[Federal Register: June 5, 2007 (Volume 72, Number 107)]
[Proposed Rules]
[Page 31022-31048]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn07-24]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[EPA-HQ-OPPT-2005-0049; FRL-8132-7]
RIN 2070-AC83
Lead; Renovation, Repair, and Painting Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental Notice of Proposed Rulemaking.
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SUMMARY: On January 10, 2006, EPA proposed new requirements under the
authority of section 402(c)(3) of the Toxic Substances Control Act
(TSCA) to reduce exposure to lead hazards created by renovation,
repair, and painting activities that disturb lead-based paint in target
housing. ``Target housing'' is defined in TSCA section 401 as any
housing constructed before 1978, except housing for the elderly or
persons with disabilities (unless any child under age 6 resides or is
expected to reside in such housing) or any 0-bedroom dwelling. The 2006
proposal would establish requirements for training renovators and dust
sampling technicians; for certifying renovators, dust sampling
technicians, and renovation firms; for accrediting providers of
renovation and dust sampling technician training; for renovation work
practices; and for recordkeeping. That proposal would also allow
interested States, Territories, and Indian Tribes the opportunity to
apply for and receive authorization to administer and enforce all of
the elements of the new renovation requirements. This supplemental
notice contains EPA's proposal to add child-occupied facilities to the
buildings covered by the 2006 proposal. Child-occupied facilities may
be located in public or commercial buildings or in target housing. A
child-occupied facility would be defined as a building, or a portion of
a building, constructed prior to 1978, visited regularly by the same
child, under 6 years of age, on at least two different days within any
week (Sunday through Saturday period), provided that each day's visit
lasts at least 3 hours and the combined weekly visits last at least 6
hours, and the combined annual visits last at least 60 hours.
DATES: Comments must be received on or before July 5, 2007.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2005-0049, by one of the following methods:
[[Page 31023]]
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
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: OPPT Document Control Office (DCO), EPA
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC.
Attention: Docket ID number EPA-HQ-OPPT-2005-0049. The DCO is open from
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the DCO is (202) 564-8930. Such deliveries are
only accepted during the DCO's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2005-0049. EPA's policy is that all comments received will be included
in the docket without change and may be made available on-line at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the docket index
available in regulations.gov. To access the electronic docket, go to
http://www.regulations.gov, select ``Advanced Search,'' then ``Docket
Search.'' Insert the docket ID number where indicated and select the
``Submit'' button. Follow the instructions on the regulations.gov web
site to view the docket index or access available documents. Although
listed in the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available electronically
athttp://www.regulations.gov, or, if only available in hard copy, at
the OPPT Docket. The OPPT Docket is located in the EPA Docket Center
(EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW.,
Washington, DC. The EPA/DC Public Reading Room hours of operation are
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal
holidays. The telephone number of the EPA/DC Public Reading Room is
(202) 566-1744, and the telephone number for the OPPT Docket is (202)
566-0280. Docket visitors are required to show photographic
identification, pass through a metal detector, and sign the EPA visitor
log. All visitor bags are processed through an X-ray machine and
subject to search. Visitors will be provided an EPA/DC badge that must
be visible at all times in the building and returned upon departure.
FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address:
TSCA-Hotline@epa.gov.
For technical information contact: Mike Wilson, National Program
Chemicals Division (7404T), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 566-0521; e-mail
address: wilson.mike@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by this action if you perform
renovations of child-occupied facilities for compensation or dust
sampling in child-occupied facilities. EPA is proposing to define a
child-occupied facility as a building, or a portion of a building,
constructed prior to 1978, visited regularly by the same child, under 6
years of age, on at least two different days within any week (Sunday
through Saturday period), provided that each day's visit lasts at least
3 hours and the combined weekly visits last at least 6 hours, and the
combined annual visits last at least 60 hours. Examples of child-
occupied facilities are day-care centers, preschools, and kindergarten
classrooms. Child-occupied facilities may be located in target housing
or in public or commercial buildings. Potentially affected entities may
include, but are not limited to:
Building construction (NAICS 236), e.g., single family
housing construction, multi-family housing construction, residential
remodelers, nonresidential construction.
Specialty trade contractors (NAICS 238), e.g., plumbing,
heating, and air-conditioning contractors, painting and wall covering
contractors, electrical contractors, finish carpentry contractors,
drywall and insulation contractors, siding contractors, tile and
terrazzo contractors, glass and glazing contractors.
Real estate (NAICS 531), e.g., lessors of residential and
nonresidential buildings, property managers.
Child day care services (NAICS 624410).
Elementary and secondary schools (NAICS 611110), e.g.,
elementary schools with kindergarten classrooms.
Other technical and trade schools (NAICS 611519), e.g.,
training providers.
Engineering services (NAICS 541330) and building
inspection services (NAICS 541350), e.g., dust sampling technicians.
This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. To determine
whether you or your business may be affected by this action, you should
carefully examine the applicability provisions in Units IV.B. and IV.C.
If you have any questions regarding the applicability of this action to
a particular entity, consult the technical person listed under FOR
FURTHER INFORMATION CONTACT.
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 e-mail. Clearly mark
[[Page 31024]]
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 submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. What Action is the Agency Taking?
EPA is proposing to add child-occupied facilities to the universe
of buildings covered by a prior proposal. EPA would apply all of the
training, certification, accreditation, work practice, and
recordkeeping requirements of the January 10, 2006 proposal (``2006
Proposal'', Ref. 1) to child-occupied facilities. A child-occupied
facility would be defined as ``a building, or a portion of a building,
constructed prior to 1978, visited regularly by the same child, under 6
years of age, on at least two different days within any week (Sunday
through Saturday period), provided that each day's visit lasts at least
3 hours and the combined weekly visits last at least 6 hours, and the
combined annual visits last at least 60 hours.'' Examples of child-
occupied facilities are day-care centers, preschools, and kindergarten
classrooms. Child-occupied facilities may be located in target housing
or in public or commercial buildings.
The purpose of the 2006 Proposal was to establish new requirements
to reduce exposure to lead hazards created by renovation, repair, and
painting activities that disturb lead-based paint. The proposal
contained requirements for training renovators and dust sampling
technicians; certifying renovators, dust sampling technicians, and
renovation firms; accrediting providers of renovation and dust sampling
technician training; for renovation work practices; and for
recordkeeping. These requirements would apply in ``target housing,''
which is defined in TSCA section 401 as ``any housing constructed
before 1978, except housing for the elderly or persons with
disabilities (unless any child under age 6 resides or is expected to
reside in such housing) or any 0-bedroom dwelling.'' Initially the rule
would apply to all renovations for compensation performed in (1) target
housing where a child with an increased blood lead level resides; (2)
rental target housing built before 1960; and (3) owner-occupied target
housing built before 1960, unless, with respect to owner-occupied
target housing, the person performing the renovation obtains a
statement signed by the owner-occupant that the renovation will occur
in the owner's residence and that no child under age 6 resides there.
EPA proposed a subsequent phase-in for target housing built in the
years 1960 through 1977, with certain exemptions. The training,
certification, accreditation, work practice, and recordkeeping
requirements of the 2006 Proposal would apply to all persons who do
renovation for compensation, including renovation contractors,
maintenance workers in multi-family housing, painters and other
specialty trades, with certain exceptions. The 2006 Proposal contains
exemptions for owner-occupied target housing where no children under
age 6 reside, minor repair and maintenance activities that disrupt two
square feet or less of painted surfaces per component, or renovations
where specified methods have been used to determine that the areas
affected by the renovation are free of lead-based paint.
In this document, EPA is proposing to apply these same training,
certification, accreditation, work practice, and recordkeeping
requirements and exemptions to firms and individuals who perform
renovations for compensation in child-occupied facilities. EPA welcomes
comment on this supplemental proposal by entities, such as day care
providers, elementary schools, and public or commercial building
owners, who would be affected by the expanded scope of coverage. EPA
intends to review the comments received on this supplementary proposal
and then promulgate a final rule addressing both the 2006 Proposal and
this proposal.
B. What is the Agency's Authority for Taking this Action?
These training, certification and accreditation requirements and
work practice standards are being proposed pursuant to the authority of
TSCA section 402(c)(3), 15 U.S.C. 2682(c)(3), as amended by Title X of
the Housing and Community Development Act of 1992, Public Law 102-550
(also known as the Residential Lead-Based Paint Hazard Reduction Act of
1992) (``the Act'' or ``Title X''). The notification and recordkeeping
requirements associated with child-occupied facilities are being
proposed pursuant to section 407 of TSCA. The Model State Program and
amendments to the regulations on the authorization of State and Tribal
programs with respect to renovators and dust sampling technicians are
being proposed pursuant to section 404 of TSCA, 15 U.S.C. 2684.
III. Introduction
A. Reason for this Supplemental Notice
On January 10, 2006, EPA issued a notice of proposed rulemaking for
requirements to reduce exposure to lead hazards created by renovation,
repair, and painting activities that disturb lead-based paint in target
housing (Ref. 1). EPA received approximately 250 comments from a wide
variety of commenters, including State and local governments, industry
groups, advocacy groups, renovation contractors, training providers,
and individuals. Twenty-nine of those commenters observed that the
proposal did not cover buildings where children under age 6 spend a
great deal of time, such as day care centers and schools. Commenters
noted that the risk posed to children from lead-based paint hazards in
schools and day-care centers is likely to be equal to, if not greater
than, the risk posed from these hazards at home. These commenters
suggested that EPA expand its proposal to include such places. Several
suggested that EPA use the definition of ``child-occupied facility'' in
40 CFR Sec. 745.223 to define the expanded scope of coverage.
[[Page 31025]]
EPA believes that the suggestions regarding day care centers and
schools have merit. EPA is therefore issuing this supplemental proposal
to specifically propose expanding the scope of the renovation, repair
and painting program to these facilities. EPA believes that the
proposed findings underlying the 2006 Proposal also support the
expansion of coverage to child-occupied facilities.
B. Development of the Final Rule
It is EPA's intention to issue a final rule based on the 2006
Proposal and this supplemental proposal. As EPA moves forward with the
development of the final rule, the Agency is considering the comments
and information received during the public comment periods in 2006, and
expects to consider the comments related to child-occupied facilities
and any new information received on this supplemental proposal. In
addition, as discussed in the 2006 Proposal, EPA intends to prepare
further analyses and updated assessments for the final rule that will
use the information received, as well as the data generated by the EPA
study ``Characterization of Dust Lead Levels after Renovation, Repair,
and Painting Activities'' (``Dust Study'', Ref. 10), and by the
National Association of Home Builders' (NAHB) ``Lead Safe Work
Practices Survey'' (``NAHB Survey'', Ref. 11). EPA will also consider
the comments received on proposed work practice standards in light of
the results of these studies.
EPA is also updating the hazard and exposure assessments it used as
a basis for estimating the benefits of the rulemaking. This benefits
analysis is part of the economic analysis for the rulemaking. The
hazard assessment for the final rule will be based on a hazard
assessment that has recently undergone peer review by the Clean Air
Science Advisory Committee (CASAC) Lead Review Panel. The revised
exposure assessment for the final rule, which will use the data
generated by EPA's Dust Study, the NAHB Survey, and other available
information, will also undergo a peer review by the CASAC Lead Review
Panel. The CASAC, which is comprised of seven members appointed by the
EPA Administrator, was established under the Clean Air Act as an
independent scientific advisory committee. More information on the
CASAC consultation process, along with background documents, is
available on EPA's website athttp://www.epa.gov/lead/pubs/casac.htm.
