Toxic and hazardous substances control: Asbestos-containing materials in schools; State waiver requests— Illinois,

[Federal Register: June 14, 2005 (Volume 70, Number 113)]

[Notices]

[Page 34474-34477]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr14jn05-66]

ENVIRONMENTAL PROTECTION AGENCY

[OPPT-2004-0096; FRL-7718-1]

Asbestos-Containing Materials in Schools; State Request for Waiver from Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

SUMMARY: EPA has received from Illinois a request for a waiver from the Agency's asbestos-in-schools program. A waiver of these requirements will be granted if EPA determines, after notice and comment and opportunity for a public hearing, that Illinois is implementing or intends to implement a program of asbestos inspection and management at least as stringent as EPA's program. This notice announces an opportunity for a public hearing on the Illinois waiver request and solicits written comments.

DATES: Written comments under docket ID number OPPT-2004-0096, must be received on or before August 15, 2005. Each comment must include the name and address of the submitter. Any request for a public hearing must be in writing, be received on or before August 15, 2005, and detail specific objections to the grant of the waiver. If, during the comment period, EPA receives such a request for a public hearing, EPA will schedule a public hearing in Illinois following the comment period. EPA will announce the date of the public hearing in the Federal Register.

ADDRESSES: Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby Linter, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460- 0001; telephone number: (202) 554-1404; e-mail address: TSCA-Hotline@epa.gov.

For technical information contact: Philip King, Asbestos Coordinator, (DT-8J), Region V, Environmental Protection Agency, 77 W. Jackson Blvd., Chicago, IL 60604; telephone number: (312) 353-9062; e- mail address: king.phillip@epa.gov.

SUPPLEMENTARY INFORMATION:

1. General Information

   1. Does this Action Apply to Me?

      This action is directed to the public in general. This action may, however, be of special interest to teachers and other school personnel, their representatives, and parents in Illinois, and asbestos professionals working in Illinois. Since other entities may also be interested, the Agency has not attempted to describe all entities that may be affected by this action. If you have any questions regarding the applicability of this action to any entity, contact the technical person listed under FOR FURTHER INFORMATION CONTACT.

   2. How Can I Get Copies of this Document and Other Related Information?

      1. Docket. EPA has established an official public docket for this action under docket identification (ID) number OPPT-2004-0096. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the EPA Docket Center, Rm. B102-Reading Room, EPA West, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The EPA Docket Center Reading Room telephone number is (202) 566-1744 and the telephone number for the OPPT Docket, which is located in the EPA Docket Center, is (202) 566-0280.

      2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr/.

      An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public

      comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select ``search,'' then key in the appropriate docket ID number.

      Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the

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      system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.

      For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

      Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

   3. How and to Whom Do I Submit Comments?

      You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked ``late.'' EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.

      1. Electronically. If you submit an electronic comment as prescribed in this unit, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. 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.

         i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket/ , and follow the online instructions for submitting comments.

         Once in the system, select ``search,'' and then key in docket ID number OPPT-2004-0096. The system is an ``anonymous access'' system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

         ii. E-mail. Comments may be sent by e-mail to oppt.ncic@epa.gov, Attention: Docket ID Number OPPT-2004-0096. In contrast to EPA's electronic public docket, EPA's e-mail system is not an ``anonymous access'' system. If you send an e-mail comment directly to the docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

         iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Unit I.C.2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

      2. By mail. Send your comments to: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460- 0001.

      3. By hand delivery or courier. Deliver your comments to: OPPT Document Control Office (DCO) in EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number OPPT-2004-0096. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930.

   4. How Should I Submit CBI to the Agency?

      Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

      In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

2. Background

   1. What Action is the Agency Taking?

      EPA is considering granting, with conditions, a waiver of the asbestos-in-schools program to Illinois. This notice is issued, and the waiver, if granted, would be issued under section 203(m) of TSCA and 40 CFR 763.98. Section 203 is within Title II of TSCA, the Asbestos Hazard Emergency Response Act (AHERA).

      The Agency recognizes that a waiver granted to any State would not encompass schools operated under the defense dependents' education system (the third type of local education agency (LEA) defined at TSCA section 202(7) and 40 CFR 763.83), which serve dependents in overseas areas, and other elementary and secondary schools outside a State's jurisdiction, which

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      generally include schools in Indian country. Such schools would remain subject to EPA's asbestos-in-schools program.

   2. What is the Agency's Authority for Taking this Action?

      In 1987, under TSCA section 203, the Agency promulgated regulations that require the identification and management of asbestos-containing material by LEAs in the nation's elementary and secondary school buildings: the ``AHERA Schools Rule'' (40 CFR part 763, subpart E). Under section 203(m) of TSCA and 40 CFR 763.98, upon request by a State Governor and after notice and comment and opportunity for a public hearing in the State, EPA may waive, in whole or in part, the requirements of the asbestos-in-schools program (TSCA section 203 and the AHERA schools rule) if EPA determines that the State has established and is implementing or intends to implement a program of asbestos inspection and management that contains requirements that are at least as stringent as those in the Agency's asbestos-in-schools program. A State seeking a waiver must submit its request to the EPA Region in which the State is located.

