# Asbestos Model Accreditation Plan; Interim Final Rule ENVIRONMENTAL PROTECTION AGENCY

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-2281

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** February 3, 1994

## Text

SUMMARY: EPA is issuing this interim final rule to revise its asbestos
Model Accreditation Plan (MAP) to clarify the types of persons who must
be accredited to work with asbestos in schools and public and
commercial buildings; to increase the minimum number of hours of
training, including additional hours of hands-on health and safety
training, for asbestos abatement workers and contractor/supervisors;
and to effect a variety of other necessary changes as mandated by
section 15(a)(3) of the Asbestos School Hazard Abatement
Reauthorization Act (ASHARA). This revised rule replaces the original
MAP found at 40 CFR part 763, Appendix C to Subpart E. The original MAP
contained six components which, taken together, comprised a model
asbestos accreditation plan for States and EPA-approved training
providers. These components included: (1) Initial training, (2)
examinations, (3) refresher training, (4) qualifications, (5)
decertification requirements, and (6) reciprocity. This revision adds
two new components to the original MAP; (1) definitions, which help to
determine the scope and applicability of the rule, and (2) new
recordkeeping requirements for the providers of accredited training
courses. The changes also specify the deadline for States to modify
their accreditation programs to be no less stringent than the revised
MAP as required by the Toxic Substances Control Act (TSCA) section
206(b)(2). Further, the revised MAP prescribes deadlines for training
course providers and persons who must obtain accreditation to comply
with new requirements; distinguishes between the training requirements
for each of the five accredited training disciplines; adds several new
topics to the project designer training curriculum; establishes new
enforcement criteria and Federal procedures for withdrawing approval
from accredited persons and training programs; and stipulates new
information requirements for training certificates. Because the
revisions expand the minimum requirements for an accreditation plan,
States may have to modify their programs to insure that each State has
a contractor accreditation plan that is at least as stringent as the
revised MAP as required by TSCA section 206(b). Similarly, training
providers may need to adjust their training course administration or
curricula to comply with the revised MAP. Finally, EPA has modified the
organization, and some of the language of the original MAP. These
modifications, however, are technical, and do not impose new
substantive requirements.

DATES: This Rule is effective April 4, 1994. Because this is an interim
final rule, EPA is accepting further comment on this action. All
written comments must be received by EPA no later than March 4, 1994.
EPA will consider the written comments received during the 30-day
comment period in determining the need for any further rule amendments.

ADDRESSES: Written comments should be sent to: Field Programs Branch,
Chemical Management Division (7404), Office of Pollution Prevention and
Toxics (OPPT), Environmental Protection Agency, 401 M St., Washington,
DC 20460. EPA does not anticipate receiving any comments that contain
information claimed as confidential business information (CBI). If such
comments are submitted, however, they must be clearly labeled as
containing information claimed as CBI or they will be placed in the
public record. CBI claims should be accompanied by statements
substantiating the claim as described in 40 CFR 2.204(e)(4). If
information is claimed as CBI, a nonconfidential version of the
comments should also be submitted for the public docket.

FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director,
Environmental Assistance Division (7408), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, Rm E-543B, 401
M St., SW., Washington, DC 20460, (202) 554-1404, TDD: (202) 554-0551.

SUPPLEMENTARY INFORMATION:
The Agency is requesting comment on this revised MAP only to the
extent that it has amended or changed the original MAP. The Agency is
not soliciting comments on provisions of the original MAP that remain
unaffected by this action. Specifically, and notwithstanding the
inclusion of some of the existing language from the original MAP in
this revised MAP, the Agency will only entertain comments to the extent
that they address actual changes which have been incorporated. Appendix
C to subpart E of 40 CFR 763 is reproduced in its entirety solely for
clarity and to facilitate understanding of how the changes and
amendments fit within the existing regulatory structure.

I. Background

In 1986, Congress enacted the Asbestos Hazard Emergency Response
Act (AHERA, or TSCA Title II) which mandated a regulatory program to
address asbestos hazards in schools. A part of AHERA (section 206; 15
U.S.C. 2646) dealt with the mandatory training and accreditation of
persons who would perform certain types of asbestos-related work in
schools. Subsequently, in 1990, Congress enacted ASHARA (Pub. L. 101-
637), which amended AHERA to extend some of the training and
accreditation requirements to persons performing such work in public
and commercial buildings. Consequently, EPA is now effecting regulatory
changes to reflect and implement these statutory amendments.
Originally, section 206 of AHERA required EPA to develop a MAP
providing for the training of certain types of persons performing
asbestos-related work in elementary and secondary schools (15 U.S.C.
2646). Persons covered by this original MAP included those who
inspected school buildings for asbestos-containing materials (ACM);
developed asbestos management plans for schools; and designed or
conducted response actions with respect to friable ACM, other than
small-scale, short-duration activities, in schools. Such persons were
required to obtain accreditation as a prerequisite to performing this
work.
AHERA also required States to adopt a State accreditation program
that was no less stringent than that described in the MAP (15 U.S.C.
2646(b)(2)). Persons could then obtain accreditation by completing
either an EPA-approved training course, or a training course approved
by a State with a program that was at least as stringent as the MAP,
and by passing an examination for that course. Individual States,
however, could elect to impose more stringent requirements as a
condition of accreditation.
The original MAP established five accredited ``disciplines'' for
asbestos-related activities in schools, which included: worker,
contractor/supervisor, inspector, management planner, and project
designer. For each discipline, it outlined a functional role and set of
job responsibilities, and stipulated minimum training, examination, and
continuing education requirements. It established areas of knowledge of
asbestos inspection, management plan development, and response action
technology that persons seeking accreditation must demonstrate and that
States must include in their accreditation programs.
On November 28, 1990, Congress enacted ASHARA and expanded the
accreditation requirements to apply to persons who work with asbestos
in public and commercial buildings as well as schools. Specifically,
ASHARA expanded TSCA section 206(a)(1) and (3) to require accreditation
for any person who inspects for ACM in a public and commercial
building, or who designs or conducts a response action with respect to
friable ACM in such a building. As a result of this amendment, the MAP
accreditation requirements for inspectors, project designers, workers,
and contractor/supervisors now apply equally to persons in both schools
and public and commercial buildings. Congress, however, did not extend
the accreditation requirement for management planners. As a result,
TSCA requires accreditation for persons who prepare management plans if
they work in schools, but does not require such accreditation if they
work in public and commercial buildings (15 U.S.C. 2646(a)(2)).
ASHARA also required EPA to revise the current MAP by increasing
the minimum number of hours of training, including hands-on training,
required for asbestos abatement workers in both schools and public and
commercial buildings. ASHARA, however, did not specify the amount of
additional training that would be required. In addition, ASHARA
authorized EPA to modify the MAP as necessary to implement the
extension of accreditation requirements to public and commercial
buildings.
Finally, ASHARA amended the penalty provisions of TSCA section 207
(15 U.S.C. 2647). It provided for a civil penalty for contractors who
fail to comply with TSCA accreditation requirements by inspecting,
designing, or conducting a response action in a school or public or
commercial building without TSCA accreditation, or by employing
individuals to conduct response actions in such a building, and failing
to require or provide TSCA accreditation for the employees. A
contractor who commits a violation is liable for a civil penalty of
$5,000 for each day of a violation, except for a contractor who is a
direct employee of the Federal Government (15 U.S.C. 2646 (g)).
The ASHARA accreditation provisions originally were to take effect
on November 28, 1991. ASHARA, however, authorized EPA's Administrator
to extend that effective date for one year. On January 7, 1992, the
Administrator took action to extend the effective date until November
28, 1992 (57 FR 1913, January 16, 1992). The Administrator determined
that accredited asbestos contractors were needed to perform school site
abatement required under AHERA, and that such an extension was
necessary to ensure effective implementation of section 203 of TSCA
(ASHARA section 15(c)). As a result of this extension, persons who
perform inspections, or plan or conduct response actions in public and
commercial buildings were required to obtain TSCA accreditation
beginning on November 28, 1992.
EPA has decided to phase-in the other new requirements contained in
the revised MAP when the revision takes effect. These requirements
include an increase in the minimum number of hours of training,
including hands-on training, for asbestos abatement workers in both
schools and public and commercial buildings, and other necessary
revisions.
EPA is promulgating the revised MAP as an interim final rule that
will take effect 60 days after the rule is published. The streamlined
procedures that EPA has utilized to revise the MAP are fully consistent
with the Congressional directive to EPA for developing the original
MAP. AHERA specifically authorized the Agency to issue the MAP ``after
consultation with affected parties'' (15 U.S.C. 2646(b)(1)(A)). EPA
issued it after a public request for information in the Federal
Register (51 FR 28914, August 12, 1986) and consultations with affected
parties, but without engaging in full-scale notice and comment
rulemaking. EPA has used procedures to revise the MAP that are as
extensive as those that were used to develop the original MAP. EPA
believes it is reasonable to conclude that Congress did not intend EPA
to engage in the redundancy of consultation with affected parties and
formal notice and comment rulemaking in either issuing the MAP or in
revising it, and therefore intended EPA to issue this revision to the
MAP after undertaking similar consultations with affected parties.
EPA finds that there is good cause to issue an interim final rule,
without utilizing all of the notice and public comment procedures in
section 553(b) of the Administrative Procedures Act (APA), because
those procedures are impracticable and unnecessary under the
circumstances (5 U.S.C. 553(b)). It is impracticable to utilize the
full-scale notice and comment proceedings in section 553(b) because
such proceedings would unjustifiably extend the rulemaking process, and
would further delay the implementation of the revised MAP. Congress
clearly intended that EPA act expeditiously to revise the MAP, and even
established a deadline for the EPA revisions. EPA did not meet the
deadline because of the time-consuming process that was necessary to
create an accreditation plan that would coordinate with existing,
diverse State accreditation programs, minimize disruption of current
training providers, and contain other provisions necessary to implement
the revisions. If EPA were to develop and publish a notice of proposed
rulemaking pursuant to section 553(b), the revisions would have been
even further delayed. The impact of such a delay would be exacerbated
by the additional time that is required for States to pass conforming
legislation and implement the revised MAP after it is issued.
Finally, full-scale rulemaking is unnecessary because EPA has
communicated informally with affected parties, given notice of the
revisions to the public, and provided an opportunity to submit
information and comments prior to promulgating this interim final rule.
Initially, the Agency consulted with affected organizations to identify
revisions that were necessitated by ASHARA. These organizations
included schools, commercial building owners and operators, asbestos
abatement consultants and contractors, labor organizations, training
providers, and States. Subsequently, EPA published a notice in the
Federal Register that described the revisions that were being
considered, and announced a public meeting to discuss the changes (57
FR 20438, May 13, 1992).
EPA also established a docket containing information which supports
EPA's revision of the MAP. To provide interested persons the
opportunity for oral presentation of data, views, or arguments
concerning the changes under consideration, EPA held a public meeting
on June 8, 1992, in Washington, DC. Twenty-three persons presented oral
comments for the record. A transcript of this proceeding is contained
in the docket. EPA also received 80 written comments in response to the
Federal Register announcement. These comments have also been filed in
the docket, and were carefully considered by the Agency in revising the
MAP.

II. Summary of Changes

The various new requirements of the MAP are described here in
greater detail. This summary is organized by subject area.