EPA is not yet able to say with any certainty how the economic
analyses or proposed requirements might change for the final rule as a
result of the additional analyses underway or planned, or EPA's
consideration of comments or new information received on this
supplemental proposal. The Agency does, however, expect that changes
may occur.
C. Previous EPA Rulemakings on Lead-based Paint and Lead-based Paint
Hazards in Child-Occupied Facilities
In 1996, EPA promulgated the final lead-based paint activities
regulations under TSCA section 402(a), codifying them at 40 CFR part
745, subpart L. These regulations were designed to protect the public
from the hazards of improperly conducted lead-based paint inspections,
risk assessments and abatement projects. The regulation includes:
Training and certification requirements to ensure the
proficiency of contractors who offer these services.
Accreditation requirements to ensure that training
programs provide quality instruction in current and effective work
practices.
Work practice standards to ensure that these lead-based
paint activities are conducted safely, reliably and effectively.
As initially proposed in 1994, requirements for the training and
certification of contractors and the accreditation of training
programs, as well as specific work practice standards would have
applied to lead-based paint activities conducted in target housing and
public buildings (Ref. 2). A slightly different set of requirements
would have applied to lead-based paint activities conducted in
commercial buildings and on bridges and other structures. The 1994
proposal would have defined public buildings to include all buildings
generally open to the public or occupied or visited by children, such
as stores, museums, airports, offices, restaurants, hospitals, and
government buildings, as well as schools and day-care centers. During
the comment period, a significant majority of commenters expressed the
concern that applying these regulations to activities in all of the
buildings that EPA would consider public would result in significant
costs without a comparable reduction in lead-based paint exposures for
children under age 6, the population most vulnerable to lead exposures.
Many of these commenters recommended that EPA focus its attention on
buildings that are frequented by children, rather than on buildings
that may be briefly visited by children. In response to these comments,
EPA established, in the final rule, a subset of the buildings EPA had
intended to define as public. This subset, called ``child-occupied
facilities,'' was delineated in terms of the frequency and duration of
visits by children (Ref. 3). ``Child-occupied facility'' is defined in
40 CFR 745.223 as `` a building, or portion of a building, constructed
prior to 1978, visited regularly by the same child, 6 years of age or
under, on at least two different days within any week (Sunday through
Saturday period), provided that each day's visit lasts at least 3 hours
and the combined weekly visits last at least 6 hours, and the combined
annual visits last at least 60 hours. Child-occupied facilities may
include, but are not limited to, day care centers, preschools and
kindergarten classrooms.'' The training, certification, accreditation,
and work practice requirements of the final lead-based paint activities
regulations, codified at 40 CFR part 745, subpart L, apply only to
activities in target housing and child-occupied facilities.
Subsequently, in 1998, EPA initiated rulemaking under TSCA section
403 to identify lead-based paint hazards. The final standards,
promulgated in 2001 and codified at 40 CFR part 745, subpart D, define
paint-lead, dust-lead, and soil-lead hazards (Ref. 4). Under 40 CFR
745.61(b), these standards are applicable to target housing and child-
occupied facilities. The definition of paint-lead hazard refers to the
presence of damaged or deteriorated lead-based paint, as well as lead-
based paint on surfaces where it can be damaged, abraded, or ingested.
A dust-lead hazard is defined as surface dust that contains a mass-per-
area concentration of lead equal to or exceeding 40 micrograms per
square foot ([mu]g/ft\2\) on floors or 250 [mu]g/ft\2\ on interior
window sills based on wipe samples. A soil-lead hazard is defined as
bare soil that contains total lead equal to or exceeding 400 parts per
million ([mu]g/g) in a play area or an average of 1,200 parts per
million in the rest of the yard based on soil samples. As discussed in
detail in the preamble to the final TSCA section 403 regulations, the
dust-lead and soil-lead hazard standards were set with reference to the
likelihood that an exposure to such a level would result in a blood
lead level above 10 micrograms per deciliter ([mu]g/dL) in a child
(Ref. 4 at 1216-1217). This was based on the level that the Centers for
Disease Control and Prevention had set as the level of concern for
community action. This level is not a threshold for toxicity.
[[Page 31026]]
IV. Renovation Activities in Child-occupied Facilities
A. TSCA Section 402(c)(3) Determination
The 2006 Proposal was issued under the authority of TSCA section
402(c), which directs EPA to revise its TSCA section 402(a) lead-based
paint activities regulations to apply to renovation activities that
create lead-based paint hazards. The revisions proposed in the 2006
Proposal were based on, among other things, a study of renovation
activities that EPA conducted as directed by TSCA section 402(c)(2).
This study is discussed in greater length in the 2006 Proposal (Ref. 1
at 1591). In this study, EPA found that the following renovation
activities, when conducted where lead-based paint is present, generated
lead loadings on floors that exceeded 40 [mu]g/ft\2\, the dust-lead
hazard standard for floors in 40 CFR 745.65(b):
Paint removal by abrasive sanding.
Window replacement.
HVAC duct work.
Demolition of interior plaster walls.
Drilling into wood.
Sawing into wood.
Sawing into plaster.
These results, along with the results of other phases of the study,
which evaluated worker exposures and the blood lead levels of children
in homes where renovations have taken place, led EPA to propose to
conclude that renovation activities that disturb lead-based paint cause
lead dust in amounts that will create, or could reasonably be
anticipated to create, dust-lead hazards.
The dust-lead hazard standards are the same for target housing and
child-occupied facilities. EPA believes that the individual activities
examined in its renovation study are likely to be part of renovation
activities in child-occupied facilities as well as in target housing.
EPA is therefore proposing to find that renovation activities that
disturb lead-based paint in child-occupied facilities will create, or
are reasonably anticipated to create, lead-based paint hazards. EPA
requests comment on this proposed finding as well as any available data
or studies on the similarities and differences between renovation
activities in target housing and renovation activities in child-
occupied facilities.
B. Buildings Covered
1. Buildings covered by the 2006 Proposal. The requirements of the
2006 Proposal would take effect in two major phases. In the first
phase, the proposed requirements would apply to renovations performed
for compensation in:
Target housing where the firm performing the renovation
obtains information indicating that a child under age 6 resides there,
if the child has a blood-lead level greater than or equal to 10 [mu]g/
dL or a State or local government level of concern, if lower, or the
firm does not provide the owners and occupants with the opportunity to
inform the firm that a child under age 6 with such a blood-lead level
resides there.
Owner-occupied target housing built before 1960, unless
the firm performing the renovation obtains a statement signed by the
owner that the renovation will occur in the owner's residence and no
child under age 6 resides there.
Rental target housing built before 1960.
The second phase, which would take effect 1 year after the first
phase takes effect, would extend the proposed requirements to:
Owner-occupied target housing built between 1960 and 1978,
unless the firm performing the renovation obtains a statement signed by
the owner that the renovation will occur in the owner's residence and
no child under age 6 resides there.
Rental target housing built between 1960 and 1978.
EPA proposed the two-phase approach primarily because of the
reduced prevalence of lead-based paint in housing constructed between
1960 and 1978. According to the National Survey of Lead and Allergens
in Housing, 24% of the housing constructed between 1960 and 1978
contains lead-based paint (Ref. 5). As discussed in the 2006 Proposal,
EPA is working toward the development of improved test kits that could
be used to determine whether or not lead-based paint is present in an
area to be renovated (Ref. 1 at 1599). These kits are expected to be
commercially available by the time that the second phase of the
proposal would take effect, and thus could be used to accurately
exclude the 76% of housing constructed between 1960 and 1978 that does
not contain lead-based paint.
The 2006 Proposal also discussed several other options for
applicability based on the age of the housing, including a single phase
regulation covering pre-1960 target housing or pre-1978 target housing.
EPA received a great many comments on this aspect of the proposal and
the merits of these comments are still being considered.
2. Buildings covered by this proposal--a. Background. This proposal
would extend the coverage of the training, certification,
accreditation, work practice, and recordkeeping requirements of the
2006 Proposal to buildings that children under age 6 frequent, such as
day care centers, preschools, and kindergarten classrooms. To
accomplish this, EPA is proposing to incorporate into 40 CFR 745.83 the
definition of ``child-occupied facility'' from 40 CFR 745.223, with two
modifications. The proposed definition would refer to visits by
children under age 6, rather than to visits by children 6 and under, to
make the definition consistent with the other scope provisions of the
2006 Proposal. In addition, the proposed definition would clarify that
child-occupied facilities may be located in target housing or public or
commercial buildings.
The preamble to the 1996 final lead-based paint activities
regulations referred to child-occupied facilities as a subset of
buildings that EPA had initially proposed to call ``public buildings''
(Ref. 3 at 45780). The proposed definition of ``public building'' in
the lead-based paint activities rulemaking included buildings that may
also be thought of as commercial buildings, such as office buildings.
In order to avoid any potential confusion over the scope of buildings
covered by this supplemental proposal, EPA is proposing to use the
phrase ``public or commercial building'' to denote buildings generally
open to the public or occupied or visited by children. Public or
commercial buildings would include stores, museums, airport terminals,
convention centers, office buildings, restaurants, hospitals, schools,
government buildings, and day care centers.
EPA is proposing to use the term ``child-occupied facility'' in
this rulemaking to identify buildings, or portions of buildings, that
would be covered by the rule, regardless of whether those buildings are
target housing or public or commercial buildings. EPA is proposing to
use the term this way to ensure that day care centers located in target
housing would be covered.
One of the elements of the 2006 Proposal is a provision allowing
owners of target housing to opt out of the rule if they occupy the
housing to be renovated and there is no child under age 6 in residence.
If this provision were retained in the final rule, and the definition
of ``child-occupied facility'' did not apply in target housing, the
rule would not cover child care centers in owner-occupied target
housing where no children under age 6 reside. To ensure that these
types of day care
[[Page 31027]]
centers are covered, EPA is proposing to add a sentence to the
definition of ``child-occupied facility'' that states: ``Child-occupied
facilities may be located in target housing or in public or commercial
buildings.''
b. Child-occupied facilities in target housing. This supplemental
proposal would cover owner-occupied target housing that meets the
definition of ``child-occupied facility'' in the same way that EPA
would cover owner-occupied target housing where a child under age 6
resides. The 2006 Proposal, in effect, would require a renovation firm
to assume that target housing is the residence of a child under age 6
unless the firm obtains a statement signed by the owner that the owner
resides in the housing to be renovated and no child under age 6 also
resides there. With this proposal, EPA would require a similar
assumption on the part of the renovation firm with respect to whether
target housing is also a child-occupied facility. A renovation firm
would be required to assume that target housing is either the residence
of a child under age 6 or a child-occupied facility unless the firm
obtains a statement signed by the owner that the owner resides in the
housing to be renovated, no child under age 6 also resides there, and
the housing is not a child-occupied facility. The 2006 Proposal would
cover rental target housing regardless of the presence of a child under
age 6, so it is not necessary to require a similar assumption in that
case. EPA believes that it is reasonable to require renovators to
assume that a child-occupied facility exists in owner-occupied target
housing.
