[Federal Register Volume 62, Number 163 (Friday, August 22, 1997)]
[Proposed Rules]
[Pages 44621-44627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22517]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[OPPTS-62128B; FRL-5740-7]
RIN 2070-AC64


Lead; Requirements for Lead-Based Paint Activities in Public 
Buildings, Commercial Buildings, and Steel Structures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Announcement of meeting and request for comments.

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SUMMARY: EPA is announcing a public meeting on September 3, 1997, in 
Washington, DC to take public comments and suggestions from a cross-
section of stakeholders on the development of training and 
certification requirements and work practice standards for individuals 
and firms conducting lead-based paint activities in public buildings 
(except child-occupied facilities), commercial buildings, and steel 
structures under section 402 of the Toxic Substances Control Act 
(TSCA).

DATES: The meeting will take place on Wednesday, September, 3, 1997, 
beginning promptly at 9:30 and continuing until 5:00 p.m.
    Written comments should be submitted no later than October 3, 1997.

ADDRESSES: The meeting will take place at the Marriott, 1221 22nd St. 
and M St., NW., Washington, DC.
    Written comments may be submitted in triplicate to: Environmental 
Protection Agency, Office of Pollution Prevention and Toxics, OPPT 
Docket Clerk (7407), 401 M St., SW., Washington, DC 20460, and 
reference the docket control number [OPPTS-62128B]. Comments and data 
may also be submitted electronically by following the instructions 
under Unit V. of this document. No Confidential Business Information 
(CBI) should be submitted through e-mail.

FOR FURTHER INFORMATION CONTACT: For more specific or technical 
information contact: Ellie Clark, National Program Chemicals Division 
(7404), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 401 M St., SW., Washington, DC 20460, telephone: 
(202) 260-3402, fax: (202) 260-0770, e-mail: 
<a href="/cdn-cgi/l/email-protection#187b74796a73367d7474717d587d687975797174367d6879367f776e"><span class="__cf_email__" data-cfemail="24474845564f0a4148484d416441544549454d480a4154450a434b52">[email protected]</span></a>.

     For general information or to obtain copies of this document 
contact: National Lead Information Clearinghouse (NLIC), 1025 
Connecticut Ave., NW., Suite 1200, Washington, DC 20036-5405 or toll 
free at 11-800-LEAD-FYI (1-800-532-3394), fax: (202) 659-1192, e-mail: 
<a href="/cdn-cgi/l/email-protection#ea868f8b8e899e98aa849989c485988d"><span class="__cf_email__" data-cfemail="8be7eeeaefe8fff9cbe5f8e8a5e4f9ec">[email protected]</span></a>, Internet site: http://www.nsc.org/ehc/lead.html.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 28, 1992, the Residential Lead-Based Paint Hazard 
Reduction Act of 1992, Title X of the Housing and Community Development 
Act of 1992, became law. Title X amended TSCA by adding a new Title IV, 
the purpose of which is to reduce the hazards from lead in paint and 
coatings used in housing, public and commercial buildings, and steel 
structures. TSCA section 402, Lead-Based Paint Training and 
Certification, directs EPA to promulgate a final regulation to govern 
the training and certification of individuals engaged in lead-based 
paint activities, accreditation of training programs, and standards for 
conducting such activities. TSCA section 404, Authorized State 
Programs, provides that any State may seek to administer and enforce 
the requirements established under TSCA sections 402 and 406. On 
September 2, 1994, EPA published a proposed rule to address TSCA 
sections 402(a) and 404(d) (59 FR 45672)(``1994 proposal'')(FRL-4633-
9). The 1994 proposal dealt with lead-based paint activities in target 
housing, public buildings constructed before 1978, commercial 
buildings, and bridges, and other structures and superstructures 
(``steel structures''). Following publication of the 1994 proposal, EPA 
met at different times with representatives from various State 
environmental and public health agencies and held a public hearing to 
receive comment on the proposal. EPA

[[Page 44622]]

received 323 written public comments on the 1994 proposal.
     EPA published a final rule on requirements for lead-based paint 
activities in target housing and child-occupied facilities on August 
29, 1996 (61 FR 45778)(``1996 rule'')(FRL-5389-9). Based on public 
comments, EPA had made several changes to the rule. One principal 
change in the 1996 rule was EPA's decision to delay promulgation of 
training and certification requirements and work practice standards for 
individuals and firms conducting lead-based paint activities in public 
buildings (except child-occupied facilities), commercial buildings, and 
steel structures. This decision was based primarily on the need to 
clarify the ``deleading'' definition contained in the 1994 proposal, 
and EPA's desire to avoid any potential conflict and overlap with the 
training requirements contained in OSHA's interim final lead standard 
(29 CFR 1926.62). EPA wishes to gain additional information from 
interested parties before proceeding with the rulemaking.

