Lead-Based Paint Renovation, Repair and Painting, and Pre-Renovation Education Activities in Target Housing and Child Occupied Facilities; State of Washington. Notice of Self-Certification Program Authorization, Request for Public Comment, Opportunity for Public Hearing

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice; program authorization, request for comments and opportunity for public hearing.

SUMMARY:

This notice announces that on March 16, 2011, the State of Washington was deemed authorized under section 404(a) of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2684(a), to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA, 15 U.S.C. 2682(c)(3), and a lead-based paint pre-renovation education program in accordance with section 406(b) of TSCA, 15 U.S.C. 2686(b). This notice also announces that EPA is seeking comment during a 45-day public comment period, and is providing an opportunity to request a public hearing within the first 15 days of this comment period, on whether these Washington programs are at least as protective as the Federal programs and provide for adequate enforcement. This notice also announces that the authorization of the Washington 402(c)(3) and 406(b) programs, which were deemed authorized by regulation and statute on March 16, 2011, will continue without further notice unless EPA, based on its own review and/or comments received during the comment period, disapproves one or both of these Washington program applications on or before September 12, 2011.

DATES:

Comments, identified by docket control number EPA-R10-OPPT-2011-0378, must be received on or before June 24, 2011. In addition, a public hearing request must be submitted on or before May 25, 2011.

ADDRESSES:

Comments and requests for a public hearing may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Section I of the SUPPLEMENTARY INFORMATION. To ensure proper receipt by EPA, it is important that you identify docket control number EPA-R10-OPPT-2011-0378 in the subject line on the first page of your response.

FOR FURTHER INFORMATION CONTACT:

Barbara Ross, Technical Contact, OAWT, Solid Waste &Toxics, AWT-128, United States Environmental Protection Agency, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101, telephone number: (206) 553-1985; e-mail address: ross.barbara@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

This action is directed to the public in general, to entities offering Lead Safe Renovation courses, and to firms and individuals engaged in renovation and remodeling activities of pre-1978 housing and child-occupied facilities in the State of Washington. Individuals and firms falling under the North American Industrial Classification System (NAICS) codes 231118, 238210, 238220, 238320, 531120, 531210, 53131, e.g., General Building Contractors/Operative Builders, Renovation Firms, Individual Contractors, and Special Trade Contractors like Carpenters, Painters, Drywall workers and Plumbers, “Home Improvement” Contractors, as well as Property Management Firms and some Landlords are also affected by these rules. 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 here could also be affected. The 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: EPA has established an official record for this action under docket control number EPA-R10-OPPT-2011-0378. This docket may be accessed through http://www.regulations.gov. The official record consists of the documents specifically referenced in this action, this notice, the State of Washington 402(c)(3) and 406(b) program authorization applications, any public comments received during an applicable comment period, and other information related to this action.

2. In person: you may read this document, and certain other related documents, by visiting the Washington State Department of Commerce, Lead-Based Paint Program, 1011 Plum Street, SE., Olympia, WA 98504; contact person, Cynthia Sanderson—Manager Lead Programs, telephone number: (360) 725-2941 . You may also read this document, and certain other related documents, by visiting the United States Environmental Protection Agency (EPA) OAWT, Solid Waste & Toxics, AWT-128, 1200 Sixth Avenue, Seattle WA 98101. You should arrange your visit to the EPA office by contacting the technical person listed under FOR FURTHER INFORMATION CONTACT.

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 important that you identify docket control number EPA-R10-OPPT-2011-0378 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 or in person or by courier: Submit or deliver your comments and hearing requests to: Barbara Ross, Technical Contact, United States Environmental Protection Agency (EPA), OAWT, Solid Waste & Toxics, AWT-128, 1200 Sixth Avenue, Suite 900, Seattle WA 98101. The Regional office is open from 8 a.m. to 5 p.m., Monday through Friday, excluding legal holidays. The phone number for the office is (206) 553-1985.

3. Electronically: You may submit your comments and hearing requests electronically by e-mail to: ross.barbara@epa.gov, or mail your computer disk to the address identified above. Do not submit any information electronically that you consider Confidential Business Information (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 Microsoft Word or ASCII file format.

Instructions: Direct your comments to Docket ID Number EPA-R10-OPPT-2011-0378. 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 e-mail. 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 e-mail comment directly to EPA without going through http://www.regulations.gov , your e-mail 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.

D. How should I handle CBI information that I want to submit to the agency?

Do not submit this information to EPA through http://www.regulations.gov or e-mail. 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.

