[Federal Register Volume 63, Number 191 (Friday, October 2, 1998)]
[Notices]
[Pages 53051-53055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26455]


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ENVIRONMENTAL PROTECTION AGENCY

[PB-402404-US/PB-402404-LS; FRL-6018-9]


Lead-Based Paint Activities in Target Housing and Child-Occupied 
Facilities; Upper Sioux Community's and Lower Sioux Community's 
Authorization Application

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for comments and opportunity for public 
hearing.

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SUMMARY: On April 14, 1998, both the Upper Sioux Community and Lower 
Sioux Community submitted applications 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 the Upper Sioux Community's application and 
the Lower Sioux Community's application, and provides a 45-day public 
comment period and an opportunity to request a public hearing on each 
application.

DATES: Submit comments on the authorization application(s) on or before 
November 16, 1998. Public hearing requests must be submitted on or 
before October 19, 1998.

ADDRESSES: Submit (in duplicate) all written comments and/or requests 
for a public hearing identified by docket control number ``PB-402404-
US'' for

[[Page 53052]]

Upper Sioux Community and ``PB-402404-LS for Lower Sioux Community to: 
Environmental Protection Agency, Region V, DT-8J, 77 West Jackson 
Blvd., Chicago, IL 60604, e-mail: [email protected].
    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 Confidential Business 
Information (CBI) should be submitted through e-mail.

FOR FURTHER INFORMATION CONTACT: Emma Avant, Project Officer, 
Environmental Protection Agency, Region V, DT-8J, 77 West Jackson 
Blvd., Chicago, IL 60604, telephone: (312) 886-7899, e-mail: 
[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. 
26810-92), entitled ``Lead Exposure Reduction.''
    Section 402 of TSCA authorizes and directs EPA to promulgate final 
regulations governing lead-based paint activities 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 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 final 
program authorization, 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 et seq.). 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.

II. Tribal Program Description Summaries

A. Upper Sioux Community

    The Upper Sioux Community Board of Trustees has adopted the 
ordinance entitled ``Upper Sioux Lead Ordinance'' in order to provide 
clear and specific guidance in the assessment, inspection, pre-
renovation notification and abatement of lead-based paint activities on 
the Upper Sioux Reservation. Penalties for non-compliance are 
established. The ordinance targets all buildings located on the Upper 
Sioux Reservation.
    The ordinance is designed to be at least as protective as the 
Federal law and provide for adequate enforcement of all provisions 
through a schedule of flexible remedies. This is accomplished through a 
combination of Tribal specific requirements (training accreditation) 
that are identical to the Federal regulations and through incorporation 
by reference of other required Federal elements (certification of 
individual, workplace standards and pre-renovation notification 
activities). Also incorporated by reference are the Federal definitions 
with the notable expansion of the definition of target housing to 
include all reservation buildings.
    The ordinance contains enforcement and compliance requirements 
consisting of a schedule of flexible remedies and an appeals process. 
The Upper Sioux Lead Program and request for Federal delegation of 
authority is a natural application of Tribal sovereign power over 
environmental regulatory activities on Tribal lands for the health, 
welfare, and safety of Tribal community members.
    The Upper Sioux Reservation consists of approximately 1,200 acres 
of land in southwestern Minnesota. Pre-1978 building stock is estimated 
to be approximately 8 structures, this from slightly over 40 structures 
on the reservation. The Tribal population consists of approximately 150 
members on the Upper Sioux Reservation and the same number in the local 
off-reservation service area.
    The Tribal Administrator's office (TA), working with the Office of 
the Environment (OE) has maintained a Lead Program since 1996. Receipt 
of EPA Lead Program funding has occurred in FY97 and FY98. The Tribe 
has conducted a series of lead-based paint regulatory activities prior 
to the adoption of the Upper Sioux Community Lead Program ordinance in 
April 1998. Several types of lead-based paint activities have been 
conducted to date. Two OE personnel attended inspector and risk 
assessor training courses. There has been the inspection and risk 
assessment of two pre-1978 structures. All activities were conducted in 
accordance with an inspection and risk assessment Quality Assurance 
Practices Plan (QAPP) approved by EPA Region V, July 9, 1997. Another 
activity has been the Tribal blood lead level testing program begun in 
1998 in accordance with the blood lead level testing QAPP approved by 
EPA Region V, September 30, 1997. Approximately 15% of at risk Tribal 
members have been tested. No person has been determined to be at or 
above the blood lead action level although retesting was necessary in 
several instances. The OE (which is formed jointly with the Lower Sioux 
Indian Community) has been involved in one enforcement and compliance 
action at the Lower Sioux Reservation. In one building inspection and 
risk assessment instance, enforcement and compliance activity was 
necessary based upon the results of the inspection and risk assessment 
at a school building. The building was closed to further use pending 
abatement. This example is an indication of the capability and adequacy 
of the present Tribal ordinance since the Upper Sioux Community Lead 
Ordinance was developed through the OE which used its experience 
administering the Lower Sioux Lead Program to craft a workable 
ordinance for the Upper Sioux Community. The example is also indicative 
of the manner in which the Upper Sioux program administration would 
occur. The details of this situation are explained below.
    In the sole enforcement and compliance situation, testing indicated 
that a school building had high lead dust levels which were likely to 
be a reoccurring problem. The occupants conducted abatement activities, 
although not to the extent recommended by the OE. Retesting of the 
building (post-abatement clearance) confirmed the initial testing 
results. Blood lead level testing for children using the building was 
conducted and although no actionable levels of blood lead were 
detected, the situation was deemed

