15 U.S.C. § 2643 — EPA regulations

Page 1910 TITLE 15—COMMERCE AND TRADE § 2643 grams and competitive programs, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of Title 20, Education. EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–110 effective Jan. 8, 2002, except with respect to certain noncompetitive pro- grams and competitive programs, see section 5 of Pub. L. 107–110, set out as an Effective Date note under sec- tion 6301 of Title 20, Education. Executive Documents TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Is- lands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. § 2643. EPA regulations (a) In general Within 360 days after October 22, 1986, the Ad- ministrator shall promulgate regulations as de- scribed in subsections (b) through (i). With re- spect to regulations described in subsections (b), (c), (d), (e), (f), (g), and (i), the Administrator shall issue an advanced notice of proposed rule- making within 60 days after October 22, 1986, and shall propose regulations within 180 days after October 22, 1986. Any regulation promulgated under this section must protect human health and the environment. (b) Inspection The Administrator shall promulgate regula- tions which prescribe procedures, including the use of personnel accredited under section 2646(b) or (c) of this title and laboratories accredited under section 2646(d) of this title, for deter- mining whether asbestos-containing material is present in a school building under the authority of a local educational agency. The regulations shall provide for the exclusion of any school building, or portion of a school building, if (1) an inspection of such school building (or portion) was completed before the effective date of the regulations, and (2) the inspection meets the procedures and other requirements of the regu- lations under this subchapter or of the ‘‘Guid- ance for Controlling Asbestos-Containing Mate- rials in Buildings’’ (unless the Administrator de- termines that an inspection in accordance with the guidance document is inadequate). The regu- lations shall require inspection of any school building (or portion of a school building) that is not excluded by the preceding sentence. (c) Circumstances requiring response actions (1) The Administrator shall promulgate regu- lations which define the appropriate response action in a school building under the authority of a local educational agency in at least the fol- lowing circumstances: (A) Damage Circumstances in which friable asbestos-con- taining material or its covering is damaged, deteriorated, or delaminated. (B) Significant damage Circumstances in which friable asbestos-con- taining material or its covering is signifi- cantly damaged, deteriorated, or delaminated. (C) Potential damage Circumstances in which— (i) friable asbestos-containing material is in an area regularly used by building occu- pants, including maintenance personnel, in the course of their normal activities, and (ii) there is a reasonable likelihood that the material or its covering will become damaged, deteriorated, or delaminated. (D) Potential significant damage Circumstances in which— (i) friable asbestos-containing material is in an area regularly used by building occu- pants, including maintenance personnel, in the course of their normal activities, and (ii) there is a reasonable likelihood that the material or its covering will become sig- nificantly damaged, deteriorated, or delaminated. (2) In promulgating such regulations, the Ad- ministrator shall consider and assess the value of various technologies intended to improve the decisionmaking process regarding response ac- tions and the quality of any work that is deemed necessary, including air monitoring and chem- ical encapsulants. (d) Response actions (1) In general The Administrator shall promulgate regula- tions describing a response action in a school building under the authority of a local edu- cational agency, using the least burdensome methods which protect human health and the environment. In determining the least burden- some methods, the Administrator shall take into account local circumstances, including occupancy and use patterns within the school building and short- and long-term costs. (2) Response action for damaged asbestos In the case of a response action for the cir- cumstances described in subsection (c)(1)(A), methods for responding shall include methods identified in chapters 3 and 5 of the ‘‘Guidance for Controlling Asbestos-Containing Material in Buildings’’. (3) Response action for significantly damaged asbestos In the case of a response action for the cir- cumstances described in subsection (c)(1)(B), methods for responding shall include methods identified in chapter 5 of the ‘‘Guidance for Controlling Asbestos-Containing Material in Buildings’’. (4) Response action for potentially damaged as- bestos In the case of a response action for the cir- cumstances described in subsection (c)(1)(C), methods for responding shall include methods identified in chapters 3 and 5 of the ‘‘Guidance for Controlling Asbestos-Containing Material in Buildings’’, unless preventive measures will eliminate the reasonable likelihood that the asbestos-containing material will become damaged, deteriorated, or delaminated. (5) Response action for potentially signifi- cantly damaged asbestos In the case of a response action for the cir- cumstances described in subsection (c)(1)(D), Page 1911 TITLE 15—COMMERCE AND TRADE § 2643 1 So in original. Probably should be followed by a comma. 