliance and enforcementactivities as described at § 745.327(d).

States or Indian Tribes with interimapproval must submit to the Agency 180days before their interim approvalexpires, a separate applicationaddressing only the compliance andenforcement program portion of theirprogram. The State or Indian Tribe mustin this application certify that it has thelegal authority and ability toimmediately implement the elements at§ 745.327(b) and (c).

The application must include astatement of resources which identifiesthe resources a State or Indian Tribeintends to devote to the administrationof its lead-based paint compliance andenforcement program. The State orIndian Tribe must also agree to submitto EPA the Summary on Progress andPerformance of lead-based paint

compliance and enforcement activitiesas described at § 745.327(d). To theextent not previously submitted throughthe initial application described at§ 745.324(a), States or Indian Tribesmust submit copies of all applicableState or Tribal statutes, regulations,standards and other material thatprovide the State or Indian Tribe withauthority to administer and enforce thelead-based paint compliance andenforcement program, and copies of thepolices, certifications, plans, reports,and any other documents thatdemonstrate that the program meets therequirements established at § 745.327.

The remainder of this preamblesection describes in more detail theelements at § 745.327(b), (c) and(d).Section 745.327(b) ‘‘AdequateStandards, Regulations, and Authority’’requires that a State or Tribal programmust have the elements discussedbelow.

1. Lead-based paint activities andrequirements. Lead-based paintprograms must demonstrateestablishment of lead-based paintrequirements for those acts describedunder TSCA sections 402(a) and/or 406and regulations developed pursuant tothose regulations.

2. Authority to enter. Officials must beable to enter, through consent, warrant,or other authority, premises or facilitieswhere violations may occur forpurposes of conducting inspections.

3. Flexible remedies. Lead-based paintprograms must provide for a diverse andflexible array of enforcement remedies,which must be reflected in anenforcement response policy. The lead-based paint program should be able toselect from among the availablealternatives, an enforcement remedythat is particularly suited to the gravityof the violation, taking into accountpotential or actual risk, including:

(1) Warning letters, or notices ofnoncompliance, or notices of violation,or the equivalent;

(2) Administrative or civil actions(e.g., accreditation or certificationsuspension, revocation or modification,and/or administrative or civil penaltyassessment); and

(3) Authority to apply criminalsanctions or other criminal authorityusing existing State or Tribal laws, asapplicable.

The Agency understands that IndianTribes may have certain restrictions ontheir ability to levy criminal sanctions.This limitation will not necessarily havea negative impact on an Indian Tribe’sability to receive program authorization.The Indian Tribe should, however,explain in its application the nature and

extent of any limitation on its ability tolevy criminal sanctions.

Federal law bars Indian Tribes fromtrying criminally or punishing non-Indians in the absence of expressauthority in a treaty or statute to thecontrary. Oliphant v. Suquamish IndianTribe, 435 U.S. 191(1978). In addition,the Indian Civil Rights Act prohibits anyIndian court or Tribunal from imposingfor any one offense a criminal penaltygreater than $5,000 on Indians within itsjurisdiction (25 U.S.C. section 1302(7)).

The Agency realizes that requiringIndian Tribes to demonstrate the samecriminal authority as States wouldaffectively prohibit any Indian Tribefrom obtaining program authorization.The Agency, in part F of this unit of thepreamble, provides that Indian Tribesare not required to exercisecomprehensive criminal enforcementjurisdiction as a condition for lead-based paint activities programauthorization. Under this rule, IndianTribes are required to provide for thetimely and appropriate referral ofcriminal enforcement matters to theEPA Regional Administrator whenTribal enforcement authority does notexist or is not sufficient (e.g., thoseconcerning non-Indians or violationsmeriting penalties over $5,000). Thissection also requires that suchprocedures be established in a formalMemorandum of Agreement with theRegional Administrator. This approachis the same that the Agency has takenin the context of Tribal programs underthe Safe Drinking Water Act and theClean Water Act.

It should be noted that, as inauthorized States, EPA has the authorityto take enforcement action if anauthorized Indian Tribe did not (orcould not) take such action or did notenforce adequately (e.g., did not orcould not impose a sufficient penalty).EPA emphasizes that this referralmechanism is available only in thosecases where the limitations on Tribalenforcement arises under Federal law.

The Memorandum of Agreement willbe executed by the Indian Tribe’scounterpart to the State Director (e.g.,the Director of Tribal EnvironmentalOffice, Program or Agency). TheMemorandum of Agreement mustinclude a provision for the timely andappropriate referral to the RegionalAdministrator for those criminalenforcement matters where that IndianTribe does not have the authority (e.g.,those addressing criminal violations bynon-Indian or violations meritingpenalties over $5,000). The Agreementmust also identify any enforcementagreements that may exist between theIndian Tribe and any State.


Section 745.327(c) ‘‘PerformanceElements’’ for a lead-based paintcompliance and enforcement programrequires that a State or Tribal programinclude the following elements:

a. Training. Lead-based paintcompliance and enforcement programsmust, at a minimum, implement aprocess for training inspectionpersonnel and ensuring that they havewell-trained enforcement inspectors.Inspectors must successfullydemonstrate knowledge of therequirements of the particular discipline(e.g., abatement supervisor, and/orabatement worker, and/or lead-basedpaint inspector, and/or risk assessor,and/or project planner) for which theyhave compliance monitoring orenforcement responsibilities. Forexample, for State compliance/enforcement inspectors, completion ofthe applicable accredited trainingcourse would successfully demonstrateknowledge of these requirements.Instruction should take the form of bothhands-on or on-the-job training and theuse of prepared training materials.

b. Compliance assistance. Lead-basedpaint compliance and enforcementprograms must provide complianceassistance to the public and theregulated community to facilitateawareness and understanding of andcompliance with the State or IndianTribes lead-based paint program(s).

c. Sampling techniques. Lead-basedpaint compliance and enforcementprograms must have in place thetechnological capability to ensurecompliance with the lead-based paintprogram requirements.

d. Tracking tips and complaints. Thelead-based paint compliance andenforcement program must demonstratethe ability to process and react to tipsand complaints or other informationindicating a violation. EPA expects thatthe ability to process and react to tipsand complaints would, as appropriate,include:

(1) A method for funnelingcomplaints to a central organizationalunit for review;

(2) A logging system to record thereceipt of the complaint and to track thestages of the follow-up investigation;

(3) A mechanism for referring thecomplaint to the appropriateinvestigative personnel;

(4) A system for allowing adetermination of the status of the caseand ensuring correction of anyviolations; and

(5) A procedure for notifying citizensof the ultimate disposition of theircomplaints.

e. Targeting inspections. Lead-basedpaint compliance and enforcement

programs must demonstrate the abilityto target inspections to ensurecompliance with the lead-based paintprogram requirements.

f. Follow-up to inspection reports.Lead-based paint compliance andenforcement programs mustdemonstrate the ability to reasonably,and in a timely manner, process andfollow-up on inspection reports andother information generated throughenforcement-related activities associatedwith a lead-based paint program. TheState or Indian Tribe must be in aposition to ensure correction ofviolations, and, as appropriate,effectively develop and issueenforcement remedies/responses infollow-up to the identification ofviolations.

g. Compliance monitoring andenforcement. A lead-based paintcompliance and enforcement programmust demonstrate that it is in a positionto implement a compliance andenforcement program. Such acompliance monitoring andenforcement program must ensurecorrection of violations, and encompasseither planned and/or responsive leadhazard reduction inspections anddevelopment/issuance of State or Tribalenforcement responses which areappropriate to the violations.

Section 745.327(d) ‘‘Summary onProgress and Performance’’ requires theState or Indian Tribe to submit a reportwhich summarizes the results ofimplementing the State’s or IndianTribe’s lead-based paint compliance andenforcement program, including asummary of the scope of the regulatedcommunity within the State or IndianTribe (which would include the numberof individuals and firms certified inlead-based activities and the number oftraining programs accredited), theinspections conducted, enforcementactions taken, compliance assistanceprovided, and the level of resourcescommitted by the State or Indian Tribeto these activities and any other lead-based paint administrative andcompliance/enforcement activities.

The report should describe anysignificant changes in the enforcementof the State or Tribal lead hazardreduction program implemented duringthe last reporting period. The reportshould also summarize the results of theState’s or Indian Tribe’s implementationactivities and what the State or IndianTribe discovered, in general, with regardto lead-based paint compliance andenforcement in the State or Indian Tribeas a result of these activities during theperiod covered by the report. The reportshould also describe how any measuresof success were achieved, and directly

assess the impact of compliance/enforcement activities on reducingthreats to public health.

4. Reciprocity. EPA stronglyencourages each State or Indian Tribe toestablish reciprocal arrangements withother States and/or Indian Tribes withauthorized programs. Sucharrangements might address cooperationin certification determinations, thereview and accreditation of trainingprograms, candidate testing andexamination administration, curriculumdevelopment, policy formulation,compliance monitoring, or the exchangeof information and data. The benefits tobe derived from these arrangementsinclude a potential cost-saving from thereduction of duplicative activity andattainment of a more professionalworkforce as States and Tribes canrefine and improve the effectiveness oftheir programs based upon theexperience and methods of other Statesand Tribes.

Several elements of the EPAaccreditation and certification programsin § 745.225 through 745.226 areintended to facilitate reciprocity. One ofthe most critical elements is thecertification examination. Theexamination will serve to ensure thateach individual certified under thisprogram has a minimum level ofknowledge in his or her particulardiscipline. At the same time, thecertification examination developmentprocedures (previously outlined in thispreamble), will allow a State or IndianTribe the flexibility to either adopt a‘‘standardized’’ examination, or developits own examination according to‘‘standardized’’ guidelines. A secondelement is the inclusion of a refreshertraining course in the Federal program.Successful completion of a State orTribal accredited refresher course mayserve as an ideal requirement forindividuals seeking a reciprocalcertification in another State or Tribe.

F. Treatment of Tribes as a StateToday, EPA is also providing

Federally recognized Indian Tribes theopportunity to apply for and receivelead-based paint program authorizationsimilar to that available to States.Providing Indian Tribes with thisopportunity is consistent with EPA’sPolicy for the Administration ofEnvironmental Programs on IndianReservations. This policy, formallyadopted in 1984 and reaffirmed onMarch 14, 1994 by the Administrator, ‘‘.. . views Tribal Governments as theappropriate non-Federal parties formaking decisions and carrying outprogram responsibilities affecting Indianreservations, their environments, and


the health and welfare of the reservationpopulace.’’

A major goal of EPA’s Indian Policyis to eliminate all statutory andregulatory barriers to Tribaladministration of Federal environmentalprograms. Today’s final rule representsanother step in the Agency’s continuingcommitment toward achieving this goal.However, EPA recognizes, that someeligible Indian Tribes may choose not toapply for program authorization.Despite the choice made, the Agencyremains committed to providingtechnical assistance and training whenpossible to Tribal entities as they workto resolve their lead-based paintmanagement concerns.

EPA believes that adequate authorityexists under TSCA to allow IndianTribes to seek lead-based paint programauthorization. EPA’s interpretation ofTSCA is governed by the principles ofChevron, U.S.A., Inc. v. NaturalResources Defense Council, 467 U.S.837 (1984). Where Congress has notexplicitly stated its intent in adopting astatutory provision, the Agency chargedwith implementing that statute mayadopt any interpretation which, in theAgency’s expert judgment, is reasonablein light of the goals and purposes of thestatute as a whole. Id. 844. InterpretingTSCA to allow Indian Tribes to applyfor program authorization satisfies theChevron test.

TSCA does not explicitly define a rolefor Indian Tribes under Sections 402 or404 and reflects an undeniableambiguity in Congressional intent.Indian Tribes are not subject to Statelaw except in very limitedcircumstances. See, California v.Cabazon Band of Mission Indians, 480U.S. 202 (1987). Indian Tribes aresovereign 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 noindication in the legislative history thatCongress intended to abrogate anysovereign Tribal authority by denyingIndian Tribes the opportunity to applyfor authorization to run lead-based paintprograms on Tribal lands or subjectingIndian Tribes to State law for TSCApurposes. Moreover, it is a well-established principle of statutoryconstruction that Federal statutes whichare ambiguous as to whether theyabridge Tribal powers of self-government must generally be construedin favor of retaining Tribal rights. F.Cohen, Handbook of Federal IndianLaw, 224 (1982); See, e.g., RamahNavajo School Board v. Bureau ofRevenue, 458 U.S. 832, 846 (1982).

Failure to authorize Tribal lead-basedpaint programs would deny Indian

Tribes the option currently available toStates to administer their programs inlieu of the Federal program. With thisrule, however, regulated lead-basedpaint activities in Indian country couldbe under the jurisdiction of the closestsovereign with program andenforcement authority, the Indian Tribe,rather than the Federal government.Extending the ability to receive programauthorization to Indian Tribes isconsistent with the general principles ofFederal Indian law and the Agency’sIndian Policy, which states thatenvironmental programs (e.g., TSCASection 402/404) in Indian country willbe implemented to the maximum extentpossible by Tribal governments. Thus,EPA believes that allowing IndianTribes to apply for programauthorization reflects the sovereignauthority of Indian Tribes under Federallaw.

In the case of other environmentalstatutes (e.g., the Clean Water Act), EPAhas worked to revise them to defineexplicitly the role for Indian Tribesunder these programs. Yet, EPA also hasstepped in on at least two occasions toallow Indian Tribes to seek programapproval despite the lack of an explicitCongressional mandate. Most recently,EPA recognized Indian Tribes as theappropriate authority under theEmergency Planning and CommunityRight-to-Know Act (EPCRA), despitesilence on the Tribal role under EPCRA(55 FR 30632; July 26, 1990). EPAreasoned that since EPCRA has noFederal role to back-up State planningactivities, failure to recognize IndianTribes as the authority under EPCRAwould leave gaps in emergencyplanning on Indian lands. (54 FR 13000;March 29, 1989).

EPA filled a similar statutory gapmuch earlier as well, even beforedevelopment of its formal Indian Policy.In 1974, EPA promulgated regulationswhich authorized Indian Tribes toredesignate the level of air qualityapplicable to Indian Lands under thePrevention of Significant Deterioration(PSD) program of the Clean Air Act inthe same manner that States couldredesignate for other lands. See Nancev. EPA (upholding regulations). EPApromulgated this regulation despite thefact that the Clean Air Act at that timemade no reference whatsoever to IndianTribes or their status under the Act.

One court already has recognized thereasonableness of EPA’s actions infilling such regulatory gaps on Indianlands. In Nance, the U.S. Court ofAppeals for the Ninth Circuit affirmedEPA’s PSD redesignation regulationsdescribed in the previous paragraph.The Court found that EPA could

reasonably interpret the Clean Air Act toallow for Tribal redesignation, ratherthan allowing the States to exercise thatauthority or exempting Indian landsfrom the redesignation process. 745 F.2d713. The Court noted that EPA’s rulewas reasonable in light of the generalexistence of Tribal sovereignty overactivities on Indian Lands. Id. 714.

Today’s final rule is analogous to therule upheld in Nance. EPA is proposingto fill a gap in jurisdiction on Indianlands. As with the redesignationprogram, approving Tribal lead-basedpaint activities programs ensures thatthe Federal government is not the entityexercising authority that Congressintended to be exercised at a more locallevel. Furthermore, the case lawsupporting EPA’s interpretation is evenstronger today than at the time of theNance decision. First, the SupremeCourt has reaffirmed EPA’s authority todevelop reasonable controllinginterpretations of environmentalstatutes. Chevron, supra. Second, theSupreme Court has emphasized sinceNance that Indian Tribes may regulateactivities on Indian Lands, includingthose of non-Indians, where the conductdirectly threatens the health and safetyof the Indian Tribe or its members.Montana v. United States, 450 U.S. 544,565 (1981).

In the case of lead-based paint, EPAbelieves that improperly conductedactivities could directly threaten humanhealth (including that of Tribalmembers) and the environment(including Indian lands). Indian Tribesare likely to be able to assert regulatoryauthority over activities conducted onIndian lands to protect these interests.Thus, as in Nance, EPA believes thatallowing Indian Tribes to apply forprogram authorization reflects thesovereign authority of Indian Tribesunder Federal law.

To have its lead-based paint programauthorized by EPA under today’s finalrule, an Indian Tribe would have tohave adequate authority over theregulated activities. The jurisdiction ofIndian Tribes clearly extends ‘‘over boththeir members and their territory.’’United States v. Mazurie, 419 U.S. 544,557 (1975). However, Indianreservations may include lands ownedin fee by nonmembers. ‘‘Fee lands’’ areprivately owned by non-members andtitle to the lands can be transferredwithout restriction. The extent of Tribalauthority to regulate activities by non-Tribal members on fee lands depends onwhether those activities threaten or havea direct effect on the political integrity,the economic security, or the health orwelfare of the Indian Tribe. Montana v.U.S., 450 U.S. 544. 565–66 (1981).


The Supreme Court in several post—Montana cases has explored severalcriteria to assure that the impacts uponIndian Tribes of the activities of non-Indians on fee land, under the Montanatest, are more than de minimis. To date,however, the Court has not agreed in acase on point on any one reformulationof the test. In response to thisuncertainty, the Agency will apply, asan operating rule, a formulation of theMontana standard that will expect ashowing that the potential impacts ofregulated activities of non-members onthe Indian Tribe are serious andsubstantial. See 56 FR 64876, 64878;December, 12, 1991.

EPA will, thus, require that an IndianTribe seeking lead-based paint programauthorization over activities of non-members on fee lands demonstratejurisdiction, i.e., make a showing thatthe potential impacts on Indian Tribesfrom lead-based paint activities of non-members on fee lands are serious andsubstantial. The choice of an Agencyoperating rule containing this standardis taken solely as a matter of prudencein light of judicial uncertainty and doesnot reflect an Agency endorsement ofthat standard per se. See 56 FR 64878.Whether an Indian Tribe hasjurisdiction over activities by non-members on fee lands, will bedetermined case-by-case, based onfactual findings. The determination as towhether the required effect is present ina particular case depends on thecircumstances and will likely vary fromIndian Tribe to Indian Tribe. TheAgency believes, however, that theactivities regulated under the variousenvironmental statutes, includingTSCA, generally have the potential fordirect impacts on human health andwelfare that are serious and substantial.See 56 FR 64878.

The process that the Agency will usefor Indian Tribes to demonstrate theirauthority over non-members on feelands includes a submission of astatement pursuant to § 745.324(c)explaining the legal basis for the IndianTribes’ regulatory authority. However,EPA will also rely on its generalizedfindings regarding the relationship oflead-based paint activities and relatedhazards to Tribal health and welfare.Thus, the Tribal submission will need tomake a showing of facts that there areor may be activities regulated underTSCA Title IV by non-members on feelands within the territory for which theIndian Tribe is seeking authorization,and that the Indian Tribe or Tribalmembers could be subject to exposure tolead-based paint hazards from suchactivities through, e.g., dust, soil, air,and/or direct contact. The Indian Tribe

must explicitly assert and demonstratejurisdiction, i.e., it should make ashowing that lead-based paint activitiesconducted by non-members on fee landscould have direct impacts on the healthand welfare of the Indian Tribe and itsmembers that are serious andsubstantial. Appropriate governmentalentities (e.g., an adjacent Indian Tribe orState) will have an opportunity tocomment on the Indian Tribe’sjurisdictional assertions during thepublic comment period prior to EPA’saction on the Indian Tribe’s application.

