E7-20446. Hazard Education before Renovation of Target Housing; State of Utah Authorization Application

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice; request for comments and opportunity for public hearing.

SUMMARY:

On October 13, 2006, EPA received an application from the State of Utah requesting authorization to administer a program in accordance with section 406(b) of the Toxic Substances Control Act (TSCA). This program ensures that owners and occupants of target housing are provided information concerning potential hazards of lead-based paint (LBP) exposure before certain renovations are begun on that housing. In addition to providing general information on the health hazards associated with exposure to lead, the lead hazard information pamphlet advises owners and occupants to take appropriate precautions to avoid exposure to lead-contaminated dust and LBP debris that are sometimes generated during renovations. EPA believes that distribution of the pamphlet 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. The final rule (TSCA 406(b)) was published in the Federal Register of June 1, 1998.

DATES:

Comments must be received on or before December 3, 2007. In addition, a public hearing request may be submitted on or before October 24, 2007.

ADDRESSES:

Submit all written comments and/or requests for a public hearing identified by docket identification (ID) number EPA-HQ-OPPT-2007-0698, by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
• Hand Delivery: OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID number EPA-HQ-OPPT-2007-0698. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is [phone]. Such deliveries are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID number EPA-HQ-OPPT-2007-0689. 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 http://www.regulations.gov, or e-mail. The http://www.regulations.gov, website 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 http://www.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.

Docket: All documents in the docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to http://www.regulations.gov, select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. 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 electronically at http://www.regulations.gov, or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The telephone number of the EPA/DC Public Reading Room is [phone], and the telephone number for the OPPT Docket is [phone]. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT:

Amanda Hasty, Pollution Prevention, Pesticides and Toxics Program (P3T), U.S. EPA, Region 8, 1595 Wynkoop St., Denver, CO 80202-1129; telephone number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may potentially be affected by this action if you perform renovations of target housing for compensation in the State of Utah. Target housing is defined in the Code of Federal Regulations (see 40 CFR 745.103) as any housing constructed prior to 1978. Potentially affected entities may include, but are not limited to:

• Renovators (North American Industrial Classification System (NAICS) code 236116, 236118), e.g., general building contractors/operative builders, renovation firms, individual contractors, and special trade contractors like carpenters, painters, drywall workers and lathers, “home improvement” contractors.
• Multi-family housing owners/managers (NAICS code 531311, 531110), e.g., property management firms and some landlords.

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 unit 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. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 745.82. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov, or e-mail. Clearly mark 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 CD ROM or disk 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 will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

II. Background

A. What Action is the Agency Taking?

The State of Utah has provided a self-certification letter stating that its pre-renovation notification program meets the requirements for authorization of a state program under section 404 of TSCA and has requested approval of the Utah pre-renovation notification program. Therefore, pursuant to section 404 of TSCA, the program is deemed authorized as of the date of submission, October 13, 2006. If EPA subsequently finds that the program does not meet all the requirements for approval of a state program, EPA will work with the state to correct any deficiencies in order to approve the program. If the deficiencies are not corrected, a notice of disapproval will be issued in the Federal Register and a Federal program will be implemented in the State.

Pursuant to section 404(b) of TSCA (15 U.S.C. 2684(b)), EPA provides notice and an opportunity for a public hearing on a state or tribal program application before approving the application. Therefore, by this notice EPA is soliciting public comment on whether the State of Utah 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.

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.

Section 402 of TSCA (15 U.S.C. 2682) authorizes and directs EPA to promulgate final regulations governing LBP 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 (15 U.S.C. 2684), a State may seek authorization from EPA to administer and enforce its own LBP paint activities program.

In the Federal Register of August 29, 1996 (61 FR 45777) (FRL-5389-9), EPA promulgated final TSCA section 402/404 regulations governing LBP 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 (15 U.S.C. 2684(h)), 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 LBP activities program (40 CFR part 745, subpart L) and/or pre-renovation notification program (40 CFR part 745, subpart E) 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 (15 U.S.C. 2684(a)). This authorization becomes ineffective, however, if EPA disapproves the application or withdraws the program authorization.

