Lead; Requirements for Lead-based Paint Activities
Vol. 59, No. 170
Part III
59 FR 45872
Friday, September 02, 1994

AGENCY: ENVIRONMENTAL PROTECTION AGENCY (EPA)
DOC TYPE: Proposed Rules
CFR: 40 CFR Part 745
NUMBER: OPPTS-62128; FRL-4633-9; RIN 2070-AC64
DATES: Written comments in response to this proposed rule must be received on or before November 1, 1994. At a later date, the Agency will announce the time and place of an informal hearing where oral comments will be heard.
CONTACT: FOR FURTHER INFORMATION CONTACT: For general information: Susan B. Hazen, Director, Environmental Assistance Division (7408), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 401 M St., SW., Washington, DC 20460, Telephone: 202-554-1404. TDD: 202-554-0551. For technical questions: Diane Sheridan (202) 260- 0961. ADDRESSES: Submit written comments, in triplicate, identified by the docket number OPPTS-62128, by mail to: TSCA Public Docket Office (7407), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. For further information regarding the submission of comments containing confidential business information (CBI), see Unit IX. of this preamble.
ACTION: Proposed rule.

SUMMARY: EPA is proposing regulations governing lead-based paint activities to ensure that individuals engaged in such activities are properly trained; that training programs are accredited; and that contractors engaged in such activities are certified. This proposed rule would also establish standards for performing lead-based paint activities and require that all lead-based paint activities be performed by certified individuals. When promulgated, the rule would fulfil the mandate of section 402 (a)(1) of Title IV of the Toxic Substances Control Act (TSCA). Additionally, as part of this proposed rule, EPA has, in accordance with section 404(d) of TSCA, developed a proposed Model State Program. When promulgated, this program may be adopted by any State that seeks to administer and enforce a State program under Title IV of TSCA.

WORD COUNT: 67,534

TEXT:

SUPPLEMENTARY INFORMATION:

I. Authority

EPA is issuing this proposed rule under the authority of section 402 and 404 of Title IV of the Toxic Substances Control Act (TSCA) (15 U.S.C. 2682 and 2684.). Section 402(a) of TSCA directs EPA to promulgate regulations governing lead-based paint activities. Section 404(a) of TSCA requires that any State that seeks to administer and enforce the requirements established by the Agency under section 402 or 406 of TSCA must submit to the Administrator of EPA, in such form as the Administrator shall require, a request for authorization of such a program. Section 406 of TSCA requires EPA to publish and from time- to-time revise, a lead hazard information pamphlet and to publish regulations requiring the distribution of such pamphlet. The requirements of section 406 are being developed in a separate rulemaking.

II. Objective

The objective of this regulation is to address the nation's need for a qualified and properly trained workforce to assist in the elimination of hazards associated with lead-based paint. Providing for this workforce will ensure that individuals and firms will conduct lead-based paint activities in a way that will safeguard the environment and protect human health, specifically, the health of building occupants (especially children under 6 years of age) and the workers themselves.

To successfully confront the issues associated with lead-based paint hazards at the national level will require the involvement of many partners working together. In promulgating this regulation, EPA will be establishing the framework required to address lead-based paint hazards. This framework will ultimately provide support for and enhance activities currently conducted by public health officials.

In addition to a support system for public health officials, a suitable infrastructure is needed for other mandates of TSCA Title IV. These mandates include the promulgation of regulations for the disclosure of lead-based paint hazards in real estate transactions, and the development of a pamphlet to educate the public on potential hazards associated with renovation and remodeling activities. Activities such as these increase public awareness of the hazards of lead-based paint, resulting in the need for a workable regulatory infrastructure to respond to the public's concerns.

The Agency recognizes the nation's public health communities as powerful contributors in support of the program outlined in this proposed regulation. Through the collective efforts of public health communities to address childhood lead poisoning in areas such as blood-lead screening and case management, and EPA, through the identification and control of lead-based paint hazards, the goal of preventing the poisoning of children from lead-based paint will be realized nationwide.

III. Background

On October 28, 1992, the Residential Lead-Based Paint Hazard Reduction Act of 1992 ("Title X") became law. The purposes of Title X include:

1. To develop a national strategy to build the infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as possible.

2. To reorient the national approach to the presence of lead-based paint in housing to implement, on a priority basis, a broad program to evaluate and reduce lead-based paint hazards in the Nation's housing stock.

3. To encourage effective action to prevent childhood lead poisoning by establishing a workable framework for lead-based paint hazard evaluation and reduction and by ending the current confusion over reasonable standards of care.

The Residential Lead-Based Paint Hazard Reduction Act of 1992 amended TSCA by adding a new Title IV. Several sections of Title X direct EPA to promulgate regulations aimed at fulfilling the purposes of the Title X. These include TSCA section 402, Lead-Based Paint Activities Training and Certification, which directs EPA to promulgate a final regulation to govern the training and certification of individuals engaged in lead-based paint activities, the accreditation of training programs and standards for conducting lead-based paint activities; and section 404, Authorized State Programs, which provides that any State may seek to administer and enforce the requirements established by the Agency under sections 402 and 406. This proposed rule addresses both sections 402(a) and 404(d). Rules to address the requirements of other sections of TSCA Title IV (e.g. sections 403 and 406), are being proposed separately.

Independently, these other sections of TSCA Title IV will support the overriding objectives of Title X. For example, a required information dissemination program to inform the public of lead-based paint hazards in the home has been proposed under section 406. Section 403 health-based standards will be developed and promulgated to provide the basis for identifying hazardous levels of lead in

{pg 45873}

dust, soil, and paint. Studies to determine whether renovation and remodelling activities may pose a lead-based paint hazard, as well as studies to determine the efficiencies of various abatement technologies are also being conducted under section 402(c)(2).

Given the interrelated nature of the various sections of TSCA Title IV, EPA has developed and proposed a subpart A to 40 CFR part 745 which would serve as a reference point for the terms and provisions common to each of the regulations to be promulgated under Title IV. Later in this preamble these other sections of Title IV and their relevance to today's proposal will be discussed in more detail.

Before it began the development of this proposed rule, EPA informally met with a broad range of interested parties to solicit information on the subject of lead-based paint activities training, accreditation, certification, and standards. In addition, the Agency received written comments from dozens of individuals, firms, organizations and States, all of whom have provided their own perspective on Title X. Additionally, while the Agency continued to meet informally with interested groups and review written comments, the Society for Occupational and Environmental Health (SOEH) held a series of workshops with experts in the worker protection and training arena as participants. Following the workshops, SOEH drafted and submitted to the Agency its recommendations for effective worker protection during lead- based paint activities. The Agency has included the SOEH document and all other written comments, and written summaries of meetings in the public docket.

The Agency is grateful to all who took the time to provide information, ideas, and suggestions. Over the last several months, the Agency has carefully reviewed and considered all of this input. While not all points of view were incorporated in the proposed rule, this proposal reflects many of the thoughts and viewpoints of these interested parties.

IV. Scope

A. Lead-Based Paint Activities

This proposed regulation deals with the broad category of lead-based paint activities. The term lead-based paint activities is defined by section 402(b) of TSCA to mean: (1) In the case of target housing - risk assessment, inspection, and abatement; and (2) in the case of any public building constructed before 1978, commercial building, bridge, or other structure or superstructure - identification of lead-based paint and materials containing lead- based paint, deleading, removal of lead from bridges, and demolition. For the purposes of this definition, the term "deleading" means activities conducted by a person who offers to eliminate lead-based paint or lead-based paint hazards or to plan such activities. Abatement, as defined in section 401 of TSCA, essentially means any set of measures designed to eliminate lead- based paint hazards permanently. The definition of abatement in the proposed rule is intended to include activities performed by those individuals, who by design or intent, perform lead abatement as defined by TSCA Title IV.

It should be noted that this proposed regulation would not require any person to abate lead-based paint, or to inspect for the presence of lead-based paint. Rather, it would establish requirements and procedures applicable to individuals and firms responsible for making a determination of the presence of lead-based paint and/or lead-based paint hazards and identifying control strategies to address these hazards. If a decision is made to conduct an abatement, this regulation would provide standards and procedures for conducting the abatement.

Congress, in Title X, has purposefully excluded renovation and remodeling activities from the regulation's definition of abatement. Section 402(c)(2) of TSCA requires the Agency to conduct a study to assist in determining the extent to which persons engaged in specific renovation and remodeling activities in target housing, pre-1978 public buildings, and commercial buildings are exposed to lead or create lead hazards in the conduct of such activities. Section 402(c)(2) requires that this study be completed by April 28, 1995. Based on the results of this study and other information collected, the regulation being proposed today must be amended by October 28, 1996, to apply only to certain renovation and remodeling activities that - according to the section 402(c)(2) study and in consultation with labor organizations, contractors, and experts in lead health effects create a lead-based paint hazard. As part of today's proposed rule, the Agency is soliciting any available data that might be helpful in defining the risks posed to workers and/or building occupants during typical renovation and remodeling activities. This information will assist the Agency in the required rule revision. EPA recommends that States that are currently developing legislation for a State lead program consider including legislative authority for the future regulation of renovation and remodeling activities within the scope of the revised EPA regulations.

Although the scope of this proposed regulation covers abatement activities as a means of controlling lead-based paint hazards, the Agency does not wish to suggest that total abatement is the only option for controlling these hazards. A wide variety of effective hazard control measures can be utilized. In a particular dwelling, it is possible that a variety of control strategies (e.g., encapsulation, enclosure, component replacement) may need to be utilized to address all of the lead-based paint hazards identified by the risk assessor. Complete abatement is not always the best or most appropriate response to address lead-based paint hazards.

B. Homeowners

Title IV of TSCA does not specifically address whether the regulatory requirements developed for lead abatement contractors under section 402 are also intended to apply to individual homeowners who conduct lead-based paint activities within their own dwelling units. The Agency has decided that its section 402 rules should apply to all individuals and firms conducting lead-based paint activities in target housing and other specifically identified categories of buildings and structures, except persons who perform lead-based paint activities at residences which they own, unless the residence is occupied by a person or persons other than the owner or the owner's immediate family while these activities are being conducted. If the property is occupied by an individual that is not the owner or the owner's immediate family, any lead-based paint activity, conducted at that time, must be conducted by a certified individual.

The very title of section 1021 of the Residential Lead-Based Paint Hazard Reduction Act of 1992, indicates that the scope and focus of this section is on training and certification requirements for contractors, not homeowners. Section 1021 of the 1992 Act added a new Title IV to TSCA. The new Title IV includes both section 402 ("Lead-Based Paint Activities Training and Certification") and 404 ("Authorized State Programs"). Significantly, section 1021 itself is entitled "Contractor Training and Certification."

There is no express requirement in the statute that homeowners doing lead-based paint activities in their homes must be trained and certified. Nor is there any such indication in the legislative history. The section 402(a) requirement that all abatements in target housing be performed by certified

{pg 45874}

contractors has been interpreted by EPA to mean that a homeowner who hires a contractor to do abatement in his home must hire a contractor who is certified. EPA does not interpret this requirement to mean that uncertified homeowners cannot do their own abatements. While EPA recognizes it might be possible to draw a different inference from the above-referenced certified contractor language of section 402(a) as it stands alone, the Agency believes that the Congressional focus on regulating contractor activity evidenced by the reference in section 1021's title to "contractors" as well as certain other language in sections 402(c)(3) and 406(b) requiring persons who perform renovation of target housing for compensation (e.g. "contractors") to provide safety pamphlets to owners and occupants creates enough ambiguity with respect to Congressional intent that such an inference need not be drawn.

For example, in section 402(c), as discussed earlier in this preamble, Congress recognized that more needed to be learned about the risks from renovation and remodelling activities before subjecting such activities to regulation. Following the completion, by April 1995, of a study of the risks created by renovation and remodelling activities, Congress has required EPA to revise the section 402(a) regulations to apply them to those renovation and remodeling activities which create lead hazards. In section 402(c), Congress told EPA what factors to consider " i n determining which contractors are engaged in such activities" and required that, if EPA determines that "any category of contractor" does not require certification, EPA shall publish an explanation. Again, because of the fact that the Statute specifically mentions "contractors" and not "homeowners," it is EPA's interpretation of section 402(c)(3) that Congress' focus was on the need to regulate contractors doing renovation and remodeling activities, and not homeowners doing renovation and remodeling of their own homes.

EPA assumes that in writing section 402(c), Congress did not direct that homeowners ultimately be regulated under section 402(a) because Congress never intended homeowners doing abatements in their own homes to be covered by section 402(a) in the first place. Indeed, homeowners working in their own homes are more likely to be engaged in the sort of activities described in the definition of "interim controls," which activities require neither training nor certification.

While EPA recognizes that the universe of potentially regulated entities is broader than just contractors and homeowners doing their own abatements, EPA has decided to exclude only the latter category of individuals from the scope of these regulations. EPA has chosen to draft this exclusion narrowly because it recognizes the potential health and environmental hazards that could result from improperly performed abatements and wants to minimize such hazards. However, EPA invites comment on the scope of this exclusion as drafted and specifically on whether other categories of individuals or groups (e.g., renters abating their own apartments or volunteer organizations that do renovation work) should also be excluded.

EPA is, however, concerned about the potential exposures to lead which an untrained and uncertified homeowner may cause to himself/herself and other family members as a result of work done. As a result of this concern, EPA strongly encourages States to consider whether they wish to use their own legal authority to regulate work done by the homeowner. For example, States may wish to consider the inclusion of standards for lead-based paint activities in appropriate building codes. This approach could mirror other State and local regulatory programs already used to control other work done in homes such as electrical and plumbing work.

In addition to encouraging States to consider programs with the authority to regulate homeowners, EPA plans an aggressive awareness campaign directed at homeowners. This program will include not only the design and distribution of informational materials, but the Agency also intends to develop seminars to alert homeowners to the potential hazards associated with lead-based paint activities.

C. Building Types

In defining lead-based paint activities, section 402(b) of TSCA categorized target housing singly, and public buildings, commercial buildings, and superstructures (e.g., bridges and watertowers) together. Lead-based paint activities conducted in target housing are identified in 402(b) as risk assessment, inspection, and abatement. For public buildings, commercial buildings, and superstructures, 402(b) defines lead-based paint activities as: the identification of lead-based paint and materials containing lead-based paint; deleading; removal of lead from bridges; and demolition.

The Agency is proposing to group public building and target housing activities together as one category, and to group commercial building and superstructure activities together as a second category.

Target housing is defined in the proposed regulation and in section 1004 of Title X to mean "any housing constructed prior to 1978 except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing for the elderly or persons with disabilities) or any 0-bedroom dwelling."

Public buildings are not defined under Title X. EPA is proposing to define a public building as any building built before 1978, that is generally open to the public or occupied or visited by children. For example schools, daycare centers, museums, airports, hospitals, stores, convention centers, and federal and other government facilities are all considered to be public buildings. It should be noted that all federal facilities, regardless of whether they are target housing, public buildings, commercial building, or steel structures are specifically covered under this regulation, as directed by TSCA section 408.

EPA is proposing to define a commercial building as any building used primarily for commercial or industrial activity, which is generally not open to the public, or occupied or visited by children, including but not limited to, warehouses, factories, storage facilities, aircraft hangers, garages, and wholesale distribution facilities. Under TSCA, section 402(b) the only example of a superstructure listed is a bridge, but drawing on the common meaning of superstructure, EPA is proposing to include other structures such as watertowers, aboveground storage tanks, oil refineries, utility and other structures.

The Agency's determination to group target housing and public buildings together is based on two factors. One factor is that the potential for lead exposure in a public building setting, such as a museum, school, or daycare center, is similar to the potential for lead exposure to children in target housing, where families and children reside. Consequently, EPA is proposing standards for lead-based paint activities in public buildings that have the same degree of protectiveness as those for target housing.

The second factor in EPA's decision to propose separate categories is due to differences in the structural design and building materials that are commonly used in target housing/public buildings and those used in commercial buildings/superstructures. For example, the structural design and building materials (e.g., wallboard, ceiling tiles,

{pg 45875}

flooring materials, wooden doorways, and window frames) found in public buildings are often similar to those found in target housing. Commercial buildings and superstructures, on the other hand, typically are constructed of metal, such as structural steel.

Work practices for the conduct of lead-based paint activities also differ for the aforementioned categories. The building materials in commercial buildings and superstructures require work practices for deleading activities that are very different than activities associated with lead abatement in target housing or public buildings. For example, the deleading of a watertower or industrial warehouse calls for sophisticated rigging and scaffolding equipment and the erection of containment structures. These methods are not applicable to the abatement of lead-based paint in target housing or public buildings.

Given these differences, as well as information supplied by the professional community on deleading steel structures and commercial buildings, the Agency believes there is little crossover between workers practicing in the target housing/public buildings realm and those in the commercial building/steel structures realm. Rather, evidence suggests that individuals are either working in the abatement of target housing and public buildings, or in the deleading of commercial buildings and steel structures.

In drafting this proposal, the Agency considered information provided by several professional groups whose members perform work in commercial buildings and superstructures. Based on this information, it appears that a broader range of tasks are practiced by fewer categories of individuals working these structures. Consequently only two accreditation disciplines (supervisor and worker) have been established for individuals working in commercial buildings and superstructures.

Therefore, this proposal would establish the following certification disciplines: inspector technician, inspector/risk assessor, supervisor, planner/project designer, and worker for target housing and public buildings; and supervisor and worker for commercial buildings and superstructures.

EPA is also proposing standards for lead-based paint activities in three separate categories of facilities. These categories include target housing, public buildings, and commercial buildings and superstructures. In target housing, the standards cover inspection, risk assessment, and lead abatement. The second set of standards, for public buildings, covers the identification of lead-based paint and lead-containing materials, risk assessment, abatement, and demolition. The final set of standards are for identification, deleading, and demolition in commercial buildings and superstructures.

The Agency is requesting comment on its proposed definition of public buildings and its proposal to regulate them in a fashion similar to target housing. Specifically, the Agency is interested in comment on whether the universe of building types covered under the proposed definition of public buildings comprise the appropriate range of building types. Further, the Agency is interested in comment on an alternative strategy that would decrease the number of public building types that should be regulated in a fashion similar to target housing.

D. Section 403

As part of the Lead-Based Paint Exposure Reduction Act, sections 402 and 404 represent just two of the many mandates that EPA is working under to address the issue of lead exposure. Section 403 of TSCA is one of these other mandates. That section requires that the Agency shall ". . .promulgate regulations which shall identify. . .lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil." The section 403 regulations will represent EPA's determination of those conditions that cause exposure to lead in paint, residential soil, and dust that would result in adverse human health effects. EPA expects the findings of this rule will be one of the most widely used tools to assist persons who will make the decisions on whether and how to reduce risk from lead-based paint, soil, and dust.

Title IV established the same 18-month deadline for promulgation of the section 403 rule as for the rules under sections 402 and 404. At this time, the Agency is still developing its proposed regulation under section 403. While the 403 rule, when promulgated, will be important for the lead exposure reduction program, it must be emphasized that it is essentially a source of guidance for the decisionmaker.

This is in contrast to today's proposed rule under sections 402 and 404, which is an infrastructure and "how to" type of rule. When promulgated, today's proposal will develop an infrastructure of training, certification, and standards for individuals engaged in lead-based paint activities. The 403 rule will identify conditions resulting in adverse human health effects which may be eliminated pursuant to the standards and requirements contained in the 402 and 404 rule.

When promulgated, the section 403 rule will be an important part of the federal lead exposure reduction program. However, it should be noted that the absence of the proposed section 403 rule at this time does not, in the Agency's opinion, significantly impair the public's ability to meaningfully comment on today's proposal. This is because the identification at a later date in the section 403 rule levels of lead that would result in adverse human health effects, is not expected to have a significant impact on the development of the standards and requirements of this proposed regulation.

For example, the procedures established in proposed Sec. 745.228(b)(4) of the regulatory text for the conduct of dust sampling as a part of a risk assessment in target housing are not expected to change as a function of the level established for lead-contaminated dust under the section 403 rule. Similarly, the number of course hours needed to properly train a risk assessor would probably not change due to the establishment of a particular definition of "lead-based paint hazard" under the section 403 regulation. In summary, the Agency believes that the standards and requirements proposed in the 402 and 404 rules can be evaluated independently of the definitions to be proposed in the future under section 403. Recently, the Agency published guidance on residential lead-based paint, lead- contaminated dust, and lead-contaminated soil. This guidance is intended to be used to prioritize primary prevention activities that address hazards from lead in and around residences. EPA expects that these hazards will be among those that will be identified when regulations are issued under section 403. The levels and conditions described in this guidance should be used by decisionmakers' to identify lead-based paint hazards, sources of lead exposure, and the need for control actions in residential environments where children may be present.

V. Accreditation of Training Programs

A. Introduction

Section 402(a)(1) of Title IV of TSCA requires EPA to promulgate regulations governing lead-based paint activities to ensure, among other items, that training programs for individuals engaged in lead-based paint activities are accredited. Section 402(a)(2) states that these accreditation regulations must

{pg 45876}

contain specific requirements for the accreditation of lead- based paint activities training programs for workers, supervisors, inspectors and planners, and other individuals involved in lead- based paint activities. These requirements must include, at least: (1) Minimum requirements for the accreditation of training providers, (2) minimum training curriculum requirements, (3) minimum training hour requirements, (4) minimum hands-on training requirements, (5) minimum trainee competency and proficiency requirements, and (6) minimum requirements for training program quality control. Proposed Sec. 745.225, Minimum Requirements for the Accreditation of Training Programs, describes a Federal accreditation program that EPA believes meets these requirements. Once the final rule is promulgated, Sec. 745.225 may be used by States, as defined by section 3 of TSCA as a model for purposes of establishing their own accreditation and certification programs in the context of applying for authorization under section 404 of Title IV of TSCA. The procedures for State program authorization are addressed in subpart Q of the regulatory text.

B. Framework for Training

Under the proposed Sec. 745.225(a), training programs may be accredited to offer courses for the following disciplines: Inspector technician, inspector/risk assessor, supervisor, planner/project designer, and worker for target housing and public buildings; and supervisor and worker for commercial buildings and superstructures.

"Discipline" means a specific type or category of lead-based paint activity. For example, an "inspector technician for target housing and public buildings" would be a discipline.

The course content, as well as the tasks associated with these job disciplines, are based principally on the definition of lead-based paint activities under TSCA, Title IV, as well as numerous comments the Agency received from practitioners in the field regarding the tasks associated with lead-based paint activities.

The following represents the categories, and respective roles and responsibilities for each discipline as proposed in this regulation:

Target Housing and Public Buildings:

Inspector technicians would be responsible for: (1) Conducting an inspection for lead-based paint in target housing and in public buildings; (2) completing an inspection report; and (3) taking post-abatement soil and dust clearance samples.

Inspector/risk assessors would be responsible for all of the same activities as the inspector technician, as well as: (1) Conducting a risk assessment and other lead hazard assessment activities (such as screening a residence for lead hazards) in target housing and in public buildings; (2) completing a risk assessment report; (3) interpreting the results of inspections, and assessments; (4) identifying hazard control strategies to reduce or eliminate lead exposures; and (5) conducting post-abatement soil and dust clearance sampling and evaluating the results.

Workers would be responsible for: Conducting abatement activities in accordance with the procedures and requirements of the pre-abatement plan.

Supervisors would be responsible for: (1) Ensuring that abatement activities are conducted in accordance with regulatory requirements; (2) in projects involving the abatement of less than 10 units, developing a written pre-abatement plan and an abatement report for each assigned unit; (3) maintaining accessibility at all times when abatement activities are being conducted; and (4) ensuring completion of all abatement activities according to the standards of this regulation.

Planners/project designers would be responsible for: (1) Designing abatement projects for target housing buildings with 10 or more units, and all projects in public buildings; (2) preparation of a pre-abatement plan for all designed projects.

Commercial Buildings and Steel Structures:

Workers would be responsible for: Conducting deleading activities in accordance with the procedures and requirements of the deleading plan.

Supervisors would be responsible for: (1) Ensuring that deleading activities are conducted in accordance with regulatory r equirements; (2) developing a written deleading plan and a post- abatement report for each assigned abatement project; (3) maintaining accessibility at all times when deleading activities are being conducted; (4) ensuring completion of all deleading activities according to the standards of this regulation; (5) identifying lead- based paint; and (6) completing all other reports required under this regulation. In the statute, activities associated with the inspection and assessment of lead-based paint are clustered together, and the Agency originally envisioned that it would develop one job discipline to both inspect for the presence of lead-based paint and to evaluate or assess any lead hazards.

In comments to the Agency, however, contractors performing work in large buildings (i.e., apartment complexes, schools, etc.) indicated that the costs associated with requirements mandating that individuals conducting inspections also be required to be trained to conduct risk assessments (as defined by the statute) were overly burdensome. Other commenters suggested utilizing individuals with less skill, education and training to simply collect the data needed by a "risk assessor" to evaluate lead hazards. Thus, in large settings the work could be done at a significantly lower cost while not compromising the quality of either the inspection or risk assessment. Based on these comments, the Agency is proposing the "inspector technician" discipline and the "inspector/risk assessor" discipline.

The establishment of two distinct disciplines - one as an entry level position, the "inspector technician," who would only conduct inspections; and another more advanced position, the "inspector/risk assessor," who would conduct risk assessments, but who also could conduct inspections - also will enable individuals to logically progress in their profession.
To foster this progression, the Agency is proposing to structure the inspector technician course so that it may be taken as a distinct course, separate from the inspector/risk assessor course. Upon passage of the inspector technician course, an individual would be able to secure certification as an inspector technician. Once certified as an inspector technician, an individual would be able to gain the work experience necessary to take the inspector/risk assessor course and to become certified as an inspector/risk assessor.

On the other hand, individuals that already possess the experience and/or education requirements to become certified as an inspector/risk assessor would take the inspector technician training course and the inspector/risk assessor training course together as one unit. Upon completion of the unit, individuals would become eligible for certification as an inspector/risk assessor.

By structuring the two courses in this way, the Agency also has avoided unnecessary duplication in training courses which individuals seeking to advance their careers sometimes encounter when taking additional training for other certifications. The content of the proposed inspector/risk assessor course supplements the inspector technician course and would not repeat any of the material from the inspector technician course.

Another example of this approach can be seen in the supervisor and planner/project

{pg 45877}

designer training courses. An individual could become certified as a supervisor for target housing and public buildings or as a planner/project designer for target housing and public buildings. However, to become certified as a planner/project designer, an individual would take the supervisor course and the planner/project designer course as one unit. Individuals seeking certification as a supervisor would only take the supervisor course, but could take the segment on planning/project design at a later date if they chose to pursue certification as a planner/project designer. Once again, the planner/project designer course would supplement the supervisor course and would not repeat any of the material from the supervisor course.

The Agency received comments from a number of interested parties in reference to the need to avoid duplicative training. In response, the Agency considered taking a modular approach by specifying a core curriculum that would be common to all the categories of individuals conducting lead-based paint activities. However, EPA's review of the training requirements indicates that the only knowledge and skill elements common to all the categories are: background information on lead, health effects, and regulatory background. Because these elements would only make up one-half day of training, the Agency believes it is not practical to break out these topics as a separate core curriculum. Consequently, the Agency has proposed separate courses for each discipline.

However, the Agency invites specific comments on its chosen approach and suggestions for outlining a modular approach that could be practicably implemented. Currently, the regulation requires a minimum amount of classroom time for each course (e.g. the inspector technician course shall last a minimum of 24 hours).

Although the Agency feels that the advantages of classroom training (opportunity for student teacher interaction, the ability of the training provider to update or customize the course material delivery at the time of the course) are significant, the Agency also is interested and requests comment on less traditional educational methods. These alternative methods could include the use of videotape or at-home study, for the delivery of the course material.

One such alternative would allow individuals to study course materials at home, and then spend one or two days at a training program facility to receive hands-on instruction and to take the course exam. This alternative would help to reduce travel expenses, may lower tuition costs, and would reduce the time that a trainee would have to miss work. The Agency is concerned however that non-classroom oriented instructional methods may not provide training of a quality equivalent to classroom instruction. Comments on the impact of quality resulting from alternative training methods taking into account the requirement for hands-on training, course test, and third party exam, are specifically sought as a part of this proposal.

C. Application Process

Proposed Sec. 745.225(a) describes the process a training program must follow when applying for accreditation from an approving authority. "Approving authority" is defined in this proposed regulation to mean EPA or in the case of a State or Tribal program authorized by EPA under this proposal, the appropriate State agency or Tribal authority; an "accredited training program" means a training program that has been accredited by an approving authority to provide training for individuals engaged in lead-based paint activities.

The procedures in proposed Sec. 745.225(a) would apply to all training programs seeking accreditation, regardless of when they began offering lead training. After the effective date of Sec. 745.225, only accredited training programs may offer lead-based paint activity training for individuals seeking certification under proposed Sec. 745.226.

For a training program to be accredited, the program would have to submit an application and all of the documents and information listed in proposed Sec. 745.225(a)(2) to the approving authority. These documents would be used by the approving authority to determine if the training program meets the minimum requirements for accreditation of training programs listed in proposed Sec. 745.225(b). Training programs also would be required to maintain copies of all documents submitted with their application.

Documents to be submitted as a part of the application would include a written statement signed by the training program manager that clearly demonstrates that the training program meets the requirements outlined in Sec. 745.225(b). The training manager would be responsible for ensuring that the training program complies with all requirements in proposed Sec. 745.225(b).

The training manager must also certify that all of the program's principal instructor(s) and work practice instructor(s) meet the specified experience requirements and ensure satisfactory performance of the program instructors.

Copies of the program's instructor/student manuals and the course agenda for each course must also be submitted with the application for accreditation. However, if the training program chooses to utilize EPA-developed model course materials, they would not be required to submit these materials, but only to maintain them. This exclusion is not intended to favor the use of EPA- developed materials, but to minimize the documentation that a training program must submit, and thus to minimize the paperwork burden generated by the application process.

Once the training program's application for accreditation is submitted, the approving authority would have 180 days to approve or disapprove the application. The approving authority may, at its discretion, work with training programs to address inadequacies in the request for accreditation. If a training program's application is disapproved, the program may reapply at any time. If a training program's application is approved, a certificate of accreditation would be sent to the applicant. A training program may offer basic full length training courses and refresher training courses in as many disciplines as it chooses, but would be required to seek accreditation for each discipline. However, a training program cannot apply for accreditation to teach a refresher course unless it is accredited to teach the full length basic course. A training program may apply for accreditation to teach both the full length basic training course and the refresher training courses simultaneously. Procedures to apply for accreditation to teach a refresher training course are discussed in unit V.F. of this preamble.

D. Minimum Requirements for the Accreditation of Training Programs For a training program to obtain accreditation for any of the courses, the program would have to demonstrate it meets the requirements detailed in proposed Sec. 745.225(b). The proposed requirements have been developed to ensure that all accredited training programs are offering similar high quality training courses, regardless of where the training programs are located.

