Wednesday
March 9, 1994
Part II
Environmental
Protection Agency
40 CFR Part 745
Lead; Requirements for Hazard Education
Before Renovation of Target Housing;
Proposed Rule
Lead Hazard Information Pamphlet;
Notice of Availability; Notice
Recycled/Recyclable
Printed with Soy/Canda Ink on paper that
contains at least 50% recycled fiber
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11108 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 745
[OPPTS-62131; FRL-4637-5]
RIN 2070-AC65
Lead; Requirements for Hazard
Education Before Renovation of Target
Housing
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Proposed rule.
SUMMARY: As mandated by Title IV of
the Toxic Substances Control Act, EPA
proposes requirements to ensure that
owners and occupants of target housing
fully understand the potential hazards
of lead-based paint exposure before
certain renovations are begun on that
housing. Specifically, before renovating
target housing for compensation,
renovators would be required to provide
an EPA lead hazard information
pamphlet to the owners and occupants
of the housing. In addition to providing
general information on the health
hazards associated with lead, this
information pamphlet would advise
owners and occupants to take
appropriate precautions to avoid
exposures to lead-contaminated dust
and lead-based paint debris that is
sometimes generated during
renovations.
DATES: Written comments in response to
this proposed rule must be received on
or before May 9,1994. If persons request
an opportunity for oral comment, EPA
will consider holding an informal
hearing in Washington, DC. The exact
date, time, and location of such a
hearing, if held, will be announced in
the Federal Register. Requests for oral
comment must be received by April 8,
1994. EPA will decide whether to hold
such a hearing by April 28,1994.
ADDRESSES: Submit three copies of all
written comments to: TSCA Document
Receipts (7407), Rm. NE-G99, Office of
Pollution Prevention and Toxics,
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460. All
comments on this proposed rule should
be identified by the docket number
OPPTS-62131. For further information
regarding the submission of comments
containing confidential business
information, see Unit X of this
preamble.
FOR FURTHER INFORMATION CONTACT: For
general information contact: Susan B.
Hazen, Director, Environmental
Assistance Division (7408), Office of
Pollution Prevention and Toxics,
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460,
Telephone: 202-554-1404, TDD: 202-
554-0551. For technical information
contact: Charles Franklin, Chemical
Management Division (7404), Office of
Pollution Prevention and Toxics,
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460,
Telephone: 202-260-1781, Fax number:
202-260-0770.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
This proposed rule is issued under
the authority of section 406(b) of the
Toxic Substances Control Act (TSCA),
15 U.S.C. 2686(b). TSCA was amended
in 1992 to add Title IV, entitled Lead
Exposure Reduction, by section 1021 of
the Residential Lead-Based Paint Hazard
Reduction Act of 1992, Pub. L. 102-550.
II. Background
A. Legal Background
In 1992, Congress, recognizing the
need to control the hazards of exposure
to lead-based paint, passed the
Residential Lead-Based Paint Hazard
Reduction Act of 1992, Pub. L. 102-550
("the Act"). Congress recognized that
lead-poisoning is a particular threat to
children under age 6, and emphasized
the needs of this vulnerable population
within the Act. The stated purposes of
the Act are: (1) To develop a 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; (4) to ensure that the
existence of lead-based paint hazards is
taken into account in the development
of Government housing policies and in
the sale, rental, and renovation of homes
and apartments; (5) to mobilize national
resources expeditiously, through a
partnership among all levels of
government and the private sector, to
develop the most promising, cost-
effective methods for evaluating and
reducing lead-based paint hazards; (6) to
reduce the threat of childhood lead-
poisoning in housing owned, assisted,
or transferred by the Federal
Government; and (7) to educate the
public concerning the hazards and
sources of lead-based paint poisoning
and steps to reduce and eliminate such
hazards (section 1003 of the Act).
Actions under some sections of the
Act are to be developed and
administered by the Department of
Housing and Urban Development
(HUD), some by EPA, and some jointly
accomplished by both agencies. Several
of the sections call for EPA consultation
with other Federal agencies. Section
1021 of the Act amends TSCA (15
U.S.C. 2601, et seq.) by adding Title IV,
entitled "Lead Exposure Reduction."
Today's proposed rule is issued under
the authority of section 406(b) of
TSCA's Title IV. Section 406(b) directs
EPA to issue requirements for the
provision of a lead hazard pamphlet
(developed under section 406(a)) to
owners and occupants of target housing
before persons performing renovation
work for compensation begin such
activities.
Below is a more detailed discussion of
several related provisions of the Act
which provides context for many of the
decisions made during the development
of vthis proposed rule.
Section 406(a) of TSCA requires EPA
to publish, after consultation with HUD
and the Department of Health and
Human Services (HHS), and after notice
and an opportunity for public comment,
a pamphlet on lead and the hazards of
exposure to lead-based paint in the
home. The availability of this pamphlet
for public comment is published
elsewhere in this issue of the Federal
Register. Following the 60-day
comment period, EPA will incorporate
comments as appropriate and announce
the availability of the revised final
version of the pamphlet in the Federal
Register. In addition to outlining health
effects and symptoms of lead exposure,
section 406(a) requires that this
pamphlet contain information on the
potential hazards of renovating
dwellings containing lead-based paint;
recommend the performance of an
inspection or risk assessment for lead-
based paint before beginning
renovations in target housing; suggest
precautionary measures for protecting
occupants during renovations in homes
containing lead-based paint; and
identify Federal, State, and local sources
of information on lead and lead-based
paint.
Section 402(c)(l) of TSCA directs EPA
to issue guidelines for the conduct of
renovation and remodeling activities
which may create a risk of exposure to
dangerous levels of lead when
performed in target housing, public
buildings constructed before 1978, and
commercial buildings.
Section 401 of TSCA provides a
general definition of a lead-based paint
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Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules 11109
hazard. Congress directed EPA under
section 403 to issue regulations defining
this term more specifically.
Section 404 of TSCA directs EPA to
develop an application process for those
States or Tribes which seek to
administer and enforce the standards,
regulations, and requirements
established under sections 402 and/or
406. Section 404 also directs EPA to
develop and issue a Model State
Program for use by States/Tribes
pursuing authorization under these
provisions. The authorization process
for States and Tribes will be proposed
by EPA in a separate rulemaking in the
Federal Register, including specific
definitions for the terms "State" and
"Tribe." This proposed rule does,
however, include information on the
model State/Tribal program for the
provisions required under section 406.
Two sections of the Residential Lead-
Based Paint Hazard Reduction Act of
1992 also require the dissemination of
EPA's lead hazard pamphlet that is
being developed pursuant to section
406(a) of TSCA. First, section 1018
requires EPA and HUD to promulgate
joint regulations for disclosure of lead-
based paint hazards in target housing
which is offered for sale or lease. The
section 1018 regulations include the
requirement that the lead hazard
pamphlet be given to prospective
purchasers or lessees. Section 1018
requirements will be proposed by EPA
and HUD in a joint rulemaking in a
future issue of the Federal Register.
Second, section 1012 amends section
302 of the Lead-Based Paint Poisoning
Prevention Act (42 U.S.C 4822) to
require the provision of EPA's lead
hazard information pamphlet to
purchasers and tenants of Federally-
assisted housing by the Secretary of
HUD. The section 1021 requirements are
being developed by HUD as a separate
initiative.
B. Lead Background
1. Lead and lead-based paint. Lead is
a soft, bluish metallic element mined
from rock and found in its natural state
all over the world. Lead is virtually
indestructible, is nonbiodegradable, and
has been known since antiquity for its
adaptability in making various useful
items. In modern times it has been used
to manufacture many different products,
including paint, batteries, pipes, solder,
pottery, and gasoline. From the turn of
the century through the 1940's, paint
manufacturers frequently used lead as a
primary ingredient in many oil-based
interior and exterior house paints. Usage
gradually decreased through the 1950's
and 60's as latex paints (which are
generally lead-free) became more
widespread. Although the Consumer
Product Safety Commission (CPSC)
banned lead-based paints from
residential use in 1978 (paint currently
may not have greater than .06 percent
lead by weight), HUD estimates that 75
percent of the houses built in the United
States before 1978 contain some lead-
based paint (Ref. 3). By current
estimations, approximately 57 million
homes may contain lead-based paint
(Ref. 3). This lead-based paint may pose
a potential hazard to the occupants
under some conditions.
