federal register

1

Wednesday

March 9, 1994

Part II

Environmental

Protection Agency

40 CFR Part 745

Lead; Requirements for Hazard Education

Before Renovation of Target Housing;

Proposed Rule

Lead Hazard Information Pamphlet;

Notice of Availability; Notice
2 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 745

[OPPTS–62131; FRL–4637–5]

RIN 2070–AC65

Lead; Requirements for Hazard

Education Before Renovation of Target

Housing

AGENCY: Environmental Protection Agency

(EPA).

ACTION: Proposed rule.

SUMMARY: As mandated by Title IV of the

Toxic Substances Control Act, EPA proposes

requirements to ensure that owners and

occupants of target housing fully understand

the potential hazards of lead-based paint

exposure before certain renovations are begun

on that housing. Specifically, before

renovating target housing for compensation,

renovators would be required to provide an

EPA lead hazard information pamphlet to the

owners and occupants of the housing. In

addition to providing general information on

the health hazards associated with lead, this

information pamphlet would advise owners

and occupants to take appropriate precautions

to avoid exposures to lead-contaminated dust

and lead-based paint debris that is sometimes

generated during renovations.

DATES: Written comments in response to this

proposed rule must be received on or before

May 9, 1994. If persons request an

opportunity for oral comment, EPA will

consider holding an informal hearing in

Washington, DC. The exact date, time, and

location of such a hearing, if held, will be

announced in the Federal Register. Requests

for oral comment must be received by April

8, 1994. EPA will decide whether to hold

such a hearing by April 28, 1994.

ADDRESSES: Submit three copies of all

written comments to: TSCA Document

Receipts (7407), Rm. NE–G99, Office of

Pollution Prevention and Toxics,

Environmental Protection Agency, 401 M St.,

SW., Washington, DC 20460. All comments

on this proposed rule should be identified by

the docket number OPPTS–62131. For further

information regarding the submission of

comments containing confidential business

information, see Unit X of this preamble.

FOR FURTHER INFORMATION CONTACT: For

general information contact: Susan B. Hazen,

Director, Environmental Assistance Division

(7408), Office of Pollution Prevention and

Toxics, Environmental Protection Agency,

401 M St., SW., Washington, DC 20460,

Telephone: 202–554–1404, TDD: 202–554–

0551. For technical information contact:

Charles Franklin, Chemical Management

Division (7404), Office of Pollution

Prevention and Toxics, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460, Telephone: 202–

260–1781, Fax number: 202–260–0770.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

This proposed rule is issued under the

authority of section 406(b) of the Toxic

Substances Control Act (TSCA), 15 U.S.C.

2686(b). TSCA was amended in 1992 to add

Title IV, entitled Lead Exposure Reduction,

by section 1021 of the Residential LeadBased Paint Hazard Reduction Act of 1992,

Pub. L. 102-550.

II. Background

A. Legal Background

In 1992, Congress, recognizing the need to

control the hazards of exposure to lead-based

paint, passed the Residential Lead-Based

Paint Hazard Reduction Act of 1992, Pub. L.

102–550 (‘‘the Act’’). Congress recognized

that lead-poisoning is a particular threat to

children under age 6, and emphasized the

needs of this vulnerable population within the

Act. The stated purposes of the Act are: (1)

To develop a strategy to build the

infrastructure necessary to eliminate leadbased paint hazards in all housing as

expeditiously as possible; (2) to reorient the

national approach to the presence of leadbased paint in housing to implement, on a

priority basis, a broad program to evaluate

and reduce lead-based paint hazards in the

Nation’s housing stock; (3) to encourage

effective action to prevent childhood leadpoisoning by establishing a workable

framework for lead-based paint hazard

evaluation and reduction and by ending the

current confusion over reasonable standards

of care; (4) to ensure that the existence of

lead-based paint hazards is taken into account

in the development of Government housing

policies and in the sale, rental, and renovation

of homes and apartments; (5) to mobilize

national resources expeditiously, through a

partnership among all levels of government

and the private sector, to develop the most

promising, cost-effective methods for

evaluating and reducing lead-based paint

hazards; (6) to reduce the threat of childhood

lead-poisoning in housing owned, assisted, or

transferred by the Federal Government; and

(7) to educate the public concerning the

hazards and sources of lead-based paint

poisoning and steps to reduce and eliminate

such hazards (section 1003 of the Act).

Actions under some sections of the Act are

to be developed and administered by the

Department of Housing and Urban

Development (HUD), some by EPA, and

some jointly accomplished by both agencies.

Several of the sections call for EPA

consultation with other Federal agencies.

Section 1021 of the Act amends TSCA (15

U.S.C. 2601, et seq.) by adding Title IV,

entitled ‘‘Lead Exposure Reduction.’’

Today’s proposed rule is issued under the

authority of section 406(b) of TSCA’s Title

IV. Section 406(b) directs EPA to issue

requirements for the provision of a lead

hazard pamphlet (developed under section

406(a)) to owners and occupants of target

housing before persons performing renovation

work for compensation begin such activities.

Below is a more detailed discussion of

several related provisions of the Act which

provides context for many of the decisions

made during the development of this

proposed rule.

Section 406(a) of TSCA requires EPA to

publish, after consultation with HUD and the

Department of Health and Human Services

(HHS), and after notice and an opportunity

for public comment, a pamphlet on lead and

the hazards of exposure to lead-based paint

in the home. The availability of this pamphlet

for public comment is published elsewhere in

this issue of the Federal Register. Following

the 60–day comment period, EPA will

incorporate comments as appropriate and

announce the availability of the revised final

version of the pamphlet in the Federal

Register. In addition to outlining health

effects and symptoms of lead exposure,

section 406(a) requires that this pamphlet

contain information on the potential hazards

of renovating dwellings containing lead-based

paint; recommend the performance of an

inspection or risk assessment for lead-based

paint before beginning renovations in target

housing; suggest precautionary measures for

protecting occupants during renovations in

homes containing lead-based paint; and

identify Federal, State, and local sources of

information on lead and lead-based paint.

Section 402(c)(1) of TSCA directs EPA to

issue guidelines for the conduct of renovation

and remodeling activities which may create a

risk of exposure to dangerous levels of lead

when performed in target housing, public

buildings constructed before 1978, and

commercial buildings.

Section 401 of TSCA provides a general

definition of a lead-based paint hazard.

Congress directed EPA under section 403 to

issue regulations defining this term more

specifically.

Section 404 of TSCA directs EPA to

develop an application process for those

States or Tribes which seek to administer and

enforce the standards, regulations, and

requirements established under sections 402

and/or 406. Section 404 also directs EPA to

develop and issue a Model State Program for

use by States/Tribes pursuing authorization

under these provisions. The authorization

process for States and Tribes will be proposed

by EPA in a separate rulemaking in the

Federal Register, including specific

definitions for the terms ‘‘State’’ and

‘‘Tribe.’’ This proposed rule does, however,

include information on the model State/Tribal

program for the provisions required under

section 406.

Two sections of the Residential LeadBased Paint Hazard Reduction Act of 1992

also require the dissemination of EPA’s lead
Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules 3

hazard pamphlet that is being developed

pursuant to section 406(a) of TSCA. First,

section 1018 requires EPA and HUD to

promulgate joint regulations for disclosure of

lead-based paint hazards in target housing

which is offered for sale or lease. The section

1018 regulations include the requirement that

the lead hazard pamphlet be given to

prospective purchasers or lessees. Section

1018 requirements will be proposed by EPA

and HUD in a joint rulemaking in a future

issue of the Federal Register. Second,

section 1012 amends section 302 of the LeadBased Paint Poisoning Prevention Act (42

U.S.C 4822) to require the provision of

EPA’s lead hazard information pamphlet to

purchasers and tenants of Federally-assisted

housing by the Secretary of HUD. The

section 1021 requirements are being

developed by HUD as a separate initiative.

B. Lead Background

1. Lead and lead-based paint. Lead is a

soft, bluish metallic element mined from rock

and found in its natural state all over the

world. Lead is virtually indestructible, is

nonbiodegradable, and has been known since

antiquity for its adaptability in making

various useful items. In modern times it has

been used to manufacture many different

products, including paint, batteries, pipes,

solder, pottery, and gasoline. From the turn

of the century through the 1940’s, paint

manufacturers frequently used lead as a

primary ingredient in many oil-based interior

and exterior house paints. Usage gradually

decreased through the 1950’s and 60’s as

latex paints (which are generally lead-free)

became more widespread. Although the

Consumer Product Safety Commission

(CPSC) banned lead-based paints from

residential use in 1978 (paint currently may

not have greater than .06 percent lead by

weight), HUD estimates that 75 percent of the

houses built in the United States before 1978

contain some lead-based paint (Ref. 3). By

current estimations, approximately 57 million

homes may contain lead-based paint (Ref. 3).

