[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Notices]
[Pages 8619-8622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4968]



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ENVIRONMENTAL PROTECTION AGENCY
[OPPTS-62152; FRL-4985-9]


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 Maine 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 May 6, 1996.

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

[[Page 8620]]
docket control number OPPTS-62152 to: James M. Bryson, Regional 
Abatement Coordinator, Environmental Protection Agency, OEP 309 Region 
I, John F. Kennedy Federal Building, Boston, MA 02203-0001. Copies of 
the Maine waiver request are on file and may be reviewed at the EPA 
Region I Office.

    Comments and data may also be submitted electronically by sending 
electronic mail (e-mail) to: [email protected]. Electronic 
comments must be submitted as an ASCII file avoiding the use of special 
characters and any form of encryption. Comments and data will also be 
accepted on disks in WordPerfect in 5.1 file format or ASCII file 
format. All comments and data in electronic form must be identified by 
the docket number OPPTS-62152. No CBI should be submitted through e-
mail. Electronic comments on this document may be filed online at many 
Federal Depository Libraries. Additional information on electronic 
submissions can be found in the SUPPLEMENTARY INFORMATION unit of this 
document.
FOR FURTHER INFORMATION CONTACT: James M. Bryson at the address listed 
above.

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 Maine's asbestos waiver request, 
and Senate Bill 38 MSRA impact on the implementation and enforcement of 
Maine's Regulation 16B. Comments must be submitted by May 6, 1996. 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 December 20, 1994, Assistant Attorney General Jon H. Edwards 
submitted to John P. DeVillars, Regional Administrator, EPA Region I, a 
request for a waiver under the AHERA 40 CFR 763.98. The request was 
received by the Regional Office on January 3, 1995. 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/Attorney General 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 Maine Department of Environmental Protection 
recognizes that asbestos exposure in schools (and elsewhere) is a 
serious concern. The Maine General Assembly also recognized this, and 
during a 1987 legislative session a bill was passed authorizing the Air 
Pollution Control Division, Maine Department of Environmental 
Protection 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, Maine'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 

[[Page 8621]]
obtain certification. The Maine General Assembly has enacted authority 
for the Maine 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 Maine 
Air Quality Control Commission's Regulation No. 16B, Chapter 12A, 
``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 four 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 Maine Department of Environmental Protection, 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 I 
Office, the Agency feels that the Maine Department of Environmental 
Protection has resources to effectively implement and administer the 
asbestos program in Maine.
    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 16, 1993, Maine Governor Angus S. King signed Senate Bill 
38 M.R.S.A. (S.B. 38). S.B. 38 M.R.S.A. may have an impact on 
enforcement of Maine's asbestos rules and regulations. S.B. 38 M.R.S.A. 
S.B. 38 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. 38 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 Maine's request for an AHERA waiver, the 
State, should clarify S.B. 38's impact on the State's enforcement 
capabilities. EPA intends to request a legal analysis from the State on 
whether S.B. 38 applies to Maine'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 Maine's asbestos waiver request, and Senate Bill 38 
M.R.S.A. impact on the implementation and enforcement of Maine's 
Regulation 8. Comments must be submitted by May 6, 1996. 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.
    A record has been established for this document under docket number 
``OPPTS-62152 including comments and data submitted electronically as 
described below. A public version of this record, including printed, 
paper versions of electronic comments, which does not include any 
information claimed as confidential business information (CBI), is 
available for inspection from 8 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays. The public record is maintained in Region I 
at the location listed under the ADDRESSES unit of this document.
    Electronic comments can be sent directly to EPA at:
    [email protected]


    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption.
    The official record for this document, as well as the public 
version, as described above will be kept in paper form. Accordingly, 
EPA will transfer all comments received electronically into printed, 
paper form as they are received and will place the paper copies in the 
official record which will also include all comments submitted directly 
in writing. The official record is the paper record maintained at the 
address in ``ADDRESSES'' at the beginning of this document.


[[Page 8622]]


Lists of Subjects

    Environmental protection and Asbestos.
    Dated: February 14, 1996.
John P. DeVillars,
Regional Administrator, Region I.

[FR Doc. 96-4968 Filed 3-4-96; 8:45 am]
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