2010-20846. Lead-Based Paint Renovation, Repair and Painting Activities in Target Housing and Child Occupied Facilities; State of Rhode Island and State of Massachusetts. Notice of Self-Certification Program Authorization, Request for Public Comment,...

AGENCY:

Environmental Protection Agency (EPA)

ACTION:

Notice; program authorization, request for comments and opportunity for public hearing.

SUMMARY:

This notice announces that on April 20, 2010, the State of Rhode Island, and on July 9, 2010, the State of Massachusetts, were deemed authorized under section 404(a) of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2684(a), and 40 CFR 745.324(d)(2), to administer and enforce requirements for renovation, repair and painting programs in accordance with section 402(c)(3) of TSCA, 15 U.S.C. 2682(c)(3). This notice also announces that EPA is seeking comment during a 45-day public comment period, and is providing an opportunity to request a public hearing within the first 15 days of this comment period, on whether Rhode Island's and Massachusetts's programs are at least as protective as the Federal program and provide for adequate enforcement. This notice also announces that Rhode Island's and Massachusetts's 402(c)(3) programs were deemed authorized by regulation and statute on April 20, 2010, and July 9, 2010, respectively, and will continue without further notice unless EPA, based on its own review and/or comments received during the comment period, disapproves the Rhode Island and Massachusetts program applications on or before October 20, 2010 and January 9, 2011, respectively.

DATES:

Comments, identified by docket control number, EPA-R01-OPPT-2010-0470 must be received on or before October 7, 2010. In addition, a public hearing request must be submitted on or before September 7, 2010.

ADDRESSES:

Comments, and requests for a public hearing, may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Section I of the SUPPLEMENTARY INFORMATION. To ensure proper receipt by EPA, it is imperative that you identify docket control number EPA-R01-OPPT-2010-0470 in the subject line on the first page of your response.

FOR FURTHER INFORMATION CONTACT:

James M. Bryson, Technical Contact, Toxics and Pesticides Unit, Office of Environmental Stewardship, Environmental Protection Agency, Region 1, 5 Post Office Square—Suite 100, OES 05-4, Boston, MA 02109, telephone number: [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, to entities offering Lead Safe Renovation courses, and to firms and individuals engaged in renovation and remodeling activities of pre-1978 housing in the State of Rhode Island and the State of Massachusetts, individuals and firms falling under the North American Industrial Classification System (NAICS) codes 231118, 238210, 238220, 238320, 531120, 531210, 53131, e.g., General Building Contractors/Operative Builders, Renovation Firms, Individual Contractors, and Special Trade Contractors like Carpenters, Painters, Drywall Workers and Plumbers, “Home Improvement” Contractors, as well as Property Management Firms and some Landlords, who are also affected by these rules. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this notice could also be affected. The NAICS codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical 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 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, select “Laws and Regulations,” “Regulations and Proposed Rules,” 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.regulations.gov.

2. In person: You may read this document, and certain other related documents, by visiting Rhode Island Department of Health, 3 Capitol Hill-Room 206, Providence, RI 02908-5097; contact person, Robert Vanderslice, telephone number [phone] or in Massachusetts, the Department of Labor, Division of Occupational Safety, 1001 Watertown Street, Newton, MA 02465; contact persons, Patricia Sutliff and Frank Kramarz, telephone number [phone]. You may also read this document, and certain other related documents, by visiting the Environmental Protection Agency, Region 1 Library, 5 Post Office Sq., Boston, MA 02109. You should arrange your visit to the EPA office by contacting the technical person listed under FOR FURTHER INFORMATION CONTACT. Also, EPA has established an official record for this action under docket control number EPA-R01-OPPT-2010-0470. The official record consists of the documents specifically referenced in this action, this notice, the State of Rhode Island and State of Massachusetts 402(c)(3) program authorization applications, 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).

C. How and to Whom Do I Submit Comments?

You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number EPA-R01-OPPT-2010-0470 in the subject line on the first page of your response.

1. By mail or in person or by courier: Submit or deliver your comments and public hearing requests to: James M. Bryson, EPA Region 1. The Regional office is open from 9 a.m. to 5 p.m., Monday through Friday, excluding legal holidays.

