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Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities; State of Colorado's Authorization Application
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 13, 1999 (Volume 64, Number 70)]
[Notices]
[Page 18017-18020]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ap99-73]
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ENVIRONMENTAL PROTECTION AGENCY
[PB-402404-CO; FRL-6060-6]
Lead-Based Paint Activities in Target Housing and Child-Occupied
Facilities; State of Colorado's Authorization Application
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; request for comments and opportunity for public
hearing.
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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). This notice
announces EPA's receipt of Colorado's application, a 45-day public
comment period, and an opportunity to request a public hearing on the
application. Colorado has provided a certification stating that its
program meets the requirements for approval of a State program under
section 404 of TSCA. Therefore, pursuant to section 404 of
[[Page 18018]]
TSCA, 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 a Federal program
will be established to cover Colorado.
DATES: Comments on the authorization application must be received on or
before May 28, 1999.
ADDRESSES: Submit all written comments and/or requests for a public
hearing identified by docket number PB-402404-CO (in duplicate) to:
Bruce Cooper, Environmental Protection Agency, Region VIII, 8P-P3-T,
999 18th St., Suite 500, Denver, CO 80202-2466.
Comments, data, and requests for a public hearing may also be
submitted electronically to: cooper.bruce@epa.gov. Follow the
instructions under Unit V. of this document. No information claimed to
be Confidential Business Information (CBI) should be submitted through
e-mail.
FOR FURTHER INFORMATION CONTACT: Dave Combs, Regional Toxics Team
Leader, Environmental Protection Agency, Region VIII, 8P-P3-T, 999 18th
St., Suite 500, Denver, CO 80202-2466. Telephone: 303-312-6021; e-mail
address: combs.dave@epa.gov.
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 Subchapter 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. These
regulations are to ensure that individuals engaged in such activities
are properly trained (under accredited programs) and certified and that
they 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, 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) (61 FR 45777)
(FRL-5389-9). 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 a Federal
program in any State or Tribal Nation without its own authorized
program in place by August 31, 1998.
Any State or Tribe choosing 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 that it provides for adequate
enforcement (see section 404(b) of TSCA). EPA's regulations at 40 CFR
part 745, subpart Q, provide the detailed requirements a State or
Tribal program must meet in order to obtain EPA authorization.
A State may choose to certify that its lead-based paint activities
program meets the requirements for EPA authorization by submitting a
letter signed by the Governor or Attorney General and stating that the
State's 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. A program is not, however,
deemed authorized to the extent that the State may assert jurisdiction
over Indian Country, including non-member fee lands within an Indian
reservation (see 40 CFR 745.324(d)(2)).
Colorado 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 Colorado Lead
Program. Therefore, pursuant to section 404, the program is deemed
authorized as of the date of submission (i.e., December 21, 1998). If
EPA finds that the program does not meet the requirements for
authorization of a State program, EPA will disapprove the program
application, issue a notice in the Federal Register, and establish a
Federal program in Colorado.
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 Colorado's application meets the requirements
for EPA approval. This notice also provides an opportunity to request a
public hearing on the application.
II. State Program Description Summary
The following is a summary of Colorado's Lead-Based Paint Abatement
Regulation Number 19, based on statements in Colorado's December 21,
1998 application.
The State agency responsible for administering and enforcing the
program is the Air Pollution Control Division (the ``Division''), which
is part of the Colorado Department of Public Health and Environment.
The Division official designated as the point contact with EPA is Mr.
Steven Fine, Supervisor of the CFC, Indoor Air, Asbestos, and Lead-
Based Paint Abatement Unit, Air Pollution Control Division. Mr. Fine
can be reached by telephone at (303) 692-3164 or by mail at APCD-SS-B1,
4300 Cherry Creek Drive South, Denver, CO 80246-1530.
The Division is the only Colorado State agency responsible for
administering and enforcing the Lead-Based Paint Abatement program.
However, pursuant to section 25-7-1104(1)(b)(2), C.R.S., the Division
may delegate the ``implementation or enforcement'' of standards to
local health or building departments, as appropriate, if requested by
such a local department. Such standards regarding such delegations are
part of Regulation No. 19, which is included in Colorado's application.
If the Division approves such a delegation to a local health or
building department, the Division shall remain the primary agency
responsible for overseeing and coordinating administration and
enforcement of the program and Mr. Steven D. Fine shall remain as the
primary contact with EPA.
At this time, there is no delegation to a local health or building
department; therefore, the Division has not developed a description of
the functions to be performed by each agency. If the Division ever
makes such a delegation, it will submit to EPA the required information
as detailed in 40 CFR 745.324(b)(1)(iii).
A. Program Elements
Regulation Number 19 is intended to protect children from exposure
to lead as a result of lead-based paint abatement in ``target housing''
and ``child-occupied facilities'' and to achieve uniformity in the
regulation of lead abatement practices and in the qualifications for
and certification of persons who perform such abatement.
Regulation Number 19 includes procedures for training and certifing
persons and companies involved in lead-based paint inspection, risk
assessment, planning, project design, supervision, or abatement.
Regulation
[[Page 18019]]
Number 19 has a training and certification program that is nearly
identical to EPA's program. Training is to be provided by private
contractors. To facilitate the Division's course audit schedules,
Regulation Number 19 includes an additional requirement that training
course providers must receive the Division's approval or acknowledgment
of each course prior to offering the course.
Regulation Number 19 includes work practice standards and practices
for lead-based paint abatement. These standards include EPA's work
practice standards and work practice measures that an abatement
contractor must include in an occupant protection plan and comply with
before, during, and after abatement. The program also includes a
requirement, similar to HUD's requirement, that a contractor must
sample the soil to ensure that the soil is not contaminated. The
sampling would be required unless the contractor is removing or
permanently covering the contaminated soil. Colorado's program requires
a certified supervisor to be onsite during all work site preparation,
abatement, and during post-abatement cleanup of the work areas.
