[Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)]
[Proposed Rules]
[Pages 34348-34350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16770]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 763

[OPPTS-62155; FRL-5762-3]


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 Commonwealth of Massachusetts a 
request for a waiver from the requirements of 40 CFR part 763, subpart 
E, Asbestos-Containing Materials in Schools regulations. This document 
announces an opportunity for public review and comment on the 
Massachusetts waiver request.

DATES: Comments on the waiver request must be received by July 24, 
1998.

ADDRESSES: Written comments must be sent in triplicate, identified by 
the docket control number OPPTS-62155 to: James M. Bryson, Regional 
Abatement Coordinator, Environmental Protection Agency, Office of 
Ecosystem Protection, CPT Region 1, John F. Kennedy Federal Building, 
Boston, MA 02203-0001. Copies of the Massachusetts waiver request are 
on file and may be reviewed at the EPA Region I Office.
    Comments and data may also be submitted electronically to 
<a href="/cdn-cgi/l/email-protection#bbd9c9c2c8d4d595d1dad6dec8d6fbdecbdad6dad2d795decbda95dcd4cd"><span class="__cf_email__" data-cfemail="1775656e647879397d767a72647a577267767a767e7b3972677639707861">[email protected]</span></a>. Follow the instructions under 
SUPPLEMENTARY INFORMATION of this document. No Confidential Business 
Information (CBI) should be submitted through e-mail.
    All comments which contain information claimed as CBI must be 
clearly marked as such. Three sanitized copies of any comments 
containing information claimed as CBI must also be submitted and will 
be placed in the public record for this document. Persons submitting 
information on any portion of which they believe is entitled to 
treatment as CBI by EPA must assert a business confidentiality claim in 
accordance with 40 CFR 2.203(b) for each such portion. This claim must 
be made at the time that the information is submitted to EPA. If a 
submitter does not assert a confidentiality claim at the time of 
submission, EPA will consider this as a waiver of any confidentiality 
claim and the information may be made available to the public by EPA 
without further notice to the submitter.

FOR FURTHER INFORMATION CONTACT: James M. Bryson at 617-565-3836.

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 41946), 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 approved under OMB control number 2070-0091. 
This document merely announces the Agency's receipt of a waiver request 
and therefore, imposes 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), 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 AHERA, 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 requires that specific 
information be included in a waiver request. The rule establishes a 
process for EPA to review waiver requests, and sets forth procedures 
for

[[Page 34349]]

