[Federal Register Volume 63, Number 104 (Monday, June 1, 1998)]
[Rules and Regulations]
[Pages 29908-29921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14437]
[[Page 29907]]
_______________________________________________________________________
Part XV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 745
Lead; Requirements for Hazard Education Before Renovation of Target
Housing; Final Rule
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 / Rules
and Regulations
[[Page 29908]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62131; FRL-5751-7]
RIN 2070-AC65
Lead; Requirements for Hazard Education Before Renovation of
Target Housing
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This rule requires certain persons who perform renovations of
target housing (as defined under 40 CFR 745.103) for compensation to
provide a lead hazard information pamphlet to owners and occupants of
such housing prior to commencing the renovation, as stipulated by
section 406(b) of the Toxic Substances Control Act. In addition, this
rule requires notification on the nature of the renovation activities
in certain circumstances involving multi-family housing. This rule
ensures that owners and occupants of target housing are provided
information concerning potential hazards of lead-based paint exposure
before certain renovations are begun on that housing. In addition to
providing general information on the health hazards associated with
exposure to lead, the lead hazard information pamphlet advises owners
and occupants to take appropriate precautions to avoid exposure to
lead-contaminated dust and lead-based paint debris that are sometimes
generated during renovations. The Agency believes that the distribution
of the pamphlet will help to reduce the exposures which cause serious
lead poisonings, especially in children under age 6, who are
particularly susceptible to the hazards of lead. This rule was proposed
in the Federal Register of March 9, 1994.
DATES: The requirements in this final rule shall take effect on June 1,
1999. In accordance with 40 CFR 23.5, this rule shall be promulgated
for purposes of judicial review at 1 p.m. Eastern Daylight Savings Time
on June 1, 1998.
FOR FURTHER INFORMATION CONTACT: For general information or to obtain
copies of the final rule (or other documents mentioned as available in
this rule), contact the National Lead Information Clearinghouse at 1-
800-424-LEAD. For technical information contact: Dayton Eckerson,
National Program Chemicals Division (7404), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460, Telephone: 202-260-1591, e-mail:
eckerson.dayton@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Potentially regulated entities under this rule are any person(s)
who perform renovations of target housing for compensation. Target
housing is defined (see 40 CFR 745.103) as any housing constructed
prior to 1978, except housing for the elderly or persons with
disabilities (unless any child who is less than 6 years of age resides
or is expected to reside in such housing) or any 0-bedroom dwelling
pursuant to 40 CFR 745.103. Regulated categories and entities include:
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Category Examples of Regulated Entities
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Renovators General Building
Contractors/Operative
Builders [Renovation firms,
Individual Contractors, etc.]
Special Trade
Contractors [Carpenters,
Painters, Drywall workers and
lathers, ``Home Improvement''
Contractors, etc.]
------------------------------------------------------------------------
Multi-family Housing Property Management Firms
------------------------------------------------------------------------
Owners/Managers Some Landlords
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. Other types of entities not listed in this table could also be
regulated. To determine whether you or your business is regulated by
this action, you should carefully examine the applicability provisions
in Sec. 745.82 of the rule. If you have any questions regarding the
applicability of this action to a particular entity, consult the person
listed in the ``FOR FURTHER INFORMATION CONTACT'' section.
II. Authority
This final rule is issued under the authority of section 406(b) of
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2686(b). In 1992,
TSCA was amended by section 1021 of the Residential Lead-Based Paint
Hazard Reduction Act of 1992 to add Title IV, entitled Lead Exposure
Reduction. The Residential Lead-Based Paint Hazard Reduction Act is
also referred to as Title X of the Housing and Community Development
Act of 1992, Pub. L. 102-550.
III. Background
A. Legislative and Statutory Background
Congress passed Title X to address the need to control exposure to
lead-based paint hazards. Title X establishes the infrastructure and
standards necessary to reduce lead-based paint hazards in housing.
Congress recognized that lead poisoning is a particular threat to
children under age 6, and emphasized the needs of this vulnerable
population within the various sections of Title X. Section 1021 of
Title X amends TSCA (15 U.S.C. 2601, et seq.) by adding a Title IV,
entitled ``Lead Exposure Reduction.''
This rule is issued under the authority of section 406(b) of Title
IV of TSCA, and is intended to provide information to owners and
occupants of target housing that will allow these individuals to avoid
exposure to lead-contaminated dust and lead-based paint debris which
are sometimes generated during renovations of housing with lead-based
paint. Since children under the age of 6 are especially susceptible to
the hazards of lead, those owners and occupants with children can take
action to protect their children from lead poisonings. Section 406(b)
requires EPA to promulgate regulations requiring certain persons who
perform renovations of target housing for compensation to provide a
lead hazard information pamphlet (developed under section 406(a) of
TSCA) to the owner and occupant of such housing prior to commencing the
renovation. Target housing is defined in section 401(17) of TSCA, 15
U.S.C. 2681. Those who fail to provide the pamphlet as required may be
subject to both civil and criminal sanctions under section 16 of TSCA.
This regulation represents one piece of a broad range of
interrelated lead exposure reduction activities mandated under Title X.
Many of these activities supported and affected the development of the
section 406(b) regulations. Below is a discussion of several related
provisions of Title X which provide the context for many of the
decisions made during the development of this rule.
The provision most closely tied to section 406(b) is section 406(a)
of TSCA. Section 406(a) directs EPA to develop and publish, after
notice and comment, an information pamphlet on lead and the hazards of
exposure to lead-based paint in the home. The Consumer Product Safety
Commission (CPSC) joined EPA in co-sponsoring the pamphlet's
development in consultation with the Department of Housing and Urban
Development (HUD) and the Centers for Disease Control and
[[Page 29909]]
Prevention (CDC). EPA issued a draft of the pamphlet for public review
on March 9, 1994 (59 FR 11119) (FRL-4642-7). After addressing comments
received from the public and other Federal Agencies, EPA announced the
final pamphlet's availability in the Federal Register of August 1, 1995
(60 FR 39167) (FRL-4966-6).
In addition to outlining the health effects and symptoms of lead
exposure, section 406(a) requires that this pamphlet: Contain
information on the potential hazards of renovating dwellings containing
lead-based paint; recommend that an inspection or risk assessment for
lead-based paint be performed before beginning renovations in target
housing; suggest precautionary measures for protecting occupants during
renovations in homes containing lead-based paint; and identify Federal,
State, and local sources of information on lead and lead-based paint.
Two sections of Title X also require the dissemination of the lead
hazard information pamphlet developed pursuant to section 406(a) of
TSCA. First, section 1018 of Title X requires EPA and HUD to promulgate
joint regulations for disclosure of certain information concerning
lead-based paint and lead-based paint hazards by persons offering to
sell or lease target housing. The section 1018 regulations include the
requirement that the sellers and lessors provide the lead hazard
information pamphlet to prospective purchasers or lessees. EPA and HUD
issued the final regulations implementing section 1018 in the Federal
Register of March 6, 1996 (61 FR 9064) (FRL-5347-9).
Second, section 1012 amends section 302 of the Lead-Based Paint
Poisoning Prevention Act (42 U.S.C. 4822) to require that the lead
hazard information pamphlet be provided to purchasers and tenants of
housing receiving assistance under a program administered by the
Secretary of HUD, or otherwise receiving more than $5,000 in project-
based assistance under a Federal housing program. HUD issued the
proposed section 1012 rule on June 7, 1996 (61 FR 29170) (FRL-3482-P-
01).
Under section 403 of TSCA, EPA is charged with refining the general
definitions of ``lead-based paint hazards,'' ``lead-contaminated
dust,'' and ``lead-contaminated soil'' which are listed in section 401
of TSCA. On September 11, 1995 (60 FR 47248) (FRL-4969-6), EPA issued
an interim guidance document for risk assessors and managers to aid in
the identification and prioritization for control of lead hazards until
the final section 403 definitions are issued. EPA is currently in the
process of developing the section 403 definitions.
EPA has developed this rule to function independently of the lead
hazard definitions to be developed under section 403. Under this final
rule, EPA has eliminated the linkage of the definition of
``renovation'' to whether or not lead-based paint hazards are expected
to occur as a result of the renovation activity. Instead, the
definition of ``renovation'' has been simplified to focus on activities
that disturb painted surfaces in target housing. It is discussed
further in Unit V.D. of this preamble. Therefore, this rule under
section 406(b) would require renovators to perform pre-renovation
notification for all renovation activities performed for compensation
in target housing, unless specifically exempted by Sec. 745.82 of the
regulatory text.
Section 402(a) of TSCA directs EPA (in consultation with HUD, the
Department of Labor, and the Department of Health and Human Services
(HHS)) to promulgate regulations on accreditation of training programs
and the certification of individuals and contractors engaging in lead-
based paint activities. Section 402(a) also requires that EPA, in
consultation with the aforementioned agencies, develop standards for
the performance of lead-based paint activities (including lead
inspections and risk assessments). EPA issued the proposed section 402
rule on September 2, 1994 (59 FR 45872) (FRL-4633-9), and the final
rule on August 29, 1996 (61 FR 45778) (FRL-5389-9).
Section 402(c)(1) of TSCA directs EPA to issue guidelines for the
conduct of renovation and remodeling activities which may create a risk
of exposure to dangerous levels of lead when performed in target
housing, public buildings constructed before 1978, and commercial
buildings. EPA released its final guidelines for renovation and
remodeling, entitled Reducing Lead Hazards When Remodeling Your Home in
April 1994 (revised in September 1997), and has made the guidelines
available through the National Lead Information Clearinghouse (NLIC).