II. Information for Participants

    Any and all stakeholders (e.g., individuals, or representatives of 
organizations, governments, or academia) are invited to attend as 
members of the audience, and/or to submit written comments to the OPPT 
Docket Clerk under ``ADDRESSES'' at the beginning of this document. 
There also will be an opportunity for individuals to make brief oral 
presentations; however, the number of presenters, as well as time 
allotted, may be limited.
    EPA is interested in focusing the public meeting on the issues 
presented in Unit IV. of this document. Speakers may be asked 
clarifying questions regarding their presentations by EPA 
representatives. EPA encourages speakers to supplement their oral 
presentations with written comment, as time constraints may not allow 
speakers to address all issues of interest. Persons wishing to sign-up 
for a presentation at the public meeting must pre-register by calling 
Alana Knaster at 818-591-9526. Speakers will be notified of their time 
slots once the final format is determined. The meeting is open to the 
public as space permits, and a summary of the proceedings will be 
prepared and entered into the docket. EPA also encourages those unable 
to attend the public meeting to submit written comments to the docket.

III. Impact of Public Meeting on Future Rulemaking

    As a result of the comments obtained from the public meeting and 
other efforts to obtain a better understanding of the conduct of lead-
based paint activities in buildings and structures, EPA believes that 
the resulting requirements could be significantly different from those 
originally proposed in 1994. Therefore, EPA has decided that prior to 
promulgating final regulations, it will re-propose for public comment 
regulations for training and certification requirements and work 
practice standards for individuals and firms conducting lead-based 
paint activities in public buildings (except child-occupied 
facilities), commercial buildings, and steel structures. The 
development of the proposed regulations will be based in part on 
comments and information obtained as a result of this announcement. The 
public will also have an opportunity to comment on the proposed 
regulations which will be developed after the public meeting.

IV. Issues for Public Meeting

    TSCA section 402(a) requires EPA to promulgate regulations 
governing lead-based paint activities. TSCA section 402(b)(2) states 
that ``lead-based paint activities'' means, ``in the case of any public 
building constructed before 1978, commercial building, bridge or other 
structure or superstructure, identification of lead-based paint and 
materials containing lead-based paint, deleading, removal of lead from 
bridges, and demolition.'' In order to develop regulations consistent 
with TSCA section 402(b)(2), EPA needed to further define the types of 
buildings and structures subject to the rules as well as to clarify the 
specific activities defined as constituting lead-based paint activities 
in these structures.
    EPA's approach to these issues in the 1994 proposal generated many 
comments. After further review of those public comments, EPA concluded 
that it needs to develop a better understanding of the sectors to be 
addressed before proceeding with further work on the regulations. 
Additionally, several years have passed since the 1994 proposal was 
published, and EPA recognizes that persons who commented on the 
original proposal may have additional information to add. EPA will 
consider any additional comments on the 1994 proposal the public wishes 
to make. However, during the public meeting, EPA is specifically 
interested in getting additional public comment on the following 
subjects: Coverage of lead-based paint activities, in particular 
clarification of the term ``deleading''; the interface between OSHA's 
lead standards and EPA's TSCA section 402 regulations; distinguishing 
among various building and structure types; and sources of information 
for EPA's regulations. EPA expects that the majority of the time will 
be spent addressing topics under the first issue; however, EPA 
discusses each issue in detail in this unit and requests comments and 
additional information on specific items.

