[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Notices]
[Pages 77683-77686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30201]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2008-0790; FRL-8754-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed approval and request for comments.

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SUMMARY: This action provides notice and an opportunity for public 
hearing, and solicits written comments on EPA's proposed waiver of the 
requirements of the Federal asbestos-in-schools program for the State 
of New Hampshire. A waiver request will be granted if EPA determines 
that the State of New Hampshire is implementing or intends to implement 
a state program of asbestos inspection and management that is at least 
as stringent as the federal program. This action provides notice and an 
opportunity for a public hearing, and solicits written comments on the 
waiver request submitted by the State of New Hampshire.

DATES: Written comments under Docket ID Number EPA-HQ-OPPT-2008-0790 
must be received by February 17, 2009. Each comment must include the 
name and address of the submitter. Any request for a public hearing 
must be in writing, and be received on or before February 17, 2009, 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 New Hampshire following the comment 
period. EPA will announce the date of the public hearing in the Federal 
Register.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-HQ-
OPPT-2008-0790, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (617) 918-0563.
    4. Mail: Docket ID Number EPA-HQ-OPPT-2008-0790, Asbestos 
Coordinator, Region 1--New England, Environmental Protection Agency, 
One Congress Street, Suite 1100 Mailcode SEP, Boston, MA 02114-2023.
    5. Hand Delivery or Courier: James M. Bryson, Asbestos Coordinator, 
Region 1--New England, Environmental Protection Agency, One Congress 
Street, Suite 1100 Mailcode SEP, Boston, MA 02114-2023. Such deliveries 
are only accepted during the Regional Office's normal hours of 
operation. The Regional Office's official hours of business are Monday 
through Friday, 8:30 to 5, excluding Federal holidays.
    Instructions: Direct your comments to Docket ID Number EPA-HQ-OPPT-
2008-0790. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through http://www.regulations.gov 
or e-mail, information that you consider to be CBI or otherwise 
protected.
    The http://www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. 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. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute.

[[Page 77684]]

Certain other material, such as copyrighted material, is not placed on 
the Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy with the Asbestos 
Coordinator, Region 1--New England, Environmental Protection Agency, 
One Congress Street, Suite 1100 Mailcode SEP, Boston, MA 02114-2023. 
EPA requests that if at all possible, you contact the person listed in 
the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday, 8:30 to 5 excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, 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) 564-8182; e-mail address: [email protected].
    For technical information contact: James M. Bryson, Asbestos 
Coordinator, Region 1--New England, Environmental Protection Agency, 
One Congress Street, Suite 1100 Mailcode SEP, Boston, MA 02114-2023; 
telephone number: (617) 918-1524; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

A. What Action Is the Agency (EPA) Taking?

    EPA is considering granting a waiver of the asbestos-in-schools 
program to the State of New Hampshire. This notice is issued, and the 
waiver, if granted, would be issued under Section 203(m) of the Toxic 
Substances Control Act (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 generally includes 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, at 15 U.S.C. 2643, 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 that State is located.

C. When Did New Hampshire Submit Its Request for a Waiver and How Is 
EPA Proposing To Respond?

    On July 15, 2008, Governor John H. Lynch submitted to the EPA 
Region 1 Regional Administrator, a letter with supporting documentation 
requesting a full waiver of the requirements of EPA's asbestos-in-
schools program pursuant to the AHERA statute and 40 CFR 763.98. The 
EPA Region 1 Administrator indicated to New Hampshire, by letter dated 
July 31, 2008, that the request was received. On September 30, 2008, 
the Manager of EPA's Toxics and Pesticides Unit submitted comments to 
the New Hampshire Department of Environmental Service's Air Resources 
Division regarding the AHERA waiver request. The State provided EPA 
with a response, dated October 10, 2008, in which each of EPA's 
comments was addressed.
    EPA is hereby issuing this notice in the Federal Register 
announcing receipt of the complete New Hampshire waiver request and an 
opportunity for public comment and a hearing (if necessary) and, also, 
making the request and supporting documentation available in the public 
record for this notice. The Agency is also describing the information 
submitted by New Hampshire and EPA's preliminary determination as to 
how the waiver request meets the criteria for granting a waiver.