2 So in original. Probably should not be capitalized. methods for responding shall include methods identified in chapter 5 of the ‘‘Guidance for Controlling Asbestos-Containing Material in Buildings’’, unless preventive measures will eliminate the reasonable likelihood that the asbestos-containing material will become sig- nificantly damaged, deteriorated, or delaminated. (6) ‘‘Preventive measures’’ defined For purposes of this section, the term ‘‘pre- ventive measures’’ means actions which elimi- nate the reasonable likelihood of asbestos-con- taining material becoming damaged, deterio- rated, or delaminated, or significantly dam- aged 1 deteriorated, or delaminated (as the case may be) or which protect human health and the environment. (7) EPA information or advisory The Administrator shall, not later than 30 days after November 28, 1990, publish and dis- tribute to all local education agencies and State Governors information or an advisory to— (A) facilitate public understanding of the comparative risks associated with in-place management of asbestos-containing building materials and removals; (B) promote the least burdensome response actions necessary to protect human health, safety, and the environment; and (C) describe the circumstances in which as- bestos removal is necessary to protect human health. Such information or advisory shall be based on the best available scientific evidence and shall be revised, republished, and redistributed as appropriate, to reflect new scientific find- ings. (e) Implementation The Administrator shall promulgate regula- tions requiring the implementation of response actions in school buildings under the authority of a local educational agency and, where appro- priate, for the determination of when a response action is completed. Such regulations shall in- clude standards for the education and protection of both workers and building occupants for the following phases of activity: (1) Inspection. (2) Response Action.2 (3) Post-response action, including any peri- odic reinspection of asbestos-containing mate- rial and long-term surveillance activity. (f) Operations and maintenance The Administrator shall promulgate regula- tions to require implementation of an oper- ations and maintenance and repair program as described in chapter 3 of the ‘‘Guidance for Con- trolling Asbestos-Containing Materials in Build- ings’’ for all friable asbestos-containing mate- rial in a school building under the authority of a local educational agency. (g) Periodic surveillance The Administrator shall promulgate regula- tions to require the following: (1) An identification of the location of fri- able and non-friable asbestos in a school build- ing under the authority of a local educational agency. (2) Provisions for surveillance and periodic reinspection of such friable and non-friable as- bestos. (3) Provisions for education of school em- ployees, including school service and mainte- nance personnel, about the location of and safety procedures with respect to such friable and non-friable asbestos. (h) Transportation and disposal The Administrator shall promulgate regula- tions which prescribe standards for transpor- tation and disposal of asbestos-containing waste material to protect human health and the envi- ronment. Such regulations shall include such provisions related to the manner in which trans- portation vehicles are loaded and unloaded as will assure the physical integrity of containers of asbestos-containing waste material. (i) Management plans (1) In general The Administrator shall promulgate regula- tions which require each local educational agency to develop an asbestos management plan for school buildings under its authority, to begin implementation of such plan within 990 days after October 22, 1986, and to complete implementation of such plan in a timely fash- ion. The regulations shall require that each plan include the following elements, wherever relevant to the school building: (A) An inspection statement describing in- spection and response action activities car- ried out before October 22, 1986. (B) A description of the results of the in- spection conducted pursuant to regulations under subsection (b), including a description of the specific areas inspected. (C) A detailed description of measures to be taken to respond to any friable asbestos- containing material pursuant to the regula- tions promulgated under subsections (c), (d), and (e), including the location or locations at which a response action will be taken, the method or methods of response action to be used, and a schedule for beginning and com- pleting response actions. (D) A detailed description of any asbestos- containing material which remains in the school building once response actions are undertaken pursuant to the regulations pro- mulgated under subsections (c), (d), and (e). (E) A plan for periodic reinspection and long-term surveillance activities developed pursuant to regulations promulgated under subsection (g), and a plan for operations and maintenance activities developed pursuant to regulations promulgated under subsection (f). (F) With respect to the person or persons