The Agency recognizes thatjurisdictional disputes between IndianTribes and States can be complex anddifficult and that it will, in somecircumstances, be forced to addresssuch disputes by attempting to workwith the parties in a mediative fashion.However, EPA’s ultimate responsibilityis protection of human health and theenvironment. In view of the mobility ofenvironmental problems, and theinterdependence of variousjurisdictions, it is imperative that allaffected sovereigns work cooperativelyfor environmental protection.

Under the Clean Water Act (CWA),the Safe Drinking Water Act (SDWA),the Comprehensive EnvironmentalResponse, Compensation and LiabilityAct (CERCLA) and the Clean Air Act(CAA), Congress has specified certaincriteria by which EPA is to determinewhether an Indian Tribe may be treatedin the same manner as a State. Thesecriteria generally require that the IndianTribe (1) Be recognized by the Secretaryof the Interior; (2) have an existinggovernment exercising substantialgovernmental duties and powers; (3)have adequate civil regulatoryjurisdiction over the subject matter andentities to be regulated; and (4) bereasonably expected to be capable ofadministering the Federalenvironmental program for which it isseeking approval.

As discussed below, EPA is requiringIndian Tribes seeking programauthorization and grants under TSCAsection 404 to demonstrate in theProgram Description that they meet thefour criteria listed above. The processEPA is proposing for Indian Tribes tomake this showing, however, generallyis not an onerous one. The Agency hassimplified its process for determiningTribal eligibility to administerenvironmental programs under severalother environmental statutes. See 59 FR64339 (December 14, 1994) (‘‘Treatmentas a State (TAS) Simplification Rule’’).The proposed process for determiningeligibility for TSCA Section 404programs parallels the simplificationrule. Generally, the fact that an Indian

Tribe has met the recognition orgovernmental function requirementunder another environmental statuteallowing for Tribal assumption ofenvironmental programs (e.g., the CleanWater Act, Safe Drinking Water Act,Clean Air Act) will establish that itmeets those particular requirements forpurposes of TSCA Section 404authorization. To facilitate review ofTribal applications, EPA requests thatthe Indian Tribe demonstrate that it hasbeen approved for ‘‘TAS’’ (under the old‘‘TAS’’ process) or been deemed eligibleto receive authorization (under thesimplified process) for any otherprogram.

If an Indian Tribe has not received‘‘TAS’’ approval or been deemedeligible to receive authorization, theIndian Tribe must demonstrate,pursuant to § 745.324(b)(5)(ii), that itmeets the recognition and governmentalfunction criteria described above. Adiscussion on how to make theseshowings can be found at 59 FR 64339(December 14, 1994).

EPA believes, on the other hand, thatthe Agency must make a separatedetermination that an Indian Tribe hasadequate jurisdictional authority andadministrative and programmaticcapability before it approves each Triballead-based paint program.

In particular, if the Indian Tribe isasserting jurisdiction over lead-basedpaint activities conducted by non-members on fee lands, it must explicitlyshow, in its submission, that theactivities of non-members on fee landsregarding lead-based paint could haveserious and substantial effects on thehealth and welfare of the Indian Tribe.Copies of all documents, such astreaties, constitutions, bylaws, charters,executive orders, codes, ordinances,and/or resolutions which support theIndian Tribe’s assertions of jurisdictionmust also be included. EPA will reviewthis documentation and any commentsgiven during the public commentperiod, and then will make adetermination whether there has beenan adequate demonstration of Tribaljurisdiction over Tribal, and if asserted,non-member activities on fee landswithin the boundaries of thereservations.

Finally, capability is a determinationthat will be made on a case-by-casebasis. Ordinarily, the informationprovided in the application for programapproval submitted by an Indian Tribeor State, will be sufficient. Nevertheless,EPA may request, in individual cases,that the Indian Tribe provide a narrativestatement or other documents showingthat the Indian Tribe is capable of


administering the program for which itis seeking approval. See 59 FR 64341.

Consistent with the simplificationrule, no prequalification process will berequired for Indian Tribes to obtainprogram approval for the lead-basedpaint program. EPA will evaluatewhether Indian Tribes have met the foureligibility criteria listed above duringthe program approval process.

Today’s final rule also authorizesgrants to eligible tribes as well as Statesunder TSCA section 404(g). Under thestatutory scheme, section 404(g) grantsare specifically designed to aid indeveloping and implementingauthorized TSCA lead-based paintactivities programs. Given the Agency’sinterpretation that TSCA section 404 isproperly read to allow EPA to authorizequalifying Tribes to administer a lead-based paint program in lieu of theFederal program, it follows that theseTribes should also be eligible to receivegrant funding under TSCA section404(g) to ‘‘develop and carry outauthorized programs . . . .’’ TheAgency’s interpretation is consistentwith well established statutoryconstruction that ambiguous statutesshould 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 ofFederal Indian Law, 224–225 (1982).

X. Regulatory AssessmentRequirements

A. Executive Order 12866

Pursuant to Executive Order 12866(58 FR 51735, October 4, 1993), it hasbeen determined that this is a‘‘significant regulatory action’’ becausethis regulation may raise novel legal orpolicy issues arising out of the initialimplementation of the new legalmandates. As such, this action wassubmitted to the Office of Managementand Budget (OMB) for review. Anycomments or changes made during thatreview have been documented in thepublic record.

In addition, as specified by theExecutive Order, the Agency hasprepared a regulatory impact analysis(RIA) of the economic impactsassociated with this regulation. Thecomplete RIA document, titled TSCATitle IV Sections 402(a) and 404: TargetHousing and Child-Occupied FacilitiesFinal Rule Regulatory Impact Analysis,has been included in the public recordfor this regulation and is available forinspection in the TSCA public docketoffice. The central issue in the analysisis to identify, quantify and value theprivate and social benefits and costs ofrequiring that all lead-based paint

abatement activities be performed bycertified personnel trained by anaccredited program, and that all lead-based paint activities meet certainminimum work practice standards. Inattempting to conduct such an analysis,EPA encountered several difficultiesrelated to the availability of dataassociated with the activity-specificcosts and the benefits attributable tohaving trained and accredited personnelconduct the activities in accordancewith specific standards. Using availableinformation, the resulting analysis wasissued with the proposed rule and anycomments received were considered inthe development of the final rule, aswell as in the development of thecorresponding final RIA. The followingis a brief summary of the final RIA:

1. Costs of regulatory action. Costestimates for performing lead-basedpaint activities pursuant to today’s finalrule are based on the number ofinspections, lead hazard screens, riskassessments, and abatement activitiesand the unit costs associated withperforming such activities. The first-year costs are estimated to be $31million. Since the benefits and costs ofthis regulation occur at different timesduring the 50-year analysis period, EPAestimated their present value bydiscounting them. The selection of adiscount rate has a direct bearing on theanalysis, because cost and benefitestimates are sensitive to variations inthe discount rate. As such, learnedopinions vary on which discount rateshould be used in certaincircumstances. In this analysis, EPAuses a 3% discount rate for the coreanalysis and a 7% discount rate in thesensitivity analysis. Using a 3%discount rate, the present value of thecosts 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 workpractice standards are estimated at $637million and account for 57% of thediscounted costs. The work practicestandard costs are the main source ofcosts, due primarily to the cost offollowing these standards whenconducting risk assessments andabatements in target housing and child-occupied facilities.

Certain assumptions that are a resultof data limitations affect the estimates ofthe incremental costs of the rule. Theanalysis assumes current practices andtraining rates make up the baseline to becompared to the changes that will resultfrom the rule provisions. This analysisaccounts for the fact that lead-basedpaint activities are presently occurring,but does not account for the potentialincrease in such activities over time as

a result of EPA regulationsimplementing other portions of Title X,resulting in greater costs. However,under these circumstances the attendantbenefits would also be greater. Also,current training rate estimates assumethat on average, lead-based paintactivities do not provide full-timeemployment. If lead-based paintactivities do constitute full-timeemployment, then fewer people willrequire training.

2. Benefits of regulatory action. Theobjective of the benefit analysis is toidentify the benefits attributable to theregulation, which in this case are theincremental benefits associated withsections 402(a) and 404 or the value ofany incremental risk reduction broughtabout by performing these activitiesusing trained labor that complies withthe work practice standards, which arealso contained in the rule. Thesebenefits consist of the value toconsumers of being able to purchaselead-based paint activities services ofmore reliable quality. As a result of thereduced uncertainty about the quality ofsuch services, more inspections, leadhazard screens, risk assessments, andabatements will be performed. Inaddition, the average quality of theservices that are performed will rise asthe low-quality lead-based paintactivities are curtailed or eliminated bythe accreditation, training, certificationand work-practice standardrequirements. The quantification andvaluation of these benefits—the abilityto purchase a service of more reliablequality and the improvement inquality—would require informationabout the distribution of quality of lead-based paint activities that buildingowners may purchase if this rule werepromulgated, and in its absence. Due todata limitations, it was not possible toestimate the benefits of the rule. Totalbenefits of abatement, however, wereestimated. The number of quantifiableand monetizable benefit categories inthe analysis of abatement benefits islimited because dose-response functionsnecessary to assess the potential impactsof lead-based paint hazard reductionson human health and the environmentare not available, and knowledge ofnational blood-lead levels pre- and post-implementation of sections 402(a) and404 is also unavailable.

The second-year total measurablebenefits of abatement are estimated at$625 million. Total measurable benefitsof abatement, discounted over a 50-yearperiod at 3% percent are estimated at$16.1 billion, and discounted at 7%over the same time period are estimatedat $1.55 billion. These benefits accruefrom reductions of negative impacts on


children’s intelligence, with anestimated present value of totalmeasured benefits of abatement equal to$16.1 billion ($13.1 billion in targethousing and $3 billion in child-occupied facilities).

In addition to the measured benefitsof abatement in the base analysis, whichfocuses on protection of children age 6years or younger, other qualitativebenefit categories exist. These categoriesinclude:

(1) Neonatal mortality;(2) Adult resident health effects such

as hypertension, coronary heart diseaseand 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 dueto data limitations. The contributions ofthese two benefit categories areestimated and included in thesensitivity analysis below. Were thevalues of these additional benefitcategories included in the primaryanalysis, the measured benefits of therule could be as much as $54 billionwhen discounted at 3% over 50 years.

3. Benefit-cost comparison. Thepurpose of this Regulatory ImpactAnalysis (RIA) was to analyze thebenefits, costs, and economic impacts ofthe final rule implementing sections402(a)/404. As discussed in the RIA,there are benefits to society associatedwith the reduction of lead-based painthazards in general and there are alsobenefits associated with theestablishment of certification programsfor ensuring that only trainedindividuals perform the lead-basedpaint activities. Although there isinsufficient data to allow for aquantification of those benefits, EPAbelieves that the analysis it conductedwith regard to the benefits fromreducing lead-based paint hazardsindicates that sections 402(a)/404provide a vehicle that will aid in therealization of those benefits and that thecosts of this rule are reasonable in lightof the potential magnitude of thosebenefits, quantified or not.

It is important to point out that whilethe total costs of the rule arecomprehensively quantified, benefits ofabatement are only partially quantified.If benefits to adult residents of targethousing, lead-based paint abatementworkers, individuals who live, work, ortravel near abatement activities, and theenvironment were included, the benefitsof the rule would be increasedsubstantially. Estimates for possiblebenefits to two groups of potential

beneficiaries (workers and adultresidents of target housing) are providedin the sensitivity analysis discussionbelow.

4. Sensitivity analysis. Six sets ofsensitivity analyses examine the effectson key categories of the benefits ofabatements and cost categories. Twosets affected the costs: alternative workpractice standard costs (resulting fromalternative estimates of likely soilabatement practices) and alternativetraining costs (resulting from alternativeassumptions of likely workload). Inaddition, varying assumptions ofchanges in blood-lead levels attributableto the rule provide estimated potentialbenefits for neonatal mortality, adultresidents of abated units and workers.Finally, an alternative discount rate of7%, which affects both the estimatedcosts and benefits of the rule, is applied.

Use of an alternate discount rate andinclusion of adult resident benefits hadthe greatest impact on benefits andcosts. Simply discounting the stream ofcosts by 7% decreases the present valueof the 50-year incremental cost estimateby 52%. Correspondingly, the use of the7% discount rate decreases the presentvalue of the 50-year benefit stream by90%. Incorporation of adult residentbenefits increases total benefits by $17.9billion per 0.1 µg/dL change in bloodlead when discounted at 3% over 50years, without impacting the costs.

5. Response to comments on the RIA.The Agency received comments on theRIA from 16 parties. The comments arein five major categories: types ofstructures covered by the rule,estimation of benefits, estimation ofcosts, analytic assumptions, and factorsleft out of the analysis. In several cases,the rule and/or the analysis wererevised to respond to these comments.In other cases, the Agency determinedthat the rule and analysis wereappropriate. The comments andresponses are summarized here.

Comments on the types of structurescovered address the impacts of the ruleon public and commercial buildings andsteel structures. The Agency plans todevelop separate regulations affectingpublic and commercial buildings andsteel structures, and comments will beaddressed at that time.

Several commenters stated that EPAhad overestimated the benefits of therule. While it is not possible to isolatethe incremental benefits resulting fromthe rule, estimating the total value ofcertain categories of benefits due toproperly performed abatementsprovides a useful benchmark againstwhich to compare the incremental costsof the rule. This is especially true sincepoorly performed activities can result in

further exposures and thus negativebenefits. The RIA benefit estimates relyon IQ-related benefits to children age 6years and younger; neonatal and adulthypertension benefits which are alsoassumed to result from the proposedrule are presented in the sensitivityanalysis. The benefit estimates includethe benefits derived from the reductionsin lead-contaminated dust that occurwith a lead-based paint abatement.

On the cost side of the analysis, somecommenters argued that the costs wereoverestimated, while others that costswere underestimated. In response tocomments that costs wereoverestimated, the Agency notes that theestimates were conservative. In responseto the comments, the costs wereunderestimated; the Agency notes thatthe estimated costs are incremental nottotal. The per unit costs are estimated bycomparing current industry practices tothose required under the rule,identifying the additional actions therule would impose, and calculating thecosts of these actions. The currentanalysis accounts for the fact that somehouseholds will choose to skip theinspection step and start the processwith a lead hazard screen or riskassessment. Changes were also made inthe regulations governing soilabatements and the analysis of thesecosts. The Agency has reviewed theanalysis and determined that costs arenot underestimated.

A few of the comments challengedvarious analytic assumptions orapproaches. Some argued that EPA’sIntegrated Exposure Uptake Biokinetic(IEUBK) Model should not be used inestimating the benefits. The Agencybelieves the use of this model to beappropriate; the Agency currently usesit for risk assessments at sites coveredunder the Superfund program and theResource Conservation and RecoveryAct. Other comments challenged thediscount rate used in the analysis andthe handling of productivity growth.The analysis is performed in real, asopposed to nominal, terms and thus itis not necessary to adjust for inflation.The 3% discount rate is consistent withother environmental regulations; theeffects of using a higher rate arepresented in the sensitivity analysis.

Several comments asserted that theanalysis had not accounted forimportant factors. This is not the case.The final RIA includes the effect ofOSHA rules, which was one factornoted by commenters. The impact of therule on the demand for lead-based paintactivities is modeled using data fromMassachusetts, where similarregulations have been in effect for a fewyears. Attempts to uncover other


sources of data have been unsuccessful.In addition, the analysis now uses asingle definition of lead-based painthazards (paint with lead content of 1mg/cm2 and in deteriorated condition orgood condition on friction surfaces).

B. Regulatory Flexibility ActPursuant to the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), the Agencyconsidered whether today’s regulatoryaction will have a significant economicimpact on a substantial number of smallentities. Based on the Agency’s analysis,EPA determined that this action is likelyto have a modest adverse economicimpact on a substantial number of smallentities. EPA conducted a regulatoryflexibility analysis for the rule, theresults of which are summarized intoday’s preamble and discussed indetail in supporting documents in therulemaking record. In light of thatanalysis and public comments received,the Agency took numerous steps tominimize any adverse impact associatedwith the final rule, with particularemphasis on reducing any potentialadverse impact on small entities. Forexample, in the final rule, the Agencyreduced the recordkeeping requirementsassociated with the work practicestandards, and reduced the length of theabatement worker course.

Previous sections of the preamble tothis final rule include discussionssummarizing the need for and objectiveof this rule, responses to the significantcomments received on the proposedrule, and a summary of the analysis ofsmall entity impacts. In addition, aResponse to Public Comment Documentpresents EPA’s detailed response to allthe significant comments received onthe proposal (including the initialregulatory flexibility analysis preparedfor the proposed rule); and a RegulatoryImpact Analysis (RIA) includes acomplete description of the smallentities potentially impacted, theprojected requirements that smallentities might be subject to, a summaryof the changes made to the proposedrule which minimize the burden in thefinal rule, and an analysis of theprojected impacts on small entities.These documents are available in thepublic docket supporting thisrulemaking.

The following is a brief summary ofEPA’s analysis of the potentialeconomic impacts on small entities.Basically, section 402(a) does notrequire or mandate the abatement oflead-based paint, nor require that anyparticular enterprise participate in theabatement of lead-based paint. However,section 402(a) does require that if anabatement is voluntarily conducted,

certain training requirements and workpractices must be followed. The costs ofrequired training, certification, andwork practice standards may createcompetitive differences that could resultin unfair burdening of small firms. Thisanalysis estimates both the absolute andthe relative burden on small and largebusinesses.

The section 402(a) compliance costsconsist of two components that mayimpact small businesses: (1)Accreditation and training costs forworkers and supervisors, as well ascertification costs for firms, and (2)incremental costs of work practicestandards for abatement procedures.These two components coincide withthe two decision points faced by firmsinterested in performing lead-basedpaint abatement work (including soilabatement). In order to participate inthis industry, a firm must be certifiedand its employees must be trained andcertified. Firms incur these expenses inanticipation of work, based on itsassessment of the future demand forsuch services, its competition, and theprice it will be able to charge. If themarket demand does not meet theseexpectations, the firm may not recoupthese costs, thus decreasing its profits.

The costs resulting from work practicestandards are of a different nature.Firms that perform lead-based paintactivities often perform similar work insettings that do not involve lead and arenot affected by this rule. Occurring atthe second decision point, work practicestandards costs will be incurred by afirm only if it chooses to undertake agiven lead-based paint job. In eachsituation, the firm can assess the impactof the work practice standards on itssales and profit levels. If the impact isadverse (i.e., results in profit levelsbelow those available for other work),the firm has the option to decline thework. Most firms that perform lead-based paint activities are also active inthe non-lead-based paint markets. Inthis voluntary setting, the work practicestandards will not have an adverseimpact on the profits of businessesbecause these firms can focus, instead,on the non-lead-based paint business.Therefore, no estimates of work practicestandards burden were made. Likewise,owners of property will incur the workpractice standards costs only if theydetermine that an abatement is to theirbenefit.