A. Definitions

The promulgated revisions establish a new definitions section for
the MAP. Seven terms are included to help clarify and delineate the
scope and applicability of the MAP to work performed in public and
commercial buildings. The seven terms, and their meanings, are
summarized below:
1. Public and commercial building. The term ``public and commercial
building'' is defined in TSCA section 202(10) to mean ``any building
which is not a school building, except that the term does not include
any residential apartment building of fewer than 10 units'' (15 U.S.C.
2642(10)). This definition identifies those buildings where persons
performing certain asbestos-related work are subject to the MAP
training and accreditation requirements. Such buildings generally
include apartment complexes, condominiums and cooperatives of more than
10 units, office buildings, government-owned buildings, colleges,
museums, airports, hospitals, churches, preschools, stores, warehouses,
and factories. It also includes all industrial buildings, because
industrial buildings are included within the broad statutory definition
of public and commercial buildings.
This particular term does not include elementary or secondary
schools as defined in section 198 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 2854; 15 U.S.C. 2642(9) and (12)). The
definition in the revised MAP excludes all detached single family
homes, because they are residential buildings of fewer than 10 dwelling
units.
Furthermore, consistent with the statute and EPA's regulatory
approach for schools, the term is interpreted to include only the
interiors of buildings except for exterior hallways connecting
buildings, porticos, and mechanical systems used to condition interior
space. Consequently, accredited workers are generally not required for
work on roofing or siding materials that are on the outside of either
public and commercial buildings or schools.
2. Friable asbestos-containing material (ACM). In TSCA section 202,
friable asbestos-containing material means any material containing more
than one percent asbestos, which has been applied on ceilings, walls,
structural members, piping, duct work, or any other part of a building,
which, when dry, may be crumbled, pulverized, or reduced to powder by
hand pressure. The term includes non-friable ACM after such previously
non-friable material becomes damaged to the extent that when dry it may
be crumbled, pulverized, or reduced to powder by hand pressure'' (15
U.S.C. 2642(6)). At no point does the statute regulate activities that
involve nonbuilding materials, such as asbestos gloves or asbestos
brake linings, that may be either stored or used inside of a building.
Consequently, the use of the term ``friable ACM'' in the MAP refers
only to ``friable asbestos-containing building material (ACBM),'' and,
where the statute requires accreditation for activities associated with
ACM, accreditation is only required if the asbestos is part of the
building.
3. Inspection. Although AHERA required that schools conduct
asbestos inspections, ASHARA did not extend this same requirement to
public and commercial buildings. Furthermore, because the Asbestos-
Containing Materials in Schools Rule (``Schools Rule'') (40 CFR 763.80-
763.119) simply listed the various activities required to be included
as a part of these mandatory school inspections (40 CFR 763.85),
without actually defining the term itself, a definition of
``inspection'' is necessary to delineate the scope of the MAP
accreditation requirement as it applies to both schools and public and
commercial buildings. Accordingly, the term ``inspection'' is defined
to mean those activities undertaken to specifically determine the
presence or location, or to assess the condition of, friable or non-
friable ACBM or suspected ACBM, whether by visual or physical
examination, or by collecting samples of such material. Similarly, the
term includes all ``reinspections'' of friable and non-friable known or
assumed ACBM which has been previously identified.
The inclusion of a definition for the term inspection is intended
to clarify when a person must obtain TSCA accreditation before
performing an inspection. TSCA Title II, as amended by ASHARA, did not
define inspection. When Congress enacted ASHARA, however, the Schools
Rule was in effect, and it identified the activities that constituted
an inspection in school buildings (40 CFR 763.85 and 763.92). The
definition of inspection adopted in the revised MAP is based upon the
core inspection activities identified in the Schools Rule at
Sec. 763.85(a), including the visual or physical examination, and the
sampling of ACBM or suspected ACBM to determine its location or
presence or to assess its physical condition. Based upon the revised
MAP, a person must be accredited to engage in any one of these core
activities in a school or in a public and commercial building. In
addition, the Schools Rule continues to require accreditation for any
person who engages in any one of these core activities. Because the
Schools Rule currently requires an accredited person to conduct the
core inspection activities, and the revised MAP requires accreditation
for those same activities, the revision will not expand the need for
accredited inspectors in schools.
The definition, however, also allows for three specific exceptions,
dealing with related activities which do not require accreditation. The
three excepted activities include: periodic surveillance, compliance
inspections, and visual inspections.
The first exception under this term addresses periodic surveillance
of the type described in 40 CFR 763.92(b), which is commonly performed
by custodial or maintenance workers. Periodic surveillance is distinct
from reinspection and is limited only to visual observations. It refers
to a visual examination of an area in a building that previously has
been identified as containing ACBM, or that previously has been assumed
to contain ACBM, and that is undertaken to identify changes in the
physical condition of that ACBM. Thus, a person would not need
accreditation to visually survey a ceiling that had already been
identified in an earlier inspection or reinspection as suspected ACBM
to determine whether the ceiling had been damaged by a water leak. If
the person assessed the condition of the ceiling by collecting a
sample, or touched it to determine whether it had become friable,
however, then that person would have to be accredited as an inspector.
The second type of activity that is excluded from the definition of
inspection is compliance inspections performed by Federal, State, or
local regulatory agencies. These are excluded from accreditation
because their primary purpose is to determine adherence to applicable
statutes or regulations, and not to locate, assess, or remedy the
condition of ACBM. TSCA Title II does not provide a clear definition of
the types of inspection activities that require training. The
legislative history of ASHARA, however, indicates that Congress
intended to require training only for those persons who actually
inspect for or abate asbestos in public and commercial buildings. See
136 Cong. Rec. S15304 (Oct. 15, 1990) (statement of Sen. Burdick).
Based upon the purpose of ASHARA, EPA has concluded that government
personnel who inspect to determine compliance with laws regulating
asbestos are not required to obtain accreditation.
The third exception involves visual inspections of the type
referenced in 40 CFR 763.90(i). These types of activities are excluded
from the accreditation requirement because their purpose is to
determine whether a response action is complete, not to actually
inspect for asbestos. See 136 Cong. Rec. S15304 (Oct. 15,1990)
(statement of Sen. Burdick). Moreover, when Congress enacted ASHARA, it
was aware that AHERA required accreditation for persons who inspected
for asbestos in schools. Persons who conducted visual inspections in
schools to determine whether a response action was complete, however,
did not have to be accredited as inspectors. The legislative history of
ASHARA indicates that Congress did not intend to expand the categories
of persons that had to be accredited when it modified the accreditation
requirements to include public and commercial buildings as well as
schools. As noted by Senator Chafee: ``[ASHARA] does not require the
accreditation of any category of individuals not now required to be
accredited to perform asbestos abatement work [under AHERA].'' 136
Cong. Rec. S15309 (Oct. 15, 1990) (statement of Sen. Chafee).
Consequently, EPA has concluded that a person who conducts an
inspection in a public and commercial building to determine whether a
response action is complete does not have to be accredited as an
inspector. Of course, many persons performing such activities will
otherwise need accreditation as asbestos abatement workers or
contractor/supervisors.
4. Response action. The term ``response action'' is defined in the
MAP to mean a method, including removal, encapsulation, enclosure,
repair, and operation and maintenance, that protects human health and
the environment from friable ACBM. This definition is consistent with
the definition of ``response action'' in TSCA section 202(11) (15
U.S.C. 2642(11)), and with the definition of ``response action'' in the
Schools Rule found at 40 CFR 763.83. Its incorporation into the revised
MAP will therefore ensure that it applies equally to regulated
activities in both schools and public and commercial buildings.
Consequently, those activities that are response actions in schools
will also now be response actions when and where they are undertaken in
public and commercial buildings.
Moreover, a person planning or conducting a response action is
subject to the MAP accreditation requirements only if the ACBM is
friable (15 U.S.C. 2646(a)(3)). As defined in both the MAP and in TSCA
section 202(6), ``friable ACM'' refers only to ACM that ``when dry, may
be crumbled, pulverized, or reduced to powder by hand pressure'' (15
U.S.C. 2642(6)). It also includes previously ``nonfriable material
after such previously non-friable material becomes damaged to the
extent that when dry, it may be crumbled, pulverized, or reduced to
powder by hand pressure'' (15 U.S.C. 2642(6)). This statutory
definition of friability thereby limits the scope of the accreditation
requirements for response actions in both schools and public and
commercial buildings to ACBM that is friable or expected to become
friable during the course of the response action.
5. Small-scale, short-duration activities. For purposes of the
revised MAP, ``small-scale, short duration activities (SSSD)'' are
tasks such as, but not limited to: (a) Removal of asbestos-containing
insulation on pipes, (b) removal of small quantities of asbestos-
containing insulation on beams or above ceilings, (c) replacement of an
asbestos-containing gasket on a valve, (d) installation or removal of a
small section of drywall, or (e) installation of electrical conduits
through or proximate to asbestos-containing materials.
SSSD can be further defined by the following considerations: (a)
Removal of small quantities of ACM only if required in the performance
of another maintenance activity not intended as asbestos abatement, (b)
removal of asbestos-containing thermal system insulation not to exceed
amounts greater than those which can be contained in a single glove
bag, (c) minor repairs to damaged thermal system insulation which do
not require removal, (d) repairs to a piece of asbestos-containing
wallboard, or (e) repairs, involving encapsulation, enclosure, or
removal, to small amounts of friable ACM only if required in the
performance of emergency or routine maintenance activity and not
intended solely as asbestos abatement (such work may not exceed amounts
greater than those which can be contained in a single prefabricated
mini-enclosure. Such an enclosure shall conform spatially and
geometrically to the localized work area, in order to perform its
intended containment function).
This definition is intended to establish a common exemption
threshold for both schools and public and commercial buildings that
limits the applicability of the MAP training and accreditation
requirements. All persons in schools or public and commercial buildings
who perform SSSD that do not otherwise meet the criteria for a major
fiber release episode under 40 CFR 763.91(f)(2) are exempt from the MAP
accreditation requirements. However, a SSSD removal of more than 3
square or linear feet of friable ACBM, where this amount of friable
ACBM either falls or is dislodged, requires the use of an accredited
worker.
6. Major and minor fiber release episodes. To help clarify the
applicability and limits of the SSSD exemption under the MAP, EPA is
incorporating two additional definitions for the terms ``Minor Fiber
Release Episode'' and ``Major Fiber Release Episode.'' Consistent with
the Schools Rule (40 CFR 763.83 and 763.91(e), (f)), a minor fiber
release episode is ``any uncontrolled or unintentional disturbance of
ACBM, resulting in a visible emission'' that ``involves the falling or
dislodging of 3 square or linear feet or less of friable ACBM.'' A
major fiber release episode is ``any uncontrolled or unintentional
disturbance of ACBM, resulting in a visible emission'' that ``involves
the falling or dislodging of more than 3 square or linear feet of
friable ACBM.'' The Schools Rule uses these terms, in addition to SSSD,
as a means to distinguish between those maintenance activities that
require the use of accredited workers, and those that do not. These
terms help delineate when persons performing operation and maintenance
activities are subject to MAP training and accreditation requirements.
Like SSSD, they are basic to determining the scope of the regulation,
and have been added for that reason.

