Lead; Requirements for Lead-Based Paint Activities in Public
Buildings, Commercial Buildings, and Steel Structures
[Federal Register: August 22, 1997 (Volume 62, Number 163)]
[Proposed Rules]
[Page 44621-44627]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au97-50]
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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:
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
[[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 30g/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 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:
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
[[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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