This lead-based paint may pose a potential

hazard to the occupants under some

conditions.

2. Lead hazards. Lead affects virtually

every system of the body. While it is harmful

to individuals of all ages, lead exposure is

especially harmful to children, fetuses, and

women of childbearing age. Results of recent

studies suggest that lead’s adverse effects

occur at blood-lead levels previously thought

to be safe; in fact, there does not yet appear

to be a discernable threshold for the adverse

effects of lead on the young.

Lead poisoning has been called ‘‘the silent

disease’’ because its effects often occur

gradually and imperceptibly, showing no

obvious symptoms. Over time, low levels of

lead in the bloodstream can cause learning

disabilities, interfere with growth, cause

permanent hearing and visual impairment,

and cause other damage to the brain and

nervous system. In large doses, lead can

cause blindness, brain damage, convulsions,

and even death. Lead exposure before or

during pregnancy can also affect fetal

development and cause miscarriages.

In 1991, the Secretary of HHS

characterized lead poisoning as the ‘‘number

one environmental threat to the health of

children in the United States’’(Ref. 1).

Although the percentage of children with

elevated blood-lead levels has declined over

the last 20 years with the reduction of lead

in gasoline, millions of U.S. children still

have levels of lead in their blood high enough

to seriously threaten their health (Ref. 1).

Lead-based paint poses a health threat

through various routes of exposure. Children

under age 6 may ingest lead-based paint chips

from flaking walls, window wells, and doors.

Lead from exterior house paint can flake off

or leach into the soil around the outside of

a home, contaminating children’s playing

areas. Dust caused during normal lead-based

paint wear (especially around windows and

doors) can create an invisible film over

surfaces in a house. In some cases, cleaning

and renovation activities can actually increase

the threat of lead-based paint exposure by

dispersing fine lead dust particles in the air

and over accessible household surfaces. Both

adults and children can receive hazardous

exposures by inhaling the fine dust or by

ingesting paint-dust during hand-to-mouth

activities.

III. Definitions

To implement the section 406

requirements, a number of terms need to be

defined. This section will provide the

proposed regulatory definition first in quoted

text followed by an explanation of the

definition’s source. Where possible, EPA has

drawn definitions directly from Title IV of

TSCA. In cases where the statute either failed

to define terms necessary for the rule or did

not provide a complete enough definition,

EPA is proposing appropriate definitions,

along with an explanation of their sources and

discussion of relevant issues. EPA is

accepting comment on all definitions not

taken directly from the statute.

Unless otherwise indicated, all definitions

will be located in Subpart A at 40 CFR 745.3

(Definitions). Definitions not included in

Subpart A would be applicable only to the

specific subpart in which they appear, in this

case, Subpart F.

a. Act means the Toxic Substances Control Act

(TSCA), 15 U.S.C. 260 et seq.

b. Administrator means the Administrator of the

Environmental Protection Agency.

c. Common area means a portion of a building

generally accessible to all residents/users including,

but not limited to, hallways, stairways, laundry and

recreational rooms, playgrounds, community

centers, and boundary fences.

EPA developed this definition by

modifying a definition provided in HUD’s

September 1990, version of Lead-Based

Paint: Interim Guidelines for Hazard

Identification and Abatement in Public and

Indian Housing. While EPA is proposing this

definition for use under the section 406

regulatory requirements, which only

addresses target housing, this definition

would potentially be applicable to other

rulemakings required pursuant to TSCA Title

IV and the Residential Lead Based Paint

Hazard Reduction Act (Pub. L. 102–550).

The modifications to HUD’s definition were

necessary to broaden the scope of ‘‘common

area’’ to meet the requirements of other

rulemakings which may refer to many types

of buildings.

d. Dwelling unit means a single, unified

combination of rooms designed for use as a

dwelling by one family.

EPA is proposing to use the same

definition promulgated by HUD in a final rule

published in the Federal Register of August

17, 1993 (58 FR 43522).

e. EPA means the Environmental Protection

Agency.

f. Lead-based paint means paint or other surface

coatings that contain lead in excess of 1.0

milligrams per centimeter squared or 0.5 percent by

weight or (A) in the case of paint or other surface

coatings on target housing, such lower level as may

be established by the Secretary of Housing and

Urban Development as defined under section

302(c) of the Lead-Based Paint Poisoning

Prevention Act, or (B) in the case of any other paint

or surface coatings, such other level as may be

established by the Administrator.

This definition appears in section 401(9) of

TSCA.

g. Lead-based paint hazard means any condition

that causes exposure to lead from leadcontaminated dust, lead-contaminated soil, lead

contaminated paint that is deteriorated or present

in accessible surfaces, friction surfaces, or impact

surfaces that would result in adverse human health

effects in pregnant women or young children.

This definition appears in section 401(10)

of TSCA.

h. Multi-family housing means a housing

property consisting of more than four dwelling

units.

EPA has drawn this definition from section

544 of Title V of the Community Housing

and Development Act of 1992 (Pub. L. 102–

550). The provisions of Title V are directed

at HUD and do not specifically address EPA

mandates. However, as EPA and HUD will

both be involved in developing regulations

involving lead-based paint in housing

(including multi-family housing), EPA

believes that its definition should be

consistent with both current and future

Federal lead-based paint regulations.

i. Owner means any individual, partnership,

corporation, or trusteeship that has legal right of

possession of residential property, or any person

legally authorized to represent that individual,

partnership, corporation, or trusteeship.

EPA intends to use this definition to clarify

that the owner of the housing should be
4 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules

considered the individual possessing and

managing a property, rather than a bank or

other loan-related organization. EPA invites

comment on this definition.

j. Person means any natural person, firm,

company, corporation, joint venture, partnership,

sole proprietorship, association, or any other

business entity, any State or political subdivision

thereof, any municipality, any interstate body, any

Indian tribe, and any department, agency, or

instrumentality of the Federal government.

EPA is proposing to use the same

definition of person as used by EPA’s

Asbestos program in 40 CFR 763.63(1), (with

the additional reference to Indian tribe) to

clarify that these many types of entities are

also regulated parties.

k. Residential dwelling means (a) a single-family

dwelling, including attached structures such as

porches and stoops, or (b) a single-family dwelling

unit in a structure that contains more than one

separate residential dwelling unit, and in which

each such unit is used or occupied, or intended to

be used or occupied, in whole or in part, as the

home or residence of one or more persons.

This definition appears in section 401(14)

of TSCA.

l. State has the same meaning as in section 3 of

the Toxic Substances Control Act.

m. Target housing means any housing

constructed prior to 1978, except 0-bedroom

dwellings, or housing for the elderly or persons

with disabilities (unless any child who is less than

6 years of age resides or is expected to reside in

the dwelling). In the case of jurisdictions which

banned the sale or use of lead-based paint prior to

1978, the Secretary of Housing and Urban

Development, at the Secretary’s discretion, may

designate an earlier date.

This definition is provided in section

401(17) of TSCA. The Act excludes housing

constructed after 1978 since lead-based paint

was banned by CPSC from all residential use

after that date.

EPA interprets the term ‘‘0-bedroom

dwelling’’ to mean any dwelling in which the

living area is unseparated from the sleeping

area. Under this definition, efficiencies and

studio apartments, loft space, and single-room

dormitory units would be exempt from the

requirements of this proposed rule unless

children under 6 years of age reside or may

reside in the unit.

As directed in the statute, the exclusions

for 0-bedroom dwelling, elderly housing, and

handicapped housing do not apply to any

housing in which children under 6 years old

reside or are expected to reside.

EPA also considered whether Congress

intended to include hotels, motels, inns, and

other commercial lodging facilities in the

term ‘‘housing.’’ Although not specifically

stated, EPA believes it is reasonable to

interpret that Congress’ intent was to

distinguish residential housing from

commercial lodging facilities. Specifically,

the definition of target housing intends to

capture housing designed for long-term or

continuous residence (e.g., apartments,

condominiums, and houses), as opposed to

lodging facilities offering temporary

accommodations (e.g., hotels and motels).

