B

- 1 **EPA ICR No. 1365. 10**  **; OMB Control No. 2070**

**- 0091** 

**Attachment C**

**Asbestos**

**- Containing Materials in Schools Rule** 

**40 CFR 763, Subpart E**B

- 2 **TITLE 40**

**-- PROTECTION OF ENVIRONMENT** 
**CHAPTER I**

**-- ENVIRONMENTAL PROTECTION AGENCY** 

**PART 763**

**-- ASBESTOS** 

**-- Table of Conte**  **nts**

**Subpart E**

**-- Asbestos** 

**- Containing Materials in Schools** 

Source: 52 FR 41846, Oct. 30, 1987, unless otherwise noted.

**Sec. 763.80 Scope and purpose.**

(a) This rule requires local education agencies to identify friable and nonfriable asbestos

co ntaining material (ACM) in public and private elementary and secondary

schools by

visuall y inspecting school buildings for such materials, sampling such materials if they are not assumed to be ACM, and having samples anal yz ed b y appropriate techniques refe rred to in this rule. The rule requires local education agencies to submit management plans to the Governor of their State by October 12, 1988, begin to implement the plans by July 9, 1989, and complete implementation of the plans in a timely fashion. In a ddition, local education agencies are required to use persons who have been accredited to conduct inspections, reinspections, develop management plans, or perform response actions. The rule also includes recordkeeping requirements. Local education agencies may contractuall y delegate their duties under this rule, but they remain responsible for the proper performance of those duties. Local education agencies are encouraged to consult with EPA Regional Asbestos Coordinators, or if applicable, a State's
lead a gency

designated by

the State Governor, for assistance in compl yi ng with this rule. (b) Local education agencies must provide for the transportation and disposal of asbestos in accordance with EPA's ''Asbestos Waste Management Guidance.'' For convenien ce, applicable sections of this guidance are reprinted as Appendix D of this subpart. There are regulations in place, however, that affect transportation and disposal of asbestos waste generated by this rule. The transportation of asbestos waste is covered by the Department of Transportation (49 CFR part 173, subpart J) and disposal is covered b y the National Emissions Standards for Hazardous Air Pollutants (NESHAP) (40 CFR part 61, subpart M).

**Sec. 763.83 Definitions.**

For purposes of this subpart:

Act means the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601, et seq.
Accessible when referring to ACM means that the material is subject to disturbance by school building occupants or custodial or maintenance personnel in the course of their n ormal activities.
Accredited or accreditation when referring to a person or laboratory means that such person or laboratory

is accredited in accordance with section 206 of Title II of the Act.

Air erosion means the passage of air over friable ACBM which may result in the release of
asbestos fibers.
Asbestos means the asbestiform varieties of: Chry sotile (serpentine); crocidolite (riebeckite); amosite (cum

- mingtonitegrunerite); anthophy llite; tremolite; and actinolite.
Asbestos

- containing ma terial (ACM) when referring to school buildings means an y material or product which contains more than 1 percent asbestos.B

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Asbestos

- containing building material (ACBM) means surfacing ACM, thermal system insulation ACM, or miscellaneous ACM that is fou nd in or on interior structural members or other parts of a school building.
Asbestos debris means pieces of ACBM that can be identified b y color, texture, or composition, or means dust, if the dust is determined by an accredited inspector to be ACM. Damaged friable miscellaneous ACM means friable miscellaneous ACM which has deteriorated or sustained phy sical injury such that the internal structure (cohesion) of the material is inadequate or, if applicable, which has delaminated such that its bond t o the substrate (adhesion) is inadequate or which for an y other reason lacks fiber cohesion or adhesion qualities. Such damage or deterioration may be illustrated by

the separation of ACM into lay ers; separation of ACM from the substrate; flaking, blisteri ng, or crumbling of the ACM surface; water damage; significant or repeated water stains, scrapes, gouges, mars or other signs of phy sical injury

on the ACM. Asbestos debris originating from the ACBM in question may also indicate damage. Damaged friabl e surfacing ACM means friable surfacing ACM which has deteriorated or sustained phy sical injury

such that the internal structure (cohesion) of the material is inadequate or which has delaminated such that its bond to the substrate (adhesion) is inadequate, or which,
for an y other reason, lacks fiber cohesion or adhesion qualities. Such damage or deterioration

may be illustrated by

the separation of ACM into lay ers; separation of ACM from the substrate; flaking, blistering, or crumbling of the ACM surface; water damage; significant or repeated water stains, scrapes, gouges, mars or other signs of phy sical injury on the ACM. Asbestos debris originating from the ACBM in question may also indicate damage. Damaged or significantly damaged thermal system insu lation ACM means thermal sy stem insulation ACM on pipes, boilers, tanks, ducts, and other thermal s ys tem insulation equipment where the insulation has lost its structural integrit y, or its covering, in whole or in part, is crushed, water

- stained, gouged, p unctured, missing, or not intact such that it is not able to contain fibers. Damage may be further illustrated by

occasional punctures, gouges or other signs of phy sical injury

to ACM; occasional water damage on the protective coverings/jackets; or

expose d ACM ends or joints. Asbestos debris originating from the ACBM in question may also indicate damage. Encapsulation means the treatment of ACBM with a material that surrounds or embeds asbestos fibers in an adhesive matrix to prevent the release of fib ers, as the encapsulant creates a membrane over the surface (bridging encapsulant) or penetrates the material and binds its components together (penetrating encapsulant).
Enclosure means an airtight, impermeable, permanent barrier around ACBM to preven t the
release of asbestos fibers into the air. Fiber release episode means an y uncontrolled or unintentional disturbance of ACBM resulting
in visible emission.
Friable when referring to material in a school building means that the material, when dr y, ma y be crumbled, pulverized, or reduced to powder b y hand pressure, and includes previousl y nonfriable material after such previousl y nonfriable material becomes damaged to the extent that when dry

it may be crumbled, pulverized, or reduced to powder b y hand pressure. Functional space means a room, group of rooms, or homogeneous area (including crawl spaces or the space between a dropped ceiling and the floor or roof deck above), such as classroom(s), a cafeteria, gy mnasium, hallway (s), designated b y a person accredited to prepare management plans, design abatement projects, or conduct response actions.B

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High

- efficiency particulate air (HEPA) refers to a filtering sy stem capable of trapping and retaining at least 99.97 percent of all monodispersed particles 0.3 μm in diameter or larger. Homogeneous area means an area of surfacing material, thermal s ys tem insulation material, or
miscellaneous material that is uniform in color and texture. Local education agency means: (1) An y local educa tional agency as defined in section 198 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 3381). (2) The owner of an y nonpublic, nonprofit elementary , or secondary school building. (3) The governing authority of any school operated u nder the defense dependent's education

sy stem provided for under the Defense Dependents' Education Act of 1978 (20 U.S.C. 921, et seq.).
Miscellaneous ACM means miscellaneous material that is ACM in a school building.
Miscellaneous material means i nterior building material on structural components, structural members or fixtures, such as floor and ceiling tiles, and does not include surfacing material or thermal sy stem insulation. Nonfriable means material in a school building which when dry may not be crumbled, pulverized, or reduced to powder b y hand pressure. Operations and maintenance program means a program of work practices to maintain friable ACBM in good condition, ensure clean up of asbestos fibers previousl y released, and prevent
fu rther release b y minimizing and controlling friable ACBM disturbance or damage. Potential damage means circumstances in which: (1) Friable ACBM is in an area regularl y used by building occupants, including maintenance personnel, in the course of th eir normal activities. (2) There are indications that there is a reasonable likelihood that the material or its covering will become damaged, deteriorated, or delaminated due to factors such as changes in building use, changes in operations and mainten ance practices, changes in occupancy, or recurrent damage. Potential significant damage means circumstances in which: (1) Friable ACBM is in an area regularl y used by building occupants, including maintenance personnel, in the course of their norm al activities. (2) There are indications that there is a reasonable likelihood that the material or its covering will become significantly damaged, deteriorated, or delaminated due to factors such as changes in building use, changes in operations and m aintenance practices, changes in occupancy , or recurrent damage. (3) The material is subject to major or continuing disturbance, due to factors including, but not limited to, accessibility

or, under certain circumstances, vibration or air erosion.

