[Federal Register Volume 64, Number 172 (Tuesday, September 7, 1999)]
[Notices]
[Pages 48618-48619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23195]
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ENVIRONMENTAL PROTECTION AGENCY
[PB-402404-CO/A; FRL-6099-1]
Lead-Based Paint Activities in Target Housing and Child-Occupied
Facilities; State of Colorado Interim Approval of Lead-Based Paint
Activities Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; interim approval of the Colorado TSCA Section 402/404
Lead-Based Paint Accreditation and Certification Program.
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SUMMARY: On December 21, 1998, the State of Colorado 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). Colorado
provided a self-certification letter stating that its program is at
least as protective of human health and the environment as the Federal
program and it has the legal authority and ability to implement the
appropriate elements necessary to receive interim enforcement approval.
On April 13, 1999, EPA published in the Federal Register (64 FR 18017)
(FRL-6060-6) a notice announcing receipt of the State's application and
requesting public comment and/or opportunity for a public hearing on
the State's application. The Agency did not receive any comments
regarding any aspect of Colorado's program and/or application. Today's
notice announces the approval of Colorado's application, and the
authorization of the Colorado Department of Public Health and
Environment, Air Pollution Control Division's Lead-Based Paint
Activities Program to apply in the State of Colorado effective December
21, 1998, in lieu of the corresponding Federal program under section
402 of TSCA. This authorization provides interim approval for the
compliance and enforcement program portion of Colorado's lead-based
paint program. All elements for final compliance and enforcement
program approval must be fully implemented no later than December 21,
2001.
DATES: Based upon the State's self-certification, Lead-Based Paint
Activities Program authorization was granted to the State of Colorado
effective on December 21, 1998. Interim approval for the compliance and
enforcement portion of the program will expire on December 21, 2001.
FOR FURTHER INFORMATION CONTACT: Dave Combs, Regional Toxics Team
Leader, Environmental Protection Agency, Region VIII, 999 18th St.,
Suite 500, 8P-P3-T, Denver, CO 80202-2466. Telephone: 303-312-6021; e-
mail address:[email protected].
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 (15 U.S.C. 2682) authorizes and directs EPA to
promulgate final regulations governing lead-based paint activities in
target housing, public and commercial buildings, bridges and other
structures. Under section 404 (15 U.S.C. 2684), 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 (40 CFR part 745) governing
lead-based paint activities in target housing and child-occupied
facilities. States and Tribes that choose to apply for program
authorization must submit a complete application to the appropriate
Regional EPA Office for review. 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.
Under these regulations with regard to interim compliance and
enforcement approval (40 CFR 745.327(a)(1)), a State must demonstrate
that it has the legal authority and ability to immediately implement
certain elements, including legal authority for accrediting training
providers, certification of individuals, work practice standards and
pre-renovation notification, authority to enter, and flexible remedies.
In order to receive final approval, the state must be able to
demonstrate that it is able to immediately implement the remaining
performance elements, including training, compliance assistance,
sampling techniques, tracking tips and complaints, targeting
inspections, follow up to inspection reports and compliance monitoring
and enforcement.
The State of Colorado's environmental audit privilege and penalty
immunity statute, sometimes known as S.B. 94-139 (codified at sections
13-25-126.5, 13-90-107(1)(j), and 25-1-114-5, C.R.S.) may impair the
State's ability to fully administer and enforce the lead-based paint
program. Interim compliance and enforcement approval will provide the
State the opportunity to address problems and issues associated with
the State's environmental audit privilege and penalty immunity law as
well as the development and implementation of required performance
elements under 40 CFR part 745.327(c). EPA will work with the State
during this interim approval period to remedy any deficiencies in its
laws or implementation of the required performance elements. Interim
approval of the compliance and enforcement program portion of the
State's program may be granted only once. EPA's interim approval of the
compliance and enforcement program portion of the State's program
expires on December 21, 2001.
If the State does not meet the requirements for final approval of
its compliance and enforcement program by December 21, 2001, EPA may be
compelled to initiate the process to withdraw Colorado's interim
authorization pursuant to 40 CFR part 745.324(i). If Colorado has made
modifications to it's Audit Law necessary to meet the minimum
requirements of its Federally authorized environmental programs, this
law will no longer present a barrier to final approval of its lead-
based paint activities program.
In order to maintain authorization, all program and enforcement
elements, including all reporting requirements, must be met pursuant to
the terms identified in Colorado's application. This approval does not
authorize the State of Colorado to implement and/or enforce a lead-
based paint activities program in Indian Country.
II. Federal Overfiling
TSCA section 404(b), makes it unlawful for any person to violate,
or
[[Page 48619]]
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.
III. Withdrawal of Authorization
Pursuant to TSCA section 404(c), the Administrator may withdraw a
State or Tribal lead-based paint activities program authorization,
after notice and opportunity for corrective action, if the program is
not being administered or enforced in compliance with standards,
regulations, and other requirements established under the
authorization. The procedures EPA will follow for the withdrawal of an
authorization are found at 40 CFR 745.324(i).
IV. 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.), 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. 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 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.
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,
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.
List of Subjects
Environmental protection, Hazardous substances, Lead, Reporting and
recordkeeping requirements.
Dated: August 26, 1999.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
[FR Doc. 99-23195 Filed 9-3-99; 8:45 am]
BILLING CODE 6560-50-F