Section 402(c)(2) of TSCA directs EPA to conduct a study of the
lead hazards generated during different types of renovation and
remodeling activities. Section 402(c)(3) of TSCA directs EPA to use the
results of the renovation study, along with other information, to
determine which renovation and remodeling activities should be
regulated as lead-based paint activities, based on potential hazards
generated during their performance.
Section 404 of TSCA directs EPA to develop an application process
for those States (which EPA has interpreted to include Tribes) that
seek to administer and enforce the standards, regulations, and
requirements established under sections 402 and 406. Section 404 also
directs EPA to develop and issue a Model State Program for use by
States and Tribes pursuing authorization under these provisions. EPA
proposed the authorization process and the Model State Program for
States and Tribes, in conjunction with the proposed rule for section
402, in the September 2, 1994 Federal Register. The section 404 rule
was also published on August 29, 1996, in final form.
Pursuant to section 1015 of Title X, HUD established a Task Force
on Lead-Based Paint Hazard Reduction and Financing made up of private
and public organizations. The Task Force, representing the spectrum of
interests affected by the lead-based paint issue, released final
recommendations on evaluating and reducing lead-based paint hazards in
private housing on July 11, 1995, in a report entitled Putting the
Pieces Together: Controlling Lead Hazards in the Nation's Housing
(Copies of this report can be acquired by contacting the NLIC at 1-800-
424-LEAD). These recommendations have been considered in the
development of this final rule.
Pursuant to section 1017 of Title X, HUD, in cooperation with EPA
and other Federal agencies, has revised its guidelines for lead-based
paint hazard evaluation and reduction activities. The revised document,
entitled Guidelines for the Evaluation and Control of Lead-Based Paint
Hazards in Housing, was released to the public in June 1995. A copy of
the guidelines is included in the public record for this rule.
B. Lead Poisoning in the United States
Lead affects virtually every system of the body. While it is
harmful to individuals of all ages, lead exposure can be especially
damaging to children, fetuses, and women of childbearing age. As recent
studies have identified previously unrecognized effects, there has been
increasing concern about blood-lead levels once thought to be safe.
Since 1978, CDC has lowered the blood-lead level of concern from 60
g/dL (micrograms/deciliter) to 10 g/dL (Ref. 2).
Lead poisoning has been called ``the silent disease'' because its
effects may occur gradually and imperceptibly, often showing no obvious
symtoms. Chronic blood-lead levels as low as 10 g/dl have been
associated with learning disabilities, growth
[[Page 29910]]
impairment, permanent hearing and visual impairment, and other damage
to the brain and nervous system. In large doses, lead exposure can
cause blindness, brain damage, convulsions, and even death. Lead
exposure before or during pregnancy can also alter fetal development
and cause miscarriages.
In 1991, the Secretary of HHS characterized lead poisoning as the
``number one environmental threat to the health of children in the
United States'' (Ref. 2). The percentage of children under 6 years of
age with elevated blood-lead levels has declined over the last 20
years. Recent results from the Third National Health and Nutrition
Examination Survey (NHANES III, Phase 2) indicate that the average
child's blood-lead level has declined from 12.8 g/dL to 2.7
g/dL (Ref. 9a). However, about 800,000 children under the age
of 6 (4.2% of children at that age) still had blood-lead levels above
CDC's 10 g/dL level of concern (Refs. 9 and 9b).
C. Hazards From Past Uses of Lead-Based Paint
Efforts to reduce exposure to lead from sources like gasoline and
food cans have played a large role in the past reductions of blood-lead
levels in the United States. Despite these successes, a significant
human health hazard remains due to improperly managed lead-based paint.
From the turn of the century through the 1940's, paint manufacturers
used lead as a primary ingredient in many oil-based interior and
exterior house paints. Usage gradually decreased through the 1950's and
1960's, as largely lead-free latex paints became more popular. Although
CPSC banned lead-based paints from residential use in 1978 (currently,
paints may not have greater than 0.06% lead by weight (Ref. 3)), EPA
and HUD estimate that 83% of the privately-owned housing units built in
the United States before 1980 contain some lead-based paint. By these
estimations, approximately 64 million homes contain lead-based paint
which may pose a hazard to the occupants (Ref. 4).
Lead from exterior house paint can flake off or leach into the soil
around the outside of a home, contaminating children's playing areas.
Dust caused during normal lead-based paint wear (especially around
windows and doors) can create an imperceptible film over surfaces in a
house. In some cases, cleaning and renovation activities can increase
the threat of lead-based paint exposure by dispersing fine lead dust
particles into the air and over accessible household surfaces. If dust
is managed improperly, both adults and children could receive hazardous
exposures to lead by inhaling the fine dust or by ingesting paint-dust
during hand-to-mouth activities. Children under age 6 are especially
susceptible to lead poisoning (Ref. 2).
IV. Summary of Proposed Rule and Public Comments
On March 9, 1994 (59 FR 11108), EPA issued proposed regulations
that would require renovators to provide a lead hazard information
pamphlet to owners and occupants of target housing before beginning
renovations, and notification on the nature of the renovation
activities in certain circumstances involving multi-family housing. The
housing that EPA proposed to cover by the regulation included all
housing built before 1978 with the exception of 0-bedroom dwellings and
housing for the elderly and persons with disabilities wherein no child
under 6 years of age resides or is expected to reside. EPA's proposal
provided flexibility for renovations conducted in common areas (like
stairways, lobbies, and hallways) of buildings. EPA requested comments
concerning the proposed rule, specifically on the definition of
``renovation'' and identifying renovation activities that should be
covered under the rule.
By the close of the comment period, May 9, 1994, EPA had received
30 comments. The largest number of responses was received from public
health and environmental protection departments (27% of the responses)
and organizations involved with building and development (27% of the
responses). Other commenters included representatives from advocacy
groups (23% of the responses) and the real estate industry (10% of the
responses). Approximately 10% of the responses came from a combination
of Federal agencies, State agencies, and concerned private citizens. A
summary of all comments received, and EPA's responses, may be found in
the Response to Comments document which is available for public review
in the TSCA Docket for this rulemaking (see Unit VIII. of this
preamble). The paragraphs that follow briefly describe some of the key
concerns that were raised by the commenters.
The majority of the comments received concerned the term
``renovation.'' Commenters requested clarification so as to
differentiate between work that would be considered renovation and that
categorized as repair and maintenance. Concerns were expressed
regarding flexibility in addressing emergency situations where the need
for a rapid response conflicted with the ability to provide the
pamphlet to the owner and occupant of the target housing to be
renovated. Over half of the comments concerning renovation specifically
addressed the proposed alternative approaches for defining renovations:
modeling the definition after the asbestos program, listing specific
activities of concern, using the Occupational Safety and Health
Administration (OSHA) list of construction activities, identifying
specific job classifications, identifying specific cost ranges, or
specifying the size of the home improvement activity.
Numerous comments concerned other definitions in the proposed rule
such as ``person,'' ``lead-based paint hazard,'' and ``target
housing.'' Commenters also addressed the proposed rule's applicability
to multi-family housing, the actual mechanisms for pamphlet
distribution, and the corresponding acknowledgment requirement. A few
comments concerned the burden of the rule on the regulated industry,
the overall scope of the rule, and its projected cost.
EPA received no comments on the section of the rule establishing a
procedure for the submission of confidential business information.
V. Final Rule Provisions
In light of the public's comments, the Agency has striven to ensure
that this rule is clear, understandable, flexible, achieves the
statutory objective while imposing the minimum burden, and is
consistent with other Federal activities. These goals are important to
assure quick and widespread implementation of and compliance with the
rule.
A. Scope and Purpose
The scope, purpose, and applicability sections of the rule have
been modified to more clearly reflect who is responsible for providing
lead hazard information, who is to receive this information, the nature
of that information, and the rule's authority.
B. Date of the Rule
EPA received a comment suggesting that the effective date of the
rule be immediate. However, EPA believes that the rule's effective
implementation requires an informed and prepared general public and
regulated community. EPA has concluded that a phase-in period of 1 year
is necessary to provide adequate time for parties to become familiar
with the rule requirements and to set up procedures for compliance.
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C. Applicability
EPA requested comments on six approaches being considered for
describing the activities encompassed by the term ``renovation.'' Most
of the numerous comments received on this topic requested further
clarification and additional guidance in determining which types of
home improvement, maintenance, and repair activities would be
classified as renovations for purposes of the rule. Commenters
requested more specific criteria to facilitate differentiation between
a renovation activity and routine maintenance or repair. One commenter
suggested that modeling the definition of regulated activities under
this rule after EPA's Asbestos Program (which used both the Standard
Industrial Classification (SIC) codes and the OSHA list of construction
tasks) would result in the inclusion of too broad a range of
activities.
Based on the responses received from commenters, EPA determined
that both the SIC codes and the OSHA list of construction tasks lacked
the specificity necessary to aid EPA in developing its list of
regulated renovation activities. The OSHA list was developed to address
a far broader range of construction tasks than should be regulated
under section 406(b); likewise, using SIC codes as a way of creating
worker categories was determined to be inadequate in capturing the
appropriate spectrum of activities.
In general, commenters also suggested that neither cost nor the
overall size of the work was a valid criterion for determining exposure
to lead-based paint hazards and indicating risk. EPA agrees, and has
also determined that a de minimis cost level would be difficult to
interpret, especially when compensation was provided in non-monetary
terms or when such activities were part of a larger service or
maintenance agreement.