[[Page 53053]]

dangerous enough to warrant further regulatory action. The building 
occupant (and community members) were sent an informational warning 
letter and the letter was posted. Upon continued use of the building by 
the occupant, it was necessary to post warning signs at all entrances 
and the building was closed to further use. It was determined that use 
could be resumed upon adequate abatement and post-abatement test 
clearance. The users of the building have decided not to proceed with 
abatement at this time.
    This example will be referred to throughout the ``Program 
Analysis'' of the application as an example of the manner in which the 
Upper Sioux Community Lead Ordinance would be applied to a similar 
situation and as an indication that the approach used in the Upper 
Sioux Lead Program ordinance is appropriate for the Tribal community 
while at the same time meeting all Federal standards.
    The Upper Sioux Lead Program is designed to meet the regulatory, 
health, welfare, and safety needs of the Tribal community while 
satisfying all Federal requirements for program delegation. This has 
been accomplished through a combination of direct incorporation of 
Federal law and adoption of tribally unique provisions in the Upper 
Sioux Lead Program ordinance. The result is a tribally responsive 
regulatory scheme that contains certain provisions more protective than 
the Federal law and in all respects is ``at least as protective'' as 
the Federal law. The ordinance specifically states that all provisions 
are ``intended to       be . . . construed to be at least as protective 
as the federal'' law (Ordinance 4.B).
    In a small community such as the Upper Sioux Tribal Community 
``adequate enforcement capability'' can be provided by the flexible 
remedies written into the ordinance and the use of the existing TA, 
contracted security detail, OE and Tribal court system. Such structure 
has worked successfully in the enforcement example previously detailed.
    Where any significant variance from the Federal regulations does 
occur in the Upper Sioux Community Lead Program Ordinance, it is 
specifically noted in the ``Program Analysis'' section of the 
application and the divergence is shown to make the Upper Sioux Lead 
Program either more protective or at least as protective as the Federal 
law.

