[Code of Federal Regulations]
[Title 40, Volume 30]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR745.324]

[Page 567-571]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 745_LEAD-BASED PAINT POISIONING PREVENTION IN CERTAIN RESIDENTIAL 
STRUCTURES--Table of Contents
 
               Subpart Q_State and Indian Tribal Programs
 
Sec. 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 lead-based 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.

[[Page 568]]

    (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 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 Sec. 745.325, Sec. 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 Sec. 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 Sec. 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

[[Page 569]]

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.
    (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

[[Page 570]]

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 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 Sec. 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

[[Page 571]]

TSCA section 406, or both, as the Federal program for that State or 
Indian Country.