[Federal Register Volume 86, Number 211 (Thursday, November 4, 2021)]
[Notices]
[Pages 60812-60815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24010]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-EPA-HQ-OECA-2021-0763; FRL-9204-01-OECA]


Withdrawal of Two Answers to Frequent Questions About Property 
Management Companies and the Toxic Substances Control Act Lead-Based 
Paint Renovation, Repair, and Painting Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice and opportunity for public comment.

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SUMMARY: The EPA intends to withdraw two Frequently Asked Questions 
(FQs) concerning property management companies (PMCs) and their 
compliance responsibilities under the Toxic Substances Control Act 
(TSCA) Lead Renovation, Repair and Painting (RRP) Rule. This notice 
explains the rationale for the withdrawal, the impact on the regulated 
community, how EPA will exercise its enforcement discretion, and 
invites public comment. The requirements of the RRP rule are intended 
to protect people, especially children, from the hazardous health 
effects of lead from lead-based paint.

DATES: The EPA intends to withdraw FQ 23002-13650 and 23002-18348 (the 
``PMC FQs''), found below and at https://www.epa.gov/lead/fqs-rrp-rule 
on March 21, 2022. However, due to the significant public interest in 
the issues addressed in this notice, the EPA is providing an 
opportunity for public comment on the EPA's intended action. The EPA is 
requesting comments by December 6, 2021 to identify any relevant 
information that could change the EPA's decision to withdraw these two 
FQs. Following the comment period and the Agency's consideration of 
comments received by that date, the EPA intends to post a memorandum 
that states whether the withdrawal will take effect as planned. The EPA 
would make the memorandum available on its website at: www.epa.gov/lead, and in the public comment docket for this notice at Docket EPA-
HQ-OECA-2021-0763. By providing advance notice of the planned 
withdrawal of the FQs in 135 days from publication in the Federal 
Register, the EPA is providing more than sufficient time for PMCs to 
obtain any needed certification under the Lead RRP rule.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OECA-2021-0763, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Agency Website: www.epa.gov/lead. Follow the online 
instructions for submitting comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, OECA Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this notice. Comments received may be posted without change to 
https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the notice, see the ``Public Participation'' heading of 
the SUPPLEMENTARY INFORMATION section of this document. Out of an 
abundance of caution for members of the public and our staff, the EPA 
Docket Center and Reading Room are open to the public by appointment 
only to reduce the risk of transmitting COVID-19. Our Docket Center 
staff also continues to provide remote customer service via email, 
phone, and webform. Hand deliveries and couriers may be received by 
scheduled appointment only. For further information on EPA Docket 
Center services and the current status, please visit us online at 
https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Aimee Hessert, Federal Facilities 
Enforcement Office (MC 2261A), Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 
564-0993; email address: [email protected]; and Amos Presler, 
Office of Civil Enforcement (MC 2249A), Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone 
number: (202) 564-1076; email address: [email protected]. Comments 
or questions submitted by email must include ``Docket EPA-HQ-OECA-2021-
0763'' in the subject line of the email message.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OECA-2021-
0763, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit to 
EPA's docket at https://www.regulations.gov any information you 
consider to be Proprietary Business Information (PBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For

[[Page 60813]]

additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Due to public health concerns related to COVID-19, the EPA Docket 
Center and Reading Room are open to the public by appointment only. Our 
Docket Center staff also continues to provide remote customer service 
via email, phone, and webform. For further information and updates on 
EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

II. General Information

A. Does this action affect you?

    This announcement matters to you if you are a PMC, if you are 
employed by a PMC, if you live in target housing managed by a PMC, or 
if you work with PMCs on renovation, repair or painting activities 
covered by the EPA's RRP rule. Target housing includes residential 
dwellings constructed before 1978. This notice also matters to you if 
you have a child under the age of 6 years who regularly visits a 
``child-occupied facility,'' such as a daycare or a kindergarten, in a 
pre-1978 building managed by a PMC.

