[Federal Register Volume 80, Number 244 (Monday, December 21, 2015)]
[Notices]
[Pages 79335-79336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31994]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2015-0780; FRL-9939-68]


Lead; Renovation, Repair and Painting Program; Lead Test Kit; 
Notice of Opening of Comment Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA is opening a comment period to allow for further public 
comment on lead test kits and other field testing options as suggested 
in EPA's Fiscal Year 2015 Appropriations Act policy rider. Among other 
things, the 2008 Lead Renovation, Repair, and Painting rule (RRP) 
established performance recognition criteria for lead test kits for use 
as an option to determine if regulated lead-based paint is not present 
in target housing and child-occupied facilities. The use of an EPA-
recognized lead test kit, when used by a trained professional, can 
reliably determine that regulated lead-based paint is not present by 
virtue of a negative result. The RRP rule also established negative 
response and positive response criteria for lead test kits recognized 
by EPA. No lead test kit has been developed that meets the positive 
response criterion. On June 4, 2015, EPA hosted a public meeting and 
webinar to solicit input from stakeholders in an effort to understand 
the current state of the science for lead test kits and lead-based 
paint field testing alternatives, as well as the existing market and 
potential availability of additional lead test kits. To date, no 
company's lead test kit has met both the negative response and positive 
response criteria outlined in the RRP rule. Based on stakeholder input, 
EPA is unaware of any lead test kit available now or in the foreseeable 
future that would meet both of the performance criteria.

DATES: Comments must be received on or before February 19, 2016.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2015-0780, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave. NW., Washington, DC 20460-0001.
     Hand Delivery: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at http://www.epa.gov/dockets. The docket for this action will remain open until 
February 19, 2016.

FOR FURTHER INFORMATION CONTACT: For technical information contact:
    The Agency's lead information Contact Us form at http://www2.epa.gov/lead/forms/contact-us or visit www2.epa.gov/lead. You may 
also contact Toiya Goodlow, National Program Chemicals Division 
(7404M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; 
telephone number: (202) 566-2305; email address: [email protected].
    For general information contact: The National Lead Information 
Center, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; 
telephone number: 1-800-424-LEAD (5323); online information request 
form: http://www2.epa.gov/lead/forms/lead-hotline-national-lead-information-center.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This document is directed to stakeholders that develop, manufacture 
and/or sell lead test kits or other lead-based paint field testing 
instruments. You may be potentially affected by this action if you 
manufacture or sell lead test kits, or if you use lead test kits to 
determine if lead-safe work practices are required under the RRP rule 
to perform renovations for compensation in target housing or child-
occupied facilities. Examples of child-occupied facilities are day-care 
centers, preschools, and kindergarten classrooms.

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

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When preparing and submitting 
your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

II. What action is the Agency taking?

    On April 22, 2008, EPA published the Lead Renovation, Repair, and 
Painting rule. It requires contractors to use lead-safe work practices 
during renovation, repair, and painting activities that disturb lead-
based paint in target housing and child-occupied facilities built 
before 1978 unless a determination can be made that no lead-based paint 
would be disturbed during the renovation or repair (Ref. 1). The use of 
an EPA-recognized lead test kit, when used by a trained professional, 
can reliably determine that regulated lead-based paint is not present 
by virtue of a negative result. The federal standards for lead-based 
paint in target housing and child-occupied facilities is a lead content 
in paint that equals or exceeds a level of 1.0 milligram per square 
centimeter (mg/cm\2\) or 0.5 percent by weight. If regulated lead-based 
paint is not present, there is no requirement to employ lead-safe work 
practices under the RRP rule.
    The RRP rule established negative response and positive response 
criteria outlined in 40 CFR 745.88(c) for lead test kits recognized by 
EPA. Lead test kits recognized before September 1, 2010, must meet only 
the negative response criterion outlined in 40 CFR 745.88(c)(1). The 
negative response

[[Page 79336]]

criterion states that for paint containing lead at or above the 
regulated level, 1.0 mg/cm\2\ or 0.5% by weight, a demonstrated 
probability (with 95% confidence) of a negative response less than or 
equal to 5% of the time must be met. The recognition of kits that meet 
only this criterion will last until EPA publicizes its recognition of 
the first lead test kit that meets both the negative and positive 
response criteria outlined in the rule.
    Lead test kits recognized after September 1, 2010, must meet both 
the negative response and positive response criteria outlined in 40 CFR 
745.88(c)(1) and (2). The positive response criterion states that for 
paint containing lead below the regulated level, 1.0 mg/cm\2\ or 0.5% 
by weight, a demonstrated probability (with 95% confidence) of a 
positive response less than or equal to 10% of the time must be met. 
Qualitatively speaking, lead test kits recognized by EPA should also 
serve as a quick, inexpensive, reliable, and easy to perform option for 
lead-based paint testing in the field.
    To date no lead test kit has met both of the performance criteria 
outlined in the RRP rule. However, there are two EPA-recognized lead 
test kits commercially available nationwide that meet the negative 
response criterion and continue to be recognized by EPA on such basis.
    The report accompanying the EPA Fiscal Year 2015 Appropriations Act 
included a policy rider that states:

    Lead Test Kit-In 2008, EPA adopted the Lead Renovation, Repair, 
and Painting rule which included criteria by which the Agency could 
certify a test kit that contractors could use onsite to comply with 
the rule; yet, 6 years later no kit has been developed that meet 
these standards. The Agency is directed to prioritize efforts with 
stakeholders in fiscal year 2015 to identity solutions that would 
allow for a test kit to meet the criteria within the 2008 rule to 
reduce costs for consumers, remodelers and families to comply with 
the rule. If no solution is reached by the end of the fiscal year, 
EPA should revisit the test kit criteria in the 2008 rule and 
solicit public comment on alternatives (Ref. 2).