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 Commonwealth of Massachusetts' AHERA 
waiver request. Comments must be submitted by August 24, 1998. 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 September 26, 1997, Acting Governor Argeo Paul Cellucci 
submitted to John P. DeVillars, Regional Administrator, EPA Region I, a 
request for a waiver under 40 CFR 763.98. The request was received by 
the EPA Regional Office on September 27, 1997. The State's submittal 
requested a waiver from all requirements of 40 CFR part 763, subpart E.
    The Massachusetts waiver request was deemed complete by EPA on 
October 14, 1997, in that it contained all of the following provisions 
which are required by the AHERA regulations.
    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 telephone numbers whom 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, Attorney General, or the legal 
counsel of the lead agency that 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 Massachusetts Department of Labor and Workforce 
Development recognizes that asbestos exposure in schools (and 
elsewhere) is a serious concern. The Massachusetts General Assembly 
also recognized this, and during a 1987 legislative session a bill was 
passed--Mass Gen. Laws ch. 149, Sec. 6C-authorizing the Air Pollution 
Control Division, Massachusetts Department of Labor and Workforce 
Development, to implement State requirements under AHERA to establish a 
certification program for abatement contractors, develop and implement 
asbestos work practices and exposure standards, collect fees, and levy 
fines. Effective June 30, 1993, the revised Massachusetts 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 Massachusetts 
General Assembly has enacted authority for the Massachusetts Department 
of Labor and Work Force Development to enforce rules and regulations to 
minimize the risk to the public from exposure to asbestos, including 
requirements for asbestos management plans to be submitted and 
implemented by schools. All requisite legislative/legal authority to 
implement the AHERA waiver program has been adopted, and no problems 
are anticipated in meeting waiver objectives.
    2. The State's program of asbestos inspection and management in 
schools relating to the waiver request and implementation of the 
program will be at least as stringent as the requirements of 40 CFR 
part 763, subpart E. On August 25, 1997, Massachusetts adopted the 
requirements of 40 CFR part 763, subpart E in their entirety, with the 
exception of Secs. 763.97 and 763.98, into the Massachusetts Department 
of Labor and Workforce Development Regulation No. 453 CMR 6.00 ``The 
Removal, Containment or Encapsulation of Asbestos School 
Requirements.'' The State indicated in its August 25, 1997 letter that 
it intends to administer these regulations in a manner that will be at 
least as stringent as the requirements of 40 CFR part 763, subpart E.
    3. The State has an enforcement mechanism to allow it to implement 
the program described in the waiver request. The State conducts routine 
AHERA inspections and abatement inspections. Routine AHERA inspections 
result in a determination of compliance regarding the creation, 
maintenance and implementation of an adequate, updated management plan. 
Abatement 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.
    Abatement inspections are initiated as a result of tips or 
complaints, to assess compliance with any applicable State or EPA 
asbestos rules. In addition, 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 also 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 qualified personnel to carry out the provisions 
relating to the waiver request. The State has 18 employees trained to 
stringently enforce, the requirements of 40 CFR part 763, subpart E. 
The program will be carried out by staff in the Massachusetts 
Department of Labor and Workforce Development. Of these, four staff 
work full-time under the EPA TSCA Asbestos Enforcement Grant. These 
staff are fully-trained and certified as Building Inspector/Management 
Planners and Contractor/Supervisors. Two of four staff persons are 
conducting full AHERA inspections. One staff person is conducting 
Worker Protection Rule (40 CFR part 763, subpart E) inspections and is 
currently training to conduct full AHERA inspections. The fourth person 
administers the grant with EPA 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 I 
Office, the Agency

[[Page 34350]]

feels that the resources developed by the Massachusetts Department of 
Labor and Workforce Development are adequate to effectively implement 
and administer the asbestos program in Massachusetts.
    6. 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 and standard operating 
procedures, enforcement response policy, and communication strategy. 
EPA's final approval of the State's program will require the State to 
continue 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 at 40 CFR part 763 have been approved by OMB under the 
Paperwork Reduction Act, 44 U.S.C. 3501 and its implementing 
regulations at 5 CFR part 1320 and assigned OMB control number 2070-
0091.
    With this notice, EPA is hereby announcing receipt of the State's 
request and soliciting written comments from the public pertaining to 
the Commonwealth of Massachusetts' AHERA waiver request. Comments must 
be submitted by July 24, 1998. 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 Commonwealth after the close of the comment 
period.
    The official record for this document, as well as the public 
version, has been established for this document under docket control 
number ``OPPTS-62155'' (including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as CBI, is available for inspection 
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The official record is located at the address in 
``ADDRESSES'' at the beginning of this document.
    Electronic comments can be sent directly to EPA at:
    <a href="/cdn-cgi/l/email-protection#1371616a607c7d3d79727e76607e537663727e727a7f3d7663723d747c65"><span class="__cf_email__" data-cfemail="4725353e342829692d262a22342a072237262a262e2b6922372669202831">[email protected]</span></a>
    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption, Comment and data 
will also be accepted on disks in Wordperfect 5.1/6.1 or ASCII file 
format. All comments and data in electronic form must be identified by 
the docket control number ``OPPTS-62155.'' Electronic comments on this 
document may be filed online at many Federal Depository Libraries.

List of Subjects in Part 763

    Environmental protection, Asbestos, Administrative practice and 
procedure, Hazardous substances, Imports, Intergovernmental relations, 
Labeling, Occupational safety and health, Reporting and recordkeeping 
requirements, Schools.

    Dated: June 15, 1998.
John P. DeVillars,
Regional Administrator, Region I.

[FR Doc. 98-16770 Filed 6-23-98; 8:45 am]
BILLING CODE 6560-50-F


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