Lead; Renovation, Repair, and Painting Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Supplemental Notice of Proposed Rulemaking.

SUMMARY:

On January 10, 2006, EPA proposed new requirements under the authority of section 402(c)(3) of the Toxic Substances Control Act (TSCA) to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing. “Target housing” is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling. The 2006 proposal would establish requirements for training renovators and dust sampling technicians; for certifying renovators, dust sampling technicians, and renovation firms; for accrediting providers of renovation and dust sampling technician training; for renovation work practices; and for recordkeeping. That proposal would also allow interested States, Territories, and Indian Tribes the opportunity to apply for and receive authorization to administer and enforce all of the elements of the new renovation requirements. This supplemental notice contains EPA's proposal to add child-occupied facilities to the buildings covered by the 2006 proposal. Child-occupied facilities may be located in public or commercial buildings or in target housing. A child-occupied facility would be defined as a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours.

DATES:

Comments must be received on or before July 5, 2007.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2005-0049, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov . Follow the on-line instructions for submitting comments.
• Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
• Hand Delivery: OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID number EPA-HQ-OPPT-2005-0049. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930. Such deliveries are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to docket ID number EPA-HQ-OPP-2005-0049. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at http://www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to http://www.regulations.gov , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT:

For general information contact: Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address: TSCA-Hotline@epa.gov.

For technical information contact: Mike Wilson, National Program Chemicals Division (7404T), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 566-0521; e-mail address: wilson.mike@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may be potentially affected by this action if you perform renovations of child-occupied facilities for compensation or dust sampling in child-occupied facilities. EPA is proposing to define a child-occupied facility as a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Examples of child-occupied facilities are day-care centers, preschools, and kindergarten classrooms. Child-occupied facilities may be located in target housing or in public or commercial buildings. Potentially affected entities may include, but are not limited to:

• Building construction (NAICS 236), e.g., single family housing construction, multi-family housing construction, residential remodelers, nonresidential construction.
• Specialty trade contractors (NAICS 238), e.g., plumbing, heating, and air-conditioning contractors, painting and wall covering contractors, electrical contractors, finish carpentry contractors, drywall and insulation contractors, siding contractors, tile and terrazzo contractors, glass and glazing contractors.
• Real estate (NAICS 531), e.g., lessors of residential and nonresidential buildings, property managers.
• Child day care services (NAICS 624410).
• Elementary and secondary schools (NAICS 611110), e.g., elementary schools with kindergarten classrooms.
• Other technical and trade schools (NAICS 611519), e.g., training providers.
• Engineering services (NAICS 541330) and building inspection services (NAICS 541350), e.g., dust sampling technicians.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Units IV.B. and IV.C. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

II. Background

A. What Action is the Agency Taking?

EPA is proposing to add child-occupied facilities to the universe of buildings covered by a prior proposal. EPA would apply all of the training, certification, accreditation, work practice, and recordkeeping requirements of the January 10, 2006 proposal (“2006 Proposal”, Ref. 1) to child-occupied facilities. A child-occupied facility would be defined as “a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours.” Examples of child-occupied facilities are day-care centers, preschools, and kindergarten classrooms. Child-occupied facilities may be located in target housing or in public or commercial buildings.

The purpose of the 2006 Proposal was to establish new requirements to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint. The proposal contained requirements for training renovators and dust sampling technicians; certifying renovators, dust sampling technicians, and renovation firms; accrediting providers of renovation and dust sampling technician training; for renovation work practices; and for recordkeeping. These requirements would apply in “target housing,” which is defined in TSCA section 401 as “any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling.” Initially the rule would apply to all renovations for compensation performed in (1) target housing where a child with an increased blood lead level resides; (2) rental target housing built before 1960; and (3) owner-occupied target housing built before 1960, unless, with respect to owner-occupied target housing, the person performing the renovation obtains a statement signed by the owner-occupant that the renovation will occur in the owner's residence and that no child under age 6 resides there. EPA proposed a subsequent phase-in for target housing built in the years 1960 through 1977, with certain exemptions. The training, certification, accreditation, work practice, and recordkeeping requirements of the 2006 Proposal would apply to all persons who do renovation for compensation, including renovation contractors, maintenance workers in multi-family housing, painters and other specialty trades, with certain exceptions. The 2006 Proposal contains exemptions for owner-occupied target housing where no children under age 6 reside, minor repair and maintenance activities that disrupt two square feet or less of painted surfaces per component, or renovations where specified methods have been used to determine that the areas affected by the renovation are free of lead-based paint.

In this document, EPA is proposing to apply these same training, certification, accreditation, work practice, and recordkeeping requirements and exemptions to firms and individuals who perform renovations for compensation in child-occupied facilities. EPA welcomes comment on this supplemental proposal by entities, such as day care providers, elementary schools, and public or commercial building owners, who would be affected by the expanded scope of coverage. EPA intends to review the comments received on this supplementary proposal and then promulgate a final rule addressing both the 2006 Proposal and this proposal.

B. What is the Agency's Authority for Taking this Action?

These training, certification and accreditation requirements and work practice standards are being proposed pursuant to the authority of TSCA section 402(c)(3), 15 U.S.C. 2682(c)(3), as amended by Title X of the Housing and Community Development Act of 1992, Public Law 102-550 (also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992) (“the Act” or “Title X”). The notification and recordkeeping requirements associated with child-occupied facilities are being proposed pursuant to section 407 of TSCA. The Model State Program and amendments to the regulations on the authorization of State and Tribal programs with respect to renovators and dust sampling technicians are being proposed pursuant to section 404 of TSCA, 15 U.S.C. 2684.

III. Introduction

A. Reason for this Supplemental Notice

On January 10, 2006, EPA issued a notice of proposed rulemaking for requirements to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing (Ref. 1). EPA received approximately 250 comments from a wide variety of commenters, including State and local governments, industry groups, advocacy groups, renovation contractors, training providers, and individuals. Twenty-nine of those commenters observed that the proposal did not cover buildings where children under age 6 spend a great deal of time, such as day care centers and schools. Commenters noted that the risk posed to children from lead-based paint hazards in schools and day-care centers is likely to be equal to, if not greater than, the risk posed from these hazards at home. These commenters suggested that EPA expand its proposal to include such places. Several suggested that EPA use the definition of “child-occupied facility” in 40 CFR § 745.223 to define the expanded scope of coverage.

EPA believes that the suggestions regarding day care centers and schools have merit. EPA is therefore issuing this supplemental proposal to specifically propose expanding the scope of the renovation, repair and painting program to these facilities. EPA believes that the proposed findings underlying the 2006 Proposal also support the expansion of coverage to child-occupied facilities.

B. Development of the Final Rule

It is EPA's intention to issue a final rule based on the 2006 Proposal and this supplemental proposal. As EPA moves forward with the development of the final rule, the Agency is considering the comments and information received during the public comment periods in 2006, and expects to consider the comments related to child-occupied facilities and any new information received on this supplemental proposal. In addition, as discussed in the 2006 Proposal, EPA intends to prepare further analyses and updated assessments for the final rule that will use the information received, as well as the data generated by the EPA study “Characterization of Dust Lead Levels after Renovation, Repair, and Painting Activities” (“Dust Study”, Ref. 10), and by the National Association of Home Builders' (NAHB) “Lead Safe Work Practices Survey” (“NAHB Survey”, Ref. 11). EPA will also consider the comments received on proposed work practice standards in light of the results of these studies.

EPA is also updating the hazard and exposure assessments it used as a basis for estimating the benefits of the rulemaking. This benefits analysis is part of the economic analysis for the rulemaking. The hazard assessment for the final rule will be based on a hazard assessment that has recently undergone peer review by the Clean Air Science Advisory Committee (CASAC) Lead Review Panel. The revised exposure assessment for the final rule, which will use the data generated by EPA's Dust Study, the NAHB Survey, and other available information, will also undergo a peer review by the CASAC Lead Review Panel. The CASAC, which is comprised of seven members appointed by the EPA Administrator, was established under the Clean Air Act as an independent scientific advisory committee. More information on the CASAC consultation process, along with background documents, is available on EPA's website at http://www.epa.gov/lead/pubs/casac.htm .

EPA is not yet able to say with any certainty how the economic analyses or proposed requirements might change for the final rule as a result of the additional analyses underway or planned, or EPA's consideration of comments or new information received on this supplemental proposal. The Agency does, however, expect that changes may occur.

C. Previous EPA Rulemakings on Lead-based Paint and Lead-based Paint Hazards in Child-Occupied Facilities

In 1996, EPA promulgated the final lead-based paint activities regulations under TSCA section 402(a), codifying them at 40 CFR part 745, subpart L. These regulations were designed to protect the public from the hazards of improperly conducted lead-based paint inspections, risk assessments and abatement projects. The regulation includes:

• Training and certification requirements to ensure the proficiency of contractors who offer these services.
• Accreditation requirements to ensure that training programs provide quality instruction in current and effective work practices.
• Work practice standards to ensure that these lead-based paint activities are conducted safely, reliably and effectively.

