[Federal Register Volume 77, Number 56 (Thursday, March 22, 2012)]
[Proposed Rules]
[Pages 16796-16799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6933]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-R06-OPPT-2011-0989; FRL-9649-6]


Lead Requirements for Lead-Based Paint Activities in Target 
Housing and Child-Occupied Facilities; State of Arkansas's 
Authorization Application, Notice of Self-Certification Program 
Authorization

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of program authorization; request for comments.

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SUMMARY: On July 8, 2011, the State of Arkansas submitted an 
application for EPA approval for the Arkansas Department of Health 
(ADH) 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). Previously Arkansas Department of Environmental 
Quality (ADEQ) was approved to administer this program in Arkansas, but 
the Arkansas Legislature revoked the State's prior statute establishing 
the Arkansas lead-based paint program and passed a new statute 
establishing a State lead-based paint program and changing the 
implementing state agency from ADEQ to ADH. By this action, we are 
withdrawing our prior authorization of Arkansas with ADEQ as the 
implementing agency and authorizing Arkansas for the lead-based paint 
program pursuant to the Arkansas July 8, 2011, request with the ADH as 
the implementing state agency. This document announces the receipt of 
Arkansas's rules established pursuant to its new 2011 statutory 
authority, and provides a 45-day public comment period and an 
opportunity to request a public hearing on the application for the 
ADH's program and on the withdrawal and termination of the prior 
program administered in Arkansas by ADEQ. Arkansas has provided a 
certification that their program for implementation by ADH meets the 
requirements for approval of a State program under section 404 of TSCA. 
Therefore, pursuant to section 404, the program submitted by Arkansas 
on behalf of the ADH 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, the EPA Administrator will disapprove the 
program, at which time a document will be issued in the Federal 
Register and the Federal program will be established.

DATES: Public comments on the authorization application must be 
submitted on or before May 7, 2012. Public hearing requests must be 
submitted on or before April 6, 2012.
    If a public hearing is requested and granted, the hearing will be 
held on April 24, 2012, 1:30 p.m., at the Arkansas Department of 
Health, Center for Public Health Practice, 4815 West Markham St., 
Little Rock, Arkansas. If a public hearing is not requested, this 
meeting time and place will be canceled. Therefore, individuals are 
advised to verify the status of the public hearing by contacting Cindy 
Parker (name, telephone number, and address are provided in the FOR 
FURTHER INFORMATION CONTACT section of this document) before the April 
24, 2012, public hearing date.
    Comments, identified by Docket Control Number EPA-R06-OPPT-2011-
0989, must be received on or before May 7, 2012. In addition, a public 
hearing request must be submitted on or before April 6, 2012.

ADDRESSES: You may submit comments through the mail, in person, or 
electronically. To ensure proper receipt by EPA, it is important that 
you identify Docket Identification Number EPA-R06-OPPT-2011-0989 in the 
subject line on the first page of your response. Submit your comments 
by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. By mail: Submit your comments and hearing requests to: Cindy 
Parker, Toxics Section, 6PD-T, US EPA Region 6, 1445 Ross Avenue, 
Dallas, Texas, 75202-2733.
    3. By person or courier: Deliver your comments and hearing requests 
to: Toxics Section, Multimedia Planning and Permitting Division, US 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Ste 700, 
Dallas, Texas 75202-2733. Such deliveries are only accepted during the 
Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding Federal holidays.
    4. By fax: 214-665-6655.
    5. By email: You may submit your comments and hearing requests 
electronically by email to: <a href="/cdn-cgi/l/email-protection#7b0b1a09101e09551812151f023b1e0b1a551c140d"><span class="__cf_email__" data-cfemail="7a0a1b08111f08541913141e033a1f0a1b541d150c">[email protected]</span></a>, or mail your computer 
disk to the address identified above. Do not submit any information 
electronically that you consider Confidential Business Information 
(CBI).

