[Federal Register Volume 67, Number 139 (Friday, July 19, 2002)] [Notices] [Pages 47541-47544] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 02-18223] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [OPPT-2002-0034; FRL-7187-5] Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities; State of Mississippi Authorization Application AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On December 17, 2001, the State of Mississippi submitted an application for EPA final approval to administer and enforce 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 the Toxic Substances Control Act (TSCA). This notice announces the receipt of Mississippi's application, provides a 45-day public comment period to solicit comments on whether the State of Mississippi application meets the requirements for EPA approval, and provides an opportunity to request a public hearing on the application. Submittal of the application for final approval by Mississippi was initiated consistent with 40 CFR 745.327(a)(1)(ii), which stipulates that the State shall apply for final approval within 180 days prior to expiration of its interim approval, which in Mississippi's case will be June 28, 2002. The State of Mississippi has been operating its lead- based paint program under an interim approval since June 28, 1999, during which time, the State has worked to address issues raised by EPA concerning the State's audit privilege/penalty mitigation statute. However, due to statutory deficiencies which remain in Mississippi's audit privilege/penalty mitigation statute, EPA is proposing to disapprove their application for final approval. DATES: Comments must be received on or before September 3, 2002. Public hearing requests must be received on or before September 3, 2002. All correspondence must include the docket ID number OPPT-2002-0034. ADDRESSES: Comments and the public hearing request may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the SUPPLEMENTARY INFORMATION. To ensure proper receipt by EPA, it is imperative that you identify docket ID number OPPT-2002-0034 in the subject line on the first page of your response. FOR FURTHER INFORMATION CONTACT: Rose Anne Rudd, Pesticides and Toxic Substances Branch, Air, Pesticides and Toxics Management Division, Environmental Protection Agency, Region IV, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, S.W., Atlanta, GA 30303; telephone number: (404) 562-8998; e-mail address: [email protected]. SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general. This action may, however, be of interest to firms and individuals engaged in lead-based paint activities in the State of Mississippi. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the 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 [[Page 47542]] might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page 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.epa.gov/fedrgstr/. 2. In person. The Agency has established an official record for this action under docket ID number OPPT-2002-0034. The official record consists of the documents specifically referenced in this action, 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). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period, is available for inspection from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket is located at the regional office library, Sam Nunn Atlanta Federal Center, 9\th\ Floor - Tower, 61 Forsyth Street, S.W., Atlanta, GA. The telephone number for the library is (404) 562-8190. 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 ID number OPPT-2002-0034 in the subject line on the first page of your response. 1. By mail. Submit your comments and hearing requests to: Rose Anne Rudd, Pesticides and Toxic Substances Branch, Air, Pesticides and Toxics Management Division, Environmental Protection Agency, Region IV, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, S.W., Atlanta, GA 30303. 2. In person or by courier. Deliver your comments and hearing requests to: Pesticides and Toxic Substances Branch, Air, Pesticides and Toxics Management Division, Environmental Protection Agency, Region IV, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, S.W., Atlanta, GA 30303. The regional office is open from 8 a.m. to 5 p.m., Monday through Friday, excluding legal holidays. The telephone number for the regional office is (404) 562-8956. 3. Electronically. You may submit your comments electronically by e-mail to: [email protected], or mail your computer disk to the address identified above. Do not submit any information electronically that you consider to be 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 WordPerfect 6.1/8.0 or ASCII file format. All comments in electronic form must be identified by docket ID number OPPT-2002-0034. Electronic comments may also be filed online at many Federal Depository Libraries. D. How Should I Handle CBI Information That I Want To Submit to the Agency? Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any 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 version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified under FOR FURTHER INFORMATION CONTACT. E. What Should I Consider as I Prepare My Comments for EPA? We invite you to provide your views on the various options we propose, new approaches we have not considered, the potential impacts of the various options (including possible unintended consequences), and any data or information that you would like the Agency to consider during the development of the final action. You may find the following suggestions helpful for preparing your comments: 1. Explain your views as clearly as possible. 2. Describe any assumptions that you used. 3. Provide copies of any technical information and/or data you used that support your views. 4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide. 5. Provide specific examples to illustrate your concerns. 6. Offer alternative ways to improve the notice. 7. Make sure to submit your comments by the deadline in this notice. 8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation. II. Background A. What Actions Have Been Taken? By cover letter dated March 3, 1998, the State of Mississippi submitted an application for the authorization of its State Lead-Based Paint Training and Certification Program (``Lead-Based Paint Program'') pursuant to section 404 of TSCA (15 U.S.C. 2684) (63 FR 38647). Following this submission, EPA identified issues arising from the State of Mississippi's audit privilege/penalty mitigation statute (Miss. Code Ann. 49-2-71 and 49-17-43) which unduly restricts the State's ability to fully administer and enforce its lead-based paint program and prevents the State from obtaining authorization. By letter dated December 17, 1998, EPA informed the State that EPA could grant interim, instead of final, approval of the State's Lead- Based Paint Program. Subsequently, on June 28, 1999, the State of Mississippi withdrew the March 3, 1998, request for final approval, and asked that the application be considered instead as a submittal for interim approval. The State of Mississippi has been operating its