2. Electronically: You may submit your comments and public 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 Confidential Business Information (CBI). 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 standard disks in Microsoft Word or ASCII file format.

D. How Should I Handle CBI Information That I Want To Submit to the Agency?

Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark on each page the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM that you mail to EPA as CBI, and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes 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 docket. Information so marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. If you have any questions about CBI or the procedures for claiming CBI, please consult the technical person identified under FOR FURTHER INFORMATION CONTACT.

II. Background

A. What Action Is the Agency Taking?

EPA is announcing that on April 20, 2010, the State of Rhode Island, and on July 9, 2010, the State of Massachusetts, were deemed authorized under section 404(a) of TSCA, and 40 CFR 745.324(d)(2), to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA. This notice also announces that EPA is seeking comment and providing an opportunity to request a public hearing on whether these State programs are at least as protective as the Federal program and provide for adequate enforcement. The 402(c)(3) program ensures that training providers are accredited to teach renovation classes, that individuals performing renovation activities are properly trained and certified as renovators, that firms are certified as renovation firms, and that specific work practices are followed during renovation activities. On April 20, 2010, Rhode Island and on July 9, 2010, the State of Massachusetts submitted applications under section 404 of TSCA requesting authorization to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA, and submitted a self-certification that their respective program is at least as protective as the Federal program and provides for adequate enforcement. Therefore, pursuant to section 404(a) of TSCA, and 40 CFR 745.324(d)(2), the Rhode Island and Massachusetts renovation programs were deemed authorized as of the date of submission and until such time as the Agency disapproves the program application or withdraws program authorization. Pursuant to section 404(b) of TSCA and 40 CFR 745.324(e)(2), EPA is providing notice, opportunity for public comment and opportunity for a public hearing on whether the State program application is at least as protective as the Federal program and provides for adequate enforcement. If a hearing is requested and granted, EPA will issue a Federal Register notice announcing the date, time and place of the hearing. The authorization of the Rhode Island and Massachusetts 402(c)(3) programs, which were deemed authorized by regulation and statute on April 20, 2010 and July 9, 2010, respectively, will continue without further notice unless EPA, based on its own review and/or comments received during the comment period, disapproves the program applications on or before October 30, 2010 for Rhode Island and January 9, 2011 for Massachusetts.

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), entitled Lead Exposure Reduction. In the Federal Register dated April 22, 2008, (73 FR 21692), EPA promulgated final TSCA section 402(c)(3) regulations governing renovation activities. The regulations require that in order to do renovation activities for compensation, renovators must first be properly trained and certified, must be associated with a certified renovation firm, and must follow specific work practice standards, including recordkeeping requirements. In addition, the rule prescribes requirements for the training and certification of dust sampling technicians. EPA believes that regulation of renovation activities will help to reduce the exposures that cause serious lead poisonings, especially in children under age 6, who are particularly susceptible to the hazards of lead.

Under section 404 of TSCA, a state may seek authorization from EPA to administer and enforce its own renovation, repair and painting program in lieu of the Federal program. The regulation governing the authorization of a State program under section 402 of TSCA is codified at 40 CFR part 745, subpart Q. States 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 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, as required by section 404(b) of TSCA. EPA's regulations at 40 CFR part 745, subpart Q provide the detailed requirements a State program must meet in order to obtain EPA approval. A state may choose to certify that its own renovation, repair and painting program meets the requirements for EPA approval, by submitting a letter signed by the Governor or Attorney General stating that the program is at least as protective of human health and the environment as the Federal program and provides for adequate enforcement. Upon submission of such a certification letter the program is deemed authorized pursuant to TSCA section 404(a) and 40 CFR 745.324(d)(2). This authorization becomes ineffective, however, if EPA disapproves the application or withdraws the program authorization.

III. State Program Description Summaries

The following program summary is from Rhode Island's self-certification application:

Program Summary; State of Rhode Island; Renovation, Repair, and Painting Program/Lead-Safe Renovator Certification Program

The state of Rhode Island is submitting an application to the U.S. Environmental Protection Agency (EPA) certifying that the state's Renovation, Repair, and Painting Program/Lead-Safe Renovator Program is as protective as the EPA program and is authorized when the application is submitted to EPA. The Rhode Island Department of Health (HEALTH) is the lead agency for these programs. HEALTH currently has EPA-authorized programs for lead-based paint activities training and certification and pre-renovation notification.

