[Federal Register Volume 65, Number 36 (Wednesday, February 23, 2000)]
[Notices]
[Pages 8974-8976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4245]


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ENVIRONMENTAL PROTECTION AGENCY

[OPPTS-62162A; FRL-6488-5]


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 requestfrom 
Texas for a waiver from the Agency's asbestos-in-schools program. A 
waiver of theserequirements is granted since EPA has determined, after 
notice and comment and opportunity fora public hearing, that Texas is 
implementing or intends to implement a program of asbestosinspection 
and management at least as stringent as EPA's program. This notice 
announces theofficial grant of the waiver.

ADDRESSES: A copy of the complete waiver applicationsubmitted by the 
State, identified by docket control number OPPTS-62162, is on file and 
availablefor review at the EPA Region VI office in Dallas, TX.

FOR FURTHER INFORMATION CONTACT: Neil Pflum, AsbestosCoordinator, (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 specialinterest to teachers and other school personnel, 
their representatives, and parents in Texas, andasbestos professionals 
working in Texas. Since other entities may also be interested, the 
Agencyhas not attempted to describe all entities that may be affected 
by this action. If you have anyquestions regarding the applicability of 
this action to any entity, contact the person under ``FORFURTHER 
INFORMATION CONTACT.''

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

    EPA has established an official record for this action under docket 
control numberOPPTS-62162. The official record consists of the 
documents referenced in this action and isavailable by contacting the 
person under, ``FOR FURTHER INFORMATION CONTACT.''

II. Background

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

    On October 29, 1999, EPA published a notice of proposed waiver in 
the Federal Register (64 FR58406) (FRL-6386-8) on the proposed grant of 
a waiver of the asbestos-in-schools program in Texas, solicitingwritten 
comments and providing an opportunity for a public hearing. No comments 
and norequests for a public hearing were received during the comment 
period, which ended onDecember 28, 1999. Consequently, no public 
hearing was held.
    EPA is granting, with conditions, a waiver of the asbestos-in-
schools program to Texas.The waiver is issued under section 203(m) of 
TSCA and 40

[[Page 8975]]

CFR 763.98. Section 203 is withinTitle II of TSCA, the Asbestos Hazard 
Emergency Response Act (AHERA).
    In 1987, under TSCA section 203, the Agency promulgated regulations 
that require theidentification 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 CFRpart 
763, subpart E). Under section 203(m) of TSCA and 40 CFR 763.98, upon 
request by aState 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 (TSCAsection 203 
and the AHERA schools rule) if EPA determines that the State has 
established and isimplementing or intends to implement a program of 
asbestos inspection and management thatcontains requirements that are 
at least as stringent as those in the Agency's asbestos-in-
schoolsprogram. A State seeking a waiver must submit its request to the 
EPA Region in which the Stateis located.
    The Agency recognizes that a waiver granted to any State does not 
encompass schoolsoperated under the defense dependents' education 
system (the third type of LEA defined at TSCAsection 202(7) and 40 CFR 
763.83), which serve dependents in overseas areas, and otherelementary 
and secondary schools outside a State's jurisdiction, which generally 
include schools inIndian country. Such schools remain subject to EPA's 
asbestos-in-schools program.

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

    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 ofEPA's asbestos-in-schools program, to 
which was appended supporting documentation.
    EPA is hereby announcing its final decision to grant a waiver of 
theasbestos-in-schools program to Texas. The Agency is also describing 
the information submittedby Texas and the Agency's determinations as to 
how the waiver request meets the criteria for thegrant of a waiver.

