E6-14588. Lead-Based Paint Activities; State of Hawaii Lead-Based Paint Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice; requests for comments and opportunity for public hearing.

SUMMARY:

On November 17, 2005, EPA received an application from the State of Hawaii requesting authorization to administer a program in accordance with section 402 of the Toxic Substances Control Act (TSCA). Included in the application was a letter signed by Hawaii's Attorney General stating that the State's Lead-Based Paint Abatement Program is at least as protective of human health and the environment as the Federal program under TSCA section 402. Also included in the letter from the Attorney General of Hawaii is the certification that the laws and regulations of the State of Hawaii provide adequate legal authority to administer and enforce TSCA section 402. The application was followed by a transmittal letter of February 8, 2006, from the Governor of the State of Hawaii requesting program approval. Hawaii certifies that its program meets the requirements for approval of a State program under TSCA section 404 and that Hawaii has the legal authority and ability to implement the appropriate elements necessary to enforce the program. Therefore, pursuant to TSCA 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. This notice announces the receipt of Hawaii's application, provides a 45-day public comment period, and an opportunity to request a public hearing on the application.

DATES:

Comments on the application must be received on or before October 20, 2006.

ADDRESSES:

Submit all written comments and/or requests for a public hearing identified by docket identification (ID) number EPA-HQ-OPPT-2006-0494, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Fax: [phone].
• Mail: Nancy Oien, Regional Lead Coordinator, Environmental Protection Agency, Region IX, CED-4, 75 Hawthorne St., San Francisco, CA 94105-3901.
• Delivery: Environmental Protection Agency, Region IX, CED-4, 75 Hawthorne St., San Francisco, CA 94105-3901.

Instructions: Direct your comments to Docket ID number EPA-HQ-OPPT-2006-0494. EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of the comment and with any disk or CD ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Comments, data, and requests for a public hearing may also be submitted electronically to: [e-mail].

Docket: All documents in the docket are listed in the docket index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy at the EPA Region IX Library at 75 Hawthorne St., San Francisco, CA 94105. This docket facility is open from 8 a.m. to noon and 1 p.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket facility telephone number is [phone].

FOR FURTHER INFORMATION CONTACT:

Nancy Oien, Regional Lead Coordinator, Region IX, CED-4, 75 Hawthorne St., San Francisco, CA 94105-3901; telephone: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General

A. Does this Action Apply to Me?

This notice is directed to the public in general. This notice may, however, be of interest to firms and individuals engaged in lead-based paint activities in Hawaii. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by the notice. If you have any questions regarding the applicability of this notice to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

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. The 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 (15 U.S.C. 2682) authorizes and directs EPA to promulgate final regulations governing lead-based paint activities in target housing, public and commercial buildings, bridges, and other structures. 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). These 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 TSCA section 404 (15 U.S.C. 2684), a State or Indian Tribe may seek authorization from EPA to administer and enforce its own lead-based paint activities program.

States and Tribes that choose to apply for program authorization must submit a complete application to the appropriate Regional EPA Office for review. EPA will review those applications 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 authorization.

A State may choose to certify that its lead-based paint activities program meets the requirements for EPA authorization by submitting a letter signed by the Governor or the 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 application.

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 Hawaii's application meets the requirements for EPA approval. This notice also provides an opportunity to request a public hearing on the application. 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 Hawaii.

II. State Program Description Summary

This summary is provided in accordance with 40 CFR 745.324(a)(4). The applicant has provided the following summary of their lead program. On September 19, 2005, Hawaii's Department of Health (HDH) adopted Title 11, Chapter 11-41, Hawaii Administrative Rules titled “Lead-Based Paint Activities” pursuant to Hawaii statutes in Chapters 91 and 92 and Hawaii's revised statute in section 321-11. These changes authorized Hawaii's Department of Health to adopt and enforce requirements equivalent to the requirements of 40 CFR part 745, subpart L, into Hawaii's Administrative Rules in accordance with Hawaii's Revised Statutes, Title 19, Chapter 342P.

Public hearings were held on April 22, 2004, Hilo, Island of Hawaii; April 23, 2004, Kailua Kona, Island of Hawaii; May 4, 2004, Lihue, Kona; May 6, 2004, Wailuku, Maui; and May 7, 2004, Honolulu, Oahu to consider comments on the proposed adoption of administrative rule amendments and Hawaii's intent to seek EPA authorization of its lead-based paint program. Comments were accepted for 40 days after the published date of March 29, 2004. There were no oral comments given at the hearings, but two sets of written comments were received. The written comments were technical in nature and some changes were made to remain as protective as the Federal standards. These changes were reviewed by the State Attorney General who deemed that no additional public hearing was required. The Post Hearing Small Business Impact Statement was written and approved by the Small Business Regulatory Review Board pursuant to section 201M-3, Hawaii Revised Statutes and the Hawaii's Governor's Administrative Directive No. 99-02.

On September 19, 2005, the Governor of the State of Hawaii signed the final rule. The final rule became effective on October 3, 2005. The Hawaii Department of Health began implementing its program on October 3, 2005. Additional information, copies of the documents referenced above, and application forms for licensing and certification may be obtained by contacting: Tom Lileikis, Environmental Health Specialist, Hawaii Health Department, Noise, Radiation, and Indoor Air Quality Branch, 591 Ala Moana Blvd., #133, Honolulu, Hawaii 96813; telephone number: [phone]; e-mail address: [e-mail].

EPA determined that Hawaii's original application of November 17, 2005, was incomplete as the transmittal letter from the State Governor requesting program approval was missing. The State of Hawaii submitted the Governor's request on February 8, 2006, in accordance with 40 CFR 745.324(d), “Program Certification,” certifying that the State program meets the requirements contained in 40 CFR 745.324(e)(2)(i) and (e)(2)(ii). Therefore, as of November 17, 2005, the State of Hawaii is authorized to administer and enforce the lead-based paint program under TSCA section 402, until such time as the Administrator disapproves the application or withdraws the State's program authorization.

III. Federal Overfiling

Section 404(b) of TSCA (15 U.S.C. 2684(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. 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: August 3, 2006.

Laura Yoshii,

Acting Regional Administrator, Region IX.