[Federal Register Volume 64, Number 62 (Thursday, April 1, 1999)] [Notices] [Pages 15746-15749] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 99-8087] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [PB-402404-WV; FRL-6066-6] Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities; The State of West Virginia's Authorization Application AGENCY: Environmental Protection Agency (EPA). ACTION: Notice; request for comments and opportunity for public hearing. ----------------------------------------------------------------------- SUMMARY: On December 17, 1998, the State of West Virginia submitted an application for EPA approval to administer and enforce training and certification requirements, training program accreditation requirements, and work practice standards for lead-based paint activities in target housing and child-occupied facilities under section 402 of the Toxic Substances Control Act (TSCA). This notice announces the receipt of West Virginia's application, provides a 45-day public comment period, and provides an opportunity to request a public hearing on the application. [[Page 15747]] DATES: Comments on the authorization application must be received on or before May 17, 1999. Public hearing requests must be received on or before May 3, 1999. ADDRESSES: Submit all written comments and/or requests for a public hearing identified by docket control number ``PB-402404-WV'' (in duplicate) to: Environmental Protection Agency, Region III, Waste and Chemicals Management Division, Toxics Programs and Enforcement Branch (3WC33), 1650 Arch St., Philadelphia, PA 19103-2029. Comments, data, and requests for a public hearing may also be submitted electronically to: [email protected]. Follow the instructions under Unit IV. of this document. No information claimed to be Confidential Business Information (CBI) should be submitted through e-mail. FOR FURTHER INFORMATION CONTACT: Artencia R. Johnson (3WC33), Waste and Chemicals Management Division, Environmental Protection Agency, Region III, 1650 Arch St., Philadelphia, PA 19103-2029, telephone: (215) 814- 5754; e-mail address: [email protected]. SUPPLEMENTARY INFORMATION: I. Background On October 28, 1992, the Housing and Community Development Act of 1992, Pub. L. 102-550, became law. Title X of that statute was the Residential Lead-Based Paint Hazard Reduction Act of 1992. That Act amended TSCA (15 U.S.C. 2601 et seq.) by adding Title IV (15 U.S.C. 2681-2692), entitled ``Lead Exposure Reduction.'' Section 402 of TSCA authorizes and directs EPA to promulgate final regulations governing lead-based paint activities in target housing, public and commercial buildings, bridges, and other structures. Those regulations are to ensure that individuals engaged in such activities are properly trained, that training programs are accredited, and that individuals engaged in these activities are certified and follow documented work practice standards. Under section 404 of TSCA, a State may seek authorization from EPA to administer and enforce its own lead- based paint activities program. On August 29, 1996 (61 FR 45777) (FRL-5389-9), EPA promulgated final TSCA section 402/404 regulations governing lead-based paint activities in target housing and child-occupied facilities (a subset of public buildings). Those regulations are codified at 40 CFR part 745, and allow both States and Indian Tribes to apply for program authorization. Pursuant to section 404(h) of TSCA, EPA is to establish the Federal program in any State or Tribal Nation without its own authorized program in place by August 31, 1998. States and Tribes that choose to apply for program authorization must submit a complete application to the appropriate Regional EPA Office for review. Those applications will be reviewed by EPA within 180 days of receipt of the complete application. To receive EPA approval, a State or Tribe must demonstrate that its program is at least as protective of human health and the environment as the Federal program, and provides for adequate enforcement (section 404(b) of TSCA, 15 U.S.C. 2684(b)). EPA's regulations (40 CFR part 745, subpart Q) provide the detailed requirements a State or Tribal program must meet in order to obtain EPA approval. A State may choose to certify that its lead-based paint activities program meets the requirements for EPA approval by submitting a letter signed by the Governor or Attorney General stating that the program meets the requirements of section 404(b) of TSCA. Upon submission of such certification letter, the program is deemed authorized. This authorization becomes ineffective, however, if EPA disapproves the application. Pursuant to section 404(b) of TSCA, EPA provides notice and an opportunity for a public hearing on a State or Tribal program application before authorizing the program. Therefore, by this notice EPA is soliciting public comment on whether West Virginia's application meets the requirements for EPA approval. This notice also provides an opportunity to request a public hearing on the application. If a hearing is requested and granted, EPA will issue a Federal Register notice announcing the date, time, and place of the hearing. EPA's final decision on the application will be published in the Federal Register. II. State Program Description Summary The following summary of the State of West Virginia's proposed program has been provided by the applicant: In September 1994, the Radiation, Toxics and Indoor Air Division created a Lead Program to provide environmental lead assessments in childhood lead poisoning cases, to: prepare grant submittals for Federal monies to support the program; promulgate legislation and regulations to meet Federal mandates; provide technical assistance to local and State agencies; and conduct lead hazard awareness and education outreach activities to inform the public of the dangers of lead poisoning. The Lead Program has received Federal funding for the past 4 years. During this time, the program has conducted or coordinated over 230 environmental lead assessments in childhood lead poisoning cases. The Program sponsored creation of a Lead Advisory Committee to assist in drafting proposed legislation to meet Federal mandates. The Program continues to provide lead hazard awareness materials and technical assistance to local and State agencies and the public. Beginning in January 1996, and also in January 1997, the Bureau for Public Health submitted proposed lead legislation for consideration by the Legislature. The proposed legislation would amend West Virginia's Health Code Chapter 16 by adding a new statute, Article 35, ``Lead Abatement Act.'' It was not until January 1998, that the Legislature acted upon the proposed legislation. The bill passed on March 14, 1998, and became effective June 15, 1998. Subsequent emergency-filed rules were filed with the West Virginia Secretary of State on June 16, 1998. West Virginia Code 16-35 requires lead abatement professionals conducting lead abatement in child-occupied buildings and target housing to be properly trained by an accredited training provider, certified by a State accredited examiner and licensed by the Bureau for Public Health. The licensing categories consist of lead abatement contractor, worker, supervisor, inspector, risk