After careful review of the comments on these proposed approaches,
EPA has decided to define renovation by focusing on the potential
disruption of paint (the key source of exposure that may occur during
renovation). One commenter voiced specific concerns that the proposed
approach to defining renovation was too broad and suggested that EPA
focus on activities that are likely to generate a risk of lead
exposure. In response to that and other comments, EPA modified the
definition to include all renovation activities except those which do
not disturb painted surfaces.
EPA recognizes that it is necessary to distinguish between
renovation activities and those minor activities that are required
during the maintenance of a residence. EPA believes that requiring
maintenance workers to distribute hazard information during the
implementation of regular tasks would pose an undue burden on owners
and their staffs. A 2 square foot per component de minimis level has
been adopted from the June 1995 Guidelines for the Evaluation and
Control of Lead-Based Paint Hazards in Housing as a means of
differentiating between large-scale renovation activity and minor
maintenance activities which pose a lower likelihood of creating a lead
hazard. This same de minimis level has also been used by the National
Institute of Building Sciences (NIBS) in its draft Regulatory Models
for Lead Poisoning Prevention report. This draft report is the result
of a consensus process involving both public (e.g., Federal and State
governments) and private (e.g., landlord associations, builders)
sectors. EPA believes that this revised definition provides a common
sense approach which is consistent with standard industry practices (as
captured in the aforementioned guidelines and the de minimis level's
use in the NIBS report), along with clear guidance and direction to the
regulated community, as to which renovation activities will trigger the
requirements of this rule.
EPA recognizes that emergency situations occur which require
renovation activities to be conducted within a time frame precluding
advance notification. Such emergencies would typically involve
structural or equipment failure that could lead to endangerment to
public health or substantial property damage if not repaired
immediately. To address these situations, EPA has included a category
of Emergency renovation operations (see Sec. 745.83 of the regulatory
text) that are exempted from the requirements of this rule.
In addition, EPA has exempted renovations performed (in target
housing) on components that have been determined, by an inspector
(certified pursuant to either Federal regulations at 40 CFR 745.226 or
an EPA-authorized State certification program), to be free of paint or
other surface coatings that contain lead equal to or in excess of 1.0
milligram per square centimeter or 0.5 percent by weight (see
Sec. 745.82(b)(3) of the regulatory text).
D. Definitions
EPA received many comments that suggested the definitions used for
this rule retain full consistency with existing State, local, and
industry practice. Below is a brief discussion of definitions that
apply to this rule. While these definitions were included in the
proposed rule, most have since been promulgated as part of related
rulemakings under Title X and Title IV of TSCA. Only the definitions of
``emergency renovation operations,'' ``pamphlet,'' ``person,''
``renovation,'' and ``renovator'' are promulgated in this rule.
However, all definitions that were proposed for use in this rule are
discussed below.
Common area means a portion of a building generally accessible to
all residents/users, including, but not limited to, hallways,
stairways, laundry and recreational rooms, playgrounds, community
centers, and boundary fences.
This definition is unchanged from the proposed rule and can be
found in 40 CFR 745.103. Although EPA received a comment suggesting to
limit the definition, EPA has decided to retain the definition of
common area also being used in other regulations mandated by Title X
and Title IV of TSCA. These other regulations require a broader
interpretation of the term (e.g., the inclusion of residence exteriors
within the term's scope), and for consistency, EPA elected to adopt a
single definition for all the rules. EPA has concluded that this
discussion of the term's broad interpretation should sufficiently
address commenter requests for an explicit inclusion of renovation work
being performed upon a residence's exterior surfaces and surfaces in
proximity to the residence within the rule's notification requirements.
However, because today's rule affects only residential housing,
applicability of the definition for section 406(b) purposes is limited
to common areas in residential housing.
Emergency renovation operations means renovation activities, such
as operations necessitated by non-routine failures of equipment, that
were not planned but result from a sudden, unexpected event that, if
not immediately attended to, presents a safety or public health hazard,
or threatens equipment and/or property with significant damage.
In the March 9, 1994 proposal, EPA specifically requested comment
on whether the rule should include provisions for emergency renovations
and other situations where unusual circumstances necessitated immediate
action. EPA received a comment indicating that this definition was too
broad. The commenter argued that only catastrophic situations such as
fire, explosion, or imminent structural collapse required a response so
prompt
[[Page 29912]]
as to preclude notification and that this exemption would be subject to
abuse. EPA does not believe that emergency renovation activities are
defined only by life-threatening situations. To ensure that the
regulation does not unduly impair a property owner or manager's ability
to react quickly to situations that present a sudden hazard to public
safety or a sudden threat of significant property damage, EPA has added
a specific exemption for emergency renovations and has provided the
above definition. EPA has based its definition on the language used
within EPA's National Emission Standards for Hazardous Air Pollutants
(Asbestos) (40 CFR part 61, subpart M).
Multi-family housing means a housing property consisting of more
than four dwelling units.
This definition is unchanged from the proposed rule. EPA received a
comment suggesting that either this definition be changed to
accommodate housing consisting of two, three, and four dwelling units,
or that a definition covering that number of units be created. EPA may
propose and seek comment on such a modification in the near future.
Owner means any entity that has legal title to target housing,
including but not limited to individuals, partnerships, corporations,
trusts, government agencies, housing agencies, Indian tribes, and
nonprofit organizations, except where a mortgagee holds legal title to
property serving as collateral for a mortgage loan, in which case the
owner is considered the mortgagor.
EPA received a comment on the proposed definition's inclusion of
third party managers or representatives. The commenter asserted that
since management agreements between owners and third parties clearly
establish that the responsibility for all property decisions reside
with the owners, owners should be clearly differentiated from third
party fee property managers. EPA agrees with the commenter. For the
sake of consistency with section 1018 of the Residential Lead-Based
Paint Hazard Reduction Act, EPA has revised the definition (see 40 CFR
745.103) of owner to clarify its applicability to trusts and to
distinguish between owners (mortgagor) and mortgage lenders
(mortgagees). The definition was also revised by removing the
representative portion.
Pamphlet means the EPA pamphlet developed under section 406(a) of
TSCA for use in complying with this and other rulemakings under Title
IV of TSCA and the Residential Lead-Based Paint Hazard Reduction Act,
or any State or Tribal pamphlet approved by EPA pursuant to 40 CFR
745.326 that is developed for the same purpose. This includes
reproductions of the pamphlet when copied in full and without revision
or deletion of material from the pamphlet (except for the addition or
revision of State or local sources of information).
EPA added this definition to specify and identify either the lead
hazard information pamphlet developed under section 406(a) of TSCA or
any EPA-approved State pamphlet.
Person means any natural or judicial person including any
individual, corporation, partnership, or association; any Indian Tribe,
State or political subdivision thereof; any interstate body; and any
department, agency, or instrumentality of the Federal Government.
EPA received several comments on this definition regarding whether
the sovereign immunity of the United States is waived in relation to
this rule. Congress provided such a waiver in section 408 of TSCA. EPA
modified this definition so that it is consistent with the definition
promulgated in Sec. 745.223.
Renovation means the modification of any existing structure, or
portion thereof, that results in the disturbance of painted surfaces,
unless that activity is performed as part of an abatement as defined by
this part (40 CFR 745.223). The term renovation includes (but is not
limited to): the removal or modification of painted surfaces or painted
components (e.g., modification of painted doors, surface preparation
activity (such as sanding, scraping, or other such activities that may
generate paint dust)); the removal of large structures (e.g., walls,
ceiling, large surface replastering, major re-plumbing); and window
replacement.
EPA requested and received many comments on the proposed
definition. EPA agrees with the commenters who stated that the proposed
definition did not provide adequate guidance in defining a regulated
transaction. EPA has, therefore, revised the definition to remove the
unclear references to hazard levels involved in the activities,
believing that it is not appropriate to expect each potential renovator
to determine what is and what is not a ``hazardous'' activity. Instead,
EPA has developed a definition that focuses on disturbance of paint,
the key source of exposure that may occur during renovations.
Further, EPA has added an applicability section (Sec. 745.82) that
lists activities that are excluded. This section excludes emergency
renovations and renovation activities that pose little likelihood of
creating lead hazards. The specifically excluded activities are: minor
repair and maintenance activities (including minor electrical work and
plumbing) that disrupt 2 square feet or less of painted surface per
component; emergency renovation operations; and renovations in target
housing in which a written determination has been made by an inspector
(certified pursuant to either Federal regulations at Sec. 745.226 or an
EPA-authorized State certification program) that lead-based paint is
not present in the area affected by the renovation, where the renovator
has obtained a copy of the determination.
EPA believes that the definition, coupled with the list of excluded
activities in the applicability section, provides the regulated
community with a clearer direction than that provided in the proposed
rule. EPA also thinks that the definition and applicability sections
enable this rule to cover all potentially hazardous renovation
activities and exclude those that pose little likelihood of disturbing
significant amounts of painted surface.
Renovator means any person who performs for compensation a
renovation.
This definition was changed from the proposed rule by deleting the
phrase ``of target housing or public buildings'' which appeared after
the term ``renovation.'' This change makes the term ``renovator''
consistent with the term ``renovation,'' which is not limited to
particular types of structures. Further, because future rules issued
pursuant to section 402(c) of TSCA may apply, regulations promulgated
under section 402(a) to renovation and remodeling in target housing,
public buildings constructed before 1978, and commercial buildings, EPA
believes the terms ``renovation'' and ``renovator'' should be defined
in such a way that they can apply to all such structures. This change
does not affect the scope or applicability of the rule, because the
applicability provision at Sec. 745.82 of the rule will limit the rule
to renovations of target housing performed for compensation. Finally,
as discussed in the proposal, although EPA considers that maintenance
staff retained by the owners of buildings may be considered renovators
for the purpose of this rule, an exclusion for routine maintenance and
operations activities is provided in the applicability section of the
rule.