Lead-Based Paint Program under interim approval since June 28, 1999. Interim approval expires on June 28, 2002. EPA has worked with the State to remedy deficiencies in the State's statutes. However, two deficiencies at Miss. Code Ann. 49-2-71 and 49-17-43(g) have not been corrected which impair the State's ability to provide adequate enforcement in criminal proceedings and investigations, and in assessment of appropriate penalties. The Mississippi Audit Privilege/Penalty Mitigation Statute at Miss. Code Ann. 49-2-71 creates a privilege for self-evaluation reports and is applicable to criminal proceedings and investigations. Under this statute, self-evaluation reports are not admissible in any legal or investigative action in a criminal proceeding and are not subject to discovery. To have adequate criminal [[Page 47543]] enforcement authority, Mississippi law must allow state officials unfettered access to evidence of criminal conduct regardless of whether that evidence is contained in an environmental self-evaluation report. Criminal privilege impairs the state's ability to access evidence of criminal conduct needed for criminal investigations, grand jury proceedings, and prosecutions. Requirements such as an in camera hearing prior to the use of a self-evaluation report will significantly impede criminal enforcement. The statute unduly restricts criminal enforcement authority; therefore, Mississippi's Lead-Based Paint Program does not provide adequate enforcement authority. The Mississippi penalty mitigation provisions at Miss. Code Ann. 49-17-43(g) unduly limit Mississippi's authority to assess appropriate penalties. The penalty mitigation provisions in this statute mandate assessment of a de minimis or zero penalty when a person discovers noncompliance through a voluntary self-evaluation, discloses that information, and meets all other conditions of the statute. The statute does not provide sufficient flexibility or discretion for assessment of appropriate penalties. Although the statute contains exceptions and conditions, EPA has consistently maintained that another exception must be created. The penalty reduction provision should not apply in a case involving repeat violations. Application of the penalty reduction provision to repeat violations would not yield a penalty appropriate to the violation, as a de minimis or zero penalty would provide no incentive for a person to fully implement measures to prevent future violations. Accordingly, the application of the penalty mitigation provision to the Lead-Based Paint Program renders the requisite enforcement authority inadequate. As a result, EPA believes that it cannot grant final approval of the State of Mississippi's Lead-Based Paint Program and has initiated the process to withdraw Mississippi's interim authorization pursuant to 40 CFR 745.324(i). The action to withdraw Mississippi's program is independent of the proposed action to disapprove Mississippi's final application outlined in Unit II. B. of this document. B. What Action is the Agency Taking? The State of Mississippi has submitted an application to EPA Region IV, under section 404 of TSCA and has requested final approval of its lead-based paint training and certification program. This application will be reviewed by EPA within 180 days of receipt of a complete application. Due to the statutory deficiencies contained in Mississippi's audit privilege/penalty mitigation statute and its application to the lead-based paint training and certification program, EPA proposes to disapprove the application for final approval. 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 or disapproving the application. Therefore, by this notice EPA is soliciting public comment on whether the State of Mississippi 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. C. What is the Agency's Authority for Taking this Action? On October 28, 1992, the Housing and Community Development Act of 1992, Pub. L. 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. 2681-92), 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. 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 (15 U.S.C. 2684), a State may seek authorization from EPA to administer and enforce its own lead-based paint activities program. 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). 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. 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 lead-based paint activities program 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 Mississippi's proposed final program has been provided by the applicant. Mississippi Lead-Based Paint Training and Certification Program The State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), is seeking final authorization from EPA to administer and enforce its own lead-based paint activities program. Regulations setting out the procedures and requirements for these activities were adopted by the Commission on Environmental Quality on January 22, 1998. Requirements under the regulations were applicable beginning August 31, 1998. The authority to administer and enforce a State program was provided for in the ``Lead-Based Paint Activity Accreditation and Certification Act'' passed by the Mississippi Legislature during the 1997 regular session. The State lead-based paint program regulations are applicable to persons engaged in lead-based paint activities in target housing and child-occupied facilities. The State certification program requirements include the certification of firms, inspectors, risk assessors, supervisors, project designers and workers. Each certification discipline must meet required academic and/or experience requirements of the [[Page 47544]] State program regulations. Individuals must successfully pass the third party exam applicable to the certification discipline in order to be certified. The State program sets forth work practice standards for persons performing lead-based paint activities. The State program requires the filing of a project notification, in writing, prior to the commencement of any lead-based paint abatement activity. All initial and refresher lead-based paint activities training programs must be accredited. The State program requires training programs to notify the State prior to conducting a training course. Full approval of a training program's lead-based paint activities course is contingent on a satisfactory on-site course audit. The State program provides for the suspension, revocation, or modification of training program accreditation and certifications of individuals and firms. The State lead program also conducts outreach and compliance assistance activities. The objective of the activities is to educate the public and regulated community of the hazards of lead-based paint. The activities also inform the public and regulated community of the regulatory requirements applicable to lead-based paint activities. 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, Reporting and recordkeeping requirements. Dated: July 9, 2002. J.I. Palmer, Jr., Regional Administrator, Region IV. [FR Doc. 02-18223 Filed 7-18-02; 8:45 am] BILLING CODE 6560-50-S