The rules for the Renovation, Repair, and Painting Program/Lead-Safe Renovator Program are found in R23-24.6-PB-Section 14.0 of the Rhode Island Rules and Regulations For Lead Poisoning Prevention. The amendments to this regulation that contain these requirements are effective on March 30, 2010. These rules already cover all lead-based paint activities that are conducted in target housing and child-occupied facilities:

1. Establish the licensing of lead hazard control firms, effective May 1, 2010.

2. Establish work practice requirements for renovation.

3. Establish licensing requirements for persons and firms that conduct these activities. To be licensed, persons must complete an approved training program, apply for licensure, and pay a fee of $40. Firms must employ at least one licensed lead-safe remodeler/renovator, must apply for licensure and pay a fee of $40.

4. Establish procedures for the suspension, revocation, or modification of certifications.

5. Establish requirements for the approval of lead-safe renovator training programs and procedures for the suspension, revocation, or modification of training program approvals.

6. Define violations of these rules, establish procedures to assess penalties for violations of these rules, and establish administrative procedures for persons or firms to appeal these penalties.

The legal authority for the renovation, repair, and painting program/lead-safe renovator certification is found in Chapters 23-24.6.6 and 42-35 of the Rhode Island General Laws, as amended.

The following program summary is from the Massachusetts self-certification application:

Program Summary; State of Massachusetts; Renovation, Repair, and Painting Program/Lead-Safe Renovator Certification Program

The State of Massachusetts is submitting an application to the U.S. Environmental Protection Agency (EPA) certifying that the state's Renovation, Repair, and Painting Program/Lead-Safe Renovator Program is as protective as the EPA program and is authorized when the application is submitted to EPA. The Massachusetts Department of Labor, Division of Occupational Safety (MADOS), is the lead agency for these programs. MADOS currently has an EPA-authorized program for lead-based paint activities training and certification.

The rules for the Renovation, Repair, and Painting Program/Lead-Safe Renovator Program are found in 454 CMR 22.00, Deleading And Lead-Safe Regulations of the State of Massachusetts and are promulgated in accordance with and under the authority of M.G.L. c. 111, sections 189A through 199B and M.G.L. c. 149, section 6. The amendments to this regulation that contain these requirements are effective on July 9, 2010. These rules cover all renovation, repair and painting activities that are conducted in target housing and child-occupied facilities. These rules:

1. Establish the discipline of lead-safe renovator.

2. Establish work practice requirements for renovation.

3. Require firms and other entities who carry out the work to be licensed as Lead-Safe Renovation Contractors and that the work be overseen at all times by Certified Lead-Safe Renovator-Supervisors. To be certified, persons must complete an approved training program. Firms must employ at least one certified lead-safe renovator, must apply for licensing and pay a fee of $375.

4. Establish procedures for the suspension, revocation, or modification of licenses and certifications.

5. Establish requirements for the approval of lead-safe renovator training programs and procedures for the suspension, revocation, or modification of training program approvals.

6. Define violations of these rules, establish procedures to assess penalties for violations of these rules, and establish administrative procedures for persons or firms to appeal these penalties.

The renovation, repair, and painting program/lead-safe renovator provisions found in 454 CMR 22.00 are promulgated in accordance with and under the authority of M.G.L. c. 111, section 189A through 199B and M.G.L. c. 149, section 6.

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 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 program.

V. Withdrawal of Authorization

Pursuant to section 404(c) of TSCA, the EPA Administrator may withdraw authorization of a state or Indian Tribal renovation, repair and painting program, after notice and opportunity for corrective action, if the program is not being administered or enforced in compliance with standards, regulations, and other requirements established under the authorization. The procedures EPA will follow for the withdrawal of an authorization are found at 40 CFR 745.324(i).

List of Subjects

Environmental protection, Hazardous substances, Lead, Renovation, Renovation work practice standards, Renovation training, Renovation certification, Renovation notification, Reporting and recordkeeping requirements, State of Rhode Island, State of Massachusetts.

Dated: August 16, 2010.

Ira W. Leighton,

Deputy Regional Administrator, Region 1.