As initially proposed in 1994, requirements for the training and certification of contractors and the accreditation of training programs, as well as specific work practice standards would have applied to lead-based paint activities conducted in target housing and public buildings (Ref. 2). A slightly different set of requirements would have applied to lead-based paint activities conducted in commercial buildings and on bridges and other structures. The 1994 proposal would have defined public buildings to include all buildings generally open to the public or occupied or visited by children, such as stores, museums, airports, offices, restaurants, hospitals, and government buildings, as well as schools and day-care centers. During the comment period, a significant majority of commenters expressed the concern that applying these regulations to activities in all of the buildings that EPA would consider public would result in significant costs without a comparable reduction in lead-based paint exposures for children under age 6, the population most vulnerable to lead exposures. Many of these commenters recommended that EPA focus its attention on buildings that are frequented by children, rather than on buildings that may be briefly visited by children. In response to these comments, EPA established, in the final rule, a subset of the buildings EPA had intended to define as public. This subset, called “child-occupied facilities,” was delineated in terms of the frequency and duration of visits by children (Ref. 3). “Child-occupied facility” is defined in 40 CFR 745.223 as “ a building, or portion of a building, constructed prior to 1978, visited regularly by the same child, 6 years of age or under, on at least two different days within any week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may include, but are not limited to, day care centers, preschools and kindergarten classrooms.” The training, certification, accreditation, and work practice requirements of the final lead-based paint activities regulations, codified at 40 CFR part 745, subpart L, apply only to activities in target housing and child-occupied facilities.

Subsequently, in 1998, EPA initiated rulemaking under TSCA section 403 to identify lead-based paint hazards. The final standards, promulgated in 2001 and codified at 40 CFR part 745, subpart D, define paint-lead, dust-lead, and soil-lead hazards (Ref. 4). Under 40 CFR 745.61(b), these standards are applicable to target housing and child-occupied facilities. The definition of paint-lead hazard refers to the presence of damaged or deteriorated lead-based paint, as well as lead-based paint on surfaces where it can be damaged, abraded, or ingested. A dust-lead hazard is defined as surface dust that contains a mass-per-area concentration of lead equal to or exceeding 40 micrograms per square foot (μg/ft²) on floors or 250 μg/ft² on interior window sills based on wipe samples. A soil-lead hazard is defined as bare soil that contains total lead equal to or exceeding 400 parts per million (μg/g) in a play area or an average of 1,200 parts per million in the rest of the yard based on soil samples. As discussed in detail in the preamble to the final TSCA section 403 regulations, the dust-lead and soil-lead hazard standards were set with reference to the likelihood that an exposure to such a level would result in a blood lead level above 10 micrograms per deciliter (μg/dL) in a child (Ref. 4 at 1216-1217). This was based on the level that the Centers for Disease Control and Prevention had set as the level of concern for community action. This level is not a threshold for toxicity.

IV. Renovation Activities in Child-occupied Facilities

A. TSCA Section 402(c)(3) Determination

The 2006 Proposal was issued under the authority of TSCA section 402(c), which directs EPA to revise its TSCA section 402(a) lead-based paint activities regulations to apply to renovation activities that create lead-based paint hazards. The revisions proposed in the 2006 Proposal were based on, among other things, a study of renovation activities that EPA conducted as directed by TSCA section 402(c)(2). This study is discussed in greater length in the 2006 Proposal (Ref. 1 at 1591). In this study, EPA found that the following renovation activities, when conducted where lead-based paint is present, generated lead loadings on floors that exceeded 40 μg/ft², the dust-lead hazard standard for floors in 40 CFR 745.65(b):

• Paint removal by abrasive sanding.
• Window replacement.
• HVAC duct work.
• Demolition of interior plaster walls.
• Drilling into wood.
• Sawing into wood.
• Sawing into plaster.

These results, along with the results of other phases of the study, which evaluated worker exposures and the blood lead levels of children in homes where renovations have taken place, led EPA to propose to conclude that renovation activities that disturb lead-based paint cause lead dust in amounts that will create, or could reasonably be anticipated to create, dust-lead hazards.

The dust-lead hazard standards are the same for target housing and child-occupied facilities. EPA believes that the individual activities examined in its renovation study are likely to be part of renovation activities in child-occupied facilities as well as in target housing. EPA is therefore proposing to find that renovation activities that disturb lead-based paint in child-occupied facilities will create, or are reasonably anticipated to create, lead-based paint hazards. EPA requests comment on this proposed finding as well as any available data or studies on the similarities and differences between renovation activities in target housing and renovation activities in child-occupied facilities.

B. Buildings Covered

1. Buildings covered by the 2006 Proposal. The requirements of the 2006 Proposal would take effect in two major phases. In the first phase, the proposed requirements would apply to renovations performed for compensation in:

• Target housing where the firm performing the renovation obtains information indicating that a child under age 6 resides there, if the child has a blood-lead level greater than or equal to 10 μg/dL or a State or local government level of concern, if lower, or the firm does not provide the owners and occupants with the opportunity to inform the firm that a child under age 6 with such a blood-lead level resides there.
• Owner-occupied target housing built before 1960, unless the firm performing the renovation obtains a statement signed by the owner that the renovation will occur in the owner's residence and no child under age 6 resides there.
• Rental target housing built before 1960.

The second phase, which would take effect 1 year after the first phase takes effect, would extend the proposed requirements to:

• Owner-occupied target housing built between 1960 and 1978, unless the firm performing the renovation obtains a statement signed by the owner that the renovation will occur in the owner's residence and no child under age 6 resides there.
• Rental target housing built between 1960 and 1978.

EPA proposed the two-phase approach primarily because of the reduced prevalence of lead-based paint in housing constructed between 1960 and 1978. According to the National Survey of Lead and Allergens in Housing, 24% of the housing constructed between 1960 and 1978 contains lead-based paint (Ref. 5). As discussed in the 2006 Proposal, EPA is working toward the development of improved test kits that could be used to determine whether or not lead-based paint is present in an area to be renovated (Ref. 1 at 1599). These kits are expected to be commercially available by the time that the second phase of the proposal would take effect, and thus could be used to accurately exclude the 76% of housing constructed between 1960 and 1978 that does not contain lead-based paint.

The 2006 Proposal also discussed several other options for applicability based on the age of the housing, including a single phase regulation covering pre-1960 target housing or pre-1978 target housing. EPA received a great many comments on this aspect of the proposal and the merits of these comments are still being considered.

2. Buildings covered by this proposal—a. Background. This proposal would extend the coverage of the training, certification, accreditation, work practice, and recordkeeping requirements of the 2006 Proposal to buildings that children under age 6 frequent, such as day care centers, preschools, and kindergarten classrooms. To accomplish this, EPA is proposing to incorporate into 40 CFR 745.83 the definition of “child-occupied facility” from 40 CFR 745.223, with two modifications. The proposed definition would refer to visits by children under age 6, rather than to visits by children 6 and under, to make the definition consistent with the other scope provisions of the 2006 Proposal. In addition, the proposed definition would clarify that child-occupied facilities may be located in target housing or public or commercial buildings.

The preamble to the 1996 final lead-based paint activities regulations referred to child-occupied facilities as a subset of buildings that EPA had initially proposed to call “public buildings” (Ref. 3 at 45780). The proposed definition of “public building” in the lead-based paint activities rulemaking included buildings that may also be thought of as commercial buildings, such as office buildings. In order to avoid any potential confusion over the scope of buildings covered by this supplemental proposal, EPA is proposing to use the phrase “public or commercial building” to denote buildings generally open to the public or occupied or visited by children. Public or commercial buildings would include stores, museums, airport terminals, convention centers, office buildings, restaurants, hospitals, schools, government buildings, and day care centers.

EPA is proposing to use the term “child-occupied facility” in this rulemaking to identify buildings, or portions of buildings, that would be covered by the rule, regardless of whether those buildings are target housing or public or commercial buildings. EPA is proposing to use the term this way to ensure that day care centers located in target housing would be covered.

One of the elements of the 2006 Proposal is a provision allowing owners of target housing to opt out of the rule if they occupy the housing to be renovated and there is no child under age 6 in residence. If this provision were retained in the final rule, and the definition of “child-occupied facility” did not apply in target housing, the rule would not cover child care centers in owner-occupied target housing where no children under age 6 reside. To ensure that these types of day care centers are covered, EPA is proposing to add a sentence to the definition of “child-occupied facility” that states: “Child-occupied facilities may be located in target housing or in public or commercial buildings.”

b. Child-occupied facilities in target housing. This supplemental proposal would cover owner-occupied target housing that meets the definition of “child-occupied facility” in the same way that EPA would cover owner-occupied target housing where a child under age 6 resides. The 2006 Proposal, in effect, would require a renovation firm to assume that target housing is the residence of a child under age 6 unless the firm obtains a statement signed by the owner that the owner resides in the housing to be renovated and no child under age 6 also resides there. With this proposal, EPA would require a similar assumption on the part of the renovation firm with respect to whether target housing is also a child-occupied facility. A renovation firm would be required to assume that target housing is either the residence of a child under age 6 or a child-occupied facility unless the firm obtains a statement signed by the owner that the owner resides in the housing to be renovated, no child under age 6 also resides there, and the housing is not a child-occupied facility. The 2006 Proposal would cover rental target housing regardless of the presence of a child under age 6, so it is not necessary to require a similar assumption in that case. EPA believes that it is reasonable to require renovators to assume that a child-occupied facility exists in owner-occupied target housing.

