[Federal Register Volume 64, Number 70 (Tuesday, April 13, 1999)]
[Notices]
[Pages 18017-18020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9207]


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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: [email protected]. 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: [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 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: 
[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-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