[Federal Register Volume 71, Number 105 (Thursday, June 1, 2006)]
[Notices]
[Pages 31183-31186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8399]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPPT-2005-0096; FRL-8176-7]
Asbestos-Containing Materials in Schools; State Request for
Waiver From Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed approval and request for comments.
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SUMMARY: This action provides notice and an opportunity for public
hearing, and solicits written comments on EPA's proposed waiver of the
requirements of the Federal asbestos-in-schools program for the
Commonwealth of Kentucky. A waiver request will be granted if EPA
determines that the Commonwealth of Kentucky is implementing or intends
to implement a state program of asbestos inspection that is at least as
stringent as the federal program. This action provides notice and an
opportunity for a public hearing, and solicits written comments on the
waiver request submitted by the Commonwealth of Kentucky.
DATES: Written comments under Docket ID Number OPPT-2005-0096 must be
received by July 31, 2006. Each comment must include the name and
address of the submitter. Any request for a public hearing must be in
writing, be received on or before July 31, 2006, and detail specific
objections to the grant of the waiver. If, during the comment period,
EPA receives such a request for a public hearing, EPA will schedule a
public hearing in Kentucky following the comment period. EPA will
announce the date of the public hearing in the Federal Register.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-HQ-
OPPT-2005-0096, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (404) 562-8972.
4. Mail: Docked ID Number EPA-HQ-OPPT-2005-0096, Asbestos
Coordinator, Region 4, Environmental Protection Agency, Atlanta Federal
Center, 61 Forsyth Street SW., Atlanta, GA 30303-8960.
5. Hand Delivery or Courier: John Hund, Asbestos Coordinator,
Region 4, Environmental Protection Agency, Atlanta Federal Center, 61
Forsyth Street SW., Atlanta, GA 30303-8960. Such deliveries are only
accepted during the Regional Office's normal hours of operation. The
Regional
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Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding federal holidays.
Instructions: Direct your comments to Docket ID Number EPA-HQ-OPPT-
2005-0096. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the Asbestos Coordinator, Region
4, Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth
Street SW., Atlanta, GA 30303-8960. EPA requests that if at all
possible, you contact the person listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your inspection. The Regional Office's
official hours of business are Monday through Friday, 8:30 to 4:30
excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 564-8182; e-mail address: [email protected].
For technical information contact: John Hund, Asbestos Coordinator,
Region 4, Environmental Protection Agency, Atlanta Federal Center, 61
Forsyth Street SW., Atlanta, GA 30303-8960; telephone number: (404)
562-8978; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. What Action Is the Agency Taking?
EPA is considering granting, with conditions, a waiver of the
asbestos-in-schools program to the Commonwealth of Kentucky. This
notice is issued, and the waiver, if granted, would be issued under
section 203(m) of the Toxic Substances Control Act (TSCA) and 40 CFR
763.98. Section 203 is within Title II of TSCA, the Asbestos Hazard
Emergency Response Act (AHERA).
The Agency recognizes that a waiver granted to any State would not
encompass schools operated under the defense dependents' education
system (the third type of local education agency (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 includes schools in Indian country. Such
schools would remain subject to EPA's asbestos-in-schools program.
B. What Is the Agency's Authority for Taking This Action?
In 1987, under TSCA section 203, the Agency promulgated regulations
that require the identification and management of asbestos-containing
material by 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 that State is located.
C. When Did Kentucky Submit Its Request for a Waiver and How Is EPA
Proposing To Respond?
On January 4, 1999, Governor Paul E. Patton, submitted to the EPA
Region 4 Regional Administrator, a letter with supporting documentation
requesting a full waiver of the requirements of EPA's asbestos-in-
schools program pursuant to the AHERA statute and 40 CFR 763.98. The
EPA Region 4 Administrator indicated by letter dated February 19, 1999,
to Kentucky that the request was complete. A subsequent letter dated
August 21, 2000, from the Director of Kentucky Division for Air
Quality, corrected an inadvertent error in the January 4, 1999, letter.
EPA is hereby issuing a notice in the Federal Register announcing
receipt of the complete Kentucky waiver request and an opportunity for
comment and public hearing, and making the request and supporting
documentation available in the public record for this notice. The
Agency is also describing the information submitted by Kentucky and the
Agency's preliminary determination as to how the waiver request meets
the criteria for the grant of a waiver.