An alternative approach would merely require the renovation firm to
give the owner an opportunity to inform the firm that child care for
children under age 6 is provided in the housing. This is the approach
that EPA is proposing to use with respect to children under age 6 with
increased blood lead levels for the purpose of determining whether
target housing or child-occupied facilities built between 1960 and 1978
would be covered in the first phase of the rule. In the 2006 Proposal,
EPA did not propose to require a renovation firm to assume that a child
under age 6 with an increased blood lead level resides in all target
housing. Rather, the renovation firm would only be required to provide
the owner and occupant with an opportunity to inform the firm that such
a child is in residence. Likewise, EPA is proposing to require a
renovation firm to provide the owner and occupant of a child-occupied
facility with an opportunity to inform the firm that a child under age
6 with an increased blood lead level uses the facility. If the firm is
so informed, the target housing or child-occupied facility would be
covered during the first phase of the rule. If not, and the target
housing or child-occupied facility was built between 1960 and 1978, it
would not be covered until the second phase of the rule.
However, EPA is not proposing to allow renovation firms to assume
that a child-occupied facility is not present in owner-occupied target
housing unless the owner informs the firm that such a facility is
present. EPA is concerned that this approach for child care facilities
in target housing would result in a large number of these facilities
being eliminated from coverage by the proposed rule. As described in
Unit VI.A. and in the document entitled ``Economic Analysis for the
Supplemental Proposed Rule on Child-Occupied Facilities Under the TSCA
Lead Renovation, Repair, and Painting Program'' (``Supplemental
Economic Analysis'', Ref. 6), EPA estimates that approximately
1,559,000 of the child-occupied facilities across the country are
located in target housing, of which an estimated 726,000 were covered
by the 2006 Proposal (either because they are in rental housing or
because they are in owner-occupied housing where a child under age 6
resides). This supplemental proposal will cover an additional 833,000
child-occupied facilities located in target housing (i.e., in owner-
occupied target housing where no child under age 6 resides). EPA
requests comment on the proposed requirement that a renovation firm
assume that owner-occupied target housing contains a child-occupied
facility, and on other possible ways that a renovation firm could
determine whether a child-occupied facility is present in target
housing.
As discussed in the 2006 Proposal, the Pre-Renovation Education
Rule, promulgated under the authority of TSCA section 406(b) and
codified at 40 CFR part 745, subpart E, requires owners and occupants
of target housing to be informed of the potential risks from renovation
projects by providing them with a lead hazard information pamphlet.
Persons performing renovations covered by the existing regulations must
already either obtain a signed acknowledgment from the owner indicating
that the pamphlet has been received, or a certificate of mailing
indicating that the pamphlet was mailed at least 7 days before the
renovation. EPA has modified the sample acknowledgment form it
developed for the 2006 Proposal to add information on child-occupied
facilities. This sample could be used to not only record the owner's
receipt of the lead hazard information pamphlet, but to obtain
additional information on the housing to be renovated, its residents,
and whether the housing is a child-occupied facility (Ref. 7). EPA
seeks comment on this sample acknowledgment, a copy of which is
available in the docket for this proposed rule and on the Agency's Web
page athttp://www.epa.gov/lead/pubs/pre-renovationform.pdf.
c. Child-occupied facilities in public or commercial buildings.
This proposal would treat child-occupied facilities that are not in
target housing somewhat differently. As discussed in Unit IV.D.2., EPA
is proposing to require renovation firms working in child-occupied
facilities in public or commercial buildings to distribute lead hazard
information to owners and occupants and obtain acknowledgments, like
those required under the Pre-Renovation Education Rule for target
housing. However, EPA is not proposing to exempt only those projects in
public or commercial buildings where the renovation firm has obtained a
signed statement by the owner of the building indicating that no child-
occupied facility is present in the building. Rather, the firm would be
able to determine whether or not a particular renovation in a public or
commercial building involves a child-occupied facility. EPA chose this
approach for two reasons. First, it should be much easier for the firm
to determine whether it is renovating a child-occupied facility in a
public or commercial building than it would be for the firm to
determine whether the target housing it is to renovate is also a child-
occupied facility. A stand-alone day care center is likely to have a
name that suggests that it provides day care, and the center's status
as a child-occupied facility should be obvious upon entering the
center. Day care centers in office buildings are likely to have
informational signs posted and the centers are likely to be identified
in the building directory. Elementary schools are likely to have
kindergarten classrooms. The other reason for not imposing a
requirement for firms to obtain a signed owner's statement for each
public or commercial building they renovate is the burden of such a
requirement. The alternative to allowing the firm to determine that a
particular building does not contain a child-occupied facility is to
require the firm to obtain signed statements from the owners of all
public or commercial buildings renovated. These buildings would include
factories, office
[[Page 31028]]
buildings, department stores, restaurants, and service stations, many
of which do not contain child-occupied facilities.
Under the proposed approach, the firm would have to take
appropriate steps to determine whether or not a building is or contains
a child-occupied facility, including asking the building's owner, or
the person contracting for the renovation, whether a child-occupied
facility is present. For example, if a renovation firm accepts a
contract for a project in an elementary school, the firm would have to
determine whether a kindergarten classroom was present, which common
areas the kindergarten children used, and, for exterior projects, which
exterior walls were immediately adjacent to the kindergarten classroom
and associated common areas. Libraries and recreational facilities may
have after-care programs that would cause these buildings to be
considered child-occupied facilities; a renovation firm hired to
renovate a building of this type would have to make inquiries about the
use of the facility by children under age 6. EPA requests comment on
its proposed approach, on the alternative of exempting only those
public or commercial buildings for which the firm has obtained a signed
statement from the owner indicating that there is no child-occupied
facility present, and on any other methods for making the determination
that a child-occupied facility is or is not present in a public or
commercial building.
d. Applicability based on age of building. For the purpose of
determining applicability of the proposed rule, it is EPA's intention
to treat child-occupied facilities, whether they are in target housing
or public or commercial buildings, much the same as covered target
housing. For example, if EPA retains the phase-in approach discussed
previously, the first phase would cover:
Target housing where a child under age 6 with an increased
blood lead level resides.
Rental target housing built before 1960.
Owner-occupied target housing built before 1960 where a
child under age 6 resides.
Child-occupied facilities used by a child under age 6 with
an increased blood lead level.
Child-occupied facilities built before 1960.
The second phase would add:
Rental target housing built between 1960 and 1978.
Owner-occupied target housing built between 1960 and 1978
where a child under age 6 resides.
Child-occupied facilities built between 1960 and 1978.
As discussed in the Supplemental Economic Analysis (Ref. 6), EPA
has estimated that there are approximately 833,000 child-occupied
facilities in target housing that would be covered by this proposal.
EPA assumes that the prevalence of lead-based paint in target housing
where child care is provided is the same as the prevalence of lead-
based paint in target housing as a whole, so there is no reason to
treat these child-occupied facilities differently. In addition, the
First National Environmental Health Survey of Child Care Centers
indicates that 22% of non-home-based child care centers built between
1960 and 1978 contain lead-based paint (Ref. 8). This is slightly less
than the 24% of target housing built between 1960 and 1978 that
contains lead-based paint, but this difference is not sufficient to
justify a difference in regulatory applicability.
e. Common areas. The 2006 Proposal would cover renovations in
common areas in multi-family rental target housing. EPA requested
comment on whether to exempt renovations in common areas in owner-
occupied multi-family target housing if the renovation firm has
obtained the signature of every owner with access to the common area,
stating that the units are owner-occupied and no child under age 6 is
in residence. The term ``common area'' is defined in 40 CFR 745.223 as
``a portion of a building that is generally accessible to all
occupants. Such an area may include, but is not limited to, hallways,
stairways, laundry and recreational rooms, playgrounds, community
centers, garages, and boundary fences.'' In order to exempt from this
supplemental proposal a renovation in a common area in owner-occupied
multi-family target housing, EPA is proposing to require the renovation
firm to obtain the signature of every owner with access to the common
area, stating that, in addition to the units being owner-occupied with
no children under age 6 in residence, no child care for children under
age 6 is provided in the units.
The lead-based paint activities regulations at 40 CFR part 745,
subpart L, apply to common areas in multi-family target housing as well
as to common areas in child-occupied facilities. With this supplemental
proposal, EPA is not proposing to cover all common areas in public or
commercial buildings that contain child-occupied facilities. Rather,
EPA is most concerned with those common areas that are actually used by
children under age 6, such as classrooms, bathrooms, and cafeterias,
and not common areas that the children merely pass through. Similarly,
EPA is not proposing to cover all exterior renovation projects on
public or commercial buildings that contain child-occupied facilities.
EPA is primarily concerned about the projects on the exteriors of
public or commercial buildings that are most likely to affect the
children visiting a child-occupied facility. An exterior renovation
project on the opposite side of a large office building from the child-
occupied facility within the building is far less likely to affect the
children at the facility than an exterior renovation project on the
same side of the building as the children's outdoor playground. For
this reason, EPA is proposing to cover only those exterior renovation
projects that are performed on the same side or sides of the building
as the child-occupied facility or common area. This proposal would,
therefore, incorporate additional text into the definition of ``child-
occupied facility'' to clarify the scope of projects associated with
child-occupied facilities in public or commercial buildings. This text
would read:
In public or commercial buildings that contain child-occupied
facilities, the child-occupied facility encompasses only those
common areas that are routinely used by children under age 6, such
as restrooms and cafeterias. Common areas that children under age 6
only pass through, such as hallways, stairways, and garages, are not
included. In addition, for public or commercial buildings that
contain child-occupied facilities, the child-occupied facility
encompasses only the exterior sides of the building that are
immediately adjacent to the child-occupied facility or the common
areas routinely used by children under age 6.
EPA requests comment on the likelihood that renovation projects in
hallways and stairways, or in rooms not used by children under age 6,
will affect the children using a child-occupied facility in a public or
commercial building. EPA also requests comment on whether all exterior
projects on public or commercial buildings that contain child-occupied
facilities should be covered, whether all common areas in such
buildings should be covered and whether hallways, stairways, and other
areas adjacent to rooms used by children under age 6 should be treated
differently than more remote areas of the building. EPA is particularly
interested in peer-reviewed studies or data that shed light on the
potential exposures and hazards to children under age 6 presented by
renovation projects in areas not used by the children. EPA also
requests other comments on these limitations,
[[Page 31029]]
including the extent to which States, Territories, and Tribes with
authorized lead-based paint activities programs might apply this term
differently.
C. Activities Covered by this Proposal
The 2006 Proposal would cover activities covered by the Pre-
Renovation Education Rule, those activities that meet the definition of
``renovation'' in 40 CFR 745.83. In general, renovations are activities
that modify an existing structure and that result in the disturbance of
painted surfaces. In addition, like the Pre-Renovation Education Rule,
the 2006 Proposal would cover only renovations performed for
compensation. This includes renovations performed by renovation firms
and their employees, as well as renovations performed by owners of
rental property and their employees. Although the owner of rental
property may not be compensated for maintenance and repair work at the
time that the work is performed, tenants generally pay rent for the
right to occupy a rental unit as well as for maintenance services in
that unit. Therefore, EPA considers the payment of rent to be
compensation to the owner of rental property for any renovations
performed on the property.
Likewise, this proposal would only cover activities that fit within
the definition of ``renovation'' in 40 CFR 745.83 and that are
performed for compensation in child-occupied facilities. Compensation
includes pay for work performed, such as that paid to contractors;
wages, such as those paid to employees of contractors, building owners,
and child-occupied facility operators; and rent for target housing or
public or commercial building space. Thus, renovations performed by
renovation contractors and their employees in child-occupied facilities
would be covered, as would be renovations by building owners in child-
occupied facilities, if the building owner receives rent for the child-
occupied facility's space. Renovations in child-occupied facilities
that are performed by employees of the building owner or of the child-
occupied facility would be covered if the employees receive wages or
other compensation for the work performed.
