Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Proposed Rules 44621

cleanup goal, was achieved in all the

excavation areas. The excavated areas

on the former GATX property were then

backfilled with clean soil, graded back

to pre-existing contours and seeded.

EPA inspected the former GATX

property on October 10, 1996 and

approved the demobilization of the

remedial action contractor from the Site.

EPA reinspected the former GATX

property on June 4, 1997 and confirmed

that vegetation had been fully reestablished in the disturbed areas.

The ROD did not call for remedial

action on the ground water beneath the

former GATX property. Analytical

results of ground water samples taken

before the remedial action indicated that

contaminants of concern were either not

detected or were detected at

concentrations below their Safe

Drinking Water Act Maximum

Contaminant Level (MCL)

concentrations. Analysis of ground

water samples from monitoring wells on

the former GATX property has been

performed quarterly through the

remedial action and following

completion of the remedial action. The

concentrations of selected VOCs peaked

during February of 1996 with some

detections slightly in excess of

allowable MCLs. In samples taken

during quarterly monitoring in

November 1996, February 1997 and May

1997 no VOCs have exceeded their

respective allowable MCL

concentrations. Monitoring is

continuing and VOCs concentrations

appear to be declining. Most VOCs

concentrations are now below the

detection limits of the analytical

equipment.

GATX has implemented all

appropriate response actions required

under CERCLA on its former property at

the Site. With the exception of

continuing monitoring of the ground

water, no further action is required at

the former GATX property. In July 1997,

EPA approved the remedial action

certification report documenting the

completion of the cleanup of the former

GATX property in accordance with the

ROD. The remedy selected and

implemented at the former GATX

property, OU–2 of the Site, remains

protective of human health and the

environment. The former GATX

property is available for unrestricted use

and unlimited access. Due to the

continued ground water monitoring on

the former GATX property, EPA will

include this portion of the Site in the

next Five-Year Review of the Site.

In public meetings in Saegertown the

community has requested that EPA

cleanup and delete portions of the Site

as soon as possible to allow

development of the industrial park. EPA

is proposing to delete all appropriate

areas of the Site in order to foster the reuse of Deleted Properties at the Site.

EPA believes that releases from the

former GATX property, as well as the

former SCI property and the SMC

property (where no action was selected

by the ROD), may be deleted from the

Site as defined on the National Priority

List and that no further remedial

measures are necessary for the Deleted

Properties of the Site.

Dated: August 8, 1997.

Thomas Voltaggio,

Acting Regional Administrator, USEPA

Region 3.

[FR Doc. 97–22065 Filed 8–21–97; 8:45 am]

BILLING CODE 6560–50–P

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.

SUMMARY: EPA is announcing a public

meeting on September 3, 1997, in

Washington, DC to take public

comments and suggestions from a crosssection 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:

clark.ellie@epamail.epa.gov.

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: leadctr@nsc.org,

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
44622 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Proposed Rules

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 childoccupied 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 leadbased 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 leadbased 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 leadbased 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 leadbased 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 leadcoated 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 leadcontaining 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
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Proposed Rules 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 leadbased 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 leadbased 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 leadbased 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 leadbased 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 leadbased 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
44624 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Proposed Rules

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 inhouse 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 highworker 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 leadbased 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 leadbased paint exists prior to starting work.

(59 FR 45889).

Many public commenters expressed

great concern about EPA’s requirement

that the supervisor identify the leadbased 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 leadbased 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
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Proposed Rules 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 leadbased 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©g/m3 , 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 leadbased 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 leadbased 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 ‘‘childoccupied 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 childoccupied 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-
44626 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Proposed Rules

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 leadbased 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 leadbased 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 leadbased 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:

oppt.ncic@epamail.epa.gov

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
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Proposed Rules 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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 23

RIN 1018–AE16

Changes in List of Species in

Appendices to the Convention on

International Trade in Endangered

Species of Wild Fauna and Flora

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: The Convention on

International Trade in Endangered

Species of Wild Fauna and Flora

(CITES, or ‘‘the Convention’’) regulates

international trade in certain animals

and plants. Species for which such trade

is controlled are listed in Appendices I,

II, and III to the Convention.

This document announces decisions

by the Conference of the Parties to

CITES on amendments to Appendices I

and II, and repeats a previous request

(62 FR 31054) for comment on whether

the United States should enter

reservations on any of the amendments.