[[Page 16797]]

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 Microsoft Word or ASCII file 
format.
    Instructions: Direct your comments to Docket ID Number EPA-R06-
OPPT-2011-0989. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online 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 email. The http://www.regulations.gov Web site 
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 email comment directly to EPA without 
going through http://www.regulations.gov, your email 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 your 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 or 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 http://www.regulations.gov index. 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 either electronically 
in http://www.regulations.gov or in hard copy.
    Do not submit this information to EPA through regulations.gov or 
email. Clearly mark on each page 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 disk or CD-ROM that you mail 
to EPA 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 as CBI will not be disclosed except in accordance 
with procedures set forth in 40 CFR part 2. If you have any questions 
about CBI or the procedures for claiming CBI, please consult the 
technical person identified under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Cindy Parker, Lead-Based Paint 
Program, Toxics Section, United States Environmental Protection Agency 
Region 6, 1445 Ross Avenue, Ste 1200, Dallas, Texas 75202. The 
telephone number where Ms. Parker can be reached is: (214) 665-7291. 
Ms. Parker can be contacted via electronic mail at 
<a href="/cdn-cgi/l/email-protection#275746554c425509444e49435e6742574609404851"><span class="__cf_email__" data-cfemail="3848594a535d4a165b51565c41785d4859165f574e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
II. Background
III. State Program Description Summaries
IV. Federal Overfiling
V. Withdrawal of Authorization

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you perform lead-
based paint inspections, lead hazard screens, risk assessments or 
abatements in target housing or child-occupied facilities or if you 
operate a training program for individuals who perform any of these 
activities. ``Target housing'' is defined in section 401 of TSCA as any 
housing constructed prior to 1978, except housing for the elderly or 
persons with disabilities (unless any child under age 6 resides or is 
expected to reside in such housing) or any 0-bedroom dwelling. Under 
this rule, a child-occupied facility is a building, or a portion of a 
building constructed prior to 1978, visited regularly by the same 
child, under 6 years of age, on at least 2 different days within any 
week (Sunday through Saturday period), provided that each day's visit 
lasts at least 3 hours and the combined weekly visits last at least 6 
hours, the combined annual visits last at least 60 hours.
    Potentially-affected entities can include, but are not limited to:
    <bullet> Real estate (NAICS code 531), e.g., lessors of residential 
buildings and dwellings, residential property managers.
    <bullet> Child day care services (NAICS code 624410).
    <bullet> Elementary and secondary schools (NAICS code 611110), 
e.g., elementary schools with kindergarten classrooms.
    <bullet> Other technical and trade schools (NAICS code 611519), 
e.g., training providers.
    <bullet> Lead abatement professionals (NAICS code 562910), e.g., 
firms and supervisors engaged in lead-based paint activities.
    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 North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities.
    If you have any questions regarding the applicability of this 
action to a particular entity, consult the technical 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/ 
or from http://www.regulations.gov/. You can also go directly to the 
Federal Register listings at http://www.gpoaccess.gov/fr/.
    2. In person: The State submittal is also available for public 
inspection during official business hours, by appointment, at the 
Arkansas Department of Health, Center for Public Health Practice, 
Applied Epidemiology Branch, Environmental Epidemiology Section, 4815 
West Markham St., Little Rock, Arkansas. You may also read this 
document, and certain other related documents, by visiting the United 
States Environmental Protection Agency, Region 6 Office, 1445 Ross 
Avenue, Ste 700, Dallas, Texas 75202-2733. You should arrange your 
visit to the EPA office by contacting the technical person listed under 
FOR FURTHER INFORMATION CONTACT. Also, EPA has established an official 
record for this action under Docket Control Number EPA-R06-OPPT-2011-
0989. The official record consists of the documents specifically 
referenced in this action, this notice, the State of Arkansas program 
authorization applications, any public comments received during an 
applicable comment

[[Page 16798]]

period, and other information related to this action.

C. What should I consider as I prepare my comments for EPA?

    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 use.
    3. Provide copies of any technical information and/or data you use 
that support your views.
    4. If you estimate potential burden or costs, explain how you 
arrive at the estimate that you provide.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternative ways to improve the notice or collection 
activity.
    7. Make sure to submit your comments by the deadline in this 
notice.
    8. To ensure proper receipt by EPA, identify the Docket Control 
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 action is the agency taking?