D. What was EPA's Determination With Regard to the Completeness of
Kentucky's Waiver Request?
The Kentucky waiver request has been deemed complete by EPA with
regard to the required contents specified at 40 CFR 763.98 and contains
the following:
1. A copy of the Kentucky provisions relating to its program of
asbestos inspection and management in schools for which the request is
made. These consist of the following, as well as other supporting
documentation: (a) Kentucky Revised Statutes (KRS) section 224.20-300
``Asbestos Control: Purpose;'' section 224.99-010(12) ``Penalties;''
section 224.99-020(1) ``Action to recover penalties and costs--
Injunctive relief;'' (b) 401 Kentucky Administrative Regulations (KAR)
58:010 ``Local education agencies;'' (c) Kentucky AHERA Compliance-
Monitoring Protocol, which includes the Neutral Administrative
Inspection Scheme for Asbestos Compliance-Monitoring inspections in
Kentucky; and (d)
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Kentucky's Enforcement Protocol for Violations of Certain AHERA
Requirements Associated with Accreditations, Management Plans, and
Recordkeeping. A copy of each of these documents and other supporting
documentation is included in the official record.
2. The name of the Kentucky agency that is responsible for
administrating and enforcing the requirements for which a waiver is
requested, namely the Natural Resources and Environmental Protection
Cabinet of the Commonwealth of Kentucky (the ``Cabinet''), which
includes the Department of Environmental Protection, and within the
Department, the Division for Air Quality. The officials within the
Division for Air Quality who are responsible for Kentucky's asbestos-
in-schools program are: John S. Lyons, Division Director; Kevin
Flowers, Manager of the Division's Field Operations Branch; and Parker
Moore, Manager of the Division's Special Programs Branch--telephone:
(502) 573-3382.
3. Detailed reasons, supporting papers, and rationale for
concluding that Kentucky's asbestos inspection and management programs,
for which the waiver request is made, are at least as stringent as the
requirements of the AHERA Schools Rule (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 Commonwealth intends to handle them.
5. A statement of the resources that Kentucky intends to devote to
the administration and enforcement of the provisions relating to the
waiver request.
6. Copies of any specific or enabling Kentucky laws and regulations
relating to the request, including provisions for assessing criminal
and/or civil penalties.
7. Assurance from the Governor, that the Cabinet has the legal
authority necessary to carry out the requirements relating to the
waiver request, as indicated in the January, 4, 1999, letter from
Governor Patton of Kentucky to the EPA Region 4 Regional Administrator,
as supplemented by the August 21, 2000, letter.
E. What Are the Criteria for EPA's Grant of the Waiver?
EPA may waive some or all of the requirements of the Agency's
asbestos-in-schools program if the Agency determines that Kentucky has
met the criteria set forth at 40 CFR 763.98. The criteria and EPA's
preliminary determinations relating to the grant of the waiver to
Kentucky are set forth below:
1. Kentucky's 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 Preliminary Determination
EPA has determined preliminarily that the statutory and regulatory
provisions cited at Section I.D.1 of this notice give the Kentucky
Division for Air Quality the legal authority necessary to carry out the
provisions of asbestos inspection and management in schools relating to
the waiver request.
2. Kentucky's program of asbestos inspection and management in
schools and its implementation of the program are or will be at least
as stringent as the requirements of the AHERA Schools Rule.
EPA Preliminary Determination
EPA has determined preliminarily that Kentucky's program is at
least as stringent as EPA's program. On January 25, 1989, Kentucky
adopted the requirements of 40 CFR part 763, subpart E in their
entirety, with the exception of Sec. Sec. 763.83 (definitions), 763.97
(compliance and enforcement), and 763.98 (waiver; delegation to State),
into the Kentucky Regulation 401 KAR 58:010 ``Local Education
Agencies.'' Kentucky also adopted several provisions which supplement
and clarify this rule.
3. Kentucky has an enforcement mechanism to allow it to implement
the program described in the waiver request.
EPA's Preliminary Determination
EPA has determined preliminarily that the compliance and
enforcement provisions of Kentucky's asbestos-in-schools program are
adequate to run the program. The Kentucky Environmental and Public
Protection Cabinet is empowered under KRS 224.10-100 to provide for the
prevention, abatement, and control of air pollution. KRS 224.10-100(5).
This includes the authority to ``enter and inspect any property or
premises for the purpose of investigating either actual or suspected
sources of pollution or contamination or for the purpose of
ascertaining compliance or noncompliance with this chapter, or any
regulation which may be promulgated there under.'' KRS 224.10-100(10).