To determine the impact of thetraining and certification requirementson large and small businesses, the ratiosof compliance costs to annual sales werecalculated. By using first-year trainingcosts, the largest impacts were estimated(a worst-case scenario). Impacts on firms

in subsequent years would besignificantly smaller because thedemand for training in later years woulddecrease from the first year ‘‘start up’’levels. Incremental certification andtraining costs per establishment werecalculated by multiplying the averagenumber of workers per establishment bythe per person certification and trainingcosts. Training costs vary by disciplineand certification fees of $60 perindividual and $350 per firm wereestimated. While it is likely that firmswill be able to pass some or all of thetraining and certification costs on totheir customers in the form of higherprices, this analysis investigates theworst case in which the firm mustabsorb all the costs.

Assuming that none of the trainingand certification costs are shiftedforward in the form of higher prices, theratios of compliance costs to annualsales for small establishments rangebetween 0.6 and 3.2%. For large firms,the ratios tend to be slightly lower,ranging from 0.6 and 1%. In the case ofboth large and small establishments, thelargest cost ratio occurs for StandardIndustrial Code 8743, testinglaboratories.

As discussed above, firms are likely topass these costs on to their customers inthe form of higher prices because theregulations apply to all firms involvedin lead-based paint activities. Therefore,the ratios tend to overestimate theimpacts. Since training and licensingcosts are a small percent of annual sales,and these percentages are only slightlyhigher for small businesses than forlarge ones, the impact of this regulationon small businesses will be small, as isthe differential between impacts onlarge and small businesses.

While this shifting of costs willalleviate the burden on abatement firms,the incremental costs of the regulationsmay affect building owners. Consistentwith the arguments presented above,under this rule abatement is a voluntaryaction. As such, property owners areunlikely to undertake an abatementunless they are able to pass the cost onto tenants or otherwise recoup the costsin terms of higher property values.Where abatements are mandated undera State law or local ordinance, however,the costs of this rule may have anadverse impact on landlords. Whileabandonment could possibly be theresult, existing information indicatesthat this is unlikely. Therefore, analysesof potential impacts on property ownersor tenants were not performed.

The comparison of impacts on smalland large training providers was notperformed for two reasons. First, exceptfor the Regional Lead Training Centers


(RLTCs), most training providers aresmall, so there would be no differentialeffect based on size of the firm. Inaddition, it is likely that trainingproviders will pass the additional costson to their trainees. This impact isanalyzed above under the assumptionthat firms undertaking lead-based paintactivities will bear these costs. Since thechanges will be required by Federalregulations, they will apply to alltraining providers. Second, there will beheightened concern about lead-basedpaint hazards and thus a greaterwillingness to pay for trained personnelwho will presumably provide higherquality services. In fact, theseregulations are likely to create a marketfor training services and thus may bebeneficial to small businesses.

C. Paperwork Reduction ActThe information collection

requirements in this rule have beensubmitted for approval to the Office ofManagement and Budget (OMB) underthe Paperwork Reduction Act, 44 U.S.C.3501 et seq. An Information CollectionRequest (ICR) document has beenprepared by EPA (EPA ICR No. 1715.02)and a copy may be obtained from SandyFarmer, OPPE Regulatory InformationDivision; U.S. Environmental ProtectionAgency (2136); 401 M St., SW.;Washington, DC 20460; by calling (202)260–2740; or by e-mail from‘‘[email protected].’’ Theinformation requirements are noteffective until OMB approves them.

Under today’s final rule, four entitiesmay be affected by new informationcollection and reporting requirements.These entities are: (1) States and IndianTribes; (2) training program providers;(3) individuals engaged in lead-basedpaint activities; and (4) firms engaged inlead-based paint activities.

Importantly, States and Indian Tribeshave the option of choosing to seekauthorization to administer lead-basedpaint activities programs under TSCAsection 404; thus the informationcollection and recordkeepingrequirements are voluntary activities forthese entities. In those States and IndianTribes that do not seek programauthorization, however, it is assumedthat EPA will administer a lead-basedpaint activities program.

Likewise, individuals and firms thatengage in lead-based paint activities, aswell as training providers deliveringtraining in such activities also have theoption of providing these services.Thus, for those individuals and firmsthat choose to provide instruction or tocontract their services for the purposesof conducting lead-based paintactivities, the information collection

and recordkeeping requirements also arevoluntary.

Nonetheless, it must be noted that theinformation collection andrecordkeeping requirements containedin the rule become mandatory once anentity chooses to administer a program;provide instruction; or contract itsservices in the lead-based paintactivities field. The Agency notes thatthe rule’s information collection andrecordkeeping requirements have beendesigned so as to assist the Agency inmeeting the core objectives of section402(a) and section 404 of TSCA Title IV.These objectives are to ensure theintegrity of an accreditation program fortraining providers; enable individualsand firms to become certified; andsubstantiate that programs administeredby States and Indian Tribes are asprotective as EPA’s federal program.The Agency believes that theinformation collection andrecordkeeping requirements generatedby the rule are balanced in that they willpermit the Agency to achieve thestatutory objectives of TSCA Title IVwithout imposing an undue burden onthose entities that choose to becomeinvolved in the lead-based paintactivities field. The projected burden forthese entities is summarized below.

For the purposes of this discussion,the term ‘‘burden’’ refers to the totaltime, effort, or financial resourcesexpended by persons to generate,maintain, retain, or disclose or provideinformation to or for a Federal agency.This includes the time needed to reviewinstructions; develop, acquire, install,and utilize technology and systems forthe purposes of collecting, validating,and verifying information, processingand maintaining information, anddisclosing and providing information;adjust the existing ways to comply withany previously applicable instructionsand requirements; train personnel to beable to respond to a collection ofinformation; search data sources;complete and review the collection ofinformation; and transmit or otherwisedisclose the information.

The average burden per trainingprovider for the first effective year of therule is estimated to be 28.3 hours witha cost per training provider of $681.40,and lesser burden in subsequent years.The estimated burden for the firsteffective year of the rule for the totalnumber of training providers is 5,667hours at a cost of $136,279.

The estimated, average burden perfirm or contractor (individuals may beemployed as firms or contractors)engaging in lead-based paint activities is115.7 hours with a cost of $2,473, withlesser burden in subsequent years. For

the total number of firms performinglead-based paint activities the burden isestimated to be 326,724 hours at a costof $6,985,059.

The estimated, average burden perindividual seeking certification toengage in lead-based paint activitiesdepends on the length of the requiredtraining, plus 1 additional hour. For thetotal of individuals, the first effectiveyear burden is 407,448 hours at a costof $16,092,230 with lesser burden insubsequent years.

The first effective year burden perState or Indian Tribe depends onwhether the entity must put legislationinto place before implementing aregulatory program. For States or IndianTribes that assume legislative andregulatory development the burden is1,715 hours; for those States or IndianTribes that need only to acquireprogram authorization the burden is 138hours. The total burden for States andIndian Tribes in the first effective yearis 48,713 hours at a cost of $959,534,with lesser burden in subsequent years.For EPA the estimated burden in thefirst effective year of the rule is 5,940hours at a cost of $197,285.

An Agency may not conduct orsponsor, and a person is not required torespond to a collection of informationunless it displays a currently valid OMBcontrol number. The OMB controlnumbers for EPA’s regulations are listedin 40 CFR part 9 and 48 CFR chapter 15.

Send comments on the burdenestimates and any suggested methodsfor minimizing respondent burden,including through the use of automatedcollection techniques to the Director,OPPE Regulatory Information Division;U.S. Environmental Protection Agency(2136); 401 M St., SW.; Washington, DC20460; and to the Office of Informationand Regulatory Affairs, Office ofManagement and Budget, 725 17th St.,NW., Washington, DC 20503, marked‘‘Attention: Desk Officer for EPA.’’Include the ICR number in anycorrespondence.

D. Unfunded Mandates Reform ActPursuant to Title II of the Unfunded

Mandates Reform Act of 1995 (Pub. L.104–4), EPA has determined that thisregulatory action does not contain any‘‘Federal mandates,’’ as described in theAct, for the States, local, or Tribalgovernments or the private sectorbecause the rule implements mandatesspecifically and explicitly set forth bythe Congress in TSCA section 402(a)and section 404 without the exercise ofany political discretion by EPA.

In any event, EPA has determined thatthis action does not result in theexpenditure of $100 million or more by


any State, local or tribal governments, orby anyone in the private sector. Thecosts associated with this action aredescribed as required by ExecutiveOrder 12866 in section A of this Unit inthe preamble.

As specified by Executive Order12875 (58 FR 58093, October 28, 1993),titled Enhancing the IntergovernmentalPartnership, the Agency has soughtinput from State, local and tribalgovernment representatives throughoutthe development of this rule. EPAanticipates that these governments willplay a critical role in theimplementation of a national lead-basedpaint activities training and certificationprogram. Consequently, the Agency feltthat their input and participation wereneeded to ensure the success of theprogram.

Specifically, before it began thedevelopment of today’s final rule, EPAinformally met with a broad range ofinterested parties, including State, localand tribal governments to solicitinformation on the subject of lead-basedpaint activities training, accreditation,certification and standards.Communication and input from theStates also was actively sought as theAgency developed a proposed rule, andafter the proposed rule was publishedfor public comment on September 2,1994.

During the public comment period, atleast three meetings were held withState representatives under the auspicesof the ‘‘Forum on State and TribalToxics Action’’ or ‘‘FOSTTA.’’ FOSTTAis an organization that serves as a forumfor State and Tribal officials to jointlyparticipate in addressing national toxicsissues, including lead. Under FOSTTA,a ‘‘lead project’’ has been formed towork with the States and tribes on lead-related issues. In addition to meetingswith FOSTTA representatives, theAgency met on December 5 and 6, 1994,with 93 State representatives from 49State health and environmentalagencies. Twelve representatives from10 tribes also participated in theDecember meeting. Furthermore, theAgency received written comments from83 State and local agencies representing49 States.

The input received from State, Tribaland local agencies has been very usefulin the final development of today’s finalrule. The Agency believes that thisinput has helped produce an efficientrule that will support the developmentof a workforce qualified to reduce andeliminate lead-based paint and itsassociated hazards. By working with theStates, Tribes and local agencies, EPAalso has initiated preliminary

discussions intended to facilitatecooperation and program reciprocity.

E. Executive Order 12898—Environmental Justice Considerations

Pursuant to Executive Order 12898(59 FR 7629, February 16, 1994), theAgency has considered environmentaljustice related issues with regard to thepotential impacts of this action on theenvironmental and health conditions inlow-income and minority communities.This examination shows that existinglead-based paint hazards are a risk to allsegments of the population living inpre-1978 housing. However, literatureindicates that some segments of oursociety are at relatively greater risk thanothers.

Although the baseline risks from lead-based paint fall disproportionately onpoorer sub-populations, it may be morelikely that abatements will take place inresidential dwellings occupied by mid-to upper-level income households.Abatements will be voluntary, andwealthier households are more likely tohave the financial resources to abate anexisting problem in their home, or toavoid lead-based paint hazards by notmoving into a residential dwelling withlead-based paint. Even though anational strategy of eliminating lead-based paint hazards targets a problemaffecting a greater share of poorhouseholds and minorities, the impactof income on the ability to undertakevoluntary abatements may result in amore inequitable distribution of therisks in the future.

In response to this situation, severalFederal agencies have established grantprograms that will provide financialsupport to reduce the prevalence of leadpoisoning among disadvantagedchildren. The EPA also has severalinformation initiatives designed toeducate the public, with a particularemphasis on this socio-economic group,of the dangers of lead.

XI. Submission to Congress and theGeneral Accounting Office

This action is not a ‘‘major rule’’ asdefined by 5 U.S.C. 804(2) of theAdministrative Procedure Act. Pursuantto 5 U.S.C. 801 (a)(1)(A), EPA submittedthis action to the U.S. Senate, the U.S.House of Representatives and theComptroller General of the GeneralAccounting Office prior to itspublication in today’s Federal Register.

XII. Rulemaking RecordEPA has established a record for this

rulemaking (docket control numberOPPTS–62128B). A public version ofthe record, without any informationclaimed as confidential business

information, is available in the TSCAPublic Docket Office, from 12 noon to 4p.m., Monday through Friday, exceptlegal holidays. The TSCA Public DocketOffice is located at EPA headquarters, inRm. G102, 401 M St., SW., Washington,DC. 20460.

The rulemaking record containsinformation considered by EPA indeveloping this final rule. The recordincludes: (1) All Federal Registernotices, (2) relevant support documents,(3) reports, (4) memoranda and letters,and (5) hearing transcripts responses tocomments, and other documents relatedto this rulemaking.

Unit XIII. of this preamble containsthe list of documents which the Agencyrelied upon while developing today’sregulation and can be found in thedocket. Other documents, not listedthere, such as those submitted withwritten comments from interestedparties, are contained in the TSCADocket office as well. A draft of today’sfinal rule submitted by theAdministrator to the OMB for aninteragency review process prior topublication of the rule is also containedin the public docket.

XIII. References

(1) Minutes from the December 5 and6, 1994 National Lead Conference; andminutes from Forum on State and TribalToxics Action (FOSTTA) meetings from1994 and 1995.

(2) Lead; Requirements for Lead-Based Paint Activities; Proposed Rule;Summary of Public Comments; preparedby the Office of Pollution Preventionand Toxics, (January 31, 1995).

(3) Lead; Requirements for Lead-Based Paint Activities; Proposed Rule;Response to Public CommentDocument; prepared by the Office ofPollution Prevention and Toxics,(August 1, 1996).

(4) Mathematica Policy Research, Inc.1990. Profile of Child care Settings; andU.S. Department of Education, NationalCenter for Education Statistics. 1993.Fast Response Survey, KindergartenTeacher Survey on Student Readiness.

(5) U. S. Census Bureau, SchoolEnrollment Supplement. 1994. CurrentPopulation Survey. (October 1994).

(6) U.S. Department of Housing andUrban Development (HUD), Office ofLead-Based Paint Abatement andPoisoning Prevention. 1995. Guidelinesfor the Evaluation and Control of Lead-Based Paint Hazards in Housing. (June1995).

(7) USEPA. 1995. ResidentialSampling for Lead: Protocols for Dustand Soil Sampling. (EPA 747–R–95–001, March 1995).


(8) USEPA. 1995. A Field Test ofLead-Based Paint Testing Technologies:Summary Report. (EPA 747–R–95–002a,May 1995).

(9) USEPA. 1995. A Review of StudiesAddressing Lead AbatementEffectiveness. (EPA 747–R–95–006, June1995).

(10) Amitai, Y. Brown, M.J., Graef,J.W., and Cosgrove, E. 1991.‘‘Residential Deleading: Effects on theBlood Lead Levels of Lead-PoisonedChildren.’’ Pediatrics. 88(5):893–897.

(11) Farfel, M.R. and Chisolm, J.J. Jr.1990. ‘‘Health and EnvironmentalOutcomes of Traditional and ModifiedPractices for Abatement of ResidentialLead-Based Paint.’’ American Journal ofPublic Health. 80(10):1240–1245.

(12) HUD, Office of Lead-Based PaintAbatement and Poisoning Prevention.1995. HUD Guidelines Appendix 11–1‘‘One-Hour Waiting Period Rationale forClearance Sampling.’’ (June 1995).

List of Subjects in 40 CFR Part 745Environmental protection, Hazardous

substances, Lead, Recordkeeping andreporting requirements.

Dated: August 21, 1996.Carol M. Browner,Administrator.

Therefore, 40 CFR part 745 isamended as follows:

PART 745—[AMENDED]

1. The authority citation for part 745is revised to read as follows:

Authority: 15 U.S.C. 2605, 2607, and 2681–2692.

2. By adding new subparts L and Qand reserving subparts G–K and M–P toread as follows:

Subparts G–K [Reserved]

Subpart L—Lead-Based PaintActivities

Sec.

745.220 Scope and applicability.745.223 Definitions.745.225 Accreditation of trainingprograms: target housing and child-occupiedfacilities.745.226 Certification of individuals andfirms engaged in lead-based paint activities:target housing and child-occupied facilities.745.227 Work practice standards forconducting lead-based paint activities: targethousing and child-occupied facilities.745.228 Accreditation of trainingprograms: public and commercial buildings,bridges and superstructures [Reserved].745.229 Certification of individuals andfirms engaged in lead-based paint activities:public and commercial buildings, bridgesand superstructures [Reserved].745.230 Work practice standards forconducting lead-based paint activities: publicand commercial buildings, bridges andsuperstructures [Reserved].

745.233 Lead-based paint activitiesrequirements.745.235 Enforcement.745.237 Inspections.745.239 Effective dates.

Subparts M–P [Reserved]

Subpart Q—State and Indian TribalPrograms

Sec.

745.320 Scope and purpose.745.323 Definitions.745.324 Authorization of State andIndian Tribal programs.745.325 Lead-based paint activities: Stateand Indian Tribal program requirements.745.326 Pre-renovation notification: Stateand Indian Tribal program requirements.745.327 State or Indian Tribal lead-basedpaint compliance and enforcement programs.745.328 Authorization of Indian Tribalprograms.745.330 Grants.745.339 Effective dates.

Subparts G–K [Reserved]

Subpart L—Lead-Based PaintActivities

§ 745.220 Scope and applicability.(a) This subpart contains procedures

and requirements for the accreditationof lead-based paint activities trainingprograms, procedures and requirementsfor the certification of individuals andfirms engaged in lead-based paintactivities, and work practice standardsfor performing such activities. Thissubpart also requires that, except asdiscussed below, all lead-based paintactivities, as defined in this subpart, beperformed by certified individuals andfirms.

(b) This subpart applies to allindividuals and firms who are engagedin lead-based paint activities as definedin § 745.223, except persons whoperform these activities withinresidential dwellings that they own,unless the residential dwelling isoccupied by a person or persons otherthan the owner or the owner’simmediate family while these activitiesare being performed, or a child residingin the building has been identified ashaving an elevated blood lead level.This subpart applies only in those Statesor Indian Country that do not have anauthorized State or Tribal programpursuant to § 745.324 of subpart Q.

(c) Each department, agency, andinstrumentality of the executive,legislative, and judicial branches of theFederal Government having jurisdictionover any property or facility, or engagedin any activity resulting, or which mayresult, in a lead-based paint hazard, andeach officer, agent, or employee thereofshall be subject to, and comply with, allFederal, State, interstate, and local

requirements, both substantive andprocedural, including the requirementsof this subpart regarding lead-basedpaint, lead-based paint activities, andlead-based paint hazards.

(d) While this subpart establishesspecific requirements for performinglead-based paint activities should theybe undertaken, nothing in this subpartrequires that the owner or occupantundertake any particular lead-basedpaint activity.

§ 745.223 Definitions.

The definitions in subpart A apply tothis subpart. In addition, the followingdefinitions apply.

Abatement means any measure or setof measures designed to permanentlyeliminate lead-based paint hazards.Abatement includes, but is not limitedto:

(1) The removal of lead-based paintand lead-contaminated dust, thepermanent enclosure or encapsulationof lead-based paint, the replacement oflead-painted surfaces or fixtures, andthe removal or covering of lead-contaminated soil; and

(2) All preparation, cleanup, disposal,and post-abatement clearance testingactivities associated with suchmeasures.

(3) Specifically, abatement includes,but is not limited to:

(i) Projects for which there is a writtencontract or other documentation, whichprovides that an individual or firm willbe conducting activities in or to aresidential dwelling or child-occupiedfacility that:

(A) Shall result in the permanentelimination of lead-based paint hazards;or

(B) Are designed to permanentlyeliminate lead-based paint hazards andare described in paragraphs (1) and (2)of this definition.