    In response, EPA solicited input from stakeholders in an effort to 
understand the current state of the science for lead test kits and 
lead-based paint field testing alternatives, as well as the existing 
market and potential availability of additional lead test kits (Ref. 
3). On June 4, 2015, EPA hosted a public meeting and webinar with 
stakeholders including lead test kit developers and manufacturers, non-
governmental organizations, trade associations, National Lead 
Laboratory Accreditation Program (NLLAP) accreditation organizations 
and laboratories, and state and federal government staff members. 
Ninety-five people participated in the meeting and 12 public comments 
were submitted to the public docket. EPA also held three individual 
meetings with lead test kit developers and trade associations.
    EPA has carefully reviewed the comments and recommendations 
received through these stakeholder outreach efforts. Stakeholders 
provided comments on the following topics: lead test kits, X-Ray 
Fluorescence (XRF) testing, limiting the scope of the RRP rule, NLLAP 
testing, the lead-based paint definition, EPA's Environmental 
Technology Verification (ETV) Program, the economic analysis supporting 
the RRP rule, and harmonization of regulatory standards. Based on 
stakeholder input, EPA is unaware of any lead test kit available now or 
in the foreseeable future that would meet both the positive response 
and negative response criteria. EPA concluded that no recommendation 
received thus far would provide an immediate solution to allow for a 
lead test kit that would meet both of the performance criteria and have 
the potential to ``reduce costs for consumers, remodelers and 
families,'' per the EPA Fiscal Year 2015 Appropriations Act policy 
rider.
    At this time, EPA has no plans or resources to sponsor additional 
testing of kits as was done previously through the agency's ETV 
Program. However, lead test kit manufacturers are allowed at any time 
to submit to EPA data on their kit's performance that is based on an 
EPA approved ETV-equivalent test protocol. If a newly-developed lead 
test kit is shown to meet both the positive response and negative 
response criteria, EPA would recognize the lead test kit as meeting 
both criteria under 40 CFR 745.88(c).
    Given this current status and the input received from stakeholders, 
EPA is opening a comment period to allow for further public comment on 
lead test kits and other field testing options as suggested in EPA 
Fiscal Year 2015 Appropriations Act policy rider. Without proposing any 
regulatory amendments at this time, EPA is specifically soliciting 
comment on the following potential lead test kit and field testing 
options:
     Proposing to eliminate the positive response criterion;
     Proposing to modify the positive response criterion;
     Maintaining the current negative response and positive 
response criteria;
     Proposing to provide reduced RRP certification training 
requirements for XRF technicians; and
     Exploring any other lead-based paint field testing 
technology that would provide reduced costs for consumers, remodelers 
and families to comply with the RRP rule.
    Commenters should provide technical information and data used to 
substantiate your recommendation. See the commenting tips at http://www2.epa.gov/dockets/commenting-epa-dockets#tips for further 
information on preparing and submitting comments. Comments must be 
received on or before February 19, 2016.
    Additionally and separately, EPA will provide a subsequent 
opportunity to provide public comment through the Regulatory 
Flexibility Act, section 610, review of the RRP rule. Public comments 
requested at that time will be related to broader stakeholder 
recommendations regarding the RRP rule. For more information about the 
Regulatory Flexibility Act, section 610, reviews, please visit http://www2.epa.gov/reg-flex/section-610-reviews.

III. References

    As indicated under ADDRESSES, a docket has been established for 
this notice under docket ID number EPA-HQ-OPPT-2015-0780. The following 
is a listing of the documents that are specifically referenced in this 
document. The docket includes these documents and other information 
considered by EPA, including documents that are referenced within the 
documents that are included in the docket, even if the referenced 
document is not physically located in the docket. For assistance in 
locating these other documents, please consult the technical person 
listed under FOR FURTHER INFORMATION CONTACT.

1. EPA. Lead; Renovation, Repair, and Painting Program; Final Rule, 
Federal Register, April 22, 2008 (73 FR 21692) (FRL-8355-7).
2. 160 Cong. Rec. H9,307, H9,767 (daily ed. Dec. 11, 2014) 
(Explanatory Statement Submitted by Mr. Rogers of Kentucky, Chairman 
of the House Committee on Appropriations regarding the House 
Amendment to the Senate Amendment on H.R. 83) (mentioning lead test 
kits).
3. EPA. Lead; Renovation, Repair and Painting Program; Lead Test Kit 
Stakeholder Meeting; Notice of Public Meeting. Federal Register, May 
14, 2015 (80 FR 27621) (FRL-9927-40).


    Authority: 15 U.S.C. 2601 et seq.

    Dated: December 14, 2015.
James Jones,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2015-31994 Filed 12-18-15; 8:45 am]
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