A. Issue 1--Coverage of lead-based paint activities, in particular 
clarification of the term ``deleading''

    TSCA section 402(b)(2) includes four separate activities in its 
definition of lead-based paint activities for buildings and structures. 
One of these activities is deleading. In the 1994 proposal, EPA used 
the TSCA section 402(b)(2) terminology when it defined ``deleading'' as 
``activities conducted by a person who offers to eliminate lead-based 
paint or lead-based paint hazards or to plan such activities.'' 
Additionally, EPA indicated that it was considering prohibiting the use 
of certain practices commonly used when conducting deleading activities 
in buildings and structures, because of the potential risk of lead 
contamination to workers and/or the environment posed by those 
practices. Public comments on the 1994 proposal raised a number of 
concerns with regard to deleading as well as identification of lead-
based paint activities. Several key concerns are discussed in this 
unit.
    1. Intentional lead removal vs. maintenance activities. Many 
commenters stated that EPA should exempt from the deleading definition 
activities which are not intended to address lead-based paint but are 
maintenance activities that involve some incidental disturbance of 
lead-coated surfaces. However, other commenters felt that although 
maintenance activities such as overcoating of steel structures may not 
be intended specifically to eliminate lead-based paint, overcoating 
should be covered under deleading, because it involves blast cleaning 
and other activities which generate lead-containing dust, paint chips, 
and other debris which could be hazardous and should be controlled.
    The statutory definition of deleading is ``activities conducted by 
a person who offers to eliminate lead-based paint or lead-based paint 
hazards or to plan such activities.'' 42 U.S.C. 2682(b). This 
definition could reasonably be interpreted to encompass only activities

[[Page 44623]]

(including planning) that are intended, alone or in conjunction with 
other activities, to eliminate lead-based paint or lead-based paint 
hazards. According to this interpretation, if an activity is not 
intended to eliminate lead-based paint or a lead-based paint hazard, it 
would not be considered deleading.
    If an intent test were to be applied strictly, generally even a 
large project which might involve large quantities of lead and/or 
significant lead exposure, but is not intended at least in part to 
eliminate lead-based paint or a lead-based paint hazard, would not 
constitute deleading. However, under section 402(b)(2) the phrase 
``lead-based paint activities'' specifically includes, in addition to 
deleading, removal of lead from bridges and demolition. Therefore, 
demolition and removal of lead-based paint prior to overcoating a 
bridge would be covered, regardless of any intent to eliminate lead-
based paint or its hazards.
    The approach would appear to present several difficulties, 
including the following strict intent: First, a strict intent standard 
would be difficult to define and could be subject to loopholes. A 
second and related problem would be that projects that differ, even 
slightly, in intent but present the same or similar risks of lead 
exposure could be treated differently, which would be contrary to the 
purposes of the statute.
    Assuming an intent standard is applied, EPA is considering two 
alternatives for developing an enforceable regulatory definition of 
deleading that is consistent with the language and purposes of the 
statute. One approach would be to interpret the definition to include 
only activities (including planning) that are specifically intended, 
alone or in conjunction with other activities, to eliminate lead-based 
paint or lead-based paint hazards. In order for such a definition to be 
enforceable, EPA believes it probably would be necessary to set forth 
objective criteria for determining whether the requisite intent exists. 
Such criteria might include contract documents or work orders that 
specifically call for the elimination of lead-based paint or its 
hazards, or other indicia of intent such as whether the activities will 
or are designed to result in the elimination of lead-based paint or its 
hazards. Activities which do not involve any intent to eliminate lead-
based paint or its hazards would fall outside the scope of deleading.
    An alternative approach to the regulatory definition of deleading 
would be to construe the ``offers to'' terminology of TSCA section 
402(b), such that all activities that would have the effect of 
eliminating lead-based paint or its hazards would constitute deleading. 
The basis of this approach would be as follows: If the elimination of 
lead-based paint or its hazards is an integral part of a project (for 
