CR Attachment 4: 40 CFR 745, Subpart Q

EPA ICR No. 1715.09; OMB Control No. 2070-0155
ATTACHMENT 4
40 CFR 745, Subpart Q
State and Indian Tribal Programs

§ 745.239

40 CFR Ch. I (7–1–03 Edition)

fees to reflect changed economic conditions.
(2) The fees will be evaluated based
on the cost to administer and enforce
the program, and the number of applicants. New fee schedules will be published in the FEDERAL REGISTER.
(g) Failure to remit a fee. (1) EPA will
not provide certification, re-certification, accreditation, or re-accreditation for any individual, firm, or training program which does not remit fees
described in paragraph (c) of this section in accordance with the procedures
specified in paragraph (d) of this section.
(2) EPA will not replace identification cards or certificates for any individual, firm, or training program which
does not remit fees described in paragraph (c) of this section in accordance
with the procedures specified in paragraph (e) of this section.
[64 FR 31098, June 9, 1999]

§ 745.239

Effective dates.

This subpart L shall apply in any
State or Indian Country that does not
have an authorized program under subpart Q, effective August 31, 1998. In
such States or Indian Country:
(a) Training programs shall not provide, offer or claim to provide training
or refresher training for certification
without accreditation from EPA pursuant to § 745.225 on or after March 1, 1999.
(b) No individual or firm shall perform, offer, or claim to perform leadbased paint activities, as defined in
this subpart, without certification
from EPA to conduct such activities
pursuant to § 745.226 on or after March
1, 2000.
(c) All lead-based paint activities
shall be performed pursuant to the
work practice standards contained in
§ 745.227 on or after March 1, 2000.
[61 FR 45813, Aug. 29, 1996, as amended at 64
FR 42852, Aug. 6, 1999]

Subparts M–P [Reserved]
Subpart Q—State and Indian Tribal
Programs
SOURCE: 61 FR 45825, Aug. 29, 1996, unless
otherwise noted.

§ 745.320

Scope and purpose.

(a) This subpart establishes the requirements that State or Tribal programs must meet for authorization by
the Administrator to administer and
enforce the standards, regulations, or
other requirements established under
TSCA section 402 and/or section 406 and
establishes the procedures EPA will
follow in approving, revising, and withdrawing approval of State or Tribal
programs.
(b) For State or Tribal lead-based
paint training and certification programs, a State or Indian Tribe may
seek authorization to administer and
enforce §§ 745.225, 745.226, and 745.227.
The provisions of §§ 745.220, 745.223,
745.233, 745.235, 745.237, and 745.239 shall
be applicable for the purposes of such
program authorization.
(c) For State or Tribal pre-renovation notification programs, a State or
Indian Tribe may seek authorization to
administer and enforce regulations developed pursuant to TSCA section 406.
(d) A State or Indian Tribe applying
for program authorization may seek either interim approval or final approval
of the compliance and enforcement
portion of the State or Tribal leadbased paint program pursuant to the
procedures at § 745.327(a).
(e) State or Tribal submissions for
program authorization shall comply
with the procedures set out in this subpart.
(f) Any State or Tribal program approved by the Administrator under this
subpart shall at all times comply with
the requirements of this subpart.
(g) In many cases States will lack authority to regulate activities in Indian
Country. This lack of authority does
not impair a State’s ability to obtain
full program authorization in accordance with this subpart. EPA will administer the program in Indian Country if neither the State nor Indian
Tribe has been granted program authorization by EPA.
§ 745.323

Definitions.

The definitions in subpart A apply to
this subpart. In addition, the definitions in § 745.223 and the following definitions apply:

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Environmental Protection Agency

§ 745.324

Indian Country means (1) all land
within the limits of any American Indian reservation under the jurisdiction
of the U.S. government, notwithstanding the issuance of any patent,
and including rights-of-way running
throughout the reservation; (2) all dependent Indian communities within the
borders of the United States whether
within the original or subsequently acquired territory thereof, and whether
within or outside the limits of a State;
and (3) all Indian allotments, the Indian titles which have not been extinguished, including rights-of-way running through the same.
Indian Tribe means any Indian Tribe,
band, nation, or community recognized
by the Secretary of the Interior and exercising substantial governmental duties and powers.
§ 745.324 Authorization of State or
Tribal programs.
(a) Application content and procedures.
(1) Any State or Indian Tribe that
seeks authorization from EPA to administer and enforce any provisions of
subpart L of this part under section
402(a) of TSCA or the provisions of regulations developed under section 406 of
TSCA shall submit an application to
the Administrator in accordance with
the procedures of this paragraph (a).
(2) Before developing an application
for authorization, a State or Indian
Tribe shall disseminate a public notice
of intent to seek such authorization
and provide an opportunity for a public
hearing.
(3) A State or Tribal application shall
include:
(i) A transmittal letter from the
State Governor or Tribal Chairperson
(or equivalent official) requesting program approval.
(ii) A summary of the State or Tribal
program. This summary will be used to
provide notice to residents of the State
or Tribe.
(iii) A description of the State or
Tribal program in accordance with
paragraph (b) of this section.
(iv) An Attorney General’s or Tribal
Counsel’s (or equivalent) statement in
accordance with paragraph (c) of this
section.
(v) Copies of all applicable State or
Tribal statutes, regulations, standards,