B. Phased Implementation

EPA has decided that it is necessary to phase-in the MAP revisions
to achieve an orderly transition to the revised plan. Additional time
will be needed after the revised MAP has taken effect for States to
adopt accreditation plans no less stringent than the revised MAP, for
training course providers to modify their training courses in keeping
with upgraded MAP standards, and for individuals to obtain new or
additional training where applicable. For these reasons, the revisions
incorporate a timetable with two distinct deadlines; one that applies
to States, and another for accredited persons and training course
providers.
1. States. EPA believes that it is reasonable to allow States a
comparable amount of time to come into compliance with the revised MAP
as was allowed under the original MAP. Therefore, the requirement of
the original MAP, that each State must adopt an accreditation plan at
least as stringent as the EPA model plan within 180 days after the
commencement of the first regular session of the State's legislature
following EPA's adoption of the model plan, is carried over to the
revised MAP. When Congress originally enacted AHERA, it required States
to adopt such a plan, and established a deadline that was tied to the
timing of the first legislative session following completion of the
MAP. When it promulgated ASHARA, Congress did not modify TSCA section
206(b)(2) that requires States to have a plan at least as stringent as
the MAP (15 U.S.C. 2646(b)(2)). When Congress enacted ASHARA, it was
aware that States would need time to enact conforming State
legislation. It is reasonable to conclude that Congress intended to
allow States the same amount of time to adopt implementing legislation
to comply with the MAP revisions in ASHARA that it had originally
allowed for compliance with AHERA. The deadline for State revisions of
accreditation plans allows States the time that is needed to revise
State laws. When this deadline is combined with the other provisions to
phase-in the MAP revisions, EPA believes that there will be an orderly
transition to the expanded system of accreditation for schools, and
public and commercial buildings.
Some States already will have contractor accreditation programs
that meet or exceed the upgraded MAP requirements when the revised MAP
takes effect. These States are essentially unaffected by the revisions,
and may continue to operate as before. A second group of States will
not have accreditation programs in place that are as stringent as the
revised MAP when it first takes effect, but will have preexisting
accreditation programs that are in compliance with the original MAP.
These State programs may or may not be approved by EPA under the
revised MAP. Until such a State revises its program to comply with the
upgraded MAP standards, it will not have the authority to approve any
new training courses to provide training or accreditation that
satisfies the requirements of TSCA section 206(a) (15 U.S.C. 2646(a)).
In the interim, however, the State may continue to train persons and
issue the accreditation required by TSCA section 206(a) if the State
program otherwise complies with the minimum standards of the original
MAP. The State also may continue its approval of training course
providers, if the State issued the approval before the effective date
of the revised MAP, and the training provider is in compliance with the
self-certification requirements contained in Unit V.B. of the revised
MAP. This allows qualified training course providers to continue to
train and issue accreditation that satisfies TSCA section 206(a)
requirements.
Some States in the second group will revise their accreditation
program to be at least as stringent as the MAP within 180 days after
the commencement of the legislature's first regular session that is
convened after the effective date of the revised MAP. When such a State
achieves this program upgrade, it will regain the authority to approve
new training course providers.
Other States in the second group, however, may fail to meet the
deadline for achieving the necessary program upgrade. Beginning on
their respective deadline dates, these States will no longer have the
authority to train persons or issue accreditation that satisfies the
requirements of TSCA section 206(a), or to approve training course
providers to conduct TSCA training or issue TSCA accreditation. A
training provider that had been approved by such a State automatically
loses its State approval. A training provider that loses State approval
in this manner, however, will become EPA-approved if the provider has
self-certified and is otherwise in compliance with the revised MAP.
Finally, such a State automatically loses any EPA approval it may have
had. Once lost, a State would need to reapply for such approval under
the procedures outlined in Unit II of the revised MAP.
A third group of States will not have any accreditation program in
place when the revised MAP takes effect, or will not have a program
which is at least as stringent as the original or revised MAP. These
States are not in compliance with TSCA Title II, are not authorized to
train persons or issue accreditation that satisfy the requirements of
TSCA section 206(a), and may not approve training course providers to
conduct TSCA training or issue TSCA accreditation. EPA strongly
recommends that States apply for and retain EPA approval of their
accreditation programs for the purpose of substantiating their
compliance status under TSCA Title II. Substantiation of compliance
benefits all affected persons and organizations, including States that
may be considering reciprocal arrangements with other States.
2. Training course providers. The revised MAP stipulates that all
approved training course providers, whether approved by EPA or a State,
must self-certify that they have upgraded their approved training
programs to comply with the requirements of the revised MAP within 6
months of the revised MAP taking effect. The certification must be
received by EPA on or before October 4, 1994. This requirement applies
across-the-board to all initial and refresher training courses in all
five accredited disciplines even though actual curriculum modifications
are only required for the initial worker, contractor/supervisor, and
project designer courses. Self-certification is required for all
courses and all disciplines because all training providers must certify
that they not only comply with the prescribed training course
curricula, but with the new recordkeeping and certificate provisions of
the revised MAP as well. The self-certification process is to be
accomplished by submitting a written assurance to EPA that courses and
programs have been appropriately modified. The self-certification must
be signed by an authorized representative of the training provider, and
must include the following statement: ``Under civil and criminal
penalties of law for the making or submission of false or fraudulent
statements or representations (18 U.S.C. 1001 and 15 U.S.C. 2615), I
certify that the training described in this submission complies with
all applicable requirements of Title II of TSCA, 40 CFR part 763,
Appendix C to Subpart E, as revised, and any other applicable Federal,
state, or local requirements.'' The self-certification submission must
also include documentation adequately describing the course and program
modifications effected to achieve compliance with the revised MAP.
Training providers with multiple course approvals are encouraged to
certify all such courses through a single consolidated submission.
Complete duplicate copies of self-certifications must also be sent to
and received by any State approving offices as of the same deadline
date. Training courses that have not self-certified as of October 4,
1994, will no longer be approved, and must reapply through a State
Program which is no less stringent than the revised MAP to have their
approval status restored.
As was previously announced in the Federal Register (54 FR 38802,
September 20, 1989), EPA stopped accepting new training course
applications from providers for review and contingent approval as of
October 15, 1989. Since that date, all training courses without
approval have had to apply directly to State Programs with
accreditation plans no less stringent than the original MAP in order to
obtain the necessary approval. Once a training course has been self-
certified, a training provider may continue to offer that training
course pursuant to the revised MAP. If the course had initially been
approved by an EPA-approved State, and that State subsequently forfeits
its EPA-approved status, EPA will continue to recognize the training
course as being an approved course if it has been self-certified and
otherwise remains in compliance with the revised MAP.
3. Accredited persons. The revisions grandfather all persons who
possess valid accreditation as of the day before the date upon which
the revised MAP goes into effect. A person is considered to have valid
accreditation if they are in possession of an accreditation certificate
that has not yet expired. If a State allows a person with an expired
certificate to reinstate accreditation by completing refresher training
within the 12-month grace period, then such a person will also be
considered to have valid accreditation for purposes of grandfathering.
The person must successfully complete the necessary refresher training
course within 12 months of the date their certificate expires. Persons
who do not meet either of the above conditions do not possess valid
accreditation, and will not be grandfathered for purposes of
accreditation under the revised MAP.
Grandfathered persons will not have to repeat initial training in
order to perform work subject to accreditation, but will have to
continue to fully comply with all annual refresher training
requirements.
Persons who do not possess valid accreditation as of the day before
the date upon which the revised MAP goes into effect have two
alternative means of obtaining initial accreditation. A person may take
an upgraded training course, and obtain accreditation that complies
with the revised MAP. Alternatively, a person may take a course that
was approved under the original MAP and obtain provisional
accreditation. However, this person must then also complete the
upgraded training course for the same discipline within 6-months of the
revised MAP taking effect, on or before October 4, 1994, in order to
obtain accreditation that complies with the revised MAP and to continue
working beyond that date. This mechanism will ensure that all persons
who become newly accredited after the revised MAP takes effect will
meet the upgraded training standards within 6 months, while at the same
time, making it possible for all persons to acquire a provisional
accreditation and continue to work during the 6-month transition period
when training providers are upgrading their courses and programs.
From earlier consultations with training providers, EPA anticipates
that many, if not most, will have little or no difficulty transitioning
to the upgraded training course standards (OPPTS Docket No. 62107, Log
No. B2-002). For worker and contractor/supervisor courses, this
involves extending hands-on training from 6 to 14 hours. For the
project designer course, it involves revising instructional materials
as necessary to accomodate curriculum changes. For the inspector and
management planner courses, there are no required curriculum changes
per se. Because many training providers already comply with the new
recordkeeping and certificate requirements as a matter of standard
business practice, these adjustments are not expected to be burdensome.
Development and submittal of the self-certification letter, by design,
should also be a relatively simple task. In addition, EPA expects that
once the revised MAP has gone into effect, demand for the upgraded
training courses in favor of the original courses will provide
sufficient market incentive for a significant number of training
providers to self-certify quickly, thereby expediting an infrastructure
shift from the old courses to the new.
The examples below are intended to help illustrate how
accreditation will operate during the transition period.
a. Person ``A'' obtains initial accreditation as a worker 1-month
before the revised MAP takes effect. This person is then grandfathered
in when the revised MAP goes into effect 1-month later. The person must
then complete worker refresher training within 11 months after the
revised MAP takes effect in order to continue accreditation status
unbroken.
b. Person ``B'' is a non-accredited consultant who is awarded an
asbestos abatement contract 4 months after the revised MAP takes
effect. This person is able to find and quickly complete an upgraded
contractor/supervisor course, thereby obtaining initial accreditation.
This person has met the new training standards, and thus is unaffected
by the 6-month compliance deadline. The consultant must then satisfy
the refresher training requirement within 1-year of the initial
accreditation date in order to continue uninterrupted contractor/
supervisor work.
c. Person ``C'' is a non-accredited consultant who is awarded a
contract for project design 1-month after the effective date of the
revised MAP. This person is unable to find an upgraded training course,
so opts to take the old initial project designer training course and
begin contract work without undue delay. This person may begin work,
but must complete an upgraded project designer course within the 6-
month compliance deadline in order to continue working in an
uninterrupted manner. A consultant who does not complete the upgraded
training course by the compliance deadline must then stop work that
requires TSCA accreditation until obtaining upgraded accreditation.
The same transitional provisions apply to any person who seeks
initial accreditation after the revised MAP takes effect, including
inspectors and management planners. The revised MAP imposes certain new
requirements on all disciplines, specifically new recordkeeping and
certificate requirements. EPA has concluded that everyone who is
initially accredited after the revised MAP takes effect should be
subject to the same transitional provisions to insure that their
training and accreditation will be adequately documented as required by
the new rule, and that they will have certificates that contain all the
necessary information. Such uniformity will make the accreditation
requirements easier to comply with and enforce.

C. Distinct Training Disciplines

These MAP revisions reaffirm the principle that each of the five
accredited training disciplines in the MAP is distinct from the others.
Because each discipline reflects a different functional job role,
proficiency in any one of the five disciplines requires a different mix
of knowledge, skill, and ability. Even where training programs cover
common subjects, these same subjects need to be given a different
priority and emphasis depending upon the particular discipline a person
is being trained for. To ensure that each discipline receives adequate
training, the revisions have incorporated the following changed
requirements.
1. Each initial and refresher training course offered for
accreditation must be specific to a single discipline, and not combined
with training for any other discipline. The past practice of training
providers offering combined worker and contractor/supervisor training
is not allowed.
2. Workers are no longer permitted to ``upgrade'' their worker
accreditation to that of contractor/supervisor by completing only one
additional day of training. Separate initial training as a contractor/
supervisor is now required. Accredited contractor/supervisors, however,
may perform as workers without obtaining separate accreditation as
such. This is because contractor/supervisors have received more
training in the aggregate than workers to ensure that they can perform
their more complex job functions, and they must otherwise know how to
perform all of the various tasks which workers are normally called upon
to perform.
3. Persons completing initial training for accreditation as
contractor/supervisors are no longer permitted to work as accredited
project designers during their initial 1-year term of accreditation.
This dual-accreditation provision, found in section I.1.C. of the
original MAP, has been deleted from the revised MAP. Persons seeking
accreditation as contractor/supervisors must now complete the new 5-day
initial training for contractor/supervisors, and persons seeking
accreditation as project designers must now complete the new 3-day
initial training for project designers.

