65 FR 36 pgs. 8974-8976 - Asbestos-Containing Materials in Schools; State Request for Waiver from Requirements; Notice of Final Decision
Type: NOTICEVolume: 65Number: 36Pages: 8974 - 8976
Docket number: [OPPTS-62162A; FRL-6488-5]
FR document: [FR Doc. 00-4245 Filed 2-22-00; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
ENVIRONMENTAL PROTECTION AGENCY
[OPPTS-62162A; FRL-6488-5]
Asbestos-Containing Materials in Schools; State Request for Waiver from Requirements; Notice of Final Decision
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Notice of final decision on requested waiver.
SUMMARY:
EPA is issuing a final decision which approves the requestfrom Texas for a waiver from the Agency's asbestos-in-schools program. A waiver of theserequirements is granted since EPA has determined, after notice and comment and opportunity fora public hearing, that Texas is implementing or intends to implement a program of asbestosinspection and management at least as stringent as EPA's program. This notice announces theofficial grant of the waiver.
ADDRESSES:
A copy of the complete waiver applicationsubmitted by the State, identified by docket control number OPPTS-62162, is on file and availablefor review at the EPA Region VI office in Dallas, TX.
FOR FURTHER INFORMATION CONTACT:
Neil Pflum, AsbestosCoordinator, (6PD-T), Region VI, Environmental Protection Agency, 1445 Ross Ave., Dallas,TX 75202; telephone: (214) 665-2295; e-mail: pflum.neil@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
This action is directed to the public in general. This action may, however, be of specialinterest to teachers and other school personnel, their representatives, and parents in Texas, andasbestos professionals working in Texas. Since other entities may also be interested, the Agencyhas not attempted to describe all entities that may be affected by this action. If you have anyquestions regarding the applicability of this action to any entity, contact the person under "FORFURTHER INFORMATION CONTACT."
B. How Can I Get Additional Information, Including Copies of this Document or OtherRelated Documents?
EPA has established an official record for this action under docket control numberOPPTS-62162. The official record consists of the documents referenced in this action and isavailable by contacting the person under, "FOR FURTHER INFORMATION CONTACT."
II. Background
A. What Action is the Agency Taking and under What Authority?
On October 29, 1999, EPA published a notice of proposed waiver in the Federal Register (64 FR58406) (FRL-6386-8) on the proposed grant of a waiver of the asbestos-in-schools program in Texas, solicitingwritten comments and providing an opportunity for a public hearing. No comments and norequests for a public hearing were received during the comment period, which ended onDecember 28, 1999. Consequently, no public hearing was held.
EPA is granting, with conditions, a waiver of the asbestos-in-schools program to Texas.The waiver is issued under section 203(m) of TSCA and 40 CFR 763.98. Section 203 is withinTitle II of TSCA, the Asbestos Hazard Emergency Response Act (AHERA).
In 1987, under TSCA section 203, the Agency promulgated regulations that require theidentification and management of asbestos-containing material by local education agencies (LEAs)in the nation's elementary and secondary school buildings: the "AHERA Schools Rule" (40 CFRpart 763, subpart E). Under section 203(m) of TSCA and 40 CFR 763.98, upon request by aState Governor and after notice and comment and opportunity for a public hearing in the State,EPA may waive, in whole or in part, the requirements of the asbestos-in-schools program (TSCAsection 203 and the AHERA schools rule) if EPA determines that the State has established and isimplementing or intends to implement a program of asbestos inspection and management thatcontains requirements that are at least as stringent as those in the Agency's asbestos-in-schoolsprogram. A State seeking a waiver must submit its request to the EPA Region in which the Stateis located.
The Agency recognizes that a waiver granted to any State does not encompass schoolsoperated under the defense dependents' education system (the third type of LEA defined at TSCAsection 202(7) and 40 CFR 763.83), which serve dependents in overseas areas, and otherelementary and secondary schools outside a State's jurisdiction, which generally include schools inIndian country. Such schools remain subject to EPA's asbestos-in-schools program.
B. When Did Texas Submit its Request for a Waiver and How is EPA Responding?
On July 27, 1999, Texas Governor George W. Bush, submitted to Gregg A. Cooke,Regional Administrator, EPA Region VI, a letter requesting a full waiver of the requirements ofEPA's asbestos-in-schools program, to which was appended supporting documentation.
EPA is hereby announcing its final decision to grant a waiver of theasbestos-in-schools program to Texas. The Agency is also describing the information submittedby Texas and the Agency's determinations as to how the waiver request meets the criteria for thegrant of a waiver.
C. What was EPA's Determination with Regard to the Completeness of Texas' WaiverRequest?
The Texas waiver request has been deemed complete by EPA and contains the following:
1. A copy of the Texas provisions that include its program of asbestos inspection andmanagement in schools. These consist of: The Texas Asbestos Health Protection Act (TexasRevised Civil Statutes Article 4477-3a) and implementing regulations (Texas AdministrativeCode, Title 25, Part I, Chapter 295, Subchapter C "Texas Asbestos Health Protection," Sections295.31-295.71).
2. The name of the Texas agency responsible for administrating and enforcing therequirements of a waiver, namely the Texas Department of Health (TDH). Responsible officialsinclude: John A. Jacobi, P.E., Chief, Bureau of Environmental Health; Claren Kotrla, Director,Toxic Substances Control Division; Todd F. Wingler, Chief, Asbestos Programs Branch; andGordon Leeks, Inspector, PCB/AHERA program--telephone: (512) 834-6600.
