[Federal Register Volume 60, Number 69 (Tuesday, April 11, 1995)]
[Rules and Regulations]
[Pages 18364-18366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8873]
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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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