[Federal Register Volume 64, Number 209 (Friday, October 29, 1999)]
[Notices]
[Pages 58406-58408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28392]


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ENVIRONMENTAL PROTECTION AGENCY

[OPPTS-62162; FRL-6386-8]


Asbestos-Containing Materials in Schools; State Request for 
Waiver from Requirements

AGENCY: Environmental Protection Agency (EPA).


[[Page 58407]]


ACTION: Notice of proposed waiver.

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SUMMARY: EPA has received from Texas a request for a waiver from the 
Agency's asbestos-in-schools program. A waiver of these requirements 
will be granted if EPA determines, after notice and comment and 
opportunity for a public hearing, that Texas is implementing or intends 
to implement a program of asbestos inspection and management at least 
as stringent as EPA's program. This notice announces an opportunity for 
a public hearing on the Texas waiver request and solicits written 
comments.

DATES: Written comments under docket control number OPPTS-62162 must be 
received on or before December 28, 1999. Each comment must include the 
name and address of the submitter. Any request for a public hearing 
must be in writing, be received on or before December 28, 1999, and 
detail specific objections to the grant of the waiver. If, during the 
comment period, EPA receives such a request for a public hearing, EPA 
will schedule a public hearing in Texas following the comment period. 
EPA will announce the date of the public hearing in the Federal 
Register.

ADDRESSES: Written comments may be submitted by mail, electronically, 
or in person. Please follow the detailed instructions for each method 
as provided under Unit I. of ``SUPPLEMENTARY INFORMATION.'' To ensure 
proper receipt by EPA, you must identify docket control number OPPTS-
62162 on the first page of your response.

FOR FURTHER INFORMATION CONTACT: Neil Pflum, Asbestos Coordinator, 
(6PD-T), Region VI, Environmental Protection Agency, 1445 Ross Ave., 
Dallas, TX 75202; telephone: (214) 665-2295; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to the public in general. This action may, 
however, be of special interest to teachers and other school personnel, 
their representatives, and parents in Texas, and asbestos professionals 
working in Texas. Since other entities may also be interested, the 
Agency has not attempted to describe all entities that may be affected 
by this action. If you have any questions regarding the applicability 
of this action to any entity, contact the person under ``FOR FURTHER 
INFORMATION CONTACT.''

B. How Can I Get Additional Information, Including Copies of this 
Document or Other Related Documents?

    EPA has established an official record for this action under docket 
control number OPPTS-62162. The official record consists of the 
documents referenced in this action, as well as any public comments 
received during the comment period, and other related information. The 
official record, which includes printed versions of any electronic 
comments, is available for inspection in Rm. 12D13 (Library 12th 
floor), EPA Region VI, 1445 Ross Ave., Dallas, TX. The Library is open 
from 8 a.m. to noon, Monday through Friday, excluding legal holidays. 
The telephone number is (214) 665-6427.

C. How and to Whom Do I Submit Comments?

    You may submit comments through the mail, in person, or 
electronically. To ensure proper receipt by EPA, you must identify 
docket control number OPPTS-62162 on the first page of your response.
    1. By mail. Submit your comments to: Neil Pflum, Region VI Asbestos 
Coordinator (6PD-T), Environmental Protection Agency, 1445 Ross Ave., 
Dallas, TX 75202.
    2. In person or by courier. Deliver your comments to: Rm. 12D13 
(Library 12th floor), EPA Region VI, 1445 Ross Ave., Dallas, TX. The 
Library is open from 8 a.m. to noon, Monday through Friday, excluding 
legal holidays. The telephone number is (214) 665-6427.
    3. Electronically. You may submit your comments by e-mail to: 
[email protected], or mail your computer disk to the address 
identified above. 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 standard disks in 
WordPerfect 5.1/6.1.