2. Lead hazards. Lead affects virtually
every system of the body. While it is
harmful to individuals of all ages, lead
exposure is especially harmful to
children, fetuses, and women of
childbearing age. Results of recent
studies suggest that lead's adverse
effects occur at blood-lead levels
previously thought to be safe; in fact,
there does not yet appear to be a
discernable threshold for the adverse
effects of lead on the young.
Lead poisoning has been called "the
silent disease" because its effects often
occur gradually and imperceptibly,
showing no obvious symptoms. Over
.time, low levels of lead in the
bloodstream can cause learning
disabilities, interfere with growth, cause
permanent hearing and visual
impairment, and cause other damage to
the brain and nervous system, hi large
doses, lead can cause blindness, brain
damage, convulsions, and even death.
Lead exposure before or during
pregnancy can also affect fetal
development and cause miscarriages.
In 1991, the Secretary of HHS
characterized lead poisoning as the
"number one environmental threat to
the health of children in the United
States"(Ref. 1).
Although the percentage of children
with elevated blood-lead levels has
declined over the last 20 years with the
reduction of lead in gasoline, millions of
U.S. children still have levels of lead in
their blood high enough to seriously
threaten their health (Ref. 1).
Lead-based paint poses a health threat
through various routes of exposure.
Children under age 6 may ingest lead-
based paint chips from flaking walls,
window wells, and doors. Lead from
exterior house paint can flake off or
leach into the soil around the outside of
a home, contaminating children's
playing areas. Dust caused during
normal lead-based paint wear
(especially around windows and doors)
can create an invisible film over
surfaces in a house. In some cases,
cleaning and renovation activities can
actually increase the threat of lead-
based paint exposure by dispersing fine
lead dust particles in the air and over
accessible household surfaces. Both
adults and children can receive
hazardous exposures by inhaling the
fine dust or by ingesting paint-dust
during hand-to-mouth activities.
III. Definitions
To implement the section 406
requirements, a number of terms need to
be denned. This section will provide the
proposed regulatory definition first in
quoted text followed by an explanation
of the definition's source. Where
possible, EPA has drawn definitions
directly from Title IV of TSCA. In cases
where the statute either failed to define
terms necessary for the rule or did not
provide a complete enough definition,
EPA is proposing appropriate
definitions, along with an explanation
of their sources and discussion of
relevant issues. EPA is accepting
comment on all definitions not taken
directly from the statute.
Unless otherwise indicated, all
definitions will be located in Subpart A
at 40 CFR 745.3 (Definitions).
Definitions not included in Subpart A
would be applicable only to the specific
subpart in which they appear, in this
case, Subpart F.
a. Act means the Toxic Substances Control
Act (TSCA), 15 U.S.C. 260 et seq.
b. Administrator means the Administrator
of the Environmental Protection Agency.
c. 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.
EPA developed this definition by
modifying a definition provided in
HUD's September 1990, version of Lead-
Based Paint: Interim Guidelines for
Hazard Identification and Abatement in
Public and Indian Housing. While EPA
is proposing this definition for use
under the section 406 regulatory
requirements, which only addresses
target housing, this definition would
potentially be applicable to other
rulemakings required pursuant to TSCA
Title IV and the Residential Lead Based
Paint Hazard Reduction Act (Pub. L.
102-550). The modifications to HUD's
definition were necessary to broaden the
scope of "common area" to meet the
requirements of other rulemakings
which may refer to many types of
buildings.
d. Dwelling unit means a single, unified
combination of rooms designed for use as a
dwelling by one family.
EPA is proposing to use the same
definition promulgated by HUD in a
final rule published in the Federal
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11110
Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules
Register of August 17,1993 (58 FR
43522).
o. EPA means the Environmental
Protection Agency.
f. Lead-based paint means paint or other
surface coatings that contain lead in excess
of 1.0 milligrams per centimeter squared or
0.5 percenlby weight or (A) in the case of
paint or other surface coatings on target
housing, such lower level as may be
established by the Secretary of Housing and
Urban Development as JJefined under section
302(c) of the Lead-Based\Paint Poisoning
Prevention Act, or (B) inue case of any other
paint or surface coatings, such other level as
may be established by the Administrator.
This definition appearain section
401(9) of TSCA.
g. Lead-based paint hazard means any
condition that causes exposure to lead from
lead-contaminated dust, lead-contaminated
soil, lead contaminated paint that is
deteriorated or present in accessible surfaces,
friction surfaces, or impact surfaces that
would result in adverse human health effects
in pregnant women or young children.
This definition appears in section
401(10) of TSCA.
h. Multi-family housing means a housing
property consisting of more than four
dwelling units.
EPA has drawn this definition from
section 544 of Title V of the Community
Housing and Development Act of 1992
(Pub. L. 102-550). The provisions of
Title V are directed at HUD and do not
specifically address EPA mandates.
However, as EPA and HUD will both be
involved in developing regulations
involving lead-based paint in housing
(including multi-family housing), EPA
believes that its definition should be
consistent with both current and future
Federal lead-based paint regulations.
I. Owner means any individual,
partnership, corporation, or trusteeship that
has legal right of possession of residential
property, or any person legally authorized to
represent that individual, partnership,
corporation, or trusteeship.
EPA intends to use this definition to
clarify that the owner of the housing
should be considered the individual
possessing and managing a property,
rather than a bank or other loan-related
organization. EPA invites comment on
this definition.
j. Person means any natural person, firm,
company, corporation, joint venture,
partnership, sole proprietorship, association,
or any other business entity, any State or
political subdivision thereof, any
municipality, any interstate body, any Indian
tribe, and any department, agency, or
instrumentality of the Federal government.
EPA is proposing to use the same
definition of person as used by EPA's
Asbestos program in 40 CFR 763.63(1),
(with the additional reference to Indian
tribe) to clarify that these many types of
entities are also regulated parties.
k. Residential dwelling means (a) a single-
family dwelling, including attached
structures such as porches and stoops, or (b)
a single-family dwelling unit in a structure
that contains more than one separate
residential dwelling unit, and in which each
such unit 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.
This definition appears in section
401 (14) of TSCA.
I. State has the same meaning as in section
3 of the Toxic Substances Control Act.
m. Target housing means any housing
constructed prior to 1978, except 0-bedroom
dwellings, or 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 the dwelling). In the
case of jurisdictions which banned the sale
or use of lead-based paint prior to 1978, the
Secretary of Housing and Urban
Development, at the Secretary's discretion,
may designate an earlier date.
This definition is provided in section
401(17) of TSCA. The Act excludes
housing constructed after 1978 since
lead-based paint was banned by CPSC
from all residential use after that date.
EPA interprets the term "0-bedroom
dwelling" to mean any dwelling in
which the living area is unseparated
from the sleeping area. Under this
definition, efficiencies and studio
apartments, loft space, and single-room
dormitory units would be exempt from
the requirements of this proposed rule
unless children under 6 years of age
reside or may reside in the unit.
As directed in the statute, the
exclusions for 0-bedroom dwelling,
elderly housing, and handicapped
housing do not apply to any housing in
which children under 6 years old reside
or are expected to reside.
EPA also considered whether
Congress intended to include hotels,
motels, inns, and other commercial
lodging facilities in the term "housing."
Although not specifically stated, EPA
believes it is reasonable to interpret that
Congress" intent was to distinguish
residential housing from commercial
lodging facilities. Specifically, the
definition of target housing intends to
capture housing designed for long-term
or continuous residence (e.g.,
apartments, condominiums, and
houses), as opposed to lodging facilities
offering temporary accommodations
(e.g., hotels and motels). Given the high
frequency and short duration of
transactions, EPA believes it is
impractical to apply the requirements of
this subpart to rental transactions in
motels, hotels, and other commercial
lodging facilities. In cases where
families with children under 6 years of
age might rent or purchase such units as
long-term residences, however, EPA
believes it is consistent with the statute
for those establishments to be
considered target housing under this
subpart's requirements.