Given the high frequency and short duration

of transactions, EPA believes it is impractical

to apply the requirements of this subpart to

rental transactions in motels, hotels, and other

commercial lodging facilities. In cases where

families with children under 6 years of age

might rent or purchase such units as longterm residences, however, EPA believes it is

consistent with the statute for those

establishments to be considered target

housing under this subpart’s requirements.

EPA requests comment on this definition

as it relates to the requirements under section

406 of TSCA.

n. TSCA means the Toxic Substances Control

Act (15 U.S.C. et seq.)

This definition appears in section 401(9) of

TSCA.

o. Renovation means the modifying of any

existing structure, or portion thereof, where

exposure to the hazards of lead-based paint may

result, unless the activity is performed as part of

a lead abatement program by a certified contractor,

or unless otherwise regulated by EPA in Subpart

G.

Section 406(b) of TSCA directs EPA to

issue regulations governing any person who

performs for compensation, a renovation of

target housing. Because the statute fails to

define ‘‘renovation,’’ EPA has sought to

develop a definition that is both consistent

with existing regulations and effective in

addressing the exposure prevention goals of

the statute. EPA is primarily concerned with

activities that may disturb existing lead-based

paint, and which may pose a potential hazard

to owners and occupants of the housing.

Although such a distinction is not explicitly

stated in the language of section 406(b), EPA

believes that such a distinction is consistent

with the hazard reduction goal of the

Residential Lead-Based Paint Hazard

Reduction Act of 1992 and Title IV of TSCA.

EPA is considering a number of

approaches to defining the term, and requests

comment on each approach in terms of which

could be most effectively used (individually

or in combination) to define ‘‘renovation’’ for

this rulemaking. The approaches being

considered include:

1. Definition modeled after EPA’s Asbestos

Program. EPA’s preferred option, as

proposed in the regulatory text, is to use a

general definition drawn from language used

by EPA’s Asbestos program. In 40 CFR

763.121(b), EPA regulations define

renovation as ‘‘Modifying of any existing

structure, or portion thereof, where exposure

to airborne asbestos may result.’’ By

replacing references to asbestos with leadbased paint, EPA’s proposed definition

provides a flexible framework for identifying

which activities would be regulated pursuant

to the section 406(b) requirements.

Despite the clear statutory distinction

between ‘‘renovation activities’’ and ‘‘leadbased paint activities’’, EPA recognizes that

many of the activities identified in the

renovation definition may also be performed

as part of lead-based paint abatement

programs. In cases where the activities being

performed meet the definition of a lead-based

paint abatement or lead-based paint activity,

EPA intends for the activities to be regulated

under the more comprehensive section 402(a)

standards and requirements, and has therefore

included an exemption for any activity

separately regulated under the more stringent

regulations to be issued in Subpart G. The

regulations governing performance of leadbased paint activities will be proposed in a

separate notice in the Federal Register in the

future. At that time, EPA will propose

specific definitions for lead-based paint

activities and abatements, and will request

further comment.

One drawback of such a general definition

is that it does not provide an objective way

of identifying which activities are of concern.

This lack of specificity may pose a problem

for the regulated community in complying

with the rule and for the government in

effectively enforcing it. For that reason, EPA

believes that this general definition may need

to be strengthened by the incorporation of

additional criteria, as offered below.

2. Develop list of specific activities of

concern. Recognizing the need for specific

information on what activities are defined as

renovations, EPA is considering incorporating

a list of regulated activities into the definition.

Section 402(c) of TSCA directed EPA to

conduct a study of the extent to which

persons engaged in various types of

renovation and remodeling activities in target

housing, public buildings constructed before

1978, and commercial buildings are exposed

to lead in the conduct of such activities. In

mandating this study, Congress clearly did

not intend for the results to be used as the

basis for developing the TSCA section 406

renovation regulations- -the deadline for

completion of the study is a full 12 months

after the deadline for promulgation of the

final section 406 regulations. Nevertheless, as

the activities under study represent EPA’s

preliminary determination regarding the

universe of activities that may be of concern,

EPA believes that they comprise a logical set

of activities for consideration as renovation

activities. The activities being studied were

chosen based on discussions with experts

familiar with the renovation and remodeling

industry, and include the following:

(1) Paint removal (e.g., floor refinishing

and stairs refinishing).

(2) Surface preparation for painting (both

interior and exterior).

(3) Removal of large structures other than

roof (e.g., walls, ceiling, large surface

replastering, major replumbing, room

additions).

(4) Window replacement.
Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules 5

(5) Enclosure of interior painted surfaces

(e.g., wallpapering).

(6) Enclosure of exterior painted surfaces

(e.g., siding).

(7) Removal of carpet or other floor

coverings (e.g., linoleum).

(8) Repairs or additions with isolated small

surface disruption (e.g., carpentry,

replacement of lead painted fixtures,

installation of light fixtures, electrical repair

and rewiring, plumbing repair, insulation

addition, furnace cleaning, ceramic tile

installation, counter top replacement, door

replacement, storm window installation, and

window repair).

(9) Roofing replacement and repair.

(10) Exterior soil disruption (e.g.,

landscaping, deck additions, sewer/water line

replacement or repair, basement

waterproofing, garage repair, concrete/brick/

masonry work, driveway/walk installation,

and septic tank/cesspool replacement).

These activities represent a range of

activities that may be performed during

‘‘renovation and remodeling.’’ Although

section 406(b) refers specifically to

‘‘renovations’’ only, EPA believes that the

commonly used meanings of the two terms

do not significantly differ and that any of the

listed activities could be conducted as part of

a renovation program. Therefore, pending

evidence to the contrary, all of the activities

noted above could potentially merit inclusion

under EPA’s definition of renovation.

EPA is requesting comment (and data, if

available) regarding which activities should

(or should not) be included in any definition

of renovation. Based on the comments EPA

receives, as well as any new or additional

relevant information EPA collects, EPA may

define some or all of the activities listed

above as renovation activities specifically

regulated by the final rule. EPA also may

include additional activities, if appropriate, in

the final rule’s definition of renovation, and

requests comments on whether some

activities of concern may be absent from the

current list.

3. Use the Occupational Safety and Health

Administration’s (OSHA) list of construction

tasks. EPA is considering using the

construction tasks identified by OSHA as

offering some risk of lead-exposure to

workers to identify renovation activities that

could result in lead exposure to housing

occupants. These tasks were identified in the

interim final rule entitled ‘‘Lead Exposure in

Construction’’ (58 FR 26590, May 4, 1993).

EPA requests comment on whether such tasks

adequately reflect the activities conducted

during housing renovations.

4. Identify specific job classifications. EPA

is considering using specific job

classifications that involve performing

remodeling or renovation activities that may

exacerbate the risk of lead-based paint

exposure in target housing as a basis for

identifying regulated activities. EPA has

considered several ways that specific worker

classifications could be identified.

One approach would be to base the listing

on the worker classifications included in

EPA’s study under TSCA section 402(c).

These classifications are being studied to

measure the levels of exposure to lead-based

paint stemming from the renovation activities.

The current classifications being studied

include: Painters; floor refinishing

contractors; plaster/drywall contractors;

exterior siding contractors; window

replacement contractors; electricians;

plumbers; roofers; linoleum/tile contractors;

carpet installers; cabinet installers; heating/

AC contractors; carpenters; insulation

contractors; basement waterproofing

contractors; bathroom remodelers; kitchen

remodelers; landscaping/excavation

contractors; and historic renovation

contractors. These classifications were

developed through discussions with experts

and professionals familiar with the renovation

and remodeling industry.

In identifying specific job classifications,

EPA is also considering linking the above

classifications to Standard Industrial

Classification (SIC) Codes for the business,

to ensure a common standard of

identification. If EPA could identify specific

SIC codes that performed renovations

involving target housing and potential leadbased paint exposure, then such a

classification would provide a clear method

for identifying regulated parties. Currently,

the Agency does not prefer this option

because of concerns that many workers and

firms may conduct activities that spill over

into activities that don’t affect lead-based

paint, raising questions of how closely SIC

codes would track the performance of

renovations in housing involving lead-based

paint. In addition, many individuals engaged

in renovation activities may perform many

different tasks covering several job

classifications, further clouding issues of

enforcement and compliance.

Regarding the whole question of

identifying job classifications, EPA requests

comment on what trades are missing from, or

inappropriate for, the list above and whether

any such list could be practically applied.