assessor and project designer. Lead abatement projects are restricted to target housing (pre-1978) or residences that have known lead hazards. Notification of abatement projects and elevated blood lead levels are required. Home owners removing and handling lead on their own premises are exempt from notification and licensing requirements. The Commissioner of the Bureau for Public Health will administer and enforce WV Code 16-35 and WV Title 64 Series 45, which includes: issuing licenses; assessing fees and fines; approving training providers; approving third party examiners; work practices; project clearance levels; and ordering reduction or abatement of lead hazards. In addition to the detailing of acceptable and non-acceptable abatement project work practices, the rules also incorporate by reference HUD and OSHA work practices and clearance levels. The proposed statute establishes a special revenue account for implementing the article, allows for [[Page 15748]] reciprocity with other States with similar programs as stringent as West Virginia's, and provides for enforcement with civil penalties from $250 to $5,000. The statute also creates a misdemeanor offense for violations, and upon conviction, a fine of not less than $250 nor more than $50,000 and/or confinement in the county or regional jail for not more than 1 year may be imposed. Fines imposed must be paid by violators within 30 days of receipt of notification, failure to do so constitutes a separate violation. When non-compliance with this article or promulgated rules occurs at abatement projects, a Notice of Violation will be issued directing compliance with the law. When warranted, Cease and Desist Orders may be issued on lead abatement projects, which if violated could result in civil penalties of not less than $10,000 nor more than $25,000 for initial violations and not less than $25,000 nor more than $50,000 for subsequent violations. The Bureau for Public Health is committed to assuring that the Federal mandates are met through effective implementation of WV Code 16-35 and Title 64 Series 45, and through implementation of a mandated public awareness and education program. The necessary infrastructure is in place at the local and State level to implement an EPA-approved program for the licensing and certification of lead abatement professionals. The Bureau for Public Health has contracted with local health agencies to provide environmental lead assessments, public outreach and education at the local level for the past 2 years. Also, it is felt that the successful operation of the asbestos certification and licensure program, since 1989, has prepared the Bureau to assume the responsibility of operating another environmental certification and licensure program. III. Federal Overfiling TSCA section 404(b) makes it unlawful for any person to violate, or fail, or refuse to comply with, any requirement of an approved State or Tribal program. Therefore, EPA reserves the right to exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to comply with, any requirement of an authorized State or Tribal program. IV. Public Record and Electronic Submissions The official record for this action, as well as the public version, has been established under docket control number ``PB-402404-WV.'' Copies of this notice, the State of West Virginia's authorization application, and all comments received on the application are available for inspection in the Region III office, from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The docket is located at the Environmental Protection Agency, Region III, Waste and Chemicals Management Division, Toxics Programs and Enforcement Branch (3WC33), 1650 Arch St., Philadelphia, PA. Electronic comments can be sent directly to EPA at: [email protected] Electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. Comments and data will also be accepted on disks in WordPerfect 5.1/6.1 or ASCII file format. All comments and data in electronic form must be identified by the docket control number ``PB-402404-WV.'' Electronic comments on this document may be filed online at many Federal Depository Libraries. Information claimed as CBI should not be submitted electronically. Commenters are encouraged to structure their comments so as not to contain information for which CBI claims would be made. However, any information claimed as CBI must be marked ``confidential,'' ``CBI,'' or with some other appropriate designation, and a commenter submitting such information must also prepare a nonconfidential version (in duplicate) that can be placed in the public record. Any information so marked will be handled in accordance with the procedures contained in 40 CFR part 2. Comments and information not claimed as CBI at the time of submission will be placed in the public record. V. Regulatory Assessment Requirements A. Certain Acts and Executive Orders EPA's actions on State or Tribal lead-based paint activities program applications are informal adjudications, not rules. Therefore, the requirements of the Regulatory Flexibility Act (RFA, 5 U.S.C. 601 et seq.), Executive Order 12866 (Regulatory Planning and Review, 58 FR 51735, October 4, 1993), and Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks, 62 FR 1985, April 23, 1997), do not apply to this action. This action does not contain any Federal mandates, and therefore is not subject to the requirements of the Unfunded Mandates Reform Act (2 U.S.C.1531-1538). In addition, this action does not contain any information collection requirements and therefore does not require review or approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). B. Executive Order 12875 Under Executive Order 12875, entitled, Enhancing Intergovernmental Partnerships (58 FR 58093, October 28, 1993), EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local or Tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If the mandate is unfunded, EPA must provide to OMB a description of the extent of EPA's prior consultation with representatives of affected State, local, and Tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local, and Tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant mandates.'' Today's action does not create an unfunded Federal mandate on State, local, or Tribal governments. This action does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this action. C. Executive Order 13084 Under Executive Order 13084, entitled, Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not issue a regulation that is not required by statute and that significantly or uniquely effects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the Tribal governments. If the mandate is unfunded, EPA must provide OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected Tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal [[Page 15749]] governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's action does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this action. Authority: 15 U.S.C. 2682, 2684. List of Subjects Environmental protection, Hazardous substances, Lead, Reporting and recordkeeping requirements. Dated: March 23, 1999. W. Michael McCabe, Regional Administrator, Region III. [FR Doc. 99-8087 Filed 3-31-99; 8:45 am] BILLING CODE 6560-50-F