EPA ICR No. 1365.10; OMB Control No. 2070-0091

Attachment C

Asbestos-Containing Materials in Schools Rule

40 CFR 763, Subpart E

TITLE 40--PROTECTION OF ENVIRONMENT

CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY

PART 763--ASBESTOS--Table of Contents

 

Subpart E--Asbestos-Containing Materials in Schools

    Source: 52 FR 41846, Oct. 30, 1987, unless otherwise noted.

Sec. 763.80  Scope and purpose.

    (a) This rule requires local education agencies to identify friable
and nonfriable asbestos- containing material (ACM) in public and private
elementary and secondary schools by visually inspecting school buildings
for such materials, sampling such materials if they are not assumed to
be ACM, and having samples analyzed by appropriate techniques referred
to in this rule. The rule requires local education agencies to submit
management plans to the Governor of their State by October 12, 1988,
begin to implement the plans by July 9, 1989, and complete
implementation of the plans in a timely fashion. In addition, local
education agencies are required to use persons who have been accredited
to conduct inspections, reinspections, develop management plans, or
perform response actions. The rule also includes recordkeeping
requirements. Local education agencies may contractually delegate their
duties under this rule, but they remain responsible for the proper
performance of those duties. Local education agencies are encouraged to
consult with EPA Regional Asbestos Coordinators, or if applicable, a
State's lead agency designated by the State Governor, for assistance in
complying with this rule.

    (b) Local education agencies must provide for the transportation and
disposal of asbestos in accordance with EPA's ''Asbestos Waste
Management Guidance.'' For convenience, applicable sections of this
guidance are reprinted as Appendix D of this subpart. There are
regulations in place, however, that affect transportation and disposal
of asbestos waste generated by this rule. The transportation of asbestos
waste is covered by the Department of Transportation (49 CFR part 173,
subpart J) and disposal is covered by the National Emissions Standards
for Hazardous Air Pollutants (NESHAP) (40 CFR part 61, subpart M).

Sec. 763.83  Definitions.

    For purposes of this subpart:

    Act means the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601,
et seq.

    Accessible when referring to ACM means that the material is subject
to disturbance by school building occupants or custodial or maintenance
personnel in the course of their normal activities.

    Accredited or accreditation when referring to a person or laboratory
means that such person or laboratory is accredited in accordance with
section 206 of Title II of the Act.

    Air erosion means the passage of air over friable ACBM which may
result in the release of asbestos fibers.

    Asbestos means the asbestiform varieties of: Chrysotile
(serpentine); crocidolite (riebeckite); amosite (cum-
mingtonitegrunerite); anthophyllite; tremolite; and actinolite.

    Asbestos-containing material (ACM) when referring to school
buildings means any material or product which contains more than 1
percent asbestos.

    Asbestos-containing building material (ACBM) means surfacing ACM,
thermal system insulation ACM, or miscellaneous ACM that is found in or
on interior structural members or other parts of a school building.

    Asbestos debris means pieces of ACBM that can be identified by
color, texture, or composition, or means dust, if the dust is determined
by an accredited inspector to be ACM.

    Damaged friable miscellaneous ACM means friable miscellaneous ACM
which has deteriorated or sustained physical injury such that the
internal structure (cohesion) of the material is inadequate or, if
applicable, which has delaminated such that its bond to the substrate
(adhesion) is inadequate or which for any other reason lacks fiber
cohesion or adhesion qualities. Such damage or deterioration may be
illustrated by the separation of ACM into layers; separation of ACM from
the substrate; flaking, blistering, or crumbling of the ACM surface; 

water damage; significant or repeated water stains, scrapes, gouges,
mars or other signs of physical injury on the ACM. Asbestos debris
originating from the ACBM in question may also indicate damage.

    Damaged friable surfacing ACM means friable surfacing ACM which has
deteriorated or sustained physical injury such that the internal
structure (cohesion) of the material is inadequate or which has
delaminated such that its bond to the substrate (adhesion) is
inadequate, or which, for any other reason, lacks fiber cohesion or
adhesion qualities. Such damage or deterioration may be illustrated by
the separation of ACM into layers; separation of ACM from the substrate;


flaking, blistering, or crumbling of the ACM surface; water damage;
significant or repeated water stains, scrapes, gouges, mars or other
signs of physical injury on the ACM. Asbestos debris originating from
the ACBM in question may also indicate damage.

    Damaged or significantly damaged thermal system insulation ACM means
thermal system insulation ACM on pipes, boilers, tanks, ducts, and other
thermal system insulation equipment where the insulation has lost its
structural integrity, or its covering, in whole or in part, is crushed,
water-stained, gouged, punctured, missing, or not intact such that it is
not able to contain fibers. Damage may be further illustrated by
occasional punctures, gouges or other signs of physical injury to ACM;
occasional water damage on the protective coverings/jackets; or 

exposed ACM ends or joints. Asbestos debris originating from the ACBM in
question may also indicate damage.

    Encapsulation means the treatment of ACBM with a material that
surrounds or embeds asbestos fibers in an adhesive matrix to prevent the
release of fibers, as the encapsulant creates a membrane over the
surface (bridging encapsulant) or penetrates the material and binds its
components together (penetrating encapsulant).

    Enclosure means an airtight, impermeable, permanent barrier around
ACBM to prevent the release of asbestos fibers into the air.

    Fiber release episode means any uncontrolled or unintentional
disturbance of ACBM resulting in visible emission.

    Friable when referring to material in a school building means that
the material, when dry, may be crumbled, pulverized, or reduced to
powder by hand pressure, and includes previously nonfriable material
after such previously nonfriable material becomes damaged to the extent 

that when dry it may be crumbled, pulverized, or reduced to powder by
hand pressure.

    Functional space means a room, group of rooms, or homogeneous area
(including crawl spaces or the space between a dropped ceiling and the
floor or roof deck above), such as classroom(s), a cafeteria, gymnasium,
hallway(s), designated by a person accredited to prepare management
plans, design abatement projects, or conduct response actions.

    High-efficiency particulate air (HEPA) refers to a filtering system
capable of trapping and retaining at least 99.97 percent of all
monodispersed particles 0.3 μm in diameter or larger.

    Homogeneous area means an area of surfacing material, thermal system
insulation material, or miscellaneous material that is uniform in color
and texture.

    Local education agency means:

    (1) Any local educational agency as defined in section 198 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 3381).

    (2) The owner of any nonpublic, nonprofit elementary, or secondary
school building.

    (3) The governing authority of any school operated under the defense
dependent's education system provided for under the Defense Dependents'
Education Act of 1978 (20 U.S.C. 921, et seq.).

    Miscellaneous ACM means miscellaneous material that is ACM in a
school building.

    Miscellaneous material means interior building material on
structural components, structural members or fixtures, such as floor and
ceiling tiles, and does not include surfacing material or thermal system
insulation.

    Nonfriable means material in a school building which when dry may
not be crumbled, pulverized, or reduced to powder by hand pressure.

    Operations and maintenance program means a program of work practices
to maintain friable ACBM in good condition, ensure clean up of asbestos
fibers previously released, and prevent further release by minimizing
and controlling friable ACBM disturbance or damage.