Residential dwelling means:
(1) A single-family dwelling, including attached structures such as
porches and stoops; or
(2) A single-family dwelling unit in a structure that contains more
than one separate residential dwelling unit, and in which each such
unit is used or occupied, or intended to be used or occupied, in whole
or in part, as the
[[Page 29913]]
home or residence of one or more persons.
This definition, drawn from the statute, is unchanged from the
proposal (see 40 CFR 745.103).
Target housing means any housing constructed prior to 1978, except
housing for the elderly or persons with disabilities (unless any child
who is less than 6 years of age resides or is expected to reside in
such housing) or any 0-bedroom dwelling.
This definition was provided by the statute and is unchanged (see
40 CFR 745.103).
0-Bedroom dwelling means any residential dwelling in which the
living area is not separated from the sleeping area. The term includes
efficiencies, studio apartments, dormitory housing, military barracks,
and rentals of individual rooms in residential dwellings.
This definition, which can be found in 40 CFR 745.103, is drawn
from the HUD 1994 housing survey, as a standard definition for 0-
bedroom housing. It was added to this rule to provide both
clarification of the term as it is used in the definition of target
housing and consistency with the other regulations under Title X and
TSCA.
E. Lead Hazard Information Pamphlet
In the August 1, 1995 Federal Register, EPA issued a Notice of
Availability for the lead hazard information pamphlet entitled Protect
Your Family From Lead In Your Home. EPA and HUD will distribute this
pamphlet under several Congressional directives that will be
implemented in separate rulemaking initiatives, including this rule.
The pamphlet has been made available to the general public as well
as the regulated community. Single copies of the pamphlet are available
in both English and Spanish from the NLIC, by calling 1-800-424-LEAD
(TDD 1-800-526-5456). Multiple copies are available through the
Government Printing Office (GPO), and may be ordered by calling the GPO
Order Desk at (202) 512-1800, faxing (202) 512-2233, or writing to
Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-
7954. Request the publication by title, Protect Your Family From Lead
in Your Home, and/or GPO stock #055-000-00507-9.
The pamphlet may be reproduced without permission from EPA or CPSC.
EPA is encouraging persons to make their own reproductions of the
pamphlet. Persons who wish to reprint the pamphlet may obtain negatives
or black and white reproducible copy from the NLIC at 1-800-424-LEAD.
Any copies reproduced for use in complying with this rule, however,
must be copied in full, and may not be revised in any way unless those
actions are meant to add or properly reference State or local sources
of information. Also, persons wishing to reprint the pamphlet may
attach their company name, logo, and contact information on the back
cover in the space provided at the bottom of the page.
In addition, EPA has developed a program under section 404 of TSCA
in which States and Tribes may apply to EPA for authorization to
develop and distribute their own pamphlets for compliance with this
rule. That program now allows States and Tribes that have obtained such
authorization to substitute the State-developed pamphlet for the
Federal version for compliance with this rule. EPA provided preliminary
approvals for pamphlet substitutions to the States of California and
Massachusetts in August 1996.
This is a change from the proposed section 406(b) rulemaking. The
section 406(b) proposal included language preventing State and Tribal
modification of the pamphlet. EPA has since concluded that States and
Tribes should be able to craft their own pamphlets so long as they
include a number of basic elements.
In anticipation of this change, EPA included specific language in
the preamble to the section 404 rule (under Unit I.X.) that was
published August 29, 1996 (see FR 45802, 45803). That unit describes
the minimum elements that must be present in a State or Tribal program
in order for that State or Tribe to receive authorization from EPA (see
40 CFR 745.326). The unit also acknowledges the need for flexibility in
the amount of detail and supplemental information to be included in a
pamphlet for State or Tribal use. EPA has concluded that this
flexibility is required due to the variety of particular, local
informational and communication challenges that States and Tribes may
face.
This change makes the section 406(b) program consistent with the
rest of the lead program under Titles IV and X. This change also gives
renovators a greater amount of flexibility; now renovators may choose
between disseminating the EPA pamphlet or pamphlets crafted pursuant to
section 404 (40 CFR 745.326).
EPA received comments concerning the pamphlet emphasizing that both
it and the acknowledgment need to be available in languages other than
English. As noted above, EPA concurred and has made the pamphlet
available in Spanish. However, it was not considered reasonable to
require the renovator to provide translations into any language
requested by the resident, nor does EPA have the resources to
unilaterally develop, print, and distribute the pamphlet in every
language represented in the United States. EPA is pursuing the
feasibility of obtaining additional translations through public and
private partnerships. Several private organizations are in the midst of
developing the pamphlet in languages other than Spanish and English. If
you have any questions concerning those efforts, consult the parties
listed in the ``FOR FURTHER INFORMATION CONTACT'' section.
F. Information Distribution Requirements
1. Renovations in living units. EPA's modifications of the proposed
information distribution requirements provide the regulated community
with flexibility while ensuring appropriate communication with owners
and occupants whose living units are undergoing renovations. Commenters
expressed concerns about the proposed provision regarding the
feasibility of requiring a signed acknowledgment from the ``head of a
household,'' noting that it could be extremely difficult to locate or
guarantee accurate identification of such an individual. In the final
rule, EPA permits any adult occupant of an affected target housing unit
to acknowledge receipt of the pamphlet.
A second concern involved using the acknowledgment of the receipt
of the pamphlet as an indication of the owner or occupant's awareness
of the potential health hazards associated with renovations that
disturb lead-based paint. Commenters indicated that a person who has
just received a pamphlet would not have had time to read it. He or she
could not realistically be expected to attest to any level of
comprehension of the potential risks. EPA revised the final rule to
focus solely on acknowledging receipt of the pamphlet.
2. Delivery requirements. EPA received numerous comments regarding
this section. A prevalent comment expressed concern with requiring the
renovator to obtain a signed acknowledgment. Commenters suggested
scenarios of owners and occupants refusing to sign the acknowledgment
or being unavailable during normal business hours, when such deliveries
would typically occur. Commenters stated that holding the renovator
accountable for such actions beyond his or her control was
inappropriate.
[[Page 29914]]
After careful consideration, and in keeping with the goal of
allowing flexibility where appropriate, the final rule allows the
renovator several options for distributing the pamphlet, including
personal delivery by the renovator or a designated representative,
self-certification for unsuccessful attempted personal deliveries, and
the option to mail the pamphlet.
The final rule permits either the renovator or a designated
representative (such as a landlord) to deliver the pamphlet and obtain
the acknowledgment. However, when using a designated representative,
the renovator remains responsible for compliance with this rule. This
provides renovators with additional flexibility with regard to
delivery, but still ensures that they retain the responsibility for
compliance with the rule and maintaining the appropriate records. EPA
also recognizes that there may be situations when an adult occupant
cannot be reached or simply refuses to sign an acknowledgment. Under
these circumstances, the renovators, or their designee, will be allowed
to certify in writing that the delivery was attempted, and briefly
explain what was done and why a signed and dated acknowledgment could
not be obtained. The renovator is nonetheless required to deliver a
copy of the pamphlet to the affected housing unit.
Another option allows the renovator to deliver the pamphlet by mail
after receiving some receipt or proof of mailing. Of course, the
renovator may use more expensive methods of delivery (e.g., certified
mail, registered mail), but obtaining a certificate of mailing from the
Post Office is the minimum required.
Notwithstanding the renovator's approach, the renovator must either
have the proper documentation (i.e., signed and dated acknowledgment,
or self-certification) or have purchased and received a certificate of
mailing from the Post Office at least 7 days before the commencement of
renovation activities.
3. Content of Acknowledgement Statements. Commenters provided
suggestions as to the specific language of the acknowledgment
statements. Several commenters suggested that the statements include
detail regarding lead hazards and a reference to the pamphlet, while
others suggested that obtaining acknowledgement would be overly
burdensome or cause delays in renovation activities. After reviewing
the comments, EPA decided to delete specific acknowledgment language
from the rule in order to reduce the burden on the regulated community
and permit a greater degree of flexibility without compromising the
safety of owners and occupants. However, to provide guidance to the
regulated community, Sec. 745.88 has been added, offering suggested
language for acknowledgment.
4. Renovations in common areas. The final rule discusses target
housing in terms of dwelling units and common areas (as would be found
in multi-family housing). Pre-renovation notification activities for
renovations in common areas differ slightly from those in dwelling
units. The main difference is that the renovator is not required to
distribute the pamphlet and obtain an acknowledgment from the occupants
regarding renovations performed in common areas, although the renovator
must notify residents of the upcoming renovations and make the pamphlet
available upon request, prior to the renovation, at no charge.
Although some commenters suggested that all residents should
receive a copy of the pamphlet before any work begins in common areas,
EPA does not believe that the creation of a system in which occupants
receive a pamphlet every time any kind of work occurs within the common
areas of a building is the most efficient method for achieving the
informational objectives contemplated by section 406(b). Since
renovation activities may occur in various hallways or lobbies of a
building on a frequent basis, it could be impractical to require a
renovator to provide all occupants with a new pamphlet before the
commencement of each renovation, especially in dwellings with large
numbers of residential units. Such a requirement would be difficult to
implement and enforce, and the impact of the pamphlet would likely
decrease with each time it was given. The renovator is required,
however, to provide the owner with a copy of the pamphlet and obtain
the signed, dated acknowledgment thereof.