    Originally, on March 29, 1999, the State of Arkansas submitted and 
EPA approved 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). That 
application and approval stated Arkansas' lead-based paint program was 
to be administered by the Lead-Based Paint Section of the Arkansas 
Department of Environmental Quality (ADEQ).
    On May 19, 1999, EPA Region 6 published a notice announcing receipt 
of the State of Arkansas program authorization application. In the 
application, Arkansas provided a certification that their program meets 
the requirements for approval of a State program under section 404 of 
TSCA. Therefore, pursuant to section 404, the program was deemed 
authorized as of the date of submission, which was March 29, 1999. 
(See, 64 FR 27266, May 19, 1999).
    In 2011, the Arkansas State Legislature, in the Regular Session of 
the 88th General Assembly, passed the Lead-Based Paint Hazard Act of 
2011 revoking the prior state statutory authority and creating a new 
State statutory authority for the lead-based program. The only 
substantive difference between the prior law and the current law is 
that the Legislature transferred the authority to operate the lead-
based paint program from the Arkansas Department of Environmental 
Quality to the Arkansas Department of Health, effective July 1, 2011. 
(See, Ark. Code Ann. Sec. Sec.  20-27-2401--2409). Because the Arkansas 
Legislature revoked the statutory authority which formed the basis for 
our May 19, 1999, approval, EPA is considering this revocation of state 
authority a request by the State to voluntarily return the program to 
EPA and therefore EPA is withdrawing its May 19, 1999, lead-based paint 
approval. Since the Arkansas Legislature, by this same statute, 
established a new authority for a lead-based paint program and 
designated the Arkansas Department of Health as the new state agency to 
implement the program we also are approving in this action Arkansas' 
newly submitted program.
    On July 8, 2011, the State of Arkansas 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 Arkansas's 
rules, and provides a 45-day public comment period and an opportunity 
to request a public hearing on the application. Arkansas has provided a 
certification that their program meets the requirements for approval 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. 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. The State program became 
effective with EPA's receipt of Arkansas' certification on July 8, 
2011. Submit comments on the authorization application and withdrawal 
and termination of the May 19, 1999, program on or before May 7, 2012.
    Public hearing requests must be submitted on or before April 6, 
2012. If a public hearing is requested and granted, the hearing will be 
held on April 24, 2012, 1:30 p.m., at the Arkansas Department of 
Health, Center for Public Health Practice, 4815 West Markham St., 
Little Rock, Arkansas. If a public hearing is not requested, this 
meeting time and place will be canceled. Therefore, individuals are 
advised to verify the status of the public hearing by contacting Cindy 
Parker (name, telephone number, and address are provided in the FOR 
FURTHER INFORMATION CONTACT section of this notice) before the April 
24, 2012, public hearing date.

B. What is EPA'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. 
2681-92), entitled ``Lead Exposure Reduction.'' Section 402 of TSCA 
authorizes EPA to promulgate final regulations governing lead-based 
paint activities. Lead-based paint activities are defined in section 
402(b) of TSCA and authorizes EPA to regulate lead-based paint 
activities in target housing, public buildings built prior to 1978, 
commercial buildings, bridges and other structures or superstructures. 
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, 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. On August 31, 1998, EPA instituted the Federal program 
in States or Indian Country without an authorized program, as provided 
by section 404(h) of TSCA.
    States and Indian 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 Indian Tribe must demonstrate that its program 
is at least as protective of human health and the environment as the 
Federal

[[Page 16799]]

program, and provides 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 until such 
time as EPA disapproves the program application or withdraws the 
authorization.
    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 Arkansas's application meets the requirements 
for EPA approval. This notice also provides an opportunity to request a 
public hearing on the application. Arkansas has provided a self-
certification letter from the Governor and Attorney General that its 
program meets the requirements for approval 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. 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 in 
Arkansas.