Preventive measures means actions taken to reduce disturbance of ACBM or otherwise eliminate the reasonable likelihood of the material's becoming damaged or significantl y damaged.
Removal means the taking out or the stripping of substantially all ACBM from a damaged area, a functional space, or a homogeneous area in a school building. Repair means returning damaged ACBM to an undamaged condition or to an intact state so as to prevent fiber release. Response action means a method, including remov al, encapsulation, enclosure, repair, operations and maintenance that protects human health and the environment from friable ACBM.B

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Routine maintenance area means an area, such as a boiler room or mechanical room, that is not normally

frequented by

stud ents and in which maintenance employ ees or contract workers regularl y conduct maintenance activities.
School means an y el ementary or secondary

school as defined in section 198 of the Elementary and Secondary

Education Act of 1965 (20 U.S.C. 2854). School building means: (1) An y structure suitable for use as a classroom, including a school facility such as a laboratory , library , school eating facility , or facility used for the preparation of food. (2) An y gy

mnasium or other facility which is speciall y designed for athletic or recreational activities for an academic course in ph ys ical education. (3) An y other facilit y used for the instruction or housing of students or for the administration of educational or research programs. (4) An y m aintenance, storage, or utility facility , including an y hallway , essential to the operation of an y facilit y described in this definition of ''school building'' under paragraphs (1), (2), or (3). (5) An y portico or covered exterior hallway or walkway

. (6) An y exterior portion of a mechanical s ys tem used to condition interior space. Significantly damaged friable miscellaneous ACM means damaged friable miscellaneous ACM where the damage is extensive and severe. Significantly damaged friable surfacing ACM means damaged friable surfacing ACM in a functional space where the damage is extensive and severe.

State means a State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Marianas, the Trust Ter ritory of the Pacific Islands, and the Virgin Islands. Surfacing ACM means surfacing material that is ACM. Surfacing material means material in a school building that is spray ed

- on, troweled

- on, or otherwise applied to surfaces, such as acoustical plaster on ceilings and fireproofing materials on structural members, or other materials on surfaces for acoustical, fireproofing, or other purposes. Thermal system insulation means material in a school building applied to pipes, fittings, boilers, bre eching, tanks, ducts, or other interior structural components to prevent heat loss or gain, or water condensation, or for other purposes. Thermal system insulation ACM means thermal sy stem insulation that is ACM.
Vibration means the periodic motion of friable ACBM which may result in the release of
asbestos fibers.

**Sec. 763.84 General local education agency responsibilities.**

Each local education agency shall: (a) Ensure that the activities of any persons who perform inspections, reinspect ions, and periodic surveillance, develop and update management plans, and develop and implement response actions, including operations and maintenance, are carried out in accordance with subpart E of this part. (b) Ensure that all custodial and mainte nance employ ees are properl y trained as required b y this subpart E and other applicable Federal and/or State regulations (e.g., the Occupational Safet y and Health Administration asbestos standard for construction, the EPA worker protection rule, or applica ble State regulations).B

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(c) Ensure that workers and building occupants, or their legal guardians, are informed at least
once each school ye ar about inspections, response actions, and post

- response action activities, including periodic reinspection and surveillance activities that are planned or in progress. (d) Ensure that short

- term workers (e.g., telephone repair workers, utility workers, or exterminators) who may

come in contact with asbestos in a school are provided information regarding the lo cations of ACBM and suspected ACBM assumed to be ACM. (e) Ensure that warning labels are posted in accordance with Sec. 763.95. (f) Ensure that management plans are available for inspection and notification of such availability

has been provided as specified in the management plan under Sec. 763.93(g). (g)(1) Designate a person to ensure that requirements under this section are properl y implemented. (2) Ensure that the designated person receives adequate training to perform duties assigned

u nder this section. Such training shall provide, as necessary , basic knowledge of: (i) Health effects of asbestos. (ii) Detection, identification, and assessment of ACM. (iii) Options for controlling ACBM. (iv) Asbestos management programs. (v) Relevant Federal and State regulations concerning asbestos, including those in this subpart E and those of the Occupational Safet y and Health Administration, U.S. Department of Labor, the U.S. Department of Transportation and the U.S. Environmental Protection Agency

. (h) Consider whether any conflict of interest may

arise from the interrelationship among accredited personnel and whether that should influence the selection of accredited personnel to perform activities under this subpart.

**Sec. 76 3.85 Inspection and reinspections.** 

(a ) Inspection. (1) Except as provided in paragraph (a)(2) of this section, before October 12, 1988, local education agencies shall inspect each school building that they lease, own, or
otherwise use as a school bui lding to identify all locations of friable and nonfriable ACBM. (2) An y building leased or acquired on or after October 12, 1988, that is to be used as a school building shall be inspected as described under paragraphs (a) (3) and (4) of this section p rior to use as a school building. In the event that emergency use of an uninspected building as a school building is necessitated, such buildings shall be inspected within 30 day s after commencement of
such use. (3) Each inspection shall be made b y an accredited inspector. (4) For each area of a school building, except as excluded under Sec. 763.99, each person performing an inspection shall: (i) Visually

inspect the area to identify the locations of all suspected ACBM. (ii) Touch all suspec ted ACBM to determine whether they are friable. (iii) I dentify

all homogeneous areas of friable suspected ACBM and all homogeneous areas of nonfriable suspected ACBM. (iv) Assume that some or all of the homogeneous areas are ACM, and, for each homo geneous area that is not assumed to be ACM, collect and submit for anal ys is bulk samples under Secs.
763.86 and 763.87.B

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(v) Assess, under Sec. 763.88, friable material in areas where samples are collected, friable
material in areas that are assumed to be ACBM, and friable ACBM identified during a previous inspection. (vi) Record the following and submit to the person designated under Sec. 763.84 a cop y of such record for inclusion in the management plan within 30 day s of the inspection: (A) An i nspection report with the date of the inspection signed by each accredited person making the inspection, State of accreditation, and if applicable, his or her accreditation number. (B) An inventory

of the locations of the homogeneous areas where sample s are collected, exact location where each bulk sample is collected, dates that samples are collected, homogeneous areas where friable suspected ACBM is assumed to be ACM, and homogeneous areas where nonfriable suspected ACBM is assumed to be ACM. (C) A description of the manner used to determine sampling locations, the name and signature of each accredited inspector who collected the samples, State of accreditation, and, if applicable,
his or her accreditation number. (D) A list of whether the homo geneous areas identified under paragraph (a)(4)(vi)(B) of this section, are surfacing material, thermal s ys tem insulation, or miscellaneous material. (E) Assessments made of friable material, the name and signature of each accredited inspector making t he assessment, State of accreditation, and if applicable, his or her accreditation number. (b ) Reinspection. (1) At least once every 3 y ears after a management plan is in effect, each local education agency

shall conduct a reinspection of all friable a nd nonfriable known or assumed ACBM in each school building that they lease, own, or otherwise use as a school building. (2) Each inspection shall be made b y an accredited inspector. (3) For each area of a school building, each person performing a reinspection shall: (i) Visually

reinspect, and reassess, under Sec. 763.88, the condition of all friable known or
assumed ACBM. (ii) Visually

inspect material that was previously considered nonfriable ACBM and touch the
material to determine whet her it has become friable since the last inspection or reinspection. (iii) I dentify

an y homogeneous areas with material that has become friable since the last inspection or reinspection. (iv) For each homogeneous area of newl y friable material that is already assumed to be ACBM, bulk samples may be collected and submitted for analy sis in accordance with Secs.
763.86 and 763.87. (v) Assess, under Sec. 763.88, the condition of the newl y friable material in areas where samples are collected, and ne wly friable materials in areas that are assumed to be ACBM. (vi) Reassess, under Sec. 763.88, the condition of friable known or assumed ACBM previously

identified. (vii) Record the following and submit to the person designated under Sec. 763.84 a c opy of such record for inclusion in the management plan within 30 day s of the reinspection: (A) The date of the reinspection, the name and signature of the person making the reinspection, State of accreditation, and if applicable, his or her accreditat ion number, and an y changes in the condition of known or assumed ACBM. (B) The exact locations where samples are collected during the reinspection, a description of the manner used to determine sampling locations, the name and signature of each accredi ted inspector who collected the samples, State of accreditation, and, if applicable, his or her
accreditation number.B

