[Federal Register Volume 63, Number 207 (Tuesday, October 27, 1998)]
[Rules and Regulations]
[Pages 57251-57252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28726]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 763
[OPPTS-62155A; FRL-6038-1]
Asbestos-Containing Materials in Schools; Final Decision on State
Request for Waiver From Requirements
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
the Commonwealth of Massachusetts for a waiver from the requirements of
40 CFR part 763, subpart E, Asbestos-Containing Materials in Schools,
based on a formal assurance to EPA that Massachusetts has an asbestos
accreditation program at least as stringent as the EPA's Asbestos Model
Accreditation Plan.
EFFECTIVE DATE: August 24, 1998.
ADDRESSES: A copy of the complete waiver application submitted by the
State, identified by the docket control number OPPTS-62155, is
available from the Environmental Protection Agency, TSCA
Nonconfidential Information Center, Rm. NE-B607, 401 M St., SW.,
Washington, DC 20460, from 12 noon to 4 p.m., Monday through Friday,
except legal holidays. A copy is also on file and may be reviewed at
the Environmental Protection Agency, Region I Office, John F. Kennedy
Federal Building, Boston, Massachusetts.
FOR FURTHER INFORMATION CONTACT: James M. Bryson at 617-565-3836 or e-
mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
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
1986 (AHERA), Pub. L. 99-519. 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 recision of waivers granted to
States. The Agency encourages States to establish and manage their own
school regulatory programs under the AHERA waiver provision. EPA issued
a notice in the Federal Register of June 24, 1998 (63 FR 34348; FRL-
5762-3), which announced the receipt of a waiver request from the
Commonwealth of Massachusetts, and solicited comments from the public.
The notice also discussed the program elements of the State program,
and provided EPA's preliminary evaluation of the State resources
responsible for effective implementation and administration of the
asbestos program in Massachusetts. 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 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 on August 24, 1998. The 60-day review period may be
extended if mutually agreed upon by EPA and the State.
The remainder of this document is divided into Units II., III, and
IV. Unit II. discusses the Commonwealth of Massachusetts program and
sets forth the reasons and rationale for EPA's decision on the State's
waiver request. Unit II. is divided into sections A. and B. Section A.
discusses key elements of the State's program at the time the waiver
request was submitted. Section B. gives EPA's final approval of the
waiver request based on the State's response. Units III. and IV. of
this notice discuss the regulatory assessment requirements.
II. The Commonwealth of Massachusetts Program
A. Program Elements
The Massachusetts Department of Labor and Workforce Development
(MDLWD) has the authority to regulate asbestos in schools and state
buildings. The Massachusetts General Laws Chapter 149, sections 6, 6A-
6G and the MDLWD Regulation No. 453 CMR 6.00 are the State provisions
for asbestos inspections and management in school and public and
commercial buildings.
The MDLWD conducts inspections to ensure compliance with the above
laws and rules. MDLWD reviews the management plans submitted for
schools. The requirements of the Massachusetts Program are the same as
or more stringent than the Federal AHERA requirements. The State
requirements are more stringent in that the requirements apply to
public and commercial buildings in addition to schools.
B. EPA's Decision on the Commonwealth of Massachusetts Request for
Waiver
Based on a formal assurance to EPA from the lead Massachusetts
agency (MDLWD) having the legal authority to carry out the requirements
relating to the waiver request that Massachusetts
[[Page 57252]]
has incorporated into its asbestos inspection and management program,
an asbestos accreditation program at least as stringent as the EPA's
Asbestos Model Accreditation Plan (MAP), interim final rule is approved
by this notice.
Accordingly, EPA grants the Commonwealth of Massachusetts a waiver
from the requirements of 40 CFR part 763, subpart E, effective October
24, 1998. Federal jurisdiction shall be in effect in the period between
the date of publication of this document and that 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 Massachusetts. This waiver
is applicable to all schools covered by AHERA in the State. This waiver
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 (i).
III. Regulatory Assessment Requirements
A. Certain Acts and Executive Orders
This action does not impose any requirements. As such, this action
does not require review by the Office of Management and Budget (OMB)
under Executive Order 12866, entitled Regulatory Planning and Review
(58 FR 51735, October 4, 1993) or Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997). For the same reason, it does not require
any action under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104-4), Executive Order 12898, entitled Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994). In addition, since this
type of action does not require any proposal, no action is needed under
the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
B. Paperwork Reduction Act
The reporting and record keeping 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.
C. Executive Order 12875
Under Executive Order 12875, entitled Enhancing the
Intergovernmental Partnership (58 FR 58093, October 28, 1993), EPA may
not issue a regulation that is not required by statute and that creates
a mandate upon a State, local, or tribal government, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by those governments. If the mandate is unfunded, EPA
must provide to OMB a description of the extent of EPA's prior
consultation with representatives of affected State, local, and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's action does not create an unfunded Federal mandate on
State, local, or tribal governments. The action does not impose any
enforceable duties on these entities. Accordingly, the requirements of
section 1(a) of Executive Order 12875 do not apply to this action.
D. Executive Order 13084
Under Executive Order 13084, entitled Consultation and Coordination
with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not
issue a regulation that is not required by statute, that significantly
or uniquely affects the communities of Indian tribal governments, and
that imposes substantial direct compliance costs on those communities,
unless the Federal government provides the funds necessary to pay the
direct compliance costs incurred by the tribal governments. If the
mandate is unfunded, EPA must provide to OMB, in a separately
identified section of the preamble to the rule, a description of the
extent of EPA's prior consultation with representatives of affected
tribal governments, a summary of the nature of their concerns, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 13084 requires EPA to develop an effective process
permitting elected officials and other representatives of Indian tribal
governments ``to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.''
Today's action does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this action.
IV. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, as that term is defined by 5
U.S.C. 804(3).
List of Subjects in 40 CFR Part 763
Environmental protection, Administrative practice and procedure,
Asbestos, Confidential business information, Hazardous substances,
Imports, Intergovernmental relations, Labeling, Occupational safety and
health, Reporting and recordkeeping requirements, Schools.
Dated: October 15, 1998.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 98-28726 Filed 10-26-98; 8:45 am]
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