[Federal Register Volume 79, Number 48 (Wednesday, March 12, 2014)]
[Proposed Rules]
[Pages 13968-13970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-05392]



40 CFR Chapter I

[EPA-HQ-OPPT-2013-0815; FRL-9906-09]

Records Related to OSHA's Construction Standard for Lead and 
Renovations of Public and Commercial Buildings; TSCA Section 21 
Petition; Reasons for Agency Response

AGENCY: Environmental Protection Agency (EPA).

ACTION: Petition; reasons for Agency response.


SUMMARY: This document provides the reasons for EPA's response to a 
petition it received under the Toxic Substances Control Act (TSCA). The 
TSCA section 21 petition was received from the National Center for 
Healthy Housing, the International Union of Painters & Allied Trades, 
the Lead and Environmental Hazards Association, and the National 
Association of Lead and Healthy Homes Grantees (petitioners) on October 
31, 2013. The petitioners requested EPA to promulgate a rule pursuant 
to TSCA section 8(d) requiring property managers, building owners, and 
contractors disturbing lead-based paint in public and commercial 
buildings (P&CBs) to submit to EPA certain records related to the 
Occupational Safety and Health Administration's (OSHA's) construction 
standard for lead. After careful consideration, EPA denied the TSCA 
section 21 petition by letter on January 28, 2014, for the reasons 
discussed in this document.

DATES: The EPA's response to this TSCA section 21 petition was signed 
on January 28, 2014.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Ryan Schmit, 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) 564-0610; email address: [email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: [email protected].


I. General Information

A. Does this action apply to me?

    This action is directed to the public in general. This action may, 
however, be of particular interest to building owners, property 
managers and contractors who disturb painted surfaces in P&CBs. Since 
other entities may also be interested, the Agency has not attempted to 
describe all the specific entities that may be affected by this action.

B. How can I access information about this petition?

    The docket for this TSCA section 21 petition, identified by docket 
identification (ID) number EPA-HQ-OPPT-2013-0815 is available at http://www.regulations.gov or at the Office of Pollution Prevention and 
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket 
Center (EPA/DC), West Bldg., Rm. 3334, 1301 Constitution Ave. NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal

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holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information 
about the docket available at http://www.epa.gov/dockets.

II. TSCA Section 21

A. What is a TSCA section 21 petition?

    Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA 
to initiate a rulemaking proceeding for the issuance, amendment, or 
repeal of a rule under TSCA sections 4, 6, or 8 or an order under TSCA 
sections 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the 
facts that are claimed to establish the necessity for the action 
requested. EPA is required to grant or deny the petition within 90 days 
of its filing. If EPA grants the petition, the Agency must promptly 
commence an appropriate proceeding. If EPA denies the petition, the 
Agency must publish its reasons for the denial in the Federal Register. 
A petitioner may commence a civil action in a U.S. district court to 
compel initiation of the requested rulemaking proceeding within 60 days 
of either a denial or the expiration of the 90-day period.

B. What criteria apply to a decision on a TSCA section 21 petition?

    Section 21(b)(1) of TSCA requires that the petition ``set forth the 
facts which it is claimed establish that it is necessary'' to issue the 
rule or order requested. 15 U.S.C. 2620(b)(1). Thus, TSCA section 21 
implicitly incorporates the statutory standards that apply to the 
requested actions. Section 8(d) of TSCA authorizes EPA to require the 
submission of unpublished health and safety studies initiated or 
conducted by, or known to or reasonably ascertainable by, 
manufacturers, processors, and distributors of chemical substances or 
mixtures. Studies may be excluded ``if the Administrator finds that 
submission of lists of such studies are unnecessary to carry out the 
purposes of [TSCA].'' 15 U.S.C. 2607(d)(1).
    In addition, TSCA section 21(b)(4)(B) provides the standards a 
court must use to decide whether to order EPA to initiate rulemaking in 
the event of a lawsuit filed by the petitioner after denial of a TSCA 
section 21 petition: ``If the petitioner demonstrates to the 
satisfaction of the court by a preponderance of the evidence that . . . 
there is a reasonable basis to conclude that the issuance of such a 
rule . . . is necessary to protect health or the environment against an 
unreasonable risk of injury,'' the court shall order the EPA 
Administrator to initiate the requested action. 15 U.S.C. 
2620(b)(4)(B). Accordingly, EPA relied on the standards in TSCA section 
21 and in the provisions under which actions have been requested to 
evaluate this TSCA section 21 petition.

