[Federal Register Volume 64, Number 169 (Wednesday, September 1, 1999)] [Notices] [Pages 47807-47810] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 99-22748] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [PB-402404-IL; FRL-6087-1] Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities; State of Illinois' Authorization Application AGENCY: Environmental Protection Agency (EPA). ACTION: Notice; request for comments and opportunity for public hearing. ----------------------------------------------------------------------- SUMMARY: On August 19, 1998, the State of Illinois submitted a partial 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). On April 16, 1999, Illinois submitted supplemental application materials for self- certification for interim approval. This notice announces the receipt of Illinois' application, provides a 45-day public comment period, and provides an opportunity to request a public hearing on the application. Illinois has provided a certification that its program meets the requirements for interim approval of a State program under TSCA section 404 for a period of time up to 3 years. Therefore, pursuant to TSCA section 404, the program is deemed authorized as of the date of submission. If EPA finds that the program does not meet the requirements for approval of a State program, EPA will disapprove the program, at which time a notice will be issued in the Federal Register and the Federal program will take effect in Illinois. DATES: Comments on the authorization application must be received on or before October 18, 1999. Public hearing requests must be received on or before September 16, 1999. ADDRESSES: Submit all written comments and/or requests for a public hearing identified by docket number PB-402404-IL (in duplicate) to: Environmental Protection Agency, Region V, DT-8J, 77 West Jackson Blvd., Chicago, IL 60604. 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: Marlyse Wiebenga, Project Officer, Environmental Protection Agency, Region V, DT-8J, 77 West Jackson Blvd., Chicago, IL 60604. Telephone: (312) 886-4437. SUPPLEMENTARY INFORMATION: I. Background On October 28, 1992, the Housing and Community Development Act of 1992, Public Law 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. 2681-92), 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, 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 that does not have 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 [[Page 47808]] 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 until such time as EPA disapproves the program application or withdraws the program authorization. Illinois has provided a self-certification letter stating that its program meets the requirements for authorization of a State program under section 404 of TSCA and has requested interim approval of the compliance and enforcement program portion of the Illinois Lead Program. Therefore, pursuant to section 404, the program is deemed authorized as of the date of submission (i.e., April 16, 1999). If EPA finds that the program does not meet the requirements for interim authorization of a State program, EPA will disapprove the program application, issue a notice in the Federal Register, and establish a Federal program in Illinois. Section 404(b) of TSCA provides that EPA may approve a program application only after providing notice and an opportunity for a public hearing on the application. Therefore, by this notice EPA is soliciting public comment on whether Illinois' 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 Illinois' proposed program has been provided by the applicant. The State of Illinois Department of Public Health (the Department) implements the Lead Poisoning Prevention Act (Act), 410 Illinois Consolidated Statutes 45/1-17, and the Lead Poisoning Prevention Code (Code), 77 Illinois Administrative Code (IAC) section 845, promulgated pursuant to the Act, in order to carry out lead abatement programs that are designed to diminish the incidence of lead intoxication. The primary goal of the Department's Lead Abatement Program is to protect the public's health, safety, and environment by identifying lead- bearing substances which may be the source of exposure of lead to children, and to assure that lead hazards are managed, mitigated, or abated through the administration and enforcement of the Act and the Code, originally passed in 1973 and 1976 respectively, were last amended in August 1998. The Act enabled the Department to require provisions for licensing individuals and firms engaged in lead abatement activities, approving training course providers, and establishing appropriate work practice standards in accordance with the Federal model State plan for lead. Individuals seeking licensure by the State of Illinois in the lead abatement industry as a worker, contractor/supervisor, inspector, or risk assessor must first make application to the Department. The application requires proof that the individual has successfully completed an appropriate lead training course. The course (and the course provider) chosen by the applicant, must be one that is approved by the Department and provides training comparable to 40 CFR 745.225 as required by section 845.28 of the Code, 77 IAC section 845.28. All lead licenses expire annually. Application for renewal includes the successful completion of an approved refresher course that is specific to the lead abatement field of interest every 3 years. Individuals or firms can also apply for a lead abatement contractor's license. This requires proof that: the applicant holds a certificate of financial responsibility in the form of liability insurance, letter of credit, or a bond for at least $250,000 that specifically covers lead work; the applicant has written standard operating procedures which include medical monitoring and a respirator training program specified in the OSHA regulations (which are incorporated by reference in section 845.12 of the Code); the applicant provides a detailed description of all legal proceedings or claims concerning any lead mitigation activities filed against the applicant; and the applicant agrees to notify the Department before beginning any lead abatement project, as required by the Code. Although contractor applicants are not required to take a lead abatement course, they need to assure the Department that all lead abatement workers will have a valid Illinois lead worker license, and that at least one supervisor will have a valid Illinois contractor/ supervisor license. The supervisor must oversee the project and be on site during the entire project. A contractor's license must be renewed annually. Reciprocity requests for any lead licenses from any State or Tribe may be submitted for review. If upon review of the applicant's application it is determined that the licensing State's lead program is at least as protective as the Illinois program, the Department will issue an appropriate license. Lists of all people conducting licensed lead abatement activities are maintained by the Department and are available to the public upon request. Training course providers seeking approval from the State of Illinois for initial and refresher courses for lead worker, contractor/ supervisor, inspector, and risk assessor disciplines must first make application to the Department. The application packet includes a checklist of materials to be submitted along with other requirements that must be satisfied before approval can be granted. All