(ii) Projects resulting in thepermanent elimination of lead-basedpaint hazards, conducted by firms orindividuals certified in accordance with§ 745.226, unless such projects arecovered by paragraph (4) of thisdefinition;

(iii) Projects resulting in thepermanent elimination of lead-basedpaint hazards, conducted by firms orindividuals who, through their companyname or promotional literature,represent, advertise, or hold themselvesout to be in the business of performinglead-based paint activities as identifiedand defined by this section, unless suchprojects are covered by paragraph (4) ofthis definition; or

(iv) Projects resulting in thepermanent elimination of lead-basedpaint hazards, that are conducted in


response to State or local abatementorders.

(4) Abatement does not includerenovation, remodeling, landscaping orother activities, when such activities arenot designed to permanently eliminatelead-based paint hazards, but, instead,are designed to repair, restore, orremodel a given structure or dwelling,even though these activities mayincidentally result in a reduction orelimination of lead-based paint hazards.Furthermore, abatement does notinclude interim controls, operations andmaintenance activities, or othermeasures and activities designed totemporarily, but not permanently,reduce lead-based paint hazards.

Accredited training program means atraining program that has beenaccredited by EPA pursuant to § 745.225to provide training for individualsengaged in lead-based paint activities.

Adequate quality control means aplan or design which ensures theauthenticity, integrity, and accuracy ofsamples, including dust, soil, and paintchip or paint film samples. Adequatequality control also includes provisionsfor representative sampling.

Certified firm means a company,partnership, corporation, soleproprietorship, association, or otherbusiness entity that performs lead-basedpaint activities to which EPA has issueda certificate of approval pursuant to§ 745.226(f).

Certified inspector means anindividual who has been trained by anaccredited training program, as definedby this section, and certified by EPApursuant to § 745.226 to conductinspections. A certified inspector alsosamples for the presence of lead in dustand soil for the purposes of abatementclearance testing.

Certified abatement worker means anindividual who has been trained by anaccredited training program, as definedby this section, and certified by EPApursuant to § 745.226 to performabatements.

Certified project designer means anindividual who has been trained by anaccredited training program, as definedby this section, and certified by EPApursuant to § 745.226 to prepareabatement project designs, occupantprotection plans, and abatement reports.

Certified risk assessor means anindividual who has been trained by anaccredited training program, as definedby this section, and certified by EPApursuant to § 745.226 to conduct riskassessments. A risk assessor alsosamples for the presence of lead in dustand soil for the purposes of abatementclearance testing.

Certified supervisor means anindividual who has been trained by anaccredited training program, as definedby this section, and certified by EPApursuant to § 745.226 to supervise andconduct abatements, and to prepareoccupant protection plans andabatement reports.

Child-occupied facility means abuilding, or portion of a building,constructed prior to 1978, visitedregularly by the same child, 6 years ofage or under, on at least two differentdays within any week (Sunday throughSaturday period), provided that eachday’s visit lasts at least 3 hours and thecombined weekly visit lasts at least 6hours, and the combined annual visitslast at least 60 hours. Child-occupiedfacilities may include, but are notlimited to, day-care centers, preschoolsand kindergarten classrooms.

Clearance levels are values thatindicate the maximum amount of leadpermitted in dust on a surface followingcompletion of an abatement activity.

Common area means a portion of abuilding that is generally accessible toall occupants. Such an area mayinclude, but is not limited to, hallways,stairways, laundry and recreationalrooms, playgrounds, communitycenters, garages, and boundary fences.

Component or building componentmeans specific design or structuralelements or fixtures of a building,residential dwelling, or child-occupiedfacility that are distinguished from eachother 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, radiatorsand other heating units, shelves, shelfsupports, stair treads, stair risers, stairstringers, newel posts, railing caps,balustrades, windows and trim(including sashes, window heads,jambs, sills or stools and troughs), builtin cabinets, columns, beams, bathroomvanities, counter tops, and airconditioners; and exterior componentssuch as: painted roofing, chimneys,flashing, gutters and downspouts,ceilings, soffits, fascias, rake boards,cornerboards, bulkheads, doors anddoor trim, fences, floors, joists, latticework, railings and railing caps, siding,handrails, stair risers and treads, stairstringers, columns, balustrades, windowsills or stools and troughs, casings,sashes and wells, and air conditioners.

Containment means a process toprotect workers and the environment bycontrolling exposures to the lead-contaminated dust and debris createdduring an abatement.

Course agenda means an outline ofthe key topics to be covered during a

training course, including the timeallotted to teach each topic.

Course test means an evaluation of theoverall effectiveness of the trainingwhich shall test the trainees’ knowledgeand retention of the topics coveredduring the course.

Course test blue print means writtendocumentation identifying theproportion of course test questionsdevoted to each major topic in thecourse curriculum.

Deteriorated paint means paint that iscracking, flaking, chipping, peeling, orotherwise separating from the substrateof a building component.

Discipline means one of the specifictypes or categories of lead-based paintactivities identified in this subpart forwhich individuals may receive trainingfrom accredited programs and becomecertified by EPA. For example,‘‘abatement worker’’ is a discipline.

Distinct painting history means theapplication history, as indicated by itsvisual appearance or a record ofapplication, over time, of paint or othersurface coatings to a component orroom.

Documented methodologies aremethods or protocols used to sample forthe presence of lead in paint, dust, andsoil.

Elevated blood lead level (EBL) meansan excessive absorption of lead that isa confirmed concentration of lead inwhole blood of 20 µg/dl (micrograms oflead per deciliter of whole blood) for asingle venous test or of 15–19 µg/dl intwo consecutive tests taken 3 to 4months apart.

Encapsulant means a substance thatforms a barrier between lead-based paintand the environment using a liquid-applied coating (with or withoutreinforcement materials) or anadhesively bonded covering material.

Encapsulation means the applicationof an encapsulant.

Enclosure means the use of rigid,durable construction materials that aremechanically fastened to the substratein order to act as a barrier between lead-based paint and the environment.

Guest instructor means an individualdesignated by the training programmanager or principal instructor toprovide instruction specific to thelecture, hands-on activities, or workpractice components of a course.

Hands-on skills assessment means anevaluation which tests the trainees’ability to satisfactorily perform the workpractices and procedures identified in§ 745.225(d), as well as any other skilltaught in a training course.

Hazardous waste means any waste asdefined in 40 CFR 261.3.


Inspection means a surface-by-surfaceinvestigation to determine the presenceof lead-based paint and the provision ofa report explaining the results of theinvestigation.

Interim certification means the statusof an individual who has successfullycompleted the appropriate trainingcourse in a discipline from anaccredited training program, as definedby this section, but has not yet receivedformal certification in that disciplinefrom EPA pursuant to § 745.226. Interimcertifications expire 6 months after thecompletion of the training course, and isequivalent to a certificate for the 6-month period.

Interim controls means a set ofmeasures designed to temporarilyreduce human exposure or likelyexposure to lead-based paint hazards,including specialized cleaning, repairs,maintenance, painting, temporarycontainment, ongoing monitoring oflead-based paint hazards or potentialhazards, and the establishment andoperation of management and residenteducation programs.

Lead-based paint means paint orother surface coatings that contain leadequal to or in excess of 1.0 milligramsper square centimeter or more than 0.5percent by weight.

Lead-based paint activities means, inthe case of target housing and child-occupied facilities, inspection, riskassessment, and abatement, as definedin this subpart.

Lead-based paint hazard means anycondition that causes exposure to leadfrom lead-contaminated dust, lead-contaminated soil, or lead-contaminatedpaint that is deteriorated or present inaccessible surfaces, friction surfaces, orimpact surfaces that would result inadverse human health effects asidentified by the Administratorpursuant to TSCA section 403.

Lead-contaminated dust meanssurface dust in residential dwellings, orchild-occupied facilities that containsan area or mass concentration of lead ator in excess of levels identified by theAdministrator pursuant to TSCA section403.

Lead-contaminated soil means baresoil on residential real property and onthe property of a child-occupied facilitythat contains lead at or in excess oflevels identified by the Administratorpursuant to TSCA section 403.

Lead-hazard screen is a limited riskassessment activity that involves limitedpaint and dust sampling as described in§ 745.227(c).

Living area means any area of aresidential dwelling used by one ormore 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 astructure that contains more than oneseparate residential dwelling unit,which is used or occupied, or intendedto be used or occupied, in whole or inpart, as the home or residence of one ormore persons.

Paint in poor condition means morethan 10 square feet of deteriorated painton exterior components with largesurface areas; or more than 2 square feetof deteriorated paint on interiorcomponents with large surface areas(e.g., walls, ceilings, floors, doors); ormore than 10 percent of the total surfacearea of the component is deteriorated oninterior or exterior components withsmall surface areas (window sills,baseboards, soffits, trim).

Permanently covered soil means soilwhich has been separated from humancontact by the placement of a barrierconsisting of solid, relativelyimpermeable materials, such aspavement or concrete. Grass, mulch,and other landscaping materials are notconsidered permanent covering.

Person means any natural or judicialperson including any individual,corporation, partnership, or association;any Indian Tribe, State, or politicalsubdivision thereof; any interstate body;and any department, agency, orinstrumentality of the Federalgovernment.

Principal instructor means theindividual who has the primaryresponsibility for organizing andteaching a particular course.

Recognized laboratory means anenvironmental laboratory recognized byEPA pursuant to TSCA section 405(b) asbeing capable of performing an analysisfor lead compounds in paint, soil, anddust.

Reduction means measures designedto reduce or eliminate human exposureto lead-based paint hazards throughmethods including interim controls andabatement.

Residential dwelling means (1) adetached single family dwelling unit,including attached structures such asporches and stoops; or (2) a singlefamily dwelling unit in a structure thatcontains more than one separateresidential dwelling unit, which is usedor occupied, or intended to be used oroccupied, in whole or in part, as thehome or residence of one or morepersons.

Risk assessment means (1) an on-siteinvestigation to determine the existence,nature, severity, and location of lead-based paint hazards, and (2) theprovision of a report by the individualor the firm conducting the risk

assessment, explaining the results of theinvestigation and options for reducinglead-based paint hazards.

Target housing means any housingconstructed prior to 1978, excepthousing for the elderly or persons withdisabilities (unless any one or morechildren age 6 years or under resides oris expected to reside in such housing forthe elderly or persons with disabilities)or any 0-bedroom dwelling.

Training curriculum means anestablished set of course topics forinstruction in an accredited trainingprogram for a particular disciplinedesigned to provide specializedknowledge and skills.

Training hour means at least 50minutes of actual learning, including,but not limited to, time devoted tolecture, learning activities, small groupactivities, demonstrations, evaluations,and/or hands-on experience.

Training manager means theindividual responsible for administeringa training program and monitoring theperformance of principal instructors andguest instructors.

Visual inspection for clearance testingmeans the visual examination of aresidential dwelling or a child-occupiedfacility following an abatement todetermine whether or not the abatementhas been successfully completed.

Visual inspection for risk assessmentmeans the visual examination of aresidential dwelling or a child-occupiedfacility to determine the existence ofdeteriorated lead-based paint or otherpotential sources of lead-based painthazards.

§ 745.225 Accreditation of trainingprograms: target housing and child-occupied facilities.

(a) Scope. (1) A training program mayseek accreditation to offer lead-basedpaint activities courses in any of thefollowing disciplines: inspector, riskassessor, supervisor, project designer,and abatement worker. A trainingprogram may also seek accreditation tooffer refresher courses for each of theabove listed disciplines.

(2) Training programs may first applyto EPA for accreditation of their lead-based paint activities courses orrefresher courses pursuant to thissection on or after August 31, 1998.

(3) A training program shall notprovide, offer, or claim to provide EPA-accredited lead-based paint activitiescourses without applying for andreceiving accreditation from EPA asrequired under paragraph (b) of thissection on or after March 1, 1999.

(b) Application process. Thefollowing are procedures a trainingprogram shall follow to receive EPA


accreditation to offer lead-based paintactivities courses:

(1) A training program seekingaccreditation shall submit a writtenapplication to EPA containing thefollowing information:

(i) The training program’s name,address, and telephone number.

(ii) A list of courses for which it isapplying for accreditation.

(iii) A statement signed by thetraining program manager certifying thatthe training program meets therequirements established in paragraph(c) of this section. If a training programuses EPA-recommended model trainingmaterials, or training materialsapproved by a State or Indian Tribe thathas been authorized by EPA undersubpart Q of this part, the trainingprogram manager shall include astatement certifying that, as well.

(iv) If a training program does not useEPA-recommended model trainingmaterials or training materials approvedby an authorized State or Indian Tribe,its application for accreditation shallalso include:

(A) A copy of the student andinstructor manuals, or other materials tobe used for each course.

(B) A copy of the course agenda foreach course.

(v) All training programs shall includein their application for accreditation thefollowing:

(A) A description of the facilities andequipment to be used for lecture andhands-on training.

(B) A copy of the course test blueprintfor each course.

(C) A description of the activities andprocedures that will be used forconducting the assessment of hands-onskills for each course.

(D) A copy of the quality control planas described in paragraph (c)(9) of thissection.

(2) If a training program meets therequirements in paragraph (c) of thissection, then EPA shall approve theapplication for accreditation no morethan 180 days after receiving a completeapplication from the training program.In the case of approval, a certificate ofaccreditation shall be sent to theapplicant. In the case of disapproval, aletter describing the reasons fordisapproval shall be sent to theapplicant. Prior to disapproval, EPAmay, at its discretion, work with theapplicant to address inadequacies in theapplication for accreditation. EPA mayalso request additional materialsretained by the training program underparagraph (i) of this section. If a trainingprogram’s application is disapproved,the program may reapply foraccreditation at any time.

(3) A training program may apply foraccreditation to offer courses orrefresher courses in as many disciplinesas it chooses. A training program mayseek accreditation for additional coursesat any time as long as the program candemonstrate that it meets therequirements of this section.

(c) Requirements for the accreditationof training programs. For a trainingprogram to obtain accreditation fromEPA to offer lead-based paint activitiescourses, the program shall meet thefollowing requirements:

(1) The training program shall employa training manager who has:

(i) At least 2 years of experience,education, or training in teachingworkers or adults; or

(ii) A bachelor’s or graduate degree inbuilding construction technology,engineering, industrial hygiene, safety,public health, education, businessadministration or program managementor a related field; or

(iii) Two years of experience inmanaging a training programspecializing in environmental hazards;and

(iv) Demonstrated experience,education, or training in theconstruction industry including: lead orasbestos abatement, painting, carpentry,renovation, remodeling, occupationalsafety and health, or industrial hygiene.

(2) The training manager shalldesignate a qualified principalinstructor for each course who has:

(i) Demonstrated experience,education, or training in teachingworkers or adults; and

(ii) Successfully completed at least 16hours of any EPA-accredited or EPA-authorized State or Tribal-accreditedlead-specific training; and

(iii) Demonstrated experience,education, or training in lead or asbestosabatement, painting, carpentry,renovation, remodeling, occupationalsafety and health, or industrial hygiene.

(3) The principal instructor shall beresponsible for the organization of thecourse and oversight of the teaching ofall course material. The trainingmanager may designate guest instructorsas needed to provide instructionspecific to the lecture, hands-onactivities, or work practice componentsof a course.

(4) The following documents shall berecognized by EPA as evidence thattraining managers and principalinstructors have the education, workexperience, training requirements ordemonstrated experience, specificallylisted in paragraphs (c)(1) and (c)(2) ofthis section. This documentation neednot be submitted with the accreditationapplication, but, if not submitted, shall

be retained by the training program asrequired by the recordkeepingrequirements contained in paragraph (i)of this section. Those documentsinclude the following:

(i) Official academic transcripts ordiploma as evidence of meeting theeducation requirements.

(ii) Resumes, letters of reference, ordocumentation of work experience, asevidence of meeting the workexperience requirements.

(iii) Certificates from train-the-trainercourses and lead-specific trainingcourses, as evidence of meeting thetraining requirements.

(5) The training program shall ensurethe availability of, and provide adequatefacilities for, the delivery of the lecture,course test, hands-on training, andassessment activities. This includesproviding training equipment thatreflects current work practices andmaintaining or updating the equipmentand facilities as needed.

(6) To become accredited in thefollowing disciplines, the trainingprogram shall provide training coursesthat meet the following training hourrequirements:

(i) The inspector course shall last aminimum of 24 training hours, with aminimum of 8 hours devoted to hands-on training activities. The minimumcurriculum requirements for theinspector course are contained inparagraph (d)(1) of this section.

(ii) The risk assessor course shall lasta minimum of 16 training hours, with aminimum of 4 hours devoted to hands-on training activities. The minimumcurriculum requirements for the riskassessor course are contained inparagraph (d)(2) of this section.

(iii) The supervisor course shall last aminimum of 32 training hours, with aminimum of 8 hours devoted to hands-on activities. The minimum curriculumrequirements for the supervisor courseare contained in paragraph (d)(3) of thissection.

(iv) The project designer course shalllast a minimum of 8 training hours. Theminimum curriculum requirements forthe project designer course arecontained in paragraph (d)(4) of thissection.

(v) The abatement worker course shalllast a minimum of 16 training hours,with a minimum of 8 hours devoted tohands-on training activities. Theminimum curriculum requirements forthe abatement worker course arecontained in paragraph (d)(5) of thissection.

(7) For each course offered, thetraining program shall conduct either acourse test at the completion of thecourse, and if applicable, a hands-on


skills assessment, or in the alternative,a proficiency test for that discipline.Each individual must successfullycomplete the hands-on skills assessmentand receive a passing score on thecourse test to pass any course, orsuccessfully complete a proficiency test.

(i) The training manager isresponsible for maintaining the validityand integrity of the hands-on skillsassessment or profiency test to ensurethat it accurately evaluates the trainees’performance of the work practices andprocedures associated with the coursetopics contained in paragraph (d) of thissection.

(ii) The training manager isresponsible for maintaining the validityand integrity of the course test to ensurethat it accurately evaluates the trainees’knowledge and retention of the coursetopics.

(iii) The course test shall bedeveloped in accordance with the testblueprint submitted with the trainingaccreditation application.

(8) The training program shall issueunique course completion certificates toeach individual who passes the trainingcourse. The course completioncertificate shall include:

(i) The name, a unique identificationnumber, and address of the individual.

(ii) The name of the particular coursethat the individual completed.

(iii) Dates of course completion/testpassage.

(iv) Expiration date of interimcertification, which shall be 6 monthsfrom the date of course completion.

(v) The name, address, and telephonenumber of the training program.

(9) The training manager shalldevelop and implement a qualitycontrol plan. The plan shall be used tomaintain and improve the quality of thetraining program over time. This planshall contain at least the followingelements:

(i) Procedures for periodic revision oftraining materials and the course test toreflect innovations in the field.

(ii) Procedures for the trainingmanager’s annual review of principalinstructor competency.

(10) The training program shall offercourses which teach the work practicestandards for conducting lead-basedpaint activities contained in § 745.227,and other standards developed by EPApursuant to Title IV of TSCA. Thesestandards shall be taught in theappropriate courses to provide traineeswith the knowledge needed to performthe lead-based paint activities they areresponsible for conducting.