The training program would have to employ a qualified training manager, principal instructor(s), and work practice instructor(s) and would have the necessary facilities to teach both the lecture and hands-on portion of the course(s) for which the program would

{pg 45878}

be seeking accreditation. Proposed Sec. 745.225(b)(1), (b)(2), and (b)(3) lists the education and experience requirements that the Agency believes training managers, principal instructors, and work practice instructors would have to possess to ensure that training is conducted properly. Documents that would serve as a proof of these educational requirements are identified in proposed Sec. 745.225(b)(5). The Agency invites specific comment on the educational and work experience requirements it is proposing for training program managers and course instructors.

The training manager is responsible for the overall quality of the training program from the qualifications of the instructors to the adequacy of the training facility. They are responsible for certifying, in the program application, that the program meets all of the accreditation requirements of this regulation, and for maintaining the program at that level.

The principal instructor is responsible for the organization, delivery and oversight of all course materials. In this capacity the principal instructor has the flexibility to bring in experts (e.g. doctors or lawyers) to teach selected portions of the training course (e.g., health effects of lead or regulatory requirements). These experts, termed "guest instructors," might not be professional trainers or practitioners in the lead-based paint activities arena, but must maintain specialized knowledge of a particular course topic.

As a part of the educational requirements for training managers, and principal and work practice instructors, the Agency has proposed a 40-hour train- the-trainer course. The Agency chose 40 hours based on comments it has received from a number of interested parties. On the other hand, several parties have expressed concern to the Agency that 40 hours is an extensive period of time for a train-the-trainer course. Comments on this issue are invited, as well as the submission of supplemental information on the utility of a 40-hour course.

Proposed Sec. 745.225(c) of the regulatory text lists the minimum curriculum requirements for each course. The minimum requirements are a list of topics that would be covered in each of the courses, as well as the specified skill areas where hands-on training would occur. There would be minimum curriculum requirements for inspector technicians, inspector/risk assessors, supervisors, planner/project designers, and workers in target housing and public buildings; and supervisors and workers in commercial buildings and superstructures. The training programs would also provide instruction in the standards in proposed Sec. 745.228 for conducting lead-based paint activities. The course topics that must include a hands-on exercise are noted in the proposed rule with an asterisk.

Each training program's course would have to meet or exceed the appropriate minimum total training hour and hands-on training requirements as stated in proposed Sec. 745.225(b)(7) of the regulatory text. The hands-on training hours are included in the total number of training hours. The total training hours and hands-on training hour requirements were developed by the Agency based on its experience in developing other training programs for asbestos, pesticides, and radon. In defining the total training hour requirements, the Agency also considered information it has received from the EPA-sponsored Regional Lead Training Centers, private training providers, and other university-based training providers, labor organizations, and other interested parties. The Agency is requesting that individuals who have data that would support alternative minimum training hour requirements submit that information during the comment period for consideration.

To ensure trainee competency and proficiency, the accredited training program would have to administer a course test at the end of the course and conduct a hands-on skills assessment. The hands-on skills assessment would be an evaluation of the effectiveness of the hands-on training which should test the ability of the trainees to demonstrate satisfactory performance of all the specified work practices and procedures described in proposed Sec. 745.225(c). Both the hands-on assessment and the course test would have to be successfully completed to pass the course.

To ensure the quality of the training programs, programs would have to develop, implement, and maintain a quality control plan and submit the plan to the approving authority for consideration. The quality control plan should be developed so as to maintain and improve the quality of the training program over time. The plan would address procedures for periodic revision of training materials and the course test to reflect innovations in the field, and procedures to periodically review instructor competency. An example of why the provisions for quality control and periodic revision of course materials are important is seen in the inspector/risk assessor course. The procedures outlined in proposed Sec. 745.228(b) and (e) of the regulatory text are critical for the conduct of risk assessments in target housing and public buildings. However, risk assessment, or determining the nature or severity of a lead-based paint hazard is an evolving field where technologies are advancing at rapid pace. The skills needed for assessing lead-based paint hazards would be addressed in the inspector/risk assessor course, so provisions for quality control and the periodic revision of course materials to include state-of- the-art advances are of the utmost importance to ensure professional competence.

E. Course Test

Proposed Sec. 745.225(b)(8) outlines the requirements for the course test that would be administered by training programs at the completion of each course. The course test would be representative of the topics taught in the course. Although the Agency expects most training providers to develop and administer a written course test, EPA is requesting comment on the need to make special provisions for individuals who cannot read English, or who have a low reading comprehension. For example, training providers may want to develop a course test in a foreign language, or to administer the test orally.

Regardless of how it is administered, training participants would be required to pass the course test by answering correctly at least 70 percent of the test questions. Upon successfully passing the course test and the hands-on assessment, individuals would receive a course completion certificate. Passage of the course test and hands-on assessment would demonstrate that the trainee has been properly trained.

F. Minimum Requirements for the Accreditation of Refresher Training Programs

Proposed Sec. 745.225(d) outlines the minimum requirements that would be required for the accreditation of refresher training programs. These requirements would ensure that all accredited training programs would offer similar high quality refresher training courses.

Refresher training would address the following topics: An overview of key safety practices; an update on current laws and regulations (Federal, State, and local); and an update on new technologies. The course would be a minimum of 7 training hours and would include a course test to be administered at the end of the course.

The minimum course requirements for a refresher training course would

{pg 45879}

serve to update an individual's knowledge and skills so they can effectively and safely continue to practice in the field.

In addition to its application, a training program seeking accreditation to teach a refresher course(s) would submit to the approving authority the materials to be used for the course. This information would be submitted for each discipline for which the program will be seeking accreditation. The approving authority would have 45 days to approve or disapprove the request for accreditation and to issue a certificate of accreditation. The approving authority may, at its discretion, work with training programs to address inadequacies identified in the request for accreditation. If a training program's application is disapproved, the program would be able to reapply at any time.

A training program may offer refresher training courses in as many disciplines as it chooses, but would be required to seek accreditation for each discipline. However, a training program cannot apply for accreditation to teach a refresher course unless it is accredited to teach the full length basic course. A training program may apply for accreditation to teach both refresher training courses and full length basic training courses simultaneously. Procedures to apply for accreditation to teach a full length basic training course are discussed in paragraph C of this Unit in the preamble.

G. Re-accreditation of Training Programs

To ensure that accredited training programs continue to offer high quality training, the Agency has proposed requirements at Sec. 745.225(e) for the re-accreditation of training programs. An accredited training program would have to be re-accredited every 3 years by the approving authority. To qualify for this re-accreditation, an audit of the training program by the approving authority may be performed at the approving authority's discretion.

The application for re- accreditation shall include a list of courses for which the training program is applying to teach and a description of any changes or updates to the training facility or equipment.

In addition to the application, the training program manager would sign a statement certifying that: (1) The course materials meet the applicable curricula requirements in proposed Sec. 745.225(c); (2) the training manager, principal instructors, and work practice instructors meet the qualifications in proposed Sec. 745.225(b)(1), (b)(2), and (b)(3); (3) the training program complies at all times with all requirements in proposed Sec. 745.225(b); (4) the quality control program meets the requirements described in proposed Sec. 745.225(b)(11); and (5) that the recordkeeping requirements in proposed Sec. 745.225(h) are being followed.

The training program would submit an application for re-accreditation at least 180 days prior to expiration of its existing accreditation. If a training program does not submit its application for re-accreditation in time, EPA would not be able to guarantee that the application would be processed before the applicant's accreditation expires.

H. Suspension, Revocation, and Modification of Accredited Training Programs

Proposed Sec. 745.225(f) contains the procedures that the approving authority would follow to suspend, revoke, or modify a training program's accreditation. The approving authority may, generally after notice and opportunity for a hearing, suspend, revoke, or modify a training program's accreditation if a training program or its training manager, or other supervisor has committed any of the acts identified in proposed Sec. 745.225(f).

I. Procedures for Suspension, Revocation, and Modification of Training Program Accreditation

Proposed Sec. 745.225(g) of the regulatory text describes the procedures that the approving authority would follow if it decides to suspend, revoke, or modify the accreditation of a training program. These include procedures for notifying the program; for conducting the hearing, if requested; and for immediate action to suspend the accreditation of any program.

J. Training Program Recordkeeping and Reporting Requirements

Proposed Sec. 745.225(h) of the regulatory text outlines the recordkeeping and reporting requirements for accredited training programs. The recordkeeping requirements would ensure that the approving authority could obtain the information necessary to audit programs and ensure that approved training programs are in compliance with all applicable standards.

The training program would maintain, and make available to the approving authority, if requested, all documents submitted to the approving authority as listed in proposed Sec. 745.225(a)(ii). In addition the training program would maintain all documents specified in proposed Sec. 745.225(b)(5) that demonstrate the qualifications of the training manager, principal instructors, and work practice instructors. Student files also would be maintained and would contain at a minimum, the results of the student's hands-on skills assessment and course test, and a copy of their course completion certificate. The training program would retain these records for a minimum of 3 years and 6 months at the location and address specified on the training program accreditation application. Training programs would notify the approving authority 30 days prior to relocating its business or transferring the records.

K. Training and Other Regulatory Requirements Applicable to Lead-Based Paint Abatement Professionals Under the Resource Conservation and Recovery Act (RCRA)

In addition to the training and recordkeeping requirements of this proposed rule, there are other regulations that may apply to individuals engaged in lead- based paint activities. Some lead-based paint activities may result in the generation of hazardous waste as defined under the Resource Conservation and Recovery Act (RCRA). For convenience, this paragraph includes references to the Code of Federal Regulations (CFR) for applicable RCRA hazardous waste generator requirements (see 40 CFR part 262), as well as references to training and recordkeeping requirements. References to training and recordkeeping requirements are specified as needed in the following discussion.

1. Training requirements. Individuals involved in projects that generate more than 100 kilograms/month of hazardous waste must be instructed in hazardous waste determination and management procedures relevant to their job descriptions.

There are also RCRA training requirements cited in 40 CFR 265.16 which are applicable to both large quantity generators of hazardous waste (more than 1,000 kilograms/month of hazardous waste are generated) and operators of the RCRA treatment, storage, and disposal facilities. Small quantity generators (more than 100 kilograms/month but less than 1,000 kilograms/month of hazardous waste are generated) must comply with the training requirements in 40 CFR 262.34(d). Individuals engaged in lead-based paint activities must be familiar with the requirements cited in 40 CFR 265.16(b), (c), and (d)(1) through (d)(4) and follow them when handling lead-based paint abatement waste.

2. Maintaining training records. RCRA requires that training records cited in 40

{pg 45880}

CFR 265.16(d)(1) through (d)(4) be maintained by hazardous waste generators to show that a generator of hazardous waste who generates greater than 1,000 kilograms/month of hazardous waste (see 40 CFR 261.3 and 261.10 through 35) has completed the RCRA training requirements. The abatement workers' RCRA training records must be maintained on-site where abatement work will be performed.

VI. Certification of Individuals and Firms Engaged in Lead-Based Paint Activities

A. Introduction

Section 402(a)(1) of Title IV of TSCA requires EPA to promulgate regulations to ensure, among other items, that contractors engaged inlead-based paint activities are certified. EPA interprets this requirement to apply to individuals, as well as firms, engaged in lead-based paint activities.

The term "certified contractor," as defined in section 1004 of Title X, includes (1) a contractor, inspector or supervisor who has completed a training program certified by EPA and who has met any other requirements for certification established by EPA or who has been certified by any State through a program which has been found by EPA to be at least as protective as the Federal certification program; and (2) workers and designers who have fully met training requirements established by EPA or an approved State program.

Accordingly, EPA has determined that an individual performing lead-based paint activities as an inspector, supervisor, worker or designer is subject to regulations as a "certified contractor" pursuant to section 402. Although "risk assessor" was not expressly listed in the definition of "certified contractor" in section 1004 of Title X, the function of a risk assessor - to prepare a risk assessment - is defined as a lead-based paint activity under TSCA Title IV, section 402(b). Consequently the Agency is proposing to define a risk assessor as a "contractor" in the same way that inspectors and supervisors are defined as contractors.

At the same time the Agency recognizes that the term "contractor" may also be used to describe a firm or a company, rather than an individual. Consequently, the Agency is proposing regulations governing the activities of firms, as well as individuals engaged in lead-based paint activities.

Proposed Sec. 745.226(f) of the regulatory text identifies the requirements firms would need to meet to obtain certification. Under these requirements a firm engaged in lead-based paint activities would submit to the approving authority a letter certifying that the firm will only employ certified employees to conduct lead-based paint activities and that the firm will adhere to the standards and recordkeeping requirements in proposed Sec. 745.228.

To ensure that individuals are adequately trained and certified the Agency has developed two distinct training and certification programs. One of the programs has been designed for individuals engaged in lead-based paint activities as workers and project planners/designers. The other program has been designed for individuals engaged in lead-based paint activities as inspectors, supervisors and risk assessors. These certification programs are discussed in detail in units VI.B. and C. of this preamble.

Based on comments received during the development of this proposed rule, the Agency is proposing the use of a national certification exam to be included as a part of the certification process for inspector technicians, inspector/risk assessors and supervisors. The national exam is included in the certification requirements described in Sec. 745.226(b) for inspector technicians, inspector/risk assessors and supervisors.

The Agency believes that the administration of a certification exam would significantly contribute to the Agency's efforts to ensure that individuals are adequately trained and would encourage a nationally consistent approach to the development of a trained and certified workforce. Options for the development of a national exam and the purpose of the exam are discussed in more detail later in units VI.D. and E. of this preamble.

Proposed Sec. 745.226 of the regulatory text has also been developed as a model for States to use when establishing their own certification programs in the context of applying for authorization under section 404 of Title IV of TSCA.

Although this proposed rule specifies certification requirements as well as standards for all individuals engaged in lead-based paint activities, it does not contain a requirement that particular activities be undertaken in any specific sequence. For example, there will be no requirement to conduct an inspection if, due to the availability of historical information, lead-based paint is presumed to exist and a decision to abate without an inspection has been made. Under such circumstances, the abatement may proceed using certified individuals without the conduct of a prior inspection.

Only certified individuals may conduct the lead-based paint activities defined in this proposed regulation. If a homeowner decides to have an inspection (as defined by this proposed regulation) conducted, the individual providing the inspection service must be certified. However, any lead related work that does not meet the definition of a lead-based paint activity, as identified in section 402(b)(1) and (2) and as defined by this regulation, need not be conducted by a certified individual. For instance, during a kitchen remodelling project a homeowner may decide to have the paint on only one wall in the kitchen tested for lead, by a non-certified individual or firm because such limited testing is not an "inspection" as that term is defined by the regulation. However, no individual or firm may perform or even offer to perform any lead-based activity, e.g., inspection, risk assessment, or abatement, as defined in this part, unless certified according to the procedures found at proposed Sec. 745.226.

B. Inspector Technician, Inspector/Risk Assessor, or Supervisor Certification

Individuals wishing to become certified by the approving authority as an inspector technician, an inspector/risk assessor, or a supervisor would have to: (1) Successfully complete the appropriate training course offered by an accredited training program and secure a course completion certificate; (2) meet the appropriate experience and/or education requirements and; (3) pass the certification examination recognized by the approving authority.

To be eligible to take the certification examination, an individual would first have to present the required training course completion certificate and documentation of the appropriate education/experience prerequisites to an official of the examination administering body. Documents that would be recognized as proof of these prerequisites are listed in proposed Sec. 745.226(b).

Experience and/or education requirements are proposed in the regulatory text for inspector/risk assessors for target housing and public buildings, supervisors for target housing and public buildings, and supervisors for commercial buildings and superstructures. There are no experience and/or education requirements proposed for inspector technicians because the EPA believes that this would present an unnecessary barrier to entry into this field.

Many interested parties commented that the work experience and

{pg 45881}

educational qualifications of inspector/risk assessors and supervisors should be substitutable. Therefore, the Agency, in proposing education/experience requirements, took into account its experience in developing training programs in the past (e.g., asbestos) and comments provided by a number of interested parties, such as the Regional Lead Training Centers, labor organizations, advocacy organizations, and trade organizations. Based on information received, the experience and education requirements for inspector/risk assessors and supervisors were developed by the Agency in an effort to allow individuals to substitute qualifying experience for education and visa versa. These requirements were developed to avoid excluding individuals whose experience might warrant qualification to become certified but who would not qualify on the basis of the education requirements alone. Proposed Sec. 745.226(b)(1) of the regulatorytext describes the education/experience requirements for inspector/risk assessors and supervisors.

The Agency specifically requests comment on the education and/or experience requirements it is proposing for inspector/risk assessors and supervisors, and its decision not to propose any education and/or experience requirements for inspector technicians. It also is seeking comment on the administration of a national certification examination as discussed in units VI.D. and E. of this preamble.

C. Worker and Planner/Project Designer Certification

Individuals wishing to become certified as workers in target housing and public buildings or commercial buildings and superstructures or planner/project designers in target housing and public buildings would have to successfully complete and receive a course completion certificate in the appropriate discipline from an accredited training program. There are no experience and/or education prerequisites for workers or planner/project designers, nor would these job disciplines be required to take a national certification examination. This decision is based on EPA's understanding of the definition of "certified contractor" in section 1004 of Title X, which only requires training as a precondition to certification for workers and planner/project designers.

The training course completion certificate issued to a worker or planner/project designer would serve as an interim training certificate for 6 months. Within 6 months the individual would submit a valid copy of their course completion certificate to the approving authority. The approving authority would then issue a final certification to each worker and project designer. This certification would be valid for 3 years. An individual would have to be re-certified by the approving authority before the certification expires. Training programs may wish to assist trainees in notifying the approving authority of their eligibility for certification.

D. Certification Examination

Proposed Sec. 745.226(b) of the regulatory text describes the certification requirements for inspector technicians, inspector/risk assessors, and supervisors. Under these requirements, an individual would successfully complete the appropriate training course and secure the course completion certificate, and meet the appropriate education/experience requirements. After obtaining a course completion certificate and meeting these requirements, an individual would be ready to take the certification examination.

The certification examination is a key component of the Agency's certification program, especially for inspector technicians, inspector/risk assessors, and supervisors. While there would be a required test at the end of each training course, the certification examination would serve as a neutral or third party examination of the applicant's proficiency in the appropriate training discipline. A neutral or third party would administer the examination in such a way that the validity and security of the examination are maintained. The examination would serve to ensure that each individual who will be certified under this program would have a common level of knowledge and understanding in their particular discipline. It is the Agency's belief that administration of a neutral or third party examination would encourage States to enter into reciprocal certification arrangements with other States nationwide.

The examination itself would not be developed as part of this proposed regulation, but would be developed separately under the auspices of EPA, according to guidelines discussed in paragraph E of this Unit in the preamble.

It is anticipated that the approving authority may not always be able to offer the certification examination immediately after an individual has received their course completion certificate. To allow individuals to begin work, the course completion certificate would also serve as an interim certification until evidence of successfully passing the next available certification examination is provided. This interim certification would be valid for up to 6 months. If an individual did not pass the certification examination and receive their certificate within this 6-month period, the individual would have to retake the appropriate course before reapplying for certification from the approving authority.

After passing the certification examination and meeting the education/experience prerequisites, an individual would be issued a certificate by the approving authority. This certification would be valid for 3 years. There would be separate certification examinations offered for each discipline.

EPA is examining various options for the development and administration of the certification examination. One option is for EPA or a State to work with a competent independent organization to develop and/or administer the certification examinations based on the guidelines discussed below. A second option is to have authorized State programs develop and administer their own certification examinations according to the Certification Examination Guidelines. A third option is for EPA to develop and/or administer the certification examinations. Comment is invited on these options and on the feasibility of an independent organization administering the examination. The goal of the certification examination process is to give each State the flexibility it desires in fashioning its certification program, while at the same time ensuring a consistent national level of competence in the lead-based paint activities workforce.

E. Certification Examination Criterion

The following are criterion that, although not a part of this proposed rule, EPA expects will be followed when developing the certification examination:

1. Subject matter experts (SMEs) will be consulted throughout the development and early evaluation process.

2. This consultation will be done using oral interviews and written questionnaires devised by the SMEs in concert with testing development professionals. A job or task analysis will be performed for each discipline. This analysis will be used in the development of the initial test questions and the overall development of the topical format of the examinations, including the amount or percentage of questions for each topic covered on a particular examination.

{pg 45882}

3. A readability analysis of the test questions will be performed. Based on this evaluation, changes will be made as necessary in the construction of the test questions.

4. Complete psychometric evaluation techniques will be utilized in the initial construction of the tests.

5. A cut score workshop will be conducted to review each question in the item bank (or test bank). The SMEs shall be used to evaluate each question. They would establish a level of difficulty for each question, as well as the percentage of each topic to be covered on the test. Based on their knowledge of the industry, the SMEs will provide an estimate of the number of candidates who would successfully complete each question. Once these items have been established, an appropriate, industry accepted procedure will be used to set a minimum passing (or "cut") score for each examination.

6. Continuous psychometric evaluation of the test questions will be used. The test questions will be periodically revised and updated through the collection of statistics regarding the performance of candidates on each question.

EPA recognizes that States may wish to impose additional testing requirements on candidates. This practice is acceptable as long as the test questions used by a State do not duplicate the topics covered in the standardized certification examination, but rather are specific to State laws, regulations, and work practice requirements.

F. Certification Based on Prior Training

EPA is aware that when the regulation becomes effective, there will be many individuals who have, over the past several years, already received training and have been working in the lead- based paint abatement field. While many of these individuals may not believe that any additional training will be necessary, the Agency has a responsibility to ensure that individuals engaged in lead-based paint activities are properly trained. The Agency does not, however, wish to unnecessarily burden individuals, some of whom already have years of experience in this field.

Recognizing this situation, the Agency has proposed at Sec. 745.226(d) a procedure for certifying some of these individuals under a reduced set of requirements. Anyone who has received lead-based paint activities training between October 1, 1990, and the effective date of the rule may be eligible for certification under these proposed procedures. To become eligible for certification based on prior training, all individuals would have to show proof of training received after October 1, 1990, and that such training included a curricula similar to the requirements in Sec. 745.225(c).

Inspector/risk assessors, and supervisors would also have to document that they meet the education and/or experience requirements listed in proposed Sec. 745.226(b)(1). These individuals would also have to successfully complete a refresher training course and pass the national certification examination for the appropriate discipline.

Workers and planner/project designers seeking certification under these procedures would have to successfully complete a refresher training course.

In considering grandfathering, the Agency invites comment on what criteria should be used to compare prior training with the training described in proposed Sec. 745.225(c). The Agency believes that some evaluation of the adequacy of previous training will be necessary to ensure that individuals are properly trained.

The Agency has chosen the date of October 1, 1990, as the proposed cutoff for prior training because this is the date the Department of Housing and Urban Development's (HUD) "Interim Guidelines for Hazard Identification and Abatement of Lead-Based Paint in Public and Indian Housing" were issued. These guidelines were the most comprehensive and accurate information on lead-based paint inspection and abatement issued up to that time. EPA believes that after October 1, 1990, the HUD guidelines were widely distributed to training programs and that many individuals received training based on these guidelines. The Agency requests specific comment on using the HUD Guidelines as a rationale and the October 1, 1990 date as the cutoff point for allowing certification based on prior training.

As of July 1994, 3,245 copies of the guidelines and 231 copies of EPA's lead inspector training course, based substantially on the HUD Guidelines, have been sold. Additionally, as of September 1993, 306 copies of EPA's model lead abatement training course for supervisors and contractors, also substantially based on the HUD guidelines, had been sold. All of these materials were sold to the general public through the HUD contractor-operated distribution center, HUD User.

Since the establishment of EPA-supported Regional Lead Training Centers (RLTC) in March 1992, the Centers have trained approximately 2,000 individuals in the Supervisor/Contractor Course (Ref. 8) and approximately 2,200 individuals have received training in the RLTC's lead inspector training course (Ref. 9). The RLTCs use EPA's model courses as the basis for their training classes. Again, EPA's model courses draw substantially from the HUD Guidelines.

Under the proposed rules, individuals would have up to 6 months after the effective date of proposed Sec. 745.225 to apply for certification under these prior training procedures. After that date, all individuals wishing to obtain certification would do so under the process outlined in proposed Sec. 745.226(b) and (c) of the regulatory text. The Agency recognizes that 6 months after Sec. 745.225 becomes effective may not seem like an adequate amount of time to apply for certification under the reduced set of requirements detailed in proposed Sec. 745.226(d). However, when it is considered that proposed Sec. 745.225 does not become effective until 2 years and 6 months after the rule (in its entirety) is issued or "effective," the Agency believes that individuals will have plenty of time to prepare to apply for certification under the procedures in Sec. 745.226(d). The Agency requests comment on the procedures it is proposing for a prior certification.

G. Re-certification

The Agency is aware that the lead-based paint activities field is evolving quickly in both inspection and abatement technology. Given this, under the proposed rule, refresher training would be required every 3 years. This requirement would be enforced by mandating that all certified individuals be recertified every 3 years. The Agency has chosen 3 years as the amount of time for re-certification for several reasons. EPA believes re- certification of individuals every 1 or 2 years would be too burdensome. But, it also believes that waiting longer than 3 years would not allow individuals to receive timely updates on innovations and technological advances in the lead inspection and abatement field or on new regulatory requirements.

To become re-certified, an individual would successfully complete an accredited 1-day refresher training course specific to the discipline in which the individual seeks to be recertified through an accredited training program; pass the refresher course test, and submit a refresher course completion certificate to the approving authority.

{pg 45883}

H. Suspension, Revocation, and Modification of Certification of Individuals Engaged in Lead-Based Paint Activities

Pursuant to section 402(a) of TSCA, the approving authority would be able to, after notice and opportunity for a hearing, suspend, revoke, or modify an individual's certification if an individual has committed any one of the acts listed in Sec. 745.226(g) of the proposed regulatory text. In addition, the approving authority would be able to suspend, revoke, or modify the certification of individuals who have been subject to a final order imposing a civil penalty or a criminal conviction for engaging in a prohibited act under section 15 or section 409 of TSCA.

Furthermore, any individual who either: (1) Obtained certification through fraudulent representation or means, or (2) obtained certification from a training program that is not accredited to offer training is not considered certified for purposes of TSCA Title IV. It would be considered a violation of TSCA, as well as any other applicable provision of law, for any such individual to conduct any lead-based paint activities requiring certification.

I. Certification of Firms Engaged in Lead-Based Paint Activities

Proposed Sec. 745.226(f) of the regulatory text outlines procedures for the certification of firms. All firms acting as contractors or conducting lead-based paint activities would have to be certified by the approving authority. To become certified, a firm would submit a letter to the approving authority certifying that the firm will only employ certified employees to conduct lead- based paint activities and that the firm will follow the standards and recordkeeping requirements in proposed Sec. 745.228.

The Agency believes the certification of firms is necessary to ensure the use of a certified workforce and compliance with recordkeeping requirements. A certified firm would present the approving authority with a more manageable point of contact for administration and enforcement, as opposed to the Agency attempting to monitor the activities of every worker involved in lead-based paint activities. Additionally, the provisions for the identification of qualified firms would provide a source of information for the public to identify firms qualified to conduct lead-based paint activities in target housing, public and commercial buildings, and superstructures. Additionally, the required certification mechanism would also provide the Agency with a mechanism for notifying contractors of new technologies and regulatory requirements in an effective and timely manner. A certified firm would follow the recordkeeping standards outlined in Sec. 745.228 of the proposed regulatory text.

J. Suspension, Revocation, and Modification of Certification of Firms Engaged in Lead-Based Paint Activities

The approving authority would be able to, after notice and opportunity for hearing, suspend, revoke, or modify a firm's certificate if a firm has committed any of the acts listed in Sec. 745.226(h) of the proposed regulatory text. In addition, the approving authority may suspend, revoke, or modify the certification of firms that have been subject to a final order imposing a civil penalty or a criminal conviction for engaging in a prohibited act under section 15 or section 409 of TSCA.

Furthermore any firm which either: (1) Obtained certification through fraudulent representation or means, or (2) fails to obtain a certificate from the approving Authority is not certified for purposes of TSCA Title IV. It shall be considered a violation of TSCA as well as any other applicable provision of law, for any such firm to conduct any lead-based paint activities requiring certification.

K. Procedures for Suspension, Revocation, or Modification of Certification of Individuals or Firms

Proposed Sec. 745.226(h) outlines the procedures to be followed if the approving authority decides to suspend, revoke or modify the certification of any individual or firm. These include procedures for the notification of the individual or firm; the conduct of the hearing, if requested; and the procedures for immediate action to suspend the certification of any individual or firm.

VII. Standards for Conducting Lead-Based Paint Activities

A. Introduction

Section 402(b) of TSCA requires EPA to develop training and certification requirements for individuals and contractors engaged in lead-based paint activities. The statute also states that such regulations shall contain standards for performing lead-based paint activities, taking into account reliability, effectiveness, and safety.

In this proposed rule, EPA has divided the standards for lead-based paint activities into three separate categories with lead identification and control disciplines specified for each category. These categories include target housing, public buildings, and commercial buildings and superstructures. In target housing, the standards cover inspection, risk assessment, and lead abatement. The second set of standards, for public buildings, covers the identification of lead-based paint and lead-containing materials, risk assessment, abatement, and demolition. The final set of standards are for identification, deleading, and demolition in commercial buildings and superstructures.

Although this proposed rule specifies certification requirements as well as standards for all individuals engaged in lead-based paint activities, it does not contain a requirement that particular activities be undertaken in any specific sequence. There will be no requirement to conduct an inspection if, due to the availability of historical information, lead-based paint is presumed to exist and a decision to abate without an inspection has been made. Under such circumstances, the abatement may proceed using certified individuals without the conduct of a prior inspection.

B. Background Documents

The statutory timeframe for developing final standards for conducting lead-based paint activities under section 402(a) did not allow sufficient time to conduct extensive new studies and develop entirely new standards for the broad range of lead-based paint activities as defined in this proposed rule. However, the Agency was able to draw on a body of existing information and research in the development of these standards. In addition, during the development of this proposal, the Agency received written input from a broad range of individuals and groups who are currently working in the fields that conduct lead- based paint activities.

One example of such resource material is the Interim HUD Lead-Based Paint Guidelines. The Guidelines, published in 1990, is a comprehensive document that covers all aspects of lead-based paint inspection and abatement activities. The Guidelines provided an invaluable starting point for the development of EPA's inspection, risk assessment, and abatement standards. The Guidelines are the only nationally recognized blueprint for conducting safe and effective abatement in target housing. While State and regional requirements exist for methodologies for some lead-based paint activities, no other set of guidelines has been used as extensively as the HUD Guidelines.

{pg 45884}

Section 1017 of Title X requires that HUD issue new guidelines for risk assessment, inspection, interim controls, and abatement. These guidelines will be entitled Guidelines for the Evaluation and Reduction of Lead-Based Paint Hazards in Housing. Leading experts in the field of lead-based paint inspection, risk assessment, and abatement have been consulted by HUD in developing these new guidelines, including lead-based paint abatement trainers and abatement professionals, as well as government officials from the National Institute of Occupational Safety and Health (NIOSH), the Centers for Disease Control and Prevention (CDCP), EPA and HUD.