and other materials that provide the
State or Indian Tribe with the authority to administer and enforce a leadbased paint program.
(4) After submitting an application,
the Agency will publish a FEDERAL
REGISTER notice that contains an announcement of the receipt of the State
or Tribal application, the summary of
the program as provided by the State
or Tribe, and a request for public comments to be mailed to the appropriate
EPA Regional Office. This comment
period shall last for no less than 45
days. EPA will consider these comments during its review of the State or
Tribal application.
(5) Within 60 days of submission of a
State or Tribal application, EPA will,
if requested, conduct a public hearing
in each State or Indian Country seeking program authorization and will
consider all comments submitted at
that hearing during the review of the
State or Tribal application.
(b) Program description. A State or Indian Tribe seeking to administer and
enforce a program under this subpart
must submit a description of the program. The description of the State or
Tribal program must include:
(1)(i) The name of the State or Tribal
agency that is or will be responsible for
administering and enforcing the program, the name of the official in that
agency designated as the point of contact with EPA, and addresses and
phone numbers where this official can
be contacted.
(ii) Where more than one agency is or
will be responsible for administering
and enforcing the program, the State
or Indian Tribe must designate a primary agency to oversee and coordinate
administration and enforcement of the
program and serve as the primary contact with EPA.
(iii) In the event that more than one
agency is or will be responsible for administering and enforcing the program,
the application must also include a description of the functions to be performed by each agency. The desciption
shall explain and how the program will
be coordinated by the primary agency
to ensure consistency and effective administration of the lead-based paint

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§ 745.324

40 CFR Ch. I (7–1–03 Edition)

training accreditation and certification program within the State or Indian Tribe.
(2) To demonstrate that the State or
Tribal program is at least as protective
as the Federal program, fulfilling the
criteria in paragraph (e)(2)(i) of this
section, the State or Tribal application
must include:
(i) A description of the program that
demonstrates that the program contains all of the elements specified in
§ 745.325, § 745.326, or both; and
(ii) An analysis of the State or Tribal
program that compares the program to
the Federal program in subpart L of
this part, regulations developed pursuant to TSCA section 406, or both. This
analysis shall demonstrate how the
program is, in the State’s or Indian
Tribe’s assessment, at least as protective as the elements in the Federal program at subpart L of this part, regulations developed pursuant to TSCA section 406, or both. EPA will use this
analysis to evaluate the protectiveness
of the State or Tribal program in making its determination pursuant to paragraph (e)(2)(i) of this section.
(3) To demonstrate that the State or
Tribal program provides adequate enforcement, fulfilling the criteria in
paragraph (e)(2)(ii) of this section, the
State or Tribal application must include a description of the State or
Tribal lead-based paint compliance and
enforcement
program
that
demonstrates that the program contains
all of the elements specified at § 745.327.
This description shall include copies of
all policies, certifications, plans, reports, and other materials that demonstrate that the State or Tribal program contains all of the elements specified at § 745.327.
(4)(i) The program description for an
Indian Tribe shall also include a map,
legal description, or other information
sufficient to identify the geographical
extent of the territory over which the
Indian Tribe exercises jurisdiction.
(ii) The program description for an
Indian Tribe shall also include a demonstration that the Indian Tribe:
(A) Is recognized by the Secretary of
the Interior.
(B) has an existing government exercising substantial governmental duties
and powers.