instance, removal of old paint prior to repainting), an offer to 
eliminate lead-based paint or its hazards would be considered part of 
the offer to perform the project, even where the project also may 
involve other purposes such as maintenance. Activities that would not 
have the effect of eliminating lead-based paint or its hazards would 
not constitute deleading.
    The different approaches to defining deleading may have different 
implications for addressing the issue, raised in comments on the 1994 
proposal, of excluding routine maintenance activities from the 
definition. A strict intent standard, under which deleading would 
include only those projects which are specifically and expressly 
intended to eliminate lead-based paint or its hazards, would by its 
terms exclude activities undertaken for other purposes such as routine 
maintenance even where they might have effects that would constitute 
elimination of lead-based paint or its hazards. Under this approach, it 
would not be necessary to expressly exclude such activities. If, on the 
other hand, either of the alternative approaches discussed above were 
adopted, other activities potentially could be expressly excluded on 
the basis of the statutory definition of ``elimination'' of lead-based 
paint or its hazards--the deleading definition could exclude projects 
or activities that would not have that effect. For these purposes EPA 
could refer to the definition of abatement provided at TSCA section 
401(1), which includes several specific examples of lead elimination. 
Under this approach, activities which might disturb lead or otherwise 
create the possibility of lead exposure would be considered deleading 
only if they would result in lead elimination. An additional measure, 
which could be applied alone or in conjunction with one of the 
foregoing, would be to adopt a de minimis exemption from the deleading 
definition. The de minimis issue is discussed in Unit IV.A.2. of this 
document.
    EPA requests comment on these issues. In particular, EPA seeks 
comment on whether the statutory deleading definition at TSCA section 
402(b) does embody an intent standard or an effect standard, and if so 
on how such a standard can be implemented, including the approaches 
outlined in this unit. EPA also seeks comment on whether and how to 
specify or define activities that would fall outside the scope of 
deleading.
    2. The need for a de minimis cutoff. Many commenters on the 1994 
proposal argued that EPA should adopt some type of threshold or de 
minimis cutoff below which an activity would not constitute deleading 
even if it otherwise meets the definition. Several commenters suggested 
that EPA establish 1,000 square feet as a de minimis level below which 
the deleading definition would not apply. These commenters indicated 
that many maintenance activities, such as spot welding and pipe 
cutting, require the removal of small areas of existing coatings and 
that a 1,000 square foot cutoff would appropriately exclude those 
activities. Whether a threshold or de minimis cutoff for the deleading 
definition would be necessary or appropriate is not entirely clear, and 
may depend upon the deleading definition ultimately adopted. As noted 
in Unit IV.A.1. of this document, the statutory definition of deleading 
may be interpreted to embody an intent standard, and does not include 
any consideration of the amount of lead or lead exposure that may be 
involved in the activity. See TSCA section 402(b). Therefore, if the 
statute were applied strictly according to its terms, an activity 
specifically intended to eliminate lead-based paint or a lead-based 
paint hazard would be considered deleading, even if it were a small 
project.
     Under such an interpretation, EPA probably would not be inclined 
to adopt a de minimis exemption from these requirements. EPA believes 
that projects specifically designed to eliminate lead-based paint are 
unlikely to be small, and therefore a de minimis cutoff would be of 
limited utility. Small projects that might qualify for a de minimis 
exemption would be more likely to fall outside the deleading definition 
as routine maintenance activities, which would be excluded whatever 
their size.
    On the other hand, if an intent standard were not applied or if EPA 
were to adopt one or the other of the two approaches discussed in Unit 
IV.A.1 of this document to implementing an intent standard, the 
deleading definition would cover most if not all activities resulting 
in the elimination of lead-based paint or its hazards. These approaches 
would appear to be more likely to result in the regulation of smaller 
projects. Therefore, if one of these approaches were adopted, EPA 
believes that it might be appropriate to consider adopting a de minimis 
cutoff below which activities

