Asbestos-Containing Materials in Schools; State Request for Waiver From Requirements; Notice of Final Decision

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 763

[OPPTS-62121A; FRL-4914-6]

Asbestos-Containing Materials in Schools; State Request for

Waiver From Requirements; Notice of Final Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final decision on requested waiver.

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SUMMARY: EPA is issuing a final decision which approves the request of

Louisiana for a waiver from the requirements of 40 CFR part 763,

subpart E, Asbestos-Containing Materials in Schools.

ADDRESSES: A copy of the complete waiver application submitted by the

State is available from the TSCA Public Docket Office. A copy is also

on file and may be reviewed at the EPA Region 6 office in Dallas,

Texas.

TSCA Docket Receipt (7407), Office of Pollution Prevention and Toxics,

Rm. NE-B607, Environmental Protection Agency, 401 M St., SW.,

Washington, DC 20460.

EPA, Region 6 (6T-PT), 1445 Ross Avenue, Dallas, TX 75202-2733.

FOR FURTHER INFORMATION CONTACT: James B. Willis, Acting Director,

Environmental Assistance Division (7408), Office of Pollution

Prevention and Toxics, Rm. E-543B, Environmental Protection Agency, 401

M St., SW., Washington, DC 20460, (202) 554-1404, TDD: (202) 554-0551.

SUPPLEMENTARY INFORMATION: This notice 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 1986 (AHERA), Pub. L. 99519. AHERA is the abbreviation

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

affecting asbestos in schools and will be used in this document. EPA

issued a final rule in the Federal Register of October 30, 1987 (52 FR

41846), the Asbestos-Containing Materials in Schools Rule (the 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.

Under section 203 of AHERA, EPA may, upon request by a State

Governor and after notice and comment and opportunity for a public

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

Schools Rule, if the State has established and is implementing or

intends to implement an ongoing program of asbestos inspection and

management which is at least as stringent as the requirements of the

rule. Section 763.98 (40 CFR 763.98) sets forth the procedures to

implement this statutory provision. The Schools Rule requires that

specific information be included in the waiver request submitted to

EPA, establishes a process for reviewing waiver requests, and sets

forth procedures for oversight and rescission of waivers granted to

States. The Agency encourages States to establish and manage their own

school regulatory programs under the AHERA waiver provisions.

EPA issued a notice in the Federal Register of February 18, 1993

(58 FR 8926), which announced the receipt of a waiver request from the

State of Louisiana, and solicited comments from the public. The notice

also discussed the program elements of the State program, listed

differences between the State program and the AHERA requirements, and

provided EPA's preliminary response to the State on the differences

identified.

No comments were received during the 60-day comment period. No

request for a public hearing was received. Consequently, no hearing was

held.

EPA is required to issue a notice in the Federal Register

announcing its [[Page 18365]] decision to grant or deny a request for

waiver within 30 days after the close of the comment period. The

comment period for this docket closed April 19, 1993. The 30-day review

period may be extended if mutually agreed upon by EPA and the State.

EPA and Louisiana mutually agreed to extend the review period.

The remainder of this document is divided into two units. The first

unit discusses the Louisiana program and sets forth the reasons and

rationale for EPA's decision on the State's waiver request. This unit

is subdivided into three sections. Section A discusses key elements of

the State's program at the time the waiver request was submitted.

Section B enumerates the differences EPA noted between the State's

program and the AHERA requirements as discussed in the February 18,

1993 Federal Register notice, and sets out the State's response to

those differences which EPA subsequently received. Section C gives

EPA's final approval of the waiver request based on the State's

response. The second unit of this notice discusses statutory

requirements of the Paperwork Reduction Act.

I. The Louisiana Program

A. Program Elements

Louisiana Revised Statutes RS 30:2341-2345 and the Asbestos and

Hazardous Material Detection Program RS 40:1749.1 give the Louisiana

Department of Environmental Quality (LDEQ) the authority to regulate

asbestos in schools and State buildings. Provisions in Louisiana's

revised statutes, RS 30:2054, give the LDEQ the authority to regulate

sources of air contaminants. The Louisiana Administrative Code (LAC),

Title 33, Part III, Chapter 27 and Appendix A to Chapter 27 contain the

State provisions for asbestos inspections and management in schools and

State buildings. LAC 33:III.5151 contains the State provisions for

training and accreditation of persons conducting asbestos activities in

facilities.

The LDEQ conducts inspections to ensure compliance with the above

statutes and regulations. LDEQ reviews the management plans submitted

for schools and State buildings. The requirements of the Louisiana

Program are at least as stringent as the Federal AHERA requirements.

