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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 763

OPPTS-62142; FRL-4918-6

Asbestos-Containing Materials in Schools; State Request for

Waiver from Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed waiver.

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SUMMARY: EPA has received from the State of Colorado a request for a

waiver from the requirements of 40 CFR part 763, Subpart E, Asbestos-

Containing Materials in Schools. This document announces an opportunity

for public review and comment on the State waiver request.

DATES: Comments on the waiver request must be received by January 30,

1995.

ADDRESSES: Written comments must be sent in triplicate, identified by

the docket control number OPPTS-62142 to: Christina E. Thomas, Toxic

Substances Branch (8ART-TS), Environmental Protection Agency, Region

VIII, 999 18th St., Suite 500, Denver, CO 80202-2405. Copies of the

Colorado waiver request are on file and may be reviewed at the EPA

Region VIII office.

FOR FURTHER INFORMATION CONTACT: Christina E. Thomas, Toxic Substances

Branch (8ART-TS), Environmental Protection Agency, Region VIII, 999

18th St., Denver, CO 80202-2405, Telephone: 303-293-1713.

SUPPLEMENTARY INFORMATION: This document is issued under the authority

of Title II of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2641,

et seq. TSCA Title II was enacted as part of the Asbestos Hazard

Emergency Response Act (AHERA), Pub. L. 99-519. AHERA is the name

commonly used to refer to the statutory authority for EPA's rules

affecting asbestos in schools. For purposes of this document, EPA will

use the AHERA designation. In the Federal Register of October 30, 1987

(52 FR 41846), EPA issued a final rule as required in AHERA, the

Asbestos-Containing Materials in Schools Rule (40 CFR part 763, Subpart

E), which requires all Local Education Agencies (LEAs) to identify

Asbestos-Containing Building Materials (ACBMs) in their school

buildings and to take appropriate actions to control the release of

asbestos fibers. The LEAs are required to describe their asbestos

control activities in management plans, which must be available to all

concerned persons and submitted to the State Governor's Designee. The

rule requires LEAs to use specially trained and accredited persons to

conduct inspections for asbestos, develop management plans, and design

and conduct actions to control asbestos.

The recordkeeping and reporting burden associated with waiver

requests was cleared under OMB control number 2070-0091. This document

merely announces the Agency's receipt of a waiver request and therefore

impose no additional burden beyond that which was covered under

existing OMB control number 2070-0091. Send any comments regarding the

burden estimate or any other aspect of this collection to Chief,

Information Policy Branch (2136), 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, (``Attention: Desk Officer'').

Under section 203 of TSCA Title II, EPA may, upon request of a

State Governor and after notice and comment and opportunity for a

public hearing in the State, waive in whole or in part the requirements

of the rule promulgated under section 203, if the State has established

and is implementing or intends to implement a program of asbestos

inspection and management which is at least as stringent as the

requirements of 40 CFR part 763 Subpart E. The AHERA rule requests

specific information be included in a waiver request submitted to EPA,

establishes a process for reviewing waiver requests, and sets forth

procedures for oversight and rescission of waivers granted to the

States.

The rule requires States seeking waivers to submit requests to the

Regional Administrator for the EPA Region in which the State is

located. EPA is hereby issuing a notice in the Federal Register

announcing receipt of the request and soliciting written comments from

the public pertaining to the State of Colorado's asbestos waiver

request, and Senate Bill 94-139's impact on the implementation and

enforcement of Colorado's Regulation 8. Comments must be submitted by

[insert date 60 days after date of publication in the Federal

Register]. If during the comment period, EPA receives a written

objection to the State's request, EPA will schedule a hearing to be

held in the affected State after the close of the comment period.

On July 7, 1994, Governor Roy Romer submitted to William

Yellowtail, Regional Administrator, EPA Region VIII, a request for a

waiver under the AHERA 40 CFR 763.98. The request was received by the

Regional Office on July 12, 1994. The State's submittal requested a

waiver from all requirements of 40 CFR part 763, Subpart E.

The State's waiver request was complete in that it contained all of

the following provisions which are required by the AHERA:

1. A copy of the State provisions and proposed provisions relating

to its program of asbestos inspection and management in schools for

which the request is made.

2. The name of the State agency that is responsible for

administering and enforcing the requirements for which a waiver is

requested, the names and job titles of responsible officials in that

agency, and phone numbers where the officials can be contacted.

3. Detailed reasons, supporting papers, and the rationale for

concluding that the State's asbestos inspection and management program

provisions for which the request is made are at least as stringent as

the requirements of 40 CFR part 763, Subpart E.

4. A discussion of any special situations, problems, and needs

pertaining to the waiver request accompanied by an explanation of how

the State intends to handle them.

5. A statement of the resources that the State intends to devote to

the administration and enforcement of the provisions relating to the

waiver request.

6. Copies of any specific or enabling State laws and regulations

relating to the request, including provisions for assessing criminal

and/or civil penalties.

7. Assurance from the Governor or the lead agency that the lead

agency has the legal authority necessary to carry out the requirements

relating to the request.

