Lead-Based Paint Activities in Target Housing and Child-Occupied Facilities; Cherokee Nation Authorization Application

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

On November 19, 1999, the Cherokee Nation submitted an application for EPA 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 the Cherokee Nation's application, and provides a 45-day public comment period and an opportunity to request a public hearing on the application.

DATES:

Comments, identified by docket control number PB-402404-CN, must be received on or before March 10, 2000. In addition, a public hearing request may be submitted on or before March 10, 2000.

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 control number PB-402404-CN in the subject line on the first page of your response.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Robinson, Regional Lead Coordinator, Environmental Protection Agency, Region VI, 6PD-T, 1445 Ross Avenue, Suite 1200, Dallas, TX 75202-2733. Telephone: 214-665-7577, e-mail address: robinson.jeffrey@epamail.epa.gov.

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 Cherokee Nation. 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 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” 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 control number PB-402404-CN. The official record consists of the documents specifically referenced in this action, this notice, the Cherokee Nation's authorization application, 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 4:30 p.m., Monday through Friday, excluding legal holidays. The docket is located at the EPA Region VI Office, Environmental Protection Agency, Multi-Media Planning and Permitting Division, Toxics Section, 1445 Ross Avenue, Dallas, TX.

C. How and to Whom Do I Submit Comments and Hearing Requests?

You may submit comments and hearing requests through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number PB-402404-CN in the subject line on the first page of your response.

1. By mail. Submit your comments and hearing requests to: Environmental Protection Agency, Region VI, Multi-Media Planning & Permitting Division, Toxics Section, 1445 Ross Avenue, Suite 1200, 6PD-T, Dallas, TX 75202-2733.

2. In person or by courier. Deliver your comments and hearing requests to: Environmental Protection Agency, Multi-Media Planning & Permitting Division, Toxics Section, 7th Floor, 1445 Ross Avenue, Dallas, TX. The regional office is open from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.

3. Electronically. You may submit your comments and hearing requests electronically by e-mail to: “steele.eva@epamail.epa.gov” or mail your computer disk to the address identified above. Do not submit any information electronically that you consider to be CBI. Electronic comments and hearing requests must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. Comments and data and hearing requests will also be accepted on standard disks in WordPerfect 6.1/8.0 or ASCII file format. All comments and hearing requests in electronic form must be identified by docket control number PB-402404-CN. Electronic comments and hearing requests 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.

II. Background

A. What Action is the Agency Taking?

The Cherokee Nation has submitted an application to EPA Region VI, under section 404 of TSCA and has requested approval of their lead-based paint training and certification program. This application will be reviewed by EPA within 180 days of receipt of a complete application. If EPA subsequently finds that the program does not meet all the requirements for approval of a Tribal program, EPA will work with the Tribe 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 Cherokee Nation.

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 Cherokee Nation's 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 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 of TSCA, 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, 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 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. 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 Cherokee Nation's proposed program has been provided by the applicant:

On November 19, 1999, the Cherokee Nation applied to EPA for authorization to administer and enforce a Tribal Lead-Based Paint Program. The Cherokee Nation originally enacted on January 26, 1998, the Cherokee Nation Lead-Based Paint Management Act. L-98, 63 CNCA. Article 12, 1201, Section 601 et seq. (hereinafter known as the Act) This tribal statute designates the Department of Environmental Protection as the official Cherokee Nation agency for implementing the lead-based paint reduction and regulation program. This statute instructs the Department of Environmental Protection through the Cherokee Nation Environmental Protection Act to promulgate rules governing lead-based paint services, including lead-based paint contractor certification and accreditation of approved training providers and programs.

In addition to authority under the Cherokee Nation Environmental Code, the Act provides Cherokee Nation Environmental Protection with the power and duty to enforce the Act, rules, certification and accreditations. The Act authorizes the Cherokee Nation Department of Environmental Protection to issue, refuse to issue, renew, reactivate, reinstate, modify, suspend, or revoke certifications and accreditations.

The Cherokee Nation Lead-Based Paint Management Rules were promulgated on August 30, 1998. In general, 40 CFR part 745, subpart L and Oklahoma Administrative Code 252:110 were incorporated by reference when possible. The items not incorporated by reference are those that are otherwise mandated by the Act. Items pertaining to dates and deadlines were not incorporated by reference since the legislation provides those.

The scope of the Cherokee Nation Rules applies to all individuals and firms engaged in lead-based paint services in target housing and child-occupied facilities. It contains procedures and requirements for the accreditation of lead-based paint services training programs, procedures and requirements for the certification of individual and firms engaged in Lead-Based Paint services, and work practice standards for performing such services.

Accreditation is only available to educational institutions and government agencies offering ongoing and continuous lead-based paint training programs. Accreditation is available for both initial and refresher courses for inspector, risk assessor, supervisor, project designer and abatement worker. It is not available to training programs offering courses on a one time-only basis or for a period of less than 12 months. As an effort to maintain quality training, accreditation is not available for refresher courses only. If a training program wishes to receive accreditation for a refresher course, it must receive accreditation for the initial training course as well. The Cherokee Nation Lead Rules outline the accreditation timelines and the fees for initial and renewal accreditation. Renewal must be done on an annual basis.

Certification is required for all individuals and firms who perform or offer to perform Lead-Based Paint services in target housing and child-occupied facilities in the Cherokee Nation. Certification is available for inspector, risk assessor, supervisor, project designer, abatement worker, and firm. Only the Oklahoma Department of Environmental Quality (ODEQ) accredited LBP training will be accepted for certification in the Cherokee Nation. Chapter 110 of ODEQ rules outlines the certification timelines and the fees for initial and renewal certification in the Cherokee Nation. Renewal must be done on an annual basis. All initial applicants for inspector, risk assessor, and supervisor in the Cherokee Nation must successfully complete the DEQ certification. All renewal applicants for inspector, risk assessor, and supervisor in the Cherokee Nation must complete the DEQ certification exam every third year.

The Cherokee Nation Lead Rules incorporate by reference the work practice standards from 40 CFR 745.227. These work practice standards must be followed when performing all lead-based paint activities. Work practice standards are outlined for inspection, lead hazard screen, risk assessment, abatement, collection and laboratory analysis of samples, composite dust sampling, and recordkeeping.

As required by 40 CFR 745.327, the Cherokee Nation will establish a Memorandum of Agreement with the Region VI, Regional Administrator. The Memorandum of Agreement will include provisions for the timely and appropriate referral to the Region VI, Regional Administrator for those criminal enforcement matters where the Cherokee Nation does not have the authority. The Agreement will also identify any enforcement agreements that may exist between the Cherokee Nation and any State.

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 General Accounting Office

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