5. Identify all home improvement activities

within a specified cost range. Another option

being considered is to target all renovation,

remodeling, and home improvement activities

within a specific cost range (for example, any

home improvement costing over $250 would

be considered a renovation). While this option

provides a simple scheme for identifying

regulated activities, it does not necessarily

focus on relevant activities. Because some

inexpensive renovation activities may pose a

significant exposure hazard, EPA is

concerned that such a definition could result

in the omission of activities that are thought

to be high risk but low in cost.

6. Identify all home improvement activities

within a specified size. EPA is also

considering basing the definition of

renovation on the size of a job. For example,

size could be measured by the number of

square feet of painted surface disturbed, the

number of different painted surfaces

disturbed, or simply the total area of the

dwelling undergoing modification. EPA’s

main concern with this option is that some

activities while localized to a very small area,

might release significant amounts of leadbased paint or lead-based paint, and that such

a criterion might fail to capture the activities

of concern. However, as it could potentially

provide a simple method for identifying

regulated transactions, EPA requests

comments on the feasibility of such an

approach.

p. Renovator means any person who performs for

compensation a renovation of target housing or

public buildings.

Although Title IV of TSCA does not

provide a definition of renovator, section

406(b) specifically identifies the regulated

community as ‘‘each person who performs

for compensation a renovation of target

housing.’’

EPA recognizes that in many large multifamily dwellings or public buildings,

renovation activities may be performed by

maintenance staff retained by the owner of

the building. Because these individuals would

still be performing such activities for

compensation (through salary or retainer),

EPA would consider such individuals as

renovators for the purpose of this proposed

rule.

IV. Regulatory Requirements

A. Lead Hazard Information Pamphlet

Section 406(b) directs the Administrator to

promulgate regulations ‘‘to require each

person who performs for compensation a

renovation of target housing to provide a lead

hazard information pamphlet to the owner

and occupant of such housing prior to

commencing the renovation.’’ Section 745.87

of the regulatory text would require

renovators to provide owners and heads-ofhouseholds occupying target housing with

copies of the pamphlet: Lead-Based Paint:

Protect Your Family before beginning

renovations.

Recognizing that many target housing units

may be occupied by families other than the

dwelling owner, as in the case of rental

housing, EPA proposes to require the

renovator to provide the pamphlet to the head

of each household occupying the unit(s) being

renovated, as well as to the person requesting

and paying for the renovation work. This

interpretation is supported by the language in

section 406(b), which explicitly states that the

pamphlet must be provided to the owner and

occupant of such housing.

In addition, because some housing may be

managed by an individual or firm on behalf

of the owner, the regulations would allow

such an agent to represent the owner for the
6 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules

purposes of the provisions of this proposed

rule.

Finally, EPA recognizes that there may be

some types of renovations that will occur in

‘‘emergency situations’’ requiring action

before all occupants can be notified and

before they can fully comply with these

notification requirements. EPA requests

comment on identifying these situations and

on what may be an appropriate way to

address them under these regulations.

The final pamphlet will be available to the

public and the regulated community through

the Government Printing Office (GPO) for a

nominal fee for both individual and bulk

purchases. EPA is also encouraging person’s

to make their own reproductions of the

pamphlet, and will make a limited number of

camera-ready copies of the final pamphlet

available to organizations that wish to print

copies for private distribution. Any copies

reproduced for use in complying with this

rulemaking, however, must be copied in full,

and may not revise or delete material from

the pamphlet except to add or revise State or

local sources of information. EPA requests

comment on other mechanisms for

distributing the pamphlet to the general public

and the regulated community.

As required by section 406(a) of TSCA,

EPA will, in consultation with HHS and

HUD, revise the pamphlet as necessary to

maintain its technical accuracy. Following

each change, EPA will issue notice of the

revised version’s availability in the Federal

Register.

B. Acknowledgement

To help ensure the timely notification of

owners and occupants regarding the potential

hazards of renovation activities in target

housing, § 745.87 would require that

renovators obtain a signed, dated

acknowledgement from each owner and head

of household occupying the renovated

housing, indicating that the person had

received the pamphlet on the given date. The

proposed acknowledgement text would state:

I have received the pamphlet, Lead-Based Paint:

Protect Your Family, and am aware of the potential

health risks associated with renovating housing

containing lead-based paint.

The statement would be signed and dated

by the housing owner and heads of

households occupying the housing and would

be retained by the renovator. This

acknowledgement could exist as a separate

sheet or as a part of each sales/service

contract or agreement. EPA proposes to

require that the acknowledgement text be

printed in at least 12–point type to ensure that

the text is readable and noticeable.

Recognizing the importance of reaching

non-English speaking residents of target

housing, EPA is proposing requirements to

address renovations performed in

predominantly non-English speaking areas. If

the parties use a written service contract or

agreement, and if the service contract or

agreement is in a language other than English,

then the acknowledgment would have to be

in the same language as the contract or

agreement. The Agency proposes this

provision as a necessary measure in achieving

a more equitable Federal lead-based paint

program.

EPA is requesting comment on these

provisions, including whether the alternative

language provisions provide an appropriate

level of protection to non-English speaking

occupants of target housing.

C. Renovations in Multi-Family Dwellings

EPA has also considered the issue of

regulating renovation activities that occur in

buildings containing many separate housing

units. Such dwellings pose additional

challenges because, depending on the type of

renovation being conducted, as the number of

units in the dwelling increase, pamphlet

distribution may be increasingly difficult for

renovators. At the same time, since many

multi-family dwellings (defined for this

proposed rulemaking as housing properties

consisting of more than four dwelling units)

may have been built before lead-based paint

use was restricted, these dwellings may pose

lead-based paint hazards to occupants if

renovations are conducted without care.

EPA has considered two issues regarding

renovations in multi-family dwellings:

Renovations conducted within specific units

of a multi-family dwelling, and renovations

performed in common areas of the multifamily dwelling.

1. Renovations in individual units. EPA

believes that renovations performed within

specific units of multi-family dwellings

should be treated in the same manner as

single-family dwellings (housing properties

containing less than five dwelling units): the

owner and occupants should be notified and

provided a pamphlet in advance of

commencement of renovation activities. The

Agency sees no rationale for distinguishing

between the two regarding the risks of

exposure.

During large-scale or long-term

renovations to units in multi-family housing,

EPA proposes the following clarification. In

cases where an owner employs a renovator to

conduct renovations in several different

housing units within a multi-family dwelling,

EPA would still require the renovator to (1)

Provide the occupants of each unit

undergoing renovation with a copy of the

pamphlet and (2) maintain signed

acknowledgements from each affected headof-household. The renovator could fulfill his/

her obligations regarding the owner, however,

by providing one pamphlet and maintaining

one signed acknowledgment covering all

renovations performed throughout the

dwelling, rather than by repeating the same

owner-notification activities for each unit or

area renovated.

2. Renovations in common areas. EPA also

believes that for the purposes of the section

406(b) rule, a practical distinction should be

made between renovation activities in

common areas of multi-family dwellings and

renovations within specific living areas of the

dwellings. Since renovation activities may

occur in various hallways or lobbies of a

building on a frequent basis, it could be

impractical to require a renovator to provide

all occupants with a new pamphlet before the

commencement of each renovation, especially

in dwellings with larger numbers of

residential units. Such a requirement would

be difficult to implement and enforce, and

would likely lead to non-compliance.

EPA still believes that it is important that

occupants be informed of renovations in

common areas as they occur to provide

warning of potential lead-based paint hazards

and to ensure their ability to take appropriate

precautions. Therefore, under § 745.87, EPA

proposes to require that before conducting

target renovation activities in common areas

of multi-family target housing, the renovator

would be required to notify, in writing, all

occupants of the dwelling of the intended

renovation and to make the EPA pamphlet

Lead-Based Paint: Protect Your Family

available upon request. This notification

would be required to include: The general

nature and location(s) of the planned

renovation activities; the expected starting

and ending dates of the planned renovation

activities; and a statement of how the

occupant can obtain the lead hazard

information pamphlet from the renovator.

EPA recognizes that in some cases, large

renovations could take an extended period of

time or cover several different common areas

of a multi-family dwelling. In that case, if the

initial notification provides accurate

information on the scope of renovations

planned in the various areas, with an accurate

schedule of their performance, then that initial

notification would be sufficient to meet the

requirements of this proposed rulemaking. If

the scope, location, or timeframe of the

activities change in a way not reflected in the

original notification, then the renovator would

be obligated to provide updated information

in an additional notification process. This

updated information is necessary to ensure

that owners and occupants can, if necessary,

adequately protect themselves from exposure

to the hazards of lead-based paint.

