02-698. Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities; State of Illinois Authorization Application

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

On October 12, 2001, the State of Illinois 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. 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 approval of a State program under section 404 of TSCA. 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 take effect in Illinois.

DATES:

Comments, identified by docket control number PB-402404-IL, must be received on or before February 25, 2002. In addition, a public hearing request may be submitted on or before February 25, 2002.

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 control number PB-402404-IL in the subject line on the first page of your response.

FOR FURTHER INFORMATION CONTACT:

Larisa Leonova, State of Illinois Project Officer, Pesticides and Toxics Branch (DT-8J), Environmental Protection Agency, Region V, 77 West Jackson Blvd., Chicago, IL 60604; telephone: [phone]; e-mail address: [e-mail].

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 Illinois. 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 Federal Register notice document, and certain other related documents that 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” 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 PB-402404-IL. The official record consists of the documents specifically referenced in this action, this notice, the State of Illinois's authorization application, 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 4:30 p.m., Monday through Friday, excluding legal holidays. The docket is located at the EPA Region V Office, Environmental Protection Agency, Waste, Pesticides and Toxics Division, Pesticides and Toxics Branch, Toxics Program Section, (DT-8J), 77 West Jackson Blvd, Chicago, IL 60604.

C. How and to Whom Do I Submit Comments and Hearing Requests?

You may submit comments and hearing requests through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number PB-402404-IL in the subject line on the first page of your response.

1. By mail. Submit your comments and hearing requests to: Environmental Protection Agency, Region V, Waste, Pesticides and Toxics Division, Pesticides and Toxics Branch, (DT-8J), 77 West Jackson Blvd, Chicago, IL 60604.

2. In person or by courier. Deliver your comments and hearing requests to: Environmental Protection Agency, Waste, Pesticides and Toxics Division, Pesticides and Toxics Branch, (DT-8J), 77 West Jackson Blvd, Chicago, IL 60604. The regional office is open from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.

3. Electronically. You may submit your comments and hearing requests electronically by e-mail to: [e-mail] or mail your computer disk to the address identified above. Do not submit any information electronically that you consider to be CBI. Electronic comments and hearing requests must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. Comments and data and hearing requests will also be accepted on standard disks in WordPerfect 6.1/8.0 file format. All comments and hearing requests in electronic form must be identified by docket control number PB-402404-IL. Electronic comments and hearing requests 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 FURTHER INFORMATION CONTACT.

II. Background

A. What Action is the Agency Taking?

The State of Illinois has provided a certification letter stating that its lead-based paint training and certification self-certified program meets the requirements for authorization of a State program under section 404 of TSCA and has requested final approval of the Illinois lead-based paint training and certification program. Therefore, pursuant to section 404 of TSCA, the program is deemed authorized as of the date of submission (i.e., October 12, 2001). If EPA subsequently finds that the program does not meet all the requirements for approval of a State program, EPA will work with the State to correct any deficiencies in order to approve the program. If the deficiencies are not corrected, a notice of disapproval will be issued in the Federal Register and a federal program will be implemented in the State.

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 the application. Therefore, by this notice EPA is soliciting public comment on whether the 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.

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. That Act amended TSCA,15 U.S.C. 2601 et seq., by adding Title IV (15 U.S.C. 2681-2692), titled “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 of TSCA, 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. 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 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. 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 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. This authorization becomes ineffective, however, if EPA disapproves the application or withdraws the program authorization.

III. State Program Description Summary

The following summary of the State of Illinois proposed program has been provided by the applicant.

EPA issued correspondence to the Illinois Department of Public Health (“the Department”) dated May 6, 1999, which granted a 3-year interim approval of the Illinois Lead Poisoning Prevention Program. The interim approval authorized the Department to enforce the Illinois Lead Poisoning Prevention Act (LPPA), 410 ILCS 45, and Lead Poisoning Prevention Code (LPPC), 77 Ill Adm. Code 845, in lieu of the Federal program. The effective date of the interim approval was April 16, 1999 (published by EPA in the Federal Register of February 29, 2000 (65 FR 10787) (FRL-6399-4). As a condition of the interim approval, the Department was required to submit a request for full (final) approval of the Illinois Program at least 180 days prior to the expiration of the 3-year interim approval.

Illinois is hereby applying for final approval and authorization to enforce its Lead Poisoning Prevention Program (LPPA). The Department provided amended copies of the LPPA, and Lead Poisoning Prevention Act Code (LPPC), and the Program Policies that govern the administration of the program. Copies of the correspondence from the Illinois Attorney General's office indicating the inapplicability of the Illinois Environmental Audit Privilege Law to the Illinois Lead Poisoning Prevention Act and the U.S. EPA response accepting the opinion offered by the Illinois Attorney General's office were also included with this application. These materials resolve the only remaining issue dealing with the applicability of the Illinois Environmental Audit Privilege Law to the enforcement of the LPPA and LPPC. Some materials submitted with the original application have been updated and revised and are submitted with this application. They are described below and will augment parts of the Department's original application for authorization.

Illinois Lead Abatement Program

The Department implements the LPPA and Code 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 to lead in children and to ensure that lead hazards are managed, mitigated or abated through the administration and enforcement of the LPPA and the LPPC, promulgated pursuant to the LPPA. The LPPA and LPPC, originally passed in 1973, were last amended in August 2001. This enabled the Department to pursue expanded enforcement for violations of the LPPA and LPPC, including administrative fines against licensed professionals and firms for violations of the LPPA and LPPC.

