[Federal Register: June 14, 2005 (Volume 70, Number 113)]
[Notices]
[Page 34474-34477]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn05-66]
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ENVIRONMENTAL PROTECTION AGENCY
[OPPT-2004-0096; FRL-7718-1]
Asbestos-Containing Materials in Schools; State Request for
Waiver from Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA has received from Illinois a request for a waiver from the
Agency's asbestos-in-schools program. A waiver of these requirements
will be granted if EPA determines, after notice and comment and
opportunity for a public hearing, that Illinois is implementing or
intends to implement a program of asbestos inspection and management at
least as stringent as EPA's program. This notice announces an
opportunity for a public hearing on the Illinois waiver request and
solicits written comments.
DATES: Written comments under docket ID number OPPT-2004-0096, must be
received on or before August 15, 2005. 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 August 15, 2005, 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 Illinois following the comment
period. EPA will announce the date of the public hearing in the Federal
Register.
ADDRESSES: Comments may be submitted electronically, by mail, or
through hand delivery/courier. Follow the detailed instructions as
provided in Unit I. of the SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Linter, 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) 554-1404; e-mail address:
TSCA-Hotline@epa.gov.
For technical information contact: Philip King, Asbestos
Coordinator, (DT-8J), Region V, Environmental Protection Agency, 77 W.
Jackson Blvd., Chicago, IL 60604; telephone number: (312) 353-9062; e-
mail address: king.phillip@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 Illinois, and asbestos
professionals working in Illinois. 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 technical
person listed under FOR FURTHER INFORMATION CONTACT.
B. How Can I Get Copies of this Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under docket identification (ID) number OPPT-2004-0096. The
official public docket consists of the documents specifically
referenced in this action, any public comments received, and other
information related to this action. Although a part of the official
docket, the public docket does not include Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. The official public docket is the collection of materials
that is available for public viewing at the EPA Docket Center, Rm.
B102-Reading Room, EPA West, 1301 Constitution Ave., NW., Washington,
DC. The EPA Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The EPA Docket Center Reading
Room telephone number is (202) 566-1744 and the telephone number for
the OPPT Docket, which is located in the EPA Docket Center, is (202)
566-0280.
2. Electronic access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Although not all docket materials may be
available electronically, you may still access any of the publicly
available docket materials through the docket facility identified in
Unit I.B.1. Once in the system, select ``search,'' then key in the
appropriate docket ID number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the
[[Page 34475]]
system will identify whether the document is available for viewing in
EPA's electronic public docket. Although not all docket materials may
be available electronically, you may still access any of the publicly
available docket materials through the docket facility identified in
Unit I.B.1. EPA intends to work towards providing electronic access to
all of the publicly available docket materials through EPA's electronic
public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket ID number in the subject line on the first page of
your comment. Please ensure that your comments are submitted within the
specified comment period. Comments received after the close of the
comment period will be marked ``late.'' EPA is not required to consider
these late comments. If you wish to submit CBI or information that is
otherwise protected by statute, please follow the instructions in Unit
I.D. Do not use EPA Dockets or e-mail to submit CBI or information
protected by statute.
1. Electronically. If you submit an electronic comment as
prescribed in this unit, EPA recommends that you include your name,
mailing address, and an e-mail address or other contact information in
the body of your comment. Also include this contact information on the
outside of any disk or CD ROM you submit, and in any cover letter
accompanying the disk or CD ROM. This ensures that you can be
identified as the submitter of the comment and allows EPA to contact
you in case EPA cannot read your comment due to technical difficulties
or needs further information on the substance of your comment. EPA's
policy is that EPA will not edit your comment, and any identifying or
contact information provided in the body of a comment will be included
as part of the comment that is placed in the official public docket,
and made available in EPA's electronic public docket. 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.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket/
, and follow the online instructions for submitting comments.
Once in the system, select ``search,'' and then key in docket ID number
OPPT-2004-0096. The system is an ``anonymous access'' system, which
means EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by e-mail to oppt.ncic@epa.gov,
Attention: Docket ID Number OPPT-2004-0096. In contrast to EPA's
electronic public docket, EPA's e-mail system is not an ``anonymous
access'' system. If you send an e-mail comment directly to the docket
without going through EPA's electronic public docket, EPA's e-mail
system automatically captures your e-mail address. E-mail addresses
that are automatically captured by EPA's e-mail system are included as
part of the comment that is placed in the official public docket, and
made available in EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in Unit I.C.2. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By mail. Send your comments to: Document Control Office (7407M),
Office of Pollution Prevention and Toxics (OPPT), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001.