(11) The training manager shall beresponsible for ensuring that thetraining program complies at all times

with all of the requirements in thissection.

(12) The training manager shall allowEPA to audit the training program toverify the contents of the application foraccreditation as described in paragraph(b) of this section.

(d) Minimum training curriculumrequirements. To become accredited tooffer lead-based paint coursesinstruction in the specific disciplineslisted below, training programs mustensure that their courses of studyinclude, at a minimum, the followingcourse topics. Requirements ending inan asterisk (*) indicate areas that requirehands-on activities as an integralcomponent of the course.

(1) Inspector. (i) Role andresponsibilities of an inspector.

(ii) Background information on leadand its adverse health effects.

(iii) Background information onFederal, State, and local regulations andguidance that pertains to lead-basedpaint and lead-based paint activities.

(iv) Lead-based paint inspectionmethods, including selection of roomsand components for sampling ortesting.*

(v) Paint, dust, and soil samplingmethodologies.*

(vi) Clearance standards and testing,including random sampling.*

(vii) Preparation of the finalinspection report.*

(viii) Recordkeeping.(2) Risk assessor. (i) Role and

responsibilities of a risk assessor.(ii) Collection of background

information to perform a riskassessment.

(iii) Sources of environmental leadcontamination such as paint, surfacedust and soil, water, air, packaging, andfood.

(iv) Visual inspection for the purposesof 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 Federalguidance or regulations pertaining tolead-based paint hazards.*

(viii) Development of hazard controloptions, the role of interim controls, andoperations and maintenance activities toreduce lead-based paint hazards.

(ix) Preparation of a final riskassessment report.

(3) Supervisor. (i) Role andresponsibilities of a supervisor.


(iii) Background information onFederal, State, and local regulations and

guidance that pertain to lead-basedpaint abatement.

(iv) Liability and insurance issuesrelating to lead-based paint abatement.

(v) Risk assessment and inspectionreport interpretation.*

(vi) Development and implementationof an occupant protection plan andabatement report.

(vii) Lead-based paint hazardrecognition and control.*

(viii) Lead-based paint abatement andlead-based paint hazard reductionmethods, including restrictedpractices.*

(ix) Interior dust abatement/cleanupor lead-based paint hazard control andreduction methods.*

(x) Soil and exterior dust abatement orlead-based paint hazard control andreduction 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 largescale abatement projects.

(iii) Lead-based paint abatement andlead-based paint hazard reductionmethods, including restricted practicesfor large-scale abatement projects.

(iv) Interior dust abatement/cleanupor lead hazard control and reductionmethods for large-scale abatementprojects.

(v) Clearance standards and testing forlarge scale abatement projects.

(vi) Integration of lead-based paintabatement methods with modernizationand rehabilitation projects for largescale abatement projects.

(5) Abatement worker. (i) Role andresponsibilities of an abatement worker.


(iii) Background information onFederal, State and local regulations andguidance that pertain to lead-basedpaint abatement.

(iv) Lead-based paint hazardrecognition and control.*

(v) Lead-based paint abatement andlead-based paint hazard reductionmethods, including restrictedpractices.*

(vi) Interior dust abatement methods/cleanup or lead-based paint hazardreduction.*

(vii) Soil and exterior dust abatementmethods or lead-based paint hazardreduction.*

(e) Requirements for the accreditationof refresher training programs. Atraining program may seek accreditationto offer refresher training courses in anyof the following disciplines: inspector,risk assessor, supervisor, project


designer, and abatement worker. Toobtain EPA accreditation to offerrefresher training, a training programmust meet the following minimumrequirements:

(1) Each refresher course shall reviewthe curriculum topics of the full-lengthcourses listed under paragraph (d) ofthis section, as appropriate. In addition,to become accredited to offer refreshertraining courses, training programs shallensure that their courses of studyinclude, at a minimum, the following:

(i) An overview of current safetypractices relating to lead-based paintactivities in general, as well as specificinformation pertaining to theappropriate discipline.

(ii) Current laws and regulationsrelating to lead-based paint activities ingeneral, as well as specific informationpertaining to the appropriate discipline.

(iii) Current technologies relating tolead-based paint activities in general, aswell as specific information pertainingto the appropriate discipline.

(2) Each refresher course, except forthe project designer course, shall last aminimum of 8 training hours. Theproject designer refresher course shalllast a minimum of 4 training hours.

(3) For each course offered, thetraining program shall conduct a hands-on assessment (if applicable), and at thecompletion of the course, a course test.

(4) A training program may apply foraccreditation of a refresher courseconcurrently with its application foraccreditation of the correspondingtraining course as described inparagraph (b) of this section. If so, EPAshall use the approval proceduredescribed in paragraph (b) of thissection. In addition, the minimumrequirements contained in paragraphs(c) (except for the requirements inparagraph (c)(6)), and (e)(1), (e)(2) and(e)(3) of this section shall also apply.

(5) A training program seekingaccreditation to offer refresher trainingcourses only shall submit a writtenapplication to EPA containing thefollowing information:

(i) The refresher training program’sname, address, and telephone number.

(ii) A list of courses for which it isapplying for accreditation.

(iii) A statement signed by thetraining program manager certifying thatthe refresher training program meets theminimum requirements established inparagraph (c) of this section, except forthe requirements in paragraph (c)(6) ofthis section. If a training program usesEPA-developed model trainingmaterials, or training materialsapproved by a State or Indian Tribe thathas been authorized by EPA under§ 745.324 to develop its refresher

training course materials, the trainingmanager shall include a statementcertifying that, as well.

(iv) If the refresher training coursematerials are not based on EPA-developed model training materials ortraining materials approved by anauthorized State or Indian Tribe, thetraining program’s application foraccreditation shall include:

(A) A copy of the student andinstructor manuals to be used for eachcourse.

(B) A copy of the course agenda foreach course.

(v) All refresher training programsshall include in their application foraccreditation the following:

(A) A description of the facilities andequipment to be used for lecture andhands-on training.

(B) A copy of the course test blueprintfor each course.

(C) A description of the activities andprocedures that will be used forconducting the assessment of hands-onskills for each course (if applicable).

(D) A copy of the quality control planas described in paragraph (c)(9) of thissection.

(vi) The requirements in paragraphs(c)(1) through (c)(5), and (c)(7) through(c)(12) of this section apply to refreshertraining providers.

(vii) If a refresher training programmeets the requirements listed in thisparagraph, then EPA shall approve theapplication for accreditation no morethan 180 days after receiving a completeapplication from the refresher trainingprogram. In the case of approval, acertificate of accreditation shall be sentto the applicant. In the case ofdisapproval, a letter describing thereasons for disapproval shall be sent tothe applicant. Prior to disapproval, EPAmay, at its discretion, work with theapplicant to address inadequacies in theapplication for accreditation. EPA mayalso request additional materialsretained by the refresher trainingprogram under paragraph (i) of thissection. If a refresher training program’sapplication is disapproved, the programmay reapply for accreditation at anytime.

(f) Re-accreditation of trainingprograms. (1) Unless re-accredited, atraining program’s accreditation(including refresher trainingaccreditation) shall expire 4 years afterthe date of issuance. If a trainingprogram meets the requirements of thissection, the training program shall be re-accredited.

(2) A training program seeking re-accreditation shall submit anapplication to EPA no later than 180days before its accreditation expires. If

a training program does not submit itsapplication for re-accreditation by thatdate, EPA cannot guarantee that theprogram will be re-accredited before theend of the accreditation period.

(3) The training program’s applicationfor re-accreditation shall contain:

(i) The training program’s name,address, and telephone number.

(ii) A list of courses for which it isapplying for re-accreditation.

(iii) A description of any changes tothe training facility, equipment orcourse materials since its lastapplication was approved that adverselyaffects the students ability to learn.

(iv) A statement signed by theprogram manager stating:

(A) That the training programcomplies at all times with allrequirements in paragraphs (c) and (e) ofthis section, as applicable; and

(B) The recordkeeping and reportingrequirements of paragraph (i) of thissection shall be followed.

(4) Upon request, the training programshall allow EPA to audit the trainingprogram to verify the contents of theapplication for re-accreditation asdescribed in paragraph (f)(3) of thissection.

(g) Suspension, revocation, andmodification of accredited trainingprograms. (1) EPA may, after notice andan opportunity for hearing, suspend,revoke, or modify training programaccreditation (including refreshertraining accreditation) if a trainingprogram, training manager, or otherperson with supervisory authority overthe training program has:

(i) Misrepresented the contents of atraining course to EPA and/or thestudent population.

(ii) Failed to submit requiredinformation or notifications in a timelymanner.

(iii) Failed to maintain requiredrecords.

(iv) Falsified accreditation records,instructor qualifications, or otheraccreditation-related information ordocumentation.

(v) Failed to comply with the trainingstandards and requirements in thissection.

(vi) Failed to comply with Federal,State, or local lead-based paint statutesor regulations.

(vii) Made false or misleadingstatements to EPA in its application foraccreditation or re-accreditation whichEPA relied upon in approving theapplication.

(2) In addition to an administrative orjudicial finding of violation, executionof a consent agreement in settlement ofan enforcement action constitutes, forpurposes of this section, evidence of a


failure to comply with relevant statutesor regulations.

(h) Procedures for suspension,revocation or modification of trainingprogram accreditation. (1) Prior totaking action to suspend, revoke, ormodify the accreditation of a trainingprogram, EPA shall notify the affectedentity in writing of the following:

(i) The legal and factual basis for thesuspension, revocation, or modification.

(ii) The anticipated commencementdate and duration of the suspension,revocation, or modification.

(iii) Actions, if any, which theaffected entity may take to avoidsuspension, revocation, or modification,or to receive accreditation in the future.

(iv) The opportunity and method forrequesting a hearing prior to final EPAaction to suspend, revoke or modifyaccreditation.

(v) Any additional information, asappropriate, which EPA may provide.

(2) If a hearing is requested by theaccredited training program, EPA shall:

(i) Provide the affected entity anopportunity to offer written statementsin response to EPA’s assertions of thelegal and factual basis for its proposedaction, and any other explanations,comments, and arguments it deemsrelevant to the proposed action.

(ii) Provide the affected entity suchother procedural opportunities as EPAmay deem appropriate to ensure a fairand impartial hearing.

(iii) Appoint an official of EPA asPresiding Officer to conduct the hearing.No person shall serve as PresidingOfficer if he or she has had any priorconnection with the specific matter.

(3) The Presiding Officer appointedpursuant to paragraph (h)(2) of thissection shall:

(i) Conduct a fair, orderly, andimpartial hearing within 90 days of therequest for a hearing.

(ii) Consider all relevant evidence,explanation, comment, and argumentsubmitted.

(iii) Notify the affected entity inwriting within 90 days of completion ofthe hearing of his or her decision andorder. Such an order is a final agencyaction which may be subject to judicialreview.

(4) If EPA determines that the publichealth, interest, or welfare warrantsimmediate action to suspend theaccreditation of any training programprior to the opportunity for a hearing, itshall:

(i) Notify the affected entity of itsintent to immediately suspend trainingprogram accreditation for the reasonslisted in paragraph (g)(1) of this section.If a suspension, revocation, ormodification notice has not previously

been issued pursuant to paragraph (g)(1)of this section, it shall be issued at thesame time the emergency suspensionnotice is issued.

(ii) Notify the affected entity inwriting of the grounds for the immediatesuspension and why it is necessary tosuspend the entity’s accreditation beforean opportunity for a suspension,revocation or modification hearing.

(iii) Notify the affected entity of theanticipated commencement date andduration of the immediate suspension.

(iv) Notify the affected entity of itsright to request a hearing on theimmediate suspension within 15 days ofthe suspension taking place and theprocedures for the conduct of such ahearing.

(5) Any notice, decision, or orderissued by EPA under this section, anytranscripts or other verbatim record oforal testimony, and any documents filedby an accredited training program in ahearing under this section shall beavailable to the public, except asotherwise provided by section 14 ofTSCA or by part 2 of this title. Any suchhearing at which oral testimony ispresented shall be open to the public,except that the Presiding Officer mayexclude the public to the extentnecessary to allow presentation ofinformation which may be entitled toconfidential treatment under section 14of TSCA or part 2 of this title.

(6) The public shall be notified of thesuspension, revocation, modification orreinstatement of a training program’saccreditation through appropriatemechanisms.

(7) EPA shall maintain a list of partieswhose accreditation has beensuspended, revoked, modified orreinstated.

(i) Training program recordkeepingrequirements. (1) Accredited trainingprograms shall maintain, and makeavailable to EPA, upon request, thefollowing records:

(i) All documents specified inparagraph (c)(4) of this section thatdemonstrate the qualifications listed inparagraphs (c)(1) and (c)(2) of thissection of the training manager andprincipal instructors.

(ii) Current curriculum/coursematerials and documents reflecting anychanges made to these materials.

(iii) The course test blueprint.(iv) Information regarding how the

hands-on assessment is conductedincluding, 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 thissection.

(vi) Results of the students’ hands-onskills assessments and course tests, anda record of each student’s coursecompletion certificate.

(vii) Any other material not listedabove in paragraphs (i)(1)(i) through(i)(1)(vi) of this section that wassubmitted to EPA as part of theprogram’s application for accreditation.

(2) The training program shall retainthese records at the address specified onthe training program accreditationapplication (or as modified inaccordance with paragraph (i)(3) of thissection for a minimum of 3 years and 6months.

(3) The training program shall notifyEPA in writing within 30 days ofchanging the address specified on itstraining program accreditationapplication or transferring the recordsfrom that address.

§ 745.226 Certification of individuals andfirms engaged in lead-based paintactivities: target housing and child-occupied facilities.

(a) Certification of individuals. (1)Individuals seeking certification by EPAto engage in lead-based paint activitiesmust either:

(i) Submit to EPA an applicationdemonstrating that they meet therequirements established in paragraphs(b) or (c) of this section for the particulardiscipline for which certification issought; or

(ii) Submit to EPA an application witha copy of a valid lead-based paintactivities certification (or equivalent)from a State or Tribal program that hasbeen authorized by EPA pursuant tosubpart Q of this part.

(2) Individuals may first apply to EPAfor certification to engage in lead-basedpaint activities pursuant to this sectionon or after March 1, 1999.

(3) Following the submission of anapplication demonstrating that all therequirements of this section have beenmeet, EPA shall certify an applicant asan inspector, risk assessor, supervisor,project designer, or abatement worker,as appropriate.

(4) Upon receiving EPA certification,individuals conducting lead-based paintactivities shall comply with the workpractice standards for performing theappropriate lead-based paint activitiesas established in § 745.227.

(5) It shall be a violation of TSCA foran individual to conduct any of thelead-based paint activities described in§ 745.227 after August 30, 1999, if thatindividual has not been certified by EPApursuant to this section to do so.

(b) Inspector, risk assessor orsupervisor. (1) To become certified byEPA as an inspector, risk assessor, or


supervisor, pursuant to paragraph(a)(1)(i) of this section, an individualmust:

(i) Successfully complete anaccredited course in the appropriatediscipline and receive a coursecompletion certificate from anaccredited training program.

(ii) Pass the certification exam in theappropriate discipline offered by EPA;and,

(iii) Meet or exceed the followingexperience and/or educationrequirements:

(A) Inspectors. (1) No additionalexperience and/or educationrequirements.

(2) [Reserved](B) Risk assessors. (1) Successful

completion of an accredited trainingcourse for inspectors; and

(2) Bachelor’s degree and 1 year ofexperience in a related field (e.g., lead,asbestos, environmental remediationwork, or construction), or an Associatesdegree and 2 years experience in arelated field (e.g., lead, asbestos,environmental remediation work, orconstruction); or

(3) Certification as an industrialhygienist, professional engineer,registered architect and/or certificationin a related engineering/health/environmental field (e.g., safetyprofessional, environmental scientist);or

(4) A high school diploma (orequivalent), and at least 3 years ofexperience in a related field (e.g., lead,asbestos, environmental remediationwork or construction).

(C) Supervisor: (1) One year ofexperience as a certified lead-basedpaint abatement worker; or

(2) At least 2 years of experience ina related field (e.g., lead, asbestos, orenvironmental remediation work) or inthe building trades.

(2) The following documents shall berecognized by EPA as evidence ofmeeting the requirements listed in(b)(2)(iii) of this paragraph:

(i) Official academic transcripts ordiploma, as evidence of meeting theeducation requirements.


(iii) Course completion certificatesfrom lead-specific or other relatedtraining courses, issued by accreditedtraining programs, as evidence ofmeeting the training requirements.

(3) In order to take the certificationexamination for a particular disciplinean individual must:

(i) Successfully complete anaccredited course in the appropriate

discipline and receive a coursecompletion certificate from anaccredited training program.

(ii) Meet or exceed the education and/or experience requirements in paragraph(b)(1)(iii) of this section.

(4) The course completion certificateshall serve as interim certification for anindividual until the next availableopportunity to take the certificationexam. Such interim certification shallexpire 6 months after issuance.

(5) After passing the appropriatecertification exam and submitting anapplication demonstrating that he/shemeets the appropriate training,education, and/or experienceprerequisites described in paragraph(b)(1) of this section, an individual shallbe issued a certificate by EPA. Tomaintain certification, an individualmust be re-certified as described inparagraph (e) of this section.

(6) An individual may take thecertification exam no more than threetimes within 6 months of receiving acourse completion certificate.

(7) If an individual does not pass thecertification exam and receive acertificate within 6 months of receivinghis/her course completion certificate,the individual must retake theappropriate course from an accreditedtraining program before reapplying forcertification from EPA.

(c) Abatement worker and projectdesigner. (1) To become certified byEPA as an abatement worker or projectdesigner, pursuant to paragraph (a)(1)(i)of this section, an individual must:

(i) Successfully complete anaccredited course in the appropriatediscipline and receive a coursecompletion certificate from anaccredited training program.

(ii) Meet or exceed the followingadditional experience and/or educationrequirements:

(A) Abatement workers. (1) Noadditional experience and/or educationrequirements.

(2) [Reserved](B) Project designers. (1) Successful

completion of an accredited trainingcourse for supervisors.

(2) Bachelor’s degree in engineering,architecture, or a related profession, and1 year of experience in buildingconstruction and design or a relatedfield; or

(3) Four years of experience inbuilding construction and design or arelated field.

(2) The following documents shall berecognized by EPA as evidence ofmeeting the requirements listed in thisparagraph:

(i) Official academic transcripts ordiploma, as evidence of meeting theeducation requirements.


(iii) Course completion certificatesfrom lead-specific or other relatedtraining courses, issued by accreditedtraining programs, as evidence ofmeeting the training requirements.

(3) The course completion certificateshall serve as an interim certificationuntil certification from EPA is received,but shall be valid for no more than 6months from the date of completion.

(4) After successfully completing theappropriate training courses andmeeting any other qualificationsdescribed in paragraph (c)(1) of thissection, an individual shall be issued acertificate from EPA. To maintaincertification, an individual must be re-certified as described in paragraph (e) ofthis section.

(d) Certification based on priortraining. (1) Any individual whoreceived training in a lead-based paintactivity between October 1, 1990, andMarch 1, 1999 shall be eligible forcertification by EPA under thealternative procedures contained in thisparagraph. Individuals who havereceived lead-based paint activitiestraining at an EPA-authorized State orTribal accredited training program shallalso be eligible for certification by EPAunder the following alternativeprocedures:

(i) Applicants for certification as aninspector, risk assessor, or supervisorshall:

(A) Demonstrate that the applicanthas successfully completed training oron-the-job training in the conduct of alead-based paint activity.