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(C) An y assessments or reassessments made of friable material, the name and signature of the accredited inspector making the assessmen ts, State of accreditation, and if applicable, his or her
accreditation number. (c) General . Thermal sy stem insulation that has retained its structural integrit y and that has an undamaged protective jacket or wrap that prevents fiber release shall be t reated as nonfriable and therefore is subject onl y to periodic surveillance and preventive measures as necessary.

**Sec. 763.86 Sampling.**

(a ) Surfacing material. An accredited inspector shall collect, in a statistically random manner that is represent ative of the homogeneous area, bulk samples from each homogeneous area of friable surfacing material that is not assumed to be ACM, and shall collect the samples as
follows: (1) At least three bulk samples shall be collected from each homogeneous area that is 1,000 ft 2
or less, except as provided in Sec. 763.87(c)(2). (2) At least five bulk samples shall be collected from each homogeneous area that is greater than 1,000 ft 2 but less than or equal to 5,000 ft 2 , except as provided in Sec. 763.87(c)(2 ). (3) At least seven bulk samples shall be collected from each homogeneous area that is greater than 5,000 ft 2 , except as provided in Sec. 763.87(c)(2). (b ) Thermal system insulation. (1) Except as provided in paragraphs (b) (2) through (4) of this section and Sec. 763.87(c), an accredited inspector shall collect, in a randoml y distributed manner, at least three bulk samples from each homogeneous area of thermal s ys tem insulation that is not assumed to be ACM. (2) Collect at least one bulk sample from each homogeneous area of patched thermal s ys tem insulation that is not assumed to be ACM if the patched section is less than 6 linear or square
feet. (3) In a manner sufficient to determine whether the material is ACM or not ACM, collect bu lk samples from each insulated mechanical sy stem that is not assumed to be ACM where cement or plaster is used on fittings such as tees, elbows, or valves, except as provided under Sec. 763.87(c)(2). (4) Bulk samples are not required to be collected fr om an y homogeneous area where the accredited inspector has determined that the thermal sy stem insulation is fiberglass, foam glass, rubber, or other non

- ACBM. (c) Miscellaneous material . I n a manner sufficient to determine whether material is ACM or

no t ACM, an accredited inspector shall collect bulk samples from each homogeneous area of
friable miscellaneous material that is not assumed to be ACM. (d ) Nonfriable suspected ACBM. If an y homogeneous area of nonfriable suspected ACBM is
not assumed to be ACM, then an accredited inspector shall collect, in a manner sufficient to determine whether the material is ACM or not ACM, bulk samples from the homogeneous area of nonfriable suspected ACBM that is not assumed to be ACM.

**Sec. 763.87 Analysis.**

(a) Local education agencies shall have bulk samples, collected under Sec. 763.86 and
submitted for anal ys is, analy zed for asbestos using laboratories accredited by the National Bureau of Standards (NBS). L ocal education agencies shall use laboratories whi ch have receivedB

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interim accreditation for polarized light microscopy (PLM) anal ys is under the EPA Interim Asbestos Bulk Sample Analy sis Qualit y Assurance Program until the NBS PL M laboratory accreditation program for PL M is operational. (b) Bulk samp les shall not be composited for analy sis and shall be anal yz ed for asbestos content by

PLM, using the ''Interim Method for the Determination of Asbestos in Bulk I nsulation Samples'' found at appendix E to subpart E of this part. (c)(1) A homogeneous ar ea is considered not to contain ACM only if the results of all samples required to be collected from the area show asbestos in amounts of 1 percent or less. (2) A homogeneous area shall be determined to contain ACM based on a finding that the
results o f at least one sample collected from that area shows that asbestos is present in an amount greater than 1 percent. (d) The name and address of each laboratory performing an analy sis, the date of analy sis, and the name and signature of the person perfor ming the anal ys is shall be submitted to the person designated under Sec. 763.84 for inclusion into the management plan within 30 day s of the
anal ys is.

[52 FR 41846, Oct. 30, 1987, as amended at 60 FR 31922, June 19, 1995]

**Sec. 763.88 Assessment.**

(a )(1) For each inspection and reinspection conducted under Sec. 763.85 (a) and (c) and previous inspections specified under Sec. 763.99, the local education agency shall have an accredited inspector provide a written assessment of all friable known or assum ed ACBM in the school building. (2) Each accredited inspector providing a written assessment shall sign and date the assessment, provide his or her State of accreditation, and if applicable, accreditation number, and submit a copy

of the assessment to the person designated under Sec. 763.84 for inclusion in the management plan within 30 day s of the assessment. (b) The inspector shall classify and give reasons in the written assessment for classify ing the ACBM and suspected ACBM assumed to be ACM in the school building into one of the following categories: (1) Damaged or significantly damaged thermal sy stem insulation ACM. (2) Damaged friable surfacing ACM. (3) Significantly

damaged friable surfacing ACM. (4) Damaged or significantly d amaged friable miscellaneous ACM. (5) ACBM with potential for damage. (6) ACBM with potential for significant damage. (7) An y remaining friable ACBM or friable suspected ACBM. (c) Assessment may

include the following considerations: (1) Location and the amount of the material, both in total quantity and as a percentage of the functional space. (2) Condition of the material, specify ing: (i) Ty pe of damage or significant damage (e.g., flaking, blistering, water damage, or other sig ns of ph ys ical damage). (ii) Severity

of damage (e.g., major flaking, severel y torn jackets, as opposed to occasional flaking, minor tears to jackets).B

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(iii) Extent or spread of damage over large areas or large percentages of the homogeneous

area. (3) Whether the material is accessible. (4) The material's potential for disturbance. (5) Known or suspected causes of damage or significant damage (e.g., air erosion, vandalism, vibration, water). (6) Preventive measures which might elimin ate the reasonable likelihood of undamaged ACM from becoming significantly damaged. (d) The local education agency shall select a person accredited to develop management plans to review the results of each inspection, reinspection, and assessment for t he school building and
to conduct an y other necessary activities in order to recommend in writing to the local education

agency appropriate response actions. The accredited person shall sign and date the recommendation, provide his or her State of accredit ation, and, if applicable, provide his or her accreditation number, and submit a copy of the recommendation to the person designated under Sec. 763.84 for inclusion in the management plan.

