Report - Lead and Asbestos_Sch A_Hwy-386_part 4 of 6.pdf

Environmental Protection Agency § 763.80

(c) Record all testing parameters and experimental conditions from the suc-cessful validation study into a stand-ard operating procedure (SOP) for ref-erence whenever the decontamination procedure is used. Include in the SOP the identity of the soaking solvent, the length of time of the soak, and the ratio of the soak solvent to contami-nated surface area during the soaking process. Also include in the SOP the maximum concentration of PCBs in the spilled material and the identity of the spilled material, and/or the measured maximum surface concentration of the contaminated surface used in the vali-dation study. Record and keep the re-sults of the validation study as an ap-pendix to the SOP. Include in this ap-pendix, the solvent used to make the spiking solution, the PCB concentra-tion of the spiking solution used to contaminate the surfaces in the valida-tion study, and all of the validation study testing parameters and experi-mental conditions.

[63 FR 35473, June 29, 1998, as amended at 72 FR 57241, Oct. 9, 2007; 74 FR 30235, June 25, 2009]

PART 763—ASBESTOS

Subparts A–D [Reserved]

Subpart E—Asbestos-Containing Materials in Schools

Sec.

763.80 Scope and purpose.

763.83 Definitions.

763.84 General local education agency re-

sponsibilities.

763.85 Inspection and reinspections.

763.86 Sampling.

763.87 Analysis.

763.88 Assessment.

763.90 Response actions.

763.91 Operations and maintenance.

763.92 Training and periodic surveillance.

763.93 Management plans.

763.94 Recordkeeping.

763.95 Warning labels.

763.97 Compliance and enforcement.

763.98 Waiver; delegation to State.

763.99 Exclusions.

APPENDIX A TO SUBPART E—INTERIM TRANS-

MISSION ELECTRON MICROSCOPY ANALYT-

ICAL METHODS—MANDATORY AND NON-

MANDATORY—AND MANDATORY SECTION TO

DETERMINE COMPLETION OF RESPONSE AC-

TIONS

APPENDIX B TO SUBPART E [RESERVED]

APPENDIX C TO SUBPART E—ASBESTOS MODEL

ACCREDITATION PLAN

APPENDIX D TO SUBPART E—TRANSPORT AND

DISPOSAL OF ASBESTOS WASTE

APPENDIX E TO SUBPART E—INTERIM METHOD

OF THE DETERMINATION OF ASBESTOS IN

BULK INSULATION SAMPLES

Subpart F [Reserved]

Subpart G—Asbestos Worker Protection

763.120 What is the purpose of this subpart?

763.121 Does this subpart apply to me?

763.122 What does this subpart require me to

do?

763.123 May a State implement its own as-

bestos worker protection plan?

Subpart H [Reserved]

Subpart I—Prohibition of the Manufacture, Importation, Processing, and Distribu-tion in Commerce of Certain Asbestos- Containing Products; Labeling Require-ments

763.160 Scope.

763.163 Definitions.

763.165 Manufacture and importation prohi-

bitions.

763.167 Processing prohibitions.

763.169 Distribution in commerce prohibi-

tions.

763.171 Labeling requirements.

763.173 Exemptions.

763.175 Enforcement.

763.176 Inspections.

763.178 Recordkeeping.

763.179 Confidential business information

claims.

AUTHORITY: 15 U.S.C. 2605, 2607(c), 2643, and 2646.

Subparts A–D [Reserved]

Subpart E—Asbestos-Containing Materials in Schools

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

§ 763.80 Scope and purpose.

(a) This rule requires local education agencies to identify friable and nonfri-able asbestos-containing material (ACM) in public and private elemen-tary 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 appro-priate techniques referred to in this rule. The rule requires local education

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40 CFR Ch. I (7–1–11 Edition) § 763.83 agencies to submit management plans to the Governor of their State by Octo-ber 12, 1988, begin to implement the plans by July 9, 1989, and complete im-plementation 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 re-sponse 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 encour-aged to consult with EPA Regional As-bestos Coordinators, or if applicable, a State’s lead agency designated by the State Governor, for assistance in com-plying with this rule.

(b) Local education agencies must provide for the transportation and dis-posal 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 Trans-portation (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).

§ 763.83 Definitions.

For purposes of this subpart:

Act means the Toxic Substances Con-trol 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 occu-pants or custodial or maintenance per-sonnel in the course of their normal ac-tivities.