II. Background

A. What Action is the Agency Taking and under What Authority?

    EPA is considering granting, with conditions, a waiver of the 
asbestos-in-schools program to Texas. This notice is issued, and the 
waiver, if granted, would be issued under section 203(m) of TSCA and 40 
CFR 763.98. Section 203 is within Title II of TSCA, the Asbestos Hazard 
Emergency Response Act (AHERA).
    In 1987, under TSCA section 203, the Agency promulgated regulations 
that require the identification and management of asbestos-containing 
material by local education agencies (LEAs) in the nation's elementary 
and secondary school buildings: the ``AHERA Schools Rule'' (40 CFR part 
763, subpart E). Under section 203(m) of TSCA and 40 CFR 763.98, upon 
request by a State Governor and after notice and comment and 
opportunity for a public hearing in the State, EPA may waive, in whole 
or in part, the requirements of the asbestos-in-schools program (TSCA 
section 203 and the AHERA schools rule) if EPA determines that the 
State has established and is implementing or intends to implement a 
program of asbestos inspection and management that contains 
requirements that are at least as stringent as those in the Agency's 
asbestos-in-schools program. A State seeking a waiver must submit its 
request to the EPA Region in which the State is located.
    The Agency recognizes that a waiver granted to any State would not 
encompass schools operated under the defense dependents' education 
system (the third type of LEA defined at TSCA section 202(7) and 40 CFR 
763.83), which serve dependents in overseas areas, and other elementary 
and secondary schools outside a State's jurisdiction, which generally 
include schools in Indian country. Such schools would remain subject to 
EPA's asbestos-in-schools program.

B. When Did Texas Submit its Request for a Waiver and How is EPA 
Proposing to Respond?

    On July 27, 1999, Texas Governor George W. Bush, submitted to Gregg 
A. Cooke, Regional Administrator, EPA Region VI, a letter requesting a 
full waiver of the requirements of EPA's asbestos-in-schools program.
    EPA is hereby issuing a notice in the Federal Register announcing 
receipt of the complete Texas waiver request and an opportunity for 
comment and public hearing, and making the request and the supporting 
documentation available in the public record for this notice. The 
Agency is also describing the information submitted by Texas and the 
Agency's preliminary determinations as to how the waiver request meets 
the criteria for the grant of a waiver.

C. What was EPA's Determination with Regard to the Completeness of 
Texas' Waiver Request?

    The Texas waiver request has been deemed complete by EPA and 
contains the following:
    1. A copy of the Texas provisions that include its program of 
asbestos inspection and management in schools. These consist of: The 
Texas Asbestos Health Protection Act (Texas Revised Civil Statutes 
Article 4477-3a) and implementing regulations (Texas

[[Page 58408]]

Administrative Code, Title 25, Part I, Chapter 295, Subchapter C 
``Texas Asbestos Health Protection,'' Sections 295.31-295.71).
    2. The name of the Texas agency responsible for administrating and 
enforcing the requirements of a waiver, namely the Texas Department of 
Health (TDH). Responsible officials include: John A. Jacobi, P.E., 
Chief, Bureau of Environmental Health; Claren Kotrla, Director, Toxic 
Substances Control Division; Todd F. Wingler, Chief, Asbestos Programs 
Branch; and Gordon Leeks, Inspector, PCB/AHERA program--telephone: 
(512) 834-6600.
    3. Reasons, supporting papers, and the rationale for concluding 
that Texas' asbestos inspection and management programs, for which the 
waiver request is made, are at least as stringent as the requirements 
of EPA's program, as discussed in EPA's Preliminary Determinations in 
Units II.D.2. and 3.
    4. A discussion of any special situations, problems, and needs 
pertaining to the waiver request accompanied by an explanation of how 
Texas plans to handle them, as discussed in EPA's Preliminary 
Determination in Unit II.D.6.
    5. A statement of the resources that Texas intends to devote to the 
administration and enforcement of its program, as discussed in EPA's 
Preliminary Determination in Unit II.D.5.
    6. Copies of Texas laws and regulations relating to the request, 
including provisions for assessing penalties, as referenced in Unit 
II.C.1.
    7. Assurance from the legal counsel of TDH that the Department has 
the legal authority necessary to carry out the requirements relating to 
the waiver request, as indicated in a letter from Susan Steeg, General 
Counsel, to Gregg Cooke, dated February 22, 1999.

D. What are the Criteria for EPA's Grant of the Waiver and What are 
EPA's Preliminary Determinations Relating to These Criteria?