EPA requests comment on this
definition as it relates to the
requirements under section 406 of
TSCA.
n. TSCA means the Toxic Substances
Control Act (15 U.S.C. et seq.)
This definition appears in section
401(9) of TSCA.
o. Renovation means the modifying of any
existing structure, or portion thereof, where
exposure to the hazards of lead-based paint
may result, unless the activity is performed
as part of a lead abatement program by a
certified contractor, or unless otherwise
regulated by EPA in Subpart G.
Section 406(b) of TSCA directs EPA to
issue regulations governing any person
who performs for compensation, a
renovation of target housing. Because
the statute fails to define "renovation,"
EPA has sought to develop a definition
that is both consistent with existing
regulations and effective in addressing
the exposure prevention goals of the
statute. EPA is primarily concerned
with activities that may disturb existing
lead-based paint, and which may pose
a potential hazard to owners and
occupants of the housing. Although
such a distinction is not explicitly
stated in the language of section 406(b),
EPA believes that such a distinction is
consistent with the hazard reduction
goal of the Residential Lead-Based Paint
Hazard Reduction Act of 1992 and Title
IV of TSCA.
EPA is considering a number of
approaches to defining the term, and
requests comment on each approach in
terms of which could be most effectively
used (individually or in combination) to
define "renovation" for this rulemaking.
The approaches being considered
include:
1. Definition modeled after EPA's
Asbestos Program. EPA's preferred
option, as proposed in the regulatory
text, is to use a general definition drawn
from language used by EPA's Asbestos
program. In 40 CFR 763.121(b), EPA
regulations define renovation as
"Modifying of any existing structure, or
portion thereof, where exposure to
airborne asbestos may result." By
replacing references to asbestos with
lead-based paint, EPA's proposed
definition provides a flexible framework
for identifying which activities would
be regulated pursuant to the section
406(b) requirements.
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Despite the clear statutory distinction
between "renovation activities" and
"lead-based paint activities", EPA
recognizes that many of the activities
identified in the renovation definition
may also be performed as part of lead-
based paint abatement programs. In
cases where the activities being
performed meet the definition of a lead-
based paint abatement or lead-based
paint activity, EPA intends for the
activities to be regulated under the more
comprehensive section 402(a) standards
and requirements, and has therefore
included an exemption for any activity
separately regulated under the more
stringent regulations to be issued in
Subpart G. The regulations governing
performance of lead-based paint
activities will be proposed in a separate
notice in the Federal Register in the
future. At that time, EPA will propose
specific definitions for lead-based paint
activities and abatements, and will
request further comment.
One drawback of such a general
definition is that it does not provide an
objective way of identifying which
activities are of concern. This lack of
specificity may pose a problem for the
regulated community in complying with
the rule and for the government in
effectively enforcing it. For that reason,
EPA believes that this general definition
may need to be strengthened by the
incorporation of additional criteria, as
offered below.
2. Develop list of specific activities of
concern. Recognizing the need for
specific information on what activities
are defined as renovations, EPA is
considering incorporating a list of
regulated activities into the definition.
Section 402(c) of TSCA directed EPA to
conduct a study of the extent to which
persons engaged in various types of
renovation and remodeling activities in
target housing, public buildings
constructed before 1978, and
commercial buildings are exposed to
lead in the conduct of such activities. In
mandating this study, Congress clearly
did not intend for the results to be used
as the basis for developing the TSCA
section 406 renovation regulations- -the
deadline for completion of the study is
a full 12 months after the deadline for
promulgation of the final section 406
regulations. Nevertheless, as the
activities under study represent EPA's
preliminary determination regarding the
universe of activities that may be of
concern, EPA believes that they
comprise a logical set of activities for
consideration as renovation activities.
The activities being studied were
chosen based on discussions with
experts familiar with the renovation and
remodeling industry, and include the
following:
(1) Paint removal (e.g., floor
refinishing and stairs refinishing).
(2) Surface preparation for painting
(both interior and exterior).
(3) Removal of large structures other
than roof (e.g., walls, ceiling, large
surface replastering, major replumbing,
room additions).
(4) Window replacement.
(5) Enclosure of interior painted
surfaces (e.g., wallpapering).
(6) Enclosure of exterior painted
surfaces (e.g., siding).
(7) Removal of carpet or other floor
coverings (e.g., linoleum).
(8) Repairs or additions with isolated
small surface disruption (e.g., carpentry,
replacement of lead painted fixtures,
installation of light fixtures, electrical
repair and rewiring, plumbing repair,
insulation addition, furnace cleaning,
ceramic tile installation, counter top
replacement, door replacement, storm
window installation, and window
repair).
(9) Roofing replacement and repair.
(lO) Exterior soil disruption (e.g.,
landscaping, deck additions, sewer/
water line replacement or repair,
basement waterproofing, garage repair,
concrete/brick/masonry work,
driveway/walk installation, and septic
tank/cesspool replacement).
These activities represent a range of
activities that may be performed during
"renovation and remodeling." Although
section 406(b) refers specifically to
"renovations" only, EPA believes that
the commonly used meanings of the two
terms do not significantly differ and that
any of the listed activities could be
conducted as part of a renovation
program. Therefore, pending evidence
to the contrary, all of the activities noted
above could potentially merit inclusion
under EPA's definition of renovation.
EPA is requesting comment (and data,
if available) regarding which activities
should (or should not) be included in
any definition of renovation. Based on
the comments EPA receives, as well as
any new or additional relevant
information EPA collects, EPA may
define some or all of the activities listed
above as renovation activities
specifically regulated by the final rule.
EPA also may include additional
activities, if appropriate, in the final
rule's definition of renovation, and
requests comments on whether some
activities of concern may be absent from
the current list.
3. Use the Occupational Safety and
Health Administration's (OSHA) list of
construction tasks. EPA is considering
using the construction tasks identified
by OSHA as offering some risk of lead-
exposure to workers to identify
renovation activities that could result in
lead exposure to housing occupants.
These tasks were identified in the
interim final rule entitled "Lead
Exposure in Construction" (58 FR
26590, May 4,1993). EPA requests
comment on whether such tasks
adequately reflect the activities
conducted during housing renovations.
4. Identify specific job classifications.
EPA is considering using specific job
classifications that involve performing
remodeling or renovation activities that
may exacerbate the risk of lead-based
paint exposure in target housing as a
basis for identifying regulated activities.
EPA has considered several ways that
specific worker classifications could be
identified.
One approach would be to base the
listing on the worker classifications
included in EPA's study under TSCA
section 402(c). These classifications are
being studied to measure the levels of
exposure to lead-based paint stemming
from the renovation activities. The
current classifications being studied
include: Painters; floor refinishing
contractors; plaster/dry wall contractors;
exterior siding contractors; window
replacement contractors; electricians;
plumbers; roofers; linoleum/tile
contractors; carpet installers; cabinet
installers; heating/AC contractors;
carpenters; insulation contractors;
basement waterproofing contractors;
bathroom remodelers; kitchen
remodelers; landscaping/excavation
contractors; and historic renovation
contractors. These classifications were
developed through discussions with
experts and professionals familiar with
the renovation and remodeling industry.
In identifying specific job
classifications, EPA is also considering
linking the above classifications to
Standard Industrial Classification (SIC)
Codes for the business, to ensure a
common standard of identification. If
EPA could identify specific SIC codes
•that performed renovations involving
target housing and potential lead-based
paint exposure, then such a
classification would provide a clear
method for identifying regulated parties.
Currently, the Agency does not prefer
this option because of concerns that
many workers and firms may conduct
activities that spill over into activities
that don't affect lead-based paint,
raising questions of how closely SIC
codes would track the performance of
renovations in housing involving lead-
based paint. In addition, many
individuals engaged in renovation
activities may perform many different
tasks covering several job
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11112 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules
classifications, further clouding issues
of enforcement and compliance.
Regarding the whole question of
identifying job classifications, EPA
requests comment on what trades are
missing from, or inappropriate for, the
list above and whether any such list
could be practically applied.
