![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities; State of Colorado Lead-Based Paint Activities Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: March 6, 2002 (Volume 67, Number 44)]
[Notices]
[Page 10205-10208]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06mr02-57]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[PB-402404-CO/B; FRL-6823-2]
Lead-Based Paint Activities in Target Housing and Child-Occupied
Facilities; State of Colorado Lead-Based Paint Activities Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; requests for comments and opportunity for public
hearing.
-----------------------------------------------------------------------
SUMMARY: On September 28, 2001, the State of Colorado submitted a self-
certification letter stating that Colorado's Lead-Based Paint Abatement
Program is at least as protective of human health and the environment
as the Federal program under section 402 (15 U.S.C. 2682) of the Toxic
Substances Control Act (TSCA). Colorado certifies that its program
meets the requirements for approval of a State program under section
404 of TSCA and that Colorado has the legal authority and ability to
implement the appropriate elements necessary to enforce the program.
Therefore, pursuant to 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 be established. Today's notice
announces the receipt of Colorado's application, provides a 45-day
public comment period, and an opportunity to request a public hearing
on the application.
DATES: Comments on the application must be received on or before April
22, 2002.
ADDRESSES: Submit all written comments and/or requests for a public
hearing identified by docket number PB-402404-CO/B (in duplicate) to:
Amanda Hasty, Environmental Protection Agency, Region VIII, 8P-P3T, 999
18th St., Suite 300, Denver, CO 80202-2466
Comments, data, and requests for a public hearing may also be
submitted electronically to: hasty.amanda@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, 999 18th St., Suite 300, 8P-P3T, Denver, CO 80202-2466;
telephone: 303-312-6021; e-mail address combs.dave@epa.gov.
[[Page 10206]]
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. The Act
amended TSCA (15 U.S.C. 2601 et seq.) by adding Title IV (15 U.S.C.
2681-92), titled 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. 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). These 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 (15 U.S.C. 2684), a State or Indian Tribe may seek
authorization from EPA to administer and enforce its own lead-based
paint activities program.
States and Tribes that choose to apply for program authorization
must submit a complete application to the appropriate Regional EPA
Office for review. EPA will review those applications 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 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 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 withdrawals the application.
On December 21, 1998, the State of Colorado submitted an
application for EPA interim approval to administer and enforce the
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 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 possesses the legal
authority and ability to implement the appropriate elements necessary
to receive interim enforcement approval. Based upon the State's self-
certification, Lead-Based Paint Activities Interim Program
Authorization was granted to the State of Colorado effective on
December 21, 1998.
On September 7, 1999 (64 FR 48618) (FRL-6099-1), EPA published a
notice in the Federal Register granting interim-approval of the
Colorado TSCA Section 402/404 Lead-Based Paint Accreditation and
Certification Program. Full-approval was not granted at the time due to
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.). This statute
impaired the State's ability to fully administer and enforce the lead-
based paint program. Interim compliance and enforcement approval was
granted to provide the State the opportunity to address problems and
issues associated with its Environmental Audit Privilege and Penalty
Immunity statute. During the 2000 Legislative Session, the Colorado
State Legislature amended the State's Environmental Audit Privilege and
Immunity Statute.
On May 30, 2000, EPA and the State of Colorado signed a Memorandum
of Agreement resolving all of the issues with the State's Environmental
Audit Privilege and Immunity statute. Based upon the revised statute
and the MOA between Colorado and EPA, the legal barriers for final EPA
approval of Colorado's Lead Based Paint Abatement and Certification
Program have been removed.
On September 28, 2001, Colorado provided a self-certification
letter from the Governor that its program meets the requirements for
authorization of a state program under section 404 of TSCA. Therefore,
pursuant to section 404, the program is deemed authorized as of the
date of submission.
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. If EPA finds that the program does
not meet the requirements for authorization of a state program, EPA
will disapprove the program application, at which time a notice will be
issued in the Federal Register and the Federal program will be
established in Colorado.
II. State Program Description Summary
The following is a summary of the State of Colorado's Lead-Based
Paint Abatement Regulation Number 19, and is intended to meet the
requirement of 40 CFR 745.324(a)(3)(iii). The Agency responsible for
administering and enforcing the program is the Air Pollution Control
Division, Colorado Department of Public Health and Environment, of the
State of Colorado. The official at the Agency designated as the point
contact with US 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. There is only one 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. If the Division approves such a delegation to a
local health or building department, the Division shall be the primary
agency responsible for overseeing and coordinating administration and
enforcement of the program and Mr. Fine shall serve as the primary
contact with US 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
performs such a delegation, it will submit to EPA the required
information as detailed in 40 CFR 745.324(b)(1)(iii).
