[Federal Register Volume 68, Number 5 (Wednesday, January 8, 2003)]
[Notices]
[Pages 1059-1061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-337]


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ENVIRONMENTAL PROTECTION AGENCY

[OPPT-2002-0080; FRL-7282-8]


Lead-Based Paint Activities; State of North Dakota Lead-Based 
Paint Program

AGENCY: Environmental Protection Agency (EPA).

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

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SUMMARY: On October 4, 2002, EPA received an application from the State 
of North Dakota requesting authorization to administer a Program in 
accordance with section 402 of the Toxic Substances Control Act (TSCA). 
Included in the application was a letter signed September 26, 2002, by 
the Governor of North Dakota. stating that the State's Lead-Based Paint 
Abatement Program is at least as protective of human health and the 
environment as the Federal program under TSCA section 402. Also, 
included was a letter from the Attorney General of North Dakota, 
certifying that the laws and regulations of the State provided adequate 
legal authority to administer and enforce TSCA section 402. North 
Dakota certifies that its program meets the requirements for approval 
of a State program under section 404 of TSCA and that North Dakota has 
the legal authority and ability to implement the appropriate elements 
necessary to enforce the program. Therefore, pursuant to 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 be 
established. Today's notice announces the receipt of North Dakota's 
application, provides a 45-day public comment period, and an 
opportunity to request a public hearing on the application.

DATES: Comments on the application must be received on or before 
February 24, 2003.

ADDRESSES: Submit all written comments and/or requests for a public 
hearing identified by docket ID number 2002-0080 (in duplicate) to: 
Amanda Hasty, Environmental Protection Agency, Region VIII, 8P-P3T, 999 
18th St., Suite 300, 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, 999 18th St., Suite 300, 8P-P3T, Denver, CO 80202-2466; 
telephone (303) 312-6021; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General

A. Does this Notice Apply to Me?

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

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

    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. The 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. 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). These 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 or Indian Tribe may seek 
authorization from EPA to administer and enforce its own lead-based 
paint activities program.
    States and Tribes that choose to apply for program authorization 
must submit a complete application to the appropriate Regional EPA 
Office for review. EPA will review those applications within 180 days 
of receipt of the complete application. To receive

[[Page 1060]]

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 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 the 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 withdrawals the application.
    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 North Dakota's application meets the 
requirements for EPA approval. This notice also provides an opportunity 
to request a public hearing on the application. If EPA finds that the 
program does not meet the requirements for authorization of a state 
program, EPA will disapprove the program application, at which time a 
notice will be issued in the Federal Register and the Federal program 
will be established in North Dakota.

