ICR Attachment C - 40 CFR 763, Subpart E - Asbestos-Containing Materials in Schools

EPA ICR No. 1365.08; OMB Control No. 2070-0091
ICR Attachment C
Asbestos-Containing Materials in Schools
40 CFR 763, Subpart E

Environmental Protection Agency

§ 763.80

contaminated surface used in the validation study. Record and keep the results of the validation study as an appendix to the SOP. Include in this appendix, the solvent used to make the
spiking solution, the PCB concentration of the spiking solution used to
contaminate the surfaces in the validation study, and all of the validation
study testing parameters and experimental conditions.

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 responsibilities.
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 TRANSMISSION ELECTRON MICROSCOPY ANALYTICAL METHODS—MANDATORY AND NONMANDATORY—AND MANDATORY SECTION TO
DETERMINE COMPLETION OF RESPONSE
ACTIONS
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]

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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 asbestos worker protection plan?

Subpart H [Reserved]
Subpart I—Prohibition of the Manufacture,
Importation, Processing, and Distribution in Commerce of Certain AsbestosContaining Products; Labeling Requirements
763.160 Scope.
763.163 Definitions.
763.165 Manufacture and importation prohibitions.
763.167 Processing prohibitions.
763.169 Distribution in commerce prohibitions.
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 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.

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§ 763.83

40 CFR Ch. I (7–1–07 Edition)

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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).
§ 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 (cummingtonitegrunerite);
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, waterstained, 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

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Environmental Protection Agency

§ 763.83

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.

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§ 763.84

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(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.
§ 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

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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 § 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 § 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.
§ 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 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 § 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
§§ 763.86 and 763.87.
(v) Assess, under § 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 § 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

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§ 763.86

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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 § 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 §§ 763.86
and 763.87.
(v) Assess, under § 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 § 763.88, the condition 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 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.
§ 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 § 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 § 763.87(c)(2).
(3) At least seven bulk samples shall
be collected from each homogeneous

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area that is greater than 5,000 ft2, except as provided in § 763.87(c)(2).
(b) Thermal system insulation. (1) Except as provided in paragraphs (b) (2)
through (4) of this section and
§ 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 § 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.
§ 763.87 Analysis.
(a) Local education agencies shall
have bulk samples, collected under
§ 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) anal-

ysis 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 § 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]

§ 763.88

Assessment.

(a)(1) For each inspection and reinspection conducted under § 763.85 (a)
and (c) and previous inspections specified under § 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 § 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:

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(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
§ 763.84 for inclusion in the management plan.

§ 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 § 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 § 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

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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 § 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 § 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, shortduration.
(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).

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(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 Non-Confidential Information Center (NCIC) (7407), Office
of Pollution Prevention and Toxics,
U.S. Environmental Protection Agency, 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 National Archives and Records Administration (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 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; 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) 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. 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. Unless the building has been cleaned
using equivalent methods within the
previous 6 months, all areas of a school
building where friable ACBM, damaged

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

§ 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

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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 § 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, 1200 Pennsylvania 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 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 § 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 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

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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 § 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 § 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 § 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 § 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
§ 763.84 to ensure that the duties of the

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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 § 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 § 763.90. This description
shall be updated as response actions
are completed.
(9) A plan for reinspection under
§ 763.85, a plan for operations and maintenance activities under § 763.91, and a
plan for periodic surveillance under
§ 763.92, a description of the recommendation made by the management planner regarding additional
cleaning under § 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.

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(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 § 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
§ 763.84, which certifies that the gen-

eral, local education agency responsibilities, as stipulated by § 763.84, have
been met or will be met.
§ 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 § 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 § 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 § 763.90(i)(2)(ii).
(c) For each person required to be
trained under § 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 § 763.92(b) is performed,

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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
§ 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 § 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 § 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 § 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)

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§ 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.
§ 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.

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§ 763.98

(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, 1200 Pennsylvania Ave.,
NW., 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.

