[Federal Register Volume 59, Number 228 (Tuesday, November 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29378]
[[Page Unknown]]
[Federal Register: November 29, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 763
OPPTS-62142; FRL-4918-6
Asbestos-Containing Materials in Schools; State Request for
Waiver from Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed waiver.
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SUMMARY: EPA has received from the State of Colorado a request for a
waiver from the requirements of 40 CFR part 763, Subpart E, Asbestos-
Containing Materials in Schools. This document announces an opportunity
for public review and comment on the State waiver request.
DATES: Comments on the waiver request must be received by January 30,
1995.
ADDRESSES: Written comments must be sent in triplicate, identified by
the docket control number OPPTS-62142 to: Christina E. Thomas, Toxic
Substances Branch (8ART-TS), Environmental Protection Agency, Region
VIII, 999 18th St., Suite 500, Denver, CO 80202-2405. Copies of the
Colorado waiver request are on file and may be reviewed at the EPA
Region VIII office.
FOR FURTHER INFORMATION CONTACT: Christina E. Thomas, Toxic Substances
Branch (8ART-TS), Environmental Protection Agency, Region VIII, 999
18th St., Denver, CO 80202-2405, Telephone: 303-293-1713.
SUPPLEMENTARY INFORMATION: This document is issued under the authority
of Title II of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2641,
et seq. TSCA Title II was enacted as part of the Asbestos Hazard
Emergency Response Act (AHERA), Pub. L. 99-519. AHERA is the name
commonly used to refer to the statutory authority for EPA's rules
affecting asbestos in schools. For purposes of this document, EPA will
use the AHERA designation. In the Federal Register of October 30, 1987
(52 FR 41846), EPA issued a final rule as required in AHERA, the
Asbestos-Containing Materials in Schools Rule (40 CFR part 763, Subpart
E), which requires all Local Education Agencies (LEAs) to identify
Asbestos-Containing Building Materials (ACBMs) in their school
buildings and to take appropriate actions to control the release of
asbestos fibers. The LEAs are required to describe their asbestos
control activities in management plans, which must be available to all
concerned persons and submitted to the State Governor's Designee. The
rule requires LEAs to use specially trained and accredited persons to
conduct inspections for asbestos, develop management plans, and design
and conduct actions to control asbestos.
The recordkeeping and reporting burden associated with waiver
requests was cleared under OMB control number 2070-0091. This document
merely announces the Agency's receipt of a waiver request and therefore
impose no additional burden beyond that which was covered under
existing OMB control number 2070-0091. Send any comments regarding the
burden estimate or any other aspect of this collection to Chief,
Information Policy Branch (2136), U.S. Environmental Protection Agency,
401 M St., SW., Washington, DC 20460 and to the Office of Information
and Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, (``Attention: Desk Officer'').
Under section 203 of TSCA Title II, EPA may, upon request of a
State Governor and after notice and comment and opportunity for a
public hearing in the State, waive in whole or in part the requirements
of the rule promulgated under section 203, if the State has established
and is implementing or intends to implement a program of asbestos
inspection and management which is at least as stringent as the
requirements of 40 CFR part 763 Subpart E. The AHERA rule requests
specific information be included in a waiver request submitted to EPA,
establishes a process for reviewing waiver requests, and sets forth
procedures for oversight and rescission of waivers granted to the
States.
The rule requires States seeking waivers to submit requests to the
Regional Administrator for the EPA Region in which the State is
located. EPA is hereby issuing a notice in the Federal Register
announcing receipt of the request and soliciting written comments from
the public pertaining to the State of Colorado's asbestos waiver
request, and Senate Bill 94-139's impact on the implementation and
enforcement of Colorado's Regulation 8. Comments must be submitted by
[insert date 60 days after date of publication in the Federal
Register]. If during the comment period, EPA receives a written
objection to the State's request, EPA will schedule a hearing to be
held in the affected State after the close of the comment period.
On July 7, 1994, Governor Roy Romer submitted to William
Yellowtail, Regional Administrator, EPA Region VIII, a request for a
waiver under the AHERA 40 CFR 763.98. The request was received by the
Regional Office on July 12, 1994. The State's submittal requested a
waiver from all requirements of 40 CFR part 763, Subpart E.
The State's waiver request was complete in that it contained all of
the following provisions which are required by the AHERA:
1. A copy of the State provisions and proposed provisions relating
to its program of asbestos inspection and management in schools for
which the request is made.
2. The name of the State agency that is responsible for
administering and enforcing the requirements for which a waiver is
requested, the names and job titles of responsible officials in that
agency, and phone numbers where the officials can be contacted.
3. Detailed reasons, supporting papers, and the rationale for
concluding that the State's asbestos inspection and management program
provisions for which the request is made are at least as stringent as
the requirements of 40 CFR part 763, Subpart E.
4. A discussion of any special situations, problems, and needs
pertaining to the waiver request accompanied by an explanation of how
the State intends to handle them.
5. A statement of the resources that the State intends to devote to
the administration and enforcement of the provisions relating to the
waiver request.
6. Copies of any specific or enabling State laws and regulations
relating to the request, including provisions for assessing criminal
and/or civil penalties.
7. Assurance from the Governor or the lead agency that the lead
agency has the legal authority necessary to carry out the requirements
relating to the request.