(C) has adequate civil regulatory jurisdiction (as shown in the Tribal legal
certification in paragraph (c)(2) of this
section) over the subject matter and
entities regulated.
(D) is reasonably expected to be capable of administering the Federal program for which it is seeking authorization.
(iii) If the Administrator has previously determined that an Indian
Tribe has met the prerequisites in
paragraphs (b)(4)(ii)(A) and (B) of this
section for another EPA program, the
Indian Tribe need provide only that information unique to the lead-based
paint program required by paragraphs
(b)(4)(ii)(C) and (D) of this section.
(c) Attorney General’s statement. (1) A
State or Indian Tribe must submit a
written statement signed by the Attorney General or Tribal Counsel (or
equivalent) certifying that the laws
and regulations of the State or Indian
Tribe provide adequate legal authority
to administer and enforce the State or
Tribal program. This statement shall
include citations to the specific statutes and regulations providing that
legal authority.
(2) The Tribal legal certification (the
equivalent to the Attorney General’s
statement) may also be submitted and
signed by an independent attorney retained by the Indian Tribe for representation in matters before EPA or the
courts pertaining to the Indian Tribe’s
program. The certification shall include an assertion that the attorney
has the authority to represent the Indian Tribe with respect to the Indian
Tribe’s authorization application.
(3) If a State application seeks approval of its program to operate in Indian Country, the required legal certification shall include an analysis of
the applicant’s authority to implement
its provisions in Indian Country. The
applicant shall include a map delineating the area over which it seeks to
operate the program.
(d) Program certification. (1) At the
time of submitting an application, a
State may also certify to the Administrator that the State program meets
the requirements contained in paragraphs (e)(2)(i) and (e)(2)(ii) of this section.

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§ 745.324

(2) If this certification is contained
in a State’s application, the program
shall be deemed to be authorized by
EPA until such time as the Administrator disapproves the program application or withdraws the program authorization. A program shall not be
deemed authorized pursuant to this
subpart to the extent that jurisdiction
is asserted over Indian Country, including non-member fee lands within an Indian reservation.
(3) If the application does not contain
such certification, the State program
will be authorized only after the Administrator authorizes the program in
accordance with paragraph (e) of this
section.
(4) This certification shall take the
form of a letter from the Governor or
the Attorney General to the Administrator. The certification shall reference the program analysis in paragraph (b)(3) of this section as the basis
for concluding that the State program
is at least as protective as the Federal
program, and provides adequate enforcement.
(e) EPA approval. (1) EPA will fully
review and consider all portions of a
State or Tribal application.
(2) Within 180 days of receipt of a
complete State or Tribal application,
the Administrator shall either authorize the program or disapprove the application. The Administrator shall authorize the program, after notice and
the opportunity for public comment
and a public hearing, only if the Administrator finds that:
(i)(A) In the case of an application to
authorize the State or Indian Tribe to
administer and enforce the provisions
of subpart L of this part, the State or
Tribal program is at least as protective
of human health and the environment
as the corresponding Federal program
under subpart L of this part; and/or
(B) In the case of an application to
authorize the State or Indian Tribe to
administer and enforce the regulations
developed pursuant to TSCA section
406, the State or Tribal program is at
least as protective of human health
and the environment as the Federal
regulations developed pursuant to
TSCA section 406.
(ii) The State or Tribal program provides adequate enforcement.

(3) EPA shall notify in writing the
State or Indian Tribe of the Administrator’s decision to authorize the State
or Tribal program or disapprove the
State’s or Indian Tribe’s application.
(4) If the State or Indian Tribe applies for authorization of State or Tribal programs under both subpart L and
regulations developed pursuant to
TSCA section 406, EPA may, as appropriate, authorize one program and disapprove the other.
(f) EPA administration and enforcement. (1) If a State or Indian Tribe does
not have an authorized program to administer and enforce subpart L of this
part in effect by August 31, 1998, the
Administrator shall, by such date, establish and enforce the provisions of
subpart L of this part as the Federal
program for that State or Indian Country.
(2) If a State or Indian Tribe does not
have an authorized program to administer and enforce regulations developed
pursuant to TSCA section 406 in effect
by August 31, 1998, the Administrator
shall, by such date, establish and enforce the provisions of regulations developed pursuant to TSCA section 406
as the Federal program for that State
or Indian Country.
(3) Upon authorization of a State or
Tribal program, pursuant to paragraph
(d) or (e) of this section, it shall be an
unlawful act under sections 15 and 409
of TSCA for any person to fail or refuse
to comply with any requirements of
such program.
(g) Oversight. EPA shall periodically
evaluate the adequacy of a State’s or
Indian Tribe’s implementation and enforcement of its authorized programs.
(h) Reports. Beginning 12 months
after the date of program authorization, the primary agency for each
State or Indian Tribe that has an authorized program shall submit a written report to the EPA Regional Administrator for the Region in which the
State or Indian Tribe is located. This
report shall be submitted at least once
every 12 months for the first 3 years
after program authorization. If these
reports demonstrate successful program implementation, the Agency will
automatically extend the reporting interval to every 2 years. If the subsequent reports demonstrate problems