Since the development of the revised guidelines paralleled the development of this proposed rule, the Agency was able to consult with HUD throughout the rule development process in an attempt to achieve consistency between the two documents. The Agency will, when it is available, include a copy of the new HUD guidelines in the public docket for this proposed rule.

C. Inspection for Target Housing

The objective of an inspection is to determine, and then report, the existence of lead-based paint in residential dwellings through a surface-by-surface investigation. The data collection and reporting standards specified in Sec. 745.228(a) must be followed when conducting an inspection. Because the data collection and reporting standards are crucial to the accuracy of an inspection, an inspection may only be conducted by an individual certified as either an inspector technician or an inspector/risk assessor. An inspection is, by definition, intended to provide a comprehensive inventory of all lead-based paint in a dwelling unit. Consistent with this definition, the inspection report will provide a detailed evaluation of the presence of lead in all paint within the unit.

EPA is proposing to define a unit as a room, or connected group of rooms, used or intended to be used by a single tenant or owner. Section 745.228(a)(2)(ii) of the proposed regulatory text states that component surfaces with distinct painting histories in every unit must be tested. This effectively means that every unique component within a room that has a painted surface that has been deemed to have such a painting history by the inspector technician or inspector/risk assessor, would have to be tested.

The requirement that every unique painted surface be tested is consistent with the Title X definition of an inspection involving a "surface-by-surface investigation." An inspection is intended to provide detailed information on the presence of lead in all paint in a dwelling unit, and the procedures in this proposed standard are intended to provide a framework to obtain this information.

The inspection standards reflect the Agency's preliminary decision not to provide detailed instruction on how to perform specific lead-based paint identification tasks, for instance, taking a paint chip sample or operating an XRF instrument, but instead to assure that analysis information is obtained and maintained as part of the recordkeeping requirements. Because the actual methods and techniques used to determine the presence of lead-based paint (the test methods) are constantly evolving, and improvements in technology are expected to continue, the standards contained in this proposed rule do not specify the technology to be utilized for analysis, but do require documented methodologies which incorporate adequate quality control procedures.

Examples of analytical technologies capable of lead-based paint testing include field portable XRF and, laboratory analysis of paint chip samples by atomic absorption spectroscopy (AAS) and inductively coupled plasma atomic emission spectroscopy (ICP). EPA does not intend, in this regulation, to specify in detail the procedures for the analysis of paint for lead content. The new HUD guidelines, provide comprehensive guidance on both XRF sampling, and laboratory analytical methods, and the procedures in the guidelines should be followed when conducting lead-based paint testing. The Agency is considering the need for promulgating detailed regulatory requirements for lead-based paint testing and requests comment on the need for such an enforceable testing regulation.

The proposed standards do require that any environmental laboratory analysis to determine the lead content in paint, dust, and soil, be done by only those laboratories recognized by the Agency as being capable of performing these activities.

X-ray fluorescence (XRF) spectroscopy is widely used as a field inspection devise. The accumulated experience in use of XRF instruments has provided anecdotal evidence that they are subject to unexplained variances in performance. To date there has been little comprehensive evaluation of the performance of XRFs under actual field conditions. Because of the questions raised concerning XRFs performance, EPA is conducting a field study of lead-based paint measurement technology. Results of this study will be used to shape lead-based paint testing guidelines which will be reflected in the new HUD guidelines and disseminated as guidance.

While methodologies for determining the presence of lead-based paint may vary, the inspection standards would require that the inspector technician or inspector/risk assessor prepare an inspection report that would detail the findings of their inspection and the methods used during the inspection. The inspector technician or inspector/risk assessor would have to adhere to the reporting requirements listed in proposed Sec. 745.228(a)(6) of the regulatory text. Accurate completion of the report would be the enforceable component of the inspection standards.

The inspection report would serve as a guide for the inspector technician or inspector/risk assessor to ensure that all of the necessary information will be obtained during an inspection. An example of an inspection report can be found in the HUD guidelines.

An inspection report would have to be completed for each unit inspected. Upon completion of the testing, an inspection report would be written and would include all information required in Sec. 745.228(a)(6) of the proposed regulatory text. The inspection report would be retained by the owner of the residence or building and the certified firm that conducted the inspection for a period of 3 years. Section 1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 requires that by October 1994, the Agency and HUD develop a regulation for the disclosure of lead-based paint hazards in target housing which will be offered for sale or lease. The inspection report would be subject to the disclosure and recordkeeping requirements of the section 1018 regulation.

D. Risk Assessment for Target Housing

The Federal government's commonly held definition of risk assessment defines the health effects of exposure to hazardous materials to individuals or populations by conducting a hazard identification, a dose-response assessment, an exposure assessment, and a risk characterization (Risk Assessment in the Federal Government: Managing the Process, National Academy Press) (Ref. 1). This form of risk assessment focuses on a quantitative analysis of risk to human health and does not recommend options for the management of the risk. Risk assessment as defined by TSCA Title IV, differs from this traditional concept in

{pg 45885}

that the inspector/risk assessor is relied upon to not only identify lead- based paint hazards, but to also recommend options for the management of these hazards.

Section 401(16) of TSCA provides that the objective of a risk assessment is to determine, and then report the existence, nature, severity, and location of lead-based paint hazards in residential dwellings through an on-site investigation. This definition is based on the risk assessment protocols developed by HUD and the Housing Authority Risk Retention Group (HUD/HARRG) as mandated by amendments to the Housing and Community Development Act of 1987, the Lead-Based Paint Poisoning Prevention Act (Pub. L. 100- 242).

Under the proposed rule, a risk assessment, including the risk assessment report, may only be conducted by an individual certified as an inspector/risk assessor. However, an inspector technician may, assist a certified inspector/risk assessor by taking paint, soil, and dust samples.

The Agency views the role of the inspector/risk assessor as pivotal in reducing risks associated with lead-based paint. The certified inspector/risk assessor will be a trained specialist equipped with the requisite professional credentials needed to evaluate risks associated with lead-based paint. The Agency envisions that a certified inspector/risk assessor would be qualified to make a competent, and rational assessment of the location and severity of lead-based paint hazards. The procedures outlined in proposed Sec. 745.228(b) of the regulatory text provide a framework for the collection of risk assessment data. These procedures were developed on the premise that the background and required training of a professional inspector/risk assessor would enable the inspector/risk assessor to identify risks associated with lead-based paint hazards and to develop options for actions to eliminate hazards. The required training would, through the accreditation process outlined in this regulation, include the best scientific information available on characterizing hazardous levels of lead in paint, soil, and dust.

As stated earlier in this preamble, the Agency is currently developing criteria pursuant to section 403 of TSCA for the identification of lead hazards in soil, dust, and paint to facilitate the risk assessment decision making process. When promulgated, the determinations made under the section 403 regulation, and associated guidance, will be widely disseminated by the Agency, and will be a required element of the training course curricula under this regulation.

The standards in this regulation are intended to apply to individual residential dwelling units, whether in multi-unit residential dwelling or in single-family housing. The procedures for determining which units are to be assessed within a multiunit dwelling are not included in these standards. This decision should be made by the building owner or housing authority in consultation with the inspector/risk assessor.

The first step of a risk assessment is to have the risk assessor survey the unit or dwelling to evaluate its overall condition. In buildings built after 1960 in relatively good condition where the probability of finding lead-based paint hazards is low, a comprehensive risk assessment may be unnecessary. To avoid the cost of conducting a comprehensive risk assessment, an owner of these dwellings may wish to have the risk assessor conduct a lead hazard screen before initiating the complete risk assessment. According to the HUD guidelines, such a screen employs more limited sampling and more sensitive hazard identification criteria. In general a screen involves determining overall paint condition in a unit, taking limited dust samples from floors and exterior window sills, and soil samples from bare soil. A detailed discussion of how to conduct a screen and the criteria used to evaluate the results of a screen can be found in the HUD guidelines. If a unit fails this screen, EPA recommends that a risk assessment, as described in proposed Sec. 745.228(b)(2) through (b)(9) of the regulatory text, be conducted. Failure of the screen indicates that lead hazards may be present and that a more thorough risk assessment is warranted to definitively identify the lead hazards within the unit.

At this point the risk assessor would review any background information as described in proposed Sec. 745.228(b)(2). This data will contain useful information regarding the physical characteristics of the unit and residential use patterns within the unit. This information includes the age of the building or if there are children under age 6 living in the unit, as well as information on any known lead-related health problems of any occupant of the dwelling unit. Further, the risk assessor would obtain any other available information that would characterize occupant use patterns that may generate or contribute to lead-based paint hazards. Examples of this information could include family hobbies that involve lead, the location of a commonly used entryway or commonly opened windows. The inspector/risk assessor should also obtain, if available, any previous test results or inspections regarding lead-based paint or other assessments for lead-related hazards. This information may prove valuable in determining the presence of lead-based paint without having to re-sample areas of the unit. However, the inspector/risk assessor must evaluate the quality and the reliability of any previous test results. Past inspections may not conform to current standards of care, possibly resulting in an incorrect determination of the location of lead-based paint.

The next step in a risk assessment is to conduct a closer visual inspection of the condition of the painted surfaces within the unit. Any paint found to be deteriorated should be tested by an inspector technician or the inspector/risk assessor according to the procedures found in the inspection portion of the proposed standards. The inspector/risk assessor should also test any surfaces that they determine may be a source of lead dust or lead-based chips. These include friction and impact surfaces such as door and window frames, or painted surfaces accessible to children such as window sills or stair treads.

Dust samples should be collected within each selected unit according in parts of the living area where children are most likely to come into contact with dust. These areas include bedrooms, family rooms, and kitchens. In general, any area that children frequent in the dwelling should be evaluated for lead-contaminated dust. The HUD guidelines as well as the currently available EPA model inspector course provide detailed guidance and instruction in the collection of dust samples in residential dwellings.

Finally, randomly selected soil samples should be collected by an inspector technician or inspector/risk assessor and analyzed in order to adequately characterize the lead concentrations in exterior play areas, areas containing bare soil, and along the dripline or foundation area of a unit.

All dust, soil, and where appropriate, paint samples should be sent to a laboratory that is fully recognized by EPA as being capable of performing these activities.

As with an inspection, the data collected as part of a risk assessment would be documented in an assessment report. Proposed Sec. 745.228(b)(8) of the regulatory text describes all items required to be included in the risk assessment report.

{pg 45886}

Pursuant to section 401(16) of TSCA, a risk assessment may include "other activity as may be appropriate." Based on this language, the Agency is proposing that the risk assessment report should, as a final step, identify lead hazard control strategies to address all identified lead-based paint hazards. A justification for each hazard control strategy identified must also be provided. The inspector/risk assessor should also prioritize each of the hazard control actions based on the immediacy of the hazard, and recommend a schedule to the building owner for addressing hazards. Clearly the most hazardous conditions (e.g. badly deteriorated lead-based paint) within a unit should be addressed as soon as possible, and before other control actions are taken.

The risk assessment report is to be maintained by the owner of the residence or building, as well as the certified individual or firm that conducted the assessment for at least three years. This information would also be subject to the disclosure and recordkeeping requirements of the regulation developed under section 1018 of Title X.

E. Abatement for Target Housing

Abatement is defined by section 401(1) of TSCA as "any set of measures designed to permanently eliminate lead-based paint hazards." The term, as defined, includes the removal of lead-based paint and lead-contaminated dust, the permanent containment or encapsulation of lead-based paint, the replacement of lead-painted surfaces or fixtures, and the removal or covering of lead-contaminated soil. In addition, it includes all preparation, cleanup, disposal, and post-abatement clearance testing activities associated with such measures. By definition, abatement is limited to those activities that are designed to permanently eliminate lead-based paint hazards.

Abatement does not include renovation and remodeling, or landscaping activities, whose primary intent is not to permanently eliminate lead-based paint hazards, but is instead to repair, restore, or remodel a given structure or dwelling, even though these activities may incidently result in a reduction in lead-based paint hazards.

For the purposes of this regulation, the Agency will presume abatement to occur in the following circumstances:

(1) Projects for which there is a written contract stating that an individual or firm will be conducting activities on or in a dwelling unit that will permanently eliminate lead-based paint hazards;

(2) Projects involving the permanent elimination of lead-based paint or lead-contaminated soil conducted by firms or individuals certified in accordance with this regulation; or

(3) Projects involving the permanent elimination of a lead-based paint hazard or lead-contaminated soil conducted by firms or individuals who, through their company name, promotional literature, or otherwise, advertise or hold themselves out to be lead abatement professionals. The definition of abatement includes the phrase "permanent containment or encapsulation." Encapsulation is defined as a process that makes lead-based paint inaccessible, by providing a barrier between the lead-based paint and the environment. This barrier is formed using a liquid applied coating or an adhesively bonded material. The primary means of attachment for an encapsulant is bonding of the product to the surface either by itself or through the use of an adhesive.

The Agency recognizes the fact that all encapsulant's will degrade over time, so therefore, no encapsulant is truly permanent. Nevertheless, the Agency would consider an encapsulant to be "permanent" within the meaning of TSCA Title IV if the encapsulant is periodically monitored and maintained over the lifetime of the surface. The Agency is soliciting comment on the proposed requirement for the periodic monitoring of encapsulants.

The permanent containment of lead-based paint would be achieved through the use of a mechanical enclosure system. The enclosure should be a rigid, durable barrier that is mechanically attached to the building component, with all edges and seams sealed with caulk or other sealant to provide a dust-tight system.

As defined in this proposal, an abatement would have to be conducted by persons certified by the appropriate approving authority as a worker or supervisor. Every abatement project would require a supervisor assigned to it who has been certified by the appropriate approving authority. The supervisor, if not on-site, would have to be available by phone and able to physically be present at the work- site within 2 hours. This supervisor, as well as the certified firm they work for, would be responsible for ensuring that all abatement activities in target housing are completed according to the standards outlined in this proposed rule.

Regarding project designer/planners, the Agency is including in proposed Sec. 745.228(c)(7) of the regulatory text, a requirement that they prepare a written pre-abatement plan for projects involving the abatement of 10 or more units, since the size of these operations may require a level of expertise not required in single-family, or smaller multi-unit projects. The Agency is requesting comment on the proposed requirement that a project designer/planner must be utilized to design abatement projects for units numbering 10 or more. The Agency has also considered this size distinction in development of its Interim Final Regulations to amend the Asbestos Hazard Emergency Response Act's (AHERA) Asbestos Model Accreditation Plan to include public buildings.

A pre-abatement plan is to be completed by the supervisor or project designer/planner as appropriate for the size of the work project. This plan would follow the standards for worker, environmental and occupant protection as outlined in this proposed rule. Because there may be a potential conflict of interest between those who conduct the inspection/risk assessment and those who actually do the abatement, it is recommended that the plan contain a statement that the persons or firm engaged in the inspection and/or risk assessment of a unit should not perform lead abatement activities in that same unit. This type of conflict may arise if inspector/risk assessors are in a position to receive a financial benefit by recommending that an abatement be conducted.

To protect the health of building occupants, the rule as proposed would require that an occupancy protection plan be developed by the supervisor or planner/project designer. This plan should address what measures would be taken during the abatement to protect the building occupants, and what method of verification would be utilized to document this protection. In development of the plan, certain factors should be taken into consideration, for example, the length of abatement, remaining access to facilities and exits, and total area involved. In plans which require the relocation of occupants, samples would be collected, analyzed, and clearance levels met according to proposed Sec. 745.228(c)(9) before re-occupancy.

An abatement project typically involves one or more of the following techniques: Building component replacement, the use of physical enclosure systems, or on-site or off-site paint removal from building components. It is the responsibility of the abatement supervisor, with possible input from the risk assessor, to determine the most appropriate course

{pg 45887}

of action to eliminate identified lead hazards.

Section 745.228(c)(6) of the proposed rule would require that the supervisor of an abatement job submit a pre-abatement notification to EPA or the approving authority, for their information, prior to the commencement of the abatement. In the case of an authorized State program, States may develop their own notification procedures as part of the State program. This requirement has been included to assist with targeting enforcement efforts.

The Agency wants to protect against lead abatement related risks to workers, the environment, and any individuals who may remain in a unit during abatement. The Agency believes that the Occupational Safety and Health Administration's (OSHA) May 4, 1994 Interim Final Rule, Lead Exposure in Construction, will adequately protect all workers engaged in lead-based paint abatement. The Agency is currently working closely with OSHA to ensure that workers employed by State and local governments, and therefore not covered by the OSHA regulation, will be covered under this proposed regulation in States without OSHA-approved State plans.

In its interim rule, OSHA reduced the permissible exposure limit (PEL) from 200 mu g/m sup 3 as an 8-hour time weighted average (TWA) to an 8-hour TWA of 50 mu g/m sup 3. The OSHA interim rule also includes a list of three categories of tasks that are commonly known to produce exposures above the PEL. The performance of the tasks within these categories automatically triggers basic protective provisions that mandate the use of particular types of respiratory protection unless air monitoring is conducted to determine that protection is not required.

Although not currently part of this proposed regulation, the Agency is considering prohibiting certain work practices, due to the potential risk of lead contamination posed by these practices to workers and/or the environment. The following work practices are being considered for prohibition during the abatement of lead-based paint in target housing:

i. Open flame burning of painted surfaces.

ii. Dry scraping or sanding of painted surfaces.

iii. The use of heat guns on painted surfaces for abatement without proper protection.

These practices have been singled out because of the potential risk of exposure to lead-contaminated dust and toxic fumes. The Agency is seeking comments and/or data related to exposure to lead-contaminated dust and fumes from these or other abatement work practices.

Following the completion of an abatement, post-abatement soil and dust clearance testing would have to be conducted by a certified inspector technician or an inspector/risk assessor according to the procedures in proposed Sec. 745.228(c)(9) for dust sampling, and proposed Sec. 745.086(c)(10) for soil sampling. Exterior dust and soil clearance levels would also have to be evaluated after the lead-based paint abatement of exterior walls.

The inspector/risk assessor would evaluate the results of the clearance testing to determine if the clearance levels have been met. It is also recommended that there be no economic relationship between the inspector technician or inspector/risk assessor and persons engaged in abatement due to conflict-of-interest concerns. The Agency is interested in comments on the burden of requiring that the clearance determination being made by the inspector/risk assessor, as opposed to the abatement supervisor.

The inspector/risk assessor should compare the residual lead dust level (as determined by the laboratory analysis) from each dust sample with the clearance levels for lead in dust on floors, window sills, window wells, and exterior surfaces, as established in the HUD Guidelines for the Evaluation and Controls of Lead-Based Paint Hazards in Housing. The Agency may in the future establish clearance levels pursuant to section 403 of TSCA, and if so, then these levels will be applicable.

If a unit fails clearance testing, the unit will be recleaned followed by repeating clearance procedures. In addition, the hazard control strategy may need to be reexamined and appropriately adjusted or improved if clearance levels continually fail to meet prescribed levels.

The potential for soil contamination, following exterior lead-based paint abatement activities, is also a concern of the Agency. The proposed approach to dealing with this problem is the comparison of pre- and post-abatement soil lead levels to determine what soil lead level should be achieved for clearance following an abatement. The testing protocol for soil in proposed Sec. 745.228(c)(10) includes the sampling of soil from the dripline and foundation areas as well as any children's play areas. To determine if post-abatement soil lead levels (using the above-mentioned sampling methods) have increased at a statically significant level, the Agency is proposing that a statistical analysis, such as a paired student T-test be used. If the soil lead levels increase at the 95 percent confidence limit, then the soil must be remediated back to the pre-abatement lead level, or the soil must be abated following the standards in proposed Sec. 745.228(j). If there is no significant increase at the 95 percent confidence limit, then no remediation or abatement is necessary.

Reports and recordkeeping play an essential role in tracking and monitoring the effectiveness and safety of lead-based paint hazard abatement in target housing. The certified supervisor is responsible for completing the abatement report as described in proposed Sec. 745.228(c)(12).

Records would be maintained by the building owner and the persons conducting the abatement activity for at least 3 years. These records will be subject to the disclosure and recordkeeping requirements promulgated under section 1018 of Title X.

The proposed soil abatement procedures in Sec. 745.228(j) of the regulatory text would require the removal of soil to a depth determined by the inspector/risk assessor and replacement of contaminated soil with non-contaminated soil. If contaminated soil is to be replaced with non-contaminated soil, the inspector/risk assessor will determine the source of soil that is to be used as a replacement. Since most soil has naturally occurring background levels of lead, replacement soil should contain levels that are not hazardous to human health or the environment. The Agency feels that the inspector/risk assessor has the experience necessary to chose an appropriate source of replacement soil.

As an alternative to removal and possible replacement, the contaminated soil shall be permanently covered. Examples of a permanent covering include pavement or concrete. Grass or other landscaping material are not considered permanent covering.

A written abatement report would also be prepared by the supervisor or planner/project designer, (depending on the size of the project) that provides a written description of the abatement and presents the results of the clearance testing. The abatement report would also be subject to the disclosure and recordkeeping requirements of the regulation developed under section 1018 of Title X.

F. Management of Waste From Target Housing Lead Abatement Activity

The Resource Conservation and Recovery Act (RCRA) establishes a comprehensive Federal program to regulate the handling of solid wastes

{pg 45888}

under 42 U.S.C. sections 6901-6992k. RCRA Subtitle C creates a cradle-to-grave regulatory structure for the treatment, storage, and disposal of hazardous waste (42 U.S.C. sections 6921-6939b). RCRA Subtitle D governs the disposal of nonhazardous solid waste (42 U.S.C. sections 6941-6969a). The RCRA regulatory structure requires generators to determine whether their solid wastes are hazardous wastes regulated under RCRA Subtitle C. EPA has promulgated a rule under RCRA which sets forth criteria for determining whether certain solid wastes or debris are hazardous wastes. One of the characteristics of hazardous wastes is toxicity. To determine if a solid waste is a toxicity characteristic hazardous waste, it should be tested for its toxicity characteristic pursuant to 40 CFR 261.24. The Toxicity Characteristic (TC) regulatory limit for lead is 5 parts per million in the leachate from the test protocol.

When abating lead paint, different types of solid waste are generated which may be subject to RCRA hazardous waste regulations. EPA is concerned that the application of RCRA hazardous waste regulations to these wastes may unnecessarily hamper lead abatement. The Agency wishes to minimize potential regulatory impediments thus facilitating lead paint abatement in residences where children and other individuals may be at risk. EPA is currently evaluating options for modifying RCRA regulations so that lead abatement proceeds expeditiously while ensuring safe and effective management and disposal of abatement wastes. Under a separate rulemaking, EPA plans to issue a proposal addressing lead abatement wastes.

G. Identification of Lead-Based Paint in Public Buildings

Sections 745.228 (a)(1) through (a)(7)(i) of the regulatory text proposes standards that would be used for the identification of lead-based paint in public buildings. Because children make up a significant number of the occupants in target housing and public buildings, which include day-care centers, schools, museums, and churches, these standards are the same as those proposed for target housing. A second reason for utilizing the same standards is the similarity of building and structural components in target housing and public buildings. Although many public buildings contain structural steel components, such as steel frames, these are covered for fire protection and cosmetic reasons with materials that are similar to those used in target housing. Given the similarity of materials presenting exposure risks to occupants, EPA believes that persons seeking to identify lead-based paint in public buildings can use the same inspection methods (such as XRF analysis) as those used in target housing.

Under proposed Sec. 745.228 (d)(2), all information collected from the identification of lead-based paint would have to be maintained by the owner of the public building tested for a period of not less than 3 years.

H. Risk Assessment for Public Buildings

In addition to the structural similarities between public buildings and target housing, a high probability exists in certain public buildings (e.g., day care centers and schools), as in target housing, that children will be present and potentially exposed to lead-based paint hazards. Although, TSCA Title IV does not expressly require EPA to establish a risk assessment standard for public buildings, the Agency has decided for public health reasons to propose such a standard in this regulation. The Agency believes that regulating the conduct of a risk assessment in public buildings is implied in the definition of "deleading" in section 402(b), which includes planning of lead elimination activities. The Agency believes that without a proper risk assessment, there is no assurance that effective abatements can be conducted in public buildings.

The objective of a risk assessment is to determine the existence, nature, severity, and location of lead-based paint hazards and identify appropriate hazard reduction steps. Given the structural similarities between target housing and public buildings, this proposed regulation provides similar protocols to those required for conducting risk assessments in target housing. The Agency is specifically requesting comment on this proposed approach.

Under proposed Sec. 745.228(e)(2), records would have to be maintained by the building owner and persons conducting the abatement and all information collected must be maintained by the owner of the building tested for a period of not less than 3 years.

I. Abatement in Public Buildings

The proposed standards in Sec. 745.228(c)(1) through (c)(9)(iv)(D) and (c)(11) through (c)(16) of the regulatory text would also be applicable to abatement in public buildings as defined by this proposed rule. Section 402(b) of TSCA identifies abatement-like activities associated with public buildings using the term "deleading." Because both terms are defined in Title IV in terms of the "elimination" of lead-based paint hazards, for purposes of this proposed regulation, the Agency is treating the two terms, "abatement" and "deleading," as if they were synonymous. The Agency believes that abatement activities in public buildings and methods of measuring protection for their workers, occupants, and the environment should be similar to those for target housing.

Under proposed Sec. 745.228(f)(2), records would have to be maintained by the building owner and persons conducting the abatement and all information collected must be maintained by the owner of the building tested for a period of not less than 3 years.

Management of waste from lead-based paint abatement activities in public buildings, including schools and day-care centers, is another area of concern to EPA. Wastes generated from lead-based paint activities (e.g., abatement and deleading) are currently, depending upon the results of the TC analysis, covered by RCRA hazardous waste regulations. As discussed in unit VIII.F. of this preamble, EPA is evaluating options for modifying existing RCRA regulations to eliminate potential impediments to lead abatement, while ensuring safe and effective management and disposal of such wastes.

J. Demolition in Public and Commercial Buildings and Superstructures

Under Sec. 745.228(g)(1), the certified supervisor would be required to collect any historical information on the uses of lead-based paint in a building or superstructure that would be demolished. The proposed standards for demolition are applicable only when the deleading of components prior to destruction of the facility occurs. If deleading is conducted as a part of the demolition activity, the standards under Sec. 745.228(i)(1) through (7) are applicable.

Additionally, the conduct of lead-based paint activities would require a hazardous waste determination pursuant to 40 CFR 262.11 prior to demolition. All demolition waste would be treated in accordance with RCRA.

K. Identification of Lead-Based Paint in Commercial Buildings and Superstructures

The proposed standards in Sec. 745.228(h)(1) through (h)(4) of the regulatory text describe the standards for the identification of lead-based paint on steel superstructures and commercial buildings.

{pg 45889}

Based on information received from professional organizations that are involved in steel structure deleading activities, EPA believes: (1) That maintenance and painting records are available more often in a commercial setting than in target housing or public buildings; (2) that processes for lead identification in commercial buildings would be more similar to those used in superstructures than to those used in target housing because unenclosed metal components are a primary architectural feature of commercial buildings such as warehouses; and (3) the purpose of identifying lead is inherently different in commercial and superstructure settings from that in target housing settings. Unlike target housing, the purpose of identifying lead hazards in commercial and superstructure settings is not to remove the lead- based paint because it may pose a hazard to occupants. Instead, the purpose is to identify a potential hazard to workers doing building or structural maintenance, and the environment.

Paint (lead paint included) removed from components in commercial buildings and superstructures, is generally removed as part of routine maintenance on those components. The supervisor should determine if lead-based paint exists prior to starting work to minimize exposures to workers. Given the toxicity of lead, sampling to determine the presence of lead-based paint is commonly practiced prior to maintenance work on superstructures and in commercial settings.

These identification practices include obtaining relevant, available historical information on the use of lead-based paint for a structure or building. Previous project specifications or inspection reports may provide the necessary information. If the use of lead-based paint cannot be conclusively ruled-out, limited sampling would be conducted by a certified supervisor according to proposed Sec. 745.228(h)(2).

Since the Federal Highway Administration (FHWA) ban on the use of lead-based paint on bridges in 1980, many States have required the use of lead substitutes for primary coatings on bridges. Given this requirement, the frequency with which bridges are repainted raises some fundamental questions about recordkeeping requirements. The Agency is proposing that all information collected from the identification of lead-based paint on steel structures such as bridges, would be maintained by the owner of the structure tested until such a time that the structure, or portion of the structure is to be repainted. This proposed requirement is based on the variable frequency with which steel structures are generally repainted and maintained. The Agency is requesting comment on this requirement to maintain records.

L. Deleading of Lead-Based Paint in Commercial Buildings and Superstructures

The proposed standards for deleading of commercial buildings and superstructures are found in Sec. 745.228(i)(1) through (i)(8) of the regulatory text. Given the similarities between superstructures and commercial buildings described earlier, the Agency believes that deleading activities and methods of ensuring the protection of workers, occupants and/or individuals within the vicinity, and the environment should also be similar to those used for superstructures.

A deleading plan would have to be completed by a certified supervisor prior to initiating deleading activities. This plan would address worker protection, as well as environmental protection issues.

The Agency is concerned about the risk to workers and the environment due to deleading activities in commercial buildings and steel structures. As with all other abatement and deleading activities, the Agency is relying on the May 4, 1994 Interim Final OSHA rule, Lead Exposure in Construction. For a more complete discussion of these standards see the OSHA requirements at 29 CFR part 1926.

The Agency is also considering prohibiting open flame burning of painted surfaces; the dry scraping or sanding of painted surfaces; and the use of heat guns on painted surfaces for deleading on superstructures and commercial buildings because of the potential risk of lead contamination to workers and/or the environment posed by these practices. The Agency is interested in comments on whether it should prohibit these practices.

Waste generated when abating commercial buildings and superstructures may be subject to RCRA Subtitle C hazardous waste regulations and should be handled accordingly.

Recordkeeping requirements for deleading in commercial buildings or on superstructures with lead-based paint are proposed in Sec. 745.228(i)(6). The report described in Sec. 745.228(i)(6) shall be maintained by the owner or oversight agency until such a time that the structure, or portion of the structure is to be repainted.

The removal of lead-based paint in commercial buildings and superstructures, could potentially affect water quality through two routes. The first route is by non-point source contamination, e.g., lead-contaminated dust that is deposited as a result of deleading activities is transported overland to waterbodies through stormwater runoff. The second route is by point source discharge, e.g., a direct deposition of lead-based paint or dust to a waterbody, or from channelized stormwater runoff.

Non-point source contamination may be controlled through compliance with RCRA (40 CFR 3004(d) and 268.35(a)), which includes settled dust and debris from deleading activities. RCRA 40 CFR 268.35(a) prohibits the land disposal of waste which exceed the toxic characteristic regulatory limit for lead. In addition, guidance issued by EPA pursuant to the Coastal Zone Act Re-authorization Amendments (CZARA) section 6217(g) identifies a management measure for the operation and maintenance of roads, highways, and bridges in coastal States to incorporate requirements for pollution prevention procedures to reduce pollutant loadings to surface waters.

