[Federal Register Volume 59, Number 228 (Tuesday, November 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29378]


[[Page Unknown]]

[Federal Register: November 29, 1994]


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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]
BILLING CODE 6560-50-F