B. Intended Action

    This Notice by the Environmental Protection Agency (EPA) announces 
it intends to withdraw two Frequently Asked Questions (``FQs'') 
concerning property managers and property management companies 
(collectively, ``property management companies'' or ``PMCs'') and their 
compliance responsibilities under the Lead-based Paint Renovation, 
Repair, and Painting Rule (``RRP rule''), section 402(c) of the Toxic 
Substances Control Act (TSCA), 40 CFR part 745, subpart E, including 
the pre-renovation information distribution requirements promulgated 
under TSCA section 406(b) and codified at 40 CFR 745.84. The FQs are 
viewable on the EPA website: www.epa.gov/lead/fqs-rrp-rule.
    The first of the PMC FQs to be withdrawn indicated the EPA's prior 
statement that a PMC did not need to obtain firm certification for 
itself or renovator certification for an employee if none of its 
employees ``do the work'' of the renovation:

    Question (23002-13650): A property management company performs 
most of the clerical functions of the business, and hires plumbers, 
electricians, carpenters, etc., for its renovation needs. Does the 
property management company need firm certification?
    Answer: A property management company acts as an agent for the 
landlord and has the same responsibilities as the landlord under the 
RRP rule. Therefore, if the property management company uses its own 
employees to do the work, the property management company must be a 
certified firm and one of the employees must be a certified 
renovator. If the property management company hires a renovation 
firm to perform the renovation, the property management company does 
not need firm or renovator certification, but the firm the property 
management company hires must be certified and must perform the 
renovation using a certified renovator that directs and provides on-
the-job training to any workers that are not certified renovators.

    The second of the two PMC FQs explained how the EPA would exercise 
its enforcement discretion under circumstances in which a certified 
firm hired by the PMC fails to comply with a requirement of the RRP 
rule:

    Question (23002-18348): If a property management company hires a 
certified firm to perform a renovation and the firm violates the RRP 
rule, for example, by failing to distribute the necessary materials 
or keep proper records, which entity is subject to enforcement 
action, the property manager or the certified firm?
    Answer: It is the certified firm's responsibility to comply with 
the requirements of the RRP rule, and any enforcement action taken 
would be against the firm.

    With the withdrawal of FQ 23002-13650 and FQ 23002-18348, the EPA 
would assess compliance by PMCs with the RRP rule, as it would for any 
other entity, according to the broadly applicable language of the RRP 
rule: That no firm may perform, offer, or claim to perform renovations 
without certification from EPA in target housing or child-occupied 
facilities (unless the renovation qualifies for a specified exception). 
See, e.g., 40 CFR 745.81(a)(2)(ii). Furthermore, the EPA will evaluate 
compliance and appropriate enforcement actions on the basis of each 
case's individual facts and circumstances, and the EPA may exercise its 
enforcement discretion regarding PMC obligations.
    As stated in the introduction to the current FQs document 
(available at https://www.epa.gov/lead/answers-frequent-questions-about-epas-lead-renovation-repair-and-painting-rrp-rule), the FQs 
present the agency's preliminary responses, may be periodically 
revised, and do not necessarily bind the EPA to a specific application 
of the RRP rule. This notice, like the PMC FQs, is intended solely for 
guidance and does not alter any statutory or regulatory requirements 
and does not create binding obligations.
    For information on how to get certified, please see https://www.epa.gov/lead/renovation-repair-and-painting-program-contractors.

C. Background

    The RRP rule is intended to protect residents of pre-1978 homes 
from lead-based paint disturbed in the course of renovation, repair or 
painting activities. Compliance with the RRP rule's requirements 
protects people from the hazardous health effects of lead, especially 
children six years old and younger and pregnant women, both of whom are 
most susceptible to the effects of lead. Even low levels of lead in the 
blood of children can result in: Behavior and learning problems; lower 
IQ and hyperactivity; slowed growth; hearing problems; and anemia. In 
rare cases, ingestion of lead can cause seizures, coma and even death. 
Lead accumulates in the body over time, where it is stored in the bones 
along with calcium. During pregnancy, lead is released from the 
pregnant mother's bones, along with calcium, and can pass from the 
mother, exposing the fetus or the breastfeeding infant to lead. This 
can result in serious effects to the developing fetus and infant. It 
can cause the baby to be born too early or too small; hurt the baby's 
brain, kidneys, and nervous system; increase the likelihood of learning 
or behavioral problems; and put the mother at risk for miscarriage.
    Congress recognized almost thirty years ago, upon enactment of the 
legislation that included TSCA Title IV, that lead in paint was 
responsible for ``low-level lead poisoning [that was] widespread among 
American children, afflicting as many as 3,000,000 children under age 
6, with minority and low-income communities disproportionately 
affected.'' 42 U.S.C. 4851. Disproportionate risks of lead exposure in 
minority and low-income communities persist today.\1\ Withdrawal of the 
PMC FQs is important for the safety of all who live in PMC-managed