Removal of lead-containing materials from steel bridges has resulted in inadvertent discharges of lead compounds that exceeded State water quality criteria, and showed the potential for long-term environmental impacts based on sediment sampling ("Long Term Environmental Evaluation of Paint Residue and Blast Cleaning Abrasives from the Middle River Bridge Repainting Project," California State Department of Transportation, 1982). Existing federal regulations on steel structural projects are being applied on a site-specific basis. However, differences between States' water quality standards and subsequent implementation of those standards indicates a need for a consistent water quality policy with respect to discharges of lead into waterways during removal of lead-containing materials from steel structures. This is of particular importance due to the number of contractors who work in multiple State jurisdictions, as well as the occurrence of bridge structures which span interstate waters.

Under the Clean Water Act's (CWA) National Pollution Discharge Elimination System (NPDES) program and interpretive case law, paint removal devices used on bridges/superstructures, such as wet and dry abrasive blasters, high pressure waterjet blasters, and sponge-jet blasters, may constitute point sources. Therefore, the CWA mandates that NPDES permit applications must be submitted to either EPA or States approved to administer the NPDES program prior to any

{pg 45890}

discharge 40 CFR 122.21(c). Of course, if there is no discharge or potential discharge to waters of the U.S., no NPDES permit is required. Individual sources are required to obtain permits, but EPA believes that general permits may be an appropriate mechanism to cover bridge stripping and painting discharges. According to 40 CFR 122.28 (a)(2)(ii), the sources covered in a general permit must involve the same types of operations, discharge the same types of wastes, require the same operating conditions, require similar monitoring, and be more appropriately controlled under a general permit than under individual permits. General permits reduce the administrative burden on both the permitting agency and the permittee.

EPA requests comment on the best technologies available to avoid or eliminate releases of lead to the air, land, or water, and studies showing the amounts of releases that occur with those technologies. EPA can then suggest operating conditions or discharge limits which may be appropriate for general permits.

M. Applicability of RCRA to Lead-Based Paint Wastes from Public and Commercial Buildings and Superstructures

Waste generated by the lead-based paint abatement contractors when removing lead paint from public and commercial buildings and superstructures may be subject to RCRA Subtitle C hazardous waste regulations. The Toxicity Characteristic (TC) regulatory limit for lead is 5 parts per million in a leachate derived by utilizing the Toxic Characteristic Leaching Protocol (TCLP). The lead-based paint waste generator must determine if the waste generated is hazardous by either testing a representative sample of the waste in accordance with 40 CFR part 261 subpart C, or an equivalent method approved pursuant to 40 CFR 260.21, or by applying knowledge of the hazard characteristic of the waste in light of the materials or process used. If the representative test sample exceeds the TC regulatory limit, the waste must be managed as a RCRA hazardous waste, and the contractor would be a hazardous waste generator and must, therefore, comply with 40 CFR part 262 requirements. In addition, the training requirements for generators of lead-based paint waste as discussed in this preamble are applicable.

EPA has different requirements for generators of different quantities of hazardous waste. For example, the regulations conditionally exempt small quantity generators of 100 kg or less hazardous waste per calendar month, but it is very unlikely that waste generated during the deleading or abatement work on larger buildings and superstructures would generate less than 100 kg. Therefore, many of these contractors would be classified as ordinary generators and therefore would be subject to 40 CFR parts 262 through 266, 268, and 270 requirements.

If the lead-based paint waste is determined to be a hazardous waste and is captured, it could be managed on-site, most likely through storage or treatment. This can be technically more challenging and may require a hazardous waste treatment permit pursuant to 40 CFR part 270. One notable exception is the generator. Under this exception, a generator may treat lead-contaminated waste or lead-contaminated debris in containers or tanks in compliance with part 265, subparts I and J, and within the accumulation time limit of 90 days as specified in 40 CFR 262.34 (see 51 FR 10168, March 24, 1986). On August 18, 1992, EPA promulgated the Land Disposal Restrictions (LDR) for hazardous debris (57 FR 37194). In that rulemaking, hazardous debris is defined as solid waste with particle size 60 mm or larger. Therefore, paint chips, paint dust, and sludge's would not be considered hazardous debris. As part of that rulemaking, the Agency promulgated standards for a new hazardous waste management unit known as a containment building (40 CFR parts 264 and 265, Subpart DD), which may also be used to treat waste at the generator facility without a permit, provided the waste is not held longer than 90 days.

If hazardous debris is captured, hazardous debris treatment technologies that may be used include abrasive blasting, grinding or planing, vibratory finishing, high pressure steam, or water spraying to meet the performance standard referred to as the "clean debris surface." Other treatment technologies include macroencapsulation or sealing (surfacial treatment) or microencapsulation (solidifying with portland cement or lime). Microencapsulation could be done in tanks or containers. Hazardous debris is subject to compliance under the LDR treatment standards. Many States are currently authorized to implement LDR requirements pertaining to lead-based paint activities under the Hazardous and Solid Waste Amendments of 1984.

N. Applicability of RCRA to Lead-Contaminated Soil Near Public and Commercial Buildings and Superstructures

It is possible that, when performing lead-based paint activities (e.g., HEPA vacuum removal or sand blasting of lead paint) on public and commercial buildings, lead paint chips or lead dust hazardous under the TCLP would be released and would either fall on the soil underneath or blown down wind before reaching the ground. This constitutes "illegal disposal" of characteristic hazardous waste and is prohibited under RCRA sections 3004 and 3008. Therefore, individuals engaged in lead-based paint activities must take appropriate precautions to contain lead dust releases during sand blasting or when conducting activities that could potentially release significant quantities of paint dust leading to its deposition on the soil near public and commercial buildings or superstructures. If the lead-based paint that is being removed exhibits the characteristic of toxicity for lead when conducting the abatement or deleading, it would be necessary to take steps to prevent deposition on land by capturing lead-contaminated dust and debris. If the abatement of deleading work resulting in land contamination is done without a RCRA TSD permit, then this deposition would be inferred as "illegal disposal." When conducting lead-based paint activities, therefore, it would be necessary to take steps to minimize "illegal disposal" by capturing lead paint dust.

There are two issues of concern for the Agency with regard to the enforcement of RCRA provisions for illegal disposal. These issues involve the possible impacts on worker protection and how compliance can be achieved given existing abatement and deleading technologies. Comments are requested on achievable methods to protect both the environment and workers in light of existing abatement and deleading technology.

VIII. State Programs

A. Introduction

This unit is comprised of two parts: (1) Procedures for States and Indian Tribes to follow in order to obtain authorization from EPA to administer and enforce a lead-based paint activities program, and (2) a model program that will serve as an archetype for these State and Tribal programs.

Section 404(a) of Title IV of TSCA provides that any State which seeks to administer and enforce the standards,

{pg 45891}

regulations, or other requirements established under section 402 or 406 may submit an application to the Administrator for approval of such program. Section 404(b) states that the Administrator may approve such an application only after finding that the State program is at least as protective of human health and the environment as the Federal program established according to the mandate of section 402 or 406 of TSCA and that it provides adequate enforcement. The procedures for submitting a State application are found in proposed Sec. 745.325 of the regulatory text and are discussed in more detail below.

Section 404(d), directs the Agency to promulgate a model State program which may be adopted by any State which seeks to administer and enforce such a program. Given that section 404(a) requires that an authorized State program be at least as protective as the Federal program, the Agency expects that a State program seeking authorization, would resemble, in significant respects, the Federal program, and further, that the regulations found at proposed Secs. 745.225 through 745.237 would serve as an appropriate model for such a State program. Therefore, the Agency is at this time proposing these regulations as the model program for the regulations developed under section 402(a) of TSCA. The regulations for section 406 of TSCA can be found at 40 CFR 745 subpart E.

Proposed Sec. 745.225 of the regulatory text contains procedures for the accreditation of training programs for lead-based paint activities. Proposed Sec. 745.226 would establish procedures for the certification of individuals engaged in lead-based paint activities, and proposed Sec. 745.228 would establish standards for conducting these activities.

B. Submission of State Application

Any State which seeks to administer and enforce the requirements of this proposed regulation or the regulation developed under section 406 of TSCA would have to submit an application to the Administrator according to the procedures contained in proposed Sec. 745.325. No other political subdivision (e.g. cities, towns, counties, etc.) other than States, as defined by section 3 of TSCA, and Indian Tribes, are eligible for authorization under this program. Following notice and an opportunity for a public hearing, EPA would approve a State application within 180 days, if EPA finds that the State program is at least as protective of human health and the environment as the Federal program, and it provides adequate enforcement.

Before developing an application for authorization, a State would publicly disseminate a notice of intent to seek such authorization and provide an opportunity for public hearing. A State application would contain a copy of the regulations and/or legislation establishing the State program, the name of the State agency that will administer and enforce the program, as well as information on the resources that the State intends to devote to the program, and an assurance that the State has or will have the legal authority necessary to carry out the program.

Pursuant to section 404(a) of TSCA, at the time of submitting such an application, the State may also certify to the Administrator that the State program meets the requirements of section 404(b)(1) and 404(b)(2) of TSCA. If this certification, or certificate of compliance, is contained in a State's application, the State program shall be deemed to be authorized by EPA, until such time as the Administrator withdraws the authorization. This certification would take the form of a letter from the Governor or Attorney General to the Administrator, and would include detailed written justification for concluding that the State's program is at least as protective as the Federal program. If the application does not contain such certification, the State program would be considered authorized only after the Administrator approves the State application.

EPA invites States to submit their authorization applications at any time after the effective date of the rule.

1. EPA approval. Within 180 days following submission of the application, the Administrator would approve or disapprove the application.

In the case of a State that provides a certificate of compliance, the program would be immediately deemed approved. In the case of a State application which does not contain a certification of compliance, the Administrator would approve a State program only if, after notice and after opportunity for public hearing, the Administrator finds that:

i. The State program is at least as protective of human health and the environment as the Federal program contained in Secs. 745.225 through 745.237 of the proposed regulatory text, or in subpart E "Residential Property Renovation," has been proposed in the Federal Register separately from this regulation.

ii. The State program provides adequate enforcement.

The Agency would notify the State in writing of the Administrator's decision. Upon authorization of a State program it would be unlawful, for any person to violate or fail or refuse to comply with any requirements of such program.

The decision criteria above give the Agency reasonably broad latitude in approving or disapproving State programs. Specifically, EPA interprets the standard ". . .at least as protective as. . ." to mean that a State program need not be identical to, or administered and enforced in a manner identical to, the Federal program. The Agency expects to receive applications for State programs that will differ in some respects from the Federal program. The Agency will make every attempt to accommodate these differences while following the statutory requirement of ensuring that every State program be at least as protective as the Federal program.

Upon notification of authorization, the designated State agency within that State would be considered the approving authority for purposes of training program accreditation, certification of individuals, and enforcement of this program.

If a State does not have a State program authorized under this section and in effect by the date which is 2 years after promulgation of this proposed regulation, the Administrator would, by such date, establish the Federal program under subpart Q, or subpart E, as appropriate.

The Agency has received a number of comments from State representatives presenting concerns related to their potential inability to introduce legislation and promulgate regulations for an entire training, certification, and accreditation program that would cover target housing, public and commercial buildings, and superstructures within the TSCA Title IV timelines. The Agency understands these concerns and is committed to devising a program that would promote State adoption of the program.

If a State does not have an approved program within 2 years, the Agency would be required to establish a Federal program in that State. However, it was the intent of Congress, and is the policy of the Agency to encourage States to administer and enforce this program at the State level. The Agency is seeking comment on how to best achieve this goal within the 2- year time frame mandated by TSCA while ensuring that all lead-based paint activities will be adequately regulated.

Additionally, the Agency has received comment that there may be a need for Federal enforcement programs to be in

{pg 45892}

place even before State programs are enacted and authorized. It has been noted to the Agency that there may be the potential for egregious or widespread releases of lead-containing materials by "unregulated" abatement actions during the interim before State programs become effective. The Agency is confident that such situations can be effectively addressed through the application of a combination of existing Federal, State and local statutes and regulations. However, the Agency seeks comment on whether some or all of the requirements of the Federal program should be made immediately effective following promulgation of the final rule, pending authorization of State programs.

2. Withdrawal of authorization. As required by section 404(c) of TSCA, if a State is not administering and enforcing its authorized program in compliance with the standards, regulations, and other requirements of Title IV of TSCA, including section 404(b)(1) and (b)(2), the Agency would so notify the State and, if corrective action is not completed within a reasonable time, not to exceed 180 days, the Administrator would withdraw authorization of such program and establish a Federal program pursuant to Title IV of TSCA. Procedures for withdrawal of authorization can be found at proposed Sec. 745.325(h) of the regulatory text.

C. Model State Program

Section 404(d) of TSCA, directs the Agency to promulgate a model State program which may be adopted by any State which seeks to administer and enforce a lead-based paint activities program. Given that section 404(a) requires that an authorized State program be at least as protective as the Federal program, the Agency expects that a State program seeking authorization, would resemble, in significant respects, the Federal program. Therefore, the entire Federal program for lead-based paint activities found at proposed Secs. 745.225 through 745.237 is being proposed as the Model State Program.

Section 745.225 of the proposed regulatory text contains procedures and minimum requirements for the accreditation of lead- based paint activities training programs for workers, supervisors, inspectors and planners, and other individuals involved in lead- based paint activities. These requirements include: (1) Minimum requirements for the accreditation of training providers, (2) minimum training curriculum requirements, (3) minimum training hour requirements, (4) minimum hands-on training requirements, (5) minimum trainee competency and proficiency requirements, and (6) minimum requirements for training program quality control.

Proposed Sec. 745.226 contains procedures and requirements for the certification of individuals engaged in the following activities: target housing and public building inspector technicians, inspector/risk assessors, supervisors, planner/project designers, and workers; and commercial building and superstructure supervisors and workers. These procedures include specific training and, when appropriate, experience/education prerequisites that individuals seeking certification would have. Additionally, this section specifies requirements for the certification of firms involved in inspection and abatement activities.

Proposed Sec. 745.228 contains standards for conducting these activities. The standards for lead- based paint activities are divided into three separate categories: target housing, public buildings, and commercial buildings and steel structures. In target housing, the standards cover inspection, risk assessment, and lead abatement. The second set of standards, for public buildings, cover the inspection, risk assessment, abatement, and demolition. The final set of standards are for industrial settings. These include activities such as identification, deleading, and demolition for commercial buildings and superstructures.

The Agency hopes that this model will be especially useful to the many States that do not currently have an existing lead-based paint activities program. The Agency believes that adoption of this program would effectively reduce the risks of lead-based paint activities. However, the State program need not duplicate the Federal program in order to receive authorization from EPA. A State may choose to develop its own program, and it would be authorized if it is as protective as the Federal program.

1. Major program elements When developing a lead-based paint activities program, a State may choose to use the Federal program as a specific model or it may develop its own program. For States that choose not to use the Federal program as a specific model, the Agency has identified several major program elements below that a State program must have if it seeks to receive authorization from the Agency to administer and enforce the program.

To administer and enforce such a program successfully, a State must develop the appropriate infrastructure. A State program must establish a State agency or agencies, or designate an existing State agency or agencies to implement, administer, and enforce the State program. Given the scope of the program, it is likely that more than one State agency would be involved in the implementation and enforcement of this program. States are required to identify one State agency or organization within a State (the primary agency) that would serve to coordinate the activities of these agencies. States are also encouraged to, whenever possible, utilize existing State and local certification and accreditation programs and procedures. The State program would require the certification of individuals and firms engaged in lead-based paint activities. The program would establish training requirements for individuals engaged in lead-based paint activities. The training component of a State's program would require that training be provided by an accredited training program. Proposed Sec. 745.226 details the certification program developed by the Agency which may be adopted by a State, or it may be used as a model for States developing their own certification program.

The State program would contain regulations or procedures for the accreditation of training programs. The regulations or procedures would contain the following: (1) Minimum requirements for the accreditation of training programs; (2) minimum training curriculum requirements; (3) minimum training hour requirements; (4) minimum hands-on training requirements; (5) minimum trainee competency and proficiency requirements; and (6) minimum requirements for training program quality control. The State accreditation program would contain the minimum requirements of the accreditation program found at proposed Sec. 745.225 of the regulatory text.

The State agency would establish standards for performing lead-based paint activities, taking into account reliability, effectiveness, and safety. The Federal program at proposed Sec. 745.228 would establish specific standards for performing these activities which a State program may choose to adopt. A State may also develop its own standards for some or all of these activities, as long as they are judged by EPA to be at least as protective as the Federal standards.

For instance, at proposed Sec. 745.228(b), the Agency has developed procedures for conducting a risk assessment in target housing. The goal of a risk assessment is to determine and

{pg 45893}

report the existence, nature, severity, and location of lead- based paint hazards in residential dwellings. Proposed Sec. 745.228(b) specifically describes a method of conducting such an assessment, and a State may choose to adopt this standard. A State may also develop its own procedures that achieve the same goal. This is the case for all of the standards in this regulation. In general, the Agency has developed specific standards that States may choose to adopt, or they may utilize their own standards, as long as they are at least as protective as the EPA standards.

The State agency or agencies would provide for the enforcement of the State certification and accreditation program, and establish suitable sanctions for those who fail to comply with the program requirements. This element of a State's program is essential because one of the Agency's two decision criteria for approval of State programs is the adequacy of the State's enforcement program. Before promulgation of the final regulation, the Agency anticipates developing a compliance and inspection strategy that would facilitate State implementation and provide guidance in determining that the State programs provide adequate enforcement. The State agency or agencies must have the authority to charge certification and accreditation fees. Section 402(a)(3) of TSCA states that:

The Administrator (or the State in the case of an authorized State program) shall impose a fee on:

(1) persons operating training programs accredited under this title; and

(2) lead-based paint activities contractors certified in accordance with section 402(a) paragraph (1).

The fees shall be established at such a level as is necessary to cover the costs of administering and enforcing the standards and regulations under this section section 402 which are applicable to such programs and contractors. The fee shall not be imposed on any State, local government, or nonprofit training program. The Administrator (or the State in the case of an authorized State program) may waive the fee for lead-based paint activities contractors under subparagraph A) for the purposes of training their own employees.

EPA will determine what fees it will impose pursuant to section 402 (a)(3) before the Agency begins to enforce and administer the Federal program in any State.

2. Reciprocity. EPA strongly encourages each State to establish reciprocal arrangements with other States with authorized State programs. Such arrangements might address cooperation in certification determinations, the review and accreditation of training programs, candidate testing and examination administration, curriculum development, policy formulation, compliance monitoring, or the exchange of information and data. The benefits to be derived from these arrangements include a potential cost-savings from the reduction of duplicative activity and attainment of a more professional workforce as States are able to refine and improve the effectiveness of their programs based upon the experience and methods of other States.

There are several elements of the EPA training and accreditation program at proposed Secs. 745.225 through 745.226 that are intended to facilitate interstate reciprocity. The first, and most critical, is the certification examination. The examination would serve to ensure that each individual who is certified under this program has a minimum level of knowledge in his or her particular discipline. At the same time, the certification examination development procedures would allow a State the flexibility to either adopt a "standardized" examination, or develop its own examination according to "standardized" guidelines.

As an additional element to facilitate interstate reciprocity, the Agency has proposed relatively specific minimum curriculum requirements. A third element is the inclusion of a refresher training course in the Federal program. Successful completion of a State accredited refresher course may serve as an ideal requirement for individuals seeking a reciprocal certification in another State.

D. Indian Lands

This proposal also addresses implementation of sections 402 and/or 406 of TSCA on Indian lands. For the most part, implementation of section 402 and 404 would be primarily a State responsibility. EPA would enforce a Federal program only if it does not approve a State program or if it finds that a State program is inadequate. While Congress did not specifically address implementation of Title IV on Indian lands, EPA has determined that proper lead abatement is as important for Indian Tribes as for anyone else. Accordingly, EPA has decided to treat Indian Tribes as if they were States for the purpose of administering and enforcing lead programs under sections 402 and 404.

1. Authority. States generally are precluded from enforcing their civil regulatory programs on Indian Reservations, absent an explicit Congressional authorization or State-Tribal agreement to do so. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 and n.18 (1987). Furthermore, Congress has not created an explicit role for Tribes or the appropriate Indian Governing Body to implement Title IV, as it has done under most other major environmental statutes amended since 1986 (Safe Drinking Water Act, CERCLA, Clean Water Act, Clear Air Act). The term Indian Governing Body is used throughout this proposal to mean the governing body of the Tribe, band or group of Indians subject to the jurisdiction of the U.S. and recognized by the U.S. as possessing powers of self government.

There exist three principal options for effectively ensuring comprehensive implementation of Title IV on Indian Reservations: (1) Allow Tribes to apply for approval of section 402 or 406 programs in the same manner as States under this proposal; (2) make determinations on a case-by-case basis whether the State has adequate authority to ensure compliance with section 402 or 406 on Indian Reservations; and (3) make a blanket determination that States lack the authority to implement their programs on Indian Reservations and that EPA would enforce sections 402 or 406 directly on Indian Reservations in light of this determination.

EPA believes that the preferred approach would be to use a combination of options 1 and 2. Under this approach a State may propose, as part of its program approval application, to ensure section 402 or 406 compliance on Indian Reservations. The State would have to demonstrate adequate authority to ensure compliance with section 402 or 406 on the Indian Reservations. The burden the State would meet to demonstrate its authority to regulate on Indian Reservations is a high one, however. This type of demonstration of State authority over Indian Reservations is allowed, for instance, under regulations for the Underground Injection Control (UIC) Program of the Safe Drinking Water Act as well as several other EPA programs. 40 CFR 125.24(b). See e.g., 45 FR 33378 (1980); 53 FR 43080 (1988).

In the alternative, an Indian Governing Body could apply for authorization to run a section 402 or 406 program in the same manner as a State pursuant to the procedures specified in this proposal. Where it does not do so, EPA would enforce section 402 or 406 directly. Allowing for Tribal assumption of the section 402 or 406 program is consistent with EPA's Indian Policy and existing practice for other environmental programs.

{pg 45894}

EPA believes that adequate authority exists under TSCA to allow Tribes to apply for and receive authorization to run Title IV programs. EPA's interpretation of TSCA is governed by the principles of Chevron. USA v. NRDC, 467 U.S. 837 (1984). Where Congress has not explicitly stated its intent in adopting a statutory provision, the Agency charged with implementing that statute may adopt any interpretation which, in the Agency's expert judgment, is reasonable in light of the goals and purposes of the statute as a whole. Id. at 844. EPA believes that Interpreting TSCA to allow Tribes to apply for program authorization satisfies the Chevron test.

While some tribes may entirely develop their own lead programs, other tribes may look to existing programs as a starting point. Today's action does not require tribes to develop lead programs wholly from scratch. For example, a tribe could negotiate a cooperative agreement with an adjoining State to jointly plan and administer lead programs that are appropriately tailored to individual reservation conditions and tribal policies. Such an agreement would be subject to the review and approval of EPA.

Another possible option includes incorporating standards from an adjacent State as the tribe's own, with appropriate revisions that adapt the State standards to reservation conditions and tribal policies. Such adaptations would build on State experience and expertise and might represent quicker and less costly ways to establish tribal programs than developing tribal programs independently. This technique of utilizing small-scaled adaptations of State programs would allow tribes to build experience and expertise that could later be used to revise existing programs, if appropriate.

Smaller tribes may also wish to form consortiums or create inter-tribal agencies as ways to develop the necessary expertise to administer lead programs in a cost-effective way. Aside from any formal arrangements between tribes and States, EPA notes that the objective of this proposed rule is to provide for the safe, effective, and reliable abatement of lead-based paint hazards. Therefore, EPA encourages all affected sovereigns to work cooperatively in informal capacities to protect the public health and welfare from the serious health and welfare effects associated with lead-based paint hazards.

Consistent with EPA's interpretation of the application of Title IV to Indian lands, the proposed regulations would permit the Agency to make grants to Indian Governing Bodies and States to implement authorized Section 402 and 406 programs.

EPA specifically invites comment on its interpretation of the implementation of section 402 or 406 of TSCA on Indian lands.

E. Effective Dates

State programs may seek authorization of their programs pursuant to subpart Q effective date of promulgation of the final rule. Subpart L of part 745 shall apply in any State that does not have an authorized program under subpart Q, effective 2 years after promulgation of the final rule. In such States: (1) Training providers shall not provide, or claim to provide training for certification without accreditation from the Agency pursuant to Sec. 745.225 after 2 years and 180 days after promulgation of the final rule; (2) No person shall engage in lead- based paint activities without certification from the Agency, pursuant to Sec. 745.226 after 3 years after promulgation of the final rule; and (3) All lead-based paint activities shall be performed pursuant to the standards contained in Sec. 745.228 after promulgation of the final rule. These dates should allow training providers sufficient time to receive accreditation, and for individuals to then receive training from an accredited training program and obtain certification. The Agency felt that because the standards in this regulation are being taught in the training courses, the standards should only be enforced after individuals have received training and obtain certification. Upon promulgation, the Agency will assess the number of programs that it must administer. If the demand for accreditation and certification is expected to greatly exceed the Agency's capability to approve training providers and certify individuals, the enforcement deadlines may be revised following appropriate public notice.

The timelines for implementation of the various requirements of this regulation should serve as a model for State program development, and States are encouraged to adopt these intervals.

F. Regulatory Assessment

1. Introduction. EPA has prepared a Regulatory Impact Analysis (RIA) in conjunction with this proposed rule. Ideally, when conducting an RIA, a benefit-cost analysis which measures all marginal benefits and costs of the regulation should be performed. Although it was possible to estimate the incremental costs, it was not possible to estimate incremental benefits. Data limitations prevented a complete estimate of incremental benefits: The absence of the necessary dose-response functions precluded the estimation of certain benefit categories (e.g., adult residential benefits and ecological benefits), and knowledge of certain impacts (e.g., blood- lead levels with and without training) did not allow for the estimation of the incremental benefits associated with this proposed rule. Therefore, an alternative approach was employed whereby total measured benefits (i.e., benefits that have been identified and quantified) of the regulation abatements were estimated to provide a perspective on the magnitude of the benefits against which to assess the possibility of net benefits.

The major findings contained in the RIA are presented in this brief summary, organized into five sections appearing below: Cost of Regulatory Action; Benefits of Regulatory Action; Benefit-Cost Analysis; Uncertainties and Sensitivity Analysis; and Impacts of the Proposed Rule. The complete document, "Title X Sections 402 and 404 Regulatory Impact Analysis," is available for inspection in the public docket.

Title X, the Residential Lead-Based Paint Hazard Reduction Act of 1992, amended TSCA by adding Title IV. The purposes of Title X included a desire to develop a national strategy to build the infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as possible. Further, the Title X sought to encourage effective action to prevent childhood lead poisoning by establishing a workable framework for lead-based paint hazard evaluation and reduction and by ending the current confusion over reasonable standards of care.

Section 402, Lead-Based Paint Activities Training and Certification, is only one of the initiatives under TSCA Title IV aimed at fulfilling these goals. EPA is currently developing or has developed other portions of this overall lead hazard reduction program. For example, a required information dissemination program to inform the public of lead-based paint hazards in the home during renovation has been proposed under section 406. A regulation developed under section 1018 of Title X will soon be proposed and would require the distribution of this pamphlet at the time of real estate transfer, would require the disclosure of any known lead-based paint hazards and would allow the purchaser of real estate a 10-day period to conduct a risk assessment of the property. Benefits of these actions flow from providing

{pg 45895}

information describing lead hazards to home owners renovating homes, home buyers, and renters. Costs of these actions include preparing and disseminating information.

Section 403 of TSCA requires that the Agency shall ". . .promulgate regulations which shall identify. . .lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil." The section 403 regulations will represent EPA's determination of those conditions that cause exposure to lead in paint, residential soil and dust that would result in adverse human health effects. Benefits and costs accrue from the abatement of the identified lead-based hazards, and lead-contaminated dust and soil.

Although each of these initiatives have positive and negative impacts associated with them, the following narrative focuses on those impacts resulting from the implementation of sections 402 and 404.

2. Cost of regulatory action. The total estimated incremental costs associated with this proposed rule are presented in Table 1. Cost estimates are presented for two different abatement scenarios to present a range of possible costs: (1) Assuming abatement occurs whenever X-ray Florescence (XRF) Analysis indicates a lead in paint level of greater than 1 (XRF sup ;1) and 500 parts per million (ppm) or more lead in soil (Scenario 1); and (2) assuming abatement occurs whenever X-ray Florescence Analysis indicates a lead in paint level of greater than 6 (XRF sup ;6) for paint and 2,000 ppm or more lead in soil (Scenario 2).

Lead-based paint activities take place in target housing, as well as in public buildings constructed before 1978, commercial buildings, and steel structures. Maintenance of steel structures such as bridges, water tanks, and electrical towers may also involve activities affected by the proposed rules. Estimates of the costs of performing lead-based paint activities pursuant to the proposed standards were based on a number of factors, including the number of lead-related inspections, risk assessments, and abatement activities and the unit costs associated with such activities.

The incremental costs estimated to be incurred in association with the proposed rule have been grouped into three categories: (a) Costs resulting from the imposition of the standards for conducting lead-based paint activities; (b) costs resulting from the training and certifying of individuals engaged in lead-based paint activities; and (c) costs of establishing and operating State or Federal programs to administer and enforce the standards, regulations, or other requirements established under this proposed rule. For each of these three categories of costs, total incremental costs were estimated separately for the first year following promulgation (1994), and the present value for a 50-year stream of costs discounted at 3 percent. (A 50-year stream was used because it was thought to provide a reasonable estimate of the average life of a home, and a period beyond which discounted costs would have little impact on total costs).

Under Scenario 1, total first-year incremental costs were estimated to be approximately $1.4 billion, while total incremental costs, discounted at 3 percent over 50 years, were estimated to be $10.6 billion. Under Scenario 2, total first year incremental costs were estimated at $.8 billion and total incremental costs, discounted at 3 percent over 50 years, were estimated at $6.2 billion. As may be discerned from Table 1, by comparing cost estimates for the two scenarios presented, total costs decrease as abatement cut-offs increase (paint and soil lead concentrations), since fewer structures and less soil would be abated.

As demonstrated in the accompanying RIA, the standards for conducting lead-based paint activities are the main source of costs, accounting for approximately 80 percent of the total incremental costs under both scenarios, due largely to identification and inspection requirements and soil abatement. Under Scenario 1, the incremental cost of public building identification is the greatest expenditure, accounting for 27 percent of the total incremental costs in the first year of implementation and approximately 23 percent of the $10.6 billion total incremental cost. Under Scenario 2, public building identification is again the greatest expenditure accounting for 47 percent of total incremental costs in the first year of implementation and approximately 39 percent of the $6.2 billion total incremental cost discounted over 50 years. The public building identification costs associated with the nonresidential sector are high due to the assumed high level of activity in this sector during the first 3 years of rule implementation.

