[Federal Register Volume 64, Number 62 (Thursday, April 1, 1999)]
[Notices]
[Pages 15746-15749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8087]
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ENVIRONMENTAL PROTECTION AGENCY
[PB-402404-WV; FRL-6066-6]
Lead-Based Paint Activities in Target Housing and Child-Occupied
Facilities; The State of West Virginia's Authorization Application
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; request for comments and opportunity for public
hearing.
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SUMMARY: On December 17, 1998, the State of West Virginia 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 West Virginia's application, provides a 45-day
public comment period, and provides an opportunity to request a public
hearing on the application.
[[Page 15747]]
DATES: Comments on the authorization application must be received on or
before May 17, 1999. Public hearing requests must be received on or
before May 3, 1999.
ADDRESSES: Submit all written comments and/or requests for a public
hearing identified by docket control number ``PB-402404-WV'' (in
duplicate) to: Environmental Protection Agency, Region III, Waste and
Chemicals Management Division, Toxics Programs and Enforcement Branch
(3WC33), 1650 Arch St., Philadelphia, PA 19103-2029. Comments, data,
and requests for a public hearing may also be submitted electronically
to: johnson.artencia@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: Artencia R. Johnson (3WC33), Waste and
Chemicals Management Division, Environmental Protection Agency, Region
III, 1650 Arch St., Philadelphia, PA 19103-2029, telephone: (215) 814-
5754; e-mail address: johnson.artencia@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.
2681-2692), 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 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 (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
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.
Pursuant to section 404(b) of TSCA, EPA provides notice and an
opportunity for a public hearing on a State or Tribal program
application before authorizing the program. Therefore, by this notice
EPA is soliciting public comment on whether West Virginia's 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.
II. State Program Description Summary
The following summary of the State of West Virginia's proposed
program has been provided by the applicant:
In September 1994, the Radiation, Toxics and Indoor Air Division
created a Lead Program to provide environmental lead assessments in
childhood lead poisoning cases, to: prepare grant submittals for
Federal monies to support the program; promulgate legislation and
regulations to meet Federal mandates; provide technical assistance to
local and State agencies; and conduct lead hazard awareness and
education outreach activities to inform the public of the dangers of
lead poisoning.
The Lead Program has received Federal funding for the past 4 years.
During this time, the program has conducted or coordinated over 230
environmental lead assessments in childhood lead poisoning cases. The
Program sponsored creation of a Lead Advisory Committee to assist in
drafting proposed legislation to meet Federal mandates. The Program
continues to provide lead hazard awareness materials and technical
assistance to local and State agencies and the public.
Beginning in January 1996, and also in January 1997, the Bureau for
Public Health submitted proposed lead legislation for consideration by
the Legislature. The proposed legislation would amend West Virginia's
Health Code Chapter 16 by adding a new statute, Article 35, ``Lead
Abatement Act.'' It was not until January 1998, that the Legislature
acted upon the proposed legislation. The bill passed on March 14, 1998,
and became effective June 15, 1998. Subsequent emergency-filed rules
were filed with the West Virginia Secretary of State on June 16, 1998.
West Virginia Code 16-35 requires lead abatement professionals
conducting lead abatement in child-occupied buildings and target
housing to be properly trained by an accredited training provider,
certified by a State accredited examiner and licensed by the Bureau for
Public Health. The licensing categories consist of lead abatement
contractor, worker, supervisor, inspector, risk assessor and project
designer.
Lead abatement projects are restricted to target housing (pre-1978)
or residences that have known lead hazards. Notification of abatement
projects and elevated blood lead levels are required. Home owners
removing and handling lead on their own premises are exempt from
notification and licensing requirements.
The Commissioner of the Bureau for Public Health will administer
and enforce WV Code 16-35 and WV Title 64 Series 45, which includes:
issuing licenses; assessing fees and fines; approving training
providers; approving third party examiners; work practices; project
clearance levels; and ordering reduction or abatement of lead hazards.
In addition to the detailing of acceptable and non-acceptable abatement
project work practices, the rules also incorporate by reference HUD and
OSHA work practices and clearance levels.
The proposed statute establishes a special revenue account for
implementing the article, allows for
[[Page 15748]]
reciprocity with other States with similar programs as stringent as
West Virginia's, and provides for enforcement with civil penalties from
$250 to $5,000. The statute also creates a misdemeanor offense for
violations, and upon conviction, a fine of not less than $250 nor more
than $50,000 and/or confinement in the county or regional jail for not
more than 1 year may be imposed. Fines imposed must be paid by
violators within 30 days of receipt of notification, failure to do so
constitutes a separate violation. When non-compliance with this article
or promulgated rules occurs at abatement projects, a Notice of
Violation will be issued directing compliance with the law. When
warranted, Cease and Desist Orders may be issued on lead abatement
projects, which if violated could result in civil penalties of not less
than $10,000 nor more than $25,000 for initial violations and not less
than $25,000 nor more than $50,000 for subsequent violations.
The Bureau for Public Health is committed to assuring that the
Federal mandates are met through effective implementation of WV Code
16-35 and Title 64 Series 45, and through implementation of a mandated
public awareness and education program. The necessary infrastructure is
in place at the local and State level to implement an EPA-approved
program for the licensing and certification of lead abatement
professionals. The Bureau for Public Health has contracted with local
health agencies to provide environmental lead assessments, public
outreach and education at the local level for the past 2 years. Also,
it is felt that the successful operation of the asbestos certification
and licensure program, since 1989, has prepared the Bureau to assume
the responsibility of operating another environmental certification and
licensure program.
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-402404-WV.''
Copies of this notice, the State of West Virginia's authorization
application, and all comments received on the application are available
for inspection in the Region III office, from 8 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The docket is located
at the Environmental Protection Agency, Region III, Waste and Chemicals
Management Division, Toxics Programs and Enforcement Branch (3WC33),
1650 Arch St., Philadelphia, PA.
Electronic comments can be sent directly to EPA at:
johnson.artencia@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 docket control number ``PB-402404-WV.'' Electronic comments on this
document may be filed online at many Federal Depository Libraries.
Information claimed as CBI should not be submitted electronically.
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 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.
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.), 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 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
and that significantly or uniquely effects 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
[[Page 15749]]
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 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: March 23, 1999.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 99-8087 Filed 3-31-99; 8:45 am]
BILLING CODE 6560-50-F