D. Increased Training Requirements

Section 15(a)(3) of ASHARA mandated that EPA, as a part of revising
its MAP, increase the minimum number of training hours, including
additional hours of hands-on health and safety training, required for
the accreditation of asbestos abatement workers in schools and public
and commercial buildings. EPA interprets the phrase ``asbestos
abatement workers'' to include both workers and contractor/supervisors.
These groups have the greatest need for additional hands-on training
because they either actually perform asbestos abatement work, or
directly oversee it at the job site. The revised MAP therefore
incorporates 1 additional 8-hour day of hands-on training for both the
worker and the contractor/supervisor disciplines. This has the effect
of increasing the worker course from a total of 3 days to 4 days of
training, with the hands-on training component increased from 6 hours
to 14 hours. Similarly, the 4-day contractor/supervisor course has been
upgraded to a 5-day course, with 14 hours of hands-on activity. These
training hour requirements not only fulfill the statutory mandate for
additional hands-on training for asbestos abatement workers, but also
ensure that training can be obtained within the practical limits of a
normal 40-hour, 5-day work-week.
The minimum training hour requirements for the other three
accredited MAP disciplines, that of inspector, management planner, and
project designer have not been altered. Congress only mandated
increased training for asbestos abatement workers, and the only
accredited disciplines directly engaged in hands-on abatement work are
the worker and contractor/supervisor. The project designer and
management planner courses do not include any hands-on health and
safety training component. Because inspectors likewise do not
participate in abatement, the existing 4-hour hands-on component for
inspectors is unaffected by the ASHARA mandate.

E. Expanded Project Designer Curriculum

The MAP revisions incorporate several additions to the mandatory
curriculum for accredited project designer training, but do not extend
the required length of this initial training program. These changes
relate only to the scope of training; they do not require an accredited
project designer to perform any particular work practices. Because of
concerns that project designs may sometimes be either inadequately
prepared and/or executed, the curriculum additions are aimed at both
clarifying and improving the effectiveness of the project designer's
functional role (see OPPTS Docket No. 62107, Log No. C1-030). Where no
written design plan exists, implementation can be prone to failure.
This may also occur where a project design has not adequately
considered all relevant facets of an abatement project. For these
reasons, the six new topics which have been added include: (1) The need
for and methods of preparing a written project design, (2) techniques
for completing an initial cleaning of the work area, (3) increased
emphasis on the rationale behind the establishment of functional
spaces, (4) the need for written diagrams and methods of diagraming all
containment barriers, (5) the need for a written sampling rationale for
air clearance, and (6) clarification of what constitutes a complete
visual inspection.

F. Deaccreditation of Persons and Withdrawal of Course Approval

The MAP revisions establish minimum national criteria for
suspending or revoking the accreditation of individuals as well as for
suspending or withdrawing the approval of training courses. Also
included are additional criteria that EPA may use, and States are free
to adopt, as well as the procedures that EPA will follow when
suspending, revoking, or withdrawing accreditation or approval. The
specified procedures are derived from those used for the suspension,
modification, or revocation of pesticide applicator certificates found
at 40 CFR 171.11(f). EPA believes that these procedures provide
adequate notice and process to affected individuals and training course
providers, while enabling the Agency to act more quickly than through
those procedures specified at 40 CFR part 22, which had also been
considered by the Agency. States, in initiating these kinds of actions,
would be bound by the requirements of their own State administrative
procedures.
The enumeration of criteria for suspension, revocation, or
withdrawal is not meant to be a complete list of enforcement actions
and choices available to EPA. Since the MAP is a regulation promulgated
under Title II of TSCA, persons violating the MAP may also be subject
to assessment of civil administrative penalties. The MAP revisions also
clarify that EPA may take independent actions against either training
entities or accredited persons, without reliance upon State enforcement
authority or initiative.
1. Deaccrediting persons. Four minimum criteria are established for
triggering deaccreditation actions by EPA or a State. They include: (1)
Performing work requiring accreditation at a job site without being in
physical possession of initial and current accreditation certificates;
(2) permitting the duplication or use of one's own accreditation
certificate by another; (3) performing work for which accreditation has
not been received; or (4) obtaining accreditation from a training
provider that does not have approval to offer training for the
particular discipline from either EPA or from a State that has a
contractor accreditation plan at least as stringent as the EPA MAP.
EPA may also suspend or revoke a person's accreditation if such
person has been found in violation of other asbestos regulations
administered by EPA. States may wish to adopt this criterion, or modify
it to include their own asbestos statutes or regulations.
In addition, the revised MAP identifies some of the situations when
a person who is performing an activity that requires accreditation will
be subject to civil penalties under TSCA. Examples include, but are not
limited to: (1) Obtaining accreditation through fraudulent
representation of training or examination documents; (2) obtaining
training documentation through fraudulent means; (3) gaining admission
to and completing refresher training through fraudulent representation
of initial or previous refresher training documentation; or (4)
obtaining accreditation through fraudulent representation of
accreditation requirements such as education, training, professional
registration, or experience. This list is not exhaustive, and there may
be other situations where persons may be subject to penalties under
TSCA by conducting work without the requisite accreditation.
2. Withdrawal of course approval. This new provision requires that
States have minimum criteria and procedures for suspending or
withdrawing approval from approved training courses. In pursuing
actions for withdrawal of approval of accredited training programs,
States should follow their own State administrative procedures. EPA may
directly pursue actions for withdrawal of approval of accredited
training programs without reliance on State withdrawal actions or
enforcement authority or actions. In taking such actions, EPA will use
the same procedures specified for the suspension or revocation of
accreditation, those found at 40 CFR 171.11(f), to suspend or withdraw
approval of a training course.
EPA continues to have the ability to withdraw approval of
accredited training programs if field site inspections indicate that a
training course is not conducting training that meets the requirements
of the EPA MAP. Similarly, the requirement that training course
providers permit EPA representatives to attend, evaluate, and monitor
any training course without charge to EPA is preserved.
EPA believes that training providers should understand the criteria
that the Agency will use to trigger a withdrawal action. Minimum
criteria which trigger the commencement of a withdrawal action for
withdrawal of approval of accredited training programs have been added
to the MAP, including: (a) Misrepresentation of the extent of a
training course's approval by a State or EPA; (b) failure to submit
required information or notifications in a timely manner; (c) failure
to maintain requisite records; (d) falsification of accreditation
records, instructor qualifications, or other accreditation information;
or (e) failure to adhere to the training standards and requirements of
the EPA or State MAP as appropriate.
EPA may also suspend or withdraw a training course's approval if an
approved training course instructor or other person with supervisory
authority over the delivery of training has been found in violation of
other asbestos regulations administered by EPA. An administrative or
judicial finding of violation, or execution of a consent agreement and
order under 40 CFR 22.18, constitutes evidence of a failure to comply
with relevant statutes and regulations. States may wish to adopt this
additional criterion, or modify it to include their own asbestos
statutes or regulations.
The formal procedures for withdrawing course approval do not apply
to training providers that fail to comply with the self-certification
requirements of the revised MAP and that do not upgrade their courses
within 6 months of the effective date of the revised MAP. EPA is
provisionally allowing training providers to continue to operate during
that 6-month period pursuant to approval granted under the original
MAP. A training provider that fails to comply with the self-
certification requirements within 6 months, however, automatically
loses its provisional approval by operation of law. No individual
notices or adjudicative process is required to effect the loss of such
provisional approvals pursuant to this rule.

G. Recordkeeping Requirements for Training Providers

The revised MAP imposes a variety of new recordkeeping requirements
on training providers that are necessary to strengthen compliance with
MAP training standards and to enable more vigorous enforcement of those
standards by both EPA and the States. Four different types of records
must be maintained: (1) Records documenting approved training course
materials (e.g., copies of student manuals, instructor notebooks,
handouts), (2) records demonstrating instructor qualifications (e.g.,
copies of resumes, approval letters, dates and names of courses
taught), (3) records documenting examinations (e.g., copies of tests
used, individual student scores, dates and locations of exams given),
and (4) records documenting accreditation certificates (e.g., to whom
conferred, for which disciplines, dates of issuance and expiration).
The revisions further stipulate that all such records must be retained
for at least 3 years, and that reasonable access to all such records
must be provided upon request to either or both EPA and the States.

H. Accreditation Certificates

The revised MAP stipulates that each accreditation certificate
issued by an approved training provider must now contain certain
additional items of information which had not been specified in the
original MAP. The new minimum certificate standard is intended to
enable quick identification of and contact with the training provider
that issued the certificate. The revised MAP specifically requires the
inclusion of the issuing provider's name, address, and telephone
number. This mechanism makes it possible for training providers,
regulatory agencies, and the general public to verify the accreditation
status of persons performing work subject to the MAP.

III. Responses to Comments

Comments on the various MAP changes being considered by EPA were
received from many affected interest groups, including States,
commercial buildings owners and managers, labor organizations, trade
associations, asbestos contractors and consultants, training entities,
power companies, universities, and federal agencies other than EPA.
These written comments may be found in the docket supporting this
action (OPPTS-62107). This Unit discusses EPA's responses to the
significant issues raised in the comments received.
Comments and responses have been organized in this Unit according
to the relevant sections of the May 13, 1992, Federal Register notice
(57 FR 20438) under which they were solicited.