Training costs were estimated to be approximately 17 percent of total discounted costs for each of the scenarios. Factors affecting the potential magnitude of training costs are frequency and duration of training, as well as the number of potential trainees and associated productivity losses.

With regard to State program costs, EPA found the one-time start-up costs to be the dominant factor. Owing to such start-up costs, total first-year costs were estimated to be much larger than costs for any subsequent year. In developing its total cost estimates for State programs, EPA assumed all States would establish such programs. While nothing in Title IV requires States to seek authorization, the costs of EPA administration and enforcement were judged to be comparable to State costs; thus, for the purposes of this analysis, this assumption is believed to provide a reasonable representation of costs attributable to section 404.

3. Benefits of regulatory action. To most accurately estimate the benefits associated with this proposed rule, all private and social advantages of the proposed rule's requirements would need to be identified and quantified. In particular, the incremental risk reduction brought about by conducting lead-based paint activities using trained and certified individuals and complying with the standards would need to be measured and valued as incremental benefits. Such risk reduction would be the result of reduced lead exposure to residents of target housing; to occupants of and visitors to public and commercial buildings; to risk assessors, inspectors, and abatement workers; to individuals in close proximity to lead-related activities; and to the environment.

The total measured benefits (i.e., benefits that have been identified and quantified) associated with complete residential abatement, include intelligence effects on infants and children, reductions in neonatal mortality due to decreased exposure to pregnant residents, and benefits to workers of avoidance of the very high blood lead levels associated with occupational exposure. (EPA also considered benefits resulting from reduced exposure to adult residents. The results of these preliminary calculations are included in the sensitivity analysis below.)

Total measured benefits estimated in this manner overstate actual benefits associated with the incremental improvement imparted by the training, certification, and standards outlined in the proposal. EPA believes, however, that these total measured benefit estimates when compared to the incremental cost are sufficient to provide the basis for an informed decision. EPA requests comment, in light of the data limitations, on the value of this approach in evaluating the potential effectiveness of this regulation. Further, the Agency requests the submission of any available data that

{pg 45896}

would facilitate the development of incremental benefit values for the requirements of this regulation as well as incremental benefits and costs of alternative regulatory requirements.

The results of this approach are presented in Table 2. The estimated discounted total measured benefits over 50 years range from a low of $11.8 billion (abatement Scenario 2) up to $21.6 billion (abatement Scenario 1). The largest category of benefits accrue in association with children's intelligence effects, with an expected 50-year benefit of $11 billion to $19 billion, depending on the abatement scenario. Benefits realized in association with reductions in neonatal mortality were estimated to range between $.8 billion and $2.6 billion, while benefits to workers were estimated at $2.1 to $5.1 million, over 50 years. In addition, benefits to non-residential abatement workers were estimated at $34 to $49 million.

4. Benefit-cost analysis. As shown in Table 3, total measured benefits are approximately double the incremental costs-the estimated incremental costs of the regulation under Scenario 2, discounted at 3 percent and summed over 50 years, is estimated to be $6.2 billion, and the estimated total measured benefits of the regulation, discounted at 3 percent and summed over 50 years, are $11.8 billion.

Given that the incremental costs associated with the nonresidential sector amount to nearly 58 percent of all costs attributable to the rule and that the data limitations so severely restrict the benefit estimations for the nonresidential sector, the base case analysis also compares total measured benefits and incremental costs on a per residential abatement basis to gain additional insight to the impacts of the proposed regulation. In an effort to minimize the impact of the above limitations on the assessment of net benefits, an additional comparison was made between benchmark total measured benefits and incremental costs for a single residential abatement. As shown in Table 4, if only a small portion of estimated total measured benefits, say 15 to 20 percent are attributable to the proposed rule, it is possible for the incremental benefits to equal or exceed the incremental costs for paint abatement activities in the residential housing sector.

A similar comparison is not possible for the nonresidential sector because data limitations preclude benefit estimates for this sector. This is not to imply that the benefits resulting from nonresidential abatements are insignificant. All the benefit categories believed to result from public and commercial and steel structure deleading are identified in Table 3. Available information regarding the scope of activity (and presented in the uncertainties section below) would suggest that substantial benefits are likely to exist in the form of other worker benefits, benefits to nearby residents, and ecological benefits.

The estimate of the benefits would increase if all the omitted health and ecological effects were included. Even when restricted to the limited coverage of the effects of lead paint exposure that are included in this analysis, it is possible that the measured benefits associated with sections 402 and 404 will exceed the costs of the regulations. The measured benefits of complete abatements are more than six times the incremental costs for Abatement Scenario 2. Thus if the sections 402 and 404 rules increase the measured benefits of residential abatements (using current industrial practices) by as little as 18 percent, the benefits would exceed the costs of the regulation. A benefits analysis that included the significant omitted benefit categories would indicate that an even smaller percentage increase in the benefits of current abatement practices would be sufficient to cover the costs of the regulation.

5. Uncertainties and sensitivity analysis uncertainties. The development of the estimated costs for this proposed rule relied on three steps: The determination of "common" practices, a comparison of these practices to the requirements of the rule, and an estimation of the cost of the additional or incremental activities. While there is a general uncertainty about all the estimates, this approach may have resulted in an overestimate of the costs. In the case of the number of samples to be tested, the analysis included costs for the full number of tests required under the regulation. Inspectors are already taking some samples, although some may not take as many as the regulations will require. Lacking information on the typical number of samples tested, the analysis included the costs for all the tests. Likewise, interviews with industry representatives indicated that very few soil abatements were currently taking place. Therefore, the analysis estimated the rate of soil abatements under the regulation based on estimates of household radon abatement. Since radon abatements are less expensive than soil abatements, this assumption may have resulted in an overestimate of the number of soil abatements and thus an overestimate of both benefits and costs. Both these issues are examined by the sensitivity analysis below.

The development of the benefit estimates was also limited by numerous factors. It was not possible to include several potentially major sources of health benefits at this time. Some of the major omitted benefits include:

All benefits to adult residents.

All benefits to building occupants.

All benefits to workers with blood lead levels below 50 mug/dL.

All benefits to residents near steel structure deleadings.

All ecological benefits.

All of the benefits in three of the five major categories, and part of the benefits to workers, result from changes affecting abatements and deleading of public and commercial buildings and steel structures. As a result, the underestimation of benefits has its greatest effect on the evaluation of the proposed rule's affect on nonresidential lead-based paint activities.

The magnitude of some of these omitted benefits can be approximated by examining the extent of the likely exposure and the nature of the resulting adverse effects. In the case of benefits to occupants of public and commercial buildings, the potentially exposed population is very large. Over one-third of public buildings built before 1980 (approximately 900,000 buildings) have lead-based paint at an XRF reading of 1 or greater. In addition, about 27 percent of commercial buildings (approximately 415,000 buildings) have lead-based paint at an XRF reading of 1 or greater. An equal percentage (nearly 150,000) of industrial buildings also have lead-based paint at that level. Currently, these buildings result in over one-half million deleadings per year. While the length of time of exposure for each individual building occupant may be short, the number of exposed individuals is great, resulting in potentially substantial population risks from improperly performed abatements. In addition, inadequate inspection and/or risk assessments could result in much longer-term exposures if lead risks are not identified and abated.

Since the deleading of steel structures mainly occurs out-of-doors, there is a significant potential of exposure to the surrounding environment if deleading is not conducted properly. Currently, there are approximately 725,000 highway and railroad bridges, 30,000 water tanks, 75,000 petroleum and liquefied natural gas tanks, and 133,000 electrical transmission towers with lead-based paint that need repainting, and about 128,000 underground storage tanks with lead-based coatings that need removal and demolition. While this analysis has not estimated the number of people living in proximity to these structures,

{pg 45897}

the large number of structures combined with the fact that many are located in urban areas means that substantial numbers of people and large areas of ecosystems could be exposed to lead.

In addition to adverse human health effects, lead can impose substantial adverse effects on ecosystems. Although lead occurs naturally in the environment, it plays no known beneficial role in biological processes. In fact, lead is a natural toxicant that affects a broad spectrum of species and persists in the environment. Elevated ambient lead levels that are bioavailable can seriously disrupt population and ecosystem dynamics. As a result, lead is considered a particularly hazardous ecotoxicant. While deleading of steel structures is likely to have the greatest impact on ecosystems, improperly performed abatements in other nonresidential and residential buildings can also introduce lead into the general environment.

In addition to omitting benefits to occupants of nonresidential buildings, benefits to residents near steel structures, and ecological benefits, the estimates presented in the RIA may underestimate benefits because of the assumption made concerning which residential units will be abated. The analysis assumes that all the housing stock with XRF and/or soil-lead levels greater than the scenario levels are eligible candidates for abatement, and that housing units receiving abatements are twice as likely to have young children and newborns as the housing stock in general. This second assumption captures the increased concern about lead hazards and children, and the increased benefits that would accrue to households with young children. The increased concern will likely result in increased abatement rates among housing units with children. However, there are no data currently available on which to base an estimate of this increased likelihood of abatement, and the estimate used may be low. A low estimate will result in an underestimate of the average residential unit benefits. (Likewise, a high estimate will result in an overestimate of the average residential unit benefits.) In addition, if the likelihood of abatement increases with the level of lead present in the home, which is very likely, the average per unit benefits of residential abatement will increase correspondingly.

Data limitations have prevented the estimation of the relevant abatement demand and cost functions which are necessary for accurately estimating the aggregate benefits and costs of the proposed rule. Adoption of the rule will impact variables that affect both the demand and supply functions. For instance, in theory, the increase in abatement costs resulting from training, accreditation, and standards required by section 402 will be reflected in an upward shift of the supply function, increasing prices and resulting in a decreased demand. However, it is reasonable to expect countervailing forces to exist. If people perceive that abatements performed by trained and certified contractors are a better quality service than currently available, the demand for the improved abatements may increase.

In addition to demand shifts as a result of section 402, informational sections of Title IV and Title X such as sections 405, 406, and 1018, respectively, will likely stimulate demand for abatements further. These actions provide information and education to consumers about the inherent dangers of lead.

The net effect of these countervailing forces is difficult to predict with the limited information available. Data limitations have also prevented an assessment of how the quantity of lead-based paint activities may change with alternative regulatory options. Therefore, EPA has been unable to estimate the effect of more (or less) precriptive approaches relative to the proposal on the quantity of lead-based paint activities. The Agency solicits comments and suggestions about data sources or methods that may help in assessing the incremental benefits and costs of alternative approaches.

In order to deal with this issue, it is assumed that the demand for deleading in Massachusetts can provide a proxy for estimating national demand after the regulation is in place. This is deemed appropriate since the training, accreditation, and performance requirements (thus costs) for the established Massachusetts' program are similar to that of the proposed rule. To the extent that residential abatements are mandatory in Massachusetts when elevated-blood-lead (EBL) children are identified, the adoption of Massachusetts' abatement rates will result in an overestimation of the number of national residential abatements. However, it is felt that overestimation will be minimal for the following two reasons: information from the Massachusetts' Department of Health indicates that only 10 to 20 percent of the residential abatements are a result of the presence of EBL children, and because it is likely that other States will also adopt a mandatory abatement provision for EBL children.

EPA knows of no other State programs that may provide additional insights to the expected impacts on demand resulting from the implementation of the proposed rule and, therefore, solicits public comment on the existence of State programs and relevant information germane to this issue.

6. Sensitivity analysis. Six sets of sensitivity analyses were conducted. Two sets affecting only the costs are alternative costs of standards, resulting from alternative estimates of unit costs or alternative assumptions of the number of events; and, alternative training costs, resulting from alternative definitions of training requirements. There are two sets of sensitivity analyses that affect the benefits while leaving the costs unchanged. These two analyses explore alternative levels of benefits to adult residents of units abated and alternative value of a statistical life. And finally, there are two sets of analyses that affect both the costs and the benefits. These use an alternative discount rate, and assume alternative levels of abatement activity. The impacts of these variables on the estimated costs and benefits are presented in Tables 5 and 6, respectively.

The greatest affects on the estimated benefits and costs are associated with the assumptions concerning choice of discount rate and the rate at which soil abatements will occur. Since the benefits resulting from the proposed regulation will not occur simultaneously with the costs, it is necessary to compare streams of costs with the resulting streams of benefits. This is done by discounting future costs and benefits and summing the discounted values. Two alternative approaches were investigated: using 7 percent in place of 3 percent to reflect an alternative social rate of time preference, and using a two-stage procedure that allows for the use of two different discount rates: marginal rate of return on capital (7 percent) for annualizing the capital costs; and a social rate of time preference (3 percent) for discounting the stream of annualized costs and benefits. The distinction between these two approaches rests with whether the source of funds for lead-based paint activities are displacing investment or consumption.

Simply discounting the stream of costs by 7 percent decreases the total 50-year cost estimate by 27 percent. At the same time, increasing the discount rate to 7 percent substantially decreases the estimated benefits more than the cost, because many of the benefits will occur further in the future. There are potentially two separate effects of

{pg 45898}

changing the discount rate. First, the benefits per abatement decrease for all the quantified benefit categories except for workers benefits and the present value of the 50-year benefits decreases for all the benefit categories (including workers). The combination of these two effects decreases the present value of the 50-year benefit stream by 87 percent. Consequently, the choice of discount rate affects benefits to a much greater extent than it does costs.

The results of the two-stage discounting procedure are very sensitive to the amortization period (the length of time capital is diverted from investments). Given the uncertainties about the appropriate amortization period, 50-year discounted costs were not calculated. However, as demonstrated in the literature the two-stage results will fall between the single discount rates of 3 and 7 percent used in these analyses.

One of the most important elements used in estimating the benefits is the willingness to pay to avoid a unit reduction in the risk of death, also referred to as the value of a statistical life. The value of a statistical life directly enters the calculations of the benefits of the avoided neonatal mortality, adult resident hypertension related benefits (when included), and worker benefits. The results presented in base case are calculated using a value of $5.3 million per statistical life. The standard deviation of these values is $3.8 million. A useful range of alternative values for sensitivity analysis is mean value minus one standard deviation, and the mean value plus one standard deviation. The range of alternative values of a statistical life is therefore $1.8 million to $9.1 million. Use of this range will have a significant effect on neonatal mortality benefits. However, the alternative values do not alter the overall benefit estimates greatly; the present value of benefits per abatement and of total benefits (over 50 years, discounted at 3 percent) changes by plus or minus 5 percent.

The primary analysis relies on Massachusetts and OSHA data to estimate most of the levels of abatement activity, in terms of the number of inspections, and abatements/deleading, under the proposed regulation. The Massachusetts and OSHA data provide little information regarding the number of soil abatements. For estimates of rates of soil abatement, therefore, the analysis relies on information on rates of radon abatement. The primary analysis assumes a similar response rate to the presence of lead in soil as to the presence of radon in soil. In other words, 20 percent of the soil inspections that determine the presence of lead result in a soil abatement.

The sensitivity analysis assumes two alternative abatement rates (84 and 10 percent) which reflect likely response rate extremes. For target housing, the lead paint abatement rate was 84 percent. If individuals respond to the presence of lead in the soil similarly to interior lead paint, then the soil abatement rate also will be 84 percent. The 10 percent alternative is examined because based on the radon abatement experience, the 20 percent abatement rate used in the primary analysis may be too high.

Changing the level of soil abatement activities will affect training, standards, and state costs at an 84 percent abatement rate, the total cost of the regulation will increase by 26 percent, with standards costs increasing 32 percent. Using a 10 percent abatement rate the total costs will decrease by only 4.5 percent.

Changing the level of soil abatement activities also changes the estimated benefits. The per-abatement benefits do not change from performing an interior-only, soil-only, or combined paint and soil abatement. However, the average per-abatement benefits change when the number of soil (and paint and soil combined) abatements change. At an 84 percent abatement rate, the total measured benefits will increase 30 percent; and using a 10 percent abatement rate will result in a 5 percent decrease in total measured benefits.

7. Impacts of the proposed rule. In assessing impacts of the proposed rule, EPA focussed on the potential of the rule to affect international trade and to impact technological innovation. The distributional consequences of regulation (environmental equity) were also investigated. (Small business impacts, assessed pursuant to the Regulatory Flexibility Act of 1980, were also assessed. The results of this analysis are presented in unit X. of this preamble.)

With regard to international trade impacts, EPA examined the affected industries to determine whether the extent of foreign trade merited a detailed examination of potential impacts. Since the industries directly affected by this proposed rule are service industries, marketable goods would not be produced for trade. The reduction in lead-based paint hazards expected is achieved through the identification and abatement of lead-based paint structures in the United States and, therefore, will have no implications for international trade. Thus, EPA concludes that there is no appreciable international trade in these services.

{pg 45899}

In assessing the proposed rule's potential impacts on innovative activity, EPA believes that certain requirements are likely to encourage innovation, while others may be a hinderance. For example, an area where innovation might be encouraged is in the case of testing to determine the presence of lead. The standards require that the presence of lead be determined by a test that produces discrete measures. While this proposed rule does not prescribe or prohibit any particular practice, it does require that certain results be achieved. Thus, in setting criteria for new approaches in this case, the proposed rule does not eliminate the potential for innovation by requiring the use of any particular method, such as XRF.

The key factor in EPA's investigation into the distributional impacts of the proposed rule was the distribution of lead-based paint in the nation's housing stock. Lead-based paint is more common in older, low-cost housing units in the Northeast and Midwest. Because such housing units tend to be occupied by households at or below the poverty level, including a disproportionate share of African-Americans, these subpopulations are exposed to relatively more risks than other subpopulations. While these sub-populations would be likely to receive a greater portion of the overall risk reduction benefits of the rule, the fact that most abatements are voluntary suggests that wealthier households will be more likely to proceed with abatements. Unfortunately, data are not available to permit estimates to be made of the demand for abatement given differing household income levels; thus, the distribution of benefits and costs across geographic and demographic lines were not estimated.

Table 1.-Summary of Estimate of the Total Cost

Scenario 1: XRF sup ; 1 for Paint and 500 ppm or More for Soil Cost First Year Total Percentage Cost (1994) Discounted of Total ($ 50-yr. Cost Cost
millions) (3%) ($
millions)

Training 501 1,878 18%
Standards 830 8,439 80%
State Program 36 259 2%
Administration
Total for XRF sup ; 1, 1,367 10,576 100%
500 ppm
Scenario 2: XRF sup ;
6 for Paint and 2,000
ppm or More for Soil
Training 222 1,053 17%
Standards 557 4,952 80%
State Program 24 184 3%
Administration
Total for XRF sup ; 6, 803 6,190 100%
2,000 ppm

Source "Title X Sections 402 and 404 Regulatory Impact Analysis," U.S. EPA, Office of Pollution Prevention and Toxics, Regulatory Impacts Branch.
Table 2.-Summary of Total Measured Benefits

Scenario 1: XRF sup ; 1, Soil Lead Content sup ; 500 ppm
Benefit Category Total Present Value, Benefits, 50 Years
First Year (Millions) (Millions)

Children** $ 836.5 $ 18,975
Neonatal Mortality** $ 115.8 $ 2,605
Workers Involved in Abatement $ 0.2 $ 5.1
All Other Workers $ 4.9 $ 49
Total Benefits*** $ 957.5 $ 21,635
Scenario 2: XRF sup ; 6, Soil
Lead Content sup ; 2,000 ppm
Children** $ 494.0 $ 10,968
Neonatal Mortality** $ 36.4 $ 804
Workers Involved in Abatement $ 0.10 $ 2.1
All Other Workers $ 2.6 $ 34.0
Total Benefits*** $ 533.2 $ 11,808

**Benefits of complete abatements, not just incremental benefits from this rule

***Combination of incremental and complete abatement benefits

Table 3.-Estimated Total Benefits and Incremental Costs over 50 Years

Scenario 2 (XRFsup ; 6, Soilsup ; 2,000 ppm)-3 percent discount rate

Total Measured Benefits from Incremental Costs Due to Abatements (except where Regulation noted)
Benefit Present Value Cost Category Present Value Category

Residential
Abatements
Infant and $ 11.0 Billion Training Cost $ 91 Million Children
Intelligence
Effects -
Total
Other Infant & Not Measured State Program $ 54 Million Children Cost
Neurological
Effects -
Total
Neonatal $ 804 Million Standards Cost $ 1.7 Billion Mortality-
Total
Adult Not Measured
Hypertension-
Total
Other Adult Likely
Health Substantial*
Benefits
Workers (PbB > $ 2 Million
50 mu g/Dl)-
Increment due
to Regulation
Other Worker Likely
Benefits Substantial*
Ecological Not Measured
Benefits
Percent Value $ 11.77 Percent Value $ 1.8 Billion of 50 Year Billion of 50 Year
Stream- Stream-
Residential Residential
Public and
Commercial
Building and
Steel
Structure
Deleading
Workers (PbB > All Deleading Training Cost $ 963 Million 50 mu g/Dl)- $ 34 Million
Increment Due
to Regulation
Other Worker Likely State Program $ 129 Million Benefits Substantial* Cost
Building Not Measured
Occupants
Benefits to Likely Standards Cost $ 3.3 Billion Nearby Substantial*
Residents
Ecological Likely
Benefits Substantial*
Present Value Likely Present Value $ 4.4 Billion of 50 Year Substantial* of 50 Year
Stream Non- Stream Non-
Residential Residential
Total Present
Value (Sum of
Residential
and Non-
Residential
Structures):
Quantifiable
Benefits and
Costs
All Structure $ 11.81 All Structure $ 6.2 Billion Types-50 Year Billion + Types-50 Year
Stream Substantial Stream
Unquantifiable
Benefits

*Benefits are presumed to be substantial, but cannot be estimated due to lack of quantified information on the incremental reductions in human and ecosystem exposure.

Table 4.-Comparison of Residential Incremental Costs Due to Proposed Rule to Total Measured Residential Benefits, Per Residential Unit Abated

Scenario 1 (XRFsup ; 1, Soilsup ; 500 ppm)

Residential Abatements

Total Measured Benefits from Incremental Costs Due to Complete Abatements (except Regulation where noted)
Benefit Estimated Cost Category Estimated Cost Category Value Per Per Abatement Abatement

Infant and $ 8,271 Training Cost $ 94
Children
Intelligence
Effects-Total
Other Infant & Not Measured State Program $ 52
Children Cost
Neurological
Effects-Total
Neonatal $ 1,133 Standards Cost $ 1,763
Mortality-
Total
Adult Not Measured
Hypertension-
Total
Other Adult Not Measured
Health Effects
Workers (PbB > $ 2.22
50 mu /Dl)-
Increment due
to regulation
Other Worker Not Measured
Effects
Total $ 9,406 Total $ 1,909
Scenario 2
(XRFsup ; 6,
Soilsup ;
2,000 ppm)
Residential
Abatements
Infant and $ 15,482 Training Cost $ 123
Children
Intelligence
Effects-Total
Other Infant & Not Measured State Program $ 88
Children Cost
Neurological
Effects-Total
Neonatal $ 1,133 Standards Cost $ 2,303
Mortality-
Total
Adult Not Measured
Hypertension-
Total
Other Adult Not Measured
Health Effects
Workers (PbB > $ 2.74
50 mu g/Dl)-
Increment Due
to Regulation
Other Worker Not Measured
Effects
Total $ 16,618 Total $ 2,514

Table 5.-Sensitivity of Cost Estimates to Variations in the Value of Key Variables

Variation in Total %Change from Primary Analysis Key Variable Discounted
Costs ($
billion)
Primary Sensitivity Analysis Analysis
Reduce Lab $ 6.19 $ 5.85 -5.4%
Fees by 15%
Increase Lab $ 6.19 $ 6.53 +5.4%
Fees by 15%
Reduce Amount $ 6.19 $ 6.18 -0.2%
of Hands-on
Training Time
by One Half
Use 7% $ 6.19 $ 4.51 -27.1%
Discount Rate
Reduce Soil $ 6.19 $ 5.91 -4.5%
Abatement Rate
by One Half
(to 10%)
Increase Soil $ 6.19 $ 7.80 +26.0%
Abatement Rate
4.2 Times (to
84%)

Table 6.-Sensitivity of Cost Estimates to Variations in the Value of Key Variables

Variation in Total %Change from Primary Analysis Key Variable Discounted
Benefits
($ billion)
Primary Sensitivity Analysis Analysis
Reduce Value $ 11.8 $ 11.2 -5%
of a
Statistical
Life to $ 1.4
Million
Increase Value $ 11.8 $ 12.4 +5%
of Statistical
Life to $ 9.1
Million
Include $ 11.8 $ 31.2 +164%
Benefits to
Adult
Residents,
Assuming 2.13
mu g/D1
Change in
Blood Lead
Include $ 11.8 $ 12.8 +8%
Benefits to
Adult
Residents,
Assuming 0.1
mu /D1 Change
in Blood Lead
Use 7% $ 11.8 $ 1.5 -87%
Discount Rate
Reduce Soil $ 11.8 $ 11.2 -5%
abatement Rate
by One Half
(to 10%)
Increase Soil $ 11.8 $ 15.3 +30%
Abatement Rate
4.2 Times (to
84%)

G. Enforcement

Section 409 of TSCA makes it unlawful to fail or refuse to comply with any provision of a rule promulgated under Title IV of TSCA. Therefore, failure to comply with any provisions of the final rule would be a violation of TSCA. In addition, section 15 of TSCA makes it unlawful for any person to fail or refuse to permit entry or inspection as required by section 11 of TSCA.

Violators may be subject to both civil and criminal liability. Under the penalty provision of section 16 of TSCA, any person who violates section 15 or 409 is subject to a civil penalty of up to $25,000 for each violation. Each day a violation continues may constitute a separate violation. Knowing or willful violations of any provision of the final rule could lead to the imposition of criminal fines of up to $25,000 and imprisonment for up to 1 year for each violation. In addition, other remedies are available to EPA under sections 7 and 17 of TSCA, such as seeking an injunction to restrain violations of the rule and seizing any imminently hazardous chemical substance. Section 15 and 16 of TSCA apply to "any person" who violates various provisions of TSCA. EPA may, at its discretion, proceed against individuals as well as companies or Federal facilities. In particular, EPA may proceed against individuals who report false or misleading information or cause it to be reported.

H. Business Confidentiality

Pursuant to section 14 of TSCA, a person may assert a claim of business confidentiality for any public comments submitted to EPA in connection with the proposed rule. Any person who submits a public comment for which a claim of confidentiality has been made must also submit a nonconfidential version. Any claim of confidentiality must accompany the information when it is submitted to EPA. Persons may claim information in comments confidential by circling, bracketing, or underlining it, and marking it with "CONFIDENTIAL" or some other appropriate designation. EPA will disclose information subject to a claim of business confidentiality only to the extent permitted by section 14 of TSCA and 40 CFR part 2, subpart B. If a person does not assert a claim of confidentiality for information in comments at the time it is submitted to EPA, EPA will make the information public without further notice to that person by placing the comments in the public docket for this rulemaking.

I. Hearing Procedures

EPA will hold an informal hearing at a time and place announced at a later date in the Federal Register. Any informal hearing will be conducted in accordance with EPA's "Procedures for Conducting Rulemaking Under Section 6 of the Toxic Substances Control Act" (40 CFR part 750). Persons or organizations desiring to participate in the informal hearing must file a written request to participate. The written request to participate must be sent to the Environmental Assistance Division at the address listed under FOR FURTHER INFORMATION CONTACT. The written request to participate must include: (1) A brief statement of the interest of the person or organization in the proceeding; (2) a brief outline of the points to be addressed; (3) an estimate of the time required; and (4) if the request comes from an organization, a non-binding list of the persons to take part in the presentation. Organizations are requested to bring with them, to the extent possible, employees with individual expertise in and responsibility for each of the areas to be addressed.

J. Official Rulemaking Record

EPA has established a record for this rulemaking (docket control number OPPTS-62128). A public version of the record, without any information claimed as confidential business information, is available in the TSCA Nonconfidential Information Center (NCIC) from 12 noon to 4 p.m., Monday through Friday, except legal holidays. The TSCA NCIC is located at EPA headquarters, in Rm. NE-B607, 401 M St., SW., Washington, DC. 20460.

The rulemaking record contains information considered by EPA in developing this proposed rule. The record includes: (1) All Federal Register notices, (2) relevant support documents, (3) reports, (4) memoranda and letters, and (5) hearing transcripts responses to comments, and other documents related to this rulemaking.

The following is a list of documents which the Agency relied upon while developing this proposed regulation and can be found in the docket. Other documents, not listed here, such as those submitted with written comments from interested parties, are contained in the TSCA Docket office as well. The drafts of proposed rules submitted by the Administrator to the Office of Management and Budget for any interagency review process prior to proposal of the rule will also be contained in the public docket. The drafts of the final rule submitted for OMB review before promulgation will also be placed into the public docket.

(1) Committee on the Institutional Means for Assessment of Risks to Public Health - Commission on Life Sciences - National Research Council. 1983. Risk Assessment in the Federal Government: Managing the Process. National Academy Press, Washington D.C.

(2) DOL, OSHA. 1993. Lead Exposure in Construction; Interim Final Rule. May 4, 1993. 29 CFR Part 1926.

(3) HUD, Office of Public and Indian Housing, 1990. Lead-Based Paint: Interim Guidelines for Hazard Identification and Abatement in Public and Indian Housing. (September, 1990, pages 87,89, A14-111 revised May 1991).

(4) HUD, Office of Policy Development and Research, 1991. The HUD Lead-Based Paint Abatement Demonstration (FHA). (August 1991).

(5) HUD, Office of Public and Indian Housing. 1992. Lead-Based Paint Risk Assessment Protocol. (September 1992).

(6) SOEH, (Society for Occupational and Environmental Health). Protective Work Practices for Lead-Based Paint Abatement. Draft for Final Review.

(7) State of California Sacramento , Department of Transportation. 1982. Long-Term Environmental Evaluation of Paint Residue and Blast Cleaning Abrasives from the Middle River Bridge Repainting Project. (July 1982).

(8) USEPA. 1992. EPA Model Lead Abatement Training Course for Supervisors and Contractors: Instructor Manual. (July 1992).

(9) USEPA. 1993. Lead Inspector Training - Model Training Course Curriculum: Instructor Manual. (March 1993).

(10) USEPA, OPPT, CMD, TPB. 1992. Applicability of RCRA Disposal Requirements to Lead-Based Paint Abatement Wastes: Final Report. (October 1992).

(11) USEPA, OPPTS. 1993. Residential Sampling for Lead: Draft Protocols for Lead Dust and Soil Sampling (June 23, 1993).

IX. Regulatory Assessment Requirements

A. Executive Order 12866

Under E.O. 12866, (58 FR 51735, October 4, 1993), the Agency must determine whether regulatory action is "significant" and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. Under section 3(f), the order defines "a significant regulatory action" as an action that is likely to result in a rule (1) having an annual effect on the economy of $100

{pg 45903}

million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as "economically significant"); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement, grants, user fees, or loan programs; or (4) raising novel legal or policy issues arising out of legal mandates, the Presidents priorities, or the principles set forth in this Executive Order.