**Sec. 763.90 Response actions.**

(a) The local education agency shall select and implement in a timely manner the appropriate response actions in this section consistent with the assessment conducted in Sec. 763.88. The response actions selected shall be sufficient to protect human health and the environment. The
loca l education agency

may then select, from the response actions which protect human health and the environment, that action which is the least burdensome method. Nothing in this section shall be construed to prohibit removal of ACBM from a school building a t any time, should removal be the preferred response action of the local education agency

. (b) If damaged or significantly damaged thermal sy stem insulation ACM is present in a building, the local education agency shall: (1) At least repair the dam aged area. (2) Remove the damaged material if it is not feasible, due to technological factors, to repair the damage. (3) Maintain all thermal sy stem insulation ACM and its covering in an intact state and undamaged condition. (c)(1) If damaged friable surfacing ACM or damaged friable miscellaneous ACM is present in a building, the local education agency shall select from among the following response actions: encapsulation, enclosure, removal, or repair of the damaged material. (2) In selecti ng the response action from among those which meet the definitional standards in Sec. 763.83, the local education agency shall determine which of these response actions protects human health and the environment. For purposes of determining which of these r esponse actions are the least burdensome, the local education agency may then consider local circumstances, including occupancy

and use patterns within the school building, and its economic concerns, including short

- and long

- term costs. (d) If signif

icantly damaged friable surfacing ACM or significantly damaged friable miscellaneous ACM is present in a building the local education agency shall: (1) Immediatel y isolate the functional space and restrict access, unless isolation is not

necessary to p rotect human health and the environment.B

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(2) Remove the material in the functional space or, depending upon whether enclosure or encapsulation would be sufficient to protect human health and the environment, enclose or encapsulate. (e) If an y friab le surfacing ACM, thermal sy stem insulation ACM, or friable miscellaneous ACM that has potential for damage is present in a building, the local education agency shall at least implement an operations and maintenance (O&M) program, as described under Sec.

7 63.91. (f) If an y friable surfacing ACM, thermal s ys tem insulation ACM, or friable miscellaneous ACM that has potential for significant damage is present in a building, the local education

agency shall: (1) Implement an O&M program, as described un der Sec. 763.91. (2) Institute preventive measures appropriate to eliminate the reasonable likelihood that the ACM or its covering will become significantl y damaged, deteriorated, or delaminated. (3) Remove the material as soon as possible if appro priate preventive measures cannot be
effectivel y implemented, or unless other response actions are determined to protect human health and the environment. Immediately isolate the area and restrict access if necessary to avoid an
imminent and substantial en dangerment to human health or the environment. (g) Response actions including removal, encapsulation, enclosure, or repair, other than small

scale, short

- duration repairs, shall be designed and conducted by persons accredited to design and conduct resp onse actions. (h) The requirements of this subpart E in no way supersede the worker protection and work practice requirements under 29 CFR 1926.58 (Occupational Safet y and Health Administration (OSHA) asbestos worker protection standards for constructi on), 40 CFR part 763, subpart G (EPA asbestos worker protection standards for public employ ees), and 40 CFR part 61, subpart M (National Emission Standards for Hazardous Air Pollutants

-- Asbestos). (i) Completion of response actions. (1) At the conclusi on of an y action to remove, encapsulate, or enclose ACBM or material assumed to be ACBM, a person designated by the local education

agency shall visuall y inspect each functional space where such action was conducted to
determine whether the action has been properly completed. (2)(i) A person designated b y the local education agency shall collect air samples using aggressive sampling as described in appendix A to this subpart E to monitor air for clearance after each removal, encapsulation, and enclosure project involving ACBM, except for projects
that are of small

- scale, short

- duration. (ii) L ocal education agencies shall have air samples collected under this section anal yz ed for asbestos using laboratories accredited b y the National Bureau of Stand ards to conduct such
anal ys is using transmission electron microscopy (TEM) or, under circumstances permitted in this section, laboratories enrolled in the American Industrial Hy giene Association Proficiency Analy tical Testing Program for phase contrast mi croscop y (PCM). (iii) Until the National Bureau of Standards TEM laboratory accreditation program is operational, local educational agencies shall use laboratories that use the protocol described in appendix A to subpart E of this part. (3) Except as provided in paragraphs (i)(4), and (i)(5), of this section, an action to remove, encapsulate, or enclose ACBM shall be considered complete when the average concentration of asbestos of five air samples collected within the affected functional space and anal yz ed b y the TEM method in appendix A of this subpart E, is not statistically significantly

different, asB

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determined b y the Z

- test calculation found in appendix A of this subpart E, from the average asbestos concentration of five air samples collected a t the same time outside the affected functional space and analy zed in the same manner, and the average asbestos concentration of the three field blanks described in appendix A of this subpart E is below the filter background level, as defined in appendix A of this subpart E, of 70 structures per square millimeter (70 s/mm 2 ). (4) An action may

also be considered complete if the volume of air drawn for each of the five samples collected within the affected functional space is equal to or greater than 1,1 99 L of air for a 25 mm filter or equal to or greater than 2,799 L of air for a 37 mm filter, and the average
concentration of asbestos as anal yz ed b y the TEM method in appendix A of this subpart E, for the five air samples does not exceed the filter backg round level, as defined in appendix A, of 70 structures per square millimeter (70 s/mm 2 ). I f the average concentration of asbestos of the five air samples within the affected functional space exceeds 70 s/mm 2 , or if the volume of air in each of the sample s is less than 1,199 L of air for a 25 mm filter or less than 2,799 L of air for a 37 mm filter, the action shall be considered complete only when the requirements of paragraph (i)(3) or (i)(5), of this section are met. (5) At an y time, a local educati on agency may analy ze air monitoring samples collected for clearance purposes b y phase contrast microscop y (PCM) to confirm completion of removal, encapsulation, or enclosure of ACBM that is greater than small

- scale, short

- duration and less than or equal t o 160 square feet or 260 linear feet. The action shall be considered complete when the results of samples collected in the affected functional space and anal yz ed by phase contrast microscop y using the National I nstitute for Occupational Safet y and Health ( NI OSH) Method 7400 entitled ''Fibers'' published in the NIOSH Manual of Anal yt ical Methods, 3rd Edition, Second Supplement, August 1987, show that the concentration of fibers for each of the five samples is less than or equal to a limit of quantitation for PCM (0.01 fibers per cubic centimeter (0.01 f/cm 3 ) of air). The method is available for public inspection at the Office of the Federal Register, 800 North Capitol Street, NW, Suite 700, Washington, DC, 20408, and the Non

Confidential I nformation Center (N CI C) (7407), Office of Pollution Prevention and Toxics, U.S. Environmental Protection Agency , Room B

- 607 NEM, 401 M Street, SW., Washington, DC, 20460, between the hours of 12 p.m. and 4 p.m. weekday s excluding legal holiday s. This incorporation b y referen ce was approved b y the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The method is incorporated as it exists on the effective date of this rule, and a notice of an y change to the method will be published in the Fede ral Register. (6) To determine the amount of ACBM affected under paragraph (i)(5) of this section, the local education agency

shall add the total square or linear footage of ACBM within the containment barriers used to isolate the functional space for the action to remove, encapsulate, or enclose the ACBM. Contiguous portions of material subject to such action conducted concurrently

or at approximately

the same time within the same school building shall not be separated to qualify

under paragraph (i)(5 ), of this section.

[52 FR 41846, Oct. 30, 1987, as amended at 53 FR 12525, Apr. 15, 1988; 60 FR 31922, June 19, 1995; 60 FR 34465, July

3, 1995]

**Sec. 763.91 Operations and maintenance.**B

- 13

(a ) Applicability . The local education agency shall implement an operations, maintenance, and repair (O&M) program under this section whenever an y friable ACBM is present or assumed to be present in a building that it leases, owns, or otherwise uses as a school building. Any material
identified as nonfriable ACBM or nonfriable assumed ACBM must be treated as friable ACBM for purposes of this section when the material is about to become friable as a result of activities performed in the school building. (b ) Worker protection . The protection provided by EPA at 40 CF R 763.121 for worker protection during asbestos abatement projects is extended to employ ees of local education agencies who perform operations, maintenance, and repair (O&M) activities involving ACM and
who are not covered b y the OSHA asbestos constructio n standard at 29 CFR 1926.58 or an asbestos worker approved by OSHA under section 19 of the Occupational Safety and Health Act. Local education agencies may consult appendix B of this subpart if their employ ees are performing operations, maintenance, and r epair activities that are of small

