Toxic substances: containing materials in schools; State waiver requests,

[Federal Register: June 24, 1998 (Volume 63, Number 121)]

[Proposed Rules]

[Page 34348-34350]

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

[DOCID:fr24jn98-35]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 763

[OPPTS-62155; FRL-5762-3]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed waiver.

SUMMARY: EPA has received from the Commonwealth of Massachusetts a request for a waiver from the requirements of 40 CFR part 763, subpart E, Asbestos-Containing Materials in Schools regulations. This document announces an opportunity for public review and comment on the Massachusetts waiver request.

DATES: Comments on the waiver request must be received by July 24, 1998.

ADDRESSES: Written comments must be sent in triplicate, identified by the docket control number OPPTS-62155 to: James M. Bryson, Regional Abatement Coordinator, Environmental Protection Agency, Office of Ecosystem Protection, CPT Region 1, John F. Kennedy Federal Building, Boston, MA 02203-0001. Copies of the Massachusetts waiver request are on file and may be reviewed at the EPA Region I Office.

Comments and data may also be submitted electronically to bryson.jamesm@epamail.epa.gov. Follow the instructions under SUPPLEMENTARY INFORMATION of this document. No Confidential Business Information (CBI) should be submitted through e-mail.

All comments which contain information claimed as CBI must be clearly marked as such. Three sanitized copies of any comments containing information claimed as CBI must also be submitted and will be placed in the public record for this document. Persons submitting information on any portion of which they believe is entitled to treatment as CBI by EPA must assert a business confidentiality claim in accordance with 40 CFR 2.203(b) for each such portion. This claim must be made at the time that the information is submitted to EPA. If a submitter does not assert a confidentiality claim at the time of submission, EPA will consider this as a waiver of any confidentiality claim and the information may be made available to the public by EPA without further notice to the submitter.

FOR FURTHER INFORMATION CONTACT: James M. Bryson at 617-565-3836.

SUPPLEMENTARY INFORMATION: This document is issued under the authority of Title II of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2641, et seq. TSCA Title II was enacted as part of the Asbestos Hazard Emergency Response Act (AHERA), Pub. L. 99-519. AHERA is the name commonly used to refer to the statutory authority for EPA's rules affecting asbestos in schools. For purposes of this document, EPA will use the AHERA designation.

In the Federal Register of October 30, 1987 (52 FR 41946), EPA issued a final rule as required in AHERA, the Asbestos-Containing Materials in Schools Rule (40 CFR part 763, subpart E), which requires all Local Education Agencies (LEAs) to identify Asbestos-Containing Building Materials (ACBMs) in their school buildings and to take appropriate actions to control the release of asbestos fibers. The LEAs are required to describe their asbestos control activities in management plans, which must be available to all concerned persons and submitted to the State Governor's Designee. The rule requires LEAs to use specially trained and accredited persons to conduct inspections for asbestos, develop management plans, and design and conduct actions to control asbestos. The recordkeeping and reporting burden associated with waiver requests was approved under OMB control number 2070-0091. This document merely announces the Agency's receipt of a waiver request and therefore, imposes no additional burden beyond that which was covered under existing OMB control number 2070-0091. Send any comments regarding the burden estimate or any other aspect of this collection to Chief, Information Policy Branch (2136), Environmental Protection Agency, 401 M St., SW., Washington, DC 20460 and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, ``Attention: Desk Officer.''

Under section 203 of AHERA, EPA may, upon request of a State Governor and after notice and comment and opportunity for a public hearing in the State, waive in whole or in part the requirements of the rule promulgated under section 203, if the State has established and is implementing or intends to implement a program of asbestos inspection and management which is at least as stringent as the requirements of 40 CFR part 763, subpart E. The AHERA rule requires that specific information be included in a waiver request. The rule establishes a process for EPA to review waiver requests, and sets forth procedures for

[[Page 34349]]

oversight and rescission of waivers granted to the States.