Pursuant to the terms of this Executive Order, it has been determined that this rule is a "significant regulatory action" because it will have an annual effect on the economy of over $100 million annually. As such, this action was submitted to OMB for review, and any comments or changes made in response to OMB suggestions or recommendations, have been documented in the public record.

B. Regulatory Flexibility Act

(1). Introduction. The Regulatory Flexibility Act of 1980 (RFA) requires regulators to analyze impacts on small entities. EPA conducted such an analysis, including it as part of the RIA. Based on this analysis of available data, EPA preliminarily concludes that the proposed rule should not place undue burden on small business. The analysis is summarized below.

(2). Impacts on Small Businesses. EPA assessed potential impacts, both absolute and relative burden, on small abatement firms in the construction industry. To examine the potential impacts of the proposed rule on small abatement establishments, compliance costs as a percentage of operating costs were estimated for both small and large firms and then compared to determine if small firms are more adversely impacted than large firms.

The compliance costs consist of two components: (1) Licensing and training costs for workers and supervisors, as well as licensing costs for firms, and (2) incremental costs of performance standards for abatement procedures. These two components coincide with the two decision points faced by firms interested in performing lead-based paint abatement work (including soil abatement). In order to be a "player" in this industry, a firm must be licensed and its employees must be trained and certified. It is likely that a firm will incur these expenses in anticipation of work, based on its assessment of the future demand for such services, its competition, and the price it will be able to charge. Therefore, the firm may incur the costs with no opportunity to recoup them, thus decreasing its profits.

The second set of costs, those resulting from performance standards, are of a different nature. The firms that do lead abatement work also perform similar work in settings that do not involve lead and are not affected by the proposed rule. These costs occur at the second decision point. They will be incurred by a firm only if it chooses to undertake a given lead-based paint job. In each case, the firm can determine the impact of the performance standards on its sales and profit levels. If the impact will be undesirable (e.g., decrease profit levels), the firm can decline the work. In this voluntary setting, the performance standards will not have an impact on the profits of small businesses. Likewise, owners of property will incur the performance standards costs only if abatements are in their benefit.

A comparison of incremental training and licensing costs to the estimated operating costs for an average small firm, for each SIC group involved with lead abatement, is shown in Table 7 below. These SIC groups cover abatements in residential, public, commercial, and industrial buildings, as well as steel structure abatement and deleading. Assuming that none of the training and licensing costs are shifted forward in the form of higher prices, the ratio of compliance costs to operating costs for small establishments range between 1.2 and 3.2 percent. Cost ratios are similarly estimated for large establishments in Table 8 below. For large firms, the ratios tend to be slightly lower, ranging from1.0 to 2.3 percent. For both large and small establishments, the largest cost ratio occurs for SIC 1721, painting contractors. However, for these firms, a large non-lead paint market is available. In all cases, compliance costs equal a small percentage of operating costs.

While this shifting of costs will alleviate the burden on abatement and deleading firms, the incremental costs of the regulations may affect residential and commercial building owners. Consistent with the arguments presented above, under this proposed rule abatement is a voluntary action. As such, a landlord is unlikely to undertake an abatement unless he or she is able to pass the cost on to his or her tenants or otherwise recoup the costs in terms of higher property values. EPA is concerned about the possibility that landlords of marginally profitable property, under the threat of civil suits may chose the alternative of abandoning the property rather than incur the cost of abatement. EPA solicits comments providing data or methods any such effects on the removal target housing from the market.

An alternative indicator which demonstrates potential impacts on small abatement firms focuses on profitability. EPA subtracted estimated establishment compliance costs from average profits per establishment to determine post- compliance profits. This calculation was also performed separately for small and large establishments for the same SIC codes identified above assuming Scenario 1 (See Tables 9 and 10 below). The estimated average adjusted profits for small establishments in two of the nine affected industry sectors become negative. One of these sectors, Miscellaneous Trade Contractors, was assumed as the most likely to perform a high frequency of very costly soil abatement projects; thus, compliance costs exceeded profits by more than a factor of 10. For 3 other sectors, compliance costs represented more than 50 percent of abatement establishment profits. For large firms, the results of this calculation indicated the typical large firm to remain profitable in all sectors. Thus, based on the profitability indicator size of deleading firms entering the abatement industry may be impacted by this proposed rule.

These calculations on profits assume all costs were absorbed by affected firms. This is more reasonable in the short run than in the long run. EPA does not have the necessary information to ascertain the cost pass through rate and resulting impacts on individual firms in the short run. Also, the analysis was constrained to use SIC data that are from a set of firms that may be different from firms complying with this proposed rule and, therefore, the financial information may not be representative of potential abatement firms. EPA solicits comments on available data to estimate these impacts.

The two indicators presented above were selected to present the likely bounds of the impacts associated with the proposed rule. The actual impact will likely lie somewhere between these extremes.

The comparison of impacts on small and large training providers was not performed for two reasons. Except for the RLTCs, most training providers are small, so there would be no differential effect based on size of the firm. In addition, it is likely that the training providers will pass the additional costs on to their trainees. Since the changes will be required by Federal regulations, they will apply to all training providers. Second, there will be ened

{pg 45904}

concern about lead-based paint hazards and thus a greater willingness to pay for trained personnel who will presumably provide higher quality services. In fact, these regulations are likely to create a market for training services and thus will be beneficial to small businesses.

Table 7.-Impacts on Operating Costs for Small Establishments By SIC Code

Scenario 2 (XRFsup ; 6, Soilsup ; 2,000 ppm)

SIC Codes Operating Compliance Compliance Costs Per Costs Per Cost/Operating Establishment Establishment Costs

1541 Industrial $ 475,390 $ 6,641 1.4%
Buildings and
Warehouses
1542 Other 418,475 6,867 1.6%
Nonresidential
Buildings
1611 Highway and 543,130 6,533 1.2%
Street
Construction
Contractors
1622 Bridge, 646,332 9,206 1.4%
Tunnel and
Elevated Highway
Contractors
1721 Painting 142,568 4,508 3.2%
Contractors
1751 Carpentry 170,404 4,341 2.6%
Work Contractors
1791 Structural 384,631 7,870 2.1%
Steel Erection
Contractors
1795 Wrecking 299,717 6,199 2.1%
and Demolition
1799 Misc. Trade 241,250 5,530 2.3%
Contractors, NEC

Source: "Title X Sections 402 and 404 Regulatory Impact Analysis," U.S. EPA, Office of Pollution Prevention and Toxics, Regulatory Impacts Branch.

Table 8.-Impacts on Operating Costs for Large Establishments By SIC Code

Scenario 2 (XRFsup ; 6, Soilsup ; 2,000 ppm)

SIC Codes Operating Compliance Compliance Costs Per Costs Per Cost/Operating Establishment Establishment Costs

1541 Industrial $ 5,294,916 $ 71,424 1.4%
Buildings and
Warehouses
1542 Other 4,773,679 65,550 1.4%
Nonresidential
Buildings
1611 Highway and 6,840,501 68,730 1.0%
Street
Construction
Contractors
1622 Bridge, 6,754,332 87,379 1.3%
Tunnel and
Elevated Highway
Contractors
1721 Painting 1,894,301 43,797 2.3%
Contractors
1751 Carpentry 1,103,563 22,702 2.1%
Work Contractors
1791 Structural 3,090,078 59,044 1.9%
Steel Erection
Contractors
1795 Wrecking 3,043,743 60,056 2.0%
and Demolition
1799 Misc. Trade 2,354,724 48,346 2.1%
Contractors, NEC

Source: "Title X Sections 402 and 404 Regulatory Impact Analysis," U.S. EPA, Office of Pollution Prevention and Toxics, Regulatory Impacts Branch.

Table 9.-Statistics of Small Establishments By SIC Code

(XRF sub ;1, Soil sub ;500 ppm)

SIC Codes No. of Constr. Total Sales Profits per Constr. Payroll/Est per Estab. Estab. Wkrs. Per ab. ($ 000)
Estab.*

1541 4.1 $ 89 $ 494,683 $ 19,293 1542 3.9 75 436,366 17,891 1611 3.7 102 568,128 24,998 1622 5.3 133 671,863 25,531 1721 2.5 45 153,961 11,393 1751 2.4 44 182,837 12,433 1791 4.5 100 409,182 24,551 1795 3.5 68 318,171 18,454 1799 3.1 54 258,298 17,048
SIC Codes EPA Costs EPA Total Costs Profits of Initial Incremental Minus Costs Training & Costs of per Estab. Licensing* Standards

1541 $ 7,123 $ 9,365 $ 16,488 $ 2,805 1542 6,796 2,710 9,506 8,385 1611 7,075 140 7,215 17,783 1622 9,807 1,579 11,386 14,145 1721 4,842 7,201 12,043 (650) 1751 4,581 2,773 7,354 5,079 1791 8,369 349 8,718 15,833 1795 6,142 1,542 7,684 10,770 1799 5,488 306,911 312,399 (295,351)*
*1:2 Supervisor:Worker Ratio

Source: "Title X Sections 402 and 404 Regulatory Impact Analysis," U.S. EPA, Office of Pollution Prevention and Toxics, Regulatory Impacts Branch and CONSAD (1993).

{pg 45905}

Table 10.-Statistics of Large Establishments By SIC Code

(XRFsup ; 1, Soilsup ; 500 ppm)

SIC Codes No. of Constr. Total Sales Profits Per Const. Payroll Per Per Estab. Estab. Wrks. Per Estab. ($
Estab. 000)

1541 54.2 $ 1,335 $ 5,567,735 $ 272,819 1542 45.1 1,035 5,030,220 256,541 1611 47.3 1,418 7,253,978 413,477 1622 60.2 1,559 7,102,347 348,015 1721 31.1 743 2,081,649 187,348 1751 16.0 341 1,190,467 86,904 1791 40.6 1,122 3,393,413 303,335 1795 41.3 797 3,279,895 236,152 1799 33.2 663 2,565,059 210,335

SIC Codes EPA Costs EPA Total Costs Profits of Initial Incremental Minus Costs Training & Costs of Per Estab. Licensing* Standards

1541 $ 75,788 $ 8,500 $ 84,288 $ 188,531 1542 63,292 2,763 6,055 190,486 1611 73,932 142 74,074 339,403 1622 94,170 1,597 95,767 252,248 1721 46,338 7,285 53,623 133,725 1751 24,011 2,957 26,968 59,936 1791 63,543 344 63,887 239,448 1795 58,080 1,505 59,585 176,567 1799 46,767 5,250 52,017 158,318
* 1:3 Supervisor:Worker Ratio

Source: "Title X Sections 402 and 404 Regulatory Impact Analysis," U.S. EPA, Office of Pollution Prevention and Toxics, Regulatory Impacts Branch and CONSAD (1993) and CONSAD (1993).

C. Paperwork Reduction Act

The Information Collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document has been prepared by EPA (ICR No. 15 USC 2682 and 15 USC 2688) and a copy may be obtained from Sandy Farmer, Information Policy Branch, (2136) EPA, 401 M St., SW Washington DC 20460, or by calling (202) 260-2740.

This collection of information has an estimated reporting burden averaging 2.67 hours per response while the estimated recordkeeping burden was estimated to be 0.32 hours per response. These estimates include time to review instructions, search existing data sources, gather and maintain the data needed, and complete the collection information.

Send comments regarding the burden estimate, or any other aspect of this collection of information including suggestions for reducing this burden to Chief, Information Policy Branch, (2136) EPA 401 M St., S.W., Washington, DC 20460, marked "Attention: Desk Officer for EPA." The final rule will respond to OMB or public comments on the information collection requirements contained in this proposal.

This regulation includes a number of reporting and record keeping requirements, which are designed to help EPA verify compliance with the rule after it is promulgated. This analysis identifies the reporting and record keeping requirements specified in the proposed rule and estimates the burden and cost that these requirements will impose.

This regulation will add to the reporting and recordkeeping burden for three entities: states, training providers, and lead inspection and abatement firms. Where applicable, burden numbers were based on those developed for the Asbestos Model Accreditation Plan (MAP)(U.S. EPA, 1993b). In all other cases, burden numbers were estimated.

Reporting burdens presented are classified into two groups: initial and annual. The burden associated with the start-up efforts of states, training providers, and lead inspection and abatement firms are referred to as the initial burden. For the purpose of this analysis, all of these efforts are assumed to be completed during 1994, the first year of the rule. The burden associated with reporting requirements that will be required on an annual basis are referred to as the annual burden and are presented based on the projected activity level for 1994. Initial and annual estimates are combined to project the burden and costs that will be imposed during the first year of the rule, while the annual costs alone serve as an estimate of the burden level expected during the second year (and subsequent years) of the rule.

The first and second year burden estimates for all entities subject to reporting requirements under this rule, were estimated to two abatement scenarios of XRF sub ;1, soil-lead sub ;500 ppm, and for XRF sub ;6, soil-lead sub ;2,000 ppm. With regard to the first abatement scenario, during the initial year of the rule the burden is projected to be 11.4 million hours and $228.8 million. Assuming all entities seeking accreditation and certification are in place during the first year of the rule, the burden estimate associatedwith the second year (and all subsequent years) is projected to be 10.8 million hours and $217.6 million. At XRF sub ;6, soil-lead sub ;2000 ppm, the total burden for the initial year is estimated to be 6.2 million hours and $126.1 million. For the second year, and subsequent years, the total burden is 6.1 million hours and $120.9 million.

The majority of the burden, for both abatement scenarios, falls on lead abatement firms and is driven by the reporting requirements associated with on-site lead-based paint activities. Because this burden is driven by the number of lead-based paint projects, it is expected to decline substantially in subsequent years.

The total annual recordkeeping costs for the XRF sub ;1 and soil-lead sub ;500 ppm represent the worst-case scenario due to the number of events that occur. Total annual costs are estimated to be approximately $1.3 million.

List of Subjects in 40 CFR Part 745

Environmental protection, Abatement, Housing renovation, Lead, Lead-based paint, Reporting and recordkeeping requirements.

Dated: August 18, 1994.

Carol M. Browner,

Administrator.

Therefore, it is proposed that proposed 40 CFR part 745 be amended as follows:

1. The authority citation for proposed part 745 would continue to read as follows:

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

2. By adding subparts L and Q to read as follows:

Subpart L-Lead-Based Paint Activities

Sec.

745.220 Scope and applicability.

745.223 Definitions.

{pg 45906}

745.225 Accreditation of training programs.

745.226 Certification of individuals and firms engaged in lead-based paint activities.

745.228 Standards for conducting lead- based paint activities.

745.230 Lead-based paint activities requirements.

745.235 Enforcement.

745.237 Inspections.

745.239 Effective dates.

* * * * *

Subpart Q-State Programs

745.320 Scope and purpose.

745.323 Definitions.

745.325 Authorization of State Programs.

745.327 Authorization of Indian Tribal Programs.

745.330 Grants.

745.339 Effective dates.

Subpart L-Lead-based Paint Activities

Sec. 745.220 -- Scope and applicability.

This subpart contains procedures and requirements for the accreditation of lead-based paint activities training programs, procedures and requirements for the certification of individuals and firms engaged in lead-based paint activities, and standards for performing such activities. This subpart also contains requirements that all lead-based paint activities shall be performed by certified individuals. This subpart is applicable to all individuals and firms who are engaged in lead-based paint activities as defined in Sec. 745.223, except persons who perform these activities within residences which they own, unless the residence is occupied by a person or persons other than the owner or the owner's immediate family while these activities are being conducted. This subpart is applicable only in those states or Indian Reservations that do not have an authorized state program pursuant to Sec. 745.325 or Sec. 745.327 respectively of Subpart Q of this part. Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government having jurisdiction over any property or facility or engaged in any activity resulting, or which may result, in a lead-based paint hazard, and each officer, agent, or employee thereof, shall be subject to, and comply with all Federal, State, interstate, and local requirements, both substantive and procedural, including the requirements of this subpart regarding lead-based paint, lead-based paint activities, and lead-based paint hazards.

Sec. 745.223 -- Definitions.

For purposes of this subpart, the definitions of Sec. 745.3 apply. In addition, the following definitions apply:

Abatement means any set of measures designed to permanently eliminate lead-based paint hazards in accordance with standards established by the Administrator under Title IV of TSCA. Such term includes:

(1) The removal of lead-based paint and lead- contaminated dust, the permanent containment or encapsulation of lead-based paint, the replacement of lead-painted surfaces or fixtures, and the removal or covering of lead-contaminated soil.

(2) All preparation, cleanup, disposal, and post-abatement clearance testing activities associated with such measures. Abatement shall be presumed in the following circumstances:

(i) Projects for which there is a written contract stating that an individual or firm will be conducting activities in or to a dwelling unit that will permanently eliminate lead-based paint hazards.

(ii) Projects involving the permanent elimination of lead-based paint or lead contaminated soil and conducted by firms or individuals certified in accordance with Sec. 745.226.

(iii) Projects involving the permanent elimination of lead-based paint or lead-contaminated soil and conducted by firms or individuals who, through their company name, promotional literature, or otherwise advertise or hold themselves out to be lead abatement professionals.

(3) Abatement does not include renovation and remodeling, or landscaping activities whose primary intent is not to permanently eliminate lead-based paint hazards, but is instead to repair, restore, or remodel a given structure or dwelling, even though these activities may incidently result in a reduction in lead-based paint hazards.

Accredited training program means a training program that has been accredited by an approving authority to provide training for individuals engaged in lead-based paint activities.

Approving authority means the U.S. Environmental Protection Agency or, in the case of a state or tribal program authorized by EPA under subpart Q of this part, the appropriate State agency or Tribal authority.

Area means a portion of a unit such as a room, closet, pantry, hall, or portion of a room (such as the dining area of a kitchen/dining room).

Available means reachable by telephone, either directly or through a pager or answering service, at all times when abatement activities are being conducted and able to be present at the work site in no more than 2 hours.

Certified contractor means a contractor, inspector, or supervisor who has completed a training program certified by the appropriate Federal agency and has met any other requirements for certification or licensure established by such agency or who has been certified by any State through a program which has been found by such Federal agency to be at least as protective as the Federal certification program; and workers or designers who have fully met training requirements established by the appropriate Federal agency.

Certified firm means a company, partnership, corporation, sole proprietorship, association, or other business entity, which has submitted a letter signed by the owner to the approving authority stating that:

(1) All its employees or subcontractors performing lead-based paint activities have each individually received the required training and certification from the appropriate approving authority.

(2) The certified firm and its employees or subcontractors will perform lead-based paint activities in accordance with all applicable local, State and Federal standards, including all applicable recordkeeping requirements.

(3) A certified supervisor will be assigned and available to all the firm's abatement, deleading, and demolition projects.

Certified inspector/risk assessor for target housing and public buildings means an individual who has been trained by an accredited training program and certified by an approving authority to act as an inspector and risk assessor for target housing and public buildings. Certified inspector technician for target housing and public buildings means an individual who has been trained by an accredited training program and certified by an approving authority to perform inspections in target housing and public buildings solely for the purpose of determining the presence of lead-based paint through the use of on-site testing, such as XRF analyzers, and the collection of samples for laboratory analysis, and to perform inspections for the presence of lead-based paint, as well as sampling for lead in dust and soil for the purposes of abatement cleanup, waste disposal, and clearance testing.

Certified lead worker for commercial buildings and superstructures means an individual who has been trained by an accredited training program and certified by an approving authority to perform deleading, lead removal, and demolition activities on commercial buildings and superstructures.

{pg 45907}

Certified lead worker for target housing and public buildings means an individual who has completed training from an accredited training program and has been certified by an approving authority to perform abatement activities in target housing and public buildings.

Certified planner/project designer for target housing and public buildings means an individual who has been trained by an accredited training program and certified by an approving authority to plan and design abatement projects in target housing and public buildings.

Certified supervisor for commercial buildings and superstructures means an individual who has been trained by an accredited training program and certified by an approving authority to supervise lead-based paint activities and to identify the presence of lead-based paint or other lead-based surface coatings in commercial buildings and on superstructures. The supervisor is also responsible for the planning and oversight of lead-based paint activities associated with commercial buildings and superstructures.

Certified supervisor for target housing and public buildings means an individual who has been trained by an accredited training program and certified by an approving authority to supervise and conduct abatements in target housing and public buildings.

Commercial building means any building used primarily for commercial or industrial activity, which is generally not open to the public, or occupied or visited by children, including but not limited to, warehouses, factories, storage facilities, aircraft hangers, garages, and wholesale distribution facilities.

Common area means a portion of a building generally accessible to all residents/users including, but not limited to, hallways, stairways, laundry and recreational rooms, playgrounds, community centers, and boundary fences.

Component or building component means specific design or structural elements or fixtures of a building or residential dwelling which are distinguished from each other by form, function, and location. These include, but are not limited to interior components such as: ceilings, crown molding, walls, chair rails, doors, door trim, floors, fireplace, radiators and other heating units, shelves, shelf supports, stair treads, stair risers, stair stringers, newel posts, railing caps, balustrades, windows and trim, including sashes, window heads, jambs, sills, and stools, built-in cabinets, columns, beams, bathroom vanities, counter tops and air conditioners; and exterior components such as: painted roofing, chimneys, flashing, gutters and downspouts, ceilings, soffits, facias, rake boards, corner-boards, bulkheads, doors and door trim, fences, floors, joists, lattice work, railings and railing caps, siding, handrails, stair risers and treads, stair stringers, columns, balustrades, window sills, casings, sashes and wells, and air conditioners.

Course test blue print means written documentation of the proportion of course test questions devoted to each major topic in the course curriculum.

Deleading means activities conducted by a person who offers to eliminate lead-based paint or lead-based paint hazards or to plan such activities in commercial buildings, bridges, or other structures or superstructures.

Demolition means the act of pulling down or destroying any building or structure.

Deteriorated paint means paint which is cracking, flaking, chipping, or peeling from a building component.

Discipline means one of the specific types or categories of lead-based paint activity enumerated in this subpart for which individuals may receive training from accredited programs and become certified by approving authorities. For example, "lead worker in commercial buildings and superstructures" is a discipline.

Distinct painting history means the record of application, over time, of paint or other surface coatings to a component of a building structure. Encapsulation is a process that makes lead-based paint inaccessible, by providing a barrier between the lead-based paint and the environment, with this barrier being formed using a liquid applied coating or an adhesively bonded material, and with the primary means of attachment is by the bonding of the product to the surface either by itself of through the use of an adhesive.

Firm means any company, partnership, corporation, sole proprietorship, association, or other business entity.

Hands-on assessment means an evaluation which tests the trainees' ability to perform specified work practices and procedures satisfactorily.

Hazardous waste means any waste as defined in 40 CFR 261.3.

Historical records means documentation which identifies the material make-up (including brand, color type, lead content) and dates of application of paint and other surface coatings used in target housing, public and commercial buildings, and superstructures.

Inspection means a surface-by-surface investigation for the presence of lead-based paint conducted by a certified inspector technician or inspector/risk assessor according to the procedures in Sec. 745.228(a).

Interim certification means the status of an individual who has successfully completed the appropriate training course in a discipline from an accredited training program, but has not yet received formal certification in that discipline from an approving authority. Interim certifications expire 6 months following the completion of the training course.

Interim controls means a set of measures designed to reduce temporarily human exposure or likely exposure to lead-based paint hazards, including specialized cleaning, repairs, maintenance, painting, temporary containment, ongoing monitoring of lead-based paint hazards or potential hazards, and the establishment and operation of management and resident education programs.

Lead-based paint activities means (1) in the case of target housing, risk assessment, inspection, and abatement; and (2) in the case of any public building constructed before 1978, commercial building, bridge, or other structure or superstructure, identification of lead-based paint and materials containing lead-based paint, deleading, removal of lead from bridges, and demolition.

Lead- contaminated soil means bare soil on residential real property that contains lead at or in excess of the levels determined to be hazardous by an inspector/risk assessor certified under this regulation.

Living area means areas of a target housing unit most often frequented by children under the age of 6, including, but not limited to living rooms, kitchen areas, dens, play rooms, and children bedrooms.

Personal protection equipment (PPE) means specialized clothing and equipment including but not limited to respirators, masks, gloves, designed to protect workers against chemical and physical hazards.

Principal instructor means the individual who has the primary responsibility for organizing and delivering a particular course.

Public building means any building constructed prior to 1978, except target housing, which is generally open to the public or occupied or visited by children, including but not limited to, schools, daycare centers, museums, airport terminals, hospitals, stores, restaurants, office buildings, convention centers, and government buildings.

{pg 45908}

Recognized laboratory means any environmental laboratory recognized by the Agency as being capable of performing an analysis for lead compounds in paint, soil, and dust.

Residential dwelling means (1) a single-family dwelling, including attached structures such as porches and stoops; or (2) a single-family dwelling unit in a structure that contains more than one separate residential dwelling unit, which is used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons.

Risk assessment means an on-site investigation conducted by a certified inspector/risk assessor according to the procedures at Sec. 745.228(b) to determine the existence, nature, severity, and location of lead-based paint hazards and the provision to the property owner/occupant of a report explaining the results of the investigation and providing options for reducing lead-based paint hazards with a rationale for those options.

Room means an enclosed or semi-enclosed living space within a unit or dwelling unit.

Student T-test is a statistical analysis used to determine if the difference between pre- and post-abatement soil lead levels are significantly different from each other. A confidence limit of 95 percent is used to establish statistical significance.

Superstructure means a large steel or other industrial structure including, but not limited to bridges or water towers which may contain lead-based paint.

Training curriculum means an established set of course topics that provide specialized knowledge and skills that must be taught in an accredited training program for a particular discipline.

Training hour means the number of hours spent in training activities in an accredited training program, including, but not limited to, hours devoted to lecture, learning activities, small group activities, demonstrations, evaluations, and/or hands-on experience.

Training manager means the individual responsible for administering a training program and monitoring the performance of the principal instructors, work practice instructors, and guest instructors.

Train-the-trainer course means a 40-hour (or longer) course of study which provides instruction in the planning and teaching of adult education courses.

Unit means a room or connected group of rooms used or intended to be used by a single tenant or owner.

Visual inspection for clearance testing means the visual examination of the abatement site following an abatement action for evidence that the abatement has been successfully completed, as indicated by the absence of visible residue, dust and debris.

Visual inspection for risk assessment means the visual examination of a unit to locate the existence of deteriorating paint.

Window sill means the portion of the horizontal window ledge that protrudes into the interior of the room, adjacent to the window sash when the window is closed.

Window stool means the flat, horizontal molding fitted over the window sill, on the window interior, between jambs, which comes in contact with the bottom of the rail of the lower operating sash and the window sill.

Window well means the portion of the horizontal widow sill that receives the window sash when the window is closed; often located between the storm window and the interior window sash.

Work practice instructor means the individual(s) who are responsible for teaching particular skills in a specific course.

Sec. 745.225 -- Accreditation of training programs.

(a) Application process. For the purposes of certification, approving authorities shall only recognize training and refresher training received from an accredited training program. The following are procedures a training program shall follow to receive accreditation from an approving authority.

(1) A training program may seek accreditation to offer courses in any of the following disciplines - target housing and public buildings: inspector technicians, inspector/risk assessors, supervisors, planner/project designers, and workers; commercial buildings and superstructures: supervisors and workers. The training program may also seek accreditation to offer refresher courses for each of the course disciplines.

(2) A training program seeking accreditation shall submit to the approving authority a written application containing the following information:

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

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

(iii) A statement, signed by the training program manager, which certifies that the training program meets the minimum requirements established in paragraph (b) of this section.

(iv) A signed statement by the training program manager certifying that each instructor meets the qualifications described in paragraph (b)(1), (b)(2), or (b)(3) of this section, as well as a list of the topics/skill areas to be taught by each instructor.

(v) Either:

(A) A statement signed by the training manager, which certifies that the program will use, if available, EPA developed model training materials; or

(B) A copy of the student manuals and instructor manuals to be used for each course; and

(C) A copy of the course agenda, which includes the time allocation for each course topic.

(vi) A copy of the test blueprint, which describes the proportion of course test questions devoted to each major course topic.

(vii) A description of the facilities and equipment available for lecture and hands-on training.

(viii) A description of the procedures for conducting the assessment of hands-on skills.

(ix) A copy of the quality control plan as described in paragraph (b)(10) of this section.

(x) An example of numbered certificates, as described in paragraph (b)(9) of this section, to be issued to students who successfully complete the training program.

(3) The approving authority shall approve or disapprove a request for accreditation within 180 days of receiving an application from a training program. In the case of approval, a certificate of accreditation shall be sent to the applicant. In the case of disapproval, a letter describing the reasons for disapproval shall be sent to the applicant. Prior to disapproval, the approving authority may, at its discretion, work with training programs to address inadequacies in the application for accreditation. The approving authority may also request additional materials retained under paragraph (h) of this section. If a training program's application is disapproved, the program may reapply for accreditation at any time.

(4) A training program may offer courses or refresher courses in as many training disciplines as it chooses, but shall seek accreditation for each discipline. A training program may seek accreditation for additional disciplines at any time as long as the program can demonstrate that it meets the minimum requirements of paragraph (b) of this section.

(b) Minimum requirements for the accreditation of training programs. For a training program to obtain accreditation from an approving authority to teach lead-based paint

{pg 45909}

activities, the program shall demonstrate, through its application materials, that it meets the following minimum requirements for each discipline for which the program is seeking accreditation:

(1) The training program shall employ a training manager who:

(i) Has at least 2 years classroom experience in teaching workers/adults; or

(ii) Has a bachelor's or graduate level degree in building construction technology, engineering, industrial hygiene, safety, or public health; or

(iii) Has 4 years experience in managing an occupational health and safety training program that specialized in environmental hazards; and

(iv) Has completed a 40-hour train-the-trainer course that provides instruction in the planning and teaching of any adult education course; or has obtained a bachelor's or graduate level degree in adult education from an accredited college or university.

(2) The training program shall employ a qualified principal instructor for each course who:

(i) Has completed a 40- hour train-the-trainer course, or has obtained a degree in adult education from an accredited college or university, or has at least 2 years of classroom experience in teaching workers/adults.

(ii) Has successfully completed at least 24 hours of any lead-specific training.

(iii) Has 2 years of experience in the construction trade, including, but not limited to, lead or asbestos abatement, painting, carpentry, or renovation and remodeling.

(3) The training program shall employ qualified work practice instructors who are responsible for teaching particular skills in a specific course and who:

(i) Have met all of the requirements listed in paragraph (b)(2) of this section.

(ii) Have had 1 additional year of experience in a relevant construction trade, including but not limited to, lead or asbestos abatement, painting, carpentry, or renovation and remodeling.

(4) The training program shall, for each course offered, designate a principal instructor. Principal instructors are responsible for the organization of the course and oversight of the teaching of all course material. Additional instructors shall be designated as either work practice instructors or guest instructors.

(5) The following documents shall be recognized by approving authorities as proof that training managers, principal instructors, and work practice instructors meet the relevant educational, work experience, and training requirements specifically listed in paragraphs (b)(1), (b)(2), and (b)(3) of this section:

(i) Official academic transcripts as proof of meeting the educational requirements.