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§ 745.325

40 CFR Ch. I (7–1–03 Edition)

with implementation, EPA will require
a return to annual reporting until the
reports demonstrate successful program implementation, at which time
the Agency will extend the reporting
interval to every 2 years.
The report shall include the following information:
(1) Any significant changes in the
content or administration of the State
or Tribal program implemented since
the previous reporting period; and
(2) All information regarding the
lead-based paint enforcement and compliance activities listed at § 745.327(d)
‘‘Summary on Progress and Performance.’’
(i) Withdrawal of authorization. (1) If
EPA concludes that a State or Indian
Tribe is not administering and enforcing an authorized program in compliance with the standards, regulations,
and other requirements of sections 401
through 412 of TSCA and this subpart,
the Administrator shall notify the primary agency for the State or Indian
Tribe in writing and indicate EPA’s intent to withdraw authorization of the
program.
(2) The Notice of Intent to Withdraw
shall:
(i) Identify the program aspects that
EPA believes are inadequate and provide a factual basis for such findings.
(ii) Include copies of relevant documents.
(iii) Provide an opportunity for the
State or Indian Tribe to respond either
in writing or at a meeting with appropriate EPA officials.
(3) EPA may request that an informal conference be held between representatives of the State or Indian
Tribe and EPA officials.
(4) Prior to issuance of a withdrawal,
a State or Indian Tribe may request
that EPA hold a public hearing. At this
hearing, EPA, the State or Indian
Tribe, and the public may present facts
bearing on whether the State’s or Indian Tribe’s authorization should be
withdrawn.
(5) If EPA finds that deficiencies warranting withdrawal did not exist or
were corrected by the State or Indian
Tribe, EPA may rescind its Notice of
Intent to Withdraw authorization.
(6) Where EPA finds that deficiencies
in the State or Tribal program exist

that warrant withdrawal, an agreement to correct the deficiencies shall
be jointly prepared by the State or Indian Tribe and EPA. The agreement
shall describe the deficiencies found in
the program, specify the steps the
State or Indian Tribe has taken or will
take to remedy the deficiencies, and
establish a schedule, no longer than 180
days, for each remedial action to be
initiated.
(7) If the State or Indian Tribe does
not respond within 60 days of issuance
of the Notice of Intent to Withdraw or
an agreement is not reached within 180
days after EPA determines that a
State or Indian Tribe is not in compliance with the Federal program, the
Agency shall issue an order withdrawing the State’s or Indian Tribe’s
authorization.
(8) By the date of such order, the Administrator shall establish and enforce
the provisions of subpart L of this part
or regulations developed pursuant to
TSCA section 406, or both, as the Federal program for that State or Indian
Country.
§ 745.325 Lead-based paint activities:
State and Tribal program requirements.
(a) Program elements. To receive authorization from EPA, a State or Tribal program must contain at least the
following program elements for leadbased paint activities:
(1) Procedures and requirements for
the accreditation of lead-based paint
activities training programs.
(2) Procedures and requirements for
the certification of individuals engaged
in lead-based paint activities.
(3) Work practice standards for the
conduct of lead-based paint activities.
(4) Requirements that all lead-based
paint activities be conducted by appropriately certified contractors.
(5) Development of the appropriate
infrastructure or government capacity
to effectively carry out a State or Tribal program.
(b) Accreditation of training programs.
The State or Indian Tribe must have
either:
(1) Procedures and requirements for
the accreditation of training programs
that establish:

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Environmental Protection Agency

§ 745.325

(i) Requirements for the accreditation of training programs, including
but not limited to:
(A) Training curriculum requirements.
(B) Training hour requirements.
(C) Hands-on training requirements.
(D) Trainee competency and proficiency requirements.
(E) Requirements for training program quality control.
(ii) Procedures for the re-accreditation of training programs.
(iii) Procedures for the oversight of
training programs.
(iv) Procedures for the suspension,
revocation, or modification of training
program accreditations; or
(2) Procedures or regulations, for the
purposes of certification, for the acceptance of training offered by an accredited training provider in a State or
Tribe authorized by EPA.
(c) Certification of individuals. The
State or Indian Tribe must have requirements for the certification of individuals that:
(1) Ensure that certified individuals:
(i) Are trained by an accredited
training program; and
(ii) Possess appropriate education or
experience qualifications for certification.
(2) Establish procedures for re-certification.
(3) Require the conduct of lead-based
paint activities in accordance with
work practice standards established by
the State or Indian Tribe.
(4) Establish procedures for the suspension, revocation, or modification of
certifications.
(5) Establish requirements and procedures for the administration of a thirdparty certification exam.
(d) Work practice standards for the conduct of lead-based paint activities. The
State or Indian Tribe must have requirements or standards that ensure
that lead-based paint activities are
conducted reliably, effectively, and
safely. At a minimum the State’s or Indian Tribe’s work practice standards
for conducting inspections, risk assessments, and abatements must contain
the requirements specified in paragraphs (d)(1), (d)(2), and (d)(3) of this
section.