[[Page 44624]]

would be excluded from the deleading definition.
    EPA requests comments on these issues as well. EPA would like 
comments on whether a de minimis exemption would be appropriate. In 
addition, commenters on the 1994 proposal suggested a variety of 
approaches to developing a de minimis cutoff, based on size of 
disturbed area, concentration of lead in paint, and job duration; EPA 
requests comment on these and other methods for specifying a de minimis 
level.
    3. Coverage of outside contractors vs. in-house employees. Several 
commenters stated that the proposed deleading definition was ambiguous 
with respect to whether it covered only outside lead contractors, or 
in-house employees as well. Some argued that the ``offers to'' language 
included in the statutory deleading definition means that it applies 
only to outside contractors who ``offer to'' eliminate lead-based 
paint.
    EPA has tentatively concluded that the deleading definition should 
encompass both in-house personnel and outside contractors. The thrust 
of the TSCA section 402 provisions relating to public and commercial 
buildings and steel structures is to ensure not only that contractors 
performing lead work in these areas are properly trained and certified, 
but also that any individuals conducting such work are properly trained 
and perform the work according to the standards called for by TSCA 
section 402. In this sense these provisions are distinct from those 
relating to target housing, which are focused solely on contractors. 
For example, the regulations must require that lead-based paint 
activities in target housing are conducted by certified contractors, 42 
U.S.C. 2682(a)(1), but need not contain such a requirement with regard 
to lead-based paint activities in public or commercial buildings or 
steel structures. In addition, the regulations are to ``ensure that 
individuals engaged in [lead-based paint] activities'' are properly 
trained, without regard to whether they are employed by outside 
contractors.
    Thus, EPA believes Congress intended that in the area of public and 
commercial buildings and steel structures, all lead-based paint 
activities, whether conducted by in-house personnel or outside 
contractors, are to be governed by the TSCA section 402 program. Since 
deleading is among the lead-based paint activities that may be 
conducted in these areas, EPA believes this term should encompass work 
performed by in-house personnel and outside contractors. The terms of 
the statutory deleading definition can be read to encompass both 
groups, in that in the same sense that a lead contractor would offer to 
perform lead work for a fee, an employee offers to perform duties as 
assigned in exchange for his or her wages. EPA requests comment on its 
tentative approaches to this issue.
    4. Prohibited activities. In the 1994 proposal, EPA asked for 
comment on whether it should prohibit open-flame burning of painted 
surfaces, dry scraping or sanding of painted surfaces, and the use of 
heat guns on painted surfaces (59 FR 45889). EPA received many comments 
both supporting and opposing its discussion of prohibiting these 
deleading activities. Some commenters supported the prohibition, 
stating that there are data showing high-worker exposure to lead during 
these activities, that the containment used is only partially 
effective, and that alternative, safer methods exist. Other commenters 
opposed the prohibition, indicating that these commonly accepted 
methods of lead-based paint removal could be performed safely, that 
they are routinely used in deleading operations for which no other 
practical option exists, and that other methods are not safer or 
effective. Those commenters also argued that since these activities are 
allowed under the OSHA regulations, it would be problematic to prohibit 
them under EPA regulations.
    EPA needs additional information before it can develop proposed 
approaches to this issue. EPA specifically requests comments that would 
include data on exposure, descriptions of how these activities can be 
performed safely, discussion of alternative approaches, discussion of 
situations lacking other practical options, and other information that 
would allow it to carefully weigh the issues before making its 
decision.
    5. Identification of lead-based paint activities. TSCA section 
402(b)(2) includes ``identification of lead-based paint and materials 
containing lead-based paint'' as a lead-based paint activity to be 
covered under EPA's requirements. In the 1994 proposal, EPA indicated 
that because of lead's toxicity, identification and sampling to 
determine the presence of lead-based paint are commonly practiced prior 
to maintenance work on commercial buildings and steel structures. 
Therefore, EPA stated that the supervisor should determine if lead-
based paint exists prior to starting work. (59 FR 45889).
    Many public commenters expressed great concern about EPA's 
requirement that the supervisor identify the lead-based paint. These 
commenters indicated that because the lead-based paint identification 
would be done before contracts are awarded, it was not an appropriate 
task for the supervisor.
    Upon further review, it appears that EPA in its discussion in the 
proposal was addressing a different task than the public commenters 
were. EPA was considering the need to identify the presence of lead-
based paint prior to the performance of routine maintenance activities 
as opposed to large deleading projects. Because TSCA section 402(b)(2) 
separates ``identification of lead-based paint'' from ``deleading,'' 
EPA believes that any identification of lead-based paint, including 
during routine maintenance activities, would be covered under the TSCA 
section 402 regulations. Further, EPA believes that its requirements 
for supervisor identification of lead-based paint prior to the 
performance of routine maintenance is appropriate. However, EPA also 
recognizes that identification of lead-based paint prior to the 
awarding of a deleading contract does present a different situation. 
One approach would be for EPA to describe a work practice standard for 
the identification of lead-based paint without assigning it to a 
specific discipline. EPA requests comments on whether this or another 
approach would be more appropriate for discharging its TSCA section 402 
obligations to develop regulations for identification of lead-based 
paint.