A. Definitions

1. Public and commercial buildings. Many commenters urged EPA to
incorporate the NESHAP (40 CFR part 61 - National Emission Standards
for Hazardous Air Pollutants) definition of ``facility,'' so that
greater consistency might be achieved between the various EPA asbestos
rules. Although EPA is sympathetic to promoting regulatory integration
whenever feasible, the statutory language of TSCA section 202(10)
complicates this attempt. A regulated ``facility'' under the NESHAP
includes residential buildings of more than four units, whereas the
TSCA definition of ``public and commercial building'' includes
residential apartment buildings of 10 or more units. Because EPA's
mandate to issue and revise the MAP comes from TSCA, as amended by
ASHARA, the TSCA definition is controlling. EPA must use the TSCA
definition, even though it is less inclusive than NESHAP.
Other commenters suggested that the definition of the term ``public
and commercial building'' should include ACM that is located both on
the insides and the exteriors of buildings. EPA had earlier examined
this same issue when it promulgated the Schools Rule and the original
MAP pursuant to AHERA. At that time, EPA concluded that when AHERA used
the phrase ``in a school building,'' it meant the interior of the
building, not the exterior (52 FR 41835, October 30, 1987). EPA adopted
that interpretation in the Schools Rule which was in effect when
Congress amended AHERA by enacting ASHARA. EPA believes that Congress
intended the term ``in'' a public or commercial building to be given
the same meaning as ``in'' a school building in the Schools Rule.
Consistent with the approach incorporated in the Schools Rule, training
is required for work in interior areas only, except for exterior
hallways connecting buildings, porticos, and mechanical systems used to
condition interior space.
Several power companies and other industrial/manufacturing concerns
objected to the Agency's proposal to include ``industrial'' buildings
within the scope of the rule. They argued that the public generally
does not have access to these buildings, is therefore not exposed, and
that workers in these industrial buildings are already adequately
protected by the OSHA asbestos standards or the EPA Worker Protection
Rule. The accreditation requirements of the statute, however, clearly
extend to activities in industrial buildings. TSCA section 202(10)
defines ``public and commercial buildings'' expansively to mean ``any
building which is not a school building, except the term does not
include any residential apartment building of fewer than 10 units'' (15
U.S.C. 2642(10)) (emphasis added). The statutory definition includes
all buildings with only two express exclusions for school buildings and
residential buildings. Industrial buildings clearly do not qualify for
either exemption. Thus, they fall within the category of any other type
of building that is encompassed by the term ``public and commercial
building.'' Moreover, when Congress enacted ASHARA, it relied, in part,
upon EPA's assessment of risk in public and commercial buildings, an
assessment that included industrial buildings. EPA's 1988 Report to
Congress on Asbestos in Buildings specifically identified industrial
buildings as one of the types of structures included under the TSCA
definition of ``public and commercial buildings'' (Report to Congress,
page 2). Further, the inclusion of industrial buildings in the category
of buildings where training is required is consistent with the purpose
of ASHARA to protect workers as well as the public.
In extending the MAP training and accreditation requirements to
public and commercial buildings under the ASHARA mandate, EPA
recognizes that the revised MAP will now apply to activities in
buildings that may be subject to the specific training requirements of
other Federal asbestos regulations. This includes the competent person
training requirements under the OSHA Asbestos Standard (29 CFR 1926.58)
and the EPA Worker Protection Rule (40 CFR 763.121), the on-site
representative training requirements under the asbestos NESHAP (40 CFR
61.145), and the training requirements for designated persons and
operations and maintenance personnel found in the Schools Rule (40 CFR
763.84- 763.92). EPA wishes to clarify that a person subject to the
accredited training requirements of the MAP will also remain subject to
the applicable training requirements of these other asbestos rules.
Compliance with the MAP does not automatically relieve a person of
responsibilities under other asbestos rules.
2. Friable ACM. Several commenters, citing the need for regulatory
consistency between schools and public and commercial buildings, urged
the Agency to preserve the concept of friable ACM which had been
applied in the Schools Rule. EPA agrees with this approach because it
is consistent with the statutory mandate and because consistency
between the Schools Rule and the MAP is desirable. Both rules must
comply with the same TSCA section 202(6) definition of friable ACM.
Thus, the Agency has incorporated that definition into the MAP. This
ties the definition to ACBM that is or may become friable.
3. Inspection. Among those commenting on this issue, most expressed
support for the broadest possible definition of ``inspection,'' that
would embrace all eight of the options outlined in the May 13, 1992
Federal Register notice (57 FR 20438). This expansive approach would
not only extend accreditation requirements to include general
environmental hazard assessments for insurance and real estate
purposes, but also would specifically extend those requirements to all
of the inspection-type activities required by other asbestos rules such
as the Schools Rule, NESHAP, the EPA Worker Protection Rule and the
OSHA Asbestos Standard. EPA believes that such an all encompassing
definition is not warranted based upon risk, and would therefore result
in unnecessary costs (see OPPTS Docket No. 62107, Log Nos. C1-025, C1-
035, C1-038). EPA has elected a more targeted approach which focuses on
both the object and the activity of inspecting for asbestos. The
statute limits the accreditation requirement to those persons who
``inspect for ACM in school buildings...or in a public or commercial
building'' (15 USC 2646 (a)(1)). EPA has adhered to this statutory
language, and required accreditation only for those persons who inspect
or reinspect specifically for ACBM. This would include, however, an
inspection undertaken pursuant to NESHAP (40 CFR 61.145(a)) in a
school, or public and commercial building, where the building owner or
operator is required to thoroughly inspect the building for the
presence of asbestos prior to commencing a demolition or renovation
activity. Similarly, inspections required by other regulations would
also be subject to accreditation, if the inspection, as defined in the
revised MAP, included a component that was specific to ACBM, and was
conducted within a school, or public and commercial building subject to
the revised MAP. This includes more general inspection-type activities
(e.g., environmental assessments) where asbestos is one of several
potential hazards or materials that are being looked for or examined.
Regardless of what other activities a person may be undertaking, if the
person is inspecting for ACBM in a school, public, or commercial
building, that person must be accredited to perform the asbestos
inspection component of that activity. Conversely, if a person is
performing an environmental assessment or building inspection that does
not include an asbestos inspection component, that person does not
require asbestos accreditation to perform that activity.
As described earlier in Unit II.A.3. of this preamble, other
specific exceptions to the inspection accreditation requirement
include; (1) persons performing periodic surveillance of the type
described in 40 CFR 763.92(b), (2) compliance-related inspections
performed by employees or agents of Federal, State or local government,
and (3) visual inspections of the type described in 40 CFR 763.90(i)
for purposes of determining the completion of a response action.
4. Response action. Commenters overwhelmingly supported a
definition for response action that would treat this term the same way
both for schools and for public and commercial buildings. EPA agrees
with this approach because it provides regulatory consistency between
the MAP and the Schools Rule. Because many of the same contractors will
be performing abatement work in both schools and public and commercial
buildings, the use of the same standard for both will further promote
comprehension of and compliance with the new accreditation
requirements. The definition in the revised MAP is therefore the same
as that which appears in the Schools Rule. Consequently, if a response
action were undertaken in a school, and the same activity was then
undertaken in a public or commercial building, both activities would be
considered response actions, and both activities would be required to
engage the services of accredited workers unless specifically excluded
under the exemption for small-scale, short-duration activities. It
should be noted, however, that there are other aspects relating to the
conduct of response actions which may be different for schools than for
public and commercial buildings. One example would be the requirements
found at 40 CFR 763.90 for air clearance at the completion of a
response action which are applicable to such activities in schools but
not in public and commercial buildings.
5. Small-scale, short-duration activities (SSSD). A majority of
commenters supported the extension of the existing Schools Rule
training exemption for SSSD work in schools to public and commercial
buildings (see 40 CFR 763, Appendix B to Subpart E). EPA agrees with
the use of this exemption in the revised MAP, because it both preserves
regulatory consistency and promotes compliance with the statute. Also,
absent such a threshold exemption, a great many persons involved in
operation and maintenance-type activities in buildings would have to be
specially trained, regardless of risk.
6. Major and minor fiber release episodes. A common theme among
those commenting on the prospective incorporation of an SSSD exemption
into the MAP was that this concept lacked clarity, and was therefore
difficult to interpret and apply. EPA is responding to this concern in
two ways. First, by using the existing SSSD exemption from the Schools
Rule, the MAP will apply the same accreditation exemption to all
buildings (schools and public and commercial buildings) and thereby
minimize any potential confusion among the regulated community.
Secondly, by adding the definitions of major and minor fiber release
episodes, the Agency is seeking to provide the clearest possible
meaning to this exemption while keeping it entirely within the
framework established by the Schools Rule.

B. Phased Implementation

1. States. Several State commenters expressed concern that an
allowance of 180 days following their next legislative session would
not provide them with sufficient time to upgrade their programs in
keeping with the increased training requirements of ASHARA. Although
EPA acknowledges the difficulties inherent with transitioning
established State programs, the changes were mandated by Congress when
it enacted ASHARA. Furthermore, the relatively short timeframes
established in ASHARA for EPA to implement these training mandates
clearly communicated a desire and intent for prompt action. For these
reasons, EPA believes that it is reasonable to allow States a
comparable amount of time to come into compliance with the revised MAP
as had been allowed for under the original MAP. This provides each
State with an allowance of 180 days following the convening of their
next regular legislative session to adopt a State accreditation plan
that is no less stringent than the revised MAP. For some States with
legislatures that meet every year, this means they will have a period
of time not less than 6 months in which to implement these changes. For
other States whose legislatures meet every other year, it means these
States might have as long as 30 months to effect the changes.
2. Training course upgrades. Most commenters supported the 6-month
compliance deadline for training course upgrades which EPA had
proposed. They also supported self-certification on the part of
training entities as an efficient and practical way of quickly
implementing the new standards. Other commenters, however, contended
that the 6-month deadline was either too short or too long, and
expressed concerns about the ability of EPA and/or the States to
properly audit these upgraded training programs. EPA considers the
course upgrades prescribed in the revised MAP to be fully achievable
within a 6-month timeframe. The revisions directly affect only 3 of the
5 basic courses, and none of the refresher courses. The initial worker
and contractor/supervisor training courses must each incorporate 1
additional day of hands-on training and the initial project designer
courses must expand their curriculum to incorporate the 6 additional
items specified in the revisions. The original training provider self-
certifications under ASHARA will be submitted directly to EPA's
Headquarter's Office in Washington, DC., so that this data can be
quickly compiled at the national level and integrated with existing
data bases. This simplified and centralized process expedites course
upgrades to ensure that the new training courses will be widely
available within a short period of time. EPA and/or the States may then
follow-up with field audits of these training programs as resources
permit.
3. Accredited persons. Most commenters expressed support for the
Agency's proposal to grandfather in all those persons who are in
possession of valid accreditation as of the day before the effective
date of the revised MAP. Many also suggested that everyone else should
be allowed more than 6 months to obtain valid accreditation based upon
the increased ASHARA training requirements. In contrast, a few
suggested that a transition period of less than 6 months would be
sufficient. Because of the fairly simple adjustments needed to upgrade
training courses, and because EPA is providing an expedited procedure
(through self-certification) for purposes of obtaining course provider
upgrade approval, the Agency considers the 6-month deadline for
obtaining new accreditation to be adequate. Persons who are already
accredited on the date the revised MAP takes effect are not directly
impacted by it. Upon reaching their annual expiration date, they will
take their annual refresher training course, as before, and their
accreditation will be extended for an additional year. Persons seeking
new accreditation on and after the effective date of the revised MAP,
however, will need to complete either an existing course that complies
with the original MAP and thereby obtain provisional accreditation, or
an upgraded course that complies with the revised MAP to obtain regular
accreditation. If a person takes an existing course, that person will
have to complete the upgraded training course within 6 months after the
revised MAP takes effect in order to sustain their accreditation and
continue working. This provision helps ensure that anyone needing to
obtain initial accreditation during the period of transition between
the original MAP and the revised MAP will have the opportunity to do
so.
Several commenters suggested that the MAP requirements for
refresher training should also be increased along with the basic
requirements. This might be accomplished by either extending the length
of mandatory refresher training, or expanding its curriculum, or both.
EPA does not agree with this position, however, and believes that
actual work experience is at least equivalent to requiring additional
hands-on training as a basis for reaccreditation. At the time of
refresher training, most accredited persons should have already
acquired on-the-job experience at least equivalent to what this
refresher hands-on training might otherwise provide.