(1) The work practice standards for
the inspection for the presence of leadbased paint must require that:
(i) Inspections are conducted only by
individuals certified by the appropriate
State or Tribal authority to conduct
inspections.
(ii) Inspections are conducted in a
way that identifies the presence of
lead-based paint on painted surfaces
within the interior or on the exterior
of a residential dwelling or child-occupied facility.
(iii) Inspections are conducted in a
way that uses documented methodologies that incorporate adequate quality
control procedures.
(iv) A report is developed that clearly
documents the results of the inspection.
(v) Records are retained by the certified inspector or the firm.
(2) The work practice standards for
risk assessment must require that:
(i) Risk assessments are conducted
only by individuals certified by the appropriate State or Tribal authority to
conduct risk assessments.
(ii) Risk assessments are conducted
in a way that identifies and reports the
presence of lead-based paint hazards.
(iii) Risk assessments consist of, at
least:
(A) An assessment, including a visual
inspection, of the physical characteristics of the residential dwelling or
child-occupied facility;
(B) Environmental sampling for lead
in paint, dust, and soil;
(C) Environmental sampling requirements for lead in paint, dust, and soil
that allow for comparison to the standards for lead-based paint hazards established or revised by the State or Indian
Tribe pursuant to paragraph (e) of this
section; and
(D) A determination of the presence
of lead-based paint hazards made by
comparing the results of visual inspection and environmental sampling to
the standards for lead-based paint hazards established or revised by the State
or Indian Tribe pursuant to paragraph
(e) of this section.
(iv) The program elements required
in
paragraph
(d)(2)(iii)(C)
and
(d)(2)(iii)(D) of this section shall be

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§ 745.326

40 CFR Ch. I (7–1–03 Edition)

adopted in accordance with the schedule for the demonstration required in
paragraph (e) of this section.
(v) The risk assessor develops a report that clearly presents the results of
the assessment and recommendations
for the control or elimination of all
identified hazards.
(vi) The certified risk assessor or the
firm retains the appropriate records.
(3) The work practice standards for
abatement must require that:
(i) Abatements are conducted only by
individuals certified by the appropriate
State or Tribal authority to conduct or
supervise abatements.
(ii) Abatements permanently eliminate lead-based paint hazards and are
conducted in a way that does not increase the hazards of lead-based paint
to the occupants of the dwelling or
child-occupied facility.
(iii) Abatements include post-abatement lead in dust clearance sampling
and conformance with clearance levels
established or adopted by the State or
Indian Tribe.
(iv) The abatement contractor develops a report that describes areas of the
residential dwelling or child-occupied
facility abated and the techniques employed.
(v) The certified abatement contractor or the firm retains appropriate
records.
(e) The State or Indian Tribe must
demonstrate that it has standards for
identifying lead-based paint hazards
and clearance standards for dust, that
are at least as protective as the standards in § 745.227 as amended on February 5, 2001. A State or Indian Tribe
with such a section 402 program approved before February 5, 2003 shall
make this demonstration no later than
the first report submitted pursuant to
§ 745.324(h) on or after February 5, 2003.
A State or Indian Tribe with such a
program submitted but not approved
before February 5, 2003 may make this
demonstration by amending its application or in its first report submitted
pursuant to § 745.324(h). A State or Indian Tribe submitting its program on
or after February 5, 2003 shall make
this demonstration in its application.
[61 FR 45825, Aug. 29, 1996, as amended at 66
FR 1240, Jan. 5, 2001]

§ 745.326 Pre-renovation notification:
State and Tribal program requirements.
(a) Program elements. To receive authorization from EPA, a State or Tribal program must contain the following
program elements for renovation disclosure:
(1) Procedures and requirements for
the distribution of lead hazard information to owners and occupants of target housing before renovations for
compensation; and
(2) An approved lead hazard information pamphlet meeting the requirements of section 406 of TSCA, as determined by EPA. EPA will provide States
or Tribes with guidance on what is necessary for a State or Tribal pamphlet
approval application.
(b) Program to distribute lead information. To be considered at least as protective as the Federal requirements for
pre-renovation distribution of information, the State or Indian Tribe must
have procedures and requirements that
establish:
(1) Clear standards for identifying
home improvement activities that trigger the pamphlet distribution requirements; and
(2) Procedures for distributing the
lead hazard information to owners and
occupants of the housing prior to renovation activities.
(c) Distribution of acceptable lead hazard information. To be considered at
least as protective as the Federal requirements for the distribution of a
lead hazard information pamphlet, the
State or Indian Tribe must either:
(1) Distribute the lead hazard information pamphlet developed by EPA
under section 406(a) of TSCA, titled
Protect Your Family from Lead in Your
Home; or
(2) Distribute an alternate pamphlet
or package of lead hazard information
that has been submitted by the State
or Tribe, reviewed by EPA, and approved by EPA for use in that State or
Tribe. Such information must meet the
content requirements prescribed by
section 406(a) of TSCA, and be in a format that is readable to the diverse audience of housing owners and occupants in that State or Tribe.