    Potential damage means circumstances in which:

    (1) Friable ACBM is in an area regularly used by building occupants,
including maintenance personnel, in the course of their normal
activities.

    (2) There are indications that there is a reasonable likelihood that
the material or its covering will become damaged, deteriorated, or
delaminated due to factors such as changes in building use, changes in
operations and maintenance practices, changes in occupancy, or recurrent


damage.

    Potential significant damage means circumstances in which:

    (1) Friable ACBM is in an area regularly used by building occupants,
including maintenance personnel, in the course of their normal
activities.

    (2) There are indications that there is a reasonable likelihood that
the material or its covering will become significantly damaged,
deteriorated, or delaminated due to factors such as changes in building
use, changes in operations and maintenance practices, changes in
occupancy, or recurrent damage.

    (3) The material is subject to major or continuing disturbance, due
to factors including, but not limited to, accessibility or, under
certain circumstances, vibration or air erosion.

    Preventive measures means actions taken to reduce disturbance of
ACBM or otherwise eliminate the reasonable likelihood of the material's
becoming damaged or significantly damaged.

    Removal means the taking out or the stripping of substantially all
ACBM from a damaged area, a functional space, or a homogeneous area in a
school building.

    Repair means returning damaged ACBM to an undamaged condition or to
an intact state so as to prevent fiber release.

    Response action means a method, including removal, encapsulation,
enclosure, repair, operations and maintenance that protects human health
and the environment from friable ACBM.

    Routine maintenance area means an area, such as a boiler room or
mechanical room, that is not normally frequented by students and in
which maintenance employees or contract workers regularly conduct
maintenance activities.

    School means any elementary or secondary school as defined in
section 198 of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 2854).

    School building means:

    (1) Any structure suitable for use as a classroom, including a
school facility such as a laboratory, library, school eating facility,
or facility used for the preparation of food.

    (2) Any gymnasium or other facility which is specially designed for
athletic or recreational activities for an academic course in physical
education.

    (3) Any other facility used for the instruction or housing of
students or for the administration of educational or research programs.

    (4) Any maintenance, storage, or utility facility, including any
hallway, essential to the operation of any facility described in this
definition of ''school building'' under paragraphs (1), (2), or (3).

    (5) Any portico or covered exterior hallway or walkway.

    (6) Any exterior portion of a mechanical system used to condition
interior space.

    Significantly damaged friable miscellaneous ACM means damaged
friable miscellaneous ACM where the damage is extensive and severe.   

    Significantly damaged friable surfacing ACM means damaged friable
surfacing ACM in a functional space where the damage is extensive and
severe.

    State means a State, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, American Samoa, the Northern Marianas, the Trust
Territory of the Pacific Islands, and the Virgin Islands.

    Surfacing ACM means surfacing material that is ACM.

    Surfacing material means material in a school building that is
sprayed-on, troweled-on, or otherwise applied to surfaces, such as
acoustical plaster on ceilings and fireproofing materials on structural
members, or other materials on surfaces for acoustical, fireproofing, or
other purposes.

    Thermal system insulation means material in a school building
applied to pipes, fittings, boilers, breeching, tanks, ducts, or other
interior structural components to prevent heat loss or gain, or water
condensation, or for other purposes.

    Thermal system insulation ACM means thermal system insulation that
is ACM.

    Vibration means the periodic motion of friable ACBM which may result
in the release of asbestos fibers.

Sec. 763.84  General local education agency responsibilities.

    Each local education agency shall:

    (a) Ensure that the activities of any persons who perform
inspections, reinspections, and periodic surveillance, develop and
update management plans, and develop and implement response actions,
including operations and maintenance, are carried out in accordance with


subpart E of this part.

    (b) Ensure that all custodial and maintenance employees are properly
trained as required by this subpart E and other applicable Federal
and/or State regulations (e.g., the Occupational Safety and Health
Administration asbestos standard for construction, the EPA worker
protection rule, or applicable State regulations).

    (c) Ensure that workers and building occupants, or their legal
guardians, are informed at least once each school year about
inspections, response actions, and post-response action activities, 

including periodic reinspection and surveillance activities that are
planned or in progress.

    (d) Ensure that short-term workers (e.g., telephone repair workers,
utility workers, or exterminators) who may come in contact with asbestos
in a school are provided information regarding the locations of ACBM and
suspected ACBM assumed to be ACM.

    (e) Ensure that warning labels are posted in accordance with Sec.
763.95.

    (f) Ensure that management plans are available for inspection and
notification of such availability has been provided as specified in the
management plan under Sec. 763.93(g).

    (g)(1) Designate a person to ensure that requirements under this
section are properly implemented.

    (2) Ensure that the designated person receives adequate training to
perform duties assigned under this section. Such training shall provide,
as necessary, basic knowledge of:

    (i) Health effects of asbestos.

    (ii) Detection, identification, and assessment of ACM.

    (iii) Options for controlling ACBM.

    (iv) Asbestos management programs.

    (v) Relevant Federal and State regulations concerning asbestos,
including those in this subpart E and those of the Occupational Safety
and Health Administration, U.S. Department of Labor, the U.S. Department
of Transportation and the U.S. Environmental Protection Agency.

    (h) Consider whether any conflict of interest may arise from the
interrelationship among accredited personnel and whether that should
influence the selection of accredited personnel to perform activities
under this subpart.

Sec. 763.85  Inspection and reinspections.

    (a) Inspection. (1) Except as provided in paragraph (a)(2) of this
section, before October 12, 1988, local education agencies shall inspect
each school building that they lease, own, or otherwise use as a school
building to identify all locations of friable and nonfriable ACBM.

    (2) Any building leased or acquired on or after October 12, 1988,
that is to be used as a school building shall be inspected as described
under paragraphs (a) (3) and (4) of this section prior to use as a
school building. In the event that emergency use of an uninspected
building as a school building is necessitated, such buildings shall be
inspected within 30 days after commencement of such use.

    (3) Each inspection shall be made by an accredited inspector.

    (4) For each area of a school building, except as excluded under
Sec. 763.99, each person performing an inspection shall:

    (i) Visually inspect the area to identify the locations of all
suspected ACBM.

    (ii) Touch all suspected ACBM to determine whether they are friable.

    (iii) Identify all homogeneous areas of friable suspected ACBM and
all homogeneous areas of nonfriable suspected ACBM.

    (iv) Assume that some or all of the homogeneous areas are ACM, and,
for each homogeneous area that is not assumed to be ACM, collect and
submit for analysis bulk samples under Secs. 763.86 and 763.87.

    (v) Assess, under Sec. 763.88, friable material in areas where
samples are collected, friable material in areas that are assumed to be
ACBM, and friable ACBM identified during a previous inspection.

    (vi) Record the following and submit to the person designated under
Sec. 763.84 a copy of such record for inclusion in the management plan
within 30 days of the inspection:

    (A) An inspection report with the date of the inspection signed by
each accredited person making the inspection, State of accreditation,
and if applicable, his or her accreditation number.

    (B) An inventory of the locations of the homogeneous areas where
samples are collected, exact location where each bulk sample is
collected, dates that samples are collected, homogeneous areas where
friable suspected ACBM is assumed to be ACM, and homogeneous areas where
nonfriable suspected ACBM is assumed to be ACM.