Although the renovator is not required to distribute the pamphlet
and obtain acknowledgments from each occupant in the building, the
renovator must still notify (no more than 60 days prior to the
renovation) each unit individually in writing of the renovation work
that is to occur, including a description and locations of the
activity, a statement that lead-based paint may be disturbed, and the
expected starting and ending dates. Further, the renovator must make
copies of the pamphlet available upon request and provide information
on how to obtain them. The notification process could be accomplished
by distributing a letter or flyer containing the required information
to each living unit within the dwelling. Notification activities could
be performed by the renovator, by the owner of the dwelling or other
representative, on behalf of the renovator. Even if the owner or other
representative agreed to perform the notification activities, however,
the responsibility to assure compliance would still rest with the
renovator. In any case, the notification must be received before the
work is commenced.
EPA recognizes that in some cases, large renovations could take an
extended period of time or cover several different common areas of
multi-family housing. In that case, if the initial notification
provides accurate information on the scope of renovations planned in
the various areas, with an accurate schedule of their performance, then
that initial notification would be sufficient to meet the requirements
of this rule. If the scope, location, or time frame of the activities
change in a way not reflected in the original notification, then the
renovator is obligated to provide updated information in an additional
notification. This updated information is necessary to ensure that
owners and occupants can, if necessary, adequately protect themselves
from exposure to lead-based paint.
EPA believes that owners or renovators in the original notification
will allow a generous amount of time for the completion of the
renovation and define a comprehensive scope of the work to ensure that
renotification (pursuant to Sec. 745.85(b)(4)) will not be necessary.
Therefore, EPA has chosen not to include the costs of this provision in
the Regulatory Impact Analysis (see Unit VII. of this preamble) for
this rulemaking. EPA has concluded that these provisions for notifying
occupants of common area renovations strike the appropriate balance
between public access to information and burden on the regulated
community.
G. Recordkeeping Requirements
EPA requested comment on whether the recordkeeping requirements
were reasonable, too stringent, or not stringent enough. The comments
were mixed and varied. A significant number of commenters argued that
the length of the renovation job was a sufficient retention period, and
an equally significant number of commenters argued to retain the 3-year
recordkeeping requirement of the proposal. Based on a review of the
comments provided, EPA will retain the 3-year recordkeeping requirement
as proposed.
Thus, renovators are required to retain and, if requested, make
available to EPA
[[Page 29915]]
or its authorized delegates (i.e., States and Tribes with EPA-approved
programs) all records necessary to demonstrate compliance with the
requirements of this rule for 3 years following completion of the
renovation activities on target housing. These records include any
reports certifying that lead-based paint is not present in the housing;
the signed, dated acknowledgments of receipt for delivery of the
pamphlet; the signed, dated certifications of the inability to obtain
an acknowledgment of receipt; the certificate of mailing for delivery
of the pamphlet; and the signed, dated acknowledgments and records of
notification activities for renovations in common areas.
H. Enforcement and Inspections
EPA received some comment on the enforcement provisions discussed
in the statute and the proposed rule. A few commenters expressed
concern about EPA's ability to oversee and enforce the requirements of
section 406(b), while other commenters sought assurance that the Agency
recognized the importance of education and outreach to the regulated
community. Since the enforcement and inspection provisions in this rule
derive directly from the authorizing statutory language of TSCA, this
rule retains the enforcement language largely as proposed. The section
number was changed to reflect modified numbering, and the section
heading was renamed so that it could more simply indicate that it
addressed EPA's enforcement and inspection authority. Below is a
discussion of the general enforcement authority provided by TSCA
(including Title IV), along with some discussion of the process EPA
envisions for the development of a sensible and effective lead
enforcement program.
Section 409 of TSCA makes it unlawful to fail or refuse to comply
with any provision of a rule promulgated under Title IV of TSCA.
Therefore, failure to comply with any provisions of this final rule by
regulated entities would be a violation of TSCA. In addition, section
15 of TSCA makes it unlawful for any regulated entity to fail or refuse
to permit entry or inspection (of business records in this instance) by
EPA or its authorized delegates as required by section 11 of TSCA.
Violators may be subject to both civil and criminal sanctions. Under
the penalty provision of section 16 of TSCA, any person who violates
sections 15 or 409 may be subject to a civil penalty of up to $25,000
per day for each such violation. Knowing or willful violations of any
provision of this final rule could lead to the imposition of criminal
fines of up to $25,000 per day and imprisonment for up to 1 year for
each such violation.
The above-described provisions reflect the overall enforcement
authority available to EPA under TSCA. While EPA intends to use the
inspection and enforcement tools available to ensure compliance with
this final rule, it is also EPA's intent that outreach and compliance
assistance be major components of the section 406(b) program so that
renovators are aware of the new requirements and their subsequent
obligations. EPA also intends to bring clarity and predictability to
the enforcement process for section 406(b). EPA is developing a
mechanism that achieves a common sense relationship between a
particular ``violation'' of section 406(b) and a particular enforcement
response. This includes issuing notices of warning (without penalties)
as appropriate to let individuals know that they are out of compliance
and give them an opportunity to come into compliance, and ensuring that
willful and repeated violators are appropriately penalized. However,
numerous factors (many of which are mandated by TSCA) are involved in
the Agency's determination of a proper enforcement response. EPA is
currently developing an ``Enforcement Response Policy'' (ERP) for the
requirements of this final rule.
I. Confidential Business Information
EPA received no comments on this section. However, in order for
readers to understand what is required for the submission of
confidential documents, EPA has included the following two paragraphs
to describe those procedures (per 40 CFR part 2, subpart B):
Those who assert a confidentiality claim for submitted information
must provide EPA with two copies of their submission. The first copy
must be complete and contain all information being claimed as
confidential. The second copy must contain only information not claimed
as confidential. EPA will place the second copy of the submission in
the public file.
EPA will disclose information subject to a claim of confidentiality
only to the extent permitted by section 14 of TSCA and 40 CFR part 2,
subpart B. If a person does not assert a claim of confidentiality for
information at the time it is submitted to EPA, EPA may make the
information public without further notice to that person.
VI. Authorization of State Programs
Under section 404(a) of TSCA and its implementing regulations,
States and Tribes may apply to administer and enforce the standards,
regulations, and requirements established under this rule. Section
404(b) states that the Administrator may approve such an application
only after finding that the State or Tribal program is at least as
protective of human health and the environment as the Federal program
established according to the mandate of sections 402 and 406 of TSCA,
and that it provides adequate enforcement.
The State or Tribal program must have regulations or procedures
that contain the following: (1) Requirements for distribution of an
approved lead hazard information pamphlet before renovations performed
for compensation in target housing commence; and (2) provisions for the
adequate enforcement of the above program.
In providing an approved lead hazard information pamphlet meeting
the requirements of section 406(a) of TSCA, the State or Tribe may
either require distribution of: (1) The lead hazard information
pamphlet developed by EPA, under section 406(a) of TSCA, entitled
Protect Your Family From Lead In Your Home, or (2) an alternative
pamphlet or package of lead hazard information that has been approved
by EPA. Any pamphlet or package of information submitted for EPA
approval must contain the content and design elements as mandated by
section 406(a) of TSCA. The procedures for submitting an application
(40 CFR 745.324) were made final in a separate Federal Register notice.
VII. Summary of Regulatory Impact Analysis
EPA has prepared a Regulatory Impact Analysis (RIA) which examines
the potential costs, benefits, and impacts of these regulations for the
disclosure of potential lead-based paint hazards prior to residential
renovations. The complete RIA is included as a part of the public
record for this rule and is available through the TSCA Docket (see Unit
VIII. of this preamble for address).
A. Background and Framework for Analysis
Those parties directly affected by the rule are renovators (which
may include property managers), occupants of owner-occupied and rental
housing, and owners of rental property. EPA found the required
activities which give rise to regulatory burden imposed on the affected
parties to fall into four categories for cost estimation purposes:
Start-up costs, which include learning the rule's
requirements and establishing compliance procedures.
[[Page 29916]]
Disclosure activities, which refer to the costs resulting
from the actual transfer of information and obtaining of needed
acknowledgments.
Recordkeeping, which results principally from the
requirement that signed acknowledgment statements must be retained by
the provider of the information.
Materials, which is linked primarily to the disclosure
requirement, as the lead hazard information pamphlet must be purchased
or photocopied (acknowledgment statements must also be provided). Costs
may also be incurred for filing where a high number of acknowledgment
statements are generated (e.g., renovators), though such burden was
estimated to be quite modest.
The requirements of section 406(b) of TSCA fall on parties
providing renovation services for compensation to owners of ``target
housing,'' which is defined to be any housing constructed prior to
1978, except housing for the elderly or persons with disabilities
(unless any child who is less than 6 years of age resides or is
expected to reside in such housing) or any 0-bedroom dwelling.
To estimate the impacts of the rule, data were sought pertaining to
the number of affected parties; the frequency with which affected
renovation transactions are completed; and the incremental costs, in
labor and materials, added to each transaction by the regulations.
B. Profile of Sectors Affected
Four major industry sectors were identified as affected: SIC codes
15 (General Contractors and Operative Builders); 17 (Special Trade
Contractors); 651 (Real Estate Operators and Lessors); and 653 (Real
Estate Agents and Managers). In total, EPA estimates there to be
482,000 establishments potentially affected by the rule. The greatest
portion of this sum is expected to fall within SIC 17, where 199,000
establishments could be subject to the rule's requirements. Ninety-nine
thousand establishments were estimated to be potentially affected in
SIC 15. Also subject to the rule are as many as 92,000 business
establishments falling within each of SICs 651 and 653.
