[Federal Register Volume 63, Number 208 (Wednesday, October 28, 1998)]
[Notices]
[Pages 57682-57684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28866]
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ENVIRONMENTAL PROTECTION AGENCY
[PB-402404-UT; FRL-6037-5]
Lead-Based Paint Activities in Target Housing and Child-Occupied
Facilities; State of Utah's Authorization Application
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; request for comments and opportunity for public
hearing.
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SUMMARY: On August 31, 1998, the State of Utah submitted an 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). This notice announces the receipt of Utah's
application, provides a 45-day public comment period and an opportunity
to request a public hearing on the application. Utah has provided a
certification that this 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 be established.
DATES: Comments on the authorization application must be received on or
before December 14, 1998.
ADDRESSES: Submit all written comments and/or requests for a public
hearing identified by docket control number PB-402404-UT (in duplicate)
to: Bruce Cooper, Environmental Protection Agency, Region VIII, 8P3-T,
999 18th St., Suite 500, Denver, CO 80202-2466. Comments, data, and
requests for a public hearing may also be submitted electronically to:
cooper.bruce@epa.gov. 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: Dave Combs, Regional Toxics Team
Leader, 999 18th St., Suite 500, 8P3-T, Denver, CO 80202-2466;
telephone: 303-312-6021; e-mail address: combs.dave@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.
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 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
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(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
[[Page 57683]]
authorization, 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 authorization.
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 Utah's application meets the requirements for
EPA approval. This notice also provides an opportunity to request a
public hearing on the application. Utah has provided a self-
certification letter from the Governor that its program meets the
requirements for authorization of a State program under section 404 of
TSCA. The State of Utah has requested interim approval of the
compliance and enforcement program portion of the Utah Lead Program.
Therefore, pursuant to section 404, the program is deemed authorized as
of the date of submission (August 31, 1998). 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 Utah.
II. State Program Description Summary
The following summary of Utah's program has been provided by the
applicant:
A. Legislative Summary
During the 1998 Utah legislative session, Senate Bill 118 (SB 118)
was unanimously passed by both the House and the Senate. SB 118 amends
section 19-2-104, Utah Code Annotated (UCA) of the Utah Air
Conservation Act, which provides authority for the Utah Air Quality
Board (Board) to make administrative rules for a Utah Lead-Based Paint
(LBP) Program. The legislation specifically gives authority to the
Board to make rules for training, certification, and performance
requirements in accordance with the section 402 and 404 of subchapter
IV of the Toxic Substances Control Act (TSCA). SB 118 also provides the
Board with the authority to establish work practice, certification and
clearance sampling requirements for persons who conduct LBP inspections
in facilities subject to TSCA Title IV. The legislation also
specifically gives the Board the authority to establish certification
requirements for inspectors, risk assessors, supervisors, project
designers or abatement workers when performing LBP activities subject
to TSCA Title IV.
The Utah Attorney General's Office reviewed the content of SB 118
prior to enactment. It determined that SB 118 would provide the Board
with the necessary legislative authority to develop a Utah LBP Program
that is as protective as the Federal LBP Program (Title 40 Code of
Federal Regulations (CFR) part 745, subpart L).
B. Administrative Rule Summary
On April 25, 1998, the Utah Department of Environmental Quality/
Division of Air Quality (UDEQ/DAQ) provided the Board with a proposed
administrative rule (R307-840--Lead-Based Paint Accreditation,
Certification and Work Practice Standards) for the Utah LBP Program.
R307-840, adopts substantially all of 40 CFR part 745, subpart L by
reference as the administrative rule regulating LBP activities in
target housing and child-occupied facilities. The UDEQ/DAQ also
proposed to add a new subsection to the Utah Air Conservation Rules
(R307-1-2.5.1.f, Utah Administrative Code (UAC)) that allows any
hearings or other proceedings pertaining to R307-840, to be conducted
informally.
On August 12, 1998, the UDEQ/DAQ reported back to the Board with
the comments received during the public hearing. The Board reviewed
those comments and subsequently adopted the UDEQ/DAQ proposed
administrative rules R307-840, UAC (appendix 4) and R307-1-2.5.1.f, UAC
(appendix 5) with an effective date of August 13, 1998.