III. State Program Description Summary

The following summary of the State of Utah proposed pre-renovation education program was provided by the applicant.

During the 1998 Utah legislative session, Senate Bill 118 (SB 118) was unanimously passed by both the House and the Senate. SB 118 amends Utah Code Annotated (UCA) Section 19-2-104 of the Utah Air Conservation Act, which provides authority for the Utah Air Quality Board (Board) to make administrative rules for a Utah LBP Program. The legislation specifically gives authority to the Board to make rules for training, certification and performance requirements in accordance with sections 402 and 404 of subchapter IV of TSCA. SB 118 also provides the Board with the authority to establish work practices, 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 and abatement workers when performing LBP activities subject to TSCA Title IV.

During the 2003 legislative session, House Bill 165 incorporated a change to UCA 19-2-104(1)(i) giving the Board the authority to make administrative rules for programs authorized by TSCA section 406.

The Utah Attorney General's Office reviewed the content of SB 118 prior to enactment and 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 (40 CFR part 745)).

Administrative Rule Summary

On August 3, 2005, the Utah Department of Environmental Quality/Division of Air Quality (UDEQ/DAQ) provided the Board with a proposed modification to Utah Administrative Code (UAC) R307-840--Lead-Based Paint Accreditation, Certification and Work Practice Standards to establish the rules necessary for the Utah LBP Program to administer 40 CFR part 745, subpart E--Residential Property Renovation which is otherwise known as the Lead Pre-Renovation Education Rule. UAC R307-840 substantially adopts 40 CFR part 745, subpart E by reference.

On November 2, 2005, the UDEQ/DAQ reported back to the Board that no public comments were received during the public hearing period. The Board subsequently adopted the UDEQ/DAQ proposed modifications to the existing version of UAC R307-840 (Appendix 4) with an effective date of November 3, 2005.

UAC R307-840 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 to human health and the environment as the federal LBP program. The following paragraphs provide a brief summary of the three sections in UAC R307-840. Each section will identify which parts in 40 CFR part 745, subpart E are adopted by reference and give a brief overview of its contents.

Throughout UAC R307-840, nearly all references to “EPA” (the U.S. Environmental Protection Agency) when used for LBP program administrative activities have been replaced with “the Executive Secretary” (meaning Executive Secretary of the Utah Air Quality Board).

R307-840-1: Purpose and Applicability

No modifications were made to this section during this rulemaking.

R307-840-2: Definitions

This section substantially adopts 40 CFR 745.83 by reference. The reference to EPA in the definition of “Pamphlet” was not replaced with “the Executive Secretary” in this particular instance because it was inappropriate to do such.

R307-840-3: Accreditation, Certification and Work Standards: Target Housing and Child-Occupied Facilities

UAC R307-840-3 adopts 40 CFR 745.80, 745.81, 745.82, 745.85, 745.86, and 745.88 from the federal LBP regulations by reference. This section of the Utah LBP rule outlines the requirements for Utah LBP work practice standards as it applies to the Utah Pre-Renovation Education Rule.

UAC R307-840-3 creates some minor modifications to the federal LBP regulations to facilitate program implementation in Utah. The reference to EPA in 40 CFR 745.86(b)(1) was not replaced with “the Executive Secretary” in this particular instance because it was inappropriate to do such. Two references to federal regulations found in 40 CFR 745.82(b)(3) and 745.86(b)(1) were replaced with R307-840 to facilitate program administration in Utah. Errors found in 40 CFR 745.86(b)(1), 745.88(b)(2)(i), and 745.88(b)(2)(ii) were corrected in UAC R307-840 by Utah rulemaking.

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 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.

V. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added 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
• Renovation notification
• Reporting and recordkeeping requirements

Dated: September 17, 2007.

Kerrigan G. Clough,

Region 8, Acting Administrator.