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 request from Texas for a waiver from the Agency's asbestos-in-schools program. A waiver of these requirements is granted since EPA has determined, after notice and comment and opportunity for a public hearing, that Texas is implementing or intends to implement a program of asbestos inspection and management at least as stringent as EPA's program. This notice announces the official grant of the waiver.

ADDRESSES:

A copy of the complete waiver application submitted by the State, identified by docket control number OPPTS-62162, is on file and available for review at the EPA Region VI office in Dallas, TX.

FOR FURTHER INFORMATION CONTACT:

Neil Pflum, Asbestos Coordinator, (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 special interest to teachers and other school personnel, their representatives, and parents in Texas, and asbestos professionals working in Texas. Since other entities may also be interested, the Agency has not attempted to describe all entities that may be affected by this action. If you have any questions regarding the applicability of this action to any entity, contact the person under “FOR FURTHER INFORMATION CONTACT.”

B. How Can I Get Additional Information, Including Copies of this Document or Other Related Documents?

EPA has established an official record for this action under docket control number OPPTS-62162. The official record consists of the documents referenced in this action and is available 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 FR 58406) (FRL-6386-8) on the proposed grant of a waiver of the asbestos-in-schools program in Texas, soliciting written comments and providing an opportunity for a public hearing. No comments and no requests for a public hearing were received during the comment period, which ended on December 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 within Title II of TSCA, the Asbestos Hazard Emergency Response Act (AHERA).

In 1987, under TSCA section 203, the Agency promulgated regulations that require the identification and management of asbestos-containing material by local education agencies (LEAs)in the nation's elementary and secondary school buildings: the “AHERA Schools Rule” (40 CFR part 763, subpart E). Under section 203(m) of TSCA and 40 CFR 763.98, upon request by a State Governor and after notice and comment and opportunity for a public hearing in the State,EPA may waive, in whole or in part, the requirements of the asbestos-in-schools program (TSCA section 203 and the AHERA schools rule) if EPA determines that the State has established and is implementing or intends to implement a program of asbestos inspection and management that contains requirements that are at least as stringent as those in the Agency's asbestos-in-schools program. A State seeking a waiver must submit its request to the EPA Region in which the State is located.

The Agency recognizes that a waiver granted to any State does not encompass schools operated under the defense dependents' education system (the third type of LEA defined at TSCA section 202(7) and 40 CFR 763.83), which serve dependents in overseas areas, and other elementary and secondary schools outside a State's jurisdiction, which generally include schools in Indian 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 of EPA's asbestos-in-schools program, to which was appended supporting documentation.

EPA is hereby announcing its final decision to grant a waiver of the asbestos-in-schools program to Texas. The Agency is also describing the information submitted by Texas and the Agency's determinations as to how the waiver request meets the criteria for the grant of a waiver.

C. What was EPA's Determination with Regard to the Completeness of Texas' Waiver Request?

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 and management in schools. These consist of: The Texas Asbestos Health Protection Act (Texas Revised Civil Statutes Article 4477-3a) and implementing regulations (Texas Administrative Code, Title 25, Part I, Chapter 295, Subchapter C “Texas Asbestos Health Protection,” Sections 295.31-295.71).

2. The name of the Texas agency responsible for administrating and enforcing the requirements of a waiver, namely the Texas Department of Health (TDH). Responsible officials include: John A. Jacobi, P.E., Chief, Bureau of Environmental Health; Claren Kotrla, Director,Toxic Substances Control Division; Todd F. Wingler, Chief, Asbestos Programs Branch; and Gordon Leeks, Inspector, PCB/AHERA program--telephone: (512) 834-6600.

3. Reasons, supporting papers, and the rationale for concluding that Texas' asbestos inspection and management programs, for which the waiver request is made, are at least as stringent as the requirements of EPA's program, as discussed in EPA's Determinations in Units II.D.2. and 3.

4. A discussion of any special situations, problems, and needs pertaining to the waiver request accompanied by an explanation of how Texas plans to handle them, as discussed in EPA's Determination in Unit II.D.6.

5. A statement of the resources that Texas intends to devote to the administration and enforcement 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 for assessing penalties, as referenced in Unit II.C.1.

7. Assurance from the legal counsel of TDH that the Department has the legal authority necessary to carry out the requirements relating to the waiver request, as indicated in a letter from Susan 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's Determinations Relating to These Criteria?

EPA has waived the requirements of the Agency's asbestos-in-schools program for Texas since the Agency has determined that Texas has met the criteria set forth at 40 CFR 763.98. The criteria and EPA's determinations relating to the grant of the waiver to Texas are set forth below:

1. Criterion: Texas' lead agency has the legal authority necessary to carry out the provisions of asbestos inspection and management in schools relating to the waiver request.

EPA's Determination: EPA has determined that the statutory and regulatory provisions 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 EPA asbestos-in-schools program.

EPA's Determination: Since Texas has adopted the AHERA schools rule by reference in its regulations, EPA has determined that Texas' program is or will be at least as stringent as EPA's program. See EPA's Determination in Unit II.D.6.

3. Criterion: Texas has an enforcement mechanism to allow it to implement the program described in the waiver request.

EPA's Determination: EPA has determined that the compliance and enforcement provisions of 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. Violations will be cited for enforcement action which can range from warning letters (notices of noncompliance) to administrative actions to civil actions.

4. Criterion: TDH has or will have qualified personnel to carry out the provisions relating to the waiver request.

EPA's Determination: EPA has determined that TDH has or will have qualified personnel to carry out the provisions of the waiver. An inspector currently employed by TDH has had experience in conducting asbestos inspections in schools. The Department also employs a number of individuals that have experience in asbestos program enforcement who are available to lend their expertise to the asbestos-in-schools program.

5. Criterion: Texas will devote adequate resources to the administration and enforcement of the asbestos inspection and management provisions relating to the waiver request.

EPA's Determination: EPA has determined that Texas has adequate resources 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, and training.

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 be taken 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, Texas has given a written assurance satisfactory to EPA (letter from Joseph Fuller, Associate Commissioner, TDH, to Gregg Cooke, dated January 11, 2000) that, if following the grant of the waiver, any provision of either TSCA section 203 or the AHERA schools rule is changed, the State would, within a reasonable period of time, make appropriate changes, as necessary, to the statutory and regulatory provisions of its asbestos-in-schools program to ensure that the program remains 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 may evaluate periodically the adequacy of Texas' program under 40 CFR 763.98, and, under circumstances set forth in the regulation, may, in whole or in part, rescind the waiver if the Agency determines the program to be inadequate.

E. What Recordkeeping and Reporting Burden Approvals Apply to the Texas Waiver Request?

The recordkeeping and reporting burden associated with waiver requests was approved by the Office of Management and Budget (OMB) under OMB control number 2070-0091. This document announces the Agency's grant of the Texas waiver request and imposes no additional burden beyond that covered under existing OMB control number 2070-0091.

III. Materials in the Official Record

The official record, under docket control number OPPTS-62162, contains the Texas waiver request, supporting documentation, and other relevant documents.

List of Subjects

• Environmental protection
• Administrative practice and procedure
• Asbestos
• Hazardous