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§ 745.327

§ 745.327 State or Indian Tribal leadbased paint compliance and enforcement programs.
(a) Approval of compliance and enforcement programs. A State or Indian Tribe
seeking authorization of a lead-based
paint program can apply for and receive either interim or final approval
of the compliance and enforcement
program portion of its lead-based paint
program. Indian Tribes are not required to exercise criminal enforcement jurisdiction as a condition for
program authorization.
(1) Interim approval. Interim approval
of the compliance and enforcement
program portion of the State or Tribal
lead-based paint program may be
granted by EPA only once, and subject
to a specific expiration date.
(i) To be considered adequate for purposes of obtaining interim approval for
the compliance and enforcement program portion of a State or Tribal leadbased paint program, a State or Indian
Tribe must, in its application described
at § 745.324(a):
(A) Demonstrate it has the legal authority and ability to immediately implement the elements in paragraph (b)
of this section. This demonstration
shall include a statement that the
State or Indian Tribe, during the interim approval period, shall carry out a
level of compliance monitoring and enforcement necessary to ensure that the
State or Indian Tribe addresses any
significant risks posed by noncompliance with lead-based paint activity requirements.
(B) Present a plan with time frames
identified for implementing in the field
each element in paragraph (c) of this
section. All elements of paragraph (c)
of this section must be fully implemented no later than 3 years from the
date of EPA’s interim approval of the
compliance and enforcement program
portion of a State or Tribal lead-based
paint program. A statement of resources must be included in the State
or Tribal plan which identifies what resources the State or Indian Tribe intends to devote to the administration
of its lead-based paint compliance and
enforcement program.
(C) Agree to submit to EPA the Summary on Progress and Performance of
lead-based paint compliance and en-

forcement activities as described at
paragraph (d) of this section.
(ii) Any interim approval granted by
EPA for the compliance and enforcement program portion of a State or
Tribal lead-based paint program will
expire no later than 3 years from the
date of EPA’s interim approval. One
hundred and eighty days prior to this
expiration date, a State or Indian Tribe
shall apply to EPA for final approval of
the compliance and enforcement program portion of a State or Tribal leadbased paint program. Final approval
shall be given to any State or Indian
Tribe which has in place all of the elements of paragraphs (b), (c), and (d) of
this section. If a State or Indian Tribe
does not receive final approval for the
compliance and enforcement program
portion of a State or Tribal lead-based
paint program by the date 3 years after
the date of EPA’s interim approval, the
Administrator shall, by such date, initiate the process to withdraw the State
or Indian Tribe’s authorization pursuant to § 745.324(i).
(2) Final approval. Final approval of
the compliance and enforcement program portion of a State or Tribal leadbased paint program can be granted by
EPA either through the application
process described at § 745.324(a), or, for
States or Indian Tribes which previously received interim approval as
described in paragraph (a)(1) of this
section, through a separate application
addressing only the compliance and enforcement program portion of a State
or Tribal lead-based paint program.
(i) For the compliance and enforcement program to be considered adequate for final approval through the
application described at § 745.324(a), a
State or Indian Tribe must, in its application:
(A) Demonstrate it has the legal authority and ability to immediately implement the elements in paragraphs (b)
and (c) of this section.
(B) Submit a statement of resources
which identifies what resources the
State or Indian Tribe intends to devote
to the administration of its lead-based
paint compliance and enforcement program.
(C) Agree to submit to EPA the Summary on Progress and Performance of