who inspected for asbestos-containing mate- rial and who will design or carry out re- sponse actions with respect to the friable as- bestos-containing material, one of the fol- lowing statements: (i) If the State has adopted a contractor accreditation plan under section 2646(b) of Page 1912 TITLE 15—COMMERCE AND TRADE § 2643 this title, a statement that the person (or persons) is accredited under such plan. (ii) A statement that the local edu- cational agency used (or will use) persons who have been accredited by another State which has adopted a contractor accredita- tion plan under section 2646(b) of this title or is accredited pursuant to an Adminis- trator-approved course under section 2646(c) of this title. (G) A list of the laboratories that analyzed any bulk samples of asbestos-containing ma- terial found in the school building or air samples taken to detect asbestos in the school building and a statement that each laboratory has been accredited pursuant to the accreditation program under section 2646(d) of this title. (H) With respect to each consultant who contributed to the management plan, the name of the consultant and one of the fol- lowing statements: (i) If the State has adopted a contractor accreditation plan under section 2646(b) of this title, 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 2646(b) of this title or is ac- credited pursuant to an Administrator-ap- proved course under section 2646(c) of this title. (I) An evaluation of resources needed to successfully complete response actions and carry out reinspection, surveillance, and op- eration and maintenance activities. (2) Statement by contractor A local educational agency may require each management plan to contain a statement signed by an accredited asbestos contractor that such contractor has prepared or assisted in the preparation of such plan, or has re- viewed such plan, and that such plan is in compliance with the applicable regulations and standards promulgated or adopted pursu- ant to this section and other applicable provi- sions of law. Such a statement may not be signed by a contractor who, in addition to pre- paring or assisting in preparing the manage- ment plan, also implements (or will imple- ment) the management plan. (3) Warning labels (A) The regulations shall require that each local educational agency which has inspected for and discovered any asbestos-containing material with respect to a school building shall attach a warning label to any asbestos- containing material still in routine mainte- nance areas (such as boiler rooms) of the school building, including— (i) friable asbestos-containing material which was responded to by a means other than removal, and (ii) asbestos-containing material for which no response action was carried out. (B) The warning label shall read, in print which is readily visible because of large size or bright color, as follows: ‘‘CAUTION: ASBES- TOS. HAZARDOUS. DO NOT DISTURB WITH- OUT PROPER TRAINING AND EQUIPMENT.’’ (4) Plan may be submitted in stages A local educational agency may submit a management plan in stages, with each submis- sion of the agency covering only a portion of the school buildings under the agency’s au- thority, if the agency determines that such ac- tion would expedite the identification and abatement of hazardous asbestos-containing material in the school buildings under the au- thority of the agency. (5) Public availability A copy of the management plan developed under the regulations shall be available in the administrative offices of the local educational agency for inspection by the public, including teachers, other school personnel, and parents. The local educational agency shall notify par- ent, teacher, and employee organizations of the availability of such plan. (6) Submission to State Governor Each plan developed under this subsection shall be submitted to the State Governor under section 2645 of this title. (j) Changes in regulations Changes may be made in the regulations pro- mulgated under this section only by rule in ac- cordance with section 553 of title 5. Any such change must protect human health and the envi- ronment. (k) Changes in guidance document Any change made in the ‘‘Guidance for Con- trolling Asbestos-Containing Material in Build- ings’’ shall be made only by rule in accordance with section 553 of title 5, unless a regulation described in this section dealing with the same subject matter is in effect. Any such change must protect human health and the environ- ment. (l) Treatment of Department of Defense schools (1) Secretary to act in lieu of Governor In the administration of this subchapter, any function, duty, or other responsibility im- posed on a Governor of a State shall be carried out by the Secretary of Defense with respect to any school operated under the defense de- pendents’ education system provided for under the Defense Dependents’ Education Act of 1978 (20 U.S.C. 921 et seq.). (2) Regulations The Secretary of Defense, in cooperation with the Administrator, shall, to the extent feasible and consistent with the national secu- rity, take such action as may be necessary to provide for the identification, inspection, and management (including abatement) of asbes- tos in any building used by the Department of Defense as an overseas school for dependents of members of the Armed