

[Federal Register: June 1, 2006 (Volume 71, Number 105)]
[Notices]               
[Page 31183-31186]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn06-57]                         

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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: hund.john@epa.gov.
    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

[[Page 31184]]

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: 
TSCA-Hotline@epa.gov.

    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: hund.john@epa.gov.

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)

[[Page 31185]]

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

[[Page 31186]]

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]

BILLING CODE 6560-50-P