    (C) A description of the manner used to determine sampling
locations, the name and signature of each accredited inspector who
collected the samples, State of accreditation, and, if applicable, his
or her accreditation number.

    (D) A list of whether the homogeneous areas identified under
paragraph (a)(4)(vi)(B) of this section, are surfacing material, thermal
system insulation, or miscellaneous material.

    (E) Assessments made of friable material, the name and signature of
each accredited inspector making the assessment, State of accreditation,
and if applicable, his or her accreditation number.

    (b) Reinspection. (1) At least once every 3 years after a management
plan is in effect, each local education agency shall conduct a
reinspection of all friable and nonfriable known or assumed ACBM in each
school building that they lease, own, or otherwise use as a school 

building.

    (2) Each inspection shall be made by an accredited inspector.

    (3) For each area of a school building, each person performing a
reinspection shall:

    (i) Visually reinspect, and reassess, under Sec. 763.88, the
condition of all friable known or assumed ACBM.

    (ii) Visually inspect material that was previously considered
nonfriable ACBM and touch the material to determine whether it has
become friable since the last inspection or reinspection.

    (iii) Identify any homogeneous areas with material that has become
friable since the last inspection or reinspection.

    (iv) For each homogeneous area of newly friable material that is
already assumed to be ACBM, bulk samples may be collected and submitted
for analysis in accordance with Secs. 763.86 and 763.87.

    (v) Assess, under Sec. 763.88, the condition of the newly friable
material in areas where samples are collected, and newly friable
materials in areas that are assumed to be ACBM.

    (vi) Reassess, under Sec. 763.88, the condition of friable known or
assumed ACBM previously identified.

    (vii) Record the following and submit to the person designated under
Sec. 763.84 a copy of such record for inclusion in the management plan
within 30 days of the reinspection:

    (A) The date of the reinspection, the name and signature of the
person making the reinspection, State of accreditation, and if
applicable, his or her accreditation number, and any changes in the
condition of known or assumed ACBM.

    (B) The exact locations where samples are collected during the
reinspection, a description of the manner used to determine sampling
locations, the name and signature of each accredited inspector who
collected the samples, State of accreditation, and, if applicable, his
or her accreditation number.

    (C) Any assessments or reassessments made of friable material, the
name and signature of the accredited inspector making the assessments,
State of accreditation, and if applicable, his or her accreditation
number.

    (c) General. Thermal system insulation that has retained its
structural integrity and that has an undamaged protective jacket or wrap
that prevents fiber release shall be treated as nonfriable and therefore
is subject only to periodic surveillance and preventive measures as
necessary.

Sec. 763.86  Sampling.

    (a) Surfacing material. An accredited inspector shall collect, in a
statistically random manner that is representative of the homogeneous
area, bulk samples from each homogeneous area of friable surfacing
material that is not assumed to be ACM, and shall collect the samples as


follows:

    (1) At least three bulk samples shall be collected from each
homogeneous area that is 1,000 ft2 or less, except as provided in Sec.
763.87(c)(2).

    (2) At least five bulk samples shall be collected from each
homogeneous area that is greater than 1,000 ft2 but less than or equal
to 5,000 ft2, except as provided in Sec. 763.87(c)(2).

    (3) At least seven bulk samples shall be collected from each
homogeneous area that is greater than 5,000 ft2, except as provided in
Sec. 763.87(c)(2).

    (b) Thermal system insulation.

    (1) Except as provided in paragraphs (b) (2) through (4) of this
section and Sec. 763.87(c), an accredited inspector shall collect, in a
randomly distributed manner, at least three bulk samples from each
homogeneous area of thermal system insulation that is not assumed to be
ACM.

    (2) Collect at least one bulk sample from each homogeneous area of
patched thermal system insulation that is not assumed to be ACM if the
patched section is less than 6 linear or square feet.

    (3) In a manner sufficient to determine whether the material is ACM
or not ACM, collect bulk samples from each insulated mechanical system
that is not assumed to be ACM where cement or plaster is used on
fittings such as tees, elbows, or valves, except as provided under Sec.
763.87(c)(2).

    (4) Bulk samples are not required to be collected from any
homogeneous area where the accredited inspector has determined that the
thermal system insulation is fiberglass, foam glass, rubber, or other
non-ACBM.

    (c) Miscellaneous material. In a manner sufficient to determine
whether material is ACM or not ACM, an accredited inspector shall
collect bulk samples from each homogeneous area of friable miscellaneous
material that is not assumed to be ACM.

    (d) Nonfriable suspected ACBM. If any homogeneous area of nonfriable
suspected ACBM is not assumed to be ACM, then an accredited inspector
shall collect, in a manner sufficient to determine whether the material
is ACM or not ACM, bulk samples from the homogeneous area of nonfriable
suspected ACBM that is not assumed to be ACM.

Sec. 763.87  Analysis.

    (a) Local education agencies shall have bulk samples, collected
under Sec. 763.86 and submitted for analysis, analyzed for asbestos
using laboratories accredited by the National Bureau of Standards (NBS).
Local education agencies shall use laboratories which have received 

interim accreditation for polarized light microscopy (PLM) analysis
under the EPA Interim Asbestos Bulk Sample Analysis Quality Assurance
Program until the NBS PLM laboratory accreditation program for PLM is
operational.

    (b) Bulk samples shall not be composited for analysis and shall be
analyzed for asbestos content by PLM, using the ''Interim Method for the
Determination of Asbestos in Bulk Insulation Samples'' found at appendix
E to subpart E of this part.

    (c)(1) A homogeneous area is considered not to contain ACM only if
the results of all samples required to be collected from the area show
asbestos in amounts of 1 percent or less.

    (2) A homogeneous area shall be determined to contain ACM based on a
finding that the results of at least one sample collected from that area
shows that asbestos is present in an amount greater than 1 percent.

    (d) The name and address of each laboratory performing an analysis,
the date of analysis, and the name and signature of the person
performing the analysis shall be submitted to the person designated
under Sec. 763.84 for inclusion into the management plan within 30 days
of the analysis.

[52 FR 41846, Oct. 30, 1987, as amended at 60 FR 31922, June 19, 1995]

Sec. 763.88  Assessment.

    (a)(1) For each inspection and reinspection conducted under Sec.
763.85 (a) and (c) and previous inspections specified under Sec. 763.99,
the local education agency shall have an accredited inspector provide a
written assessment of all friable known or assumed ACBM in the school
building.

    (2) Each accredited inspector providing a written assessment shall
sign and date the assessment, provide his or her State of accreditation,
and if applicable, accreditation number, and submit a copy of the
assessment to the person designated under Sec. 763.84 for inclusion in
the management plan within 30 days of the assessment.

    (b) The inspector shall classify and give reasons in the written
assessment for classifying the ACBM and suspected ACBM assumed to be ACM
in the school building into one of the following categories:

    (1) Damaged or significantly damaged thermal system insulation ACM.

    (2) Damaged friable surfacing ACM.

    (3) Significantly damaged friable surfacing ACM.

    (4) Damaged or significantly damaged friable miscellaneous ACM.

    (5) ACBM with potential for damage.

    (6) ACBM with potential for significant damage.

    (7) Any remaining friable ACBM or friable suspected ACBM.