C. Distinct Training Disciplines

While a majority of commenters agreed with the general principle of
separate training courses, many also believed that an exception should
be made in the case of combined worker/supervisor training. These
parties pointed to the common elements in the prescribed training
curricula for these two disciplines as the primary reason for allowing
joint training. In this view, workers and supervisors would attend the
same course, with the contractor/supervisors coming back for 1
additional day of training after the worker curriculum had been
completed. Although EPA permitted this accomodation for a period of
time under the original MAP, the Agency has now decided that, in light
of the Congressional mandate to strengthen and improve asbestos-related
training programs, contractor/supervisors may no longer obtain
accreditation by attending the same training course as workers with a 1
day add-on. Contractor/supervisors have markedly different job
functions and responsibilities than workers. While many training
elements are common to these two disciplines, each discipline requires
presentation at a different degree of complexity and level of detail,
depending upon whether a person is in training to become a worker, or
in training to become a supervisor. An on-site foreman, unlike a
worker, must know how each of the workers should perform his/her
individual assigned tasks, and must also comprehend the total job to be
done. As a result, a contractor/supervisor requires more in-depth
training on each of the training elements than does a worker. By way of
illustration, ``regulatory review'' is one curriculum training element
that is common to both the worker and the supervisor courses. Where a
worker must have a general understanding of the bounds established by
asbestos regulations, the supervisor, as the on-site person responsible
for regulatory compliance, must have a much greater depth of knowledge
regarding these rules and the methods of complying. If supervisors
attend the same training course as workers, and are provided the same
lecture on ``regulatory review,'' not only is it likely that the
workers in this class will get more regulatory training than they need
(and possibly less of something else more relevant to their jobs), but
more importantly, the supervisors will not get the right mix of subject
matter depth and breadth. EPA believes, therefore, that the best way to
ensure that contractor/supervisors receive the specialized training
they need is to keep their training courses separate and distinct from
those of workers.
EPA believes, however, that it is permissible to allow an
accredited contractor/supervisor to perform in the role of an
accredited worker without possessing separate worker accreditation.
Separate worker accreditation is unnecessary because the contractor/
supervisor must essentially know all that the worker knows and more,
and the contractor/supervisor has also completed more training than the
worker (5 days as opposed to 4 days).
The situation is different, however, with respect to dual
accreditation for contractor/supervisors and project designers. Because
these two training disciplines share little in common, EPA is now
eliminating the original MAP provision whereby persons completing
contractor/supervisor initial training could obtain dual accreditation
to work as both contractor/supervisors and project designers. After the
effective date of the revisions, all persons must take separate initial
and refresher training that is specific to their discipline in order to
obtain or retain valid accreditation.

D. Increased Training Requirements

EPA had solicited public comment on the number of additional hours
of training that would be appropriate for the revised MAP because
ASHARA had left this amount unspecified. Whereas commenters suggested a
variety of ways in which this might be accomplished, many expressed
support for EPA's proposal to require one additional 8-hour day of
hands-on training for the worker and the contractor/supervisor initial
training courses respectively. The length of all other training courses
is not affected by the revisions. There are a number of distinct
advantages to EPA's approach: (1) All MAP training courses would be
limited in length to no more than one 5-day business week, a period of
time adequate to accomplish the requisite training, (2) existing
training course materials would remain relevant and not require
extensive modifications, (3) additional hands-on training should
appropriately be given to those persons who actually perform hands-on
abatement work (i.e., workers and contractor/supervisors), and (4) the
addition of 8 hours of hands-on training (on top of 6 hours that are
already required) should be relatively simple for providers to achieve,
yet affords them a degree of flexibility in deciding how to go about
doing it (i.e., in selecting the particular hands-on activities to be
practiced or exercised).
Several commenters with experience in training, representing, or
employing asbestos workers agreed that 8 additional hours of hands-on
training for workers and contractor/supervisors was advisable. They
noted that the additional day of training was necessary to allow
workers to practice their jobs under actual working conditions, to gain
necessary experience in performing tasks such as erecting and
dismantling containment barriers, glovebagging, and scaffolding, and in
working inside containment areas, or while wearing personal protective
equipment, or in other common workplace situations (see OPPTS Docket
No. 62107, Log Nos. C1-016 and C1-020). Commenters also noted that the
additional day of hands-on training would help acclimatize workers
without risk of exposure, and also would eliminate complaints regarding
the need for on-the-job training (OPPTS Docket 62107, Log Nos. C1-020
and C1-064).

E. Expanded Project Designer Curriculum

A majority of commenters agreed with EPA's proposal to broaden the
prescribed project designer training curriculum to include six
additional lecture elements without extending the minimum required
length of the course. The six elements have therefore been added, and
include: (1) The need for, and methods of preparing a written project
design, (2) techniques for completing an initial cleaning of the work
area, (3) increased emphasis on the rationale behind establishment of
functional spaces, (4) the need for written diagrams and methods of
diagraming all containment barriers, (5) the need for a written
sampling rationale for air clearance, and (6) clarification of what
constitutes a complete visual inspection. These revisions have each
been incorporated as additions to the initial project designer training
curriculum. They will improve the effectiveness of the accredited
training programs, and thereby help to ensure that project designers
will be fully prepared to perform work in both schools and public and
commercial buildings.

F. Withdrawal of Accreditation and Course Approval

Broad support also was expressed for EPA's proposal to incorporate
minimum Federal criteria for proceedings relating to the
deaccreditation of persons and the withdrawal of approval from
accredited training courses, and to adopt standardized procedures for
such actions. These changes had been proposed to: (1) Promote greater
consistency and predictability nationwide, and (2) clarify the manner
by which EPA might directly deaccredit individuals or training courses
without reliance upon State authority or activity. The criteria have
therefore been promulgated as minimum Federal criteria which the States
must match or exceed in their own programs. The procedures govern EPA
activities only; the States being left free to adhere to their own
internal administrative procedures pursuant to State law.

G. Recordkeeping Requirements for Training Providers

Several commenters stated that a records retention period longer
than 3 years would be preferable for compliance verification purposes.
EPA, however, consistent with other TSCA recordkeeping requirements
(i.e., 40 CFR 704.11 and 761.180), regards a minimum 3-year retention
period as adequate for this purpose, and appropriate when consideration
is given to the costs associated with records maintenance. These 3
years are adequate to ensure that records will be available for anyone
who needs to verify either initial or refesher accreditation status.
Even if a person obtained initial accreditation, and then took
advantage of a full 12-month grace period before obtaining refresher
training, the 3-year retention requirement would ensure that the
training provider has the records to verify the initial accreditation.
A number of training providers also expressed concerns about
access; surmising that if their records were opened in an unrestricted
manner to the public, that such providers would become vulnerable to
burdensome or harrassing requests. They did not object, however, to
training provider records being open to EPA and the States (see OPPTS
Docket No. 62107, Log No. D1-001). EPA accepts this position, and it
has been incorporated into the revisions (see Unit I.F.6. of the
revised MAP). This would not preclude the public from seeking
information directly from the training provider through telephone
inquiries or requests, but would permit training schools to maintain a
measure of flexibility in responding to inquiries.
EPA also had asked for comments about whether training providers
should be required to verify the accreditation status of students
enrolling in their courses. In reply, several training entities
commented that this could present a significant burden that should not
be imposed (OPPTS Docket 62107, Log Nos. C1-019 and C1-041). After
considering this information, EPA agrees, and the revised MAP includes
a recommendation rather than a requirement that training entities
verify the accreditation status of students enrolling in their courses.
Regarding the more general question of whether or not recordkeeping
requirements should be imposed, many commenters acknowledged the need
for this action and expressed support for EPA's position.

H. Accreditation Certificates

While most commenters expressed support for EPA's proposal to
require additional training provider information on accreditation
certificates (i.e., issuer's name, address, and telephone number), a
few suggested that other items might be required as well, including the
name of the course instructor and the photograph, social security
number, and signature of the person to whom accreditation is being
conferred. The Agency does not consider these other items to be
necessary on certificates, because the same information is generally
available through other sources. The names of course instructors are
otherwise provided through the recordkeeping requirements contained in
the revisions, and personal identification items such as photographs,
social security numbers, and signatures are commonly available on the
professional licenses issued by State programs.