III. Summary of the TSCA Section 21 Petition

A. What action was requested?

    On October 31, 2013, the National Center for Healthy Housing, the 
International Union of Painters and Allied Trades, the Lead and 
Environmental Hazards Association, and the National Association of Lead 
and Healthy Homes Grantees petitioned EPA to promulgate a rule pursuant 
to TSCA section 8(d) requiring property managers, building owners, and 
contractors disturbing lead-based paint in P&CBs to submit to EPA 
certain records related to OSHA's construction standard for lead. 
Specifically, the petition asks EPA to collect the following records:
    1. Personal or area air sampling data and any resultant exposure 
assessments conducted pursuant to 29 CFR 1926.62(d).
    2. Employee medical surveillance data and any resultant evaluation 
pursuant to 29 CFR 1926.62(j) or medical removals of employees removed 
from current exposure to lead pursuant to 29 CFR 1926.62(k).
    3. Paint analysis results and any resultant studies that were used 
to determine whether or not initial exposure monitoring should be 
required pursuant to 29 CFR 1926.62(n)(4).
    4. Data and studies considered in the development of a compliance 
plan and in the development of any updates pursuant to 29 CFR 
1926.62(e)(2), including: descriptions of each activity in which lead 
is emitted; descriptions of the specific means employed to achieve 
compliance and, where engineering controls were required, engineering 
plans and studies used to determine methods selected for controlling 
exposure to lead.
    5. Air monitoring data collected pursuant to 29 CFR 1926.62(e)(2) 
which documents the source of lead emissions.
    6. Data considered in the evaluation of the effectiveness of 
mechanical ventilation in controlling exposure under 29 CFR 
1926.62(e)(3) (Ref. 1, p. 2).

B. What support do the petitioners offer?

    The petitioners suggest that the documents received under a TSCA 
section 8(d) reporting rule would provide EPA with ``critical 
information'' it needs to analyze lead hazards created by renovations 
of P&CBs as required by the Lead-Based Paint Hazard Reduction Act of 
1992 (Ref. 1, p. 2). The petitioners also generally refer to the 
dangers of lead and the hazards, including those from the renovation of 
residences found by EPA in the 2008 Renovation, Repair and Painting 
rule, and the need to similarly protect all Americans from lead hazards 
created by the renovation of P&CBs (Ref. 1).
    In reference to the OSHA lead standards and the P&CB rulemaking 
analysis, the petitioners cite to public comments made surrounding 
EPA's June 26, 2013 public meeting on the P&CB rulemaking, including 
those from the National Apartment Association (Ref. 2), the Independent 
Electrical Contractors (Ref. 3), the Associated General Contractors of 
New York State (Ref. 4), the National Institute of Building Sciences 
(Ref. 5), the National Roofing Contractors Association (Ref. 6), and 
the Commercial Properties Coalition (Ref. 7).

IV. Disposition of TSCA Section 21 Petition

A. What was EPA's response?

    After careful consideration, and for the following reasons, EPA 
denied the petitioners' request that EPA promulgate a reporting rule 
pursuant to TSCA section 8(d). EPA will, however, seek to obtain this 
type of information in an alternative manner. A copy of the Agency's 
response, which consists of a letter to the petitioners, is available 
in the docket for this TSCA section 21 petition.

B. What is EPA's reason for this response?

    For the purpose of making its decision, EPA evaluated the 
information presented or referenced in the petition as well as the 
Agency's authority and requirements under TSCA sections 8 and 21. After 
careful consideration, EPA denied the request based on the petitioners' 
failure to set forth sufficient facts establishing that it is necessary 
to initiate a TSCA section 8(d) reporting rule. In addition, while the 
records requested by the petitioners are potentially useful, they are 
not necessary to carry out the purposes of TSCA or to support the P&CB 
rulemaking analysis. Furthermore, to the extent that such information 
could nonetheless be informative, promulgating a TSCA section 8(d) rule 
is not an efficient or effective way to get the information.
    EPA believes that it is not necessary or appropriate to promulgate 