3. By hand delivery or courier. Deliver your comments to: OPPT
Document Control Office (DCO) in EPA East Bldg., Rm. 6428, 1201
Constitution Ave., NW., Washington, DC. Attention: Docket ID Number
OPPT-2004-0096. The DCO is open from 8 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the DCO is
(202) 564-8930.
D. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail. You
may claim information that you submit to EPA as CBI by marking any part
or all of that information as CBI (if you submit CBI on disk or CD ROM,
mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is CBI). Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the technical person listed under FOR FURTHER INFORMATION CONTACT.
II. Background
A. What Action is the Agency Taking?
EPA is considering granting, with conditions, a waiver of the
asbestos-in-schools program to Illinois. This notice is issued, and the
waiver, if granted, would be 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).
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
[[Page 34476]]
generally include 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 the State is located.
C. When Did Illinois Submit its Request for a Waiver and How is EPA
Proposing to Respond?
On December 20, 2004, Illinois Governor Rod Blagojevich, submitted
to Bharat Mathur, Acting Regional Administrator, EPA Region V, a letter
requesting a full waiver of the requirements of EPA's asbestos-in-
schools program. After reviewing this initial submittal, EPA Region V
did request further information from Illinois by letter dated January
20, 2005. Illinois then responded by submitting the additional
requested information on February 25, 2005. This supplemental
information was subsequently received by EPA Region V on March 3, 2005,
and then further discussed and clarified during two conference calls
held with Illinois Department of Public Health (IDPH) staff on March 15
and April 8, 2005.
EPA is hereby issuing a notice in the Federal Register announcing
receipt of the complete Illinois waiver request and an opportunity for
comment and public hearing, and making the request and the supporting
documentation available in the public record for this notice. The
Agency is also describing the information submitted by Illinois and the
Agency's preliminary determinations 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
Illinois' Waiver Request?
The Illinois waiver request has been deemed complete by EPA and
contains the following:
1. A copy of the Illinois provisions that include its program of
asbestos inspection and management in schools. These consist of: The
Illinois Asbestos Abatement Act (105 ILCS), the Illinois Commercial and
Public Building Asbestos Abatement Act (225 ILCS), the Department of
Public Health Act (20 ILCS 2305), and 77 Illinois Administrative Code,
section 855, all of which are administered by the IDPH.
2. The names of the Illinois agencies responsible for administering
and enforcing the requirements of the waiver (including the IDPH, the
Illinois Attorney General's Office and the Illinois State's Attorney's
Offices), the names and job titles of responsible officials in those
agencies, and telephone numbers where these officials can be reached.
The responsible officials from the IDPH include Gary Flentge, Chief of
the Division of Environmental Health and Kent Cook, Manager of the
Asbestos Program (telephone: (217) 785-5830). The responsible official
from the Illinois Attorney General's Office is Matthew J. Dunn, Chief,
Environmental Enforcement/Asbestos Litigation Division (telephone:
(312) 814-2521). The responsible officials from the State's Attorney's
Offices include the current State's Attorney's from each of Illinois'
Counties.
3. Detailed reasons, supporting papers, and the rationale for
concluding that Illinois' asbestos inspection and management program
provisions are at least as stringent as the requirements of the AHERA
Schools Rule (40 CFR part 763, subpart E). This information can be
found in the December 17, 2004 assurance letter from Anne Murphy, Chief
Counsel to IDPH, which forms an integral part of Illinois' waiver
application. This letter states that ``Illinois' law is at least as
stringent as the federal AHERA regulations in their entirety,'' because
``the AHERA regulations are adopted directly by the Illinois Asbestos
Abatement Act (105 ILCS 105),'' and have been incorporated by reference
into the IDPH asbestos regulations found at 77 IAC 855.
4. A discussion of any special situations, problems, and needs
pertaining to the waiver request accompanied by an explanation of how
Illinois intends to handle them. This information can be found in the
supplemental information submitted by Illinois in response to the
request from EPA Region V. In it's reply, IDPH has explained and
clarified that if any of its regulatory language were ever to be found
in conflict with the language of the federal AHERA regulations, that
``. . . IDPH would ensure that the minimum federal regulations found in
AHERA were enforced and at the same time ensure that the health of the
public is protected.'' This approach ensures that the Illinois Program
will remain ``at least as stringent as'' the Federal Program as
required by 40 CFR 763.98(a).
