[Code of Federal Regulations]
[Title 40, Volume 30]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR763.98]

[Page 744-746]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 763_ASBESTOS--Table of Contents
 
           Subpart E_Asbestos-Containing Materials in Schools
 
Sec. 763.98  Waiver; delegation to State.

    (a) General. (1) Upon request from a State Governor and after notice 
and comment and an opportunity for a public hearing in accordance with 
paragraphs (b) and (c) of this section, EPA may waive some or all of the 
requirements of this subpart E if 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 the requirements of this subpart E.
    (2) A waiver from any requirement of this subpart E shall apply only 
to the specific provision for which a waiver has been granted under this 
section. All requirements of this subpart E shall apply until a waiver 
is granted under this section.
    (b) Request. Each request by a Governor to waive any requirement of 
this subpart E shall be sent with three complete copies of the request 
to the Regional Administrator for the EPA Region in which the State is 
located and shall include:
    (1) A copy of the State provisions or proposed provisions relating 
to its program of asbestos inspection and management in schools for 
which the request is made.
    (2)(i) The name of the State agency that is or will be 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 phone numbers where the officials can be contacted.
    (ii) In the event that more than one agency is or will be 
responsible for administering and enforcing the requirements for which a 
waiver is requested, a description of the functions to be performed by 
each agency, how the program will be coordinated by the lead agency to 
ensure consistency and effective administration in the asbestos 
inspection and management program within the State, the names and job 
titles of responsible officials in the agencies, and phone numbers where 
the officials can be contacted. The lead agency will serve as the 
central contact point for the EPA.
    (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 this 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

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provisions relating to the waiver request.
    (6) Copies of any specific or enabling State laws (enacted and 
pending enactment) and regulations (promulgated and pending 
promulgation) relating to the request, including provisions for 
assessing criminal and/or civil penalties.
    (7) Assurance from the Governor, the Attorney General, or the legal 
counsel of the lead agency that the lead agency or other cooperating 
agencies have the legal authority necessary to carry out the 
requirements relating to the request.
    (c) General notice--hearing. (1) Within 30 days after receipt of a 
request for a waiver, EPA will determine the completeness of the 
request. If EPA does not request further information within the 30-day 
period, the request will be deemed complete.
    (2) Within 30 days after EPA determines that a request is complete, 
EPA will issue for publication in the Federal Register a notice that 
announces receipt of the request, describes the information submitted 
under paragraph (b) of this section, and solicits written comment from 
interested members of the public. Comments must be submitted within 60 
days.
    (3) If, during the comment period, EPA receives a written objection 
to a Governor's request and a request for a public hearing detailing 
specific objections to the granting of a waiver, EPA will schedule a 
public hearing to be held in the affected State after the close of the 
comment period and will announce the public hearing date in the Federal 
Register before the date of the hearing. Each comment shall include the 
name and address of the person submitting the comment.
    (d) Criteria. EPA may waive some or all of the requirements of 
subpart E of this part if:
    (1) The State's lead agency and other cooperating agencies have the 
legal authority necessary to carry out the provisions of asbestos 
inspection and management in schools relating to the waiver request.
    (2) The State's program of asbestos inspection and management in 
schools relating to the waiver request and implementation of the program 
are or will be at least as stringent as the requirements of this subpart 
E.
    (3) The State has an enforcement mechanism to allow it to implement 
the program described in the waiver request.
    (4) The lead agency and any cooperating agencies have or will have 
qualified personnel to carry out the provisions relating to the waiver 
request.
    (5) The State will devote adequate resources to the administration 
and enforcement of the asbestos inspection and management provisions 
relating to the waiver request.
    (6) When specified by EPA, the State gives satisfactory assurances 
that 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 under paragraphs (d) 
(2) through (4) of this section.
    (e) Decision. EPA will issue for publication in the Federal Register 
a notice announcing its decision to grant or deny, in whole or in part, 
a Governor's request for a waiver from some or all of the requirements 
of this subpart E within 30 days after the close of the comment period 
or within 30 days following a public hearing, whichever is applicable. 
The notice will include the Agency's reasons and rationale for granting 
or denying the Governor's request. The 30-day period may be extended if 
mutually agreed upon by EPA and the State.
    (f) Modifications. When any substantial change is made in the 
administration or enforcement of a State program for which a waiver was 
granted under this section, a responsible official in the lead agency 
shall submit such changes to EPA.
    (g) Reports. The lead agency in each State that has been granted a 
waiver by EPA from any requirement of subpart E of this part shall 
submit a report to the Regional Administrator for the Region in which 
the State is located at least once every 12 months to include the 
following information:
    (1) A summary of the State's implementation and enforcement 
activities

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during the last reporting period relating to provisions waived under 
this section, including enforcement actions taken.
    (2) Any changes in the administration or enforcement of the State 
program implemented during the last reporting period.
    (3) Other reports as may be required by EPA to carry out effective 
oversight of any requirement of this subpart E that was waived under 
this section.
    (h) Oversight. EPA may periodically evaluate the adequacy of a 
State's implementation and enforcement of and resources devoted to 
carrying out requirements relating to the waiver. This evaluation may 
include, but is not limited to, site visits to local education agencies 
without prior notice to the State.
    (i) Informal conference. (1) EPA may request that an informal 
conference be held between appropriate State and EPA officials when EPA 
has reason to believe that a State has failed to:
    (i) Substantially comply with the terms of any provision that was 
waived under this section.
    (ii) Meet the criteria under paragraph (d) of this section, 
including the failure to carry out enforcement activities or act on 
violations of the State program.
    (2) EPA will:
    (i) Specify to the State those aspects of the State's program 
believed to be inadequate.
    (ii) Specify to the State the facts that underlie the belief of 
inadequacy.
    (3) If EPA finds, on the basis of information submitted by the State 
at the conference, that deficiencies did not exist or were corrected by 
the State, no further action is required.
    (4) Where EPA finds that deficiencies in the State program exist, a 
plan to correct the deficiencies shall be negotiated between the State 
and EPA. The plan shall detail the deficiencies found in the State 
program, specify the steps the State has taken or will take to remedy 
the deficiencies, and establish a schedule for each remedial action to 
be initiated.
    (j) Rescission. (1) If the State fails to meet with EPA or fails to 
correct deficiencies raised at the informal conference, EPA will deliver 
to the Governor of the State and a responsible official in the lead 
agency a written notice of its intent to rescind, in whole or part, the 
waiver.
    (2) EPA will issue for publication in the Federal Register a notice 
that announces the rescission of the waiver, describes those aspects of 
the State's program determined to be inadequate, and specifies the facts 
that underlie the findings of inadequacy.