[Federal Register Volume 67, Number 44 (Wednesday, March 6, 2002)]
[Notices]
[Pages 10205-10208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5190]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[PB-402404-CO/B; FRL-6823-2]


Lead-Based Paint Activities in Target Housing and Child-Occupied 
Facilities; State of Colorado Lead-Based Paint Activities Program

AGENCY: Environmental Protection Agency (EPA).

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

-----------------------------------------------------------------------

SUMMARY: On September 28, 2001, the State of Colorado submitted a self-
certification letter stating that Colorado's Lead-Based Paint Abatement 
Program is at least as protective of human health and the environment 
as the Federal program under section 402 (15 U.S.C. 2682) of the Toxic 
Substances Control Act (TSCA). Colorado certifies that its program 
meets the requirements for approval of a State program under section 
404 of TSCA and that Colorado 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 Colorado'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 April 
22, 2002.

ADDRESSES: Submit all written comments and/or requests for a public 
hearing identified by docket number PB-402404-CO/B (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: [email protected]. 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 [email protected].

[[Page 10206]]


SUPPLEMENTARY INFORMATION:  

I. Background

    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 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 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.
    On December 21, 1998, the State of Colorado submitted an 
application for EPA interim approval to administer and enforce the 
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 TSCA. Colorado provided a self-certification letter 
stating that its program is at least as protective of human health and 
the environment as the Federal program and it possesses the legal 
authority and ability to implement the appropriate elements necessary 
to receive interim enforcement approval. Based upon the State's self-
certification, Lead-Based Paint Activities Interim Program 
Authorization was granted to the State of Colorado effective on 
December 21, 1998.
    On September 7, 1999 (64 FR 48618) (FRL-6099-1), EPA published a 
notice in the Federal Register granting interim-approval of the 
Colorado TSCA Section 402/404 Lead-Based Paint Accreditation and 
Certification Program. Full-approval was not granted at the time due to 
the State of Colorado's Environmental Audit Privilege and Penalty 
Immunity Statute, sometimes known as S.B. 94-139 (codified at sections 
13-25-126.5, 13-90-107(1)(j), and 25-1-114- 5, C.R.S.). This statute 
impaired the State's ability to fully administer and enforce the lead-
based paint program. Interim compliance and enforcement approval was 
granted to provide the State the opportunity to address problems and 
issues associated with its Environmental Audit Privilege and Penalty 
Immunity statute. During the 2000 Legislative Session, the Colorado 
State Legislature amended the State's Environmental Audit Privilege and 
Immunity Statute.
    On May 30, 2000, EPA and the State of Colorado signed a Memorandum 
of Agreement resolving all of the issues with the State's Environmental 
Audit Privilege and Immunity statute. Based upon the revised statute 
and the MOA between Colorado and EPA, the legal barriers for final EPA 
approval of Colorado's Lead Based Paint Abatement and Certification 
Program have been removed.
    On September 28, 2001, Colorado provided a self-certification 
letter from the Governor that its program meets the requirements for 
authorization of a state program under section 404 of TSCA. Therefore, 
pursuant to section 404, the program is deemed authorized as of the 
date of submission.
    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 Colorado'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 Colorado.

II. State Program Description Summary

    The following is a summary of the State of Colorado's Lead-Based 
Paint Abatement Regulation Number 19, and is intended to meet the 
requirement of 40 CFR 745.324(a)(3)(iii). The Agency responsible for 
administering and enforcing the program is the Air Pollution Control 
Division, Colorado Department of Public Health and Environment, of the 
State of Colorado. The official at the Agency designated as the point 
contact with US EPA is Mr. Steven Fine, Supervisor of the CFC, Indoor 
Air, Asbestos, and Lead-Based Paint Abatement Unit, Air Pollution 
Control Division. Mr. Fine can be reached by telephone at (303) 692-
3164 or by mail at APCD-SS-B1, 4300 Cherry Creek Drive South, Denver, 
CO 80246-1530. There is only one agency responsible for administering 
and enforcing the Lead-Based Paint Abatement program. However, pursuant 
to section 25-7-1104(1)(b)(2), C.R.S., the Division may delegate the 
``implementation or enforcement'' of standards to local health or 
building departments, as appropriate, if requested by such a local 
department. Such standards regarding such delegations are part of 
Regulation No. 19. If the Division approves such a delegation to a 
local health or building department, the Division shall be the primary 
agency responsible for overseeing and coordinating administration and 
enforcement of the program and Mr. Fine shall serve as the primary 
contact with US EPA.
    At this time, there is no delegation to a local health or building 
department; therefore, the Division has not developed a description of 
the functions to be performed by each agency. If the Division ever 
performs such a delegation, it will submit to EPA the required 
information as detailed in 40 CFR 745.324(b)(1)(iii).

A. Program Elements

    The Division has followed EPA's regulation at 40 CFR part 745 and 
the State Legislature's statutory requirements to develop Regulation 
Number 19 to be consistent with the Federal program and to be 
acceptable to

[[Page 10207]]