- scale, short

- duration. (c) Cleaning

-- (1) Initial cleaning . Unless the building has been cleaned using equivalent methods within the previous 6 months, all areas of a school building where friable ACBM, damaged or sign ificantly

damaged thermal sy stem insulation ACM, or friable suspected ACBM assumed to be ACM are present shall be cleaned at least once after the completion of the inspection required b y Sec. 763.85(a) and before the initiation of any response action, othe r than O&M activities or repair, according to the following procedures: (i) HEPA

- vacuum or steam

- clean all carpets. (ii) HEPA

- vacuum or wet

- clean all other floors and all other horizontal surfaces. (iii) Dispose of all debris, filters, mopheads , and cloths in sealed, leak

- tight containers. (2) Additional cleaning . The accredited management planner shall make a written recommendation to the local education agency whether additional cleaning is needed, and if so, the methods and frequency of s uch cleaning. (d ) Operations and maintenance activities . The local education agency shall ensure that the procedures described below to protect building occupants shall be followed for an y operations and maintenance activities disturbing friable ACBM: (1) Restrict entry

into the area by

persons other than those necessary to perform the maintenance project, either b y ph ys icall y isolating the area or b y scheduling. (2) Post signs to prevent entry by unauthorized persons. (3) Shut off or tempor arily modify the air

- handling sy stem and restrict other sources of air

movement. (4) Use work practices or other controls, such as, wet methods, protective clothing, HEPA

vacuums, mini

- enclosures, glove bags, as necessary to inhibit the spread of any r eleased fibers. (5) Clean all fixtures or other components in the immediate work area. (6) Place the asbestos debris and other cleaning materials in a sealed, leak

- tight container. (e) Maintenance activities other than small

- scale, short

- durati on . The response action for an y maintenance activities disturbing friable ACBM, other than small

- scale, short

- duration maintenance activities, shall be designed b y persons accredited to design response actions and
conducted b y persons accredited to conduc t response actions. (f ) Fiber release episodes

-- (1) Minor fiber release episode . The local education agency shall ensure that the procedures described below are followed in the event of a minor fiber release episode (i.e., the falling or dislodging of 3 square or linear feet or less of friable ACBM): 5 (i) Thoroughl y saturate the debris using wet methods. (ii) Clean the area, as described in paragraph (e) of this section.B

- 14

(iii) Place the asbestos debris in a sealed, leak

- tight container. (iv) Repair the area of damaged ACM with materials such as asbestos

- free spackling, plaster, cement, or insulation, or seal with latex paint or an encapsulant, or immediately have the appropriate response action implemented as required by Sec. 763.90. (2) Major fiber release episode . The local education agency shall ensure that the procedures described below are followed in the event of a major fiber release episode (i.e., the falling or dislodging of more than 3 square or linear feet of friable ACBM): (i) Restrict entry

into the area and post signs to prevent entry into the area by

persons other than those necessary

to perform the response action. (ii) Shut off or temporarily modify the air

- handling sy stem to prevent the distribution of fibers to other areas in the building. (iii) The response action for an y major fiber release episode must be designed b y persons accredited to design response actions and conducted by persons accredited to conduct response
actions.

**Sec. 763.92 Training and periodic surveillance.** 

(a ) Training . (1) The local education agency shall ensure, prior to the implementation of the O&M provisions of the management plan, that all members of its maintenance and custodial staff (custodians, electricians, heating/air conditioning engineers, plumbers, etc.) who may work in a building that contains ACBM receive awareness training of at least 2 hours, whether or not they are required to work with ACBM. New custodial and maintenance employ ees shall be
trained
within 60 da ys after commencement of employ ment. Training shall include, but not be limited

to: (i) Information regarding asbestos and its various uses and forms. (ii) I nformation on the health effects associated with asbestos exposure. (iii) L ocations of ACBM identified throughout each school building in which they work. (iv) Recognition of damage, deterioration, and delamination of ACBM. (v) Name and telephone number of the person designated to carry out general local education

agency responsibili ties under Sec. 763.84 and the availability and location of the management plan. (2) The local education agency shall ensure that all members of its maintenance and custodial
staff who conduct an y activities that will result in the disturbance of ACBM shall receive training described in paragraph (a)(1) of this section and 14 hours of additional training. Additional training shall include, but not be limited to: (i) Descriptions of the proper methods of handling ACBM. (ii) I nformation on the use of respiratory protection as contained in the EPA/NI OSH Guide to Respiratory Protection for the Asbestos Abatement Industry , September 1986 (EPA 560/OPPTS

86

- 001), available from the Director, Environmental Assistance Division (7408), Office of
Pollution Prevention and Toxics, U.S. Environmental Protection Agency, Room E

- 543B, 401 M St., SW., Washington, DC, 20460, Telephone: (202) 554

- 1404, TDD: (202) 544

- 0551 and other personal protection measures. (iii) The provisions of this section and Sec. 763.91 , Appendices A, B, C, D of this subpart E of this part, EPA regulations contained in 40B

- 15

CFR part 763, subpart G, and in 40 CFR part 61, subpart M, and OSHA regulations contained in

29 CFR 1926.58. (iv) Hands

- on training in the use of respiratory prote ction, other personal protection measures, and good work practices. (3) Local education agency maintenance and custodial staff who have attended EPA

- approved asbestos training or received equivalent training for O&M and periodic surveillance activities involving asbestos shall be considered trained for the purposes of this section. (b ) Periodic surveillance . (1) At least once every 6 months after a management plan is in effect, each local education agency shall conduct periodic surveillance in each building that it leases, owns, or otherwise uses as a school building that contains ACBM or is assumed to
contain ACBM. (2) Each person performing periodic surveillance shall: (i) Visually

inspect all areas that are identified in the management pl an as ACBM or assumed

ACBM. (ii) Record the date of the surveillance, his or her name, and an y changes in the condition of
the materials. (iii) Submit to the person designated to carry out general local education agency responsibilities under Sec. 763.84 a cop y of such record for inclusion in the management plan.

[52 FR 41846, Oct. 30, 1987, as amended at 60 FR 34465, July 3, 1995]

**Sec. 763.93 Management plans.**

(a)(1) On or before October 12, 1988, each local education agency shall develop an asbestos management plan for each school, including all buildings that they lease, own, or otherwise use as school buildings, and submit the plan to an Agency designated b y the Governor of the State in which the local education agency is located. The p lan may be submitted in stages that cover a portion of the school buildings under the authorit y of the local education agency

. (2) If a building to be used as part of a school is leased or otherwise acquired after October 12, 1988, the local education agency shall include the new building in the management plan for the school prior to its use as a school building. The revised portions of the management plan shall be submitted to the Agency

designated by

the Governor. (3) If a local education agency begins to use a building as a school after October 12, 1988, the local education agency

shall submit a management plan for the school to the Agency designated by the Governor prior to its use as a school. (b) On or before October 17, 1987, the Governor of each State shall notify local education agencies in the State regarding where to submit their management plans. States may establish administrative procedures for reviewing management plans. If the Governor does not disapprove a management plan within 90 day s after receipt of the plan, the local education agency shall implement the plan. (c) Each local education agency must begin implementation of its management plan on or before July

9, 1989, and complete implementation in a timely fashion. (d) Each local education agency shall maintain and update its management plan to keep it current with ongoing operations and maintenance, periodic surveillance, inspection, reinspection,B

- 16

and response action activities. All provisions required to be included i n the management plan under this section shall be retained as part of the management plan, as well as any information that has been revised to bring the plan up