Regulation Number 19 includes procedures for the approval of
persons or companies who provide training or accreditation of workers,
supervisors, inspectors, risk assessors, or project designers
performing lead-based paint activities in ``target housing'' or
``child-occupied facilities.''
Also included in Regulation Number 19 are procedures for the
Division notifying appropriate persons regarding lead-based paint
projects in ``target housing'' or ``child-occupied facilities.''
Colorado's program requires a contractor to notify the Division 10
working days prior to the commencement of lead-based paint abatement
activities if the amount of lead-based paint, lead contaminated soil,
or lead contaminated dust is greater than 2 square feet on interior
surfaces or 10 square feet on exterior surfaces. This time period for a
notification is necessary because of document review and inspection
planning. The regulation includes de minimis levels that trigger the
notification requirement based upon proposed EPA-identified triggers
for risk assessment requirements and HUD's trigger levels for on-site
preparation requirements.
Colorado's program includes requirements for fees for certification
of persons conducting lead abatement services, for monitoring to ensure
compliance with Regulation No. 19, and for approval of persons or
companies involved in the training or accreditation of workers.
Colorado has indicated that the Division has legal authority and
ability to implement the standards and requirements of Regulation No.
19 immediately and that the Division has authority to commence an
enforcement action immediately for any violation of lead-based paint
activities and requirements, including accreditation requirements for
training programs, certification requirements for individuals,
standards for conducting lead-based paint abatement activities, and
pre-renovation notification requirements.
Colorado has further stated that the Division has authority to
enter premises or facilities where lead-based activities violations may
occur for purposes of conducting inspections, through consent, warrant,
or other authority. Colorado's application indicates that the Division
has authority to enter premises or facilities where those engaged in
training for lead-based paint activities conduct business, to enter a
renovator's place of business for the purposes of enforcing a pre-
renovation program, and to take samples and review records as part of
the lead-based paint activities inspection process.
Finally, Colorado has stated that the Division has available to it
a diverse and flexible array of enforcement remedies that apply to the
State's lead-based paint abatement program, including requests for
information, warning letters, and notices of violation; administrative
and civil actions, including authority to suspend, revoke, or modify
accreditation or certification; and criminal sanctions.
B. Performance Elements
Colorado has also indicated that its lead-based paint abatement
program includes the necessary performance elements as required
pursuant to 40 CFR 745.327(c). The Division will implement a process
for training enforcement and inspection personnel to ensure that such
personnel are well trained. The Division already has in place a
training program to teach inspectors procedures for developing cases,
properly maintaining case files, discovering violations, obtaining
consent to inspections, and gathering and preserving evidence. The
Division requires that its inspectors attend continuing education
courses.
The Division has in place an enforcement tracking data base that
allows inspectors to process and react to tips and complaints and track
enforcement cases. The Division can target inspections to ensure
compliance with Regulation No. 19 and can obtain and use notifications
of abatement activities.
The Division has more than 12 years of experience in implementing a
compliance monitoring and enforcement program in asbestos. Elements of
the asbestos program will allow for a smooth transition to lead-based
paint abatement compliance monitoring and enforcement that will result
in correction of violations found during either routine inspections or
those conducted in response to tips, complaints and emergencies.
C. Statement of Resources
The Division currently employs five persons who have been involved,
in varying degrees over the past few years, in developing the lead-
based paint abatement program. The Division is hiring two FTEs to work
full time in the lead-based paint abatement program. They will be
involved in activities such as conducting lead-based paint abatement
inspections, processing notifications, certifying individuals and
firms, and conducting course audits.
While the Colorado Legislature did grant the Division authority to
assess fees for certain aspects of the Lead Program, the level of
abatement activity and numbers of individuals and firms seeking
certification is unknown and may not generate sufficient revenues in
the first 2 to 3 years of the program to fund the program fully. In
consideration of this, the Division will be submitting a grant
application request to EPA for supplemental funding until the program
can operate solely on revenues collected.
D. Summary on Progress and Performance
The Division agrees to submit to EPA a Summary on Progress and
Performance of lead-based paint abatement compliance and enforcement
activities.
III. Issues Upon Which EPA Requests Public Comment
EPA requests comment on whether Colorado's application meets all
statutory and regulatory requirements for EPA approval. EPA especially
solicits comments on whether and how Colorado's environmental audit
privilege and penalty immunity statute, sometimes known as S.B. 94-139,
affects Colorado's ability to meet the pertinent requirements. S.B. 94-
139 has been codified at sections 13-25-126.5, 13-90-107(1)(j), and 25-
1-114.5, C.R.S.
IV. Federal Overfiling
TSCA section 404(b), makes it unlawful for any person to violate,
or
[[Page 18020]]
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-CO. Copies
of this notice, the State of Colorado's authorization application, and
all comments received on the application are available for inspection
in the Region VIII office, from 8 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays. The docket is located at EPA, Region
VIII, 8P-P3T, 999 18th St., Suite 500, Denver, CO.
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.
Electronic comments can be sent directly to EPA at:
cooper.bruce@epa.gov. 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-CO. 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
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.
Authority: 15 U.S.C. 2682, 2684.
List of Subjects
Environmental protection, Hazardous substances, Lead, Reporting and
recordkeeping requirements.
Dated: March 30, 1999.
William Yellowtail,
Regional Administrator, Region VIII.
[FR Doc. 99-9207 Filed 4-12-99; 8:45 am]
BILLING CODE 6560-50-F