An alternative approach would merely require the renovation firm to give the owner an opportunity to inform the firm that child care for children under age 6 is provided in the housing. This is the approach that EPA is proposing to use with respect to children under age 6 with increased blood lead levels for the purpose of determining whether target housing or child-occupied facilities built between 1960 and 1978 would be covered in the first phase of the rule. In the 2006 Proposal, EPA did not propose to require a renovation firm to assume that a child under age 6 with an increased blood lead level resides in all target housing. Rather, the renovation firm would only be required to provide the owner and occupant with an opportunity to inform the firm that such a child is in residence. Likewise, EPA is proposing to require a renovation firm to provide the owner and occupant of a child-occupied facility with an opportunity to inform the firm that a child under age 6 with an increased blood lead level uses the facility. If the firm is so informed, the target housing or child-occupied facility would be covered during the first phase of the rule. If not, and the target housing or child-occupied facility was built between 1960 and 1978, it would not be covered until the second phase of the rule.

However, EPA is not proposing to allow renovation firms to assume that a child-occupied facility is not present in owner-occupied target housing unless the owner informs the firm that such a facility is present. EPA is concerned that this approach for child care facilities in target housing would result in a large number of these facilities being eliminated from coverage by the proposed rule. As described in Unit VI.A. and in the document entitled “Economic Analysis for the Supplemental Proposed Rule on Child-Occupied Facilities Under the TSCA Lead Renovation, Repair, and Painting Program” (“Supplemental Economic Analysis”, Ref. 6), EPA estimates that approximately 1,559,000 of the child-occupied facilities across the country are located in target housing, of which an estimated 726,000 were covered by the 2006 Proposal (either because they are in rental housing or because they are in owner-occupied housing where a child under age 6 resides). This supplemental proposal will cover an additional 833,000 child-occupied facilities located in target housing (i.e., in owner-occupied target housing where no child under age 6 resides). EPA requests comment on the proposed requirement that a renovation firm assume that owner-occupied target housing contains a child-occupied facility, and on other possible ways that a renovation firm could determine whether a child-occupied facility is present in target housing.

As discussed in the 2006 Proposal, the Pre-Renovation Education Rule, promulgated under the authority of TSCA section 406(b) and codified at 40 CFR part 745, subpart E, requires owners and occupants of target housing to be informed of the potential risks from renovation projects by providing them with a lead hazard information pamphlet. Persons performing renovations covered by the existing regulations must already either obtain a signed acknowledgment from the owner indicating that the pamphlet has been received, or a certificate of mailing indicating that the pamphlet was mailed at least 7 days before the renovation. EPA has modified the sample acknowledgment form it developed for the 2006 Proposal to add information on child-occupied facilities. This sample could be used to not only record the owner's receipt of the lead hazard information pamphlet, but to obtain additional information on the housing to be renovated, its residents, and whether the housing is a child-occupied facility (Ref. 7). EPA seeks comment on this sample acknowledgment, a copy of which is available in the docket for this proposed rule and on the Agency's Web page at http://www.epa.gov/lead/pubs/pre-renovationform.pdf .

c. Child-occupied facilities in public or commercial buildings. This proposal would treat child-occupied facilities that are not in target housing somewhat differently. As discussed in Unit IV.D.2., EPA is proposing to require renovation firms working in child-occupied facilities in public or commercial buildings to distribute lead hazard information to owners and occupants and obtain acknowledgments, like those required under the Pre-Renovation Education Rule for target housing. However, EPA is not proposing to exempt only those projects in public or commercial buildings where the renovation firm has obtained a signed statement by the owner of the building indicating that no child-occupied facility is present in the building. Rather, the firm would be able to determine whether or not a particular renovation in a public or commercial building involves a child-occupied facility. EPA chose this approach for two reasons. First, it should be much easier for the firm to determine whether it is renovating a child-occupied facility in a public or commercial building than it would be for the firm to determine whether the target housing it is to renovate is also a child-occupied facility. A stand-alone day care center is likely to have a name that suggests that it provides day care, and the center's status as a child-occupied facility should be obvious upon entering the center. Day care centers in office buildings are likely to have informational signs posted and the centers are likely to be identified in the building directory. Elementary schools are likely to have kindergarten classrooms. The other reason for not imposing a requirement for firms to obtain a signed owner's statement for each public or commercial building they renovate is the burden of such a requirement. The alternative to allowing the firm to determine that a particular building does not contain a child-occupied facility is to require the firm to obtain signed statements from the owners of all public or commercial buildings renovated. These buildings would include factories, office buildings, department stores, restaurants, and service stations, many of which do not contain child-occupied facilities.

Under the proposed approach, the firm would have to take appropriate steps to determine whether or not a building is or contains a child-occupied facility, including asking the building's owner, or the person contracting for the renovation, whether a child-occupied facility is present. For example, if a renovation firm accepts a contract for a project in an elementary school, the firm would have to determine whether a kindergarten classroom was present, which common areas the kindergarten children used, and, for exterior projects, which exterior walls were immediately adjacent to the kindergarten classroom and associated common areas. Libraries and recreational facilities may have after-care programs that would cause these buildings to be considered child-occupied facilities; a renovation firm hired to renovate a building of this type would have to make inquiries about the use of the facility by children under age 6. EPA requests comment on its proposed approach, on the alternative of exempting only those public or commercial buildings for which the firm has obtained a signed statement from the owner indicating that there is no child-occupied facility present, and on any other methods for making the determination that a child-occupied facility is or is not present in a public or commercial building.

d. Applicability based on age of building. For the purpose of determining applicability of the proposed rule, it is EPA's intention to treat child-occupied facilities, whether they are in target housing or public or commercial buildings, much the same as covered target housing. For example, if EPA retains the phase-in approach discussed previously, the first phase would cover:

• Target housing where a child under age 6 with an increased blood lead level resides.
• Rental target housing built before 1960.
• Owner-occupied target housing built before 1960 where a child under age 6 resides.
• Child-occupied facilities used by a child under age 6 with an increased blood lead level.
• Child-occupied facilities built before 1960.

The second phase would add:

• Rental target housing built between 1960 and 1978.
• Owner-occupied target housing built between 1960 and 1978 where a child under age 6 resides.
• Child-occupied facilities built between 1960 and 1978.

As discussed in the Supplemental Economic Analysis (Ref. 6), EPA has estimated that there are approximately 833,000 child-occupied facilities in target housing that would be covered by this proposal. EPA assumes that the prevalence of lead-based paint in target housing where child care is provided is the same as the prevalence of lead-based paint in target housing as a whole, so there is no reason to treat these child-occupied facilities differently. In addition, the First National Environmental Health Survey of Child Care Centers indicates that 22% of non-home-based child care centers built between 1960 and 1978 contain lead-based paint (Ref. 8). This is slightly less than the 24% of target housing built between 1960 and 1978 that contains lead-based paint, but this difference is not sufficient to justify a difference in regulatory applicability.

e. Common areas. The 2006 Proposal would cover renovations in common areas in multi-family rental target housing. EPA requested comment on whether to exempt renovations in common areas in owner-occupied multi-family target housing if the renovation firm has obtained the signature of every owner with access to the common area, stating that the units are owner-occupied and no child under age 6 is in residence. The term “common area” is defined in 40 CFR 745.223 as “a portion of a building that is generally accessible to all occupants. Such an area may include, but is not limited to, hallways, stairways, laundry and recreational rooms, playgrounds, community centers, garages, and boundary fences.” In order to exempt from this supplemental proposal a renovation in a common area in owner-occupied multi-family target housing, EPA is proposing to require the renovation firm to obtain the signature of every owner with access to the common area, stating that, in addition to the units being owner-occupied with no children under age 6 in residence, no child care for children under age 6 is provided in the units.

The lead-based paint activities regulations at 40 CFR part 745, subpart L, apply to common areas in multi-family target housing as well as to common areas in child-occupied facilities. With this supplemental proposal, EPA is not proposing to cover all common areas in public or commercial buildings that contain child-occupied facilities. Rather, EPA is most concerned with those common areas that are actually used by children under age 6, such as classrooms, bathrooms, and cafeterias, and not common areas that the children merely pass through. Similarly, EPA is not proposing to cover all exterior renovation projects on public or commercial buildings that contain child-occupied facilities. EPA is primarily concerned about the projects on the exteriors of public or commercial buildings that are most likely to affect the children visiting a child-occupied facility. An exterior renovation project on the opposite side of a large office building from the child-occupied facility within the building is far less likely to affect the children at the facility than an exterior renovation project on the same side of the building as the children's outdoor playground. For this reason, EPA is proposing to cover only those exterior renovation projects that are performed on the same side or sides of the building as the child-occupied facility or common area. This proposal would, therefore, incorporate additional text into the definition of “child-occupied facility” to clarify the scope of projects associated with child-occupied facilities in public or commercial buildings. This text would read:

In public or commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only those common areas that are routinely used by children under age 6, such as restrooms and cafeterias. Common areas that children under age 6 only pass through, such as hallways, stairways, and garages, are not included. In addition, for public or commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only the exterior sides of the building that are immediately adjacent to the child-occupied facility or the common areas routinely used by children under age 6.

EPA requests comment on the likelihood that renovation projects in hallways and stairways, or in rooms not used by children under age 6, will affect the children using a child-occupied facility in a public or commercial building. EPA also requests comment on whether all exterior projects on public or commercial buildings that contain child-occupied facilities should be covered, whether all common areas in such buildings should be covered and whether hallways, stairways, and other areas adjacent to rooms used by children under age 6 should be treated differently than more remote areas of the building. EPA is particularly interested in peer-reviewed studies or data that shed light on the potential exposures and hazards to children under age 6 presented by renovation projects in areas not used by the children. EPA also requests other comments on these limitations, including the extent to which States, Territories, and Tribes with authorized lead-based paint activities programs might apply this term differently.