- to

- date. (e) The management plan shall be developed b y an accredited management planner and shall
include: (1) A list of the name and address of each school building and whether the school building contains friable ACBM, nonfriable ACBM, and friable and nonfriable suspected ACBM
assumed to be ACM. (2) For each inspection conducted before the December 14, 1987: (i) The date of the inspection. (ii) A blueprint, diagram, or written description of each school building that identifies clearly each location and approximate square or linear footage of an y homogeneous or sampling area
whe re material was sampled for ACM, and, if possible, the exact locations where bulk samples were collected, and the dates of collection. (iii) A cop y of the analyses of an y bulk samples, dates of analyses, and a copy of an y other laboratory

reports perta ining to the analy ses. (iv) A description of any

response actions or preventive measures taken to reduce asbestos exposure, including if possible, the names and addresses of all contractors involved, start and completion dates of the work, and results of an y air samples anal yz ed during and upon completion of the work. (v) A description of assessments, required to be made under Sec. 763.88, of material that was identified before December 14, 1987, as friable ACBM or friable suspected ACBM assumed to be ACM, and the name and signature, State of accreditation, and if applicable, accreditation number of each accredited person making the assessments. (3) For each inspection and reinspection conducted under Sec. 763.85: (i) The date of the inspecti on or reinspection and the name and signature, State of accreditation and, if applicable, the accreditation number of each accredited inspector performing the inspection or reinspection. (ii) A blueprint, diagram, or written description of each school building that identifies clearly each location and approximate square or linear footage of homogeneous areas where material was sampled for ACM, the exact location where each bulk sample was collected, date of collection, homogeneous areas where friable su spected ACBM is assumed to be ACM, and where nonfriable suspected ACBM is assumed to be ACM. (iii) A description of the manner used to determine sampling locations, and the name and signature of each accredited inspector collecting samples, the State o f accreditation, and if applicable, his or her accreditation number. (iv) A cop y of the analyses of an y bulk samples collected and anal yz ed, the name and address
of an y laboratory

that analy zed bulk samples, a statement that the laboratory meets the ap plicable requirements of Sec. 763.87(a) the date of anal ys is, and the name and signature of the person performing the anal ys is. (v) A description of assessments, required to be made under Sec. 763.88, of all ACBM and suspected ACBM assumed to be ACM, and the name, signature, State of accreditation, and if applicable, accreditation number of each accredited person making the assessments. (4) The name, address, and telephone number of the person designated under Sec. 763.84 to
ensure that the duties of the local education agency are carried out, and the course name, and dates and hours of training taken b y that person to carry out the duties.B

- 17

(5) The recommendations made to the local education agency regarding response actions, under Sec. 763.88(d ), the name, signature, State of accreditation of each person making the recommendations, and if applicable, his or her accreditation number. (6) A detailed description of preventive measures and response actions to be taken, including
methods to be us ed, for any friable ACBM, the locations where such measures and action will be taken, reasons for selecting the response action or preventive measure, and a schedule for beginning and completing each preventive measure and response action. (7) With res pect to the person or persons who inspected for ACBM and who will design or

carr y out response actions, except for operations and maintenance, with respect to the ACBM, one of the following statements: (i) If the State has adopted a contractor accredit ation program under section 206(b) of Title II of the Act, a statement that the person(s) is accredited under such plan. (ii) A statement that the local education agency used (or will use) persons who have been
accredited b y another State which has ado pted a contractor accreditation plan under section 206(b) of Title II of the Act or is accredited b y an EPA

- approved course under section 206(c) of
Title II of the Act. (8) A detailed description in the form of a blueprint, diagram, or in writing of a ny ACBM or suspected ACBM assumed to be ACM which remains in the school once response actions are undertaken pursuant to Sec. 763.90. This description shall be updated as response actions are completed. (9) A plan for reinspection under Sec. 763.85, a plan for operations and maintenance activities under Sec. 763.91, and a plan for periodic surveillance under Sec. 763.92, a description of the recommendation made by the management planner regarding additional cleaning under Sec. 763.91(c)(2) as part of an operations and maintenance program, and the response of the local education agency

to that recommendation. (10) A description of steps taken to inform workers and building occupants, or their legal guardians, about inspections, reinspections, respon se actions, and post

- response action activities, including periodic reinspection and surveillance activities that are planned or in progress. (11) An evaluation of the resources needed to complete response actions successfull y and

carr y out reinspectio n, operations and maintenance activities, periodic surveillance and training. (12) With respect to each consultant who contributed to the management plan, the name of the consultant and one of the following statements: (i) If the State has adopted a contractor accreditation plan under section 206(b) of Title II of the Act, a statement that the consultant is accredited under such plan. (ii) A statement that the contractor is accredited by another State which has adopted a
contractor accreditation plan under section 206(b) of Title II of the Act, or is accredited by an EPA

- approved course developed under section 206(c) of Title II of the Act. (f) A local education agency may require each management plan to contain a statement signed by an accre dited management plan developer that such person has prepared or assisted in the preparation of such plan or has reviewed such plan, and that such plan is in compliance with this subpart E. Such statement may not be signed by

a person who, in addition to preparing or assisting in preparing the management plan, also implements (or will implement) the management plan. (g)(1) Upon submission of a management plan to the Governor for review, a local education

agency shall keep a copy of the plan in its admi nistrative office. The management plans shall be available, without cost or restriction, for inspection by representatives of EPA and the State, theB

- 18

public, including teachers, other school personnel and their representatives, and parents. The
local educat ion agency

may charge a reasonable cost to make copies of management plans. (2) Each local education agency shall maintain in its administrative office a complete, updated

copy of a management plan for each school under its administrative control or di rection. The management plans shall be available, during normal business hours, without cost or restriction, for inspection b y representatives of EPA and the State, the public, including teachers, other school personnel and their representatives, and paren ts. The local education agency may charge a reasonable cost to make copies of management plans. (3) Each school shall maintain in its administrative office a complete, updated cop y of the management plan for that school. Management plans shall be avai lable for inspection, without cost or restriction, to workers before work begins in any area of a school building. The school shall make management plans available for inspection to representatives of EPA and the State, the public, including parents, teach ers, and other school personnel and their representatives within 5 working day s after receiving a request for inspection. The school may charge a reasonable cost to make copies of the management plan. (4) Upon submission of its management plan to the G overnor and at least once each school

ye ar, the local education agency shall notify

in writing parent, teacher, and employ ee organizations of the availability of management plans and shall include in the management plan

a description of the steps taken to notify such organizations, and a dated copy of the notification.
In the absence of an y such organizations for parents, teachers, or emplo yees, the local education

agency shall provide written notice to that relevant group of the availability of management plans and shall include in the management plan a description of the steps taken to notify such groups, and a dated cop y of the notification. (h) Records required under Sec. 763.94 shall be made b y local education agencies and maintained as part of the management plan. (i) Each management plan must contain a true and correct statement, signed by the individual designated b y the local education agency under Sec. 763.84, which certifies that the general, local education agency

responsibilities, as sti pulated by Sec. 763.84, have been met or will be

met.

**Sec. 763.94 Recordkeeping.**

(a) Records required under this section shall be maintained in a centralized location in the administrative office of both the school and the local education agency as part of the management plan. For each homogeneous area where all ACBM has been removed, the local education agency

shall ensure that such records are retained for 3 y ears after the next reinspection required under Sec. 763.85(b)(1), or for an equivalent pe riod. (b) For each preventive measure and response action taken for friable and nonfriable ACBM and friable and nonfriable suspected ACBM assumed to be ACM, the local education agency shall provide: (1) A detailed written description of the measure or action, including methods used, the location where the measure or action was taken, reasons for selecting the measure or action, start and completion dates of the work, names and addresses of all contractors involved, and if applicable, their State of accreditation, and accreditation numbers, and if ACBM is removed, the name and location of storage or disposal site of the ACM.B