    EPA may waive the requirements of the Agency's asbestos-in-schools 
program if the Agency determines that Texas has met the criteria set 
forth at 40 CFR 763.98. The criteria and EPA's preliminary 
determinations relating to the grant of the waiver to Texas are set 
forth below:
    1. Criterion: Texas' lead agency has the legal authority necessary 
to carry out the provisions of asbestos inspection and management in 
schools relating to the waiver request.
    EPA's Preliminary Determination: EPA has determined preliminarily 
that the statutory and regulatory provisions cited at Unit II.C.1. give 
TDH such legal authority.
    2. Criterion: Texas' program is or will be at least as stringent as 
the EPA asbestos-in-schools program.
    EPA's Preliminary Determination: Since Texas has adopted the AHERA 
schools rule by reference in its regulations, EPA has determined 
preliminarily that Texas' program is or will be at least as stringent 
as EPA's program. See EPA's Preliminary Determination in Unit II.D.6.
    3. Criterion: Texas has an enforcement mechanism to allow it to 
implement the program described in the waiver request.
    EPA's Preliminary Determination: EPA has determined preliminarily 
that the compliance and enforcement provisions of Texas' asbestos-in-
schools program are adequate to run the program. Inspectors will use 
site visits to determine if the LEAs are complying with the program. 
Violations will be cited for enforcement action which can range from 
warning letters (notices of noncompliance) to administrative actions to 
civil actions.
    4. Criterion: TDH has or will have qualified personnel to carry out 
the provisions relating to the waiver request.
    EPA's Preliminary Determination: EPA has preliminarily determined 
that TDH has or will have qualified personnel to carry out the 
provisions of the waiver. An inspector currently employed by TDH has 
had experience in conducting asbestos inspections in schools. The 
Department also employs a number of individuals that have experience in 
asbestos program enforcement who are available to lend their expertise 
to the asbestos-in-schools program.
    5. Criterion: Texas will devote adequate resources to the 
administration and enforcement of the asbestos inspection and 
management provisions relating to the waiver request.
    EPA's Preliminary Determination: EPA has determined preliminarily 
that Texas has adequate resources to administer and enforce the 
provisions of the program. Texas plans to devote $114,311 to the 
program annually. It plans to match a Federal grant of $85,733, with 
$28,578 of State funds. The budget allows for two full-time employees, 
travel, supplies, and training.
    6. Criterion: Texas gives satisfactory assurances that the 
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 Units II.D.2.4.
    EPA's Preliminary Determination: For EPA to grant a full waiver to 
Texas, the State, as a condition of the grant of the waiver, would need 
to give a written assurance satisfactory to EPA that, if following the 
grant of the waiver, any provision of either TSCA section 203 or the 
AHERA schools rule is changed, the State would, within a reasonable 
period of time, make appropriate changes, as necessary, to the 
statutory and regulatory provisions of its asbestos-in-schools program 
to ensure that the program remains at least as stringent as the EPA 
asbestos-in-schools program.
    In addition, if a waiver is granted and as long as it remains in 
effect, Texas, utilizing adequate resources, would need to continue its 
asbestos-in-schools implementation and enforcement strategy. EPA may 
evaluate periodically the adequacy of Texas' program under 40 CFR 
763.98, and, under circumstances set forth in the regulation, may, in 
whole or in part, rescind the waiver if the Agency determines the 
program to be inadequate.

E. What Recordkeeping and Reporting Burden Approvals Apply to the Texas 
Waiver Request?

    The recordkeeping and reporting burden associated with waiver 
requests was approved by the Office of Management and Budget (OMB) 
under OMB control number 2070-0091. This document announces the 
Agency's receipt of the Texas waiver request and, therefore, imposes no 
additional burden beyond that covered under existing OMB control number 
2070-0091.

III. Materials in the Official Record

    The official record, under docket control number OPPTS-62162, 
contains the Texas waiver request, supporting documentation, and other 
relevant documents.

List of Subjects

    Environmental protection, Administrative practice and procedure, 
Asbestos, Hazardous substances, Imports, Intergovernmental relations, 
Labeling, Occupational safety and health, Reporting and recordkeeping 
requirements, Schools.

    Dated: October 19, 1999.
Jerry Clifford,
Acting Regional Administrator, Region VI.

[FR Doc. 99-28392 Filed 10-28-99; 8:45 am]
BILLING CODE 6560-50-F