B. Lower Sioux Community

    The Lower Sioux Indian Community has adopted by Resolution Number 
20-98, dated March 27, 1998, the ordinance entitled ``Lower Sioux Lead 
Program'' in order to provide clear and specific guidance in the 
assessment, inspection, pre-renovation notification, and abatement of 
lead-based paint activities on the Lower Sioux Reservation. Penalties 
for non-compliance are established. The ordinance targets all buildings 
located on the Lower Sioux Reservation.
    The ordinance is designed to be at least as protective as the 
Federal law and provide for adequate enforcement of all provisions 
through a schedule of flexible remedies. This is accomplished through a 
combination of Tribal specific requirements (training accreditation) 
that are identical to the Federal regulations and through incorporation 
by reference of other required Federal elements (certification of 
individual, workplace standards, and pre-renovation notification 
activities). Also incorporated by reference are the Federal definitions 
with the notable expansion of the definition of target housing to 
include all reservation buildings.
    The ordinance contains enforcement and compliance requirements 
consisting of a schedule of flexible remedies and an appeals process.
    The Lower Sioux Lead Program and request for Federal delegation of 
authority is a natural application of Tribal sovereign power over 
environmental regulatory activities on Tribal lands for the health, 
welfare, and safety of Tribal community members.
    The Lower Sioux Reservation consists of approximately 1,750 acres 
of land in southwestern Minnesota. Pre-1978 building stock is estimated 
to be approximately 15 structures, this from slightly over 100 
structures on the reservation. The Tribal population consists of 
approximately 300 members on the Lower Sioux Reservation and the same 
number in the local off-reservation service area.
    The Office of the Environment (OE) has maintained a Lead Program 
since 1996. Receipt of EPA Lead Program funding has occurred in FY97 
and FY98. The Tribe has conducted a series of lead-based paint 
regulatory activities prior to the adoption of the Lower Sioux Lead 
Program ordinance in March 1998.
    Several types of lead-based paint activities have been conducted to 
date. Two OE personnel attended inspector and risk assessor training 
courses. There has been the inspection and risk assessment of six pre-
1978 structures. All activities were conducted in accordance with an 
inspection and risk assessment QAPP approved by EPA Region V, July 9, 
1997. Another activity has been the Tribal blood lead level testing 
program begun in 1998 in accordance with the blood lead level testing 
QAPP approved by EPA Region V, September 30, 1997. Approximately 10% of 
at risk Tribal members have been tested. No person has been determined 
to be at or above the blood lead action level although retesting was 
necessary in several instances. The OE has also worked with off-
reservation residing Tribal members on lead-based paint real estate 
notification issues under the State of Minnesota laws.
    In one building inspection and risk assessment instance, 
enforcement and compliance activity was necessary based upon the 
results of the inspection and risk assessment at a school building. 
This example is an indication of the capability and adequacy of the 
present Tribal ordinance because all actions taken in the example are 
now codified within the Lower Sioux Lead Program Ordinance and are an 
indication that the ordinance is workable and meets the needs of the 
Community. The details of this situation are explained below.
    In the sole enforcement and compliance situation, testing indicated 
that a school building had high lead dust levels which were likely to 
be a reoccurring problem. The occupants conducted abatement activities, 
although not to the extent recommended by the OE. Retesting of the 
building (post-abatement clearance) confirmed the initial testing 
results. Blood lead level testing for children using the building was 
conducted and although no actionable levels of blood lead were 
detected, the situation was deemed dangerous enough to warrant further 
regulatory action. The building occupant (and community members) were 
sent an informational warning letter and the letter was posted. Upon 
continued use of the building by the occupant, it was necessary to post 
warning signs at all entrances and the building was closed to further 
use. It was determined that use could be resumed upon adequate 
abatement and post abatement test clearance. The users of the building 
have decided not to proceed with abatement at this time.
    This example will be referred to throughout the ``Program 
Analysis'' of the application as an example of Tribal capability to 
carry out the provisions of the Tribal ordinance, as an indication of 
the adequacy of the compliance and enforcement section of the Tribal 
ordinance and as an indication of the Tribal capacity to administer the 
Lower Sioux Lead Program as proposed.
    The Lower Sioux Lead Program is designed to meet the regulatory, 
health, welfare and safety needs of the Tribal community while 
satisfying all Federal

[[Page 53054]]

requirement for program delegation. This has been accomplished through 
a combination of direct incorporation of Federal law and adoption of 
tribally unique provisions in the Lower Sioux Lead Program Ordinance. 
The result is a tribally responsive regulatory scheme that contains 
certain provisions more protective that the Federal law and in all 
respects is ``at least as protective'' as the Federal law. The 
ordinance specifically states that all provisions are ``intended to be 
. . . construed to be at least as protective as the federal'' law 
(Ordinance 4.B).
    In a small community such as the Lower Sioux Tribal Community 
``adequate enforcement capability'' can be provided by the flexible 
remedies written into the ordinance and the use of the existing 
environmental office, Tribal peace officer and Tribal court system. 
Such structure has worked successfully in the enforcement example 
previously detailed.
    Where any significant variance from the Federal regulations does 
occur in the Lower Sioux Lead Program it is specifically noted in the 
``Program Analysis'' section of the application and the divergence is 
shown to make the Lower Sioux Lead Program either more protective or at 
least as protective as the Federal law.

III. Federal Overfiling

    TSCA section 404(b) 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 the docket control number ``PB-402404-US'' 
for Upper Sioux Community and ``PB-402404-LS'' for Lower Sioux 
Community. Copies of this notice, the Lower Sioux Indian Community's 
and Upper Sioux Community's authorization application, and all comments 
received on each 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 application materials are available at: 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 tracking number ``PB-402404-US'' for Upper Sioux 
Community and ``PB-402404-LS'' for Lower Sioux Community.'' Electronic 
comments on this document may be filed online at many Federal 
Depository Libraries.

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.), 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.

[[Page 53055]]

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: September 21, 1998.
David A. Ullrich,
Acting Regional Administrator, Region V.

[FR Doc. 98-26455 Filed 10-1-98; 8:45 am]
BILLING CODE 6560-50-F