(B) Demonstrate that the applicantmeets or exceeds the education and/orexperience requirements in paragraph(b)(1)(iii) of this section.

(C) Successfully complete anaccredited refresher training course forthe appropriate discipline.

(D) Pass a certification examadministered by EPA for the appropriatediscipline.

(ii) Applicants for certification as anabatement worker or project designershall:

(A) Demonstrate that the applicanthas successfully completed training oron-the-job training in the conduct of alead-based paint activity.

(B) Demonstrate that the applicantmeets the education and/or experiencerequirements in paragraphs (c)(1) of thissection; and


(C) Successfully complete anaccredited refresher training course forthe appropriate discipline.

(2) Individuals shall have untilAugust 30, 1999 to apply to EPA forcertification under the aboveprocedures. After that date, allindividuals wishing to obtaincertification must do so through theprocedures described in paragraph (a),and paragraph (b) or (c) of this section,according to the discipline for whichcertification is sought.

(e) Re-certification. (1) To maintaincertification in a particular discipline, acertified individual shall apply to andbe re-certified by EPA in that disciplineby EPA either:

(i) Every 3 years if the individualcompleted a training course with acourse test and hands-on assessment; or

(ii) every 5 years if the individualcompleted a training course with aproficiency test.

(2) An individual shall be re-certifiedif the individual successfully completesthe appropriate accredited refreshertraining course and submits a valid copyof the appropriate refresher coursecompletion certificate.

(f) Certification of firms. (1) All firmswhich perform or offer to perform anyof the lead-based paint activitiesdescribed in § 745.227 after August 30,1999 shall be certified by EPA.

(2) A firm seeking certification shallsubmit to EPA a letter attesting that thefirm shall only employ appropriatelycertified employees to conduct lead-based paint activities, and that the firmand its employees shall follow the workpractice standards in § 745.227 forconducting lead-based paint activities.

(3) From the date of receiving thefirm’s letter requesting certification,EPA shall have 90 days to approve ordisapprove the firm’s request forcertification. Within that time, EPAshall respond with either a certificate ofapproval or a letter describing thereasons for a disapproval.

(4) The firm shall maintain all recordspursuant to the requirements in§ 745.227.

(5) Firms may first apply to EPA forcertification to engage in lead-basedpaint activities pursuant to this sectionon or after March 1, 1999.

(g) Suspension, revocation, andmodification of certifications ofindividuals engaged in lead-based paintactivities. (1) EPA may, after notice andopportunity for hearing, suspend,revoke, or modify an individual’scertification if an individual has:

(i) Obtained training documentationthrough fraudulent means.

(ii) Gained admission to andcompleted an accredited training

program through misrepresentation ofadmission requirements.

(iii) Obtained certification throughmisrepresentation of certificationrequirements or related documentsdealing with education, training,professional registration, or experience.

(iv) Performed work requiringcertification at a job site without havingproof of certification.

(v) Permitted the duplication or use ofthe individual’s own certificate byanother.

(vi) Performed work for whichcertification is required, but for whichappropriate certification has not beenreceived.

(vii) Failed to comply with theappropriate work practice standards forlead-based paint activities at § 745.227.

(viii) Failed to comply with Federal,State, or local lead-based paint statutesor regulations.

(2) In addition to an administrative orjudicial finding of violation, forpurposes of this section only, executionof a consent agreement in settlement ofan enforcement action constitutesevidence of a failure to comply withrelevant statutes or regulations.

(h) Suspension, revocation, andmodification of certifications of firmsengaged in lead-based paint activities.(1) EPA may, after notice andopportunity for hearing, suspend,revoke, or modify a firm’s certificationif a firm has:

(i) Performed work requiringcertification at a job site withindividuals who are not certified.

(ii) Failed to comply with the workpractice standards established in§ 745.227.

(iii) Misrepresented facts in its letterof application for certification to EPA.

(iv) Failed to maintain requiredrecords.

(v) Failed to comply with Federal,State, or local lead-based paint statutesor regulations.

(2) In addition to an administrative orjudicial finding of violation, forpurposes of this section only, executionof a consent agreement in settlement ofan enforcement action constitutesevidence of a failure to comply withrelevant statutes or regulations.

(i) Procedures for suspension,revocation, or modification of thecertification of individuals or firms.

(1) If EPA decides to suspend, revoke,or modify the certification of anyindividual or firm, it shall notify theaffected entity in writing of thefollowing:

(i) The legal and factual basis for thesuspension, revocation, or modification.

(ii) The commencement date andduration of the suspension, revocation,or modification.

(iii) Actions, if any, which theaffected entity may take to avoidsuspension, revocation, or modificationor to receive certification in the future.

(iv) The opportunity and method forrequesting a hearing prior to final EPAaction to suspend, revoke, or modifycertification.

(v) Any additional information, asappropriate, which EPA may provide.

(2) If a hearing is requested by thecertified individual or firm, EPA shall:

(i) Provide the affected entity anopportunity to offer written statementsin response to EPA’s assertion of thelegal and factual basis and any otherexplanations, comments, and argumentsit deems relevant to the proposedaction.

(ii) Provide the affected entity suchother procedural opportunities as EPAmay deem appropriate to ensure a fairand impartial hearing.

(iii) Appoint an official of EPA asPresiding Officer to conduct the hearing.No person shall serve as PresidingOfficer if he or she has had any priorconnection with the specific matter.

(3) The Presiding Officer shall:(i) Conduct a fair, orderly, and

impartial hearing within 90 days of therequest for a hearing;

(ii) Consider all relevant evidence,explanation, comment, and argumentsubmitted; and

(iii) Notify the affected entity inwriting within 90 days of completion ofthe hearing of his or her decision andorder. Such an order is a final EPAaction subject to judicial review.

(4) If EPA determines that the publichealth, interest, or welfare warrantsimmediate action to suspend thecertification of any individual or firmprior to the opportunity for a hearing, itshall:

(i) Notify the affected entity of itsintent to immediately suspendcertification for the reasons listed inparagraph (h)(1) of this section. If asuspension, revocation, or modificationnotice has not previously been issued, itshall be issued at the same time theimmediate suspension notice is issued.

(ii) Notify the affected entity inwriting of the grounds upon which theimmediate suspension is based and whyit is necessary to suspend the entity’saccreditation before an opportunity fora hearing to suspend, revoke, or modifythe individual’s or firm’s certification.

(iii) Notify the affected entity of thecommencement date and duration of theimmediate suspension.

(iv) Notify the affected entity of itsright to request a hearing on theimmediate suspension within 15 days ofthe suspension taking place and the


procedures for the conduct of such ahearing.

(5) Any notice, decision, or orderissued by EPA under this section,transcript or other verbatim record oforal testimony, and any documents filedby a certified individual or firm in ahearing under this section shall beavailable to the public, except asotherwise provided by section 14 ofTSCA or by part 2 of this title. Any suchhearing at which oral testimony ispresented shall be open to the public,except that the Presiding Officer mayexclude the public to the extentnecessary to allow presentation ofinformation which may be entitled toconfidential treatment under section 14of TSCA or part 2 of this title.

§ 745.227 Work practice standards forconducting lead-based paint activities:target housing and child-occupied facilities.

(a) Effective date, applicability, andterms. (1) Beginning on March 1, 1999,all lead-based paint activities shall beperformed pursuant to the work practicestandards contained in this section.

(2) When performing any lead-basedpaint activity described by the certifiedindividual as an inspection, lead-hazardscreen, risk assessment or abatement, acertified individual must perform thatactivity in compliance with theappropriate requirements below.

(3) Documented methodologies thatare appropriate for this section arefound in the following: The U.S.Department of Housing and UrbanDevelopment (HUD) Guidelines for theEvaluation and Control of Lead-BasedPaint Hazards in Housing; the EPAGuidance on Residential Lead-BasedPaint, Lead-Contaminated Dust, andLead-Contaminated Soil; the EPAResidential Sampling for Lead:Protocols for Dust and Soil Sampling(EPA report number 7474–R–95–001);Regulations, guidance, methods orprotocols issued by States and IndianTribes that have been authorized byEPA; and other equivalent methods andquidelines.

(4) Clearance levels are appropriatefor the purposes of this section may befound in the EPA Guidance onResidential Lead-Based Paint, Lead-Contaminated Dust, and LeadContaminiated Soil or other equivalentguidelines.

(b) Inspection. (1) An inspection shallbe conducted only by a person certifiedby EPA as an inspector or risk assessorand, if conducted, must be conductedaccording to the procedures in thisparagraph.

(2) When conducting an inspection,the following locations shall be selectedaccording to documented methodologies

and tested for the presence of lead-basedpaint:

(i) In a residential dwelling and child-occupied facility, each component witha distinct painting history and eachexterior component with a distinctpainting history shall be tested for lead-based paint, except those componentsthat the inspector or risk assessordetermines to have been replaced after1978, or to not contain lead-based paint;and

(ii) In a multi-family dwelling orchild-occupied facility, each componentwith a distinct painting history in everycommon area, except those componentsthat the inspector or risk assessordetermines to have been replaced after1978, or to not contain lead-based paint.

(3) Paint shall be sampled in thefollowing manner: (i) The analysis ofpaint to determine the presence of leadshall be conducted using documentedmethodologies which incorporateadequate quality control procedures;and/or

(ii) All collected paint chip samplesshall be analyzed according toparagraph (f) of this section todetermine if they contain detectablelevels of lead that can be quantifiednumerically.

(4) The certified inspector or riskassessor shall prepare an inspectionreport which shall include the followinginformation:

(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 eachresidential dwelling or child-occupiedfacility.

(vi) Name, signature, and certificationnumber of each certified inspector and/or risk assessor conducting testing.

(vii) Name, address, and telephonenumber of the certified firm employingeach inspector and/or risk assessor, ifapplicable.

(viii) Each testing method and deviceand/or sampling procedure employedfor paint analysis, including qualitycontrol data and, if used, the serialnumber of any x-ray fluorescence (XRF)device.

(ix) Specific locations of each paintedcomponent tested for the presence oflead-based paint.

(x) The results of the inspectionexpressed in terms appropriate to thesampling method used.

(c) Lead hazard screen. (1) A leadhazard screen shall be conducted onlyby a person certified by EPA as a riskassessor.

(2) If conducted, a lead hazard screenshall be conducted as follows:

(i) Background information regardingthe physical characteristics of theresidential dwelling or child-occupiedfacility and occupant use patterns thatmay cause lead-based paint exposure toone or more children age 6 years andunder shall be collected.

(ii) A visual inspection of theresidential dwelling or child-occupiedfacility shall be conducted to:

(A) Determine if any deterioratedpaint is present, and

(B) Locate at least two dust samplinglocations.

(iii) If deteriorated paint is present,each surface with deteriorated paint,which is determined, using documentedmethodologies, to be in poor conditionand to have a distinct painting history,shall be tested for the presence of lead.

(iv) In residential dwellings, twocomposite dust samples shall becollected, one from the floors and theother from the windows, in rooms,hallways or stairwells where one ormore children, age 6 and under, aremost likely to come in contact withdust.

(v) In multi-family dwellings andchild-occupied facilities, in addition tothe floor and window samples requiredin paragraph (c)(1)(iii) of this section,the risk assessor shall also collectcomposite dust samples from commonareas where one or more children, age6 and under, are most likely to comeinto contact with dust.

(3) Dust samples shall be collectedand analyzed in the following manner:

(i) All dust samples shall be takenusing documented methodologies thatincorporate adequate quality controlprocedures.

(ii) All collected dust samples shall beanalyzed according to paragraph (f) ofthis section to determine if they containdetectable levels of lead that can bequantified numerically.

(4) Paint shall be sampled in thefollowing manner: (i) The analysis ofpaint to determine the presence of leadshall be conducted using documentedmethodologies which incorporateadequate quality control procedures;and/or

(ii) All collected paint chip samplesshall be analyzed according toparagraph (f) of this section todetermine if they contain detectablelevels of lead that can be quantifiednumerically.

(5) The risk assessor shall prepare alead hazard screen report, which shallinclude the following information:

(i) The information required in a riskassessment report as specified inparagraph (d) of this section, including


paragraphs (d)(11)(i) through(d)(11)(xiv), and excluding paragraphs(d)(11)(xv) through (d)(11)(xviii) of thissection. Additionally, any backgroundinformation collected pursuant toparagraph (c)(2)(i) of this section shallbe included in the risk assessmentreport; and

(ii) Recommendations, if warranted,for a follow-up risk assessment, and asappropriate, any further actions.

(d) Risk assessment. (1) A riskassessment shall be conducted only bya person certified by EPA as a riskassessor and, if conducted, must beconducted according to the proceduresin this paragraph.

(2) A visual inspection for riskassessment of the residential dwellingor child-occupied facility shall beundertaken to locate the existence ofdeteriorated paint, assess the extent andcauses of the deterioration, and otherpotential lead-based paint hazards.

(3) Background information regardingthe physical characteristics of theresidential dwelling or child-occupiedfacility and occupant use patterns thatmay cause lead-based paint exposure toone or more children age 6 years andunder shall be collected.

(4) Each surface with deterioratedpaint, which is determined, usingdocumented methodologies, to be inpoor condition and to have a distinctpainting history, shall be tested for thepresence of lead. Each other surfacedetermined, using documentedmethodologies, to be a potential lead-based paint hazard and having a distinctpainting history, shall also be tested forthe presence of lead.

(5) In residential dwellings, dustsamples (either composite or single-surface samples) from the window andfloor shall be collected in all living areaswhere one or more children, age 6 andunder, are most likely to come intocontact with dust.

(6) For multi-family dwellings andchild-occupied facilities, the samplesrequired in paragraph (d)(4) of thissection shall be taken. In addition,window and floor dust samples (eithercomposite or single-surface samples)shall be collected in the followinglocations:

(i) Common areas adjacent to thesampled residential dwelling or child-occupied facility; and

(ii) Other common areas in thebuilding where the risk assessordetermines that one or more children,age 6 and under, are likely to come intocontact with dust.

(7) For child-occupied facilities,window and floor dust samples (eithercomposite or single-surface samples)shall be collected in each room, hallway

or stairwell utilized by one or morechildren, age 6 and under, and in othercommon areas in the child-occupiedfacility where the risk assessordetermines one or more children, age 6and under, are likely to come intocontact with dust.

(8) Soil samples shall be collected andanalyzed for lead concentrations in thefollowing locations:

(i) Exterior play areas where bare soilis present; and

(ii) Dripline/foundation areas wherebare soil is present.

(9) Any paint, dust, or soil samplingor testing shall be conducted usingdocumented methodologies thatincorporate adequate quality controlprocedures.

(10) Any collected paint chip, dust, orsoil samples shall be analyzed accordingto paragraph (f) of this section todetermine if they contain detectablelevels of lead that can be quantifiednumerically.

(11) The certified risk assessor shallprepare a risk assessment report whichshall 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 conductingthe assessment.

(vii) Name, address, and telephonenumber of the certified firm employingeach certified risk assessor if applicable.

(viii) Name, address, and telephonenumber of each recognized laboratoryconducting analysis of collectedsamples.

(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 oflead.

(xii) All data collected from on-sitetesting, including quality control dataand, if used, the serial number of anyXRF device.

(xiii) All results of laboratory analysison collected paint, soil, and dustsamples.

(xiv) Any other sampling results.(xv) Any background information

collected pursuant to paragraph (d)(3) ofthis section.

(xvi) To the extent that they are usedas part of the lead-based paint hazarddetermination, the results of anyprevious inspections or analyses for thepresence of lead-based paint, or otherassessments of lead-based paint-relatedhazards.

(xvii) A description of the location,type, and severity of identified lead-

based paint hazards and any otherpotential lead hazards.

(xviii) A description of interimcontrols and/or abatement options foreach identified lead-based paint hazardand a suggested prioritization foraddressing each hazard. If the use of anencapsulant or enclosure isrecommended, the report shallrecommend a maintenance andmonitoring schedule for the encapsulantor enclosure.

(e) Abatement. (1) An abatement shallbe conducted only by an individualcertified by EPA, and if conducted, shallbe conducted according to theprocedures in this paragraph.

(2) A certified supervisor is requiredfor each abatement project and shall beonsite during all work site preparationand during the post-abatement cleanupof work areas. At all other times whenabatement activities are beingconducted, the certified supervisor shallbe onsite or available by telephone,pager or answering service, and able tobe present at the work site in no morethan 2 hours.

(3) The certified supervisor and thecertified firm employing that supervisorshall ensure that all abatement activitiesare conducted according to therequirements of this section and allother Federal, State and localrequirements.

(4) Notification of the commencementof lead-based paint abatement activitiesin a residential dwelling or child-occupied facility or as a result of aFederal, State, or local order shall begiven to EPA prior to thecommencement of abatement activities.The procedure for this notification willbe developed by EPA prior to August31, 1998.

(5) A written occupant protectionplan shall be developed for allabatement projects and shall beprepared according to the followingprocedures:

(i) The occupant protection plan shallbe unique to each residential dwellingor child-occupied facility and bedeveloped prior to the abatement. Theoccupant protection plan shall describethe measures and managementprocedures that will be taken during theabatement to protect the buildingoccupants from exposure to any lead-based paint hazards.

(ii) A certified supervisor or projectdesigner shall prepare the occupantprotection plan.

(6) The work practices listed belowshall be restricted during an abatementas follows:

(i) Open-flame burning or torching oflead-based paint is prohibited;


(ii) Machine sanding or grinding orabrasive blasting or sandblasting of lead-based paint is prohibited unless usedwith High Efficiency Particulate Air(HEPA) exhaust control which removesparticles of 0.3 microns or larger fromthe air at 99.97 percent or greaterefficiency;

(iii) Dry scraping of lead-based paintis permitted only in conjunction withheat guns or around electrical outlets orwhen treating defective paint spotstotaling no more than 2 square feet inany one room, hallway or stairwell ortotaling no more than 20 square feet onexterior surfaces; and

(iv) Operating a heat gun on lead-based paint is permitted only attemperatures below 1100 degreesFahrenheit.

(7) If conducted, soil abatement shallbe conducted in one of the followingways:

(i) If soil is removed, the lead-contaminated soil shall be replaced withsoil that is not lead-contaminated; or

(ii) If soil is not removed, the lead-contaminated soil shall be permanentlycovered, as defined in § 745.223.

(8) The following post-abatementclearance procedures shall be performedonly by a certified inspector or riskassessor:

(i) Following an abatement, a visualinspection shall be performed todetermine if deteriorated paintedsurfaces and/or visible amounts of dust,debris or residue are still present. Ifdeteriorated painted surfaces or visibleamounts of dust, debris or residue arepresent, these conditions must beeliminated prior to the continuation ofthe clearance procedures.

(ii) Following the visual inspectionand any post-abatement cleanuprequired by paragraph (e)(8)(i) of thissection, clearance sampling for lead-contaminated dust shall be conducted.Clearance sampling may be conductedby employing single-surface sampling orcomposite sampling techniques.

(iii) Dust samples for clearancepurposes shall be taken usingdocumented methodologies thatincorporate adequate quality controlprocedures.