§ 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. In addition, if the state chooses to receive electronic documents, the
state program must include, at a minimum, the requirements of 40 CFR part
3—(Electronic reporting).
(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

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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
Subpart E of this part, and that, if the
state chooses to receive electronic documents, the state program includes, at
a minimum, the requirements of 40
CFR part 3—(Electronic reporting).
(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 and any electronic reporting requirements are at least as stringent as
40 CFR part 3—(Electronic reporting).
(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

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Environmental Protection Agency

§ 763.99

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.
[52 FR 41846, Oct. 30, 1987, as amended at 70
FR 59889, Oct. 13, 2005]

§ 763.99 Exclusions.
(a) A local education agency shall
not be required to perform an inspection under § 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 § 763.84 for
inclusion in the management plan.
However, an accredited inspector shall
assess the friable ACBM under § 763.88.
(2) An accredited inspector has determined that, based on sampling records,

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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
§ 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 § 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
§ 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 § 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 § 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 § 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 § 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 § 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
§ 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

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Pt. 763, Subpt. E, App. A

education agency shall conduct an inspection under § 763.85(a) of all areas inspected before October 17, 1987, that
were not sampled or were not assumed
to be ACM.
(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.
APPENDIX A TO SUBPART E OF PART
763—INTERIM TRANSMISSION ELECTRON
MICROSCOPY
ANALYTICAL
METHODS—MANDATORY AND NONMANDATORY—AND MANDATORY SECTION TO DETERMINE COMPLETION OF
RESPONSE ACTIONS
I. Introduction
The following appendix contains three
units. The first unit is the mandatory transmission electron microscopy (TEM) method
which all laboratories must follow; it is the
minimum requirement for analysis of air
samples for asbestos by TEM. The mandatory method contains the essential elements
of the TEM method. The second unit contains the complete non-mandatory method.
The non-mandatory method supplements the
mandatory method by including additional
steps to improve the analysis. EPA recommends that the non-mandatory method be
employed for analyzing air filters; however,
the laboratory may choose to employ the
mandatory method. The non-mandatory
method contains the same minimum requirements as are outlined in the mandatory
method. Hence, laboratories may choose either of the two methods for analyzing air
samples by TEM.
The final unit of this Appendix A to subpart E defines the steps which must be taken
to determine completion of response actions.
This unit is mandatory.
II. Mandatory Transmission Electron
Microscopy Method

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A. Definitions of Terms
1. Analytical sensitivity—Airborne asbestos
concentration represented by each fiber
counted under the electron microscope. It is
determined by the air volume collected and
the proportion of the filter examined. This
method requires that the analytical sensi-

tivity be no greater than 0.005 structures/
cm3.
2. Asbestiform—A specific type of mineral
fibrosity in which the fibers and fibrils possess high tensile strength and flexibility.
3. Aspect ratio—A ratio of the length to the
width of a particle. Minimum aspect ratio as
defined by this method is equal to or greater
than 5:1.
4. Bundle—A structure composed of three
or more fibers in a parallel arrangement
with each fiber closer than one fiber diameter.
5. Clean area—A controlled environment
which is maintained and monitored to assure
a low probability of asbestos contamination
to materials in that space. Clean areas used
in this method have HEPA filtered air under
positive pressure and are capable of sustained operation with an open laboratory
blank which on subsequent analysis has an
average of less than 18 structures/mm2 in an
area of 0.057 mm2 (nominally 10 200-mesh grid
openings) and a maximum of 53 structures/
mm2 for any single preparation for that same
area.
6. Cluster—A structure with fibers in a random arrangement such that all fibers are
intermixed and no single fiber is isolated
from the group. Groupings must have more
than two intersections.
7. ED—Electron diffraction.
8. EDXA—Energy dispersive X-ray analysis.
9. Fiber—A structure greater than or equal
to 0.5 µm in length with an aspect ratio
(length to width) of 5:1 or greater and having
substantially parallel sides.
10. Grid—An open structure for mounting
on the sample to aid in its examination in
the TEM. The term is used here to denote a
200-mesh copper lattice approximately 3 mm
in diameter.
11. Intersection—Nonparallel touching or
crossing of fibers, with the projection having
an aspect ratio of 5:1 or greater.
12. Laboratory sample coordinator—That person responsible for the conduct of sample
handling and the certification of the testing
procedures.
13. Filter background level—The concentration of structures per square millimeter of
filter that is considered indistinguishable
from the concentration measured on a blank
(filters through which no air has been
drawn). For this method the filter background level is defined as 70 structures/mm2.
14. Matrix—Fiber or fibers with one end
free and the other end embedded in or hidden
by a particulate. The exposed fiber must
meet the fiber definition.
15. NSD—No structure detected.
16. Operator—A person responsible for the
TEM instrumental analysis of the sample.
17. PCM—Phase contrast microscopy.
18. SAED—Selected area electron diffraction.

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