[Federal Register Volume 63, Number 191 (Friday, October 2, 1998)]
[Notices]
[Pages 53051-53055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26455]
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ENVIRONMENTAL PROTECTION AGENCY
[PB-402404-US/PB-402404-LS; FRL-6018-9]
Lead-Based Paint Activities in Target Housing and Child-Occupied
Facilities; Upper Sioux Community's and Lower Sioux Community's
Authorization Application
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; request for comments and opportunity for public
hearing.
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SUMMARY: On April 14, 1998, both the Upper Sioux Community and Lower
Sioux Community submitted applications 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). This notice
announces the receipt of the Upper Sioux Community's application and
the Lower Sioux Community's application, and provides a 45-day public
comment period and an opportunity to request a public hearing on each
application.
DATES: Submit comments on the authorization application(s) on or before
November 16, 1998. Public hearing requests must be submitted on or
before October 19, 1998.
ADDRESSES: Submit (in duplicate) all written comments and/or requests
for a public hearing identified by docket control number ``PB-402404-
US'' for
[[Page 53052]]
Upper Sioux Community and ``PB-402404-LS for Lower Sioux Community to:
Environmental Protection Agency, Region V, DT-8J, 77 West Jackson
Blvd., Chicago, IL 60604, e-mail: avant.emma@epamail.epa.gov.
Comments, data, and requests for a public hearing may also be
submitted electronically to: avant.emma@epamail.epa.gov. Follow the
instructions under Unit IV. of this document. No Confidential Business
Information (CBI) should be submitted through e-mail.
FOR FURTHER INFORMATION CONTACT: Emma Avant, Project Officer,
Environmental Protection Agency, Region V, DT-8J, 77 West Jackson
Blvd., Chicago, IL 60604, telephone: (312) 886-7899, e-mail:
avant.emma@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
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.
26810-92), entitled ``Lead Exposure Reduction.''
Section 402 of TSCA authorizes and directs EPA to promulgate final
regulations governing lead-based paint activities 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 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 final
program authorization, 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 et seq.). 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.
II. Tribal Program Description Summaries
A. Upper Sioux Community
The Upper Sioux Community Board of Trustees has adopted the
ordinance entitled ``Upper Sioux Lead Ordinance'' in order to provide
clear and specific guidance in the assessment, inspection, pre-
renovation notification and abatement of lead-based paint activities on
the Upper Sioux Reservation. Penalties for non-compliance are
established. The ordinance targets all buildings located on the Upper
Sioux Reservation.
The ordinance is designed to be at least as protective as the
Federal law and provide for adequate enforcement of all provisions
through a schedule of flexible remedies. This is accomplished through a
combination of Tribal specific requirements (training accreditation)
that are identical to the Federal regulations and through incorporation
by reference of other required Federal elements (certification of
individual, workplace standards and pre-renovation notification
activities). Also incorporated by reference are the Federal definitions
with the notable expansion of the definition of target housing to
include all reservation buildings.
The ordinance contains enforcement and compliance requirements
consisting of a schedule of flexible remedies and an appeals process.
The Upper Sioux Lead Program and request for Federal delegation of
authority is a natural application of Tribal sovereign power over
environmental regulatory activities on Tribal lands for the health,
welfare, and safety of Tribal community members.
The Upper Sioux Reservation consists of approximately 1,200 acres
of land in southwestern Minnesota. Pre-1978 building stock is estimated
to be approximately 8 structures, this from slightly over 40 structures
on the reservation. The Tribal population consists of approximately 150
members on the Upper Sioux Reservation and the same number in the local
off-reservation service area.
The Tribal Administrator's office (TA), working with the Office of
the Environment (OE) has maintained a Lead Program since 1996. Receipt
of EPA Lead Program funding has occurred in FY97 and FY98. The Tribe
has conducted a series of lead-based paint regulatory activities prior
to the adoption of the Upper Sioux Community Lead Program ordinance in
April 1998. Several types of lead-based paint activities have been
conducted to date. Two OE personnel attended inspector and risk
assessor training courses. There has been the inspection and risk
assessment of two pre-1978 structures. All activities were conducted in
accordance with an inspection and risk assessment Quality Assurance
Practices Plan (QAPP) approved by EPA Region V, July 9, 1997. Another
activity has been the Tribal blood lead level testing program begun in
1998 in accordance with the blood lead level testing QAPP approved by
EPA Region V, September 30, 1997. Approximately 15% of at risk Tribal
members have been tested. No person has been determined to be at or
above the blood lead action level although retesting was necessary in
several instances. The OE (which is formed jointly with the Lower Sioux
Indian Community) has been involved in one enforcement and compliance
action at the Lower Sioux Reservation. In one building inspection and
risk assessment instance, enforcement and compliance activity was
necessary based upon the results of the inspection and risk assessment
at a school building. The building was closed to further use pending
abatement. This example is an indication of the capability and adequacy
of the present Tribal ordinance since the Upper Sioux Community Lead
Ordinance was developed through the OE which used its experience
administering the Lower Sioux Lead Program to craft a workable
ordinance for the Upper Sioux Community. The example is also indicative
of the manner in which the Upper Sioux program administration would
occur. The details of this situation are explained below.