[[Page 60814]]

housing, and it is vitally important to the health of children under 
the age of 6 years, particularly in communities burdened by exposure to 
high levels of lead-based paint in pre-1978 housing. Communities with 
environmental justice concerns often include a higher proportion of 
rental housing. PMCs manage a significant portion of the nation's 
rental housing market, and each PMC often manages a large number of 
rental housing units. For example, the largest 50 PMCs alone control 
3.4 million units.\2\ PMCs also manage approximately 205,000 family 
housing projects, which comprise 99% of privatized military housing. 
More than 3.18 million children under the age of 6 years live in pre-
1980 rental housing.\3\ A portion of these children may be at risk of 
exposure to lead-based paint hazards.
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    \1\ Hauptman, et al., Individual- and Community-Level Factors 
Associated with Detectable and Elevated Blood Lead Levels in US 
Children: Results From a National Clinical Laboratory, JAMA 
Pediatrics (published online September 27, 2021) (finding 
statistically significant associations between detectable or 
elevated blood lead levels and zip codes with concentrations of 
poverty, Black populations, or Hispanic populations, and other 
community factors).
    \2\ National Multifamily Housing Council (NMHC) (tallying 
3,405,227 rental units under management by 50 PMCs). https://www.nmhc.org/research-insight/the-nmhc-50/top-50-lists/2019-managers-list/.
    \3\ American Housing Survey Table, 2019 National--Household 
Demographics--All Occupied Units--Tenure Filter: Renter--Year Built 
Variable (2019) (rental filtered sum of pre-1980 households (columns 
I-M) with one child under 6 years (rows 170-71, 176-77, 182-83) plus 
doubled sum of pre-1980 households of two or more children under 6 
years old (rows 172,73, 178-79, 184-85) yields a minimum estimate of 
3,188,000 children under 6 years old in pre-1980 rental housing). 
Spreadsheet is derived from the Custom AHS Table tool maintained by 
the U.S. Census at https://www.census.gov/programs-surveys/ahs.
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D. RRP Rule Applicability

    The RRP rule broadly applies to renovation, repair or painting 
activities performed for compensation that disturb painted surfaces in 
target housing and child occupied facilities.
    When the EPA developed the RRP rule, as required by section 402(c) 
of TSCA, it defined the scope of the RRP rule based on the 
circumstances of the renovation, repair and painting activity, rather 
than the person or entity performing the renovation. The RRP rule 
``applies to all renovations performed for compensation in target 
housing and child-occupied facilities. . . .'' 40 CFR 745.82(a). The 
purpose of this broad application, as stated in the regulation is ``to 
ensure'' that ``individuals performing renovations . . . are properly 
trained; renovators and firms performing these renovations are 
certified; and the work practices in [the regulation] are followed. . . 
.'' Sec.  745.80(b). Work practice requirements, such as work-area 
containment, and a prohibition on certain work practices, such as open-
flame burning, minimize exposure to lead-based paint hazards.
    The regulations provide that ``no firm may perform, offer, or claim 
to perform renovations without certification from EPA . . . in target 
housing or child-occupied facilities [unless an exception applies].'' 
Sec.  745.81(a)(2)(ii). The regulations broadly define ``firms'' to 
include: ``a company, partnership, corporation, sole proprietorship or 
individual doing business, association, or other business entity; a 
Federal, State, Tribal or local government agency; or a nonprofit 
organization.'' Sec.  745.83.

