[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]
BILLING CODE 6560-50-F