EPA may waive some or all of the requirements of 40 CFR part 763,

Subpart E if:

1. The State has the legal authority necessary to carry out the

provisions of asbestos inspection and management in schools relating to

the waiver request. The Colorado Department of Public Health and

Environment recognizes that asbestos exposure in schools (and

elsewhere) is a serious concern. The Colorado General Assembly also

recognized this, and during a 1987 legislative session a bill was

passed authorizing the Air Pollution Control Division, Colorado

Department of Public Health and Environment to implement State

requirements under the AHERA, establish a certification program for

abatement contractors, develop and implement asbestos work practices

and exposure standard, collect fees, and levy fines. Effective June 30,

1993, Colorado's revised asbestos regulation required the certification

of all persons engaging in asbestos-related work. The requirement

applies to all public and commercial buildings as well as schools. The

revised regulation also contains more stringent work practices for

asbestos abatement and expands the enforcement capabilities of the

State in regards to false training documents submitted to obtain

certification. The Colorado General Assembly has enacted authority for

the Colorado Air Quality Control Commission to enforce rules and

regulations to minimize the risk to the public from the exposure to

asbestos, including specifically, requirements for asbestos management

plans to be submitted and implemented by schools. All requisite

legislative/legal authority to implement the AHERA waiver program have

been adopted, and no problems are anticipated in meeting waiver

objectives.

2. The State's asbestos inspection and management will be at least

as stringent as the requirements of 40 CFR part 763 Subpart E. The

requirements of Subpart E of 40 CFR part 763 have been adopted in its

entirety, with the exception of Secs. 763.97 and 763.98 into the

Colorado Air Quality Control Commission's Regulation No. 8, Part B,

``Emission Standards for Asbestos'' School Requirements. The State

intends to administer these regulations in a manner that would be at

least as stringent as the requirements of 40 CFR part 763, Subpart E.

3. The State has the appropriate enforcement resources to devote to

the administration and enforcement of the provisions relating to the

waiver request. The State conducts routine AHERA inspections, abatement

inspections and ``for cause'' inspections. Routine AHERA inspections

result in a determination of compliance with the need to have and

implement an adequate, updated management plan. Routine inspections

focus on assessing compliance with the AHERA and State asbestos

requirements, including such things as implementation of appropriate

work practices, compliance with accreditation (State Certification)

requirements and proper recordkeeping. ``For cause'' inspections, are

initiated as a result of tips or complaints, and are made to assess

compliance with any applicable State or EPA asbestos rules. The State

will continue to update its existing Neutral Administrative Inspection

Scheme (NAIS) in support of targeting LEAs and other ``persons'' for

AHERA compliance inspections. The NAIS will include a specific method

or criteria for selecting inspection targets and will comply with EPA's

National Compliance Monitoring Strategies for AHERA. The State has

devoted five full-time employees to the existing TSCA Enforcement Grant

and will continue to devote at least that amount of time to stringently

enforce the requirements of 40 CFR part 763, Subpart E. The State has

completed an enforcement response policy to determine the most

appropriate enforcement action for each violation of the State's laws

and regulations.

4. The State has or will have qualified personnel to carry out the

provisions relating to the waiver request. The program will be carried

out by staff in the Colorado Department of Public Health and

Environment, Air Pollution Control Division. The State is currently

well staffed on the TSCA Asbestos program. The staff is fully trained

and certified as Building Inspector/Management Planners and Contractor/

Supervisors. Two of three staff persons are conducting full AHERA

inspections. One staff person is conducting Worker Protection

inspections and is currently training to conduct full AHERA

inspections. The fourth person administers the grant and works on case

development resulting from inspections.

5. The State will devote adequate resources to the administration

and enforcement of the asbestos inspection and management provisions

relating to the waiver request. Based upon review by the EPA Region

VIII Office, the Agency feels that the Colorado Department of Public

Health and Environment has and will devote adequate resources to

effectively implement and administer the asbestos program in Colorado.

6. When specified by EPA, the State gives satisfactory assurances

that necessary steps, including specific actions it proposes to take

and a time schedule for their accomplishment, will be taken within a

reasonable time to conform with applicable criteria in items 2 through

5 above. Final approval of the program by EPA will require effective

implementation and continued use of the EPA-approved NAIS, logging and

tracking system, enforcement strategy/standard operating procedure,

enforcement response policy, and communication strategy. EPA's final

approval of the State's program will require the State to provide

adequate resources to support the administration of the program.

The reporting and recordkeeping provisions relating to State

waivers from the requirements of the Asbestos-Containing Materials in

Schools Rule (40 CFR part 763) have been approved by the Office of

Management and Budget (OMB) under the Paperwork Reduction Act and have

been assigned OMB control number 2070-0091.

On June 1, 1994, Colorado Governor Roy Romer signed Senate Bill 94-

139 (S.B. 139). S.B. 139 may have an impact on enforcement of

Colorado's asbestos rules and regulations. S.B. 139 appears to create a

statutory privilege for environmental audits and a presumption against

imposition of penalties for voluntary disclosures arising out of an

environmental self-evaluation. EPA is concerned that S.B. 139 restricts

the enforcement options available to the State and, therefore, may not

be as stringent as the AHERA. Prior to making a final decision on

Colorado's request for an AHERA waiver, the State, should clarify S.B.

139's impact on the State's enforcement capabilities. EPA intends to

request a legal analysis from the State on whether S.B. 139 applies to

Colorado's asbestos rules and regulations, and if so, to what extent.

In addition, EPA specifically requests public comment on this issue.

EPA with this document is hereby announcing receipt of the State's

request and soliciting written comments from the public pertaining to

the State of Colorado's asbestos waiver request, and Senate Bill 94-

139's impact on the implementation and enforcement of Colorado's

Regulation 8. Comments must be submitted by January 30, 1995. If during

the comment period, EPA receives a written objection to the State's

request, EPA will schedule a hearing to be held in the affected State

after the close of the comment period.

Dated: November 17, 1994.

Jack McGraw,

Acting Regional Administrator, Region VIII.

[FR Doc. 94-29378 Filed 11-28-94; 8:45 am]

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