E. Basis for EPA's PMC FQs

    In an effort to help the public understand and comply with the RRP 
rule, the EPA posted answers to frequent questions on its website at 
https://www.epa.gov/lead/fqs-rrp-rule (``FQ document''). When the EPA 
added the PMC FQs to the FQ document in 2010, it did not have 
experience with implementation of the RRP rule and the PMC industry's 
response to it. PMC FQ 23002-13650 states, ``if the property management 
company hires a renovation firm to perform the renovation, the property 
management company does not need firm or renovator certification.'' The 
FQ, which as noted above is not binding, analogized PMCs to landlords 
and provided that a PMC that did not use its own employees ``to do the 
work'' would not have enforceable obligations under the RRP rule and, 
for example, would not need to ensure that lead-safe work practices 
were followed. The FQ did not elaborate on the phrase ``do the work.'' 
At the time the FQ was written, EPA generally did not think that a PMC 
that hired a renovation firm to perform a renovation would itself be 
doing work such that it also would be performing or offering to perform 
the renovation for compensation. Therefore, EPA did not think the PMC 
would need to comply with the RRP rule and need to be a certified firm. 
Consistent with this prior interpretation, FQ 23002-18348 states that 
any enforcement action taken would be against the renovation firm, not 
the PMC. EPA now has experience implementing the RRP rule and 
understands there are circumstances where a PMC hires a renovation firm 
to perform the renovation, and also engages in activities such that the 
PMC also performs or offers to perform the renovation, and these 
circumstances are described in more detail in this notice.

F. EPA's Experience Implementing the RRP Rule Supports Withdrawal of 
the PMC FQs

    The EPA has gained experience implementing the RRP rule since 2010 
and, based on this experience, has a better understanding of the 
activities commonly undertaken by PMCs. As explained below, the EPA has 
concluded that it is not appropriate to make categorical assumptions 
about PMC compliance obligations and that these obligations should be 
determined based on the facts and circumstances of each individual 
case. While PMCs may in some instances and in some circumstances act as 
agents of a landlord, unlike landlords they are not property owners, 
but instead are a distinct type of entity that performs services for 
compensation. In the EPA's experience, PMCs often do not hire certified 
renovation firms. Furthermore, the EPA has found many circumstances 
where a PMC that hires a renovation firm for a renovation also performs 
or offers to perform the renovation for compensation in target housing. 
For example, in some cases, the PMC might offer to perform renovation, 
repair, or painting activities through its contractual agreements with 
the building owner, and in other cases the PMC might perform an element 
of the renovation for compensation.
    Given the EPA's understanding of these circumstances, the EPA 
intends to assess compliance by PMCs with the RRP rule, just as it 
would for any other entity, in accordance with the broadly applicable 
language of the RRP rule: That no firm may perform, offer, or claim to 
perform regulated renovations without certification from the EPA in 
target housing or child-occupied facilities. See, e.g., 40 CFR 
745.81(a)(2)(ii). Consistent with the requirements in the RRP rule, the 
EPA will evaluate compliance and appropriate enforcement actions on the 
basis of each case's individual facts and circumstances, and the EPA 
may exercise its enforcement discretion regarding PMC obligations.

G. Examples of PMCs' Varying Levels of Involvement With Renovations

    The following discussion is intended to help elaborate on how the 
RRP rule may apply to PMCs when they hire a renovation firm. In some 
cases, the PMC might offer to perform renovation, repair, or painting 
activities through its contractual agreements with the building owner, 
and in other cases the PMC might perform an element of the renovation 
for compensation.
    When a PMC enters into a business relationship with the property 
owner, the PMC typically agrees to perform various property management 
services. In some circumstances, a PMC's services may be strictly 
limited to leasing and rent collection. That circumstance would be 
unlikely to give rise to facts

