[Federal Register Volume 70, Number 191 (Tuesday, October 4, 2005)]
[Notices]
[Pages 57872-57875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19865]


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ENVIRONMENTAL PROTECTION AGENCY

[OPPT-2004-0096; FRL-7731-3]


Asbestos-Containing Materials in Schools; State Request for 
Waiver from Requirements; Notice of Final Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA is issuing a final decision which approves the request 
from Illinois for a waiver from the Agency's asbestos-in-schools 
program. A waiver of these requirements is granted since EPA has 
determined, 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 for schools that is at 
least as stringent as EPA's program. This notice announces the official 
grant of the waiver.

[[Page 57873]]


ADDRESSES: A copy of the complete waiver application submitted by the 
State, identified by docket identification (ID) number OPPT-2004-0096, 
is on file and available for review at the EPA Region V office in 
Chicago, IL.

FOR FURTHER INFORMATION CONTACT: Philip King, Asbestos Coordinator, 
Waste, Pesticides and Toxics Division (DT-8J), Region V, Environmental 
Protection Agency, 77 W. Jackson Boulevard, Chicago, IL 60604; 
telephone: (312) 353-9062; 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. It 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 particular entity, contact the person listed 
under FOR FURTHER INFORMATION CONTACT.

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

    EPA has established an official record for this action under docket 
ID number OPPT-2004-0096. The official record consists of the various 
documents referenced in this action, and is available by contacting the 
person identified under FOR FURTHER INFORMATION CONTACT.

II. Background

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

    In the Federal Register of June 14, 2005 (70 FR 34474)(FRL-7718-1), 
EPA published a notice on the proposed grant of a waiver of its 
asbestos-in-schools program to Illinois, soliciting written comments 
and providing an opportunity for a public hearing. No comments and no 
requests for a public hearing were received during the comment period, 
which ended on August 15, 2005. Consequently, no public hearing was 
held.
    EPA is hereby granting, with conditions, a waiver of the asbestos-
in-schools program to Illinois. The waiver is issued under section 
203(m) of the Toxic Substances Control Act (TSCA) and 40 CFR 763.98. 
Section 203 is found 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(m) 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 applicant State is located.
    The Agency recognizes that a waiver granted to any State does not 
encompass schools operated under the defense dependent's education 
system (the third type of LEA defined at TSCA section 202(7) and 40 CFR 
763.83), which serves dependents in overseas areas, and other 
elementary and secondary schools outside of a State's jurisdiction, 
which generally includes schools situated in Indian country. Such 
schools remain subject to EPA's asbestos-in-schools program.

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

    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, to which was appended supporting documentation.
    EPA is hereby announcing its final decision to grant a waiver of 
the asbestos-in-schools program to Illinois. The Agency is also 
describing the information submitted by Illinois and the Agency's 
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 
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 for schools. These consist of: the 
Illinois Asbestos Abatement Act (105 ILCS 105), the Illinois Commercial 
and Public Building Asbestos Abatement Act (225 ILCS 207), the 
Department of Public Health Act (20 ILCS 2305), and the State's 
asbestos regulations (77 IAC 855), all of which are administered by the 
Illinois Department of Public Health (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 Attorneys 
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 Attorneys 
Offices include the current State's Attorneys 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

[[Page 57874]]

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.

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

    EPA has waived the requirements of the Agency's asbestos-in-schools 
program for Illinois since the Agency has determined that Illinois has 
met the criteria set forth at 40 CFR 763.98. The criteria and EPA's 
determinations relating to the grant of the waiver to Illinois are set 
forth below:
    1. Criterion: Illinois' lead agency and other cooperating agencies 
have the legal authority necessary to carry out the provisions of 
asbestos inspection and management in schools relating to the waiver 
request.
    EPA's Determination: EPA has determined that the statutory and 
regulatory provisions of the Illinois Asbestos Abatement Act (105 ILCS 
105), the Illinois Commercial and Public Building Asbestos Abatement 
Act (225 ILCS 207), the Department of Public Health Act (20 ILCS 2305), 
and the State's asbestos regulations (77 IAC 855), give the IDPH such 
authority.
    2. Criterion: 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 Determination: EPA has determined that Illinois' program 
codified at 77 IAC 855 is at least as stringent as EPA's program.
    3. Criterion: Illinois has an enforcement mechanism to allow it to 
implement the program described in the waiver request.
    EPA's Determination: EPA has determined that the compliance and 
enforcement provisions of Illinois' asbestos-in-schools program are 
adequate to run the program. The Director of IDPH 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. Criterion: 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 Determination: EPA has 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. Criterion: Illinois will devote adequate resources to the 
administration and enforcement of the asbestos inspection and 
management provisions relating to the waiver request.
    EPA's Determination: EPA has determined that Illinois has adequate 
resources to administer and enforce the provisions of the program. 
Appropriated funding for the Asbestos Program was $933,045 for State 
fiscal year 2005. The State also had a balance of $612,000 in its 
Illinois School Asbestos Abatement Fund, and had collected $15,229 in 
fines during the preceding fiscal year (2004).
    6. Criterion: 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 Determination: As a condition of EPA's grant of the waiver, 
Illinois has given a written assurance satisfactory to EPA (letter from 
Gary Flentge, Chief, Division of Environmental Health, IDPH, to Philip 
King, Asbestos Coordinator, EPA Region V, dated June 30, 2005), 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 amount of time, take the steps necessary to 
ensure that Illinois' statutory and regulatory provisions remain at 
least as stringent as the U.S. EPA asbestos-in-schools program.'' Such 
an action, to remain consistent with federal law and regulation, is 
mandated under Illinois State law (105 ILCS 105/7).
    A second condition placed upon EPA's grant of the waiver was that 
so long as the waiver remained in effect, Illinois, utilizing adequate 
resources, would need to continue its asbestos-in-schools 
implementation and enforcement strategy. In the same letter of June 30, 
2005, and in response to this condition, the State declared that: 
``Further, it is the intent of the IDPH to maintain the AHERA program 
within the State.'' Although fully satisfied by this response, EPA does 
nevertheless retain the right to periodically re-evaluate the adequacy 
of the Illinois program under 40 CFR 763.98, and, under circumstances 
set forth in the regulation, might, in whole or in part, rescind the 
waiver if the Agency determined the program to be inadequate at any 
time in the future.

E. 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

[[Page 57875]]

OMB control number 2070-0091. This document announces the Agency's 
grant of the Illinois waiver request and 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, supporting documentation, and 
other relevant documents.

List of Subjects

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

    Dated: September 22, 2005.
Norman Niedergang,
Acting Regional Administrator, Region V.

[FR Doc. 05-19865 Filed 10-3-05; 8:45 am]
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