[[Page 13970]]

section 8(d) rulemaking at this time. First, EPA consulted with OSHA 
and determined that in many circumstances, a number of the records 
requested by the petitioners do not actually need to be maintained by 
employers under OSHA's construction standard for lead. For example, 
most building owners and property managers are not required to keep the 
requested records because the routine maintenance activities commonly 
performed by their employees are not subject to OSHA's construction 
standard for lead. Second, construction employers performing renovation 
work involving lead-based paint may not need to keep all of the records 
in question if their employees are not exposed above the standard's 
permissible exposure limit (PEL) or action level. Third, in OSHA's 
experience, employers that do not comply with the PEL are unlikely to 
comply with the standard's recordkeeping requirements, further 
lessening the amount of responsive information available. Thus, based 
on consultations with OSHA, EPA believes the amount and type of 
information the Agency could realistically expect to receive under a 
reporting rule would be significantly limited.
    EPA also has reservations regarding the potential for this 
information to inform the P&CB rulemaking analysis. For example, as 
indicated by OSHA, air sampling records are most commonly found in the 
form of a simple report indicating whether samples are above or below 
an applicable permissible exposure limit. Information contextualizing 
this exposure data is not likely to be ascertainable from employers' 
OSHA records. Without such contextual information, these records would 
be of limited utility to EPA in modeling exposure and identifying and 
evaluating hazards in P&CBs.
    Based on the expected limitations in the availability and utility 
of the records to EPA's analysis of lead-based paint hazards created by 
renovations in P&CBs, EPA does not believe that the expenditures of 
time and resources inherent in proposing and finalizing a TSCA section 
8(d) rule are justified. Nonetheless, EPA will seek to obtain this type 
of information in a more targeted, efficient, and less burdensome 
manner. Specifically, EPA is already working with OSHA to determine the 
availability of lead sampling and exposure data in OSHA enforcement 
records. Pursuant to its authority under TSCA, EPA will also issue 
information request letters to a smaller, targeted group of entities. 
This approach will allow EPA to collect and assess the utility of 
available OSHA records identified by the petitioners, as well as 
collect other, potentially relevant information, without being limited 
in scope to ``health and safety studies'' under TSCA section 8(d).
    Finally, in addition to previous and ongoing efforts to obtain 
additional data and information on lead and renovations in P&CBs from 
industry, the general public, and other Federal agencies, EPA is 
preparing to conduct an industry survey to collect various types of 
information from the public and commercial building industry (Ref. 8). 
This survey, ``Survey of the Public and Commercial Building Industry,'' 
is specifically designed to target additional information EPA expects 
may be useful to the P&CB analysis (Ref. 8).

V. References

    As indicated under ADDRESSES, a docket has been established for 
this document under docket ID number EPA-HQ-OPPT-2013-0815. The 
following is a listing of the documents that are specifically 
referenced in this action. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.
    1. National Center for Healthy Housing, International Union of 
Painters & Allied Trades, Lead and Environmental Hazards Association, 
National Association of Lead and Healthy Homes Grantees. Citizen 
Petition to EPA Regarding OSHA Exposure Assessments in Renovations of 
Public and Commercial Buildings. October 31, 2013. Available at: http://www.epa.gov/opptintr/chemtest/pubs/Section_21_on_PnCBs_Resubmit_10.31.2013.pdf.
    2. National Apartment Association comment posted July 11, 2013 at 
    3. Independent Electrical Contractors comment posted June 3, 2013 
at EPA-HQ-OPPT-2010-0173-0176.
    4. Associated General Contractors of New York State comment posted 
on April 30, 2013 at EPA-HQ-OPPT-2010-0173-0161.
    5. National Institute of Building Sciences comment posted on April 
3, 2013 at EPA-HQ-OPPT-2010-0173-0153.
    6. National Roofing Contractors Association comment posted July 12, 
2010 at EPA-HQ-OPPT-2010-0173-0073.
    7. Commercial Properties Coalition comment posted April 3, 2013 at 
    8. EPA. Agency Information Collection Activities; Proposed 
Collection; Comment Request; Notice. Federal Register (78 FR 73520, 
December 6, 2013) (FRL-9902-85)

List of Subjects in 40 CFR Chapter I

    Environmental protection, Lead, OSHA, Public and commercial 
buildings, Renovation.

    Dated: February 7, 2014.
Wendy C. Hamnett,
Director, Office of Pollution Prevention and Toxics.
[FR Doc. 2014-05392 Filed 3-11-14; 8:45 am]