A. Program Elements
The Division has followed EPA's regulation at 40 CFR part 745 and
the State Legislature's statutory requirements to develop Regulation
Number 19 to be consistent with the Federal program and to be
acceptable to
[[Page 10207]]
EPA. Implementation of Regulation Number 19 is an appropriate step to
begin to protect children from exposure to lead as a result of lead-
based paint abatement in ``target housing'' and ``child-occupied
facilities.'' Regulation Number 19 will also 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
certification of persons and companies involved in inspection, risk
assessment, planning, project design, supervision, or conduct of the
abatement of surfaces containing lead-based paint. Regulation Number 19
has a training and certification program that is nearly identical to
EPA's program. Training is to be provided by private contractors. In
order to facilitate the scheduling of course audits by the Division,
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 on site during all work site preparation,
abatement, and during post-abatement cleanup of the work areas.
The regulation 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
onsite preparation requirements. The State is in the process of
revising Colorado Regulation No. 19 in order to incorporate the new EPA
403 Rule. The tentative completion date is late summer of 2002.
The program includes requirements for fees for certification of
persons conducting lead abatement services, for any necessary
monitoring of such persons to ensure compliance with Regulation No. 19
and for approval of persons or companies involved in the training or
accreditation of workers.
The State of Colorado's program provides adequate enforcement
fulfilling the criteria in 40 CFR 745.324(e)(2).
The Division has legal authority and ability to immediately
implement the standards and requirements of Regulation No. 19. The
Division has authority to immediately commence an enforcement action
for violation of lead-based paint activities and requirements,
including: Accreditation of training programs; certification of
individuals; standards for the conduct of lead-based paint abatement
activities; and requirements that regulate the conduct of pre-
renovation notification activities.
The Division has authority to enter, through consent, warrant, or
other authority, premises or facilities where lead-based activities may
occur for purposes of conducting inspections. 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.
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. The Division has authority to utilize enforcement
remedies, 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
The State of Colorado's lead-based paint abatement program includes
the necessary performance elements as required pursuant to 40 CFR
section 745.327(c). The Division has in place a training program which
teaches inspectors case development procedures, proper maintenance of
case files, violation discovery, methods of obtaining consent, evidence
gathering, preservation of evidence, and chain of custody and sampling
procedures. 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 has the ability to target inspections
to ensure compliance with Regulation No. 19, including a notification
requirement for the commencement of abatement activities. The Division
has more than 15 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 (40 CFR 745.327(a)(2)(i)(B))
Richard Fatur, an Environmental Protection Specialist, is employed
full time to assist with the development and maintenance of Colorado's
LBP Program. The States are currently in the process of hiring another
FTE to assist with the program. Four additional Environmental
Protection Specialists in the Asbestos Program, trained as Lead-Based
Paint Inspectors & Risk Assessors or Supervisors, provide support to
the lead-based paint program as needed.
While the 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 may
not generate sufficient revenues for several more years to fully fund
the program. In consideration of this, the Division will be submitting
a grant application request to EPA for supplemental funding until such
time as the program can operate in the black based 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.
[[Page 10208]]
III. Federal Overfiling
TSCA section 404(b) (15 U.S.C. 2684(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-CO/B. 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, and 8P-P3T, 999 18th Street, Suite 300, Denver CO 80202.
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:
hasty.amanda@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/B. Electronic
comments on this document may be filed online at many Federal
Depository Libraries. Information claimed as CBI should not be
submitted electronically.
V. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before certain actions may take effect, the
agency promulgating the action must submit a report, which includes a
copy of the action, to each House of the Congress and to the
Comptroller General of the United States. EPA will submit a report
containing this action and other required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller General
of the United States prior to publication of this document in the
Federal Register. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects
Environmental protection, Hazardous substances, Lead, Reporting and
recordkeeping requirements.
Dated: February 20, 2002.
Jack McGraw,
Acting Regional Administrator, EPA Region VIII.
[FR Doc. 02-5190 Filed 3-5-02 8:45 am]
BILLING CODE 6560-50-S