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indicating that a PMC ``performed'' a renovation.
    More often, a PMC agrees to provide--and is compensated for--
property management services that include maintenance, repair, 
painting, renovations, or other activities that disturb painted 
surfaces and may be subject to the RRP rule and require a certified 
renovator. In such agreements, oral contracts, or written contracts, 
the agreement obligates the PMC to perform the renovation. Whether the 
PMC uses its own employees to perform the work or hires an outside firm 
to perform the work, the PMC remains obligated by such an agreement 
with the property owner (and typically is compensated for fulfilling 
such obligations) to ensure that the renovation is performed.
    Specification of such ``renovation'' responsibilities in a written 
contract between a property owner and a PMC is not essential to 
establishing RRP rule applicability to the PMC, especially if other 
facts establish that the PMC offered to perform or actually did perform 
some other action necessary to ensure the performance of a renovation 
activity.
    When a PMC hires a firm for renovation, repair or painting 
activities, the PMC, as part of the business relationship with the 
property owner, is typically compensated for managing certain 
activities that are necessary or even integral to the performance of 
the renovation, repair or painting activity, including (but not limited 
to):
     Soliciting and evaluating contractor bids;
     Applying for permits, as appropriate;
     Granting contractors access to the property;
     Overseeing contractor work on the property;
     Informing tenants of renovation activity;
     Verifying completion of renovation activity; or
     Remitting payment to the contractors.
    The PMC may even oversee or supervise the outside renovation firms, 
individuals and contractors who are not the PMC's employees but are 
doing activities that are recognized as part of the renovation in the 
RRP rule. The PMC may also coordinate work schedules of the various 
outside contractors.
    Compensation of a PMC by the property owner for any of these or 
similar activities may establish that a PMC is performing a renovation 
for compensation and must comply with the RRP rule, even if the PMC 
uses an independent contractor instead of its own employees to do the 
specific activities that disturb paint surfaces. Consistent with the 
requirements in the RRP rule, the EPA will evaluate compliance and 
appropriate enforcement actions on the basis of each case's individual 
facts and circumstances, and the EPA may exercise its enforcement 
discretion regarding PMC obligations.

H. Why Withdrawal of the PMC FQs Is Preferable

    The EPA has over ten years of experience with the PMC FQs and has 
concluded, as discussed above, that these FQs have contributed to non-
compliance with the RRP rule in rental property managed by PMCs.
    EPA's experience also has shown that PMCs routinely hire smaller, 
uncertified firms to conduct RRP activities. Collectively these hiring 
decisions by PMCs have an outsized impact on worksite compliance at 
properties managed by PMCs as the numerous contractors for renovation, 
repair and painting activities are often small and transitory. 
Withdrawing the PMC FQs signals that EPA plans to hold both the PMCs 
and the contractors they hire responsible for compliance if the 
circumstances indicate that both entities performed or offered to 
perform renovations for compensation in target housing or child-
occupied facilities.
    Withdrawal of the PMC FQs and the discussion in this notice helps 
to increase the impact and effectiveness of the RRP Rule and improve 
compliance in rental properties managed by PMCs. The EPA seeks to 
explain the circumstances that may give rise to compliance obligations 
for PMCs under the RRP Rule. We also aim to identify the potential 
enforcement consequences for a PMC that performs or offers to perform 
renovations for compensation without considering its role in RRP rule 
compliance.

I. Assessing Compliance for PMCs

    The EPA is cognizant that PMCs relying on the EPA's PMC FQs may 
have declined to obtain RRP certification themselves or ensure the RRP 
compliance of contractors they hired. Therefore, through this notice, 
the EPA is informing the public and PMCs that EPA intends to withdraw 
FQs 23002-13650 and 23002-18348 and intends, upon withdrawal, to assess 
compliance by PMCs that are performing or offering to perform 
renovations for compensation--either by using their own employees or 
hiring an outside firm--according to the same requirements placed upon 
any other entity that performs or offers to perform a renovation for 
compensation in target housing or child-occupied facilities.
    Consistent with the RRP rule, any individual or entity (including 
PMCs) is subject to the RRP rule requirements when they perform or 
offer to perform renovation, repair or painting activities for 
compensation in housing and child-occupied facilities built before 
1978, and therefore must be a certified firm.
    Requirements for certified firms include, among other things: 
Obtaining firm certification; providing owners and occupants with the 
EPA's Renovate Right pamphlet; assigning a certified renovator to the 
RRP activity (or ensuring assignment of a contractor's certified 
renovator); ensuring all workers onsite are certified or receive on-
the-job training from a certified renovator; ensuring use of lead-safe 
work practices and clean-up; ensuring documentation of compliance of 
lead-safe work practices that minimize the release of lead-based paint 
hazards such as paint chips and dust containing lead; and providing 
that documentation to the EPA and to EPA-authorized state programs upon 
request.
    By providing advance notice of the planned withdrawal of the FQs in 
135 days, the EPA is providing more than sufficient time for PMCs to 
obtain any needed certification under the Lead RRP rule. For 
information on how to get certified, please see https://www.epa.gov/lead/renovation-repair-and-painting-program-contractors.

Michael S. Regan,
Administrator.
[FR Doc. 2021-24010 Filed 11-3-21; 8:45 am]
BILLING CODE 6560-50-P