    (c) Assessment may include the following considerations:

    (1) Location and the amount of the material, both in total quantity
and as a percentage of the functional space.

    (2) Condition of the material, specifying:

    (i) Type of damage or significant damage (e.g., flaking, blistering,
water damage, or other signs of physical damage).

    (ii) Severity of damage (e.g., major flaking, severely torn jackets,
as opposed to occasional flaking, minor tears to jackets).

    (iii) Extent or spread of damage over large areas or large
percentages of the homogeneous area.

    (3) Whether the material is accessible.

    (4) The material's potential for disturbance.

    (5) Known or suspected causes of damage or significant damage (e.g.,
air erosion, vandalism, vibration, water).

    (6) Preventive measures which might eliminate the reasonable
likelihood of undamaged ACM from becoming significantly damaged.

    (d) The local education agency shall select a person accredited to
develop management plans to review the results of each inspection,
reinspection, and assessment for the school building and to conduct any
other necessary activities in order to recommend in writing to the local
education agency appropriate response actions. The accredited person
shall sign and date the recommendation, provide his or her State of
accreditation, and, if applicable, provide his or her accreditation
number, and submit a copy of the recommendation to the person designated
under Sec. 763.84 for inclusion in the management plan.

Sec. 763.90  Response actions.

    (a) The local education agency shall select and implement in a
timely manner the appropriate response actions in this section
consistent with the assessment conducted in Sec. 763.88. The response
actions selected shall be sufficient to protect human health and the
environment. The local education agency may then select, from the
response actions which protect human health and the environment, that
action which is the least burdensome method. Nothing in this section 

shall be construed to prohibit removal of ACBM from a school building at
any time, should removal be the preferred response action of the local
education agency.

    (b) If damaged or significantly damaged thermal system insulation
ACM is present in a building, the local education agency shall:

    (1) At least repair the damaged area.

    (2) Remove the damaged material if it is not feasible, due to
technological factors, to repair the damage.

    (3) Maintain all thermal system insulation ACM and its covering in
an intact state and undamaged condition.

    (c)(1) If damaged friable surfacing ACM or damaged friable
miscellaneous ACM is present in a building, the local education agency
shall select from among the following response actions: encapsulation,
enclosure, removal, or repair of the damaged material.

    (2) In selecting the response action from among those which meet the
definitional standards in Sec. 763.83, the local education agency shall
determine which of these response actions protects human health and the
environment. For purposes of determining which of these response actions


are the least burdensome, the local education agency may then consider
local circumstances, including occupancy and use patterns within the
school building, and its economic concerns, including short- and
long-term costs.

    (d) If significantly damaged friable surfacing ACM or significantly
damaged friable miscellaneous ACM is present in a building the local
education agency shall:

    (1) Immediately isolate the functional space and restrict access,
unless isolation is not necessary to protect human health and the
environment.

    (2) Remove the material in the functional space or, depending upon
whether enclosure or encapsulation would be sufficient to protect human
health and the environment, enclose or encapsulate.

    (e) If any friable surfacing ACM, thermal system insulation ACM, or
friable miscellaneous ACM that has potential for damage is present in a
building, the local education agency shall at least implement an
operations and maintenance (O&M) program, as described under Sec.
763.91.

    (f) If any friable surfacing ACM, thermal system insulation ACM, or
friable miscellaneous ACM that has potential for significant damage is
present in a building, the local education agency shall:

    (1) Implement an O&M program, as described under Sec. 763.91.

    (2) Institute preventive measures appropriate to eliminate the
reasonable likelihood that the ACM or its covering will become
significantly damaged, deteriorated, or delaminated.

    (3) Remove the material as soon as possible if appropriate
preventive measures cannot be effectively implemented, or unless other
response actions are determined to protect human health and the
environment. Immediately isolate the area and restrict access if
necessary to avoid an imminent and substantial endangerment to human
health or the environment.

    (g) Response actions including removal, encapsulation, enclosure, or
repair, other than small-scale, short-duration repairs, shall be
designed and conducted by persons accredited to design and conduct
response actions.

    (h) The requirements of this subpart E in no way supersede the
worker protection and work practice requirements under 29 CFR 1926.58
(Occupational Safety and Health Administration (OSHA) asbestos worker
protection standards for construction), 40 CFR part 763, subpart G (EPA
asbestos worker protection standards for public employees), and 40 CFR
part 61, subpart M (National Emission Standards for Hazardous Air
Pollutants--Asbestos).

    (i) Completion of response actions. (1) At the conclusion of any
action to remove, encapsulate, or enclose ACBM or material assumed to be
ACBM, a person designated by the local education agency shall visually
inspect each functional space where such action was conducted to
determine whether the action has been properly completed.

    (2)(i) A person designated by the local education agency shall
collect air samples using aggressive sampling as described in appendix A
to this subpart E to monitor air for clearance after each removal,
encapsulation, and enclosure project involving ACBM, except for projects


that are of small-scale, short-duration.

    (ii) Local education agencies shall have air samples collected under
this section analyzed for asbestos using laboratories accredited by the
National Bureau of Standards to conduct such analysis using transmission
electron microscopy (TEM) or, under circumstances permitted in this 

section, laboratories enrolled in the American Industrial Hygiene
Association Proficiency Analytical Testing Program for phase contrast
microscopy (PCM).

    (iii) Until the National Bureau of Standards TEM laboratory
accreditation program is operational, local educational agencies shall
use laboratories that use the protocol described in appendix A to
subpart E of this part.

    (3) Except as provided in paragraphs (i)(4), and (i)(5), of this
section, an action to remove, encapsulate, or enclose ACBM shall be
considered complete when the average concentration of asbestos of five
air samples collected within the affected functional space and analyzed
by the TEM method in appendix A of this subpart E, is not statistically
significantly different, as determined by the Z-test calculation found
in appendix A of this subpart E, from the average asbestos concentration
of five air samples collected at the same time outside the affected 

functional space and analyzed in the same manner, and the average
asbestos concentration of the three field blanks described in appendix A
of this subpart E is below the filter background level, as defined in
appendix A of this subpart E, of 70 structures per square millimeter (70
s/mm2).

    (4) An action may also be considered complete if the volume of air
drawn for each of the five samples collected within the affected
functional space is equal to or greater than 1,199 L of air for a 25 mm
filter or equal to or greater than 2,799 L of air for a 37 mm filter,
and the average concentration of asbestos as analyzed by the TEM method
in appendix A of this subpart E, for the five air samples does not
exceed the filter background level, as defined in appendix A, of 70 

structures per square millimeter (70 s/mm2). If the average
concentration of asbestos of the five air samples within the affected
functional space exceeds 70 s/mm2, or if the volume of air in each of
the samples is less than 1,199 L of air for a 25 mm filter or less than
2,799 L of air for a 37 mm filter, the action shall be considered
complete only when the requirements of paragraph (i)(3) or (i)(5), of
this section are met.