EPA does not, however, consider child care payments to be
compensation for renovations. EPA believes that an agreement to provide
child care in exchange for a payment is not a contract for building
maintenance services in the same way that a lease or other agreement
between a landlord and a tenant generally is. If EPA were to consider
payments for child care as compensation for the purposes of this
regulation, this proposal would cover a great many do-it-yourself
renovations by the owners of target housing in housing they own and
occupy. In 1994, in Unit III.B. of the preamble to the proposed lead-
based paint activities regulations, EPA reviewed section 1021 of the
Residential Lead-Based Paint Hazard Reduction Act of 1992, the section
that added Title IV to TSCA, and determined that the emphasis under
section 402 of TSCA ought to be the certification and training of
contractors, not homeowners. In the course of that review, EPA stated
its belief that TSCA section 402(c)(3), the section under which this
supplemental proposal is being issued, shows that ``Congress'' focus
was on the need to regulate contractors doing renovation and remodeling
activities, and not homeowners doing renovation and remodeling of their
own homes'' (Ref. 2). Considering payments for child care to be
compensation for renovations for the purpose of this supplemental
proposal would make this proposal inconsistent with Congressional
intent.
This proposal would also cover renovations that are being performed
in order to turn a public or commercial building, or part of such a
building, into target housing or a child-occupied facility. EPA has
always understood the lead-based paint activities regulations in 40 CFR
part 745, subpart L, to apply to lead-based paint activities being
conducted as part of the conversion of a building into target housing
or a child-occupied facility. EPA believes that it is especially
important to ensure that renovations done in preparation for use by
children under age 6 are done in a lead-safe manner. Therefore, EPA
proposes to add the following sentence at the end of the definition of
``renovation'' in 40 CFR 745.83:
A renovation performed for the purpose of converting a building,
or part of a building, into target housing or a child-occupied
facility is a renovation under this subpart.
EPA is proposing to apply the same exemptions proposed for target
housing in 2006 to child-occupied facilities. This proposal would
exempt renovations in child-occupied facilities that affect components
that have been determined to be free of lead-based paint by a certified
lead-based paint inspector or risk assessor, or by a certified
renovator using an EPA-approved test kit. Likewise, minor maintenance
and repair activities in child-occupied facilities would be exempt. The
2006 Proposal would limit minor maintenance and repair activities to
those activities that affect 2 square feet or less of painted surface
per component, the current limitation in the Pre-Renovation Education
Rule. However, comment was requested on whether a different exemption
for small projects should be used, such as the small project exception
from EPA's lead-based paint activities regulations at 40 CFR 745.65(d)
and HUD's Lead-Safe Housing Rule at 24 CFR 35.1350(d), which exempt
activities that disturb less than 2 square feet of painted surface per
room or 20 square feet of painted exterior surfaces. Finally, under
this proposal, EPA would apply the same standard to emergency
renovation operations in child-occupied facilities as it would under
the 2006 Proposal to target housing. The 2006 Proposal would require
emergency renovations to be performed in compliance with the
notification, training, certification, and work practice requirements
to the extent practicable. EPA is still evaluating the numerous
comments it received on this aspect of the 2006 Proposal, but it is
EPA's intention to cover emergency renovations in child-occupied
facilities in the same manner that such renovations in target housing
would be covered. EPA requests comment on whether emergency renovation
operations should be treated differently in child-occupied facilities
than in target housing.
D. Requirements for Renovations in Child-Occupied Facilities
1. Training, certification, accreditation, work practice, and
recordkeeping requirements. With this proposal, EPA would extend the
training, certification, accreditation, and work practice standard
requirements of the 2006 Proposal to renovations for compensation in
child-occupied facilities. The 2006 Proposal would require that
renovators be trained in the use of lead safe work practices, that
renovators and firms be certified, that providers of renovation
training be accredited, and that renovators follow renovation work
practice standards. The work practices in the 2006 Proposal included
the posting of warning signs, isolation of the work area, containment
of waste, cleaning, and post-renovation cleaning verification. The 2006
Proposal also would establish a dust sampling technician discipline and
would allow certified dust sampling technicians to collect optional
dust clearance samples after renovations. Consult the 2006 Proposal for
more information on each of these proposed requirements (Ref. 1).
The 2006 Proposal described how the proposed training elements for
renovators as well as most of the proposed work practice standards were
developed with reference to the EPA-HUD model curriculum entitled
``Lead
[[Page 31030]]
Safety for Remodeling, Repair, & Painting'' and the technical documents
used to develop the curriculum, including the ``Guidelines for the
Evaluation and Control of Lead-Based Paint Hazards in Housing'' (HUD
Guidelines) developed by HUD as directed by the Residential Lead-Based
Paint Hazard Reduction Act of 1992 (Ref. 1 at 1608). As discussed in
the Supplemental Economic Analysis for this proposal (Ref. 6), EPA has
determined that approximately 90% of the child-occupied facilities that
would be covered by this proposal are located in target housing.
(Roughly half of the child-occupied facilities in target housing were
covered by the 2006 Proposal either because they are in rental housing
or because they are in owner-occupied housing where a child under age 6
resides.) EPA knows of no reason why the requirements for renovations
conducted in target housing that is also a child-occupied facility
should be different from the requirements in the 2006 Proposal for
renovations in rental target housing and target housing where children
under age 6 reside.
EPA also believes that the training, certification, accreditation,
work practice, and recordkeeping requirements of the 2006 Proposal are
equally applicable to renovations conducted in child-occupied
facilities in public or commercial buildings. The HUD Guidelines were
also used to develop the required training elements in 40 CFR 745.225
for certified lead-based paint activities professionals, such as
abatement supervisors and workers. These individuals, after completing
the required training and being certified by EPA, may perform
abatements in child-occupied facilities as well as in target housing.
Likewise, EPA specifically referenced the HUD Guidelines in 40 CFR
745.227(a)(3) in describing the methods that certified professionals
must follow in performing lead-based paint activities in target housing
or in child-occupied facilities. Thus, EPA did not distinguish between
target housing and child-occupied facilities in designing the training,
certification, and accreditation requirements of the lead-based paint
activities regulations. In addition, the only way that EPA
distinguished between child-occupied facilities and multi-family target
housing in the work practice requirements of 40 CFR 745.227 was in
incorporating special instructions at 40 CFR 745.227(d)(7) for dust
sampling in child-occupied facilities when performing a risk
assessment. In promulgating the lead-based paint activities regulations
under TSCA section 402(a), EPA determined that the same training,
certification, and accreditation requirements would apply in target
housing and child-occupied facilities. In addition, EPA found that the
same work practice requirements would be equally reliable, effective
and safe in target housing and child-occupied facilities. EPA noted
that commenters did not support the development of different sets of
work practices for target housing and child-occupied facilities.
In late 2006, EPA conducted an additional renovation study, which
was designed to characterize dust lead levels at various stages of
renovation projects. As part of this study, renovation projects were
performed in child-occupied facilities in public or commercial
buildings. In a March 16, 2007 Notice of Availability (Ref. 9), EPA
described its intention to consider the results of its Dust Study (Ref.
10), along with the NAHB Survey (Ref. 11), in the development of the
final rule. In the March 2007 notice, EPA requested comment from the
public on the work practice provisions of the 2006 Proposal in light of
the results of these studies.
TSCA section 402(a)(1) directs EPA to promulgate regulations that,
among other things, contain standards for performing lead-based paint
activities, taking into account reliability, effectiveness, and safety.
In revising those regulations to apply to renovation activities in
child-occupied facilities, EPA is proposing to find that the same work
practice requirements would be equally reliable, effective, and safe in
target housing and child-occupied facilities. EPA therefore is
proposing to extend the work practice standards of the 2006 Proposal to
firms and individuals performing renovations in child-occupied
facilities. This proposal would also impose the training,
certification, accreditation, work practice and recordkeeping
requirements of the 2006 Proposal on firms and individuals performing
renovations in child-occupied facilities, because EPA has determined
that the same requirements should apply in child-occupied facilities
and target housing. EPA requests comment on these proposed findings.
EPA also invites commenters to identify peer-reviewed studies and data,
of which EPA may not be aware, that shed light on potential differences
between renovations in target housing and renovations in child-occupied
facilities.
EPA remains concerned about the potential exposures to lead hazards
that may be created by untrained homeowners doing work in the presence
of lead-based paint. EPA specifically requests comment on whether any
aspects of the proposed requirements, such as training, certification,
work practices, or recordkeeping, should be modified to make compliance
more feasible for target housing owner-occupants who provide child care
for compensation and who choose to undertake their own renovations.
2. Information distribution requirements. TSCA section 406(b)
directs EPA to promulgate regulations requiring that every person who
performs renovations for compensation in target housing provide a lead-
hazard information pamphlet to the owner and the occupant of the
housing before the renovation commences. The Pre-Renovation Education
Rule, which implements this directive, was promulgated in 1998 and
codified at 40 CFR part 745, subpart E. Much of the proposed regulatory
text in the 2006 Proposal would be codified in that subpart along with
the existing information distribution regulations.
Under today's proposal, firms and individuals performing
renovations for compensation in target housing, whether or not the
target housing contains a child-occupied facility, would still be
required to provide the lead-hazard information pamphlet as required by
TSCA section 406(b) and its implementing regulations. Today's proposal
would also require a similar information distribution for renovation
projects in child-occupied facilities in public or commercial
buildings. EPA has previously used the authority of TSCA section 407 to
impose notification requirements for lead-based paint training course
providers and for firms performing lead-based paint abatements (Ref.
12). TSCA section 407 authorizes EPA to promulgate recordkeeping or
reporting requirements as necessary for the effective implementation of
TSCA Title IV. EPA finds that the distribution of lead hazard
information, before renovation projects begin, to the owners and
occupants of child-occupied facilities as well as the owners of public
or commercial buildings that contain child-occupied facilities is
necessary to ensure effective implementation of this proposed
regulation. Information on lead hazards, and lead safe work practices
that minimize the creation of hazards, will stimulate interest on the
part of child-occupied facilities and public or commercial building
owners in these work practices and increase the demand for their use.
In addition, providing information to the parents and guardians of
children frequenting child-occupied facilities will enable the
[[Page 31031]]
parents and guardians to make decisions regarding their children's
welfare.
Under this proposal, unless they own the building being renovated,
firms and individuals performing renovation projects in child-occupied
facilities would be required to provide a lead hazard information
pamphlet to the owner of the building and either obtain a signed
acknowledgment that the owner received the pamphlet or document through
a certificate of mailing that the pamphlet was mailed to the owner at
least 7 days, but no more than 60 days, before the date that the
renovation begins. In addition, if the renovation is not being
performed by the entity that operates the child-occupied facility, a
lead hazard information pamphlet must be provided to an adult
representative of the child-occupied facility and a signed
acknowledgment obtained, the reason for the lack of a signed
acknowledgment documented, or a certificate of mailing obtained. EPA is
also proposing to require that the renovation firm either distribute
the pamphlet and general information on the renovation project to the
parents or guardians of children using the facility or post, while the
project is ongoing, informational signs describing the general nature
and locations of the project and the anticipated completion date. These
signs must be posted in areas where they can be seen by the parents or
guardians of the children frequenting the child-occupied facility. The
signs must be accompanied by a posted copy of the lead hazard
information pamphlet or information on how interested parents and
guardians can review a copy of the pamphlet or obtain a copy from the
renovation firm at no cost to the parents or guardians. EPA requests
comment on the utility of this kind of information for child-occupied
facilities and public or commercial building owners, and on the
usefulness of informational signs for parents and guardians of children
visiting the child-occupied facility.