C. Activities Covered by this Proposal

The 2006 Proposal would cover activities covered by the Pre-Renovation Education Rule, those activities that meet the definition of “renovation” in 40 CFR 745.83. In general, renovations are activities that modify an existing structure and that result in the disturbance of painted surfaces. In addition, like the Pre-Renovation Education Rule, the 2006 Proposal would cover only renovations performed for compensation. This includes renovations performed by renovation firms and their employees, as well as renovations performed by owners of rental property and their employees. Although the owner of rental property may not be compensated for maintenance and repair work at the time that the work is performed, tenants generally pay rent for the right to occupy a rental unit as well as for maintenance services in that unit. Therefore, EPA considers the payment of rent to be compensation to the owner of rental property for any renovations performed on the property.

Likewise, this proposal would only cover activities that fit within the definition of “renovation” in 40 CFR 745.83 and that are performed for compensation in child-occupied facilities. Compensation includes pay for work performed, such as that paid to contractors; wages, such as those paid to employees of contractors, building owners, and child-occupied facility operators; and rent for target housing or public or commercial building space. Thus, renovations performed by renovation contractors and their employees in child-occupied facilities would be covered, as would be renovations by building owners in child-occupied facilities, if the building owner receives rent for the child-occupied facility's space. Renovations in child-occupied facilities that are performed by employees of the building owner or of the child-occupied facility would be covered if the employees receive wages or other compensation for the work performed.

EPA does not, however, consider child care payments to be compensation for renovations. EPA believes that an agreement to provide child care in exchange for a payment is not a contract for building maintenance services in the same way that a lease or other agreement between a landlord and a tenant generally is. If EPA were to consider payments for child care as compensation for the purposes of this regulation, this proposal would cover a great many do-it-yourself renovations by the owners of target housing in housing they own and occupy. In 1994, in Unit III.B. of the preamble to the proposed lead-based paint activities regulations, EPA reviewed section 1021 of the Residential Lead-Based Paint Hazard Reduction Act of 1992, the section that added Title IV to TSCA, and determined that the emphasis under section 402 of TSCA ought to be the certification and training of contractors, not homeowners. In the course of that review, EPA stated its belief that TSCA section 402(c)(3), the section under which this supplemental proposal is being issued, shows that “Congress” focus was on the need to regulate contractors doing renovation and remodeling activities, and not homeowners doing renovation and remodeling of their own homes” (Ref. 2). Considering payments for child care to be compensation for renovations for the purpose of this supplemental proposal would make this proposal inconsistent with Congressional intent.

This proposal would also cover renovations that are being performed in order to turn a public or commercial building, or part of such a building, into target housing or a child-occupied facility. EPA has always understood the lead-based paint activities regulations in 40 CFR part 745, subpart L, to apply to lead-based paint activities being conducted as part of the conversion of a building into target housing or a child-occupied facility. EPA believes that it is especially important to ensure that renovations done in preparation for use by children under age 6 are done in a lead-safe manner. Therefore, EPA proposes to add the following sentence at the end of the definition of “renovation” in 40 CFR 745.83:

A renovation performed for the purpose of converting a building, or part of a building, into target housing or a child-occupied facility is a renovation under this subpart.

EPA is proposing to apply the same exemptions proposed for target housing in 2006 to child-occupied facilities. This proposal would exempt renovations in child-occupied facilities that affect components that have been determined to be free of lead-based paint by a certified lead-based paint inspector or risk assessor, or by a certified renovator using an EPA-approved test kit. Likewise, minor maintenance and repair activities in child-occupied facilities would be exempt. The 2006 Proposal would limit minor maintenance and repair activities to those activities that affect 2 square feet or less of painted surface per component, the current limitation in the Pre-Renovation Education Rule. However, comment was requested on whether a different exemption for small projects should be used, such as the small project exception from EPA's lead-based paint activities regulations at 40 CFR 745.65(d) and HUD's Lead-Safe Housing Rule at 24 CFR 35.1350(d), which exempt activities that disturb less than 2 square feet of painted surface per room or 20 square feet of painted exterior surfaces. Finally, under this proposal, EPA would apply the same standard to emergency renovation operations in child-occupied facilities as it would under the 2006 Proposal to target housing. The 2006 Proposal would require emergency renovations to be performed in compliance with the notification, training, certification, and work practice requirements to the extent practicable. EPA is still evaluating the numerous comments it received on this aspect of the 2006 Proposal, but it is EPA's intention to cover emergency renovations in child-occupied facilities in the same manner that such renovations in target housing would be covered. EPA requests comment on whether emergency renovation operations should be treated differently in child-occupied facilities than in target housing.

D. Requirements for Renovations in Child-Occupied Facilities

1. Training, certification, accreditation, work practice, and recordkeeping requirements. With this proposal, EPA would extend the training, certification, accreditation, and work practice standard requirements of the 2006 Proposal to renovations for compensation in child-occupied facilities. The 2006 Proposal would require that renovators be trained in the use of lead safe work practices, that renovators and firms be certified, that providers of renovation training be accredited, and that renovators follow renovation work practice standards. The work practices in the 2006 Proposal included the posting of warning signs, isolation of the work area, containment of waste, cleaning, and post-renovation cleaning verification. The 2006 Proposal also would establish a dust sampling technician discipline and would allow certified dust sampling technicians to collect optional dust clearance samples after renovations. Consult the 2006 Proposal for more information on each of these proposed requirements (Ref. 1).

The 2006 Proposal described how the proposed training elements for renovators as well as most of the proposed work practice standards were developed with reference to the EPA-HUD model curriculum entitled “Lead Safety for Remodeling, Repair, & Painting” and the technical documents used to develop the curriculum, including the “Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing” (HUD Guidelines) developed by HUD as directed by the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Ref. 1 at 1608). As discussed in the Supplemental Economic Analysis for this proposal (Ref. 6), EPA has determined that approximately 90% of the child-occupied facilities that would be covered by this proposal are located in target housing. (Roughly half of the child-occupied facilities in target housing were covered by the 2006 Proposal either because they are in rental housing or because they are in owner-occupied housing where a child under age 6 resides.) EPA knows of no reason why the requirements for renovations conducted in target housing that is also a child-occupied facility should be different from the requirements in the 2006 Proposal for renovations in rental target housing and target housing where children under age 6 reside.

EPA also believes that the training, certification, accreditation, work practice, and recordkeeping requirements of the 2006 Proposal are equally applicable to renovations conducted in child-occupied facilities in public or commercial buildings. The HUD Guidelines were also used to develop the required training elements in 40 CFR 745.225 for certified lead-based paint activities professionals, such as abatement supervisors and workers. These individuals, after completing the required training and being certified by EPA, may perform abatements in child-occupied facilities as well as in target housing. Likewise, EPA specifically referenced the HUD Guidelines in 40 CFR 745.227(a)(3) in describing the methods that certified professionals must follow in performing lead-based paint activities in target housing or in child-occupied facilities. Thus, EPA did not distinguish between target housing and child-occupied facilities in designing the training, certification, and accreditation requirements of the lead-based paint activities regulations. In addition, the only way that EPA distinguished between child-occupied facilities and multi-family target housing in the work practice requirements of 40 CFR 745.227 was in incorporating special instructions at 40 CFR 745.227(d)(7) for dust sampling in child-occupied facilities when performing a risk assessment. In promulgating the lead-based paint activities regulations under TSCA section 402(a), EPA determined that the same training, certification, and accreditation requirements would apply in target housing and child-occupied facilities. In addition, EPA found that the same work practice requirements would be equally reliable, effective and safe in target housing and child-occupied facilities. EPA noted that commenters did not support the development of different sets of work practices for target housing and child-occupied facilities.

In late 2006, EPA conducted an additional renovation study, which was designed to characterize dust lead levels at various stages of renovation projects. As part of this study, renovation projects were performed in child-occupied facilities in public or commercial buildings. In a March 16, 2007 Notice of Availability (Ref. 9), EPA described its intention to consider the results of its Dust Study (Ref. 10), along with the NAHB Survey (Ref. 11), in the development of the final rule. In the March 2007 notice, EPA requested comment from the public on the work practice provisions of the 2006 Proposal in light of the results of these studies.

TSCA section 402(a)(1) directs EPA to promulgate regulations that, among other things, contain standards for performing lead-based paint activities, taking into account reliability, effectiveness, and safety. In revising those regulations to apply to renovation activities in child-occupied facilities, EPA is proposing to find that the same work practice requirements would be equally reliable, effective, and safe in target housing and child-occupied facilities. EPA therefore is proposing to extend the work practice standards of the 2006 Proposal to firms and individuals performing renovations in child-occupied facilities. This proposal would also impose the training, certification, accreditation, work practice and recordkeeping requirements of the 2006 Proposal on firms and individuals performing renovations in child-occupied facilities, because EPA has determined that the same requirements should apply in child-occupied facilities and target housing. EPA requests comment on these proposed findings. EPA also invites commenters to identify peer-reviewed studies and data, of which EPA may not be aware, that shed light on potential differences between renovations in target housing and renovations in child-occupied facilities.

EPA remains concerned about the potential exposures to lead hazards that may be created by untrained homeowners doing work in the presence of lead-based paint. EPA specifically requests comment on whether any aspects of the proposed requirements, such as training, certification, work practices, or recordkeeping, should be modified to make compliance more feasible for target housing owner-occupants who provide child care for compensation and who choose to undertake their own renovations.

