[Federal Register Volume 64, Number 151 (Friday, August 6, 1999)]
[Rules and Regulations]
[Pages 42849-42852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20372]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[OPPTS-62128C; FRL-6097-5]

RIN 2070-AC64


Lead; Requirements for Lead-Based Paint Activities in Target 
Housing and Child-Occupied Facilities; Certification Requirements and 
Work Practice Standards for Individuals and Firms; Amendment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is amending the procedural requirements for training and 
certification of workers involved in lead-based paint activities in 
target housing and child-occupied facilities by extending the effective 
dates for certification of individuals and firms and use of work 
practice standards that are contained in the final regulations 
promulgated under section 402 of the Toxic Substances Control Act 
(TSCA). The extension applies only in those States and Indian Tribes 
where EPA is operating the Federal lead-based paint program. EPA is 
extending these effective dates in order to provide additional time for 
individuals to become trained and certified to conduct lead-based paint 
activities safely, reliably, and effectively. EPA believes that the 
extension of the effective dates will result in successful 
implementation of the Federal program and ensure the availability of a 
well-qualified workforce to perform risk assessments, abatements, and 
other lead-based paint activities.

DATES: This action is effective on August 6, 1999.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Ellie Clark, National Program Chemicals Division, Office of Pollution 
Prevention and Toxics (7404), Environmental Protection Agency, 401 M 
St., SW., Washington, DC 20460; telephone number: 202-260-3402; fax 
number: 202-260-0770; e-mail address: [email protected].
    For general information contact: Christine M. Augustyniak, 
Associate Director, Environmental Assistance Division (7408), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 401 M 
St., SW., Washington, DC 20460; telephone numbers: 202-554-1404 and 
TDD: 202-554-0551; e-mail address: TSCA-H[email protected].

SUPPLEMENTARY INFORMATION:

I. Does this Action Apply to Me?

    You may be potentially affected by this action if you operate a 
training program required to be accredited under 40 CFR 745.225, or if 
you are a professional, individual, or firm who must be certified to 
conduct lead-based paint activities in accordance with 40 CFR 745.226. 
Potentially affected categories and entities may include, but are not 
limited to:

 
------------------------------------------------------------------------
                                                          Examples of
         Type of Entity                SIC Code            Entities
------------------------------------------------------------------------
Lead abatement professionals      1799, 8734          Workers,
                                                       supervisors,
                                                       inspectors, risk
                                                       assessors and
                                                       project designers
                                                       engaged in lead-
                                                       based paint
                                                       activities.
                                                      Firms engaged in
                                                       lead-based paint
                                                       activities.
------------------------------------------------------------------------
Training programs                 1799, 8331, 8742,   Training programs
                                   8748                providing
                                                       training services
                                                       in lead-based
                                                       paint activities.
------------------------------------------------------------------------

    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed above could also be 
affected. The Standard Industrial Classification (SIC) codes have been 
provided to assist you and others in determining whether or not this 
action applies to certain entities. To determine whether you or your 
business are affected by this action, you should carefully examine this 
action and the applicability provisions in 40 CFR part 745, subpart L. 
If you have any questions regarding the applicability of this action to 
a particular entity, consult the technical person listed in the ``FOR 
FURTHER INFORMATION CONTACT'' section.

II. How Can I Get Additional Information, Including Copies of this 
Document and Other Related Documents?

    1. Electronically. You may obtain copies of this document and 
certain other available documents from the EPA Internet Home Page at 
http://www.epa.gov/. On the Home Page select ``Laws and Regulations'' 
and then look up the entry for this document under the ``Federal 
Register-- Environmental Documents.'' You can also go directly to the 
``Federal Register'' listings at http://www.epa.gov/fedrgstr/.
    2. In person. The Agency has established an official record for 
this action under docket control number OPPTS-62128B. The official 
record consists of the documents specifically referenced in this action 
and other information related to this action, including any information 
claimed as confidential business information (CBI). This official 
record includes the documents that are physically located in the 
docket, as well as the documents that are referenced in those 
documents. The public version of the official record does not include 
any information claimed as CBI. The public version of the official 
record, which includes printed, paper versions of any electronic 
comments submitted during an applicable comment period, is available 
for inspection in the TSCA Nonconfidential Information Center, North 
East Mall Rm. B-607, Waterside Mall, 401 M St., SW., Washington, DC. 
The Center is open from noon to 4 p.m., Monday through Friday, 
excluding legal holidays. The telephone number of the Center is (202) 
260-7099.