E. State Renovation Model Program and Authorization Process
As described in Unit IV.F. of the 2006 Proposal, EPA would give
interested States, Territories, and Indian Tribes the opportunity to
apply for, and receive authorization to administer and enforce all of
the elements of the revised 40 CFR part 745, subpart E (Ref. 1 at
1616). This would include the existing elements of subpart E, the Pre-
Renovation Education Rule, as well as the new training, certification,
accreditation, work practice, and recordkeeping requirements of the
proposed renovation, repair, and painting program. The 2006 Proposal
would allow States, Territories and Tribes to choose to administer and
enforce just the existing requirements of subpart E, the pre-renovation
education elements, or all of the requirements of the proposed subpart
E, as amended. EPA did not propose to allow States, Territories, and
Tribes to seek authorization to administer and enforce only the
training, certification, accreditation, work practice, and
recordkeeping requirements of the 2006 Proposal and not the pre-
renovation education provisions of existing subpart E.
This supplemental proposal would not fundamentally change the
authorization scheme in the 2006 Proposal. Interested States,
Territories, and Indian Tribes would still be given the opportunity to
apply for, and receive authorization to, administer and enforce just
the pre-renovation education provisions of revised 40 CFR part 745,
subpart E, or both the pre-renovation education provisions and the
training, certification, accreditation, work practice, and
recordkeeping provisions of subpart E, as amended. However, this
supplemental proposal would mean that States, Territories, and Tribes
that wish to administer and enforce the pre-renovation education
provisions of subpart E, as amended, would have to include both target
housing and child-occupied facilities within the scope of their
program. Similarly, States, Territories, and Tribes that are also
interested in obtaining authorization to administer and enforce the
training, certification, accreditation, work practice, and
recordkeeping elements of subpart E, as amended, would have to include
both target housing and child-occupied facilities within the scope of
their program. States with existing authorized pre-renovation education
programs would be required to demonstrate that they have modified their
programs to include child-occupied facilities. These States would have
to provide this demonstration in the first report that they submit
pursuant to 40 CFR 745.324(h) more than one year after the final rule
is promulgated.
V. References
1. U.S. Environmental Protection Agency (USEPA). Lead; Renovation,
Repair, and Painting Program: Proposed Rule. Federal Register (71 FR
1587, January 10, 2006).
2. USEPA. Lead; Requirements for Lead-Based Paint Activities:
Proposed Rule. Federal Register (59 FR 45872, September 2, 1994).
3. USEPA. Lead; Requirements for Lead-Based Paint Activities in
Target Housing and Child-Occupied Facilities: Final Rule. Federal
Register (61 FR 45778, August 29, 1996).
4. USEPA. Lead; Identification of Dangerous Levels of Lead: Final
Rule. Federal Register (66 FR 1206, January 5, 2001).
5. U.S. Department of Housing and Urban Development (HUD). National
Survey of Lead and Allergens in Housing, Volume I: Analysis of Lead
Hazards, Final Report, Revision 7.1. (October 31, 2002).
6. USEPA, Office of Pollution Prevention and Toxics (OPPT).
Economic Analysis for the Supplemental Proposed Rule on Child-Occupied
Facilities Under the TSCA Lead Renovation, Repair, and Painting Program
(January 2007).
7. USEPA, OPPT. Sample acknowledgment form (2007).
8. HUD. First National Environmental Health Survey of Child Care
Centers, Volume I: Analysis of Lead Hazards, Final Report. (July 15,
2003).
9. USEPA. Lead; Renovation, Repair, and Painting Program; Notice of
Availability. Federal Register (72 FR 12582, March 16, 2007).
10. USEPA, Office of Pollution Prevention and Toxics (OPPT).
Characterization of Dust Lead Levels after Renovation, Repair, and
Painting Activities; Draft Final Report (January 2007).
11. National Association of Home Builders. Lead Safe Work Practice
Survey Project Report (November 2006).
12. USEPA. Lead; Notification Requirements for Lead-Based Paint
Abatement Activities and Training: Final Rule. Federal Register (69 FR
18489, April 8, 2004).
13. USEPA, Office of Pollution Prevention and Toxics (OPPT).
Economic Analysis for the Renovation, Repair, and Painting Program
Proposed Rule (February 2006).
14. USEPA. Second Proposed Rule Related Addendum to Existing EPA
ICR entitled: TSCA section 402/404 Training and Certification,
Accreditation, and Standards for Lead-Based Paint Activities (January
2007).
15. ASTM International. Standard Practice for Clearance
Examinations Following Lead Hazard Reduction Activities in Single-
Family Dwellings and Child-Occupied Facilities (E 2271-05).
16. ASTM International. Standard Guide for Evaluation, Management,
and Control of Lead Hazards in Facilities (E 2052-99).
17. ASTM International. Standard Practice for Evaluating the
Performance
[[Page 31032]]
Characteristics of Qualitative Chemical Spot Test Kits for Lead in
Paint (E 1828-01).
VI. Statutory and Executive Order Reviews
A. Executive Order 12866
Under Executive Order 12866, entitled ``Regulatory Planning and
Review'' (58 FR 51735, October 4, 1993), it has been determined that
this supplemental proposed rule is a ``significant regulatory action''
under section 3(f)(1) of the Executive Order because EPA estimates
that, when considered in conjunction with the 2006 proposal, it will
have an annual effect on the economy of $100 million or more.
Accordingly, this action was submitted to the Office of Management and
Budget (OMB) for review under Executive Order 12866 and any changes
made based on OMB recommendations have been documented in the public
docket for this rulemaking as required by section 6(a)(3)(E) of the
Executive Order.
In addition, EPA has prepared an analysis of the potential costs
and benefits associated with this proposed rulemaking. This analysis is
contained in the Supplemental Economic Analysis (Ref. 6), which is
available in the docket for this action and is briefly summarized here.
1. Types of facilities. This supplemental proposed rule applies to
an estimated 930,000 child-occupied facilities, of which approximately
833,000 are in target housing where child care is provided. The 2006
Proposal covered child-occupied facilities in rental housing and in
owner-occupied housing where a child under age 6 resides. This
supplemental proposed rule covers additional child-occupied facilities
that were not covered by the 2006 Proposal because they are located in
target housing where no child under age 6 resides. This supplemental
proposal also applies to child-occupied facilities in public or
commercial buildings.
2. Options evaluated. EPA considered a variety of options for
addressing the risks presented by renovation, repair, and painting
actions where lead-based paint is present. The Supplemental Economic
Analysis analyzed several different options for the rule. Option A
applies to renovation, repair, and painting activities performed for
compensation in all child-occupied facilities built before 1978. Option
B has 2 phases. The first phase applies to child-occupied facilities
built before 1960 as well as child-occupied facilities built between
1960 and 1978 that are used by a child under age 6 with an increased
blood lead level. The second phase, which takes effect a year after the
first phase, adds the remaining child-occupied facilities built between
1960 and 1978. Option C also has 2 phases. The first phase applies to
child-occupied facilities built before 1950, and the second phase,
which takes effect a year after the first phase, applies to child-
occupied facilities built before 1978. Option D covers the same
facilities and phases as Option B, and differs only in the amount of
flexibility allowed a certified renovator in selecting appropriate work
practices for each individual job. Option D prescribes the practices to
be followed, so does not provide flexibility. Option E has the same
phases as Option B, but considers child care payments to be
compensation for renovations. Thus, for example, this option covers a
renovation by a homeowner in owner-occupied target housing if the
housing qualifies as a child-occupied facility and the homeowner
provides paid child care. The proposed rule is Option B.
3. Number of events and individuals affected. Under the
supplemental proposal, in Phase 1 there will be 243,000 events in
child-occupied facilities where lead-safe work practices will be used
due to the rule. As a result, there will be approximately 633,000
exposures avoided in children under age 6. In Phase 2, lead-safe work
practices will be used in about 140,000 events as a result of the
supplemental proposed rule. About 916,000 exposures will be avoided in
children under age 6 each year as a result. There will also be about
166,000 exposures avoided in adults in Phase 1, and about 224,000 per
year in Phase 2. The affected adults are the staff of child-occupied
facilities in public or commercial buildings (such as schools and day
care centers) and the residents of target housing where child care is
provided.
4. Benefits. The Supplemental Economic Analysis describes the
estimated benefits of the proposed rulemaking in qualitative and
quantitative terms. Benefits result from the prevention of adverse
health effects attributable to lead exposure. These health effects
include impaired cognitive function in children and several illnesses
in children and adults. One of the stated purposes of Title X is to
prevent childhood lead poisoning. EPA considered the potential benefits
to children separately from adults, because the reduction in the threat
of childhood lead poisoning is a focus of Title X, and because of
uncertainties about the exposure of adults to lead in dust from
renovation, repair, and painting activities in these facilities, and
the resulting health effects. The Agency specifically seeks comment on
its consideration of potential benefits to both children and adults, as
well as comments and information about the potential uncertainties
associated with adult exposures and health effects.
Quantifying the adverse health effects associated with renovation,
repair, and painting projects involves 4 steps: first, estimating the
amount of lead contamination due to the renovation project under
various assumptions about cleaning; second, estimating the blood-lead
levels resulting from this contamination; third, estimating the adverse
health effects (such as loss in IQ points) due to increased blood-lead
levels using dose-response functions; and fourth, assigning medical
costs, reduced income, or another proxy for willingness-to-pay to avoid
the adverse health effects.
The Supplemental Economic Analysis estimates the benefits of
avoided incidence of IQ loss due to reduced lead exposure to children.
The analysis was limited to the avoided incidence of IQ loss because
there are not sufficient data at this time to develop dose-response
functions for other health effects in children. The Supplemental
Economic Analysis provides six alternative estimates of children's
benefits, depending on which of two models is used to relate exposure
to blood-lead levels, which of two age groups the model is applied to,
and which of two exposure metrics is used. Furthermore, benefits are
estimated using two different scenarios for cleaning assumptions. The
range of benefits estimates described below reflects the minimum and
maximum of the six alternative blood-lead estimates and the two
cleaning scenarios. The benefits of avoided exposure to adults were not
quantified due to uncertainties about the estimation of such exposure.
Depending on which blood-lead model and exposure assumptions are
used, the quantified IQ benefits to children for the supplemental
proposed rule range from $64 million to $257 million per year when
annualized using a 3% discount rate, and from $68 million to $272
million per year when using a 7% discount rate. The estimated benefits
for the other options range from $64 million to $386 million using a 3%
discount rate and from $67 million to $408 million using a 7% discount
rate. There are additional unquantified benefits, including avoided
health effects in adults.
5. Costs. The Supplemental Economic Analysis estimates the
potential costs of complying with the training,
[[Page 31033]]
certification, and work practice requirements in the supplemental
proposed rule. Costs may be incurred by child-occupied facilities that
use their own staff for renovation, repair, and painting events;
landlords that use their own staff for renovation, repair, and painting
events in public or commercial buildings that they lease to child-
occupied facilities; and contractors that perform renovation, repair,
and painting work for compensation in child-occupied facilities.