Notification activities could be performed

by the renovator or by the owner of the

dwelling on behalf of the renovator. The

notification process could be accomplished by

distributing a letter or flyer containing the

required information to each head of

household occupying the housing. Even if the

owner agreed to perform the notification

activities, however, the responsibility to

assure compliance would still rest with the

renovator, as required by section 406(b).
Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules 7

D. Recordkeeping Requirements

Section 407 of Title IV of TSCA gives

EPA the authority to promulgate

recordkeeping and reporting requirements that

are necessary to implement Title IV

effectively. EPA is using this authority to

propose the following requirements to ensure

compliance and to aid EPA in its enforcement

of the provisions in this proposed rule.

Under EPA’s proposed § 745.90,

renovators would be required to keep, for 3

years after completion of the renovation,

specific records documenting compliance

with the rule.

If all renovation activities occur in private

areas of target housing units, these records

would include:

1. The address/location of the renovated

target housing. This information is important

for EPA compliance monitoring and

enforcement actions.

2. A list of all heads of households

occupying the renovated target housing

unit(s) at the commencement of renovations.

Because the rule would require that both the

owners and occupants of target housing

receive the pamphlet, EPA is proposing to

require retention of this list as a record of the

persons that should have received the

pamphlet. EPA is focusing on occupants of

the housing at the commencement of

renovations recognizing that individuals who

become occupants after renovations have

begun would have already received the

pamphlet under the requirements being

developed pursuant to section 1018 of the

Lead-Based Paint Hazard Reduction Act of

1992.

3. Copies of the signed and dated

acknowledgements from each housing owner

and each head of household occupying the

renovated unit(s). EPA proposes to require

this record as the primary proof of

compliance with the regulation. In cases

where EPA began an enforcement action

based on a tip or complaint, the

acknowledgement form would be a crucial

record in establishing compliance with the

rule.

In the case of renovation activities

performed in common areas of multi-family

target housing, the renovator would still be

required to maintain the following records:

1. The address/location of the renovated

target housing.

2. Signed and dated acknowledgements

from the owner(s) of the target housing

requesting the renovation.

3. A signed and dated statement describing

the steps performed by the renovator or

owner to notify all occupants of the intended

renovation activities and to provide the lead

hazard information pamphlet upon request.

EPA is proposing not to require specific

language for the statement, provided that it

clearly indicates: The dates between which

renovation activities took place; the general

nature of the renovation activities conducted;

and the measures taken to notify all occupants

of the planned renovation activities as

outlined in the proposed § 745.87. This

statement would be signed and dated by the

owner as well as the renovator.

4. Copies of any letter or flyer sent to the

occupants of the housing as part of the

notification process.

These records would be retained by the

renovator for 3 years after completion of the

renovation as proof of compliance.

EPA requests comment on whether the

proposed recordkeeping requirements are

reasonable, too stringent, or not stringent

enough, and whether there may be other more

effective recordkeeping requirements or

mechanisms to facilitate compliance

monitoring.

V. Enforcement

Failure or refusal to comply with any

provision of the final rule would be a

violation of TSCA section 409, subjecting the

violator to penalties under TSCA section 16

(15 U.S.C. 2615). These penalties include the

following:

1. Civil penalties. Any person who violates

a provision of the final rule would be liable

to the United States for a civil penalty in an

amount not to exceed $25,000 for each such

violation.

2. Criminal penalties. Any person who

knowingly or willfully violates any provision

of the final rule would, in addition to any

civil penalty, be subject upon conviction, to

a fine of not more than $25,000 for each day

of violation, or to imprisonment for not more

than 1 year, or both.

VI. State/Tribal Administration and

Enforcement of Section 406(b)

Section 404(a) of TSCA directs EPA to

develop an application process for those

States or Tribes which seek to administer and

enforce the standards, regulations, and

requirements established under sections 402

and/or 406. Section 404(b) states that the

Administrator may approve such an

application only after finding that the State/

Tribal program is at least as protective of

human health and the environment as the

Federal program established according to the

mandate of section 402 or 406 of TSCA, and

that it provides adequate enforcement. The

procedures for submitting a State/Tribal

application will be proposed in a separate

Federal Register notice in the future.

For State and Tribal implementation

purposes, EPA recognizes a distinction

between section 406(a), the development of

a lead hazard information pamphlet, and

regulatory requirement section 406(b), for

distribution of the pamphlet. Since the

pamphlet must be developed in consultation

with HHS and HUD, for use in other rules

in other sections of the Residential LeadBased Paint Hazard Reduction Act of 1992,

EPA will limit the authorization of State/

Tribal programs to administration of section

406(b). EPA believes that the authority to

develop a lead hazard information pamphlet

cannot be delegated to States or Tribes, given

the dependence of many agencies on the

pamphlet, and the need for uniformity in

several statutory sections of the Act.

VII. Model State Program

To support State and tribal efforts to

develop an authorized program, section

404(d) of TSCA directs EPA to promulgate

a model State program which may be adopted

by any State which seeks to administer and

enforce the provisions of sections 402 and

406 of TSCA. Given that section 404(b)

requires authorized State programs to be at

least as protective as the Federal program, the

Agency expects that a State program seeking

authorization, would resemble, in significant

respects, the Federal program, and further,

that the regulations proposed in §§ 745.80

through 745.99 would serve as an appropriate

model for such a State program. Therefore,

the Agency is at this time proposing these

regulations as the model program.

Section 745.87 contains procedures and

requirements for the provision of EPA’s lead

hazard information pamphlet to owners and

occupants of target housing by renovators.

The proposed § 745.90 contains

recordkeeping requirements necessary to

monitor and enforce compliance with the

requirements.

This model will be especially useful to the

many States that do not currently have

notification requirements in residential

housing. The Agency believes that adoption

of this program would effectively increase the

awareness of owners and occupants of target

housing regarding the issues associated with

renovating housing with lead-based paint.

However, the State program need not

duplicate the Federal program in order to

receive authorization from EPA. A State may

choose to develop its own program, and it

would be evaluated to determine if it is as

protective as the Federal program.

VIII. Procedures for Requesting a Public

Hearing

If persons request time for oral comment,

EPA will consider holding an informal

hearing in Washington, DC. Persons or

organizations desiring to participate in the

informal hearing must file a written request

to participate. The written request to

participate must be sent to the Environmental

Assistance Division at the address listed

under FOR FURTHER INFORMATION

CONTACT and must be received by EPA by

April 8, 1994. The written request to

participate must include: (1) A brief statement

of the interest of the person or organization

in the proceeding; (2) a brief outline of the

points to be addressed; (3) an estimate of the

time required; and (4) if the request comes

from an organization, a non-binding list of the

persons to take part in the presentation.

Organizations are requested to bring with
8 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules

them, to the extent possible, employees with

individual expertise in and responsibility for

each one of the areas to be addressed.

Organizations which do not file written

comments will not be allowed to participate

at the hearing.

EPA will decide whether to hold a hearing

by April 28, 1994.

IX. Rulemaking Record

A record for this proposed version of the

rule has been established under docket

number ‘‘OPPTS–62131.’’ The public record

is available for inspection from 12 noon to

4 p.m., Monday through Friday, excluding

legal holidays. The public version of the

record (which does not contain confidential

business information) is located in the TSCA

NCIC, Rm. E–G102, 401 M St., SW.,

Washington, DC 20460.

The draft of the proposed rule submitted by

the Administrator to OMB review prior to

proposal will also be contained in the docket,

as will the drafts of the final rule submitted

for review before promulgation.

The following list of documents were used

by the Agency in developing this regulation

and can be found in the docket. Other

documents, including those submitted with

written comments from interested parties, will

be included in the docket following the

publication of this proposal in the Federal

Register.

1. Alliance to End Childhood Lead

Poisoning, Preventing Childhood Lead

Poisoning: The First Comprehensive National

Conference; Final Report. October 6, 7, 8,

1991. (pp. A1-A10)

2. DOL, OSHA, Lead Exposure in

Construction; Interim Final Rule. May 4,

1993.

3. EPA, Lead Poisoning and Your

Children. EPA/800-B-92-0002, September

1992

4. EPA, DRAFT: Reducing Exposure to

Lead in the Home; An Action Guide for

Families. (January 1992).

5. U.S. Government Printing Office. Code

of Federal Regulations July 1, 1992. (40 CFR

763.121)

6. U.S. Government Printing Office. Code

of Federal Regulations July 1, 1992. (40 CFR

763.63(1))

7. U.S. Congress. The Residential LeadBased Paint Hazard Reduction Act of 1992

(Pub. L. 105-550).