    (5) At any time, a local education agency may analyze air monitoring
samples collected for clearance purposes by phase contrast microscopy
(PCM) to confirm completion of removal, encapsulation, or enclosure of
ACBM that is greater than small-scale, short-duration and less than or
equal to 160 square feet or 260 linear feet. The action shall be
considered complete when the results of samples collected in the
affected functional space and analyzed by phase contrast microscopy
using the National Institute for Occupational Safety and Health (NIOSH)
Method 7400 entitled ''Fibers'' published in the NIOSH Manual of
Analytical Methods, 3rd Edition, Second Supplement, August 1987, show
that the concentration of fibers for each of the five samples is less
than or equal to a limit of quantitation for PCM (0.01 fibers per cubic
centimeter (0.01 f/cm3) of air). The method is available for public
inspection at the Office of the Federal Register, 800 North Capitol
Street, NW, Suite 700, Washington, DC, 20408, and the Non-Confidential
Information Center (NCIC) (7407), Office of Pollution Prevention and
Toxics, U.S. Environmental Protection Agency, Room B-607 NEM, 401 M
Street, SW., Washington, DC, 20460, between the hours of 12 p.m. and 4
p.m. weekdays excluding legal holidays. This incorporation by reference
was approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. The method is incorporated as it
exists on the effective date of this rule, and a notice of any change to
the method will be published in the Federal Register.

    (6) To determine the amount of ACBM affected under paragraph (i)(5)
of this section, the local education agency shall add the total square
or linear footage of ACBM within the containment barriers used to
isolate the functional space for the action to remove, encapsulate, or 

enclose the ACBM. Contiguous portions of material subject to such action
conducted concurrently or at approximately the same time within the same
school building shall not be separated to qualify under paragraph
(i)(5), of this section.

[52 FR 41846, Oct. 30, 1987, as amended at 53 FR 12525, Apr. 15, 1988;
60 FR 31922, June 19, 1995; 60 FR 34465, July 3, 1995]

Sec. 763.91  Operations and maintenance.

    (a) Applicability. The local education agency shall implement an
operations, maintenance, and repair (O&M) program under this section
whenever any friable ACBM is present or assumed to be present in a
building that it leases, owns, or otherwise uses as a school building.
Any material identified as nonfriable ACBM or nonfriable assumed ACBM
must be treated as friable ACBM for purposes of this section when the
material is about to become friable as a result of activities performed
in the school building.

    (b) Worker protection. The protection provided by EPA at 40 CFR
763.121 for worker protection during asbestos abatement projects is
extended to employees of local education agencies who perform
operations, maintenance, and repair (O&M) activities involving ACM and 

who are not covered by the OSHA asbestos construction standard at 29 CFR
1926.58 or an asbestos worker approved by OSHA under section 19 of the
Occupational Safety and Health Act. Local education agencies may consult
appendix B of this subpart if their employees are performing operations,
maintenance, and repair activities that are of small-scale,
short-duration.

    (c) Cleaning--(1) Initial cleaning. Unless the building has been
cleaned using equivalent methods within the previous 6 months, all areas
of a school building where friable ACBM, damaged or significantly
damaged thermal system insulation ACM, or friable suspected ACBM assumed
to be ACM are present shall be cleaned at least once after the
completion of the inspection required by Sec. 763.85(a) and before the
initiation of any response action, other than O&M activities or repair,
according to the following procedures:

    (i) HEPA-vacuum or steam-clean all carpets.

    (ii) HEPA-vacuum or wet-clean all other floors and all other
horizontal surfaces.

    (iii) Dispose of all debris, filters, mopheads, and cloths in
sealed, leak-tight containers.

    (2) Additional cleaning. The accredited management planner shall
make a written recommendation to the local education agency whether
additional cleaning is needed, and if so, the methods and frequency of
such cleaning.

    (d) Operations and maintenance activities. The local education
agency shall ensure that the procedures described below to protect
building occupants shall be followed for any operations and maintenance
activities disturbing friable ACBM:

    (1) Restrict entry into the area by persons other than those
necessary to perform the maintenance project, either by physically
isolating the area or by scheduling.

    (2) Post signs to prevent entry by unauthorized persons.

    (3) Shut off or temporarily modify the air-handling system and
restrict other sources of air movement.

    (4) Use work practices or other controls, such as, wet methods,
protective clothing, HEPA-vacuums, mini-enclosures, glove bags, as
necessary to inhibit the spread of any released fibers.

    (5) Clean all fixtures or other components in the immediate work
area.

    (6) Place the asbestos debris and other cleaning materials in a
sealed, leak-tight container.

    (e) Maintenance activities other than small-scale, short-duration.
The response action for any maintenance activities disturbing friable
ACBM, other than small-scale, short-duration maintenance activities,
shall be designed by persons accredited to design response actions and 

conducted by persons accredited to conduct response actions.

    (f) Fiber release episodes--(1) Minor fiber release episode. The
local education agency shall ensure that the procedures described below
are followed in the event of a minor fiber release episode (i.e., the
falling or dislodging of 3 square or linear feet or less of friable
ACBM): 5

    (i) Thoroughly saturate the debris using wet methods.

    (ii) Clean the area, as described in paragraph (e) of this section.

    (iii) Place the asbestos debris in a sealed, leak-tight container.

    (iv) Repair the area of damaged ACM with materials such as
asbestos-free spackling, plaster, cement, or insulation, or seal with
latex paint or an encapsulant, or immediately have the appropriate
response action implemented as required by Sec. 763.90.

    (2) Major fiber release episode. The local education agency shall
ensure that the procedures described below are followed in the event of
a major fiber release episode (i.e., the falling or dislodging of more
than 3 square or linear feet of friable ACBM):

    (i) Restrict entry into the area and post signs to prevent entry
into the area by persons other than those necessary to perform the
response action.

    (ii) Shut off or temporarily modify the air-handling system to
prevent the distribution of fibers to other areas in the building.

    (iii) The response action for any major fiber release episode must
be designed by persons accredited to design response actions and
conducted by persons accredited to conduct response actions.

Sec. 763.92  Training and periodic surveillance.

    (a) Training. (1) The local education agency shall ensure, prior to
the implementation of the O&M provisions of the management plan, that
all members of its maintenance and custodial staff (custodians,
electricians, heating/air conditioning engineers, plumbers, etc.) who
may work in a building that contains ACBM receive awareness training of
at least 2 hours, whether or not they are required to work with ACBM.
New custodial and maintenance employees shall be trained 

within 60 days after commencement of employment. Training shall include,
but not be limited to:

    (i) Information regarding asbestos and its various uses and forms.

    (ii) Information on the health effects associated with asbestos
exposure.

    (iii) Locations of ACBM identified throughout each school building
in which they work.

    (iv) Recognition of damage, deterioration, and delamination of ACBM.

    (v) Name and telephone number of the person designated to carry out
general local education agency responsibilities under Sec. 763.84 and
the availability and location of the management plan.

    (2) The local education agency shall ensure that all members of its
maintenance and custodial staff who conduct any activities that will
result in the disturbance of ACBM shall receive training described in
paragraph (a)(1) of this section and 14 hours of additional training.
Additional training shall include, but not be limited to:

    (i) Descriptions of the proper methods of handling ACBM.

    (ii) Information on the use of respiratory protection as contained
in the EPA/NIOSH Guide to Respiratory Protection for the Asbestos
Abatement Industry, September 1986 (EPA 560/OPPTS-86-001), available
from the Director, Environmental Assistance Division (7408), Office of
Pollution Prevention and Toxics, U.S. Environmental Protection Agency,
Room E-543B, 401 M St., SW., Washington, DC, 20460, Telephone: (202)
554-1404, TDD: (202) 544-0551 and other personal protection measures.