Forces. Such identi- fication, inspection, and management (includ- ing abatement) shall, subject to the preceding sentence, be carried out in a manner com- parable to the manner in which a local edu- cational agency is required to carry out such Page 1913 TITLE 15—COMMERCE AND TRADE § 2644 1 So in original. Probably should be ‘‘subsection,’’. activities with respect to a school building under this subchapter. (m) Waiver The Administrator, upon request by a Gov- ernor and after notice and comment and oppor- tunity for a public hearing in the affected State, may waive some or all of the requirements of this section and section 2644 of this title with re- spect to such State if it has established and is implementing a program of asbestos inspection and management that contains requirements that are at least as stringent as the require- ments of this section and section 2644 of this title. (Pub. L. 94–469, title II, § 203, as added Pub. L. 99–519, § 2, Oct. 22, 1986, 100 Stat. 2972; amended Pub. L. 101–637, § 13, Nov. 28, 1990, 104 Stat. 4593.) Editorial Notes REFERENCES IN TEXT The Defense Dependents’ Education Act of 1978, re- ferred to in subsec. (l)(1), is title XIV of Pub. L. 95–561, Nov. 1, 1978, 92 Stat. 2365, which is classified principally to chapter 25A (§ 921 et seq.) of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 921 of Title 20 and Tables. AMENDMENTS 1990—Subsec. (d)(7). Pub. L. 101–637 added par. (7). § 2644. Requirements if EPA fails to promulgate regulations (a) In general (1) Failure to promulgate If the Administrator fails to promulgate within the prescribed period— (A) regulations described in section 2643(b) of this title (relating to inspection); (B) regulations described in section 2643(c), (d), (e), (f), (g), and (i) of this title (relating to responding to asbestos); or (C) regulations described in section 2643(h) of this title (relating to transportation and disposal); each local educational agency shall carry out the requirements described in this section in subsection (b); subsections (c), (d), and (e); or subsection (f); respectively, in accordance with the Environmental Protection Agency’s most current guidance document. (2) Stay by court If the Administrator has promulgated regu- lations described in paragraph (1)(A), (B), or (C) within the prescribed period, but the effec- tive date of such regulations has been stayed by a court for a period of more than 30 days, a local educational agency shall carry out the pertinent requirements described in this sub- section in accordance with the Environmental Protection Agency’s most current guidance document. (3) Effective period The requirements of this section shall be in effect until such time as the Administrator promulgates the pertinent regulations or until the stay is lifted (as the case may be). (b) Inspection (1) Except as provided in paragraph (2), the local educational agency, within 540 days after October 22, 1986, shall conduct an inspection for asbestos-containing material, using personnel accredited under section 2646(b) or (c) of this title and laboratories accredited under section 2646(d) of this title, in each school building under its authority. (2) The local educational agency may exclude from the inspection requirement in paragraph (1) any school building, or portion of a school building, if (A) an inspection of such school building (or portion) was completed before the date on which this section goes into effect, and (B) the inspection meets the inspection require- ments of this section. (c) Operation and maintenance The local educational agency shall, within 720 days after October 22, 1986, develop and begin implementation of an operation and mainte- nance plan with respect to friable asbestos-con- taining material in a school building under its authority. Such plan shall provide for the edu- cation of school service and maintenance per- sonnel about safety procedures with respect to asbestos-containing material, including friable asbestos-containing material. (d) Management plan (1) In general The local educational agency shall— (A) develop a management plan for re- sponding to asbestos-containing material in each school building under its authority and submit such plan to the Governor under sec- tion 2645 of this title within 810 days after October 22, 1986, (B) begin implementation of such plan within 990 days after October 22, 1986, and (C) complete implementation of such plan in a timely fashion. (2) Plan requirements The management plan shall— (A) include the elements listed in section 2643(i)(1) of this title, including an inspec- tion statement as described in paragraph (3) of this section,1 (B) provide for the attachment of warning labels as described in section 2643(i)(3) of this title, (C) be prepared in accordance with the most current guidance document, (D) meet the standard described in para- graph (4) for actions described in that para- graph, and (E) be submitted to the State Governor under section 2645 of this title. (3) Inspection statement The local educational agency shall complete an inspection statement, covering activities carried out before October 22, 1986, which meets the following requirements: (A) The statement shall include the fol- lowing information: (i) The dates of inspection. (ii) The name, address, and qualifica- tions of each inspector.