R307-840, UAC incorporates the Federal regulation with a few
modifications to facilitate LBP program implementation by the State of
Utah. The UDEQ/DAQ considers these modifications necessary to implement
an effective LBP program and also considers these modifications to be
as protective as the Federal LBP program. The following paragraphs
provide a brief summary of the four sections of State Administrative
Rule R307-840, UAC. Each section will identify which parts of the
Federal regulations in 40 CFR part 745, subpart L are adopted by
reference and give a brief overview of the contents of each section.
Throughout R307-840, UAC, references to ``EPA'' (Environmental
Protection Agency) have been replaced with ``Executive Secretary''
(meaning Executive Secretary of the Utah Air Quality Board) when
``EPA'' is used for LBP program administrative activities.
1. R307-840-1--Purpose and applicability. This section uses the
regulatory language found in 40 CFR 745.220 and modifies that language
to facilitate LBP program implementation in Utah. These modifications
to the Federal regulations in this and following sections are
considered nonsubstantive by the UDEQ/DAQ and are considered as
protective as the Federal LBP regulations.
2. R307-840-2--Definitions. This section substantially adopts 40
CFR 745.223 by reference. The only significant change to Federal
definitions are those that reference ``TSCA Section 403.'' EPA has not
yet promulgated final rules pursuant to TSCA section 403. The UDEQ/DAQ
could not propose administrative rules to the Board which included a
reference for a regulation which was not yet final. The UDEQ/DAQ chose
to substitute an existing document (EPA Guidance on Identification of
LBP Hazards - 60 FR 47248-57) which has been used by EPA as interim
guidance during the TSCA section 403 rulemaking process.
3. R307-840-3--Accreditation, certification and work standards:
target housing and child-occupied facilities. This section adopts 40
CFR 745.225(a)-(g), 745.225(i), 745.226(a)-(h), 745.227, and 745.233
from the Federal LBP regulations by reference. This section of the Utah
LBP rule outlines the requirements for course accreditation,
certification of individuals and firms as well as establishing the Utah
LBP work practice standards.
Section R307-840-3, UAC creates some minor modifications to the
Federal LBP regulations to facilitate program implementation in Utah.
The Utah rules provide additional flexibility during the course
accreditation process by allowing instructors to use experience from
Utah accredited courses as relevant training experience, as well as
allowing training experience from EPA-accredited and EPA-authorized
State and Indian Tribe accredited courses. The Utah LBP rules require
course providers to submit all course materials for approval when
seeking course accreditation even if the course has been previously
approved by another State, Indian Tribe, or the EPA. The Utah rules
also require that LBP activities performed in the State of Utah must be
performed according to the work practice standards of 40 CFR 745.227,
which are adopted by reference. However, documented methodologies for
the sampling of paint, dust and soil that are found in the regulations,
guidance, methods or protocols used by other States, Indian Tribes, or
EPA may not be considered appropriate methodologies in Utah.
[[Page 57684]]
4. R307-840-4--Lead-based paint fees. This section adopts a fee
schedule for the Utah LBP Program during the first year of program
implementation as allowed by section 63-38-3.2(5)(a) UAC. In subsequent
years, LBP fees will be incorporated into the UDEQ Fee Schedule which
is approved by the Utah Legislature annually.
III. 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.
IV. 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-404404-UT. Copies
of this notice, the State of Utah'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,
8P3-T, 999 18th St., Suite 500, 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,'' ``CBI,'' or
with some other appropriate designation, and a commenter submitting
such information must also prepare a non-confidential 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:
cooper.bruce@epa.com
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-UT. Electronic comments on this
document may be filed online at many Federal Depository Libraries.
Information claimed as CBI should not be submitted electronically.
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. 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: October 21, 1998.
William Yellowtail,
Regional Administrator, Region VIII.
[FR Doc. 98-28866 Filed 10-27-98; 8:45 am]
BILLING CODE 6560-50-F