Employment data for these industries were obtained for occupations
most likely to be involved in transactions subject to the rule. EPA
estimates that 2,272,000 contractor personnel (SICs 15 and 17) and
243,000 property managers (SICs 651 and 653) may be affected.
With regard to transaction volume, EPA found that 12.2 million
renovation events in owner-occupied target housing and 6.3 million
renovation events in rental target housing that occur each year may be
subject to the rule.
C. Estimated Costs to Private Parties and Government
EPA found that due to limitations of the data, the RIA cost
estimates could not distinguish the frequency of regulated transactions
in target housing from those transactions occurring in housing not
subject to the information disclosure rules. While completing the final
analysis, EPA also determined that it was not possible to establish how
frequently transactions performed in target housing would be excluded
from regulatory coverage (e.g., jobs disturbing less than 2 square feet
of painted surface). For those reasons, EPA believes that both the
proposed and final regulatory impact analyses overstate the impact of
this rulemaking.
The first private party cost category, start-up costs, represents
about one-third of overall annual compliance costs at $13.2 million.
Factors affecting the magnitude of these costs include the number of
employees having to familiarize themselves with the regulations, both
initially (employees in the existing workforce) and over time (new
entrants to the affected sectors); the time required to learn the
activities which must be undertaken in order to comply; and the hourly
compensation of affected employees.
Disclosure event costs of $57.5 million constitute the greatest
portion of overall compliance costs. Factors affecting the magnitude of
these costs include the frequencies of regulated events; the time
involved in performing required activities, such as providing the
owner/tenant with the required information and obtaining the required
signatures; and the hourly compensation of all involved parties.
Recordkeeping and materials costs comprise a relatively modest
share of overall annual costs at $3.7 million and $7.8 million,
respectively. Factors affecting the magnitude of these cost items
include the number of affected parties per transaction; the frequency
of transactions; the costs of acquiring/duplicating documents, which
include the lead hazard information pamphlet and signed acknowledgment
statements; and costs to maintain documents. This leads to a total
estimated annual cost to private parties of $82.2 million.
To administer the final regulation, EPA estimates government
resources totaling between $2.4 million (low estimate) and $4.3 million
(high estimate) will be required to conduct a number of activities,
including: inspections; violation case management; establishment and
maintenance of cooperative agreements; compliance assistance,
development of performance measurement criteria; and management.
Therefore, the total annual costs for this rule, to private parties and
the government, is estimated to be between $84.6 million (low estimate)
and $86.5 million (high estimate).
D. Effect of the Lead-Based Paint Hazard Disclosure Rule for Real
Estate Renovations on Small Businesses Regulatory Flexibility Analysis
EPA investigated the potential impacts of the rule on small
businesses, and has prepared a regulatory flexibility analysis which is
included in the RIA. While a large number of small establishments will
be potentially affected by the rule, cost impacts were not found to be
of sufficient magnitude to have significant economic impacts on such
establishments. That analysis is summarized separately in Unit X.B. of
this preamble.
E. Assessment of Benefits
The market imperfection that the rule is intended to correct is the
lack of information available to homeowners and tenants regarding the
potential health risks accompanying residential renovations that are
related to lead-based paint. Under the rule, general information about
risks associated with lead-based paint will be provided through the
provision of the pamphlet. The failure of the marketplace to currently
provide this information means that owners and occupants may not be
able to react appropriately to avoid or prevent such risks.
This rule will generate direct benefits by providing homeowners and
tenants information which they value and otherwise can acquire only
through their own effort at some cost. Two approaches for estimating
the benefits associated with having information are discussed in the
Regulatory Impact Analysis (RIA): a contingent valuation study, or a
study of the transaction costs to buyers and renters of obtaining
similar information. However, an information base and the associated
accepted analytic methods are not yet available; thus, the direct
benefits of this rule are not quantified. Nevertheless, EPA believes
that the information provided in the qualitative analysis presented in
the RIA adequately serves to inform and support the Agency's decision
to promulgate this rule.
EPA also expects indirect or ``follow-on'' benefits from the rule,
as the parties to the renovation transaction comprehend and use the
information in
[[Page 29917]]
the pamphlet. The regulation does not require that the pamphlet be read
or that actions be taken to reduce lead-based paint hazards; thus, the
extent to which lead exposure is reduced depends upon how transaction
participants respond to the information provided to them by this rule.
Such responses will involve both costs and benefits. As discussed in
the RIA, these costs and benefits are extremely difficult to quantify
because doing so requires the prediction of behavior and the isolation
of the many factors that influence behavior. In any event, EPA believes
that the benefits of any follow-on activities will outweigh their
costs, because any such actions will be undertaken voluntarily by the
parties to the renovation transaction.
VIII. Rulemaking Record
A record for this final rule has been established under docket
control number ``OPPTS-62131.'' The public version of this record
(which does not contain any information claimed as CBI) is available
for inspection from noon to 4 p.m., Monday through Friday, excluding
legal holidays. The public record is located in EPA's TSCA Docket or
Nonconfidential Information Center (NCIC), Rm. NE-B607, 401 M St., SW.,
Washington, DC 20460.
The rulemaking record contains information considered by EPA in
developing this final rule. The record includes: (1) All Federal
Register notices, (2) relevant support documents, (3) reports, (4)
memoranda and letters, and (5) hearing transcripts, responses to
comments, and other documents related to this rulemaking.
Unit IX. of this preamble contains the list of documents which the
Agency relied upon while developing this final regulation and can be
found in the docket. Other documents, not listed there, such as those
submitted with written comments from interested parties, are contained
in the TSCA Docket Office as well. A draft of today's final rule
submitted by the Administrator to the Office of Management and Budget
for an interagency review process prior to publication of the rule is
also contained in the public docket.
IX. References
1. Alliance to End Childhood Lead Poisoning, Preventing Childhood
Lead Poisoning: The First Comprehensive National Conference; Final
Report. Washington, DC, 1991.
2. CDC, 1991. U.S. Centers for Disease Control and Prevention,
``Preventing Lead Poisoning in Young Children; A Statement By the
Centers for Disease Control.'' Atlanta, GA, October 1991.
3. CPSC, 1977. ``Notice Reducing Allowable Levels of Lead in Lead-
Based Paint.'' Federal Register. September 1, 1977: 42 FR 44199.
4. EPA, 1995. U.S. Environmental Protection Agency, ``Report on the
National Survey of Lead-Based Paint in Housing: Base Report.''
Washington, DC: (EPA #747-R95-003).
5. HUD, 1995. U.S. Department of Housing and Urban Development,
Task Force on Lead-Based Paint Hazard Reduction and Financing,
``Putting the Pieces Together: Controlling Lead Hazards in the Nation's
Housing: Final Report.'' Washington, DC: HUD-1542-LBP.
6. HUD, 1990. ``Lead-Based Paint; Interim Guidelines for Hazard
Identification and Abatement in Public and Indian Housing; Notice.''
Federal Register. April 18, 1990: 55 FR 14556.
7. HUD, 1994. Department of Housing and Urban Development,
``National Housing Survey.'' Washington, DC.
8. HUD, 1995. Department of Housing and Urban Development,
``Guidelines for the Evaluation and Control of Lead-Based Paint Hazards
in Housing.'' Washington, DC.
9. Pirkle, 1994. Pirkle, J.L., Brody D.J., Gunter E.W., Kramer
R.A., Paschal D.C., Flegal K.M., Matte T.D., ``The Decline in Blood
Lead Levels in the United States.'' Journal of the American Medical
Association, 272(4): 284-291.
9a. CDC, 1997. ``Update: Blood Lead Levels - United States, 1991-
1994.'' Morbidity and Mortality Weekly Report, 46(7): 141-146.
9b. CDC, 1997. Erratum: Vol. 46, No. 7. Morbidity and Mortality
Weekly Report, 46(26).
10. EPA, 1995. ``Lead Hazard Information Pamphlet; Notice of
Availability.'' Federal Register. August 1, 1995: 60 FR 39167.
11. National Institute of Building Sciences, 1996. ``Regulatory
Models for Lead Poisoning Prevention: Lead-Based Paint Regulatory
Infrastructure Project.'' Published draft: Washington, DC. December 2,
1996.
X. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this is a ``significant
regulatory action'' subject to review by the Office of Management and
Budget (OMB), because this action may raise novel legal and policy
issues arising from the implementation of new statutory mandates under
Title IV of the Toxic Substances Control Act (15 U.S.C. 2681-2692).
This action was therefore submitted to OMB for review, and any changes
made during that review have been documented in the public record.
EPA has prepared an economic analysis of the impact of this action
for renovation activities, which is contained in a document entitled
Regulatory Impact Analysis of Lead-Based Paint Hazard Disclosure
Regulation for Residential Renovations (hereinafter referred to as the
RIA). This document is available as a part of the public record for
this action and is summarized in Unit VII. of this preamble. EPA finds
that the rule will not have an annual effect on the economy of $100
million or more, will not result in major increases in costs or prices,
and is not anticipated to have significant adverse effects on
competition, employment, investment, or productivity in the relevant
sectors.
EPA estimates the annual costs to private entities to be $82
million and the annual costs to government to range from $2.4 to $4.3
million. These estimates include costs for rule familiarization,
information disclosure and obtaining required signatures,
recordkeeping, materials costs and, for government, costs of
administration. EPA estimates that the provisions of the rule would add
about $2.00 to $4.00 to the cost of each transaction for each entity
impacted. The average unit costs per renovation activity is $4.52.