D. What Was EPA's Determination With Regard to the Completeness of New 
Hampshire's Waiver Request?

    The New Hampshire waiver request was deemed complete 30 days after 
receipt by EPA with regard to the required contents of a waiver 
request, as specified at 40 CFR 763.98. In particular, the State's 
waiver request contains the following information from, and 
representations by, New Hampshire:
    1. A copy of the New Hampshire regulatory provisions relating to 
its program. These consist of the following, as well as other 
supporting documentation: (a) A copy of the proposed New Hampshire 
regulatory provisions related to its program of asbestos inspection and 
management in Schools RSA 141-E:4, I and II, Chapter Env-A 1800 
Asbestos Management And Control Regulations, (b) A comparison of the 
New Hampshire School Program RSA 141-E:4, I and II, Chapter Env-A 1800 
Asbestos Management And Control Regulations, to the EPA program at 40 
CFR part 763, Subpart E, (c) an assurance of Legal Authority from New 
Hampshire Attorney General, and (d) a reference to the New Hampshire 
Compliance Assurance Response Policy (CARP) at http://des.nh.gov/organization/commissioner/legal/carp/index.htm which describes New 
Hampshire's approach to enforcement, relevant legal authorities, and 
penalty calculations. New Hampshire intends to use as guidance EPA's 
January 31, 1989 AHERA Enforcement Response Policy (ERP) to calculate 
penalties based on determinations of the circumstance level and extent 
of severity applicable to specific violations.
    2. The agency that is responsible for administrating and enforcing 
the requirements for which a waiver is requested is the New Hampshire 
Department of Environmental Services (DES), Division of Air Resources, 
Compliance Bureau. The officials within the Compliance Bureau who are 
responsible for New Hampshire's asbestos-in-schools program are: Pamela 
G. Monroe, Compliance Bureau Administrator; Barbara L. Hoffman, 
Compliance and Enforcement Programs Manager; Stephen G. Cullinane, 
Asbestos Program Manager; Marjorie Yin, AHERA Specialist; and Elizabeth 
Nixon, Enforcement Section Supervisor.
    3. Detailed reasons, supporting papers, and rationale for 
concluding that New Hampshire's asbestos inspection and management 
programs, for which the waiver request is made, are at least as 
stringent as the

[[Page 77685]]

requirements of the AHERA Schools Rule (40 CFR part 763, subpart E).
    4. New Hampshire neither highlighted nor discussed any special 
situations, problems, and needs pertaining to the State's waiver 
request. Accordingly, no explanation of how the State would handle the 
issues was provided.
    5. A statement of the resources that New Hampshire intends to 
devote to the administration and enforcement of the provisions relating 
to the waiver request.
    6. Copies of any specific or enabling New Hampshire laws and 
regulations relating to the request, including provisions for assessing 
criminal and/or civil penalties.
    7. Assurance from the Governor, that DES has the legal authority 
necessary to carry out the requirements relating to the waiver request, 
as indicated in the July 15, 2008, letter from Governor Lynch of New 
Hampshire to the EPA Region [email protected] 1 Regional 
Administrator.