I. Miscellaneous

1. Project monitor training and accreditation. Several parties
indicated that EPA should expand the MAP to include mandatory
accreditation for a sixth training discipline, that of ``Project
Monitor.'' The functional role of a project monitor is often specific
to a particular response action; but generally might include: (1)
Monitoring a response action for compliance with contract/job
specifications and regulatory requirements, (2) performing visual
audits of a job site before, during and after a response action is
undertaken, and (3) performing air monitoring as a part of a response
action or for purposes of clearing a response action. Depending upon
the particular mix of activities undertaken by the project monitor,
this person might otherwise require accreditation, particularly if they
somehow become directly involved in conducting any part of the response
action. Typically, however, the project monitor is an agent or employee
representing a building owner or manager who is engaged to oversee a
contractor's performance of a response action in a school or public or
commercial building. These commenters argue that because such persons
are already widely used, steps should be taken to ensure a minimum
level of competency.
ASHARA did not grant the Agency a clear mandate to enlarge the
scope of federal accreditation to include additional training
disciplines. Furthermore, implementing this course would necessitate
more extensive changes to State programs and statutes, a consequence
which would hinder State efforts to comply with ASHARA. For these
reasons, EPA has incorporated a recommended training curriculum for
such persons into the revised MAP and is urging States to consider
adopting this curriculum for purposes of requiring project monitor
accreditation under State law or regulation. Such State laws would not
mandate that project monitors be used in every instance, but rather,
would require their accreditation whenever a building owner or manager
elected to employ the services of a project monitor. This curriculum
was developed in 1992 through a roundtable discussion which involved
numerous affected interests outside of EPA. The document which emerged
from this process, entitled Whitepaper on the Development and
Implementation of Asbestos Abatement Project Monitor Training (March
20, 1992), outlined a recommended 5-day training program. Even where
States choose not to require accreditation under their State Plans for
such persons, EPA recommends that training entities consider offering
this course, and suggests that professionals working in this capacity
seek out and obtain this or equivalent training.
2. Operations and maintenance training and accreditation. A few
commenters suggested that persons responsible for SSSD operations and
maintenance (O&M) activity involving ACBM should be subject to MAP
training and accreditation requirements. They noted that while
Sec. 763.92(a) of the Schools Rule requires school maintenance
personnel to take special ``awareness'' training, and, in some
instances, additional O&M training, the MAP would not require training
for all maintenance personnel in public and commercial buildings.
This difference in training requirements is based upon the
statutory training scheme that Congress established in Title II of
TSCA. Both the language of the statute, and the legislative history of
AHERA and ASHARA support EPA's decision not to require MAP
accreditation for all O&M personnel in public and commercial buildings.
When Congress enacted AHERA in 1986, it required MAP training and
accreditation for persons who conducted response actions, but excluded
certain types of O&M activities from the MAP training requirement (15
U.S.C. 2643(f), 2644(c), and 2646(a)(3)). It also required EPA to
promulgate rules to regulate O&M programs in schools, and required
local education agencies to develop and implement O&M plans, and to
provide for the education of service and maintenance personnel with
respect to asbestos-containing material.
EPA promulgated the Schools Rule pursuant to AHERA. The Schools
Rule does not require full MAP training and accreditation for all O&M
workers, but does require it for any person in a school who: (a)
Conducts a response action other than a SSSD activity (40 CFR
763.90(g)); (b) performs a maintenance activity that disturbs friable
ACBM, other than a SSSD activity (40 CFR 763.91(e)); or (c) conducts a
response action for a major fiber release episode (40 CFR
763.91(f)(2)(iii)).
In addition, the Schools Rule requires less extensive training for
O&M school employees that are not performing an activity that falls
within one of the three categories (40 CFR 763.92(a)). This last
category of O&M employee does not have to be accredited.
Subsequently, in 1988, Congress amended AHERA, and created a new
provision of TSCA, section 215, specifically to codify the O&M training
requirements of the Schools Rule (15 U.S.C. 2655). Now, TSCA section
215 requires ``proper training'' for school employees who conduct O&M
activities in a school (15 U.S.C. 2655(b)).
In 1990, Congress further modified TSCA asbestos training
requirements when it enacted ASHARA. Congress expanded the MAP training
requirements to cover persons working in public and commercial
buildings, but it did not require MAP training and accreditation for
all persons who perform O&M activities in such buildings. First,
Congress left intact the original language in TSCA section 206(a) that
exempts many persons who conduct O&M response actions from MAP training
and accreditation requirements in both schools and public and
commercial buildings (15 U.S.C. 2646(a)(3)). In the second place,
Congress chose not to expand the coverage of TSCA section 215 and
require limited training for O&M employees in public and commercial
buildings. Finally, unlike the original AHERA that governs schools,
Congress did not require EPA to promulgate rules regulating O&M
programs in public and commercial buildings, nor did it require
employers in such buildings to provide for the education of service and
maintenance personnel with respect to asbestos-containing material.
In keeping with these Congressional actions, EPA has not required
MAP training and accreditation for every O&M worker in public and
commercial buildings. Rather, the revised MAP requires MAP
accreditation where O&M workers are most at risk. O&M personnel must
obtain MAP accreditation when conducting a response action, including a
maintenance activity that disturbs friable ACBM, unless that activity
is a SSSD activity, or when conducting a response action for a major
fiber release.
3. Management plans for public and commercial buildings. A few
commenters, noting that ASHARA section 15(a) specifically omitted
management planners from the accredited disciplines being extended to
public and commercial buildings, suggested that management plans should
otherwise be required for such buildings. Although EPA, consistent with
its manage-in-place policy articulated in the ``Green Book'' guidance
(see Managing Asbestos In Place: A Building Owner's Guide to Operations
and Maintenance Programs for Asbestos-Containing Materials, EPA No.
20T-2003, July 1990), considers management plans to be helpful tools in
preventing asbestos exposures, the Agency is not requiring management
plans for regulated buildings in this revision. ASHARA did authorize
EPA to establish training standards for asbestos workers, but it did
not authorize the Agency to require public and commercial building
owners to conduct asbestos-related work in a particular fashion.
However, for those regulated public and commercial buildings where
asbestos-related problems are identified through inspections, EPA
strongly recommends that plans be prepared for how to address these
issues. EPA's Green Book should prove to be a useful reference in this
respect. The Agency would also suggest that accredited management
planners be engaged for purposes of developing such plans to ensure
their adequacy.
4. Use of accredited laboratories. Several commenters expressed
concerns about the prospective quality of analytical work to be
performed with respect to public and commercial buildings, noting that
EPA's announcement of additions and changes under consideration had not
mentioned the use of accredited laboratories for the analysis of bulk
and/or air samples taken from such buildings. TSCA section 206(d)
provides for the establishment of the National Institute of Standards
and Technology National Voluntary Laboratory Accreditation Program
(NVLAP), and stipulates that only laboratories accredited under this
program will be allowed to conduct analyses of asbestos bulk and air
samples taken from school buildings under the authority of local
education agencies (15 U.S.C. 2646(d)). But Congress did not extend
this same requirement to the analysis of bulk or air samples taken from
regulated public and commercial buildings.
EPA strongly recommends that these samples be analyzed by NVLAP-
accredited laboratories because these laboratories have undergone
Federal evaluation and testing and have met stringent performance
standards. Further, EPA urges that asbestos abatement site air be
analyzed by transmission electron microscopy (TEM) prior to building
reoccupancy in a manner consistent with 40 CFR 763.90 (i)(3) and (4).
This position is in keeping with EPA's on-going activity in schools
where the allowance for the use of phase contrast microscopy (PCM) has
been greatly diminished. EPA strongly recommends that abatement site
air clearance samples collected from public and commercial buildings be
analyzed by TEM at NVLAP-accredited laboratories. EPA now considers the
technically superior TEM analysis to be both economical and widely
available. TEM is technically superior to PCM because it is capable of
measuring all asbestos fibers including those thin fibers not measured
by PCM; therefore, TEM is the more stringent analytical tool to be used
for analysis of airborne asbestos during abatement site air clearance.
5. Instructor qualifications. Some commenters were of the opinion
that EPA had not gone far enough in establishing minimum qualifications
for training course instructors. The original MAP stipulated that
instructors needed to have academic training or field experience in
asbestos abatement, yet allowed State programs to adopt their own more
stringent qualification standards. Since promulgation of the original
MAP, many States have elected to institute their own instructor
qualification requirements, a fact which would now complicate any
Federal effort to retroactively establish new minimum standards. EPA
considers this to be an issue best left to the States to decide. So
long as course instructors demonstrate relevant training and
experience, and the knowledge and ability to provide effective
instruction in the prescribed curriculum, EPA will continue to view
such persons as meeting minimum standards. States are encouraged,
however, to review this issue as they upgrade their programs in keeping
with ASHARA.
A related issue had also been raised independently by the General
Accounting Office (GAO) in a May 1991, Report to Congress entitled
``EPA's Asbestos Accreditation Program Requirements Need
Strengthening.'' In this report, GAO had recommended that EPA assess,
in conjunction with its MAP revision, the need for requiring
individuals working in the asbestos professions to meet
prequalification and experience standards. Although EPA responded to
this comment by reevaluating this issue and discussing it with affected
organizations, the fact that at least 17 States had already adopted
widely varying prequalification standards posed a potentially
significant obstacle (Source: State Asbestos Programs Related to AHERA;
A Survey of State Laws and Regulations. National Conference of State
Legislatures. September, 1992) (OPPTS Docket No. 62107, Log No. B1-
024). These States had established their own prequalification standards
for asbestos control professionals in response to EPA's earlier
recommendation (contained in the original MAP) that they should
consider doing so. Consequently, any action by EPA to retroactively
impose new Federal minimum standards would add to the cost and
difficulty of transitioning these State Programs into compliance with
the revised MAP. Such an outcome would not be helpful in promoting
ASHARA's objective to achieve a decentralized program administered by
the 50 States. For this reason, EPA decided not to require new minimum
prequalification standards in the revised MAP. Nonetheless, in support
of this goal, EPA has increased its experience requirements through
incorporation of an additional day of hands-on training in both the
initial worker and contractor/supervisor training programs, and is
renewing/continuing its recommendation that States adopt other
appropriate prequalification standards of their own.
6. Foreign language courses. Several commenters suggested the need
for specific requirements or accomodations for foreign language
courses, citing the significant numbers of non-English speaking persons
who are now seeking accredited training. EPA policy permits approved
worker training courses in languages other than English so long as the
course instruction, all of the course materials, and the course
examination are each presented in the same foreign language. Given the
lack of a uniform distribution of non-English speaking persons
nationwide, with different languages prevailing in different regions of
the country, the MAP will continue to allow States to adopt their own
standards and procedures in this regard to address their individual and
unique circumstances. EPA does, however, urge States to address these
issues, and to accomodate the needs of their respective non-English
speaking populations.
7. Standard forms. Some commenters remarked that the use of
standardized forms for purposes of inspection reports and management
plans would not only contribute to greater consistency and
professionalism among accredited persons working with these tools, but
might also facilitate the development of reciprocal arrangements
between State programs. EPA agrees with these comments, and has
incorporated specific recommendations into the training curricula for
both inspectors and management planners which are aimed at promoting
greater usage of standardized forms. EPA recommends that States
consider the utility of adopting requirements for the use of
standardized forms as an integral part of their asbestos regulatory
programs.
8. Federal recognition of State programs. Several State commenters
indicated that it is beneficial for a State to formally apply for and
obtain Federal recognition of its accreditation plan. TSCA Title II
specifically requires States to adopt accreditation plans that are no
less stringent than the MAP, but does not require them to obtain formal
EPA approval. Even though EPA approval is not statutorily required, it
is beneficial. Where a State adopts and implements an accreditation
program but does not obtain EPA approval, it is difficult for the
industry and other States to determine whether such a State program
complies with minimum Federal requirements and thus has the authority
to issue TSCA accreditation. Where a person obtains a license from an
unrecognized State, that person's credentials may not be readily
accepted by an employer, a contractor, or another State in which the
person might seek to find work, because absent EPA's approval, there is
uncertainty about whether such a person is properly accredited. In
contrast, EPA's approval of a State effectively resolves all of this
uncertainty. EPA agrees with these comments, and strongly recommends
that all States seek formal EPA approval of their accreditation
programs.
9. Grace period for accreditation reinstatement. Other comments
were received regarding whether there should be a ``grace period''
during which a person can complete refresher training within 12 months
of their certificate expiration date and have their accreditation
reinstated. Such a person would not be required to retake the full
initial training program for that discipline. Some States expressed
support for this approach, while one suggested there should be a
penalty for persons who fail to obtain their refresher training on-time
(i.e., before the certificate expiration date). EPA believes that the
12-month grace period is appropriate. If a person takes their refresher
training too early in their accreditation year, they are penalized
through a shortening of what would otherwise be a 12-month period. If
they are unable to enroll in a refresher course precisely when they
need it, at a location which is convenient, the grace period allows
them the opportunity to take the course at a later, more convenient
time. During the 12-month grace period, however, it should be
emphasized that the person is not accredited, and may not otherwise
perform the work that requires accreditation until they complete their
refresher training. EPA views this as being a sufficient penalty for
not obtaining the required refresher training in a timely manner.
Because the 12-month grace period has proven helpful to the industry,
and effective in preserving a sizeable, accredited workforce
nationwide, the Agency plans to not only continue this procedure, but
also to encourage States to adopt it for their programs as well.
Consequently, the revised MAP now contains a formal recommendation that
State programs take this approach.
10. Accreditation program adoption by the U.S. Department of
Defense. In commenting on EPA's proposed changes to the MAP, the
Department of the Navy noted that it operates its own in-house asbestos
training program which it believes complies with the accreditation
requirements of the MAP. For this reason, the Navy suggested that EPA
might formally review and approve the Navy's training program so that
Defense Department employees could become accredited through the
Defense program, and therefore not need separate accreditation from a
State.
ASHARA requires accreditation for all persons who perform certain
types of asbestos-related work in public and commercial buildings, and
defines that type of building very broadly. As a result, EPA has
concluded that Federal employees who perform inspections or design or
conduct response actions in government buildings must be accredited.
Under section 203(l) of TSCA, the Secretary of Defense is
authorized to act in lieu of a State Governor with respect to any
school operated under the Defense Dependents' Education Act of 1978 (20
U.S.C. 921 et seq.). This authority allows the Secretary of Defense the
opportunity to adopt its own accreditation program no less stringent
than the EPA MAP for the purpose of accrediting Defense Department
employees performing asbestos-related work in these schools. Although
this might be accomplished in cooperation with EPA, the statute does
not make the validity of the Defense Department's plan for schools
contingent upon EPA approval.
ASHARA, however, did not extend this accreditation authority given
to the Secretary of Defense to cover Defense Department employees
performing asbestos-related work in public and commercial buildings.
With respect to the Navy's in-house training courses, the Navy may
apply for approval of its training courses in the same manner as any
other training provider. This would permit the Navy to accredit any of
its employees who might complete these approved training courses.
However, because EPA is no longer accepting new courses for review and
contingent approval (see 54 FR 38802), only those States with
accreditation programs no less stringent than the MAP are in a position
to grant approval for such courses.