8. HHS, PHS, CDC, Preventing Lead

Poisoning in Young Children; A Statement by

The Centers For Disease Control. October

1991.

9. HHS, PHS, ATSDR, The Nature and

Extent of Lead Poisoning in Children in the

United States: A Report to Congress. July

1988. (pp. 1-16)

10. HUD, Office of Lead-Based Paint

Abatement and Poisoning Prevention. LeadBased Paint; Interim Guidelines for Hazard

Identification and Abatement in Public and

Indian Housing; Notice. April 18, 1990.

11. HUD, Office of Lead-Based Paint

Abatement and Poisoning Prevention. LeadBased Paint: A Threat to Your Children. U.S.

GPO: 1993-351-568. January 1993.

X. Confidential Business Information

While EPA does not anticipate the receipt

of much (if any) confidential business

information in connection with this proposed

rule, a person may assert a claim of

confidentiality for any business information,

including all or portions of written comments,

submitted to EPA in connection with this

proposed rule. Any person who submits a

comment subject to a claim of confidentiality

must also submit a nonconfidential version.

Any claim of confidentiality must accompany

the information when it is submitted to EPA.

Persons must mark information claimed as

confidential by circling, bracketing, or

underlining it, and marking it with

‘‘CONFIDENTIAL’’ or some other

appropriate designation. EPA will disclose

information subject to a claim of

confidentiality only to the extent permitted by

section 14 of TSCA and 40 CFR part 2,

subpart B. If a person does not assert a claim

of confidentiality for information in

comments at the time it is submitted to EPA,

EPA will place the information in the public

record for this rulemaking without further

notice to that person.

XI. References

1. Alliance to End Childhood Lead

Poisoning, Preventing Childhood Lead

Poisoning: The First Comprehensive National

Conference; Final Report. October 6, 7, 8,

1991.

2. DOL, OSHA, Lead Exposure in

Construction; Interim Final Rule. (May 4,

1993).

3. HUD, Office of Lead-Based Paint

Abatement and Poisoning Prevention. LeadBased Paint; Interim Guidelines for Hazard

Identification and Abatement in Public and

Indian Housing; Notice. April 18, 1990.

XII. Regulatory Assessment Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency must

determine whether the regulatory action is

‘‘significant’’ and therefore subject to review

by the Office of Management and Budget

(OMB) and the requirements of the Executive

Order. Under section 3(f), the order defines

a ‘‘significant regulatory action’’ as an action

that is likely to result in a rule: (1) Having

an annual effect on the economy of $100

million or more, or adversely and materially

affecting a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or State,

local or tribal governments or communities

(also referred to as ‘‘economically

significant’’); (2) creating serious

inconsistency or otherwise interfering with an

action taken or planned by another agency;

(3) materially altering the budgetary impacts

of entitlement, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or (4) raising novel legal

or policy issues arising out of legal mandates,

the President’s priorities, or the principles set

forth in this Executive Order.

Pursuant to the terms of this Executive

Order, EPA has determined that this proposed

rule is ‘‘significant’’ because it raises novel

policy issues arising out of its legal mandate

in the Residential Lead-Based Paint Hazard

Reduction Act.

EPA has prepared a Regulatory Impact

Analysis (RIA) in conjunction with its

proposed lead information disclosure rule for

renovation activities. EPA finds that the

proposed rule will not have an effect on the

economy of $100 million or more, will not

result in major increases in costs or prices,

and is not anticipated to have significant

adverse effects on competition, employment,

investment, or productivity in the relevant

sectors.

EPA estimates the overall costs to affected

entities to be $59,700,000. This estimate

includes costs for rule familiarization,

information disclosure and obtaining required

signatures, recordkeeping, and materials

costs. EPA estimates that the provisions of

the rule as proposed would add about $5.00

to the cost of each transaction.

A copy of the RIA is available in the

TSCA Nonconfidential Information Center

(NCIC) (also known as the TSCA Public

Docket Office), for review and copying (see

Unit IX of this preamble).

This action was submitted to OMB for

review, as required by Executive Order

12866, and any comments or changes made

in response to OMB suggestions or

recomendations have been documented in the

public record.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980

requires each Federal agency to perform a

Regulatory Flexibility Analysis for all rules

that are likely to have a ‘‘significant impact

on a substantial number of small entities.’’ In

an effort to identify and characterize the

proposed rule’s effects on small business,

EPA has prepared an Initial Regulatory

Flexibility Analysis (IRFA). This assessment

has been included as part of the Regulatory

Impact Analysis (RIA), and is summarized

below.

In assessing small business impacts, EPA

first developed an establishment profile for

each major sector. This profile indicated that

approximately 80 to 90 percent of all

establishments in SICs 15, 17, 651, and 653

fell within the 1 to 9 employee size class.

Thus, a substantial number of small firms are

estimated to be potentially affected by the

proposed rule.

To measure the cost impacts of the

proposed rule on these small establishments,
Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules 9

representative or model establishments were

designed. These model establishments

corresponded to typical establishments, with

respect to number of employees and annual

transaction volume, in each affected sector.

Since transaction activity was reported to

vary widely, a range of transaction volume

was estimated for each establishment type.

For each model establishment, annual

regulatory costs were then calculated and

compared to annual labor and overhead costs.

Ratios were computed for both high and low

estimates of the range of transaction activity.

In the case of a multi-trade renovation

contractor, regulatory costs were found to

represent from 0.05 to 0.14 percent of labor

and overhead costs. In the case of a specialty

trade contractor, impacts were somewhat

higher, ranging from 0.35 to 0.84 percent. An

establishment engaged in rental property

management was projected to sustain impacts

of 0.99 to 1.95 percent.

Thus, while a large number of small

establishments will be potentially affected by

the rule, cost impacts were not found to be

of sufficient magnitude to cause undue harm

to such establishments. Consequently, no

regulatory alternatives are being proposed in

connection with small business impacts.

Pursuant to section 605(b) of the

Regulatory Flexibility Act, 5 U.S.C. 605(b),

EPA certifies that this proposed rule would

not have a significant economic impact on a

substantial number of small entities.

C. Paperwork Reduction Act

The information collection requirements in

this proposed rule have been submitted for

approval to OMB under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR)

document has been prepared by EPA (ICR

No. 1669.01) and a copy may be obtained

from Sandy Farmer, Information Policy

Branch (2136), Environmental Protection

Agency, 401 M St., SW., Washington, DC

20460, or by telephoning (202) 260–2740.

This collection of information has an

estimated recordkeeping burden averaging

11.5 minutes per response (at 5.8 minutes/

respondent), and to require 7.7 minutes per

recordkeeper, annually. These estimates

include time to review instructions, search

existing data sources, gather and maintain the

data needed, and complete the collection of

information.

Send comments regarding the burden

estimate or any other aspect of this collection

of information, including suggestions for

reducing this burden to Chief, Information

Policy Branch (2136), Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20503, marked ‘‘Attention:

Desk Officer for EPA.’’ The final rule will

respond to any OMB or public comments on

the information collection requirements

contained in this proposal.

List of Subjects in 40 CFR Part 745

Environmental protection, Abatement,

Housing renovation, Lead, Lead-based paint,

Reporting and recordkeeping requirements.

Dated: February 28, 1994.

Carol M. Browner,

Administrator.

Therefore, it is proposed that Chapter I of

40 CFR be amended by adding a new part

745 to read as follows:

PART 745—LEAD EXPOSURE

REDUCTION

Subpart A—General Provisions

Sec.

745.1 Scope, purpose, and authority.

745.3 Definitions.

745.7 Confidential business information.

Subparts B–D [Reserved]

Subpart E—Residential Property

Renovation

Sec.

745.80 Purpose, scope, and applicability.

745.85 Lead pamphlet.

745.87 Notification.

745.90 Recordkeeping requirements.

745.97 Penalties for noncompliance.

745.99 Effective date.

Authority: 15 U.S.C. 2686.

Subpart A—General Provisions

§ 745.1 Scope, purpose, and authority.

(a) This part contains regulations

developed under Title IV (15 U.S.C. 2681–

2692) and section 6 (15 U.S.C. 2605) of the

Toxic Substances Control Act.

§ 745.3 Definitions.

For purposes of this part, the following

definitions apply:

Act means the Toxic Substances Control

Act (TSCA), 15 U.S.C. et seq.

