[Federal Register Volume 67, Number 139 (Friday, July 19, 2002)]
[Notices]
[Pages 47541-47544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18223]


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ENVIRONMENTAL PROTECTION AGENCY

[OPPT-2002-0034; FRL-7187-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On December 17, 2001, the State of Mississippi submitted an 
application for EPA final 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 Mississippi's application, provides a 45-day 
public comment period to solicit comments on whether the State of 
Mississippi application meets the requirements for EPA approval, and 
provides an opportunity to request a public hearing on the application. 
Submittal of the application for final approval by Mississippi was 
initiated consistent with 40 CFR 745.327(a)(1)(ii), which stipulates 
that the State shall apply for final approval within 180 days prior to 
expiration of its interim approval, which in Mississippi's case will be 
June 28, 2002. The State of Mississippi has been operating its lead-
based paint program under an interim approval since June 28, 1999, 
during which time, the State has worked to address issues raised by EPA 
concerning the State's audit privilege/penalty mitigation statute. 
However, due to statutory deficiencies which remain in Mississippi's 
audit privilege/penalty mitigation statute, EPA is proposing to 
disapprove their application for final approval.

DATES: Comments must be received on or before September 3, 2002. Public 
hearing requests must be received on or before September 3, 2002. All 
correspondence must include the docket ID number OPPT-2002-0034.

ADDRESSES: Comments and the public hearing request may be submitted by 
mail, electronically, or in person. Please follow the detailed 
instructions for each method as provided in Unit I. of the 
SUPPLEMENTARY INFORMATION. To ensure proper receipt by EPA, it is 
imperative that you identify docket ID number OPPT-2002-0034 in the 
subject line on the first page of your response.

FOR FURTHER INFORMATION CONTACT: Rose Anne Rudd, Pesticides and Toxic 
Substances Branch, Air, Pesticides and Toxics Management Division, 
Environmental Protection Agency, Region IV, Sam Nunn Atlanta Federal 
Center, 61 Forsyth Street, S.W., Atlanta, GA 30303; telephone number: 
(404) 562-8998; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to the public in general. This action may, 
however, be of interest to firms and individuals engaged in lead-based 
paint activities in the State of Mississippi. Since other entities may 
also be interested, the Agency has not attempted to describe all the 
specific entities that may be affected by this action. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed under FOR FURTHER INFORMATION 
CONTACT.

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

    1. Electronically. You may obtain electronic copies of this 
document, and certain other related documents that

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might be available electronically, from the EPA Internet Home Page at 
http://www.epa.gov/. To access this document, on the Home Page select 
``Laws and Regulations,'' ``Regulations and Proposed Rules,'' 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 ID number OPPT-2002-0034. The official record 
consists of the documents specifically referenced in this action, any 
public comments received during an applicable comment period, 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 from 8 
a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The 
docket is located at the regional office library, Sam Nunn Atlanta 
Federal Center, 9\th\ Floor - Tower, 61 Forsyth Street, S.W., Atlanta, 
GA. The telephone number for the library is (404) 562-8190.

C. How and to Whom Do I Submit Comments?

    You may submit comments through the mail, in person, or 
electronically. To ensure proper receipt by EPA, it is imperative that 
you identify docket ID number OPPT-2002-0034 in the subject line on the 
first page of your response.
    1. By mail. Submit your comments and hearing requests to: Rose Anne 
Rudd, Pesticides and Toxic Substances Branch, Air, Pesticides and 
Toxics Management Division, Environmental Protection Agency, Region IV, 
Sam Nunn Atlanta Federal Center, 61 Forsyth Street, S.W., Atlanta, GA 
30303.
    2. In person or by courier. Deliver your comments and hearing 
requests to: Pesticides and Toxic Substances Branch, Air, Pesticides 
and Toxics Management Division, Environmental Protection Agency, Region 
IV, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, S.W., Atlanta, 
GA 30303. The regional office is open from 8 a.m. to 5 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
regional office is (404) 562-8956.
    3. Electronically. You may submit your comments electronically by 
e-mail to: [email protected], or mail your computer disk to the 
address identified above. Do not submit any information electronically 
that you consider to be CBI. 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 standard disks 
in WordPerfect 6.1/8.0 or ASCII file format. All comments in electronic 
form must be identified by docket ID number OPPT-2002-0034. Electronic 
comments may also be filed online at many Federal Depository Libraries.