[[Page 42850]]

III. What Does this Amendment Do?

A. Background

    In 1996, EPA published the final TSCA section 402/404 rule for 
training and certification of workers, accreditation of training 
programs, and model State programs for lead-based paint activities in 
target housing and child-occupied facilities (61 FR 45778, August 29, 
1996) (FRL-5389-9). At that time, the implementation of the Federal 
program was delayed until August 29, 1998, to allow States and Indian 
Tribes to apply and receive authorization to run their own EPA-approved 
lead-based paint programs based on the model program.
    The final rule provided for an additional phase-in period to allow 
the regulated community to come into compliance after the Federal 
program became effective in non-authorized States and Tribes on August 
29, 1998. After March 1, 1999, training programs could no longer 
provide, offer, or claim to provide training or refresher training for 
lead-based paint activities defined at Sec. 745.223 without being 
accredited by EPA according to the requirements of Sec. 745.225. The 
rule also stated that after August 30, 1999, no individuals or firms 
could perform, offer, or claim to perform lead-based paint activities 
as defined at Sec. 745.223 without certification from EPA under 
Sec. 745.226 to conduct those activities. A special provision at 
Sec. 745.226(d) was effective only until August 30, 1999, and allowed 
individuals to seek certification based on prior training and 
completion of a refresher course and a certification exam (if 
applicable). Additionally, after August 30, 1999, all lead-based paint 
activities were to be performed according to the work practice 
standards at Sec. 745.227.
    The Federal program under part 745, subpart L became effective 
August 31, 1998, in all non-authorized States and Tribes. The 
accreditation requirements at Sec. 745.225 became effective March 1, 
1999, and all training providers must now be accredited by EPA to offer 
lead-based paint activities courses in the Federal program.

B. Program Implementation

    Although EPA has been reviewing applications for accreditation, 
there have been several unavoidable delays which have slowed the 
process of approving a sufficient number of training providers to 
accommodate the number of individuals seeking certification prior to 
the August 30, 1999 date. Two important items, the model training 
courses and the fee schedule, were not made available by EPA to 
training providers in a sufficiently timely fashion to allow them to 
prepare their application packages well in advance of the deadlines.
    In the preamble to the final rule, EPA indicated that it would make 
model training courses available in advance for training providers to 
use in developing their programs (61 FR 45778, at 45783). Under 
Sec. 745.225(b)(1)(iii), training providers who used EPA model training 
materials may submit an abbreviated application package for 
accreditation and thus potentially accelerate the accreditation 
process. However, EPA was unable to make all model training materials 
immediately available to training providers. The updating of some of 
these courses to reflect the course curricula in Sec. 745.225(d) was 
initially delayed. The development of a new model course for the 
project designer discipline has not yet been completed. EPA has also 
changed distributors for the model training course materials. The 
course materials were not available to the regulated community while a 
new distributor was being sought and contract arrangements finalized.
    EPA was also delayed in promulgating the final fee rule setting out 
the fee schedule for accreditation of training providers and 
certification of contractors. The final fee rule was effective June 11, 
1999 (64 FR 31092, June 9, 1999) (FRL-6058-6). Prior to its 
publication, training providers were unsure as to the fee structure and 
may have delayed preparing accreditation applications while waiting for 
the fee rule to be finalized.
    Because of these delays, some areas of the U.S. where EPA is 
running the Federal program have insufficient training courses 
currently available for the number of individuals seeking 
certification. In some areas this is due to a lack of training provider 
applicants to provide training. In other areas, this is due to a 
backlog of training provider applications needing review by EPA. 
Despite the fact that the August 30 deadline is nearing, EPA has 
received only a few certification applications because of the 
difficulty for many individuals to take the courses needed prior to 
applying for certification. The lack of refresher courses has been a 
particular problem for those who wish to use the certification based on 
prior training provisions at Sec. 745.226(d) that require completion of 
an EPA-accredited refresher course. Additionally, EPA has not made the 
certification exam available for inspectors, risk assessors, and 
supervisors who are required by Sec. 745.226(b)(1)(ii) to pass a 
certification exam after completing the training courses. Although EPA 
expects to start offering the exam before the August 30, 1999 deadline, 
there would not be adequate time before August 30 to accommodate the 
many individuals who must take the exam prior to certification.

