[Federal Register Volume 70, Number 113 (Tuesday, June 14, 2005)]
[Notices]
[Pages 34474-34477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11662]


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ENVIRONMENTAL PROTECTION AGENCY

[OPPT-2004-0096; FRL-7718-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA has received from Illinois 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 Illinois 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 Illinois waiver request and 
solicits written comments.

DATES: Written comments under docket ID number OPPT-2004-0096, must be 
received on or before August 15, 2005. 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 August 15, 2005, 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 Illinois following the comment 
period. EPA will announce the date of the public hearing in the Federal 
Register.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand delivery/courier. Follow the detailed instructions as 
provided in Unit I. of the SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Linter, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: [email protected].
    For technical information contact: Philip King, Asbestos 
Coordinator, (DT-8J), Region V, Environmental Protection Agency, 77 W. 
Jackson Blvd., Chicago, IL 60604; telephone number: (312) 353-9062; e-
mail address: [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 Illinois, and asbestos 
professionals working in Illinois. 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 technical 
person listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of this Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under docket identification (ID) number OPPT-2004-0096. The 
official public docket consists of the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action. Although a part of the official 
docket, the public docket does not include Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. The official public docket is the collection of materials 
that is available for public viewing at the EPA Docket Center, Rm. 
B102-Reading Room, EPA West, 1301 Constitution Ave., NW., Washington, 
DC. The EPA Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The EPA Docket Center Reading 
Room telephone number is (202) 566-1744 and the telephone number for 
the OPPT Docket, which is located in the EPA Docket Center, is (202) 
566-0280.
    2. Electronic access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Although not all docket materials may be 
available electronically, you may still access any of the publicly 
available docket materials through the docket facility identified in 
Unit I.B.1. Once in the system, select ``search,'' then key in the 
appropriate docket ID number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the

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system will identify whether the document is available for viewing in 
EPA's electronic public docket. Although not all docket materials may 
be available electronically, you may still access any of the publicly 
available docket materials through the docket facility identified in 
Unit I.B.1. EPA intends to work towards providing electronic access to 
all of the publicly available docket materials through EPA's electronic 
public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket ID number in the subject line on the first page of 
your comment. Please ensure that your comments are submitted within the 
specified comment period. Comments received after the close of the 
comment period will be marked ``late.'' EPA is not required to consider 
these late comments. If you wish to submit CBI or information that is 
otherwise protected by statute, please follow the instructions in Unit 
I.D. Do not use EPA Dockets or e-mail to submit CBI or information 
protected by statute.
    1. Electronically. If you submit an electronic comment as 
prescribed in this unit, EPA recommends that you include your name, 
mailing address, and an e-mail address or other contact information in 
the body of your comment. Also include this contact information on the 
outside of any disk or CD ROM you submit, and in any cover letter 
accompanying the disk or CD ROM. This ensures that you can be 
identified as the submitter of the comment and allows EPA to contact 
you in case EPA cannot read your comment due to technical difficulties 
or needs further information on the substance of your comment. EPA's 
policy is that EPA will not edit your comment, and any identifying or 
contact information provided in the body of a comment will be included 
as part of the comment that is placed in the official public docket, 
and made available in EPA's electronic public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket/, and follow the online instructions for submitting comments. 
Once in the system, select ``search,'' and then key in docket ID number 
OPPT-2004-0096. The system is an ``anonymous access'' system, which 
means EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by e-mail to [email protected], 
Attention: Docket ID Number OPPT-2004-0096. In contrast to EPA's 
electronic public docket, EPA's e-mail system is not an ``anonymous 
access'' system. If you send an e-mail comment directly to the docket 
without going through EPA's electronic public docket, EPA's e-mail 
system automatically captures your e-mail address. E-mail addresses 
that are automatically captured by EPA's e-mail system are included as 
part of the comment that is placed in the official public docket, and 
made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Unit I.C.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By mail. Send your comments to: Document Control Office (7407M), 
Office of Pollution Prevention and Toxics (OPPT), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001.
    3. By hand delivery or courier. Deliver your comments to: OPPT 
Document Control Office (DCO) in EPA East Bldg., Rm. 6428, 1201 
Constitution Ave., NW., Washington, DC. Attention: Docket ID Number 
OPPT-2004-0096. The DCO is open from 8 a.m. to 4 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the DCO is 
(202) 564-8930.

D. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. You 
may claim information that you submit to EPA as CBI by marking any part 
or all of that information as CBI (if you submit CBI on disk or CD ROM, 
mark the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is CBI). Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the technical person listed under FOR FURTHER INFORMATION CONTACT.

