Toxic and hazardous substances control: Lead-based paint activities in target housing and child-occupied facilities; State and Indian Tribe authorization applications— North Dakota,

[Federal Register: January 8, 2003 (Volume 68, Number 5)]

[Notices]

[Page 1059-1061]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr08ja03-34]

ENVIRONMENTAL PROTECTION AGENCY

[OPPT-2002-0080; FRL-7282-8]

Lead-Based Paint Activities; State of North Dakota Lead-Based Paint Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; requests for comments and opportunity for public hearing.

SUMMARY: On October 4, 2002, EPA received an application from the State of North Dakota 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 September 26, 2002, by the Governor of North Dakota. 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 was a letter from the Attorney General of North Dakota, certifying that the laws and regulations of the State provided adequate legal authority to administer and enforce TSCA section 402. North Dakota certifies that its program meets the requirements for approval of a State program under section 404 of TSCA and that North Dakota has the legal authority and ability to implement the appropriate elements necessary to enforce the program. 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. Today's notice announces the receipt of North Dakota'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 February 24, 2003.

ADDRESSES: Submit all written comments and/or requests for a public hearing identified by docket ID number 2002-0080 (in duplicate) to: Amanda Hasty, Environmental Protection Agency, Region VIII, 8P-P3T, 999 18th St., Suite 300, Denver, CO 80202-2466.

Comments, data, and requests for a public hearing may also be submitted electronically to: hasty.amanda@epa.gov. Follow the instructions under Unit V. 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 300, 8P-P3T, Denver, CO 80202-2466; telephone (303) 312-6021; e-mail address: combs.dave@epa.gov.

SUPPLEMENTARY INFORMATION:

1. General

   1. Does this Notice 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 North Dakota. 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.

   2. 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. 2681-92), 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 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

      [[Page 1060]]

      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 withdrawals 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 North Dakota'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 North Dakota.

2. 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. The 2001 North Dakota Legislative session adopted changes to North Dakota's Century Code (NDCC) 23-25, ``Air Pollution Control Law.'' These changes authorized North Dakota's Department of Health (NDDH) to adopt and enforce certain requirements of 40 CFR part 745, subpart L, into the North Dakota Administrative Code (NDAC). The NDDH began amending the NDAC in January 2002. The amendments to the NDAC were adopted in accordance with the administrative rule practices requirements contained in NDCC 28-32 titled ``Administrative Agencies Practice Act.''

   On April 19, 2002, a public hearing was held to consider comments on the proposed administrative rule amendments. Comments were accepted for 30 days before and 30 days after the public hearing. A regulatory analysis including the classes of people probably affected, probable impact including economic impact, probable impact to the Department and alternative methods considered were prepared and made available prior to the start of the public comment period. In addition, the Department prepared a takings assessment (economic analysis) and a stringency determination in conjunction with the regulatory analysis.

   On June 18, 2002, the State Health Council adopted the final rule. On August 1, 2002, the North Dakota Legislative Council published the North Dakota Administrative Code (NDAC) 33-15-24 titled ``Standards for Lead-Based Paint Activities,'' to adopt certain provisions of 40 CFR part 745, subpart L, into the North Dakota Administrative Code. The rule became effective September 1, 2002.

   On August 15, 2002, a public hearing was held regarding North Dakota's intent to seek EPA authorization of its lead-based paint program. Comments were accepted for 30 days before and 30 days after the public hearing. No comments were received concerning North Dakota's intent to seek EPA authorization of its program. NDAC 33-15-24 references with minor changes the requirements contained in 40 CFR 745.220, ``Scope and Applicability,'' Sec. 745.223, ``Definitions,'' Sec. 745.225, ``Accreditation of Training Programs: Target Housing and Child-Occupied Facilities,'' Sec. 745.226, ``Certification of Individuals and Firms Engaged in Lead-Based Paint Activities: Target Housing and Child-Occupied Facilities,'' Sec. 745.227, ``Work Practice Standards for Conducting Lead-Based Paint Activities: Target Housing and Child-Occupied Facilities,'' and Sec. 745.233, ``Lead-Based Paint Activities Requirements.'' Minor changes were made to these sections. The term ``certification of companies'' was replaced with ``licensing of companies.'' The term ``certification'' was reserved for individuals. The terminology change was made for clarification and ease of implementation when discussing requirements with the regulated community. All references to EPA grandfather clauses, which preceded the rulemaking, were deleted. Definitions including chewable surface, dripline, lead-based paint hazard, wipe sample, dust lead hazard, paint lead hazard, soil lead hazard, work practice requirement and renovation were adopted from 40 CFR 745.63, 745.65, and 745.83. Elevated blood lead level concentration was changed from 20 micrograms per deciliter to 10 micrograms per deciliter to follow the U.S. Center for Disease Control (CDC) guidelines. Notification requirements were added to NDAC 33-15-24-03. The notification requirements contain provisions for notification to the State prior to beginning lead-based paint abatement activities and prior to conducting lead-based paint abatement courses. Also, fees for certification of individuals, licensing of companies and accreditation of lead-based paint courses were established in NDAC 33- 15-24-04.

   Several other minor changes were made. These changes are discussed in more detail in a document titled, ``Summary of Proposed North Dakota's Lead-Based Paint Rules, January 2002.'' The North Dakota Lead Activities program will be administered by the North Dakota Department of Health, Division of Air Quality. The North Dakota Department of Health began implementing its program on the day the rule became effective, September 1, 2002. Additional information, copies of the documents referenced above and application forms for licensing and certification may be obtained by contacting the North Dakota Department of Health at (701) 328-5188.

   In accordance with 40 CFR 745.324(d), ``Program Certification,'' the Governor of North Dakota submitted a self-certification letter to the EPA Administrator on September 26, 2002, certifying that the State program meets the requirements contained in 40 CFR part 745.324(e)(2)(i) and (e)(2)(ii). Included in the application was a letter from the Attorney General of North Dakota, certifying that the laws and regulations of the State provided adequate legal authority to administer and enforce TSCA section 402. Therefore, as of September 26, 2002, the State of North Dakota 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.

3. Federal Overfiling

   TSCA section 404(b) (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.

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4. Public Record and Electronic Submissions

   The official record for this action, as well as the public version, has been established under docket ID number 2002-0080. Copies of this notice, the State of North Dakota'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, and 8P-P3T, 999 18th St., Suite 300, 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,''

   [ldq] uo;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.

   Electronic comments can be sent directly to EPA at: hasty.amanda@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 ID number. Electronic comments on this document may be filed online at many Federal Depository Libraries. Information claimed as CBI should not be submitted electronically.

5. Submission to Congress and the Comptroller General

   The Congressional Review Act, 5 U.S.C. 801 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 in 40 CFR Part 180

   Environmental protection, Hazardous substances, Lead, Reporting and recordkeeping requirements.

   Dated: December 12, 2002. Robert E. Roberts, Regional Administrator, Region VIII.

   [FR Doc. 03-337 Filed 1-7-03; 8:45 am]

   BILLING CODE 6560-50-S