Administrator means the Administrator of

the Environmental Protection Agency.

Common area means a portion of a

building generally accessible to all residents/

users including, but not limited to, hallways,

stairways, laundry and recreational rooms,

playgrounds, community centers, and

boundary fences.

Dwelling unit means a single, unified

combination of rooms designed for use as a

dwelling by one family.

EPA means the Environmental Protection

Agency.

Lead-based paint hazard means any

condition that causes exposure to lead from

lead-contaminated dust, lead-contaminated

soil, lead-contaminated paint that is

deteriorated or present in accessible surfaces,

friction surfaces, or impact surfaces that

would result in adverse human health effects

in pregnant women or young children.

Multi-family housing means a housing

property consisting of more than four

dwelling units.

Owner means any individual, partnership,

corporation, or trusteeship that has legal right

of possession of residential property, or any

person legally authorized to represent that

individual, partnership, corporation, or

trusteeship.

Person means any natural person, firm,

company, corporation, joint venture,

partnership, sole proprietorship, association,

or any other business entity, any state or

political subdivision thereof, any

municipality, any interstate body, any Indian

tribe, and any department, agency, or

instrumentality of the Federal government

Renovation means the modifying of any

existing structure, or portion thereof, where

exposure to the hazards of lead-based paint

may result, unless the activity is performed

as part of a lead abatement program by a

certified contractor, or unless otherwise

regulated by EPA in Subpart G of this part.

Renovator means any person who performs

for compensation a renovation of target

housing or public buildings.

Residential dwelling means (1) a singlefamily dwelling, including attached structures

such as porches and stoops, or (2) a singlefamily dwelling unit in a structure that

contains more than one separate residential

dwelling unit, and in which each such unit is

used or occupied, or intended to be used or

occupied, in whole or in part, as the home

or residence of one or more persons.

TSCA means the Toxic Substances Control

Act (15 U.S.C. et seq.).

§ 745.7 Confidential business information.

Any person required to submit a document

or report to the EPA under this part may

assert a claim of confidentiality for the

information submitted. Any claim of

confidentiality must accompany the

information when it is submitted to EPA.

EPA will disclose information subject to a

claim of confidentiality only to the extent

permitted by section 14 of TSCA and 40 CFR

part 2, subpart B. If a person does not assert

a claim of confidentiality for information at

the time it is submitted to EPA, EPA may

make the information public without further

notice to that person.

Subpart B—D [Reserved]

Subpart E—Residential Property

Renovation

§ 745.80 Scope, purpose, and applicability.

This subpart applies to renovation activities

on target housing. Such housing may contain

lead-based paint and lead-based paint dust

that can pose a health hazard to occupants,

especially young children and pregnant

women. Persons or firms that perform

renovation services for compensation on

target housing must provide information on

hazards of exposure to lead-based paint

associated with renovation activities.
10 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Proposed Rules

§ 745.85 Lead pamphlet.

(a) Availability of pamphlet to the general

public and regulated community. The most

current version of EPA pamphlet No. XXX,

entitled Lead-Based Paint: Protect Your

Family, is available to the public and the

regulated community for a fee from the

Government Printing Office (GPO).

Interested parties should write to:

Government Printing Office, Superintendent

of Documents, Mail Stop XXX, Washington,

DC 20402–9328. In addition, persons may

reproduce this pamphlet, for use or

distribution, providing that the text and

graphics are reproduced in full.

(b) Pamphlet elements. The information

contained and presented in this pamphlet is

mandated in section 406(a) of TSCA (15

U.S.C. 2686), and may not be changed or

omitted during any reproduction of the

information for the purpose of compliance

with this subpart.

§ 745.87 Notification.

(a) Before beginning renovation activities

on specific target housing units, renovators

shall:

(1) Provide each owner and each head of

household occupying the units to be

renovated with a copy of the EPA pamphlet,

entitled Lead-Based Paint: Protect Your

Family.

(2) Obtain a signed, dated

acknowledgement from the owners and each

head of household occupying the housing unit

affirming that they have received the

pamphlet and are aware of the potential

health hazards from renovating housing

containing lead-based paint.

(i) The acknowledgement shall include the

following language:

I have received the pamphlet entitled Lead-Based

Paint: Protect Your Family and am aware of the

potential health risks associated with renovating

housing containing lead-based paint hazards.

(ii) Below the statement, the

acknowledgement shall require the signature

of each owner and head of household

occupying the unit, along with their dates of

signature.

(iii) The type size shall be no smaller than

12–point type.

(iv) The acknowledgement may be

included as a separate sheet or as a part of

any written contract or service agreement. It

must be completed before the commencement

of the target renovations.

(v) If the parties use a written contract or

agreement which is written in a language

other than English, the acknowledgement text

shall be written in the same language as the

text of the contract or agreement.

(b) Before beginning renovation activities

in common areas of multi-family target

housing, the renovator shall:

(1) Provide the owner(s) of the target

housing requesting the renovation with a copy

of the EPA pamphlet, entitled Lead-Based

Paint: Protect Your Family.

(2) Obtain a signed, dated

acknowledgement from the owner(s) of the

target housing requesting the renovation

affirming that they have received the

pamphlet and are aware of the potential

health hazards from renovating housing

containing lead-based paint.

(i) The acknowledgement shall include the

following language:

I have received the pamphlet entitled Lead-Based

Paint: Protect Your Family and am aware of the

potential health risks associated with renovating

housing containing lead-based paint hazards.

(ii) Below the statement, the

acknowledgement shall require the signature

of each owner requesting the renovation,

along with their dates of signature.

(iii) The type size shall be no smaller than

12–point type.

(iv) The acknowledgement may be

included as a separate sheet or as a part of

any written contract or service agreement.

(v) If the parties use a written contract or

agreement which is written in a language

other than English, the acknowledgement text

shall be written in the same language as the

text of the contract or agreement.

(3) Notify each owner and each head of

household occupying the target housing, in

writing, of the intended renovation and make

the EPA pamphlet Lead-Based Paint: Protect

Your Family available upon request. At

minimum, such notification shall be

accomplished by distributing written notice to

each owner and each head of household

occupying the target housing. The notice shall

describe: The general nature and location(s)

of the planned renovation activities, the

expected starting and ending dates of the

planned renovation activities, and a statement

of how the owners and occupants can obtain

the lead hazard information pamphlet, at no

charge, from the renovator. These activities

shall be conducted by either:

(i) The renovator.

(ii) The owner on behalf of the renovator.

(iii) If the notification activities are

performed by the owner of the building on

behalf of the renovator, the renovator shall

retain a signed and dated statement by the

owner of the dwelling describing the steps

performed to notify all occupants of the

intended renovation activities and to provide

the lead hazard information pamphlet, at no

charge, upon request. Regardless of who

performs the notification activities required

under this subpart, the renovator shall be

responsible for assuring compliance with this

subpart and shall be liable for any failures to

comply with the notification requirements in

this section.

(4) If the general nature, location(s), or

expected starting and ending dates of the

planned renovation activities change after the

initial notification has been conducted, the

renovator shall provide further notification to

the owners and heads of households

providing revised information on the ongoing

or planned activities.

§ 745.90 Recordkeeping requirements.

Renovators shall retain all records

necessary to demonstrate compliance with

this section for a minimum of 3 years

following completion of the renovation

services on target housing. These records

shall include:

(a) The address/location of the renovated

target housing.

(b) A list of all heads of households

occupying the renovated unit(s) at the

commencement of renovations.

(c) Copies of signed and dated

acknowledgements, as required by

§ 745.87(a)(2), from each owner and each

head of household occupying a renovated

unit.

(d) Copies of signed and dated

acknowledgements, as required by

§ 745.87(b)(2), from each owner requesting

renovations to common areas in multi-family

dwellings.

(e) Copies of all signed and dated

statements of notification, as well as copies

of all notification materials sent to all owners

and heads of household, as required in

§ 745.87(b)(3) for renovations to common

areas in multi-family dwellings.

§ 745.97 Penalties for noncompliance.

(a) Failure or refusal to comply with any

provision of this subpart is a violation of

TSCA section 409 (15 U.S.C. 2689),

subjecting the violator to penalties under

TSCA section 16 (15 U.S.C. 2615).

(b) Failure or refusal to establish and

maintain records or to permit access to or

copying of records, as required by this

subpart, is a violation of TSCA section 15 (15

U.S.C. 2614).