2. Information distribution requirements. TSCA section 406(b) directs EPA to promulgate regulations requiring that every person who performs renovations for compensation in target housing provide a lead-hazard information pamphlet to the owner and the occupant of the housing before the renovation commences. The Pre-Renovation Education Rule, which implements this directive, was promulgated in 1998 and codified at 40 CFR part 745, subpart E. Much of the proposed regulatory text in the 2006 Proposal would be codified in that subpart along with the existing information distribution regulations.

Under today's proposal, firms and individuals performing renovations for compensation in target housing, whether or not the target housing contains a child-occupied facility, would still be required to provide the lead-hazard information pamphlet as required by TSCA section 406(b) and its implementing regulations. Today's proposal would also require a similar information distribution for renovation projects in child-occupied facilities in public or commercial buildings. EPA has previously used the authority of TSCA section 407 to impose notification requirements for lead-based paint training course providers and for firms performing lead-based paint abatements (Ref. 12). TSCA section 407 authorizes EPA to promulgate recordkeeping or reporting requirements as necessary for the effective implementation of TSCA Title IV. EPA finds that the distribution of lead hazard information, before renovation projects begin, to the owners and occupants of child-occupied facilities as well as the owners of public or commercial buildings that contain child-occupied facilities is necessary to ensure effective implementation of this proposed regulation. Information on lead hazards, and lead safe work practices that minimize the creation of hazards, will stimulate interest on the part of child-occupied facilities and public or commercial building owners in these work practices and increase the demand for their use. In addition, providing information to the parents and guardians of children frequenting child-occupied facilities will enable the parents and guardians to make decisions regarding their children's welfare.

Under this proposal, unless they own the building being renovated, firms and individuals performing renovation projects in child-occupied facilities would be required to provide a lead hazard information pamphlet to the owner of the building and either obtain a signed acknowledgment that the owner received the pamphlet or document through a certificate of mailing that the pamphlet was mailed to the owner at least 7 days, but no more than 60 days, before the date that the renovation begins. In addition, if the renovation is not being performed by the entity that operates the child-occupied facility, a lead hazard information pamphlet must be provided to an adult representative of the child-occupied facility and a signed acknowledgment obtained, the reason for the lack of a signed acknowledgment documented, or a certificate of mailing obtained. EPA is also proposing to require that the renovation firm either distribute the pamphlet and general information on the renovation project to the parents or guardians of children using the facility or post, while the project is ongoing, informational signs describing the general nature and locations of the project and the anticipated completion date. These signs must be posted in areas where they can be seen by the parents or guardians of the children frequenting the child-occupied facility. The signs must be accompanied by a posted copy of the lead hazard information pamphlet or information on how interested parents and guardians can review a copy of the pamphlet or obtain a copy from the renovation firm at no cost to the parents or guardians. EPA requests comment on the utility of this kind of information for child-occupied facilities and public or commercial building owners, and on the usefulness of informational signs for parents and guardians of children visiting the child-occupied facility.

E. State Renovation Model Program and Authorization Process

As described in Unit IV.F. of the 2006 Proposal, EPA would give interested States, Territories, and Indian Tribes the opportunity to apply for, and receive authorization to administer and enforce all of the elements of the revised 40 CFR part 745, subpart E (Ref. 1 at 1616). This would include the existing elements of subpart E, the Pre-Renovation Education Rule, as well as the new training, certification, accreditation, work practice, and recordkeeping requirements of the proposed renovation, repair, and painting program. The 2006 Proposal would allow States, Territories and Tribes to choose to administer and enforce just the existing requirements of subpart E, the pre-renovation education elements, or all of the requirements of the proposed subpart E, as amended. EPA did not propose to allow States, Territories, and Tribes to seek authorization to administer and enforce only the training, certification, accreditation, work practice, and recordkeeping requirements of the 2006 Proposal and not the pre-renovation education provisions of existing subpart E.

This supplemental proposal would not fundamentally change the authorization scheme in the 2006 Proposal. Interested States, Territories, and Indian Tribes would still be given the opportunity to apply for, and receive authorization to, administer and enforce just the pre-renovation education provisions of revised 40 CFR part 745, subpart E, or both the pre-renovation education provisions and the training, certification, accreditation, work practice, and recordkeeping provisions of subpart E, as amended. However, this supplemental proposal would mean that States, Territories, and Tribes that wish to administer and enforce the pre-renovation education provisions of subpart E, as amended, would have to include both target housing and child-occupied facilities within the scope of their program. Similarly, States, Territories, and Tribes that are also interested in obtaining authorization to administer and enforce the training, certification, accreditation, work practice, and recordkeeping elements of subpart E, as amended, would have to include both target housing and child-occupied facilities within the scope of their program. States with existing authorized pre-renovation education programs would be required to demonstrate that they have modified their programs to include child-occupied facilities. These States would have to provide this demonstration in the first report that they submit pursuant to 40 CFR 745.324(h) more than one year after the final rule is promulgated.

V. References

1. U.S. Environmental Protection Agency (USEPA). Lead; Renovation, Repair, and Painting Program: Proposed Rule. Federal Register (71 FR 1587, January 10, 2006).

2. USEPA. Lead; Requirements for Lead-Based Paint Activities: Proposed Rule. Federal Register (59 FR 45872, September 2, 1994).

3. USEPA. Lead; Requirements for Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities: Final Rule. Federal Register (61 FR 45778, August 29, 1996).

4. USEPA. Lead; Identification of Dangerous Levels of Lead: Final Rule. Federal Register (66 FR 1206, January 5, 2001).

5. U.S. Department of Housing and Urban Development (HUD). National Survey of Lead and Allergens in Housing, Volume I: Analysis of Lead Hazards, Final Report, Revision 7.1. (October 31, 2002).

6. USEPA, Office of Pollution Prevention and Toxics (OPPT). Economic Analysis for the Supplemental Proposed Rule on Child-Occupied Facilities Under the TSCA Lead Renovation, Repair, and Painting Program (January 2007).

7. USEPA, OPPT. Sample acknowledgment form (2007).

8. HUD. First National Environmental Health Survey of Child Care Centers, Volume I: Analysis of Lead Hazards, Final Report. (July 15, 2003).

9. USEPA. Lead; Renovation, Repair, and Painting Program; Notice of Availability. Federal Register (72 FR 12582, March 16, 2007).

10. USEPA, Office of Pollution Prevention and Toxics (OPPT). Characterization of Dust Lead Levels after Renovation, Repair, and Painting Activities; Draft Final Report (January 2007).

11. National Association of Home Builders. Lead Safe Work Practice Survey Project Report (November 2006).

12. USEPA. Lead; Notification Requirements for Lead-Based Paint Abatement Activities and Training: Final Rule. Federal Register (69 FR 18489, April 8, 2004).

13. USEPA, Office of Pollution Prevention and Toxics (OPPT). Economic Analysis for the Renovation, Repair, and Painting Program Proposed Rule (February 2006).

14. USEPA. Second Proposed Rule Related Addendum to Existing EPA ICR entitled: TSCA section 402/404 Training and Certification, Accreditation, and Standards for Lead-Based Paint Activities (January 2007).

15. ASTM International. Standard Practice for Clearance Examinations Following Lead Hazard Reduction Activities in Single-Family Dwellings and Child-Occupied Facilities (E 2271-05).

16. ASTM International. Standard Guide for Evaluation, Management, and Control of Lead Hazards in Facilities (E 2052-99).

17. ASTM International. Standard Practice for Evaluating the Performance Characteristics of Qualitative Chemical Spot Test Kits for Lead in Paint (E 1828-01).

VI. Statutory and Executive Order Reviews

A. Executive Order 12866

Under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), it has been determined that this supplemental proposed rule is a “significant regulatory action” under section 3(f)(1) of the Executive Order because EPA estimates that, when considered in conjunction with the 2006 proposal, it will have an annual effect on the economy of $100 million or more. Accordingly, this action was submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made based on OMB recommendations have been documented in the public docket for this rulemaking as required by section 6(a)(3)(E) of the Executive Order.

In addition, EPA has prepared an analysis of the potential costs and benefits associated with this proposed rulemaking. This analysis is contained in the Supplemental Economic Analysis (Ref. 6), which is available in the docket for this action and is briefly summarized here.

1. Types of facilities. This supplemental proposed rule applies to an estimated 930,000 child-occupied facilities, of which approximately 833,000 are in target housing where child care is provided. The 2006 Proposal covered child-occupied facilities in rental housing and in owner-occupied housing where a child under age 6 resides. This supplemental proposed rule covers additional child-occupied facilities that were not covered by the 2006 Proposal because they are located in target housing where no child under age 6 resides. This supplemental proposal also applies to child-occupied facilities in public or commercial buildings.

2. Options evaluated. EPA considered a variety of options for addressing the risks presented by renovation, repair, and painting actions where lead-based paint is present. The Supplemental Economic Analysis analyzed several different options for the rule. Option A applies to renovation, repair, and painting activities performed for compensation in all child-occupied facilities built before 1978. Option B has 2 phases. The first phase applies to child-occupied facilities built before 1960 as well as child-occupied facilities built between 1960 and 1978 that are used by a child under age 6 with an increased blood lead level. The second phase, which takes effect a year after the first phase, adds the remaining child-occupied facilities built between 1960 and 1978. Option C also has 2 phases. The first phase applies to child-occupied facilities built before 1950, and the second phase, which takes effect a year after the first phase, applies to child-occupied facilities built before 1978. Option D covers the same facilities and phases as Option B, and differs only in the amount of flexibility allowed a certified renovator in selecting appropriate work practices for each individual job. Option D prescribes the practices to be followed, so does not provide flexibility. Option E has the same phases as Option B, but considers child care payments to be compensation for renovations. Thus, for example, this option covers a renovation by a homeowner in owner-occupied target housing if the housing qualifies as a child-occupied facility and the homeowner provides paid child care. The proposed rule is Option B.