5. A statement of the resources that Illinois intends to devote to
the administration and enforcement of the provisions relating to the
waiver request. This statement is found in the supplemental submission
made by Illinois which addresses the resources currently available to
support an on-going program. These resources include both monies
appropriated by the Legislature and monies deposited in the Illinois
School Asbestos Abatement Fund.
6. Copies of Illinois laws and regulations relating to the request,
including provisions for assessing criminal and/or civil penalties.
Copies of Illinois' asbestos statutes and regulations can be found in
Attachment A of the State's original application submittal, and also in
a subsequent e-mail from Gary Flentge to Philip King, dated April 8,
2005, which forwarded a copy of Illinois' Department of Public Health
Act (20 ILCS 2305/8.1).
7. Assurance from the Governor, the Attorney General, or the legal
counsel of the lead agency that the lead agency has the legal authority
necessary to carry out the requirements relating to the request. This
assurance is found in the letter from Anne Murphy, Chief Counsel for
the IDPH, to the Acting EPA Regional Administrator, Bharat Mathur,
dated December 17, 2004, which accompanies and forms a part of the
original application submission.
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 Illinois 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
Illinois are set forth below:
1. Illinois' lead agency and other cooperating agencies have the
legal authority necessary to carry out the provisions of asbestos
inspection and
[[Page 34477]]
management in schools relating to the waiver request.
EPA's Preliminary Determination: EPA has determined preliminarily
that the statutory and regulatory provisions of the Illinois Asbestos
Abatement Act (105 ILCS), the Illinois Commercial and Public Building
Asbestos Abatement Act (225 ILCS), the Department of Public Health Act
(20 ILCS 2305), and 77 Illinois Administrative Code, Section 855, give
the Illinois Department of Public Health such authority.
2. Illinois' 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's Preliminary Determination: Since Illinois has adopted the
AHERA schools rule by reference in its regulations, EPA has determined
that Illinois' program is at least as stringent as EPA's program.
3. Illinois 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 Illinois' asbestos-
in-schools program are adequate to run the program. The Director of the
Illinois Department of Public Health is empowered under the Commercial
and Public Building Asbestos Abatement Act (225 ILCS 207) to ``. . .
maintain an action for prosecution, injunction, or other relief or
process against any Building/Facility Owner or any other person or unit
of local government to enforce and compel compliance with the
provisions of this Act, the rules promulgated under it and any order
entered for any action under this Act and its rules. A person who
violates this Act is guilty of a Class A misdemeanor punishable by a
fine of $1,000 for each day the violation exists in addition to other
civil penalties or up to 6 months imprisonment or both a fine and
imprisonment.'' The Director also has authority to inspect all
activities regulated by the Act, and can issue stop work orders. In
addition, under section 8.1 of the Department of Public Health Act (20
ILCS 2305), the Director may also deem ``whoever violates or refuses to
obey any rule or regulation of the Department of Public Health to be
guilty of a Class A misdemeanor.''
4. The lead agency and any cooperating agencies have or will have
qualified personnel to carry out the provisions relating to the waiver
request.
EPA's Preliminary Determination: EPA has preliminarily determined
that the IDPH has qualified personnel to carry out the provisions of
the waiver. The existing program staff includes four environmental
engineers, one project designer, three full-time support staff, two
temporary support staff, and an architect. Oversight is provided by a
licensed professional engineer.
5. Illinois 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 Illinois has adequate resources to administer and enforce the
provisions of the program. The appropriated funding for the Asbestos
Program is $933,045 for the current State fiscal year ('05). The State
also has a current balance of $612,000 in its Illinois School Asbestos
Abatement Fund, and collected $15,229 in fines during the previous
fiscal year ('04).
6. Illinois 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
Illinois, the State, as a condition of the grant of the waiver, would
need to give a written assurance satisfactory to EPA 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, if a waiver is granted and as long as it remains in
effect, Illinois, utilizing adequate resources, would need to continue
its asbestos-in-schools implementation and enforcement strategy. EPA
may evaluate periodically the adequacy of Illinois' 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
Illinois 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 receipt of the Illinois waiver request and, therefore, 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 ID number OPPT-2004-0096,
contains the Illinois waiver request, and any other supporting or
relevant documents.
List of Subjects
Environmental protection, Asbestos, Hazardous substances,
Occupational health and safety, Reporting and recordkeeping
requirements, Schools.
Dated: June 2, 2005.
Norman Niedergang,
Acting Regional Administrator, Region V.
[FR Doc. 05-11662 Filed 6-13-05; 8:45 am]
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