B. Issue 2--The interface between OSHA's lead standards and EPA's TSCA 
section 402 regulations

     Congress' mandate that EPA develop regulations governing the 
conduct of lead-based paint activities naturally meant that EPA must 
consider regulations for workers. However, OSHA also has regulations 
covering exposure of workers to lead. In 1978, OSHA promulgated a final 
lead standard for general industry (29 CFR 1910.55). Further, in 
addition to requiring EPA to develop regulations, Title X also required 
OSHA, under section 1031, to issue regulations covering occupational 
exposure to lead in the construction industry. In 1993, OSHA issued the 
interim final lead in construction standard (29 CFR 1926.62). After 
consultation with OSHA, EPA included in its 1994 proposal specific 
requirements for training of workers conducting lead-based paint 
activities.
     In response to the 1994 proposal, EPA received a number of 
comments arguing that some of its training requirements would overlap 
with those imposed under OSHA's regulations. EPA recognizes the 
importance of

[[Page 44625]]

minimizing any duplication or overlap between Federal regulatory 
programs. However, it is unclear whether there is true duplication in 
this instance, or if so, whether the simple removal of worker 
protection elements from EPA's curriculum requirements, as urged by 
some commenters, would address that issue consistently with EPA's 
mandate under TSCA section 402.
    TSCA section 402(a)(1) directs EPA to establish a training and 
certification program for individuals and firms (``persons'') engaged 
in lead-based paint activities. Thus, before a person can conduct 
actions included among the lead-based paint activities identified in 
TSCA, or hold itself out as certified to conduct such activities, it 
must successfully complete the training program established by EPA and 
obtain the certification. By this program, Congress intended to protect 
not only the environment and the public in general and those who occupy 
buildings in which lead-based paint activities are conducted, but the 
workers themselves as well. See H.R. Rep. No. 852 Pt. 1, 102d Cong., 2d 
Sess. 44.
    The OSHA training requirements apply to any workers who may be 
exposed to lead, and such workers must be trained initially (i.e., 
prior to job assignment), and annually thereafter. See 29 CFR 1926.6(l) 
(lead in construction); 29 CFR 1910.1025(l) (general occupational 
exposure to lead). OSHA's program is both narrower and broader than 
EPA's program. It is narrower in the sense that it is focused solely on 
protecting workers who may be exposed to lead, and it does not require 
prior certification (although it does require prior training). It is 
broader in the sense that it is triggered any time there may be worker 
exposure to lead, not just when a firm conducts lead-based paint 
activities. In any event, when a firm conducts the ``lead-based paint 
activities'' defined in the statute, one of the OSHA standards will be 
triggered. That is, where employees are exposed to lead above the 
action level of 30<greek-m>g/m<SUP>3</SUP> , the lead in construction 
standard will be triggered. For employees exposed to lead below the 
action level, the general occupational exposure to lead standard will 
be triggered.
    However, EPA does not believe that the OSHA program is sufficient 
in and of itself to discharge EPA's responsibilities under TSCA section 
402, which include protecting not only workers, but persons other than 
workers as well as the environment. EPA believes that it is necessary 
to develop additional regulations to completely address Congress' 
concerns. In the 1996 final rule for lead-based paint activities in 
target housing and child-occupied facilities, EPA did not include the 
type of training requirements that would be included in the OSHA 
requirements. Instead, EPA included a requirement under the work 
practice standards at 40 CFR 745.227(e)(3) that all abatement 
activities be conducted according to EPA's requirements and all other 
Federal, State, and local requirements. This requirement ensures that 
OSHA's training requirements will be met. EPA believes that this 
approach eliminates unnecessary duplication while still discharging the 
mandates of Title IV. Additionally, EPA encourages training providers 
to develop courses that include both EPA's and OSHA's requirements 
applicable to lead-based paint activities.
    EPA consulted with OSHA during the development of the 1994 proposal 
and the 1996 final rule. EPA also will consult with OSHA during the 
continuing development of the regulations for workers conducting lead-
based paint activities in buildings and structures. However, EPA would 
like to receive additional comment on whether the public believes that 
the approach used in the 1996 rule for addressing overlap between OSHA 
regulations and EPA regulations for target housing and child-occupied 
facilities would also be appropriate for EPA regulations for buildings 
and structures. EPA requests comments on other approaches that could be 
used to reduce redundancy in training requirements.

