[Federal Register Volume 64, Number 169 (Wednesday, September 1, 1999)]
[Notices]
[Pages 47807-47810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22748]


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ENVIRONMENTAL PROTECTION AGENCY

[PB-402404-IL; FRL-6087-1]


Lead-Based Paint Activities in Target Housing and Child-Occupied 
Facilities; State of Illinois' Authorization Application

AGENCY: Environmental Protection Agency (EPA).

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

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SUMMARY: On August 19, 1998, the State of Illinois submitted a partial 
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). On April 16, 
1999, Illinois submitted supplemental application materials for self-
certification for interim approval. This notice announces the receipt 
of Illinois' application, provides a 45-day public comment period, and 
provides an opportunity to request a public hearing on the application. 
Illinois has provided a certification that its program meets the 
requirements for interim approval of a State program under TSCA section 
404 for a period of time up to 3 years. Therefore, pursuant to TSCA 
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 take effect in Illinois.

DATES: Comments on the authorization application must be received on or 
before October 18, 1999. Public hearing requests must be received on or 
before September 16, 1999.

ADDRESSES: Submit all written comments and/or requests for a public 
hearing identified by docket number PB-402404-IL (in duplicate) to: 
Environmental Protection Agency, Region V, DT-8J, 77 West Jackson 
Blvd., Chicago, IL 60604. 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 information claimed to be Confidential Business 
Information (CBI) should be submitted through e-mail.
FOR FURTHER INFORMATION CONTACT: Marlyse Wiebenga, Project Officer, 
Environmental Protection Agency, Region V, DT-8J, 77 West Jackson 
Blvd., Chicago, IL 60604. Telephone: (312) 886-4437.

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. That Act 
amended TSCA (15 U.S.C. 2601 et seq.) by adding Title 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. Those 
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, 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 that does not have 
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 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

[[Page 47808]]

requirements a State or Tribal program must meet in order to obtain EPA 
approval.
    A State may choose to certify that its lead-based paint activities 
program meets the requirements for EPA approval, 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 withdraws the 
program authorization.
    Illinois 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 Illinois Lead 
Program. Therefore, pursuant to section 404, the program is deemed 
authorized as of the date of submission (i.e., April 16, 1999). If EPA 
finds that the program does not meet the requirements for interim 
authorization of a State program, EPA will disapprove the program 
application, issue a notice in the Federal Register, and establish a 
Federal program in Illinois.
    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 Illinois' application meets the requirements 
for EPA approval. This notice also provides an opportunity to request a 
public hearing on the application. If a hearing is requested and 
granted, EPA will issue a Federal Register notice announcing the date, 
time, and place of the hearing. EPA's final decision on the application 
will be published in the Federal Register.

II. State Program Description Summary

    The following summary of Illinois' proposed program has been 
provided by the applicant.
    The State of Illinois Department of Public Health (the Department) 
implements the Lead Poisoning Prevention Act (Act), 410 Illinois 
Consolidated Statutes 45/1-17, and the Lead Poisoning Prevention Code 
(Code), 77 Illinois Administrative Code (IAC) section 845, promulgated 
pursuant to the Act, in order to carry out lead abatement programs that 
are designed to diminish the incidence of lead intoxication. The 
primary goal of the Department's Lead Abatement Program is to protect 
the public's health, safety, and environment by identifying lead-
bearing substances which may be the source of exposure of lead to 
children, and to assure that lead hazards are managed, mitigated, or 
abated through the administration and enforcement of the Act and the 
Code, originally passed in 1973 and 1976 respectively, were last 
amended in August 1998. The Act enabled the Department to require 
provisions for licensing individuals and firms engaged in lead 
abatement activities, approving training course providers, and 
establishing appropriate work practice standards in accordance with the 
Federal model State plan for lead.
    Individuals seeking licensure by the State of Illinois in the lead 
abatement industry as a worker, contractor/supervisor, inspector, or 
risk assessor must first make application to the Department. The 
application requires proof that the individual has successfully 
completed an appropriate lead training course. The course (and the 
course provider) chosen by the applicant, must be one that is approved 
by the Department and provides training comparable to 40 CFR 745.225 as 
required by section 845.28 of the Code, 77 IAC section 845.28. All lead 
licenses expire annually. Application for renewal includes the 
successful completion of an approved refresher course that is specific 
to the lead abatement field of interest every 3 years. Individuals or 
firms can also apply for a lead abatement contractor's license. This 
requires proof that: the applicant holds a certificate of financial 
responsibility in the form of liability insurance, letter of credit, or 
a bond for at least $250,000 that specifically covers lead work; the 
applicant has written standard operating procedures which include 
medical monitoring and a respirator training program specified in the 
OSHA regulations (which are incorporated by reference in section 845.12 
of the Code); the applicant provides a detailed description of all 
legal proceedings or claims concerning any lead mitigation activities 
filed against the applicant; and the applicant agrees to notify the 
Department before beginning any lead abatement project, as required by 
the Code. Although contractor applicants are not required to take a 
lead abatement course, they need to assure the Department that all lead 
abatement workers will have a valid Illinois lead worker license, and 
that at least one supervisor will have a valid Illinois contractor/
supervisor license. The supervisor must oversee the project and be on 
site during the entire project. A contractor's license must be renewed 
annually. Reciprocity requests for any lead licenses from any State or 
Tribe may be submitted for review. If upon review of the applicant's 
application it is determined that the licensing State's lead program is 
at least as protective as the Illinois program, the Department will 
issue an appropriate license. Lists of all people conducting licensed 
lead abatement activities are maintained by the Department and are 
available to the public upon request.
    Training course providers seeking approval from the State of 
Illinois for initial and refresher courses for lead worker, contractor/
supervisor, inspector, and risk assessor disciplines must first make 
application to the Department. The application packet includes a 
checklist of materials to be submitted along with other requirements 
that must be satisfied before approval can be granted. All approvals 
are renewed annually. Audits of courses are completed by Department 
staff, and the training course provider is notified as to the results 
of the audit, the deficiencies observed, and whether or not the course 
was determined to be satisfactory or not satisfactory. Training courses 
found not satisfactory are issued a notice to correct the deficiencies 
together with a written explanation of the items that the Department 
expects the provider to correct before the next training course is 
scheduled. A list of approved training course providers is maintained 
by the Department and is available to the public. Illinois does not 
require a licensed project designer as yet. However, additional 
requirements are part of the supervisor training to prepare them for 
large-scale lead abatement projects as cited in 40 CFR 745.225(d)(4). 
The Department has statutory authority to adopt rules for lead-based 
paint activities in public and commercial buildings. Where EPA provides 
guidance under 40 CFR 745.230, the Department will establish rules 
which will govern such activities as necessary to maintain 
authorization.
    Work practice standards are established in the Code and in the 
policies and procedures of the Department. The Department has 
incorporated, at section 845.12(a)(2) of the Code, the Department of 
Housing and Urban Development (HUD) Guidelines for the Evaluation and 
Control of Lead-Based Paint Hazards in Housing (June 1995) to enhance 
the work and performance standards throughout the Code. All inspections 
and risk assessments are completed only by individuals holding an 
appropriate inspector or risk assessor license issued by the 
Department. Inspections and risk assessments are to be performed per 
the incorporated HUD guidelines. Lead abatement activities are 
performed only