II. State Program Description Summary

    This summary is provided in accordance with 40 CFR 745.324(a)(4). 
The applicant has provided the following summary of their lead program. 
The 2001 North Dakota Legislative session adopted changes to North 
Dakota's Century Code (NDCC) 23-25, ``Air Pollution Control Law.'' 
These changes authorized North Dakota's Department of Health (NDDH) to 
adopt and enforce certain requirements of 40 CFR part 745, subpart L, 
into the North Dakota Administrative Code (NDAC). The NDDH began 
amending the NDAC in January 2002. The amendments to the NDAC were 
adopted in accordance with the administrative rule practices 
requirements contained in NDCC 28-32 titled ``Administrative Agencies 
Practice Act.''
    On April 19, 2002, a public hearing was held to consider comments 
on the proposed administrative rule amendments. Comments were accepted 
for 30 days before and 30 days after the public hearing. A regulatory 
analysis including the classes of people probably affected, probable 
impact including economic impact, probable impact to the Department and 
alternative methods considered were prepared and made available prior 
to the start of the public comment period. In addition, the Department 
prepared a takings assessment (economic analysis) and a stringency 
determination in conjunction with the regulatory analysis.
    On June 18, 2002, the State Health Council adopted the final rule. 
On August 1, 2002, the North Dakota Legislative Council published the 
North Dakota Administrative Code (NDAC) 33-15-24 titled ``Standards for 
Lead-Based Paint Activities,'' to adopt certain provisions of 40 CFR 
part 745, subpart L, into the North Dakota Administrative Code. The 
rule became effective September 1, 2002.
    On August 15, 2002, a public hearing was held regarding North 
Dakota's intent to seek EPA authorization of its lead-based paint 
program. Comments were accepted for 30 days before and 30 days after 
the public hearing. No comments were received concerning North Dakota's 
intent to seek EPA authorization of its program. NDAC 33-15-24 
references with minor changes the requirements contained in 40 CFR 
745.220, ``Scope and Applicability,'' Sec.  745.223, ``Definitions,'' 
Sec.  745.225, ``Accreditation of Training Programs: Target Housing and 
Child-Occupied Facilities,'' Sec.  745.226, ``Certification of 
Individuals and Firms Engaged in Lead-Based Paint Activities: Target 
Housing and Child-Occupied Facilities,'' Sec.  745.227, ``Work Practice 
Standards for Conducting Lead-Based Paint Activities: Target Housing 
and Child-Occupied Facilities,'' and Sec.  745.233, ``Lead-Based Paint 
Activities Requirements.'' Minor changes were made to these sections. 
The term ``certification of companies'' was replaced with ``licensing 
of companies.'' The term ``certification'' was reserved for 
individuals. The terminology change was made for clarification and ease 
of implementation when discussing requirements with the regulated 
community. All references to EPA grandfather clauses, which preceded 
the rulemaking, were deleted. Definitions including chewable surface, 
dripline, lead-based paint hazard, wipe sample, dust lead hazard, paint 
lead hazard, soil lead hazard, work practice requirement and renovation 
were adopted from 40 CFR 745.63, 745.65, and 745.83. Elevated blood 
lead level concentration was changed from 20 micrograms per deciliter 
to 10 micrograms per deciliter to follow the U.S. Center for Disease 
Control (CDC) guidelines. Notification requirements were added to NDAC 
33-15-24-03. The notification requirements contain provisions for 
notification to the State prior to beginning lead-based paint abatement 
activities and prior to conducting lead-based paint abatement courses. 
Also, fees for certification of individuals, licensing of companies and 
accreditation of lead-based paint courses were established in NDAC 33-
15-24-04.
    Several other minor changes were made. These changes are discussed 
in more detail in a document titled, ``Summary of Proposed North 
Dakota's Lead-Based Paint Rules, January 2002.'' The North Dakota Lead 
Activities program will be administered by the North Dakota Department 
of Health, Division of Air Quality. The North Dakota Department of 
Health began implementing its program on the day the rule became 
effective, September 1, 2002. Additional information, copies of the 
documents referenced above and application forms for licensing and 
certification may be obtained by contacting the North Dakota Department 
of Health at (701) 328-5188.
    In accordance with 40 CFR 745.324(d), ``Program Certification,'' 
the Governor of North Dakota submitted a self-certification letter to 
the EPA Administrator on September 26, 2002, certifying that the State 
program meets the requirements contained in 40 CFR part 
745.324(e)(2)(i) and (e)(2)(ii). Included in the application was a 
letter from the Attorney General of North Dakota, certifying that the 
laws and regulations of the State provided adequate legal authority to 
administer and enforce TSCA section 402. Therefore, as of September 26, 
2002, the State of North Dakota is authorized to administer and enforce 
the lead-based paint program under TSCA section 402, until such time as 
the Administrator disapproves the application or withdraws the State's 
Program authorization.

III. Federal Overfiling

    TSCA section 404(b) (15 U.S.C. 2684(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.

[[Page 1061]]

IV. Public Record and Electronic Submissions

    The official record for this action, as well as the public version, 
has been established under docket ID number 2002-0080. Copies of this 
notice, the State of North Dakota'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, 
and 8P-P3T, 999 18th St., Suite 300, Denver CO 80202.
    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,'' 
[ldq]uo;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 ID number. Electronic comments on this 
document may be filed online at many Federal Depository Libraries. 
Information claimed as CBI should not be submitted electronically.

V. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 as amended 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 in 40 CFR Part 180

    Environmental protection, Hazardous substances, Lead, Reporting and 
recordkeeping requirements.


    Dated: December 12, 2002.
Robert E. Roberts,
Regional Administrator, Region VIII.
[FR Doc. 03-337 Filed 1-7-03; 8:45 am]
BILLING CODE 6560-50-S