EPA may waive some or all of the requirements of 40 CFR part 763,
Subpart E if:
1. The State has the legal authority necessary to carry out the
provisions of asbestos inspection and management in schools relating to
the waiver request. The Colorado Department of Public Health and
Environment recognizes that asbestos exposure in schools (and
elsewhere) is a serious concern. The Colorado General Assembly also
recognized this, and during a 1987 legislative session a bill was
passed authorizing the Air Pollution Control Division, Colorado
Department of Public Health and Environment to implement State
requirements under the AHERA, establish a certification program for
abatement contractors, develop and implement asbestos work practices
and exposure standard, collect fees, and levy fines. Effective June 30,
1993, Colorado's revised asbestos regulation required the certification
of all persons engaging in asbestos-related work. The requirement
applies to all public and commercial buildings as well as schools. The
revised regulation also contains more stringent work practices for
asbestos abatement and expands the enforcement capabilities of the
State in regards to false training documents submitted to obtain
certification. The Colorado General Assembly has enacted authority for
the Colorado Air Quality Control Commission to enforce rules and
regulations to minimize the risk to the public from the exposure to
asbestos, including specifically, requirements for asbestos management
plans to be submitted and implemented by schools. All requisite
legislative/legal authority to implement the AHERA waiver program have
been adopted, and no problems are anticipated in meeting waiver
objectives.
2. The State's asbestos inspection and management will be at least
as stringent as the requirements of 40 CFR part 763 Subpart E. The
requirements of Subpart E of 40 CFR part 763 have been adopted in its
entirety, with the exception of Secs. 763.97 and 763.98 into the
Colorado Air Quality Control Commission's Regulation No. 8, Part B,
``Emission Standards for Asbestos'' School Requirements. The State
intends to administer these regulations in a manner that would be at
least as stringent as the requirements of 40 CFR part 763, Subpart E.
3. The State has the appropriate enforcement resources to devote to
the administration and enforcement of the provisions relating to the
waiver request. The State conducts routine AHERA inspections, abatement
inspections and ``for cause'' inspections. Routine AHERA inspections
result in a determination of compliance with the need to have and
implement an adequate, updated management plan. Routine inspections
focus on assessing compliance with the AHERA and State asbestos
requirements, including such things as implementation of appropriate
work practices, compliance with accreditation (State Certification)
requirements and proper recordkeeping. ``For cause'' inspections, are
initiated as a result of tips or complaints, and are made to assess
compliance with any applicable State or EPA asbestos rules. The State
will continue to update its existing Neutral Administrative Inspection
Scheme (NAIS) in support of targeting LEAs and other ``persons'' for
AHERA compliance inspections. The NAIS will include a specific method
or criteria for selecting inspection targets and will comply with EPA's
National Compliance Monitoring Strategies for AHERA. The State has
devoted five full-time employees to the existing TSCA Enforcement Grant
and will continue to devote at least that amount of time to stringently
enforce the requirements of 40 CFR part 763, Subpart E. The State has
completed an enforcement response policy to determine the most
appropriate enforcement action for each violation of the State's laws
and regulations.
4. The State has or will have qualified personnel to carry out the
provisions relating to the waiver request. The program will be carried
out by staff in the Colorado Department of Public Health and
Environment, Air Pollution Control Division. The State is currently
well staffed on the TSCA Asbestos program. The staff is fully trained
and certified as Building Inspector/Management Planners and Contractor/
Supervisors. Two of three staff persons are conducting full AHERA
inspections. One staff person is conducting Worker Protection
inspections and is currently training to conduct full AHERA
inspections. The fourth person administers the grant and works on case
development resulting from inspections.
5. The State will devote adequate resources to the administration
and enforcement of the asbestos inspection and management provisions
relating to the waiver request. Based upon review by the EPA Region
VIII Office, the Agency feels that the Colorado Department of Public
Health and Environment has and will devote adequate resources to
effectively implement and administer the asbestos program in Colorado.
6. When specified by EPA, the State gives satisfactory assurances
that 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 applicable criteria in items 2 through
5 above. Final approval of the program by EPA will require effective
implementation and continued use of the EPA-approved NAIS, logging and
tracking system, enforcement strategy/standard operating procedure,
enforcement response policy, and communication strategy. EPA's final
approval of the State's program will require the State to provide
adequate resources to support the administration of the program.
The reporting and recordkeeping provisions relating to State
waivers from the requirements of the Asbestos-Containing Materials in
Schools Rule (40 CFR part 763) have been approved by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act and have
been assigned OMB control number 2070-0091.
On June 1, 1994, Colorado Governor Roy Romer signed Senate Bill 94-
139 (S.B. 139). S.B. 139 may have an impact on enforcement of
Colorado's asbestos rules and regulations. S.B. 139 appears to create a
statutory privilege for environmental audits and a presumption against
imposition of penalties for voluntary disclosures arising out of an
environmental self-evaluation. EPA is concerned that S.B. 139 restricts
the enforcement options available to the State and, therefore, may not
be as stringent as the AHERA. Prior to making a final decision on
Colorado's request for an AHERA waiver, the State, should clarify S.B.
139's impact on the State's enforcement capabilities. EPA intends to
request a legal analysis from the State on whether S.B. 139 applies to
Colorado's asbestos rules and regulations, and if so, to what extent.
In addition, EPA specifically requests public comment on this issue.
EPA with this document is hereby announcing receipt of the State's
request and soliciting written comments from the public pertaining to
the State of Colorado's asbestos waiver request, and Senate Bill 94-
139's impact on the implementation and enforcement of Colorado's
Regulation 8. Comments must be submitted by January 30, 1995. If during
the comment period, EPA receives a written objection to the State's
request, EPA will schedule a hearing to be held in the affected State
after the close of the comment period.
Dated: November 17, 1994.
Jack McGraw,
Acting Regional Administrator, Region VIII.
[FR Doc. 94-29378 Filed 11-28-94; 8:45 am]
BILLING CODE 6560-50-F