IV. Economic Impact

The regulatory impact analysis estimates the costs and benefits
attributable to this regulation. Because this regulation is an
amendment to a current regulation, the costs and benefits are
incremental, estimating the additional effect of the regulation with
respect to the current regulation.
The costs associated with this regulation are quantified; the
benefits are discussed in qualitative terms and are expected to be of
significant importance. EPA believes this rule achieves the benefits
mandated by Congress at a modest cost. The rule affects training
providers, asbestos workers, asbestos abatement and inspection
companies, building owners, general building workers and occupants,
State governments, and the Federal government.
The benefits associated with this rule involve reductions in
exposure to asbestos fibers due to the use of knowledgeable individuals
to work with asbestos and the use of safer work practices. The
increased training requirements are expected to increase the knowledge
of the trained individuals. The population most affected by this
regulation is the asbestos professionals engaged in inspections and
abatements, of which there are about 200,000 individuals who are
required to be trained under this regulation for work in public and
commercial buildings. These individuals are expected to benefit the
most from this regulation due to the amount of time spent working with
ACBM. EPA estimates that there are 0.4 to 1.2 million public and
commercial buildings with ACBM, in which there are between 14 and 43
million employees and workers who will gain a greater degree of
protection either through the use of trained contractors or their own
education. Other employees and building occupants will gain a greater
degree of protection through the use of appropriate and correctly
applied work practices.
The costs associated with this rule are well documented. Upgrading
courses, retaining records, and allowing access to records increase
costs for training providers. Most of these costs are passed through in
the form of higher charges for the courses that are offered. In the
first year, EPA estimates that the overall increase in course costs
would be between $2.3 million and $14.2 million. Training provider
burden for recordkeeping and allowing access to their records would be
$200,000 to $250,000 for the first year.
Training providers estimate that 70 percent of the asbestos-related
abatement work done in public and commercial buildings already uses
trained individuals. An analysis of the supply and demand of accredited
asbestos professionals in each of the four disciplines extended to
public and commercial buildings illustrates that the national supply is
sufficient to accommodate the anticipated demand. Early estimates of
supply and demand for project designers suggested a potential for
shortfall, and this conclusion provided a basis for delaying
implementation of this rule (57 FR 1913, January 16, 1992).
This rule requires the owners of public and commercial buildings to
utilize accredited workers to inspect for ACBM, and to design and
carry-out response actions with respect to friable ACBM, unless
exempted under the SSSD threshold. EPA believes that most building
owners will elect to hire outside contractors rather than train their
own people to comply with this requirement, resulting in an annual cost
of $2 million to $45 million for the estimated 374,000 to 1.23 million
buildings which will be affected.
Both State and Federal governments incur costs due to this rule.
For the first year, State governments incur a cost of just under $4
million, while EPA incurs a cost of between $70,000 and $130,000. These
costs are due to updating and reviewing State programs and reapproving
training courses.
Overall costs for the first year for this rule are estimated to be
between $8 million and $64 million. These costs are summarized below.
Discounting over a 20-year period at 7 percent yields a present value
cost estimate between $33 million and $458 million.

First Year Costs of the MAP Revision Interim Final Rule
(millions 1991 dollars)
------------------------------------------------------------------------
Low
Cost Category Estimate High
Estimate
------------------------------------------------------------------------
Incremental Course Costs 2.3 14.2
Building Owner Costs over SSSD Threshold 2.2 45
Training Provider Burden 0.2 0.3
State Regulatory Burden 3.6 3.9
EPA Regulatory Burden 0.1 0.1
TOTAL 8.4 63.5
------------------------------------------------------------------------

The Agency's complete economic analysis is available in the public
record for this rule (OPPTS Docket No. 62107, Log No. B1-001).

V. Administrative Record

EPA has established an administrative record for this rule which
has been designated OPPTS Docket No. 62107, and is located at the
following address: Environmental Protection Agency, Rm E-G102, 401 M
St., SW., Washington, DC 20460. This record is available for review and
copying from 8 a.m. to noon and 1 to 4 p.m. Monday through Friday,
excluding legal holidays.
The record includes public comments and other information
considered by EPA in developing this rule. Any new comments received as
a result of this notice will be added to the existing docket for this
action.

VI. References

The following references have been included in the record:
(1) USEPA. ``Asbestos in Buildings: Simplified Sampling Scheme for
Friable Surfacing Materials,'' EPA/5-85-030a. October 1985.
(2) USEPA. Friable Asbestos-Containing Materials in Schools:
Identification and Notification (40 CFR Part 763 Subpart F).
(3) USEPA. National Emission Standards for Hazardous Air
Pollutants: Amendments to Asbestos Standard; Final Rule (40 CFR Part 61
Subpart M).
(4) USDOL. OSHA. Occupational Exposure to Asbestos, Final Rule (29
CFR 1926.58).
(5) USEPA. Toxic Substances; Asbestos Abatement Projects; Final
Rule (40 CFR Part 763 Subpart G).
(6) USDOL. OSHA. Occupational Safety and Health Standards, Subpart
I, Personal Protective Equipment (29 CFR 1910.134).
(7) USEPA. ``Managing Asbestos in Place: A Building Owner's Guide
to Operations and Maintenance Programs for Asbestos-Containing
Materials,'' EPA/20T-2003. July 1990.
(8) USEPA. ``EPA Study of Asbestos-Containing Materials in Public
Buildings: A Report to Congress.'' February 1988.
(9) USEPA. ``Interim Rule to Revise the Asbestos Model
Accreditation Plan: Draft Regulatory Impact Analysis.'' July, 1993.

VII. Regulatory Assessment Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB)). Under section 3(f), the order defines a ``significant
regulatory action'' as an action that is likely to result in a rule (1)
Having an annual effect on the economy of $100 million or more, or
adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities (also
referred to as ``economically significant''); (2) creating serious
inconsistency or otherwise interfering with an action taken or planned
by another agency; (3) materially altering the budgetary impacts of
entitlement, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raising novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, it has been
determined that this rule is not ``significant'' and is therefore not
subject to OMB review.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), the
Administrator certifies that this revised rule will not have a
significant impact on a substantial number of small businesses.
Virtually all of the States already have some type of asbestos
certification program now in effect. Nationwide, many thousands of
persons are presently completing accredited training programs each
year. A discussion of EPA's analysis of the economic consequences of
this interim final rule appears in Unit IV. of this notice.

C. Paperwork Reduction Act

OMB has approved the information collection requirements contained
in the existing rule under the provisions of the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.), and assigned OMB control number 2070-
0091. The information collection requirements included in this rule
that differ from those previously approved, have been submitted to OMB
as an amendment to OMB control number 2070-0091. Upon OMB's approval of
this amendment to the existing approval, EPA will publish a notice in
the Federal Register announcing such approval.
This collection of information requires training providers and
States to respond. For training providers, public reporting for this
collection of information is estimated to average 42 hours per
response. This includes the time for reviewing the regulation, making
required changes to training programs, preparing and submitting a self-
certification package, maintaining records, and providing access to
those records. There is no recordkeeping burden associated with
maintaining the records as their maintenance is usual and customary
business practice.
For States, public reporting for this collection of information is
estimated to average 402 hours per response. This includes the time for
reviewing the regulation, comparing the new requirements with the
current State program, completing any necessary regulatory or
legislative analysis, adopting new legislation or regulations,
preparing and submitting an application for program approval, and
implementing an updated State program. For States, there is no
recordkeeping burden associated with this collection of information.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden, to Chief, Information Policy Branch (2136); U.S. 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, marked ``Attention: Desk Officer for
EPA.''

List of Subjects in 40 CFR Part 763

Environmental protection, Asbestos, Hazardous substances,
Incorporation by reference, Occupational health and safety,
Recordkeeping, Schools.

Dated: January 24, 1994.
Carol M. Browner,
Administrator.

Therefore, 40 CFR part 763 is amended as follows:

PART 763--[AMENDED]

1. The authority citation for part 763 continues to read as
follows:

Authority: 15 U.S.C. 2605 and 2607(c). Revised subpart E also
issued under 15 U.S.C. 2641, 2643, 2646, and 2647.

2. Appendix C to subpart E, is revised to read as follows:
Subpart E--Asbestos-Containing Materials in Schools
* * * * *

Appendix C to Subpart E - Asbestos Model Accreditation Plan

I. Asbestos Model Accreditation Plan for States

The Asbestos Model Accreditation Plan (MAP) for States has eight
components:
(A) Definitions
(B) Initial Training
(C) Examinations
(D) Continuing Education
(E) Qualifications
(F) Recordkeeping Requirements for Training Providers
(G) Deaccreditation
(H) Reciprocity
A. Definitions
For purposes of Appendix C:
1. ``Friable asbestos-containing material (ACM)'' means any
material containing more than one percent asbestos which has been
applied on ceilings, walls, structural members, piping, duct work,
or any other part of a building, which when dry, may be crumbled,
pulverized, or reduced to powder by hand pressure. The term includes
non-friable asbestos-containing material after such previously non-
friable material becomes damaged to the extent that when dry it may
be crumbled, pulverized, or reduced to powder by hand pressure.
2. ``Friable asbestos-containing building material (ACBM)''
means any friable ACM that is in or on interior structural members
or other parts of a school or public and commercial building.
3. ``Inspection'' means an activity undertaken in a school
building, or a public and commercial building, to determine the
presence or location, or to assess the condition of, friable or non-
friable asbestos-containing building material (ACBM) or suspected
ACBM, whether by visual or physical examination, or by collecting
samples of such material. This term includes reinspections of
friable and non-friable known or assumed ACBM which has been
previously identified. The term does not include the following:
a. Periodic surveillance of the type described in 40 CFR
763.92(b) solely for the purpose of recording or reporting a change
in the condition of known or assumed ACBM;
b. Inspections performed by employees or agents of Federal,
State, or local government solely for the purpose of determining
compliance with applicable statutes or regulations; or
c. visual inspections of the type described in 40 CFR 763.90(i)
solely for the purpose of determining completion of response
actions.
4. ``Major fiber release episode'' means any uncontrolled or
unintentional disturbance of ACBM, resulting in a visible emission,
which involves the falling or dislodging of more than 3 square or
linear feet of friable ACBM.
5. ``Minor fiber release episode'' means any uncontrolled or
unintentional disturbance of ACBM, resulting in a visible emission,
which involves the falling or dislodging of 3 square or linear feet
or less of friable ACBM.
6. ``Public and commercial building'' means the interior space
of any building which is not a school building, except that the term
does not include any residential apartment building of fewer than 10
units or detached single-family homes. The term includes, but is not
limited to: industrial and office buildings, residential apartment
buildings and condominiums of 10 or more dwelling units, government-
owned buildings, colleges, museums, airports, hospitals, churches,
preschools, stores, warehouses and factories. Interior space
includes exterior hallways connecting buildings, porticos, and
mechanical systems used to condition interior space.
7. ``Response action'' means a method, including removal,
encapsulation, enclosure, repair, and operation and maintenance,
that protects human health and the environment from friable ACBM.
8. ``Small-scale, short-duration activities (SSSD)'' are tasks
such as, but not limited to:
a. Removal of asbestos-containing insulation on pipes.
b. Removal of small quantities of asbestos-containing insulation
on beams or above ceilings.
c. Replacement of an asbestos-containing gasket on a valve.
d. Installation or removal of a small section of drywall.
e. Installation of electrical conduits through or proximate to
asbestos-containing materials.
SSSD can be further defined by the following considerations:
f. Removal of small quantities of ACM only if required in the
performance of another maintenance activity not intended as asbestos
abatement.
g. Removal of asbestos-containing thermal system insulation not
to exceed amounts greater than those which can be contained in a
single glove bag.
h. Minor repairs to damaged thermal system insulation which do
not require removal.
i. Repairs to a piece of asbestos-containing wallboard.
j. Repairs, involving encapsulation, enclosure, or removal, to
small amounts of friable ACM only if required in the performance of
emergency or routine maintenance activity and not intended solely as
asbestos abatement. Such work may not exceed amounts greater than
those which can be contained in a single prefabricated mini-
enclosure. Such an enclosure shall conform

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-2281. Public record. Not legal advice.