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

    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 andmanagement in schools. These consist of: The 
Texas Asbestos Health Protection Act (TexasRevised Civil Statutes 
Article 4477-3a) and implementing regulations (Texas 
AdministrativeCode, Title 25, Part I, Chapter 295, Subchapter C ``Texas 
Asbestos Health Protection,'' Sections295.31-295.71).
    2. The name of the Texas agency responsible for administrating and 
enforcing therequirements of a waiver, namely the Texas Department of 
Health (TDH). Responsible officialsinclude: John A. Jacobi, P.E., 
Chief, Bureau of Environmental Health; Claren Kotrla, Director,Toxic 
Substances Control Division; Todd F. Wingler, Chief, Asbestos Programs 
Branch; andGordon Leeks, Inspector, PCB/AHERA program--telephone: (512) 
834-6600.
    3. Reasons, supporting papers, and the rationale for concluding 
that Texas' asbestosinspection and management programs, for which the 
waiver request is made, are at least asstringent as the requirements of 
EPA's program, as discussed in EPA's Determinations in UnitsII.D.2. and 
3.
    4. A discussion of any special situations, problems, and needs 
pertaining to the waiverrequest accompanied by an explanation of how 
Texas plans to handle them, as discussed in EPA'sDetermination in Unit 
II.D.6.
    5. A statement of the resources that Texas intends to devote to the 
administration andenforcement of its program, as discussed in EPA's 
Determination in Unit II.D.5.
    6. Copies of Texas laws and regulations relating to the request, 
including provisions forassessing penalties, as referenced in Unit 
II.C.1.
    7. Assurance from the legal counsel of TDH that the Department has 
the legal authoritynecessary to carry out the requirements relating to 
the waiver request, as indicated in a letter fromSusan 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'sDeterminations Relating to These Criteria?

    EPA has waived the requirements of the Agency's asbestos-in-schools 
program for Texassince the Agency has determined that Texas has met the 
criteria set forth at 40 CFR 763.98. Thecriteria and EPA's 
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 outthe provisions of asbestos inspection and management in 
schools relating to the waiver request.
    EPA's Determination: EPA has determined that the statutory and 
regulatoryprovisions 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 EPAasbestos-in-schools program.
    EPA's Determination: Since Texas has adopted the AHERA schools rule 
byreference in its regulations, EPA has determined that Texas' program 
is or will be at least asstringent as EPA's program. See EPA's 
Determination in Unit II.D.6.
    3. Criterion: Texas has an enforcement mechanism to allow it to 
implementthe program described in the waiver request.
    EPA's Determination: EPA has determined that the compliance 
andenforcement 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. Violationswill be 
cited for enforcement action which can range from warning letters 
(notices ofnoncompliance) to administrative actions to civil actions.
    4. Criterion: TDH has or will have qualified personnel to carry out 
theprovisions relating to the waiver request.
    EPA's Determination: EPA has determined that TDH has or will 
havequalified personnel to carry out the provisions of the waiver. An 
inspector currently employed byTDH has had experience in conducting 
asbestos inspections in schools. The Department alsoemploys a number of 
individuals that have experience in asbestos program enforcement who 
areavailable to lend their expertise to the asbestos-in-schools 
program.
    5. Criterion: Texas will devote adequate resources to the 
administration andenforcement of the asbestos inspection and management 
provisions relating to the waiver request.
    EPA's Determination: EPA has determined that Texas has 
adequateresources to administer and enforce the provisions of the 
program. Texas plans to devote$114,311 to the program annually. It 
plans to match an annual Federal grant of $85,733, with$28,578 of State 
funds. The budget allows for two full-time employees, travel, supplies, 
andtraining.
    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 betaken within a

[[Page 8976]]

reasonable time to conform with applicable criteria in Units II.D.2-4.
    EPA's Determination: As a condition of EPA's grant of the waiver, 
Texashas given a written assurance satisfactory to EPA (letter from 
Joseph Fuller, AssociateCommissioner, TDH, to Gregg Cooke, dated 
January 11, 2000) that, if following the grant of thewaiver, any 
provision of either TSCA section 203 or the AHERA schools rule is 
changed, theState would, within a reasonable period of time, make 
appropriate changes, as necessary, to thestatutory and regulatory 
provisions of its asbestos-in-schools program to ensure that the 
programremains at least as stringent as the EPA asbestos-in-schools 
program.
    In addition, as long as the waiver remains in effect, Texas, 
utilizing adequate resources,will need to continue its asbestos-in-
schools implementation and enforcement strategy. EPA mayevaluate 
periodically the adequacy of Texas' program under 40 CFR 763.98, and, 
undercircumstances set forth in the regulation, may, in whole or in 
part, rescind the waiver if theAgency determines the program to be 
inadequate.

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

    The recordkeeping and reporting burden associated with waiver 
requests was approved bythe Office of Management and Budget (OMB) under 
OMB control number 2070-0091. Thisdocument announces the Agency's grant 
of the Texas waiver request and imposes no additionalburden 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 Texaswaiver request, supporting documentation, and other 
relevant documents.

List of Subjects

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

    Dated: February 9, 2000.
Jerry Clifford, Acting
Regional Administrator, Region VI.
[FR Doc. 00-4245 Filed 2-22-00; 8:45 am]
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