3. Number of events and individuals affected. Under the supplemental proposal, in Phase 1 there will be 243,000 events in child-occupied facilities where lead-safe work practices will be used due to the rule. As a result, there will be approximately 633,000 exposures avoided in children under age 6. In Phase 2, lead-safe work practices will be used in about 140,000 events as a result of the supplemental proposed rule. About 916,000 exposures will be avoided in children under age 6 each year as a result. There will also be about 166,000 exposures avoided in adults in Phase 1, and about 224,000 per year in Phase 2. The affected adults are the staff of child-occupied facilities in public or commercial buildings (such as schools and day care centers) and the residents of target housing where child care is provided.

4. Benefits. The Supplemental Economic Analysis describes the estimated benefits of the proposed rulemaking in qualitative and quantitative terms. Benefits result from the prevention of adverse health effects attributable to lead exposure. These health effects include impaired cognitive function in children and several illnesses in children and adults. One of the stated purposes of Title X is to prevent childhood lead poisoning. EPA considered the potential benefits to children separately from adults, because the reduction in the threat of childhood lead poisoning is a focus of Title X, and because of uncertainties about the exposure of adults to lead in dust from renovation, repair, and painting activities in these facilities, and the resulting health effects. The Agency specifically seeks comment on its consideration of potential benefits to both children and adults, as well as comments and information about the potential uncertainties associated with adult exposures and health effects.

Quantifying the adverse health effects associated with renovation, repair, and painting projects involves 4 steps: first, estimating the amount of lead contamination due to the renovation project under various assumptions about cleaning; second, estimating the blood-lead levels resulting from this contamination; third, estimating the adverse health effects (such as loss in IQ points) due to increased blood-lead levels using dose-response functions; and fourth, assigning medical costs, reduced income, or another proxy for willingness-to-pay to avoid the adverse health effects.

The Supplemental Economic Analysis estimates the benefits of avoided incidence of IQ loss due to reduced lead exposure to children. The analysis was limited to the avoided incidence of IQ loss because there are not sufficient data at this time to develop dose-response functions for other health effects in children. The Supplemental Economic Analysis provides six alternative estimates of children's benefits, depending on which of two models is used to relate exposure to blood-lead levels, which of two age groups the model is applied to, and which of two exposure metrics is used. Furthermore, benefits are estimated using two different scenarios for cleaning assumptions. The range of benefits estimates described below reflects the minimum and maximum of the six alternative blood-lead estimates and the two cleaning scenarios. The benefits of avoided exposure to adults were not quantified due to uncertainties about the estimation of such exposure.

Depending on which blood-lead model and exposure assumptions are used, the quantified IQ benefits to children for the supplemental proposed rule range from $64 million to $257 million per year when annualized using a 3% discount rate, and from $68 million to $272 million per year when using a 7% discount rate. The estimated benefits for the other options range from $64 million to $386 million using a 3% discount rate and from $67 million to $408 million using a 7% discount rate. There are additional unquantified benefits, including avoided health effects in adults.

5. Costs. The Supplemental Economic Analysis estimates the potential costs of complying with the training, certification, and work practice requirements in the supplemental proposed rule. Costs may be incurred by child-occupied facilities that use their own staff for renovation, repair, and painting events; landlords that use their own staff for renovation, repair, and painting events in public or commercial buildings that they lease to child-occupied facilities; and contractors that perform renovation, repair, and painting work for compensation in child-occupied facilities.

The supplemental proposed rule, if finalized as proposed, is estimated to result in a total potential cost of $53 million in Phase 1. The 50-year annualized costs provide a measure of the steady-state cost. Annualized costs of the supplemental proposed rule are estimated to be $39 million per year using a 3% discount rate and $43 million per year using a 7% discount rate. Annualized costs for the other options range from $39 million to $92 million per year using a 3% discount rate and $42 million to $102 million per year using a 7% discount rate.

6. Net benefits. Net benefits are the difference between benefits and costs. The supplemental proposed rule, if finalized as proposed, is estimated to result in potential net benefits of $1 million to $157 million in Phase 1 based on children's benefits alone. The 50-year annualized net benefits for the proposed rule based on children's benefits are estimated to be $25 million to $218 million per year using a 3% discount rate and $25 million to $229 million per year using a 7% discount rate. The net benefits for the other options range from -$8 million to $293 million per year using a 3% discount rate and -$12 million to $306 million per year using a 7% discount rate. There are additional unquantified benefits, including avoided health effects in adults, that are not included in the net benefits estimates.

7. Request for comment. To improve the analysis for the final rule, the Agency conducted a number of sensitivity analyses in its Supplemental Economic Analysis (Ref. 6). These analyses examined the sensitivity of the overall costs and benefits of the rule to selected parameters which appear to be important and for which relatively few supporting data are available. These include alternative assumptions regarding compliance with this rule, the effectiveness of daily cleaning, areas of schools other than pre-kindergarten and kindergarten classrooms that are routinely used by children under age 6, the number of unscheduled maintenance events in child-occupied facilities in public or commercial buildings, the effectiveness of current work practices in child-occupied facilities in public or commercial buildings, and how lead loadings from renovation events may vary with the age of a building. The Agency is specifically interested in comments on these sensitivity analyses and supporting information, particularly peer-reviewed studies and data, on the following questions related to the Agency's analysis:

• How often are unplanned maintenance activities that would be covered by this supplemental proposal performed in child care centers and schools?
• How often are classrooms in child-occupied facilities in public or commercial buildings swept and how often are they mopped? Do janitorial staff use single bucket mopping or the two bucket mopping method required by the rule and how frequently do they change the water? What are the efficiencies of the various cleaning methods?
• What share of the renovations in schools and child care centers use work practices required by this supplemental proposal, and which particular work practices do they use?
• How do renovations performed by contractors and those performed by homeowners differ, particularly with respect to the frequency with which work practices required by this proposal are already being used and the expected compliance rates if homeowner renovations were covered by the regulation? (This supplemental proposal would not cover persons who perform renovations in housing that they own and occupy, but one of the regulatory options evaluated in EPA's Supplemental Economic Analysis covered renovations by homeowners who provide child care for compensation in their homes.)
• When estimating the lead loadings from renovations, how should EPA's analysis take into account variations in the amount of lead in paint by component type and building age?

B. Paperwork Reduction Act

The information collection requirements contained in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 USC 3501 et seq. An Information Collection Request (ICR) document prepared by EPA, an amendment to an existing ICR and referred to as the Second ICR Addendum (EPA ICR No. 1715.08, OMB Control Number 2070-0155) has been placed in the public docket for this proposed rule (Ref. 14).

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 codified in Chapter 40 of the CFR, after appearing in the preamble of the final rule, are listed in 40 CFR part 9, are displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9.

The new information collection activities contained in this supplemental proposed rule are designed to assist the Agency in meeting the core objectives of TSCA section 402, including ensuring the integrity of accreditation programs for training providers, providing for the certification of renovators, and determining whether work practice standards are being followed. EPA has carefully tailored the proposed recordkeeping and recordkeeping requirements so they will permit the Agency to achieve statutory objectives without imposing an undue burden on those firms that choose to be involved in renovation, repair, and painting activities.

Burden under the PRA 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.

Under this supplemental proposal, the new information collection requirements may affect training providers and firms that perform renovation, repair, or painting for compensation in child-occupied facilities. Although these firms have the option of choosing to engage in the covered activities, once a firm chooses to do so, the information collection activities contained in this rule become mandatory for that firm.

The ICR document provides a detailed presentation of the estimated burden and costs for 3 years of the program. The aggregate burden varies by year due to changes in the number of firms that will seek certification each year. The burden and cost to training providers and firms engaged in renovation, repair, and painting activities is summarized in this section.

There are an average of 145 training providers that are estimated to incur burden to notify EPA (or an authorizing State, Tribe, or Territory) before and after training courses. The average burden for training provider notifications as a result of the supplemental proposed rule is estimated at 7 to 18 hours per year, depending on the number of additional training courses provided. Total training provider burden is estimated to average 1,700 hours per year.

There are an average of 38,000 firms estimated to become certified to engage in renovation, repair, or painting activities in child-occupied facilities under the supplemental proposed rule. The average certification burden is estimated to be 3.5 hours per firm in the year a firm is initially certified, and 0.5 hours in years that it is re-certified (which occurs every 3 years). Firms must also distribute lead hazard information to the owners and occupants of public or commercial buildings that contain child-occupied facilities. Finally, firms must keep records of the work they perform in child-occupied facilities; this recordkeeping is estimated to typically take approximately 5 hours per year. Total burden for these firms is estimated to average 280,000 hours per year.

Total respondent burden as a result of the supplemental proposed rule during the period covered by the ICR is estimated to average approximately 281,000 hours per year.

There are also government costs to administer the program. States, Tribes, and Territories are allowed, but are under no obligation, to apply for and receive authorization to administer these proposed requirements. EPA will directly administer programs for States, Tribes, and Territories that do not become authorized. Because the number of States, Tribes, and Territories that will become authorized is not known, administrative costs are estimated assuming that EPA will administer the program everywhere. To the extent that other government entities become authorized, EPA's administrative costs will be lower.