C. Issue 3--Distinguishing among building and structure types

     TSCA section 402(b)(2) indicates that lead-based paint activities 
for ``any public building constructed before 1978, commercial building, 
bridge, or other structure or superstructure'' should be covered. None 
of these terms are defined in Title IV, but EPA did define ``public 
building,'' ``commercial building,'' and ``superstructure'' in the 1994 
proposal. In response to the 1994 proposal, EPA received a variety of 
comments indicating that certain facilities should not be covered for 
different reasons. Some commenters stated that industrial facilities 
should not be covered, because they are neither public nor commercial 
buildings. Others suggested that ``commercial building'' should include 
any building used primarily for manufacturing, industrial activity, and 
various services. Still other commenters argued that the only 
structures that EPA could cover were bridges because these were the 
only ones specifically mentioned in the statute. However, EPA believes 
that the phrase ``other structure or superstructure'' is sufficiently 
broad to capture most buildings and structures in existence. The 
definitions for buildings and structures will be discussed followed by 
a discussion of approaches for categorizing requirements.
    1. Defining buildings and structures--a. Buildings. In the 1994 
proposal, individuals and firms conducting lead-based paint activities 
in public buildings would have been required to adhere to the same 
regulations as in target housing, regardless of whether children 
frequented the buildings. However, in response to comments received on 
this proposal, in the 1996 rule, EPA established a sub-category of 
public buildings, termed ``child-occupied facilities.'' Under these 
regulations, individuals and firms conducting lead-based paint 
activities in child-occupied facilities are subject to the same 
requirements as individuals and firms conducting those activities in 
target housing. At the same time, EPA stated that requirements for 
lead-based paint activities conducted in public buildings other than 
child-occupied facilities (``public buildings'') would be included in 
the rulemaking for commercial buildings and steel structures. EPA now 
must develop a definition that applies to public buildings other than 
child-occupied facilities.
    In the 1994 proposal, EPA distinguished commercial buildings from 
public buildings by defining commercial buildings as buildings used 
primarily for commercial or industrial activities and generally not 
open to the public or occupied or visited by children. Because EPA has 
already defined the sub-category of child-occupied facilities and has 
included the rest of public buildings in this rulemaking, it may be 
necessary to reconsider the relationship of public to commercial 
buildings and redefine the distinction. EPA received comments on the 
1994 proposal suggesting that EPA use more standard building 
definitions such as those found in building codes which generally 
classify by use or occupancy.
    EPA would like additional comment on whether it is more useful for 
EPA to adopt standard terminology for building types or whether EPA 
should continue to distinguish buildings based on public access. The 
public access issue will also be discussed further in Unit IV.C.2.b. of 
this document.
    b. Structures. In the 1994 proposal, EPA defined a 
``superstructure'' as a large steel or other industrial structure, 
including but not limited to bridges or water towers which may contain 
lead-

[[Page 44626]]

 based paint. Commenters strongly objected to the term 
``superstructures.'' Therefore, in the interim, until a term is defined 
in the future, EPA will use the term ``steel structure'' in lieu of 
``superstructure.'' In the 1994 proposal, EPA indicated that this 
category would also include water towers, above-ground storage tanks, 
oil refineries, utility and other structures. Given the language of the 
statute, EPA believes that it has broad latitude to cover these other 
types of structures.
    EPA would like additional comment on what the best term is for this 
category of structures.
    2. Determining whether separate requirements should be established 
according to building/structure types--a. Separate categories for 
buildings and structures. In the 1994 proposal, EPA grouped target 
housing and public buildings together separate from commercial 
buildings and steel structures. EPA based this distinction on the 
potential for lead exposure to the public and the differences in the 
structural design and building materials used. The way that EPA 
distinguishes between public and commercial buildings may continue to 
suggest that these two building types be treated separately. 
Additionally, commenters suggested that there may also be support for 
treating steel structures separately from both building types. One of 
the reasons for this distinction was suggested by commenters who 
indicated that because workers are so strictly controlled by 
supervisors when conducting lead-based paint activities on steel 
structures, the primary focus of EPA's requirements should be on the 
supervisors.
    b. Categories based on public access and environmental concerns. 
EPA recognizes that many government and industrial buildings restrict 
public access and that potential public exposure during any lead-based 
paint activities would be greatly reduced in those buildings relative 
to, for example, museums or airports. Nevertheless, Congress specified 
that EPA regulate lead-based paint activities in buildings and 
structures, generally. While public access may be low in many 
buildings, there are still environmental concerns and these buildings 
are occupied by employees and other persons, in addition to the workers 
who would be subject to OSHA protection. EPA believes that it is 
important to prescribe standards to reduce exposure to those persons 
other than workers who would be present.
    Because of the disparity in exposure to the public and the 
environment presented by the various locations and restrictions on 
access to buildings and structures, EPA believes that it may be 
appropriate to define categories of work practice standards based on 
public exposure/accessibility and proximity to certain environmental 
features, such as lakes, wetlands, or endangered species. For example, 
EPA believes that more controls may be warranted when lead-based paint 
activities are being conducted in a popular museum in a large city or 
on a water tower located next to a daycare facility or playground than 
at a restricted access facility or warehouse on the outskirts of town. 
If EPA takes this approach, EPA would need to consider whether the same 
or different categories could be used for buildings and structures.
    Commenters on the 1994 proposal also raised the issue of ``mixed-
use'' buildings where one small area of a building is open to the 
public (e.g., for bill paying) or serves as a daycare center, but the 
rest of the building has restricted public access.
    EPA requests comments on the suggested approach of categorizing by 
public and environmental accessibility. EPA requests suggestions on the 
criteria for the various categories that would be developed under such 
an approach. In addition, EPA requests comments on alternative 
approaches that would allow EPA to appropriately fulfill its 
obligations under TSCA section 402(a).