EPA. Implementation of Regulation Number 19 is an appropriate step to 
begin to protect children from exposure to lead as a result of lead-
based paint abatement in ``target housing'' and ``child-occupied 
facilities.'' Regulation Number 19 will also achieve uniformity in the 
regulation of lead abatement practices and in the qualifications for, 
and certification of, persons who perform such abatement.
    Regulation Number 19 includes procedures for training and 
certification of persons and companies involved in inspection, risk 
assessment, planning, project design, supervision, or conduct of the 
abatement of surfaces containing lead-based paint. Regulation Number 19 
has a training and certification program that is nearly identical to 
EPA's program. Training is to be provided by private contractors. In 
order to facilitate the scheduling of course audits by the Division, 
Regulation Number 19 includes an additional requirement that training 
course providers must receive the Division's approval or acknowledgment 
of each course prior to offering the course.
    Regulation Number 19 includes work practice standards and practices 
for lead-based paint abatement. These standards include EPA's work 
practice standards and work practice measures that an abatement 
contractor must include in an occupant protection plan and comply with 
before, during, and after abatement. The program also includes a 
requirement, similar to HUD's requirement, that a contractor must 
sample the soil to ensure that the soil is not contaminated. The 
sampling would be required unless the contractor is removing or 
permanently covering the contaminated soil. Colorado's program requires 
a certified supervisor to be on site during all work site preparation, 
abatement, and during post-abatement cleanup of the work areas.
    The regulation includes procedures for the approval of persons or 
companies who provide training or accreditation of workers, 
supervisors, inspectors, risk assessors, or project designers 
performing lead-based paint activities in ``target housing'' or 
``child-occupied facilities.'' Also included in Regulation Number 19 
are procedures for the Division notifying appropriate persons regarding 
lead-based paint projects in ``target housing'' or ``child-occupied 
facilities.'' Colorado's program requires a contractor to notify the 
Division 10 working days prior to the commencement of lead-based paint 
abatement activities if the amount of lead-based paint, lead 
contaminated soil, or lead contaminated dust is greater than 2 square 
feet on interior surfaces or 10 square feet on exterior surfaces. This 
time period for a notification is necessary because of document review 
and inspection planning. The regulation includes de minimis levels that 
trigger the notification requirement based upon proposed EPA identified 
triggers for risk assessment requirements and HUD's trigger levels for 
onsite preparation requirements. The State is in the process of 
revising Colorado Regulation No. 19 in order to incorporate the new EPA 
403 Rule. The tentative completion date is late summer of 2002.
    The program includes requirements for fees for certification of 
persons conducting lead abatement services, for any necessary 
monitoring of such persons to ensure compliance with Regulation No. 19 
and for approval of persons or companies involved in the training or 
accreditation of workers.
    The State of Colorado's program provides adequate enforcement 
fulfilling the criteria in 40 CFR 745.324(e)(2).
    The Division has legal authority and ability to immediately 
implement the standards and requirements of Regulation No. 19. The 
Division has authority to immediately commence an enforcement action 
for violation of lead-based paint activities and requirements, 
including: Accreditation of training programs; certification of 
individuals; standards for the conduct of lead-based paint abatement 
activities; and requirements that regulate the conduct of pre-
renovation notification activities.
    The Division has authority to enter, through consent, warrant, or 
other authority, premises or facilities where lead-based activities may 
occur for purposes of conducting inspections. The Division has 
authority to enter premises or facilities where those engaged in 
training for lead-based paint activities conduct business; to enter a 
renovator's place of business for the purposes of enforcing a pre-
renovation program; and to take samples and review records as part of 
the lead-based paint activities inspection process.
    The Division has available to it a diverse and flexible array of 
enforcement remedies that apply to the State's lead-based paint 
abatement program. The Division has authority to utilize enforcement 
remedies, including: Requests for information, warning letters, and 
notices of violation; administrative and civil actions, including 
authority to suspend, revoke, or modify accreditation or certification; 
and criminal sanctions.

B. Performance Elements

    The State of Colorado's lead-based paint abatement program includes 
the necessary performance elements as required pursuant to 40 CFR 
section 745.327(c). The Division has in place a training program which 
teaches inspectors case development procedures, proper maintenance of 
case files, violation discovery, methods of obtaining consent, evidence 
gathering, preservation of evidence, and chain of custody and sampling 
procedures. The Division requires that its inspectors attend continuing 
education courses.
    The Division has in place an enforcement-tracking data base that 
allows inspectors to process and react to tips and complaints and track 
enforcement cases. The Division has the ability to target inspections 
to ensure compliance with Regulation No. 19, including a notification 
requirement for the commencement of abatement activities. The Division 
has more than 15 years of experience in implementing a compliance 
monitoring and enforcement program in asbestos. Elements of the 
asbestos program will allow for a smooth transition to lead-based paint 
abatement compliance monitoring and enforcement that will result in 
correction of violations found during either routine inspections or 
those conducted in response to tips, complaints, and emergencies.

C. Statement of Resources (40 CFR 745.327(a)(2)(i)(B))

    Richard Fatur, an Environmental Protection Specialist, is employed 
full time to assist with the development and maintenance of Colorado's 
LBP Program. The States are currently in the process of hiring another 
FTE to assist with the program. Four additional Environmental 
Protection Specialists in the Asbestos Program, trained as Lead-Based 
Paint Inspectors & Risk Assessors or Supervisors, provide support to 
the lead-based paint program as needed.
    While the legislature did grant the Division authority to assess 
fees for certain aspects of the Lead Program, the level of abatement 
activity and numbers of individuals and firms seeking certification may 
not generate sufficient revenues for several more years to fully fund 
the program. In consideration of this, the Division will be submitting 
a grant application request to EPA for supplemental funding until such 
time as the program can operate in the black based solely on revenues 
collected.

D. Summary on Progress and Performance

    The Division agrees to submit to EPA a Summary on Progress and 
Performance of lead-based paint abatement compliance and enforcement 
activities.

[[Page 10208]]

III. 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.

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-CO/B. Copies 
of this notice, the State of Colorado'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 Street, 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,'' ``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: 
[email protected]. 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-CO/B. Electronic 
comments on this document may be filed online at many Federal 
Depository Libraries. Information claimed as CBI should not be 
submitted electronically.

V. 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: February 20, 2002.
Jack McGraw,
Acting Regional Administrator, EPA Region VIII.
[FR Doc. 02-5190 Filed 3-5-02 8:45 am]
BILLING CODE 6560-50-S