In the sole enforcement and compliance situation, testing indicated
that a school building had high lead dust levels which were likely to
be a reoccurring problem. The occupants conducted abatement activities,
although not to the extent recommended by the OE. Retesting of the
building (post-abatement clearance) confirmed the initial testing
results. Blood lead level testing for children using the building was
conducted and although no actionable levels of blood lead were
detected, the situation was deemed
[[Page 53053]]
dangerous enough to warrant further regulatory action. The building
occupant (and community members) were sent an informational warning
letter and the letter was posted. Upon continued use of the building by
the occupant, it was necessary to post warning signs at all entrances
and the building was closed to further use. It was determined that use
could be resumed upon adequate abatement and post-abatement test
clearance. The users of the building have decided not to proceed with
abatement at this time.
This example will be referred to throughout the ``Program
Analysis'' of the application as an example of the manner in which the
Upper Sioux Community Lead Ordinance would be applied to a similar
situation and as an indication that the approach used in the Upper
Sioux Lead Program ordinance is appropriate for the Tribal community
while at the same time meeting all Federal standards.
The Upper Sioux Lead Program is designed to meet the regulatory,
health, welfare, and safety needs of the Tribal community while
satisfying all Federal requirements for program delegation. This has
been accomplished through a combination of direct incorporation of
Federal law and adoption of tribally unique provisions in the Upper
Sioux Lead Program ordinance. The result is a tribally responsive
regulatory scheme that contains certain provisions more protective than
the Federal law and in all respects is ``at least as protective'' as
the Federal law. The ordinance specifically states that all provisions
are ``intended to be . . . construed to be at least as protective
as the federal'' law (Ordinance 4.B).
In a small community such as the Upper Sioux Tribal Community
``adequate enforcement capability'' can be provided by the flexible
remedies written into the ordinance and the use of the existing TA,
contracted security detail, OE and Tribal court system. Such structure
has worked successfully in the enforcement example previously detailed.
Where any significant variance from the Federal regulations does
occur in the Upper Sioux Community Lead Program Ordinance, it is
specifically noted in the ``Program Analysis'' section of the
application and the divergence is shown to make the Upper Sioux Lead
Program either more protective or at least as protective as the Federal
law.
B. Lower Sioux Community
The Lower Sioux Indian Community has adopted by Resolution Number
20-98, dated March 27, 1998, the ordinance entitled ``Lower Sioux Lead
Program'' in order to provide clear and specific guidance in the
assessment, inspection, pre-renovation notification, and abatement of
lead-based paint activities on the Lower Sioux Reservation. Penalties
for non-compliance are established. The ordinance targets all buildings
located on the Lower Sioux Reservation.
The ordinance is designed to be at least as protective as the
Federal law and provide for adequate enforcement of all provisions
through a schedule of flexible remedies. This is accomplished through a
combination of Tribal specific requirements (training accreditation)
that are identical to the Federal regulations and through incorporation
by reference of other required Federal elements (certification of
individual, workplace standards, and pre-renovation notification
activities). Also incorporated by reference are the Federal definitions
with the notable expansion of the definition of target housing to
include all reservation buildings.
The ordinance contains enforcement and compliance requirements
consisting of a schedule of flexible remedies and an appeals process.
The Lower Sioux Lead Program and request for Federal delegation of
authority is a natural application of Tribal sovereign power over
environmental regulatory activities on Tribal lands for the health,
welfare, and safety of Tribal community members.
The Lower Sioux Reservation consists of approximately 1,750 acres
of land in southwestern Minnesota. Pre-1978 building stock is estimated
to be approximately 15 structures, this from slightly over 100
structures on the reservation. The Tribal population consists of
approximately 300 members on the Lower Sioux Reservation and the same
number in the local off-reservation service area.
The Office of the Environment (OE) has maintained a Lead Program
since 1996. Receipt of EPA Lead Program funding has occurred in FY97
and FY98. The Tribe has conducted a series of lead-based paint
regulatory activities prior to the adoption of the Lower Sioux Lead
Program ordinance in March 1998.