III. State Program Description Summaries

    The following program summary is from Arkansas' self-certification 
application:

Arkansas Department of Health, TSCA Section 402 Lead-Based Paint 
Training and Certification Program Summary

    The Arkansas Department of Health is seeking authorization to 
administer the Environmental Protection Agency Lead-Based Paint 
Activities in Target Housing and Child-Occupied Facilities program 
as provided by Section 402 of the Toxic Substances Control Act and 
as promulgated into rule in 40 CFR Section 745 and this document 
serves as notification of this intent to seek authorization.
    Currently, the Arkansas Department of Health has statutory 
authority pursuant to Arkansas Code Annotated Sec. Sec.  20-27-2401-
2409 to administer the Lead-based Paint Hazards Act of 2011. This 
Act ensures that lead-based paint activities conducted in target 
housing or child-occupied facilities in the state of Arkansas are 
performed by trained and certified individuals who are employed by 
licensed lead-based paint firms. The Act also ensures that the 
individuals are trained by lead-based paint training providers who 
teach the curriculum outlined in 40 CFR Section 745 and that the 
training providers receive review and approval prior to receiving a 
license and are audited to maintain a standard of instruction. 
Finally, the Act ensures that certified individuals, as well as 
licensed firms, perform lead-based paint activities according to 
work practices approved by 40 CFR Section 745. The Lead-based Paint 
Hazard Act of 2011 is as protective of human health and the 
environment as the provisions of 40 CFR Section 745.
    The Lead-based Paint Hazard Act of 2011 also provides for the 
promulgation of the Arkansas Board of Health Rules pertaining to 
Lead-based Paint Activities. These Rules specifically detail 
provisions for becoming a lead-based paint training provider. This 
includes a review of the training and experience of the persons 
offering the training and the type of facility within which the 
training will be conducted. The Rules pertaining to Lead-based paint 
Activities also requires that the training adhere to a course 
curriculum as specified in 40 CFR Section 745. Finally, the Rules 
allow for course audit and, if necessary, disciplinary actions that 
may include suspension; revocation; modification; or injunction; or 
pursuit of criminal prosecution.
    Arkansas Board of Health Rules pertaining to Lead-based Paint 
Activities also provide that individuals apply for certification and 
firms apply for licensing prior to conducting lead-based paint 
activities in the state of Arkansas. The certification process 
ensures that individuals received training from a training provider 
accredited by the State of Arkansas, or a training provider approved 
by the Environmental Protection Agency, or a state or tribal program 
approved by the Environmental Protection Agency. Further, the 
certification process ensures that individuals in certain 
disciplines have proven a certain level of proficiency by achieving 
a passing score on an examination not conducted in conjunction with 
the training course test administered by the training provider. 
These Rules also mandate refresher courses for the lead-based paint 
professionals.
    Lead-based paint firms are also required to submit to an 
application process in which the firm assures that only trained and 
certified lead-based paint professionals will be employed to conduct 
lead-based paint activities in the state of Arkansas. Both firms and 
individuals are subject to disciplinary action for submitting false 
information; failing to comply with worker practice standards; 
employing uncertified individuals; and failing to comply with 
record-keeping requirements. This disciplinary action may include 
suspension; revocation; modification; injunction; or pursuit of 
criminal prosecution.
    Arkansas Board of Health Rules pertaining to Lead-based Paint 
Activities provides standards for work practice of lead-based paint 
activities in the state of Arkansas and specifically references the 
standards stated in 40 CFR Section 745. In conjunction with the work 
practice standards, the Rules mandate all laboratory testing be 
conducted by a laboratory approved by the Environmental Protection 
Agency pursuant to the National Lead Laboratory Accreditation 
Program (NLLAP).
    The Rules and the Act are administered by the Applied 
Epidemiology Branch of the Arkansas Department of Health. The Branch 
includes personnel who review notifications of lead-based paint 
abatements; inspect lead-based paint abatements--including reviewing 
work practices, certifications, and licensures; conduct public 
outreach; review applications by individuals and firms; audit 
training providers; and conduct enforcement actions for violations.

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 
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 program.

V. Withdrawal of Authorization

    Pursuant to section 404(c) of TSCA, the EPA Administrator may 
withdraw authorization of a State or Indian tribal renovation, repair 
and painting program, and/or a lead-based paint pre-renovation 
education program, after notice and opportunity for corrective action, 
if the program is not being administered or enforced in compliance with 
standards, regulations, and other requirements established under the 
authorization. The procedures U.S. EPA will follow for the withdrawal 
of an authorization are found at 40 CFR 745.324(i).

List of Subjects in 40 CFR Part 745

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

    Dated: March 7, 2012.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2012-6933 Filed 3-21-12; 8:45 am]
BILLING CODE 6560-50-P


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