E. 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?

EPA is announcing that on March 16, 2011, the State of Washington was deemed authorized under section 404(a) of TSCA, and 40 CFR 745.324(d)(2), to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA, and a lead-based paint pre-renovation education program in accordance with section 406(b) of TSCA. This notice also announces that EPA is seeking comment and providing an opportunity to request a public hearing on whether the State programs are at least as protective as the Federal programs and provide for adequate enforcement. The 402(c)(3) program ensures that training providers are accredited to teach renovation classes, that individuals performing renovation activities are properly trained and certified as renovators, that firms are certified as renovation firms, and that specific work practices are followed during renovation activities. The 406(b) program ensures that owners and occupants of target housing are provided information concerning potential hazards of lead-based paint exposure before certain renovations are begun. On March 16, 2011, Washington submitted an application under section 404 of TSCA requesting authorization to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA, and a pre-renovation education program in accordance with section 406(b) of TSCA, and submitted a self-certification that these programs are at least as protective as the Federal programs and provide for adequate enforcement. Therefore, pursuant to section 404(a) of TSCA, and 40 CFR 745.324(d)(2), the Washington renovation program and pre-renovation education program are deemed authorized as of the date of submission and until such time as the Agency disapproves the program application or withdraws program authorization. Pursuant to section 404(b) of TSCA and 40 CFR 745.324(e)(2), EPA is providing notice, opportunity for public comment and opportunity for a public hearing on whether the State program application is at least as protective as the Federal programs and provides for adequate enforcement. If a hearing is requested and granted, EPA will issue a Federal Register notice announcing the date, time and place of the hearing. The authorization of the Washington 402(c)(3) and 406(b) programs, which were deemed authorized by regulation and statute on March 16, 2011, will continue without further notice unless EPA, based on its own review and/or comments received during the comment period, disapproves one or both of these Washington program applications.

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. In the Federal Register dated April 22, 2008, (73 FR 21692), EPA promulgated final TSCA section 402(c)(3) regulations governing renovation activities. The regulations require that in order to do renovation activities for compensation, renovators must first be properly trained and certified, must be associated with a certified renovation firm, and must follow specific work practice standards, including recordkeeping requirements. In addition, the rule prescribes requirements for the training and certification of dust sampling technicians. In the Federal Register of June 1, 1998, (63 FR 29908), EPA promulgated final TSCA section 406(b) regulations governing pre-renovation education requirements in target housing. This program ensures that owners and occupants of target housing are provided information concerning potential hazards of lead-based paint exposure before certain renovations are begun on that housing. In addition to providing general information on the health hazards associated with exposure to lead, the lead hazard information pamphlet advises owners and occupants to take appropriate precautions to avoid exposure to lead-contaminated dust and debris that are sometimes generated during renovations. EPA believes that regulation of renovation activities and the distribution of the pamphlet will help to reduce the exposures that cause serious lead poisonings, especially in children under age 6, who are particularly susceptible to the hazards of lead.

Under section 404 of TSCA, a State may seek authorization from EPA to administer and enforce its own pre-renovation education program or renovation, repair and painting program in lieu of the Federal program. The regulations governing the authorization of a State program under both sections 402 and 406 of TSCA are codified at 40 CFR part 745, subpart Q. States 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 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, as required by Section 404(b) of TSCA. EPA's regulations at 40 CFR part 745, subpart Q, provide the detailed requirements a State program must meet in order to obtain EPA approval. A State may choose to certify that its own pre-renovation education program or renovation, repair and painting program meets the requirements for EPA approval, by submitting a letter signed by the Governor or Attorney General stating that the program is at least as protective of human health and the environment as the Federal program and provides for adequate enforcement. Upon submission of such a certification letter, the program is deemed authorized pursuant to TSCA section 404(a) and 40 CFR 745.324(d)(2) and [15 U.S.C. 2864(b)]. This authorization becomes ineffective, however, if EPA disapproves the application or withdraws the program authorization.

III. State Program Description Summary

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

Scope of Rules

Washington state laws, called Revised Code of Washington (RCW), gives the Department of Commerce, Lead-Based Paint Program authority to implement and administer the Federal Lead Renovation, Repair and Painting Rule in Washington to ensure that persons who perform lead-based paint activities do so safely to prevent exposure of building occupants, especially children, to hazardous levels of lead. The Washington Administrative Code (WAC 365-230) adopted by the State of Washington to implement the statutes and the Lead Renovation, Repair and Painting Rule becomes effective March 16, 2011. The rule requires a person to be certified before performing, supervising, or offering to perform a lead-based paint activity involving target housing or a child-occupied facility built before 1978. Work practice standards are also prescribed, as well as reporting and recordkeeping requirements. In addition, no person may offer or conduct a lead training course represented as qualifying a person for certification unless the course is accredited by the Department and uses approved instructors.

WAC 365-230 has been promulgated to incorporate the pre-renovation education distribution (PRE) and renovation, repair and painting (RRP) requirements for programs under the Environmental Protection Agency's regulations at 40 CFR part 745, subparts E and L. The Washington State Department of Commerce lead-based paint program regulates the following lead-based paint activities in target housing and child-occupied facilities built before 1978:

• Pre-renovation information distribution and renovation activities conducted for compensation.
• Lead hazard reduction, including abatement.
• Lead investigation, including dust, paint, soil sampling and onsite testing; clearance, inspection, hazard screen, risk assessment and elevated blood lead level investigation activities.