(iv) Dust samples for clearancepurposes shall be taken a minimum of1 hour after completion of final post-abatement cleanup activities.

(v) The following post-abatementclearance activities shall be conductedas appropriate based upon the extent ormanner of abatement activitiesconducted in or to the residentialdwelling or child-occupied facility:

(A) After conducting an abatementwith containment between abated andunabated areas, one dust sample shall

be taken from one window (if available)and one dust sample shall be taken fromthe floor of no less than four rooms,hallways or stairwells within thecontainment area. In addition, one dustsample shall be taken from the flooroutside the containment area. If thereare less than four rooms, hallways orstairwells within the containment area,then all rooms, hallways or stairwellsshall be sampled.

(B) After conducting an abatementwith no containment, two dust samplesshall be taken from no less than fourrooms, hallways or stairwells in theresidential dwelling or child-occupiedfacility. One dust sample shall be takenfrom one window (if available) and onedust sample shall be taken from thefloor of each room, hallway or stairwellselected. If there are less than fourrooms, hallways or stairwells within theresidential dwelling or child-occupiedfacility then all rooms, hallways orstairwells shall be sampled.

(C) Following an exterior paintabatement, a visible inspection shall beconducted. All horizontal surfaces inthe outdoor living area closest to theabated surface shall be found to becleaned of visible dust and debris. Inaddition, a visual inspection shall beconducted to determine the presence ofpaint chips on the dripline or next tothe foundation below any exteriorsurface abated. If paint chips arepresent, they must be removed from thesite and properly disposed of, accordingto all applicable Federal, State and localrequirements.

(vi) The rooms, hallways or stairwellsselected for sampling shall be selectedaccording to documentedmethodologies.

(vii) The certified inspector or riskassessor shall compare the residual leadlevel (as determined by the laboratoryanalysis) from each dust sample withapplicable clearance levels for lead indust on floors and windows. If theresidual lead levels in a dust sampleexceed the clearance levels, all thecomponents represented by the failedsample shall be recleaned and retesteduntil clearance levels are met.

(9) In a multi-family dwelling withsimilarly constructed and maintainedresidential dwellings, random samplingfor the purposes of clearance may beconducted provided:

(i) The certified individuals who abateor clean the residential dwellings do notknow which residential dwelling will beselected for the random sample.

(ii) A sufficient number of residentialdwellings are selected for dust samplingto provide a 95 percent level ofconfidence that no more than 5 percentor 50 of the residential dwellings

(whichever is smaller) in the randomlysampled population exceed theappropriate clearance levels.

(iii) The randomly selected residentialdwellings shall be sampled andevaluated for clearance according to theprocedures found in paragraph (e)(8) ofthis section.

(10) An abatement report shall beprepared by a certified supervisor orproject designer. The abatement reportshall include the following information:

(i) Start and completion dates ofabatement.

(ii) The name and address of eachcertified firm conducting the abatementand the name of each supervisorassigned to the abatement project.

(iii) The occupant protection planprepared pursuant to paragraph (e)(5) ofthis section.

(iv) The name, address, and signatureof each certified risk assessor orinspector conducting clearancesampling and the date of clearancetesting.

(v) The results of clearance testingand all soil analyses (if applicable) andthe name of each recognized laboratorythat conducted the analyses.

(vi) A detailed written description ofthe abatement, including abatementmethods used, locations of rooms and/or components where abatementoccurred, reason for selecting particularabatement methods for each component,and any suggested monitoring ofencapsulants or enclosures.

(f) Collection and laboratory analysisof samples. Any paint chip, dust, or soilsamples collected pursuant to the workpractice standards contained in thissection shall be:

(1) Collected by persons certified byEPA as an inspector or risk assessor; and

(2) Analyzed by a laboratoryrecognized by EPA pursuant to section405(b) of TSCA as being capable ofperforming analyses for leadcompounds in paint chip, dust, and soilsamples.

(g) Composite dust sampling.Composite dust sampling may only beconducted in the situations specified inparagraphs (c) through (e) of thissection. If such sampling is conducted,the following conditions shall apply:

(1) Composite dust samples shallconsist of at least two subsamples;

(2) Every component that is beingtested shall be included in the sampling;and

(3) Composite dust samples shall notconsist of subsamples from more thanone type of component.

(h) Recordkeeping. All reports orplans required in this section shall bemaintained by the certified firm orindividual who prepared the report for


no fewer than 3 years. The certified firmor individual also shall provide copiesof these reports to the building ownerwho contracted for its services.

§ 745.228 Accreditation of trainingprograms: public and commercialbuildings, bridges and superstructures[Reserved].

§ 745.229 Certification of individuals andfirms engaged in lead-based paintactivities: public and commercial buildings,bridges and superstructures [Reserved].

§ 745.230 Work practice standards forconducting lead-based paint activities:public and commercial buildings, bridgesand superstructures [Reserved].

§ 745.233 Lead-based paint activitiesrequirements.

Lead-based paint activities, as definedin this part, shall only be conductedaccording to the procedures and workpractice standards contained in§ 745.227 of this subpart. No individualor firm may offer to perform or performany lead-based paint activity as definedin this part, unless certified to performthat activity according to the proceduresin § 745.226.

§ 745.235 Enforcement.

(a) Failure or refusal to comply withany requirement of §§ 745.225, 745.226,745.227, or 745.233 is a prohibited actunder sections 15 and 409 of TSCA (15U.S.C. 2614, 2689).

(b) Failure or refusal to establish,maintain, provide, copy, or permitaccess to records or reports as requiredby §§ 745.225, 745.226, or 745.227 is aprohibited act under sections 15 and409 of TSCA (15 U.S.C. 2614, 2689).

(c) Failure or refusal to permit entryor inspection as required by § 745.237and section 11 of TSCA (15 U.S.C. 2610)is a prohibited act under sections 15 and409 of TSCA (15 U.S.C. 2614, 2689).

(d) In addition to the above, anyindividual or firm that performs any ofthe following acts shall be deemed tohave committed a prohibited act undersections 15 and 409 of TSCA (15 U.S.C.2614, 2689). These include thefollowing:

(i) Obtaining certification throughfraudulent representation;

(ii) Failing to obtain certification fromEPA and performing work requiringcertification at a job site; or

(iii) Fraudulently obtainingcertification and engaging in any lead-based paint activities requiringcertification.

(e) Violators are subject to civil andcriminal sanctions pursuant to section16 of TSCA (15 U.S.C. 2615) for eachviolation.

§ 745.237 Inspections.EPA may conduct reasonable

inspections pursuant to the provisionsof section 11 of TSCA (15 U.S.C. 2610)to ensure compliance with this subpart.

§ 745.239 Effective dates.This subpart L shall apply in any

State or Indian Country that does nothave an authorized program undersubpart Q, effective August 31, 1998. Insuch States or Indian Country:

(a) Training programs shall notprovide, offer or claim to providetraining or refresher training forcertification without accreditation fromEPA pursuant to § 745.225 on or afterMarch 1, 1999.

(b) No individual or firm shallperform, offer, or claim to perform lead-based paint activities, as defined in thissubpart, without certification from EPAto conduct such activities pursuant to§ 745.226 on or after August 30, 1999.

(c) All lead-based paint activities shallbe performed pursuant to the workpractice standards contained in§ 745.227 on or after August 30, 1999.

Subparts M-P [Reserved]

Subpart Q—State and Indian TribalPrograms

§ 745.320 Scope and purpose.(a) This subpart establishes the

requirements that State or Tribalprograms must meet for authorizationby the Administrator to administer andenforce the standards, regulations, orother requirements established underTSCA section 402 and/or section 406and establishes the procedures EPA willfollow in approving, revising, andwithdrawing approval of State or Tribalprograms.

(b) For State or Tribal lead-basedpaint training and certificationprograms, a State or Indian Tribe mayseek authorization to administer andenforce §§ 745.225, 745.226, and745.227. The provisions of §§ 745.220,745.223, 745.233, 745.235, 745.237, and745.239 shall be applicable for thepurposes of such program authorization.

(c) For State or Tribal pre-renovationnotification programs, a State or IndianTribe may seek authorization toadminister and enforce regulationsdeveloped pursuant to TSCA section406.

(d) A State or Indian Tribe applyingfor program authorization may seekeither interim approval or final approvalof the compliance and enforcementportion of the State or Tribal lead-basedpaint program pursuant to theprocedures at § 745.327(a).

(e) State or Tribal submissions forprogram authorization shall comply

with the procedures set out in thissubpart.

(f) Any State or Tribal programapproved by the Administrator underthis subpart shall at all times complywith the requirements of this subpart.

(g) In many cases States will lackauthority to regulate activities in IndianCountry. This lack of authority does notimpair a State’s ability to obtain fullprogram authorization in accordancewith this subpart. EPA will administerthe program in Indian Country if neitherthe State nor Indian Tribe has beengranted program authorization by EPA.

§ 745.323 Definitions.The definitions in subpart A apply to

this subpart. In addition, the definitionsin § 745.223 and the followingdefinitions apply:

Indian Country means (1) all landwithin the limits of any AmericanIndian reservation under thejurisdiction of the U.S. government,notwithstanding the issuance of anypatent, and including rights-of-wayrunning throughout the reservation; (2)all dependent Indian communitieswithin the borders of the United Stateswhether within the original orsubsequently acquired territory thereof,and whether within or outside the limitsof a State; and (3) all Indian allotments,the Indian titles which have not beenextinguished, including rights-of-wayrunning through the same.

Indian Tribe means any Indian Tribe,band, nation, or community recognizedby the Secretary of the Interior andexercising substantial governmentalduties and powers.

§ 745.324 Authorization of State or Tribalprograms.

(a) Application content andprocedures. (1) Any State or IndianTribe that seeks authorization from EPAto administer and enforce anyprovisions of subpart L of this partunder section 402(a) of TSCA or theprovisions of regulations developedunder section 406 of TSCA shall submitan application to the Administrator inaccordance with the procedures of thisparagraph (a).

(2) Before developing an applicationfor authorization, a State or Indian Tribeshall disseminate a public notice ofintent to seek such authorization andprovide an opportunity for a publichearing.

(3) A State or Tribal application shallinclude:

(i) A transmittal letter from the StateGovernor or Tribal Chairperson (orequivalent official) requesting programapproval.

(ii) A summary of the State or Tribalprogram. This summary will be used to


provide notice to residents of the Stateor Tribe.

(iii) A description of the State orTribal program in accordance withparagraph (b) of this section.

(iv) An Attorney General’s or TribalCounsel’s (or equivalent) statement inaccordance with paragraph (c) of thissection.

(v) Copies of all applicable State orTribal statutes, regulations, standards,and other materials that provide theState or Indian Tribe with the authorityto administer and enforce a lead-basedpaint program.

(4) After submitting an application,the Agency will publish a FederalRegister notice that contains anannouncement of the receipt of the Stateor Tribal application, the summary ofthe program as provided by the State orTribe, and a request for publiccomments to be mailed to theappropriate EPA Regional Office. Thiscomment period shall last for no lessthan 45 days. EPA will consider thesecomments during its review of the Stateor Tribal application.

(5) Within 60 days of submission of aState or Tribal application, EPA will, ifrequested, conduct a public hearing ineach State or Indian Country seekingprogram authorization and will considerall comments submitted at that hearingduring the review of the State or Tribalapplication.

(b) Program description. A State orIndian Tribe seeking to administer andenforce a program under this subpartmust submit a description of theprogram. The description of the State orTribal program must include:

(1)(i) The name of the State or Tribalagency that is or will be responsible foradministering and enforcing theprogram, the name of the official in thatagency designated as the point ofcontact with EPA, and addresses andphone numbers where this official canbe contacted.

(ii) Where more than one agency is orwill be responsible for administeringand enforcing the program, the State orIndian Tribe must designate a primaryagency to oversee and coordinateadministration and enforcement of theprogram and serve as the primarycontact with EPA.

(iii) In the event that more than oneagency is or will be responsible foradministering and enforcing theprogram, the application must alsoinclude a description of the functions tobe performed by each agency. Thedesciption shall explain and how theprogram will be coordinated by theprimary agency to ensure consistencyand effective administration of the lead-based paint training accreditation and

certification program within the State orIndian Tribe.

(2) To demonstrate that the State orTribal program is at least as protectiveas the Federal program, fulfilling thecriteria in paragraph (e)(2)(i) of thissection, the State or Tribal applicationmust include:

(i) A description of the program thatdemonstrates that the program containsall of the elements specified in§ 745.325, § 745.326, or both; and

(ii) An analysis of the State or Tribalprogram that compares the program tothe Federal program in subpart L of thispart, regulations developed pursuant toTSCA section 406, or both. This analysisshall demonstrate how the program is,in the State’s or Indian Tribe’sassessment, at least as protective as theelements in the Federal program atsubpart L of this part, regulationsdeveloped pursuant to TSCA section406, or both. EPA will use this analysisto evaluate the protectiveness of theState or Tribal program in making itsdetermination pursuant to paragraph(e)(2)(i) of this section.

(3) To demonstrate that the State orTribal program provides adequateenforcement, fulfilling the criteria inparagraph (e)(2)(ii) of this section, theState or Tribal application must includea description of the State or Tribal lead-based paint compliance andenforcement program that demonstratesthat the program contains all of theelements specified at § 745.327. Thisdescription shall include copies of allpolicies, certifications, plans, reports,and other materials that demonstratethat the State or Tribal program containsall of the elements specified at§ 745.327.

(4)(i) The program description for anIndian Tribe shall also include a map,legal description, or other informationsufficient to identify the geographicalextent of the territory over which theIndian Tribe exercises jurisdiction.

(ii) The program description for anIndian Tribe shall also include ademonstration that the Indian Tribe:

(A) Is recognized by the Secretary ofthe Interior.

(B) has an existing governmentexercising substantial governmentalduties and powers.

(C) has adequate civil regulatoryjurisdiction (as shown in the Tribal legalcertification in paragraph (c)(2) of thissection) over the subject matter andentities regulated.

(D) is reasonably expected to becapable of administering the Federalprogram for which it is seekingauthorization.

(iii) If the Administrator haspreviously determined that an Indian

Tribe has met the prerequisites inparagraphs (b)(4)(ii)(A) and (B) of thissection for another EPA program, theIndian Tribe need provide only thatinformation unique to the lead-basedpaint program required by paragraphs(b)(4)(ii)(C) and (D) of this section.

(c) Attorney General’s statement. (1) AState or Indian Tribe must submit awritten statement signed by theAttorney General or Tribal Counsel (orequivalent) certifying that the laws andregulations of the State or Indian Tribeprovide adequate legal authority toadminister and enforce the State orTribal program. This statement shallinclude citations to the specific statutesand regulations providing that legalauthority.

(2) The Tribal legal certification (theequivalent to the Attorney General’sstatement) may also be submitted andsigned by an independent attorneyretained by the Indian Tribe forrepresentation in matters before EPA orthe courts pertaining to the IndianTribe’s program. The certification shallinclude an assertion that the attorneyhas the authority to represent the IndianTribe with respect to the Indian Tribe’sauthorization application.

(3) If a State application seeksapproval of its program to operate inIndian Country, the required legalcertification shall include an analysis ofthe applicant’s authority to implementits provisions in Indian Country. Theapplicant shall include a mapdelineating the area over which it seeksto operate the program.

(d) Program certification. (1) At thetime of submitting an application, aState may also certify to theAdministrator that the State programmeets the requirements contained inparagraphs (e)(2)(i) and (e)(2)(ii) of thissection.

(2) If this certification is contained ina State’s application, the program shallbe deemed to be authorized by EPAuntil such time as the Administratordisapproves the program application orwithdraws the program authorization. Aprogram shall not be deemed authorizedpursuant to this subpart to the extentthat jurisdiction is asserted over IndianCountry, including non-member feelands within an Indian reservation.

(3) If the application does not containsuch certification, the State programwill be authorized only after theAdministrator authorizes the program inaccordance with paragraph (e) of thissection.

(4) This certification shall take theform of a letter from the Governor or theAttorney General to the Administrator.The certification shall reference theprogram analysis in paragraph (b)(3) of


this section as the basis for concludingthat the State program is at least asprotective as the Federal program, andprovides adequate enforcement.

(e) EPA approval. (1) EPA will fullyreview and consider all portions of aState or Tribal application.

(2) Within 180 days of receipt of acomplete State or Tribal application, theAdministrator shall either authorize theprogram or disapprove the application.The Administrator shall authorize theprogram, after notice and theopportunity for public comment and apublic hearing, only if theAdministrator finds that:

(i)(A) In the case of an application toauthorize the State or Indian Tribe toadminister and enforce the provisions ofsubpart L of this part, the State or Tribalprogram is at least as protective ofhuman health and the environment asthe corresponding Federal programunder subpart L of this part; and/or

(B) In the case of an application toauthorize the State or Indian Tribe toadminister and enforce the regulationsdeveloped pursuant to TSCA section406, the State or Tribal program is atleast as protective of human health andthe environment as the Federalregulations developed pursuant toTSCA section 406.

(ii) The State or Tribal programprovides adequate enforcement.

(3) EPA shall notify in writing theState or Indian Tribe of theAdministrator’s decision to authorizethe State or Tribal program ordisapprove the State’s or Indian Tribe’sapplication.

(4) If the State or Indian Tribe appliesfor authorization of State or Tribalprograms under both subpart L andregulations developed pursuant toTSCA section 406, EPA may, asappropriate, authorize one program anddisapprove the other.

(f) EPA administration andenforcement. (1) If a State or IndianTribe does not have an authorizedprogram to administer and enforcesubpart L of this part in effect by August31, 1998, the Administrator shall, bysuch date, establish and enforce theprovisions of subpart L of this part asthe Federal program for that State orIndian Country.

(2) If a State or Indian Tribe does nothave an authorized program toadminister and enforce regulationsdeveloped pursuant to TSCA section406 in effect by August 31, 1998, theAdministrator shall, by such date,establish and enforce the provisions ofregulations developed pursuant toTSCA section 406 as the Federalprogram for that State or IndianCountry.

(3) Upon authorization of a State orTribal program, pursuant to paragraph(d) or (e) of this section, it shall be anunlawful act under sections 15 and 409of TSCA for any person to fail or refuseto comply with any requirements ofsuch program.

(g) Oversight. EPA shall periodicallyevaluate the adequacy of a State’s orIndian Tribe’s implementation andenforcement of its authorized programs.

(h) Reports. Beginning 12 monthsafter the date of program authorization,the primary agency for each State orIndian Tribe that has an authorizedprogram shall submit a written report tothe EPA Regional Administrator for theRegion in which the State or IndianTribe is located. This report shall besubmitted at least once every 12 monthsfor the first 3 years after programauthorization. If these reportsdemonstrate successful programimplementation, the Agency willautomatically extend the reportinginterval to every 2 years. If thesubsequent reports demonstrateproblems with implementation, EPAwill require a return to annual reportinguntil the reports demonstrate successfulprogram implementation, at which timethe Agency will extend the reportinginterval to every 2 years.

The report shall include the followinginformation:

(1) Any significant changes in thecontent or administration of the State orTribal program implemented since theprevious reporting period; and

(2) All information regarding the lead-based paint enforcement andcompliance activities listed at§ 745.327(d) ‘‘Summary on Progress andPerformance.’’