approvals are renewed annually. Audits of courses are completed by Department staff, and the training course provider is notified as to the results of the audit, the deficiencies observed, and whether or not the course was determined to be satisfactory or not satisfactory. Training courses found not satisfactory are issued a notice to correct the deficiencies together with a written explanation of the items that the Department expects the provider to correct before the next training course is scheduled. A list of approved training course providers is maintained by the Department and is available to the public. Illinois does not require a licensed project designer as yet. However, additional requirements are part of the supervisor training to prepare them for large-scale lead abatement projects as cited in 40 CFR 745.225(d)(4). The Department has statutory authority to adopt rules for lead-based paint activities in public and commercial buildings. Where EPA provides guidance under 40 CFR 745.230, the Department will establish rules which will govern such activities as necessary to maintain authorization. Work practice standards are established in the Code and in the policies and procedures of the Department. The Department has incorporated, at section 845.12(a)(2) of the Code, the Department of Housing and Urban Development (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (June 1995) to enhance the work and performance standards throughout the Code. All inspections and risk assessments are completed only by individuals holding an appropriate inspector or risk assessor license issued by the Department. Inspections and risk assessments are to be performed per the incorporated HUD guidelines. Lead abatement activities are performed only [[Page 47809]] by individuals or firms who hold the appropriate license issued by the Department. Mitigation and abatement activities which involve the destruction or disturbance of any leaded surface is the responsibility of the licensed lead abatement contractor. The contractor has the responsibility to utilize documented methodologies and state of the art procedures that ensure that the work is performed effectively and in a manner that promotes occupant protection and worker safety. Complaint investigations, inspections, course audits and enforcement activities are accomplished by the Department's staff located in the Central and Regional Offices and through county delegate agencies. Central Office staff provide for the licensing of people who conduct all lead-based paint activities in the State. One administrative assistant, one office administrator and three office associates conduct the licensing portion of the program with one office associate dedicated to the Illinois Third Party Examination process. The third party examination is administered by the Department's Training Manager. A lead program staff person conducts reviews of ongoing program matters and also serves as the Department's Radiation Safety Officer. A public service administrator began program manager duties August 1, 1998, and will be directly responsible for the day-to- day lead program activities as well as the revision of the Department's policies to maintain state of the art procedures. Eight regional staff conduct inspections on a daily basis as well as 90 licensed risk assessors who work within the lead program as the Department's delegate agents under contract to perform the necessary inspections and investigations in their county or municipality to determine the source of environmental lead hazards. Overall program direction is covered by a senior public service administrator in the central office. Funding is established through a mandate that provides a dedicated State fund for the lead program. Revenue from licensing and training course provider's fees are also directed to that fund. The Department's policy and procedure manual provides protocol to achieve all the necessary aspects of the Illinois Lead Poisoning Prevention Program. In it, details of activities to be implemented, standard enforcement procedures with examples of all required letters may be found. Enforcement is accomplished through administrative procedures which have been referenced in the Act under section 410 ILCS 45/13.1 and in the Code. Violations of the Act subject the violator to a Class A misdemeanor. Each day the violation occurs may subject the violator to a $1,000 fine, as well as incarceration in the county jail for 6 months. The Department participated in Environmental Justice grants from EPA to provide education and information to people who would not receive information about the hazards of lead through normal media. Not-for-profit associations are provided grant dollars to seek out parents of children who are likely to be exposed to lead and may not be aware of lead hazards or what to do to prevent lead poisoning. Additionally, the Department or its agents provide consultative services and screen all appropriate citizens of Illinois for lead poisoning. III. Issues Upon Which EPA Requests Public Comment EPA requests comment on whether Illinois' application meets all statutory and regulatory requirements for EPA approval. EPA especially solicits comments on whether and how Illinois' environmental audit privilege statute, (415 Illinois Compiled Statutes 5/52.2), affects Illinois' ability to meet the pertinent requirements. IV. 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. V. 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-IL. Copies of this notice, the State of Illinois' authorization application, and all comments received on the application are available for inspection in the Region V office, from 8:30 a.m. to 5 p.m., Monday through Friday, excluding legal holidays. The docket is located at the Toxics Program Section, Environmental Protection Agency, Region V, 8th floor, 77 West Jackson Blvd., Chicago, IL. Commenters are encouraged to structure their comments so as not to contain information for which Confidential Business Information (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. 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-IL. Electronic comments on this document may be filed online at many Federal Depository Libraries. Information claimed as CBI should not be submitted electronically. VI. Regulatory Assessment Requirements 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.), the Congressional Review Act (5 U.S.C. 801 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. In addition, 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) or Executive Order 12875 (``Enhancing the Intergovernmental Partnership,'' 58 FR 58093, October 28, 1993). Finally, this action does not contain any information collection requirements and therefore does not require review or approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). A. 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 [[Page 47810]] provide to the Office of Management and Budget (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 unfunded 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. B. 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, that significantly or uniquely affects 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 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 any 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: July 13, 1999. David A. Ullrich, Acting Regional Administrator, Region V. [FR Doc. 99-22748 Filed 8-31-99; 8:45 am] BILLING CODE 6560-50-F