The effect of a reservation would be to

exempt this country from implementing

CITES for a particular species. However,

even if a reservation were taken, many

importing countries would require

comparable documents, and many

importers to the United States would be

required, under the Lacey Act

Amendments of 1981, to obtain permits

issued by foreign countries. The CITES

amendments to Appendices I and II

described in this document will enter

into effect on September 18, 1997,

unless specifically indicated otherwise.

Reference is also made here to

establishment by the Parties of an export

quota for the markhor, a species both

included in Appendix I and listed as

Endangered under the Endangered

Species Act, and the implications for

the importation of markhor sporthunted trophies into the United States.

DATES: The amendments to Appendices

I and II adopted at the recent meeting of

the Conference of the Parties become

effective 90 days after their adoption

under the terms of CITES and therefore

are enforceable as of September 18,

1997, with the exception of the

amendments concerning sturgeons,

which will take effect on April 1, 1998.

The Service will consider all comments

received by September 12, 1997, in

determining whether the United States

should enter any reservations.

ADDRESSES: Please send correspondence

concerning this proposed rule to Chief,

Office of Scientific Authority; 4401

North Fairfax Drive, Room 750;

Arlington, Virginia 22203. Fax number:

703–358–2276. Comments and other

information received are available for

public inspection by appointment, from

8 a.m. to 4 p.m. Monday through Friday,

at the Arlington, Virginia address.

FOR FURTHER INFORMATION CONTACT: Dr.

Charles W. Dane, Office of Scientific

Authority, U.S. Fish and Wildlife

Service, Arlington, Virginia, telephone

703–358–1708.

SUPPLEMENTARY INFORMATION:

Background

CITES regulates import, export,

reexport, and introduction from the sea

of certain animal and plant species.

Species for which the trade is controlled

are included in three Appendices.

Appendix I includes species threatened

with extinction that are or may be

affected by trade. Appendix II includes

species that, although not necessarily

now threatened with extinction, may

become so unless trade in them is

strictly controlled. It also lists species

that must be subject to regulation in

order that trade in other listed species

may be brought under effective control

(e.g., because of similarity-ofappearance problems). Appendix III

includes species that any Party

identifies as being subject to regulation

within its jurisdiction for purposes of

preventing or restricting exploitation,

and for which it needs the cooperation

of other Parties to control trade. Any

Party may propose amendments to

Appendices I and II for consideration at

meetings of the Conference of the

Parties. The text of any proposal must

be communicated to the CITES

Secretariat at least 150 days before the

meeting. The Secretariat must then

consult the other Parties and

appropriate intergovernmental agencies,

and communicate their responses to all

Parties no later than 30 days before the

meeting.

Recent Decisions

The tenth meeting of the Conference

of the Parties to CITES (COP10) was

held June 9-20, 1997, in Harare,

Zimbabwe. At the meeting, the Parties

considered 62 different animal

proposals and 13 different plant

proposals to amend the Appendices.

These were described in the Federal

Register on April 16, 1997, for proposals

submitted by the United States (62 FR

18559), and on June 6, 1997, for

proposals submitted by other Parties (62

FR 31054). All proposed amendments

not withdrawn by the proponents were

considered and acted upon by

Committee I during the Conference,

with each accredited attending Party

having one vote. Adoption of

amendments by Committee I requires

either consensus or, in case of a vote, a

two-thirds majority of those Parties

present and voting (abstentions not

included). Action by Committee I on

species proposals was accepted by the

Plenary session, unless a motion to

reopen debate was put to vote and

approved by one-third of the nonabstaining Parties voting.

Debate was reopened and votes recast

on the following proposals that had not

received the required two-thirds

majority in Committee I: the proposal on

the southern white rhinoceros

(Ceratotherium simum simum) by South

Africa; the proposal on the ultramarine

lorikeet (Vini ultramarina) by Germany;

and an amended proposal on the

hawksbill sea turtle (Eretmochelys

imbricata) by Cuba. The proposal on the

ultramarine lorikeet was adopted in

Plenary. The proposal on the southern

white rhinoceros and the amended

proposal on the hawksbill sea turtle,

however, were rejected.

The use of the secret ballot process for

voting on species proposals was more

widespread at COP10 than at past

conferences. This was due in part to a

change in the Rules of Procedure

adopted at COP9, which reduced the

number of seconding Parties required to

sustain a motion for a secret ballot, and

in part to the number of controversial

proposals up for consideration. Secret

ballots were cast in Committee I on all

whale proposals, the hawksbill turtle

proposal, all elephant proposals, and

the proposal on bigleaf mahogany. A

call by Panama for a secret ballot on the

United States’ proposal to include the

sawfishes in Appendix I was rejected.