5. Identify all home improvement
activities mthin a specified cost range.
Another option being considered is to
target all renovation, remodeling, and
home improvement activities within a
specific cost range (for example, any
home improvement costing over $250
would be considered a renovation).
While this option provides a simple
scheme for identifying regulated
activities, it does not necessarily focus
on relevant activities. Because some
inexpensive renovation activities may
pose a significant exposure hazard, EPA
is concerned that such a definition
could result in the omission of activities
that are thought to be high risk but low
in cost.
6. Identify all home improvement
activities ivithin a specified size. EPA is
also considering basing the definition of
renovation on the size of a job. For
example, size could be measured by the
number of square feet of painted surface
disturbed, the number of different
painted surfaces disturbed, or simply
the total area of the dwelling undergoing
modification. EPA's main concern with
this option is that some activities while
localized to a very small area, might
release significant amounts of lead-
based paint or lead-based paint, and that
such a criterion might fail to capture the
activities of concern. However, as it
could potentially provide a simple
method for identifying regulated
transactions, EPA requests comments on
the feasibility of such an approach.
p. Renovator means any person who
performs for compensation a renovation of
target housing or public buildings.
Although Title IV of TSCA does not
provide a definition of renovator,
section 406(b) specifically identifies the
regulated community as "each person
who performs for compensation a
renovation of target housing."
EPA recognizes that in many large
multi-family dwellings or public
buildings, renovation activities may be
performed by maintenance staff retained
by the owner of the building. Because
these individuals would still be
performing such activities for
compensation (through salary or
retainer), EPA would consider such
individuals as renovators for the
purpose of this proposed rule.
IV. Regulatory Requirements
A. Lead Hazard Information Pamphlet
Section 406(b) directs the
Administrator to promulgate regulations
"to require each person who performs
for compensation a renovation of target
housing to provide a lead hazard
information pamphlet to the owner and
occupant of such housing prior to
commencing the renovation." Section
745.87 of the regulatory text would
require renovators to provide owners
and heads-of-households occupying
target housing with copies of the
pamphlet: Lead-Based Paint: Protect
Your Family before beginning
renovations.
Recognizing that many target housing
units may be occupied by families other
than the dwelling owner, as in the case
of rental housing, EPA proposes to
require the renovator to provide the
pamphlet to the head of each household
occupying the unit(s) being renovated,
as well as to the person requesting and
paying for the renovation work. This
interpretation is supported by the
language in section 406(b), which
.explicitly states that the pamphlet must
be provided to the owner and occupant
of such housing.
In addition, because some housing
may be managed by an individual or
firm on behalf of the owner, the
regulations would allow such an agent
to represent the owner for the purposes
of the provisions of this proposed rule.
Finally, EPA recognizes that there
may be some types of renovations that
will occur in "emergency situations"
requiring action before all occupants
can be notified and before they can fully
comply with these notification
requirements. EPA requests comment on
identifying these situations and on what
may be an appropriate way to address
them under these regulations.
The final pamphlet will be available
to the public and the regulated
community through the Government
Printing Office (GPO) for a nominal fee
for both individual and bulk purchases.
EPA is also encouraging person's to
make their own reproductions of the
pamphlet, and will make a limited
number of camera-ready copies of the
final pamphlet available to
organizations that wish to print copies
for private distribution. Any copies
reproduced for use in complying with
this rulemaking, however, must be
copied in full, and may not revise or
delete material from the pamphlet
except to add or revise State or local
sources of information. EPA requests
comment on other mechanisms for
distributing the pamphlet to the general
public and the regulated community.
As required by section 406(a) of
TSCA, EPA will, in consultation with
HHS and HUD, revise the pamphlet as
necessary to maintain its technical
accuracy. Following each change, EPA
will issue notice of the revised version's
availability in the Federal Register.
B. Acknowledgement
To help ensure the timely notification
of owners and occupants regarding the
potential hazards of renovation
activities in target housing, § 745.87
would require that renovators obtain a
signed, dated acknowledgement from
each owner and head of household
occupying the renovated housing,
indicating that the person had received
the pamphlet on the given date. The
proposed acknowledgement text would
state:
I have received the pamphlet, Lead-Based
Paint: Protect Your Family, and am aware of
the potential health risks associated with
renovating housing containing lead-based
paint.
The statement would be signed and
dated by the housing owner and heads
of households occupying the housing
and,would be retained by the renovator.
1 This acknowledgement could exist as a
separate sheet or as a part of each sales/
service contract or agreement. EPA
proposes to require that the
acknowledgement text be printed in at
least 12-point type to ensure that the
text is readable and noticeable.
Recognizing the importance of
reaching non-English speaking residents
of target housing, EPA is proposing
requirements to address renovations
performed in predominantly non-
English speaking areas. If the parties use
a written service contract or agreement,
and if the service contract or agreement
is in a language other than English, then
the acknowledgment would have to be
in the same language as the contract or
agreement. The Agency proposes this
provision as a necessary measure in
achieving a more equitable Federal lead-
based paint program.
EPA is requesting comment on these
provisions, including whether the
alternative language provisions provide
an appropriate level of protection to
non-English speaking occupants of
target housing.
C. Renovations in Multi-Family
Dwellings
EPA has also considered the issue of
regulating renovation activities that
occur in buildings containing many
separate housing units. Such dwellings
pose additional challenges because,
depending on the type of renovation
being conducted, as the number of units
in the dwelling increase, pamphlet
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Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules 11113
distribution may be increasingly
difficult for renovators. At the same
time, since many multi-family dwellings
(defined for this proposed rulemaking as
housing properties consisting of more
than four dwelling units) may have been
built before lead-based paint use was
restricted, these dwellings may pose
lead-based paint hazards to occupants if
renovations are conducted without care.
EPA has considered two issues
regarding renovations in multi-family
dwellings: Renovations conducted
within specific units of a multi-family
dwelling, and renovations performed in
common areas of the multi-family
dwelling.
1. Renovations in individual units.
EPA believes that renovations
performed within specific units of
multi-family dwellings should be
treated in the same manner as single-
family dwellings (housing properties
containing less than five dwelling
units): the owner and occupants should
be notified and provided a pamphlet in
advance of commencement of
renovation activities. The Agency sees
no rationale for distinguishing between
the two regarding the risks of exposure.
During large-scale or long-term
renovations to units in multi-family
housing, EPA proposes the following
clarification. In cases where an owner
employs a renovator to conduct
renovations in several different housing
units within a multi-family dwelling,
EPA would still require the renovator to
(1) Provide the occupants of each unit
undergoing renovation with a copy of
the pamphlet and (2) maintain signed
acknowledgements from each affected
head-of-household. The renovator could
fulfill his/her obligations regarding the
owner, however, by providing one
pamphlet and maintaining one signed
acknowledgment covering all
renovations performed throughout the
dwelling, rather than by repeating the
same owner-notification activities for
each unit or area renovated.
2. Renovations in common areas. EPA
also believes that for the purposes of the
section 406(b) rule, a practical
distinction should be made between
renovation activities in common areas of
multi-family dwellings and renovations
within specific living areas of the
dwellings. Since renovation activities
may occur in various hallways or
lobbies of a building on a frequent basis,
it could be impractical to require a
renovator to provide all occupants with
a new pamphlet before the
commencement of each renovation,
especially in dwellings with larger
numbers of residential units. Such a
requirement would be difficult to
implement and enforce, and would
likely lead to non-compliance.
EPA still believes that it is important
that occupants be informed of
renovations in common areas as they
occur to provide warning of potential
lead-based paint hazards and to ensure
their ability to take appropriate
precautions. Therefore, under § 745.87,
EPA proposes to require that before
conducting target renovation activities
in common areas of multi-family target
housing, the renovator would be
required to notify, in writing, all
occupants of the dwelling of the
intended renovation and to make the
EPA pamphlet Lead-Based Paint:
Protect Your Family available upon
request. This notification would be
required to include: The general nature
and location(s) of the planned
renovation activities; the expected
starting and ending dates of the planned
renovation activities; and a statement of
how the occupant can obtain the lead
hazard information pamphlet from the
renovator.