- 19

(2) The name and signature of an y person collecting an y air sample required to be collected at the completion of certain res ponse actions specified by Sec. 763.90(i), the locations where samples were collected, date of collection, the name and address of the laboratory analy zing the samples, the date of analy sis, the results of the analy sis, the method of analy sis, the name an d signature of the person performing the anal ys is, and a statement that the laboratory meets the applicable requirements of Sec. 763.90(i)(2)(ii). (c) For each person required to be trained under Sec. 763.92(a) (1) and (2), the local education

agency s hall provide the person's name and job title, the date that training was completed by that person, the location of the training, and the number of hours completed in such training. (d) For each time that periodic surveillance under Sec. 763.92(b) is pe rformed, the local education agency

shall record the name of each person performing the surveillance, the date of the surveillance, and an y changes in the conditions of the materials. (e) For each time that cleaning under Sec. 763.91(c) is performed, t he local education agency shall record the name of each person performing the cleaning, the date of such cleaning, the locations cleaned, and the methods used to perform such cleaning. (f) For each time that operations and maintenance activities under Sec. 763.91(d) are performed, the local education agency shall record the name of each person performing the activity , the start and completion dates of the activity , the locations where such activity occurred, a description of the activity including prev entive measures used, and if ACBM is removed, the name and location of storage or disposal site of the ACM. (g) For each time that major asbestos activit y under Sec. 763.91(e) is performed, the local education agency shall provide the name and sign ature, State of accreditation, and if applicable, the accreditation number of each person performing the activity

, the start and completion dates of the activity , the locations where such activity occurred, a description of the activity including preventi ve measures used, and if ACBM is removed, the name and location of storage or disposal site of the ACM. (h) For each fiber release episode under Sec. 763.91(f), the local education agency shall provide the date and location of the episode, the method o f repair, preventive measures or response action taken, the name of each person performing the work, and if ACBM is removed, the name and location of storage or disposal site of the ACM.

(Approved b y the Office of Management and Budget under control numbe r 2070

- 0091)

**Sec. 763.95 Warning labels.**

(a) The local education agency shall attach a warning label immediatel y adjacent to an y friable and nonfriable ACBM and suspected ACBM assumed to be ACM located in routine maintenance areas (such as boiler ro oms) at each school building. This shall include: (1) Friable ACBM that was responded to by a means other than removal. (2) ACBM for which no response action was carried out. (b) All labels shall be prominently display ed in readil y visible loca tions and shall remain posted until the ACBM that is labeled is removed. (c) The warning label shall read, in print which is readily visible because of large size or bright color, as follows:B

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CAUTION: ASBESTOS. HAZARDOUS. DO NOT DI STURB WITHOUT PROPER TRAINING AND EQUIPMENT.

**Sec. 763.97 Compliance and enforcement.**

(a ) Compliance with Title II of the Act . (1) Section 207(a) of Title II of the Act (15 U.S.C. 2647) makes it unlawful for an y local education agency to: (i) Fail to conduct inspect ions pursuant to section 203(b) of Title II of the Act, including failure to follow procedures and failure to use accredited personnel and laboratories. (ii) Knowingl y submit false information to the Governor regarding an y i nspection pursuant to regula tions under section 203(i) of Title II of the Act. (iii) Fail to develop a management plan pursuant to regulations under section 203(i) of Title II
of the Act. (2) Section 207(a) of Title II of the Act (15 U.S.C. 2647) also provides that an y local education agency

which violates any

provision of section 207 shall be liable for a civil penalt y of not more than $5,000 for each day during which the violation continues. For the purposes of this subpart, a ``violation'' means a failure to comply with res pect to a single school building. (b ) Compliance with Title I of the Act. (1) Section 15(1)(D) of Title I of the Act (15 U.S.C. 2614) makes it unlawful for an y person to fail or refuse to compl y with an y requirement of Title

II or an y rule promulgated or order issued under Title II. Therefore, an y person who violates an y requirement of this subpart is in violation of section 15 of Title I of the Act. (2) Section 15(3) of Title I of the Act (15 U.S.C. 2614) makes it unlawful for any person to fail or refuse to establish or maintain records, submit reports, notices or other information, or permit
access to or cop yi ng of records, as required by this Act or a rule thereunder. (3) Section 15(4) (15 U.S.C. 2614) of Title I of the Act makes it unlawful for an y person to fail or refuse to permit entry or inspection as required by section 11 of Title I of the Act. (4) Section 16(a) of Title I of the Act (15 U.S.C. 2615) provides that any person who violates

any provision of section 15 of Title I of the Act shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day such a violation continues shall, for purposes of this paragraph, constitute a separate violation of section 15. A
local educ ation agency

is not liable for any

civil penalty

under Title I of the Act for failing or refusing to comply

with any rule promulgated or order issued under Title II of the Act. (c) Criminal penalties . If an y violation committed by an y person (including a local education

agency ) is knowing or willful, criminal penalties may be assessed under section 16(b) of Title I
of the Act. (d ) Injunctive relief

. The Agency

may obtain injunctive relief under section 208(b) of Title II of the Act to respond to a h azard which poses an imminent and substantial endangerment to human health or the environment or section 17 (15 U.S.C. 2616) of Title I of the Act to
restrain an y violation of section 15 of Title I of the Act or to compel the taking of an y action required by

or under Title I of the Act. (e) Citizen complaints . Any citizen who wishes to file a complaint pursuant to section 207(d) of Title II of the Act should direct the complaint to the Governor of the State or the EPA Asbestos Ombudsman, 401 M Street, SW., Washington, DC 20460. The citizen complaint should be in writing and identified as a citizen complaint pursuant to section 207(d) of Title II of TSCA. The EPA Asbestos Ombudsman or the Governor shall investigate and respond to theB

- 21

complaint within a r easonable period of time if the allegations provide a reasonable basis to
believe that a violation of the Act has occurred. (f ) Inspections . EPA may

conduct inspections and review management plans under section 11
of Title I of the Act (15 U.S.C. 2610) to ensure compliance.

**Sec. 763.98 Waiver; delegation to State.**

(a ) General . (1) Upon request from a State Governor and after notice and comment and an opportunity

for a public hearing in accordance with paragraphs (b) and (c) of this section, EPA

m ay waive some or all of the requirements of this subpart E if 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 the requiremen ts of this subpart E. (2) A waiver from an y requirement of this subpart E shall appl y only to the specific provision for which a waiver has been granted under this section. All requirements of this subpart E shall apply until a waiver is granted under this section. (b ) Request . Each request by a Governor to waive any requirement of this subpart E shall be sent with three complete copies of the request to the Regional Administrator for the EPA Region
in which the State is located and shall include: (1) A cop y of the State provisions or proposed provisions relating to its program of asbestos inspection and management in schools for which the request is made. (2)(i) The name of the State agency that is or will be responsible for administering an d 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. (ii) I n the event that more than one agency is or will be responsibl e for administering and enforcing the requirements for which a waiver is requested, a description of the functions to be performed b y each agency , how the program will be coordinated by the lead agency

to ensure consistency

and effective administration in the asbestos inspection and management program within the State, the names and job titles of responsible officials in the agencies, and phone numbers where the officials can be contacted. The lead agency will serve as the central contact point for the EPA. (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 this subpart E. (4) A d iscussion of any

special situations, problems, and needs pertaining to the waiver request accompanied b y 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 an y specific or enabling State laws (enacted and pending enactment) and regulations (promulgated and pending promulgation) relating to the request, including provisions
for as sessing criminal and/or civil penalties. (7) Assurance from the Governor, the Attorney General, or the legal counsel of the lead

agency that the lead agency

or other cooperating agencies have the legal authority necessary

to

carr y out the requirements relating to the request. (c) General notice

-- hearing . (1) Within 30 day s after receipt of a request for a waiver, EPA will determine the completeness of the request. If EPA does not request further information
within the 30