II. Background

A. What Action is the Agency Taking?

    EPA is considering granting, with conditions, a waiver of the 
asbestos-in-schools program to Illinois. 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).
    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 local education agency (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

[[Page 34476]]

generally include schools in Indian country. Such schools would remain 
subject to EPA's asbestos-in-schools program.

B. What is the Agency's Authority for Taking this Action?

    In 1987, under TSCA section 203, the Agency promulgated regulations 
that require the identification and management of asbestos-containing 
material by 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.

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

    On December 20, 2004, Illinois Governor Rod Blagojevich, submitted 
to Bharat Mathur, Acting Regional Administrator, EPA Region V, a letter 
requesting a full waiver of the requirements of EPA's asbestos-in-
schools program. After reviewing this initial submittal, EPA Region V 
did request further information from Illinois by letter dated January 
20, 2005. Illinois then responded by submitting the additional 
requested information on February 25, 2005. This supplemental 
information was subsequently received by EPA Region V on March 3, 2005, 
and then further discussed and clarified during two conference calls 
held with Illinois Department of Public Health (IDPH) staff on March 15 
and April 8, 2005.
    EPA is hereby issuing a notice in the Federal Register announcing 
receipt of the complete Illinois 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 Illinois and the 
Agency's preliminary determinations as to how the waiver request meets 
the criteria for the grant of a waiver.

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

    The Illinois waiver request has been deemed complete by EPA and 
contains the following:
    1. A copy of the Illinois provisions that include its program of 
asbestos inspection and management in schools. These consist of: The 
Illinois Asbestos Abatement Act (105 ILCS), the Illinois Commercial and 
Public Building Asbestos Abatement Act (225 ILCS), the Department of 
Public Health Act (20 ILCS 2305), and 77 Illinois Administrative Code, 
section 855, all of which are administered by the IDPH.
    2. The names of the Illinois agencies responsible for administering 
and enforcing the requirements of the waiver (including the IDPH, the 
Illinois Attorney General's Office and the Illinois State's Attorney's 
Offices), the names and job titles of responsible officials in those 
agencies, and telephone numbers where these officials can be reached. 
The responsible officials from the IDPH include Gary Flentge, Chief of 
the Division of Environmental Health and Kent Cook, Manager of the 
Asbestos Program (telephone: (217) 785-5830). The responsible official 
from the Illinois Attorney General's Office is Matthew J. Dunn, Chief, 
Environmental Enforcement/Asbestos Litigation Division (telephone: 
(312) 814-2521). The responsible officials from the State's Attorney's 
Offices include the current State's Attorney's from each of Illinois' 
Counties.
    3. Detailed reasons, supporting papers, and the rationale for 
concluding that Illinois' asbestos inspection and management program 
provisions are at least as stringent as the requirements of the AHERA 
Schools Rule (40 CFR part 763, subpart E). This information can be 
found in the December 17, 2004 assurance letter from Anne Murphy, Chief 
Counsel to IDPH, which forms an integral part of Illinois' waiver 
application. This letter states that ``Illinois' law is at least as 
stringent as the federal AHERA regulations in their entirety,'' because 
``the AHERA regulations are adopted directly by the Illinois Asbestos 
Abatement Act (105 ILCS 105),'' and have been incorporated by reference 
into the IDPH asbestos regulations found at 77 IAC 855.
    4. A discussion of any special situations, problems, and needs 
pertaining to the waiver request accompanied by an explanation of how 
Illinois intends to handle them. This information can be found in the 
supplemental information submitted by Illinois in response to the 
request from EPA Region V. In it's reply, IDPH has explained and 
clarified that if any of its regulatory language were ever to be found 
in conflict with the language of the federal AHERA regulations, that 
``. . . IDPH would ensure that the minimum federal regulations found in 
AHERA were enforced and at the same time ensure that the health of the 
public is protected.'' This approach ensures that the Illinois Program 
will remain ``at least as stringent as'' the Federal Program as 
required by 40 CFR 763.98(a).
    5. A statement of the resources that Illinois intends to devote to 
the administration and enforcement of the provisions relating to the 
waiver request. This statement is found in the supplemental submission 
made by Illinois which addresses the resources currently available to 
support an on-going program. These resources include both monies 
appropriated by the Legislature and monies deposited in the Illinois 
School Asbestos Abatement Fund.
    6. Copies of Illinois laws and regulations relating to the request, 
including provisions for assessing criminal and/or civil penalties. 
Copies of Illinois' asbestos statutes and regulations can be found in 
Attachment A of the State's original application submittal, and also in 
a subsequent e-mail from Gary Flentge to Philip King, dated April 8, 
2005, which forwarded a copy of Illinois' Department of Public Health 
Act (20 ILCS 2305/8.1).
    7. Assurance from the Governor, the Attorney General, or the legal 
counsel of the lead agency that the lead agency has the legal authority 
necessary to carry out the requirements relating to the request. This 
assurance is found in the letter from Anne Murphy, Chief Counsel for 
the IDPH, to the Acting EPA Regional Administrator, Bharat Mathur, 
dated December 17, 2004, which accompanies and forms a part of the 
original application submission.