EPA recognizes that in some cases,
large renovations could take an
extended period of time or cover several
different common areas of a multi-
iamily dwelling. In that case, if the
initial notification provides accurate
information on the scope of renovations
planned in the various areas, with an
accurate schedule of their performance,
then that initial notification would be
sufficient to meet the requirements of.
this proposed rulemaking. If the scope,
location, or timeframe of the activities
change in a way not reflected in the
original notification, then the renovator
would be obligated to provide updated
information in an additional notification
process. This updated information is
necessary to ensure that owners and
occupants can, if necessary, adequately
protect themselves from exposure to the
hazards of lead-based paint.
Notification activities could be
performed by the renovator or by the
owner of the dwelling on behalf of the
renovator. The notification process
could be accomplished by distributing a
letter or flyer containing the required
information to each head of household
occupying the housing. Even if the
owner agreed to perform the notification
activities, however, the responsibility to
assure compliance would still rest with
the renovator, as required by section
406(b).
D. Recordkeeping Requirements
Section 407 of Title IV of TSCA gives
EPA the authority to promulgate
recordkeeping and reporting
requirements that are necessary to
implement Title IV effectively. EPA is
using this authority to propose the
following requirements to ensure
compliance and to aid EPA in its
enforcement of the provisions in this
proposed rule.
Under EPA's proposed § 745.90,
renovators would be required to keep,
for 3 years after completion of the
renovation, specific records
documenting compliance with the rule.
If all renovation activities occur in
private areas of target housing units,
these records would include:
1. The address/location of the
renovated target housing. This
information is important for EPA
compliance monitoring and
enforcement actions.
2. A list of all heads of households
occupying the renovated target housing
unit(s) at the commencement of
renovations. Because the rule would
require that both the owners and
occupants of target housing receive the
pamphlet, EPA is proposing to require
retention of this list as a record of the
persons that should have received the
pamphlet. EPA is focusing on occupants
of the housing at the commencement of
renovations recognizing that individuals
who become occupants after
renovations have begun would have
already received the pamphlet under the
requirements being developed pursuant
to section 1018 of the Lead-Based Paint
Hazard Reduction Act of 1992.
3. Copies of the signed and dated
acknowledgements from each housing
owner and each head of household
occupying the renovated unit(s). EPA
proposes to require this record as the
primary proof of compliance with the
regulation. In cases where EPA began an
enforcement action based on a tip or
complaint, the acknowledgement form
would be a crucial record in
establishing compliance with the rule.
In the case of renovation activities
performed in common areas of multi-
family target housing, the renovator
would still be required to maintain the
following records:
1. The address/location of the
renovated target housing.
2. Signed and dated
acknowledgements from the owner(s) of
the target housing requesting the
renovation.
3. A signed and dated statement
describing the steps performed by the
renovator or owner to notify all
occupants of the intended renovation
activities and to provide the lead hazard
information pamphlet upon request.
EPA is proposing not to require specific
language for the statement, provided
that it clearly indicates: The dates
between which renovation activities
took place; the general nature of the
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11114 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules
renovation activities conducted; and the
measures taken to notify all occupants
of the planned renovation activities as
outlined in the proposed § 745.87. This
statement would be signed and dated by
the owner as well as the renovator.
4. Copies of any letter or flyer sent to
the occupants of the housing as part of
the notification process.
These records would be retained by
the renovator for 3 years after
completion of the renovation as proof of
compliance.
EPA requests comment on whether
the proposed recordkeeping
requirements are reasonable, too
stringent, or not stringent enough, and
whether there may be other more
effective recordkeeping requirements or
mechanisms to facilitate compliance
monitoring.
V. Enforcement
Failure or refusal to comply with any
provision of the final rule would be a
violation of TSCA section 409,
subjecting the violator to penalties
under TSCA section 16 (15 U.S.C. 2615).
These penalties include the following:
1. Civil penalties. Any person who
violates a provision of the final rule
would be liable to the United States for
a civil penalty in an amount not to
exceed $25,000 for each such violation.
2. Criminal penalties. Any person
who knowingly or willfully violates any
provision of the final rule would, in
addition to any civil penalty, be subject
upon conviction, to a fine of not more
than 525,000 for each day of violation,
or to Imprisonment for not more than 1
year, or both.
VI. State/Tribal Administration and
Enforcement of Section 40 6 (b)
Section 404(a) of TSCA directs EPA to
develop an application, process for those
States or Tribes which seek to
administer and enforce the standards,
regulations, and requirements
established under sections 402 and/or
406. Section 404(b) states that the
Administrator may approve such an
application only after finding that the
State/Tribal 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/Tribal
application will be proposed in a
separate Federal Register notice in the
future.
For State and Tribal implementation
purposes, EPA recognizes a distinction
between section 406(a), the
development of a lead hazard
information pamphlet, and regulatory
requirement section 406(b), for
distribution of the pamphlet. Since the
pamphlet must be developed in
consultation with HHS and HUD, for
use in other rules in other sections of
the Residential Lead-Based Paint Hazard
Reduction Act of 1992, EPA will limit
the authorization of State/Tribal
programs to administration of section
406(b). EPA believes that the authority
to develop a lead hazard information
pamphlet cannot be delegated to States
or Tribes, given the dependence of
many agencies on the pamphlet, and the
need for uniformity in several statutory
sections of the Act.
VH. Model State Program
To support State and tribal efforts to
develop an authorized program, section
404(d) of TSCA directs EPA to
promulgate a model State program
which may be adopted by any State
which seeks to administer and enforce
the provisions of sections 402 and 406
of TSCA. Given that section 404(b)
requires authorized State programs to be
at least as protective as the Federal
program, lie Agency expects that a State
program seeking authorization, would
resemble, in significant respects, the
Federal program, .and further, that the
regulations proposed in §§ 745.80
through 745.99 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.
Section 745.87 contains procedures
and requirements for the provision of
EPA's lead hazard information
pamphlet to owners and occupants of
target housing by renovators. The
proposed § 745.90 contains
recordkeeping requirements necessary
to monitor and enforce compliance with
the requirements.
This model will be especially useful
to the many States that do not currently
have notification requirements in
residential housing. The Agency
believes that adoption of this program
would effectively increase the
awareness of owners and occupants of
target housing regarding the issues
associated with renovating housing with
lead-based paint. 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 evaluated to determine if it
is as protective as the Federal program.
VIII. Procedures for Requesting a
Public Hearing
If persons request time for oral
comment, EPA will consider holding an
informal hearing in Washington, DC.
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
and must be received by EPA by April
8,1994. 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 one of the areas
to be addressed. Organizations which do
not file written comments will not be
allowed to participate at the hearing.
EPA will decide whether to hold a
hearing by April 28,1994.
IX. Rulemaking Record
A record for this proposed version of
the rule has been established under
docket number "OPPTS-62131." The
public record is available for inspection
from 12 noon to 4 p.m., Monday
through Friday, excluding legal
holidays. The public version of the
record (which does not contain
confidential business information) is
located in the TSCA NCIC, Rm. E-G102,
401 M St., SW., Washington, DC 20460.
The draft of the proposed rule
submitted by the Administrator to OMB
review prior to proposal will also be
contained in the docket, as will the
drafts of the final rule submitted for
review before promulgation.
The following list of documents were
used by the Agency in developing this
regulation and can be found in the
docket. Other documents, including
those submitted with written comments
from interested parties, will be included
in the docket following the publication
of this proposal in the Federal Register.
1. Alliance to End Childhood Lead
Poisoning, Preventing Childhood Lead
Poisoning: The First Comprehensive
National Conference; Final Report.
October 6, 7, 8,1991. (pp. A1-A10)
2. DDL, OSHA, Lead Exposure in
Construction; Interim Final Rule. May 4,
1993.
3. EPA, Lead Poisoning and Your
Children. EPA/800-B-92-0002,
September 1992
4. EPA, DRAFT: Reducing Exposure
to Lead in the Home; An Action Guide
for Families. (January 1992).