3. Reasons, supporting papers, and the rationale for concluding that Texas' asbestosinspection and management programs, for which the waiver request is made, are at least asstringent as the requirements of EPA's program, as discussed in EPA's Determinations in UnitsII.D.2. and 3.
4. A discussion of any special situations, problems, and needs pertaining to the waiverrequest accompanied by an explanation of how Texas plans to handle them, as discussed in EPA'sDetermination in Unit II.D.6.
5. A statement of the resources that Texas intends to devote to the administration andenforcement of its program, as discussed in EPA's Determination in Unit II.D.5.
6. Copies of Texas laws and regulations relating to the request, including provisions forassessing penalties, as referenced in Unit II.C.1.
7. Assurance from the legal counsel of TDH that the Department has the legal authoritynecessary to carry out the requirements relating to the waiver request, as indicated in a letter fromSusan Steeg, General Counsel, to Gregg Cooke, dated February 22, 1999.
D. What are the Criteria for EPA's Grant of the Waiver and What are EPA'sDeterminations Relating to These Criteria?
EPA has waived the requirements of the Agency's asbestos-in-schools program for Texassince the Agency has determined that Texas has met the criteria set forth at 40 CFR 763.98. Thecriteria and EPA's determinations relating to the grant of the waiver to Texas are set forth below:
1. Criterion: Texas' lead agency has the legal authority necessary to carry outthe provisions of asbestos inspection and management in schools relating to the waiver request.
EPA's Determination: EPA has determined that the statutory and regulatoryprovisions cited at Unit II.C.1. give TDH such legal authority.
2. Criterion: Texas' program is or will be at least as stringent as the EPAasbestos-in-schools program.
EPA's Determination: Since Texas has adopted the AHERA schools rule byreference in its regulations, EPA has determined that Texas' program is or will be at least asstringent as EPA's program. See EPA's Determination in Unit II.D.6.
3. Criterion: Texas has an enforcement mechanism to allow it to implementthe program described in the waiver request.
EPA's Determination: EPA has determined that the compliance andenforcement provisions of Texas' asbestos-in-schools program are adequate to run the program.Inspectors will use site visits to determine if the LEAs are complying with the program. Violationswill be cited for enforcement action which can range from warning letters (notices ofnoncompliance) to administrative actions to civil actions.
4. Criterion: TDH has or will have qualified personnel to carry out theprovisions relating to the waiver request.
EPA's Determination: EPA has determined that TDH has or will havequalified personnel to carry out the provisions of the waiver. An inspector currently employed byTDH has had experience in conducting asbestos inspections in schools. The Department alsoemploys a number of individuals that have experience in asbestos program enforcement who areavailable to lend their expertise to the asbestos-in-schools program.
5. Criterion: Texas will devote adequate resources to the administration andenforcement of the asbestos inspection and management provisions relating to the waiver request.
EPA's Determination: EPA has determined that Texas has adequateresources to administer and enforce the provisions of the program. Texas plans to devote$114,311 to the program annually. It plans to match an annual Federal grant of $85,733, with$28,578 of State funds. The budget allows for two full-time employees, travel, supplies, andtraining.
6. Criterion: Texas gives satisfactory assurances that the necessary steps,including specific actions it proposes to take and a time schedule for their accomplishment, will betaken within a reasonable time to conform with applicable criteria in Units II.D.2-4.
EPA's Determination: As a condition of EPA's grant of the waiver, Texashas given a written assurance satisfactory to EPA (letter from Joseph Fuller, AssociateCommissioner, TDH, to Gregg Cooke, dated January 11, 2000) that, if following the grant of thewaiver, any provision of either TSCA section 203 or the AHERA schools rule is changed, theState would, within a reasonable period of time, make appropriate changes, as necessary, to thestatutory and regulatory provisions of its asbestos-in-schools program to ensure that the programremains at least as stringent as the EPA asbestos-in-schools program.
In addition, as long as the waiver remains in effect, Texas, utilizing adequate resources,will need to continue its asbestos-in-schools implementation and enforcement strategy. EPA mayevaluate periodically the adequacy of Texas' program under 40 CFR 763.98, and, undercircumstances set forth in the regulation, may, in whole or in part, rescind the waiver if theAgency determines the program to be inadequate.
E. What Recordkeeping and Reporting Burden Approvals Apply to the Texas WaiverRequest?
The recordkeeping and reporting burden associated with waiver requests was approved bythe Office of Management and Budget (OMB) under OMB control number 2070-0091. Thisdocument announces the Agency's grant of the Texas waiver request and imposes no additionalburden beyond that covered under existing OMB control number 2070-0091.
III. Materials in the Official Record
The official record, under docket control number OPPTS-62162, contains the Texaswaiver request, supporting documentation, and other relevant documents.
List of Subjects
Environmental protection, Administrative practice and procedure, Asbestos, Hazardous
substances, Imports, Intergovernmental relations, Labeling, Occupational safety and health,Reporting and recordkeeping requirements, Schools.
Dated: February 9, 2000.
Jerry Clifford, Acting
Regional Administrator, Region VI.
[FR Doc. 00-4245 Filed 2-22-00; 8:45 am]
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