    (iii) The provisions of this section and Sec. 763.91, Appendices A,
B, C, D of this subpart E of this part, EPA regulations contained in 40 

CFR part 763, subpart G, and in 40 CFR part 61, subpart M, and OSHA
regulations contained in 29 CFR 1926.58.

    (iv) Hands-on training in the use of respiratory protection, other
personal protection measures, and good work practices.

    (3) Local education agency maintenance and custodial staff who have
attended EPA-approved asbestos training or received equivalent training
for O&M and periodic surveillance activities involving asbestos shall be
considered trained for the purposes of this section.

    (b) Periodic surveillance. (1) At least once every 6 months after a
management plan is in effect, each local education agency shall conduct
periodic surveillance in each building that it leases, owns, or
otherwise uses as a school building that contains ACBM or is assumed to 

contain ACBM.

    (2) Each person performing periodic surveillance shall:

    (i) Visually inspect all areas that are identified in the management
plan as ACBM or assumed ACBM.

    (ii) Record the date of the surveillance, his or her name, and any
changes in the condition of the materials.

    (iii) Submit to the person designated to carry out general local
education agency responsibilities under Sec. 763.84 a copy of such
record for inclusion in the management plan.

[52 FR 41846, Oct. 30, 1987, as amended at 60 FR 34465, July 3, 1995]

Sec. 763.93  Management plans.

    (a)(1) On or before October 12, 1988, each local education agency
shall develop an asbestos management plan for each school, including all
buildings that they lease, own, or otherwise use as school buildings,
and submit the plan to an Agency designated by the Governor of the State
in which the local education agency is located. The plan may be
submitted in stages that cover a portion of the school buildings under
the authority of the local education agency.

    (2) If a building to be used as part of a school is leased or
otherwise acquired after October 12, 1988, the local education agency
shall include the new building in the management plan for the school
prior to its use as a school building. The revised portions of the
management plan shall be submitted to the Agency designated by the
Governor.

    (3) If a local education agency begins to use a building as a school
after October 12, 1988, the local education agency shall submit a
management plan for the school to the Agency designated by the Governor
prior to its use as a school.

    (b) On or before October 17, 1987, the Governor of each State shall
notify local education agencies in the State regarding where to submit
their management plans. States may establish administrative procedures
for reviewing management plans. If the Governor does not disapprove a
management plan within 90 days after receipt of the plan, the local
education agency shall implement the plan.

    (c) Each local education agency must begin implementation of its
management plan on or before July 9, 1989, and complete implementation
in a timely fashion.

    (d) Each local education agency shall maintain and update its
management plan to keep it current with ongoing operations and
maintenance, periodic surveillance, inspection, reinspection, and
response action activities. All provisions required to be included in
the management plan under this section shall be retained as part of the
management plan, as well as any information that has been revised to
bring the plan up-to-date.

    (e) The management plan shall be developed by an accredited
management planner and shall include:

    (1) A list of the name and address of each school building and
whether the school building contains friable ACBM, nonfriable ACBM, and
friable and nonfriable suspected ACBM assumed to be ACM.

    (2) For each inspection conducted before the December 14, 1987:

    (i) The date of the inspection.

    (ii) A blueprint, diagram, or written description of each school
building that identifies clearly each location and approximate square or
linear footage of any homogeneous or sampling area where material was
sampled for ACM, and, if possible, the exact locations where bulk
samples were collected, and the dates of collection.

    (iii) A copy of the analyses of any bulk samples, dates of analyses,
and a copy of any other laboratory reports pertaining to the analyses.

    (iv) A description of any response actions or preventive measures
taken to reduce asbestos exposure, including if possible, the names and
addresses of all contractors involved, start and completion dates of the
work, and results of any air samples analyzed during and upon completion
of the work.

    (v) A description of assessments, required to be made under Sec.
763.88, of material that was identified before December 14, 1987, as
friable ACBM or friable suspected ACBM assumed to be ACM, and the name
and signature, State of accreditation, and if applicable, accreditation
number of each accredited person making the assessments.

    (3) For each inspection and reinspection conducted under Sec.
763.85:

    (i) The date of the inspection or reinspection and the name and
signature, State of accreditation and, if applicable, the accreditation
number of each accredited inspector performing the inspection or
reinspection.

    (ii) A blueprint, diagram, or written description of each school
building that identifies clearly each location and approximate square or
linear footage of homogeneous areas where material was sampled for ACM,
the exact location where each bulk sample was collected, date of
collection, homogeneous areas where friable suspected ACBM is assumed to
be ACM, and where nonfriable suspected ACBM is assumed to be ACM.

    (iii) A description of the manner used to determine sampling
locations, and the name and signature of each accredited inspector
collecting samples, the State of accreditation, and if applicable, his
or her accreditation number.

    (iv) A copy of the analyses of any bulk samples collected and
analyzed, the name and address of any laboratory that analyzed bulk
samples, a statement that the laboratory meets the applicable 

requirements of Sec. 763.87(a) the date of analysis, and the name and
signature of the person performing the analysis.

    (v) A description of assessments, required to be made under Sec.
763.88, of all ACBM and suspected ACBM assumed to be ACM, and the name,
signature, State of accreditation, and if applicable, accreditation
number of each accredited person making the assessments.

    (4) The name, address, and telephone number of the person designated
under Sec. 763.84 to ensure that the duties of the local education
agency are carried out, and the course name, and dates and hours of
training taken by that person to carry out the duties.

    (5) The recommendations made to the local education agency regarding
response actions, under Sec. 763.88(d), the name, signature, State of
accreditation of each person making the recommendations, and if
applicable, his or her accreditation number.

    (6) A detailed description of preventive measures and response
actions to be taken, including methods to be used, for any friable ACBM,
the locations where such measures and action will be taken, reasons for
selecting the response action or preventive measure, and a schedule for
beginning and completing each preventive measure and response action.

    (7) With respect to the person or persons who inspected for ACBM and
who will design or carry out response actions, except for operations and
maintenance, with respect to the ACBM, one of the following statements:

    (i) If the State has adopted a contractor accreditation program
under section 206(b) of Title II of the Act, a statement that the
person(s) is accredited under such plan.

    (ii) A statement that the local education agency used (or will use)
persons who have been accredited by another State which has adopted a
contractor accreditation plan under section 206(b) of Title II of the
Act or is accredited by an EPA-approved course under section 206(c) of 

Title II of the Act.

    (8) A detailed description in the form of a blueprint, diagram, or
in writing of any ACBM or suspected ACBM assumed to be ACM which remains
in the school once response actions are undertaken pursuant to Sec.
763.90. This description shall be updated as response actions are 

completed.

    (9) A plan for reinspection under Sec. 763.85, a plan for operations
and maintenance activities under Sec. 763.91, and a plan for periodic
surveillance under Sec. 763.92, a description of the recommendation made
by the management planner regarding additional cleaning under 

Sec. 763.91(c)(2) as part of an operations and maintenance program, and
the response of the local education agency to that recommendation.

    (10) A description of steps taken to inform workers and building
occupants, or their legal guardians, about inspections, reinspections,
response actions, and post-response action activities, including
periodic reinspection and surveillance activities that are planned or in
progress.