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 New Hampshire 
has met the criteria set forth at 40 CFR 763.98. The specific criteria 
and EPA's preliminary determination for each relative to the grant of 
the waiver to New Hampshire are set forth below:
    1. The State's lead agency has the legal authority necessary to 
carry out the provisions of asbestos inspection and management in 
schools relating to the waiver request.
    Preliminary Determination--EPA has determined preliminarily that 
the statutory and regulatory provisions cited at Section I.D.1 of this 
notice gives DES' Division of Air Resources the legal authority 
necessary to carry out the provisions of asbestos inspection and 
management in schools relating to the waiver request.
    2. The State's 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.
    Preliminary Determination--EPA has determined preliminarily that 
New Hampshire's program is at least as stringent as EPA's program. On 
October 10, 2008, New Hampshire addressed the EPA recommended revisions 
as provided in EPA's September 30, 2008 correspondence. On October 16, 
2008 New Hampshire's Joint Legislative Committee on Administrative 
Rules approved the New Hampshire RSA 141-E:4, I and II, Chapter Env-A 
1800 Asbestos Management and Control Regulations.
    3. The State has an enforcement mechanism to allow it to implement 
the program described in the waiver request.
    Preliminary Determination--EPA has determined preliminarily that 
the compliance and enforcement provisions of New Hampshire's asbestos-
in-schools program are adequate to run the program. DES is authorized 
by RSA 141-E to implement a program of asbestos licensing, inspection 
and management. DES has the authority to enter any public building, 
facility, school, or rental dwelling to ``cause inspections to be 
carried out'' if the agency has reason to suspect the presence of 
regulated asbestos-containing material RSA 141-E:8. DES has authority 
to enter any asbestos abatement worksite, obtain samples for air 
testing and monitoring, procure and examine licenses issued under RSA 
141-E:10 and certificates issued under RSA 141-E:11, and to request, 
inspect, and record information or test results relating to school 
asbestos abatement planning activities. RSA 141-E:13.
    DES has the authority to enforce the state's asbestos laws and 
rules through orders and notices of abatement. RSA 141-E:14. DES has 
the authority to impose administrative fines up to $2,000 per 
violation. RSA 141-E:16. Through the NH Attorney General, DES can seek 
civil penalties up to $25,000 per day as well as injunctive relief for 
violations of RSA 141-E and any rule adopted thereunder. RSA 141-E:17. 
Any person who knowingly and willfully violates any provisions of RSA 
141-E or any rule adopted thereunder, or who violates any term or 
condition of a license, certification or order issued under RSA 141-E, 
or who makes or certifies a material false statement relative to any 
document or information required under RSA 141-E is guilty of a class B 
felony and can be fined $25,000 per day per violation. RSA 141-E:15. To 
help ensure compliance with its asbestos regulations, DES will revise 
their Neutral Administrative Inspection Scheme (NAIS) for targeting 
compliance inspections. By focusing on activities where problems are 
most likely to occur, the NAIS is designed to maximize the 
effectiveness of DES' inspection/enforcement efforts toward preventing 
and controlling asbestos-related risks to human health and the 
environment.
    4. The State has or will have qualified personnel to carry out the 
provisions relating to the waiver request.
    Preliminary Determination--EPA has determined preliminarily that 
New Hampshire has qualified personnel to carry out the provisions of 
the waiver. The existing program staff includes 2 employees trained to 
enforce the requirements of 40 CFR part 763, subpart E. The program 
will be carried out by staff in the DES' Division of Air Resources, 
Compliance Bureau. New Hampshire commits approximately 2 persons each 
year to AHERA compliance monitoring and enforcement activities under 
the EPA TSCA Asbestos Enforcement Grant. Staff is fully trained and 
certified as Contractor/Supervisor, Inspector, and Management Planner.
    5. The State will devote adequate resources to the administration 
and enforcement of the asbestos inspection and management provisions 
relating to the waiver request.
    Preliminary Determination--EPA has determined preliminarily that 
the resources developed by DES' Division of Air Resources are adequate 
to effectively administer and enforce the provisions of the asbestos 
program in New Hampshire. In particular, New Hampshire is currently 
expected to receive funding through an EPA grant in the amount of 
$100,000 annually which, when combined with State matching funds of 
approximately $33,000, results in a total funding level of $133,000 for 
this FY 2009.
    6. The State has responded to EPA and addressed all of the Agency's 
concerns in numbers 2 through 4 above.
    Preliminary Determination--EPA will grant a full waiver as long as 
New Hampshire continues its asbestos-in-schools implementation and 
enforcement strategy utilizing adequate resources. EPA may evaluate 
periodically the adequacy of New Hampshire's program under 40 CFR 
763.98, and under circumstances set forth in the regulation.

F. What Recordkeeping and Reporting Burden Approvals Apply to the New 
Hampshire 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 XXXX-XXX. This document simply announces the 
Agency's receipt of the New Hampshire waiver request and therefore it 
imposes no additional burden beyond that covered under existing OMB 
control number XXXX-XXXX.

II. Materials in the Official Record

    The official record, under Docket ID Number EPA-HQ-OPPT-2008-0790,

[[Page 77686]]

contains the New Hampshire waiver request and other supporting, 
relevant documents underlying the State's request and EPA's proposed 
approval in response to the request.

    Dated: November 30, 2008.
Robert W. Varney,
Regional Administrator, EPA New England.
 [FR Doc. E8-30201 Filed 12-18-08; 8:45 am]
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