   3. When Did Illinois Submit its Request for a Waiver and How is EPA Proposing to Respond?

      On December 20, 2004, Illinois Governor Rod Blagojevich, submitted to Bharat Mathur, Acting Regional Administrator, EPA Region V, a letter requesting a full waiver of the requirements of EPA's asbestos-in- schools program. After reviewing this initial submittal, EPA Region V did request further information from Illinois by letter dated January 20, 2005. Illinois then responded by submitting the additional requested information on February 25, 2005. This supplemental information was subsequently received by EPA Region V on March 3, 2005, and then further discussed and clarified during two conference calls held with Illinois Department of Public Health (IDPH) staff on March 15 and April 8, 2005.

      EPA is hereby issuing a notice in the Federal Register announcing receipt of the complete Illinois waiver request and an opportunity for comment and public hearing, and making the request and the supporting documentation available in the public record for this notice. The Agency is also describing the information submitted by Illinois and the Agency's preliminary determinations as to how the waiver request meets the criteria for the grant of a waiver.

   4. What was EPA's Determination with Regard to the Completeness of Illinois' Waiver Request?

      The Illinois waiver request has been deemed complete by EPA and contains the following:

      1. A copy of the Illinois provisions that include its program of asbestos inspection and management in schools. These consist of: The Illinois Asbestos Abatement Act (105 ILCS), the Illinois Commercial and Public Building Asbestos Abatement Act (225 ILCS), the Department of Public Health Act (20 ILCS 2305), and 77 Illinois Administrative Code, section 855, all of which are administered by the IDPH.

      2. The names of the Illinois agencies responsible for administering and enforcing the requirements of the waiver (including the IDPH, the Illinois Attorney General's Office and the Illinois State's Attorney's Offices), the names and job titles of responsible officials in those agencies, and telephone numbers where these officials can be reached. The responsible officials from the IDPH include Gary Flentge, Chief of the Division of Environmental Health and Kent Cook, Manager of the Asbestos Program (telephone: (217) 785-5830). The responsible official from the Illinois Attorney General's Office is Matthew J. Dunn, Chief, Environmental Enforcement/Asbestos Litigation Division (telephone: (312) 814-2521). The responsible officials from the State's Attorney's Offices include the current State's Attorney's from each of Illinois' Counties.

      3. Detailed reasons, supporting papers, and the rationale for concluding that Illinois' asbestos inspection and management program provisions are at least as stringent as the requirements of the AHERA Schools Rule (40 CFR part 763, subpart E). This information can be found in the December 17, 2004 assurance letter from Anne Murphy, Chief Counsel to IDPH, which forms an integral part of Illinois' waiver application. This letter states that ``Illinois' law is at least as stringent as the federal AHERA regulations in their entirety,'' because ``the AHERA regulations are adopted directly by the Illinois Asbestos Abatement Act (105 ILCS 105),'' and have been incorporated by reference into the IDPH asbestos regulations found at 77 IAC 855.

      4. A discussion of any special situations, problems, and needs pertaining to the waiver request accompanied by an explanation of how Illinois intends to handle them. This information can be found in the supplemental information submitted by Illinois in response to the request from EPA Region V. In it's reply, IDPH has explained and clarified that if any of its regulatory language were ever to be found in conflict with the language of the federal AHERA regulations, that ``. . . IDPH would ensure that the minimum federal regulations found in AHERA were enforced and at the same time ensure that the health of the public is protected.'' This approach ensures that the Illinois Program will remain ``at least as stringent as'' the Federal Program as required by 40 CFR 763.98(a).

      5. A statement of the resources that Illinois intends to devote to the administration and enforcement of the provisions relating to the waiver request. This statement is found in the supplemental submission made by Illinois which addresses the resources currently available to support an on-going program. These resources include both monies appropriated by the Legislature and monies deposited in the Illinois School Asbestos Abatement Fund.

      6. Copies of Illinois laws and regulations relating to the request, including provisions for assessing criminal and/or civil penalties. Copies of Illinois' asbestos statutes and regulations can be found in Attachment A of the State's original application submittal, and also in a subsequent e-mail from Gary Flentge to Philip King, dated April 8, 2005, which forwarded a copy of Illinois' Department of Public Health Act (20 ILCS 2305/8.1).

      7. Assurance from the Governor, the Attorney General, or the legal counsel of the lead agency that the lead agency has the legal authority necessary to carry out the requirements relating to the request. This assurance is found in the letter from Anne Murphy, Chief Counsel for the IDPH, to the Acting EPA Regional Administrator, Bharat Mathur, dated December 17, 2004, which accompanies and forms a part of the original application submission.