The supplemental proposed rule, if finalized as proposed, is
estimated to result in a total potential cost of $53 million in Phase
1. The 50-year annualized costs provide a measure of the steady-state
cost. Annualized costs of the supplemental proposed rule are estimated
to be $39 million per year using a 3% discount rate and $43 million per
year using a 7% discount rate. Annualized costs for the other options
range from $39 million to $92 million per year using a 3% discount rate
and $42 million to $102 million per year using a 7% discount rate.
6. Net benefits. Net benefits are the difference between benefits
and costs. The supplemental proposed rule, if finalized as proposed, is
estimated to result in potential net benefits of $1 million to $157
million in Phase 1 based on children's benefits alone. The 50-year
annualized net benefits for the proposed rule based on children's
benefits are estimated to be $25 million to $218 million per year using
a 3% discount rate and $25 million to $229 million per year using a 7%
discount rate. The net benefits for the other options range from -$8
million to $293 million per year using a 3% discount rate and -$12
million to $306 million per year using a 7% discount rate. There are
additional unquantified benefits, including avoided health effects in
adults, that are not included in the net benefits estimates.
7. Request for comment. To improve the analysis for the final rule,
the Agency conducted a number of sensitivity analyses in its
Supplemental Economic Analysis (Ref. 6). These analyses examined the
sensitivity of the overall costs and benefits of the rule to selected
parameters which appear to be important and for which relatively few
supporting data are available. These include alternative assumptions
regarding compliance with this rule, the effectiveness of daily
cleaning, areas of schools other than pre-kindergarten and kindergarten
classrooms that are routinely used by children under age 6, the number
of unscheduled maintenance events in child-occupied facilities in
public or commercial buildings, the effectiveness of current work
practices in child-occupied facilities in public or commercial
buildings, and how lead loadings from renovation events may vary with
the age of a building. The Agency is specifically interested in
comments on these sensitivity analyses and supporting information,
particularly peer-reviewed studies and data, on the following questions
related to the Agency's analysis:
How often are unplanned maintenance activities that would
be covered by this supplemental proposal performed in child care
centers and schools?
How often are classrooms in child-occupied facilities in
public or commercial buildings swept and how often are they mopped? Do
janitorial staff use single bucket mopping or the two bucket mopping
method required by the rule and how frequently do they change the
water? What are the efficiencies of the various cleaning methods?
What share of the renovations in schools and child care
centers use work practices required by this supplemental proposal, and
which particular work practices do they use?
How do renovations performed by contractors and those
performed by homeowners differ, particularly with respect to the
frequency with which work practices required by this proposal are
already being used and the expected compliance rates if homeowner
renovations were covered by the regulation? (This supplemental proposal
would not cover persons who perform renovations in housing that they
own and occupy, but one of the regulatory options evaluated in EPA's
Supplemental Economic Analysis covered renovations by homeowners who
provide child care for compensation in their homes.)
When estimating the lead loadings from renovations, how
should EPA's analysis take into account variations in the amount of
lead in paint by component type and building age?
B. Paperwork Reduction Act
The information collection requirements contained in this proposed
rule have been submitted for approval to the Office of Management and
Budget (OMB) under the Paperwork Reduction Act, 44 USC 3501 et seq. An
Information Collection Request (ICR) document prepared by EPA, an
amendment to an existing ICR and referred to as the Second ICR Addendum
(EPA ICR No. 1715.08, OMB Control Number 2070-0155) has been placed in
the public docket for this proposed rule (Ref. 14).
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations codified in Chapter 40 of the CFR, after appearing in the
preamble of the final rule, are listed in 40 CFR part 9, are displayed
either by publication in the Federal Register or by other appropriate
means, such as on the related collection instrument or form, if
applicable. The display of OMB control numbers in certain EPA
regulations is consolidated in 40 CFR part 9.
The new information collection activities contained in this
supplemental proposed rule are designed to assist the Agency in meeting
the core objectives of TSCA section 402, including ensuring the
integrity of accreditation programs for training providers, providing
for the certification of renovators, and determining whether work
practice standards are being followed. EPA has carefully tailored the
proposed recordkeeping and recordkeeping requirements so they will
permit the Agency to achieve statutory objectives without imposing an
undue burden on those firms that choose to be involved in renovation,
repair, and painting activities.
Burden under the PRA means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, disclose
or provide information to or for a Federal agency. This includes the
time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
Under this supplemental proposal, the new information collection
requirements may affect training providers and firms that perform
renovation, repair, or painting for compensation in child-occupied
facilities. Although these firms have the option of choosing to engage
in the covered activities, once a firm chooses to do so, the
information collection activities contained in this rule become
mandatory for that firm.
The ICR document provides a detailed presentation of the estimated
burden and costs for 3 years of the program. The
[[Page 31034]]
aggregate burden varies by year due to changes in the number of firms
that will seek certification each year. The burden and cost to training
providers and firms engaged in renovation, repair, and painting
activities is summarized in this section.
There are an average of 145 training providers that are estimated
to incur burden to notify EPA (or an authorizing State, Tribe, or
Territory) before and after training courses. The average burden for
training provider notifications as a result of the supplemental
proposed rule is estimated at 7 to 18 hours per year, depending on the
number of additional training courses provided. Total training provider
burden is estimated to average 1,700 hours per year.
There are an average of 38,000 firms estimated to become certified
to engage in renovation, repair, or painting activities in child-
occupied facilities under the supplemental proposed rule. The average
certification burden is estimated to be 3.5 hours per firm in the year
a firm is initially certified, and 0.5 hours in years that it is re-
certified (which occurs every 3 years). Firms must also distribute lead
hazard information to the owners and occupants of public or commercial
buildings that contain child-occupied facilities. Finally, firms must
keep records of the work they perform in child-occupied facilities;
this recordkeeping is estimated to typically take approximately 5 hours
per year. Total burden for these firms is estimated to average 280,000
hours per year.
Total respondent burden as a result of the supplemental proposed
rule during the period covered by the ICR is estimated to average
approximately 281,000 hours per year.
There are also government costs to administer the program. States,
Tribes, and Territories are allowed, but are under no obligation, to
apply for and receive authorization to administer these proposed
requirements. EPA will directly administer programs for States, Tribes,
and Territories that do not become authorized. Because the number of
States, Tribes, and Territories that will become authorized is not
known, administrative costs are estimated assuming that EPA will
administer the program everywhere. To the extent that other government
entities become authorized, EPA's administrative costs will be lower.
Direct your comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including the use of automated
collection techniques, to EPA using the public docket that has been
established for this proposed rule (Docket ID No. EPA-HQ-OPPT-2005-
0049). In addition, send a copy of your comments about the ICR to OMB
at: Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW., Washington, DC 20503, Attention: Desk
Office for EPA. Since OMB is required to complete its review of the ICR
between 30 and 60 days after June 5, 2007, please submit your ICR
comments for OMB consideration to OMB by July 5, 2007.
The Agency will consider and address comments received on the
information collection requirements contained in this proposal when it
develops the final rule.
C. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (RFA), 5
U.S.C.601 et seq., and the Agency's long-standing policy of always
considering whether there may be a potential for adverse impacts on
small entities, the Agency has evaluated the potential small entity
impacts of its 2006 Proposal and this supplemental proposal. The
Agency's analysis of the potentially adverse economic impacts of this
supplemental proposal is contained in the Supplemental Economic
Analysis (Ref. 6). The analysis of the potentially adverse economic
impacts of the 2006 Proposal is contained in the document entitled
``Economic Analysis for the Renovation, Repair, and Painting Program
Proposed Rule'' (Ref. 13). Because EPA intends to promulgate a single
final rule that encompasses both the 2006 Proposal and this
supplemental proposal, EPA has evaluated the small entity impacts for
the combined effects of the two proposals. The initial regulatory
flexibility analysis was reviewed in the preamble to the 2006 Proposal.
This analysis has been revised to include information on this
supplemental proposal. The following is an overview of the revised
analysis.
1. Legal basis and objectives for the proposed rule. As discussed
in Unit IV.A. of this preamble, TSCA section 402(c)(2) directs EPA to
study the extent to which persons engaged in renovation, repair, and
painting activities are exposed to lead or create lead-based paint
hazards regularly or occasionally. After concluding this study, TSCA
section 402(c)(3) further directs EPA to revise its lead-based paint
activities regulations under TSCA section 402(a) to apply to renovation
or remodeling activities that create lead-based paint hazards. Because
EPA's study found that activities commonly performed during renovation
and remodeling create lead-based paint hazards, EPA is proposing to
revise the TSCA section 402(a) regulatory scheme to apply to
individuals and firms engaged in renovation, repair, and painting
activities. The primary objective of the combined proposals is to
prevent the creation of new lead-based paint hazards from renovation,
repair, and painting activities in housing where children under age 6
reside and in housing or other buildings frequented by children under
age 6.
2. Potentially affected small entities. Small entities include
small businesses, small organizations, and small governmental
jurisdictions. For purposes of assessing the impacts of this proposed
rule on small entities, small entity is defined in accordance with
section 601 of the RFA as:
(1) A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county,
town, school district, or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
The small entities that are potentially directly regulated by this
proposed rule include: small businesses (including contractors and non-
residential property owners and managers); small non-profits (certain
daycare centers and private schools); and small governments (school
districts).
In determining the number of small businesses affected by the
proposed rule, the Agency applied U.S. Economic Census data to the
SBA's definition of small business. However, applying the U.S. Economic
Census data requires either under or overestimating the number of small
businesses affected by the proposed rule. For example, for many
construction establishments, the SBA defines small businesses as having
revenues of less than $13 million. With respect to those
establishments, the U.S. Economic Census data groups all establishments
with revenues of $10 million or more into one revenue bracket. On the
one hand, using data for the entire industry would overestimate the
number of small businesses affected by the proposed rule and would
defeat the purpose of estimating impacts on small business. It would
also underestimate the proposed rule's impact on small businesses
because the impacts would be calculated using the revenues of large
businesses in addition to small businesses. On the other hand, applying
the closest, albeit lower,
[[Page 31035]]
revenue bracket would underestimate the number of small businesses
affected by the proposed rule while at the same time overestimating the
impacts.
Similar issues arose in estimating the fraction of non-residential
commercial property owners and managers that are small businesses. For
other sectors (non-profits operating daycare centers or private
schools), EPA assumed that all affected firms are small, which may
overestimate the number of small entities affected by the rule. The
Agency requests comments and information regarding available data to
better estimate the number of small entities affected by the rule.
The vast majority of entities in the industries affected by this
rule are small. Using EPA's estimates, when the supplemental proposal
is combined with the 2006 Proposal, the renovation, repair, and
painting program will affect an average of approximately 186,000 small
entities.
3. Potential economic impacts on small entities. EPA evaluated two
factors in its analysis of the rule's requirements on small entities,
the number of firms that would experience the impact, and the size of
the impact. Annual compliance costs as a percentage of annual revenues
were used to assess the potential impacts of the rule on small
businesses and small governments. This ratio is a good measure of
entities' ability to afford the costs attributable to a regulatory
requirement, because comparing compliance costs to revenues provides a
reasonable indication of the magnitude of the regulatory burden
relative to a commonly available measure of economic activity. Where
regulatory costs represent a small fraction of a typical entity's
revenues (for example, less than 1%, and not greater than 3%), the
financial impacts of the regulation on such entities may be considered
as not significant. For non-profit organizations, impacts were measured
by comparing rule costs to the organization's annual expenditures. When
expenditure data were not available, however, revenue information was
used as a proxy for expenditures. It is appropriate to calculate the
impact ratios using annualized costs, because these costs are more
representative of the continuing costs entities face to comply with the
rule.
