# Asbestos-Containing Materials in Schools; State Request for Waiver from Requirements > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29378 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** November 29, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 6560-50-F --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-29378. Public record. Not legal advice.