   5. What are the Criteria for EPA's Grant of the Waiver?

      EPA may waive some or all of the requirements of the Agency's asbestos-in-schools program if the Agency determines that Illinois has met the criteria set forth at 40 CFR 763.98. The criteria and EPA's preliminary determinations relating to the grant of the waiver to Illinois are set forth below:

      1. Illinois' lead agency and other cooperating agencies have the legal authority necessary to carry out the provisions of asbestos inspection and

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         management in schools relating to the waiver request.

         EPA's Preliminary Determination: EPA has determined preliminarily that the statutory and regulatory provisions of the Illinois Asbestos Abatement Act (105 ILCS), the Illinois Commercial and Public Building Asbestos Abatement Act (225 ILCS), the Department of Public Health Act (20 ILCS 2305), and 77 Illinois Administrative Code, Section 855, give the Illinois Department of Public Health such authority.

      2. Illinois' program of asbestos inspection and management in schools and its implementation of the program are or will be at least as stringent as the requirements of the AHERA Schools Rule.

         EPA's Preliminary Determination: Since Illinois has adopted the AHERA schools rule by reference in its regulations, EPA has determined that Illinois' program is at least as stringent as EPA's program.

      3. Illinois has an enforcement mechanism to allow it to implement the program described in the waiver request.

         EPA's Preliminary Determination: EPA has determined preliminarily that the compliance and enforcement provisions of Illinois' asbestos- in-schools program are adequate to run the program. The Director of the Illinois Department of Public Health is empowered under the Commercial and Public Building Asbestos Abatement Act (225 ILCS 207) to ``. . . maintain an action for prosecution, injunction, or other relief or process against any Building/Facility Owner or any other person or unit of local government to enforce and compel compliance with the provisions of this Act, the rules promulgated under it and any order entered for any action under this Act and its rules. A person who violates this Act is guilty of a Class A misdemeanor punishable by a fine of $1,000 for each day the violation exists in addition to other civil penalties or up to 6 months imprisonment or both a fine and imprisonment.'' The Director also has authority to inspect all activities regulated by the Act, and can issue stop work orders. In addition, under section 8.1 of the Department of Public Health Act (20 ILCS 2305), the Director may also deem ``whoever violates or refuses to obey any rule or regulation of the Department of Public Health to be guilty of a Class A misdemeanor.''

      4. The lead agency and any cooperating agencies have or will have qualified personnel to carry out the provisions relating to the waiver request.

         EPA's Preliminary Determination: EPA has preliminarily determined that the IDPH has qualified personnel to carry out the provisions of the waiver. The existing program staff includes four environmental engineers, one project designer, three full-time support staff, two temporary support staff, and an architect. Oversight is provided by a licensed professional engineer.

      5. Illinois will devote adequate resources to the administration and enforcement of the asbestos inspection and management provisions relating to the waiver request.

         EPA's Preliminary Determination: EPA has determined preliminarily that Illinois has adequate resources to administer and enforce the provisions of the program. The appropriated funding for the Asbestos Program is $933,045 for the current State fiscal year ('05). The State also has a current balance of $612,000 in its Illinois School Asbestos Abatement Fund, and collected $15,229 in fines during the previous fiscal year ('04).

      6. Illinois gives satisfactory assurances that the necessary steps, including specific actions it proposes to take and a time schedule for their accomplishment, will be taken within a reasonable time to conform with criteria numbers 2-4 above.

         EPA's Preliminary Determination: For EPA to grant a full waiver to Illinois, the State, as a condition of the grant of the waiver, would need to give a written assurance satisfactory to EPA that, if following the grant of the waiver, any provision of either TSCA section 203 or the AHERA schools rule is changed, the State would, within a reasonable period of time, make appropriate changes, as necessary, to the statutory and regulatory provisions of its asbestos-in-schools program to ensure that the program remains at least as stringent as the EPA asbestos-in-schools program.

         In addition, if a waiver is granted and as long as it remains in effect, Illinois, utilizing adequate resources, would need to continue its asbestos-in-schools implementation and enforcement strategy. EPA may evaluate periodically the adequacy of Illinois' program under 40 CFR 763.98, and, under circumstances set forth in the regulation, may, in whole or in part, rescind the waiver if the Agency determines the program to be inadequate.

   6. What Recordkeeping and Reporting Burden Approvals Apply to the Illinois Waiver Request?

      The recordkeeping and reporting burden associated with waiver requests was approved by the Office of Management and Budget (OMB) under OMB control number 2070-0091. This document announces the Agency's receipt of the Illinois waiver request and, therefore, imposes no additional burden beyond that covered under existing OMB control number 2070-0091.

3. Materials in the Official Record

   The official record, under docket ID number OPPT-2004-0096, contains the Illinois waiver request, and any other supporting or relevant documents.

   List of Subjects

   Environmental protection, Asbestos, Hazardous substances, Occupational health and safety, Reporting and recordkeeping requirements, Schools.

   Dated: June 2, 2005. Norman Niedergang, Acting Regional Administrator, Region V.

   [FR Doc. 05-11662 Filed 6-13-05; 8:45 am]

   BILLING CODE 6560-50-S