EPA estimates that there are an average of 186,000 small entities
that would be affected by the combined renovation, repair, and painting
activities program. Of these, there are an estimated 163,000 small
businesses with an average impact of 0.9%, 17,000 small non-profits
with an average impact of 0.1%, and 6,000 small governments with an
average impact of 0.004%.
4. Relevant Federal rules. The proposed requirements in this
rulemaking will fit within an existing framework of other Federal
regulations that address lead-based paint.
The Pre-Renovation Education Rule, discussed in Unit IV.A.2. of
this preamble, requires renovators to distribute a lead hazard
information pamphlet to owners and occupants before conducting a
renovation in target housing. This proposal has been carefully crafted
to harmonize with the existing pre-renovation education requirements.
Disposal of waste from renovation projects that would be regulated
by this proposal is covered by the Resource Conservation and Recovery
Act (RCRA) regulations for solid waste. This proposal does not contain
specific requirements for the disposal of waste from renovations.
HUD has extensive regulations that address the conduct of interim
controls, as well as other lead-based paint activities, in Federally
assisted housing. Some of HUD's interim controls would be regulated
under this proposal as renovations, depending upon whether the
particular interim control measure disturbs more than the threshold
amount of paint. In most cases, the HUD regulations are comparable to,
or more stringent than this proposal. In general, persons performing
HUD-regulated interim controls must have taken a course in lead-safe
work practices, which is also a requirement of this proposal. However,
this proposal would not require dust clearance testing, a process
required by HUD after interim control activities that disturb more than
a minimal amount of lead-based paint.
Finally, OSHA's Lead Exposure in Construction standard covers
potential worker exposures to lead during many construction activities,
including renovation, repair, and painting activities. Although this
standard may cover many of the same projects as today's proposal, the
requirements themselves do not overlap. The OSHA rule addresses the
protection of the worker, this EPA proposal addresses the protection of
the building occupants, particularly children under age 6.
5. Skills needed for compliance. This proposal would establish
requirements for training renovators and dust sampling technicians;
certifying renovators, dust sampling technicians, and entities engaged
in renovation, repair, and painting activities; accrediting providers
of renovation and dust sampling technician training; and for renovation
work practices. Renovators and dust sampling technicians would have to
take a course to learn the proper techniques for accomplishing the
tasks they will perform during renovations. These courses are intended
to provide them with the information they would need to comply with the
rule based on the skills they already have. Entities would be required
to apply for certification to perform renovations; this process does
not require any special skills other than the ability to complete the
application. They would also need to document the work they have done
during renovations. This does not require any special skills. Training
providers must be knowledgeable about delivering technical training.
Training providers would be required to apply for accreditation to
offer renovator and dust sampling technician courses. They would also
be required to provide prior notification of such courses and provide
information on the students trained after each such course. Completing
the accreditation application and providing the required notification
information does not require any special skills.
6. Small Business Advocacy Review Panel. Since the earliest stages
of planning for this regulation under Section 402(c)(3) of TSCA, EPA
has been concerned with potential small entity impacts. EPA conducted
outreach to small entities, and, in 1999, convened a Small Business
Advocacy Review Panel to obtain advice and recommendations of
representatives of the small entities that would potentially be subject
to this regulation's requirements. At that time, EPA was planning an
initial regulation that would apply to renovations in target housing,
with requirements for public and commercial building renovations,
including child-occupied facility renovations, to follow at a later
date. The small entity representatives (SERs) chosen for consultation
reflect that initial emphasis. They included maintenance and renovation
contractors, painting and decorating contractors, multi-family housing
owners and operators, training providers/consultants, and
representatives from several national contractor associations, the
National Multi-Housing Council, and the National Association of Home
Builders.
After considering the existing lead-based paint activities
regulations, and taking into account preliminary stakeholder feedback,
EPA identified eight key elements of a potential renovation and
remodeling regulation for the Panel's consideration. These elements
were:
Applicability and scope.
[[Page 31036]]
Firm certification.
Individual training and certification.
Accreditation of training courses.
Work practice standards.
Prohibited practices.
Exterior clearance.
Interior clearance.
EPA also developed several options for each of these key elements.
Although the scope and applicability options specifically presented to
the Panel covered only target housing, background information presented
to the SERs and to the Panel members shows that EPA was also
considering a regulation covering child-occupied facilities. More
information on the Panel, its recommendations, and how EPA implemented
them in the development of the program, are provided in Unit VIII.C.6
of the preamble to the 2006 Proposal (Ref. 1).
EPA invites comments on all aspects of the supplemental proposal
and its impacts on small entities.
D. Unfunded Mandates Reform Act
Under Title II of the Unfunded Mandates Reform Act (UMRA) (Public
Law 104-4), EPA has determined that when this supplemental proposed
rule is considered by itself, it does not contain a Federal mandate
that may result in expenditures that exceed the inflation-adjusted UMRA
threshold of $100 million in any 1 year by the private sector or by
State, local, and Tribal governments in the aggregate. (When adjusted
for inflation, the value of the UMRA threshold is over $118 million.)
However, when considered in conjunction with the 2006 Proposal, the
combined requirements will result in annual expenditures by the private
sector above the UMRA threshold. Accordingly, EPA has prepared a
written statement under section 202 of the UMRA which has been placed
in the public docket for this rulemaking and is summarized here.
1. Authorizing legislation. This proposal is issued under the
authority of TSCA sections 402(c)(3) and 404.
2. Cost-benefit analysis. EPA has prepared an analysis of the costs
and benefits associated with this supplemental proposal, a copy of
which is available in the docket for this rulemaking (Ref. 6). The
Supplemental Economic Analysis presents the costs of the proposal as
well as various regulatory options and is summarized in Unit VII.A. of
this preamble. EPA has estimated that the total annualized costs of
this supplemental proposal when using a 3% discount rate are $39
million per year, and that benefits are $64 million to $257 million per
year. Using a 7% discount rate, costs are $43 million per year and
benefits are $68 million to $272 million per year.
3. State, local, and Tribal government input. EPA has sought input
from State, local and Tribal government representatives throughout the
development of the renovation, repair, and painting program. EPA's
experience in administering the existing lead-based paint activities
program under TSCA section 402(a) suggests that these governments will
play a critical role in the successful implementation of a national
program to reduce exposures to lead-based paint hazards associated with
renovation, repair, and painting activities. Consequently, as discussed
in Unit III.C.2. of the preamble to the 2006 Proposal (Ref. 1), the
Agency has met with State, local, and Tribal government officials on
numerous occasions to discuss renovation issues.
4. Least burdensome option. EPA considered a wide variety of
options for addressing the risks presented by renovation activities
where lead-based paint is present. The Supplemental Economic Analysis
analyzed several different options for the scope of the supplemental
rule. As part of the development of the renovation, repair, and
painting program, EPA has considered different options for the scope of
the rule, various combinations of training and certification
requirements for individuals who perform renovations, various
combinations of work practice requirements, and various methods for
ensuring that no lead-based paint hazards are left behind by persons
performing renovations. Additional information on the options
considered is available in Unit VIII.C.6. of the preamble for the 2006
Proposal (Ref. 1), and in the Supplemental Economic Analysis (Ref. 6).
EPA has determined that the proposed option is the least burdensome
option available that achieves the objective of this supplemental rule,
which is to prevent the creation of new lead-based paint hazards from
renovation, repair, and painting activities in child-occupied
facilities.
This rule does not contain a significant Federal intergovernmental
mandate as described by section 203 of UMRA. Based on the definition of
``small government jurisdiction'' in RFA section 601, no State
governments can be considered small. Small Territorial or Tribal
governments could apply for authorization to administer and enforce
this program, which would entail costs, but these small jurisdictions
are under no obligation to do so.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments operate schools that are child-occupied
facilities. EPA generally measures a significant impact under UMRA as
being expenditures, in the aggregate, of more than 1% of small
government revenues in any one year. As explained in Unit VI.C.3., the
rule is expected to result in small government impacts well under 1% of
revenues. So EPA has determined that the rule does not significantly
affect small governments.
Nor does the rule uniquely affect small governments, as the rule is
not targeted at small governments, does not primarily affect small
governments, and does not impose a different burden on small
governments than on other entities that operate child-occupied
facilities.
E. Federalism
Pursuant to Executive Order 13132, entitled ``Federalism'' (64 FR
43255, August 10, 1999), EPA has determined that this proposed rule
does not have ``federalism implications,'' because it will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this proposed rule.
States would be able to apply for, and receive authorization to
administer these proposed requirements, but would be under no
obligation to do so. In the absence of a State authorization, EPA will
administer these requirements.
Nevertheless, in the spirit of the objectives of this Executive
Order, and consistent with EPA policy to promote communications between
the Agency and State and local governments, EPA has consulted with
representatives of State and local governments in developing the
renovation, repair, and painting program. These consultations are as
described in the preamble to the 2006 Proposal (Ref. 1).
EPA specifically solicits additional comment on this proposed rule
from State and local officials. EPA is particularly interested in
information on the number of public housing agencies who own or operate
detached or off-site child-occupied facilities and this regulation's
potential impacts on those agencies.
F. Tribal Implications
As required by Executive Order 13175, entitled ``Consultation and
[[Page 31037]]
Coordination with Indian Tribal Governments'' (59 FR 22951, November 6,
2000), EPA has determined that this proposed rule does not have tribal
implications because it will not have substantial direct effects on
tribal governments, on the relationship between the Federal government
and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes, as
specified in the Order. Tribes would be able to apply for, and receive
authorization to administer these proposed requirements on Tribal
lands, but Tribes would be under no obligation to do so. In the absence
of a Tribal authorization, EPA will administer these requirements.
While Tribes may operate child-occupied facilities covered by the rule
such as kindergartens, pre-kindergartens, and daycare facilities, EPA
has determined that this proposal would not have substantial direct
effects on the tribal governments that operate these facilities.
Thus, Executive Order 13175 does not apply to this rule. Although
Executive Order 13175 does not apply to this rule, EPA consulted with
Tribal officials and others by discussing potential renovation
regulatory options for the renovation, repair, and painting program at
several national lead program meetings hosted by EPA and other
interested Federal agencies.
EPA specifically solicits additional comment on this proposed rule
from Tribal officials.
G. Children's Health Protection
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) applies to this supplemental rule because, when considered in
conjunction with the 2006 Proposal, the combination would be designated
as an ``economically significant regulatory action'' as defined by
Executive Order 12866, and because the environmental health or safety
risk addressed by this action have a disproportionate effect on
children. Accordingly, EPA has evaluated the environmental health or
safety effects of renovation, repair, and painting projects on
children. Various aspects of this evaluation are discussed in the
preamble to the 2006 Proposal (Ref. 1).
The primary purpose of this supplemental proposed rule is to
prevent the creation of new lead-based paint hazards from renovation,
repair, and painting activities in child-occupied facilities. In the
absence of this regulation, adequate lead-safe work practices are not
likely to be employed during renovation, repair, and painting
activities. EPA's analysis indicates that there will be approximately
916,000 exposures avoided per year to children under age 6 as a result
of the rule. These children are projected to receive considerable
benefits due to this regulation.
H. Energy Effects
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, entitled ``Actions concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have any adverse
effect on the supply, distribution, or use of energy.