D. Issue 4--Use of pre-existing courses and regulations

     TSCA section 402(a)(1) requires EPA to promulgate regulations 
governing lead-based paint activities to ensure, among other items, 
that training programs for individuals engaged in lead-based paint 
activities are accredited. TSCA section 402(a)(2) states that these 
accreditation regulations must contain specific requirements for the 
accreditation of lead-based paint activities training programs. These 
requirements must include, at least: Minimum requirements for the 
accreditation of training providers; minimum training curriculum 
requirements; minimum training hour requirements; minimum hands-on 
training requirements; minimum trainee competency and proficiency 
requirements; and minimum requirements for training program quality 
control.
    In the 1994 proposal, EPA laid out specific training requirements 
and work practice standards for lead-based paint activities in public 
buildings, commercial buildings, and steel structures. In response to 
the 1994 proposal, commenters noted that many in-house courses on 
conducting lead-based paint activities in buildings and structures 
already existed. Some of these commenters indicated that because of the 
existence of these courses, there was no need for EPA to develop 
regulations. Other commenters suggested that EPA incorporate into its 
regulations pre-existing courses, such as those provided by the Steel 
Structures Painting Council.
    Congress in TSCA section 402(a) required EPA to specify 
requirements for accreditation of training courses for persons involved 
in lead-based paint activities. However, EPA recognizes that there are 
many training programs currently in place and therefore encourages 
commenters to submit to EPA during the comment period on this document 
information about training programs that would assist EPA in developing 
its regulations.
    EPA is also aware that subsequent to the publication of the 1994 
proposal, some states have promulgated or are in the process of 
developing State regulations governing lead-based paint activities in 
buildings and/or structures. EPA is familiar with the Minnesota 
regulations for removal of lead paint from steel structures and is 
considering utilizing some of the approaches embodied in those 
regulations. EPA would also appreciate information from other states, 
tribes, and localities that have developed or are considering 
developing regulations covering lead-based paint activities in 
buildings and/or structures.

V. Public Record

     The official record for this rulemaking, as well as the public 
version, has been established for this rulemaking under docket control 
number OPPTS-62128B (including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as CBI, is available for inspection 
from 12 noon to 4 p.m., Monday through Friday, excluding legal 
holidays. The official rulemaking record is located at the address in 
``ADDRESSES'' at the beginning of this document.
    Electronic comments can be sent directly to EPA at:
    <a href="/cdn-cgi/l/email-protection#432c3333376d2d202a20032633222e222a2f6d2633226d242c35"><span class="__cf_email__" data-cfemail="17786767633979747e74577267767a767e7b3972677639707861">[email protected]</span></a>

    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption. Comments and data 
will also be accepted on disks in WordPerfect in 5.1 file format or 
ASCII file format. All comments and data in electronic form must be 
identified by

[[Page 44627]]

the docket control number OPPTS-62128B. Electronic comments on this 
rulemaking may be filed online at many Federal Depository Libraries.
    Supplemental documents relating to the rulemaking and the public 
meeting will be posted at the following Internet address:
    http://www.epa.gov/opptintr/lead/index.html

List of Subjects in 40 CFR Part 745

    Environmental protection, Hazardous substances, Lead, Reporting and 
recordkeeping.

    Dated: August 19, 1997.

William H. Sanders, III,
Director, Office of Pollution Prevention and Toxics.

[FR Doc. 97-22517 Filed 8-21-97; 8:45 am]
BILLING CODE 6560-50-F


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