Applicability to Renovations

The PRE and RRP provisions are described in WAC 365-230. These rules apply to renovations performed for compensation in target housing and child-occupied facilities, except when:

• The paint involved in the renovation is determined to be lead-free by a certified lead inspector, risk assessor or by a certified renovator using an EPA-recognized test kit.
• The work is minor repair or maintenance.
• The work is renovation not performed for compensation and no other conditions requiring certification exist.
• The work is renovation performed by the homeowner in the owner's owner-occupied unit. Emergency renovations are exempt from certain provisions, including the PRE requirements, but not from cleaning and post renovation cleaning verification.

Accreditation of Training Courses

Training course accreditation is described in WAC 365-230-040 . A person wishing to offer a course leading to certification, including lead-safe renovator and dust sampling technician initial or refresher courses, must submit a complete application with course materials and fee to the Department of Commerce. The course must cover all curriculum requirements identified in WAC 365-230-050 . Courses deemed to meet all requirements are granted full approval and may renew their accreditations at 4-year intervals.

Pre-Renovation Education Requirements

The PRE requirements are described in detail at WAC 365-230-320 . Renovation firms must:

• Provide the pamphlet, Renovate Right, to owners and occupants of target housing and to owners, operators and parents or guardians in child-occupied facilities before beginning renovation work.
• Obtain signature(s) acknowledging receipt of pamphlet, or other proof of delivery.
• Post information in child-occupied facilities and multi-family housing.

Renovation, Repair and Painting Requirements

Certified Firms Requirements

WAC 365-230-360 describes requirements for certification of firms.

Firms must submit an application and pay a fee for certification. Firms must:

• Assign a certified lead-safe renovator to oversee each renovation project.
• Use only a certified renovator and certified renovator-trained workers to perform renovations.
• Ensure the use of lead-safe work practices and that prohibited practices are not used.
• Meet the pre-renovation education requirements.
• Create and maintain required records.

Certified Renovator Requirements

WAC 365-230-380 describes requirements for certification of renovators.

Certified renovator responsibilities are described at WAC 365-230-330 and WAC 365-230-340 . To be certified as a lead-safe renovator, an individual must complete a one-day lead-safe renovation course taught by an accredited training provider. Certified renovators must:

• Provide training to untrained workers on the lead-safe work practices to be used.
• Be onsite to conduct or oversee posting of signs, containment setup, and final cleaning.
• Be onsite regularly to direct and ensure ongoing maintenance of containment barriers and use of lead-safe work practices.
• Be available onsite during work or by telephone to return immediately to the worksite.
• Be in possession of a valid, unexpired certification card/certificate when at the jobsite.
• Personally conduct the post-renovation cleaning verification.
• Prepare required renovation records.

Certified Lead Sampling Technician Requirements

WAC 365-230-380 describes requirements for certification of dust sampling technicians. Lead sampling technicians may conduct clearance after renovation, or clearance after lead abatement provided that a certified risk assessor or lead inspector approves the work of the dust sampling technician per HUD 24 CFR Part 35.1340 (b)(1)(i). A lead sampling technician must complete a one-day lead sampling course taught by an accredited training provider. Sampling technicians must:

• Complete clearance requirements, including collecting and sending dust-wipe samples to a recognized lab.
• Interpret laboratory results and prepare a clearance report for the contractor and owner.
• Be in possession of a valid, unexpired certification card when conducting regulated work.

Renovation Work Practice Requirements

Renovation work practices are described at WAC 365-230-330 . Workers must follow documented methodologies to protect occupants from lead hazards created during renovations, including:

• Posting warning signs, containing work areas, protecting furnishings and cleaning.
• Prohibitions on using certain dangerous work practices, including: open-flame burning or torching, operating a heat gun over 1100º F, using a high speed machine to remove paint without a HEPA-filtered exhaust system, using an improperly operating HEPA vacuum, and dry sweeping in the work area.
• Proper handling and transporting of waste.
• Final visual inspection and post renovation cleaning verification using prescribed protocol.

Renovation Recordkeeping Requirements

Recordkeeping requirements for renovations are described in detail at WAC 365-230-340 . The renovation company must maintain records of its regulated activities for 3 years, including:

• Any paint testing results.
• Copies of signed pamphlet acknowledgements forms or other documentation of delivery.
• Documentation and certification that renovation requirements were followed.
• Individual worker training records.

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

• Department of Commerce
• State of Washington
• Ecology
• Lead
• Renovation
• Renovation work practice standards
• Renovation training
• Renovation certification
• Renovation notification
• Reporting and record keeping requirements