(i) Withdrawal of authorization. (1) IfEPA concludes that a State or IndianTribe is not administering and enforcingan authorized program in compliancewith the standards, regulations, andother requirements of sections 401through 412 of TSCA and this subpart,the Administrator shall notify theprimary agency for the State or IndianTribe in writing and indicate EPA’sintent to withdraw authorization of theprogram.

(2) The Notice of Intent to Withdrawshall:

(i) Identify the program aspects thatEPA believes are inadequate andprovide a factual basis for such findings.

(ii) Include copies of relevantdocuments.

(iii) Provide an opportunity for theState or Indian Tribe to respond eitherin writing or at a meeting withappropriate EPA officials.

(3) EPA may request that an informalconference be held between

representatives of the State or IndianTribe and EPA officials.

(4) Prior to issuance of a withdrawal,a State or Indian Tribe may request thatEPA hold a public hearing. At thishearing, EPA, the State or Indian Tribe,and the public may present facts bearingon whether the State’s or Indian Tribe’sauthorization should be withdrawn.

(5) If EPA finds that deficiencieswarranting withdrawal did not exist orwere corrected by the State or IndianTribe, EPA may rescind its Notice ofIntent to Withdraw authorization.

(6) Where EPA finds that deficienciesin the State or Tribal program exist thatwarrant withdrawal, an agreement tocorrect the deficiencies shall be jointlyprepared by the State or Indian Tribeand EPA. The agreement shall describethe deficiencies found in the program,specify the steps the State or IndianTribe has taken or will take to remedythe deficiencies, and establish aschedule, no longer than 180 days, foreach remedial action to be initiated.

(7) If the State or Indian Tribe doesnot respond within 60 days of issuanceof the Notice of Intent to Withdraw oran agreement is not reached within 180days after EPA determines that a Stateor Indian Tribe is not in compliancewith the Federal program, the Agencyshall issue an order withdrawing theState’s or Indian Tribe’s authorization.

(8) By the date of such order, theAdministrator shall establish andenforce the provisions of subpart L ofthis part or regulations developedpursuant to TSCA section 406, or both,as the Federal program for that State orIndian Country.

§ 745.325 Lead-based paint activities:State and Tribal program requirements.

(a) Program elements. To receiveauthorization from EPA, a State orTribal program must contain at least thefollowing program elements for lead-based paint activities:

(1) Procedures and requirements forthe accreditation of lead-based paintactivities training programs.

(2) Procedures and requirements forthe certification of individuals engagedin lead-based paint activities.

(3) Work practice standards for theconduct of lead-based paint activities.

(4) Requirements that all lead-basedpaint activities be conducted byappropriately certified contractors.

(5) Development of the appropriateinfrastructure or government capacity toeffectively carry out a State or Tribalprogram.

(b) Accreditation of trainingprograms. The State or Indian Tribemust have either:


(1) Procedures and requirements forthe accreditation of training programsthat establish:

(i) Requirements for the accreditationof training programs, including but notlimited to:

(A) Training curriculumrequirements.

(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 trainingprogram accreditations; or

(2) Procedures or regulations, for thepurposes of certification, for theacceptance of training offered by anaccredited training provider in a State orTribe authorized by EPA.

(c) Certification of individuals. TheState or Indian Tribe must haverequirements for the certification ofindividuals that:

(1) Ensure that certified individuals:(i) Are trained by an accredited

training program; and(ii) Possess appropriate education or

experience qualifications forcertification.

(2) Establish procedures for re-certification.

(3) Require the conduct of lead-basedpaint activities in accordance with workpractice standards established by theState or Indian Tribe.

(4) Establish procedures for thesuspension, revocation, or modificationof certifications.

(5) Establish requirements andprocedures for the administration of athird-party certification exam.

(d) Work practice standards for theconduct of lead-based paint activities.The State or Indian Tribe must haverequirements or standards that ensurethat lead-based paint activities areconducted reliably, effectively, andsafely. At a minimum the State’s orIndian Tribe’s work practice standardsfor conducting inspections, riskassessments, and abatements mustcontain the requirements specified inparagraphs (d)(1), (d)(2), and (d)(3) ofthis section.

(1) The work practice standards forthe inspection for the presence of lead-based paint must require that:

(i) Inspections are conducted only byindividuals certified by the appropriateState or Tribal authority to conductinspections.

(ii) Inspections are conducted in away that identifies the presence of lead-

based paint on painted surfaces withinthe interior or on the exterior of aresidential dwelling or child-occupiedfacility.

(iii) Inspections are conducted in away that uses documentedmethodologies that incorporateadequate quality control procedures.

(iv) A report is developed that clearlydocuments the results of the inspection.

(v) Records are retained by thecertified inspector or the firm.

(2) The work practice standards forrisk assessment must require that:

(i) Risk assessments are conductedonly by individuals certified by theappropriate State or Tribal authority toconduct risk assessments.

(ii) Risk assessments are conducted ina way that identifies and reports thepresence of lead-based paint hazards.

(iii) Risk assessments consist of, atleast:

(A) An assessment, including a visualinspection, of the physicalcharacteristics of the residentialdwelling or child-occupied facility; and

(B) Environmental sampling for leadin paint, dust, and soil.

(iv) The risk assessor develops areport that clearly presents the results ofthe assessment and recommendationsfor the control or elimination of allidentified hazards.

(v) The certified risk assessor or thefirm retains the appropriate records.

(3) The work practice standards forabatement must require that:

(i) Abatements are conducted only byindividuals certified by the appropriateState or Tribal authority to conduct orsupervise abatements.

(ii) Abatements permanentlyeliminate lead-based paint hazards andare conducted in a way that does notincrease the hazards of lead-based paintto the occupants of the dwelling orchild-occupied facility.

(iii) Abatements include post-abatement lead in dust clearancesampling and conformance withclearance levels established or adoptedby the State or Indian Tribe.

(iv) The abatement contractordevelops a report that describes areas ofthe residential dwelling or child-occupied facility abated and thetechniques employed.

(v) The certified abatement contractoror the firm retains appropriate records.

§ 745.326 Pre-renovation notification:State and Tribal program requirements.

(a) Program elements. To receiveauthorization from EPA, a State orTribal program must contain thefollowing program elements forrenovation disclosure:

(1) Procedures and requirements forthe distribution of lead hazard

information to owners and occupants oftarget housing before renovations forcompensation; and

(2) An approved lead hazardinformation pamphlet meeting therequirements of section 406 of TSCA, asdetermined by EPA. EPA will provideStates or Tribes with guidance on whatis necessary for a State or Tribalpamphlet approval application.

(b) Program to distribute leadinformation. To be considered at least asprotective as the Federal requirementsfor pre-renovation distribution ofinformation, the State or Indian Tribemust have procedures and requirementsthat establish:

(1) Clear standards for identifyinghome improvement activities thattrigger the pamphlet distributionrequirements; and

(2) Procedures for distributing thelead hazard information to owners andoccupants of the housing prior torenovation activities.

(c) Distribution of acceptable leadhazard information. To be considered atleast as protective as the Federalrequirements for the distribution of alead hazard information pamphlet, theState or Indian Tribe must either:

(1) Distribute the lead hazardinformation pamphlet developed byEPA under section 406(a) of TSCA,titled Protect Your Family from Lead inYour Home; or

(2) Distribute an alternate pamphlet orpackage of lead hazard information thathas been submitted by the State orTribe, reviewed by EPA, and approvedby EPA for use in that State or Tribe.Such information must meet the contentrequirements prescribed by section406(a) of TSCA, and be in a format thatis readable to the diverse audience ofhousing owners and occupants in thatState or Tribe.

§ 745.327 State or Indian Tribal lead-basedpaint compliance and enforcementprograms.

(a) Approval of compliance andenforcement programs. A State orIndian Tribe seeking authorization of alead-based paint program can apply forand receive either interim or finalapproval of the compliance andenforcement program portion of its lead-based paint program. Indian Tribes arenot required to exercise criminalenforcement jurisdiction as a conditionfor program authorization.

(1) Interim approval. Interim approvalof the compliance and enforcementprogram portion of the State or Triballead-based paint program may begranted by EPA only once, and subjectto a specific expiration date.


(i) To be considered adequate forpurposes of obtaining interim approvalfor the compliance and enforcementprogram portion of a State or Triballead-based paint program, a State orIndian Tribe must, in its applicationdescribed at § 745.324(a):

(A) Demonstrate it has the legalauthority and ability to immediatelyimplement the elements in paragraph(b) of this section. This demonstrationshall include a statement that the Stateor Indian Tribe, during the interimapproval period, shall carry out a levelof compliance monitoring andenforcement necessary to ensure thatthe State or Indian Tribe addresses anysignificant risks posed bynoncompliance with lead-based paintactivity requirements.

(B) Present a plan with time framesidentified for implementing in the fieldeach element in paragraph (c) of thissection. All elements of paragraph (c) ofthis section must be fully implementedno later than 3 years from the date ofEPA’s interim approval of thecompliance and enforcement programportion of a State or Tribal lead-basedpaint program. A statement of resourcesmust be included in the State or Tribalplan which identifies what resourcesthe State or Indian Tribe intends todevote to the administration of its lead-based paint compliance andenforcement program.

(C) Agree to submit to EPA theSummary on Progress and Performanceof lead-based paint compliance andenforcement activities as described atparagraph (d) of this section.

(ii) Any interim approval granted byEPA for the compliance andenforcement program portion of a Stateor Tribal lead-based paint program willexpire no later than 3 years from thedate of EPA’s interim approval. Onehundred and eighty days prior to thisexpiration date, a State or Indian Tribeshall apply to EPA for final approval ofthe compliance and enforcementprogram portion of a State or Triballead-based paint program. Finalapproval shall be given to any State orIndian Tribe which has in place all ofthe elements of paragraphs (b), (c), and(d) of this section. If a State or IndianTribe does not receive final approval forthe compliance and enforcementprogram portion of a State or Triballead-based paint program by the date 3years after the date of EPA’s interimapproval, the Administrator shall, bysuch date, initiate the process towithdraw the State or Indian Tribe’sauthorization pursuant to § 745.324(i).

(2) Final approval. Final approval ofthe compliance and enforcementprogram portion of a State or Tribal

lead-based paint program can be grantedby EPA either through the applicationprocess described at § 745.324(a), or, forStates or Indian Tribes whichpreviously received interim approval asdescribed in paragraph (a)(1) of thissection, through a separate applicationaddressing only the compliance andenforcement program portion of a Stateor Tribal lead-based paint program.

(i) For the compliance andenforcement program to be consideredadequate for final approval through theapplication described at § 745.324(a), aState or Indian Tribe must, in itsapplication:

(A) Demonstrate it has the legalauthority and ability to immediatelyimplement the elements in paragraphs(b) and (c) of this section.

(B) Submit a statement of resourceswhich identifies what resources theState or Indian Tribe intends to devoteto the administration of its lead-basedpaint compliance and enforcementprogram.


(ii) For States or Indian Tribes whichpreviously received interim approval asdescribed in paragraph (a)(1) of thissection, in order for the State or Tribalcompliance and enforcement program tobe considered adequate for finalapproval through a separate applicationaddressing only the compliance andenforcement program portion of a Stateor Tribal lead-based paint program, aState or Indian Tribe must, in itsapplication:

(A) Demonstrate that it has the legalauthority and ability to immediatelyimplement the elements in paragraphs(b) and (c) of this section.

(B) Submit a statement whichidentifies the resources the State orIndian Tribe intends to devote to theadministration of its lead-based paintcompliance and enforcement program.


(D) To the extent not previouslysubmitted through the applicationdescribed at § 745.324(a), submit copiesof all applicable State or Tribal statutes,regulations, standards, and othermaterial that provide the State or IndianTribe with authority to administer andenforce the lead-based paint complianceand enforcement program, and copies ofthe policies, certifications, plans,reports, and any other documents thatdemonstrate that the program meets the

requirements established in paragraphs(b) and (c) of this section.

(b) Standards, regulations, andauthority. The standards, regulations,and authority described in paragraphs(b)(1) through (b)(4) of this section arepart of the required elements for thecompliance and enforcement portion ofa State or Tribal lead-based paintprogram.

(1) Lead-based paint activities andrequirements. State or Tribal lead-basedpaint compliance and enforcementprograms will be considered adequate ifthe State or Indian Tribe demonstrates,in its application at § 745.324(a), that ithas established a lead-based paintprogram containing the followingrequirements:

(i) Accreditation of training programsas described at § 745.325(b).

(ii) Certification of individualsengaged in lead-based paint activities asdescribed at § 745.325(c).

(iii) Standards for the conduct of lead-based paint activities as described at§ 745.325(d); and, as appropriate,

(iv) Requirements that regulate theconduct of pre-renovation notificationactivities as described at § 745.326.

(2) Authority to enter. State or Tribalofficials must be able to enter, throughconsent, warrant, or other authority,premises or facilities where lead-basedpaint activities violations may occur forpurposes of conducting inspections.

(i) State or Tribal officials must beable to enter premises or facilities wherethose engaged in training for lead-basedpaint activities conduct business.

(ii) For the purposes of enforcing apre-renovation notification program,State or Tribal officials must be able toenter a renovator’s place of business.

(iii) State or Tribal officials must haveauthority to take samples and reviewrecords as part of the lead-based paintactivities inspection process.

(3) Flexible remedies. A State orTribal lead-based paint compliance andenforcement program must provide for adiverse and flexible array ofenforcement remedies. At a minimum,the remedies that must be reflected inan enforcement response policy mustinclude the following:

(i) Warning letters, Notices ofNoncompliance, Notices of Violation, orthe equivalent;

(ii) Administrative or civil actions,including penalty authority (e.g.,accreditation or certificationsuspension, revocation, ormodification); and

(iii) Authority to apply criminalsanctions or other criminal authorityusing existing State or Tribal laws, asapplicable.


(4) Adequate resources. Anapplication must include a statementthat identifies the resources that will bedevoted by the State or Indian Tribe tothe administration of the State or Triballead-based paint compliance andenforcement program. This statementmust address fiscal and personnelresources that will be devoted to theprogram.

(c) Performance elements. Theperformance elements described inparagraphs (c)(1) through (c)(7) of thissection are part of the required elementsfor the compliance and enforcementprogram portion of a State or Triballead-based paint program.

(1) Training. A State or Tribal lead-based paint compliance andenforcement program must implement aprocess for training enforcement andinspection personnel and ensure thatenforcement personnel and inspectorsare well trained. Enforcement personnelmust understand case developmentprocedures and the maintenance ofproper case files. Inspectors mustsuccessfully demonstrate knowledge ofthe requirements of the particulardiscipline (e.g., abatement supervisor,and/or abatement worker, and/or lead-based paint inspector, and/or riskassessor, and/or project designer) forwhich they have compliance monitoringand enforcement responsibilities.Inspectors must also be trained inviolation discovery, methods ofobtaining consent, evidence gathering,preservation of evidence and chain-of-custody, and sampling procedures. AState or Tribal lead-based paintcompliance and enforcement programmust also implement a process for thecontinuing education of enforcementand inspection personnel.

(2) Compliance assistance. A State orTribal lead-based paint compliance andenforcement program must providecompliance assistance to the public andthe regulated community to facilitateawareness and understanding of andcompliance with State or Tribalrequirements governing the conduct oflead-based paint activities. The type andnature of this assistance can be definedby the State or Indian Tribe to achievethis goal.

(3) Sampling techniques. A State orTribal lead-based paint compliance andenforcement program must have thetechnological capability to ensurecompliance with the lead-based paintprogram requirements. A State or Tribalapplication for approval of a lead-basedpaint program must show that the State

or Indian Tribe is technologicallycapable of conducting a lead-basedpaint compliance and enforcementprogram. The State or Tribal programmust have access to the facilities andequipment necessary to performsampling and laboratory analysis asneeded. This laboratory facility must bea recognized laboratory as defined at§ 745.223, or the State or Tribal programmust implement a quality assuranceprogram that ensures appropriatequality of laboratory personnel andprotects the integrity of analytical data.

(4) Tracking tips and complaints. AState or Tribal lead-based paintcompliance and enforcement programmust demonstrate the ability to processand react to tips and complaints or otherinformation indicating a violation.

(5) Targeting inspections. A State orTribal lead-based paint compliance andenforcement program must demonstratethe ability to target inspections toensure compliance with the lead-basedpaint program requirements. Suchtargeting must include a method forobtaining and using notifications ofcommencement of abatement activities.

(6) Follow up to inspection reports. AState or Tribal lead-based paintcompliance and enforcement programmust demonstrate the ability toreasonably, and in a timely manner,process and follow-up on inspectionreports and other information generatedthrough enforcement-related activitiesassociated with a lead-based paintprogram. The State or Tribal programmust be in a position to ensurecorrection of violations and, asappropriate, effectively develop andissue enforcement remedies/responsesto follow up on the identification ofviolations.

(7) Compliance monitoring andenforcement. A State or Tribal lead-based paint compliance andenforcement program must demonstrate,in its application for approval, that it isin a position to implement a compliancemonitoring and enforcement program.Such a compliance monitoring andenforcement program must ensurecorrection of violations, and encompasseither planned and/or responsive lead-based paint compliance inspections anddevelopment/issuance of State or Tribalenforcement responses which areappropriate to the violations.

(d) Summary on Progress andPerformance. The Summary on Progressand Performance described below ispart of the required elements for thecompliance and enforcement program

portion of a State or Tribal lead-basedpaint program. A State or Tribal lead-based paint compliance andenforcement program must submit tothe appropriate EPA RegionalAdministrator a report whichsummarizes the results of implementingthe State or Tribal lead-based paintcompliance and enforcement program,including a summary of the scope of theregulated community within the State orIndian Tribe (which would include thenumber of individuals and firmscertified in lead-based paint activitiesand the number of training programsaccredited), the inspections conducted,enforcement actions taken, complianceassistance provided, and the level ofresources committed by the State orIndian Tribe to these activities. Thereport shall be submitted according tothe requirements at § 745.324(h).

(e) Memorandum of Agreement. AnIndian Tribe that obtains programapproval must establish a Memorandumof Agreement with the RegionalAdministrator. The Memorandum ofAgreement shall be executed by theIndian Tribe’s counterpart to the StateDirector (e.g., the Director of TribalEnvironmental Office, Program orAgency). The Memorandum ofAgreement must include provisions forthe timely and appropriate referral tothe Regional Administrator for thosecriminal enforcement matters wherethat Indian Tribe does not have theauthority (e.g., those addressingcriminal violations by non-Indians orviolations meriting penalties over$5,000). The Agreement must alsoidentify any enforcement agreementsthat may exist between the Indian Tribeand any State.

§ 745.330 Grants.

The Administrator, or a designatedequivalent, may make grants to Statesand Indian Tribes, that meet therequirements of § 745.324(e)(2)(i) and(e)(2)(ii), under section 404(g) of TSCAto develop and carry out programsauthorized pursuant to this subpart.Grants made under this section aresubject to the requirements of 40 CFRpart 31.

§ 745.339 Effective dates.

States and Indian Tribes may seekauthorization to administer and enforcesubpart L pursuant to this subparteffective October 28, 1996.

[FR Doc. 96–21954 Filed 8–28–96; 8:45 am]BILLING CODE 6560–50–F

45778 federal register /vol. 61, no. 169/thursday, august ... · 8/29/1996 · federal...

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