(ii) Resumes, letters of reference, lead certification in another State, or documentation of work experience as proof of meeting the work experience requirements.

(iii) Certificates from train-the-trainer courses and lead-specific training courses as proof of meeting the training requirements.

(6) The training program shall provide adequate facilities for lecture and hands-on training and assessment. This includes providing training equipment that reflects current work practices, and maintaining or updating the equipment and facilities as needed.

(7) The training program shall provide training courses that meet the following training hour requirements:

(i) The inspector technician course for target housing and public buildings shall last a minimum of 24 training hours, with a minimum of 8 hours devoted to hands-on training.

(ii) The inspector/risk assessor course for target housing and public buildings shall last a minimum of 40 training hours inspector technician (24 hours) plus inspector/risk assessor (16 hours) equals a total of 40 hours , with a minimum of 8 hours devoted to hands-on training which includes site visits.

(iii) The supervisor course for target housing and public buildings shall last a minimum of 40 training hours, with a minimum of 8 hours devoted to hands-on training.

(iv) The planner/project designer course for target housing and public buildings shall last a minimum of 56 training hours supervisor course (40 hours) plus planner/project designer course (16 hours) equals a total of 56 hours , with a minimum of 4 hours devoted to hands-on training which include site visits.

(v) The lead abatement worker course for target housing and public buildings shall last a minimum of 32 training hours, with a minimum of 10 hours devoted to hands-on training.

(vi) The supervisor course for commercial buildings and superstructures shall last a minimum of 32 training hours, with a minimum of 8 hours devoted to hands-on training.

(vii) The lead worker course for commercial buildings and superstructures shall last a minimum of 32 training hours, with a minimum of 10 hours devoted to hands-on training.

(8) For each course it offers, the training program shall conduct a course test at the completion of each course and a hands-on skills assessment. The hands-on assessment and the course test will be used to evaluate trainee competency and proficiency. The hands-on assessment and a course test must be successfully completed for an individual to pass any course.

(i) The hands-on skills assessment is an evaluation of the effectiveness of the hands-on training which shall test the ability of the trainees to demonstrate satisfactory performance of work practices and procedures specified in paragraph (c) of this section, as well as any other skills demonstrated in the course. The training manager is responsible for maintaining the validity and integrity of the assessment to ensure that it accurately evaluates the trainee's performance of these work practices and procedures.

(ii) The course test is an evaluation of the overall effectiveness of the training which shall test the trainee's knowledge and retention of the topics covered during the course. Seventy percent shall be considered the passing score on the course test. The training manager is responsible for maintaining the validity and integrity of the course to ensure that it accurately evaluates the trainee's knowledge and retention of the course topics.

(iii) The course test shall be developed in accordance with the test blueprint submitted with the training accreditation application. (9) Training programs shall issue unique course completion certificates to each individual who successfully completes the course requirements. The course completion certificate shall include:

(i) A unique certificate number.

(ii) The name, a unique identification number, and address of the individual.

(iii) The name of the particular course that the individual completed.

(iv) Dates of course completion/test passage.

(v) Expiration date of interim certification, which shall be 6 months from the date of course completion.

(vi) Name, address, and telephone number of the training program.

(vii) A certified statement signed by the training manager which certifies that the training received complies with the requirements of this subpart. The statement must read as follows:

Under civil and criminal penalties of law for the making or submission of false or fraudulent statements or representations (18 U.S.C. 1001 and 15 U.S.C. 2615), I certify that this training complies with all applicable requirements of Title IV of TSCA, 40 CFR

{pg 45910}

part 745, and any other applicable Federal, state, or local requirements.

(10) The training manager shall develop and implement a quality control plan. The plan shall be used to maintain or improve the quality of the training program over time. This plan shall contain at least the following elements:

(i) Procedures for periodic revision of training materials and course test to reflect innovations in the field.

(ii) Procedures for the training manager's annual review of instructor competency.

(11) Training programs shall offer courses which teach the standards for conducting lead-based paint activities contained in Sec. 745.228, and other such standards adopted by the EPA, or the authorized state from which the program received accreditation.

(12) The training manager shall be responsible for ensuring that the training program complies at all times with all of the requirements in paragraph (b) of this section.

(c) Minimum training curricula requirements. To be accredited, training programs must ensure that their courses of study for the various lead-based paint activities disciplines cover the following subject areas. Listed requirements ending in an asterisk (*) indicate areas that require hands-on experience as an integral component of the course.

(1) Target housing and public buildings - inspector technician.

(i) Background information on lead.

(ii) Health effects of lead.

(iii) Regulatory review. This entails a discussion of applicable Federal, state and local regulations that pertain to lead-based paint.

(iv) Roles and responsibility of lead-based paint inspector.

(v) Lead-based paint inspection methods.*

(vi) Dust and soil sampling methodologies.*

(vii) Formulation and implementation of the final inspection report.*

(2) Target housing and public buildings- inspector/risk assessors.

(i) All information taught in the inspector technician course as listed in paragraph (c)(1) of this section.

(ii) Background information to perform risk assessment.

(iii) Visual inspection.*

(iv) Risk assessment report form.*

(v) Sampling and inspection guidelines.*

(vi) Sampling for other sources of lead exposure.

(vii) Interpretation of sampling results.

(viii) Preparation of final report.*

(ix) Recommendations to abate or reduce lead-based paint hazards including instruction on when interim controls are appropriate.

(x) Development of an interim control plan.

(xi) Recordkeeping.

(xii) Identification of the lead-based paint hazards, lead-contaminated dust, and lead- contaminated soil.

(3) Target housing and public building - supervisor.

(i) Background information on lead.

(ii) Regulatory background, Federal, state and local.

(iii) Legal and insurance issues relating to lead-based paint abatement.

(iv) Development of pre-abatement work plan.*

(v) Hazard recognition and control.*

(vi) Respiratory protection and protective clothing.*

(vii) Employee information and training.

(viii) Project management.

(ix) Contract specifications.

(x) Supervisory techniques.

(xi) Lead paint abatement or lead hazard reduction including prohibited methods.*

(xii) Interior dust abatement/clean- up or lead hazard reduction.*

(xiii) Soil and exterior dust abatement or lead hazard reduction.*

(xiv) Soil, dust, and air sampling.

(xv) Clearance standards and testing.

(xvi) Waste disposal.

(xvii) Community relations process.

(xviii) Cost estimation.

(xix) Recordkeeping.

(4) Target housing and public buildings - planner/project designer.

(i) All information taught in the supervisor course as listed in paragraph (c)(3) of this section.

(ii) Risk assessment/inspection report interpretation.*

(iii) Worker protection/worker safety.

(iv) Environmental safety.

(v) The following information on project design.*

(A) Integration with modernization projects.

(B) Design abatement or lead hazard reduction strategy.

(C) Cost estimation.

(D) Construction techniques.

(vi) Abatement and other lead hazard reduction methods.

(vii) Operations and maintenance planning.

(viii) Clean-up.

(ix) Clearance testing.*

(x) Waste disposal.

(xi) Insurance and liability.

(5) Target housing and public buildings - lead abatement worker.

(i) Background information and health effects of lead.

(ii) Sources of environmental lead contamination (paint, surface dust and soil, water, air, food, other).

(iii) Regulatory background, Federal, state and local.

(iv) Hazard recognition and control.*

(v) Respiratory protection.*

(vi) Personal hygiene.*

(vii) Lead-based paint abatement and lead hazard reduction methods.*

(viii) Interior dust abatement methods/clean-up or lead hazard reduction.*

(ix) Soil and exterior dust abatement methods or lead hazard reduction.*

(x) Waste disposal.*

(6) Commercial buildings and superstructures - supervisor.

(i) Background information on lead.

(ii) Sources of environmental lead contamination (paint, surface dust and soil, water, air, food, other).

(iii) Regulatory background, Federal, state and local.

(iv) Health effects.

(v) Identification of lead-based paint.*

(A) Historical information.

(B) Limited sampling procedures.

(C) Laboratory analysis.

(vi) Development of deleading work plan.*

(vii) Medical monitoring.

(viii) Respiratory protection.*

(ix) Work preparation procedures.*

(x) Clean up/waste disposal.

(xi) Exposure monitoring.

(xii) Environmental monitoring.*

(A) Soil, dust, and air sampling.

(B) Reserved

(xiii) Recordkeeping.

(xiv) Other safety and health hazards.

(xv) Paint removal operations pertaining to superstructures and commercial buildings, including:

(A) Power tools.

(B) Abrasive blasting.

(xvi) Welding, burning and torch cutting.

(xvii) Mechanical disturbance of lead.

(7) Commercial buildings and superstructures - lead workers.

(i) Background information on lead.

(ii) Regulatory review.

(iii) Health effects.

(iv) Medical monitoring.

(v) Control methods.*

(vi) Respiratory protection.*

(vii) Work preparation procedures.*

(viii) Personal hygiene.*

(ix) Clean up/waste disposal.*

(x) Exposure monitoring.

(xi) Recordkeeping.

(xii) Other safety and health hazards.

(xiii) Paint removal operations.

(A) Power tools and miscellaneous.

(B) Abrasive blasting.

(xiv) Welding, burning, and torch cutting.

(xv) Mechanical disturbance of lead.

{pg 45911}

(d) Minimum requirements for the accreditation of refresher training programs.

(1) Training programs may seek accreditation to offer a refresher course for any course discipline for which they already have received accreditation or for which they are concurrently applying for accreditation. Training programs will not receive accreditation for a refresher course if they do not also receive accreditation for the corresponding course discipline.

(2) An accredited refresher training course shall address the following topics:

(i) An overview of key safety practices.

(ii) An update on current laws and regulations.

(iii) An update on current technologies related to lead-based paint activities.

(3) The course must include at least 7 training hours.

(4) Each student shall be required to pass a course test that covers all of the topics contained in the course. Passing students shall be provided with a course completion certificate.

(5) A training program seeking refresher course accreditation shall submit to the approving authority the following:

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

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

(iii) A copy of student manuals and instructor notebooks for the course.

(6) If a training program applies for accreditation of a refresher course concurrently with accreditation of the corresponding training course, the approving authority shall use the approval procedure described in paragraph (a)(4) of this section.

(7) If an application for refresher training authorization is received apart from an application for accreditation as described in paragraph (a)(4) of this section, the approving authority shall approve or disapprove a request for accreditation within 45 days of receiving the application. In the case of approval, a certificate of accreditation shall be sent to the applicant. In the case of disapproval, a letter describing the reasons for disapproval shall be sent to the applicant. The approving authority may, at its discretion, work with training programs to address inadequacies in the application for accreditation. If a training program's application is disapproved, the program may reapply at any time.

(8) A training program may offer as many refresher training courses as it chooses, but shall seek accreditation for each course. A training program may seek accreditation for additional refresher training courses at any time.

(e) Re-accreditation of training programs.

(1) If a training program meets the requirements of this section, the training program shall be re-accredited. Unless re- accredited, a training program's accreditation shall expire 3 years after the date of issuance.

(2) A training program seeking re- accreditation shall submit an application to the approving authority no later than 180 days before its accreditation expires. If a training program does not submit its application for re- accreditation by that date, the approving authority cannot guarantee the application will be reviewed and acted upon before the end of the 3-year period.

(3) The training program's application for re- accreditation shall contain:

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

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

(iii) A description of any changes or updates to the training facility or equipment.

(iv) The certified statement as described in paragraph (e)(4) of this section below.

(4) The training program's application for re-accreditation shall contain a statement signed by the training program manager which certifies that:

(i) The course materials, for each course, meet the requirements in paragraphs (c)(1) through (c)(7) of this section, as appropriate.

(ii) The training manager, principal instructors, and work practice instructors meet the qualifications in paragraphs (b)(1), (b)(2), and (b)(3) of this section.

(iii) The training program manager complies at all times with all requirements in paragraph (b) of this section.

(iv) The quality control program meets the requirements in paragraph (b)(11) of this section.

(v) The recordkeeping and reporting requirements of paragraph (h) of this section will be followed.

(5) An audit may be performed by the approving authority to verify the certified statement and the contents of the application.

(f) Suspension, revocation, and modification of accredited training programs. (1) The approving authority may after notice and an opportunity for hearing, suspend, revoke, or modify training program accreditation if a training program, training manager, or other person with supervisory authority over the training program, has:

(i) Misrepresented the contents of a training course to the approving authority and/or the student population.

(ii) Failed to submit required information or notifications in a timely manner.

(iii) Failed to maintain required records.

(iv) Falsified accreditation records, instructor qualifications, or other accreditation information.

(v) Failed to comply with the training standards and requirements in this section.

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

(2) In addition to an administrative or judicial finding of violation, execution of a consent agreement in settlement of an enforcement action constitutes, for purposes of this section, evidence of a failure to comply with relevant statutes or regulations.

(3) Training programs shall permit representatives of the approving authority to attend any training course, for the purpose of evaluation or monitoring of the course, without charge to the approving authority.

(g) Procedures for suspension, revocation, or modification of training program accreditation. (1) When an approving authority decides to suspend, revoke, or modify the accreditation of a training program, it shall notify the affected entity in writing of the following:

(i) The grounds upon which the suspension or withdrawal is based. (ii) The commencement date and duration of the suspension, revocation, or modification.

(iii) Actions, if any, which the affected entity may take to avoid suspension, revocation, or modification, or to receive accreditation in the future.

(iv) Any additional conditions which the approving authority may impose.

(v) The opportunity and method for requesting a hearing prior to final approving authority action to suspend, revoke, or modify accreditation.

(2) If a hearing is requested by the accredited training program pursuant to paragraph (g)(1) of this section, the approving authority shall:

(i) Prior to the hearing, notify the affected entity of those assertions of law and fact upon which the action to suspend, revoke, or modify is based.

(ii) Provide the affected entity an opportunity to offer written statements in response to those assertions of law and facts, and any other explanations, comments, and arguments it deems relevant to the proposed action.

(iii) Provide the affected entity such other procedural opportunities as the

{pg 45912}

approving authority may deem appropriate to ensure a fair and impartial hearing.

(iv) Appoint an official of the approving authority as Presiding Officer to conduct the hearing. No person shall serve as Presiding Officer if he or she has had any prior connection with the specific case.

(3) The Presiding Officer appointed pursuant to paragraph (g)(iv) of this section shall:

(i) Conduct a fair, orderly, and impartial hearing, within 90 days of the request for a hearing.

(ii) Consider all relevant evidence, explanation, comment, and argument submitted pursuant to paragraph (g)(2) of this section.

(iii) Notify the affected entity in writing within 90 days of completion of the hearing of his or her decision and order. Such an order is a final agency action subject to judicial review.

(4) If the approving authority determines that the public health, interest, or welfare warrants immediate action to suspend the accreditation of any training program prior to the opportunity for a hearing, it shall:

(i) Notify the affected entity of its intent to immediately suspend training program accreditation for the reasons listed in paragraph (f)(1) of this section. If a suspension, revocation, or modification notice has not previously been issued pursuant to paragraph (g)(1) of this section, it shall be issued at the same time the emergency suspension notice is issued.

(ii) Notify the affected entity in writing of the grounds upon which the immediate suspension is based and why it is necessary to suspend the entity's accreditation before an opportunity for a suspension, revocation, or modification hearing.

(iii) Notify the affected entity of the commencement date and duration of the immediate suspension.

(iv) Notify the affected entity of its right to request a hearing on the immediate suspension within 15 days of the suspension taking place and the procedures for the conduct of such a hearing.

(5) Any notice, decision, or order issued by the approving authority under this section, and any documents filed by an accredited training program in a hearing under this section, shall be available to the public, except as otherwise provided by section 14 of TSCA or by part 2 of this title. Any such hearing at which oral testimony is presented shall be open to the public, except that the Presiding Officer may exclude the public to the extent necessary to allow presentation of information which may be entitled to confidential treatment under section 14 of TSCA or part 2 of this title.

(6) The public shall be notified of the suspension, revocation, or modification of training program accreditation through appropriate mechanisms developed by the authority.

(7) The approving authority shall maintain a list of parties whose accreditation has been suspended, revoked, or modified. This list shall be made available to the public upon request.

(h) Training program recordkeeping requirements.

(1) Accredited training programs shall maintain, and make available to the approving authority if requested, the following records:

(i) All documents specified in paragraph (b)(5) of this section that demonstrate the qualifications listed in paragraphs (b)(1), (b)(2), and (b)(3) of this section of the training manager, principal instructors, and work practice instructors.

(ii) Current curriculum/course materials, and documents reflecting any changes made to these materials.

(iii) The course test blueprint.

(iv) Information on how the hands-on assessment is conducted including, but not limited to, who conducts the assessment, how the skills are graded, what facilities are used, and the pass/fail rate.

(v) The quality control plan as described in paragraph (b)(10) of this section.

(vi) Results of the student's hands-on skills assessments and course tests, and a copy of each student's course completion certificate.

(vii) Any other material not listed in (h)(1)(i) through (h)(1)(vi) of this paragraph that was submitted to the approving authority as part of the program's application for accreditation.

(2) The training program shall retain these records at the location (i.e., address) specified on the training program accreditation application for a minimum of 3 years 6 months.

(3) The training program shall notify the approving authority 30 days prior to relocating its business or transferring the records.

Sec. 745.226 -- Certification of individuals and firms engaged in lead-based paint activities.

(a) Certification of individuals. (1) Following the submission of an application meeting all the requirements of this section and a determination by the approving authority that an individual has met all applicable requirements to perform lead-based paint activities, the approving authority shall certify the applicant in one or more of the following disciplines:

(i) Target housing and public buildings - inspector technician, inspector/risk assessor, supervisor, planner/project designer, or lead abatement worker.

(ii) Commercial buildings and superstructures - supervisor or lead worker.

(2) Certified individuals conducting lead-based paint activities shall comply with the standards for performing lead-based paint activities in Sec. 745.228.

(3) It shall be considered a violation of TSCA, as well as any other applicable State or local law or regulation, for an individual to conduct any of the lead-based paint activities described in Sec. 745.228 of this proposal unless that individual has received the appropriate certification pursuant to the requirements specified in paragraphs (b) and (c) of this section.

(b) Inspector technician, inspector/risk assessor or supervisor. (1) To become certified as an inspector technician, inspector/risk assessor or supervisor, an individual shall:

(i) Successfully complete and receive a course completion certificate from an accredited training program for the appropriate discipline.

(ii) Meet or exceed the following additional experience and/or education requirements:

(A) Inspector technicians in target housing and public buildings:

(1) No additional experience and/or education requirements.

(2) Reserved

(B) Inspector/risk assessors in target housing and public buildings:

(1) One year experience in a related field (e.g., lead, asbestos, or environmental remediation work), or 25 inspections over at least a 3-month period as a certified lead inspector technician, and one of the following:

(i) Bachelor's degree and 1-year experience in a related field.

(ii) Certification as an industrial hygienist, an engineer, a registered architect, or an environmentally related scientific field, such as an environmental scientist.

(iii) A high school diploma (or equivalent), plus at least 2 years of experience in a related field.

(2) Reserved

(C) Supervisor in target housing and public buildings:

(1) One-year experience as a lead abatement worker.

(2) At least 2 years experience in a related field or in the building trades.

(D) Supervisor in commercial buildings and superstructures:

(1) At least 2 years industrial painting field experience.

(2) At least 90 days field supervisory or management experience in hazardous

{pg 45913}

paint removal within the previous 24 months.

(3) Work experience that demonstrates knowledge of current, relevant safety practices that have been accepted by the EPA for deleading operations.

(4) Work experience that demonstrates knowledge of current waste handling procedures for wastes derived from deleading operations.

(5) Work experience that demonstrates knowledge of environmental monitoring during deleading operations.

(iii) Pass the certification examination offered by the approving authority. The certification examination must be administered in such a way that the validity and security of the certification examination are maintained.

(2) The following documents shall be recognized by the approving authority as proof of meeting the requirements listed in this paragraph:

(i) Official academic transcripts as proof of meeting the educational requirements.

(ii) Resumes, letters of reference, certification in another state, documentation of work experience, or copies of inspection reports as proof of meeting the work experience requirements.

(iii) Certificates from lead-specific or other related training courses as proof of meeting the training requirements.

(iv) A signed, certification by the applicant that he/she meets the qualifications described in this paragraph.

(3) In order to take the certification examination for a particular discipline, an individual shall submit the following: a course completion certificate for that discipline from an accredited training program; the required documentation of education and/or experience prerequisites as described in paragraph (b)(2) of this section; and photographic proof of identity to the appropriate official of the certification examination administering body.

(4) The course completion certificate shall serve as interim certification for an individual who seeks to apply for certification until the next available opportunity to take the certification examination. Interim certification shall expire after 6 months. The approving authority shall offer separate certification examinations for the inspector technician for target housing and public buildings, inspector/risk assessor for target housing and public buildings, supervisor for target housing and public buildings, and the supervisor for commercial buildings and superstructures discipline.

(5) After passing the certification exam and meeting the appropriate training, education and/or experience prerequisites, an individual shall be issued a certificate by the approving authority. Certification shall be valid for 3 years.

(6) If an individual does not pass the certification exam and receive a certificate within 6 months of receiving his/her course completion certificate, the individual must retake the appropriate course from an accredited training program before reapplying for certification from the approving authority.

(c) Worker and planner/project designer.

(1) An individual wishing to become certified as a worker in target housing and public buildings or commercial buildings and superstructures or as a planner/project designer in target housing and public buildings shall successfully complete a training course for the appropriate discipline offered by an accredited training program.

(2) Workers and planner/project designers shall be certified on an interim basis following course completion until they apply for and receive their certification from the approving authority. To receive certification from the approving authority, individuals shall submit a valid copy of their course completion certificate within 30 days of completing the course. The course completion certificate shall serve as interim certification until certification from the approving authority is received, but shall be valid for no more than 6 months from the date of course completion.

(3) Upon receipt of the valid course completion certificate, the approving authority shall issue a certification to each worker or planner/project designer. This certification shall be valid for 3 years. To maintain certification, an individual must be re-certified as described in paragraph (e) of this section by the approving authority before the certification expires.

(d) Certification based on prior training.

(1) Any individual who received lead-based paint activities training between October 1, 1990, and the effective date of this section shall be eligible for certification by the approving authority under the following alternative procedures:

(i) Applicants for the disciplines of inspector technician (target housing and public buildings), inspector/risk assessor (target housing and public buildings), and supervisor (target housing and public buildings, or commercial buildings and steel structures) must:

(A) Show proof and date of the successful completion of training or on the job training equivalent to that specified in Sec. 745.225 for a lead inspector, risk assessor, or supervisor.

(B) Demonstrate that the applicant meets the education and/or experience requirements in paragraph (b)(1)(ii) of this section.

(C) Successfully complete an accredited refresher training course for the appropriate discipline.

(D) Pass a certification exam for that discipline administered by the approving authority.

(ii) Applicants for the disciplines of worker (target housing and public buildings, or commercial buildings and superstructures) and planner/project designer (target housing and public buildings) must:

(A) Show proof and date of the successful completion of worker training equivalent to that specified in Sec. 745.225.

(B) Successfully complete an accredited refresher training course.

(2) Individuals have until 6 months after the effective date of Sec. 745.225 to apply for certification under the above procedures. After that date, all individuals wishing to obtain certification must do so through the procedures described in paragraph (c) of this section.

(e) Re-certification.

(1) To maintain certification, all certified individuals, must be re- certified by the approving authority every 3 years.

(2) To become re-certified an individual shall submit a valid copy of the refresher course completion certificate to the approving authority.

(f) Certification of firms.

(1) All firms engaged in or offering to perform lead-based paint activities must be certified by the appropriate approving authority.

(2) A firm seeking certification shall submit to the approving authority a letter certifying that the firm will only employ certified employees to conduct lead-based paint activities, and that the firm will follow the standards for conducting lead-based paint activities in Sec. 745.228.

(3) From the date of receiving the certification application, the approving authority shall have 90 days to approve or disapprove the firm's request for certification. In the case of approval, a certificate shall be sent by the 90th day. In the case of disapproval, a letter describing the reason for disapproval shall be sent by the 90th day.

(4) The firm shall maintain all records pursuant to the requirements in Sec. 745.228.

{pg 45914}

(g) Suspension, revocation, and modification of certifications of individuals engaged in lead-based paint activities.

(1) The approving authority may, after notice and opportunity for hearing, suspend, revoke, or modify an individual's certification if an individual has:

(i) Performed work requiring certification at a job site without having copies of initial and currently valid, original certificates available at the job site for inspection.

(ii) Permitted the duplication or use of the individual's own certificate by another.

(iii) Performed work for which appropriate certification has not been received from the approving authority.

(iv) Been subject to a final order imposing a civil penalty or a criminal conviction for engaging in a prohibited act under section 15 or 409 of TSCA.

(2) In addition to the situations listed in paragraph (g)(1) of this section, the approving authority may suspend, revoke, or modify the certification of individuals who have failed to comply with Federal, State, or local lead-based paint statutes or regulations. In addition to an administrative or judicial finding of violation, for purposes of this section, execution of a consent agreement in settlement of an enforcement action constitutes evidence of a failure to comply with relevant statutes or regulations.

(3) Any individual who performs any of the following acts shall be deemed to have committed a violation of TSCA, as well as any other applicable Federal, State, or local law or regulation:

(i) Obtained certification through fraudulent representation of training or exam documents.

(ii) Obtained training documentation through fraudulent means.

(iii) Gained admission to and completed education through fraudulent representation of initial or previous education documentation.

(iv) Obtained certification through fraudulent representation of certification requirements such as education, training, professional registration, or experience.

(v) Obtained training from a training program that is not accredited to offer training for the particular discipline from the approving authority.

(h) Suspension, revocation and modification of certifications of firms engaged in lead-based paint activities.

(1) The approving authority may, after notice and opportunity for hearing, suspend, revoke, or modify a firm's certification if a firm has:

(i) Performed work requiring certification at a job site with individuals who are not certified.

(ii) Failed to maintain required records.

(iii) Performed work for which appropriate certification has not been received from the approving authority; or

(iv) Failed to comply with the standards established in Sec. 745.228.

(2) In addition to the situations listed in paragraph (h)(1) of this section, the approving authority may suspend, revoke, or modify the certification of firms that have failed to comply with Federal, State, or local lead-based paint statutes or regulations. In addition to an administrative or judicial finding of violation, for purposes of this section, execution of a consent agreement in settlement of an enforcement action constitutes evidence of a failure to comply with relevant statutes or regulations.

(3) Any firm that performs any of the following acts shall be deemed to have committed a violation of TSCA, as well as any other applicable Federal, State, or local law or regulation:

(i) Obtained certification through fraudulent representation.

(ii) Failed to obtain a certificate from the approving authority and performed work requiring certification at a job site.

(4) In addition, the approving authority may suspend, revoke, or modify the certification of firms who have been subject to a final order imposing a civil penalty or a criminal conviction for engaging in a prohibited act under section 15 or 409 of TSCA. It shall be a prohibited act under section 15 or 409 of TSCA, as well as any other applicable provision of law, for a firm that fraudulently obtains certification, to engage in any lead-based paint activities requiring certification.

(i) Procedures for suspension, revocation, or modification of the certification of individuals or firms. (1) If the approving authority decides to suspend, revoke, or modify the certification of any individual or firm, it shall notify the affected entity in writing of the following:

(i) The grounds upon which the suspension, revocation, or modification is based.

(ii) The commencement date and duration of the suspension, revocation, or modification.

(iii) Actions, if any, which the affected entity may take to avoid suspension, revocation, or modification or to receive certification in the future.

(iv) Any additional conditions which the approving authority may impose.

(v) The opportunity and method for requesting a hearing prior to final approving authority action to suspend, revoke, or modify certification.

(2) If a hearing is requested by the certified individual or firm, the approving authority shall:

(i) Prior to the hearing, notify the affected entity of those assertions of law and fact upon which the action to suspend, revoke, or modify is based.

(ii) Provide the affected entity an opportunity to offer written statements in response to those assertion of law and fact, and any other explanations, comments, and arguments it deems relevant to the proposed action.

(iii) Provide the affected entity such other procedural opportunities as the approving authority may deem appropriate to ensure a fair and impartial hearing.

(iv) Appoint an official of the approving authority as Presiding Officer to conduct the hearing. No person shall serve as Presiding Officer if he or she has had any prior connection with the specific case.

(3) The Presiding Officer appointed pursuant to paragraph (i)(2) of this section shall:

(i) Conduct a fair, orderly, and impartial hearing within 90 days of the request for a hearing.

(ii) Consider all relevant evidence, explanation, comment, and argument submitted pursuant to paragraph (i)(2) of this section.

(iii) Notify the affected entity in writing within 90 days of completion of the hearing of his or her decision and order. Such an order is a final approving authority action subject to judicial review.

(4) If the approving authority determines that the public health, interest, or welfare warrants immediate action to suspend the certification of any individual or firm prior to the opportunity for a hearing, it shall:

(i) Notify the affected entity of its intent to immediately suspend certification for the reasons listed in paragraph (h)(1) of this section. If a suspension, revocation, or modification notice has not previously been issued, it shall be issued at the same time the immediate suspension notice is issued.

(ii) Notify the affected entity in writing of the grounds upon which the immediate suspension is based and why it is necessary to suspend the entity's accreditation before an opportunity for a hearing to suspend, revoke, or modify the individual's or firm's certification.

(iii) Notify the affected entity of the commencement date and duration of the immediate suspension.

{pg 45915}

(iv) Notify the affected entity of its right to request a hearing on the immediate suspension within 15 days of the suspension taking place and the procedures for the conduct of such a hearing.

(5) Any notice, decision, or order issued by the approving authority under this section, and any documents filed by a certified individual or firm in a hearing under this section, shall be available to the public, except as otherwise provided by section 14 of TSCA or by part 2 of this title. Any such hearing at which oral testimony is presented shall be open to the public, except that the Presiding Officer may exclude the public to the extent necessary to allow presentation of information which may be entitled to confidential treatment under section 14 of TSCA or part 2 of this title.

(j) Effective date.

(1) Training providers shall not provide, or claim to provide training for certification without accreditation from the Agency pursuant to Sec. 745.225 after Insert date 2 years and 180 days after publication of the final rule.

(2) No person shall engage in lead-based paint activities without certification from the Agency, pursuant to Sec. 745.226 after Insert date 3 years after publication of the final rule.

Sec. 745.228 -- Standards for conducting lead-based paint activities.

(a) Inspection in target housing. An inspection is a surface-by-surface investigation for the presence of lead-based paint conducted by a certified inspector technician or inspector/risk assessor according to the procedures in this paragraph.

(1) An inspection shall be conducted only by persons certified by the appropriate approving authority as an inspector technician or inspector/risk assessor.

(2) When conducting an inspection, the following locations shall be tested for the presence of lead-based paint:

(i) All component surfaces with visible distinct painting histories in every room, of every residential dwelling chosen for inspection, as well as all exterior components with distinct painting histories of every residential dwelling chosen for testing, except those components that are known to the inspector technician or inspector risk assessor to have been replaced after 1980.