The rule requires States seeking waivers to submit requests to the Regional Administrator for the EPA Region in which the State is located. EPA is hereby issuing a notice in the Federal Register announcing receipt of the request and soliciting written comments from the public pertaining to the Commonwealth of Massachusetts' AHERA waiver request. Comments must be submitted by August 24, 1998. If during the comment period, EPA receives a written objection to the State's request, EPA will schedule a hearing to be held in the affected State after the close of the comment period.

On September 26, 1997, Acting Governor Argeo Paul Cellucci submitted to John P. DeVillars, Regional Administrator, EPA Region I, a request for a waiver under 40 CFR 763.98. The request was received by the EPA Regional Office on September 27, 1997. The State's submittal requested a waiver from all requirements of 40 CFR part 763, subpart E.

The Massachusetts waiver request was deemed complete by EPA on October 14, 1997, in that it contained all of the following provisions which are required by the AHERA regulations.

1. A copy of the State provisions and proposed provisions relating to its program of asbestos inspection and management in schools for which the request is made.

2. The name of the State agency that is responsible for administering and enforcing the requirements for which a waiver is requested. The names and job titles of responsible officials in that agency, and telephone numbers whom the officials can be contacted.

3. Detailed reasons, supporting papers, and the rationale for concluding that the State's asbestos inspection and management program provisions, for which the request is made, are at least as stringent as the requirements of 40 CFR part 763, subpart E.

4. A discussion of any special situations, problems, and needs pertaining to the waiver request accompanied by an explanation of how the State intends to handle them.

5. A statement of the resources that the State intends to devote to the administration and enforcement of the provisions relating to the waiver request.

6. Copies of any specific or enabling State laws and regulations relating to the request, including provisions for assessing criminal and/or civil penalties.

7. Assurance from the Governor, Attorney General, or the legal counsel of the lead agency that has the legal authority necessary to carry out the requirements relating to the request.

   EPA may waive some or all of the requirements of 40 CFR part 763, subpart E if:

1. The State has the legal authority necessary to carry out the provisions of asbestos inspection and management in schools relating to the waiver request. The Massachusetts Department of Labor and Workforce Development recognizes that asbestos exposure in schools (and elsewhere) is a serious concern. The Massachusetts General Assembly also recognized this, and during a 1987 legislative session a bill was passed--Mass Gen. Laws ch. 149, Sec. 6C-authorizing the Air Pollution Control Division, Massachusetts Department of Labor and Workforce Development, to implement State requirements under AHERA to establish a certification program for abatement contractors, develop and implement asbestos work practices and exposure standards, collect fees, and levy fines. Effective June 30, 1993, the revised Massachusetts asbestos regulation required the certification of all persons engaging in asbestos-related work. The requirement applies to all public and commercial buildings as well as schools. The revised regulation also contains more stringent work practices for asbestos abatement and expands the enforcement capabilities of the State in regards to false training documents submitted to obtain certification. The Massachusetts General Assembly has enacted authority for the Massachusetts Department of Labor and Work Force Development to enforce rules and regulations to minimize the risk to the public from exposure to asbestos, including requirements for asbestos management plans to be submitted and implemented by schools. All requisite legislative/legal authority to implement the AHERA waiver program has been adopted, and no problems are anticipated in meeting waiver objectives.

2. The State's program of asbestos inspection and management in schools relating to the waiver request and implementation of the program will be at least as stringent as the requirements of 40 CFR part 763, subpart E. On August 25, 1997, Massachusetts adopted the requirements of 40 CFR part 763, subpart E in their entirety, with the exception of Secs. 763.97 and 763.98, into the Massachusetts Department of Labor and Workforce Development Regulation No. 453 CMR 6.00 ``The Removal, Containment or Encapsulation of Asbestos School Requirements.'' The State indicated in its August 25, 1997 letter that it intends to administer these regulations in a manner that will be at least as stringent as the requirements of 40 CFR part 763, subpart E.