E. What are the Criteria for EPA's Grant of the Waiver?

    EPA may waive some or all of the requirements of the Agency's 
asbestos-in-schools program if the Agency determines that Illinois 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 
Illinois are set forth below:
    1. Illinois' lead agency and other cooperating agencies have the 
legal authority necessary to carry out the provisions of asbestos 
inspection and

[[Page 34477]]

management in schools relating to the waiver request.
    EPA's Preliminary Determination: EPA has determined preliminarily 
that the statutory and regulatory provisions of the Illinois Asbestos 
Abatement Act (105 ILCS), the Illinois Commercial and Public Building 
Asbestos Abatement Act (225 ILCS), the Department of Public Health Act 
(20 ILCS 2305), and 77 Illinois Administrative Code, Section 855, give 
the Illinois Department of Public Health such authority.
    2. Illinois' program of asbestos inspection and management in 
schools and its implementation of the program are or will be at least 
as stringent as the requirements of the AHERA Schools Rule.
    EPA's Preliminary Determination: Since Illinois has adopted the 
AHERA schools rule by reference in its regulations, EPA has determined 
that Illinois' program is at least as stringent as EPA's program.
    3. Illinois 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 Illinois' asbestos-
in-schools program are adequate to run the program. The Director of the 
Illinois Department of Public Health is empowered under the Commercial 
and Public Building Asbestos Abatement Act (225 ILCS 207) to ``. . . 
maintain an action for prosecution, injunction, or other relief or 
process against any Building/Facility Owner or any other person or unit 
of local government to enforce and compel compliance with the 
provisions of this Act, the rules promulgated under it and any order 
entered for any action under this Act and its rules. A person who 
violates this Act is guilty of a Class A misdemeanor punishable by a 
fine of $1,000 for each day the violation exists in addition to other 
civil penalties or up to 6 months imprisonment or both a fine and 
imprisonment.'' The Director also has authority to inspect all 
activities regulated by the Act, and can issue stop work orders. In 
addition, under section 8.1 of the Department of Public Health Act (20 
ILCS 2305), the Director may also deem ``whoever violates or refuses to 
obey any rule or regulation of the Department of Public Health to be 
guilty of a Class A misdemeanor.''
    4. The lead agency and any cooperating agencies have or will have 
qualified personnel to carry out the provisions relating to the waiver 
request.
    EPA's Preliminary Determination: EPA has preliminarily determined 
that the IDPH has qualified personnel to carry out the provisions of 
the waiver. The existing program staff includes four environmental 
engineers, one project designer, three full-time support staff, two 
temporary support staff, and an architect. Oversight is provided by a 
licensed professional engineer.
    5. Illinois 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 Illinois has adequate resources to administer and enforce the 
provisions of the program. The appropriated funding for the Asbestos 
Program is $933,045 for the current State fiscal year ('05). The State 
also has a current balance of $612,000 in its Illinois School Asbestos 
Abatement Fund, and collected $15,229 in fines during the previous 
fiscal year ('04).
    6. Illinois 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 criteria numbers 2-4 above.
    EPA's Preliminary Determination: For EPA to grant a full waiver to 
Illinois, 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, Illinois, utilizing adequate resources, would need to continue 
its asbestos-in-schools implementation and enforcement strategy. EPA 
may evaluate periodically the adequacy of Illinois' 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.

F. What Recordkeeping and Reporting Burden Approvals Apply to the 
Illinois 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 Illinois 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 ID number OPPT-2004-0096, 
contains the Illinois waiver request, and any other supporting or 
relevant documents.

List of Subjects

    Environmental protection, Asbestos, Hazardous substances, 
Occupational health and safety, Reporting and recordkeeping 
requirements, Schools.


    Dated: June 2, 2005.
Norman Niedergang,
Acting Regional Administrator, Region V.

[FR Doc. 05-11662 Filed 6-13-05; 8:45 am]
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