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), the Agency hereby certifies that this action will
not have a significant economic impact on a substantial number of small
entities. Although small businesses were found to constitute the great
majority of affected entities, the estimated individual cost impacts of
$2.00 to $4.00 per transaction (e.g., the cost to renovation
contractors, speciality trade contractors, or rental property managers
on a per unit basis), are quite insignificant. EPA has prepared a final
analysis of small entity impacts as part of the RIA, which is
summarized in Unit VII.D. of this preamble and briefly discussed here.
As demonstrated in the analysis, all provisions were carefully
crafted to minimize impacts on all regulated entities. Similarly, due
to the high proportion of affected establishments represented by small
business, the Agency's review and response to public comments,
particularly comments relating to cost estimates presented in the RIA
and which formed the basis of the flexibility analysis, have been
incorporated into the analysis by
[[Page 29918]]
reference. The Regulatory Flexibility Act also requires a statement of
the need for, and objectives of, the rule to be provided. This
statement appears in Unit III. of this preamble, and is also
incorporated into the analysis by reference.
In assessing small business impacts, EPA first developed an
establishment profile for each major sector: SIC 15 (General
Contractors and Operative Builders); SIC 17 (Special Trade
Contractors); SIC 651 (Real Estate Operators and Lessors); and SIC 653
(Real Estate Agents and Managers). This profile indicated that
approximately 80 to 90% of all establishments in each sector fell
within the 1-9 employee size class, and roughly 98% had fewer than 50
employees. Thus, a substantial number of small firms are estimated to
be potentially affected by the rule.
To measure the cost impacts of the rule on these establishments,
representative or model establishments were designed. These model
establishments corresponded to typical establishments, with respect to
number of employees and annual transaction volume, in each affected
sector. Since transaction activity was reported to vary widely, a range
of transaction volume was estimated for each establishment type.
For each model establishment, annual regulatory costs were then
calculated and compared to annual labor and overhead costs. Ratios were
computed for both high and low estimates of the range of transaction
activity. In the case of a multi-trade renovation contractor,
regulatory costs were found to represent from 0.04 to 0.09 percent of
labor and overhead costs. In the case of a specialty trade contractor,
impacts were somewhat higher, ranging from 0.21 to 0.49%. An
establishment engaged in rental property management was projected to
sustain impacts of 0.73 to 1.44%.
In developing these impact ratios, EPA was unable to distinguish in
its estimates of transaction activity how frequently transactions might
take place in target housing as opposed to housing not subject to the
information disclosure rules. Further, it was not possible to determine
how frequently transactions performed in target housing would be
excluded from regulatory coverage (e.g., jobs disturbing less than 2
square feet of painted surface). For these reasons, the number of
transactions incorporated in the flexibility analysis may exaggerate
the number of jobs actually subject to the rule, resulting in impacts
which most likely overstate true impacts.
While a large number of small establishments will be potentially
affected by the rule, the analysis did not suggest cost impacts to be
significant for such establishments. EPA received a number of comments
relating to the costs of the rulemaking. Most of those comments
centered on a belief that EPA underestimated the burden hours of (and
thereby the costs associated with) each transaction. EPA disagrees with
those commenters' assertions. Information EPA collected suggested that
in the majority of affected transactions, section 406 requirements
could be met as part of a pre-existing process. Information regarding
the frequency with which more complex, time-consuming scenarios might
occur suggested that those circumstances would be in the minority.
Further, EPA believes the flexibility afforded the renovator by the
rule will be of particular advantage to contractors who may foresee
difficulties in carrying out the notification requirements.
Information relating to this determination has been provided to the
Chief Counsel for Advocacy of the Small Business Administration, and is
included in the docket for this rulemaking.
C. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to OMB under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.). An Information Collection Request (ICR) document
has been prepared by EPA (EPA ICR No. 1669.01) and a copy may be
obtained from Sandy Farmer, OPPE Regulatory Information Division, U.S.
Environmental Protection Agency (2136), 401 M St., SW., Washington, DC
20460, or by calling (202) 260-2740. The information collection
requirements in this rule are not effective until OMB approves them.
The collection of information required in this rule has an
estimated recordkeeping burden averaging 6.2 minutes per response, and
requires 5.7 hours per recordkeeper, annually. These estimates include
time to review instructions, search existing data sources, gather and
maintain the data needed, and complete the collection of information.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose, or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9. Upon OMB approval, EPA will
issue a notice in the Federal Register to announce OMB's approval and
to make a technical amendment to include a reference to this approval
in 40 CFR part 9.
Send comments on the Agency's accuracy of the provided burden
estimates, and any suggested methods for minimizing respondent burden,
including through the use of automated collection techniques to the
Director, OPPE Regulatory Information Division, at the address listed
above, and to the Office of Information and Regulatory Affairs, Office
of Management and Budget, 725 17th St., NW., Washington, DC 20503,
marked ``Attention: Desk Officer for EPA.'' Include the ICR number in
any correspondence.
D. Unfunded Mandates Reform Act and Executive Order 12875
Pursuant to Title II of the Unfunded Mandates Reform Act, which the
President signed into law on March 22, 1995, EPA has assessed the
effects of this regulatory action on State, local, and tribal
governments, and the private sector. This action does not result in the
annual expenditure (in the aggregate) of $100 million or more by any
State, local, or tribal government, or by anyone in the private sector.
The costs associated with this action are described in the Executive
Order 12866 section above.
In addition to the consultations prior to proposal, EPA has had
several informal consultations regarding the proposed rule with some
States through the EPA Regional Offices and at regularly scheduled
State meetings. No significant issues or information were identified as
a result of EPA's discussion with the States.
In addition, since the issuance of this rule is not discretionary,
the intergovernmental consultation provisions of section 204 of the
UMRA and Executive Order 12875, entitled Enhancing the
Intergovernmental Partnership (58 FR 58093, October 28, 1993), do not
apply. The EPA is required under Title IV of the Toxic
[[Page 29919]]
Substances Control Act (15 U.S.C. 2681-2692) to promulgate these
regulations.
E. Executive Order 12898
Pursuant to Executive Order 12898 (59 FR 7629, February 16, 1994),
entitled Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, the Agency has considered
environmental justice-related issues with regard to the potential
impacts of this action on the environmental and health conditions in
low-income and minority communities. Recognizing that lead-based paint
hazard exposure is more prevalent in those communities, the Agency has
developed a Spanish language version of the pamphlet and is seeking
partners to investigate its translation into other languages. The
Agency also requires that the signed acknowledgment statements be in
the same language as the contract it accompanies.
F. Executive Order 13045
This action is not subject to Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997), because this action is not an
economically significant regulatory action as defined by Executive
Order 12866 (see Unit X.A. above). This action does, however, address
environmental health or safety risks affecting children, in that this
rule ensures that owners and occupants of target housing are provided
information concerning the potential hazards of lead-based paint
exposure before certain renovations are begun, and children are
particularly susceptible to the hazards of lead. This information
allows these individuals to consider taking appropriate precautions to
avoid exposure to the lead-contaminated dust and lead-based paint
debris that are sometimes generated during renovations of housing with
lead-based paint. In fact, children under the age of 6 are the primary
beneficiaries of this rule, as well as the Agency's overall Lead
Program.
XI. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States prior to publication of the rule in
today's Federal Register. This rule is not a ``major rule'' as defined
by 5 U.S.C. 804(2) of the APA as amended.
List of Subjects in 40 CFR Part 745
Environmental protection, Abatement, Housing renovation, Lead,
Lead-based paint, Reporting and recordkeeping requirements.
Dated: May 22, 1998.
Carol M. Browner,
Administrator.
Therefore, 40 CFR chapter I is amended as follows.
PART 745--[AMENDED]
1. The authority citation for part 745 is revised to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.
2. Subpart E is added to read as follows:
Subpart E--Residential Property Renovation
Sec.
745.80 Purpose.
745.81 Effective date.
745.82 Applicability.
745.83 Definitions.
745.84 Confidential business information.
745.85 Information distribution requirements.
745.86 Recordkeeping requirements.
745.87 Enforcement and inspections.
745.88 Acknowledgment and certification statements.
Subpart E--Residential Property Renovation
Sec. 745.80 Purpose.
This subpart contains regulations developed under Title IV (15
U.S.C. 2681-2692) of the Toxic Substances Control Act and applies to
all renovations of target housing performed for compensation. The
purpose of this subpart is to require each person who performs a
renovation of target housing for compensation to provide a lead hazard
information pamphlet to the owner and occupant of such housing prior to
commencing the renovation.
Sec. 745.81 Effective date.
The requirements in this subpart shall take effect on June 1, 1999.
Sec. 745.82 Applicability.
(a) Except as provided in paragraph (b) of this section, this
subpart applies to all renovations of target housing performed for
compensation.
(b) This subpart does not apply to renovation activities that are
limited to the following:
(1) Minor repair and maintenance activities (including minor
electrical work and plumbing) that disrupt 2 square feet or less of
painted surface per component.
(2) Emergency renovation operations.
(3) Renovations in target housing in which a written determination
has been made by an inspector (certified pursuant to either Federal
regulations at Sec. 745.226 or a State or Tribal certification program
authorized pursuant to Sec. 745.324) that the components affected by
the renovation are free of paint or other surface coatings that contain
lead equal to or in excess of 1.0 milligram per square centimeter or
0.5 percent by weight, where the renovator has obtained a copy of the
determination.
Sec. 745.83 Definitions.
For purposes of this part, the definitions in Sec. 745.103 as well
as the following definitions apply:
Administrator means the Administrator of the Environmental
Protection Agency.