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Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules 11115
5. U.S. Government Printing Office.
Code of Federal Regulations July 1,
1992. (40 CFR 763.121)
6. U.S. Government Printing Office.
Code of Federal Regulations July 1,
1992. (40 CFR 763.63(1))
7. U.S. Congress. The Residential
Lead-Based Paint Hazard Reduction Act
of 1992 (Pub. L. 105-550).
8. HHS, PHS, CDC, Preventing Lead
Poisoning in Young Children; A
Statement by The Centers For Disease
Control. October 1991.
9. HHS, PHS, ATSDR, The Nature and
Extent of Lead Poisoning in Children in
the United States: A Report to Congress.
July 1988. (pp. 1-16)
10. HUD, Office of Lead-Based Paint
Abatement and Poisoning Prevention.
Lead-Based Paint; Interim Guidelines
for Hazard Identification and
Abatement in Public and Indian
Housing; Notice. April 18,1990.
11. HUD, Office of Lead-Based Paint
Abatement and Poisoning Prevention.
Lead-Based Paint: A Threat to Your
Children. U.S. GPO: 1993-351-568.
January 1993.
X. Confidential Business Information
While EPA does not anticipate the
receipt of much (if any) confidential
business information in connection with
this proposed rule, a person may assert
a claim of confidentiality for any
business information, including all or
portions of written comments,
submitted to EPA in connection with
this proposed rule. Any person who
submits a comment subject to a claim of
confidentiality must also submit a
nonconfidential version. Any claim of
confidentiality must accompany the
information when it is submitted to
EPA. Persons must mark information
claimed as 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 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 place
the information in the public record for
this rulemaking without further notice
to that person.
XI. References
1. Alliance to End Childhood Lead
Poisoning, Preventing Childhood Lead
Poisoning: The First Comprehensive
National Conference; Final Report.
October 6, 7, 8,1991.
2. DOL, OSHA, Lead Exposure in
Construction; Interim Final Rule. (May
4,1993).
3. HUD, Office of Lead-Based Paint
Abatement and Poisoning Prevention.
Lead-Based Paint; Interim Guidelines
for Hazard Identification and
Abatement in Public and Indian
Housing; Notice. April 18,1990.
XII. Regulatory Assessment
Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4,1993), the Agency
must determine whether the regulatory
action is "significant" and therefore
subject to review by the Office of
Management and Budget (OMB) and the
requirements of the Executive Order.
Under section 3(f), the order defines a
"significant regulatory action" as an
action that is likely to result in a rule:
(1) Having an annual effect on the
economy of $100 million or more, or
adversely and materially affecting a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local or
tribal governments or communities (also
referred to as "economically
significant"); (2) creating serious
inconsistency or otherwise interfering
with an action taken or planned by
another agency; (3) materially altering
the budgetary impacts of entitlement,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raising novel legal or
policy issues arising out of legal
mandates, the President's priorities, or
the principles set forth in this Executive
Order.
Pursuant to the terms of this
Executive Order, EPA has determined
that this proposed rule is "significant"
because it raises novel policy issues
arising out of its legal mandate in the
Residential Lead-Based Paint Hazard
Reduction Act.
EPA has prepared a Regulatory Impact
Analysis (RIA) in conjunction with its
proposed lead information disclosure
rule for renovation activities. EPA finds
that the proposed rule will not have an
effect on the economy of $100 million
or more, will not result in major
increases in costs or prices, and is not
anticipated to have significant adverse
effects on competition, employment,
investment, or productivity in the
relevant sectors.
EPA estimates the overall costs to
affected entities to be $59,700,000. This
estimate includes costs for rule
familiarization, information disclosure
and obtaining required signatures,
recordkeeping, and materials costs. EPA
estimates that the provisions of the rule
as proposed would add about $5.00 to
the cost of each transaction.
A copy of the RIA is available in the
TSCA Nonconfidential Information
Center (NCIC) (also known as the TSCA
Public Docket Office), for review and
copying (see Unit IX of this preamble).
This action was submitted to OMB for
review, as required by Executive Order
12866, and any comments or changes
made in response to OMB suggestions or
recomendations have been documented
in the public record.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires each Federal agency to perform
a Regulatory Flexibility Analysis for all
rules that are likely to have a
"significant impact on a substantial
number of small entities." In an effort to
identify and characterize the proposed
rale's effects on small business, EPA has
prepared an Initial Regulatory
Flexibility Analysis (IRFA). This
assessment has been included as part of
the Regulatory Impact Analysis (RIA),
and is summarized below.
In assessing small business impacts,
EPA first developed an establishment
profile for each major sector. This
profile indicated that approximately 80
to 90 percent of all establishments in
SICs 15,17, 651, and 653 fell within the
1 to 9 employee size class. Thus, a
substantial number of small firms are
estimated to be potentially affected by
the proposed rule.
To measure the cost impacts of the
proposed rule on these small
establishments, representative or model
establishments were designed. These
model establishments corresponded to
typical establishments, with respect to
number of employees and annual
transaction volume, in each affected
sector. Since transaction activity was
reported to vary widely, a range of
transaction volume was estimated for
each establishment type.
For each model establishment, annual
regulatory costs were then calculated
and compared to annual labor and
overhead costs. Ratios were computed
for both high and low estimates of the
range of transaction activity. In the case
of a multi-trade renovation contractor,
regulatory costs were found to represent
from 0.05 to 0.14 percent of labor and
overhead costs. In the case of a specialty
trade contractor, impacts were
somewhat higher, ranging from 0.35 to
0.84 percent. An establishment engaged
in rental property management was
projected to sustain impacts of 0.99 to
1.95 percent.
Thus, while a large number of small
establishments will be potentially
affected by the rule, cost impacts were
not found to be-of sufficient magnitude
to cause undue harm to such
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Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules
establishments. Consequently, no
regulatory alternatives are being
proposed in connection with small
Business impacts.
Pursuant to section 605(b) of the
Regulatory Flexibility Act, 5 U.S.C.
605(b), EPA certifies that this proposed
rule would not have a significant
economic impact on a substantial
number of small entities.
C. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to 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. 1669.01)
and a copy may be obtained from Sandy
Farmer, Information Policy Branch
(2136), Environmental Protection
Agency, 401M St., SW., Washington,
DC 20460, or by telephoning (202) 260-
2740.
This collection of information has an
estimated recordkeeping burden
averaging 11.5 minutes per response (at
5.8 minutes/respondent), and to require
7.7 minutes per recordkeeper, annually.
These estimates include time to review
instructions, search existing data
sources, gather and maintain the data
needed, and complete the collection of
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),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20503,
marked "Attention: Desk Officer for
EPA." The final rule will respond to any
OMB or public comments on the
Information collection requirements
contained in this proposal.
List of Subjects in 40 CFRPart 745
Environmental protection, Abatement,
Housing renovation, Lead, Lead:based
paint, Reporting and recordk'eep'ing
requirements.
Dated: February 28,1994.
Carol M. Browner,
Administrator.
Therefore, it is proposed that Chapter
I of 40 CFR be amended by adding a
new part 745 to read as follows:
PART745-LEAD EXPOSURE
REDUCTION
Subpart A—General Provisions
Sec.
745.1 Scope, purpose, and authority.'
745.3 Definitions.
745,7 Confidential business information.
Subparts B-O [Reserved]
Subpart E—Residential Property
Renovation
Sec.
745.80 Purpose, scope, and applicability.
745.85 Lead pamphlet.
745.87 Notification.
745.90 Recordkeeping requirements.
745.97 Penalties for noncompliance.
745.99 Effective date.
Authority: 15 U.S.C. 2686.
Subpart A—General Provisions
§ 745.1 Scope, purpose, and authority.
(a) This part contains regulations
developed under Title IV (15 U.S.C.
2681-2692) and section 6 (15 U.S.C.
2605) of the Toxic Substances Control
Act.
§745.3 Definitions.
For purposes of this part, the
following definitions apply:
Act means the Toxic Substances
Control Act (TSCA), 15 U.S.C. etseq.
Administrator means the
Administrator of the Environmental
Protection Agency.
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.
Dwelling unit means a single, unified
combination of rooms designed for use
as a dwelling by one family.