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§ 745.327

40 CFR Ch. I (7–1–03 Edition)

lead-based paint compliance and enforcement activities as described at
paragraph (d) of this section.
(ii) For States or Indian Tribes which
previously received interim approval as
described in paragraph (a)(1) of this
section, in order for the State or Tribal
compliance and enforcement program
to be considered adequate for final approval through a separate application
addressing only the compliance and enforcement program portion of a State
or Tribal lead-based paint program, a
State or Indian Tribe must, in its application:
(A) Demonstrate that it has the legal
authority and ability to immediately
implement the elements in paragraphs
(b) and (c) of this section.
(B) Submit a statement which identifies the resources the State or Indian
Tribe intends to devote to the administration of its lead-based paint compliance and enforcement program.
(C) Agree to submit to EPA the Summary on Progress and Performance of
lead-based paint compliance and enforcement activities as described at
paragraph (d) of this section.
(D) To the extent not previously submitted through the application described at § 745.324(a), submit copies of
all applicable State or Tribal statutes,
regulations, standards, and other material that provide the State or Indian
Tribe with authority to administer and
enforce the lead-based paint compliance and enforcement program, and
copies of the policies, certifications,
plans, reports, and any other documents that demonstrate that the program meets the requirements established in paragraphs (b) and (c) of this
section.
(b) Standards, regulations, and authority. The standards, regulations, and authority described in paragraphs (b)(1)
through (b)(4) of this section are part
of the required elements for the compliance and enforcement portion of a
State or Tribal lead-based paint program.
(1) Lead-based paint activities and requirements. State or Tribal lead-based
paint compliance and enforcement programs will be considered adequate if
the State or Indian Tribe demonstrates,
in
its
application
at
§ 745.324(a), that it has established a

lead-based paint program containing
the following requirements:
(i) Accreditation of training programs as described at § 745.325(b).
(ii) Certification of individuals engaged in lead-based paint activities as
described at § 745.325(c).
(iii) Standards for the conduct of
lead-based paint activities as described
at § 745.325(d); and, as appropriate,
(iv) Requirements that regulate the
conduct of pre-renovation notification
activities as described at § 745.326.
(2) Authority to enter. State or Tribal
officials must be able to enter, through
consent, warrant, or other authority,
premises or facilities where lead-based
paint activities violations may occur
for purposes of conducting inspections.
(i) State or Tribal officials must be
able to enter premises or facilities
where those engaged in training for
lead-based paint activities conduct
business.
(ii) For the purposes of enforcing a
pre-renovation notification program,
State or Tribal officials must be able
to enter a renovator’s place of business.
(iii) State or Tribal officials must
have authority to take samples and review records as part of the lead-based
paint activities inspection process.
(3) Flexible remedies. A State or Tribal
lead-based paint compliance and enforcement program must provide for a
diverse and flexible array of enforcement remedies. At a minimum, the
remedies that must be reflected in an
enforcement response policy must include the following:
(i) Warning letters, Notices of Noncompliance, Notices of Violation, or
the equivalent;
(ii) Administrative or civil actions,
including penalty authority (e.g., accreditation or certification suspension,
revocation, or modification); and
(iii) Authority to apply criminal
sanctions or other criminal authority
using existing State or Tribal laws, as
applicable.
(4) Adequate resources. An application
must include a statement that identifies the resources that will be devoted
by the State or Indian Tribe to the administration of the State or Tribal
lead-based paint compliance and enforcement program. This statement

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Environmental Protection Agency

§ 745.327

must address fiscal and personnel resources that will be devoted to the program.
(c) Performance elements. The performance elements described in paragraphs
(c)(1) through (c)(7) of this section are
part of the required elements for the
compliance and enforcement program
portion of a State or Tribal lead-based
paint program.
(1) Training. A State or Tribal leadbased paint compliance and enforcement program must implement a process for training enforcement and inspection personnel and ensure that enforcement personnel and inspectors are
well trained. Enforcement personnel
must understand case development procedures and the maintenance of proper
case files. Inspectors must successfully
demonstrate knowledge of the requirements of the particular discipline (e.g.,
abatement supervisor, and/or abatement worker, and/or lead-based paint
inspector, and/or risk assessor, and/or
project designer) for which they have
compliance monitoring and enforcement responsibilities. Inspectors must
also be trained in violation discovery,
methods of obtaining consent, evidence
gathering, preservation of evidence and
chain-of-custody, and sampling procedures. A State or Tribal lead-based
paint compliance and enforcement program must also implement a process
for the continuing education of enforcement and inspection personnel.
(2) Compliance assistance. A State or
Tribal lead-based paint compliance and
enforcement program must provide
compliance assistance to the public
and the regulated community to facilitate awareness and understanding of
and compliance with State or Tribal
requirements governing the conduct of
lead-based paint activities. The type
and nature of this assistance can be defined by the State or Indian Tribe to
achieve this goal.
(3) Sampling techniques. A State or
Tribal lead-based paint compliance and
enforcement program must have the
technological capability to ensure
compliance with the lead-based paint
program requirements. A State or
Tribal application for approval of a
lead-based paint program must show
that the State or Indian Tribe is technologically capable of conducting a