- day

period, the request will be deemed complete.B

- 22

(2) Within 30 day s after EPA determines that a request is complete, EPA will issue for publication in the Federal Register a notice that announces receipt of the request, describes the information submitted under paragraph (b) of t his section, and solicits written comment from interested members of the public. Comments must be submitted within 60 days. (3) If, during the comment period, EPA receives a written objection to a Governor's request and a request for a public hearing detailing specific objections to the granting of a waiver, EPA will schedule a public hearing to be held in the affected State after the close of the comment period and will announce the public hearing date in the Federal Register before the date of the
he aring. Each comment shall include the name and address of the person submitting the

comment. (d ) Criteria . EPA may waive some or all of the requirements of subpart E of this part if: (1) The State's lead agency and other cooperating agencies have t he 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 relating to the waiver request and implem entation of the program are or will be at least as stringent as the requirements of this subpart E. (3) The State has an enforcement mechanism to allow it to implement the program described in the waiver request . (4) The lead agency

and any cooperat ing agencies have or will have qualified personnel to

carr y out the provisions relating to the waiver request. (5) The State will devote adequate resources to the administration and enforcement of the asbestos inspection and management provisions relat ing to the waiver request. (6) When specified b y 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 c onform with applicable criteria under paragraphs (d) (2) through (4) of this section. (e) Decision . EPA will issue for publication in the Federal Register a notice announcing its decision to grant or den y, in whole or in part, a Governor's request for a waiver from some or all of the requirements of this subpart E within 30 days after the close of the comment period or within 30 day s following a public hearing, whichever is applicable. The notice will include the Agency 's reasons and rationale for grant ing or deny ing the Governor's request. The 30

- day period may

be extended if mutually

agreed upon by

EPA and the State. (f ) Modifications . When any substantial change is made in the administration or enforcement of a State program for which a waiver was granted under this section, a responsible official in the lead agency

shall submit such changes to EPA. (g ) Reports . The lead agency in each State that has been granted a waiver by EPA from any requirement of subpart E of this part shall submit a repo rt to the Regional Administrator for the Region in which the State is located at least once every 12 months to include the following
information: (1) A summary

of the State's implementation and enforcement activities during the last reporting period re lating to provisions waived under this section, including enforcement actions
taken. (2) An y changes in the administration or enforcement of the State program implemented during the last reporting period.B

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(3) Other reports as may

be required by

EPA to carry

out effective oversight of any requirement of this subpart E that was waived under this section. (h ) Oversight . EPA may periodicall y evaluate the adequacy of a State's implementation and enforcement of and resources devoted to carry ing out re quirements relating to the waiver. This evaluation may

include, but is not limited to, site visits to local education agencies without prior
notice to the State. (i ) Informal conference . (1) EPA may request that an informal conference be held between

a ppropriate State and EPA officials when EPA has reason to believe that a State has failed to: (i) Substantially

comply with the terms of any

provision that was waived under this section. (ii) Meet the criteria under paragraph (d) of this section, i ncluding the failure to carry out enforcement activities or act on violations of the State program. (2) EPA will: (i) Specify

to the State those aspects of the State's program believed to be inadequate. (ii) Specify

to the State the facts that underlie the belief of inadequacy

. (3) If EPA finds, on the basis of information submitted by the State at the conference, that
deficiencies did not exist or were corrected b y the State, no further action is required. (4) Where EPA finds that defic iencies in the State program exist, a plan to correct the deficiencies shall be negotiated between the State and EPA. The plan shall detail the deficiencies found in the State program, specify the steps the State has taken or will take to remed y the
defici encies, and establish a schedule for each remedial action to be initiated. (j ) Rescission . (1) If the State fails to meet with EPA or fails to correct deficiencies raised at the informal conference, EPA will deliver to the Governor of the State and a r esponsible official in the lead agency

a written notice of its intent to rescind, in whole or part, the waiver. (2) EPA will issue for publication in the Federal Register a notice that announces the rescission of the waiver, describes those aspects of the State's program determined to be inadequate, and specifies the facts that underlie the findings of inadequacy

.

**Sec. 763.99 Exclusions.**

(a) A local education agency shall not be required to perform an inspection under Sec. 763.85(a) in an y s ampli ng area as defined in 40 CFR 763.103 or homogeneous area of a school building where: (1) An accredited inspector has determined that, based on sampling records, friable ACBM was identified in that homogeneous or sampling area during an inspection condu cted before December 14, 1987. The inspector shall sign and date a statement to that effect with his or her State of accreditation and if applicable, accreditation number and, within 30 days after such determination, submit a copy of the statement to the person designated under Sec. 763.84 for inclusion in the management plan. However, an accredited inspector shall assess the friable
ACBM under Sec. 763.88. (2) An accredited inspector has determined that, based on sampling records, nonfriable ACBM

was identified in that homogeneous or sampling area during an inspection conducted before December 14, 1987. The inspector shall sign and date a statement to that effect with his or her State of accreditation and if applicable, accreditation number and, withi n 30 day s after such determination, submit a copy of the statement to the person designated under Sec. 763.84 for inclusion in the management plan. However, an accredited inspector shall identify whetherB

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material that was nonfriable has become friable sinc e that previous inspection and shall assess
the newl y

- friable ACBM under Sec. 763.88. (3) Based on sampling records and inspection records, an accredited inspector has determined that no ACBM is present in the homogeneous or sampling area and the recor ds show that the area was sampled, before December 14, 1987 in substantial compliance with Sec. 763.85(a),
which for purposes of this section means in a random manner and with a sufficient number of samples
to reasonabl y ensure that the area is not ACBM. (i) The accredited inspector shall sign and date a statement, with his or her State of accreditation and if applicable, accreditation number that the homogeneous or sampling area determined not to be ACBM was sampled in substantial compliance with Sec. 763.85(a). (ii) Within 30 day s after the inspector's determination, the local education agency shall submit

a cop y of the inspector's statement to the EPA Regional Office and shall include the statement in the management plan for that school. (4) The lead agency

responsible for asbestos inspection in a State that has been granted a waiver from Sec. 763.85(a) has determined that, based on sampling records and inspection records, no ACBM is present in the homogeneous or sampling area and the records show that the area was sampled before December 14, 1987, in substantial compliance with Sec. 763.85(a). Such determination shall be included in the management plan for that school. (5) An accredited inspector has determined that, based on records of an inspection conducted before December 14, 1987, suspected ACBM identified in that homogeneous or sampling area is assumed to be ACM. The inspector shall sign and date a statement to that effect, with his or her State of accreditation and if applicable, acc reditation number and, within 30 day s of such determination, submit a copy of the statement to the person designated under Sec. 763.84 for inclusion in the management plan. However, an accredited inspector shall identify whether
material that was nonfriabl e suspected ACBM assumed to be ACM has become friable since the previous inspection and shall assess the newl y friable material and previously identified friable suspected ACBM assumed to be ACM under Sec. 763.88. (6) Based on inspection records and co ntractor and clearance records, an accredited inspector has determined that no ACBM is present in the homogeneous or sampling area where asbestos removal operations have been conducted before December 14, 1987, and shall sign and date a
statement to that effect and include his or her State of accreditation and, if applicable, accreditation number. The local education agency shall submit a copy

of the statement to the EPA Regional Office and shall include the statement in the management plan for that school

. (7) An architect or project engineer responsible for the construction of a new school building built after October 12, 1988, or an accredited inspector signs a statement that no ACBM was specified as a building material in an y construction document f or the building, or, to the best of his or her knowledge, no ACBM was used as a building material in the building. The local education agency

shall submit a copy

of the signed statement of the architect, project engineer,

or accredited inspector to the EP A Regional Office and shall include the statement in the management plan for that school. (b) The exclusion, under paragraphs (a) (1) through (4) of this section, from conducting the inspection under Sec. 763.85(a) shall appl y onl y t o homogeneous or sa mpling areas of a school building that were inspected and sampled before October 17, 1987. The local educationB

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agency shall conduct an inspection under Sec. 763.85(a) of all areas inspected before October 17, 1987 that were not sampled or were not assumed to be ACM. (c) If ACBM is subsequently found in a homogeneous or sampling area of a local education

agency that had been identified as receiving an exclusion by an accredited inspector under paragraphs (a) (3), (4), (5) of this section, or an architect, project e ngineer or accredited inspector under paragraph (a)(7) of this section, the local education agency shall have 180 day s following the date of identification of ACBM to compl y with this subpart E.