Several types of lead-based paint activities have been conducted to
date. Two OE personnel attended inspector and risk assessor training
courses. There has been the inspection and risk assessment of six pre-
1978 structures. All activities were conducted in accordance with an
inspection and risk assessment QAPP approved by EPA Region V, July 9,
1997. Another activity has been the Tribal blood lead level testing
program begun in 1998 in accordance with the blood lead level testing
QAPP approved by EPA Region V, September 30, 1997. Approximately 10% of
at risk Tribal members have been tested. No person has been determined
to be at or above the blood lead action level although retesting was
necessary in several instances. The OE has also worked with off-
reservation residing Tribal members on lead-based paint real estate
notification issues under the State of Minnesota laws.
In one building inspection and risk assessment instance,
enforcement and compliance activity was necessary based upon the
results of the inspection and risk assessment at a school building.
This example is an indication of the capability and adequacy of the
present Tribal ordinance because all actions taken in the example are
now codified within the Lower Sioux Lead Program Ordinance and are an
indication that the ordinance is workable and meets the needs of the
Community. The details of this situation are explained below.
In the sole enforcement and compliance situation, testing indicated
that a school building had high lead dust levels which were likely to
be a reoccurring problem. The occupants conducted abatement activities,
although not to the extent recommended by the OE. Retesting of the
building (post-abatement clearance) confirmed the initial testing
results. Blood lead level testing for children using the building was
conducted and although no actionable levels of blood lead were
detected, the situation was deemed dangerous enough to warrant further
regulatory action. The building occupant (and community members) were
sent an informational warning letter and the letter was posted. Upon
continued use of the building by the occupant, it was necessary to post
warning signs at all entrances and the building was closed to further
use. It was determined that use could be resumed upon adequate
abatement and post abatement test clearance. The users of the building
have decided not to proceed with abatement at this time.
This example will be referred to throughout the ``Program
Analysis'' of the application as an example of Tribal capability to
carry out the provisions of the Tribal ordinance, as an indication of
the adequacy of the compliance and enforcement section of the Tribal
ordinance and as an indication of the Tribal capacity to administer the
Lower Sioux Lead Program as proposed.
The Lower Sioux Lead Program is designed to meet the regulatory,
health, welfare and safety needs of the Tribal community while
satisfying all Federal
[[Page 53054]]
requirement for program delegation. This has been accomplished through
a combination of direct incorporation of Federal law and adoption of
tribally unique provisions in the Lower Sioux Lead Program Ordinance.
The result is a tribally responsive regulatory scheme that contains
certain provisions more protective that the Federal law and in all
respects is ``at least as protective'' as the Federal law. The
ordinance specifically states that all provisions are ``intended to be
. . . construed to be at least as protective as the federal'' law
(Ordinance 4.B).
In a small community such as the Lower Sioux Tribal Community
``adequate enforcement capability'' can be provided by the flexible
remedies written into the ordinance and the use of the existing
environmental office, Tribal peace officer and Tribal court system.
Such structure has worked successfully in the enforcement example
previously detailed.
Where any significant variance from the Federal regulations does
occur in the Lower Sioux Lead Program it is specifically noted in the
``Program Analysis'' section of the application and the divergence is
shown to make the Lower Sioux Lead Program either more protective or at
least as protective as the Federal law.
III. Federal Overfiling
TSCA section 404(b) 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.
IV. Public Record and Electronic Submissions
The official record for this action, as well as the public version,
has been established under the docket control number ``PB-402404-US''
for Upper Sioux Community and ``PB-402404-LS'' for Lower Sioux
Community. Copies of this notice, the Lower Sioux Indian Community's
and Upper Sioux Community's authorization application, and all comments
received on each 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 application materials are available at: 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:
avant.emma@epamail.epa.gov
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 tracking number ``PB-402404-US'' for Upper Sioux
Community and ``PB-402404-LS'' for Lower Sioux Community.'' Electronic
comments on this document may be filed online at many Federal
Depository Libraries.
V. Regulatory Assessment Requirements
A. Certain Acts and Executive Orders
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. 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). In addition,
this action does not contain any information collection requirements
and therefore does not require review or approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.).
B. 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
provide to 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.
C. 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.
[[Page 53055]]
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: September 21, 1998.
David A. Ullrich,
Acting Regional Administrator, Region V.
[FR Doc. 98-26455 Filed 10-1-98; 8:45 am]
BILLING CODE 6560-50-F