Most of the State requirements are, in fact, more stringent than the

Federal requirements in that they are applied to all State buildings

rather than just to schools as in the Federal rule.

B. Resolution of Differences Between State and AHERA

In the February 18, 1993, Federal Register notice, EPA gave its

preliminary comments regarding the differences between the Louisiana

and AHERA requirements. EPA's preliminary comments identified four

differences that needed to be addressed before July 29, 1994. In a

letter on July 28, 1994, LDEQ informed EPA of its correction of those

portions of the State's program. Following are the four differences

between the Federal requirements and the State's program which were

listed in the February 18, 1994 Federal Register notice and the

corresponding responses by the LDEQ:

1. The State's definition of school building does not specifically

mention ``any portico or covered exterior hallway or walkway'' and

``any exterior portion of a mechanical system used to condition

interior space.''

LDEQ response: To address this item the State has expanded its

definition of school building to include, any portico or covered

exterior hallway or walkway and any exterior portion of a mechanical

system used to condition interior space.

2. The State's procedures to be followed for any operations and

maintenance activities disturbing friable ACBMs do not include the

statement ``place the asbestos debris and cleaning materials in a

sealed leak-tight container.''

LDEQ response: The State has expanded its Operations and

Maintenance Activities by adding LAC 33:III.2719.D.6: ``Place the

asbestos debris and other cleaning materials in sealed, clear, leak-

tight containers.''

3. Submission of a management plan for a building that an LEA

begins to use as a school building is not required by the State's

program prior to the building's use as a school.

LDEQ response: To address this concern, LAC 33:III.2723.A.3 has

been modified as follows: ``If a local education agency or the state

government begins to use a building as a school building or state

building more than 90 days after promulgation of this regulation, the

local education agency or the state government shall submit a

management plan for the school building or state building to the

Department of Environmental Quality prior to its use as a school or

state building. Each plan developed or modified after June 20, 1994

must include Form AAC-8, Required Elements for Management Plans.''

4. Warning labels are required by the State rule to be attached

immediately adjacent to any ``accessible'' friable and nonfriable ACBM

and suspected ACBM assumed to be asbestos-containing material located

in routine maintenance areas. The Federal rule does not limit the

warning label requirements to ACBM which is accessible.

LDEQ response: The State has modified LAC 33:III.2727.A by removing

the word ``accessible'' from the regulation.

Since the State application for waiver and the Federal Register

notice of February 18, 1993, EPA published a revision to its Asbestos

Model Accreditation Plan (MAP). The Asbestos Model Accreditation Plan;

Interim Final Rule was published on February 3, 1994 (59 FR 5236). This

MAP required that each State adopt an accreditation plan that is at

least as stringent as this MAP within 180 days after the commencement

of the first regular session of the legislature of the State that is

convened on or after April 4, 1994. The Louisiana Legislature convened

on April 25, 1994. Therefore the 180-day period expired on October 22,

1994. In a letter of December 1, 1994, LDEQ submitted copies of the

State's accreditation regulations and stated its position that

Louisiana's Accreditation Program meets or exceeds the U.S. EPA Model

Accreditation Plan. Revised copies of LAC 33:III, Chapter 27 and LAC

33:III.5151 were submitted to support that position.

C. EPA's Decision on Louisiana's Request for Waiver

EPA grants the State of Louisiana a waiver from the requirements of

40 CFR part 763, subpart E, effective 30 days after publication of this

Notice of Final Decision. Federal jurisdiction shall be in effect in

the period between the date of publication of this document and the

effective date. This will assure that the State has sufficient time to

prepare to assume its new responsibilities. It will also assure the

public that no gap in authority occurs, and gives the public sufficient

notice of the transfer of duties from EPA to the State of Louisiana.

This waiver is applicable to all schools covered by AHERA in the State

and is subject to rescission under 40 CFR 763.98(j) based on periodic

EPA oversight evaluation and conference with the State in accordance

with 40 CFR 763.98(h) and 763.98(i).

II. Other Statutory Requirements

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

[[Page 18366]] Reduction Act and have been assigned OMB control number

2070-0091.

List of Subjects in 40 CFR Part 763

Environmental protection, Asbestos, Asbestos in schools (AHERA),

Hazardous substances, Reporting and recordkeeping requirements, State

and local governments, Worker protection.

Dated: March 30, 1995.

Jane Saginaw,

Regional Administrator, Region VI.

[FR Doc. 95-8873 Filed 4-10-95; 8:45 am]

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