EPA means the Environmental
Protection Agency.
Lead-based paint hazard means any
condition that causes exposure to lead
from lead-contaminated dust, lead-
contaminated soil, lead-contaminated
paint that is deteriorated or present in
accessible surfaces, friction surfaces, or
impact surfaces that would result in
adverse human health effects in
pregnant women or young children.
Multi-family housing means a housing
property consisting of more than four
dwelling units.
Owner means any individual,
partnership, corporation, or trusteeship
that has legal right of possession of
residential property, or any person
legally authorized to represent that
individual, partnership, corporation, or
trusteeship.
Person means any natural person,
firm, company, corporation, joint
venture, partnership, sole
proprietorship, association, or any other
business entity, any state or political
subdivision thereof, any municipality,
any interstate body, any Indian tribe,
and any department, agency, or
instrumentality of the Federal
government
Renovation means the modifying of
any existing structure, or portion
thereof, where exposure to the hazards
of lead-based paint may result, unless
the activity is performed as part of a
lead abatement program by a certified
contractor, or unless otherwise
regulated by EPA in Subpart G of this
part.
Renovator means any person who
performs for compensation a renovation
of target housing or public buildings.
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, and in which each such unit 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.
TSCA means the Toxic Substances
Control Act (15 U.S.C. et seq.}.
§ 745.7 Confidential business information.
Any person required to submit a
document or report to the EPA under
this part may assert a claim of
confidentiality for the information
submitted. Any claim of confidentiality
must accompany the information when
it is submitted to EPA. EPA will
disclose information subject to a claim
of 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 at the time it is submitted
to EPA, EPA may make the information
public without further notice to that
person.
Subpart B—D [Reserved]
Subpart E—Residential Property
Renovation
§ 745.80 Scope, purpose, and applicability.
This subpart applies to renovation
activities on target housing. Such
housing may contain lead-based paint
and lead-based paint dust that can pose
a health hazard to occupants, especially
young children and pregnant women.
Persons or firms that perform renovation
services for compensation on target
housing must provide information on
hazards of exposure to lead-based paint
associated with renovation activities.
§745.85 Lead pamphlet.
(a) Availability of pamphlet to the
general public and regulated
community. The most current version of
EPA pamphlet No. XXX, entitled Lead-
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Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules 11117
Based Paint: Protect Your Family, is
available to the public and the regulated
community for a fee from the
Government Printing Office (GPO).
Interested parties should write to:
Government Printing Office,
Superintendent of Documents, Mail
Stop XXX, Washington, DC 20402-9328.
In addition, persons may reproduce this
pamphlet, for use or distribution,
providing that the text and graphics are
reproduced in full.
(b) Pamphlet elements. The
information contained and presented in
this pamphlet is mandated in section
406(a) of TSCA (15 U.S.C. 2686), and
may not be changed or omitted during
any reproduction of the information for
the purpose of compliance with this
subpart.
§745.87 Notification.
(a) Before beginning renovation
activities on specific target housing
units, renovators shall:
(1) Provide each owner and each head
of household occupying the units to be
renovated with a copy of the EPA
pamphlet, entitled Lead-Based Paint:
Protect Your Family.
(2) Obtain a signed, dated
acknowledgement from the owners and
each head of household occupying the
housing unit affirming that they have
received the pamphlet and are aware of
the potential health hazards from
renovating housing containing lead-
based paint.
(i) The acknowledgement shall
include the following language:
I have received the pamphlet entitled lead-
Based Paint: Protect Your Family and am
aware of the potential health risks associated
with renovating housing containing lead-
based paint hazards.
(ii) Below the statement, the
acknowledgement shall require the
signature of each owner and head of
household occupying the unit, along
with their dates of signature.
(iii) The type size shall be no smaller
than 12-point type.
(iv) The acknowledgement may be
included as a separate sheet or as a part
of any written contract or service
agreement. It must be completed before
the commencement of the target
renovations.
(v) If the parties use a written contract
or agreement which is written in a
language other than English, the
acknowledgement text shall be written
in the same language as the text of the
contract or agreement.
(b) Before beginning renovation
activities in common areas of multi-
family target housing, the renovator
shall:
(1) Provide the owner(s) of the target
housing requesting the renovation with
a copy of the EPA pamphlet, entitled
Lead-Based Paint: Protect Your Family.
(2) Obtain a signed, dated
acknowledgement from the owner(s) of
the target housing requesting the
renovation affirming that they have
received the pamphlet and are aware of
the potential health hazards from
renovating housing containing lead-
based paint.
(i) The acknowledgement shall
include the following language:
I have received the pamphlet entitled Lead-
Based Paint: Protect Your Family and am
aware of the potential health risks associated
with renovating housing containing lead-
based paint hazards.
(ii) Below the statement, the
acknowledgement shall require the
signature of each owner requesting the
renovation, along with their dates of
signature.
(iii) The type size shall be no smaller
than 12-point type.
(iv) The acknowledgement may be
included as a separate sheet or as a part
of any written contract or service
agreement.
(v) If the parties use a written contract
or agreement which is written in a
language other than English, the
acknowledgement text shall be written
in the same language as the text of the
contract or agreement.
(3) Notify each owner and each head
of household occupying the target
housing, in writing, of the intended
renovation and make the EPA pamphlet
Lead-Based Paint: Protect Your Family
available upon request. At minimum,
such notification shall be accomplished
by distributing written notice to each
owner and each head of household
occupying the target housing. The
notice shall describe: The general nature
and location(s) of the planned
renovation activities, the expected
starting and ending dates of the planned
renovation activities, and a statement of
how the owners and occupants can
obtain the lead hazard information
pamphlet, at no charge, from the
renovator. These activities shall be
conducted by either: '
(i) The renovator.
(ii) The owner on behalf of the
renovator.
(iii) If the notification activities are
performed by the owner of the building
on behalf of the renovator, the renovator
shall retain a signed and dated
statement by the owner of the dwelling
describing the steps performed to notify
all occupants of the intended renovation
activities and to provide the lead hazard
information pamphlet, at no charge,
upon request. Regardless of who
performs the notification activities
required under this subpart, the
renovator shall be responsible for
assuring compliance with this subpart
and shall be liable for any failures to
comply with the notification
requirements in this section.
(4) If the general nature, location(s), or
expected starting and ending dates of
the planned renovation activities change
after the initial notification has been
conducted, the renovator shall provide
further notification to the owners and
heads of households providing revised
information on the ongoing or planned
activities.
§745.90 Recordkeeplng requirements.
Renovators shall retain all records
necessary to demonstrate compliance
with this section for a minimum of 3
years following completion of the
renovation services on target housing.
These records shall include:
(a) The address/location of the
renovated target housing.
(b) A list of all heads of households
occupying the renovated unit(s) at the
commencement of renovations.
(c) Copies of signed and dated
acknowledgements, as required by
§ 745.87(a)(2), from each owner and
each head of household occupying a
renovated unit.
(d) Copies of signed and dated
acknowledgements, as required by
§ 745.87(b)(2), from each owner
requesting renovations to common areas
in multi-family dwellings.
(e) Copies of all signed and dated
statements of notification, as well as
copies of all notification materials sent
to all owners and heads of household,
as required in § 745.87(b)(3) for
renovations to common areas in multi-
family dwellings.
§ 745.97 Penalties for noncompliance.
(a) Failure or refusal to comply with
any provision of this subpart is a
violation of TSCA section 409 (15 U.S.C.
2689), subjecting the violator to
penalties under TSCA section 16 (15
U.S.C. 2615).
(b) Failure or refusal to establish and
maintain records or to permit access to
or copying of records, as required by
this subpart, is a violation of TSCA
section 15 (15 U.S.C. 2614).
(c) Failure or refusal to permit entry
or inspection as required by TSCA
section 11 (15 U.S.C. 2610) is a violation
of TSCA section 15 (15 U.S.C 2614).
(d) Violators may be subject to the
civil and criminal penalties in TSCA
sections 16 and 409 for each violation.
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11118 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules
§745.99 Effective date.