Any person who violates any provision of state law or any
determination, permit, administrative regulation or order of the
Cabinet relating to the Asbestos Hazard Emergency Response Act (AHERA)
of 1986, Public Law 99-519, is liable to the Commonwealth of Kentucky
for a civil penalty in an amount not to exceed $25,000 for each
violation. KRS 224.99-010(4). A person who knowing violates these
provisions or who knowingly provides false information is guilty of a
Class D felony and punishable by a fine not to exceed $25,000, or by
imprisonment for a term of not less than one year and not more than
five years or by both for each separate violation. The Cabinet also has
the authority to bring an action for an injunction against any person
violating or threatening to violate any provision of the Kentucky
statute, regulation, or order or determination of the cabinet related
to AHERA. KRS 224.99-020.
To help ensure compliance with its asbestos regulations, the
Division for Air Quality has developed a Neutral Administrative
Inspection Scheme (NAIS) for targeting non-compliant inspections. By
focusing on activities where problems are most likely to occur, the
NAIS is designed to maximize the effectiveness of their inspection/
enforcement efforts toward preventing and controlling asbestos-related
risks to human health and the environment. The NAIS was revised October
9, 1998. The Division for Air Quality under a cooperative agreement
with EPA uses compliance monitoring and enforcement protocols for
overseeing Kentucky's Asbestos-in-Schools Program, pursuant to the
Asbestos Hazard Emergency Response Act and the Kentucky AHERA
regulations. The enforcement protocol includes: Warning Letter (Notice
of Noncompliance), Administrative Action (Notice of Violation), and
Civil Action. The enforcement protocol was revised October 9, 1998.
4. Kentucky has or will have qualified personnel to carry out the
provisions relating to the waiver request.
EPA's Preliminary Determination
EPA has determined preliminarily that Kentucky has qualified
personnel to carry out the provisions of the waiver. The existing
program staff includes 14 employees trained to stringently enforce the
requirements of 40 CFR part 763, subpart E. The program will be carried
out by staff in the Kentucky Environmental and Public Protection
Cabinet, Division for Air Quality. The Division's Field Operations
Branch includes seven asbestos inspectors located in seven regional
offices around the Commonwealth. The Division's Special Programs Branch
is responsible for reviewing AHERA management
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plans, re-inspections, and issuing AHERA accreditations. The Division's
Enforcement Branch is responsible for enforcement actions involving
AHERA violations. Kentucky commits approximately four persons each year
to AHERA compliance monitoring and enforcement activities under the EPA
TSCA Asbestos Enforcement Grant. Staff is fully-trained and certified
as Contractor/Supervisor, Inspector, and Management Planner.
5. Kentucky will devote adequate resources to the administration
and enforcement of the asbestos inspection and management provisions
relating to the waiver request.
EPA's Preliminary Determination
EPA has determined preliminarily that the resources developed by
the Kentucky Division for Air Quality are adequate to effectively
administer and enforce the provisions of the asbestos program in
Kentucky. Kentucky continues to receive funding through an EPA
cooperative agreement in the amount of $60,000 with state matching
funds of $20,000 for a total of $80,000 for FY 2006.
6. Kentucky 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 criteria numbers 2-4 above.
EPA's Preliminary Determination
For EPA to grant a full waiver to Kentucky for its asbestos-in-
schools program, the Commonwealth, as a condition of the grant, would
need to give a written assurance satisfactory to EPA that if, any
provision of either TSCA section 203 or the AHERA Schools Rule is
changed, the Commonwealth 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, if a waiver is granted and as long as it remains in
effect, Kentucky would need to continue its asbestos-in-schools
implementation and enforcement strategy utilizing adequate resources.
EPA may evaluate periodically the adequacy of Kentucky's 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.
F. What Recordkeeping and Reporting Burden Approvals Apply to the
Kentucky 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 simply announces the
Agency's receipt of the Kentucky waiver request and therefore it
imposes no additional burden beyond that covered under existing OMB
control number 2070-0091.
II. Materials in the Official Record
The official record, under Docket ID Number EPA-HQ-OPPT-2005-0096,
contains the Kentucky waiver request, and any other supporting or
relevant documents.
Dated: May 11, 2006.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. E6-8399 Filed 5-31-06; 8:45 am]
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