D. How Should I Handle CBI Information That I Want To Submit to the 
Agency?

    Do not submit any information electronically that you consider to 
be CBI. You may claim information that you submit to EPA in response to 
this document as CBI by marking any part or all of that information as 
CBI. Information so marked will not be disclosed except in accordance 
with procedures set forth in 40 CFR part 2. In addition to one complete 
version of the comment that includes any information claimed as CBI, a 
copy of the comment that does not contain the information claimed as 
CBI must be submitted for inclusion in the public version of the 
official record. Information not marked confidential will be included 
in the public version of the official record without prior notice. If 
you have any questions about CBI or the procedures for claiming CBI, 
please consult the person identified under FOR FURTHER INFORMATION 
CONTACT.

E. What Should I Consider as I Prepare My Comments for EPA?

    We invite you to provide your views on the various options we 
propose, new approaches we have not considered, the potential impacts 
of the various options (including possible unintended consequences), 
and any data or information that you would like the Agency to consider 
during the development of the final action. You may find the following 
suggestions helpful for preparing your comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide copies of any technical information and/or data you used 
that support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at the estimate that you provide.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternative ways to improve the notice.
    7. Make sure to submit your comments by the deadline in this 
notice.
    8. To ensure proper receipt by EPA, be sure to identify the docket 
ID number assigned to this action in the subject line on the first page 
of your response. You may also provide the name, date, and Federal 
Register citation.

II. Background

A. What Actions Have Been Taken?

    By cover letter dated March 3, 1998, the State of Mississippi 
submitted an application for the authorization of its State Lead-Based 
Paint Training and Certification Program (``Lead-Based Paint Program'') 
pursuant to section 404 of TSCA (15 U.S.C. 2684) (63 FR 38647). 
Following this submission, EPA identified issues arising from the State 
of Mississippi's audit privilege/penalty mitigation statute (Miss. Code 
Ann. 49-2-71 and 49-17-43) which unduly restricts the State's ability 
to fully administer and enforce its lead-based paint program and 
prevents the State from obtaining authorization.
    By letter dated December 17, 1998, EPA informed the State that EPA 
could grant interim, instead of final, approval of the State's Lead-
Based Paint Program. Subsequently, on June 28, 1999, the State of 
Mississippi withdrew the March 3, 1998, request for final approval, and 
asked that the application be considered instead as a submittal for 
interim approval.
    The State of Mississippi has been operating its Lead-Based Paint 
Program under interim approval since June 28, 1999. Interim approval 
expires on June 28, 2002. EPA has worked with the State to remedy 
deficiencies in the State's statutes. However, two deficiencies at 
Miss. Code Ann. 49-2-71 and 49-17-43(g) have not been corrected which 
impair the State's ability to provide adequate enforcement in criminal 
proceedings and investigations, and in assessment of appropriate 
penalties.
    The Mississippi Audit Privilege/Penalty Mitigation Statute at Miss. 
Code Ann. 49-2-71 creates a privilege for self-evaluation reports and 
is applicable to criminal proceedings and investigations. Under this 
statute, self-evaluation reports are not admissible in any legal or 
investigative action in a criminal proceeding and are not subject to 
discovery. To have adequate criminal

[[Page 47543]]

enforcement authority, Mississippi law must allow state officials 
unfettered access to evidence of criminal conduct regardless of whether 
that evidence is contained in an environmental self-evaluation report. 
Criminal privilege impairs the state's ability to access evidence of 
criminal conduct needed for criminal investigations, grand jury 
proceedings, and prosecutions. Requirements such as an in camera 
hearing prior to the use of a self-evaluation report will significantly 
impede criminal enforcement. The statute unduly restricts criminal 
enforcement authority; therefore, Mississippi's Lead-Based Paint 
Program does not provide adequate enforcement authority.
    The Mississippi penalty mitigation provisions at Miss. Code Ann. 
49-17-43(g) unduly limit Mississippi's authority to assess appropriate 
penalties. The penalty mitigation provisions in this statute mandate 
assessment of a de minimis or zero penalty when a person discovers 
noncompliance through a voluntary self-evaluation, discloses that 
information, and meets all other conditions of the statute. The statute 
does not provide sufficient flexibility or discretion for assessment of 
appropriate penalties. Although the statute contains exceptions and 
conditions, EPA has consistently maintained that another exception must 
be created. The penalty reduction provision should not apply in a case 
involving repeat violations. Application of the penalty reduction 
provision to repeat violations would not yield a penalty appropriate to 
the violation, as a de minimis or zero penalty would provide no 
incentive for a person to fully implement measures to prevent future 
violations. Accordingly, the application of the penalty mitigation 
provision to the Lead-Based Paint Program renders the requisite 
enforcement authority inadequate.
    As a result, EPA believes that it cannot grant final approval of 
the State of Mississippi's Lead-Based Paint Program and has initiated 
the process to withdraw Mississippi's interim authorization pursuant to 
40 CFR 745.324(i). The action to withdraw Mississippi's program is 
independent of the proposed action to disapprove Mississippi's final 
application outlined in Unit II. B. of this document.