C. Extension Necessary

    EPA believes that it is necessary to extend the effective dates for 
certification and work practice standards to March 1, 2000, to allow 
for successful implementation of the Federal program. This will allow 
EPA time to accredit sufficient training providers to accommodate the 
many individuals who must be certified. In particular, EPA wishes to 
accommodate those individuals who have years of experience conducting 
lead-based paint activities and choose to use the certification based 
on prior training provisions at Sec. 745.226(d), which would also be 
extended until March 1, 2000. These individuals must take refresher 
courses, which EPA expects to be available in greater numbers with the 
extended effective date. Once individuals take the appropriate courses, 
inspectors, risk assessors, and supervisors must also complete the 
appropriate certification exams. EPA will have those exams in place and 
available for all those who seek to take the exams prior to the March 
1, 2000 deadline. This extension only applies in States and Tribes 
where EPA is operating the Federal lead-based paint program under part 
745, subpart L. It does not affect States and Tribes operating EPA-
authorized programs under part 745, subpart Q. Additionally, in the 
Federal program, the extension for use of work practice standards does 
not apply once an individual is certified by EPA, because 
Sec. 745.226(a)(4) states that individuals who have received EPA 
certification must conduct lead-based paint activities in compliance 
with the appropriate work practice standards in Sec. 745.227.
    Without the extension of the effective dates, EPA does not believe 
that it is currently possible to have effective implementation of the 
Federal lead-based paint program and ensure that individuals are well-
trained in conducting lead-based paint activities in target housing and 
child-occupied facilities. EPA is concerned that under the original 
deadline, individuals who could not be certified, because of the lack 
of available training courses and/or certification exams, would not be 
able to legally perform lead-based paint activities after August 30, 
1999. This

[[Page 42851]]

would reduce the availability of a well-qualified workforce to conduct 
lead-based paint activities. EPA believes that it is more appropriate 
to extend the effective dates to allow an appropriate amount of time 
for individuals to complete the necessary prerequisites and receive 
certification. EPA will work to assist the regulated community in 
coming into compliance by the March 1, 2000 deadline.

IV. Why is this Amendment Issued as a Final Rule?

    EPA is publishing this action as a final rule without prior notice 
and opportunity to comment because the Agency believes that providing 
notice and an opportunity to comment is impracticable, unnecessary and 
would be contrary to the public interest. EPA finds that there is good 
cause to issue a final rule, without utilizing all of the notice and 
public comment procedures in section 553(b) of the Administrative 
Procedure Act (APA). It is impracticable to utilize the full-scale 
notice and comment proceedings in section 553(b), because such 
proceedings would unnecesarily extend the rulemaking process beyond the 
August 30, 1999 effective date, and would further delay the 
implementation of certification requirements and work practice 
standards. Congress clearly intended that EPA act expeditiously to 
promulgate training and certification requirements for lead-based paint 
activities, and even established a deadline for their promulgation. EPA 
did not meet the deadline because of the time-consuming process that 
was necessary to develop the Federal accreditation, training and 
certification processes and the State and Tribal authorization program. 
If EPA were to develop and publish a notice of proposed rulemaking 
pursuant to section 553(b), the full implementation of the Federal 
training and certification requirements would be even further delayed. 
As explained above, the amendments contained in this action will only 
extend the effective dates for the Federal program certification 
requirements and work practice standards to March 1, 2000. EPA is not 
making any changes to the substantive requirements of the current part 
745, subpart L provisions. EPA is extending these effective dates in 
order to provide additional time for individuals to become trained and 
certified to conduct lead-based paint activities safely, reliably, and 
effectively. EPA therefore finds that there is ``good cause'' under 
section 553(b)(3)(B) of the APA (5 U.S.C. 553(b)(3)(B)) to make this 
amendment without prior notice and comment.