(c) Failure or refusal to permit entry or

inspection as required by TSCA section 11

(15 U.S.C. 2610) is a violation of TSCA

section 15 (15 U.S.C 2614).

(d) Violators may be subject to the civil

and criminal penalties in TSCA sections 16

and 409 for each violation.

§ 745.99 Effective date.

The Federal requirements in this subpart

shall take effect on April 28, 1996. In those

States or Tribal lands, which have not

obtained authorization, under § 745.XXX, to

administer and enforce this program, the

requirements in this subpart shall apply to any

renovation of target housing if the renovation

was commenced on or after April 28, 1996.

In States and Tribes that have obtained

authorization to implement their State/Tribal

program according to the requirements in

subpart X, individual State/Tribal

requirements may take effect before April 28,

1996.

[FR Doc. 94–5299 Filed 3–8–94; 8:45 am]

BILLING CODE 6560–50–F
Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Notices 11

ENVIRONMENTAL PROTECTION

AGENCY

[OPPTS–62133; FRL–4642–7]

Lead Hazard Information Pamphlet;

Notice of Availability

AGENCY: Environmental Protection Agency

(EPA).

ACTION: Notice of availability and request for

comment.

SUMMARY: This notice announces the

availability of EPA’s draft Lead Hazard

Information Pamphlet for review and

comment. EPA developed this pamphlet in

response to Congressional concerns about the

public’s knowledge of home lead-based paint

hazards. The Pamphlet is being developed

pursuant to section 406(a) of the Toxic

Substances Control Act (TSCA), and will be

distributed in conjunction with regulatory

provisions under section 406(b) of TSCA, and

sections 1012 and 1018 of the Residential

Lead-Based Paint Hazard Reduction Act.

DATES: Written comments in response to this

draft pamphlet must be received on or before

May 9, 1994.

ADDRESSES: Please submit three copies of all

written comments on this draft pamphlet to:

TSCA Document Receipts (7407), Rm. NE–

G99, Office of Pollution Prevention and

Toxics, Environmental Protection Agency,

401 M St., SW., Washington, DC 20460. All

comments on this draft pamphlet should be

identified by the docket number OPPTS–

62133.

FOR FURTHER INFORMATION CONTACT: For

a copy of the draft pamphlet, contact: TSCA

Document Receipts (7407), Rm. NE–G99,

Office of Pollution Prevention and Toxics,

Environmental Protection Agency, 401 M St.,

SW., Washington, DC 20460. Visitors can

pick up a copy in person by visiting the

TSCA Nonconfidential Information Center

(NCIC) in Rm. G99, or by calling (202) 260–

7099, between the hours of 12 noon and 4

p.m. For technical information contact:

Charles Franklin, Office of Pollution

Prevention and Toxics, Chemical

Management Division, Program Development

Branch (7404), 401 M St., SW., Washington,

DC 20460, Telephone: 202–260–1781, Fax:

202–260–0770.

SUPPLEMENTARY INFORMATION:

I. Background

Under the Congressional mandate in

section 406(a) of TSCA, EPA has developed

a lead hazard information pamphlet. Congress

specifically required that the pamphlet: (1)

Contain information regarding the health risks

associated with exposure to lead; (2) provide

information on the presence of lead-based

paint hazards in Federally-assisted, Federallyowned, and target housing; (3) describe the

risks of lead exposure for children under 6

years of age, pregnant women, women of

childbearing age, persons involved in home

renovation, and others residing in a dwelling

with lead-based paint hazards; (4) describe

the risks of renovation in a dwelling with

lead-based paint hazards; (5) provide

information on approved methods for

evaluating and reducing lead-based paint

hazards and their effectiveness in identifying,

reducing, eliminating, or preventing exposure

to lead-based paint hazards; (6) advise

persons how to obtain a list of contractors

certified pursuant to TSCA section 402 in

lead-based paint hazard evaluation and

reduction in the area in which the pamphlet

is to be used; (7) state that a risk assessment

or inspection for lead-based paint is

recommended prior to the purchase, lease, or

renovation of target housing; (8) state that

certain State and local laws impose additional

requirements related to lead-based paint in

housing and provide a listing of Federal,

State, and local agencies in each State,

including address and telephone number, that

can provide information about applicable

laws and available governmental and private

assistance and financing; and (9) provide such

other information about environmental

hazards associated with residential real

property as the Administrator deems

appropriate.

II. Role of Pamphlet

This pamphlet will be disseminated as a

result of several Congressional directives that

will be implemented in separate rulemaking

initiatives. Section 1012 of the Residential

Lead-Based Paint Hazard Reduction Act

requires that the Department of Housing and

Urban Development (HUD) provide the

pamphlet to purchasers and tenants of

housing receiving Federal assistance. Section

1018 of that Act requires that EPA and HUD

promulgate regulations requiring sellers or

lessors of target housing to provide

purchasers and lessees with the lead hazard

information pamphlet. Section 406(b) of

TSCA requires that EPA promulgate

regulations requiring each person who

performs for compensation a renovation of

target housing to provide a lead hazard

information pamphlet to the owner(s) and

occupant(s) of such housing prior to

commencing the renovation. In addition, this

pamphlet may be used by other Federal

programs to support their educational and

outreach goals and obligations.

Because the pamphlet was developed to

support new Federal regulations, the pamphlet

occasionally makes references to Federal

programs that are not yet fully in place (for

example, Federal requirements for sellers and

lessors of target housing). To avoid

confusion, EPA recommends that reviewers

consider the pamphlet within the context of

the many other regulatory provisions and

Federal and State infrastructures that will be

in place by the time the final pamphlet is

published in late 1994.

III. Request for Comments

The EPA Office of Pollution Prevention

and Toxics is seeking public comment on all

aspects of the pamphlet’s design. In

particular, EPA requests comment on the tone

of the pamphlet, and the extent to which the

current wording and design tend to support

(or undermine) its effectiveness as an

educational tool. One issue that EPA has

considered is the need to balance technical

accuracy with clarity and freedom from

overly technical jargon. The extent to which

the current draft is clear and understandable

is of primary concern to the agency, given the

broad distribution the pamphlet will have.

EPA requiests comment on the extent to

which the pamphlet addresses the statutory

content requirements in section 406(a) of

TSCA. For example, section 406(a) of TSCA

requires, among other things, that the

pamphlet contain a listing of Federal, State,

and local agencies in each State, including

address and telephone number, that can

provide information about applicable laws

and available governmental and private

assistance and financing. The current draft

pamphlet includes phone numbers for the

National Lead Information Center, the

National Lead Information Center Hotline,

and a phone number for an agency in each

State that has lead information. Because

addresses and phone numbers frequently

change, and to prevent the pamphlet from

becoming too unwieldy (there are complete

books on State and local sources of

information on lead and lead-based paints),

EPA has decided not to include addresses of

State agencies in the pamphlet, nor to provide

addresses and phone numbers of local

agencies. The pamphlet does, however, state

that an updated list of the addresses and

phone numbers of State agencies can be

obtained, free of charge, by calling the

National Lead Information Center Hotline.

EPA requests comment on this approach to

the issue of balancing thoroughness with

succinctness, and whether there may be an

alternative manageable method for providing

information on State and local sources of

information.

In designing the layout of the pamphlet,

EPA has also been aware of the need to

develop a dynamic and engaging document

while ensuring that the pamphlet can be

easily and inexpensively reprinted. This

approach has lead the Agency to focus on less

ornate illustrations that can be easily

reprinted. As the illustrations will provide a

necessary anchor for many of the pamphlet’s

key points, EPA requests comment on

whether the draft illustrations may be altered

in any way to increase their effectiveness.

In addition to soliciting public input

through this notice, EPA will conduct a series

of focus tests on the draft pamphlet to

evaluate the effectiveness of the current

reading level, content, and graphic

presentation. EPA will include a summary of
12 Federal Register / Vol. 59, No. 46 / Wednesday, March 9, 1994 / Notices

the focus groups results when it announces

the availability of the final pamphlet in the

Federal Register.

EPA also recognizes that this lead hazard

information may be important in some

communities that may have a limited ability

to utilize information provided in English. For

that reason, EPA is developing a Spanish

language version of the pamphlet as well. The

availability of the Spanish-language pamphlet

will be announced in the Federal Register

when available.

Dated: February 24, 1994.

Lynn R. Goldman,

Assistant Administrator for Prevention, Pesticides

and Toxic Substances.

[FR Doc. 94–5300 Filed 3–8–94; 8:45 am]

BILLING CODE 6560–50–F