Direct your comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, to EPA using the public docket that has been established for this proposed rule (Docket ID No. EPA-HQ-OPPT-2005-0049). In addition, send a copy of your comments about the ICR to OMB at: Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to complete its review of the ICR between 30 and 60 days after June 5, 2007, please submit your ICR comments for OMB consideration to OMB by July 5, 2007.

The Agency will consider and address comments received on the information collection requirements contained in this proposal when it develops the final rule.

C. Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C.601 et seq., and the Agency's long-standing policy of always considering whether there may be a potential for adverse impacts on small entities, the Agency has evaluated the potential small entity impacts of its 2006 Proposal and this supplemental proposal. The Agency's analysis of the potentially adverse economic impacts of this supplemental proposal is contained in the Supplemental Economic Analysis (Ref. 6). The analysis of the potentially adverse economic impacts of the 2006 Proposal is contained in the document entitled “Economic Analysis for the Renovation, Repair, and Painting Program Proposed Rule” (Ref. 13). Because EPA intends to promulgate a single final rule that encompasses both the 2006 Proposal and this supplemental proposal, EPA has evaluated the small entity impacts for the combined effects of the two proposals. The initial regulatory flexibility analysis was reviewed in the preamble to the 2006 Proposal. This analysis has been revised to include information on this supplemental proposal. The following is an overview of the revised analysis.

1. Legal basis and objectives for the proposed rule. As discussed in Unit IV.A. of this preamble, TSCA section 402(c)(2) directs EPA to study the extent to which persons engaged in renovation, repair, and painting activities are exposed to lead or create lead-based paint hazards regularly or occasionally. After concluding this study, TSCA section 402(c)(3) further directs EPA to revise its lead-based paint activities regulations under TSCA section 402(a) to apply to renovation or remodeling activities that create lead-based paint hazards. Because EPA's study found that activities commonly performed during renovation and remodeling create lead-based paint hazards, EPA is proposing to revise the TSCA section 402(a) regulatory scheme to apply to individuals and firms engaged in renovation, repair, and painting activities. The primary objective of the combined proposals is to prevent the creation of new lead-based paint hazards from renovation, repair, and painting activities in housing where children under age 6 reside and in housing or other buildings frequented by children under age 6.

2. Potentially affected small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined in accordance with section 601 of the RFA as:

(1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

The small entities that are potentially directly regulated by this proposed rule include: small businesses (including contractors and non-residential property owners and managers); small non-profits (certain daycare centers and private schools); and small governments (school districts).

In determining the number of small businesses affected by the proposed rule, the Agency applied U.S. Economic Census data to the SBA's definition of small business. However, applying the U.S. Economic Census data requires either under or overestimating the number of small businesses affected by the proposed rule. For example, for many construction establishments, the SBA defines small businesses as having revenues of less than $13 million. With respect to those establishments, the U.S. Economic Census data groups all establishments with revenues of $10 million or more into one revenue bracket. On the one hand, using data for the entire industry would overestimate the number of small businesses affected by the proposed rule and would defeat the purpose of estimating impacts on small business. It would also underestimate the proposed rule's impact on small businesses because the impacts would be calculated using the revenues of large businesses in addition to small businesses. On the other hand, applying the closest, albeit lower, revenue bracket would underestimate the number of small businesses affected by the proposed rule while at the same time overestimating the impacts.

Similar issues arose in estimating the fraction of non-residential commercial property owners and managers that are small businesses. For other sectors (non-profits operating daycare centers or private schools), EPA assumed that all affected firms are small, which may overestimate the number of small entities affected by the rule. The Agency requests comments and information regarding available data to better estimate the number of small entities affected by the rule.

The vast majority of entities in the industries affected by this rule are small. Using EPA's estimates, when the supplemental proposal is combined with the 2006 Proposal, the renovation, repair, and painting program will affect an average of approximately 186,000 small entities.

3. Potential economic impacts on small entities. EPA evaluated two factors in its analysis of the rule's requirements on small entities, the number of firms that would experience the impact, and the size of the impact. Annual compliance costs as a percentage of annual revenues were used to assess the potential impacts of the rule on small businesses and small governments. This ratio is a good measure of entities' ability to afford the costs attributable to a regulatory requirement, because comparing compliance costs to revenues provides a reasonable indication of the magnitude of the regulatory burden relative to a commonly available measure of economic activity. Where regulatory costs represent a small fraction of a typical entity's revenues (for example, less than 1%, and not greater than 3%), the financial impacts of the regulation on such entities may be considered as not significant. For non-profit organizations, impacts were measured by comparing rule costs to the organization's annual expenditures. When expenditure data were not available, however, revenue information was used as a proxy for expenditures. It is appropriate to calculate the impact ratios using annualized costs, because these costs are more representative of the continuing costs entities face to comply with the rule.

EPA estimates that there are an average of 186,000 small entities that would be affected by the combined renovation, repair, and painting activities program. Of these, there are an estimated 163,000 small businesses with an average impact of 0.9%, 17,000 small non-profits with an average impact of 0.1%, and 6,000 small governments with an average impact of 0.004%.

4. Relevant Federal rules. The proposed requirements in this rulemaking will fit within an existing framework of other Federal regulations that address lead-based paint.

The Pre-Renovation Education Rule, discussed in Unit IV.A.2. of this preamble, requires renovators to distribute a lead hazard information pamphlet to owners and occupants before conducting a renovation in target housing. This proposal has been carefully crafted to harmonize with the existing pre-renovation education requirements.

Disposal of waste from renovation projects that would be regulated by this proposal is covered by the Resource Conservation and Recovery Act (RCRA) regulations for solid waste. This proposal does not contain specific requirements for the disposal of waste from renovations.

HUD has extensive regulations that address the conduct of interim controls, as well as other lead-based paint activities, in Federally assisted housing. Some of HUD's interim controls would be regulated under this proposal as renovations, depending upon whether the particular interim control measure disturbs more than the threshold amount of paint. In most cases, the HUD regulations are comparable to, or more stringent than this proposal. In general, persons performing HUD-regulated interim controls must have taken a course in lead-safe work practices, which is also a requirement of this proposal. However, this proposal would not require dust clearance testing, a process required by HUD after interim control activities that disturb more than a minimal amount of lead-based paint.

Finally, OSHA's Lead Exposure in Construction standard covers potential worker exposures to lead during many construction activities, including renovation, repair, and painting activities. Although this standard may cover many of the same projects as today's proposal, the requirements themselves do not overlap. The OSHA rule addresses the protection of the worker, this EPA proposal addresses the protection of the building occupants, particularly children under age 6.

5. Skills needed for compliance. This proposal would establish requirements for training renovators and dust sampling technicians; certifying renovators, dust sampling technicians, and entities engaged in renovation, repair, and painting activities; accrediting providers of renovation and dust sampling technician training; and for renovation work practices. Renovators and dust sampling technicians would have to take a course to learn the proper techniques for accomplishing the tasks they will perform during renovations. These courses are intended to provide them with the information they would need to comply with the rule based on the skills they already have. Entities would be required to apply for certification to perform renovations; this process does not require any special skills other than the ability to complete the application. They would also need to document the work they have done during renovations. This does not require any special skills. Training providers must be knowledgeable about delivering technical training. Training providers would be required to apply for accreditation to offer renovator and dust sampling technician courses. They would also be required to provide prior notification of such courses and provide information on the students trained after each such course. Completing the accreditation application and providing the required notification information does not require any special skills.

6. Small Business Advocacy Review Panel. Since the earliest stages of planning for this regulation under Section 402(c)(3) of TSCA, EPA has been concerned with potential small entity impacts. EPA conducted outreach to small entities, and, in 1999, convened a Small Business Advocacy Review Panel to obtain advice and recommendations of representatives of the small entities that would potentially be subject to this regulation's requirements. At that time, EPA was planning an initial regulation that would apply to renovations in target housing, with requirements for public and commercial building renovations, including child-occupied facility renovations, to follow at a later date. The small entity representatives (SERs) chosen for consultation reflect that initial emphasis. They included maintenance and renovation contractors, painting and decorating contractors, multi-family housing owners and operators, training providers/consultants, and representatives from several national contractor associations, the National Multi-Housing Council, and the National Association of Home Builders.

After considering the existing lead-based paint activities regulations, and taking into account preliminary stakeholder feedback, EPA identified eight key elements of a potential renovation and remodeling regulation for the Panel's consideration. These elements were:

• Applicability and scope.
• Firm certification.
• Individual training and certification.
• Accreditation of training courses.
• Work practice standards.
• Prohibited practices.
• Exterior clearance.
• Interior clearance.

EPA also developed several options for each of these key elements. Although the scope and applicability options specifically presented to the Panel covered only target housing, background information presented to the SERs and to the Panel members shows that EPA was also considering a regulation covering child-occupied facilities. More information on the Panel, its recommendations, and how EPA implemented them in the development of the program, are provided in Unit VIII.C.6 of the preamble to the 2006 Proposal (Ref. 1).

EPA invites comments on all aspects of the supplemental proposal and its impacts on small entities.

D. Unfunded Mandates Reform Act

Under Title II of the Unfunded Mandates Reform Act (UMRA) (Public Law 104-4), EPA has determined that when this supplemental proposed rule is considered by itself, it does not contain a Federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million in any 1 year by the private sector or by State, local, and Tribal governments in the aggregate. (When adjusted for inflation, the value of the UMRA threshold is over $118 million.) However, when considered in conjunction with the 2006 Proposal, the combined requirements will result in annual expenditures by the private sector above the UMRA threshold. Accordingly, EPA has prepared a written statement under section 202 of the UMRA which has been placed in the public docket for this rulemaking and is summarized here.