lead-based paint compliance and enforcement program. The State or Tribal program must have access to the facilities and equipment necessary to
perform sampling and laboratory analysis as needed. This laboratory facility
must be a recognized laboratory as defined at § 745.223, or the State or Tribal
program must implement a quality assurance program that ensures appropriate quality of laboratory personnel
and protects the integrity of analytical
data.
(4) Tracking tips and complaints. A
State or Tribal lead-based paint compliance and enforcement program must
demonstrate the ability to process and
react to tips and complaints or other
information indicating a violation.
(5) Targeting inspections. A State or
Tribal lead-based paint compliance and
enforcement
program
must
demonstrate the ability to target inspections to ensure compliance with the
lead-based paint program requirements. Such targeting must include a
method for obtaining and using notifications of commencement of abatement activities.
(6) Follow up to inspection reports. A
State or Tribal lead-based paint compliance and enforcement program must
demonstrate the ability to reasonably,
and in a timely manner, process and
follow-up on inspection reports and
other information generated through
enforcement-related activities associated with a lead-based paint program.
The State or Tribal program must be
in a position to ensure correction of
violations and, as appropriate, effectively develop and issue enforcement
remedies/responses to follow up on the
identification of violations.
(7) Compliance monitoring and enforcement. A State or Tribal lead-based
paint compliance and enforcement program must demonstrate, in its application for approval, that it is in a position to implement a compliance monitoring and enforcement program. Such
a compliance monitoring and enforcement program must ensure correction
of violations, and encompass either
planned and/or responsive lead-based
paint compliance inspections and development/issuance of State or Tribal
enforcement responses which are appropriate to the violations.

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§ 745.339

40 CFR Ch. I (7–1–03 Edition)

(d) Summary on Progress and Performance. The Summary on Progress and
Performance described below is part of
the required elements for the compliance and enforcement program portion
of a State or Tribal lead-based paint
program. A State or Tribal lead-based
paint compliance and enforcement program must submit to the appropriate
EPA Regional Administrator a report
which summarizes the results of implementing the State or Tribal lead-based
paint compliance and enforcement program, including a summary of the
scope of the regulated community
within the State or Indian Tribe (which
would include the number of individuals and firms certified in lead-based
paint activities and the number of
training programs accredited), the inspections conducted, enforcement actions taken, compliance assistance provided, and the level of resources committed by the State or Indian Tribe to
these activities. The report shall be
submitted according to the requirements at § 745.324(h).
(e) Memorandum of Agreement. An Indian Tribe that obtains program approval must establish a Memorandum
of Agreement with the Regional Administrator. The Memorandum of
Agreement shall be executed by the Indian Tribe’s counterpart to the State
Director (e.g., the Director of Tribal
Environmental Office, Program or
Agency). The Memorandum of Agreement must include provisions for the
timely and appropriate referral to the
Regional Administrator for those
criminal enforcement matters where
that Indian Tribe does not have the authority (e.g., those addressing criminal
violations by non-Indians or violations
meriting penalties over $5,000). The
Agreement must also identify any enforcement agreements that may exist
between the Indian Tribe and any
State.
§ 745.339 Effective dates.
States and Indian Tribes may seek
authorization to administer and enforce subpart L pursuant to this subpart effective October 28, 1996.

PART 747—METALWORKING FLUIDS
Subpart A [Reserved]

Subpart B—Specific Use Requirements for
Certain Chemical Substances
Sec.
747.115 Mixed mono and diamides of an organic acid.
747.195 Triethanolamine salt of a substituted organic acid.
747.200 Triethanolamine salt of tricarboxylic acid.
AUTHORITY: 15 U.S.C. 2604 and 2605.

Subpart A [Reserved]
Subpart B—Specific Use Requirements for Certain Chemical
Substances
§ 747.115 Mixed mono and diamides of
an organic acid.
This section identifies activities with
respect to a chemical substance which
are prohibited and requires that warnings and instructions accompany the
substance when distributed in commerce.
(a) Chemical substance subject to this
section. The following chemical substance,
referred
to
by
its
premanufacture notice number and generic chemical name, is subject to this
section: P–84–529, mixed mono and
diamides of an organic acid.
(b) Definitions. Definitions in section
3 of the Act, 15 U.S.C. 2602, apply to
this section unless otherwise specified
in this paragraph. In addition, the following definitions apply:
(1) The terms Act, article, chemical
substance, commerce, importer, impurity,
Inventory, manufacturer, person, process,
processor, and small quantities solely for
research and development have the same
meaning as in § 720.3 of this chapter.
(2) Metalworking fluid means a liquid
of any viscosity or color containing intentionally added water used in metal
machining operations for the purpose
of cooling, lubricating, or rust inhibition.
(3) Nitrosating agent means any substance that has the potential to transfer a nitrosyl group (–NO) to a primary,
secondary, or tertiary amine to form
the corresponding nitrosamine.
(4) Process or distribute in commerce
solely for export means to process or distribute in commerce solely for export

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