    (11) An evaluation of the resources needed to complete response
actions successfully and carry out reinspection, operations and
maintenance activities, periodic surveillance and training.

    (12) With respect to each consultant who contributed to the
management plan, the name of the consultant and one of the following
statements:

    (i) If the State has adopted a contractor accreditation plan under
section 206(b) of Title II of the Act, a statement that the consultant
is accredited under such plan.

    (ii) A statement that the contractor is accredited by another State
which has adopted a contractor accreditation plan under section 206(b)
of Title II of the Act, or is accredited by an EPA-approved course
developed under section 206(c) of Title II of the Act.

    (f) A local education agency may require each management plan to
contain a statement signed by an accredited management plan developer
that such person has prepared or assisted in the preparation of such
plan or has reviewed such plan, and that such plan is in compliance with


this subpart E. Such statement may not be signed by a person who, in
addition to preparing or assisting in preparing the management plan,
also implements (or will implement) the management plan.

    (g)(1) Upon submission of a management plan to the Governor for
review, a local education agency shall keep a copy of the plan in its
administrative office. The management plans shall be available, without
cost or restriction, for inspection by representatives of EPA and the
State, the public, including teachers, other school personnel and their
representatives, and parents. The local education agency may charge a
reasonable cost to make copies of management plans.

    (2) Each local education agency shall maintain in its administrative
office a complete, updated copy of a management plan for each school
under its administrative control or direction. The management plans
shall be available, during normal business hours, without cost or
restriction, for inspection by representatives of EPA and the State, the
public, including teachers, other school personnel and their
representatives, and parents. The local education agency may charge a 

reasonable cost to make copies of management plans.

    (3) Each school shall maintain in its administrative office a
complete, updated copy of the management plan for that school.
Management plans shall be available for inspection, without cost or
restriction, to workers before work begins in any area of a school
building. The school shall make management plans available for
inspection to representatives of EPA and the State, the public,
including parents, teachers, and other school personnel and their
representatives within 5 working days after receiving a request for
inspection. The school may charge a reasonable cost to make copies of
the management plan.

    (4) Upon submission of its management plan to the Governor and at
least once each school year, the local education agency shall notify in
writing parent, teacher, and employee organizations of the availability
of management plans and shall include in the management plan a 

description of the steps taken to notify such organizations, and a dated
copy of the notification. In the absence of any such organizations for
parents, teachers, or employees, the local education agency shall
provide written notice to that relevant group of the availability of
management plans and shall include in the management plan a description
of the steps taken to notify such groups, and a dated copy of the
notification.

    (h) Records required under Sec. 763.94 shall be made by local
education agencies and maintained as part of the management plan.

    (i) Each management plan must contain a true and correct statement,
signed by the individual designated by the local education agency under
Sec. 763.84, which certifies that the general, local education agency
responsibilities, as stipulated by Sec. 763.84, have been met or will be
met.

Sec. 763.94  Recordkeeping.

    (a) Records required under this section shall be maintained in a
centralized location in the administrative office of both the school and
the local education agency as part of the management plan. For each
homogeneous area where all ACBM has been removed, the local education
agency shall ensure that such records are retained for 3 years after the
next reinspection required under Sec. 763.85(b)(1), or for an equivalent
period.

    (b) For each preventive measure and response action taken for
friable and nonfriable ACBM and friable and nonfriable suspected ACBM
assumed to be ACM, the local education agency shall provide:

    (1) A detailed written description of the measure or action,
including methods used, the location where the measure or action was
taken, reasons for selecting the measure or action, start and completion
dates of the work, names and addresses of all contractors involved, and
if applicable, their State of accreditation, and accreditation numbers,
and if ACBM is removed, the name and location of storage or disposal
site of the ACM.

    (2) The name and signature of any person collecting any air sample
required to be collected at the completion of certain response actions
specified by Sec. 763.90(i), the locations where samples were collected,
date of collection, the name and address of the laboratory analyzing the


samples, the date of analysis, the results of the analysis, the method
of analysis, the name and signature of the person performing the
analysis, and a statement that the laboratory meets the applicable
requirements of Sec. 763.90(i)(2)(ii).

    (c) For each person required to be trained under Sec. 763.92(a) (1)
and (2), the local education agency shall provide the person's name and
job title, the date that training was completed by that person, the
location of the training, and the number of hours completed in such
training.

    (d) For each time that periodic surveillance under Sec. 763.92(b) is
performed, the local education agency shall record the name of each
person performing the surveillance, the date of the surveillance, and
any changes in the conditions of the materials.

    (e) For each time that cleaning under Sec. 763.91(c) is performed,
the local education agency shall record the name of each person
performing the cleaning, the date of such cleaning, the locations
cleaned, and the methods used to perform such cleaning.

    (f) For each time that operations and maintenance activities under
Sec. 763.91(d) are performed, the local education agency shall record
the name of each person performing the activity, the start and
completion dates of the activity, the locations where such activity 

occurred, a description of the activity including preventive measures
used, and if ACBM is removed, the name and location of storage or
disposal site of the ACM.   

    (g) For each time that major asbestos activity under Sec. 763.91(e) 

is performed, the local education agency shall provide the name and
signature, State of accreditation, and if applicable, the accreditation
number of each person performing the activity, the start and completion
dates of the activity, the locations where such activity occurred, a 

description of the activity including preventive measures used, and if
ACBM is removed, the name and location of storage or disposal site of
the ACM.

    (h) For each fiber release episode under Sec. 763.91(f), the local
education agency shall provide the date and location of the episode, the
method of repair, preventive measures or response action taken, the name
of each person performing the work, and if ACBM is removed, the name and
location of storage or disposal site of the ACM.

(Approved by the Office of Management and Budget under control number
2070-0091)

Sec. 763.95  Warning labels.

    (a) The local education agency shall attach a warning label
immediately adjacent to any friable and nonfriable ACBM and suspected
ACBM assumed to be ACM located in routine maintenance areas (such as
boiler rooms) at each school building. This shall include:

    (1) Friable ACBM that was responded to by a means other than
removal.

    (2) ACBM for which no response action was carried out.

    (b) All labels shall be prominently displayed in readily visible
locations and shall remain posted until the ACBM that is labeled is
removed.

    (c) The warning label shall read, in print which is readily visible
because of large size or bright color, as follows:

CAUTION: ASBESTOS. HAZARDOUS. DO NOT DISTURB WITHOUT PROPER TRAINING AND
EQUIPMENT.

Sec. 763.97  Compliance and enforcement.

    (a) Compliance with Title II of the Act. (1) Section 207(a) of Title
II of the Act (15 U.S.C. 2647) makes it unlawful for any local education
agency to:

    (i) Fail to conduct inspections pursuant to section 203(b) of Title
II of the Act, including failure to follow procedures and failure to use
accredited personnel and laboratories.

    (ii) Knowingly submit false information to the Governor regarding
any inspection pursuant to regulations under section 203(i) of Title II
of the Act.

    (iii) Fail to develop a management plan pursuant to regulations
under section 203(i) of Title II of the Act.