B. What Action is the Agency Taking?

    The State of Mississippi has submitted an application to EPA Region 
IV, under section 404 of TSCA and has requested final approval of its 
lead-based paint training and certification program. This application 
will be reviewed by EPA within 180 days of receipt of a complete 
application. Due to the statutory deficiencies contained in 
Mississippi's audit privilege/penalty mitigation statute and its 
application to the lead-based paint training and certification program, 
EPA proposes to disapprove the application for final approval.
    Pursuant to section 404(b) of TSCA (15 U.S.C. 2684(b)), EPA 
provides notice and an opportunity for a public hearing on a State or 
Tribal program application before approving or disapproving the 
application. Therefore, by this notice EPA is soliciting public comment 
on whether the State of Mississippi 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.

C. What is the Agency's Authority for Taking this Action?

    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. 
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. 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 (15 U.S.C. 2684), 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 (15 U.S.C. 2684(h)), 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. 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 
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 (15 U.S.C. 
2684(a)). This authorization becomes ineffective, however, if EPA 
disapproves the application or withdraws the program authorization.

III. State Program Description Summary

    The following summary of Mississippi's proposed final program has 
been provided by the applicant.

Mississippi Lead-Based Paint Training and Certification Program

    The State of Mississippi, through the Mississippi Department of 
Environmental Quality (MDEQ), is seeking final authorization from EPA 
to administer and enforce its own lead-based paint activities program. 
Regulations setting out the procedures and requirements for these 
activities were adopted by the Commission on Environmental Quality on 
January 22, 1998. Requirements under the regulations were applicable 
beginning August 31, 1998. The authority to administer and enforce a 
State program was provided for in the ``Lead-Based Paint Activity 
Accreditation and Certification Act'' passed by the Mississippi 
Legislature during the 1997 regular session.
    The State lead-based paint program regulations are applicable to 
persons engaged in lead-based paint activities in target housing and 
child-occupied facilities. The State certification program requirements 
include the certification of firms, inspectors, risk assessors, 
supervisors, project designers and workers. Each certification 
discipline must meet required academic and/or experience requirements 
of the

[[Page 47544]]

State program regulations. Individuals must successfully pass the third 
party exam applicable to the certification discipline in order to be 
certified. The State program sets forth work practice standards for 
persons performing lead-based paint activities. The State program 
requires the filing of a project notification, in writing, prior to the 
commencement of any lead-based paint abatement activity.
    All initial and refresher lead-based paint activities training 
programs must be accredited. The State program requires training 
programs to notify the State prior to conducting a training course. 
Full approval of a training program's lead-based paint activities 
course is contingent on a satisfactory on-site course audit. The State 
program provides for the suspension, revocation, or modification of 
training program accreditation and certifications of individuals and 
firms.
    The State lead program also conducts outreach and compliance 
assistance activities. The objective of the activities is to educate 
the public and regulated community of the hazards of lead-based paint. 
The activities also inform the public and regulated community of the 
regulatory requirements applicable to lead-based paint activities.

IV. Federal Overfiling

    Section 404(b) of TSCA 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. Submission to Congress and the Comptroller General

    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 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: July 9, 2002.
J.I. Palmer, Jr.,
Regional Administrator, Region IV.
[FR Doc. 02-18223 Filed 7-18-02; 8:45 am]
BILLING CODE 6560-50-S