Accredited or accreditation when refer-ring to a person or laboratory means that such person or laboratory is ac-credited 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 vari-eties of: Chrysotile (serpentine); cro-cidolite (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 miscella-neous ACM that is found in or on inte-rior 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 in-spector 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 illus-trated by the separation of ACM into layers; separation of ACM from the substrate; flaking, blistering, or crum-bling of the ACM surface; water dam-age; 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 dete-riorated or sustained physical injury such that the internal structure (cohe-sion) of the material is inadequate or which has delaminated such that its bond to the substrate (adhesion) is in-adequate, or which, for any other rea-son, lacks fiber cohesion or adhesion qualities. Such damage or deteriora-tion may be illustrated by the separa-tion of ACM into layers; separation of ACM from the substrate; flaking, blis-tering, or crumbling of the ACM sur-face; water damage; significant or re-peated water stains, scrapes, gouges, mars or other signs of physical injury

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Environmental Protection Agency § 763.83 on the ACM. Asbestos debris origi-nating from the ACBM in question may also indicate damage.

Damaged or significantly damaged ther-mal system insulation ACM means ther-mal system insulation ACM on pipes, boilers, tanks, ducts, and other ther-mal system insulation equipment where the insulation has lost its struc-tural 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 ex-posed ACM ends or joints. Asbestos de-bris 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 adhe-sive matrix to prevent the release of fi-bers, as the encapsulant creates a membrane over the surface (bridging encapsulant) or penetrates the mate-rial and binds its components together (penetrating encapsulant).

Enclosure means an airtight, imper-meable, permanent barrier around ACBM to prevent the release of asbes-tos fibers into the air.

Fiber release episode means any un-controlled or unintentional disturb-ance of ACBM resulting in visible emis-sion.

Friable when referring to material in a school building means that the mate-rial, when dry, may be crumbled, pul-verized, or reduced to powder by hand pressure, and includes previously non-friable 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 (includ-ing 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), des-ignated by a person accredited to pre-pare management plans, design abate-ment projects, or conduct response ac-tions.

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 in-sulation 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 Elemen-tary and Secondary Education Act of 1965 (20 U.S.C. 3381).

(2) The owner of any nonpublic, non-profit elementary, or secondary school building.

(3) The governing authority of any school operated under the defense de-pendent’s education system provided for under the Defense Dependents’ Edu-cation Act of 1978 (20 U.S.C. 921, et seq.).

Miscellaneous ACM means miscella-neous material that is ACM in a school building.

Miscellaneous material means interior building material on structural compo-nents, structural members or fixtures, such as floor and ceiling tiles, and does not include surfacing material or ther-mal 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 condi-tion, ensure clean up of asbestos fibers previously released, and prevent fur-ther release by minimizing and con-trolling friable ACBM disturbance or damage.

Potential damage means cir-cumstances in which:

(1) Friable ACBM is in an area regu-larly used by building occupants, in-cluding maintenance personnel, in the course of their normal activities.

(2) There are indications that there is a reasonable likelihood that the mate-rial or its covering will become dam-aged, deteriorated, or delaminated due to factors such as changes in building use, changes in operations and mainte-nance practices, changes in occupancy, or recurrent damage.

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40 CFR Ch. I (7–1–11 Edition) § 763.84

Potential significant damage means circumstances in which:

(1) Friable ACBM is in an area regu-larly used by building occupants, in-cluding maintenance personnel, in the course of their normal activities.

(2) There are indications that there is a reasonable likelihood that the mate-rial or its covering will become signifi-cantly damaged, deteriorated, or delaminated due to factors such as changes in building use, changes in op-erations and maintenance practices, changes in occupancy, or recurrent damage.

(3) The material is subject to major or continuing disturbance, due to fac-tors including, but not limited to, ac-cessibility or, under certain cir-cumstances, 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, in-cluding removal, encapsulation, enclo-sure, repair, operations and mainte-nance, that protects human health and the environment from friable ACBM.

Routine maintenance area means an area, such as a boiler room or mechan-ical room, that is not normally fre-quented by students and in which maintenance employees or contract workers regularly conduct mainte-nance activities.

School means any elementary or sec-ondary school as defined in section 198 of the Elementary and Secondary Edu-cation 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 aca-demic course in physical education.

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

(4) Any maintenance, storage, or util-ity facility, including any hallway, es-sential 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 mechan-ical system used to condition interior space.

Significantly damaged friable miscella-neous ACM means damaged friable mis-cellaneous 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 Puer-to Rico, Guam, American Samoa, the Northern Marianas, the Trust Terri-tory of the Pacific Islands, and the Vir-gin Islands.

Surfacing ACM means surfacing mate-rial 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 ma-terial in a school building applied to pipes, fittings, boilers, breeching, tanks, ducts, or other interior struc-tural 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.

§ 763.84 General local education agen-cy responsibilities.

Each local education agency shall:

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Environmental Protection Agency § 763.85

(a) Ensure that the activities of any persons who perform inspections, re-inspections, and periodic surveillance, develop and update management plans, and develop and implement response actions, including operations and maintenance, are carried out in accord-ance 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 Occupa-tional Safety and Health Administra-tion asbestos standard for construc-tion, 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, in-cluding periodic reinspection and sur-veillance 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 re-garding the locations of ACBM and sus-pected ACBM assumed to be ACM.

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

(f) Ensure that management plans are available for inspection and notifi-cation of such availability has been provided as specified in the manage-ment plan under § 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 nec-essary, basic knowledge of:

(i) Health effects of asbestos.

(ii) Detection, identification, and as-sessment of ACM.

(iii) Options for controlling ACBM.

(iv) Asbestos management programs.

(v) Relevant Federal and State regu-lations concerning asbestos, including those in this subpart E and those of the Occupational Safety and Health Ad-ministration, U.S. Department of Labor, the U.S. Department of Trans-portation and the U.S. Environmental Protection Agency.

(h) Consider whether any conflict of interest may arise from the inter-relationship among accredited per-sonnel and whether that should influ-ence the selection of accredited per-sonnel to perform activities under this subpart.

§ 763.85 Inspection and reinspections.

(a) Inspection. (1) Except as provided in paragraph (a)(2) of this section, be-fore October 12, 1988, local education agencies shall inspect each school building that they lease, own, or other-wise use as a school building to iden-tify all locations of friable and nonfri-able ACBM.

(2) Any building leased or acquired on or after October 12, 1988, that is to be used as a school building shall be in-spected 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 neces-sitated, such buildings shall be in-spected within 30 days after commence-ment 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 § 763.99, each person performing an inspection shall:

(i) Visually inspect the area to iden-tify the locations of all suspected

ACBM.

(ii) Touch all suspected ACBM to de-termine whether they are friable.

(iii) Identify all homogeneous areas of friable suspected ACBM and all ho-mogeneous areas of nonfriable sus-pected ACBM.

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

(v) Assess, under § 763.88, friable ma-terial in areas where samples are col-lected, friable material in areas that are assumed to be ACBM, and friable ACBM identified during a previous in-spection.

(vi) Record the following and submit to the person designated under § 763.84 a copy of such record for inclusion in

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40 CFR Ch. I (7–1–11 Edition) § 763.86 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 inspec-tion, State of accreditation, and if ap-plicable, his or her accreditation num-ber.

(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, homo-geneous areas where friable suspected ACBM is assumed to be ACM, and ho-mogeneous areas where nonfriable sus-pected 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 applica-ble, his or her accreditation number.

(D) A list of whether the homo-geneous areas identified under para-graph (a)(4)(vi)(B) of this section, are surfacing material, thermal system in-sulation, or miscellaneous material.

(E) Assessments made of friable ma-terial, the name and signature of each accredited inspector making the as-sessment, 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 agen-cy shall conduct a reinspection of all friable and nonfriable known or as-sumed 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 § 763.88, the condition of all fri-able known or assumed ACBM.

(ii) Visually inspect material that was previously considered nonfriable ACBM and touch the material to deter-mine whether it has become friable since the last inspection or reinspec-tion.

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

(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 §§ 763.86 and 763.87.

(v) Assess, under § 763.88, the condi-tion 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 § 763.88, the con-dition of friable known or assumed ACBM previously identified.

(vii) Record the following and submit to the person designated under § 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 mak-ing the reinspection, State of accredi-tation, and if applicable, his or her ac-creditation number, and any changes in the condition of known or assumed

ACBM.

(B) The exact locations where sam-ples are collected during the reinspec-tion, 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 applica-ble, his or her accreditation number.

(C) Any assessments or reassess-ments made of friable material, the name and signature of the accredited inspector making the assessments, State of accreditation, and if applica-ble, his or her accreditation number.

(c) General. Thermal system insula-tion that has retained its structural in-tegrity and that has an undamaged protective jacket or wrap that prevents fiber release shall be treated as nonfri-able and therefore is subject only to periodic surveillance and preventive measures as necessary.

§ 763.86 Sampling.

(a) Surfacing material. An accredited inspector shall collect, in a statis-tically random manner that is rep-resentative of the homogeneous area, bulk samples from each homogeneous area of friable surfacing material that

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Environmental Protection Agency § 763.88 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 § 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 pro-vided in § 763.87(c)(2).

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

(b) Thermal system insulation. (1) Ex-cept as provided in paragraphs (b) (2) through (4) of this section and § 763.87(c), an accredited inspector shall collect, in a randomly distributed man-ner, at least three bulk samples from each homogeneous area of thermal sys-tem 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 deter-mine whether the material is ACM or not ACM, collect bulk samples from each insulated mechanical system that is not assumed to be ACM where ce-ment or plaster is used on fittings such as tees, elbows, or valves, except as provided under § 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 man-ner sufficient to determine whether material is ACM or not ACM, an ac-credited 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 sus-pected 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.

§ 763.87 Analysis.

(a) Local education agencies shall have bulk samples, collected under § 763.86 and submitted for analysis, ana-lyzed 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) anal-ysis under the EPA Interim Asbestos Bulk Sample Analysis Quality Assur-ance Program until the NBS PLM lab-oratory accreditation program for PLM is operational.

(b) Bulk samples shall not be compos-ited for analysis and shall be analyzed for asbestos content by PLM, using the ‘‘Interim Method for the Determina-tion of Asbestos in Bulk Insulation Samples’’ found at appendix E to sub-part E of this part.

(c)(1) A homogeneous area is consid-ered not to contain ACM only if the re-sults of all samples required to be col-lected from the area show asbestos in amounts of 1 percent or less.

(2) A homogeneous area shall be de-termined 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 lab-oratory performing an analysis, the date of analysis, and the name and sig-nature of the person performing the analysis shall be submitted to the per-son designated under § 763.84 for inclu-sion 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]

§ 763.88 Assessment.

(a)(1) For each inspection and rein-spection conducted under § 763.85 (a) and (c) and previous inspections speci-fied under § 763.99, the local education agency shall have an accredited inspec-tor provide a written assessment of all friable known or assumed ACBM in the school building.

(2) Each accredited inspector pro-viding a written assessment shall sign and date the assessment, provide his or

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40 CFR Ch. I (7–1–11 Edition) § 763.90 her State of accreditation, and if appli-cable, accreditation number, and sub-mit a copy of the assessment to the person designated under § 763.84 for in-clusion 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 fol-lowing categories:

(1) Damaged or significantly dam-aged thermal system insulation ACM.

(2) Damaged friable surfacing ACM.

(3) Significantly damaged friable sur-facing ACM.

(4) Damaged or significantly dam-aged friable miscellaneous ACM.

(5) ACBM with potential for damage.

(6) ACBM with potential for signifi-cant damage.

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

(c) Assessment may include the fol-lowing 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, speci-fying:

(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 op-posed 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 acces-sible.

(4) The material’s potential for dis-turbance.

(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 sig-nificantly damaged.

(d) The local education agency shall select a person accredited to develop management plans to review the re-sults of each inspection, reinspection, and assessment for the school building and to conduct any other necessary ac-tivities in order to recommend in writ-ing to the local education agency ap-propriate response actions. The accred-ited person shall sign and date the rec-ommendation, provide his or her State of accreditation, and, if applicable, pro-vide his or her accreditation number, and submit a copy of the recommenda-tion to the person designated under § 763.84 for inclusion in the manage-ment plan.

§ 763.90 Response actions.

(a) The local education agency shall select and implement in a timely man-ner the appropriate response actions in this section consistent with the assess-ment conducted in § 763.88. The re-sponse actions selected shall be suffi-cient to protect human health and the environment. The local education agency may then select, from the re-sponse actions which protect human health and the environment, that ac-tion 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 dam-aged thermal system insulation ACM is present in a building, the local edu-cation 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 insu-lation ACM and its covering in an in-tact 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 defi-nitional standards in § 763.83, the local education agency shall determine which of these response actions pro-tects human health and the environ-ment. For purposes of determining which of these response actions are the least burdensome, the local education

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Environmental Protection Agency § 763.90 agency may then consider local cir-cumstances, including occupancy and use patterns within the school build-ing, and its economic concerns, includ-ing short- and long-term costs.

(d) If significantly damaged friable surfacing ACM or significantly dam-aged friable miscellaneous ACM is present in a building the local edu-cation agency shall:

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

(2) Remove the material in the func-tional space or, depending upon wheth-er enclosure or encapsulation would be sufficient to protect human health and the environment, enclose or encap-sulate.

(e) If any friable surfacing ACM, thermal system insulation ACM, or fri-able miscellaneous ACM that has po-tential 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 § 763.91.

(f) If any friable surfacing ACM, ther-mal 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 § 763.91.

(2) Institute preventive measures ap-propriate to eliminate the reasonable likelihood that the ACM or its covering will become significantly damaged, de-teriorated, or delaminated.

(3) Remove the material as soon as possible if appropriate preventive measures cannot be effectively imple-mented, or unless other response ac-tions are determined to protect human health and the environment. Imme-diately isolate the area and restrict ac-cess if necessary to avoid an imminent and substantial endangerment to human health or the environment.

(g) Response actions including re-moval, encapsulation, enclosure, or re-pair, other than small-scale, short-du-ration repairs, shall be designed and conducted by persons accredited to de-sign and conduct response actions.

(h) The requirements of this subpart E in no way supersede the worker pro-tection and work practice require-ments under 29 CFR 1926.58 (Occupa-tional Safety and Health Administra-tion (OSHA) asbestos worker protec-tion standards for construction), 40 CFR part 763, subpart G (EPA asbestos worker protection standards for public employees), and 40 CFR part 61, sub-part M (National Emission Standards for Hazardous Air Pollutants—Asbes-tos).

(i) Completion of response actions. (1) At the conclusion of any action to re-move, encapsulate, or enclose ACBM or material assumed to be ACBM, a per-son 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 sam-ples using aggressive sampling as de-scribed 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 lab-oratories accredited by the National Bureau of Standards to conduct such analysis using transmission electron microscopy (TEM) or, under cir-cumstances permitted in this section, laboratories enrolled in the American Industrial Hygiene Association Pro-ficiency Analytical Testing Program for phase contrast microscopy (PCM).

(iii) Until the National Bureau of Standards TEM laboratory accredita-tion program is operational, local edu-cational agencies shall use laboratories that use the protocol described in ap-pendix A to subpart E of this part.

(3) Except as provided in paragraphs (i)(4), and (i)(5), of this section, an ac-tion to remove, encapsulate, or enclose ACBM shall be considered complete when the average concentration of as-bestos 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, VerDate Mar<15>2010 16:57 Aug 29, 2011 Jkt 223174 PO 00000 Frm 00863 Fmt 8010 Sfmt 8010 Q:\40\40V31.TXT ofr150 PsN: PC150

40 CFR Ch. I (7–1–11 Edition) § 763.91 from the average asbestos concentra-tion of five air samples collected at the same time outside the affected func-tional space and analyzed in the same manner, and the average asbestos con-centration of the three field blanks de-scribed 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 with-in 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 asbes-tos as analyzed by the TEM method in appendix A of this subpart E, for the five air samples does not exceed the fil-ter background level, as defined in ap-pendix A, of 70 structures per square millimeter (70 s/mm2). If the average concentration of asbestos of the five air samples within the affected func-tional 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 fil-ter or less than 2,799 L of air for a 37 mm filter, the action shall be consid-ered complete only when the require-ments 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 pur-poses by phase contrast microscopy (PCM) to confirm completion of re-moval, 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 Occu-pational Safety and Health (NIOSH) Method 7400 entitled ‘‘Fibers’’ pub-lished in the NIOSH Manual of Analyt-ical Methods, 3rd Edition, Second Sup-plement, 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 fi-bers per cubic centimeter (0.01 f/cm3) of air). The method is available for public inspection at the Non-Confidential In-formation Center (NCIC) (7407), Office of Pollution Prevention and Toxics, U.S. Environmental Protection Agen-cy, Room B–607 NEM, 401 M St., SW., Washington, DC 20460, between the hours of 12 p.m. and 4 p.m. weekdays excluding legal holidays or at the Na-tional Archives and Records Adminis-tration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: http:// www.archives.gov/federallregister/ codeloflfederallregulations/ ibrllocations.html. This incorporation by reference was approved by the Di-rector of the Federal Register in ac-cordance 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 FED-

ERAL 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 con-tainment barriers used to isolate the functional space for the action to re-move, encapsulate, or enclose the ACBM. Contiguous portions of material subject to such action conducted con-currently or at approximately the same time within the same school building shall not be separated to qual-ify under paragraph (i)(5), of this sec-tion.

[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; 69 FR 18803, Apr. 9, 2004]

§ 763.91 Operations and maintenance.

(a) Applicability. The local education agency shall implement an operations, maintenance, and repair (O&M) pro-gram 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 as-sumed 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 per-formed in the school building.

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Environmental Protection Agency § 763.91

(b) Worker protection. Local education agencies must comply with either the OSHA Asbestos Construction Standard at 29 CFR 1926.1101, or the Asbestos Worker Protection Rule at 40 CFR 763.120, whichever is applicable.

(c) Cleaning—(1) Initial cleaning. Un-less 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 sys-tem insulation ACM, or friable sus-pected ACBM assumed to be ACM are present shall be cleaned at least once after the completion of the inspection required by § 763.85(a) and before the initiation of any response action, other than O&M activities or repair, accord-ing 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 meth-ods and frequency of such cleaning.

(d) Operations and maintenance activi-ties. 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, ei-ther by physically isolating the area or by scheduling.

(2) Post signs to prevent entry by un-authorized persons.

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

(4) Use work practices or other con-trols, such as, wet methods, protective clothing, HEPA-vacuums, mini-enclo-sures, glove bags, as necessary to in-hibit the spread of any released fibers.

(5) Clean all fixtures or other compo-nents 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 mainte-nance activities, shall be designed by persons accredited to design response actions and conducted by persons ac-credited to conduct response actions.

(f) Fiber release episodes—(1) Minor fiber release episode. The local education agency shall ensure that the proce-dures described below are followed in the event of a minor fiber release epi-sode (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 insula-tion, or seal with latex paint or an encapsulant, or immediately have the appropriate response action imple-mented as required by § 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 dis-lodging 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 nec-essary 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 de-signed by persons accredited to design response actions and conducted by per-sons accredited to conduct response ac-tions.

[52 FR 41846, Oct. 30, 1987, as amended at 65 FR 69216, Nov. 15, 2000]

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40 CFR Ch. I (7–1–11 Edition) § 763.92

§ 763.92 Training and periodic surveil-lance.

(a) Training. (1) The local education agency shall ensure, prior to the imple-mentation of the O&M provisions of the management plan, that all mem-bers 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 employ-ment. 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, deterio-ration, and delamination of ACBM.

(v) Name and telephone number of the person designated to carry out gen-eral local education agency respon-sibilities under § 763.84 and the avail-ability and location of the manage-ment plan.

(2) The local education agency shall ensure that all members of its mainte-nance 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 addi-tional training. Additional training shall include, but not be limited to:

(i) Descriptions of the proper meth-ods of handling ACBM.

(ii) Information on the use of res-piratory protection as contained in the EPA/NIOSH Guide to Respiratory Protec-tion for the Asbestos Abatement Industry, September 1986 (EPA 560/OPPTS–86– 001), available from the Director, Envi-ronmental Assistance Division (7408), Office of Pollution Prevention and Toxics, U.S. Environmental Protection Agency, Room E–543B, 1200 Pennsyl-vania Ave., NW., Washington, DC 20460, Telephone: (202) 554–1404, TDD: (202) 544–0551 and other personal protection measures.

(iii) The provisions of this section and § 763.91, Appendices A, C, and D of this subpart E of this part, EPA regula-tions contained in 40 CFR part 763, sub-part 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 mainte-nance and custodial staff who have at-tended EPA-approved asbestos training or received equivalent training for O&M and periodic surveillance activi-ties involving asbestos shall be consid-ered trained for the purposes of this section.

(b) Periodic surveillance. (1) At least once every 6 months after a manage-ment plan is in effect, each local edu-cation 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 surveil-lance, his or her name, and any changes in the condition of the mate-rials.

(iii) Submit to the person designated to carry out general local education agency responsibilities under § 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; 65 FR 69216, Nov. 15, 2000]

§ 763.93 Management plans.

(a)(1) On or before October 12, 1988, each local education agency shall de-velop 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 edu-cation agency.

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Environmental Protection Agency § 763.93

(2) If a building to be used as part of a school is leased or otherwise acquired after October 12, 1988, the local edu-cation 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 Gov-ernor.

(3) If a local education agency begins to use a building as a school after Octo-ber 12, 1988, the local education agency shall submit a management plan for the school to the…