    (2) Section 207(a) of Title II of the Act (15 U.S.C. 2647) also
provides that any local education agency which violates any provision of
section 207 shall be liable for a civil penalty of not more than $5,000
for each day during which the violation continues. For the purposes of
this subpart, a ``violation'' means a failure to comply with respect to
a single school building.

    (b) Compliance with Title I of the Act. (1) Section 15(1)(D) of
Title I of the Act (15 U.S.C. 2614) makes it unlawful for any person to
fail or refuse to comply with any requirement of Title II or any rule
promulgated or order issued under Title II. Therefore, any person who
violates any requirement of this subpart is in violation of section 15
of Title I of the Act.

    (2) Section 15(3) of Title I of the Act (15 U.S.C. 2614) makes it
unlawful for any person to fail or refuse to establish or maintain
records, submit reports, notices or other information, or permit

access to or copying of records, as required by this Act or a rule
thereunder.

    (3) Section 15(4) (15 U.S.C. 2614) of Title I of the Act makes it
unlawful for any person to fail or refuse to permit entry or inspection
as required by section 11 of Title I of the Act.

    (4) Section 16(a) of Title I of the Act (15 U.S.C. 2615) provides
that any person who violates any provision of section 15 of Title I of
the Act shall be liable to the United States for a civil penalty in an
amount not to exceed $25,000 for each such violation. Each day such a
violation continues shall, for purposes of this paragraph, constitute a
separate violation of section 15. A local education agency is not liable
for any civil penalty under Title I of the Act for failing or refusing
to comply with any rule promulgated or order issued under Title II of
the Act.

    (c) Criminal penalties. If any violation committed by any person
(including a local education agency) is knowing or willful, criminal
penalties may be assessed under section 16(b) of Title I of the Act.

    (d) Injunctive relief. The Agency may obtain injunctive relief under
section 208(b) of Title II of the Act to respond to a hazard which poses
an imminent and substantial endangerment to human health or the
environment or section 17 (15 U.S.C. 2616) of Title I of the Act to 

restrain any violation of section 15 of Title I of the Act or to compel
the taking of any action required by or under Title I of the Act.

    (e) Citizen complaints. Any citizen who wishes to file a complaint
pursuant to section 207(d) of Title II of the Act should direct the
complaint to the Governor of the State or the EPA Asbestos Ombudsman,
401 M Street, SW., Washington, DC 20460. The citizen complaint should be
in writing and identified as a citizen complaint pursuant to section
207(d) of Title II of TSCA. The EPA Asbestos Ombudsman or the Governor
shall investigate and respond to the complaint within a reasonable
period of time if the allegations provide a reasonable basis to believe
that a violation of the Act has occurred.

    (f) Inspections. EPA may conduct inspections and review management
plans under section 11 of Title I of the Act (15 U.S.C. 2610) to ensure
compliance.

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 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 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.

Sec. 763.99  Exclusions.

    (a) A local education agency shall not be required to perform an
inspection under Sec. 763.85(a) in any sampling area as defined in 40
CFR 763.103 or homogeneous area of a school building where:

    (1) An accredited inspector has determined that, based on sampling
records, friable ACBM was identified in that homogeneous or sampling
area during an inspection conducted before December 14, 1987. The
inspector shall sign and date a statement to that effect with his or her


State of accreditation and if applicable, accreditation number and,
within 30 days after such determination, submit a copy of the statement
to the person designated under Sec. 763.84 for inclusion in the
management plan. However, an accredited inspector shall assess the
friable ACBM under Sec. 763.88.

    (2) An accredited inspector has determined that, based on sampling
records, nonfriable ACBM was identified in that homogeneous or sampling
area during an inspection conducted before December 14, 1987. The
inspector shall sign and date a statement to that effect with his or her


State of accreditation and if applicable, accreditation number and,
within 30 days after such determination, submit a copy of the statement
to the person designated under Sec. 763.84 for inclusion in the
management plan. However, an accredited inspector shall identify whether
material that was nonfriable has become friable since that previous
inspection and shall assess the newly-friable ACBM under Sec. 763.88.

    (3) Based on sampling records and inspection records, an accredited
inspector has determined that no ACBM is present in the homogeneous or
sampling area and the records show that the area was sampled, before
December 14, 1987 in substantial compliance with Sec. 763.85(a), which 

for purposes of this section means in a random manner and with a
sufficient number of samples to reasonably ensure that the area is not
ACBM.

    (i) The accredited inspector shall sign and date a statement, with
his or her State of accreditation and if applicable, accreditation
number that the homogeneous or sampling area determined not to be ACBM
was sampled in substantial compliance with Sec. 763.85(a).

    (ii) Within 30 days after the inspector's determination, the local
education agency shall submit a copy of the inspector's statement to the
EPA Regional Office and shall include the statement in the management
plan for that school.

    (4) The lead agency responsible for asbestos inspection in a State
that has been granted a waiver from Sec. 763.85(a) has determined that,
based on sampling records and inspection records, no ACBM is present in
the homogeneous or sampling area and the records show that the area was
sampled before December 14, 1987, in substantial compliance with Sec.
763.85(a). Such determination shall be included in the management plan
for that school.

    (5) An accredited inspector has determined that, based on records of
an inspection conducted before December 14, 1987, suspected ACBM
identified in that homogeneous or sampling area is assumed to be ACM.
The inspector shall sign and date a statement to that effect, with his
or her State of accreditation and if applicable, accreditation number
and, within 30 days of such determination, submit a copy of the
statement to the person designated under Sec. 763.84 for inclusion in
the management plan. However, an accredited inspector shall identify
whether material that was nonfriable suspected ACBM assumed to be ACM
has become friable since the previous inspection and shall assess the
newly friable material and previously identified friable suspected ACBM
assumed to be ACM under Sec. 763.88.

    (6) Based on inspection records and contractor and clearance
records, an accredited inspector has determined that no ACBM is present
in the homogeneous or sampling area where asbestos removal operations
have been conducted before December 14, 1987, and shall sign and date a 

statement to that effect and include his or her State of accreditation
and, if applicable, accreditation number. The local education agency
shall submit a copy of the statement to the EPA Regional Office and
shall include the statement in the management plan for that school.

    (7) An architect or project engineer responsible for the
construction of a new school building built after October 12, 1988, or
an accredited inspector signs a statement that no ACBM was specified as
a building material in any construction document for the building, or,
to the best of his or her knowledge, no ACBM was used as a building
material in the building. The local education agency shall submit a copy
of the signed statement of the architect, project engineer, or 

accredited inspector to the EPA Regional Office and shall include the
statement in the management plan for that school.

    (b) The exclusion, under paragraphs (a) (1) through (4) of this
section, from conducting the inspection under Sec. 763.85(a) shall apply
only to homogeneous or sampling areas of a school building that were
inspected and sampled before October 17, 1987. The local education 

agency shall conduct an inspection under Sec. 763.85(a) of all areas
inspected before October 17, 1987 that were not sampled or were not
assumed to be ACM.

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    (c) If ACBM is subsequently found in a homogeneous or sampling area
of a local education agency that had been identified as receiving an
exclusion by an accredited inspector under paragraphs (a) (3), (4), (5)
of this section, or an architect, project engineer or accredited
inspector under paragraph (a)(7) of this section, the local education
agency shall have 180 days following the date of identification of ACBM
to comply with this subpart E.

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