05-19865. Asbestos-Containing Materials in Schools; State Request for Waiver from Requirements; Notice of Final Decision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

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.

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: [phone]; e-mail: [e-mail].

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: [phone]). The responsible official from the Illinois Attorney General's Office is Matthew J. Dunn, Chief, Environmental Enforcement/Asbestos Litigation Division (telephone: [phone]). 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 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 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.