Emergency renovation operations means renovation activities, such
as operations necessitated by non-routine failures of equipment, that
were not planned but result from a sudden, unexpected event that, if
not immediately attended to, presents a safety or public health hazard,
or threatens equipment and/or property with significant damage.
Multi-family housing means a housing property consisting of more
than four dwelling units.
Pamphlet means the EPA pamphlet developed under section 406(a) of
TSCA for use in complying with this and other rulemakings under Title
IV of TSCA and the Residential Lead-Based Paint Hazard Reduction Act,
or any State or Tribal pamphlet approved by EPA pursuant to 40 CFR
745.326 that is developed for the same purpose. This includes
reproductions of the pamphlet when copied in full and without revision
or deletion of material from the pamphlet (except for the addition or
revision of State or local sources of information).
Person means any natural or judicial person including any
individual, corporation, partnership, or association; any Indian Tribe,
State, or political subdivision thereof; any interstate body; and any
department, agency, or instrumentality of the Federal Government.
Renovation means the modification of any existing structure, or
portion thereof, that results in the disturbance of painted surfaces,
unless that activity is performed as part of an abatement as defined by
this part (40 CFR 745.223). The term renovation includes (but is not
limited to): the removal or modification of painted surfaces or painted
[[Page 29920]]
components (e.g., modification of painted doors, surface preparation
activity (such as sanding, scraping, or other such activities that may
generate paint dust)); the removal of large structures (e.g., walls,
ceiling, large surface replastering, major re-plumbing); and window
replacement.
Renovator means any person who performs for compensation a
renovation.
Sec. 745.84 Confidential business information.
(a) Those who assert a confidentiality claim for submitted
information must provide EPA with two copies of their submission. The
first copy must be complete and contain all information being claimed
as confidential. The second copy must contain only information not
claimed as confidential. EPA will place the second copy of the
submission in the public file.
(b) EPA will disclose information subject to a claim of
confidentiality only to the extent permitted by section 14 of TSCA and
40 CFR part 2, subpart B. If a person does not assert a claim of
confidentiality for information at the time it is submitted to EPA, EPA
may make the information public without further notice to that person.
Sec. 745.85 Information distribution requirements.
(a) Renovations in dwelling units. No more than 60 days before
beginning renovation activities in any residential dwelling unit of
target housing, the renovator shall:
(1) Provide the owner of the unit with the pamphlet, and comply
with one of the following:
(i) Obtain, from the owner, a written acknowledgment that the owner
has received the pamphlet.
(ii) Obtain a certificate of mailing at least 7 days prior to the
renovation.
(2) In addition to the requirements in paragraph (a)(1) of this
section, if the owner does not occupy the dwelling unit, provide an
adult occupant of the unit with the pamphlet, and comply with one of
the following:
(i) Obtain, from the adult occupant, a written acknowledgment that
the occupant has received the pamphlet; or certify in writing that a
pamphlet has been delivered to the dwelling and that the renovator has
been unsuccessful in obtaining a written acknowledgment from an adult
occupant. Such certification must include the address of the unit
undergoing renovation, the date and method of delivery of the pamphlet,
names of the persons delivering the pamphlet, reason for lack of
acknowledgment (e.g., occupant refuses to sign, no adult occupant
available), the signature of the renovator, and the date of signature.
(ii) Obtain a certificate of mailing at least 7 days prior to the
renovation.
(b) Renovations in common areas. No more than 60 days before
beginning renovation activities in common areas of multi-family
housing, the renovator shall:
(1) Provide the owner with the pamphlet, and comply with one of the
following:
(i) Obtain, from the owner, a written acknowledgment that the owner
has received the pamphlet.
(ii) Obtain a certificate of mailing at least 7 days prior to the
renovation.
(2) Notify in writing, or ensure written notification of, each unit
of the multi-family housing and make the pamphlet available upon
request prior to the start of renovation. Such notification shall be
accomplished by distributing written notice to each affected unit. The
notice shall describe the general nature and locations of the planned
renovation activities; the expected starting and ending dates; and a
statement of how the occupant can obtain the pamphlet, at no charge,
from the renovator.
(3) Prepare, sign, and date a statement describing the steps
performed to notify all occupants of the intended renovation activities
and to provide the pamphlet.
(4) If the scope, locations, or expected starting and ending dates
of the planned renovation activities change after the initial
notification, the renovator shall provide further written notification
to the owners and occupants providing revised information on the
ongoing or planned activities. This subsequent notification must be
provided before the renovator initiates work beyond that which was
described in the original notice.
(c) Written acknowledgment. Sample language for such
acknowledgments is provided in Sec. 745.88. The written acknowledgments
required in paragraphs (a)(1)(i), (a)(2)(i), and (b)(1)(i) of this
section shall:
(1) Include a statement recording the owner or occupant's name and
acknowledging receipt of the pamphlet prior to the start of renovation,
the address of the unit undergoing renovation, the signature of the
owner or occupant as applicable, and the date of signature.
(2) Be either a separate sheet or part of any written contract or
service agreement for the renovation.
(3) Be written in the same language as the text of the contract or
agreement for the renovation or, in the case of non-owner occupied
target housing, in the same language as the lease or rental agreement
or the pamphlet.
Sec. 745.86 Recordkeeping requirements.
(a) Renovators shall retain and, if requested, make available to
EPA all records necessary to demonstrate compliance with this subpart
for a period of 3 years following completion of the renovation
activities in target housing. This 3-year retention requirement does
not supersede longer obligations required by other provisions for
retaining the same documentation, including any applicable State or
Tribal laws or regulations.
(b) Records that must be retained pursuant to paragraph (a) of this
section shall include (where applicable):
(1) Reports certifying that a determination had been made by an
inspector (certified pursuant to either Federal regulations at
Sec. 745.226 or an EPA-authorized State or Tribal certification
program) that lead-based paint is not present in the area affected by
the renovation, as described in Sec. 745.82(b)(vi).
(2) Signed and dated acknowledgments of receipt as described in
Sec. 745.85(a)(1)(i), (a)(2)(i), and (b)(1)(i).
(3) Certifications of attempted delivery as described in
Sec. 745.85(a)(2)(i).
(4) Certificates of mailing as described in Sec. 745.85(a)(1)(ii),
(a)(2)(ii), and (b)(1)(ii).
(5) Records of notification activities performed regarding common
area renovations, as described in Sec. 745.85(b)(3) and (4).
Sec. 745.87 Enforcement and inspections.
(a) Failure or refusal to comply with any provision of this subpart
is a violation of TSCA section 409 (15 U.S.C. 2689).
(b) Failure or refusal to establish and maintain records or to make
available or permit access to or copying of records, as required by
this subpart, is a violation of TSCA sections 15 and 409 (15 U.S.C.
2614 and 2689).
(c) Failure or refusal to permit entry or inspection as required by
40 CFR 745.87 and TSCA section 11 (15 U.S.C. 2610) is a violation of
sections 15 and 409 (15 U.S.C. 2614 and 2689).
(d) Violators may be subject to civil and criminal sanctions
pursuant to TSCA section 16 (15 U.S.C. 2615) for each violation.
(e) EPA may conduct inspections and issue subpoenas pursuant to the
provisions of TSCA section 11 (15 U.S.C. 2610) to ensure compliance
with this subpart.
Sec. 745.88 Acknowledgment and certification statements.
(a)(1) Acknowledgment statement. As required under
Sec. 745.85(c)(1),
[[Page 29921]]
acknowledgments shall include a statement of receipt of the pamphlet
prior to the start of renovation, the address of the unit undergoing
renovation, the signature of the owner or occupant as applicable, and
the date of signature.
(2) Sample acknowledgment language. The following is a sample of
language that could be used for such acknowledgments:
I have received a copy of the pamphlet, Protect Your Family From Lead
In Your Home, informing me of the potential risk of lead hazard
exposure from renovation activity to be performed in my dwelling unit.
I received this pamphlet before the work began.
________________
________________
Printed Name and Signature
____________
Date
______________
______________
Unit Address
(b)(1) Certification of attempted delivery. When an occupant is
unavailable for signature or refuses to sign the acknowledgment of
receipt of the pamphlet, the renovator is permitted (per
Sec. 745.85(a)(2)(i)) to certify delivery for each instance. The
certification shall include the address of the unit undergoing
renovation, the date and method of delivery of the pamphlet, names of
the persons delivering the pamphlet, reason for lack of acknowledgment
(e.g. occupant refuses to sign, no adult occupant available), the
signature of the renovator, and the date of signature.
(2) Sample certification language. The following is a sample of
language that could be used under those circumstances:
(i) Unavailable for signature.
I certify that I have made a good faith effort to deliver the
pamphlet, Protect Your Family From Lead In Your Home, to the unit
listed below at the dates and times indicated, and that the occupant
refused to sign the acknowledgment. I further certify that I have left
a copy of the pamphlet at the unit with the occupant.
________________
________________
Printed Name and Signature
______________
Date
____________
____________
Unit Address
Attempted delivery dates and times:
(ii) Refusal to sign.
I certify that I have made a good faith effort to deliver the
pamphlet, Protect Your Family From Lead In Your Home, to the unit
listed below, and that the occupant was unavailable to sign the
acknowledgment. I further certify that I have left a copy of the
pamphlet at the unit by sliding it under the door.
______________
______________
Printed Name and Signature
________________
Date
________________
________________
Unit Address
Attempted delivery dates and times:
[FR Doc. 98-14437 Filed 5-29-98; 8:45 am]
BILLING CODE 6560-50-F