1. Authorizing legislation. This proposal is issued under the authority of TSCA sections 402(c)(3) and 404.

2. Cost-benefit analysis. EPA has prepared an analysis of the costs and benefits associated with this supplemental proposal, a copy of which is available in the docket for this rulemaking (Ref. 6). The Supplemental Economic Analysis presents the costs of the proposal as well as various regulatory options and is summarized in Unit VII.A. of this preamble. EPA has estimated that the total annualized costs of this supplemental proposal when using a 3% discount rate are $39 million per year, and that benefits are $64 million to $257 million per year. Using a 7% discount rate, costs are $43 million per year and benefits are $68 million to $272 million per year.

3. State, local, and Tribal government input. EPA has sought input from State, local and Tribal government representatives throughout the development of the renovation, repair, and painting program. EPA's experience in administering the existing lead-based paint activities program under TSCA section 402(a) suggests that these governments will play a critical role in the successful implementation of a national program to reduce exposures to lead-based paint hazards associated with renovation, repair, and painting activities. Consequently, as discussed in Unit III.C.2. of the preamble to the 2006 Proposal (Ref. 1), the Agency has met with State, local, and Tribal government officials on numerous occasions to discuss renovation issues.

4. Least burdensome option. EPA considered a wide variety of options for addressing the risks presented by renovation activities where lead-based paint is present. The Supplemental Economic Analysis analyzed several different options for the scope of the supplemental rule. As part of the development of the renovation, repair, and painting program, EPA has considered different options for the scope of the rule, various combinations of training and certification requirements for individuals who perform renovations, various combinations of work practice requirements, and various methods for ensuring that no lead-based paint hazards are left behind by persons performing renovations. Additional information on the options considered is available in Unit VIII.C.6. of the preamble for the 2006 Proposal (Ref. 1), and in the Supplemental Economic Analysis (Ref. 6). EPA has determined that the proposed option is the least burdensome option available that achieves the objective of this supplemental rule, which is to prevent the creation of new lead-based paint hazards from renovation, repair, and painting activities in child-occupied facilities.

This rule does not contain a significant Federal intergovernmental mandate as described by section 203 of UMRA. Based on the definition of “small government jurisdiction” in RFA section 601, no State governments can be considered small. Small Territorial or Tribal governments could apply for authorization to administer and enforce this program, which would entail costs, but these small jurisdictions are under no obligation to do so.

EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Small governments operate schools that are child-occupied facilities. EPA generally measures a significant impact under UMRA as being expenditures, in the aggregate, of more than 1% of small government revenues in any one year. As explained in Unit VI.C.3., the rule is expected to result in small government impacts well under 1% of revenues. So EPA has determined that the rule does not significantly affect small governments.

Nor does the rule uniquely affect small governments, as the rule is not targeted at small governments, does not primarily affect small governments, and does not impose a different burden on small governments than on other entities that operate child-occupied facilities.

E. Federalism

Pursuant to Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), EPA has determined that this proposed rule does not have “federalism implications,” because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this proposed rule.

States would be able to apply for, and receive authorization to administer these proposed requirements, but would be under no obligation to do so. In the absence of a State authorization, EPA will administer these requirements.

Nevertheless, in the spirit of the objectives of this Executive Order, and consistent with EPA policy to promote communications between the Agency and State and local governments, EPA has consulted with representatives of State and local governments in developing the renovation, repair, and painting program. These consultations are as described in the preamble to the 2006 Proposal (Ref. 1).

EPA specifically solicits additional comment on this proposed rule from State and local officials. EPA is particularly interested in information on the number of public housing agencies who own or operate detached or off-site child-occupied facilities and this regulation's potential impacts on those agencies.

F. Tribal Implications

As required by Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 6, 2000), EPA has determined that this proposed rule does not have tribal implications because it will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in the Order. Tribes would be able to apply for, and receive authorization to administer these proposed requirements on Tribal lands, but Tribes would be under no obligation to do so. In the absence of a Tribal authorization, EPA will administer these requirements. While Tribes may operate child-occupied facilities covered by the rule such as kindergartens, pre-kindergartens, and daycare facilities, EPA has determined that this proposal would not have substantial direct effects on the tribal governments that operate these facilities.

Thus, Executive Order 13175 does not apply to this rule. Although Executive Order 13175 does not apply to this rule, EPA consulted with Tribal officials and others by discussing potential renovation regulatory options for the renovation, repair, and painting program at several national lead program meetings hosted by EPA and other interested Federal agencies.

EPA specifically solicits additional comment on this proposed rule from Tribal officials.

G. Children's Health Protection

Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to this supplemental rule because, when considered in conjunction with the 2006 Proposal, the combination would be designated as an “economically significant regulatory action” as defined by Executive Order 12866, and because the environmental health or safety risk addressed by this action have a disproportionate effect on children. Accordingly, EPA has evaluated the environmental health or safety effects of renovation, repair, and painting projects on children. Various aspects of this evaluation are discussed in the preamble to the 2006 Proposal (Ref. 1).

The primary purpose of this supplemental proposed rule is to prevent the creation of new lead-based paint hazards from renovation, repair, and painting activities in child-occupied facilities. In the absence of this regulation, adequate lead-safe work practices are not likely to be employed during renovation, repair, and painting activities. EPA's analysis indicates that there will be approximately 916,000 exposures avoided per year to children under age 6 as a result of the rule. These children are projected to receive considerable benefits due to this regulation.

H. Energy Effects

This rule is not a “significant energy action” as defined in Executive Order 13211, entitled “Actions concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have any adverse effect on the supply, distribution, or use of energy.

I. Technology Standards

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

In the 2006 Proposal, EPA proposed to adopt a number of work practice requirements that could be considered technical standards for performing renovation projects in residences that contain lead-based paint. This supplemental proposal would extend those work practice requirements to child-occupied facilities that contain lead-based paint. As discussed in Unit VIII.I. of the 2006 Proposal, EPA identified two potentially-applicable voluntary consensus standards (Ref. 1 at 1626). ASTM International (formerly the American Society for Testing and Materials) has developed 2 potentially-applicable documents: “Standard Practice for Clearance Examinations Following Lead Hazard Reduction Activities in Single-Family Dwellings and Child-Occupied Facilities” (Ref. 15), and “Standard Guide for Evaluation, Management, and Control of Lead Hazards in Facilities” (Ref. 16). With respect to the first document, EPA did not propose to require traditional clearance examinations, including dust sampling, following renovation projects. However, EPA did propose to require that a visual inspection for dust, debris, and residue be conducted after cleaning and before post-renovation cleaning verification is performed. The first ASTM document does contain information on conducting a visual inspection before collecting dust clearance samples. The second ASTM document is a comprehensive guide to identifying and controlling lead-based paint hazards. Some of the information in this document is relevant to the work practices that EPA proposed to require. Each of these ASTM documents represents state-of-the-art knowledge regarding the performance of these particular aspects of lead-based paint hazard evaluation and control practices and EPA continues to recommend the use of these documents where appropriate. However, because each of these documents is extremely detailed and encompasses many circumstances beyond the scope of this rulemaking, EPA determined that it would not be practical to incorporate these voluntary consensus standards into the 2006 Proposal.

In addition, the 2006 Proposal contained a provision for EPA to recognize test kits that could be used by certified renovators to determine whether components to be affected by a renovation contain lead-based paint. Under that proposal, EPA would recognize those kits that meet certain performance standards for limited false positives and negatives. Further, EPA would also recognize only those kits that have been properly validated by a laboratory independent of the kit manufacturer. Although EPA did not propose to establish a particular method to be used for validating kits, for chemical spot test kits, EPA announced its intention to look to the ASTM document entitled “Standard Practice for Evaluating the Performance Characteristics of Qualitative Chemical Spot Test Kits for Lead in Paint” (Ref. 17) to determine whether a particular kit's validation is adequate.

The provisions discussed here would apply equally to renovation projects in child-occupied facilities. EPA welcomes comments from entities potentially regulated by this supplemental proposal on this aspect of the proposed rulemaking. EPA specifically invites these entities to identify potentially applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

J. Environmental Justice

Under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994), the Agency has assessed the potential impact of this proposal on minority and low-income populations. The results of this assessment are presented in the Supplemental Economic Analysis for this proposal, which is available in the public docket for this rulemaking (Ref. 6). The rule will not have disproportionately high and adverse human health or environmental effects on minority populations and low-income populations.

List of Subjects in 40 CFR Part 745

• Child-occupied facility
• Environmental protection
• Housing renovation
• Lead
• Lead-based paint
• Renovation
• Reporting and recordkeeping requirements

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

PART 745—[AMENDED]

1. The authority citation for part 745 continues to read as follows:

Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.

2. Section 745.80 is revised to read as follows:

§ 745.84 [Removed]

6. Section 745.84 is removed.

§ 745.85 [Redesignated]

7. Section 745.85 is redesignated as § 745.84.

8. Newly designated § 745.84 is amended as follows:

a. Revise the introductory text of paragraph (a) and revise paragraph (a)(2)(i).

b. Revise the introductory text of paragraph (b) and revise paragraphs (b)(2) and (b)(4).

c. Redesignate paragraph (c) as paragraph (d).

d. Add a new paragraph (c).

c. Revise the introductory text of newly designated paragraph (d).

§ 745.88 [Removed]

12. Section 745.88 is removed.

13. Section 745.89 is added to subpart E to read as follows: