Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
224.10-100(10),
224.20-100,
224.20-110,
224.20-120,
224.20-300,
40 C.F.R.
763.80,
763.84,
763.85,
763.86,
763.87,
763.88,
763.90,
763.91,
763.92,
763.93,
763.94,
763.95,
763.99, Appendices A B
and D (October 30, 1987),
15 U.S.C.
2601 Toxic Substances Control Act II and the
related sections which follow as in effect on July 18, 1988
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
224.10-100 requires the Environmental and
Public Protection Cabinet to prescribe administrative regulations for the
prevention, abatement, and control of air pollution.
KRS 224.20-300 authorizes
the cabinet to develop, adopt, and maintain a comprehensive statewide asbestos
contractor accreditation program relating to asbestos in schools. This
administrative regulation provides for the control of asbestos emissions in
schools by requiring local education agencies to submit management plans to
provide for the adequate identification and assessment of asbestos in schools
and the removal or other appropriate treatment of friable asbestos-containing
materials.
Section 1. Definitions. As
used in this administrative regulation and applicable portions of 40 C.F.R.
Part 763 , the following terms shall have the following meanings. If not
defined in this section, a term shall have the meaning given it by commonly
accepted usage.
(1) "Act" means the Toxic
Substances Control Act (TSCA),
15 USC
2601 and the related sections which follow,
as in effect on July 18, 1988.
(2)
"Accessible" means, when referring to ACM, that the material is subject to
disturbance by school building occupants or custodial or maintenance personnel
in the course of their normal activities.
(3) "Accredited" means when referring to an
individual or a laboratory that the individual or laboratory is accredited in
accordance with section 206 of Title II of the Act.
(4) "Accreditation certificate" means a
certificate issued by the cabinet attesting to the qualifications of an
individual to perform specified asbestos abatement projects.
(5) "Air erosion" means the passage of air
over friable ACBM which may result in the release of asbestos fibers.
(6) "Asbestos" means the asbestiform
varieties of: chrysotile (serpentine), crocidolite (riebeckite), amosite
(cummingtonite-grunerite), anthophyllite, tremolite, and actinolite.
(7) "Asbestos abatement project" means any
project intended to identify, assess, plan for, or respond to an asbestos
hazard in a school building.
(8)
"Asbestos-containing material" or "ACM" means, when referring to school
buildings, any material or product which contains more than one (1) percent
asbestos by area.
(9)
"Asbestos-containing building material" or "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.
(10) "Asbestos debris" means:
(a) Pieces of ACBM that can be identified by
color, texture, or composition; or
(b) Dust, if the dust is determined by an
accredited inspector to be ACM.
(11) "Cabinet" has the meaning given it in
KRS
224.01-010.
(12) "Damaged friable miscellaneous ACM"
means friable miscellaneous ACM which has deteriorated or sustained physical
injury so that the internal structure (cohesion) of the material is inadequate
or, if applicable, which has delaminated so that its bond to the substrate
(adhesion) is inadequate, or which for any other reason lacks fiber cohesion or
adhesion qualities. 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.
(13) "Damage
friable surfacing ACM" means friable surfacing ACM which has deteriorated or
sustained physical injury so that the internal structure (cohesion) of the
material is inadequate, or which has delaminated so that its bond to the
substrate (adhesion) is inadequate, or which for any other reason lacks fiber
cohesion or adhesion qualities. 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.
(14) "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 so 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 or jackets; or exposed ACM ends or joints. Asbestos debris
originating from the ACBM in question may also indicate damage.
(15) "Day" means calendar day.
(16) "Emergency response action" means a
response action that was not planned but results from a sudden, unexpected
event. This term includes operations necessitated by nonroutine failure of
equipment.
(17) "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).
(18) "Enclosure"
means an airtight, impermeable, permanent barrier around ACBM to prevent the
release of asbestos fibers into the air.
(19) "EPA" or "U.S. EPA" means the United
States Environmental Protection Agency.
(20) "EPA-approved training course" means a
training or refresher course that is approved by the U.S. EPA, at the time the
course is taken as meeting the requirements of section 206 of the
Act.
(21) "Fiber release episode"
means any uncontrolled or unintentional disturbance of ACBM resulting in
visible emission.
(22) "Friable"
means that the material, when dry, may be broken, crumbled, pulverized, or
reduced to powder by hand pressure, and includes previously nonfriable material
after the previously nonfriable material becomes damaged to the extent that
when dry it may be crumbled, pulverized, or reduced to powder by hand
pressure.
(23) "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
classrooms, a cafeteria, gymnasium, hallways, designated by an individual
accredited to prepare management plans, or design or conduct response
actions.
(24) "High-efficiency
particulate air" or "HEPA" means a filtering system capable of trapping and
retaining at least 99.97 percent of all monodispersed particles three/tenths
(0.3) um in diameter or larger.
(25) "Homogeneous area" means an area of
surfacing material, thermal system insulation material, or miscellaneous
material that is uniform in color and texture.
(26) "Inspector" means an individual who
identifies, assesses the condition of, or collects preabatement air samples or
bulk samples of ACM.
(27)
"Inspection" means an identification of the status of asbestos in schools,
including identification of, assessment of the conditions of, or collection of
preabatement air samples or bulk samples of, ACM. This term also includes
reinspections, after the initial inspection has been performed.
(28) "Local education agency" or "LEA" means:
(a) Any local education agency as defined in
section 198 of the Elementary and Secondary Education Act of 1965 (20 USC 3381)
, which means, a public board of education or other public authority legally
constituted for either administrative control or direction of, or to perform a
service function for, public elementary or secondary schools in a city, county,
township, school district, or other political subdivision, or any combination
of school districts or counties recognized as an administrative agency for its
public elementary or secondary schools. This term also includes any other
public institution or agency having administrative control and direction of a
public elementary or secondary school.
(b) The owner of any nonpublic, nonprofit
elementary or secondary school building.
(c) The governing authority of any school
operated under the defense dependents' education system provided for under the
Defense Dependents' Education Act of 1978 (20 USC
921, and the related sections which
follow).
(29) "Management
plan" means a plan submitted by an LEA and which is not disapproved, which
contains the items required in
40 C.F.R.
763.93.
(30) "Management planner" means an individual
who uses data gathered by inspectors to assess asbestos hazards, and by doing
so determines appropriate response actions and develops management
plans.
(31) "Miscellaneous ACM"
means miscellaneous material that is ACM in a school building.
(32) "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.
(33)
"Nonfriable" means material in a school building which when dry may not be
broken, crumbled, pulverized, or reduced to powder by hand pressure.
(34) "Operations and maintenance program" or
"O&M program" means a program of work practices to maintain friable ACBM in
good condition, ensure cleanup of asbestos fibers previously released, and
prevent further release by minimizing and controlling friable ACBM disturbance
or damage.
(35) "Person" has the
meaning given it in
KRS
224.01-010.
(36) "Potential damage" means circumstances
in which:
(a) Friable ACBM is in an area
regularly used by building occupants, including maintenance personnel, in the
course of their normal activities; or
(b) 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.
(37)
"Potential significant damage" means circumstances in which:
(a) Friable ACBM is in an area regularly used
by building occupants, including maintenance personnel, in the course of their
normal activities;
(b) 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; or
(c) 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.
(38) "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.
(39)
"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.
(40) "Repair" means
returning damaged ACBM to an undamaged condition or to an intact state so as to
prevent fiber release.
(41)
"Response action" means a method, including but not limited to removal,
encapsulation, enclosure, repair, operations and maintenance, that protects
human health and the environment from friable ACBM.
(42) "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.
(43) "School" means any elementary or
secondary school as defined in section 198 of the Elementary and Secondary
Education Act of 1965 (20 USC 2854) .
(44) "School building" means:
(a) 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;
(b) Any gymnasium or other facility which is
specially designed for athletic or recreational activities for an academic
course in physical education;
(c)
Any other facility used for the instruction or housing of students or for the
administration of education or research programs;
(d) Any maintenance, storage, or utility
facility, including any hallway, essential to the operation of any facility
described in paragraphs (a) to (c) of this subsection;
(e) Any portico or covered exterior hallway
or walkway; or
(f) Any exterior
portion of a mechanical system used to condition interior space.
(45) "Significantly damaged
friable miscellaneous ACM" means damaged friable miscellaneous ACM where the
damage is extensive and severe.
(46) "Significantly damaged friable surfacing
ACM" means damaged friable surfacing ACM in a functional space where the damage
is extensive and severe.
(47)
"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.
(48) "Surfacing ACM" means surfacing material
that is ACM.
(49) "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.
(50) "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.
(51) "Thermal system insulation ACM" means
thermal system insulation that is ACM.
(52) "Timely manner" means that the LEA has
fulfilled or is fulfilling its responsibilities in a manner that is as
expeditious as possible, taking into account circumstances which are unique to
the LEA. The determination of timeliness shall be made by the
cabinet.
(53) "um" means
micrometer.
(54) "Vibration" means
the periodic motion of friable ACBM which may result in the release of asbestos
fibers.
Section 3.
Responsibilities of LEAs.
(1) The subject
matter of this administrative regulation is governed by
40 C.F.R.
763.80,
763.84,
763.85,
763.86,
763.87,
763.88,
763.90,
763.91,
763.92,
763.93,
763.94,
763.95, and
763.99, and Appendices
A, B, and D, as promulgated by the U.S. EPA on October 30, 1987 (52 FR 41846).
All LEAs shall comply with the provisions of the federal regulations listed in
this subsection.
(2) No LEA may
permit, allow, or require any individual or other person to perform any
asbestos abatement project after October 12, 1988, unless the individual has
been issued by the cabinet an accreditation certificate to so engage in these
projects in accordance with the provisions of
401 KAR
58:005, which is currently in effect, and which is
maintained on his person.
(3) LEAs
shall revise their management plans when changes in the schools, school
buildings, status of the ACM, or response actions occur. The LEA may submit
only the revised portion of the plan. If the entire plan is resubmitted then
the revised portions shall be clearly indicated. These revisions shall comply
with the applicable provisions of
40 C.F.R.
763.80,
763.84,
763.85,
763.86,
763.87,
763.88,
763.90,
763.91,
763.92,
763.93,
763.94,
763.95, and
763.99, and Appendices
A, B, and D. LEAs shall submit the revisions according to the provisions of
Section 5 of this administrative regulation.
Section 4. Deferrals. If a LEA is unable to
submit to the cabinet its management plan required in
40 C.F.R. 763.93
by October 12, 1988, it may request a deferral to May 9, 1989, for the
submission of the plan for one (1) or more schools under its jurisdiction.
Deferral requests shall be submitted to the cabinet by the original due date of
October 12, 1988, shall be notarized, and shall contain all of the requirements
of subsections (1) to (5) of this section. Deferral requests may be submitted
using forms prepared by the cabinet for that purpose.
(1) A listing of all schools covered by the
request.
(2) A statement and brief
explanation as to why the LEA, despite good faith efforts, will not be able to
meet the original October 12, 1988, deadline for submittal of its management
plan.
(3) A statement that the LEA
has made at least one (1) of the following documents available for inspection
at each school for which a deferral is sought:
(a) A solicitation by the LEA to contract
with an accredited inspector or accredited management planner for inspection or
management plan development, respectively;
(b) A letter certifying that school district
personnel are enrolled in an EPA-approved training course for inspection and
management plan development;
(c)
Documentation showing that suspected ACM from the school is being analyzed at
an accredited laboratory; or
(d)
Documentation showing that an inspection or management plan has been completed
in at least one (1) other school under the LEA's authority.
(4) A statement giving assurance
that the LEA has carried out notification of affected groups and, for public
schools, a public meeting. Before filing a deferral request, a LEA shall notify
affected parent, teacher, and employee organizations of its intent to file its
request. For public schools, the LEA shall discuss the request at a public
meeting of the school board, and affected organizations shall be notified in
advance of the time and place of the meeting.
(5) A proposed schedule outlining all
significant activities leading up to submission of a management plan by May 9,
1989, including the inspection of the school. This schedule shall contain a
deadline of no later than December 22, 1988, for entering into a contract with
an accredited inspector, unless inspections are to be performed by accredited
school personnel. Laboratory analysis and management plan development shall
also be included in the activity schedule.
(6) The cabinet shall respond to the LEA in
writing within thirty (30) days of receipt of the request to acknowledge
whether the deferral request is complete or incomplete. If incomplete, the
cabinet shall identify in the response the items which are missing from the
request. The LEA may correct and refile its request with the cabinet no later
than fifteen (15) days after it has received a response from the
cabinet.
(7) The deferral request
shall be considered to be granted only when the cabinet has responded in
writing that the deferral request is accepted as complete.
(8) An LEA whose deferral request has been
approved shall submit to the cabinet a management plan no later than May 9,
1989. The plan shall include a copy of the deferral request and the appropriate
assurances of subsections (1) to (5) of this section which accompanied the
original request. The cabinet shall review the deferred management plan in
accordance with the procedures in Section 6 of this administrative regulation,
except the LEA shall submit a revised deferred plan within thirty (30) days of
disapproval. The cabinet may extend the thirty (30) day period by not more than
thirty (30) days.
(9) Deferral or
acceptance of the deferred management plan shall not exempt the LEA from its
responsibility to begin implementation of the deferred management plan by July
9, 1989.
STATUTORY AUTHORITY: KRS Chapter 13A, 224.10-100, 224.20-300,
224.20-310, 224.99-010,
40 C.F.R.
763.80,
763.84,
763.85,
763.86,
763.87,
763.88,
763.90,
763.91,
763.92,
763.93,
763.94,
763.95,
763.99, Appendices A,
B, and D (October 30, 1987), Toxic Substances Control Act II (15 U.S.C.
2601 and the related sections which follow,
as in effect on July 18, 1988)