(ii) All components with distinct visible painting histories in every common area, except those components that are known to the inspector technician or inspector risk assessor to have been replaced after 1980.

(3) Testing for the presence of lead-based paint shall be conducted by documented methodologies which incorporate adequate quality control procedures.

(4) If testing of paint chip samples is being conducted utilizing laboratory analysis:

(i) Paint chips should be collected according to the procedures found in the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing unless EPA issues regulations on this subject pursuant to section 402 of TSCA.

(ii) All samples shall be sent for analysis to a laboratory recognized by EPA as being capable of performing these activities.

(5) If using X-Ray Fluorescence Spectroscopy (XRF) to test for the presence of lead-based paint, XRF should be used according to the procedures found in the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing unless EPA issue regulations on this subject pursuant to section 402.

(6) The following information shall be recorded in a written inspection report by an inspector technician or inspector/risk assessor when conducting an inspection:

(i) Date of inspection.

(ii) Address of buildings and units.

(iii) Date of construction of buildings and units.

(iv) Unit numbers (if applicable).

(v) Name, address, and telephone number of the owner of buildings and units.

(vi) Name and signature of certified inspector technician and inspector/risk assessor conducting testing, including certification or license numbers.

(vii) Name, address, and telephone number of the certified firm employing each inspector technician or inspector/risk assessor.

(viii) Name, address, and telephone number of each recognized laboratory conducting an analysis of collected samples.

(ix) Each testing device and/or sampling procedure employed, and if used, the serial number of any XRF device.

(x) Precise locations of all components and surfaces on components tested/sampled.

(xi) All data collected using on-site testing devices.

(xii) A list of all tested surfaces (components) found, either through on-site testing or laboratory analysis, to contain lead-based paint, as defined in Sec. 745.3, and those surfaces that did not contain lead-based paint.

(xiii) Any recommendation by an inspector technician or inspector/risk assessor regarding the need for additional testing or a risk assessment.

(7)(i) Reports and plans required under paragraph (a)(6) of this section shall be maintained by the owner of the residence or building, and the certified firm that conducted the inspection for no less than 3 years.

(ii) This information is subject to the disclosure requirements developed under section 1018 of the Residential Lead- Based Paint Hazard Reduction Act of 1992 in subpart E, "Residential Property Renovation."

(b) Risk assessment in target housing. A risk assessment is an on-site investigation conducted according to the procedures in this paragraph by a certified inspector/risk assessor to determine the existence, nature, severity, and location of lead- based paint hazards and the provision to the property owner/occupant of a report explaining the results of the investigation and providing options for reducing lead-based paint hazards with a rationale for those options.

(1) Any risk assessment, or other lead hazard assessment activity shall be conducted only by persons certified by the appropriate approving authority as an inspector/risk assessor.

(2) Background information regarding the physical characteristics of the unit and residential use patterns shall be collected, and shall include the following information:

(i) A schematic site plan showing each room within the/every unit, its use and the number of children under age 6 currently residing in the unit.

(ii) The age of the structure and any additions thereto.

(iii) A copy of any previous test results or inspections regarding lead-based paint or other assessments for lead-related hazards.

(iv) A description of any lead-related health problems for either children or adults in the residence, provided such information is made available to the inspector/risk assessor by the residents.

(v) Other available information that the risk assessor determines is necessary to characterize occupant use patterns that may generate or contribute to lead-based paint hazards.

(3) A visual inspection to determine the condition of all painted surfaces shall be completed by the inspector/risk assessor.

(4) Dust samples shall be collected within each selected unit according to the following procedures by an inspector/technician or the inspector/risk assessor:

(i) Parts of the living area where children are most likely to come into

{pg 45916}

contact with dust as determined by the risk assessor shall be sampled.

(ii) The samples shall be sent for analysis to a laboratory recognized by EPA as being capable of performing these activities.

(5) Where applicable, dust samples shall be collected by an inspector/technician or inspector/risk assessor in the following common areas:

(i) In buildings three floors or less, collect samples from common areas adjacent to the sampled unit. Additional samples shall be collected in the following common areas:

(A) Entry area of building.

(B) First level landing above the ground floor.

(ii) In buildings containing four floors or more, collect samples from floor and window sills of common areas (if present).

(iii) The samples shall be sent for analysis to a laboratory recognized by EPA as being capable of performing these activities.

(6) Any paint found to be deteriorated, or any other area that the inspector/risk assessor, in their professional opinion, shall be tested by an inspector/technician or the inspector/risk assessor according to the procedures found in paragraph (a)(4) of this section and, if applicable, paragraph (a)(5) or (a)(6) of this section in order to determine lead concentrations.

(7) Randomly selected soil samples shall be collected by an inspector/technician or inspector/risk assessor and analyzed in order to adequately characterize the lead concentrations in the following areas:

(i) Exterior play areas.

(ii) Areas containing bare soil.

(iii) Dripline/foundation areas.

(iv) The samples shall be sent for analysis to a laboratory recognized by EPA as being capable of performing these activities.

(8) The following information shall be recorded in a risk assessment report by a certified inspector/risk assessor when conducting a risk assessment for lead-based paint hazards in target housing:

(i) Date of assessment.

(ii) Address of residences and buildings.

(iii) Date of construction of residences and buildings.

(iv) Unit numbers (if applicable).

(v) Name, address, and telephone number of the owner of residences and buildings.

(vi) Name of each occupant of the residences and buildings at the time of assessment (if applicable).

(vii) Name and signature of certified inspector/risk assessor conducting the assessment, including their certification or license number.

(viii) Name, address, and telephone number of the certified firm employing each inspector/risk assessor.

(ix) Name, address, and telephone number of each recognized laboratory conducting analysis of collected samples.

(x) Any background information collected.

(xi) Results of the visual inspection.

(xii) Testing method and sampling procedure for paint analysis employed.

(xiii) Precise locations of all painted surfaces (components) tested for the presence of lead-based paint.

(xiv) All data collected from on-site testing.

(xv) All results of laboratory analysis on collected paint, soil, and dust samples.

(xvi) Any other sampling results.

(xvii) An evaluation, to the extent that they are utilized as part of the hazard determination, of the adequacy of any previous inspections or analyses of the presence of lead-based paint, or other assessments of lead related hazards.

(xviii) A detailed description of recommended control strategies for reducing lead-based paint hazards and justification for the strategy selected, the locations where the recommended actions should take place, and a suggested prioritization for taking each action, based on the immediacy of the hazard.

(9) Reports and plans required under paragraphs (b)(2) and (b)(8) of this section shall be maintained by the owner of the residence or building, and the certified individual or firm that conducted the risk assessment for no less than 3 years. This information is also subject to the disclosure requirements under section 1018 of the Residential Lead- Based Paint Hazard Reduction Act of 1992 in subpart E of this part, "Residential Property Renovation."

(c) Abatement in target housing. (1) Abatement means any set of measures designed to permanently eliminate lead-based paint hazards in accordance with the standards established by the Administrator in this section. Such term includes:

(i) The removal of lead-based paint and lead-contaminated dust, the permanent containment or encapsulation of lead-based paint, the replacement of lead-painted surfaces or fixtures, and the removal or covering of lead- contaminated soil.

(ii) All preparation, cleanup, disposal, and post-abatement clearance testing activities associated with such measures.

(2) Abatement shall be presumed in the following circumstances:

(i) Projects for which there is a written contract stating that an individual or firm will be conducting activities in or to a dwelling unit that will permanently eliminate lead-based paint hazards.

(ii) Projects involving the permanent elimination of lead-based paint or lead- contaminated soil and conducted by firms or individuals certified in accordance with this part.

(iii) Projects involving the permanent elimination of lead-based paint or lead-contaminated soil and conducted by firms or individuals who, through their company name, promotional literature, or otherwise, advertise or hold themselves out to be lead abatement professionals.

(3) An abatement shall be conducted only by an individual certified by the appropriate approving authority as a worker or supervisor.

(4) A supervisor, certified by the appropriate approving authority, shall be assigned to each abatement project and available by phone and able to be present physically at the worksite within 2 hours of when abatement activities are being conducted.

(5) The certified abatement project supervisor, and the certified firm employing that supervisor are responsible for ensuring completion of all abatement activities conducted in target housing according to the standards of this section and all other Federal, State and local regulations.

(6) Notification of the commencement of lead-based paint abatement activities must be presented, for their information, to the approving authority, according to the procedures established by the approving authority, prior to the commencement of abatement activities.

(7) A written pre-abatement plan shall be developed for lead abatement firms by a certified planner project designer (or by a supervisor for projects with less than 10 units to be abated), and shall contain the following elements:

(i) Measures taken to ensure worker protection which are consistent with all Federal, State, and local regulations; hazard recognition and control procedures; and information and training to be provided to abatement workers.

(ii) Measures taken to ensure compliance with all Federal, State, and local environmental regulations.

(iii) An occupant protection program, unique to each unit and developed prior to the abatement, that describes the measures that will be taken during the abatement to protect the building occupants, the method of verification

{pg 45917}

that will be utilized to document this protection, and contains the following:

(A) In plans which require the relocation of occupants, post-abatement dust clearance levels must be met as described in paragraph (c)(9) of this section, before re- occupancy.

(B) Duration of abatement activities.

(C) Access to facilities and exits.

(D) Total area involved.

(E) Specifications for the use of containment.

(8) If any exterior abatement of lead- based paint is planned, pre-abatement composite soil samples, consisting of at least four sub-samples shall be taken next to the foundation or from the dripline below any exterior surface to be abated, unless this information is available from a current risk assessment.

(i) The samples shall be sent for analysis to a laboratory recognized by EPA as being capable of performing these activities.

(ii) Reserved

(9) The following post-abatement clearance procedures for units that have been abated shall be performed by a certified inspector/risk assessor:

(i) Following an abatement, a visual inspection shall be performed by the inspector technician or inspector/risk assessor to determine if there are any deteriorated surfaces or visible amounts of dust. If deteriorated surfaces or visible amounts of dust are present these conditions must be corrected and recleaned prior to the continuation of the clearance procedures.

(ii) Surface dust samples shall be taken no sooner than 24 hours after completion of final post abatement clean- up activities.

(iii) All dust samples shall be sent for analysis to a laboratory recognized by EPA as being capable of performing these activities.

(iv) The following locations shall be sampled for lead containing dust by an certified inspector technician or inspector/risk assessor:

(A) After removing lead-based paint from components throughout a unit, three dust samples shall be taken from each area in every unit abated. One sample shall be taken from one window sill, one window well, and one floor of each area, if available.

(B) After removing lead-based paint from components in a portion of the unit, procedures in paragraph (c)(9)(iv)(A) of this section shall be followed and one sample from outside the containment area (within 10 feet) shall be taken.

(C) Following a complete replacement or encapsulation of surfaces coated with lead- based paint, samples shall be taken from each area in every unit abated. One sample each shall be collected from window wells, window sills, and floors.

(D) Following a partial replacement or encapsulation of surfaces coated with lead-based paint, the procedure stated in paragraph (c)(9)(iv)(C) of this section shall be followed and one sample from outside the work area (within 10 feet) shall be taken.

(E) Following an exterior abatement, at least one sample shall be taken from an adjacent horizontal surface in the outdoor living area, including but not limited to, a patio, deck, porch, or stoop.

(v) In each area within an individual unit, the inspector/risk assessor shall compare the residual lead dust level (as determined by the laboratory analysis) from each dust sample with the clearance levels for lead in dust on floors, window sills, window wells, and exterior surfaces, as established in the HUD Guidelines for the Evaluation and Controls of Lead-Based Paint Hazards in Housing, unless superseded by any clearance levels that the Agency may establish pursuant to section 403 of TSCA. If any of the area's residual dust levels exceed these clearance levels, the area shall be cleaned again and retested until the clearance levels are met. If the dust levels continue to exceed the clearance levels, alternate hazard control strategies should be considered for use. Until all applicable clearance levels for lead in dust are met, the area shall not be cleared for re-occupancy.

(vi) Once all residual lead levels for an area meet or fall below the clearance levels for lead in dust, and there is no deteriorated paint or visible dust present, the area shall be cleared for re-occupancy by the certified inspector/risk assessor.

(10) The following procedures for determining whether soil clearance lead levels have been met shall be performed by a certified inspector/technician or inspector/risk assessor:

(i) Composite soil samples consisting of at least four subsamples shall be taken after all exterior abatement work from the dripline or next to the foundation below any exterior surface abated.

(ii) Samples shall be sent for analysis to a laboratory recognized by EPA as being capable of performing these activities.

(iii) A statistical analysis, such as, but not limited to, a paired student T-test shall be used to determine if the post- abatement soil lead level had increased at a statistically significant level (significant at the 95 percent confidence limit) from the pre-abatement soil lead level following exterior abatement activities.

(iv) If soil lead levels do not show a statistically significant increase in lead concentrations based on a statistical analysis at the 95 percent confidence limit after abatement, no remediation is required.

(v) If the soil lead levels do show a statistically significant increase, above any applicable Federal or State standard for lead in residential soil, based on the statistical analysis at the 95 percent confidence limit, the measured level of lead in the soil shall be remediated back to the pre-abatement level or abatement of the soil shall be conducted according to the standards in paragraph (j) of this section.

(11) All waste from abatement projects shall be disposed in accordance with the requirements of the Resource Conservation and Recovery Act and any other applicable Federal, State and local laws and regulations.

(12) The following information shall be recorded in a written report by the certified supervisor when conducting abatement for lead-based paint hazards in target housing:

(i) Start and completion dates of abatement.

(ii) The name and address of each certified firm conducting the abatements, and the name of each supervisor assigned to the abatement project.

(iii) The name and address and signature of each certified inspector/risk assessor or inspector technician conducting clearance sampling and the date of clearance testing.

(iv) The results of clearance testing, the name of each recognized laboratory that conducted the analyses, and the name and signature of the person conducting the analysis.

(v) A detailed written description of the abatement, including abatement methods used, locations of rooms and/or components where abatement occurred, and reason for selecting particular abatement methods for each component.

(vi) Information on the storage, transport and disposal of any hazardous waste generated during the abatement.

(13) The certified firm conducting an abatement shall notify the approving authority prior to beginning any abatement project according to notification procedures developed by the approving authority.

(14) Reports required under paragraphs (c)(7) and (c)(12) of this section shall be maintained by the building owner and certified firm conducting the abatement activity for no less than 3 years and are subject to the disclosure requirements mandated under section 1018 of the Residential

{pg 45918}

Lead-Based Paint Hazard Reduction Act of 1992 in subpart E of this part, "Residential Property Renovation."

(d) Identification of lead-based paint in public buildings.

(1) The procedures, requirements and standards in paragraphs (a)(1) through (a)(7)(i) of this section shall be followed when identifying lead-based paint and materials containing lead-based paint in public buildings.

(2) All information collected from the identification of lead-based paint in public buildings as described in paragraph (d)(1) of this section shall be maintained by the owner of the building and certified firm responsible for the inspection for not less than 3 years.

(e) Risk assessment for public buildings.

(1) The standards in paragraphs (b)(1) through (b)(3) and (b)(4)(ii) as well as (b)(6) through (b)(9) (if applicable) of this section shall be followed when conducting a risk assessment in public buildings.

(2) All information collected from the risk assessment in public buildings as described in paragraph (e)(1) of this section shall be maintained by the owner of the building and certified firm responsible for the risk assessment for not less than 3 years.

(f) Abatement in public buildings. (1) The standards in paragraphs (c)(1) through (c)(9)(iv)(D) and (c)(11) through (c)(16) of this section shall be followed when abating a public building.

(2) Reports required under paragraph (e)(1) of this section shall be maintained by the building owner and certified firm conducting the abatement activity for a period of not less than 3 years.

(g) Demolition in public and commercial buildings and superstructures. The following standards shall be followed when conducting demolition in public and commercial buildings and steel structures:

(1) A certified supervisor shall, through a review of available documents, obtain any relevant historical information on use of lead-based paint on the building.

(2) Whenever deleading is conducted as part of a demolition, such as welding, burning, or torch cutting of lead-based paint, the standards and procedures prescribed in paragraphs (i)(1) through (i)(7) of this section shall be followed.

(h) Standards for the identification of lead-based paint in commercial buildings and superstructures. The following standards shall be followed when conducting lead-based paint identification in commercial buildings and superstructures:

(1) A certified supervisor shall, through a review of available documents, obtain any relevant historical information on use of lead-based paint on the building.

(2) If the presence of lead-based paint cannot be established as specified in paragraph (h)(1) of this section for a portion of the structure or the entire structure, a visual inspection and limited sampling shall be conducted at a rate of one sample per 1,000 square feet of surface with a distinct painting history, including any distinct finish color and maintenance painting, within the areas that the historical review was not conclusive.

(3) All samples shall be sent for analysis to a laboratory recognized by EPA as being capable of performing these activities.

(4) The following information shall be recorded in a written report by the certified supervisor when conducting lead identification activities:

(i) Date of identification activity.

(ii) Name and signature of each person making the identification.

(iii) Determinations of existence of lead-based paint based on the results of testing.

(iv) The name and address of each recognized laboratory doing paint analysis, date of analysis, results of analysis, and name and signature of the person performing the analysis.

(5) Reports required under paragraph (h)(3) of this section shall be maintained by the owner or operator of such structure or building until such time that the structure or portion of the structure that was involved in the identification is repainted.

(i) Deleading of lead-based paint in commercial buildings and superstructures. The following standards shall be followed when deleading or removing lead-based paint in commercial buildings or on superstructures:

(1) Deleading shall only be conducted by persons certified by the appropriate approving authority as a worker or supervisor.

(2) A supervisor, certified by the appropriate approving authority, shall be assigned to the deleading project and available at all times when deleading activities are being conducted.

(3) The supervisor, certified for deleading on superstructures and commercial buildings by the appropriate approving authority, and the certified firm are responsible for ensuring completion of all deleading activities conducted on superstructures according to the standards of this section.

(4) A written deleading plan shall be prepared by a certified supervisor and shall contain the following elements:

(i) Measures taken to ensure worker protection which are consistent with all Federal, State, and local regulations; hazard recognition and control procedures; and information and training to be provided to deleading workers.

(ii) Measures taken to ensure compliance with all Federal, State, and local environmental regulations.

(5) All waste shall be disposed of in accordance with the appropriate requirements of the Resource Conservation and Recovery Act and any applicable Federal, State, or local requirements.

(6) A report containing the following information shall be maintained by a certified firm when conducting deleading activities on superstructures:

(i) Start and completion dates of deleading.

(ii) Names and addresses, as well as signature of each supervisor of the deleading and, their certification number(s).

(iii) The name and address of each certified firm and recognized laboratory doing any analysis, date of analysis, and name and signature of each person performing the analysis.

(iv) A detailed written description of the deleading, methods used.

(v) Identification of storage and disposal sites of all hazardous waste.

(7) The standards in paragraphs (i)(1) through (i)(7) of this section shall also be followed during deleading of lead-based paint on commercial buildings, as defined by Sec. 745.223.

(8) Reports required under paragraph (i)(7) of this section shall be maintained by the owner or oversight agency of such structure until that structure or portion of that structure is repainted.

(j) Soil abatement procedures. The following standards shall be followed when conducting the abatement of lead-contaminated soil:

(1) Abatement shall only be conducted by persons certified by the appropriate approving authority as a worker or supervisor.

(2) A supervisor, certified by the appropriate approving authority, shall be assigned to the abatement project and available at all times when abatement activities are being conducted.

(3) The abatement supervisor, certified by the appropriate approving authority, and the certified firm are responsible for ensuring that all soil abatement activities are conducted according to the standards of this section.

(4) Soil abatement shall be conducted in one of the following ways.

(i) If soil removal is to be conducted, the lead-contaminated soil shall be

{pg 45919}

removed to a depth determined by the inspector/risk assessor, until such time that the Agency promulgates a regulation pursuant to section 403 of TSCA defining lead-contaminated soil.

(ii) If, after removal, the soil is to be replaced, the soil shall be replaced with non-contaminated soil, to prevent any recontamination that would pose a lead hazard.

(iii) No replacement of soil.

(iv) The contaminated soil shall be permanently covered.

(5) Soil abatement shall be conducted in a way that minimizes the likelihood that significant amounts of lead contaminated soil and dust will be blown from the site or carried away by water run-off.

(6) The following information shall be recorded in a written report by a certified firm when conducting soil abatement:

(i) Start and completion dates of abatement.

(ii) Names and addresses, as well as signature of each supervisor of the abatement and, their certification numbers.

(iii) The name and address of each certified firm and recognized laboratory doing any analysis, date of analysis, and the name and signature of each person performing the analysis.

(iv) The results of clearance and/or monitoring analysis conducted by recognized laboratories.

(v) A detailed written description of the abatement, including abatement methods used, locations of abatement, and reason for selecting each abatement method.

(vi) Identification of storage and disposal sites of all hazardous waste.

(7) Notification of the commencement of soil abatement must be presented, for their information, to the approving authority, according to the procedures established by the approving authority, prior to the commencement of abatement activities.

(8) Reports required under paragraph (j)(6) of this section shall be maintained by the owner or oversight agency of the site where soil abatement occurred and the certified individual or firm which performed the abatement for not less than 3 years.

(k) Effective date. All lead-based paint activities shall be performed pursuant to the standards contained in Sec. 745.228 after Insert date 3 years after publication of the final rule.

Sec. 745.230 -- Lead-based paint activities requirements.

Lead-based paint activities, as defined in this part, shall only be conducted according to the procedures and standards contained in Sec. 745.228 of this subpart, or according to procedures and standards adopted by States or Tribes authorized by the Administrator. No individual or firm may perform or offer to perform any lead-based activity as defined in this part, unless certified according to the procedures at Sec. 745.226.

Sec. 745.235 -- Enforcement.

(a) Failure or refusal to comply with any requirement of Sec. 745.225, 745.226, 745.228, or 745.230 is a violation of section 15 of TSCA (15 U.S.C. 2614).

(b) Failure or refusal to establish and maintain records or to permit access to or copying of records, as required by Sec. 745.225, 745.226, or 745.228, is a violation of section 15 of TSCA (15 U.S.C. 2614).

(c) Failure or refusal to permit entry or inspection as required by Sec. 745.237 and section 11 of TSCA (15 U.S.C. 2610) is a violation of section 15 of TSCA (15 U.S.C. 2614).

(d) Violators are subject to civil and criminal sanctions pursuant to section 16 of TSCA (15 U.S.C. 2615) for each violation.

Sec. 745.237 -- Inspections.

EPA may conduct reasonable inspections pursuant to the provisions of section 11 of TSCA (15 U.S.C. 2610) to ensure compliance with this part.

Sec. 745.239 -- Effective dates.

Subpart E of this part shall apply in any State that does not have an authorized program under subpart Q of this part, effective Insert date 2 years after publication of the final rule. In such States:

(a) Training providers shall not provide, or claim to provide training for certification without accreditation from the Agency pursuant to Sec. 745.225 after Insert date 2 years and 180 days after publication of the final rule.

(b) No person shall engage in lead-based paint activities without certification from the Agency, pursuant to Sec. 745.230 after Insert date 3 years after publication of the final rule.

(c) All lead-based paint activities shall be performed pursuant to the standards contained in Sec. 745.228 after Insert date 3 years after publication of the final rule.

* * * * *

Subpart Q-State Programs

Sec. 745.320 -- Scope and purpose.

The procedures established in this subpart must be followed by States that seek to administer and enforce the standards, regulations, or other requirements established under section 402 or 406 or both of the Toxic Substances Control Act.

Sec. 745.323 -- Definitions.

For purposes of this subpart, the definitions in Secs. 745.3 and 745.223, and the following definitions apply:

Indian governing body means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

Indian reservation means any federally-recognized reservation established by Treaty, Agreement, Executive Order, or Act of Congress. Sec. 745.325 -- Authorization of State programs.

(a) Submission of State application.

(1) Any State which seeks authorization from EPA to administer and enforce the provisions in subpart L of this part for section 402(a) of TSCA or the provisions of subpart E of this part for section 406 of TSCA, shall submit an application to the Administrator in accordance with the procedures of this paragraph (a).

(2) Before developing an application for authorization, a State must disseminate a public notice of intent to seek such authorization and provide an opportunity for public hearing.

(3) A State application shall be sent with three complete copies to the Administrator and shall include:

(i)(A) A copy of all existing or proposed State statutes and/or regulations relating to the State's lead-based paint activities program, including any State standards for conducting lead-based paint activities.

(B) Copies of any State laws and regulations relating to the following: provisions for assessing criminal and/or civil penalties, and denying, suspending, and revoking certifications and accreditation; provisions for right-of-entry at reasonable times, including a mechanism to address refusals; and provisions to require recordkeeping and reporting.

(ii)(A) The name of the State agency that is or will be responsible for

{pg 45920}

administering and enforcing the State program, the names and job titles of responsible officials in that agency, and addresses and phone numbers where the officials can be contacted.

(B) In the event that more than one agency is or will be responsible for administering and enforcing the State program, the State must designate a primary agency to oversee and coordinate administration and enforcement of the State program and serve as the primary contact with EPA.

(C) In the event that more than one agency is or will be responsible for administering and enforcing the State program, the following information must be provided: A description of the functions to be performed by each agency, and how the program will be coordinated by the primary agency to ensure consistency and effective administration of the lead-based paint training accreditation and certification program within the State.

(iii) A discussion of any special situations, problems, and needs pertaining to the application accompanied by an explanation of how the State intends to handle them.

(iv) A description of the resources that the State intends to devote to the administration and enforcement of the State programs.

(v) A written statement by the Governor or the Attorney General that the state has the legal authority necessary to adequately administer and enforce a State program under this subpart.

(vi) Provisions to encourage voluntary compliance with State and Federal regulations.

(b) State certification.

(1) At the time of submitting an application, the State may also certify to the Administrator that the State programs meet the requirements contained in paragraphs (c)(1)(i) and (c)(1)(ii) of this section.

(2) If this certification is contained in a State's application, the State programs shall be deemed to be authorized by EPA, until such time as the Administrator disapproves the program or withdraws the authorization. (3) If the application does not contain such certification, the State program will be authorized only after the Administrator authorizes the programs in accordance with paragraph (c) of this section.

(4) This certification must take the form of a letter from the Governor to the Administrator.

(c) EPA approval. (1) Within 180 days of receipt of a complete State application, the Administrator shall authorize the state programs or disapprove the application. The Administrator may authorize the State programs, after the opportunity for a public hearing, only if the Administrator finds that:

(i)(A) In the case of an application to authorize the State to administer and enforce the provisions in subpart L of this part for section 402(a) of TSCA, the State program is at least as protective of human health and the environment as the Federal program under subpart L of this part; and/or

(B) In the case of an application to authorize the State to administer and enforce the provisions for section 406 of TSCA, the State program is at least as protective of human health and the environment as the Federal program under subpart L of this part; and

(ii) The State program provides adequate enforcement.

(2) EPA shall notify the State of the Administrator's decision to authorize the State programs or disapprove the State's application. Upon authorization of a State program, it shall be a violation of Federal law for any person to fail or refuse to comply with any requirements of such program.

(3) If the State applies for authorization of State programs under both subparts L and E of this part, EPA may authorized one program and disapprove the other.

(d) Approving authority. (1) Upon notification of authorization, the designated State agencies will be deemed the approving authorities for purposes of administering and enforcing the State program.

(2) If a State does not have a State program to administer and enforce section 402 of TSCA or section 406 or TSCA, authorized under this section and in effect by the date which is 2 years after promulgation of this regulation, the Administrator shall, by such date, establish and enforce, a Federal program in such State, under subpart L or section 406 of TSCA, as appropriate.

(e) Modifications. When any substantial change is made in the administration or enforcement of a State program, a responsible official in the primary agency shall submit written notification of such changes to EPA.

(f) Oversight. EPA may periodically evaluate the adequacy of a State's implementation and enforcement of its authorized programs.

(g) Reports. The primary agency in each State that has an authorized program shall submit a written report to the Regional Administrator for the Region in which the State is located at least once every 12 months which includes the following information:

(1) A summary of the State's implementation and enforcement activities during the last reporting period, including a list of all enforcement actions taken.

(2) Any changes in the content, administration or enforcement of the State program implemented during the last reporting period.

(3) Other reports as may be required by EPA to carry out effective oversight of a State program.

(h) Withdrawal of authorization. (1) If EPA concludes that a State is not administering and enforcing an authorized program in compliance with the standards, regulations, and other requirements of Title IV of TSCA and this part, the Administrator shall notify the primary agency in the State in writing and indicate EPA's intent to withdraw authorization of the State program.

(2) The notice will:

(i) Identify the program aspects that EPA believes are inadequate and provide a factual basis for such findings.

(ii) Include copies of relevant documents.

(iii) Provide an opportunity for the State to respond either in writing or at a meeting with appropriate EPA officials.

(3) EPA may request that an informal conference be held between appropriate State and EPA officials.

(4) Prior to issuance of a withdrawal, a State may request that EPA hold a public hearing. At this hearing, EPA, the State, and or the public may present facts bearing on whether the State's authorization should be withdrawn.

(5) If EPA finds, on the basis of information submitted by the State or at the conference that deficiencies did not exist or were corrected by the State, EPA may withdraw its notice of intent to rescind authorization.

(6) Where EPA finds that deficiencies in the State program exist, a plan to correct the deficiencies shall be jointly prepared by the State and EPA. The plan shall describe the deficiencies found in the State program, specify the steps the State has taken or will take to remedy the deficiencies, and establish a schedule, no longer than 180 days, for each remedial action to be initiated.

(7) If no hearing is requested within 60 days of issuance of the Notice of Intent to Rescind, and an agreement is not reached within 180 days after the Agency determines that a State is not in compliance with the Federal program, the Agency shall issue an order withdrawing the State's authorization.

Sec. 745.327 -- Authorization of Indian Tribal Programs.

(a) On Indian Reservations, the appropriate Indian Governing Body may seek to administer and enforce the provisions in subpart L of this part for section 402(a) of TSCA or the provisions of subpart E of this part for section 406 of TSCA, in lieu of the Federal program.

(b) If the Indian Governing Body seeks to develop, administer, and enforce these provisions, it shall follow the procedures in Sec. 745.325 to receive authorization from EPA to do so.

(c) Nothing in this section is intended either to confer or deny jurisdiction to the States over Indian Reservations not already conferred or denied under other laws or treaties.

{pg 45921}

Sec. 745.330 -- Grants.

The Administrator or his designate, may make grants to States and Indian Governing Bodies under section 404(g) of TSCA to develop and carry out programs authorized pursuant to Secs. 745.325 and 745.327.

Sec. 745.339 -- Effective dates.

State and Tribal programs may seek authorization of their programs pursuant to Subpart Q effective Insert date of publication of the final rule.

INTERNAL DATA: FR Doc. 94-21578; Filed 9-1-94; 8:45 am; BILLING CODE 6560-50-F?