3. The State has an enforcement mechanism to allow it to implement the program described in the waiver request. The State conducts routine AHERA inspections and abatement inspections. Routine AHERA inspections result in a determination of compliance regarding the creation, maintenance and implementation of an adequate, updated management plan. Abatement inspections focus on assessing compliance with the AHERA and State asbestos requirements, including such things as implementation of appropriate work practices, compliance with accreditation (State Certification) requirements and proper recordkeeping.

   Abatement inspections are initiated as a result of tips or complaints, to assess compliance with any applicable State or EPA asbestos rules. In addition, the State will continue to update its existing Neutral Administrative Inspection Scheme (NAIS) in support of targeting LEAs and other persons for AHERA compliance inspections. The NAIS will include a specific method or criteria for selecting inspection targets and will comply with EPA's National Compliance Monitoring Strategies for AHERA. The State also has completed an enforcement response policy to determine the most appropriate enforcement action for each violation of the State's laws and regulations.

4. The State has qualified personnel to carry out the provisions relating to the waiver request. The State has 18 employees trained to stringently enforce, the requirements of 40 CFR part 763, subpart E. The program will be carried out by staff in the Massachusetts Department of Labor and Workforce Development. Of these, four staff work full-time under the EPA TSCA Asbestos Enforcement Grant. These staff are fully-trained and certified as Building Inspector/Management Planners and Contractor/Supervisors. Two of four staff persons are conducting full AHERA inspections. One staff person is conducting Worker Protection Rule (40 CFR part 763, subpart E) inspections and is currently training to conduct full AHERA inspections. The fourth person administers the grant with EPA and works on case development resulting from inspections.

5. The State will devote adequate resources to the administration and enforcement of the asbestos inspection and management provisions relating to the waiver request. Based upon review by the EPA Region I Office, the Agency

   [[Page 34350]]

   feels that the resources developed by the Massachusetts Department of Labor and Workforce Development are adequate to effectively implement and administer the asbestos program in Massachusetts.

6. Final approval of the program by EPA will require effective implementation and continued use of the EPA-approved NAIS, logging and tracking system, enforcement strategy and standard operating procedures, enforcement response policy, and communication strategy. EPA's final approval of the State's program will require the State to continue to provide adequate resources to support the administration of the program.

   The reporting and recordkeeping provisions relating to State waivers from the requirements of the Asbestos-Containing Materials in Schools Rule at 40 CFR part 763 have been approved by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 and its implementing regulations at 5 CFR part 1320 and assigned OMB control number 2070- 0091.

   With this notice, EPA is hereby announcing receipt of the State's request and soliciting written comments from the public pertaining to the Commonwealth of Massachusetts' AHERA waiver request. Comments must be submitted by July 24, 1998. If during the comment period, EPA receives a written objection to the State's request, EPA will schedule a hearing to be held in the Commonwealth after the close of the comment period.

   The official record for this document, as well as the public version, has been established for this document under docket control number ``OPPTS-62155'' (including comments and data submitted electronically as described below). A public version of this record, including printed, paper versions of electronic comments, which does not include any information claimed as CBI, is available for inspection from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The official record is located at the address in ``ADDRESSES'' at the beginning of this document.

   Electronic comments can be sent directly to EPA at:

   bryson.jamesm@epamail.epa.gov

   Electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption, Comment and data will also be accepted on disks in Wordperfect 5.1/6.1 or ASCII file format. All comments and data in electronic form must be identified by the docket control number ``OPPTS-62155.'' Electronic comments on this document may be filedonline at many Federal Depository Libraries.

   List of Subjects in Part 763

   Environmental protection, Asbestos, Administrative practice and procedure, Hazardous substances, Imports, Intergovernmental relations, Labeling, Occupational safety and health, Reporting and recordkeeping requirements, Schools.

   Dated: June 15, 1998. John P. DeVillars, Regional Administrator, Region I.

   [FR Doc. 98-16770Filed6-23-98; 8:45 am]

   BILLING CODE 6560-50-F