I. Technology Standards
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
In the 2006 Proposal, EPA proposed to adopt a number of work
practice requirements that could be considered technical standards for
performing renovation projects in residences that contain lead-based
paint. This supplemental proposal would extend those work practice
requirements to child-occupied facilities that contain lead-based
paint. As discussed in Unit VIII.I. of the 2006 Proposal, EPA
identified two potentially-applicable voluntary consensus standards
(Ref. 1 at 1626). ASTM International (formerly the American Society for
Testing and Materials) has developed 2 potentially-applicable
documents: ``Standard Practice for Clearance Examinations Following
Lead Hazard Reduction Activities in Single-Family Dwellings and Child-
Occupied Facilities'' (Ref. 15), and ``Standard Guide for Evaluation,
Management, and Control of Lead Hazards in Facilities'' (Ref. 16). With
respect to the first document, EPA did not propose to require
traditional clearance examinations, including dust sampling, following
renovation projects. However, EPA did propose to require that a visual
inspection for dust, debris, and residue be conducted after cleaning
and before post-renovation cleaning verification is performed. The
first ASTM document does contain information on conducting a visual
inspection before collecting dust clearance samples. The second ASTM
document is a comprehensive guide to identifying and controlling lead-
based paint hazards. Some of the information in this document is
relevant to the work practices that EPA proposed to require. Each of
these ASTM documents represents state-of-the-art knowledge regarding
the performance of these particular aspects of lead-based paint hazard
evaluation and control practices and EPA continues to recommend the use
of these documents where appropriate. However, because each of these
documents is extremely detailed and encompasses many circumstances
beyond the scope of this rulemaking, EPA determined that it would not
be practical to incorporate these voluntary consensus standards into
the 2006 Proposal.
In addition, the 2006 Proposal contained a provision for EPA to
recognize test kits that could be used by certified renovators to
determine whether components to be affected by a renovation contain
lead-based paint. Under that proposal, EPA would recognize those kits
that meet certain performance standards for limited false positives and
negatives. Further, EPA would also recognize only those kits that have
been properly validated by a laboratory independent of the kit
manufacturer. Although EPA did not propose to establish a particular
method to be used for validating kits, for chemical spot test kits, EPA
announced its intention to look to the ASTM document entitled
``Standard Practice for Evaluating the Performance Characteristics of
Qualitative Chemical Spot Test Kits for Lead in Paint'' (Ref. 17) to
determine whether a particular kit's validation is adequate.
The provisions discussed here would apply equally to renovation
projects in child-occupied facilities. EPA welcomes comments from
entities potentially regulated by this supplemental proposal on this
aspect of the proposed rulemaking. EPA specifically invites these
entities to identify potentially applicable voluntary consensus
standards and to explain why such standards should be used in this
regulation.
J. Environmental Justice
Under Executive Order 12898, entitled ``Federal Actions to Address
[[Page 31038]]
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994), the Agency has assessed
the potential impact of this proposal on minority and low-income
populations. The results of this assessment are presented in the
Supplemental Economic Analysis for this proposal, which is available in
the public docket for this rulemaking (Ref. 6). The rule will not have
disproportionately high and adverse human health or environmental
effects on minority populations and low-income populations.
List of Subjects in 40 CFR Part 745
Child-occupied facility, Environmental protection, Housing
renovation, Lead, Lead-based paint, Renovation, Reporting and
recordkeeping requirements.
Dated: May 24, 2007.
Stephen L. Johnson,
Administrator.
Therefore, it is proposed that 40 CFR chapter I be amended as
follows:
PART 745--[AMENDED]
1. The authority citation for part 745 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
2. Section 745.80 is revised to read as follows:
Sec. 745.80 Purpose.
This subpart contains regulations developed under sections 402 and
406 of the Toxic Substances Control Act (15 U.S.C. 2682 and 2686) and
applies to all renovations performed for compensation in target housing
and child-occupied facilities. The purpose of this subpart is to ensure
the following:
(a) Owners and occupants of target housing and child-occupied
facilities receive information on lead-based paint hazards before these
renovations begin; and
(b) Persons performing renovations regulated in accordance with
Sec. 745.82 are properly trained; renovators, dust sampling
technicians, and firms performing these renovations are certified; and
lead-safe work practices are followed during these renovations.
3. Section 745.81 is revised to read as follows:
Sec. 745.81 Effective dates.
(a) Training, certification and accreditation requirements and work
practice standards. The training, certification and accreditation
requirements and work practice standards in this subpart are applicable
as of [insert date 1 year after date of publication of the final rule
in the Federal Register] in any State or Indian Tribal area that does
not have a renovation program that is authorized under subpart Q of
this part. The training, certification and accreditation requirements
and work practice standards in this subpart will become effective as
follows:
(1) Training programs. Effective [insert date 60 days after date of
publication of the final rule in the Federal Register], no training
program may provide, offer, or claim to provide training or refresher
training for EPA certification as a renovator or a dust sampling
technician without accreditation from EPA under Sec. 745.225. Training
programs may apply for accreditation under Sec. 745.225 beginning
[insert date 1 year after date of publication of the final rule in the
Federal Register].
(2) Firms. Firms may apply for certification under Sec. 745.89
beginning [insert date 18 months after date of publication of the final
rule in the Federal Register].
(i) No firm may perform, offer, or claim to perform renovations, as
defined in this subpart, without certification from EPA under Sec.
745.89 on or after [insert date 2 years after date of publication of
the final rule in the Federal Register]:
(A) In any target housing where the firm obtains information
indicating that a child under age 6 with a blood lead level greater
than or equal to 10 [mu]g/dL or the applicable State or local
government level of concern, if lower, resides there, or in any target
housing where the firm has not provided the owners and occupants with
the opportunity to inform the firm that a child under age 6 with such a
blood lead level resides there;
(B) In any child-occupied facility where the firm obtains
information indicating that the facility is used by a child under age 6
with a blood lead level greater than or equal to 10 [mu]g/dL or the
applicable State or local government level of concern, if lower, or in
any child-occupied facility where the firm has not provided the owners
and occupants with the opportunity to inform the firm that the facility
is used by a child under age 6 with such a blood lead level; or
(C) In target housing or child-occupied facilities constructed
before 1960, unless, in the case of owner-occupied target housing, the
firm has obtained a statement signed by the owner that the renovation
will occur in the owner's residence and no child under age 6 resides or
is provided child care there.
(ii) No firm may perform, offer, or claim to perform renovations,
as defined in this subpart, without certification from EPA under Sec.
745.89 on or after [insert date 3 years after date of publication of
the final rule in the Federal Register] in any target housing or child-
occupied facility, unless, in the case of owner-occupied target
housing, the firm has obtained a statement signed by the owner that the
renovation will occur in the owner's residence and no child under age 6
resides or is provided child care there.
(3) Individuals. (i) All renovations, as defined in this subpart,
must be directed by renovators certified in accordance with Sec.
745.90(a) and performed by certified renovators or individuals trained
in accordance with Sec. 745.90(b)(2) on or after [insert date 2 years
after date of publication of the final rule in the Federal Register]:
(A) In any target housing where the firm performing the renovation
obtains information indicating that a child under age 6 with a blood
lead level greater than or equal to 10 [mu]g/dL or the applicable State
or local government level of concern, if lower, resides there, or in
any target housing where the firm has not provided the owners and
occupants with the opportunity to inform the firm that a child under
age 6 with such a blood lead level resides there;
(B) In any child-occupied facility where the firm obtains
information indicating that the facility is used by a child under age 6
with a blood lead level greater than or equal to 10 [mu]g/dL or the
applicable State or local government level of concern, if lower, or in
any child-occupied facility where the firm has not provided the owners
and occupants with the opportunity to inform the firm that the facility
is used by a child under age 6 with such a blood lead level; or
(C) In target housing or child-occupied facilities constructed
before 1960, unless, in the case of owner-occupied target housing, the
firm performing the renovation has obtained a statement signed by the
owner that the renovation will occur in the owner's residence and no
child under age 6 resides or is provided child care there.
(ii) All renovations, as defined in this subpart, must be directed
by renovators certified in accordance with Sec. 745.90(a) and
performed by certified renovators or individuals trained in accordance
with Sec. 745.90(b)(2) on or after [insert date 3 years after date of
publication of the final rule in the Federal Register] in any target
housing or child-occupied
[[Page 31039]]
facility, unless, in the case of owner-occupied target housing, the
firm performing the renovation has obtained a statement signed by the
owner that the renovation will occur in the owner's residence and no
child under age 6 resides or is provided child care there.
(4) Work practices. (i) All renovations, as defined in Sec.
745.83, must be performed in accordance with the work practice
standards in Sec. 745.85 and the associated recordkeeping requirements
in Sec. 745.86(b)(6) and (b)(7) on or after [insert date 2 years after
date of publication of the final rule in the Federal Register]:
(A) In any target housing where the firm performing the renovation
obtains information indicating that a child under age 6 with a blood
lead level greater than or equal to 10 [mu]g/dL or the applicable State
or local government level of concern, if lower, resides there, or in
any target housing where the firm has not provided the owners and
occupants with the opportunity to inform the firm that a child under
age 6 with such a blood lead level resides there;
(B) In any child-occupied facility where the firm obtains
information indicating that the facility is used by a child under age 6
with a blood lead level greater than or equal to 10 [mu]g/dL or the
applicable State or local government level of concern, if lower, or in
any child-occupied facility where the firm has not provided the owners
and occupants with the opportunity to inform the firm that the facility
is used by a child under age 6 with such a blood lead level; or
(C) In target housing or child-occupied facilities constructed
before 1960, unless, in the case of owner-occupied target housing, the
firm performing the renovation has obtained a statement signed by the
owner that the renovation will occur in the owner's residence and no
child under age 6 resides or is provided child care there.
(ii) All renovations, as defined in this subpart, must be performed
in accordance with the work practice standards in Sec. 745.85 and the
associated recordkeeping requirements in Sec. 745.86(b)(6) and (b)(7)
on or after [insert date 3 years after date of publication of the final
rule in the Federal Register] in any target housing or child-occupied
facility, unless, in the case of owner-occupied target housing, the
firm performing the renovation has obtained a statement signed by the
owner that the renovation will occur in the owner's residence and no
child under age 6 resides or is provided child care there.
(5) The suspension and revocation provisions in Sec. 745.91 are
effective [insert date 2 years after date of publication of the final
rule in the Federal Register].
(b) Renovation-specific pamphlet. Before [insert date 8 months
after date of publication of the final rule in the Federal Register],
renovators or firms performing renovations in States and Indian Tribal
areas without an authorized program may provide owners and occupants
with either of the following EPA pamphlets: Protect Your Family From
Lead in Your Home or Protect Your Family from Lead During Renovation,
Repair & Painting. After that date, Protect Your Family from Lead
During Renovation, Repair & Painting must be used exclusively.
(c) Pre-Renovation Education Rule. With the exception of the
requirement to use the pamphlet titledProtect Your Family from Lead
During Renovation, Repair & Painting, the provisions of the Pre-
Renovation Education Rule in this subpart have been in effect since
June 1999.
4. Section 745.82 is revised to read as follows:
Sec. 745.82 Applicability.
(a) This subpart applies to all renovations performed for
compensation in target housing and child-occupied facilities, except
for the following:
(1) Minor repair and maintenance activities (including minor
electrical work and plumbing) that disrupt 2 square feet or less of
painted surface per component.
(2) Renovations in target housing or child-occupied facilities in
which a written determination has been made by an inspector (certified
pursuant to either Federal regulations at Sec. 745.226 or a State or
Tribal certification program authorized pursuant to Sec. 745.324) that
the components affected by the renovation are free of paint or other
surface coatings t