V. Do Any of the Regulatory Assessment Requirements Apply to this 
Action?

    No. This final rule does not impose any new requirements. It only 
extends effective dates that are contained in the Code of Federal 
Regulations (CFR). As such, this action does not require review by the 
Office of Management and Budget (OMB) under Executive Order 12866, 
entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), 
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., or Executive 
Order 13045, entitled Protection of Children from Environmental Health 
Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does 
not impose any enforceable duty, contain any unfunded mandate, or 
impose any significant or unique impact on small governments as 
described in the Unfunded Mandates Reform Act of 1995 (UMRA) (Public 
Law 104-4). Nor does it require prior consultation with State, local, 
and tribal government officials as specified by Executive Order 12875, 
entitled Enhancing the Intergovernmental Partnership (58 FR 58093, 
October 28, 1993) and Executive Order 13084, entitled Consultation and 
Coordination with Indian Tribal Governments (63 FR 27655, May 19, 
1998), or special consideration of environmental justice related issues 
under Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). This action does not 
involve any technical standards that would require Agency consideration 
of voluntary consensus standards pursuant to section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (NTTAA), 
Public Law 104-113, section 12(d) (15 U.S.C. 272 note). In addition, 
since this action is not subject to notice and comment requirements 
under the APA, or any other statute, it is not subject to the 
regulatory flexibility provisions of the Regulatory Flexibility Act 
(RFA) (5 U.S.C. 601 et seq.).
    EPA's compliance with these statutes and Executive Orders for the 
underlying rule is discussed in the preamble for the final rule (61 FR 
45778, at 45808).

VI. Will EPA Submit this Final Rule to Congress and the Comptroller 
General?

    Yes. The Congressional Review Act, 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. EPA has made such 
a good cause finding for this final rule, and established an effective 
date of August 6, 1999. Pursuant to 5 U.S.C 808(2), this determination 
is supported by the brief statement in Unit IV. of this preamble. EPA 
will submit a report containing this rule 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 
the rule in the Federal Register. This is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 745

    Environmental protection, Hazardous substances, Lead, Recordkeeping 
and reporting requirements.

    Dated: July 29, 1999.
Susan H. Wayland,
Acting Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.
    Therefore, 40 CFR part 745 is amended as follows:

PART 745 [AMENDED]

    1. The authority citation for part 745 continues to read as 
follows:

    Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.

    2. In Sec. 745.226, by revising paragraphs (a)(5), (d)(2), and 
(f)(1) to read as follows:


Sec. 745.226   Certification of individuals and firms engaged in lead-
based paint activities; target housing and child-occupied facilities.

    (a)  *    *    *
    (5) It shall be a violation of TSCA for an individual to conduct 
any of the lead-based paint activities described in Sec. 745.227 after 
March 1, 2000, if that individual has not been certified by EPA 
pursuant to this section to do so.
    *    *    *    *    *
    (d)  *    *    *
    (2) Individuals shall have until March 1, 2000, to apply to EPA for 
certification under the above procedures. After that date, all 
individuals wishing to obtain certification must do so through the 
procedures described in paragraph (a), and paragraph (b) or (c) of this 
section, according to the discipline for which certification is being 
sought.
    *    *    *    *    *
    (f)    *    *    *

[[Page 42852]]

    (1) All firms which perform or offer to perform any of the lead-
based paint activities described in Sec. 745.227 after March 1, 2000, 
shall be certified by EPA.
    3. In Sec. 745.227, by revising paragraph (a)(1) to read as 
follows:


Sec. 745.227   Work practice standards for conducting lead-based paint 
activities: target housing and child-occupied facilities.

    (a)  *    *    *
    (1) Beginning on March 1, 2000, all lead-based paint activities 
shall be performed pursuant to the work practice standards contained in 
this section.
    *    *    *    *    *
    4. In Sec. 745.239, by revising paragraphs (b) and (c) to read as 
follows:


Sec. 745.239   Effective dates.

    *    *    *    *    *
    (b) No individual or firm shall perform, offer, or claim to perform 
lead-based paint activities, as defined in this subpart, without 
certification from EPA to conduct such activities pursuant to 
Sec. 745.226 on or after March 1, 2000.
    (c) All lead-based paint activities shall be performed pursuant to 
the work practice standards contained in Sec. 745.227 on or after March 
1, 2000.

[FR Doc. 99-20372 Filed 8-5-99; 8:45 am]
BILLING CODE 6560-50-F