The Federal requirements in this
subpart shall take effect on April 28,
1996. In those States or Tribal lands,
which have not obtained authorization,
under § 745.XXX, to administer and
enforce this program, the requirements
in this subpart shall apply to any
renovation of target housing if the
renovation was commenced on or after
April 28,1996. In States and Tribes that
have obtained authorization to
implement their State/Tribal program
according to the requirements in subpart
X, individual State/Tribal requirements
may take effect before April 28,1996.
[FR Doc. 94-5299 Filed 3-8-94; 8:45 am]
BILLING CODE 6560-SO-F
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Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Notices
11119
ENVIRONMENTAL PROTECTION
AGENCY
[OPPTS-62133; FRL-4642-7]
Lead Hazard Information Pamphlet;
Notice of Availability
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice of availability and
request for comment.
SUMMARY: This notice announces the
availability of EPA's draft Lead Hazard
Information Pamphlet for review and
comment. EPA developed this pamphlet
in response to Congressional concerns
about the public's knowledge of home
lead-based paint hazards. The Pamphlet
is being developed pursuant to section
406(a) of the Toxic Substances Control
Act (TSCA), and will be distributed in
conjunction with regulatory provisions
under section 406(b) of TSCA, and
sections 1012 and 1018 of the
Residential Lead-Based Paint Hazard
Reduction Act.
DATES: Written comments in response to
this draft pamphlet must be received on
or before May 9,1994.
ADDRESSES: Please submit three copies
of all written comments on this draft
pamphlet to: TSCA Document Receipts
(7407), Rm. NE-G99, Office of Pollution
Prevention and Toxics, Environmental
Protection Agency, 401 M St., SW.,
Washington, DC 20460. All comments
on this draft pamphlet should be
identified by the docket number
OPPTS-62133.
FOR FURTHER INFORMATION CONTACT: For
a copy of the draft pamphlet, contact:
TSCA Document Receipts (7407), Rm.
NE-G99, Office of Pollution Prevention
and Toxics, Environmental Protection
Agency, 401 M St., SW., Washington,
DC 20460. Visitors can pick up a copy
in person by visiting the TSCA
Nonconfidential Information Center
(NCIC) in Rm. G99, or by calling (202)
260-7099, between the hours of 12 noon
and 4 p.m. For technical information
contact: Charles Franklin, Office of
Pollution Prevention and Toxics,
Chemical Management Division,
Program Development Branch (7404),
401 M St., SW., Washington, DC 20460,
Telephone: 202-260-1781, Fax: 202-
260-0770.
SUPPLEMENTARY INFORMATION:
I. Background
Under the Congressional mandate in
section 406(a) of TSCA, EPA has
developed a lead hazard information
pamphlet. Congress specifically
required that the pamphlet: (1) Contain
information regarding the health risks
associated with exposure to lead; (2)
provide information on the presence of
lead-based paint hazards in Federally-
assisted, Federally-owned, and target
housing; (3) describe the risks of lead
exposure for children under 6 years of
age, pregnant women, women of
childbearing age, persons involved in
home renovation, and others residing in
a dwelling with lead-based paint
hazards; (4) describe the risks of
renovation in a dwelling with lead-
based paint hazards; (5) provide
information on approved methods for
evaluating and reducing lead-based
paint hazards and their effectiveness in
identifying, reducing, eliminating, or
preventing exposure to lead-based paint
hazards; (6) advise persons how to
obtain a list of contractors certified
pursuant to TSCA section 402 in lead-
based paint hazard evaluation and
reduction in the area in which the
pamphlet is to be used; (7) state that a
risk assessment or inspection for lead-
based paint is recommended prior to the
purchase, lease, or renovation of target
housing; (8) state that certain State and
local laws impose additional
requirements related to lead-based paint
in housing and provide a listing of
Federal, State, and local agencies in
each State, including address and
telephone number, that can provide
information about applicable laws and
available governmental and private
assistance and financing; and (9)
provide such other information about
environmental hazards associated with
residential real property as the
Administrator deems appropriate.
II. Role of Pamphlet
This pamphlet will be disseminated
as a result of several Congressional
directives that will be implemented in
separate rulemaking initiatives. Section
1012 of the Residential Lead-Based
Paint Hazard Reduction Act requires
that the Department of Housing and
Urban Development (HUD) provide the
pamphlet to purchasers and tenants of
housing receiving Federal assistance.
Section 1018 of that Act requires that
EPA and HUD promulgate regulations
requiring sellers or lessors of target
housing to provide purchasers and
lessees with the lead hazard information
pamphlet. Section 406(b) of TSCA
requires that EPA promulgate
regulations requiring each person who
performs for compensation a renovation
of target housing to provide a lead
hazard information pamphlet to the
owner(s) and occupant(s) of such
housing prior to commencing the
renovation. In addition, this pamphlet
may be used by other Federal programs
to support their educational and
outreach goals and obligations.
Because the pamphlet was developed
to support new Federal regulations, the
pamphlet occasionally makes references
to Federal programs that are not yet
fully in place (for example, Federal
requirements for sellers and lessors of
target housing). To avoid confusion,
EPA recommends that reviewers
consider the pamphlet within the
context of the many other regulatory
provisions and Federal and State
infrastructures that will be in place by
the time the final pamphlet is published
in late 1994.
in. Request for Comments
The EPA Office of Pollution
Prevention and Toxics is seeking public
comment on all aspects of the
pamphlet's design. In particular, EPA
requests comment on the tone of the
pamphlet, and the extent to which the
current wording and design tend to
support (or undermine) its effectiveness
as an educational tool. One issue that
EPA has considered is the need to
balance technical accuracy with clarity
and freedom from overly technical
jargon. The extent to which the current
draft is clear and understandable is of
primary concern to the agency, given
the broad distribution the pamphlet will
have.
EPA requests comment on the extent
to which the pamphlet addresses the
statutory content requirements in
section 406(a) of TSCA. For example,
section 406(a) of TSCA requires, among
other things, that the pamphlet contain
a listing of Federal, State, and local
agencies in each State, including
address and telephone number, that can
provide information about applicable
laws and available governmental and
private assistance and financing. The
current draft pamphlet includes phone
numbers for the National Lead
Information Center, the National Lead
Information Center Hotline, and a phone
number for an agency in each State that
has lead information. Because addresses
and phone numbers frequently change,
and to prevent the pamphlet from
becoming too unwieldy (there are
complete books on State and local
sources of information on lead and lead-
based paints), EPA has decided not to
include addresses of State agencies in
the pamphlet, nor to provide addresses
and phone numbers of local agencies.
The pamphlet does, however, state that
an updated list of the addresses and
phone numbers of State agencies can be
obtained, free of charge, by calling the
National Lead Information Center
Hotline. EPA requests comment on this
approach to the issue of balancing
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11120
Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Notices
thoroughness with succinctness, and
whether there may be an alternative
manageable method for providing
information on State and local sources
of information.
In designing the layout of the
pamphlet, EPA has also been aware of
the need to develop a dynamic and
engaging document while ensuring that
the pamphlet can be easily and
inexpensively reprinted. This approach
has lead the Agency to focus on less
ornate illustrations that can be easily
reprinted. As the illustrations will
provide a necessary anchor for many of
the pamphlet's key points, EPA requests
comment on whether the draft
illustrations may be altered in any way
to increase their effectiveness.
In addition to soliciting public input
through this notice, EPA will conduct a
series of focus tests on the draft
pamphlet to evaluate the effectiveness
of the current reading level, content,
and graphic presentation. EPA will
include a summary of the focus groups
results when it announces the
availability of the final pamphlet in the
Federal Register.
EPA also recognizes that this lead
hazard information may be important in
some communities that may have a
limited ability to utilize information
provided in English. For that reason,
EPA is developing a Spanish language
version of the pamphlet as well. The
availability of the Spanish-language
pamphlet will be announced in the
Federal Register when available.
Dated: February 24,1994.
Lynn R. Goldman,
Assistant Administrator for Prevention,
Pesticides and Toxic Substances.
[FR Doc. 94-5300 Filed 3-8-94; 8:45 am]
BILLING CODE 6560-50-F
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