Individuals seeking licensure by the State of Illinois in the abatement industry as a worker, supervisor, inspector and risk assessor must first make application to the Department. The application requires proof 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 provided in section 845.28 of the LPPC. All lead licenses expire annually. Application for renewal includes the successful completion of an approved refresher course that is specific to the lead field of interest every 3 years. Individuals or firms can also apply for a lead contractor's license. This requires proof that the applicant holds a certificate of financial responsibility in the form of liability insurance that specifically covers lead work. The applicant has a written standard operation procedure that includes medical monitoring and a respirator protection program as specified in the Occupational Safety and Health Administration (OSHA) regulations; (incorporated by reference in section 845.12 of the LPPC), the applicant provides a detailed description of all legal proceedings or claims filed against them concerning any lead mitigation or lead abatement activities; the applicant signs a statement that only licensed lead workers and lead supervisors will be used to conduct lead mitigation and lead abatement activities; and, that the applicant agrees to notify the Department before beginning any lead mitigation or lead abatement project. Although the contractor applicant is not required to successfully complete a lead abatement training course, the applicant needs to employ a licensed lead supervisor and must assure that all lead abatement workers will have a valid Illinois lead worker license and that a licensed lead supervisor will oversee the project and be on-site during lead mitigation or lead abatement activities. A contractor's license must be renewed annually. Reciprocal requests for any lead license may be submitted for review and will be considered on a case by-case-basis. 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 lead 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, lead supervisor, lead inspector and lead risk assessor disciplines must first make application to the Department. The application packet includes a checklist of materials 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 the course was determined to be satisfactory or not satisfactory. Training courses found not to be 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 made available to the public upon request. Illinois does not require the certification and licensure of the project designer discipline at this time. However, additional requirements have been established to prepare licensed lead supervisors 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 Illinois LPPC and in the policies and procedures of the Department. The Department has incorporated in section 845.12 of the LPPC, the U.S. Department of Housing and Urban Development (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (1995 and 1997) to enhance the work and performance standards throughout the LPPC. All inspections and risk assessments are completed by individuals holding an appropriate inspector or risk assessor license issued by the Department. Inspections and risk assessments are to be performed per incorporated HUD Guidelines. Lead mitigation and lead abatement activities are performed only by individuals or firms who hold the appropriate lead contractor license issued by the Department. The lead contractor has the responsibility to utilize documented methodologies to ensure that work is performed effectively and in a manner that protects building occupants and workers, and complies with the requirements outlined in the HUD Guidelines and the LPPC requirements.

Complaint investigations, inspections, course audits and enforcement activities are accomplished by Department staff located in the central and regional offices and through delegate agency agreements with local health departments. Central office staff provides for the licensing of individuals that conduct all lead-based activities in the state. One administrative assistant, one office administrator and three office associates process all licensure application submitted to the Department. One office associate is dedicated to support the Department's third party examination process. The third party examination is administered by an environmental health specialist III. Compliance and enforcement activities are conducted by an environmental health specialist I. A public service administrator is directly responsible for the day-to-day lead program activities, overall management of all program activities, and maintaining and revising the LPPA, LPPC and program policies to ensure compliance with more stringent requirements and documented methodologies. The public service administrator also serves as the Department Radiation Safety Officer responsible for all radioactive material utilized by the Department for lead investigations. Eight regional program staff conduct inspections on a daily basis as well as approximately 90 licensed lead risk assessors that work within our lead program as delegate agents under contract to perform the required investigations in their respective counties or municipalities. Overall program direction is provided 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 approval fees are also directed to that fund. Departmental policy and procedure manuals provide protocol to achieve all necessary aspects of the Illinois Lead Poisoning Prevention Program. In those policies, details of activities to be implemented, standard enforcement procedures and examples of required letters may be found. Enforcement is accomplished through administrative procedures that have been referenced in the LPPA and LPPC. Violations of the LPPA and LPPC are subject to enforcement by the State's Attorney in the respective county where the violation occurred, enforcement by the Illinois Attorney General's office, and enforcement through administrative fines and penalties by the Department.

The Department participates in Environmental Justice grants from EPA to provide education and information to people who would not normally receive information about the hazards of lead through normal media. Not-for-profit associations are provided grant funds to seek out parents of children who are likely to be exposed to lead and may not be aware of the hazards associated with lead or about how to prevent lead poisoning. Additionally, the Department or its agents provide consultative services and screening to high risk target populations within Illinois for lead poisoning.

Program Description

The Illinois lead program administration and enforcement is the responsibility of the Illinois Department of Public Health.

The Illinois Environmental Protection Agency (IEPA) is responsible for administration and enforcement of hazardous waste disposal including the provisions of RCRA.

Responsible Primary Agency:

Illinois Department of Public Health, G. Michael Brandt, Chief Asbestos and Lead Section, Division of Environmental Health, 525 West Jefferson Street, Springfield, IL 62761, [phone].

Other Participating Departments and Agencies:

Illinois Department of Public Health, Ronald Brown, Chief, Division of Health Assessment and Screening, 535 West Jefferson Street, Springfield, IL 62761, [phone].

Illinois Environmental Protection Agency, Connie Sullinger, Office of Chemical Safety, P.O. Box 19276, Springfield, IL 62794-9276, [phone].

EPA is only responsible for environmental pollution control in those cases where contaminants cross the property line of the address where lead abatement or mitigation is taking place. This includes waste disposal as well as air and water pollution that may leave the property. Such issues involving waste disposal or pollutants are investigated jointly, or are referred to IEPA.

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 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

• Environmental protection
• Hazardous substances
• Lead
• Reporting and recordkeeping requirements

Dated: December 13, 2001.

Thomas V. Skinner,

Regional Administrator, Region V.