[[Page 47809]]

by individuals or firms who hold the appropriate license issued by the 
Department. Mitigation and abatement activities which involve the 
destruction or disturbance of any leaded surface is the responsibility 
of the licensed lead abatement contractor. The contractor has the 
responsibility to utilize documented methodologies and state of the art 
procedures that ensure that the work is performed effectively and in a 
manner that promotes occupant protection and worker safety.
    Complaint investigations, inspections, course audits and 
enforcement activities are accomplished by the Department's staff 
located in the Central and Regional Offices and through county delegate 
agencies. Central Office staff provide for the licensing of people who 
conduct all lead-based paint activities in the State. One 
administrative assistant, one office administrator and three office 
associates conduct the licensing portion of the program with one office 
associate dedicated to the Illinois Third Party Examination process. 
The third party examination is administered by the Department's 
Training Manager. A lead program staff person conducts reviews of 
ongoing program matters and also serves as the Department's Radiation 
Safety Officer. A public service administrator began program manager 
duties August 1, 1998, and will be directly responsible for the day-to-
day lead program activities as well as the revision of the Department's 
policies to maintain state of the art procedures. Eight regional staff 
conduct inspections on a daily basis as well as 90 licensed risk 
assessors who work within the lead program as the Department's delegate 
agents under contract to perform the necessary inspections and 
investigations in their county or municipality to determine the source 
of environmental lead hazards. Overall program direction is covered by 
a senior public service administrator in the central office. Funding is 
established through a mandate that provides a dedicated State fund for 
the lead program. Revenue from licensing and training course provider's 
fees are also directed to that fund. The Department's policy and 
procedure manual provides protocol to achieve all the necessary aspects 
of the Illinois Lead Poisoning Prevention Program. In it, details of 
activities to be implemented, standard enforcement procedures with 
examples of all required letters may be found. Enforcement is 
accomplished through administrative procedures which have been 
referenced in the Act under section 410 ILCS 45/13.1 and in the Code. 
Violations of the Act subject the violator to a Class A misdemeanor. 
Each day the violation occurs may subject the violator to a $1,000 
fine, as well as incarceration in the county jail for 6 months.
    The Department participated in Environmental Justice grants from 
EPA to provide education and information to people who would not 
receive information about the hazards of lead through normal media. 
Not-for-profit associations are provided grant dollars to seek out 
parents of children who are likely to be exposed to lead and may not be 
aware of lead hazards or what to do to prevent lead poisoning. 
Additionally, the Department or its agents provide consultative 
services and screen all appropriate citizens of Illinois for lead 
poisoning.

III. Issues Upon Which EPA Requests Public Comment

    EPA requests comment on whether Illinois' application meets all 
statutory and regulatory requirements for EPA approval. EPA especially 
solicits comments on whether and how Illinois' environmental audit 
privilege statute, (415 Illinois Compiled Statutes 5/52.2), affects 
Illinois' ability to meet the pertinent requirements.

IV. Federal Overfiling

    TSCA section 404(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.

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-IL. Copies 
of this notice, the State of Illinois' authorization application, and 
all comments received on the 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 docket is located at the 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 docket control number PB-
402404-IL. 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

    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. In addition, 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) 
or Executive Order 12875 (``Enhancing the Intergovernmental 
Partnership,'' 58 FR 58093, October 28, 1993). Finally, this action 
does not contain any information collection requirements and therefore 
does not require review or approval by OMB under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.).

A. 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

[[Page 47810]]

provide to the Office of Management and Budget (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.

B. 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: July 13, 1999.
David A. Ullrich,
Acting Regional Administrator, Region V.

[FR Doc. 99-22748 Filed 8-31-99; 8:45 am]
BILLING CODE 6560-50-F